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Heavy Vehicle National Law Bill 2011
Heavy Vehicle National Law Bill 2011
Explanatory Notes
Short title
The short title of the bill is the Heavy Vehicle National Law Bill 2011.
Policy objectives and reasons for the Bill
The principal objectives of the bill are to:
· reconcile variations in state heavy vehicle laws to a single, unified
approach applicable across all states and territories; and
· establish a National Heavy Vehicle Regulator responsible for the
administration of those laws.
The bill marks the culmination of the heavy vehicle reform program which
formally began in March 2008, when the Council of Australian
Governments (COAG) committed to a microeconomic reform agenda for
Australia, with a particular focus on health, water, regulatory reform and
the broader productivity agenda. All members signed up to a National
Partnership Agreement to Deliver a Seamless National Economy. The
agreement commits to `deliver more consistent regulation across
jurisdictions and address unnecessary or poorly designed regulation, to
reduce excessive compliance costs on business, restrictions on competition
and distortions in the allocation of resources in the economy' (Department
of Infrastructure, Transport, Regional Development and Local
Government, A national framework for regulation, registration and
licensing of heavy vehicles: Regulatory Impact Statement, May 2009, p. 8).
In September 2008, the Hon. Julia Gillard MP wrote to state and territory
ministers proposing that a Regulatory Impact Statement (RIS) be
developed in support of a single national heavy vehicle regulation,
registration and licensing system. The Australian Transport Council (ATC)
agreed to investigate a framework that would make this possible.
The ATC framework proposed:
· a single regulator to administer a body of national heavy vehicle laws
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Heavy Vehicle National Law Bill 2011
· a body of national heavy vehicle laws that encompasses existing
heavy vehicle regulation
· a national heavy vehicle registration scheme
· a consistent approach to minimum standards for heavy vehicle driver
competency
· a single, physical, national heavy vehicle driver licence.
Ministers further agreed that, over time, pricing and/or network access
would also be investigated as part of the national reform.
The proposed framework was the subject of a RIS developed by the
Australian Government Department of Infrastructure, Transport, Regional
Development and Local Government in 2009.
That RIS evaluated the case for a national approach to heavy vehicle
registration and licensing against six key objectives for regulatory reform.
1. Uniform laws and administrative practices should achieve the `same
outcome in the same circumstances' across Australia.
2. Regulatory burden should not increase overall as a result of the
reform.
3. Legal and administrative costs of regulatory compliance should be
minimised.
4. Productivity, effectiveness and safety of the heavy vehicle industry
should be increased.
5. Efficient, productive and sustainable freight and heavy vehicle
operations should be facilitated, consistent with sustainable
management of state and territory assets.
6. The framework should allow for regular review and evaluation of the
regulation and supporting systems, to ensure their ongoing national
relevance and efficiency.
Accordingly, on 2 July 2009, COAG agreed to establish the National
Heavy Vehicle Regulator and a national body of law governing the
regulation of all vehicles weighing more than 4.5 tonnes. COAG agreed
that the basis for the Heavy Vehicle National Law (HVNL) should be the
reforms developed by the National Transport Commission (NTC) and its
predecessor, the National Road Transport Commission (NRTC). These
reforms were mostly captured in model legislation.
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Heavy Vehicle National Law Bill 2011
On 19 August 2011, COAG signed an Intergovernmental Agreement on
Heavy Vehicle Regulatory Reform to provide the framework for the HVNL
and the National Heavy Vehicle Regulator. The following legislation was
consolidated into the HVNL:
· Heavy vehicle registration
· Heavy vehicle registration regulations
· Australian Vehicle Standards Rules regulations
· Heavy vehicle registration charges
· Mass and loading regulations
· Oversize and overmass vehicles regulations
· Restricted access vehicles regulations
· Higher mass limits regulations
· Compliance and Enforcement Bill 2003
· Intelligent Access Program Act
· Heavy vehicle driver fatigue
· Heavy vehicle speeding compliance Acts
· Alternative compliance legislation (accreditation).
All of these reforms have been approved by the ATC (and its predecessors)
and subsequently enacted, in whole or in part, by the states and territories.
The NTC has also developed guidelines for the concessional mass limits
and National Heavy Vehicle Accreditation Scheme reforms. Guidelines for
the administration of vehicle registration and the operation of escort and
pilot vehicles have also been developed.
On 4 November 2011, the Standing Committee on Transport and
Infrastructure (SCOTI), the replacement body for the ATC, approved the
draft Bill. The HVNL is being progressed in two stages. The draft Bill and
the regulations to be made under it, provide the legislative framework for
the establishment of the National Heavy Vehicle Regulator as well as the
substantive consolidation of model laws into a single body of Law.
However, some policy or technical matters remain unresolved either due to
their complexity or the inability of the participating jurisdictions to reach
agreement. As such, the drafting of an amendment Bill is expected to
occur for approval by March 2012 to enable resolution of those outstanding
issues.
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Heavy Vehicle National Law Bill 2011
Once approved, the HVNL will be the primary source of regulation for
heavy vehicles in Australia. However, it will not regulate such matters as
transport of dangerous goods, traffic laws or public/passenger transport
regulation. The HVNL does not currently include heavy vehicle driver
licensing, although work is continuing on exploring a national licensing
regime and may be included in the HVNL in the future (clause 21 of the
Intergovernmental Agreement on Heavy Vehicle Regulation Reform,
signed by COAG on 19 August 2011). The legislation is to be
implemented by 31 December 2012.
How the policy objectives are to be achieved
The consolidation and unification of national heavy vehicle laws is
necessary to address a long standing problem of contradictory and
inconsistent state laws that stifle productivity and hamper the promotion of
safety. Although the `harmonisation' approach adopted over the last two
decades has improved the situation the model laws have been adapted to
reflect individual state and territory concerns and environments.
Differences in legal and law enforcement systems, drafting preferences,
local requirements and operational realities have meant that sometimes
laws have been partially implemented, or not implemented at all. In other
instances, local productivity variations have gone beyond thresholds given
in the model laws. Consequently, despite significant progress towards
national consistency, important variations remain.
The lack of a single administering body leaves operators to navigate a maze
of government bodies for important decisions around registration,
accreditation, vehicle conditions and access. There is no single repository
of expertise for industry to refer to. Hence, operators seeking road access
often face ambiguity when identifying appropriate decision makers and
where to lodge an application. The divergent roles of transport agencies
and the road manager may be unclear, and operators may face long delays
in determinations. Rights of review have not been enshrined in law, and
administrative mechanisms are inconsistent. Consequently, letters of
complaint are often addressed to ministers, chief executives and other
officials thought to be relevant, in the hope of a favourable response.
Operators may `shop around' within and between departments in search of
advice and information that best suits them.
Variations in law create particular problems for interstate operators. Even
relatively small distinctions in regulation have compliance and
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enforcement consequences for cross-border operators. The more diversions
within law, the more resources interstate operators must expend on
understanding and maintaining compliance.
The current costs of compliance are considerable. NatRoad estimates that
the typical driver of heavy trucks receives approximately three days of
compliance training per year. With 44 000 interstate drivers, this equates to
132 000 days of compliance training, at a total cost of $17 780 000
(Department of Infrastructure, Transport, Regional Development and Local
Government, A national framework for regulation, registration and
licensing of heavy vehicles: Regulatory Impact Statement, May 2009, p.
20). An operator wishing to cross a border into Western Australia may be a
member of up to three accreditation schemes, all with fees and entry
requirements (although efforts have been made to streamline the associated
auditing and compliance regimes).
Variations in regulations have direct impacts on productivity for operators
in cross-border regions. A study into the Sunraysia region (with borders in
New South Wales, Victoria and South Australia) explored how wine
producers in the region are, in effect, forced to comply with the `lowest
common denominator' regulation. The most efficient vehicle for
transporting the grapes would be a road train, but these are not currently
permitted on a stretch of highway linking two of the states and used by the
carrier. Consequently, wine producers use less efficient semitrailers,
leading to more trips, more emissions and higher consumer prices. `If it is
assumed that 50 per cent of grapes sourced need to cross borders and are
using semi-trailers rather than more efficient road trains, then the cost to
the wine industry, in the region, is around $1.6 to $2 million per annum'
(Australian Logistics Council, The cost impact of regulation disparity in
cross border regions--a study encompassing the `Sunraysia/Riverland
region', March 2009, p. 18).
Border crossings are a `high-stress' node in the transport network (Castalia,
Securing a national approach to heavy vehicle regulation--report to the
National Road Transport Operators Association (NatRoad), February
2009, p. 22). According to industry sources, drivers who cross borders
experience considerable `compliance stress', with attendant health risks.
Although this stress is non-quantifiable and has no direct economic impact,
it influences drivers' quality of life and on-road focus. It could also
conceivably be a risk factor in fatigue management.
The current complexity of the system (although perhaps based on local
conditions in some instances) is a natural barrier to expansion. It creates an
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Heavy Vehicle National Law Bill 2011
incentive for operators to stick to operations within their home jurisdiction
because of lack of time and resources to devote to mastering the different
regulatory regimes. This provides a competitive advantage to incumbents
and to larger operators with the resources to devote to acquiring such
mastery.
The widely divergent regimes also create equity issues. Transport operators
across states and territories are subject to different regulatory impacts. As
explained in Section 9.4, on heavy vehicle inspections, in Western
Australia, there are fewer than 0.1 inspections per heavy vehicle each year,
whereas, in the Northern Territory, there are 1.4 inspections per heavy
vehicle per year. Operators pay different fees for similar services, are
subject to different technical requirements, are granted varying levels of
access for the same vehicles seeking to operate on similar infrastructure,
and incur divergent penalties for the same offences.
Issues of duplication, red tape, confusion, stress, equity and
competitiveness need to be understood against the backdrop of the freight
task to be fully appreciated. By 2030, the total national road freight task is
expected to be 1.8 times its 2008 level (Department of Infrastructure and
Transport, Road freight estimates and forecasts in Australia: interstate,
capital cities and rest of state, research report 121, 2010, p. v). Importantly,
it is the interstate road freight task that will drive this growth. A single,
unified national law administered by an independent Regulator will best
manage this anticipated growth from a productivity and safety perspective.
Alternative ways of achieving policy objectives
The Commonwealth RIS produced in 2009 considered four approaches for
a national system of heavy vehicle regulation:
· to retain the status quo--this was used as the `base case' against
which to evaluate the other options
· to create a non-statutory body to foster consistency in the
administration of the current model laws as they apply in each
jurisdiction
· to enact uniform national heavy vehicle law in a `host'
jurisdiction--other jurisdictions would then adopt that law as
`template' legislation
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· to create a single national statutory regulator that would administer
uniform legislation and deliver services through the existing
registration authorities.
Under the fourth option, the regulator would:
... administer the entire body of the national heavy vehicle law ... from
the day-to-day matters such as registering trucks and administering licence
testing to setting the standards for, and collating the results of, compliance
and enforcement activities ...
The NHVR [National Heavy Vehicle Regulator] would administer the
national heavy vehicle registration scheme including:
· maintaining a national register and collecting registration fees in
accordance with the legislation
· administering a scheme for regulating heavy vehicle standards and
inspections in accordance with the legislation, including determining
inspection, roadworthiness test and defect notice regimes ...
A key role for the NHVR would be in development of guidelines on decision
making in implementing particular areas of the law where industry seeks
consistency across jurisdictions, such as the provisions for variations for
local productivity enhancement and access to local roads ...
The NHVR would also act as a `one-stop shop' for heavy vehicle business
interactions with government where, for example, applications for access
permits that cover a number of jurisdictions could be made and resolved ...
Under Option 4 the national heavy vehicle law would make provision for
the issuing of notices for classes of non-general access vehicles and
permits for individual non-general access vehicles by the NHVR. To ensure
consistency in decision making, criteria for the making of these decisions
... would be set out in the legislation after consultation with jurisdictions
and agencies ...
The NHVR would facilitate consistency in services delivered through
agreements with jurisdictions agencies ... by establishing strategies,
performance targets and operating procedures for jurisdictional agencies
to implement the compliance and enforcement aspects of the national laws'
(Department of Infrastructure, Transport, Regional Development and Local
Government, A national framework for regulation, registration and
licensing of heavy vehicles: Regulatory Impact Statement, May 2009, pp.
74-75). [author's emphasis]
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This fourth option delivered the most significant benefits when measured
against the key objectives for regulatory reform and was the option
supported by the ATC. Accordingly, the Heavy Vehicle National Law is
geared towards realising the vision of the Regulator endorsed by the ATC.
The `consolidation' approach - rather than a wholesale rewrite and revamp
of the laws - was considered the most appropriate for several reasons.
Firstly, some of the model laws (such as those around registration) have
been in place for many years and are well understood and accepted by
community and industry.
Secondly, the model laws had all been subject to rigorous scrutiny through
processes such as RISs and reviews.
Thirdly, a consolidation approach would deliver the most timely and cost
effective outcome.
The consolidation model involved the NTC and the states and territories
reviewing existing model laws and undertaking a comprehensive stocktake
of all known variations from those model laws. Nine `stocktake'
workshops with representatives from the states and territories were
conducted, where variations were tabled and discussed. In all, 368 issues
were identified that required resolution for the HVNL. These were resolved
through several robust governance processes including an independent
expert panel, a high level reference group, an industry advisory group and a
public consultation process. A RIS was released in February 2011 and open
for comment for six weeks. Sixty four submissions were received and
considered.
In addition, 18 industry forums were held in various locations across the
country to solicit industry and stakeholder views and concerns. Ongoing
discussions have been held with state and territory governments to resolve
new issues as they have become apparent. The evidence collected through
this process is reflected in the Heavy Vehicle National Law.
Estimated cost for implementation of the Bill
An independent cost benefit analysis was commissioned to ascertain the
net benefits possible through adoption of the proposed national heavy
vehicle law. Two separate methodologies were used. The first (based on
previous RISs and the work of the Productivity Commission) estimated
total net present value gains of around $12 billion over twenty years. The
second methodology (based on new research and direct consultation)
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conservatively estimated gains in the order of $9 billion in net present value
over twenty years.
These benefits will be predominately derived through red tape reduction
and reduced regulatory burden on industry through the consistent and
coordinated administration of a single, nationally applied heavy vehicle
law.
As provided for in the COAG Intergovernmental Agreement on Heavy
Vehicle Regulatory Reform (August 2011), the costs of establishing the
National Heavy Vehicle Regulator will be funded by the Commonwealth
Government.
The costs of establishing the National Heavy Vehicle Regulator will largely
comprise the establishment of a basic information technology platform
from which the Regulator will operate. To the extent possible, existing
jurisdictional systems capability and functionality will be utilised to
minimise systems development and build costs.
There will be costs incurred by individual jurisdictions in implementing
transitional arrangements to apply the new national law within their
jurisdiction and jurisdictions will be responsible for funding their own
transitional costs.
However, costs incurred by individual jurisdictions in moving regulatory
responsibility for heavy vehicles to the National Heavy Vehicle Regulator
will be cost recovered from industry through the Heavy Vehicle Charges
Determination. These costs will be largely comprised of system changes to
facilitate effective information exchange and updated workflow processes
for the delivery of national services under the national legislation.
On an ongoing basis, the National Heavy Vehicle Regulator will be
self-funded through cost recovery from industry through the Heavy Vehicle
Charges Determination and through the application of fees for the direct
services that it provides. The draft bill establishes that the fees may be set
by regulation or by the regulator. A cost recovery methodology will be used
in the calculation of both charges and fees.
Consistency with Fundamental Legislative Principles
The principal objectives of this Bill are to reconcile variations in state
heavy vehicle laws to a single, unified approach applicable across all states
and territories, and to establish an independent National Heavy Vehicle
Regulator to administer these laws.
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In drafting this Bill, the Office of the Queensland Parliamentary Counsel
(OQPC) has maintained the general policy expressed in the heavy vehicle
model laws except when instructed to amend the law to reflect outcomes
achieved during the workshop process to resolve variations or to make
amendments to ensure greater consistency within the law. It has also
ensured that the Bill is consistent with Queensland's drafting practice and
has sufficient regard to rights and liberties of individuals.
Generally, the Bill has sufficient regard to the rights and liberties of
individuals as required by subsection 4(2) of the Legislative Standards Act
1992 (LSA). Nonetheless, it has not entirely eliminated all potential
breaches of the fundamental legislative principles (FLPs). The potential
breaches of the FLPs together with justifications provided in respect of
each provision are discussed below.
Institution of Parliament
Commencement of legislation
Clause 2 provides that the Act commences on a day to be fixed by
proclamation. Subclause 2(2) seeks to extend the commencement date of
the Bill by up to 3 years.
OQPC notes that the Scrutiny of Legislation Committee may oppose
provisions, that completely or indefinitely exclude the operation of section
15DA of the Acts Interpretation Act 1954 (AIA). This section embodies
the principle that it is inappropriate for Parliament to relinquish control
indefinitely over the commencement of an Act it has passed.
However, OQPC notes that the committee may allow a provision that
extended the postponement available under section 15DA to 2 years when
further extensions were also prevented (see AD 2001/3, pp. 12-13).
Response: The extension of the automatic commencement is considered
necessary to provide maximum flexibility, given the number of variables
that may lead to an unexpected delay to commencement. The potential
breach of clause 2 has been made less objectionable by limiting the delayed
commencement to a maximum of 3 years from the assent day.
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Rights and liberties of individuals
Delegation of legislative power
Clause 602 of this Bill allows the Regulator to delegate any of its functions
to a broad range of persons including: (a) the chief executive of an entity or
a department of government of a participating jurisdiction, or the
Commonwealth; or (b) the chief executive officer or another member of the
staff of the Regulator; or a person engaged as a contractor by the Regulator.
Subclause (2) permits the subdelegation of the function to an appropriately
qualified person. Delegation to a person or body outside the administering
government agency or outside government is uncommon because it is
perceived as allowing circumvention of the traditional means of
accountability applicable to the public sector
Response: Broad delegation and subdelegation powers are necessary to
ensure that the Regulator is able to delegate its functions to existing state or
territory transport agencies; and in some circumstances to other
government agencies or external contractors used by the existing state or
territory transport agencies. The administration of the Bill requires
extensive resources due to the wide range of subject matters covered, the
volume of administrative tasks, and the need to administer this law in
remote areas. It will not be possible for the Regulator to engage its own
staff to perform all administration tasks required by the Bill on 1 January
2013. Also, administering the heavy vehicle registration scheme in
isolation from the administration of the light vehicle registration scheme is
not necessarily practicable or cost effective in all circumstances.
The Regulator will also still be legally accountable for all decisions made
by its delegates and subdelegates. Administrative arrangements will be in
place to ensure that the delegates and subdelegates are complying with
business rules and other directions of the Regulator.
Reasonable steps defence in substitution for honest and reasonable
mistake of fact defence
Part 4.9 includes several offences that override the mistake of fact defence
and, in its place, provide for the reasonable steps defence. These offences
are contained in clauses 67, 68, 75, 78, 84, 92, 113, 114, 132, 133, 153,
154, 157, 158, 161, 162, 163, 164, 172, 189, 220, 221, 224, 226, 228, 230,
231, 233, 234, 256, 257, 281, 282, 283, 285, 289, 291, 292, 294, 295, 306,
307, 308, 348, 349, 350, 351 and 420. OQPC notes that overriding the
mistake of fact defence may infringe the rights and liberties of individuals.
However, it notes that the potential infringement is made less objectionable
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(and possibly even justified) in situations where the charged persons are
given the benefit of the reasonable steps defence.
Response: The aforementioned clauses may potentially breach the
fundamental legislative principles that legislation should have sufficient
regard to the rights and liberties of individuals, by overriding relevant
no-fault criminal excuses. This exposes defendants to an absolute liability
offence, without access to a defence for making an honest and reasonable
mistake of fact or attempting to avoid breaches. For instance, clauses 153
and 154 create chain of responsibility offences against parties for
non-compliance with mass requirements that apply to heavy vehicles.
These clauses attach liability for breaches to those persons considered
influential in ensuring compliance (the parties in the chain of
responsibility). Although the relevant no-fault criminal excuses, such as
mistake of fact, are excluded from being raised by the defendant, a
reasonable steps defence is able to be raised.
The reasonable steps defence is provided for in Division 1 and 2 of Part
10.4. The defence is available if the defendant can prove that they did not
know, and could not reasonably be expected to have known of the
contravention, and they either took all reasonable steps to prevent the
contravention or there were no steps the person could reasonably be
expected to have taken to prevent the contravention. Its availability to all
parties in the chain of responsibility is considered a reasonable benefit to
justify the exclusion of no-fault criminal excuses. This is because the
defence encourages parties to consider steps that must be taken to prevent
on-road breaches. In some circumstances where reasonable steps have not
been taken, it is considered inappropriate for a defendant to rely on a no
fault criminal excuse such as mistake of fact. The defendant should be
exposed to absolute liability if they are not actively taking steps to ensure
that their actions do not cause or contribute to on-road breaches.
The approach is also considered to be in the public interest as the
requirements to which the offences relate are mainly prescriptive in nature
and align with the general purpose of public safety assurance. The parties
in the chain of responsibility should be able to identify the actual on-road
breaches that may result from their activities and then apply appropriate
measures to manage the risk of an on-road breach.
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Reversal of the burden of proof
OQPC notes that legislation should not reverse the onus of proof in
criminal proceedings without adequate justification. Several provisions in
this Bill contain a reverse onus of proof.
OQPC has expressed concerns about a number of clauses. These include
clause 96 (proof of contravention of loading requirement), clause 162 (duty
of operator with respect to container weight declarations), clause 576
(liability of executive officers of corporation), clause 577 (treatment of
unincorporated bodies), clause 578 (treatment of partnerships), and clause
639 (discrimination against or victimisation of employees).
OQPC has also noted that the recognition of the Load Restraint Guide in
the Bill could be seen to confer legislative power on the National Transport
Commission.
Response: Clause 96(1) is relevant to proceedings against a person accused
of contravening the loading requirements applying to the vehicle. This
provision deems evidence that a load on a heavy vehicle was not placed,
secured or restrained in a way that met a performance standard stated in the
Load Restraint Guide as in force at the time of the offence is evidence the
load was not placed, secured or restrained in compliance with a loading
requirement applying to the vehicle. In particular, this clause requires a
court to presume a document presented by the prosecution as "Load
Restraint Guide" is that document until the defence disproves that fact.
This provision potentially breaches the fundamental legislative principle
that legislation should have sufficient regard to the rights and liberties of
individuals given that an additional burden is imposed on the defendant.
The additional burden for the defence is that of proving a contravention of a
loading requirement did not occur despite the fact that the Load Restraint
Guide was not complied with. It is arguably easier to prove a contravention
of the Load Restraints Guide than a contravention of a loading
requirement, and this is a justification offered for including the provision.
The practical effect would be that the defendant has the onus of proving
there has not been a contravention of a loading requirement, even though a
performance standard mentioned in the Load Restraints Guide has not met.
The proposal to place onus on the defence is considered to be reasonably
justified in circumstances where the matter that is the subject of proof is
within the defendant's knowledge and would be difficult for the
prosecution to prove. Proving contravention of a loading requirement in
line with the Load Restraint Guide would be difficult for the prosecution to
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establish. It is therefore considered that reversing the onus is essential for
the enforceability and effectiveness of the National Law.
With respect to the concern that recognition of Load Restraint Guide
confers legislative power on the NTC it is noted that the current edition of
the Load Restraint Guide was approved for release by the ATC in
December 2003 after consultation by the NTC and the Roads and Traffic
Authority of New South Wales with stakeholders. It is anticipated that
future editions of the Load Restraint Guide will be subject to similar
procedures. It is also noted that the performance standards in the Load
Restraint Guide has been available and used since 1994 and a number of
jurisdictions have implemented a law substantially the same as clause 96.
Subclause 162(2) provides that when a driver of a heavy vehicle is detected
not carrying a complying container weight the operator of that vehicle is
deemed to contravene the obligation to not permit the driver to transport a
freight container by road using the vehicle unless they have been provided
with a complying container weight declaration. It is noted that the matter is
specifically within the operator's knowledge and it would be difficult for
the prosecution to do more than prove that the driver does not have the
complying container weight declaration for the freight container. The
reversal is consistent with the provision as the operator has the onus of
showing that he or she took reasonable action to comply with the
obligation. It should not be too onerous for an operator to keep records of
complying container weight declarations and there being provided to
drivers of specific heavy vehicles.
Clauses 576 and 578 extend liability to the management of operators and
other parties in the chain of responsibility and reverse the onus of proof,
requiring the individual management officers or partners to prove they
were not in a position to influence the relevant conduct or exercised
reasonable diligence to ensure compliance. It is noted that the intent of
these provisions is to allow prosecutions to better target those chiefly
responsible for the breaches of road law and to enhance the effectiveness of
the law by deterring offending behaviour.
There are compelling public policy reasons to require managers to prove
that they exercised due diligence or were not in a position to influence the
relevant conduct. First, the chain of responsibility provisions, including the
provisions to capture managers, extend liability for prescriptive offences
that are important to ensuring that heavy vehicles used on public roads are
used in a safe manner. Extending the liability is intended to ensure parties
in a position to control, influence, prevent or encourage on-road breaches
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are discouraged from such behaviour and more importantly take active
steps to prevent on-road breaches.
Secondly, the chain of responsibility provisions, including clauses 576 and
578, are intended to allow for the prosecution of all parties whose actions,
or inactivity, may cause on-road breaches. All parties in the supply chain,
including the managers in that chain, should be subject to similar
requirements and expected to prove that they take reasonable action,
whether it be reasonable steps or due diligence, to prevent on-road
breaches.
Thirdly, extending liability to managers is fairer as many parties in the
transport industry, and especially operators, are small business where the
controlling mind of the manager cannot be distinguished from the business.
The chain of responsibility provisions should already encourage these
managers to take active steps to prevent on-road breaches. There are other
parties that will be substantial businesses and the managers of these
businesses may in the absence of these provisions not be subject to the
same encouragement to prevent on-road breaches.
Fourthly, these prescriptive offences have relatively low penalties
compared to other laws that impose criminal responsibility on managers -
such as the Work Health and Safety laws. Extending liability to managers
does not expose the manager to excessive financial risk.
Clause 639 provides for the reversal of the onus of proof in respect of the
reason for the defendant's conduct when it is alleged that they have
dismissed or other prejudiced the employees' employment. The
prosecution only has to show an employee or prospective employee was
dismissed after they helped or gave information to an agency or made a
complaint about a contravention or alleged contravention. The defendant
has to prove that the dismissal was not for the reason that the employee or
prospective employee helped a public agency. The reversal of the onus of
proof potentially infringes the rights and liberties of individuals. However,
the reversal is justified on the basis that the employer is best placed to
explain the reason for taking the adverse action against the employee or
prospective employee. This is considered necessary to deter employers
from taking adverse action, and to encourage employees and prospective
employees to help enforce this law without fear of adverse action being
taken against them.
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Cost recovery principles
Clause 137 provides for the payment of a fee for a route assessment if
required under the law of the jurisdiction applicable to the road manager.
OQPC suggests inclusion of some limitations on the fee, for example, that
it be reasonable and no more than the cost of conducting the route
assessment. However, it is noted that the jurisdictional law prescribing the
fee may itself be subject to similar limitations.
Response: The fee is imposed only in circumstances where an application
for a mass or dimension authority is made. To grant mass or dimension
authorities for a class of heavy vehicles, the road manager and Regulator
may incur significant costs of conducting route assessments. As such, it is
reasonably justified for the Regulator to be able to recover the costs which
generally relate to individualised routes that are relevant only to the
applicant concerned. The costs to the road manager in conducting these
one-off route assessments need to be recoverable. It is noted that in some
jurisdiction there is no fee or the fee is lower than the cost of providing the
service so that operators are not discouraged by the high costs and possibly
resort to illegal use of the roads.
Review of road manager decisions
Decisions of road managers that have been internally reviewed are not
subject to further appeal. These decisions include refusing to consent to
the granting of a mass or dimension authority, imposing road conditions as
a condition to consent to a mass or dimension authority, and requesting an
amendment or cancellation by the Regulator of a mass or dimension
authority. While these matters may affect policy considerations and
balancing the interests of all road users, the essential question to be asked
by a tribunal or court is whether the national law has been applied properly.
The question is whether the decision-maker was correct to deny access on
the sole ground provided in the national law - because there was a
likelihood of damage to a road or road infrastructure or an adverse effect on
public amenity.
Response: The road manager has a number of policy considerations to
consider when deciding whether to consent to a grant of access by way of a
mass or dimension authority under Chapter 4 of the National Law. These
include but are not limited to: the appropriate use of its road network, the
effects on public amenity, the risk of damage to road infrastructure, and the
cost of maintaining the road network. Road managers perform a number of
functions other than maintain roads and being compelled to grant access
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Heavy Vehicle National Law Bill 2011
may have adverse effects on the operations and finances of the road
managers. Access decisions may also have significant impacts on other
parties, including other road users and occupants of land adjoining or near
roads. It is not proposed to allow these other parties to have decisions
reviewed and allowing applicants for access to appeal these decisions to the
exclusion of these other parties allows the latter an advantage over these
other parties who have a legitimate interest in the access decision.
It is noted that a person aggrieved by a decision under the National Law
may have a right to seek judicial review of that decision if there is a
question of law to be determined.
Stay of decisions
Clauses 583 and 589 deal with the stay of reviewable decisions made by
the Regulator or an authorised officer. OQPC notes that this clause
excludes a stay of reviewable decisions made by road managers or the
Regulator that were made on public safety grounds. OQPC notes that a
stay will have no application in relation to the initial registration,
exemption, authorisation or accreditation decision. The absence of the
ability to stay decisions of the Regulator on public safety grounds is also
supported on the grounds it would be inappropriate to allow for a stay of
such decisions given the potential impact on public safety.
Response: Clause 583 allows a person aggrieved by a reviewable decision
made by the Regulator or an authorised officer, who has applied for an
internal review of that decision, to also apply for a stay of the decision to a
relevant appeal body. Clause 589 is allows a person aggrieved by a stay
decision relating to a reviewable decision, who has appealed against the
review decision to also apply for a stay.
The exclusion of a stay of a decisions to amend road conditions or to cancel
a mass or dimension authority is considered justified because the initial
grant of an exemption confers above `as of right' access to some heavy
vehicle operators. This extends the ability of the operator to access a road
network beyond that which is accessible to others. When there is evidence
that the exemption or authorization is unsafe and needs to be cancelled or
amended it is important that such decisions be implemented as quickly as
possible.
Moreover, this approach is consistent with the nationally agreed position
that a person should not be able to appeal the decisions of road managers
regarding access to their road network. A road manager's decision
regarding access to their road network is based on comprehensive and
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Heavy Vehicle National Law Bill 2011
specialised engineering assessments reports about safety risks and risks of
damage to road infrastructure. One of the underlying reasons for refusing
to grant access may be a potentially risk to their road infrastructure, which
includes bridges where the granting of the access may expose other road
users to serious harm.
Finally, all exemptions are issued subject to the express condition of
amendment or cancellation. This express condition is coupled with the
requirement that notice of any amendment or cancellation must be given to
the person 28 days prior to the amendment or cancellation coming into
force. It is considered that this safeguard reasonably allows those relying
on an exemption to manage the risk of a possible amendment or
cancellation and sufficient time to adjust their business activities
accordingly.
Extension of time to institute proceedings for offences
Clause 647 extends the time to commence proceedings for an offence from
the usual period of 1 year to 2 years. This may infringe the fundamental
legislative principle that legislation should have sufficient regard to the
rights and liberties of individuals.
OQPC notes that the period within which a proceeding may be commenced
under subsection (2) is longer than what is normally allowed in Queensland
under section 52 of the Justices Act 1886, which provides that a complaint
must be made within 1 year from the time the matter of complaint arose.
Response: Strong road safety enforcement grounds exist to justify the
extension of time. The proposed amendment recognises that in some cases,
due to the nature of the chain of responsibility offences, it might take
longer to identify other parties in the chain. Generally, the process
involved in determining who the other parties are in the chain can take up
to 18 months alone. Therefore, to allow enforcement action to be taken
against other parties in the chain, it is necessary to extend the time to
commence proceedings from 1 to 2 years. A shorter limitation period may
discourage enforcement of the chain of responsibility provisions and result
in the traditional practice of only enforcing against the driver and perhaps
the operator to continue.
Extended Liability
Several provisions in this Bill extend liability for mass, dimension and
loading offences, fatigue offences and speeding offences (relevant
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Heavy Vehicle National Law Bill 2011
requirements) to persons other than the driver and operator of a heavy
vehicle. These persons include:
· owners of heavy vehicles;
· employers of drivers;
· prime-contractors of self-employed drivers;
· schedulers
· consignors of goods;
· consignees of goods;
· packers of goods;
· loading managers of goods;
· loaders of goods; and
· unloaders of goods.
The imposition of extended liability potentially infringes the rights and
liberties of individuals. The liability has been extended on the basis that
persons other than the driver and operator of heavy vehicles are often
responsible for a breach of the relevant requirements. Extended liability is
intended to provide for increased fairness by providing for penalties to be
imposed on all persons responsible for breaches of the relevant
requirements. Further it is expected that extended liability will create
greater incentives for compliance with the relevant requirements.
These provisions are modeled on the national Road Transport Reform
(Compliance and Enforcement) Bill (the Model Bill) that was developed by
the National Road Transport Commission. Current Queensland legislation
contains extended liability provisions similar to the proposed provisions for
the Heavy Vehicle National Law. Therefore, these do not introduce a new
concept. Similar laws are also in place in New South Wales, Victoria and
South Australia.
However, extending liability to these parties does potentially limit the
fundamental legislative principle that legislation should have sufficient
regard to the rights and liberties of individuals by expanding the scope of
legal liability beyond the driver and operator of a heavy vehicle to persons
whose actions directly influence or control compliance with the relevant
requirements.
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Heavy Vehicle National Law Bill 2011
The principle that underpins the extension of liability is accountability for
acts or omissions by all those responsible for compliance with relevant
requirements. It is recognised that pressure to breach relevant requirements
is not solely attributable to the drivers and operators of heavy vehicles but
extends to those who possess an equal level of influence or control over
compliance. This extension of liability ensures that all parties responsible
for conduct which affects compliance are made accountable for failure to
discharge that responsibility. Each of the parties who are expressly
identified is considered to play an integral part in breaches of relevant
requirements. Their specification is therefore considered justified. The
following outlines the reasons for each party's inclusion in the chain of
responsibility.
Employers of drivers and prime-contractors of self-employed drivers
Employers of drivers and prime-contractors of self-employed drivers are in
a clear position to understand what requirements are applicable to the
heavy vehicle, heavy trailer or heavy combination their employee must
comply with when operating a heavy vehicle. The nature of these
relationships also places employers and prime-contractors of drivers in a
direct position of control over employees and the contracts for the transport
of goods that employees and self-employed drivers perform. It is therefore
considered appropriate, subject to the reasonable steps defence, that
employers of drivers and prime-contractors of self-employed drivers be
held liable.
Schedulers
Schedulers set the timing for the transport of goods or passengers and may
also schedule a driver's work and rest times. They have direct influence
over the timing of the transport task and a failure of their part to specify
legal or reasonable times for this task may result in on-road breaches. It is
therefore reasonable to extend liability to schedulers for breaches of fatigue
and speeding requirements. Furthermore, a reasonable steps defence is
available to all persons within the chain of responsibility. The reasonable
steps defence is provided for in Divisions 1 and 2 of Part 10.4 and its
availability to all parties in the chain of responsibility is considered a
reasonable benefit to justify the expansion of scope of legal liability. This is
because the defence encourages parties to consider steps that must be taken
to prevent on-road breaches.
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Heavy Vehicle National Law Bill 2011
It is acknowledged that schedulers have limited influence over the load of
the heavy vehicle and are therefore excused from extended liability for the
mass, dimension and load restraint requirements.
Consignors
Consignors of goods engage third parties to carry such goods on their
behalf. It is recognised that consignors possess a level of control that
directly influences the mass of a heavy vehicle and the timing of transport
of goods. As a result, potential circumstances may arise, for example, to
save on transport costs, where consignors exert pressure on drivers and
operators to engage in overmass transport, or breach speed or fatigue
requirements to meet time limits. It is therefore considered appropriate that
consignors of goods bear a responsibility to ensure compliance with
relevant requirements applicable to the heavy vehicle that carries goods on
their behalf. Furthermore, a reasonable steps defence is available to all
persons within the chain of responsibility. The reasonable steps defence is
provided for in Divisions 1 and 2 of Part 10.4 and its availability to all
parties in the chain of responsibility is considered a reasonable benefit to
justify the expansion of scope of legal liability. This is because the defence
encourages parties to consider steps that must be taken to prevent on-road
breaches.
Consignees
Consignees or receivers of goods do not necessarily engage third parties to
carry goods on their behalf but do influence the transport task by specifying
times for delivery of goods or passengers. A failure by a consignee to
specify a reasonable time for delivery of goods may result in on-road
breaches. It is therefore reasonable to extend liability for fatigue and
speeding offences to consignees. Furthermore, a reasonable steps defence
is available to all persons within the chain of responsibility. The reasonable
steps defence is provided for in Divisions 1 and 2 of Part 10.4 and its
availability to all parties in the chain of responsibility is considered a
reasonable benefit to justify the expansion of scope of legal liability. This is
because the defence encourages parties to consider steps that must be taken
to prevent on-road breaches.
It is acknowledged that consignees have limited influence over the load of
the heavy vehicle and are therefore excused from extended liability for the
mass, dimension and load restraint requirements.
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Heavy Vehicle National Law Bill 2011
Loaders and Packers
Loaders and packers of goods onto heavy vehicles are directly involved in
the on-road operations of heavy vehicles that transport goods. It is
therefore appropriate that loaders and packers of goods ensure that the
vehicle load does not cause the vehicle's mass, dimension and load
restraint requirements be exceeded.
The potential limitation of the FLP is considered justified as the extended
liability provisions are crucial measures to help ensure compliance with
heavy vehicle mass, dimension and load restraint requirements and
therefore significantly contribute to the general purpose of public safety
assurance. Furthermore, a reasonable steps defence is available to all
persons within the chain of responsibility. The reasonable steps defence is
provided for in Divisions 1 and 2 of Part 10.4 and its availability to all
parties in the chain of responsibility is considered a reasonable benefit to
justify the expansion of scope of legal liability. This is because the defence
encourages parties to consider steps that must be taken to prevent on-road
breaches.
Unloaders
Unloaders of goods from heavy vehicles can cause of contribute to
breaches of fatigue requirements by delaying the unloading of a heavy
vehicle. Delays in the unloading of a heavy vehicle, especially if the
vehicle is queued, can cause the driver to breach work and rest hour
requirements or eventually fatigue the driver. For this reason, it is
reasonable to extend liability to unloaders for breaches of fatigue
requirements.
Averments and evidentiary certificates
In a proceeding for an offence, clause 650 allows the Regulator to provide
information relating to certain matters, from its Heavy Vehicle Register, in
a statement or certificate for the court to consider and accept as evidence,
unless evidence to the contrary is proved.
OQPC notes that clauses 650, 651 and 654 potentially breach the FLP that
legislation should not reverse the onus of proof in criminal proceedings
without adequate justification. This potential breach is made less
objectionable as the evidentiary certificates are for administrative
convenience for non-contentious matters and the averment matters are
generally for matters that the defendant is better placed to prove.
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Heavy Vehicle National Law Bill 2011
Subclause 650(2) is identified as being particularly objectionable as it goes
directly to the matter of whether an offence has in fact been committed and
would require the defendant to carry the evidential burden that they did not
in fact commit an offence.
Response: Justification is required for relaxation of the normal rules of
evidence applicable to legal proceedings. In this case, these provisions are
justified because:
· the evidence in evidentiary certificates is not conclusive and the
defence can lead evidence in rebuttal of the evidence;
· the evidence provided in a statement or certificate is often information
extracted from the register of heavy vehicles or other records
maintained by the Regulator relating, for example, to matters such as
category or type of heavy vehicle, name and address of registered
operator and other like matters that are not likely to be
non-contentious;
· the statements in averments are for matters that should be
non-contentious but if incorrect can be rebutted by the defendant.
The purpose of subclause 650(2) is to allow the statement that a heavy
vehicle and driver of that vehicle alleged to have committed the offence
were at a particular place at the particular time, date or period to be prima
facie evidence. While this appears to determine the matter, usually the
essential fact that decides the charge against the defendant remains
unproven by this averment. For example, the actual mass or dimensions of
the heavy vehicle or the actual hours of work and rest by a driver still need
to be proven by the prosecution. The benefit of subclause 650(2) is that it
allows relatively non-contentious matters to be proven without the need for
a full trial and allows instead for concentration on the contentious and
essential matters that are in dispute if the charge is defended.
Power of entry without warrant
Division 3 in Part 9.2 of the Law provides powers to authorised officers to
enter a place without consent or a warrant, and therefore potentially
infringe the rights and liberties of individuals. These provisions are
contained in clauses 446, 447 and 448.
For example, clause 448 has been included to allow for investigations after
a crash involving a heavy vehicle. The power seems to be directed at
dangerous situations and the Parliamentary Counsels' Committee (PCC)
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Heavy Vehicle National Law Bill 2011
has questioned whether this Law, which does not directly deal with safety
or dangerous situations is an appropriate Law for this power.
In particular, it is expected that general transport legislation and police
powers legislation of the various jurisdictions will include similar powers.
Also, to make the potential breach less objectionable, PCC has questioned
whether there needs to be an additional element to require the immediate
action. For example, that entry be allowed only when it is considered that
evidence at the place may be concealed or destroyed unless the place is
immediately entered and searched as provided in section 443(1)(b).
Response: The power to enter a place without consent or a warrant is
limited to circumstances involving a heavy vehicle crash. This clause
potentially breaches the fundamental legislative principle that legislation
should have sufficient regard to the rights and liberties of individuals by
allowing entry to a place without consent or a warrant. These powers may
only be exercised in circumstances where an authorised officer reasonably
believes that a heavy vehicle has been involved in an incident involving a
person's death, injury to a person or damage to property. In these
circumstances, such measures are reasonably justified on the grounds that
any delay that may be encountered in obtaining a warrant or the occupier's
consent could have serious negative consequences. Therefore, this
provision is reasonably justifiable and is proportionate to the need to
minimise substantial risks to public safety and to maximise the ability of
authorised officers to obtain relevant information about breaches of the
National Law. The power is limited to the purpose of establishing
compliance with the National Law or the National Regulation. The power
is also necessary to ensure that the requirements of this law are being
complied with and that the potential safety risks associated with heavy
vehicle access to road networks and national safety standards are
minimised.
Right to privacy
Division 4 in Part 9.4 of the Law allows an authorised officer to require
information about a heavy vehicle or information about another person.
For example, clause 514 allows an authorised officer to require a person to
disclose personal information about another person. This potentially
infringes the rights and liberties of individuals as it invades a person's right
to privacy. The reason for this requirement is to allow an authorised officer
to identify each person responsible for the commission of the offence.
These persons are, in most cases, automatically taken to have committed an
offence unless they can show they took reasonable steps. OQPC has
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Heavy Vehicle National Law Bill 2011
indicated that the potential infringement may be made less objectionable
by excluding the operation of this provision to people like packers and
loaders.
Response: Personal information is necessary to ensure the effectiveness of
the heavy vehicle enforcement. The power granted under this provision is
cast in narrow terms and extends only to information that is relevant to the
Regulator's functions. For example, the information sought will relate to a
current or intended journey of the vehicle and will include the location of
the start; the route and the location of the destination of the journey or
intended journey, as well as personal information about the person. This
provision is essential in enabling authorised officer to easily identify
registered operators for enforcement purposes.
Appeal rights
Clause 581 provides that the decision made by an authorised officer to
seize a thing or issue an embargo notice, is not reviewable under this Law.
This potentially infringes the rights and liberties of individuals. The effect
of a seizure or embargo notice could be that individuals are unable to carry
on a business, or an individual's business may be significantly and
adversely affected by the seizure or embargo notice. This is a kind of
decision that would normally be reviewable, and similar decisions under
other transport legislation in Queensland are reviewable. The proposed
justification for the absence of review is that there are other avenues for
scrutinising the authorised officer's actions (e.g. applications to the
ombudsman or the court proceedings for the offence in relation to which
the thing was seized or embargo notice issued). These other avenues are not
as effective and efficient as a merits review process.
Additionally, decisions of authorised officers who are police officers to
give or amend an improvement notice are not reviewable under this Law.
This means that decisions of police officers are treated differently to
decisions of non-police officers. As a result, a person's right of review
differs depending on the status of the person giving the notice. No
justification for this policy has been provided. PCC does not support the
absence of the review rights on the basis that this Law does not provide for
appropriate review of these decisions.
Response: The justification for failing to have a review of the decision to
seize a thing or issue of an embargo notice as described by the drafter fairly
represents the policy position on this issue. The expected limited use of
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Heavy Vehicle National Law Bill 2011
embargo notices and availability of other avenues for reviewing
inappropriate actions with respect to such notices should be adequate.
The lack of review for decisions by authorised officers who are police
regarding the giving and amendment of improvement notices is justified on
the basis that it was not intended that the Heavy Vehicle National Law
impose additional review requirements on the actions of police officers that
are inconsistent with existing practice. As there are different approaches
across jurisdictions to the review of these decisions, it is preferred that the
national law remains silent on this issue. Jurisdictions may use their
application laws to include a review process consistent with their existing
arrangements if the issue is not addressed adequately by existing laws and
it is considered appropriate by their parliaments to address this issue.
Absence of Merits Review
A number of clauses in this Bill provide for amendment or cancellation of
various exemptions and mass or dimension authorities. For example,
clause 34 allows for amendment or cancellation of a registration
exemption. Similarly, clause 53 allows amendment or cancellation of a
vehicle standards exemption. Other similar clauses include clauses 143,
144, 241 and 332.
OQPC notes that in the absence of merits review, these provisions
potentially infringe the rights and liberties of individuals. And whilst these
exemptions are of general application and not directed at a particular
individual, a person's ability to conduct a business may be affected by the
Regulator's decision. The decision is of a kind for which merits review
would normally be expected.
Response: The exclusion of merits review in respect of a decision to
amend or cancel an exemption granted by a permit or a notice in the
Commonwealth Gazette is reasonably justified because of a number of
factors. First, the granting of the initial exemption or mass or dimension
authority confers above `as of right' access to some heavy vehicle
operators. Be it an exemption from registration or a mass or dimension
authority, the notice allows operators who qualify an opportunity to not
comply with usual legal requirements and instead comply with more
flexible or accommodating requirements.
All exemptions are issued subject to the possibility of amendment or
cancellation. This possibility is coupled with the requirement that notice of
any amendment or cancellation must be given to the person 28 days prior to
the amendment or cancellation coming into force. Decisions to amend or
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Heavy Vehicle National Law Bill 2011
cancel an exemption should not be common and they will only be made if
sufficient grounds exist to justify the making of the decision, such as if the
use of the heavy vehicles on the road has caused, or is likely to cause, a
significant safety risk.
If a decision is made to amend or cancel an exemption made by Gazette
notice (which may apply to a large number of operators and vehicles) then
operators who have been relying on the notice could apply for a permit to
continue operating. It may be possible for permits to be issued which
include conditions addressing the problem that led to the decision to amend
or cancel the exemption made by Gazette notice.
It is considered that these safeguards reasonably allow those relying on an
exemption to manage the risk of possible amendment or cancellation and
sufficient time to adjust their business activities accordingly. For example,
persons are given a 28 day notice to ensure they can change their business
practices in line with the amendment or cancellation, or to apply for
conditional registration.
This provision is essential in safeguarding the road assets and ensuring
public safety.
Consultation
The draft RIS was released on 28 February 2011 and was available for
public consultation until 6 May 2011. A total of 63 submissions were
received from the following parties:
Allied Industry
· Insurance Council of Australia
· Motor Accident Insurance Board Tasmania
· Motor Accidents Compensation Scheme (Northern Territory)
· Suncorp
· Tourism Central Australia
Government
· Australian Assembly of Volunteer Fire Brigade Associations
(AAVFBA)
· Australian Local Government Association (ALGA)
· Brisbane City Council
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Heavy Vehicle National Law Bill 2011
· Comcare
· Local Government Association of Queensland
· Local Government Association of South Australia
· New South Wales Road Transport Authority and Department of
Transport
· Queensland Government
· South Australian Department for Transport, Energy and Infrastructure
(inclusive of the South Australian Police and the Motor Accident
Commission)
· State Government of Victoria
· Tasmanian Department of Infrastructure, Energy and Resources
· Transport Certification Australia
· Transport Workers Union of Australia (TWU)
· Vice Chief of the Defence Force
· Western Australian Department of Transport (inclusive of comments
from Main Roads WA, WA Police, Insurance Commission of WA,
Department of Treasury and Finance and Worksafe WA)
· Western Australian Local Government Association (WALGA)
Individuals
· Mr Chris Begley
· Mr Harry Carna
· Mr Stephen McCartney
· Mr Wal Cichocki
· Mr Geoffrey Cocks
· Mr Michael D Jordan
· Mr Garry Page
· Mr Adrian Peterson
· Ms Lorraine Pountney
· Ian Wright & Associates
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Heavy Vehicle National Law Bill 2011
Industry
· All Size Equipment Transport
· Brookfield's Transport Services
· CBCI
· Engistics
· Linfox
· Logistics Safety Solutions Pty Ltd
· Toll Group
· Transedel Livestock Transport
· Transport Consultancy Solutions
· Truckright
· Whyte's Transport Pty Ltd
Industry Peak Bodies
· AgForce Grains
· Australian Heavy Vehicle Repairers Association
· Australian Logistics Council (ALC)
· Australian Trucking Association (ATA)
· Bus Industry Confederation (BIC)
· BusNSW
· Cattle Council of Australia
· Cement Concrete and Aggregates
· Commercial Vehicle Industry Association of Qld (CVIAQ)
· Crane Association of WA (CAWA)
· Livestock and Rural Transport Association of WA (LRTA)
· Livestock Transporters Association of Victoria
· Motor Traders Association of NSW
· National Farmers Federation (NFF)
· National Pilot Vehicle Drivers Association
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Heavy Vehicle National Law Bill 2011
· National Road Freighters Association
· NatRoad
· NSW Farmers Association
· ruck Industry Council
· Victorian Farmers Federation
In addition to the formal submissions, 18 forums were held across the
country to explain the intent of the proposed law and the likely impacts.
The forums attracted around 780 stakeholders, and included question and
answer sessions that provided attendees with direct access to the regulatory
bodies that were developing the laws and establishing the regulator.
Evaluation sheets were also provided at each forum to enable stakeholders
to put their questions, comments and concerns in writing. The question and
answer sessions, and the evaluation forms have all been considered in the
development of the National Law and accompanying RIS.
Key stakeholders, such as the ATA, Australian Livestock Transporters
Association, NatRoads, ALC, National Farmers' Federation, Australian
Local Government Association and TWU have all been directly consulted
at least once.
The submissions reveal an overwhelming support for the concept of a
National Heavy Vehicle Regulator (NHVR). Industry is enthusiastic about
a `one stop shop' and supportive of the new decision making frameworks
and the potential to improve access arrangements. Local Governments have
welcomed the prospect of improved technical assistance regarding
pavements and bridges and all parties strongly support the ability of the
regulator to chart and respond to access `hot spots'. The potential for the
regulator to take a decisive leadership role in chain of responsibility
investigations is warmly embraced by virtually all stakeholders.
Consistency with legislation of other jurisdictions
It is proposed that the National Law and supporting regulations be adopted
in a consistent manner in every jurisdiction under a template law model.
Each jurisdiction will pass legislation so that the National Law, as enacted
by Queensland, is applied as law in their own jurisdiction. Western
Australia has indicated an intention to mirror the legislation.
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Heavy Vehicle National Law Bill 2011
Notes on Provisions
Part 1 Preliminary
Clause 1 provides that the short title of the Act is the Heavy Vehicle
National Law Act 2011.
Clause 2 provides that the Act commences on a day to be fixed by
proclamation. It is planned to commence the Heavy Vehicle National Law
in all states and territories on a common agreed date, currently scheduled
for 31 December 2012. It is also planned to commence the provisions
establishing the National Heavy Vehicle Regulator from 1 July 2012. This
will allow for the Regulator Board to be appointed and to establish the
corporate framework and structures of the Regulator progressively from
July 2012 before functional operation and administration of the Heavy
Vehicle National Law commences.
As national scheme legislation, the Heavy Vehicle National Law relies on
each jurisdiction passing its application laws before the agreed
commencement date. To allow for any contingencies that may occur in
other jurisdictions passing their application laws, the time for automatic
commencement of legislation in section 15DA of the Acts Interpretation
Act 1954 has been increased from 1 year to 2 years and the period for
which a regulation may extend automatic commencement has been
increased from 2 years to 3 years.
Clause 3 sets out the meanings of the terms "local application provisions of
this Act" and "Heavy Vehicle National Law (Queensland)".
Part 2 Adoption of Heavy Vehicle
National Law
Clause 4 applies the Heavy Vehicle National Law set out in the schedule as
a law of Queensland.
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Heavy Vehicle National Law Bill 2011
Clause 5 excludes the operation of certain Queensland legislation for the
Heavy Vehicle National Law (Queensland) and instruments made under the
Law. To ensure that the Heavy Vehicle National Law scheme can operate in
a consistent way in all jurisdictions, administrative and machinery
legislation usually applying in Queensland is excluded. For example,
Queensland Acts dealing with the interpretation of legislation, financial
matters, information privacy, the role of the ombudsman, record-keeping,
employment of public servants and right to information will not apply to
the Heavy Vehicle National Law (Queensland). In their place, the Heavy
Vehicle National Law enacts consistent provisions covering these matters
or adopts certain Commonwealth legislation to apply.
Some functions will be exercised under the Heavy Vehicle National Law
(Queensland) by state entities. For example, the Queensland Police
Service will continue to enforce provisions of the Heavy Vehicle National
Law (Queensland) and the Department of Transport and Main Roads will
be the road manager for State-controlled roads. It is appropriate that
Queensland legislation continues to apply to these state entities while they
are exercising their usual state-based functions under the Heavy Vehicle
National Law (Queensland). The words "other than to the extent that
functions are being exercised under the Law by a State entity" are used in
clause 5 to achieve this.
Clause 6 sets out the purpose of division 2.
Clause 7 defines terms used in the Heavy Vehicle National Law
(Queensland).
Clause 8 makes declarations for particular Queensland laws for the
purposes of the Heavy Vehicle National Law (Queensland).
Clause 9 declares the Brisbane City Council and local governments under
the Local Government Act 2009 to be local government authorities for the
Heavy Vehicle National Law (Queensland).
Clause 10 declares that QCAT is the relevant tribunal or court for the
purposes of the Heavy Vehicle National Law (Queensland). The term
"QCAT" is defined in the Acts Interpretation Act 1954.
Clause 11 declares the chief executive of the department which administers
the Transport Operations (Road Use Management) Act 1995 to be the road
authority for the purposes of the Heavy Vehicle National Law
(Queensland).
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Heavy Vehicle National Law Bill 2011
Clause 12 declares certain entities to be road managers for particular types
of roads for the purposes of the Heavy Vehicle National Law (Queensland).
Clause 13 declares that police officers are authorised officers for the
purposes of the Heavy Vehicle National Law (Queensland).
Clause 14 declares that magistrates are authorised warrant officials for the
purposes of the Heavy Vehicle National Law (Queensland). The term
"magistrate" is defined in the Acts Interpretation Act 1954.
Clause 15 declares that a busway as defined by the Transport
Infrastructure Act 1994 is a road for the purposes of the Heavy Vehicle
National Law (Queensland).
Clause 16 declares that a person charged with an offence under the Heavy
Vehicle National Law (Queensland), which states that the person does not
have the benefit of the mistake of fact defence, means that section 24 of the
Criminal Code does not apply to the person in relation to the offence. That
section provides that a person who does or omits to do an act under an
honest and reasonable, but mistaken, belief in the existence of any state of
things is not criminally responsible for the act or omission to any greater
extent than if the real state of things had been such as the person believed to
exist.
Part 3 National regulations
Clause 17 deals with matters relating to the making and Parliamentary
scrutiny of national regulations for the Heavy Vehicle National Law.
Clause 17(1) provides that sections 49 to 51 of the Statutory Instruments
Act 1992 apply to national regulations. This ensures that national
regulations are subject to the usual tabling and disallowance procedures
that apply in Queensland under the Statutory Instruments Act 1992. Under
clause 17(1)(b), a national regulation must be tabled in the Legislative
Assembly within 14 days after it is published on the New South Wales
legislation website in accordance with clause 670(1) of the Heavy Vehicle
National Law (Queensland).
Clause 17(2) provides that part 4 of the Legislative Standards Act 1992
applies to national regulations. Part 4 of the Legislative Standards Act
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Heavy Vehicle National Law Bill 2011
1992 outlines the requirements for explanatory notes for Acts and
regulations.
Clause 17(3) provides that a committee of the Legislative Assembly may
deal with and report on national regulations under the Parliament of
Queensland Act 2001 in the same way as a regulation made under a
Queensland Act.
Clause 17(4) provides that the references to subordinate legislation in
section 4 of the Legislative Standards Act 1992 regarding fundamental
legislative principles apply to national regulations.
Clause 17(5) provides that if a national regulation ceases to have effect
under clause 17(1) in Queensland, the cessation does not have any effect on
the application of the regulation in any other jurisdiction. Clause 17(6)
defines national regulation for this section.
Part 4 Provisions specific to this
jurisdiction
Clause 18 provides that the provisions of Chapter 9 of the Heavy Vehicle
National Law (Queensland) which correspond to provisions of the Police
Powers and Responsibilities Act 2000 do not apply to an authorised officer
who is a police officer. This replicates section 20(4) of the Transport
Operations (Road Use Management) Act 1995, which currently applies to
the exercise of authorised officer powers by police officers for both light
and heavy vehicles. As a result of the enactment of the Heavy Vehicle
National Law (Queensland), this clause is required to maintain the status
quo in relation to the exercise of authorised officer powers for heavy
vehicles by police officers.
Clause 19 provides that a reference in the Heavy Vehicle National Law
(Queensland) to an appeal against a decision is a reference to a review of
the decision provided under the Queensland Civil and Administrative
Tribunal Act 2009. Section 20 of that Act provides that the purpose of the
review of a reviewable decision is to produce the correct and preferable
decision and that QCAT must hear and decide the review by way of a fresh
hearing on the merits.
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Heavy Vehicle National Law Bill 2011
Schedule Heavy Vehicle National Law
Chapter 1 Preliminary
Part 1.1 Introductory matters
Clause 1 provides for the Law to be cited as the Heavy Vehicle National
Law.
Clause 2 specifies the commencement date for the Law in Queensland by
reference to the commencement provision specified in the Heavy Vehicle
National Law (Queensland), being a day to be fixed by proclamation. This
clause reflects the intention that each State and Territory will enact the Law
and will individually determine in its applied law the commencement date
of the Law in its jurisdiction. It is planned to commence the Law in all
States and Territories on a common agreed date, currently scheduled for 31
December 2012. It is also planned to commence the provisions
establishing the National Heavy Vehicle Regulator from 1 July 2012. This
will allow for the Regulator Board to be appointed and to establish the
corporate framework and structures of the Regulator progressively from
July 2012 before functional operation and administration of the Law
commences.
Clause 3 identifies the object of the Law, in establishing a national scheme
for facilitating and regulating the use of heavy vehicles on roads in a way
that:
· promotes public safety;
· manages the impact of heavy vehicles on the environment, road
infrastructure and public amenity;
· provides for efficient road transport of goods and passengers by heavy
vehicles; and
· encourages and promotes efficient, innovative, productive and safe
business practices.
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Heavy Vehicle National Law Bill 2011
Clause 4 sets out the regulatory framework to achieve the object of the Law
as one that:
· establishes an entity called the National Heavy Vehicle Regulator (the
Regulator);
· provides for the national registration of heavy vehicles;
· prescribes specified requirements for the driving and use of heavy
vehicles;
· imposes duties and obligations on persons whose activities may
influence compliance with such requirements; and
· includes measures to allow improved access to the road network in
certain circumstances.
Part 1.2 Interpretation
Clause 5 defines numerous technical and other terms used throughout the
Law.
Clause 6 defines the key term `heavy vehicle' to mean a vehicle that has a
gross vehicle mass (as defined in clause 5) of more than 4.5 tonnes. It also
includes light vehicles (vehicles with a gross vehicle mass of 4.5 tonnes or
less) when used in a combination with a heavy vehicle, but does not include
light vehicles for the purposes of the registration requirements. However, it
does not include `rolling stock' (for example, trains, trams, wagons and
monorail vehicles) as defined in clause 6(4).
Clause 7 defines the term `fatigue-regulated heavy vehicle' to mean a
motor vehicle with a gross vehicle mass (as defined in clause 5) of more
than 12 tonnes; a combination with a gross vehicle mass of more than 12
tonnes; or a fatigue-regulated bus (defined in clause 5 as a motor vehicle
built or fitted to carry more than 12 adults, including the driver). The
clause clarifies that, in the case of a truck or a truck in a combination, the
gross vehicle mass includes any machine or implement attached to the
truck. However, the term does not include a motorhome or (except in the
case of truck or a combination with a truck that has a machine or
implement attached to it) a motor vehicle built or modified to operate
primarily as an off-road machine or implement or on a road-related area or
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Heavy Vehicle National Law Bill 2011
a on a road under construction and which is not capable of carrying goods
or passengers by road.
The term is of particular importance to `Chapter 6-Vehicle
operations-driver fatigue', as the driver fatigue provisions of the Law only
apply in respect of drivers of these fatigue-regulated heavy vehicles.
Clause 8 defines two other key terms in the Law, being `road' and
`road-related area'. The terms are important as the Law regulates the use
of heavy vehicles on roads and road-related areas. Also note that clause 13
(see below) states that a reference in the Law to a road includes a reference
to a road-related area, unless a contrary intention appears in the Law.
Clause 9 defines the terms `convicts' and `convicted' as per their usual
meaning. However, clause 9(3) provides that for specified sections of the
Law, a person is to be taken to be `convicted' of an offence if that person
pays a fine sought by an infringement notice for the offence. The purpose
of this expanded definition of `convicted' is to allow for extended liability
to apply to various parties even though a driver has not been charged and
taken to court for the commission of an offence but the driver has paid a
fine imposed by an infringement notice, thereby effectively admitting the
offence.
Clause 10 provides that Schedule 1 applies to the Law. This schedule
contains miscellaneous interpretation provisions of a kind usually
contained in the Interpretation Act of a State or Territory. The schedule is
necessary to provide consistency in interpretation across jurisdictions.
Clause 11 provides that a reference in this Law, either generally or
specifically to a law or a provision of a law of the Commonwealth or a
State or Territory (including this Law) includes a reference to each
instrument (including a regulation) made or in force under the law or
provision as well as each instrument made or in force under any such
instrument.
Clause 12 states that a reference to `this Law as applied in a participating
jurisdiction' in the Law means the law of a participating jurisdiction that
substantially corresponds to the Law, or a law prescribed by the national
regulations for the purposes of paragraph (a)(iii) of the definition of
`participating jurisdiction' (as defined in clause 5), enacted in a
participating jurisdiction. This clause is necessary to acknowledge that the
Law is intended to apply across Australia even if a jurisdiction mirrors the
Law or makes minor amendments to its application of the Law.
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Heavy Vehicle National Law Bill 2011
Clause 13 states that a reference in the Law to a road includes a reference
to a road-related area (as defined in clause 8), unless a contrary intention
appears.
Clause 14 states that where the provision of the Law expressly states that a
person is not to have the benefit of the mistake of fact defence for the
offence, then the effect of that provision in a participating jurisdiction will
be the effect that is declared by a law of that jurisdiction. This clause allows
for each jurisdiction to ensure that the mistake of fact defence as used in
that jurisdiction does not apply for the purpose of this Law in respect of a
number of offences under the Law that are to be absolute liability offences.
These are offences where the mistake of fact defence is not to apply, so that
the person cannot rely on honest and reasonable mistakes of fact to excuse
his or her behaviour. Note that most of the absolute liability offences in
this Law are subject to the reasonable steps defence created by clause 560
of this Law.
Thus, clause 16 of the Heavy Vehicle National Law (Queensland) specifies
that section 24 of the Criminal Code does not apply. This has the effect of
excluding the mistake of fact defence in respect of those absolute liability
offences.
Part 1.3 Application and operation of Law
Clause 15 provides for the extraterritorial operation of the Law so far as it
is possible so that the national regulation scheme for heavy vehicles is
effective.
Clause 16 provides that the Law binds the State (as defined in clause 5).
However, subclause 16(2) states that no criminal liability attaches to the
State itself (as distinct from its agents, instrumentalities, officers and
employees) under the Law.
Clause 17 sets out the relationship of the Law with the primary work health
and safety (WHS) law in a participating jurisdiction. In essence, the Law
and WHS laws are to operate independently of each other. Thus, subclause
17(3) clarifies that compliance with the Law is not by itself evidence that a
person has complied with the primary WHS law, regulations made under
the WHS law or with a common law duty of care. However, subclause
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Heavy Vehicle National Law Bill 2011
17(2) provides that evidence of a contravention of this Law is admissible in
any proceedings under the primary WHS law.
Chapter 2 Registration
Part 2.1 Preliminary
Clause 18 states that the main purpose of Chapter 2 is to establish a scheme
for the national registration of heavy vehicles that meets safety objectives,
allows for identification of heavy vehicles and those responsible for them,
and ensures compliance with compensation legislation. The clause also
recognises that unregistered heavy vehicles may be used in particular
circumstances without posing significant safety risks.
Part 2.2 Registration scheme
Division 1 Preliminary
Clause 19 provides a head of power for national regulations to prescribe
procedures for the registration of heavy vehicles. The types of matters that
may be prescribed cover a broad spectrum including eligibility for
registration requirements, conditional registration, registration charges,
unregistered heavy vehicle permits, registration transfers, surrenders and
renewals, amendment, suspension or cancellation of registration or
unregistered heavy vehicle permits, and arrangements for the collection of
third party insurance and vehicle registration duty.
Clause 20 states that the registration of a heavy vehicle under the Law is
not evidence of title to the heavy vehicle. This clause intends to maintain
the distinction between registration of a heavy vehicle and ownership of a
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Heavy Vehicle National Law Bill 2011
heavy vehicle at law as the registered operator of a heavy vehicle may not
be the owner or sole owner of the heavy vehicle.
Division 2 Requirement for heavy vehicle to be
registered
Clause 21 creates an offence for a person to use, or permit to be used, on a
road an unregistered heavy vehicle or one whose registration has been
suspended. The maximum penalty for non-compliance is $8000. Note that
the inclusion of `permit to be used' in clause 21 extends the responsibility
beyond the driver of the heavy vehicle and is intended to require persons
responsible for a vehicle to prevent the use of that vehicle while it is
unregistered or the registration has been suspended.
An exception to the above is set out in subclause 21(2): no offence is
committed if the vehicle is being used under an unregistered heavy vehicle
permit, or if the use of the unregistered heavy vehicle is authorised under
Division 3. That Division specifies various circumstances in which an
unregistered heavy vehicle is authorised to be used on a road without an
unregistered heavy vehicle permit issued under the national regulations.
Division 3 Authorised use of unregistered heavy
vehicle
Clause 22 specifies that the purpose of Division 3 is to state the
circumstances in which an unregistered heavy vehicle is authorised to be
used on a road without an unregistered heavy vehicle permit issued under
the national regulations.
Clause 23 authorises the use of an unregistered heavy vehicle on a road
when that vehicle is travelling, by the most direct or convenient route, to a
`registration place', as defined in subclause 23(2). A registration place is a
place where a heavy vehicle is taken for the purpose of obtaining
registration and includes a place where the vehicle may be first weighed or
inspected for checking its compliance with the heavy vehicle standards.
However, the requirements of any third party insurance legislation required
by the local jurisdiction in which the heavy vehicle is being used must be
complied with and the vehicle must not be carrying goods.
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Heavy Vehicle National Law Bill 2011
Clause 24 authorises the use of an unregistered heavy vehicle on a road if it
is registered in a foreign country and temporarily in Australia, and the
registration requirements of that country are satisfied, so far as is
reasonably practicable. The requirements of third party insurance
legislation of the local jurisdiction in which the heavy vehicle is being used
must also be complied with. The intention is to allow the use of foreign
registered heavy vehicles in Australia for a limited time period without the
requirement for registration in Australia. This clause does not intend to
authorise the use of foreign registered heavy vehicles on a road in Australia
for an indefinite time period.
Clause 25 authorises the use of an unregistered heavy vehicle on a road if a
road authority has authorised the use of the vehicle on the road for
short-term purposes (usually known as `trade plates' or `dealer plates'), if,
so far as is reasonably practicable, any relevant conditions imposed by the
authority are complied with, and any third party insurance requirements of
the local jurisdiction in which the heavy vehicle is being used are complied
with.
Clause 26 authorises the use of an unregistered heavy vehicle on a road if
the vehicle is on a journey between two parcels of land used solely or
mainly for primary production, is travelling by the most direct or
convenient route between the places, and for a distance of no more than
500 metres. The requirements of any third party insurance legislation of the
local jurisdiction in which the heavy vehicle is being used must also be
complied with.
Clause 27 authorises the use of an unregistered heavy vehicle on a road if it
falls within either of the following categories:
· the vehicle is an `agricultural implement' (defined in clause 5) being
towed by a registered `agricultural machine' (defined in clause 5) that
is suitably matched to the implement or another registered heavy
vehicle of a suitable size for towing the implement;
· the vehicle is a trailer being towed by a registered agricultural
machine that is being used to perform `agricultural tasks' (defined in
clause 5) for which it was built or a conditionally registered heavy
vehicle.
The requirements of any third party insurance legislation of the local
jurisdiction in which the heavy vehicle is being used must also be complied
with.
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Heavy Vehicle National Law Bill 2011
Clause 28 authorises the use of an unregistered heavy vehicle on a road if it
is of a category of heavy vehicles exempted from the requirement to be
registered under Part 2.2, Division 4. The requirements of any third party
insurance legislation of the local jurisdiction in which the heavy vehicle is
being used must also be complied with. This clause recognises the
Regulator's power to issue registration exemptions for categories of
vehicles.
Division 4 Exemption from requirement to be
registered
Clause 29 empowers the Regulator to exempt a category of heavy vehicles
from the requirement to be registered, for a period of not more than one
year. An exemption made under this clause is referred to as a `registration
exemption'. Such exemptions must be issued by the Regulator by way of a
Commonwealth Gazette notice that complies with clause 33. This power
has been included in the Law to allow for the preservation of current local
productivity initiatives in jurisdictions and for the implementation of future
productivity initiatives which authorise the use of unregistered vehicles.
Clause 30 limits the Regulator's power to grant a registration exemption by
specifying that it may only grant an exemption if it is satisfied that:
· it is not reasonable to require heavy vehicles of the category to be
registered; and
· the use of heavy vehicles of that category on a road without being
registered will not pose a significant safety risk.
In deciding whether to grant a registration exemption, the Regulator must
have regard to the `approved guidelines' (defined in clause 5 as guidelines
approved by responsible Ministers under clause 594) for granting
registration exemptions.
Clause 31 authorises the Regulator to make registration exemptions subject
to any conditions that it considers appropriate. For example, conditions
could relate to route and time restrictions for the use of the vehicle, the
documentation the driver of a heavy vehicle must carry and the signs or
other things that must be displayed on a heavy vehicle. The examples
provided in this clause are not intended to operate as prescriptive
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Heavy Vehicle National Law Bill 2011
requirements for conditions nor limit the scope of conditions that may be
imposed by the Regulator.
Clause 32 states that a registration exemption takes effect when the
Commonwealth Gazette notice for the exemption is published or, if a later
time is stated in the notice, at the later time. The registration exemption
applies for the period stated in the Commonwealth Gazette notice.
However, this is limited by the requirement in Clause 30 that a registration
exemption must be a period of not more than one year.
Clause 33 specifies the matters to be set out in a Commonwealth Gazette
notice for a registration exemption and that a copy of the notice must be
published on the Regulator's website.
Clause 34 gives the Regulator discretion to amend or cancel a registration
exemption on either or both of two grounds:
· the use of heavy vehicles on a road under the exemption has caused, or
is likely to cause, a significant safety risk;
· since the exemption was granted, there has been a change in the
circumstances and had these changed circumstances existed when the
exemption was granted, the Regulator would not have granted the
exemption in the first instance or would have granted the exemption
subject to conditions or different conditions.
It also sets out procedural requirements, including notification of the
proposal to amend or cancel the registration exemption, giving affected
persons at least 14 days to make written representations as to why the
Regulator should not amend or cancel the registration exemption,
considering all written representations made and giving notice of the
decision to amend or cancel the registration exemption. It also specifies
when the amendment or cancellation takes effect.
The intent of these requirements is to ensure transparency and fairness in
the decision-making process. This is achieved by requiring adequate notice
to be given to those affected by a proposed amendment or cancellation and
by ensuring that possible adverse consequences of such action can be
presented to the Regulator for consideration. An additional benefit of this
clause is in allowing those who may be adversely affected by a decision to
amend or cancel a registration exemption time in which to adjust their
business practices.
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Part 2.3 Vehicle register
Clause 35 requires the Regulator to keep a register of heavy vehicles (the
vehicle register) that enables the identification of a heavy vehicle used on a
road and of the person who is responsible for it. Subclause 35(2) stipulates
that the heavy vehicle register must be kept in the way, and contain the
particulars, prescribed by the national regulations. Subclause 35(3) enables
the Regulator to also include any other information in the register that it
considers reasonable and relevant for the purposes of Chapter 2.
Part 2.4 Other provisions relating to
registration
Clause 36 clarifies that a `registration item' (defined in clause 5 to mean
documents, number plates and labels relating to registration or purported
registration of a heavy vehicle or an unregistered heavy vehicle permit)
issued by the Regulator remains the property of the Regulator.
Clause 37 creates various registration offences. Subclause 37(1) makes it
an offence to attempt to obtain registration by making a false or misleading
statement or representation or in another dishonest way and imposes a
maximum penalty of $10000 for non-compliance. Subclause 37(2) makes
it an offence to, without a reasonable excuse, possess a registration item
obtained in a way specified in sub-clause 37(1) and imposes a maximum
penalty of $10000 for non-compliance. Any registration item that is
obtained by a person in this way is declared void under subclause 37(3).
Clause 38 empowers the Regulator to cancel an incorrect registration item.
It further enables the Regulator, if it considers it is appropriate to do so, to
issue a replacement registration item or to give the registered operator a
notice requiring it to return the incorrect item to the Regulator. Subclause
38(3) creates an offence to fail to comply with a notice and imposes a
maximum penalty of $1600 for non-compliance.
Whilst clause 38 is an enabling provision, it is not intended to place a duty
on the Regulator to replace or recover every incorrect registration item
issued.
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Heavy Vehicle National Law Bill 2011
Clause 39 authorises the Regulator, by notice, to require the operator of a
heavy vehicle registered under the Law or the subject of an unregistered
heavy vehicle permit to produce documents, or to present the vehicle for
inspection, so that the Regulator can verify the records about that vehicle.
Subclause 39(4) creates an offence for a person to fail to comply with such
a notice without a reasonable excuse and imposes a maximum penalty of
$800 for non-compliance.
Part 2.5 Written-off and wrecked heavy
vehicles
Clause 40 states that the purpose of Part 2.5 is to provide for the collection
and recording of information about written-off or wrecked heavy vehicles
to ensure that such vehicles are registered only in circumstances where the
identity of the vehicle and its operator is certain and the vehicle is safe.
Certainty in the identity of the vehicle and its operator and the safety of the
vehicle are important because of the incidence of theft, fraud, and
dangerous disassembly and reassembly practices which attempt to disguise
the true identity or origin of written-off or wrecked vehicles or parts of
vehicles.
Clause 41 defines `insurer', `wrecked' and `written-off' for the purposes of
Part 2.5.
Clause 42 requires the Regulator to keep a register of written-off and
wrecked heavy vehicles. It stipulates that the register must be kept in the
way, and contain the particulars, prescribed by the national regulations.
The clause also requires the types of matters that the national regulations
may provide for in relation to entries in the register, access to the register
and the giving of information contained in the register. Subclause 42(3)
enables the Regulator to also include any other information it considers
reasonable and relevant to the purpose of Part 2.5.
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Heavy Vehicle National Law Bill 2011
Part 2.6 Other provisions
Clause 43 empowers the Regulator to specify the gross combination mass
(see the definition of GCM in clause 5) for a motor vehicle, being the total
maximum loaded mass of the vehicle and any vehicles it may lawfully tow
at any given time for the purposes of the Law in the circumstances
specified in the provision.
Clause 44 empowers the Regulator to specify the gross vehicle mass (see
the definition of GVM in clause (5) for a vehicle for the purposes of this
Law in the circumstances specified in the provision.
Chapter 3 Vehicle operations
--standards and safety
Part 3.1 Preliminary
Clause 45 states that the main purpose of Chapter 3 is to ensure heavy
vehicles used on roads are of a standard and in a condition that prevents or
minimises safety risks.
Part 3.2 Compliance with heavy vehicle
standards
Division 1 Requirements
Clause 46 provides a head of power for regulations to prescribe vehicle
standards (heavy vehicle standards), with which heavy vehicles must
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Heavy Vehicle National Law Bill 2011
comply to use roads. These may include requirements applying to heavy
vehicles, components of heavy vehicles or equipment of heavy vehicles.
Clause 47 creates an offence for a person to use, or permit to be used, on a
road a heavy vehicle that contravenes a heavy vehicle standard applying to
the vehicle. The maximum penalty for non-compliance is $2000.
The inclusion of the phrase `permit to be used' in subclause 47(1) extends
the responsibility beyond the driver of the heavy vehicle and is intended to
require persons responsible for a heavy vehicle to ensure the vehicle
complies with heavy vehicle standards applying to it.
Subclause 47(2) clarifies that the offence does not apply in either of the
following circumstances:
· the heavy vehicle is travelling to a place for the repair of the vehicle or
any of its components or equipment by the most direct or convenient
route, is not carrying goods and is used in a way that does not pose a
safety risk; or
· the heavy vehicle is on a road for testing or analysis of the vehicle or
any of its components or equipment to check its compliance with the
heavy vehicle standards, is not carrying goods and is used in a way
that does not pose a safety risk.
Subclause 47(3) specifies that a person does not commit an offence if and
to the extent that the noncompliance with a heavy vehicle standard was
known to the Regulator when the vehicle was registered. However, a
person only has the benefit of this provision if the heavy vehicle and its use
on the road complies with the conditions of registration, as per subclause
47(5).
Subclause 47(4) specifies the circumstances in which the Regulator is
taken to have known of the noncompliance at the time of registration.
Division 2 Exemptions by Commonwealth
Gazette notice
Clause 48 empowers the Regulator to exempt a category of heavy vehicles
from the requirement to comply with a heavy vehicle standard for a period
of not more than 5 years. This must be done by Commonwealth Gazette
notice complying with clause 52. An exemption made under this clause is
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Heavy Vehicle National Law Bill 2011
referred to as a vehicle standards exemption (notice). This power has been
included in the Law to allow for the preservation of current local
productivity initiatives in jurisdictions and for the implementation of future
productivity initiatives which exempt categories of vehicles from
compliance with heavy vehicle standards.
Clause 49 limits the Regulator's power to grant a vehicle standards
exemption (notice). Under subclause 49(1) a vehicle standards exemption
(notice) may only be granted if:
· the Regulator is satisfied that the use of heavy vehicles of that
category under the exemption will not pose a significant safety risk;
and
· one of the following applies:
· the Regulator is satisfied complying with the relevant standard
would prevent heavy vehicles of that category from operating as
they were built or modified;
· the Regulator is satisfied heavy vehicles of that category are
experimental vehicles, prototypes or similar vehicles that could
not reasonably be expected to comply with the relevant standard;
· the exemption has been requested by a road authority for a
participating jurisdiction for the use of heavy vehicles of that
category in that jurisdiction; or
· the category of heavy vehicles consists of heavy vehicles that
were, immediately before the commencement of this section in a
participating jurisdiction, registered under an Australian road law
of that jurisdiction and not required to comply with a similar
standard at that time.
In deciding whether to grant a vehicle standards exemption (notice), the
Regulator must have regard to the approved guidelines (defined in clause 5
as guidelines approved by responsible Ministers under clause 594) for
granting vehicle standards exemptions.
Clause 49 ensures that the Regulator always has regard to the safety risks
of granting an exemption and limits the granting of a vehicle standards
exemption (notice) to highly specific circumstances. If those requirements
are not met, the Regulator is not empowered to grant the vehicle standards
exemption (notice).
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Heavy Vehicle National Law Bill 2011
Clause 50 authorises the Regulator to make a vehicle standards exemption
(notice) subject to any conditions it considers appropriate. Such conditions
could include, but are not limited to, conditions about protecting road
infrastructure from damage and a condition requiring the driver of a heavy
vehicle to keep documentation regarding the exemption in his or her
possession.
Clause 51 states that a vehicle standard exemption (notice) takes effect
when the Commonwealth Gazette notice for the exemption is published or,
if a later time is stated on the Commonwealth Gazette notice, at the later
time. The exemption applies for the period stated in the Commonwealth
Gazette notice. However, this is limited by the requirement in clause 48
that a vehicle standard exemption (notice) must be for a period of not more
than 5 years.
Clause 52 specifies the matters to be set out in a Commonwealth Gazette
notice for a vehicle standard exemption (notice) and that a copy of the
notice must be published on the Regulator's website.
Clause 53 gives the Regulator discretion to amend or cancel a vehicle
standards exemption (notice) on either or both of two grounds:
· the use of heavy vehicles on a road under the exemption has caused, or
is likely to cause, a significant safety risk;
· since the exemption was granted, there has been a change in the
circumstances and had these changed circumstances existed when the
exemption was granted, the Regulator would not have granted the
exemption in the first instance or would have granted the exemption
subject to conditions or different conditions.
It also sets out procedural requirements, including notification of the
proposal to amend or cancel the vehicle standards exemption (notice),
giving affected persons at least 14 days to make written representations as
to why the Regulator should not amend or cancel the vehicle standards
exemption (notice), considering all written representations made and
giving notice of the decision to amend or cancel the vehicle standards
exemption (notice). It also specifies when the amendment or cancellation
takes effect.
The intent of these requirements is to ensure transparency and fairness in
the decision-making process. This is achieved by requiring adequate notice
to be given to those affected by a proposed amendment or cancellation and
by ensuring that possible adverse consequences of such action can be
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Heavy Vehicle National Law Bill 2011
presented to the Regulator for consideration. An additional benefit of this
clause is in allowing those who may be adversely affected by a decision to
amend or cancel a vehicle standards exemption (notice) time in which to
adjust their business practices.
Division 3 Exemptions by permit
Clause 54 empowers the Regulator to exempt a heavy vehicle from the
requirement to comply with a heavy vehicle standard for a period not more
than 3 years. This must be done by giving a permit to a person in
accordance with clause 59. An exemption under this clause is referred to
as a vehicle standards exemption (permit) and may apply to 1 or more
heavy vehicles. This power has been included in the Law to allow for the
preservation of current local productivity initiatives in jurisdictions and for
the implementation of future productivity initiatives which exempt
categories of vehicles from compliance with heavy vehicle standards.
Clause 55 sets out requirements for an application for a vehicle standards
exemption (permit). It includes the requirement that an application must be
in the approved form and be accompanied by the relevant prescribed fee
(defined in clause 5 as a fee prescribed by the national regulations under
clause 675(1)).
Clause 56 limits the Regulator's power to grant a vehicle standards
exemption (permit). Under subclause 56(1) a vehicle standards exemption
(permit) may only be granted if:
· the Regulator is satisfied that the use of the heavy vehicle under the
exemption will not pose a significant safety risk; and
· one of the following applies:
· the Regulator is satisfied complying with the relevant standard
would prevent the heavy vehicle from operating as built or
modified;
· the Regulator is satisfied the heavy vehicle is an experimental
vehicle, prototype or similar vehicle that could not reasonably be
expected to comply with the relevant standard; or
· the heavy vehicle was, immediately before the commencement of
this section in a participating jurisdiction, registered under an
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Heavy Vehicle National Law Bill 2011
Australian road law of that jurisdiction and not required to
comply with a similar standard at that time.
In deciding whether to grant a vehicle standards exemption (permit), the
Regulator must have regard to the approved guidelines (defined in clause 5
as guidelines approved by responsible Ministers under clause 594) for
granting vehicle standards exemptions.
This clause ensures that the Regulator always has regard to the safety risks
of granting an exemption and limits the granting of a vehicle standards
exemption (permit) to highly specific circumstances. If those requirements
are not met, the Regulator must not grant the vehicle standards exemption
(permit).
Clause 57 authorises the Regulator to make a vehicle standards exemption
(permit) subject to any conditions it considers appropriate. Such conditions
could include, but are not limited to, a condition about protecting road
infrastructure from damage.
Clause 58 sets out that a vehicle standards exemption (permit) applies for
the period stated in the permit for the exemption. However, this is limited
by the requirement in clause 54 that the exemption must be for a period of
not more than 3 years. Subclause 58(1) clarifies that the time period may be
less than the period sought by the applicant for the permit.
Clause 59 sets out what the Regulator must provide to an applicant to
whom a permit is granted, including the information which must be stated
in the permit.
Clause 60 requires the Regulator to give the applicant an information
notice for the decision if the Regulator refuses an application for a vehicle
standards exemption (permit). An information notice is defined in clause 5
as a notice stating the decision, the reasons for the decision and the review
and appeal information (also defined in clause 5) for the decision.
Clause 61 empowers the holder of a vehicle standards exemption (permit)
to apply to the Regulator for an amendment or cancellation of the
exemption. This application must be in the approved form, be accompanied
by the permit and, if for an amendment, state clearly the amendment sought
and the reasons for it. The Regulator must decide this application as soon
as practicable after receiving it.
The Regulator is empowered by subclause 61(3) to require any additional
information from the applicant that is reasonably required to decide the
application.
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The Regulator must give notice to the applicant if it decides to grant the
application. The amendment or cancellation takes effect when notice of the
decision is given to the applicant or, if a later time is stated in the notice, at
that time. If the exemption has been amended, the Regulator must give the
applicant a replacement permit for the exemption as amended.
If the Regulator decides not to amend or cancel the exemption in the way
sought by the applicant, subclause 61(6) requires the Regulator to give the
applicant an information notice for the decision and return the permit for
the exemption to the applicant. An information notice is defined in clause 5
as a notice stating the decision, the reasons for the decision and the review
and appeal information (also defined in clause 5) for the decision.
Clause 62 allows the Regulator to amend or cancel a vehicle standards
exemption (permit) on the following grounds:
· the exemption was granted because of a false or misleading
documentation or representation or one that was obtained or made in
an improper way;
· the holder of the permit has contravened a condition of the exemption;
· the use of a heavy vehicle on a road under the exemption has caused,
or is likely to cause, a significant safety risk;
· since the exemption was granted, there has been a change in the
circumstances and had these changed circumstances existed when the
exemption was granted, the Regulator would not have granted the
exemption in the first instance or would have granted the exemption
subject to conditions or different conditions.
It also sets out procedural requirements, including notification of the
proposal to amend or cancel the vehicle standards exemption (permit),
giving the permit holder at least 14 days to make written representations as
to why the Regulator should not amend or cancel the vehicle standards
exemption (permit), considering all written representations made and
giving notice of the decision to amend or cancel the vehicle standards
exemption (permit). It also specifies when the amendment or cancellation
takes effect.
The intent of these requirements is to ensure transparency and fairness in
the decision-making process. This is achieved by requiring adequate notice
to be given to the permit holder and by ensuring that possible adverse
consequences of such action can be presented to the Regulator for
consideration.
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Clause 63 empowers the Regulator, by notice given to the holder of a
permit for a vehicle standards exemption (permit), to make minor
amendments to a vehicle standards exemption (permit). Under this clause,
an amendment is considered minor if it is for a formal or clerical reason or
does not adversely affect the holder's interest.
As such amendments would not adversely affect the permit holder's
interest, there is no need to follow the procedural requirements that apply
when an amendment or cancellation occurs under clause 62.
Clause 64 provides that the Regulator may require, by notice, a person to
return a permit for a vehicle standards exemption (permit) to the Regulator
if it has been amended or cancelled. It is an offence for a person to fail to
comply with that notice within 7 days or within any longer period stated in
the notice. The maximum penalty for non-compliance is $2000.
In the case of an exemption that has been amended, the Regulator must
give the person a replacement permit in accordance with subclause 64(3).
Clause 65 requires a person to apply for a replacement permit as soon as
practicable after becoming aware that their permit is defaced, destroyed
lost or stolen. The maximum penalty for a person not doing so is $2000.
Subclause 65(2) states that if the Regulator is satisfied the permit has been
defaced, destroyed, lost or stolen the Regulator must give the person a
replacement permit as soon as practicable. The only valid reason why the
Regulator could refuse the application for a replacement permit is if the
Regulator is not satisfied that the permit has been defaced, destroyed, lost
or stolen.
Subclause 65(3) states that if the Regulator decides not to give a
replacement permit the Regulator must give the person an information
notice for the decision. An information notice is defined in clause 5 as a
notice stating the decision, the reasons for the decision and the review and
appeal information (also defined in clause 5) for the decision.
Division 4 Operating under vehicle standards
exemption
Clause 66 creates a number of offences, each with a maximum penalty of
$2,000, where there has been a contravention of a vehicle standards
exemption.
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Under subclause 66(1) it is an offence for a person to contravene a
condition of an exemption. This does not apply to a condition referred to in
subclause (7), relating to the requirement for the driver of a heavy vehicle
who is driving under a vehicle standards exemption (notice) to keep a copy
of the Commonwealth Gazette notice or an information sheet about the
exemption. This is because contravention of such a condition is an offence
under clause 67.
Under subclause 66(2) it is an offence for a person to use or permit the use
of a vehicle on a road where that vehicle contravenes a condition of a
vehicle standards exemption.
Under subclause 66(3) it is an offence for a person to use or permit a heavy
vehicle to be used on a road in a way that contravenes a condition of a
vehicle standards exemption.
Subclause 66(4) clarifies that, if a heavy vehicle is exempt from
compliance with a heavy vehicle standard, no offence is committed against
this Law in relation to non-compliance with the standard from which it is
exempt, so long as the heavy vehicle and its use on the road complies with
the conditions of that exemption.
Subclause 66(5) specifies that, if a person commits an offence against
subclauses 66(1), 66(2) or 66(3), the person does not have the benefit of the
exemption. The exemption does not operate in the person's favour while
the contravention continues and the relevant exemption must be
disregarded in deciding whether the person has committed an offence in
relation to a contravention of a heavy vehicle standard.
Subclause 66(6) operates to prevent any double jeopardy arising because a
person has been denied the benefit of an exemption under subclause 66(5).
A person can be charged with either the offence against this clause or the
offence against the contravention of the vehicle standard but must not be
charged with both offences.
Clause 67 applies if a vehicle standards exemption (notice) is subject to the
condition that the driver of a heavy vehicle who is driving the vehicle under
the exemption must keep a relevant document in the driver's possession. A
relevant document is either a copy of the Commonwealth Gazette notice
for the exemption or a copy of an information sheet about the exemption.
If the driver does not comply with the condition both the driver and each
relevant party for the driver commit an offence. A maximum penalty of
$2000 applies for both offences. A relevant party for the driver means:
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· if the driver is employed, the employer of the driver;
· if the driver is a self-employed driver, a prime contractor of the driver;
· if the driver is making a journey for the operator of a vehicle, an
operator of the vehicle.
Extending liability for the driver's non-compliance to the employer, prime
contractor or operator is to encourage all parties responsible for the use of
the heavy vehicle to ensure that the exemption documentation is with the
vehicle at all times. This will assist compliance, by ensuring drivers are
aware of the exemption conditions and enabling authorised officers to
readily ascertain whether a vehicle is exempted from vehicle standards and
the conditions applying to the exemption.
When the relevant party is charged with an offence under this clause that
person does not have the benefit of the mistake of fact defence for the
offence. However, that person does have the benefit of the reasonable steps
defence. That defence is set out in Divisions 1 and 2 of Part 10.4. The
reasonable steps defence requires that person charged must actively
consider the appropriate steps to prevent an on-road breach from occurring
and cannot rely on a honest and reasonable mistake alone.
Subclause 67(6) specifies certain matters that are irrelevant in a proceeding
and matters that constitute evidence in a proceeding against a relevant
party. It provides that:
· it is irrelevant whether or not the driver has been or will be proceeded
against or convicted. Thus it is not necessary to take action against a
driver or to obtain a conviction against a driver in order to proceed
against a relevant party;
· evidence a court has convicted a driver is evidence that the offence
happened at the time and place, and in the circumstances, stated in the
charge resulting in the conviction or evidence that the driver has paid
an infringement penalty, is evidence that the offence happened at the
time and place, and in the circumstances, stated in the infringement
notice. These are intended to facilitate proof of the relevant facts.
Clause 68 requires a driver of a heavy vehicle driving under a vehicle
standards exemption (permit) to keep a copy of the permit in the driver's
possession.
If the driver does not do so, both the driver and each relevant party for the
driver commit an offence. A maximum penalty of $2000 applies for both
offences. A relevant party for the driver means:
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· if the driver is employed, the employer of the driver;
· if the driver is a self-employed driver, a prime contractor of the driver;
· if the driver is making a journey for the operator of a vehicle, an
operator of the vehicle.
Extending liability for the driver's non-compliance to the employer, prime
contractor or operator is to encourage all parties responsible for the use of
the heavy vehicle to ensure that the permit is with the vehicle at all times.
This will assist compliance, by ensuring drivers are aware of the exemption
conditions and enabling authorised officers to readily ascertain whether a
vehicle is exempted from vehicle standards and the conditions applying to
the exemption.
When the relevant party is charged with an offence under this clause that
person does not have the benefit of the mistake of fact defence for the
offence. However, that person does have the benefit of the reasonable steps
defence. That defence is set out in Divisions 1 and 2 of Part 10.4. The
reasonable steps defence requires that a person charged must actively
consider the appropriate steps to prevent an on-road breach from occurring
and cannot rely on a honest and reasonable mistake alone.
Subclause 68(6) specifies certain matters that are irrelevant in a proceeding
and matters that constitute evidence in a proceeding against a relevant
party. It provides that:
· it is irrelevant whether or not the driver has been or will be proceeded
against or convicted. Thus it is not necessary to take action against a
driver or to obtain a conviction against a driver in order to proceed
against a relevant party;
· evidence a court has convicted a driver is evidence that the offence
happened at the time and place, and in the circumstances, stated in the
charge resulting in the conviction or evidence that the driver has paid
an infringement penalty is evidence that the offence happened at the
time and place, and in the circumstances, stated in the infringement
notice. These are intended to facilitate proof of the relevant facts.
It is anticipated that to comply with the requirements of clause 68, the
relevant party will give a driver of a heavy vehicle driving under a vehicle
standards exemption (permit) a copy of the permit granted to the relevant
party. Subclause 68(2) makes it an offence for a driver who is driving the
vehicle under a heavy vehicle standards (permit) granted to a relevant party
who stops working for that relevant party to fail to return the copy of the
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Heavy Vehicle National Law Bill 2011
permit to the relevant party as soon as reasonably practicable after the
driver stops working for that party. The maximum penalty for the offence is
$2000.
Part 3.3 Modifying heavy vehicles
Clause 69 creates offences in relation to unauthorised vehicle
modifications.
Under subclause 69(1) it is an offence for a person to modify a heavy
vehicle unless the modification has been approved by an authorised entity
under clause 70 or by the Regulator under clause 71. The maximum
penalty for this offence $2000.
Under subclause 69(2) it is an offence for a person to use or permit to be
used on a road a heavy vehicle that has been modified unless the
modification has been approved by an authorised entity under clause 70 or
by the Regulator under clause 71. The maximum penalty for this offence is
$2000.
It is intended that under clause 68, responsibility for any unauthorised
modifications to heavy vehicles be extended to all persons involved in the
modification process and in the use of the modified vehicle.
Clause 70 empowers the Regulator to authorise an entity to approve
modifications of heavy vehicles. That entity may only approve a
modification if the modification complies with a code of practice
prescribed by the national regulations for this clause.
Unlike a modification approved by the Regulator under clause 71, the
entity does not have to consider whether the modification will constitute a
significant safety risk. This is because the authorised entity does not have
the same broad discretion to approve a modification even if it does not
comply with a prescribed code of practice.
Subclause 70(3) specifies what an authorised entity must do if it approves a
modification. It must give a certificate approving the modification in the
approved form to the registered operator of the vehicle or, if there is no
registered operator of the vehicle, to an owner of the vehicle and must
ensure a plate, in the approved form that is stamped or engraved with
details of the modification is fitted to a conspicuous part of the vehicle.
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Failure to comply with this requirement is an offence, with a maximum
penalty of $2000.
Clause 71 authorises the Regulator to approve a modification of a heavy
vehicle if the Regulator is satisfied the use on a road of the heavy vehicle as
modified will not pose a significant safety risk.
Unlike an authorised entity under clause 70, the Regulator may approve a
modification even if the modification does not comply with a prescribed
code of practice.
This is intended to enable the Regulator to approve a modification where a
code of practice approving such a modification is not yet published or
published code does not apply. However, the Regulator is bound by the
duty to be satisfied that the modification will not pose a significant safety
risk.
Similar to the requirements placed on an approved entity under subclause
70(3), subclause 71(3) specifies what the Regulator must do if it approves a
modification. It must give a certificate approving the modification in the
approved form to the registered operator of the vehicle or, if there is no
registered operator of the vehicle, to an owner of the vehicle and must
ensure a plate, in the approved form that is stamped or engraved with
details of the modification is fitted to a conspicuous part of the vehicle.
Part 3.4 Other offences
Clause 72 creates an offence for a person to use, or permit to be used, on a
road a heavy vehicle that is unsafe. The maximum penalty for
non-compliance is $2000.
The inclusion of the phrase `permit to be used' in subclause 72(1) extends
the responsibility beyond the driver of the heavy vehicle and is intended to
require persons responsible for a heavy vehicle to ensure the vehicle is safe.
Subclause 72(2) specifies that a heavy vehicle is unsafe only if the
condition of the vehicle, or any of its components or equipment makes the
use of the vehicle unsafe, or endangers public safety. A number of
examples are provided of when a heavy vehicle may be unsafe, though
these examples are not exhaustive.
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Subclause 72(3) clarifies that the offence does not apply in either of the
following circumstances:
· the heavy vehicle is travelling to a place for the repair of the vehicle or
any of its components or equipment by the most direct or convenient
route; or
· the heavy vehicle is on a road for testing or analysis of the vehicle or
any of its components or equipment to check its compliance with the
heavy vehicle standards.
Clause 73 sets out requirements about properly operating emission control
systems for a relevant emission. A relevant emission refers to a gas,
particles or noise emission. An emission control system refers to a device
or system fitted to a vehicle that reduces the emission of a relevant
emission from the vehicle.
Subclause 73(1) creates an offence for a person to use, or permit to be used
on a road a heavy vehicle that is not fitted with an emission control system
for a relevant emission, the maximum penalty for non-compliance being
$2000.
Subclause 73(2) creates an offence for a person to use, or permit to be used
on a road a heavy vehicle fitted with such a system if the system is not
operating substantially in accordance with the system's original intended
purpose. The maximum penalty for non-compliance is $2000.
The inclusion of the phrase `permit to be used' in subclauses 73(1) and
73(2) extends the responsibility beyond the driver of the heavy vehicle and
is intended to require persons responsible for a heavy vehicle to ensure the
vehicle is compliant. Requiring that the emission control system must be
operating substantially in accordance with the system's intended purpose is
to ensure that persons cannot escape liability for having an ineffective or
damaged emission control system.
Subclause 73(3) clarifies that offence in subclause 73(2) does not apply if
the vehicle is travelling on the most direct or convenient route to a place of
repair for the emission control system, or any of the vehicle's components
or equipment that affect the operation of the system.
Clause 74 states that if, under the heavy vehicle standards, a warning sign
is required to be displayed on a heavy vehicle of a particular type, size or
configuration (such as a sign showing the words `LONG VEHICLE' or
`ROAD TRAIN') a person must not use, or permit to be used, on a road a
heavy vehicle that has the warning sign displayed on it unless the vehicle is
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of the particular type, size or configuration. The maximum penalty for
non-compliance is $2000.
This clause is intended to ensure that warning signs are only used for
vehicles that, under the heavy vehicle standards, are required to use them.
Clause 75 creates an offence for a person to tamper with a speed limiter
that is required under an Australian road law to be, and is, fitted to a heavy
vehicle.
A speed limiter is defined as a device or system used to limit the maximum
road speed of a heavy vehicle to which it is fitted. To tamper with a speed
limiter means to alter, damage, remove or otherwise interfere with the
speed limiter to the effect of enabling the vehicle to be driven at a higher
speed than the speed limiter would permit.
Subclause 75(2) clarifies that, if the relevant conduct is associated with the
repair of a malfunctioning speed limiter, no offence is committed.
The maximum penalty for tampering with a speed limiter is $6000, which
is significantly higher than other offences in this Chapter. This indicates the
gravity of, and safety risks associated with, the offence.
A person charged with an offence for tampering with a speed limiter does
not have the benefit of the mistake of fact defence for the offence. However
the person does have the benefit of the reasonable steps defence for the
offence. That defence is set out in Divisions 1 and 2 of Part 10.4. The
reasonable steps defence requires that person charged must actively
consider the appropriate steps to prevent an on-road breach from occurring
and cannot rely on a honest and reasonable mistake alone.
Clause 75 is different to other offence provisions in this Chapter as it does
not extend responsibility to a person who uses, or permits to be used, a
heavy vehicle with a tampered speed limiter. The offence is intended to be
limited to the person who physically performs or authorises the tampering.
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Chapter 4 Vehicle operations--mass,
dimension and loading
Part 4.1 Preliminary
Clause 76 states that the main purposes of Chapter 4. The main purposes
are:
· To improve public safety by decreasing risks to public safety caused
by excessively loaded heavy vehicles; and
· To minimise any adverse impact of excessively loaded heavy vehicles
on road infrastructure or public amenity.
Subclause 76(2) states that these purposes are achieved by:
· imposing mass limits for heavy vehicles, particular components of
heavy vehicles, and loads on heavy vehicles;
· imposing restrictions about the size of heavy vehicles and the
projections of loads on heavy vehicles;
· imposing requirements about securing loads on heavy vehicles; and
· restricting access to roads by heavy vehicles of a particular mass, size
or configuration even if the vehicles comply with the mass limits,
restrictions and requirements mentioned above (Class 2 vehicles).
However, subclause 76 (3) states that particular heavy vehicles that do not
comply with mass limits, restrictions and requirements (Class 1 and Class 3
vehicles) may be permitted to be used on roads subject to conditions when
such use would be allowed for the efficient road transport of goods or
passengers by heavy vehicles provided that its use does not compromise
the safety or infrastructure protection purposes of Chapter 4.
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Part 4.2 Mass requirements
Division 1 Requirements
Clause 77 authorises regulations to prescribe requirements about the mass
of heavy vehicles and their components. The requirements apply not only
to the heavy vehicle as a whole but also to combinations and to parts of the
vehicle or combination. These requirements are referred to as mass
requirements. In addition, subclause 77 (4) authorises regulations to
prescribe requirements that are not mass requirements but are about the
use, on roads, of heavy vehicles under particular mass limits such as Higher
Mass Limits. Examples are provided of requirements that the regulations
are authorised to make including route restrictions and requirements to
display signs on heavy vehicles.
Clause 78 states that a person must not drive on a road a heavy vehicle that
(together with its load) does not, or whose components do not, comply with
the mass requirements applying to the vehicle. The maximum penalty for
contravening this requirement depends on the extent of the breach and
whether it is classified as a: minor (maximum penalty $3750); substantial
(maximum penalty $6000) or severe (maximum penalty $10000) risk
breach. These categories of breach are defined in Part 4.2, Division 2 of
this Bill (clauses 79 to 82).
A person charged with an offence under this clause does not have the
benefit of the mistake of fact defence for the offence. However, in a
proceeding for an offence under this clause the person does have the benefit
of the reasonable steps defence for the offence. That defence is set out in
Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that
person charged must actively consider the appropriate steps to prevent an
on-road breach from occurring and cannot rely on a honest and reasonable
mistake alone.
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Division 2 Categories of breaches of mass
requirements
Clause 79 defines the terms severe risk breach lower limit and substantial
risk breach lower limit. These terms are important for determining the
maximum penalty applying to a breach of a mass requirement.
The substantial risk breach lower limit, in relation to a mass requirement
applying to a heavy vehicle, is a mass equalling 105% of the maximum
mass (rounded up to nearest 0.1t) permitted for the vehicle under the mass
requirements or 0.5t over the maximum mass permitted for the vehicle. The
effect of this definition is that the substantial risk breach lower limit will
never be reached if the heavy vehicle's mass is less than 0.5t over the mass
permitted for the vehicle.
The severe risk breach lower limit is a mass equalling 120% of the
maximum mass (rounded up to nearest 0.1t) permitted for the vehicle under
the mass requirements.
Clauses 80, 81 and 82 combine to apply the definitions of substantial risk
breach lower limit and severe risk breach lower limit to effect that a
contravention of a mass requirement applying to a heavy vehicle will be
classified as:
· A minor risk breach if the subject matter of the contravention is less
than the substantial risk breach lower limit for the requirement. Note:
A heavy vehicle with a total mass less than 0.5t over the maximum
mass permitted for the vehicle will always be a minor risk breach
under this Division.
· A substantial risk breach if the subject matter of the contravention is
equal to or greater than the substantial risk breach lower limit for the
requirement and less than the severe risk breach lower limit for the
requirement.
· A severe risk breach if the subject matter of the contravention is equal
to or greater than the severe risk breach lower limit.
The operation of the penalty regime for breaches of a mass requirement can
be summarised in the following flowchart:
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Is the mass of the vehicle higher than NO No breach of a
the maximum mass permitted for the
mass requirement
vehicle under the mass requirements ?
YES
Is the mass of the vehicle greater than
0.5t over the maximum mass NO
permitted for the vehicle under the
mass requirements ?
YES
The breach is a
Is the mass of the vehicle equal to or minor risk breach
greater than 105% of the maximum NO of a mass
mass (rounded up to the nearest 0.1t) requirement
permitted for the vehicle under the (maximum penalty
mass requirements ? $3750 )
YES
The breach is a
Is the mass of the vehicle equal to or
substantial risk
greater than 120% of the maximum NO breach of a mass
mass (rounded up to the nearest 0.1t)
requirement
permitted for the vehicle under the
(maximum penalty
mass requirements ?
$6000 )
YES
The breach is a
severe risk breach of
a mass requirement
(maximum penalty
$10000 )
Figure 1 - Flowchart summarising penalty regime for breaches of a mass
requirement by a heavy vehicle
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Part 4.3 Dimension requirements
Division 1 Requirements
Clause 83 authorises regulations to prescribe requirements about the
dimensions of a heavy vehicle, a component of a heavy vehicle and the
dimensions of a heavy vehicle's load. These requirements are referred to as
dimension requirements. In addition, subclause 83 (3) authorises the
national regulations to prescribe requirements that are not dimension
requirements but are about the use of a vehicle to which a dimension
requirement applies. This regulation making power is used to impose such
requirements as using warning signs and having a heavy vehicle
accompanied by an escort or pilot vehicle.
Clause 84 states that a person must not drive on a road a heavy vehicle that
(together with its load) does not, or whose components do not, or whose
load does not, comply with the dimension requirements applying to the
vehicle.
If the heavy vehicle does not have goods or passengers in it the maximum
penalty for an offence under this clause is $3000. If the heavy vehicle does
have goods or passengers in it, the extent of the penalty will depend on
whether the breach is categorised as a minor risk breach (maximum penalty
$3000), a substantial risk breach (maximum penalty $5000) or a severe risk
breach (maximum penalty $10000). These categories of breach are defined
in Part 4.3, Division 2 of this Bill (clauses 86 - 88).
A person charged with an offence under this clause does not have the
benefit of the mistake of fact defence for the offence. However, in a
proceeding for an offence under this clause the person does have the benefit
of the reasonable steps defence for the offence. That defence is set out in
Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that
person charged must actively consider the appropriate steps to prevent an
on-road breach from occurring and cannot rely on a honest and reasonable
mistake alone.
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Division 2 Categories of breaches of dimension
requirements
Clause 85 provides definitions for the terms severe risk breach lower limit
and substantial risk breach lower limit in relation to dimension
requirements. These terms are used to classify a breach of a dimension
requirement as a minor, substantial or severe risk breach under this
Division. These definitions provide for the operation of both terms in
relation to length, width, height and load projection dimensions of the
heavy vehicle.
A `substantial risk breach lower limit' means:
· In relation to a dimension requirement concerning length: the
maximum length permitted for the vehicle under the dimension
requirements plus 350mm.
· In relation to a dimension requirement concerning width: the
maximum width permitted for the vehicle under the dimension
requirements plus 40mm.
· In relation to a dimension requirement concerning height: the
maximum height permitted for the vehicle under the dimension
requirements plus 150mm.
· In relation to a dimension requirement concerning the projection of a
load, the maximum load projection permitted for the vehicle under the
dimension requirements plus 40mm.
A `severe risk breach lower limit' means:
· In relation to a dimension requirement concerning length: the
maximum length permitted for the vehicle under the dimension
requirements plus 600mm.
· In relation to a dimension requirement concerning width: the
maximum width permitted for the vehicle under the dimension
requirements plus 80mm.
· In relation to a dimension requirement concerning height: the
maximum height permitted for the vehicle under the dimension
requirements plus 300mm.
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· In relation to a dimension requirement concerning the projection of a
load: the maximum load projection permitted for the vehicle under the
dimension requirements plus 80mm.
Clause 86 states when a contravention of a dimension requirement is a
minor risk breach. Under clause 86, a contravention of a dimension
requirement is a minor risk breach if the subject matter of the contravention
is less than the substantial risk breach lower limit for the requirement.
Clause 87 states when a contravention of a dimension requirement is a
substantial risk breach. A contravention of a dimension requirement is a
substantial risk breach if the subject matter of the contravention is equal to
or greater than a substantial risk breach lower limit for the requirement and
less than the severe risk breach lower limit for the requirement.
However, a breach that would ordinarily be classified as a minor risk
breach of the dimension requirement under clause 85 is to be treated as a
substantial risk breach if any escalating factors mentioned in subclauses
87(2) or (3) are present.
The escalating factors are:
· where the contravention relates to length:
· a warning sign or device is not carried on the rear of the vehicle's
load as required by the national regulations; or
· the vehicle's load projects in a way that is dangerous to persons
or property;
· where the contravention relates to width:
· the contravention happens at night; or
· the contravention happens in hazardous weather conditions
causing reduced visibility.
Providing for the risk category to be escalated from minor to substantial in
certain circumstances recognises that in these circumstances the risk of
adverse consequences arising from the breach is increased. Providing for
risk categories to be escalated on this basis allows situations of
contravention of requirement occasioning a greater risk to attract a greater
maximum penalty.
Clause 88 states when a contravention of a dimension requirement is a
severe risk breach. A contravention of a dimension requirement is a severe
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risk breach when the subject matter of the contravention is equal to or
greater than a severe risk breach lower limit for the requirement.
However, a breach that would ordinarily be classified as a substantial risk
breach under paragraph 87 (1) (a) is to be regarded as a severe risk breach
if any escalating factors mentioned in subclause 88 (2) or (3) are present.
The escalating factors are:
· For a contravention relating to length:
· a warning sign or device is not carried on the rear of the vehicle's
load as required by the national regulations; or
· the vehicle's load projects in a way that is dangerous to persons
or property.
· For a contravention relating to width:
· the contravention happens at night; or
· the contravention happens in hazardous weather conditions
causing reduced visibility.
Providing for the risk category to be escalated from substantial to severe in
certain circumstances recognises that in these circumstances the risk of
adverse consequences arising from the breach is increased. Providing for
risk categories to be escalated on this basis allows situations of
contravention of requirement occasioning a greater risk to attract a greater
maximum penalty.
The following flowchart summarises the operation of the basic penalty
regime for contravention of a dimension requirement by a heavy vehicle.
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(NOTE: This flowchart does not include contraventions of a dimension
requirement under clause 89):
Figure 2 - Summary of basic penalty regime for breaches of a dimension
requirement for a heavy vehicle
Division 3 Other provisions relating to load
projections
Clause 89 states that when a load projects in a way dangerous to persons or
property a minor risk breach of a dimension requirement occurs even if all
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dimension requirements, warning and other requirements are met. If such a
load projection contravention happens at night or in hazardous weather
conditions causing reduced visibility, the contravention is escalated to a
substantial risk breach of a dimension requirement. Complying with
dimension and related requirements is not sufficient to avoid a penalty
when the load projects in a way dangerous to persons or property.
Clause 90 provides for warning signals for rear projections loads when the
load projects more than 1.2 metres behind a heavy vehicle or the load
projects from a pole-type trailer or the load projects in a way that would not
be readily visible to a person following immediately behind the vehicle.
These warning signals provide an indication to following road users that
the project of the load is greater than they may otherwise expect.
Under this clause, a person commits an offence if a load projects behind a
heavy vehicle as described above and a warning flag (required when the
vehicle is operated during the day time) or a warning light (required when
the vehicle is operated during the night time) is not fixed to the extreme
back of the load. The maximum penalty for not complying with the
requirements of this clause is $5000.
Part 4.4 Loading requirements
Division 1 Requirements
Clause 91 authorises regulations to prescribe requirements about securing
a load on a heavy vehicle or a component of heavy vehicle. These
regulations are referred to as loading requirements. The regulations may
include, but are not limited to, including requirements about the restraint or
positioning of a load or any part of it on a motor vehicle or trailer.
Clause 92 states that persons must not drive on a road a heavy vehicle that
does not, or whose load does not, comply with the loading requirements
applying to the vehicle. The penalty for not complying with loading
requirements will depend on the extent of the breach and whether it is
classified as a minor risk breach (maximum penalty $3000); substantial
risk breach (maximum penalty $5000); or severe risk breach (maximum
penalty $10000).
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A person charged with an offence under this clause does not have the
benefit of the mistake of fact defence for the offence. However, in a
proceeding for an offence under this clause the person does have the benefit
of the reasonable steps defence for the offence. That defence is set out in
Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that
person charged must actively consider the appropriate steps to prevent an
on-road breach from occurring and cannot rely on a honest and reasonable
mistake alone.
Division 2 Categories of breaches of loading
requirements
Clauses 93, 94 and 95 provide when a contravention of a leading
requirement will be categorised as a minor, substantial or severe risk
breach to determine the extent of penalty applying to an offence of
breaching a loading requirement.
In clauses 93 - 95, determining whether a risk breach is minor, substantial
or severe depends on:
· Whether the contravention involved an actual loss or shifting of the
load; and
· The actual or potential effect of a contravention on safety, road
infrastructure or public amenity.
If the subject matter of the contravention involved no actual loss or shifting
of the load:
· the contravention can never be classified as a severe risk breach of a
loading requirement under this division and;
· the contravention is a substantial risk breach if, had the loss or shifting
of the load occurred, it would likely have involved an appreciable
safety risk, an appreciable risk of damage to road infrastructure or an
appreciable risk of causing an adverse affect on public amenity. If the
consequences of the contravention would not likely have given rise to
these effects, the contravention is classified as a minor risk breach.
If the subject matter of the contravention does involve an actual loss or
shifting of the load:
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· the contravention can never be classified as a minor risk breach of a
loading requirement under this division and;
· the contravention is a severe risk breach if the loss or shifting of the
load involves an appreciable safety risk or an appreciable risk of
damage to road infrastructure or an appreciable risk of causing an
adverse affect on public amenity. If the consequences of the
contravention would not likely have given rise to these effects, the
contravention is classified as a substantial risk breach.
The following flowchart summarises the operation of the penalty regime
for the breach of a loading requirement applying to a heavy vehicle:
Figure 3 - Summary of penalty regime for breaches of a loading
requirement for a heavy vehicle
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Division 3 Evidentiary provisions
Clause 96 concerns certain evidence in proceedings for an offence in
regard to a contravention of a loading requirement. Under this clause:
· evidence that a load on a heavy vehicle was not placed, secured or
restrained in a way that met a performance standard in the Load
Restraint Guide as in force at the time, is evidence that the load was
not placed, secured or restrained in compliance with a loading
requirement applying to the vehicle.
· evidence that a load, or part of the load, has fallen off a heavy vehicle
is evidence that the load was not properly secured.
· a court must presume a document purporting to be the Load Restrain
Guide, as in force at the time of the offence is the Load Restraint
Guide as in force at the time of offence, until the contrary is proved.
Subclause (2) defines Load Restraint Guide as a document of that name
prepared by the National Transport Commission and published in the
Commonwealth Gazette, from time to time. A legislative note indicates
that this is able to be accessed from the National Transport Commission's
website. Clause 96 gives the content of the Load Restraint Guide,
produced by the National Transport Commission, a critical role in
determining and proving what a contravention of a loading requirement is.
The Load Restraint Guide is developed by the National Transport
Commission after consultation with stakeholders.
Part 4.5 Exemptions for particular
overmass or oversize vehicles
Division 1 Preliminary
Clause 97 defines when a heavy vehicle is a class 1 heavy vehicle or a class
3 heavy vehicle. These definitions are important for determining
exemptions under this chapter as there are differences in the types of
conditions that are imposed on class 1 heavy vehicles as compared to class
3 heavy vehicles. Class 1 heavy vehicles are subject to specific conditions
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to ensure that they may be used safely on public roads. The effect of the
definitions of class 1 and class 3 heavy vehicles in this clause is that all
heavy vehicles that do not comply with mass or dimension requirements
applying to it are either class 1 or class 3 heavy vehicles. Part 4.5 of the
Bill provides that these vehicles may only operate on public roads if the
Regulator issues a Class 1 or Class 3 notice or permit.
Subclause 97(1) defines a vehicle as a class 1 heavy vehicle if the vehicle,
together with its load, does not comply with a mass requirement or
dimension requirement applying to it and it is either:
· a special purpose vehicle. A special purpose vehicle is defined in
subclause 97 (3) and includes concrete pumps, fire engines and motor
vehicles built for a purpose other than carrying goods (such as a
mobile crane); or
· an agricultural vehicle. An agricultural vehicle is defined in clause 5;
or
· a heavy vehicle carrying or designed for the purpose of carrying, a
large indivisible item, including, for example, a combination
including a low loader; but is not a road train or B-double, or carrying
a freight container designed for multi-modal transport. Subclause 97
(3) defines the term large indivisible item for this clause. A large
invisible item is an item that cannot be divided into smaller items
without extreme effort, expense or risk of damage and it cannot be
carried without contravening a mass or dimension requirement.
Subclause 97(2) defines a class 3 heavy vehicle as any other heavy vehicle
not classified as a class 1 heavy vehicle that, together with its load, does not
comply with a mass requirement or dimension requirement applying to it.
Division 2 Exemptions by Commonwealth
Gazette notice
Clause 98 empowers the Regulator, by Commonwealth gazette notice
complying with clause 102, to exempt a category of class 1 or 3 heavy
vehicles from a mass or dimension requirement for a period not more than
5 years. These exemptions are referred to as mass or dimension exemption
(notice).
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Limitations to the power of the Regulator to issue a mass or dimension
exemption (notice) in this clause are:
· a mass or dimension exemption (notice) must not be issued by the
Regulator for a period more than 5 years; and
· a mass or dimension exemption (notice) must not be issued by the
Regulator exempting a vehicle from a mass requirement relating to a
heavy vehicle's GVM (Gross Vehicle Mass) or GCM (Gross
Combination Mass); and
· a mass or dimension exemption (notice) must not be issued by the
Regulator exempting a vehicle from a mass requirement relating to a
maximum mass limit for a heavy vehicle, or a component of a heavy
vehicle, set by the manufacturer of the vehicle or component.
A legislative note to clause 98 indicates that Division 3, Part 4.7 should be
read when considering the amendment, suspension or cancellation of a
mass or dimension exemption (notice).
Clause 99 further limits the power of the Regulator to grant a mass or
dimension exemption (notice) by stating that a mass or dimension
exemption (notice) must not be granted for a category of heavy vehicles
unless the matters mentioned in subclauses 99 (1) and (2) are present.
The matters mentioned in subclauses 99 (1) and (2) that are all required to
be present prior to a mass or dimension exemption (notice) being issued
are:
· the Regulator is satisfied the use of heavy vehicles of that category on
a road under the exemption will not pose a significant risk to public
safety.
· each relevant road manager for the exemption has consented to the
grant of the mass or dimension exemption (notice).
· the Regulator has had regard to the approved guidelines (defined in
clause 5 as guidelines approved by responsible Ministers under clause
594) for granting mass or dimension exemptions in making the
decision whether to grant the mass or dimension exemption (notice).
The requirement in paragraph 99(1)(b) that each road manager
consent to the grant of the issue of a grant or mass dimension
exemption (notice) ensures that all road managers affected by the
granting of the exemption have an opportunity to maintain control
over the use of heavy vehicles on roads under their authority. This
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allows road managers to have regard to the impact of an exemption on
its road assets.
Clause 100 specifies the conditions that must be included on a mass or
dimension exemption (notice), authorises regulations to make conditions
for the exemption and empowers the Regulator to subject the exemption to
any other conditions it considers appropriate. Under clause 100 a mass or
dimension exemption (notice) is also subject to the road conditions
required by a relevant road manager for the exemption under Clause 138.
A significant provision in clause 100 is paragraph 100(1)(a), which
requires a compulsory condition regarding the areas or routes to which the
exemption applies for all mass or dimension exemptions (notice). The
requirement to include a condition about specifying areas ensures that the
geographical extent of the exemption is always clearly stated. Subclause
100(2) provides that the route restrictions may be stated on map by the
Regulator. Subclause 100(3) prescribes requirements for such a map that
the Regulator must follow, including a requirement to make the map
publicly available.
Paragraph 100(1)(b) authorises the regulations to prescribe conditions for
the exemption. These regulations may prescribe conditions that are to apply
only to particular areas or roads and may authorise the Regulator to decide
the areas or roads to which the conditions are to apply.
Paragraph 100(1)(d) empowers the Regulator to subject a mass or
dimension exemption (notice) to any conditions it considers appropriate
including, but not limited to:
· conditions about 1 or more matters mentioned in Schedule 2.
Schedule 2 concerns subject matter for conditions of mass or
dimension authorities. A mass or dimension exemption (notice) is
included in the definition of a mass or dimension authority in clause 5;
· intelligent access conditions; or
· a condition that the driver of a class 1 heavy vehicle or class 3 heavy
vehicle who is driving the vehicle under the exemption must keep in
the driver's possession a copy of the Commonwealth Gazette notice
for the exemption; or an information sheet about the exemption
published by the Regulator on the Regulator's website.
Clause 101 states when a mass or dimension exemption (notice) takes
effect when the Commonwealth Gazette notice for the exemption is
published or if a later time is stated in the notice, at the later time.
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Paragraph 101(b) states that the mass or dimension exemption (notice)
applies for the period stated on the Commonwealth Gazette notice.
However, this is limited by the requirement in clause 98 that a mass or
dimension exemption (notice) cannot be granted for a period of more than
5 years.
Clause 102 states the requirements for the Commonwealth Gazette notice
required for a mass or dimension exemption (notice). These include
stating the category of heavy vehicle to which the exemption applies, the
mass and dimension requirements to which the exemption applies, the
areas or routes to which the exemption applies, the conditions imposed by
regulations for the exemption, the road conditions required by a relevant
road manager, and the period for which the exemption applies, The
Regulator is also required to publish a copy of the Commonwealth Gazette
notice on its website.
Division 3 Exemptions by permit
Clause 103 empowers the Regulator to exempt, by permit as mentioned in
clause 108, a class 1 or 3 heavy vehicle from compliance with a mass or
vehicle requirement for a period not more than 3 years. Such an exemption
is referred to as a mass or dimension exemption (permit).
Limitations to the Regulator's power under clause 102 are:
· a mass or dimension exemption (permit) must not be granted for a
period more than 3 years;
· a mass or dimension exemption (permit) must not be issued by the
Regulator exempting a vehicle from a mass requirement relating to a
heavy vehicle's GVM (gross vehicle mass) or GCM (gross
combination mass). (An exception to the GCM limitation is provided
in subclause 103 (2) where there are multiple hauling units as GCMs
are specified for operation of a heavy vehicle when used alone to tow
other vehicles).
· a mass or dimension exemption (permit) must not be issued by the
Regulator exempting a vehicle from a mass requirement relating to a
maximum mass limit for a heavy vehicle, or a component of a heavy
vehicle, set by the manufacturer of the vehicle or component.
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A legislative note to clause 103 indicates that Division 4, Part 4.7 should be
read when considering the amendment, suspension or cancellation of a
mass or dimension exemption (notice).
Clause 104 states how a person may apply to the Regulator for mass or
exemption (permit). This application must be in the approved form and be
accompanied by the relevant prescribed fee. The Regulator is empowered
by subclause 104(3) to require the applicant to give the Regulator any
additional information reasonably required to decide the application.
Clause 105 further limits the power of the Regulator to grant a mass or
dimension exemption (permit) by stating that a mass or dimension
exemption (permit) must not be granted for a category of class of heavy
vehicles unless all of the factors mentioned in subclauses 105 (1) and (2)
are present.
The factors in subclauses 105 (1) and (2) are:
· the Regulator is satisfied the use of heavy vehicles of that category on
a road under the exemption will not pose a significant risk to public
safety (paragraph 105(1)(a));
· each relevant road manager for the exemption has consented to the
grant of the mass or dimension exemption (permit) (paragraph 105 (1)
(b)); and
· the Regulator has had regard to the approved guidelines (defined in
clause 5 as guidelines approved by responsible Ministers under clause
594) for granting mass or dimension exemptions in making the
decision whether to grant the mass or dimension exemption (permit)
(subclause 105 (2)).
The requirement in paragraph 105(1)(b) that each road manager consent to
the grant of the issue of a grant or mass dimension exemption (notice) is
intended to ensure that all road managers affected by the granting of the
exemption have an opportunity to maintain control over the use of heavy
vehicles on roads under their authority. This allows road managers to have
regard to the impact of an exemption on its road assets.
Clause 106 specifies the conditions that must be included on a mass or
dimension exemption (permit), authorises the national regulations to make
conditions for the exemption and empowers the Regulator to subject the
exemption to other conditions it considers appropriate.
A significant provision in clause 106 is paragraph 106(1)(a) which requires
a compulsory condition regarding the areas or routes to which the
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exemption applies for all mass or dimension exemptions (permit). This
clause ensures that the geographical extent of an exemption is always
clearly stated.
It is to be noted that there is no provision for the indicating of the areas and
roads the exemption applies to by virtue of a map in clause 106. This is a
point of difference between the condition requirements for a mass or
dimension exemption (permit) and the condition requirements for a mass or
dimension exemption (notice). The reason for this difference is that notices
apply to any operator whose heavy vehicle meets the specified
requirements of the notice and it is necessary for the Regulator to make
available to these operators information about the areas and roads on which
the relevant vehicle may be used.
Clause 107 states when a mass or dimension exemption (permit)
commences and the time period it applies for. A mass or dimension
exemption (permit) may apply for a period less than the period sought by
the applicant.
Under clause 107 a mass or dimension exemption (permit) applies for the
period stated in the permit for the exemption. This period may be less than
the period sought by the applicant.
The scope for the permit to state its applicable time period is limited by the
requirement in Clause 103 that a mass or dimension exemption (permit)
cannot be granted for a period of more than 3 years.
Clause 108 requires the Regulator to give the applicant a permit stating
certain information if the Regulator grants a mass or dimension exemption
(permit). Subclause 108(1)(b) specifies that if the Regulator has imposed
conditions on the permit (including the compulsory conditions in clause
106) or granted the exemption for a period less than 3 years) an information
notice for these decisions must also be provided to the applicant. The
clause also specifies other information to be included such as the name of
the permit holder, the heavy vehicles to which the exemption applies, the
mass or dimension requirements to which the exemption applies, the areas
and routes to which the exemption applies, the conditions to which the
exemption applies, and the period for which the exemption applies.
Clause 109 states that if the Regulator refuses an application for a mass or
dimension exemption (permit), it must give an information notice for the
decision to the applicant.
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A legislative note indicates that section 142 sets out the requirements for an
information notice when a relevant road manager decides not to give
consent to the grant of a mass or dimension exemption (permit).
Division 4 Operating under mass or dimension
exemption
Clause 110 makes it an offence to drive a heavy vehicle under a mass or
dimension exemption that does not comply with a condition of exemption
and prescribes a maximum penalty of $6,000 where either:
· a person contravenes a condition of an exemption, whether it has been
given by notice or permit, (apart from one referred to in sub-clause
(7), relating to an obligation to carry a copy of a notice, or information
about it, that has been published in the Commonwealth Gazette); or
· a vehicle contravenes a condition (in which case the person using or
permitting the use of the vehicle on a road is liable); or
· the way in which the vehicle is used contravenes a condition (in which
case the person who used or permitted it to be used in that way is
liable).
Subclause 110(4) states that if a heavy vehicle is exempt from a mass or
dimension requirement and is being used in compliance with the conditions
of that exemption a person does not commit an offence against this Bill in
relation to the standard it from which it is exempt from.
Subclause 110(5) states that if a condition offence (defined in subclause
110 (8) as an offence against subclause 110 (1), (2) or (3)) is committed in
relation to an exemption, that exemption does not operate in the person's
favour while the contravention constituting the condition offence
continues. This means that risk category for the offence of breaching a
mass or dimension requirement will be based on the mass or dimension
requirement that would have apply to the heavy vehicle but for the
exemption.
Further, the relevant exemption must be disregarded in deciding whether
the person has committed an offence in relation to a contravention of a
heavy vehicle standard applying to a heavy vehicle. Subclause 110(7)
excludes from subclause (1) a condition that the driver keep a relevant
document (such as the notice) in their possession while driving. This is
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done to ensure that an offence for not carrying a document is subject to a
lower penalty, being $2000.
Subclause 110(6) ensures that a person denied the benefit of an exemption
because of the operation of subclause 110 (5), cannot be charged with both
the offence of contravening the exemption and the offence which may have
been committed in contravening the mass or dimension requirement from
which the exemption has ceased to be available.
Clause 111 requires a driver of a pilot or escort vehicle to comply with the
conditions of the mass or dimension exemption applying to the heavy
vehicle it is accompanying about the use of the pilot or escort vehicle when
there is a condition of a mass or dimension exemptions requiring a heavy
vehicle to be accompanied by a pilot vehicle or escort vehicle while the
heavy vehicle is being used on a road. The terms pilot vehicle and escort
vehicle are defined in clause 5.
If the driver of the pilot vehicle or escort vehicle does not comply with
these conditions both that driver and the operator of the heavy vehicle are
taken to have committed an offence with a maximum penalty of $4000.
The inclusion of the operator of the heavy vehicle as a responsible party for
this offence reflects the fact that the relevant condition applies to the heavy
vehicle, for which the operator of the heavy vehicle is responsible for.
Subclause 111(4) deals with a prosecution of the operator of a heavy
vehicle when the driver of the pilot vehicle or escort vehicle does not
comply with conditions regarding its use. It provides:
· Whether or not the driver of the pilot or escort vehicle has been or will
be proceeded against or convicted of the relevant offence is irrelevant.
A decision not to proceed against or record a conviction against a
driver under this clause does not preclude the operator of a heavy
vehicle from being charged or convicted under this clause.
· Evidence a court has convicted the driver of the relevant offence or the
driver has paid an infringement penalty in respect of it is evidence that
the offence happened at the time and place, and in the circumstances,
stated in the charge resulting in the conviction. This is intended to
facilitate proof of the relevant facts.
Clause 112 requires the driver of a pilot vehicle to ensure that the pilot
vehicle does not accompany a heavy vehicle which contravenes a mass or
dimension exemption condition. If a pilot vehicle does accompany a heavy
vehicle that contravenes a condition of its mass or dimension exemption the
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driver of the pilot vehicle commits an offence with a maximum penalty of
$6000.
When the driver of the pilot vehicle, able to be prosecuted under this
clause, and the operator of the heavy vehicle contravening the condition of
the mass or dimension exemption are the same person, subclause 112 (2)
provides that the person may be prosecuted for either the general
contravention of a condition of a mass or dimension exemption as the
operator of the heavy vehicle or as the driver of the accompanying pilot
vehicle but not both.
Clause 112 places an obligation upon the drivers of pilot vehicles to be
aware of the conditions of mass or dimension exemptions applying to the
heavy vehicles they are accompanying and ensure that the heavy vehicles
continue to comply with these conditions.
Clause 113 requires a driver who is driving under a mass or dimension
exemption (notice) must comply with any condition requiring him or her to
keep a relevant document (the Commonwealth Gazette notice for the
exemption or an information sheet about the exemption published by the
Regulator on the Regulator's website) in their possession. If this is not
done, an offence with a maximum penalty of $2000 is committed by the
driver of the vehicle and the relevant party for the driver. For this clause,
the relevant party for the driver is:
· If the driver is employed, the employer of the driver
· If the driver is a self-employed driver, a prime contractor of the driver
· If the driver is making a journey for the operator of a vehicle, an
operator of the vehicle.
When a relevant party is charged with an offence under this clause, that
person does not have the benefit of the mistake of fact defence for the
offence, but that person does have the benefit of the reasonable steps
defence. That defence is set out in Divisions 1 and 2 of Part 10.4. The
reasonable steps defence requires that person charged must actively
consider the appropriate steps to prevent an on-road breach from occurring
and cannot rely on a honest and reasonable mistake alone.
Clause 113(6) deals with a prosecution of a relevant party. It provides that:
· Whether or not the driver has or will be proceeded against or
convicted is irrelevant. A decision not to prosecute or convict a driver
under this clause does not preclude the relevant party from being
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charged or convicted where the driver did not carry the relevant
document.
· Evidence a court has convicted the driver of the relevant offence or the
driver has paid an infringement penalty in respect of it is evidence that
the offence happened at the time and place, and in the circumstances,
stated in the charge resulting in the conviction. This is intended to
facilitate proof of the relevant facts.
Clause 114 creates a requirement for drivers of a class 1 or class 3 heavy
vehicle under a mass or dimension requirement (permit) to keep a copy of
the permit for the exemption in the driver's possession. If this is not done,
an offence with a maximum penalty of $2000, is committed by the driver of
the vehicle and the relevant party for the driver. For this clause, the
relevant party for the driver is:
· if the driver is employed, the employer of the driver;
· if the driver is a self-employed driver, a prime contractor of the driver;
and
· if the driver is making a journey for the operator of a vehicle, an
operator of the vehicle.
It is anticipated that to comply with the requirements of this clause the
relevant party will give a driver of a heavy vehicle driving under a mass or
dimension exemption (permit) a copy of the permit that has been issued by
the Regulator for a particular vehicle. In such a situation, when the driver
stops working for the relevant party they must return a copy of the permit to
the relevant party as soon as reasonably practicable (subclause 114 (2)).
The maximum penalty for not complying with this requirement is $2000.
Clauses 114(4) to (5) state that when the relevant party is charged with an
offence under this clause that person does not have the benefit of the
mistake of fact defence for the offence but that person does have the benefit
of the reasonable steps defence. That defence is set out in Divisions 1 and
2 of Part 10.4. The reasonable steps defence requires that person charged
must actively consider the appropriate steps to prevent an on-road breach
from occurring and cannot rely on a honest and reasonable mistake alone.
Subclause 114(6) deals with a prosecution of a relevant party. It provides
that:
· Whether or not the driver has or will be proceeded against or
convicted of the relevant offence is irrelevant. A decision not to
prosecute or convict a driver under this clause does not preclude the
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relevant party from being charged or convicted where the driver did
not carry the relevant document.
· Evidence a court has convicted the driver of the relevant offence or the
driver has paid an infringement penalty in respect of it is evidence that
the offence happened at the time and place, and in the circumstances,
stated in the charge resulting in the conviction. This is intended to
facilitate proof of the relevant facts.
Division 5 Other provision
Clause 115 states that a heavy vehicle warning sign must not be displayed
on a heavy vehicle unless the heavy vehicle is being used under a
dimension exemption (an exemption under this Part from compliance with
a dimension requirement).
Subclause 115(2) states that a pilot vehicle warning sign must not be
displayed on a vehicle unless a vehicle is being used as a pilot vehicle for a
heavy vehicle being used under a dimension exemption.
The maximum penalty for non-compliance in both circumstances is $4000.
Clause 115 has the effect of ensuring that warning signs are only used for
heavy vehicles or pilot vehicles that, under national regulations, are
required to use them.
The terms heavy vehicle warning sign and pilot vehicle warning sign are
defined in subclause 115(3) for the purposes of this clause.
Part 4.6 Restricting access to roads by
large vehicles that are not
overmass or oversize vehicles
Division 1 Preliminary
Clause 116 states that the main purpose of Part 4.6 is to restrict access to
roads by heavy vehicles that, while complying with mass requirements and
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dimension requirements applying to them, may, because of their size
endanger public safety, damage road infrastructure or adversely affect
public amenity. This draws attention of the main purpose of this Part being
to restrict access to roads, despite the number of provisions that deal with
authorising use.
Clause 117 defines the term class 2 heavy vehicles. The common
characteristic of class 2 heavy vehicles is that even though they comply
with mass and dimension requirements they are particularly large vehicles
that, by virtue of their size, warrant restriction from a general right of
access to roads under this Part.
Class 2 heavy vehicles are defined as vehicles that comply with the mass
requirements and dimension requirements applying to it and are either:
· a B-double;
· a road train (which includes B-triples);
· a bus other than an articulated bus that is longer than 12.5m (often
known as a controlled access bus);
· a combination carrying vehicles on more than 1 deck that, together
with its load is longer than 19m or higher than 4.3m; or
· a single motor vehicle, or a combination, that is higher than 4.3 m and
is built to carry cattle, sheep, pigs or horses.
Division 2 Restriction
Clause 118 states that a person must not use a class 2 heavy vehicle, or
permit a class 2 heavy vehicle to be used, on a road other than in
accordance with a class 2 heavy vehicle authorisation. The maximum
penalty for non-compliance with this is $6000.
This is the key restriction of Part 4.6. If a class 2 heavy vehicle does not
have a class 2 heavy vehicle authorisation to use a particular road, it is not
permitted to use that road. As stated in clause 116, this is intended to
protect public safety, road infrastructure and public amenity from adverse
interference by particularly large heavy vehicles.
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Division 3 Authorisation by Commonwealth
Gazette notice
Clause 119 empowers the Regulator, by Commonwealth Gazette notice
complying with clause 123,to authorise the use of all or stated categories of
class 2 heavy vehicles in stated areas or on stated routes and during stated
hours of stated days. These authorisations are referred to as class 2 heavy
vehicle authorisation (notice). A class 2 heavy vehicle authorisation
(notice) cannot be issued for a period of more than 5 years,
Clause 120 limits the power of the Regulator to grant a class 2 heavy
vehicle authorisation (notice) by stating that such an authorisation must not
be granted for a category of class 2 heavy vehicles unless all of the
requirements mentioned in clause 120 are met.
The requirements in subclause 120 are:
· the Regulator is satisfied the use of class 2 heavy vehicles of that
category of class 2 heavy vehicles on a road under the authorisation
will not pose a significant risk to public safety; and
· each relevant road manager for the exemption has consented to the
grant of the class 2 heavy vehicle authorisation (notice); and
· the Regulator has had regard to the approved guidelines (defined in
clause 5 as guidelines approved by responsible Ministers under clause
594) for granting class 2 heavy vehicle authorisations in making the
decision whether to grant the class 2 heavy vehicle authorisation
(notice).
The requirement in subclause 120(1)(b) that each road manager consent to
the grant or the issue of a mass dimension exemption (notice) ensures that
all road managers affected by the granting of the authorisation have an
opportunity to maintain control over the use of heavy vehicles on roads
under their authority. This allows road managers to have regard to the
impact of an authority on its road infrastructure and on public amenity.
Clause 121 specifies that a class 2 heavy vehicle authorisation (notice) may
be subject to the condition that the driver of a class 2 heavy vehicle who is
driving the vehicle under the authorisation must keep in their possession a
copy of the Commonwealth Gazette notice for the authorisation or an
information sheet about the authorisation published by the Regulator on the
Regulator's website. There is no broad authorisation for the Regulator to
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prescribe conditions applying to a class 2 heavy vehicle authorisation
(notice) in clause 121.
Clause 122 specifies when a class 2 heavy vehicle authorisation (notice)
takes effect and for how long it applies for. It states that a class 2 heavy
vehicle authorisation (notice) takes effect when the Commonwealth
Gazette notice for the authorisation is published or, if a later time is stated
in the notice, at the later time. Paragraph 122(b) confirms that the class 2
heavy vehicle authorisation (notice) applies for the period stated on the
Commonwealth Gazette notice. However, this is limited by the requirement
in Clause 119 that a class 2 heavy vehicle authorisation (notice) cannot be
granted for a period of more than 5 years.
Clause 123 states the content requirements for the Commonwealth Gazette
Notice required for a class 2 heavy vehicle authorisation (notice). A class 2
heavy vehicle authorisation (notice) is to be made by Commonwealth
Gazette Notice as per Clause 123 in order to be a valid exemption. In
addition, subclause 123 (4) requires the regulator to publish a copy of the
Commonwealth Gazette notice on the Regulator's website.
The requirements for a valid Commonwealth Gazette notice in relation to a
mass or dimension exemption (notice)) are that the notice must state all of
the following:
· the categories of class 2 heavy vehicles the authorisation applies to. If
it is to apply to all class 2 heavy vehicles it must state this and if it is to
apply to particular category of class 2 heavy vehicles it must state the
categories it applies to; and
· the areas or routes to which the authorisation applies; and
· the days and hours to which the authorisation applies; and
· any conditions applying to class 2 heavy vehicles being used on a road
under an authorisation; and
· the period for which the exemption applies.
Subclause 123 (2) authorises the Commonwealth Gazette notice to state the
areas or routes to which the authorisation applies by showing them on a
stated map prepared by the Regulator. If the Regulator chooses to do this,
the Regulator:
· must ensure a copy of the map as in force from time to time is made
available for inspection, without charge, during normal business hours
at each office of the Regulator;
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· must ensure a copy of the map as in force from time to time is
published on the Regulator's website; and
· may amend this map provided that the amendment extends the areas
or routes to which the authorisation applies. The Regulator cannot
amend the map by reducing the area to which the authorisation
applies.
Division 4 Authorisation by permit
Clause 124 empowers the Regulator to authorise, by giving a permit as
mentioned in clause 129, a class 2 heavy vehicle for use in stated areas or
on stated routes and during stated hours of stated days. Such an exemption
is referred to as a class 2 heavy vehicle authorisation (permit) and this
authorisation may apply to 1 or more heavy vehicles. A class 2 heavy
vehicle authorisation (permit) must not be granted for a period of more than
3 years.
A legislative note to clause 124 indicates that Division 4, Part 4.7 should be
read when considering the amendment, suspension or cancellation of a
mass or dimension exemption (notice).
Clause 125 states that a person may apply to the Regulator for a class 2
heavy vehicle authorisation (permit). This application must be in the
approved form and be accompanied by the relevant prescribed fee.
The Regulator is empowered by subclause 125(3), by notice given to the
applicant; to require the applicant to give the Regulator any additional
information reasonably required to decide the application.
Clause 126 further limits the power of the Regulator to grant a class 2
heavy vehicle authorisation (permit) by stating that a class 2 heavy vehicle
authorisation (permit) must not be granted for a category of class of heavy
vehicles unless all of the requirements mentioned in subclauses 126 (1) and
(2) are met.
The requirements in subclauses 126 (1) and (2) are:
· the Regulator is satisfied the use of heavy vehicles of that category on
a road under the authorisation will not pose a significant risk to public
safety;
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· each relevant road manager for the exemption has consented to the
grant of the class 2 heavy vehicle authorisation (permit); and
· the Regulator has had regard to the approved guidelines (defined in
clause 5 as guidelines approved by responsible Ministers under clause
594) for class 2 heavy vehicle authorisations in making the decision
whether to grant the class 2 heavy vehicle authorisation (permit)
(subclause 126 (2)).
The requirement in paragraph 126(1) (b) that each road manager consent to
the grant of the issue of a class 2 heavy vehicle authorisation (permit)
ensures that all road managers affected by the granting of the authorisation
have an opportunity to maintain control over the use of heavy vehicles on
roads under their authority. This allows road managers to have regard to the
impact of an authorisation on its road infrastructure and the public amenity.
Clause 127 requires that a class 2 heavy vehicle authorisation (permit)
must be subject to the road conditions required by a relevant road manager
for the authorisation under clause 138; and empowers the Regulator to
subject the authorisation to any other conditions the Regulator considers
appropriate.
Clause 128 states that a class 2 heavy vehicle authorisation (permit) applies
for the period stated in the permit for the authorisation. This period may be
less than the period sought by the applicant. However, clause 124 continues
to have the effect of ensuring that a class 2 heavy vehicle authorisation
(permit) cannot be granted for a period of more than 3 years.
Clause 129 requires the Regulator to give the applicant a permit stating
particular information if the Regulator grants a class 2 heavy vehicle
authorisation(permit). Paragraph 129 (1) (b) specifies that if the Regulator
has imposed conditions on the permit or granted the authorisation for a
period less than 3 years an information notice for these decisions must also
be provided to the applicant.
The information required to be included in a class 2 heavy vehicle
authorisation (permit) is set out in subclause 129 (2). This includes
information about the name and address of the person to whom the permit
is given, each class 2 heavy vehicle to which the authorisation applies, the
areas and routes and days and hours to which the authorisation applies, the
conditions that apply to the authorisation, and the period for which the
authorisation applies.
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Clause 130 requires the Regulator to give an information notice for the
decision if the Regulator refuses an application for a class 2 heavy vehicle
authorisation (permit).
Division 5 Operating under class 2 heavy vehicle
authorisation
Clause 131 creates an offence for a driver or operator of a heavy with a
maximum penalty of $3,000 where a vehicle being used on a road under a
class 2 heavy vehicle authorisation contravenes a condition of the
authorisation (apart from one referred to in subclause 132(1), relating to an
obligation to carry a copy of a notice, or information about it, that has been
published in the Commonwealth Gazette).
Clause 132 creates an offence for when a driver contravenes a condition of
a class 2 heavy vehicle authorisation (notice) to keep a relevant document
(the Commonwealth Gazette notice for the authorisation or an information
sheet about the authorisation published by the Regulator on the Regulator's
website) whilst driving under the authorisation. Non-compliance has a
maximum penalty of $2000 and the offence is committed by the driver of
the vehicle and the relevant party for the driver.
For clause 132, the relevant party for the driver is:
· if the driver is employed, the employer of the driver;
· if the driver is a self-employed driver, a prime contractor of the driver;
and
· if the driver is making a journey for the operator of a vehicle, an
operator of the vehicle.
Subclause 132 (6) deals with a prosecution of a relevant party. It provides
that:
· Whether or not the driver has or will be proceeded against or
convicted of the relevant offence is irrelevant. A decision not to
prosecute or convict a driver under this clause does not preclude the
relevant party from being charged or convicted where the driver did
not carry the relevant document.
· Evidence a court has convicted the driver of the relevant offence or the
driver has paid an infringement penalty in respect of it is evidence that
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the offence happened at the time and place, and in the circumstances,
stated in the charge resulting in the conviction. This is intended to
facilitate proof of the relevant facts.
Subclauses 132(4) and 132(5) state that when the relevant party is charged
with an offence under this clause that person does not have the benefit of
the mistake of fact defence for the offence but that person does have the
benefit of the reasonable steps defence. That defence is set out in Divisions
1 and 2 of Part 10.4. The reasonable steps defence requires that person
charged must actively consider the appropriate steps to prevent an on-road
breach from occurring and cannot rely on a honest and reasonable mistake
alone.
Clause 133 creates a requirement for the driver of a class 2 heavy vehicle
driving under a class 2 heavy vehicle authorisation (permit) to keep a copy
of the permit for the authorisation in the driver's possession whilst driving
under the authorisation. If this requirement is not complied with, an
offence, with a maximum penalty of $2000, is committed by the driver of
the vehicle and the relevant party for the driver.
For clause 133, the relevant party for the driver is:
· if the driver is employed, the employer of the driver;
· if the driver is a self-employed driver, a prime contractor of the driver;
and
· if the driver is making a journey for the operator of a vehicle, an
operator of the vehicle.
It is anticipated that to comply with the requirements of this clause the
relevant party will give a driver a copy of the permit that they have been
issued by the Regulator. In such a situation, subclause 133 (2) requires that
when the driver stops working for the relevant party they must return a
copy of the permit to the relevant party as soon as reasonably practicable.
The maximum penalty for not complying with this requirement is $2000.
Subclause 133 (6) deals with a prosecution of a relevant party. It provides
that:
· Whether or not the driver has or will be proceeded against or
convicted of the relevant offence is irrelevant. A decision not to
prosecute or record a conviction against a driver under this clause does
not preclude the relevant party from being charged or convicted where
the driver did not carry the relevant document.
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· Evidence a court has convicted the driver of the relevant offence or the
driver has paid an infringement penalty in respect of it is evidence that
the offence happened at the time and place, and in the circumstances,
stated in the charge resulting in the conviction. This is intended to
facilitate proof of the relevant facts
Subclauses 133 (4) - (5) states that when the relevant party is charged with
an offence under this clause that person does not have the benefit of the
mistake of fact defence for the offence but that person does have the benefit
of the reasonable steps defence. That defence is set out in Divisions 1 and
2 of Part 10.4. The reasonable steps defence requires that person charged
must actively consider the appropriate steps to prevent an on-road breach
from occurring and cannot rely on a honest and reasonable mistake alone.
Part 4.7 Particular provisions about mass
or dimension authorities
Division 1 Preliminary
Clause 134 provides definitions, for Part 4.7, of the terms road condition,
route assessment and vehicle condition.
In this part, road condition means a condition directed at protecting road
infrastructure; or preventing or minimising an adverse effect on public
amenity, including, for example, preventing or minimising an adverse
effect caused by noise, emissions and traffic congestion resulting from
vehicle use of roads.
However, the definition of road condition does not include a condition
requiring the installation of equipment or another thing in a vehicle unless
the equipment or thing is required to be installed in the vehicle for an
intelligent access condition imposed in connection with a condition
directed at these matters mentioned.
A road condition is otherwise not intended to include conditions that
require the installation of equipment or another thing to the heavy vehicle
as it is the responsibility of the Regulator to impose conditions that relate to
condition of the vehicle and its equipment. Road conditions are intended to
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allow road managers to specify conditions about the use of the heavy
vehicles on their particular roads.
In this part, route assessment, in relation to a mass or dimension authority,
means an assessment of the road infrastructure in the areas or on the routes
to which the authority is to apply to decide the impact the grant of the
authority will have, or is likely to have, on the road infrastructure.
In this part, vehicle condition means a condition directed at ensuring a
vehicle can operate safely on roads.
Division 2 Obtaining consent of relevant road
managers
Clause 135 states that this Division applies in relation to the Regulator
obtaining the consent of the road manager for a road for the purpose of
granting a mass or dimension authority. The relevant paragraphs in this
Chapter that specifically require the Regulator to gain the consent of road
managers prior to granting a mass or dimension authority are paragraphs
99(1)(b), 105(1)(b), 120(1)(b) and 126(1)(b).
The terms road manager and mass or dimension authority are defined in
Clause 5.
Road manager is defined in clause 5 as meaning, for a road in a
participating jurisdiction, an entity that is declared by a law of that
jurisdiction to be the road manager for the road for the purposes of this
Law.
Mass or dimension authority is defined in clause 5 as meaning a mass or
dimension exemption or a class 2 heavy vehicle authorisation.
Clause 136 states how long a road manager is permitted to make a decision
to give consent to the grant of a mass or dimension authority; the
circumstances in which the road manager may decide not to give consent
and the obligation on a road manager to provide written reasons to the
Regulator for a decision not to issue consent.
Subclause 136(1) requires a road manager to make a decision regarding
whether or not to give consent to the grant of a mass or dimension authority
within 28 days of a request for consent being made by the Regulator unless
a longer period is agreed to by the Regulator. A longer period (not
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extending more than 6 months after the request is made) may be agreed to
in limited circumstances specified in subclause 136(2).
Subclause 136(2) states that the limited circumstances where a longer
period for consent to be given as arising when either:
· the road manager is required under a law to consult with another entity
(such as police, electricity utilities, rail operators or other public
agencies) before deciding whether to give or not to give the consent;
or
· the road manager considers a route assessment is necessary for
deciding whether to give or not to give the consent.
Subclause 136(3) empowers the road manager to decide not to give consent
if the road manager reasonably believes:
· the mass or dimension authority will, or is likely to cause damage to
road infrastructure; or adversely affect public amenity; and
· it is not possible to grant the authority subject to road conditions that
will avoid or minimise these consequences. This requirement ensures
that prior to consent of the road manager for a mass or dimension
authority being denied, road managers consider the suitability of
attaching conditions to the authority as an alternative to denying
consent.
Subclause 136(4) requires the road manager, when deciding whether or not
to give consent, to have regard to the approved guidelines (defined in
clause 5 as guidelines approved by responsible Ministers under clause 594)
for either a mass or dimension exemption or a class 2 heavy vehicle
authorisation, whichever is relevant to the decision they are required to
make.
If consent is not given by a road manager, Subclause 136(5) requires a road
manager to give the Regulator written reasons for the decision.
Clause 137 deals with the process undertaken when a road manager
considers a route assessment is necessary for deciding whether to give or
not to give the consent to a mass or dimension authority. Under this clause
the road manager is to notify the Regulator of certain matters listed in
subclause 137(2) and requires the Regulator to notify the applicant of
further matters listed in subclause 137(3). Subclause 137(4) prescribes the
effect on the application for the period in which a fee required for a route
assessment has not yet been paid by the applicant. Under subclause 137(5),
the application lapses if the applicant does not pay a required fee for the
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route assessment within 28 days after the notification of requirement of the
route assessment by the Regulator. This encourages prompt payment from
applicants in such circumstances and allows the consent process to be
conducted as efficiently as possible.
Subclause 137(2) empowers the road manager to notify the Regulator of
the requirement for the route assessment and the fee payable for the route
assessment.
Subclause 137(3) requires the Regulator to notify the applicant for the mass
or dimension exemption (permit) or a class 2 heavy vehicle authorisation
(permit) of the following:
· that a route assessment is required for the road manager deciding
whether to give or not to give the consent;
· the fee payable (if any) for the route assessment under a law of the
jurisdiction in which the road is situated;
· if a fee is payable for the route assessment under a law of the
jurisdiction in which the road is situated, that the road manager may
stop considering whether to give or not to give the consent until the
fee is paid;
· if, under paragraph 136(1)(b), the Regulator agrees to a longer period
for the road manager deciding whether to give or not to give the
consent, the longer period agreed by the Regulator.
Subclause 137(4) empowers the road manager to stop considering whether
to give consent for a time period if a fee for a route assessment is required
under a law of the jurisdiction where the road is situated and that fee has
not been paid. The period between the day the applicant is given the
notification of the requirement for route assessment by the Regulator and
the day the fee is paid must not be counted in working out the period taken
by the road manager to decide whether to give or not to give the consent.
Subclause 137(5) states that an application for a mass or dimension
exemption (permit) or a class 2 heavy vehicle authorisation (permit) will
lapse if the fee is not paid within the 28 days or longer period agreed by the
Regulator.
Clause 138 empowers a relevant road manager for a mass or dimension
authority to consent to the grant of the authority subject to the condition
that a stated road condition is imposed on the authority. When granting
consent subject to a road condition the road manager must give the
Regulator written reasons for their decision to do so. Unless the condition
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is in regard to a class 2 heavy vehicle authorisation (notice) the Regulator
must impose the stated road condition on the mass or dimension authority.
It should be noted that when the mass or dimension authority is granted by
the Regulator subject to these conditions an information notice containing
all of the information required under clause 141 must be issued to the
applicant.
The term relevant road manager is defined in clause 5 as meaning for a
mass or dimension authority, a road manager for a road in the area, or on
the route, to which the authority applies.
Clause 139 empowers a relevant road manager for a mass or dimension
authority who gives consent to the grant of the authority to ask the
Regulator to impose a stated vehicle condition on the authority. The
Regulator must consider this request and must decide either to impose the
stated vehicle condition on the authority (with or without modification) or
not to impose the stated vehicle condition on the authority. Once a decision
has been made, the Regulator must notify the relevant road manager of the
decision.
The term relevant road manager is defined in clause 5 of this Bill as
meaning for a mass or dimension authority, a road manager for a road in
the area, or on the route, to which the authority applies.
Clause 140 empowers the Regulator to ask a relevant road authority to
consent to the grant of the mass or dimension authority when a road
manager who is not the relevant road authority does not give consent to the
grant of a mass or dimension authority or does give consent subject to what
the Regulator believes are unnecessary conditions. The road authority must
decide whether to give consent within 3 months of the request, or within a
longer period of not more than 6 months if agreed by the Regulator.
If the road authority responds to this request by granting the authority, the
decision of the road authority is effectively treated as the decision of the
road manager throughout this Bill.
This makes it difficult for road managers who are not road authorities to
frustrate the issuing of authorisation by means of unreasonably
withholding appropriate consent.
For this clause, relevant road authority is defined by subclause 140(5) as
the road authority for the participating jurisdiction in which the road for
which the relevant road manager is a road manager is situated. Clause 5
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defines the term road authority so as to make it clear that there is to be only
1 such authority for each participating jurisdiction.
Clause 141 requires certain information (listed in subclause 141(2)) to be
included in the information notice provided to the applicant regarding the
decision to grant a mass or dimension authority when a road manager has
granted consent with the imposition of a road condition.
The information required to be included in the information notice in
subclause 141(2) is:
· all information required for the information notice by other clauses in
this Bill; and
· that the road manager consented to the mass or dimension authority
on the condition that the road condition is imposed on the authority;
and
· the reasons for the road manager's decision to give the consent on the
condition that the road condition be imposed on the authority; and
· the review and appeal information for the road manager's decision to
give the consent on the condition that the road condition be imposed
on the authority.
Clause 142 states that when an application for a mass or dimension
authority is refused, wholly or partly, because a relevant road manager for
the authority has refused to consent to the authority, the information notice
for the decision to refuse the application given to the applicant by the
Regulator must state the information in subclause 142(2) regarding the
refusal of consent.
The required information that the information notice provided by the
Regulator must state under clause 142 is:
· all information required for the information notice by other clauses in
this Bill; and
· that the road manager has refused to consent to the mass or dimension
authority; and
· the reasons for the road manager's decision to refuse to give the
consent; and
· the review and appeal information for the road manager's decision to
refuse to give the consent. The definition of review and appeal
information for a road manager's decision is provided in clause 5.
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Division 3 Amendment, cancellation or
suspension of mass or dimension
authority granted by Commonwealth
Gazette notice
Clause 143 empowers the Regulator to amend or cancel a mass or
dimension authority granted by Commonwealth Gazette notice at the
Regulator's initiative when the Regulator is satisfied that the use of heavy
vehicles on a road under the mass or dimension authority has caused, or is
likely to cause, a significant risk to public safety; and the requirements
outlined in subclauses 143(3) to 143(5) are complied with.
The intent of the requirements of this clause is to ensure transparency in the
amending and cancelling of mass and dimension authorities. This is
achieved by requiring adequate notice to be given to those affected by an
amendment or cancellation and by ensuring possible adverse consequences
of such action are able to be presented to the Regulator throughout the
decision making process for consideration. An additional benefit of this
clause is in allowing to those who may be adversely affected by a decision
time in which to adjust their business practices.
The requirements in subclauses 143(3) to 143(5) are:
· The Regulator must publish a notice in the Commonwealth Gazette, a
newspaper circulating generally throughout each participating
jurisdiction and on the Regulator's website stating the intent, grounds
and reasons for the action to be taken. This notice must also invite
persons who will be affected by the proposed action to make, within a
stated time of at least 14 days after the Commonwealth Gazette notice
is published, written representations about why the proposed action
should not be taken (subclause 143(3)).
· The Regulator must consider all representations made in response to
the invitation issued in the Commonwealth Gazette Notice prior to
making the final decision to amend or cancel the mass or dimension
authority (subclause 143(3)).
· If the action proposed in the Commonwealth Gazette notice made
under subclause 143(3) was to amend the exemption, the Regulator
may only amend the exemption in a way that it is not substantially
different from the proposed action, this may include amending areas,
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routes, days or hours to which the authority applies or by imposing
additional conditions to the exemption.
· If the action proposed in the Commonwealth Gazette notice made
under subclause 143(3) was to cancel the exemption the Regulator
may cancel the exemption or amend the exemption.
· The Regulator must publish notice of the amendment or cancellation
in the Commonwealth Gazette, a newspaper circulating generally
throughout each relevant participating jurisdiction, on the Regulator's
website and in any other newspaper the Regulator considers
appropriate. Subclause 143(7) states that in this clause relevant
participating jurisdiction, for a mass or dimension authority, means a
participating jurisdiction in which the whole or part of an area or route
to which the authority applies is situated.
Under this clause the amendment or cancellation to a vehicle standards
exemption (notice) takes effect either 28 days after the publishing of the
Commonwealth Gazette notice notifying of the amendment or cancellation
or the time stated in that Commonwealth Gazette notice; whichever is the
later.
Clause 144 empowers a relevant road manager for a mass or dimension
authority granted by Commonwealth gazette notice to ask the Regulator to
amend the mass or dimension authority or cancel the authority if the road
manager is satisfied the use of heavy vehicle on a road under the authority
has caused, or is likely to cause, damage to road infrastructure; or has had,
or is likely to have, an adverse effect on public amenity. If a road manager
makes a request under this clause to amend or cancel the mass or
dimension authority the Regulator must comply with the request unless
consent to the grant of the mass or dimension authority was given by a road
authority under clause 140.
If the Regulator does amend or cancel a mass or dimension authority under
clause 144, notice of an amendment must be published in the
Commonwealth Gazette, a newspaper circulating generally throughout
each relevant participating jurisdiction, on the Regulator's website and in
any other newspaper the Regulator considers appropriate.
The intent of this clause is to provide for the revocation or amendment of
consent given by the road manager after the mass or dimension authority
has been granted. Clause 144(4) outlines the responsibilities upon the
Regulator if a road manager makes a request to amend or cancel the mass
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or dimension authority in the situation where consent was obtained from a
road authority under clause 140. In such a situation:
· the Regulator may refer the request to the road authority; and
· if the road authority gives the Regulator its written approval of the
request, the Regulator must comply with the request; and
· if the road authority does not give written approval of the road
manager's request within 28 days after the referral is made, the
Regulator must not comply with the request; and must notify the road
manager that the road authority has not given its written approval of
the request and, as a result, the Regulator must not comply with it.
Subclause 144(7) states that in this clause relevant participating
jurisdiction, for a mass or dimension authority, means a participating
jurisdiction in which the whole or part of an area or route to which the
authority applies is situated.
Clause 145 provides the Regulator power to immediately respond to any
actual or potential serious harm to public safety or significant damage to
road infrastructure that may arise by suspending any mass or dimension
authority it believes necessary to prevent or minimise it. Clause 145
empowers the Regulator to immediately suspend a mass or dimension
authority granted by Commonwealth Gazette notice if the Regulator
reasonably believes it necessary to prevent or minimise serious harm to
public safety or significant damage to road infrastructure. Clause 145
requires a notice for immediate suspension and specifies the time period for
which the suspension is in force.
Immediate suspension must be done by way of an immediate suspension
notice being published in the Commonwealth Gazette, a newspaper
circulating generally throughout each relevant participating jurisdiction, on
the Regulator's website and in any other newspaper the Regulator considers
appropriate.
An immediate suspension issued by the Regulator is in force from when the
immediate suspension notice is published in the Commonwealth Gazette
and remains in force until the earlier of either:
· the Regulator publishes a notice of an amendment or cancellation of a
mass or dimension authority under subclause 143(5) or subclause
144(5). These subclauses require the Regulator to publish a notice in
the Commonwealth Gazette; a newspaper circulating generally
throughout each relevant participating jurisdiction; on the Regulator's
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website and in any other newspaper the Regulator considers
appropriate; or
· the end of 56 days after the day the immediate suspension notice is
published.
Subclause 145(5) states that this section applies despite clauses 143 and
144. This ensures that the Regulator always maintains the power to affect
the immediate suspension of a mass or dimension authority in situations
where a risk of serious harm to public safety arises despite the usual
procedural requirements concerning the amendment or the cancellation of
the authority.
Division 4 Amendment, cancellation or
suspension of mass or dimension
authority granted by permit
Clause 146 empowers the holder of a permit for a mass or dimension
authority to apply to the Regulator for an amendment or cancellation of the
exemption. This application must be in the approved form, be accompanied
by the permit and, if for an amendment, state clearly the amendment sought
and the reasons for it. The Regulator must decide this application as soon
as practicable after receiving it.
The Regulator is empowered by subclause 146(3) to require, by notice, any
additional information from the applicant that is reasonably required to
decide the application.
The Regulator must give notice to the applicant of all decisions made in
respect to this application. If granted, the amendment or cancellation takes
effect when notice of the decision is given to the applicant or, if a later time
is stated in the notice, at that time. If the authority has been amended, the
Regulator must give the applicant a replacement permit for the authority as
amended.
If the Regulator decides not to amend or cancel the authority sought by the
applicant, subclause 146(6) requires the Regulator to give the applicant an
information notice for the decision and return the permit for the authority
to the applicant.
Clause 147 empowers the Regulator to amend or cancel a permit for a mass
or dimension authority at the Regulator's initiative if the Regulator
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considers one or more of the grounds mentioned in subclause 147(1) exists
and the requirements of subclause 147(2) to 147(4) are met.
The grounds for amending or cancelling a mass or dimension authority
granted by permit are the authority was obtained by false or misleading
documents or representations, the authority was obtained or made in an
improper way, the holder of the permit has contravened a condition of the
authority, or the use of the heavy vehicles on a road under the authority has
caused, or is likely to cause, a significant risk to public safety.
The requirements in subclauses 147(2) to 147(4) are:
· The Regulator must give to the holder of the permit a notice stating
the intent, grounds and reasons for the action to be taken. This notice
must also invite the holder of the permit to make, within a stated time
of at least 14 days after notice is given, written representations about
why the proposed action should not be taken.
· The Regulator must consider all representations made in response to
the invitation prior to making the final decision to amend or cancel the
permit.
· If the action proposed in the notice was to amend the exemption, the
Regulator may only amend the permit in a way that it is not
substantially different from the proposed action, this may include
amending areas, routes, days or hours to which the authority applies
or by imposing additional vehicle conditions to the exemption.
· If the action proposed in the notice was to cancel the permit the
Regulator may cancel the exemption or amend the exemption.
· The Regulator provide an information notice to the holder of the
permit for the decision.
Under this clause the amendment or cancellation to permit takes effect
when the information notice is provided to the holder or if a later time is
stated in the information notice, at the later time.
The intent of the requirements of this clause is to ensure transparency in the
amending and cancelling of mass and dimension authorities. This is
achieved by requiring adequate notice to be given to those affected by an
amendment or cancellation and that possible adverse consequences of such
action are able to be presented to the Regulator throughout the decision
making process for consideration. An additional benefit of this clause is in
allowing to those who may be adversely affected by a decision time in
which to adjust their business practices.
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Clause 148 provides for the revocation or amendment of consent given by
the road manager after the mass or dimension authority has been granted.
Clause 148 empowers a relevant road manager for a mass or dimension
authority granted by permit to ask the Regulator to amend the mass or
dimension authority or cancel the authority if the road manager is satisfied
the use of heavy vehicle on a road under the authority: has caused, or is
likely to cause, damage to road infrastructure; or has had, or is likely to
have, an adverse effect on public amenity. If a road manager makes such a
request to amend or cancel the authority the Regulator must comply with
the request unless consent to the grant of the mass or dimension authority
was given by a road authority under clause 140.
If the Regulator does amend or cancel a mass or dimension authority under
this clause, the Regulator must give the holder of the permit for the
authority notice of the amendment at least 28 days prior to the amendment
or cancellation taking effect. This notice must state the day the amendment
or cancellation is to take effect; the reasons given by the road manager for
the amendment or cancellation; and the review and appeal information for
the road manager's decision.
Subclause 148(4) outlines the responsibilities upon the Regulator if a road
manager makes a request to amend or cancel the mass or dimension
authority in the situation where consent was obtained from a road authority
under clause 140. In such a situation:
· the Regulator may refer the request to the road authority; and
· if the road authority gives the Regulator its written approval of the
request, the Regulator must comply with the request; and
· if the road authority does not give written approval of the road
manager's request within 28 days after the referral is made, the
Regulator must not comply with the request; and must notify the road
manager that the road authority has not given its written approval of
the request and, as a result, the Regulator must not comply with it.
Clause 149 empowers the Regulator to immediately suspend a mass or
dimension authority granted by permit if the Regulator reasonably believes
it necessary to prevent or minimise serious harm to public safety or
significant damage to road infrastructure. Clause 149 intends to provide the
Regulator power to immediately respond to any actual or potential serious
harm to public safety or significant damage to road infrastructure that may
arise by suspending any mass or dimension authority it believes necessary
to prevent or minimise it. Clause 149 requires a notice for immediate
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suspension and specifies the time period for which the suspension is in
force.
Immediate suspension must be done by way of issuing a notice (termed an
immediate suspension notice) to the person to whom the permit was given.
An immediate suspension issued by the Regulator is in force from when the
immediate suspension notice is given to the person to whom the permit was
given and remains in force until the earlier of the following:
· the Regulator gives the person a notice under subclause 147(4) or
subclause 148(5). These subclauses detail the handing of the final
notice required to be given to the person to whom the permit was
given when the Regulator amends or cancels the authorisation.
· the end of 56 days after the day the immediate suspension notice is
given to the person to whom the permit was given
Subclause 149(5) states that this clause applies despite clauses 146 and
147. This ensures that the Regulator always maintains the power to effect
the immediate suspension of a mass or dimension authority in situations
where a risk of serious harm to public safety arises despite any proceedings
that may be ongoing concerning the amendment or the cancellation of the
authority.
Clause 150 empowers the Regulator to, by notice given to the holder of a
permit for a mass or dimension authority, make minor amendments to the
authority. Under this clause, an amendment is considered minor if it is for a
formal or clerical reason or in another way that does not adversely affect
the holder's interest.
Division 5 Provisions about permits for mass or
dimension authorities
Clause 151 empowers the Regulator to require, by notice, a person to
return a permit for a mass or dimension authority granted by giving a
permit to the person if it has been amended or cancelled.
However, regardless of whether the Regulator requires the return of an
amended or cancelled permit, subclause 151(4) states that the Regulator
must give the person a replacement permit for the authority when amended.
Subclause 151(3) requires a person issued with a notice under this clause to
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return a permit to comply with that notice to within 7 days or with a longer
period if that longer period is stated on the notice. The maximum penalty
for non-compliance with this notice is $2000.
Clause 152 requires a person to apply for a replacement mass or dimension
authority permit as soon as practicable after becoming aware that their
mass or dimension authority permit is defaced, destroyed lost or stolen.
The maximum penalty for a person not doing so is $2000. If the Regulator
is satisfied the permit has been defaced, destroyed, lost or stolen the
Regulator must give the person a replacement permit as soon as
practicable. The only valid reason why the Regulator could refuse the
application for a replacement permit is if the Regulator is not satisfied that
the permit has been defaced, destroyed, lost or stolen. If the Regulator does
refuse the application for a replacement permit the Regulator must give the
person an information notice for the decision.
Part 4.8 Extended liability
Clause 153 extends chain of responsibility for offences against clause 78
(contravention of a mass requirement applying to a heavy vehicle); clause
84 (contravention of a dimension requirement applying to a heavy vehicle)
and clause 92 (contravention of a loading requirement applying to a heavy
vehicle). For all of these offences if a driver commits an offence each of the
following persons is also taken to have committed the offence:
· an employer of the driver if the driver is an employed driver;
· a prime contractor of the driver if the driver is a self-employed driver;
· an operator of the vehicle or, if it is a combination, an operator of a
vehicle in the combination;
· a consignor of any goods for road transport using the vehicle that are
in the vehicle;
· a packer of any goods in the vehicle;
· a loading manager of any goods in the vehicle; and
· a loader of any goods in the vehicle.
The maximum penalty for anyone in the chain of responsibility identified
in this clause is the penalty for the contravention of the provision by the
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driver of the heavy vehicle. Subclause 153(4) states that in a proceeding
for an offence under this clause:
· Whether or not the driver has or will be proceeded against for or
convicted of an offence against clause 78, 84 or 92 is irrelevant. A
decision not to prosecute or convict a driver under this clause does not
preclude the relevant party from being proceeded against or convicted.
· Evidence a court has convicted the driver of the relevant offence
against clause 78, 84 or 92 or the driver has paid an infringement
penalty in respect of it is evidence that the offence happened at the
time and place, and in the circumstances, stated in the charge resulting
in the conviction. This is intended to facilitate proof of the relevant
facts
A person charged with an offence under this clause does not have the
benefit of the mistake of fact defence for the offence. However, in a
proceeding for an offence under this clause the person does have the benefit
of the reasonable steps defence for the offence. That defence is set out in
Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that
the person charged must actively consider the appropriate steps to prevent
an on-road breach from occurring and cannot rely on a honest and
reasonable mistake alone.
Clause 154 extends the chain of responsibility for mass limit traffic
offences committed by the driver. In this clause, a mass limit traffic offence
is defined as an offence committed by the driver of a heavy vehicle because
the driver drove the heavy vehicle on a road in contravention of a mass
limit indicated by an official traffic sign.
Under clause 154, if a driver commits a mass limit traffic offence each of
the following persons is also taken to have committed the offence
(maximum penalty $2000):
· an employer of the driver if the driver is an employed driver;
· a prime contractor of the driver if the driver is a self-employed driver;
· an operator of the vehicle or, if it is a combination, an operator of a
vehicle in the combination;
· a consignor of any goods for road transport using the vehicle that are
in the vehicle;
· a packer of any goods in the vehicle;
· a loading manager of any goods in the vehicle;
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· a loader of any goods in the vehicle.
A person charged with an offence under this clause does not have the
benefit of the mistake of fact defence for the offence. However, in a
proceeding for an offence under this clause the person does have the benefit
of the reasonable steps defence for the offence. That defence is set out in
Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that
the person charged must actively consider the appropriate steps to prevent
an on-road breach from occurring and cannot rely on a honest and
reasonable mistake alone.
Part 4.9 Other offences
Division 1 Towing restriction
Clause 155 creates an offence where a person drives a heavy motor vehicle
towing more than 1 other vehicle. The maximum penalty for this offence is
$2000. This clause does not apply to a person driving a heavy vehicle under
a mass or dimension authority, which includes vehicles such as B-doubles
and road trains.
Division 2 Coupling requirements
Clause 156 creates offences, both with a maximum penalty of $2000,
where:
· A person uses, or permits to be used, on a road a heavy combination
and a trailer in the combination is not securely coupled to the vehicle
in front of it; and
· A person uses, or permits to be used, on a road a heavy combination
and the components of a coupling used between vehicles in the heavy
combination are not compatible with, or properly connected to, each
other.
In this clause, coupling means a device used to couple a vehicle in a
combination to the vehicle in front of it.
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Division 3 Transport documentation
Clause 157 states that, if goods are consigned for road transport using a
heavy vehicle, or for transport partly by road using a heavy vehicle and
partly by some other means, an offence is committed if the transport
documentation (defined in clause 5) in so far as it relates to the mass,
dimension or loading of any or all of the goods is false or misleading in a
material particular. The maximum penalty for the offence committed is
$10000. The persons who commit an offence under this clause are:
· Each consignor of the goods (consign and consignor are defined in
clause 5); and
· If the goods are packed in Australia in a freight container or other
container, or in a package or on a pallet, for road transport, each
packer of the goods (pack and packer are defined in clause 5); and
· If the goods are loaded onto a heavy vehicle for road transport, each
loading manager or loader of the goods (load and loading manager
are defined in clause 5); and
· If the goods are packed outside Australia in a freight container, or in a
package or on a pallet, for road transport, each receiver of the goods in
Australia (Subclause 157(9) defines receiver of goods in Australia for
this clause).
Subclause 15(7) states that in a proceeding for an offence under this clause,
it is enough for a charge to state that the transport documentation was `false
or misleading', without specifying whether it was false or whether it was
misleading.
A person charged with an offence under this clause does not have the
benefit of the mistake of fact defence for the offence. However, in a
proceeding for an offence under this clause the person does have the benefit
of the reasonable steps defence for the offence. That defence is set out in
Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that
the person charged must actively consider the appropriate steps to prevent
an on-road breach from occurring and cannot rely on a honest and
reasonable mistake alone.
Clause 158 states that, if a freight container is to be transported by road
using a heavy vehicle, the responsible entity for the freight container
commits an offence if the container weight declaration for the container
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contains information that is false or misleading in a material particular. The
maximum penalty for an offence under this clause is $10000. Subclause
158 (4) states that, for the purposes of this clause, information in a
container weight declaration is not false or misleading merely because it
overstates the actual weight of the freight container and its contents.
Clause 5 defines container weight declaration and freight container and
responsible entity for a freight container.
A person charged with an offence under this clause does not have the
benefit of the mistake of fact defence for the offence. However, in a
proceeding for an offence under this clause the person does have the benefit
of the reasonable steps defence for the offence. That defence is set out in
Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that
the person charged must actively consider the appropriate steps to prevent
an on-road breach from occurring and cannot rely on a honest and
reasonable mistake alone.
Division 4 Other offences about container
weight declarations
Clause 159 states that this Division applies to a freight container consigned
for road transport using a heavy vehicle or for transport partly by road
using a heavy vehicle and partly by some other means. The term freight
container is defined in clause 5 as a re-usable container of a kind
mentioned in Australian Standard AS 3711.1 that is designed for repeated
use for transporting goods; or a re-usable container of the same or a similar
design and construction to such a container though of different dimensions.
Clause 160 defines the term complying container weight declaration. This
term is an important term throughout the provisions of this Division. This
clause recognises that not all container weight declarations will be
complying container weight declarations. The requirements for a
complying container weight declaration ensures that container weight
declarations contain important identification information for the container
that is easily interpreted and readily accessible should it be required by an
authorised officer.
This clause states that a container weight declaration for a freight container
is a complying container weight declaration if:
· it contains the following additional information--
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(i) the number and other particulars of the freight container
necessary to identify the container; and
(ii) the name and residential address or business address in Australia
of the responsible entity for the freight container; and
(iii) the date the container weight declaration is made; and
· it is written and easily legible; and
· the information in the container weight declaration is in a form readily
available to an authorised officer who seeks to ascertain it while in the
presence of the freight container, including, for example, by
(i) examining documents located in the heavy vehicle on which the
freight container is loaded or to be loaded; or
(ii) obtaining the information by radio or mobile telephone or by
other means.
Clause 161 states that a responsible entity must not permit a driver or
operator to transport a freight container without providing the driver or
operator with a complying weight declaration. A maximum penalty of
$6,000 applies. The term responsible entity is defined in clause 5 to mean
the consignor of the container (if consigned in Australia) or (if not so
consigned) the manager for the consignor of the road transport of the
container. Subclauses 161(2) and 161(3) deal with defences to
prosecutions, excluding the mistake of facts defence but providing the
reasonable steps defence. The reasonable steps defence requires that the
person charged must actively consider the appropriate steps to prevent an
on-road breach from occurring and cannot rely on a honest and reasonable
mistake alone.
Clause 5 defines a responsible entity for a freight container as a person
who in Australia consigned the container for road transport using a heavy
vehicle or if there is no such person, the person who in Australia arranged
for the container's road transport using a heavy vehicle, or if there is still no
such person, the person who in Australia physically offered the container
for road transport using a heavy vehicle.
Clause 162 states that it is an offence for a heavy vehicle operator to permit
the vehicle's driver to transport a freight container by road using the vehicle
unless the driver has been provided with a complying container weight
declaration for the freight container. Subclause 162(3) states that a heavy
vehicle operator must not give a freight container to a carrier (who
transports the container by a means other than by road) without a
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complying container weight declaration or the prescribed particulars
contained in a complying container weight declaration for the freight
container. Noncompliance for either offence in clause 162 has a maximum
penalty of $6000.
Subclause 162(2) states that if the driver of the heavy vehicle does not have
the complying container weight declaration when transporting the freight
container by road using the vehicle, an operator of the vehicle is taken to
have committed the offence against subclause (1) unless the operator
proves that the driver was provided with the declaration before the driver
started transporting the freight container.
A person charged with either offence under this clause does not have the
benefit of the mistake of fact defence for the offence. However, in a
proceeding for an offence under this clause the person does have the benefit
of the reasonable steps defence for the offence. That defence is set out in
Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that
the person charged must actively consider the appropriate steps to prevent
an on-road breach from occurring and cannot rely on a honest and
reasonable mistake alone.
Clause 163 states that an offence is committed by a driver of a heavy
vehicle loaded with a freight container on a road where the driver does not
have a complying container weight declaration for the container. The
maximum penalty is $6000.
Subclause 163(2) states that an offence is committed by a driver of a heavy
vehicle loaded with a freight container who does not keep the complying
container weight declaration in or about the vehicle and in a way that
enables the information in the declaration to be readily available to an
authorised officer who seeks to ascertain it while in the presence of the
freight container. The maximum penalty is $6000.
A person charged with either offence under this clause does not have the
benefit of the mistake of fact defence for the offence. However, in a
proceeding for an offence under this clause the person does have the benefit
of the reasonable steps defence for the offence. That defence is set out in
Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that
the person charged must actively consider the appropriate steps to prevent
an on-road breach from occurring and cannot rely on a honest and
reasonable mistake alone.
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Division 5 Other offences
Clause 164 states that when the weight of a freight container, containing
goods consigned for road transport, exceeds the maximum gross weight
marked on the container or the container's safety approval plate, the
consignor or packer of the goods commits an offence with a maximum
penalty of $10000.
Subclause 164(5) defines safety approval plate for a freight container as the
safety approval plate required to be attached to the container under the
International Convention for Safe Containers set out in Schedule 5 of the
Navigation Act 1912 of the Commonwealth.
A person charged with either offence under this clause does not have the
benefit of the mistake of fact defence for the offence. However, in a
proceeding for an offence under this clause the person does have the benefit
of the reasonable steps defence for the offence. That defence is set out in
Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that
the person charged must actively consider the appropriate steps to prevent
an on-road breach from occurring and cannot rely on a honest and
reasonable mistake alone.
Clause 165 allows a consignee whose act or omission results, or is likely to
result, in inducing or rewarding a contravention of a mass, dimension or
loading requirement and they intend or are reckless or negligent as to
whether or not that result happens) commits an offence for which a
maximum penalty of $10000 applies.
Subclause (2) provides that the consignee is taken to have intended the
result if the container weight declaration was not given or was false or
misleading in a material particular in circumstances where the consignee
knew or ought reasonably to have known that a container weight
declaration for the container was not given as required by this Bill or that
the container weight declaration given for the container contained
information about the weight of the container and its contents that was false
or misleading in a material particular.
Part 4.10 Other provisions
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Clause 166 states that where a heavy vehicle is not exempt from one or
more conflicting mass requirements, the lower or lowest of the applicable
limits applies. This clause confirms that compliance with all mass and
dimension requirements relevant to a heavy vehicle, including a
combination, is required. For example, if the mass requirements for the
individual axle groups making up a heavy vehicle exceed the mass
requirement for the vehicle as a whole then the later mass requirement must
be complied with.
Clause 167 empowers the Regulator to exempt a heavy vehicle, or the
driver or operator of a heavy vehicle, from a prescribed requirement (a
mass or dimension requirement or any requirement under mass or
dimension authorities granted under Parts 4.5 or 4.6 of this Bill) to allow
the heavy vehicle to be used in a particular way to assist in an emergency.
The Regulator must be satisfied of certain matters, including that there will
not be an unreasonable danger to other road users and that heavy vehicle is
being used, or is intended to be used, in an emergency to protect life or
property or to restore communications or the supply of services such as
energy, water or similar services.
Subclause (3) requires that if the exemption is granted orally that the
Regulator must as soon as practicable make a written record of the
exemption and any conditions to which it is subject and give a copy of that
record to the operator of the heavy vehicle to which it relates.
Clause 168 grants a right of recovery for a loss to a person occurring
because a driver of a heavy vehicle transporting a freight container by road
using the vehicle has not been provided with a container weight declaration
for the freight container before starting to transport the freight container. A
person who has incurred a loss as a result of the delay resulting from the
failure to provide the container weight declaration and the need to obtain a
container weight declaration before transporting the container is entitled to
compensation. The person who incurs a loss may recover the loss from the
responsible entity for the freight container in a court of competent
jurisdiction. Clause 5 defines responsible entity for a freight container.
Losses that may be recovered under this clause include:
· loss incurred from delays in the delivery of the freight container, any
of its contents, or any other goods;
· loss incurred from the damage to or spoliation of anything contained
in the freight container;
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· loss incurred from providing another heavy vehicle, and loss incurred
from delays arising from providing another heavy vehicle; or
· costs or expenses incurred for weighing the freight container or any of
its contents.
Unlike clause 169 there is no reference to losses incurred from fines or
other penalties as the driver and operator of the vehicle should not be
allowing the freight container to be transported by road until a complying
container weight declaration is obtained.
Clause 169 grants a right of recovery for loss to a person who has incurred
a loss because:
· an operator or driver of a heavy vehicle transporting a freight
container by road using the vehicle has been provided with a container
weight declaration for the freight container; and
· the declaration contains information that is false or misleading in a
material particular because it either understates the weight of the
container; or otherwise indicates the weight of the container is lower
than its actual weight; and
· a contravention of a mass requirement applying to the heavy vehicle
occurs as a result of the operator or driver relying on the false or
misleading information; and
· at the relevant time, the operator or driver either had a reasonable
belief the vehicle was not in contravention of the mass requirement; or
did not know, and ought not reasonably to have known, that the
minimum weight stated in the declaration was lower than the actual
weight of the container.
If a loss of the kind mentioned above is incurred, clause 169 states that the
person incurring this loss has a right to recover that loss from the
responsible entity in a court of competent jurisdiction.
Losses that may be recovered under this clause include:
· the amount of a fine or other penalty imposed on the plaintiff for an
offence against this Bill;
· the amount of a fine or other penalty imposed on an employee or agent
of the plaintiff for an offence against this Bill and reimbursed by the
plaintiff;
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· loss incurred from delays in the delivery of the freight container, any
of its contents, or any other goods;
· loss incurred from the damage to or spoliation of anything contained
in the freight container;
· loss incurred from providing another heavy vehicle, and loss incurred
from delays arising from providing another heavy vehicle; and
· costs or expenses incurred for weighing the freight container or any of
its contents.
There is no limit on the amount of loss that is able to be recovered from the
responsible entity for the freight container in this clause. However, clause
171 states that the court may assess the monetary value of a loss
recoverable in the way it considers appropriate. Clause 171 also provides
that the court may have regard to the matters it considers appropriate in
making this assessment.
Clause 171 provides that the court may have regard to the matters it
considers appropriate in making this assessment.
Clause 170 grants a right of recovery to responsible entities that have
proceedings initiated against them under clause 169 in respect of the whole
or part of the amount that they are required to pay against a person, called
an information provider, who provided the responsible entity with all or
part of the false or misleading information that led to the proceeding under
clause 169.
Subclause 170(3) provides that the responsible entity may enforce their
right to recover under subclause 170(2) by either joining the information
provider to a recovery proceeding that has not been decided or by bringing
a proceeding in a court of competent jurisdiction.
Clause 171 empowers the court to assess the monetary value recoverable
under the recovery clauses of this division (clauses 168; 169 and 170). In
making this assessment clause 171 empowers the court to have regard to
matters it considers appropriate, including any evidence adduced in a
proceeding for an offence against this law.
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Chapter 5 Vehicle operations
--speeding
Part 5.1 Preliminary
Clause 172 states that the main purpose of Chapter 5 is to improve public
safety and compliance with Australian road laws by imposing
responsibility for speeding by heavy vehicles on persons whose business
activities influence the conduct of the drivers of heavy vehicles.
Clause 173 states that Chapter 5 requires:
· persons who are most directly responsible for the use of a heavy
vehicle to take reasonable steps to ensure their activities do not cause
the vehicle's driver to exceed speed limits; and
· anyone who schedules the activities of a heavy vehicle, or its driver, to
take reasonable steps to ensure the schedule for the vehicle's driver
does not cause the driver to exceed speed limits; and
· loading managers to take reasonable steps to ensure the arrangements
for loading goods onto and unloading goods from a heavy vehicle do
not cause the vehicle's driver to exceed speed limits; and
· particular persons who consign goods for transport by a heavy vehicle,
or who receive the goods, to take reasonable steps to ensure the terms
of consignment of the goods do not cause the vehicle's driver to
exceed speed limits; and
· prohibits anyone from asking the driver of a heavy vehicle to exceed
speed limits and from entering into an agreement that causes the
driver of a heavy vehicle to exceed speed limits.
Moreover, this Chapter imposes liability on persons who are most directly
responsible for the use of a heavy vehicle for offences committed by the
vehicle's driver exceeding speed limits
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Part 5.2 Particular duties and offences
Division 1 Employers, prime contractors and
operators
Clause 174 requires that a `relevant party' for the driver of a heavy vehicle
must take all reasonable steps to ensure that the relevant party's business
practices will not cause the driver to exceed a speed limit applying to the
driver. The maximum penalty for not complying with this requirement is
$8000.
It should be noted that, because of the operation of clause 188 for an
offence against this provision it is not necessary to prove the driver of the
heavy vehicle exceeded a speed limit applying to the driver. For this
clause, the relevant party for the driver includes:
· if the driver is employed, the employer of the driver;
· if the driver is a self-employed driver, a prime contractor of the driver;
and
· if the driver is making a journey for the operator of a vehicle, an
operator of the vehicle.
For this clause, business practices of a relevant party means the practices of
the relevant party in running the relevant party's business and includes the
operating policies and procedures of the business; the human resource and
contract management arrangements of the business; and arrangements for
managing safety.
A second note to subclause 174(1) indicates that clauses 564 and 565
should be considered in deciding whether a person has taken all reasonable
steps.
A person charged with an offence under this clause does not have the
benefit of the mistake of fact defence for this offence.
Clause 175 imposes an obligation on an employer not to cause an
employed driver to drive a heavy vehicle unless the employer has complied
with clause 174 and is reasonably satisfied that each scheduler for the
vehicle has complied with that scheduler's obligations. A maximum
penalty of $4000 applies to the offence of contravening this provision.
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It should be noted that, because of the operation of clause 188, for an
offence against this provision it is not necessary to prove the driver of the
heavy vehicle exceeded a speed limit applying to the driver.
This clause encourages employers to be vigilant as to factors within their
control that may encourage a driver to not comply with a speed limit.
Clause 176 states where a driver is self-employed, this clause imposes on
prime contractors and operators of vehicles obligations similar to those
imposed on employers by clause 175. A maximum penalty of $4000 is
prescribed for a person contravening this provision.
It should be noted that, because of the operation of clause 188, for an
offence against this provision it is not necessary to prove the driver of the
heavy vehicle exceeded a speed limit applying to the driver.
This clause encourages prime contractors and operators to be vigilant as to
factors within their control that may encourage a driver to not comply with
a speed limit.
Division 2 Schedulers
Clause 177 states that a scheduler must take all reasonable steps to ensure
that the schedule for the driver of a heavy vehicle will not cause the driver
to exceed a speed limit applying to the driver. A maximum penalty of
$8000 applies to the offence of contravening this provision. Clause 5
defines a schedule for the driver of a heavy vehicle and a scheduler for a
heavy vehicle.
It should be noted that, because of the operation of clause 188, for an
offence against this provision it is not necessary to prove the driver of the
heavy vehicle exceeded a speed limit applying to the driver.
A person charged with an offence under this clause does not have the
benefit of the mistake of fact defence for the offence.
Examples of what may be regarded as reasonable steps are provided in a
note under this clause. These examples are:
· Consulting drivers about their schedules and work requirements;
· Taking account of the average speed that can be travelled lawfully on
scheduled routes;
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· Allowing for traffic conditions or other delays in schedules; and
· Contingency planning concerning schedules.
A second note to subclause 177(1) indicates that clauses 564 and 565
should be considered in deciding whether a person has taken all reasonable
steps.
Clause 178 imposes further obligations on schedulers to not cause a
vehicle's driver to drive unless the driver's schedule allows for:
· the driver to take all required rest breaks in compliance with all laws
regulating the driver's work times and rest times; and
· traffic conditions and other delays that could reasonably be expected;
and
· compliance with all speed limits.
A maximum penalty of $4000 applies to the offence of contravening this
provision.
It should be noted that, because of the operation of clause 188, for an
offence against this provision it is not necessary to prove the driver of the
heavy vehicle exceeded a speed limit applying to the driver.
Examples provided of considerations that may be taken into account in
providing a schedule that allows for traffic conditions and other delays that
could be reasonably expected are:
· the actual average speed able to be travelled lawfully and safely by the
driver on the route to be travelled by the heavy vehicle;
· known traffic conditions, for example, road works or traffic
congestion on the route; and
· delays caused by loading, unloading or queuing.
Division 3 Loading managers
Clause 179 states that a loading manager must take all reasonable steps to
ensure that loading and unloading arrangements will not cause the driver of
a heavy vehicle to exceed a speed limit applying to the driver. A maximum
penalty of $8000 applies to the offence of contravening this provision.
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For this clause, a loading manager means a person who manages, or is
responsible for the operation of, regular loading or unloading premises for
heavy vehicles; or has been assigned by that person as responsible for
supervising, managing or controlling, directly or indirectly, activities
carried out by a loader or unloader of goods at the premises.
It should be noted that, because of the operation of clause 188, for an
offence against this provision it is not necessary to prove the driver of the
heavy vehicle exceeded a speed limit applying to the driver.
Examples of what may be regarded as reasonable steps are provided in a
note under this clause. These examples are:
· reviewing loading and unloading times and delays at loading and
unloading places;
· identifying potential loading and unloading congestion in consultation
with drivers and other parties in the chain of responsibility;
· having a system of setting and allocating loading and unloading times
the driver can reasonably rely on; and
· allowing loading and unloading to happen at an agreed time.
A second note to subclause 179(1) indicates that clauses 564 and 565
should be considered in deciding whether a person has taken all reasonable
steps. A person charged with this an offence under this clause does not
have the benefit of the mistake of fact defence for this offence.
Division 4 Particular consignors and consignees
Clause 180 states that this Division applies to a person who is a
`commercial consignor' who engages a particular operator of a heavy
vehicle, either directly or through an agent or other intermediary, to
transport goods for the person by road for commercial purposes.
Clause 5 defines a `consignee' of goods as a person who has consented to
being, and is, named or otherwise identified, as the intended consignee of
the goods in the transport documentation relating to the road transport of
the goods; or actually receives the goods after completion of their road
transport. This definition does not include a person who merely unloads the
goods.
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Clause 181 states that this Division applies only to a consignee of goods
who:
· has consented to being, and is named or otherwise identified as, the
intended consignee of goods in the transport documentation relating
to the transport of the goods by road by a particular operator of a
heavy vehicle; and
· knows, or ought reasonably to know, that the goods are to be
transported by road.
A note to clause 181 refers to clause 572 for the matters a court must
consider deciding whether a person ought reasonably to have known
something.
Clause 182 states that a commercial consignor or a consignee of goods
must take all reasonable steps to ensure that the terms of consignment of
goods for transport by a heavy vehicle will not either (a) cause the relevant
driver or (b) cause a relevant party for the relevant driver to exceed a speed
limit applying to the driver. A maximum penalty of $8000 applies to both
offences in this clause.
It should be noted that, because of the operation of clause 188, for an
offence against this provision it is not necessary to prove the driver of the
heavy vehicle exceeded a speed limit applying to the driver.
For this clause, the relevant driver for consigned goods, means the driver
of the heavy vehicle by which the goods are to be or are being transported.
For this clause, the relevant party for the driver includes:
· if the driver is employed, the employer of the driver;
· if the driver is a self-employed driver, a prime contractor of the driver;
and
· if the driver is to make, or is making, a journey for the operator of a
vehicle, an operator of the vehicle.
Examples of what may be regarded as reasonable steps are provided in a
note under this clause. These examples are:
· ensuring contractual arrangements and documentation for the
consignment and delivery of goods enable speed limit compliance;
· contingency planning concerning consignments and delivery times;
and
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· regular consultation with other parties in the chain of responsibility,
unions and industry associations to address compliance issues.
A second note to subclause 182 (1) indicates that clauses 564 and 565
should be considered in deciding whether a person has taken all reasonable
steps.
A person charged with an offence under this clause does not have the
benefit of the mistake of fact defence for this offence.
Clause 183 states that a commercial consignor or a consignee of goods
must not make a demand that affects, or may affect, a time in a schedule for
the transport of the consigned goods unless the consignor or consignee has
complied with clause 181 and the consignor or consignee is reasonably
satisfied that the making of the demand will not cause a scheduler for the
vehicle to not comply with that scheduler's obligations. A maximum
penalty of $6000 applies to the offence of contravening this provision.
It should be noted that, because of the operation of clause 188, for an
offence against this provision it is not necessary to prove the driver of the
heavy vehicle exceeded a speed limit applying to the driver.
Division 5 Particular requests etc. and contracts
etc. prohibited
Clause 184 sets out the person included in the meaning of the term `party
in the chain of responsibility' for a heavy vehicle in this Division. This
definition is important as persons commit an offence under this Division
when they make a request to, or enter a contract or agreement with, a party
in the chain of responsibility.
The persons who are a party in the chain of responsibility for this Division
are:
· an employer of the vehicle's driver if the driver is an employed driver;
· a prime contractor for the vehicle's driver if the driver is a
self-employed driver;
· an operator of the vehicle;
· a scheduler for the vehicle;
· a loading manager of any goods in the vehicle;
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· a commercial consignor of any goods for transport by the vehicle that
are in the vehicle;
· a consignee of any goods in the vehicle, if Division 4 applies to the
consignee.
A note to subclause 184 (1) indicates that the exercise of any of these
functions, whether exclusively or occasionally, decides whether a person
falls within these definitions rather than a person's job title or contractual
description.
Subclause 184(2) provides that a person may be a party in the chain or
responsibility for the heavy vehicle in more than one capacity.
Clause 185 prohibits a person from asking, directing or requiring, directly
or indirectly, the driver of a heavy vehicle or a party in the chain of
responsibility to do or not to do something which the person knows or
ought reasonably to know would have the effect of causing the driver to
exceed a speed limit applying to the driver. A maximum penalty of $8000
applies to the offence of contravening this provision.
It should be noted that, because of the operation of clause 188, for an
offence against this provision it is not necessary to prove the driver of the
heavy vehicle exceeded a speed limit applying to the driver.
A note to subclause 185(1) indicates that clause 572 states the matters a
court must consider when deciding whether a person ought reasonably to
have known something.
Clause 186 states a person must not enter into a contract or agreement with
the driver or a party in the chain of responsibility of or for a heavy vehicle
if the person knows or ought reasonably to know that the effect would be to
cause the driver to exceed a speed limit applying to the driver.
Subclause 186(2) makes similar provision for contracts or agreements that
encourage or provide incentives for a driver to exceed a speed limit
applying to the driver.
In both cases a maximum penalty of $8000 applies to the offence of
contravening this provision.
It should be noted that, because of the operation of clause 188, for an
offence against this provision it is not necessary to prove the driver of the
heavy vehicle exceeded a speed limit applying to the driver.
A note to clause 186 indicates that clause 572 states the matters a court
must consider when deciding whether a person ought reasonably to have
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known something. The note also indicates that clause 677 provides that
particular contracts or other agreements are void.
Division 6 Provisions about offences against
this Part
Clause 187 deals with circumstances included within the concept of failing
to take all reasonable steps in relation to this Division. Under clause 187, a
person failing to take reasonable steps to ensure someone else does not
drive a heavy vehicle in excess of a speed limit applying to the vehicle's
driver (referred to in this clause as the prohibited act) includes:
· the person failing to take reasonable steps to ensure the other person
does not do the prohibited act; and
· the person failing to take reasonable steps to ensure the person's
activities or anything arising out of them do not cause, result in or
provide an incentive for the other person to do the prohibited act.
Subclause 187(4) states that a court may find that a person caused another
person to do something prohibited if the court is satisfied that a reasonable
person would have foreseen that the person's conduct would be reasonably
likely to cause the other person to do the prohibited act.
Clause 188 states that in a prosecution for an offence against Part 5.2, it is
not necessary to prove the driver of the heavy vehicle exceeded a speed
limit applying to the driver.
Part 5.3 Extended liability
Clause 189 creates offences for employers, prime contractors and operators
of heavy vehicles when a driver of a heavy vehicle is convicted of a
speeding offence. A driver must be convicted of a speeding offence for the
operation of this clause to become relevant.
In this clause a `speeding offence' means an offence committed by the
driver of a heavy vehicle because the driver exceeded a speed limit
applying to the driver.
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Subclause 189(1) states that when a driver of a heavy vehicle commits a
speeding offence, each of the following persons are also taken to have
committed the offence:
· if the driver is employed, the employer of the driver;
· if the driver is a self-employed driver, a prime contractor of the driver;
and
· if the driver is making a journey for the operator of a vehicle, an
operator of the vehicle.
The maximum penalty for a person committing an offence under this
provision is set out in Paragraphs 189(1)(a) to 189(1)(e) and is dependent
on both the speed limit exceeded by the driver and how much the driver
exceeded the limit by.
A person charged with an offence under this clause does not have the
benefit of the mistake of fact defence for the offence. However, in a
proceeding for an offence under this clause the person does have the benefit
of the reasonable steps defence for the offence. That defence is set out in
Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that
the person charged must actively consider the appropriate steps to prevent
an on-road breach from occurring and cannot rely on a honest and
reasonable mistake alone.
Chapter 6 Vehicle operations--
driver fatigue
Part 6.1 Preliminary
Clause 190 states the main purpose of Chapter 6 is to provide for the safe
management of the fatigue of drivers of fatigue-regulated heavy vehicles
while they are driving on the road.
The term `fatigue-regulated heavy vehicles' is defined in clause 7.
Normally, a vehicle designed to carry more than 12 adults (including the
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driver) or having a gross vehicle or combination mass of 12 tonnes or more
will be a fatigue-regulated heavy vehicle, although clause 7 provides
exceptions, including some machinery and motor homes.
Subclause 190(2) indicates that this purpose is achieved by imposing
duties, providing maximum work requirements and minimum rest
requirements and, amongst other things, providing for recording the work
times and rest times of drivers.
Clause 191 provides definitions of terms used in Chapter 6 or refers the
reader to other provisions where those terms are defined. Examples are
given in some cases.
Clause 192 states that breaches of maximum work requirements or
minimum rest requirements are categorised as minor, substantial, severe or
critical in accordance with provisions of regulations.
Part 6.2 Duties relating to fatigue
Division 1 Preliminary
Clause 193 states that `fatigue' includes, but is not limited to, feeling
sleepy, feeling physically or mentally tired, weary or drowsy, feeling
exhausted or lacking energy or behaving in a way that's consistent with the
examples referred to in paragraphs 193(a), 193(b), or 193(c).
Clause 194 sets out some matters which a court may consider in
determining whether a driver is fatigued but Subclause 194(2) states that
the court is not limited by those matters.
Clause 195 states that a person is impaired by fatigue if he or she is
fatigued to the extent that he or she is incapable of driving a
fatigue-regulated heavy vehicle safely.
Clause 196 sets out matters that a court may consider in determining
whether a person is impaired by fatigue. Subclause 196(2) provides that the
court is not limited to a consideration of those things and Subclause 196(3)
provides that a court may consider a driver to be impaired by fatigue even
though he or she has complied with legal requirements.
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Clause 197 refers to a number of parties in the chain of responsibility who
are deemed to have committed the same offences as the driver under this
Law. These persons include:
· an employer of the vehicle's driver;
· prime contractor for the vehicle's driver;
· an operator of the vehicle;
· a scheduler for the vehicle;
· a consignor of any goods for transport by the vehicle that are in the
vehicle;
· a consignee of any goods in the vehicle;
· a loading manager of any goods in the vehicle;
· a loader of any goods in the vehicle; and
· an unloader of any goods in the vehicle.
Subclause 197(2) provides that it is possible for a person to be a party in
the chain of responsibility for a fatigue-regulated heavy vehicle in more
than 1 capacity.
Division 2 Duty to avoid and prevent fatigue
Clause 198 provides that a person must not drive a fatigue-regulated heavy
vehicle on a road while the person is impaired by fatigue. A maximum
penalty of $4500 applies to the offence of contravening this provision.
Clause 199 provides that a party in the chain of responsibility for a
fatigue-regulated heavy vehicle must take all reasonable steps to ensure
that a person does not drive the vehicle on a road while that person is
impaired by fatigue. A maximum penalty of $6000 applies to the offence of
contravening this provision. Subclause 199(2) deals with evidence that a
party took all reasonable steps and Subclause 199(3) provides that it is not
necessary for the prosecution to prove that a person drove or would or may
have driven on a road while impaired by fatigue. Subclause 199 (4)
defines one of the terms used in Subclause 199(1).
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Division 3 Additional duties of employers, prime
contractors and operators
Clause 200 imposes on certain employers, contractors and operators (as
specified by Subclause 200(2)) to take all reasonable steps to ensure that
their business practices will not cause the driver to drive while impaired by
fatigue or to drive in breach of work and rest hours options. A maximum
penalty of $4500 applies to the offence of contravening this provision.
Clause 201 imposes an obligation on an employer not to cause an
employed driver to drive a fatigue-regulated heavy vehicle unless the
employer has complied with clause 201 and is satisfied that each scheduler
for the vehicle has complied with that scheduler's obligations. A maximum
penalty of $3000 applies to the offence of contravening this provision.
Clause 202 provides that where a driver is self-employed, clause 202
imposes on prime contractors and operators of vehicles obligations similar
to those imposed on employers by clause 201. A maximum penalty of
$3000 applies to the offence of contravening this provision.
Division 4 Additional duties of schedulers
Clause 203 provides that a scheduler must take all reasonable steps to
ensure that the schedule for the driver of a fatigue-regulated heavy vehicle
will not cause the driver to drive while impaired by fatigue or in breach of
the driver's work and rest hours options. A maximum penalty of $4500
applies to the offence of contravening this provision.
Clause 204 imposes further obligations on schedulers, including a
consideration of traffic conditions and other delays that could reasonably
be expected; such matters must be allowed for in the driver's schedule. A
maximum penalty of $3000 applies to the offence of contravening this
provision.
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Division 5 Additional duties of consignors and
consignees
Clause 205 states that consignors and consignees must take all reasonable
steps to ensure that the terms of consignment of goods for transport by a
fatigue-regulated heavy vehicle will not result in, encourage or provide an
incentive to the driver to drive while impaired by fatigue or in breach of the
driver's work and rest hours options. A maximum penalty of $4500 applies
to the offence of contravening this provision.
Subclauses 205(2) and 205(3) impose on consignors and consignees
similar obligations in relation to employers, prime contractors and
operators who may, in turn, cause a driver to drive while impaired by
fatigue or in breach of the driver's work and rest hours options.
Clause 206 states that consignors and consignees must not cause the driver
to drive or enter into a contract or other agreement to that effect unless the
consignor or consignee has complied with clause 205 and is satisfied that
others upon whom obligations are imposed by Divisions 3 and 4 have
complied with those Divisions.
Clause 207 states that a consignor of goods for transport by road in a
fatigue-regulated heavy vehicle must not make a demand that affects or
may affect a time in a schedule that may cause the vehicle's driver to drive
while impaired by fatigue or in breach of the driver's work and rest hours
options. A maximum penalty of $3000 applies to the offence of
contravening this provision but Subclause 207(2) protects the consignor if
certain precautions are taken before the demand is made.
Division 6 Additional duties of loading
managers
Clause 208 states that a loading manager must take all reasonable steps to
ensure that loading and unloading arrangements will not cause the driver of
a fatigue-regulated heavy vehicle to drive while impaired by fatigue or in
breach of the driver's work and rest hour options. A maximum penalty of
$4500 applies to the offence of contravening this provision.
Clause 209 imposes an obligation to ensure drivers can rest in particular
circumstances. In circumstances specified by subclause 209(1), a loading
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manager must take all reasonable steps to ensure that the driver is able to
rest while waiting for the goods to be loaded or unloaded onto or from the
vehicle. The circumstances include delays in the starting or finishing times
advised to the driver for the loading or unloading. A maximum penalty of
$3000 applies to the offence of contravening this provision.
Division 7 Particular requests etc. and contracts
etc. prohibited
Clause 210 prohibits a person from asking, directing or requiring, directly
or indirectly, the driver of a fatigue-regulated heavy vehicle or a party in the
chain of responsibility to do or not to do something which the person
knows or ought reasonably to know would have the effect of causing the
driver to drive while impaired by fatigue or in breach of the driver's work
and rest hours options. A maximum penalty of $6000 applies to the offence
of contravening this provision.
Clause 211 provides that a person must not enter into a contract or
agreement with the driver or a party in the chain of responsibility of or for a
fatigue-regulated heavy vehicle if the person knows or ought reasonably to
know that the effect would be to cause the driver to drive while impaired by
fatigue or in breach of the driver's work and rest hours options.
Subclause 211(2) makes similar provision for contracts or agreements
which encourage or provide incentives for driving while impaired by
fatigue or in breach of the driver's work and rest hours options. In both
cases, a maximum penalty of $6000 applies to the offence of contravening
this provision.
Division 8 Provisions about offences against
this Part
Clause 212 deals with circumstances included within the concept of failing
to take all reasonable steps. Subclause 212(4) makes further provision as to
when a court may find that a person caused another person to do something
prohibited; this will be possible if the court is satisfied that a reasonable
person would have foreseen that the person's conduct would be reasonably
likely to cause the other person to do the prohibited act.
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Part 6.3 Requirements relating to work
time and rest time
Division 1 Preliminary
Clause 213 defines the terms `work and rest hours option'. The term is
important in relation to various offences created by Part 6.3 involving
conduct causing a driver to drive in breach of the option.
Clause 214 deals with counting time. As the driving task may extend
across State or Territory borders, clause 214 states how time (for work and
rest) is to be counted where more than one participating jurisdiction is
involved.
Clause 215 provides for the possibility that the driving task may extend
across State or Territory borders, clause 215 indicates how time (for work
and rest) is to be counted where both participating and non-participating
jurisdictions are involved.
Clause 216 provides for the computation of short periods of less than 15
minutes of both work and rest times.
Clause 217 deals with the point from which a period of time is to be
counted where a rest break or period is involved and provides an example
of how the computation is to be made.
Clause 218 deals with the situation where the driving extends across two or
more time zones.
Division 2 Standard work and rest arrangements
Clause 219 authorises the making of regulations to prescribe maximum
work times and minimum rest times applying to drivers of a
fatigue-regulated heavy vehicle working under what are called standard
hours. Later clauses deal with hours that are not standard, called BFM and
AFM.
Clause 220 states that a solo driver working under standard hours commits
an offence where he or she works more than the maximum work time or
rests for less than the minimum rest time required by the standard hours.
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Subclause 220(1) applies different monetary penalties by reference to
whether the breach of the provision is categorised as minor, substantial,
severe or critical. Subclauses 220(2) and 220(3) deal with defences to a
prosecution for contravening Subclause 220(1).
Clause 221 makes provision, similar to clause 220, where drivers under
standard hours are party to a two-up driving arrangement.
Clause 222 provides a defence where a rest break of less than 1 hour is
required and has not been taken because there was no suitable place
available in which to take it but it was taken, no later than 45 minutes late,
at the first available suitable location.
Division 3 BFM work and rest arrangements
Clause 223 authorises the making of regulations to prescribe maximum
work times and minimum rest times applying to drivers of a
fatigue-regulated heavy vehicle working under BFM hours. Such a driver
drives under BFM accreditation, for which clause 410 provides.
Clause 224 states that a solo driver working under BFM hours commits an
offence where he or she works more than the maximum work time or rests
for less than the minimum rest time required by the BFM hours. Subclause
224(1) applies different monetary penalties by reference to whether the
breach of the provision is categorised as minor, substantial, severe or
critical.
Subclauses 224(2) and 224(3) deal with defences to a prosecution for
contravening subclause 224(1).
Clause 225 provides a defence for a solo driver in a prosecution for not
taking 7 hours of stationary rest when required by BFM hours in
circumstances where the driver has had a split rest break.
Clause 226 provides a provision, similar to clause 224, where drivers under
BFM hours are party to a two-up driving arrangement.
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Division 4 AFM work and rest arrangements
Clause 227 provides a definition of the term AFM hours, being the
maximum work times and minimum rest times for a driver of a
fatigue-regulated heavy vehicle under an AFM accreditation for which
clause 410 provides.
Clause 228 states that a driver working under AFM hours commits an
offence where he or she works more than the maximum work time or rests
for less than the minimum rest time required by the AFM hours. Subclause
228 (1) applies different monetary penalties by reference to whether the
breach of the provision is categorised as minor, substantial, severe or
critical.
Subclauses 228(2) and 228(3) deal with defences to a prosecution for
contravening subclause 228(1).
Division 5 Arrangements under work and rest
hours exemption
Clause 229 defines the term exemption hours to be the maximum work
time and minimum rest time for a driver of a fatigue-regulated heavy
vehicle driving under an exemption. These times are to be specified in the
notice or permit granting the exemption.
Clause 230 states that a driver working under a work and rest hours
exemption commits an offence where he or she works more than the
maximum work time or rests for less than the minimum rest time required
by the exemption. Subclause 230(1) applies different monetary penalties by
reference to whether the breach of the provision is categorised as minor,
substantial, severe or critical. Subclauses 230(2) and 230(3) deal with
defences to a prosecution for contravening subclause 230(1).
Division 6 Extended liability
Clause 231 extends liability to employers, prime contractors, operators,
schedulers, consignors, consignees, loading managers, loaders and
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unloaders if a driver of a fatigue-regulated heavy vehicle commits an
offence by exceeding the maximum work hours or taking less than the
minimum rest times required for the driver. It prescribes different penalties
depending on whether the offence is characterised as minor, substantial,
severe or critical with penalties ranging from $1500 to $6000. Subclauses
231(2) and 231(3) deal with defences to a prosecution for contravening
subclause 231(1).
Division 7 Changing work and rest hours option
Clause 232 states the limits of a driver to 1 work and rest hours option but
allows him or her to change the option available
Clause 233 deals with the circumstances in which a work and rest hours
option can be changed and obligations arising from a change. Clause 213
of the Bill defines the options in terms of standard hours, BFM hours or
AFM hours.
Clause 234 imposes duties on employers, prime contractors, operators and
schedulers where a driver changes a work and rest hours option. A
maximum penalty of $3000 applies where the duties are breached.
Subclauses 234(3) and 234(4) deal with defences available in a prosecution
for such a breach.
Division 8 Exemptions relating to work times
and rest times
Subdivision 1 Exemption for emergency services
Clause 235 provides an exemption from requirements as to work and rest
times a person who is acting for an emergency service in circumstances
specified in the clause on the way to, during and returning from an
emergency, as defined in subclause 235(3).
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Subdivision 2 Exemptions by Commonwealth
Gazette notice
Clause 236 authorises the Regulator to grant an exemption to classes of
drivers for 3 years to operate under maximum work times and minimum
rest times prescribed in the notice that is to be published in the
Commonwealth Gazette to exempt.
Clause 237 states that the Regulator may grant a work and rest hours
exemption only if the Regulator is satisfied that requiring the class of
drivers to whom the exemption is to apply to comply with the standard
hours would be an unreasonable restriction on the applicants. Subclause
237(2) requires the Regulator to have regard to guidelines approved by the
responsible Ministers.
Clause 238 provides that a notice granting an exemption from work and
rest hours may be subject to conditions including driver fatigue
management practices that are to apply to the drivers under the exemption,
record keeping requirements, as well as a condition that the driver must
keep in his or her possession a copy of the notice.
Clause 239 deals with the period during which a notice granting an
exemption from work and rest hours is in force. It provides that an
exemption takes effect when it is published on the Commonwealth Gazette
website or a later time stated in the notice.
Clause 240 provides that a notice granting an exemption from work and
rest hours must refer to the classes of drivers to which the exemption
applies, the maximum work times and minimum rest times, the period for
which the exemption applies as well as any other conditions.
Clause 241 sets out the grounds that warrant amendment or cancellation of
a notice granting an exemption from work and rest hours. In particular,
clause 241(1) states that a notice may be amended or cancelled if the
circumstances that warranted the granting of an exemption no longer exist
or where the use of a fatigue-regulated heavy vehicle has caused, or is
likely to cause, a significant risk to public safety.
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Subdivision 3 Exemptions by permit
Clause 242 states that the Regulator may grant, by a permit, an exemption
from the work and rest hours that would otherwise apply to the driver of a
fatigue-regulated heavy vehicle.
Clause 243 allows an employer, operator, prime contractor or a
self-employed driver of a fatigue-regulated heavy vehicle to apply for an
exemption permit. It specifies the requirements for an application which
include the requirement that the applicant must be in the approved form
and specify the period for which the exemption is sought, any conditions to
which the exemption is sought to be subject as well as the name of the
driver.
Clause 244 states the restrictions on the Regulator in relation to the grant
of a permit under clause 241. The Regulator must be satisfied of certain
matters specified in the clause, including the unreasonableness of requiring
compliance with the hours which would otherwise apply, and must have
regard to guidelines approved by the responsible Ministers under clause
594.
Clause 245 states that a permit granting an exemption from work and rest
hours may be subject to conditions. Where the exemption is granted to an
operator in connection with the operator's BFM or AFM accreditation, it is
a condition that the operator complies with all of the conditions of that
accreditation.
Clause 246 deals with the period during which a permit granting an
exemption from work and rest hours is in force.
Clause 247 deals with the contents of and, in some cases, information
which must accompany a work and rest hours exemption permit.
Clause 248 provides that if the Regulator refuses a permit, an information
notice is to be provided to the applicant.
Clause 249 deals with an application for the amendment or cancellation of
a work and rest hours exemption (permit).
Clause 250 states the grounds for amending or cancelling a work and rest
hours exemption (permit) on the Regulator's initiative and the procedures
to be followed, including opportunity for and consideration of written
representations.
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Clause 251 provides for the circumstances in which the Regulator may
immediately suspend a work and rest hours exemption (permit).
Clause 252 provides the Regulator with the power to make amendments of
a minor nature to a work and rest hours exemption (permit), so as to deal
with formal or clerical matters or amendments which do not adversely
affect the holder's interests.
Clause 253 provides that where a work and rest hours exemption (permit)
is amended or cancelled, the Regulator may require its return. It is an
offence not to comply with such a requirement and a maximum penalty of
$2000 applies. The Regulator may issue a replacement permit where a
permit has been amended.
Clause 254 provides that where a permit is defaced, destroyed, lost or
stolen, the holder must apply to the Regulator for a replacement. A
maximum penalty of $2000 applies for a contravention of this requirement.
The clause also deals with the circumstances when the Regulator is to issue
such a replacement and the procedure to be followed if a replacement is not
issued.
Subdivision 4 Offences relating to operating under
work and rest hours exemption etc.
Clause 255 states that it is an offence not to comply with a condition of an
exemption from work and rest hours. A maximum penalty of $3000
applies.
Clause 256 makes it an offence for a driver to not keep in his or her
possession a copy of the notice granting the exemption and prescribes a
penalty of $2000. Subclause 256(3) extends the liability (with a similar
penalty) to employers, prime contractors and operators where a driver
contravenes Subclause 256(1), thereby committing an offence against
Subclause 256(2).
Clause 257 makes it an offence for a driver to not keep in his or her
possession a copy of the notice granting work and rest hours exemption,
and prescribes a maximum penalty of $2000 Subclause 257(3) extends
liability to employers, prime contractors and operators if the driver is found
to have contravened 257(1).
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Subclause 257(2) imposes obligations to return permits when they are no
longer needed. A maximum penalty of $2000 applies.
Subclauses 257(4), 256(5) and 257(6) deal with defences and things
relevant or irrelevant to the court's consideration in a prosecution for
offences created by this clause.
Part 6.4 Requirements about record
keeping
Division 1 Preliminary
Clause 258 defines the terms `100km work' and `100+km work' by
reference to the radius, measured from the driver's base, of the area in
which the driver drives. Clause 258 defines what the driver's base is.
Clause 259 defines a driver's `base' in various circumstances. It states that
the base of the driver of a fatigue-regulated heavy vehicle is normally the
place from which the driver works or receives instructions but can be the
garage address of the vehicle or other place where it is normally kept.
Clause 260 defines a `driver's record location'. It states that the record
location of the driver of a fatigue-regulated heavy vehicle is the place
advised to the driver by his or her record-keeper or, if there is no such
advice, the driver's base.
Division 2 Work diary requirements
Subdivision 1 Requirements to carry work diary
Clause 261 provides that Subdivision 1 applies where a driver is or was in
the last 28 days engaged in 100+km work under standard hours, or was
working under BFM or AFM hours.
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Clause 262 states that, for the purposes of Subdivision 1, a work diary is
defined so as to include relevant written or electronic diaries, printouts of
information in electronic diaries and supplementary records.
Clause 263 states that the driver of a fatigue-regulated heavy vehicle must
keep a work diary, ensure its accuracy and have it in his or her possession
while driving a fatigue-regulated heavy vehicle. A maximum penalty of
$6000 applies.
Subclause 263(2) and 263(3) deal with situations irrelevant to the offence
created by Subclause 262(1) and with defences to a prosecution for tis
contravention.
Clause 264 states that the purpose of Subdivision 2 is to state what must be
recorded in the work diary for each day when a driver is engaged in
100+km work under standard hours or works under BFM hours, standard
hours or exemption hours.
Clause 265 states that although all work and rest time falling within a day
must be recorded on that day, a driver may stop recording information for
that day if and when he or she commences a major rest break that extends
from one day to the next.
Clause 266 states that the driver must record certain information in the
diary immediately after starting work. A maximum penalty of $6000
applies. Subclause 266(2) makes it a defence to a charge if the driver was
unaware that he or she would be engaged in 100+km work under standard
hours and records the information as soon as practicable after becoming
aware.
Clause 267 requires certain information to be recorded where there is a
work and rest change. A maximum penalty of $6000 applies. A defence is
provided by Subclause 267(3). Subclause 267(2) deals with the
information which a driver who is party to a two-up driving arrangement
must provide to the other party to the arrangement. A maximum penalty of
$2000 applies.
Clause 268 requires the driver to record the address of the new base and the
time zone of the new base immediately after any change in the driver's base
or record location. A maximum penalty of $6000 applies.
Clause 269 states that the driver, immediately before finishing work on a
day, ensure that all periods of work time and rest time have been recorded.
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Subdivision 3 How information must be recorded in
work diary
Clause 270 states that the purpose of Subdivision 3 is to state how
information required by Subdivision 2 is to be recorded.
Clause 271 explains how information is to be recorded in the driver's
written work diary. A maximum penalty of $2000 applies.
Clause 272 explains how information is to be recorded in the driver's
electronic work diary. A maximum penalty of $2000 applies.
Clause 273 states that the driver must record time according to the time
zone of the driver's base. A penalty of $2000 applies.
Subdivision 4 Requirements about work diaries that
are filled up etc.
Clause 274 states that subdivision 4 applies where a diary, if in written
form, is full, destroyed, lost, stolen or, if electronic, cannot be used because
it is full, destroyed, lost, stolen, out of order or malfunctioning.
Clause 275 states that information must be recorded in a supplementary
record during a period when the circumstances described in clause 274
apply. A maximum penalty of $2000 applies. The driver must record time
in the supplementary record according to the time zone of the driver's base.
A maximum penalty of $6000 applies.
Subclause 275(4) details circumstances where these obligations do not
apply.
Clause 276 states that a driver must notify the Regulator within 2 business
days of his or her written diary being filled up, destroyed, lost or stolen.
The maximum penalty prescribed for contravention of this clause is $4000.
Clause 277 contains an obligation similar to that imposed by clause 275
upon a driver of fatigue-regulated heavy vehicle whose electronic diary is
full, destroyed, lost, stolen or out of order or the driver has reason to
suspect that it is or has been malfunctioning. A maximum penalty of $4000
applies. Subclause 277(2) requires the driver to give the Regulator notice of
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the matter within 2 business days. The maximum penalty prescribed for
contravention of this clause is $4000.
Clause 278 prescribes the steps a driver must take if a written diary that has
been lost or stolen is found. A maximum penalty of $4000 applies.
Clause 279 provides an obligation to notify the Regulator in the
circumstances similar to those described in clause 276. This clause
provides that the driver must notify the driver's record keeper. A maximum
penalty of $4000 applies.
Clause 280 states the obligation on an intelligent access reporting entity to
notify the driver's record keeper if the entity becomes aware or has reason
to suspect that an approved electronic reporting system is malfunctioning
or has malfunctioned. A maximum penalty of $4000 applies.
Clause 281 states what a record keeper must do if an electronic work diary
has been filled up to render it incapable of receiving further information.
Subclause 281(2) requires the record keeper to either make the electronic
work diary capable of recording new information; or give the driver a new
one that is in working order. Maximum penalties of $4000 apply. The
record keeper remains liable even if another person has been engaged for
the task of complying with the provision but that person will also be liable
to the same penalty as the record keeper.
Subclause 281(4) and 281(5) deal with defences to prosecutions for the
offences created by the clause.
Clause 282 provides that where an electronic diary has been destroyed, lost
or stolen, a record keeper must replace it and give the driver any relevant
information which the record keeper has which was in the replaced diary
unless that information is stored in the replacement diary. A maximum
penalty of $4000 applies. The record keeper remains liable even if another
person has been engaged for the task of complying with the provision but
that person will also be liable to the same penalty as the record keeper.
Subclause 282(4) and 282(5) deal with defences to prosecutions for the
offences created by the clause.
Clause 283 states what a record keeper must do if an electronic diary is
reported out of order or malfunctioning. In these circumstances, the record
keeper must rectify the problem, replace the electronic diary or direct the
driver to use a written diary and may need to provide the driver with a
printout of relevant information. A maximum penalty of $4000 applies.
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Under Subclause 283(3), the record keeper remains liable even if another
person has been engaged for the task of complying with the provision but
that person will also be liable to the same penalty as the record keeper.
Subclause 283(4) provides that subclause 283(3) does not apply, however,
where the other person has been engaged only to repair the electronic diary
or bring it into working order.
Subclause 283(5) and 283(6) deal with defences to prosecutions for the
offences created by the clause.
Clause 284 provides that a driver using an electronic work diary must
comply with legal conditions and manufacturer's specifications relating to
the diary. A maximum penalty of $2000 applies. A record keeper must
ensure that the driver using such a diary complies with those conditions or
specifications. A maximum penalty of $2000 applies.
Subclause 284(4) provides a defence to a prosecution for breach of the
duties imposed by the clause on drivers and record keepers.
Subdivision 6 Extended liability
Clause 285 states that liability is imposed on employers, prime contractors,
operators and schedulers where drivers contravene obligations imposed on
them by Divisions 1, 2, 3 or 4. The same penalties apply to them as apply to
the drivers. Subclause 285(3) provides that a mistake of fact defence does
not apply. However, a person charged has the benefit of the reasonable
steps defence.
Division 3 Records relating to drivers
Subdivision 1 Preliminary
Clause 286 states that this Division 3 applies to each record keeper for the
driver of a fatigue-regulated heavy vehicle.
Clause 287 specifies who a driver's record keeper is. The record keeper is
the operator where the driver operates under a BFM or AFM accreditation
or a work and rest hours exemption (permit) granted in combination with
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such an accreditation and, in other cases, is the employer of the
self-employed driver.
Subdivision 2 Record keeping obligations relating
to drivers engaging in 100km work
under standard hours
Clause 288 states that Subdivision 2 applies where a driver of a
fatigue-regulated heavy vehicle engages only in 100km work under
standard hours.
Clause 289 states that the record keeper must record the information
specified in subclause 289(1) within the `prescribed period' referred in
subclause 289(5). A maximum penalty of $6000 applies.
The record keeper remains liable even if another person has been engaged
for the task of complying with the provision but that person will also be
liable to the same penalty as the record keeper.
Subclauses 289(3) and 289(4) deal with defences available in a
prosecution.
Subdivision 3 Record keeping obligations relating
to drivers engaging in 100+km work
under standard hours or operating
under BFM, AFM, or exemption hours
Clause 290 states that Subdivision 3 applies to drivers engaging in 100+km
work or operating under BFM or AFM hours or exemption hours.
Clause 291 states the record keeper's obligations to record information and
to keep documents. A maximum penalty of $6000 applies. The record
keeper must record additional information where the driver is operating
under BFM hours or AFM hours. A maximum penalty of $6000 applies.
The record keeper remains liable even if another person has been engaged
for the task of complying with the provision but that person will also be
liable to the same penalty as the record keeper.
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Subclauses 291(4) and 291(5) deal with defences available in a
prosecution.
Subclause 291(6) provides that the clause does not apply where certain
exemptions are in place.
Clause 292 prescribes general requirements about a driver giving
information to a record keeper. It states that where a driver is required to
record information in a work diary and the driver must provide information
to the record keeper within 21 days after the driving. A maximum penalty
of $2000 applies. The record keeper must ensure that the driver complies
with this obligation. A maximum penalty of $2000 applies.
The record keeper remains liable even if another person has been engaged
for the task of complying with the provision but that person will also be
liable to the same penalty as the record keeper.
Subclauses 292(6) and 292(7) deal with defences available in a
prosecution.
Clause 293 deals with the situation where a driver changes record keepers
and provides obligations on the driver and the new record keeper, together
with penalties and defences, similar to those provided by clause 291 for
drivers, record keepers and those engaged by them.
Clause 294 deals with the situation where a driver stops using an electronic
diary. In such a case, the driver's record keeper must immediately provide a
printout of the information in the electronic diary. A maximum penalty of
$2000 applies.
The record keeper remains liable even if another person has been engaged
for the task of complying with the provision but that person will also be
liable to the same penalty as the record keeper.
Subclauses 294(4) and 294(5) deal with defences available in a prosecution
Subdivision 4 Requirements about records a record
keeper must make or keep
Clause 295 provides that record keepers must retain records for a period of
3 years. A maximum penalty of $6000 applies.
Subclauses 295(2) and 295(3) are concerned with the way in which the
records are to be kept. They must be readily available, readable, reasonably
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capable of being understood and capable of being used in evidence.
Maximum penalties of $2000 apply.
The record keeper remains liable even if another person has been engaged
for the task of complying with the provision but that person will also be
liable to the same penalty as the record keeper. Subclauses 295(5) and
295(6) deal with defences available in a prosecution.
Division 4 Provisions about false
representations relating to work
records
Clause 296 deals with false or misleading entries in a work record. A
maximum penalty of $6000 applies for making such an entry where the
person making it knows or reasonably ought to know that it was false or
misleading.
Clause 297 imposes a prohibition against a driver keeping 2 work diaries
simultaneously. Maximum penalties of $6000 apply.
Clause 298 prohibits drivers and record keepers from possessing things
purporting to be work records which the driver or record keeper, as the case
may be, knows not to be work records. A maximum penalty of $6000
applies.
Clause 299 states that a person must not falsely represent that a work
record was made by the person. A maximum penalty of $6000 applies.
Division 5 Interfering with work records
Subdivision 1 Work records generally
Clause 300 states that a person must not deface or alter a work record
which he or she knows, or reasonably ought to know, to be correct. A
maximum penalty of $6000 applies for noncompliance.
Clause 301 prohibits the making of entries in a work record by persons
unless the person is nominated by the other person to make the entry to do
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so or the person is an authorised officer. A maximum penalty of $6000
applies for noncompliance.
Clause 302 prohibits the destruction of work records required to be kept
under this Part within the period during which they are required to be kept.
A maximum penalty of $6000 applies for noncompliance.
Clause 303 states that it is an offence to remove pages from a written work
diary unless legally required to do so. A maximum penalty of $6000
applies for noncompliance.
Subdivision 2 Approved electronic recording
systems
Clause 304 states that Subdivision 2 applies to an approved electronic
recording system comprising the whole or part of an electronic work diary.
Clause 305 defines `tampering' with an approved electronic recording
system. It includes conduct that may interfere with the functioning of the
system and is not limited to physical contact with a system's hardware.
Clause 306 makes it an offence for a person to tamper with an approved
electronic recording system. Subclause 306(2) states that a person does not
tamper with an approved electronic recording system merely by repairing a
system that is malfunctioning or has malfunctioned. A maximum penalty
of $6000 applies for noncompliance.
Subclauses 306(3), 306(4) and 306(5) deal with defences that are available
to the person charged.
Clause 307 states that a person using an approved electronic recording
system must not permit another person to tamper with it. A maximum
penalty of $6000 applies for noncompliance.
Subclauses 307(2) and 307(3) deal with defences that are available to the
person charged.
Clause 308 provides that where an electronic recording system comprises,
in whole or in part, an approved intelligent transport system, an intelligent
transport reporting entity must not permit another person to tamper with
the system. A maximum penalty of $6000 applies for noncompliance.
Subclauses 308(3) and 308(4) deal with defences available to a person
charged.
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Division 6 Obtaining a written work diary
Clause 309 prescribes the requirements for a written work diary issued by
the Regulator.
Clause 310 states that a driver of a fatigue-regulated heavy vehicle must
apply to the Regulator for a written work diary and specifies the procedures
to be followed, including those applicable to situations where the request
for a diary is to replace one previously issued.
Clause 311 states that the Regulator must issue a written work diary where
the driver follows the procedures specified in this and the preceding clause
and pays the prescribed fee.
Subclause 311(2) and 311(3) deal with information required or permitted
to be noted by the Regulator at the time of issue.
Division 7 Approval of electronic recording
system
Subdivision 1 Approval of electronic recording
system
Clause 312 states that a person must apply, in the approved form, to the
Regulator for approval of an electronic recording system.
Clause 313 states that, as soon as is practicable after receiving an
application, the Regulator must grant, either conditionally or
unconditionally, approval or refuse it.
Subclause 313(2) limits the authority of the Regulator to approve a system
by reference to such considerations as suitability, availability of a
mechanism to alert drivers to malfunctions, accuracy, resistance to
alteration of the information recorded and capability to reproduce that
information.
Subclause 313(3) requires the Regulator to have regard to approved
guidelines (defined in clause 5 as guidelines approved by responsible
Ministers under clause 594) for granting approvals.
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Clause 314 deals with the procedures to be followed by the Regulator after
granting an approval, including the provision of evidence of the approval.
Clause 315 states that if the Regulator refuses an application for approval,
clause 315 requires an information notice to be given to the applicant.
Clause 316 provides that an approval extends to any system identical with
the one approved.
Subdivision 2 Provisions about electronic work
diary labels
Clause 317 states that a label evidencing the approval (an electronic work
diary label) may be placed on an approved electronic recording system but
it is an offence to place such a label or any other label on a system that is
not approved. Maximum penalties of $6000 apply for noncompliance.
Clause 318 provides that the label is evidence of the approval of the
electronic recording system.
Clause 319 states that a person is entitled to rely on the label as indicating
that the device to which it is attached has been approved unless the person
knows or reasonably ought to know that the contrary is the case.
Clause 320 states that a person must not use as an electronic work diary a
device that has attached to it, an electronic work diary label if the person
knows or reasonably ought to know that the device is not approved.
Clause 321 provides that the holder of an approval for an electronic
recording system may apply to the Regulator for its amendment or
cancellation. The Regulator may require further information under
Subclause 321(3) but Subclause 321(4) requires the Regulator to decide the
application as soon as practicable after receiving it.
Subclauses 321(5) and 321(6) require the Regulator to provide information
to the applicant as to how the application has been determined.
Clause 322 states the grounds for amending or cancelling an electronic
recording system approval. If the Regulator decides that there is ground for
an amendment or cancellation, subclauses 322(2) and 322(3) require that
information be provided to the holder of the approval with opportunity to
make representations, which the Regulator is bound to consider before
making a decision.
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Once a decision has been made, the Regulator must provide the holder with
information about it. Subclause 322(5) provides that the amendment or
cancellation takes effect when that information is given or at a later time
stated in the information notice.
Clause 323 provides the Regulator to make amendments of a minor nature
to an electronic recording system approval so as to deal with formal or
clerical matters or amendments which do not adversely affect the holder's
interests.
Clause 324 states that if the Regulator notifies the holder of an approval
that the approval of the electronic recording system has been cancelled, the
holder must remove any electronic work diary label relating to the
approval. A maximum penalty of $6000 applies to a contravention.
Where the Regulator cancels an approval of an electronic recording system,
the Regulator may give the holder a written direction to notify the
cancellation to each person to whom the holder has supplied the electronic
recording system and to require the removal of any electronic work diary
label still in the person's possession. It is an offence not to comply with
such a direction. A maximum penalty of $6000 applies.
If the person receiving the direction has supplied the electronic recording
system to others, that person must, in turn, notify those others, imposing on
them a similar requirement to remove any electronic work diary label still
in their possession. A maximum penalty of $6000 applies for
noncompliance.
Subclause 324(7) provides that nothing in the clause prevents the Regulator
from publishing details of the amendment more widely.
Subclause 324(8) requires any person who is aware that an electronic
recording system approval has been cancelled to remove from any device
in the person's possession any electronic work diary label. A maximum
penalty of $6000 applies.
Clause 325 provides that where the Regulator considers that an amendment
that has been made to the conditions of an approval will or is likely to
significantly affect the way in which the electronic recording system is to
be used, the Regulator may give the holder a written direction to notify the
amendment to each person to whom the holder has supplied the electronic
recording system. It is an offence not to comply with such a direction. A
maximum penalty of $6000 applies. If the person receiving the direction
has supplied the electronic recording system to others, that person must, in
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turn, notify those others. A maximum penalty of $6000 applies. Subclause
325(6) provides that nothing in the clause prevents the Regulator from
publishing details of the amendment more widely.
Division 8 Exemptions from work diary
requirements
Subdivision 1 Exemption for emergency services
Clause 326 contains an exemption from Division 2 (which relates to work
diary requirements) for a person who is acting for an emergency service in
circumstances specified in the clause on the way to, during and returning
from an emergency, as defined in Subclause 326(3).
Subdivision 2 Exemptions by Commonwealth
Gazette notice
Clause 327 empowers the Regulator to publish a notice in the
Commonwealth Gazette to exempt, for a period up to 3 years, drivers
carrying out a class of work from certain electronic work diary
requirements which would otherwise apply.
Clause 328 states the restrictions on the Regulator in relation to the
publication of a notice under clause 325. The Regulator must be satisfied of
certain matters specified in the clause, including safety and the
unreasonableness of requiring compliance with the requirements which
would otherwise apply, and must have regard to guidelines approved by the
responsible Ministers under clause 594.
Clause 329 states that a notice granting an exemption from work diary
requirements may be subject to conditions.
Clause 330 states that a notice granting an exemption from work and rest
hours is in force when the notice is published or a later date specified in the
notice.
Clause 331 contains requirements for a notice granting an exemption from
work diary requirements.
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Clause 332 provides for the amendment of cancellation of a notice granting
an exemption from work diary requirements.
Subdivision 3 Exemption by permit
Clause 333 empowers the Regulator to exempt a driver of fatigue-regulated
heavy vehicles from work diary requirements that would otherwise apply
to the driver.
Clause 334 provides that a driver or employer may apply for an exemption
permit in the approved form. It specifies other requirements for an
application.
Clause 335 imposes restrictions on the Regulator to the grant of a permit
under clause 332. The Regulator must be satisfied that the driver's English
literacy would impede his making the necessary entries and that a nominee
can do so. The Regulator must also have regard to guidelines approved by
the responsible Ministers under clause 594.
Clause 336 provides that a permit granting an exemption from work diary
requirements may be subject to conditions.
Clause 337 states the period during which a permit granting an exemption
from work diary requirements is in force.
Clause 338 states the contents of and, in some cases, information which
must accompany a work diary exemption permit.
Clause 339 states that if the Regulator refuses a permit, clause 339 requires
an information notice to be provided to the applicant.
Clause 340 deals with the amendment or cancellation of a work diary
exemption (permit).
Clause 341 deals with the grounds for amending or cancelling a work diary
exemption (permit) and the procedure to be followed, including
opportunity for and consideration of written representations.
Clause 342 contains a provision for the Regulator to make amendments of
a minor nature to a work diary exemption (permit), so as to deal with
formal or clerical matters or amendments which do not adversely affect the
holder's interests.
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Clause 343 states that where a work diary exemption (permit) is amended
or cancelled, the Regulator may require its return. It is an offence not to
comply with the request and a maximum penalty of $2000 applies. The
Regulator may issue a replacement permit where a permit has been
amended.
Clause 344 states that where a permit is defaced, destroyed, lost or stolen,
the holder must apply to the Regulator for a replacement. A maximum
penalty of $2000 applies for a contravention of this requirement. Clause
344 also deals with the circumstances when the Regulator is to issue such a
replacement and the procedure to be followed if a replacement is not
issued.
Subdivision 4 Operating under work diary
exemption
Clause 345 states that it is an offence not to comply with a condition of an
exemption from work diary requirements. A maximum penalty of $6000
applies.
Clause 346 provides that where a work diary exemption (notice) requires a
driver to keep a document, it is an offence not to do so. A maximum
penalty of $2000 applies.
Clause 347 states that a driver of a fatigue-regulated heavy vehicle
operating under a work diary exemption (permit) must keep a copy of the
permit in the driver's possession. A maximum penalty of $2000 applies.
Division 9 Requirements about odometers
Clause 348 states that an owner of a fatigue-regulated heavy vehicle must
maintain its odometer in accordance with specified Standards. A maximum
penalty of $4000 applies. Subclauses 348(2) and 348(3) deal with defences
to a prosecution.
Clause 349 states that a driver who suspects an odometer to have
malfunctioned must within 2 business days inform each owner of the
fatigue-regulated heavy vehicle, his or her employer and the operator. A
maximum penalty of $4000 applies.
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Subclause 349(3) provides that the driver does not commit an offence if
another driver has provided the necessary information.
Subclause 349(4) extends liability, where a driver is convicted, to the
driver's employer or prime contractor, an operator and a scheduler. A
similar penalty applies to these as applies to the driver. Subclauses 349(5)
and 349(6) deal with defences that are available to a person charged with
an offence under this clause.
Clause 350 provides that an owner must have the odometer examined and
brought into working order as soon as practicable after being informed of
its malfunction. A maximum penalty of $4000 applies. Subclauses 350(3)
and 350(4) deal with defences that are available to a person charged with
an offence under this clause..
Clause 351 states that an employer or operator who has been informed of a
malfunctioning odometer must neither drive nor permit to be driven the
fatigue-related heavy vehicle until the owner has complied with clause 350.
A maximum penalty of $4000 applies. Subclauses 351(3) and 351(4) deal
with defences that are available to a person charged with an offence under
this clause.
Chapter 7 Intelligent access
Part 7.1 Preliminary
Clause 352 describes the main purposes of Chapter 7 as being to ensure the
integrity of systems used for compliance with intelligent access conditions
and to provide for appropriate collecting, keeping and handling of
intelligent access information. Clauses 353 and 354 respectively define the
terms `intelligence access conditions' and `intelligent access information.'
Subclause 352(2) indicates how these purposes are achieved in the Law.
Intelligent access describes a concept by which electronic or technological
means are used to monitor whether vehicles or drivers are complying with
conditions affecting their use of roads. The concept offers advantages to
both participating road users and enforcement personnel because of the
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streamlined alternative it presents to conventional enforcement. This
Chapter provides for the monitoring of intelligent access vehicles (as
defined in clause 354) and the means of ensuring that the systems needed
to effect the monitoring are accurate and secure.
Clause 353 provides that Chapter 7 applies if the Regulator has imposed
specified conditions, called `intelligent access conditions' on a mass or
dimension exemption or if the use of a heavy vehicle under an HML
authority is subject to specified conditions. The term `mass or dimension
exemption' is defined in clause 5 and refers to an exemption from a mass or
dimension requirement granted by the Regulator under a mass or
dimension exemption (notice) under clause 98 or a mass or dimension
exemption (permit) under clause 103. An HML authority relates to an
authorisation to operate at higher mass limits than would otherwise apply
to the vehicle.
Intelligent access conditions require monitoring of such matters as the
areas or roads on which a vehicle travels, the mass of the vehicle when so
travelling, the time of travel or the speed at which the vehicle is travelling.
The monitoring is undertaken by an intelligent access service provider (as
defined in clause 354) by means of an intelligent transport system.
The term `intelligent transport system' is defined in clause 5. It relates to a
system using electronic or other technology, which may be installed on a
vehicle, road or other place to monitor, generate, record, store, display,
analyse, transmit or report information about heavy vehicles, drivers,
operators or others involved in road transport using a heavy vehicle.
Clause 354 defines terms used in Chapter 7.
Part 7.2 Duties and obligations of
operators of intelligent access
vehicles
Clause 355 deals with offences in relation to false or misleading
information given to an intelligent access service provider by an operator.
An intelligent access vehicle, as defined in clause 354, is essentially one
subject to intelligent access conditions. The vehicle's operator enters into
an intelligent access agreement (as defined in clause 354) with an
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intelligent access service provider to monitor compliance with those
conditions. The provider is certified for the purpose by Transport
Certification Australia Ltd (called TCA in the Law), which is a public
company established for the purpose and with a membership comprising
relevant Commonwealth, State and Territory agencies.
Subclause 355(1) makes it an offence for the operator of an intelligent
access vehicle to give to an intelligent access service provider with whom
the operator has entered into an intelligent access agreement (as defined in
clause 354) for the vehicle information relevant to the operation of that
vehicle which the operator knows or ought reasonably to know is false or
misleading. A maximum penalty of $6000 applies. However, no offence is
committed if the operator gives the information in writing and, when giving
the information, informs the service provider as best able how the
information is false or misleading and, if reasonably possible, gives the
correct information in writing.
Subclause 355(4) deals with the situation where the operator of a heavy
vehicle intends to enter into an intelligent access agreement with a service
provider. It is an offence for the operator to give to the provider
information that the operator knows or ought reasonably to know is false or
misleading and intends that the service provider will enter into the
agreement in reliance on that information. A maximum penalty of $6000
applies. However, no offence is committed if the operator gives the
information in writing and, when giving the information, informs the
service provider as best able how the information is false or misleading
and, if reasonably possible, gives the correct information in writing.
Subclause 355(6) deals with what may be stated in a charge for an offence
against either subclause 355(1) or 355(4).
Clause 356 requires the operator of an intelligent access vehicle to take all
reasonable steps to give the driver of the vehicle specified information
about the collection of information by an intelligent access service provider
before the vehicle begins a journey. A maximum penalty of $6000 applies
for noncompliance.
Subclauses 356(2) and 356(3) deal with how the operator can comply with
the requirement.
Clause 357 states that an operator must immediately report to the
Regulator a malfunction of a part of an approved intelligent access system
fitted to the intelligent access vehicle. A maximum penalty of $3750
applies for noncompliance.
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The operator is required to keep for a period of at least 4 years written
records of such reports, containing specified particulars. A maximum
penalty of $3750 applies for noncompliance.
Clause 358 requires the operator of an intelligent access vehicle to take all
reasonable steps to advise the driver, before the vehicle begins a journey, of
the driver's obligation under clause 359 (relating to reporting
malfunctioning of the intelligent access system to the operator) and how
the driver can discharge that obligation. Subclauses 358(2) and 358(3) deal
with how the operator can comply with the requirement.
Part 7.3 Obligations of drivers of
intelligent access vehicles
Clause 359 states that the driver of an intelligent access vehicle must
immediately report to the operator a malfunction of a part of an approved
intelligent access system fitted to the vehicle. A maximum penalty of
$3750 applies for noncompliance.
The driver is required to keep for a period of at least 4 years written records
of such reports, containing specified particulars. A maximum penalty of
$3750 applies for non-compliance.
However, subclause 359(3) provides that it is not an offence for the driver
to fail to report if another driver has reported the malfunction.
Part 7.4 Powers, duties and obligations of
intelligent access service
providers
Clause 360 authorises an intelligent access service provider to collect and
hold information for the purposes of relevant monitoring of an intelligent
access vehicle.
Clause 361 imposes on the intelligent access service provider an obligation
to take all reasonable steps to ensure that information collected is
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appropriate, is not excessive, and is accurate, complete and up to date. A
maximum penalty of $3750 applies for noncompliance.
A further obligation is imposed under subclause 361(2) to take all
reasonable steps to ensure that the collection of information does not
intrude to an unreasonable extent on the personal privacy of an individual
to whom it relates. A maximum penalty of $3750 applies for
noncompliance.
Clause 362 requires the intelligent access service provider to keep records
of the intelligent access information collected in such a way as to allow the
records to be conveniently and properly audited by an intelligent access
auditor. A maximum penalty of $6000 applies for non-compliance.
An intelligent access auditor is defined in clause 5 as a person engaged by
TCA for auditing activities conducted by intelligent access service
providers.
Clause 363 imposes obligations on an intelligent access service provider to
protect intelligent access information. It states that a provider must take all
reasonable steps to protect the information collected from unauthorised
access, unauthorised use, misuse, loss, modification or unauthorised
disclosure. A maximum penalty of $6000 applies for noncompliance.
Clause 364 states that an intelligent access service provider must make a
document setting out its policies as to how it manages personal information
publicly available. A maximum penalty of $6000 applies for
noncompliance.
Under subclause 364(2), the provider must also, if requested by an
individual about whom the provider holds personal information, provide
specified information to the individual within 28 days after receiving the
request if the provider can reasonably do so. A maximum penalty of $6000
applies for noncompliance.
However, subclause 364(3) clarifies that the provider is not required to
inform the individual of any reports made by the provider to the Regulator
under clauses 373 or 374 of relevant contraventions or of tampering or
suspected tampering with an approved intelligent transport system.
Clause 365 imposes an obligation on an intelligent access service provider
who holds personal information about an individual to give the individual
access to that information upon request, without cost or undue delay. A
maximum penalty of $6000 applies for noncompliance.
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Note that personal information is defined in clause 5 to mean information
or an opinion, including such information forming part of a database
(whether true or not and whether recorded in a material form or not) about
an individual whose identity is apparent or can reasonably be found out
from the information or opinion. However, for it to be personal
information under Chapter 7 it must be such personal information that is
intelligent access information or otherwise collected for the purposes of
Chapter 7, as set out in the definition in clause 354.
Subclause 365(2) clarifies that the intelligent access service provider is not
required to give the individual access to any reports made by the provider
to the Regulator under clauses 373 or 374 of relevant contraventions or of
tampering or suspected tampering with an approved intelligent transport
system.
Clause 366 deals with the making of changes to personal information held
about an individual upon request by that individual.
Subclause 366(2) imposes an obligation on the intelligent access service
provider to make the requested change if the provider is satisfied that it is
appropriate to do so to ensure the accuracy, completeness and currency of
the information. A maximum penalty of $3,750 applies for noncompliance.
If the provider is not satisfied as to the appropriateness of the requested
change, it may refuse the request. In that case, it must notify the individual
of its reasons for refusing and of the individual's right to request the
provider to attach to or include with the information the individual's
request for a change to the information or a record of it. If the individual
makes that request, the provider must do so. A maximum penalty of $3750
applies for not notifying the individual or not complying with the
individual's request to attach the individual's request for a change to the
information or a record of it.
Clause 367 creates an offence for an intelligent access service provider to
use or disclose intelligent access information other than as required or
authorised under this Law or another law. A maximum penalty of $6000
applies.
As well as protection of an individual's personal information, this clause
also seeks to protect information generated, recorded, stored, displayed,
analysed, transmitted or reported by an approved intelligent transport
system which is commercially sensitive or which relates to an individual's
or an operator's business affairs from improper disclosure.
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Clause 368 requires an intelligent access service provider to give an
intelligent access auditor access to the records kept for the purposes of this
Chapter. A maximum penalty of $6000 applies for noncompliance.
Clause 369 specifies how an intelligent access service provider may use
and disclose intelligent access information.
Subclause 369(1) authorises the service provider to use the information
collected for monitoring the relevant monitoring matters for an intelligent
access vehicle. The term `relevant monitoring matters' is defined in clause
354 and relates to monitoring of a relevant vehicle's compliance with
intelligent access conditions (as defined in clause 353).
Subclause 369(2) authorises the service provider to disclose the
information to the Regulator or an authorised officer for compliance
purposes. The term `compliance purposes' is defined in clause 5 to mean
monitoring purposes or investigation purposes (both of which are also
defined in clause 5).
Subject to subclause 369(4), subclause 369(3) authorises the service
provider to disclose the information to an operator, where that information
is about the operator.
Subclause 369(4) provides that the provider is not required to disclose to
operators information relating to noncompliance reports. A
`noncompliance report' is defined in clause 354 as a report made by an
approved intelligent transport system that reports a relevant contravention
for an intelligent access vehicle and/or apparent tampering with or
malfunctioning of the system.
Subclause 369(5) authorises disclosure to other parties of information
about an operator if the operator gives written consent and the information
does not identify or enable the identification of an individual other than the
operator.
Subclause 369(6) authorises the use and disclosure of personal information
about an individual if the individual gives written consent.
The whole of clause 369 is, by reason of subclause 369(7), subject to
clause 375. That clause expressly restricts the disclosure of information
about tampering or suspected tampering with an approved intelligent
transport system to any entity, other than disclosure to the Regulator.
Clause 370 imposes obligations on an intelligent access service provider
who uses or discloses intelligent access information to make a record of the
use or disclosure within 7 days. The record must contain the information
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specified in subclause 370(2) and must be in a form to enable it to be
readily accessible by an intelligent access auditor at the place where it is
kept. A maximum penalty of $6000 applies for noncompliance. Under
subclause 370(3) the record must be retained for at least 2 years, and a
maximum penalty of $6,000 applies for noncompliance.
Clause 371 states that where an intelligent access system generates a
noncompliance report (as defined in clause 354), the intelligent access
service provider is required to retain a copy of the report and the
information relied on to make the report for at least 4 years. A maximum
penalty of $4000 applies for noncompliance.
Clause 372 imposes obligations on the intelligent access service provider
to destroy specified information, except in the case of a noncompliance
report and supporting information that the provider is required to keep
under clause 371. The provider must take all reasonable steps to destroy
intelligent access information within 1 year of its collection. In addition,
the provider must take all reasonable steps to destroy a record of the
provider's use or disclosure of intelligent access information made under
clause 370 within 1 year after the expiry of the time that the record is
required be kept under clause 379. A maximum penalty of $6000 applies
for noncompliance.
Clause 373 provides that an intelligent access service provider must give
the Regulator a report in the approved form within 7 days of knowing of a
relevant contravention for an intelligent access vehicle. The term `approved
form' is defined in clause 5 to mean a form approved by the Regulator
under clause 671. The term `relevant contravention' is defined in clause
354. A maximum penalty of $6000 applies for non-compliance. Subclause
373(3) deems the access service provider to know of a relevant
contravention if it has been detected by the provider's monitoring
equipment.
Clause 374 imposes obligations on an intelligent access service provider
who knows or has reasonable grounds to suspect tampering with an
intelligent transport system to report the matter to the Regulator within 7
days and in the approved form (defined in clause 5 to mean a form
approved by the Regulator under clause 671). A maximum penalty of
$6000 applies for noncompliance.
Subclause 374(2) clarifies that a provider is not taken to know or have
reasonable grounds to suspect tampering merely because the provider has
accessed a report made by the system indicating that apparent tampering
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has been detected electronically or has analysed information generated by
the system. This provision recognises that the provider will usually need to
check and analyse such reports because there could be malfunctions or
other innocent causes to account for what the system has detected or
generated.
Clause 375 restricts an intelligent access service provider who knows of or
has reasonable grounds to suspect tampering with an approved intelligent
transport system disclosing that knowledge or suspicion or information
from which that knowledge or suspicion could be reasonably inferred.
Disclosure of such matters can only be made to the Regulator, unless such
disclosure is authorised under another law. A maximum penalty of $6000
applies for noncompliance.
As with subclause 374(2), subclause 375(2) clarifies that a provider is not
taken to know or have reasonable grounds to suspect tampering merely
because the provider has accessed a report made by the system indicating
that apparent tampering has been detected electronically or has analysed
information generated by the system.
Subclause 375(3) prohibits a provider who has reported to the Regulator
under clause 374 of apparent or suspected tampering from disclosing that
the report has been made or information from it could be reasonably
inferred that the report has been made. Disclosure of such matters can only
be made to the Regulator, unless such disclosure is authorised under
another law. A maximum penalty of $6000 applies for noncompliance.
Part 7.5 Functions, powers, duties and
obligations of TCA
Clause 376 protects TCA from criminal liability by reason only of its
contravention of the following provisions:
· subclause 379(1) or 379(2) - relating to collecting intelligent access
information;
· clause 380 - relating to protecting intelligent access information
collected;
· subclauses 381(1) or 381(2) - relating to making individuals aware of
personal information held;
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· subclause 382(1) - relating to giving individuals access to their
personal information;
· subclauses 383(2) or 383(4) - relating to correcting or making
changes to personal information requested by an individual;
· clause 386 - restricting use or disclosure of intelligent access
information;
· subclauses 387(1) or 387(3) - keeping records of the use or disclosure
of intelligent access information;
· clause 388 - relating to keeping noncompliance reports;
· subclause 389(1) - relating to destroying intelligent access
information or removing personal information from it;
· subclause 390(1) - relating to reporting tampering or suspected
tampering with, or malfunction or suspected malfunction of, an
approved intelligent transport system to the Regulator; and
· subclauses 391(1) or 391(3) - restricting the disclosure of information
about tampering or suspected tampering with an approved intelligent
transport system.
Clause 377 sets out the functions of TCA as approving intelligent transport
systems, certifying service providers, and auditing the activities of those
certified.
Clause 378 authorises TCA to collect and hold intelligent access
information for discharging its functions and for law enforcement
purposes.
Clause 379 requires TCA to take all reasonable steps to ensure that the
information it collects is necessary, is not excessive, and is accurate,
complete and up to date.
It must also take all reasonable steps to ensure that the collection of
information does not intrude to an unreasonable extent on the personal
privacy of an individual to whom the information relates.
Clause 380 requires TCA to take all reasonable steps to protect the
information collected from unauthorised access, unauthorised use, misuse,
loss, modification or unauthorised disclosure.
Clause 381 states that TCA must make a document setting out its policies
as to how it manages personal information publicly available.
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Under subclause 381(2), TCA must also, if requested by an individual
about whom it holds personal information, provide specified information to
the individual within 28 days after receiving the request if it can reasonably
do so.
However, subclause 381(3) clarifies that TCA is not required to inform the
individual of any reports made under the following clauses:
· 373 - being a report by an intelligent access service provider to the
Regulator relating to relevant contraventions for an intelligent access
vehicle;
· 374 - being a report by an intelligent access service provider to the
Regulator relating to tampering or suspected tampering with an
approved intelligent transport system;
· 390 - being a report by TCA to the Regulator relating to tampering or
suspected tampering with, or malfunction or suspected malfunction
of, an approved intelligent transport system;
· 403 - being a report by an intelligent access auditor to TCA relating to
contraventions by an intelligent access service provider; and
· 404 - being a report by an intelligent access auditor to the Regulator
or TCA relating to tampering or suspected tampering with an
approved intelligent transport system.
Clause 382 states that upon request by an individual in relation to whom
TCA holds personal information, TCA must give the individual access to
the information without cost or undue delay.
Note that personal information is defined in clause 5 to mean information
or an opinion, including such information forming part of a database
(whether true or not and whether recorded in a material form or not) about
an individual whose identity is apparent or can reasonably be found out
from the information or opinion. However, for it to be personal
information under Chapter 7 it must be such personal information that is
intelligent access information or otherwise collected for the purposes of
Chapter 7, as set out in the definition in clause 354.
However, subclause 381(3) clarifies that TCA is not required to inform the
individual of any reports made under the following clauses:
· 373 - being a report by an intelligent access service provider to the
Regulator relating to relevant contraventions for an intelligent access
vehicle;
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· 374 - being a report by an intelligent access service provider to the
Regulator relating to tampering or suspected tampering with an
approved intelligent transport system;
· 390 - being a report by TCA to the Regulator relating to tampering or
suspected tampering with, or malfunction or suspected malfunction
of, an approved intelligent transport system;
· 403 - being a report by an intelligent access auditor to TCA relating to
contraventions by an intelligent access service provider; and
· 404 - being a report by an intelligent access auditor to the Regulator
or TCA relating to tampering or suspected tampering with an
approved intelligent transport system.
Clause 383 deals with the making of changes to personal information held
about an individual upon request by that individual.
Subclause 383(2) imposes an obligation on TCA to make the requested
change if satisfied that it is appropriate to do so to ensure the accuracy,
completeness or currency of the information.
Subclauses 383(3) and 383(4) state that, if TCA is not satisfied as to the
appropriateness of the requested change, it may refuse the request. In that
case, it must notify the individual of its reasons for refusing and of the
individual's right to request TCA to attach to or include with the
information the individual's request for a change to the information or a
record of it. If the individual makes that request, TCA must do so.
Clause 384 creates an offence for TCA to use or disclose intelligent access
information other than as required or authorised under this Law or another
law. A maximum penalty of $6000 applies.
As well as protection of an individual's personal information, this clause
also seeks to protect information generated, recorded, stored, displayed,
analysed, transmitted or reported by an approved intelligent transport
system which is commercially sensitive or which relates to an individual's
or an operator's business affairs from improper disclosure.
Clause 385 specifies how TCA may use and disclose intelligent access
information.
Subclause 385(1) authorises TCA to use or disclose the information for the
discharge of its functions (set out in clause 377) or for law enforcement
purposes. The term `law enforcement purposes' is defined in clause 354
and refers to the investigation or prosecution of an offence against an
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Australian road law (defined in clause 5 to mean this Law or another law of
a State or Territory that regulates the use of vehicles on roads).
Subclause 385(2) authorises TCA to disclose the information to the
Regulator, if satisfied the information is relevant to the Regulator's
functions under this Law. The Regulator's functions are set out in clause
600.
Subclause 385(3) authorises TCA to disclose the information to an
intelligent access auditor, if satisfied the information is relevant to an
intelligent access audit being conducted.
Subclause 385(4) authorises TCA to disclose the information to the
operator of an intelligent access vehicle, where that information is about
the operator.
Subclause 385(5) authorises disclosure to other parties of information
about an operator if the operator gives written consent and the information
does not identify or enable the identification of an individual other than the
operator.
Under subclause 385(6), TCA may use or disclose information for research
purposes if no personal information is involved.
Subclause 385(7) authorises the use and disclosure of personal information
about an individual if the individual gives written consent.
The whole of clause 385 is, by reason of subclause 385(8), subject to
clause 391. That clause expressly restricts the disclosure of information
about tampering or suspected tampering with an approved intelligent
transport system to any entity, other than disclosure to the Regulator.
Clause 386 states that TCA may use or disclose information only if it is
reasonably satisfied that the information is accurate, complete and up to
date.
Clause 387 imposes obligations on TCA, if it uses or discloses intelligent
access information, to make a record of the use or disclosure within 7 days.
The record must contain the information specified in subclause 387(2) and
must be in a form to enable it to be readily accessible by an authorised
officer at the place where it is kept. Under subclause 387(3) the record must
be retained for at least 2 years.
Clause 388 provides that where TCA receives a noncompliance report, it is
required to retain the report for at least 4 years. The term `noncompliance
report' is defined in clause 354 to mean a report made by an approved
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intelligent transport system of a relevant contravention for an intelligent
access vehicle and/or apparent tampering with, or malfunctioning of, the
system.
Clause 389 imposes obligations on TCA to destroy intelligent access
information collected by it or to remove personal information from it,
except in the case of a noncompliance report that TCA is required to keep
under clause 388.
Subclause 389(1) requires TCA to take all reasonable steps to destroy
information collected 1 year after collection unless the information is
required for law enforcement purposes. If it is required for law
enforcement purposes, the obligation to take all reasonable steps to destroy
the information applies when it is no longer required for those purposes.
Under subclause 389(2), TCA will be taken to have complied with
subclause 389(1) if it permanently removes from that information anything
by which an individual can be identified.
Clause 390 states that if TCA knows of or has reasonable grounds to
suspect tampering with or malfunctioning of an intelligent transport system
fitted to a vehicle, it must report the matter to the Regulator within 7 days.
Subclause 390(2) clarifies that TCA is not taken to know or have
reasonable grounds to suspect tampering or malfunctioning merely because
it has accessed a report made by the system indicating that apparent
tampering or malfunctioning has been detected electronically or because it
has analysed information generated by the system. This provision
recognises that TCA will usually need to check and analyse such reports
because there could be innocent causes to account for what the system has
detected or generated.
Clause 391 restricts TCA, if it knows of or has reasonable grounds to
suspect tampering with an approved intelligent transport system, from
disclosing that knowledge or suspicion or information from which that
knowledge or suspicion could be reasonably inferred. Disclosure of such
matters can only be made to the Regulator, unless such disclosure is
authorised under another law.
As with subclause 390(2), subclause 391(2) clarifies that TCA is not taken
to know or have reasonable grounds to suspect tampering merely because it
has accessed a report made by the system indicating that apparent
tampering has been detected electronically or has analysed information
generated by the system.
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Subclause 391(3) prohibits TCA, if it has reported to the Regulator under
clause 390 of apparent or suspected tampering from disclosing that the
report has been made or information from it could be reasonably inferred
that the report has been made. Disclosure of such matters can only be
made to the Regulator, unless such disclosure is authorised under another
law.
Part 7.6 Powers, duties and obligations of
intelligent access auditors
Clause 392 sets out that an intelligent access auditor is authorised to collect
and hold intelligent access information for conducting an intelligent access
audit. An intelligent access auditor is defined in clause 5 as a person
engaged by TCA for auditing activities conducted by intelligent access
service providers. An intelligent access audit is defined in clause 354.
Clause 393 imposes on an intelligent access auditor an obligation to take
all reasonable steps to ensure that the information it collects is necessary, is
not excessive, and is accurate, complete and up to date . A maximum
penalty of $3750 applies for noncompliance.
A further obligation is imposed under subclause 393(2) to take all
reasonable steps to ensure that the collection of information does not
intrude to any unreasonable extent on the personal privacy of an individual
to whom it relates. A maximum penalty of $3750 applies for
noncompliance.
Clause 394 states that an intelligent access auditor must also take all
reasonable steps to protect the information collected from unauthorised
access, unauthorised use, misuse, loss, modification or unauthorised
disclosure. A maximum penalty of $6000 applies for noncompliance.
Clause 395 provides, in subclause 395(1) that an intelligent access auditor
must, if it is reasonably practicable to do so, within 28 days of a request by
an individual about whom the auditor holds personal information, give
specified information to that individual. A maximum penalty of $6,000
applies for noncompliance.
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Subclause 395(2) clarifies that nothing in subclause 395(1) requires the
auditor to inform the individual of any reports made under the following
clauses:
· 373 - being a report by an intelligent access service provider to the
Regulator relating to relevant contraventions for an intelligent access
vehicle;
· 374 - being a report by an intelligent access service provider to the
Regulator relating to tampering or suspected tampering with an
approved intelligent transport system;
· 390 - being a report by TCA to the Regulator relating to tampering or
suspected tampering with, or malfunction or suspected malfunction
of, an approved intelligent transport system;
· 403 - being a report by an intelligent access auditor to TCA relating to
contraventions by an intelligent access service provider; and
· 404 - being a report by an intelligent access auditor to the Regulator
or TCA relating to tampering or suspected tampering with an
approved intelligent transport system.
Clause 396 imposes an obligation on an intelligent access auditor who
holds personal information about an individual to give the individual access
to that information upon request, without cost or undue delay. A maximum
penalty of $6000 applies for noncompliance.
Subclause 396(2) clarifies that nothing in subclause 396(1) requires the
auditor to give the individual access to any reports made under the
following clauses:
· 373 - being a report by an intelligent access service provider to the
Regulator relating to relevant contraventions for an intelligent access
vehicle;
· 374 - being a report by an intelligent access service provider to the
Regulator relating to tampering or suspected tampering with an
approved intelligent transport system;
· 390 - being a report by TCA to the Regulator relating to tampering or
suspected tampering with, or malfunction or suspected malfunction
of, an approved intelligent transport system;
· 403 - being a report by an intelligent access auditor to TCA relating to
contraventions by an intelligent access service provider; and
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· 404 - being a report by an intelligent access auditor to the Regulator
or TCA relating to tampering or suspected tampering with an
approved intelligent transport system.
Clause 397 deals with the making of changes to personal information held
about an individual upon request by that individual.
Subclause 397(2) imposes an obligation on the intelligent access auditor to
make the requested change if the auditor is satisfied that it is appropriate to
do so to ensure the accuracy, completeness and currency of the
information. A maximum penalty of $3,750 applies for noncompliance.
If the auditor is not satisfied as to the appropriateness of the requested
change, it may refuse the request. In that case, it must notify the individual
of its reasons for refusing and of the individual's right to request the auditor
to attach to or include with the information the individual's request for a
change to the information or a record of it. If the individual makes that
request, the auditor must do so. A maximum penalty of $3750 applies for
not notifying the individual or not complying with the individual's request
to attach the individual's request for a change to the information or a record
of it.
Clause 398 creates an offence for an intelligent access auditor to use or
disclose intelligent access information other than as required or authorised
under this Law or another law. A maximum penalty of $6000 applies.
As well as protection of an individual's personal information, this clause
also seeks to protect information generated, recorded, stored, displayed,
analysed, transmitted or reported by an approved intelligent transport
system which is commercially sensitive or which relates to an individual's
or an operator's business affairs from improper disclosure.
Clause 399 specifies how an intelligent access auditor may use and
disclose intelligent access information.
Subclause 399(1) states that an auditor may use and disclose the
information collected for the following purposes:
· conducting an intelligent access audit (as defined in clause 354);
· reporting to TCA relevant contraventions by an intelligent access
vehicle, tampering or suspected tampering with an approved transport
system by an operator or by an intelligent access service provider, and
a failure by an intelligent access service provider to comply with the
provider's obligations under this Chapter.
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Subclause 399(2) authorises the auditor to disclose the information to the
Regulator, if satisfied the information is relevant to the Regulator's
functions under this Law. The Regulator's functions are set out in clause
600.
Subclause 399(3) authorises the auditor to disclose the information to
TCA, if satisfied the information is relevant to TCA's functions under this
Chapter. TCA's functions are set out in clause 377.
Subclause 399(4) authorises the auditor to disclose the information to the
operator of an intelligent access vehicle, where that information is about
the operator.
Subclause 399(5) authorises the use and disclosure of personal information
about an individual if the individual gives written consent.
The whole of clause 399 is, by reason of subclause 399(6), subject to
clause 405. That clause expressly restricts the disclosure of information
about tampering or suspected tampering with an approved intelligent
transport system to any entity, other than disclosure to the Regulator.
Clause 400 provides that an auditor must not use or disclose information
unless it is reasonably satisfied that the information is accurate, complete
and up to date. A maximum penalty of $6000 applies for noncompliance.
Clause 401 imposes obligations on an intelligent access auditor who uses
or discloses intelligent access information to make a record of the use or
disclosure within 7 days. The record must contain the information
specified in subclause 401(2) and must be in a form to enable it to be
readily accessible by an authorised officer at the place where it is kept. A
maximum penalty of $6000 applies for noncompliance. Under subclause
401(3) the record must be retained for at least 2 years, and a maximum
penalty of $6000 applies for noncompliance.
Clause 402 states that an intelligent access auditor is required to take all
reasonable steps to destroy information held by the auditor if it is no longer
required for an intelligent access audit. A maximum penalty of $6000
applies for noncompliance.
Under subclause 402(2), an auditor will be taken to have complied with the
requirement if the auditor permanently removes anything by which an
individual can be identified from the information.
Clause 403 requires an auditor who knows or has reasonable grounds to
suspect that an intelligent access service provider has contravened an
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obligation under this Chapter to, as soon as practicable, report the matter to
TCA. A maximum penalty of $6000 applies for noncompliance.
Clause 404 imposes an obligation on an auditor knows or has reasonable
grounds to suspect tampering with an intelligent transport system to, as
soon as practicable, report the matter to the Regulator (where an operator is
known or suspected) or to TCA (where an intelligent access service
provider is known or suspected). A maximum penalty of $6000 applies for
noncompliance.
Clause 405 restricts an intelligent access auditor who knows of or has
reasonable grounds to suspect tampering with an approved intelligent
transport system disclosing that knowledge or suspicion or information
from which that knowledge or suspicion could be reasonably inferred.
Disclosure of such matters can only be made to the Regulator or TCA,
unless such disclosure is authorised under another law. A maximum
penalty of $6000 applies for noncompliance.
Subclause 405(2) prohibits an auditor who has reported to the Regulator or
TCA under clause 404 of apparent or suspected tampering from disclosing
that the report has been made or information from it could be reasonably
inferred that the report has been made. Disclosure of such matters can only
be made to the Regulator or TCA, unless such disclosure is authorised
under another law. A maximum penalty of $6000 applies for
noncompliance.
Part 7.7 Other provisions
Clause 406 creates an offence, in subclause 406(1) to tamper with an
intelligent transport system with the intention of causing it to fail to
generate, record, store, display, analyse, transmit or report intelligent
access information or to fail to do so correctly. A penalty of $6000 applies.
Subclause 406(2) creates an offence to engage in the same conduct when
the person is negligent or reckless rather than intentional in that conduct. A
maximum penalty of $3750 applies.
Subclause 406(3) provides an extended definition of fail for the purposes of
this clause.
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Clause 407 empowers the Regulator to issue a distinguishing number
(which may consist of numbers or letters or a combination of both) for an
intelligent access vehicle to identify it as such a vehicle. This is called an
intelligent access identifier. An entity who knows the identifier and is able
to associate it with a particular individual must treat it as personal
information for the purposes of this Chapter or a law relating to privacy.
Chapter 8 Accreditation
Part 8.1 Preliminary
Clause 408 states that the purpose of accreditation under this Law is to
allow operators of heavy vehicles who implement management systems
that achieve the objectives of particular aspects of this Law to be subject to
alternative requirements under this Law in relation to those aspects.
Clause 409 provides definitions for terms used in Chapter 8.
Part 8.2 Grant of heavy vehicle
accreditation
Clause 410 empowers the Regulator to grant an operator of a heavy vehicle
the following types of accreditation for a period of not more than 3 years:
· maintenance management accreditation, exempting the vehicle from
the requirement to be inspected before the vehicle may be registered
under this Law;
· mass management accreditation, allowing the vehicle to operate at
concessional mass limits or higher mass limits;
· BFM accreditation, allowing drivers of the vehicle to operate under
BFM hours (which are defined in clause 223); and
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· AFM accreditation, allowing drivers of the vehicle to operate under
AFM hours (which are defined in clause 227).
Clause 411 prescribes formal requirements for making an application for
heavy vehicle accreditation.
Subclause 411(2) deals with the form of the application and what must
accompany it. This includes a statement that the applicant has a relevant
management system (defined in clause 409 to be one relevant to the type of
accreditation sought) for ensuring compliance with the relevant standards
and business rules (defined in clause 409 to be those relevant to the type of
accreditation sought, which are approved by the responsible Ministers
under clause 595) and a statement from an approved auditor (being a
person defined in clause 409 to be an auditor of a class approved by the
responsible Ministers under clause 595) that the applicant's management
system will ensure compliance with those standards and business rules.
Subclause 411(3) requires the application to be accompanied by a
declaration specifying various matters relevant to whether the applicant or
an associate of the applicant has been convicted of specified offences and
whether the applicant or an associate of the applicant has had their
accreditation amended, suspended or cancelled. The term `associate' is
defined in clause 5 so as to include a number of individuals and
corporations having a personal, employment or business relationship with
the applicant.
Subclause 411(4) clarifies that the declaration does not need to include
information about an amended, suspended or cancelled accreditation that
occurred because of a conviction that the operator is not required to
declare.
Subclause 411(5) empowers the Regulator to require additional
information or verify information by statutory declaration.
Clause 412 provides for the obtaining of criminal history information
about an application for heavy vehicle accreditation. The Regulator may,
by notice, request an applicant for written consent to obtain the applicant's
prescribed criminal history (defined in sub-clause 412(6) as information
about any conviction of the applicant within the previous 5 years of an
offence against this Law or a previous corresponding law, as defined in
clause 5, or an offence involving fraud or dishonesty punishable by
imprisonment of 6 months or more). If the consent is not forthcoming or is
withdrawn, the application is taken to have been withdrawn. If the written
consent is given, the Regulator may request a written report from a police
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commissioner and such request may include specified particulars. The
police commissioner must give the requested report to the Regulator.
Clause 413 limits the Regulator's power to grant a heavy vehicle
accreditation.
Under subclause 49(1) the Regulator may only grant the accreditation if
satisfied as to the applicant's systems for operating under the accreditation,
ability to comply with the Law and suitability for accreditation. Where the
application is for AFM accreditation, the Regulator must also be satisfied
that the applicant's AFM fatigue management system and the maximum
work times and minimum rest times that are to apply would safely manage
the risk of driver fatigue if complied with, that the applicant and drivers
operating under the accreditation are likely to consistently and effectively
follow the driver fatigue management practices, and the drivers are likely to
comply with the maximum work and minimum rest times.
Subclause 413(2) deals with further matters that the Regulator must be
satisfied of or have regard to in setting the maximum work times and
minimum rest times that are to apply to drivers operating under AFM
accreditation.
Subclause 413(3) makes it clear that, for an AFM accreditation, the
Regulator may set maximum work and minimum rest times different from
those sought by the applicant.
Subclause 413(4)(a) specifies matters the Regulator may consider in
deciding an application and subclause 413(4)(b) requires the Regulator to
have regard to the approved guidelines (defined in clause 5 as guidelines
approved by responsible Ministers under clause 594) for granting heavy
vehicle accreditations under this Law.
Clause 414 states that a heavy vehicle accreditation is subject to the
condition that the applicant must comply with the relevant standards and
business rules (approved by the responsible Ministers) and may be subject
to such other conditions as the Regulator may impose.
Clause 415 provides that the heavy vehicle accreditation may be for such
period as is stated in the accreditation certificate (issued by the Regulator
under clause 416), which may be less than the period the applicant sought.
Clause 416 states that if a heavy vehicle accreditation is granted, the
Regulator must give the applicant an accreditation certificate containing the
information set out in subclause 416(2). Where the accreditation is subject
to conditions not sought by the applicant, granted for a period less than the
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period the applicant sought, or for AFM accreditation sets maximum work
and minimum rest times different from those sought by the applicant, the
Regulator must also give the applicant an information notice. An
information notice is defined in clause 5 as a notice stating the decision, the
reasons for the decision and the review and appeal information (also
defined in clause 5) for the decision.
Clause 417 states that if the Regulator refuses an application, an
information notice must be given to the applicant. An information notice is
defined in clause 5 as a notice stating the decision, the reasons for the
decision and the review and appeal information (also defined in clause 5)
for the decision.
Clause 418 deals with maintenance management accreditation and mass
management accreditation. It states that the Regulator must issue an
accreditation label for each vehicle currently operating under the relevant
accreditation. The requirement of a label for a participating vehicle is an
important aid to enforcement because it enables ready recognition of the
vehicles that are covered by the relevant accreditation. It also offers
significant advantage to operators and drivers in that those vehicles that
have an accreditation label attached should not be subjected to the delays
associated with maintenance and mass checks that might otherwise occur.
Part 8.3 Operating under heavy vehicle
accreditation
Clause 419 requires the holder of a BFM accreditation or AFM
accreditation to comply with the conditions of the accreditation. A
maximum penalty of $6000 applies.
Clause 420 imposes obligations in relation to the driver carrying
accreditation details.
Subclause 420(1) requires the driver of a vehicle operating under a heavy
vehicle accreditation to keep in the driver's possession a copy of the
accreditation certificate and a document signed by the operator stating that
the driver is operating under the accreditation, has been inducted into the
operator's relevant management system and meets the requirements
applying to drivers under the accreditation (if any). In the case of a driver
operating under AFM accreditation, this also includes a document stating
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the AFM hours (defined in clause 227) applying under the accreditation. A
maximum penalty of $2000 applies.
Subclause 420(3) provides that if the driver commits an offence against
subclause 420(1), so does the operator, to whom a like penalty applies.
Extending liability for the driver's non-compliance to the operator is to
encourage those who obtain accreditation benefits to ensure that the
accreditation documentation is with the vehicle at all times. This will assist
compliance, by ensuring drivers are aware of the accreditation conditions
and enabling authorised officers to readily ascertain whether a driver or a
vehicle are operating under a relevant accreditation and the conditions
applying to the accreditation.
When an operator is charged with an offence under this clause that person
does not have the benefit of the mistake of fact defence for the offence.
However, the operator does have the benefit of the reasonable steps
defence. That defence is set out in Divisions 1 and 2 of Part 10.4. The
reasonable steps defence requires that person charged must actively
consider the appropriate steps to prevent an on-road breach from occurring
and cannot rely on a honest and reasonable mistake alone.
Subclauses 420(6) specifies certain matters that are irrelevant in a
proceeding and matters that constitute evidence in a proceeding against the
operator. It provides that:
· it is irrelevant whether or not the driver has been or will be proceeded
against or convicted. Thus it is not necessary to take action against a
driver or to obtain a conviction against a driver in order to proceed
against the operator;
· evidence a court has convicted a driver is evidence that the offence
happened at the time and place, and in the circumstances, stated in the
charge resulting in the conviction or evidence that the driver has paid
an infringement penalty is evidence that the offence happened at the
time and place, and in the circumstances, stated in the infringement
notice. These are intended to facilitate proof of the relevant facts.
Clause 421 states that where a driver stops operating under a heavy vehicle
accreditation or ceases to meet its requirements, the driver must return to
the operator, as soon as reasonably practicable, the documentation which
the operator provided under subclause 420(1). A maximum penalty of
$2000 applies.
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Clause 422 imposes obligations on an operator who holds a heavy vehicle
accreditation.
Subclause 422(1) requires the operator to ensure that each driver who
operates under the accreditation has been inducted into the operator's
relevant management system and meets at all times the requirements of the
accreditation applying to drivers. A maximum penalty of $6000 applies.
Where the accreditation is an AFM accreditation, subclause 422(3) also
requires the operator to ensure that each driver is informed of the AFM
hours (defined in clause 227) applying under the accreditation. A
maximum penalty of $6000 applies.
Subclause 422(4) requires the operator to keep the accreditation certificate,
a current list of drivers operating under the accreditation and documentary
evidence of compliance with these obligations. A maximum penalty of
$6000 applies.
Subclause 422(5) requires the accreditation certificate to be kept while the
accreditation is current and the other documents for at least 3 years after
their creation. A maximum penalty of $6000 applies.
Subclause 422(6) requires that a document must be kept in a way that
ensures it is readily accessible by an authorised officer at the place where it
is kept, and reasonably capable of being understood by the authorised
officer, and capable of being used as evidence. A maximum penalty of
$2000 applies.
If required by the Regulator by notice to do so, subclause 422(8) an
operator must (in the absence of a reasonable excuse) provide the
Regulator with a copy of the list of drivers referred to in subclause
422(4)(b), together with details of any change to the list. A maximum
penalty of $2000 applies.
Subclause 422(9) clarifies that the obligations under subclauses 422(4) to
422(6) do not apply to an accreditation certificate where it is already in the
Regulator's possession (unless the Regulator has returned it or given the
operator a replacement accreditation certificate) or where it has been
defaced, destroyed, lost or stolen (unless the Regulator has given the
operator a replacement accreditation certificate).
Clause 423 applies where a heavy vehicle accreditation is amended or
suspended or is no longer held by an operator.
Subclause 423(2) requires the operator, as soon as practicable, to notify
affected drivers and schedulers. A maximum penalty of $6000 applies.
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A driver who is given such a notice must, as soon as is reasonably
practicable, return to the operator any document relevant to the notice given
to the driver for the purposes of subclause 420(1). A maximum penalty of
$2000 applies. Subclause 420(1) relates to a copy of the accreditation
certificate and a document signed by the operator stating that the driver is
operating under the accreditation, has been inducted into the operator's
relevant management system and meets the requirements applying to
drivers under the accreditation (if any). In the case of a driver operating
under AFM accreditation, this also includes a document stating the AFM
hours (defined in clause 227) applying under the accreditation.
Part 8.4 Amendment or cancellation of
heavy vehicle accreditation
Clause 424 authorises applications to the Regulator for amendment or
cancellation of a heavy vehicle accreditation. It includes what must be in an
application, when an application must be decided, provisions dealing with
the replacement of an accreditation certificate affected by amendment to
the accreditation and information to be provided to an applicant about the
Regulator's decision.
Clause 425 deals with the amendment, suspension or cancellation of a
heavy vehicle accreditation otherwise than on application. Subclause
425(1) specifies the grounds for the Regulator to amend, suspend or cancel
the accreditation. Subclauses 425(2) to 425(5) deal with the procedures to
be followed, including notification requirements and giving the holder an
opportunity to make written representations.
Clause 426 empowers the Regulator to immediately suspend a heavy
vehicle accreditation where it considers that a ground exists to suspend or
cancel an accreditation and believes that it is necessary to immediately
suspend the accreditation to prevent or minimise serious harm to public
safety (which is defined in clause 5).
Clause 427 allows minor amendments of a formal or clerical nature or that
do not adversely affect the holder's interest. The Regulator must notify the
holder of such amendments.
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Part 8.5 Other provisions about heavy
vehicle accreditations
Clause 428 states that where the Regulator, by notice, requires a holder of a
heavy vehicle accreditation to return an accreditation certificate following
amendment, suspension or cancellation of the accreditation, the holder
must comply. A maximum penalty of $2000 applies.
If the accreditation is amended, subclause 427(3) requires the Regulator to
issue a replacement accreditation certificate.
Subclause 428(4) allows the Regulator to retain an accreditation certificate
for the duration of a suspension but requires that it, or a replacement
certificate if the accreditation has also been amended, be issued as soon as
practicable thereafter.
Clause 429 provides that where an accreditation certificate has been
defaced, destroyed, lost or stolen, the holder must apply to the Regulator as
soon as reasonably practicable after becoming aware of the matter, for a
replacement accreditation certificate. A maximum penalty of $2000
applies. The Regulator must issue a replacement certificate as soon as
practicable, unless the Regulator is not satisfied that the original has been
defaced, destroyed, lost or stolen. In that case, the Regulator must give the
holder an information notice. An information notice is defined in clause 5
as a notice stating the decision, the reasons for the decision and the review
and appeal information (also defined in clause 5) for the decision.
Clause 430 creates various offences relating to approved auditors, each of
which has a maximum penalty of $6000. An approved auditor is defined in
clause 409 to be an auditor of a class approved by the responsible Ministers
under clause 595.
Subclause 430(1) provides that a person must not falsely represent that the
person is an approved auditor.
Subclause 430(2) provides that an approved auditor must not falsely
represent that the person has audited an operator's relevant management
system. Under subclause 411(2), an application for heavy vehicle
accreditation must be accompanied by a statement from an approved
auditor that the auditor considers the applicant's relevant management
system (defined in clause 409 to be one relevant to the type of accreditation
sought) will ensure compliance with the relevant standards and business
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rules (defined in clause 409 to be those relevant to the type of accreditation
sought, which are approved by the responsible Ministers under clause 595).
Subclause 430(3) provides that a person must not falsely represent the
opinion of an approved auditor as to an operator's relevant management
system.
Chapter 9 Enforcement
Part 9.1 General matters about
authorised officers
Division 1 Functions
Clause 431 sets out the functions of authorised officers to monitor,
investigate and enforce compliance with the Law, to monitor or investigate
whether an occasion has arisen for the exercise of powers and to facilitate
the exercise of powers under the Law.
Division 2 Appointment
Clause 432 clarifies that Division 2 does not apply to an authorised officer
who is a police officer. The appointment, qualifications, conditions of
appointment, term of office and resignation of police officers is covered by
other laws.
Clause 433 authorises the Regulator to appoint authorised officers from
specified classes of individuals, provided that the Regulator is satisfied that
they have the necessary expertise or experience.
Clause 434 empowers an authorised officer's appointment to be subject to
conditions (which may restrict the officer's powers) set out in the
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instrument of appointment, a notice signed by the Regulator given to the
officer or the regulations.
Clause 435 provides that an officer's appointment ends if the term for
which the appointment was made expires, a condition imposed on the
appointment has the effect of ending it or the officer's resignation takes
effect under clause 436 (below).
Clause 436 specifies that an authorised officer may resign by giving a
signed notice to the Regulator. However, subclause 436(2) clarifies that,
where the holding of the office of authorised officer is a condition of the
officer holding another office, the person cannot resign as an authorised
officer without also resigning the other office. If, for example, a person
was appointed as an authorised officer because of his or her duties as a
specified class of employee of a statutory body, it would not be competent
for the person to resign only as an authorised officer without also resigning
as an employee of that specified class.
Division 3 Identity cards
Clause 437 clarifies that Division 3 does not apply to an authorised officer
who is a police officer. Police officers are governed by other laws
regulating the issue of, production or display of and return of identity cards.
Clause 438 requires the Regulator to issue an identity card to each
authorised officer. Subclause 438(2) deals with the information to be
shown on the card. The requirements include a recent photo of the officer
and an identifying number. The officer's name does not have to be
included, although this will sometimes be evident from the signature,
which does need to be included. Subclause 438(3) allows for a single
identity card to be issued for this Law and other purposes.
Clause 439 states that that an authorised officer must produce or display
the authority card when exercising a power in a person's presence or, if that
is not practicable, as soon as reasonably practicable thereafter.
However, subclause 439(3) makes it clear that the mere entry into specified
places does not necessitate the production or display of the card. Those
are:
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· a place entered under subclause 444(1)(b) for monitoring purposes,
being a place that is open for carrying on a business, otherwise open
for entry or required to be open for inspection; or
· a place entered under subclause 446(1)(b) for investigation purposes,
being a public place when it is open to the public; or
· a place entered under subclause 446(1)(d) for investigation purposes,
being a place that is open for carrying on a business, otherwise open
for entry or required to be open for inspection.
Clause 440 requires a person to return his or her identity card to the
Regulator within 21 days of ceasing to hold office as an authorised officer,
unless the person has a reasonable excuse. A maximum penalty of $2,000
applies.
Division 4 Miscellaneous provisions
Clause 441 states that where a provision in Chapter 9 refers to the exercise
of a power by an authorised officer, and does not refer to a specific power,
the reference extends to any power exercised under the Chapter or under a
warrant, to the extent the powers are relevant.
Clause 442 specifies that a reference to documents in Chapter 9 includes an
image or writing produced from and electronic document and not yet
produced but capable of being produced from an electronic document.
Part 9.2 Powers in relation to places
Division 1 Preliminary
Clause 443 provides definitions of the terms `place of business' and
`relevant place'.
A place of business is the place of a responsible person for a heavy vehicle
(as defined in clause 5) from which business is carried on, a place occupied
in connection with the business or the registered office of the corporation if
the person is a body corporate.
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A relevant place is a place of business (as defined in this clause), the
relevant garage address of a heavy vehicle, the driver's base (as defined in
clause 5) or a place where records required to kept under this Law or a
heavy vehicle accreditation (as defined in clause 5) are located or are
required to be located under this Law or a heavy vehicle accreditation.
However, it does not include a place where a responsible person lives.
Division 2 Entry of relevant places for
monitoring purposes
Clause 444 enables an authorised officer to enter a relevant place (as
defined in clause 443) for monitoring purposes. That term is defined in
clause 5 to mean finding out whether the Law is being complied with.
The officer may enter with the occupier's consent given in accordance with
Division 4 (which makes further provision for entry by consent), provided
that the officer complies with clause 452, which outlines what an officer
must tell a person when seeking consent. Subclause 444(2) provides that, if
the power of entry was by consent, it is subject to any conditions attached
to that consent. Further, the consent may be withdrawn, at which point the
power ceases.
An officer may also enter a relevant place which is open for business,
otherwise open for entry or required by the Law to be open for inspection.
Subclause 444(3) specifies that, if such a place is unattended, the officer
requires consent or a warrant to enter, unless the officer reasonably believes
the place is attended.
An officer may not use force to gain entry, but may open unlocked doors,
panels and things at a place to gain entry.
Clause 445 states that, having entered a relevant place under this Division,
an authorised officer may, for monitoring purposes (as defined in clause 5),
do the things set out in this clause. These include power to inspect the
place, a vehicle at the place or a relevant document (as defined in this
clause) at the place, to copy or take an extract from such a document or
from a relevant device (as defined in this clause) at the place, including
using a photocopier at the place free of charge, and exercising powers in
relation to a heavy vehicle at the place which the officer by exercise under
clause 469 (which makes further provision for the inspection of heavy
vehicles for monitoring purposes).
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The officer may take onto the place and use any persons, equipment,
materials, vehicles or other things to assist the officer.
The officer may open unlocked doors, panels or things and move (but not
take away) unlocked or unsealed things.
Subclause 445(1)(d) recognises that an officer may need to take away
something containing a relevant electronic document (as defined in this
clause) in order to produce an image or writing from that document where
it is not practicable to do this at the place which has been entered. In that
event, subclause 445(4) provides that the image or writing must then be
produced and the thing returned as soon as practicable.
Where entry is under consent, the officer's powers are subject to the
consent conditions.
The officer may not use force to exercise a power under this clause.
Division 2 Entry of places for investigation
purposes
Clause 446 deals with entry into places for investigation purposes. The
term `investigation purposes' is defined in clause 5 to mean investigating a
contravention or suspected contravention of the Law.
The places that may be entered are wider than those provided by clause
444, dealing with power to enter for monitoring purposes. In addition to
those places, an authorised officer may enter a public place when it is open
to the public, entry is under warrant and, where there is an occupier at the
place, clause 458 (dealing with procedures for entry under warrant if there
is an occupier at the place) has been complied with, and where entry is
authorised under clause 447 or clause 448 (which deal respectively with
entry if evidence is reasonably suspected to be at the place and entry where
there has been death, injury or property damage).
As with subclause 444(2), subclause 446(2) provides that, if the power of
entry was by consent, it is subject to any conditions attached to that
consent. Further, the consent may be withdrawn, at which point the power
ceases.
Subclause 446(3) provides that, where entry is by warrant, force may be
used if reasonably necessary and the entry is subject to the terms of the
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warrant. If there is no warrant, subclause 446(6) makes it clear that force
cannot be used.
Subclause 446(4) specifies that an officer may not, without consent or a
warrant, enter a relevant place which is open for business, otherwise open
for entry or required by the Law to be open for inspection where such a
place is unattended, unless the officer reasonably believes the place is
attended. Also, an authorised officer may not enter such a place, or part of
a place, where a person lives.
The officer may open unlocked doors, panels or things to gain entry.
Clause 447 enables an authorised officer to enter a specified place in the
circumstances where the officer reasonably believes that either a heavy
vehicle is or has been at a place or transport documentation or journey
documentation is at the place and that there may be evidence there of an
offence against the Law which may be concealed or destroyed unless the
place is immediately entered and searched. The terms `transport
documentation' and `journey documentation' are defined in clause 5 and
cover a variety of documents directly or indirectly associated with the
transport task .
Where those circumstances exist, subclause 447(2) provides that the
authorised officer may enter the place if it is open for business, is otherwise
open for entry or is required to be open for inspection under the Law.
However, subclause 447(3) denies the power of entry if the place is
unattended (unless the officer reasonably believes the place is unattended)
or if it is a place or part of a place where somebody lives.
The officer may open unlocked doors, panels or things to gain entry.
An officer may not use force, except if it is reasonably necessary to gain
entry to a place that is required by the Law to be open for inspection. Force
may not be used against a person.
Clause 448 sets out specified circumstances when an authorised officer
may enter a place without the occupier's consent or a warrant.
Subclause 448(1) provides that the officer must reasonably believe that all
of the following apply--
(a) an incident involving the death of, or injury to, a person or damage to
property involves or may have involved a heavy vehicle;
(b) the incident may have involved an offence against this Law;
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(c) there is a connection of a kind described in subclause 448(2) between
the place and the heavy vehicle (dealing with the garage address of the
vehicle or a vehicle in a combination, the vehicle being located or
having been located at the place within the past 72 hours, or the place
being otherwise directly or indirectly connected with the vehicle or
any part of its equipment or load);
(d) there may be at the place evidence of the offence against this Law that
may be concealed or destroyed if the place is not immediately entered
and searched.
However, subclause 448(3) denies the power of entry if premises are
unattended (unless the officer reasonably believes the place is unattended)
or if it is a place or part of a place where somebody lives.
The officer may open unlocked doors, panels or things to gain entry.
The officer may not use force under this provision. If force is required,
other powers or a warrant must be relied on.
Clause 449 sets out the powers that an authorised officer may exercise after
having entered a place for investigation powers (as defined in clause 5). It
applies in respect of all the places entered under subclause 446(1), except
for a public place.
The powers are broader than the powers that may be exercised under clause
445 when a place is entered for monitoring purposes. They include the
power to search the place or a vehicle at the place, to inspect, examine or
film any part of the place or anything at the place, to take a thing or sample
for examination, to place identifying marks, and to take extracts or make
copies or access and download information from a device or other thing at
the place. For a heavy vehicle at the place, they include all the powers an
officer may exercise under Part 9.3 (which set out an extensive range of
powers in relation to heavy vehicles).
The officer may take onto the place and use any persons, equipment,
materials, vehicles or other things to assist the officer.
The officer may open unlocked doors, panels or things and move (but not
take away) unlocked or unsealed things. Force may only be used if the
officer has entered under a warrant but only to the extent that it is
reasonably necessary.
Subclauses 449(3) and 449(4) deal with the situation where a thing or
sample is taken for examination. They include requirements for a receipt to
be given or to be left where it is not practicable to give a receipt.
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Subclause 449(5) allows the use of photocopying equipment at the place
free of charge in order to copy a document at the place.
Subclauses 449(6) and 449(7) deal with the situation where a document or
thing containing an electronic document has been taken from the place for
copying the document or for producing an image or writing from the
electronic document. They require the return of those things as soon as
practicable after they have been removed.
Subclause 449(8) specifies that where entry is under consent, the officer's
powers are subject to the consent conditions and where entry is under
warrant, the officer's powers are subject to the terms of the warrant.
Division 4 Procedure for entry by consent
Clause 450 states that Division 4 applies where an authorised officer seeks
consent to enter a place under clause 444(1)(a) or clause 446(1)(a), dealing
respectively with entry for monitoring purposes and entry for investigation
purposes.
Clause 451 allows for incidental entry, without consent or a warrant, to
enable the authorised officer to contact the occupier for the purpose of
seeking consent.
Clause 452 requires that before asking for the consent, the authorised
officer must explain why entry is desired, the powers intended to be
exercised and the fact that consent may be refused or given subject to
conditions and can be withdrawn at any time.
Clause 453 sets out requirements for a consent acknowledgment to be
signed by an occupant. It includes what the acknowledgement must
contain and giving a copy of the signed acknowledgment to the occupier
immediately or as soon as practicable.
Subclause 453(5) provides that, if a question arises in a proceeding about
whether the occupier consented and a consent acknowledgement is not
produced, the party relying on the consent will need to prove the occupier
consented.
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Division 5 Entry under warrant
Clause 454 provides for an authorised officer to apply to an authorised
warrant official (defined in clause 5 to mean an entity declared as such an
official for the purposes of the Law) for a warrant for a place.
Clause 455 empowers an authorised warrant official to issue a warrant, but
only if satisfied there are reasonable grounds for suspecting that there is (or
will in the next 72 hours be) at the place something that may constitute
evidence of an offence against the Law. Subclause 455(2) sets out what
must appear in the warrant.
Clause 456 provides for applications for warrants and their issue by
electronic communication, rather than the procedures under clause 454 and
clause 455, where the matter is urgent or there are other special
circumstances, such as the officer's remote location, that make it necessary
and appropriate.
Clause 457 preserves a warrant from invalidity by reason of insubstantial
defects in it or the procedures attending its application or issue.
Clause 458 sets out the procedures to be followed by an authorised officer
when entering under a warrant. An officer must do or make a reasonable
item to identify himself or herself, give a copy of the warrant to a person at
the place, tell the person that the officer is permitted by the warrant to enter
the place and give the person opportunity to allow immediate entry without
the use of force.
However, subclause 458(3) provides that these things do not have to be
done where the officer reasonably believes that entry to the place is
required to ensure that the execution of the warrant is not frustrated.
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Part 9.3 Powers in relation to heavy
vehicles
Division 1 Preliminary
Clause 459 specifies that Part 9.3 applies to a heavy vehicle on a road, in or
at a public place, in or at a place owned or occupied by a road authority or
by another public authority or in or at a place to which entry is gained by an
authorised officer under Part 9.2 (which deals with entry to specified places
for monitoring or investigation purposes). Unless the contrary is stated in
Part 9.3, it has no application to heavy vehicles in other places, such as
private land which is not entered by consent or by a warrant under Part 9.2.
Clause 460 extends the definition of driver (defined in clause 5), for the
purposes of Part 9.3, so as to include a person in the vicinity of the vehicle
who appears to be the driver.
Division 2 Stopping, not moving or not
interfering with heavy vehicle etc.
Clause 461 empowers an authorised officer to direct the driver of a heavy
vehicle to stop the vehicle so that the officer may exercise a power under
this Law, such as a power to enter and inspect under clause 469 or to enter
and search under clause 470.
It sets out how a direction may be given (orally or in any other way, such as
a sign or electronic or other signal) and that the direction can be to stop
immediately or at a place indicated.
It is an offence to not comply with the direction without a reasonable
excuse. A maximum penalty of $9,000 applies.
Clause 461 also sets out identification requirements for the officer to follow
when directing the vehicle to stop and once the vehicle has stopped.
Clause 462 empowers an authorised officer to direct the driver of a heavy
vehicle or any other person not to move the vehicle or to interfere with the
vehicle or its equipment or load, so that the officer may exercise a power
under this Law.
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It sets out how a direction may be given (orally or in any other way, such as
a sign or electronic or other signal).
It is an offence to not comply with the direction without a reasonable
excuse. A maximum penalty of $6,000 applies.
Division 3 Moving heavy vehicle
Clause 463 defines the concept of a vehicle being unattended for the
purposes of Division 3. It means that there is no-one in or near the vehicle
who appears to be the driver. However, it is also extended to include cases
where, although a person is in or near the vehicle who appears to be driver,
that person is unwilling or not qualified (as defined in clause 5) or not fit
(as defined in clause 5) or not authorised by the operator of the vehicle to
drive it or has been directed to leave the vehicle by an authorised officer
under clause 472.
Clause 464 imposes an obligation on an authorised officer, when giving a
direction under Division 3, to also give an offence warning unless it is not
practicable to do so because of the way the direction is given. The term
`offence warning' is defined in clause 5 as a warning that it is an offence
not to comply with the direction or requirement, unless the person has a
reasonable excuse.
Clause 465 empowers an authorised officer to direct the driver or operator
of a heavy vehicle to move the vehicle or have it moved to a stated
reasonable place not more than 30 km away or some other place on its
forward journey, so that the officer may exercise a power under this Law.
It sets out how a direction may be given (orally or in any other way, such as
a sign or electronic or other signal).
It is an offence to not comply with the direction without a reasonable
excuse. A maximum penalty of $9000 applies.
Subclause 465(4) provides an example of a reasonable excuse for not
complying with a direction. It would be a defence for the person to prove it
was not possible to move the vehicle because it was broken down for a
physical reason beyond the person's control and the breakdown could not
readily be rectified to enable the direction to be complied within in a
reasonable time. However, subclause 465(4) does not limit what might be
a reasonable excuse for not complying with a direction.
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Clause 466 deals with the situation where an authorised officer reasonably
believes that a stationary heavy vehicle is causing or creating a risk of
serious harm to public safety (defined in clause 5), the environment or road
infrastructure (defined in clause 5) or is obstructing traffic. The officer may
direct the driver or operator to move the vehicle or have it moved or to do
or have something else done in order to avoid the harm or obstruction.
It sets out how a direction may be given (orally or in any other way, such as
a sign or electronic or other signal for the driver and by electronic
communication for the operator).
It is an offence to not comply with the direction without a reasonable
excuse. A maximum penalty of $9000 applies.
Subclause 466(5) provides an example of a reasonable excuse for not
complying with a direction. It would be a defence for the person to prove it
was not possible to move the vehicle because it was broken down for a
physical reason beyond the person's control and the breakdown could not
readily be rectified to enable the direction to be complied within in a
reasonable time. However, subclause 466(5) does not limit what might be
a reasonable excuse for not complying with a direction.
Clause 467 provides that where an authorised officer reasonably believes
that a vehicle is unattended (as defined in clause 463) and that it is
reasonably necessary for a vehicle to be moved in order for the officer to
exercise a power that he or she intends to exercise under the Law, the
officer may move the vehicle or authorise somebody else to do so.
However, neither the officer nor the other person may move the vehicle if
not qualified (as defined in clause 5) or not fit (as defined in clause 5) to
drive it.
The officer or assistant may open unlocked doors and panels and things in
the vehicle and may use such force as is reasonably necessary but may not
use force against a person.
Clause 468 deals with the situation where an authorised officer reasonably
believes that an unattended heavy vehicle is causing or creating an
imminent risk of serious harm to public safety (defined in clause 5), the
environment or road infrastructure (defined in clause 5) or is obstructing
traffic. The officer may move or authorise somebody else to move the
vehicle in order to avoid the harm or obstruction. The officer may do this
even if the officer or other person is not qualified (defined in clause 5) to
drive it, if the officer reasonably believe that nobody else in the vicinity is
more capable of driving it and fit and willing to drive it.
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The officer or assistant may use such force as is reasonably necessary other
than force against a person.
Division 4 Inspecting and searching heavy
vehicles
Clause 469 empowers an authorised officer to enter and inspect a heavy
vehicle for monitoring purposes. That term is defined in clause 5 to mean
finding out whether the Law is being complied with. The types of things
an officer may do include inspecting, examining or filming any part of the
vehicle and its goods, inspecting a relevant document (as defined in this
clause) in the vehicle, copying or taking an extract from such a document
or from an electronic relevant document (as defined in this clause).
The officer may open unlocked doors, panels or things in or on the vehicle
and may move (but not take away) unlocked or unsealed things.
The officer may not use force to exercise a power under this clause.
Subclause 469(2)(f) recognises that an officer may need to take an extract
of relevant information (as defined in this clause) from a device or other
thing in the vehicle in order to produce an image or writing from that
document. In that event, subclause 469(5) provides that the image or
writing must be produced and the thing returned to the vehicle as soon as
practicable.
Clause 470 empowers an authorised officer to enter and search a heavy
vehicle, using force or help, for investigation purposes. The term
`investigation purposes' is defined in clause 5 to mean investigating a
contravention or suspected contravention of the Law.
The officer may use this power if he or she reasonably believes that a
vehicle is being or has just been used to commit an offence against the Law
or that the vehicle or something in it may provide evidence of such an
offence or that the vehicle has been or may have been involved in an
incident involving death, injury or property damage.
The powers that the officer may exercise are broader than the powers
specified under clause 469 when a vehicle is entered for monitoring
purposes. They include the power to search, inspect, examine or film any
part of the vehicle and its goods, to search for a document, device or other
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thing in the vehicle and to take a copy of an extract from a document,
device or other thing in the vehicle.
The officer may take into or onto the vehicle any persons, equipment or
materials to assist the officer.
Subclause 470(3) recognises that an officer may need to take a document in
the vehicle somewhere else to copy it or to take a thing containing an
electronic document from the vehicle to produce an image or writing from
that document. In that event, subclauses 470(4) and 470(5) provide that
document may be copied and returned and the image or writing must be
produced and the thing returned to the vehicle as soon as practicable.
Subclause 470(6) provides that the powers do not extend to personal
possessions or documents that are not issued or given or required to be kept
under the Law or a heavy vehicle accreditation or that are not transport
documentation or journey documentation (as defined in clause 5).
Division 5 Other powers in relation to all heavy
vehicles
Clause 471 enables an authorised officer to enter a vehicle and start or stop
a vehicle's engine or authorise somebody else to do so to enable the officer
to exercise a power under this Law (but not to drive the vehicle). The
officer may exercise this power if a power does not comply with a
requirement under clause 521 to start or stop the engine, or if there is no
responsible person for the vehicle (defined in clause 5) available or willing
to start or stop the engine, or if the officer reasonably believes that there is
no-one else in the vicinity who is more capable of starting or stopping the
engine and who is fit and willing to do so.
The officer or assistant may use such force as is reasonably necessary other
than force against a person.
Clause 472 empowers an authorised officer to direct the driver of a heavy
vehicle to vacate the driver's seat, to leave the vehicle or not to occupy the
driver's seat or enter the vehicle until permitted by the officer. The officer
may also direct anybody accompanying the driver to leave the vehicle or
not to enter the vehicle until permitted by the officer.
The officer may exercise this power if the driver fails to comply with a
direction given under Chapter 9 or if the officer reasonably believes that the
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driver is not qualified (as defined in clause 5), fit (as defined in clause 5) or
authorised by the operator to drive the vehicle so as to comply with the
direction,
A direction may be given orally or in any other way, such as a sign or
electronic or other signal.
It is an offence to not comply with the direction without a reasonable
excuse. A maximum penalty of $9,000 applies.
When giving the direction, the officer must also give an offence warning
unless it is not practicable to do so because of the way the direction is
given. The term `offence warning' is defined in clause 5 as a warning that
it is an offence not to comply with the direction or requirement, unless the
person has a reasonable excuse.
Division 6 Further powers in relation to heavy
vehicles concerning heavy vehicle
standards
Clause 473 defines certain terms used in Division 6.
Clause 474 states that if an authorised officer who has inspected a heavy
vehicle reasonably believes it to be a defective vehicle and that its use on
the road presents a safety risk (defined in clause 5), the officer may issue a
vehicle defect notice. The term `defective vehicle' is defined in clause 473
to mean a vehicle that contravenes the heavy vehicle standards (defined in
clause 46) or has a part which is either not functioning or has so
deteriorated that it cannot reasonably be relied on to function as intended.
The notice may be a major defect notice or a minor defect notice, the
former applying where the safety risk is imminent and serious and the
latter applying in the case of other safety risk.
Subclause 474(3) requires the defect notice to be handed to the driver but,
if the driver is not present, it is to be attached to the vehicle.
Where the notice is given to the driver, subclause 474(4) requires the driver,
as soon as practicable, to pass it on to the operator. A maximum penalty of
$3,000 applies.
Clause 475 sets out the contents of a vehicle defect notice, including a
statement that the vehicle is a defective heavy vehicle and the details of
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how it is defective. A major defect notice must include a statement that the
vehicle is not to be used on a road other than to move it to a location and in
a way stated in the notice. A minor defect notice must include a statement
that the vehicle is not to be used on a road after a time stated in the notice
unless the defect is rectified.
Clause 476 states that if a major defect notice is issued, the authorised
officer must attach a vehicle defect label to the vehicle. Subclause 476(2)
creates an offence for a person to remove, deface or otherwise interfere
with such a label. A maximum penalty of $3,000 applies.
The offence does not apply where the Regulator arranges for the label to be
removed following clearance of the notice under subclause 478(2) or
following withdrawal of the notice under subclause 479(4).
Clause 477 creates an offence for a person to use, or permit to be used, on a
road a heavy vehicle in contravention of a vehicle defect notice. A
maximum penalty of $3,000 applies.
The inclusion of the phrase `permit to be used' in clause 477 extends the
responsibility beyond the driver of the heavy vehicle and is intended to
require persons responsible for a heavy vehicle to ensure the vehicle is not
used in breach of a vehicle defect notice.
Clause 478 provides that a vehicle defect notice may be cleared where the
Regulator is satisfied that the vehicle is no longer defective or receives
from an authorised officer a notice to that effect. If a major defect notice is
cleared, the Regulator must arrange for the defective vehicle label to be
removed.
Clause 479 deals with the amendment or withdrawal of a vehicle defect
notice. Where a notice is issued by an authorised officer who is a police
officer, it may be amended or withdrawn by any authorised officer who is a
police officer. Where a notice is issued by an authorised officer who is not a
police officer, it may be amended or withdrawn by any authorised officer
who is not a police officer. If a major defect notice is withdrawn, the
Regulator must arrange for the defective vehicle label to be removed.
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Division 7 Further powers in relation to heavy
vehicles concerning mass, dimension
or loading requirements
Clause 480 states that Division 7 applies to all heavy vehicles and not just
those subject to directions or requirements given or made under another
provision of Chapter 9. The powers in Division 7 assist in the enforcement
of the matters regulated under Chapter 4.
Clause 481 provides that where an authorised officer reasonably believes
that a heavy vehicle is subject to a minor risk breach of mass, dimension or
loading requirements but not also the subject of a substantial risk breach or
severe risk breach, the officer may direct the driver or operator to rectify
the stated breaches or to move or cause the vehicle to be moved to a stated
place and not thereafter to move it or cause it to be moved until the stated
breaches are rectified.
Chapter 4 defines the terms `dimension requirement', `loading
requirement', `mass requirement', `minor risk breach', `substantial risk
breach' and `severe risk breach'.
Subclause 481(3) specifies that, if the officer directs the vehicle to be
moved to a stated place, it must be a place the officer reasonably believes to
be suitable and it must be within a 30 km radius from where the vehicle is
located when the direction is given or within a 30 km radius from any point
on the vehicle's forward journey.
Subclause 481(4) requires the direction to be in writing (and given with or
without conditions) but subclause 481(5) provides for an oral direction if
the moving of the vehicle is carried out in the presence or under the
supervision of an authorised officer.
It is an offence to not comply with the direction without a reasonable
excuse. A maximum penalty of $9,000 applies.
Clause 482 specifies that where an authorised officer reasonably believes
that a heavy vehicle is subject to a substantial risk breach of mass,
dimension or loading requirements but not also the subject of a severe risk
breach, the officer must direct the driver or operator not to move the vehicle
or cause it to be moved until the stated breaches have been rectified or to
move or cause it to be moved to a stated reasonable place and not thereafter
to move it or cause it to be moved until the stated breaches are rectified.
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Subclause 482(3) requires the direction to be in writing (and given with or
without conditions) but subclause 482(4) provides for an oral direction if
the moving of the vehicle is carried out in the presence or under the
supervision of an authorised officer.
It is an offence to not comply with the direction without a reasonable
excuse. A maximum penalty of $9,000 applies.
An important distinction between clause 481 and clause 482 is that, in the
former, the officer has a discretion whether or not to give the direction
whereas, in the latter, the direction must be given. This is because of the
greater seriousness attached to a substantial risk breach and the need to
ensure that stated breaches are rectified.
Clause 483 states that where an authorised officer reasonably believes that
a heavy vehicle is subject to a severe risk breach of mass, dimension or
loading requirements, the officer must direct the driver or operator not to
move the vehicle until the stated breaches are rectified or (if the vehicle
poses a risk to public safety, as defined in clause 5, or an appreciable risk to
the environment, road infrastructure or public amenity, as defined in clause
5) to move it or cause it to be moved to the nearest stated safe place (as
defined in this clause) and not to move it thereafter until the stated breaches
have been rectified.
Subclause 483(3) requires the direction to be in writing (and given with or
without conditions) but subclause 483(4) provides for an oral direction if
the moving of the vehicle is carried out in the presence or under the
supervision of an authorised officer.
It is an offence to not comply with the direction without a reasonable
excuse. A maximum penalty of $9,000 applies.
Clause 484 provides that where a direction is given under this Division, a
component vehicle of a combination which does not itself contravene a
mass, dimension or loading requirement may be separately driven or
moved if it is otherwise lawful for it to be driven or moved and if a
condition of the direction does not prevent it.
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Division 8 Further powers in relation to
fatigue-regulated heavy vehicles
Clause 485 states that Division 8 applies to all fatigue-regulated heavy
vehicles and not just those subject to directions or requirements given or
made under another provision of Chapter 9. The term `fatigue-regulated
heavy vehicle' is defined in clause 7. The powers in Division 8 assist in the
enforcement of the matters regulated under Chapter 6.
Clause 486 applies where an authorised officer reasonably believes that a
driver of a fatigue-regulated heavy vehicle has contravened a maximum
work requirement under Chapter 6 and is or may be impaired by fatigue.
Subclause 486(2) provides that, if the officer reasonably believes the
contravention is a critical risk breach or a severe risk breach, the officer
must by notice require the driver to immediately rest for a stated period and
thereafter to work for a stated shorter time to compensate for the excess
period worked.
Subclause 486(3) provides that, if the officer reasonably believes the
contravention is a substantial risk breach or a minor risk breach, the officer
may by notice impose the same requirement.
The distinction between subclause 486(2) and subclause 486(3) is that, in
the former, the officer is under a duty to impose the requirement whereas,
in the latter, the officer has a discretion whether or not to impose it. This is
because of the greater seriousness attached to a critical risk breach or a
severe risk breach and the need to ensure that the driver takes the steps
necessary to compensate for the excess period worked.
The terms `critical risk breach' `severe risk breach', `substantial risk
breach' and `minor risk breach' are defined in clause 192.
Clause 487 applies where an authorised officer reasonably believes that a
driver of a fatigue-regulated heavy vehicle has contravened a minimum rest
requirement under Chapter 6 and is or may be impaired by fatigue.
Subclause 487(2) provides that, if the officer reasonably believes the
contravention is a critical risk breach or a severe risk breach, the officer
must by notice require the driver to immediately rest for a stated period to
compensate for the shortfall in rest and, if the driver has failed to have 1 or
more night rest breaks required under a minimum rest requirement, the
officer must also direct the driver to take 1 or more night breaks to
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compensate for the shortfall. The term `night rest break' is defined in
clause 5.
Subclause 487(3) provides that, if the officer reasonably believes the
contravention is a substantial risk breach or a minor risk breach, the officer
may by notice impose the same requirement.
The distinction between subclause 487(2) and subclause 487(3) is that, in
the former, the officer is under a duty to impose the requirement whereas,
in the latter, the officer has a discretion whether or not to impose it. This is
because of the greater seriousness attached to a critical risk breach or a
severe risk breach and the need to ensure that the driver takes the steps
necessary to compensate for the shortfall in rest
Clause 488 applies if an authorised officer reasonably believes the driver of
a fatigue-regulated heavy vehicle is impaired by fatigue.
The officer may by notice require the driver to immediately stop work and
not work again for a stated period. Under subclause 488(3) this must be a
reasonable period having regard to the factors set out in that provision.
Where the officer has observed the driver driving in a way the officer
believes on reasonable grounds is dangerous, the officer may also by notice
require the driver to immediately stop being in control of the vehicle. If
such a notice is given, the officer may under subclause 488(4) authorise
somebody else to move the vehicle to a suitable rest place for
fatigue-regulated heavy vehicles (as defined in clause 5) if that person is
qualified and fit to do so.
Subclause 488(5) authorises the making of regulations to prescribe matters
which an officer or a court must or may have regard to in determining
whether a driver was impaired by fatigue for the purposes of this clause.
Clause 489 empowers an authorised officer by notice to require the driver
to immediately stop work and not to work again for a stated period up to 24
hours.
The officer may exercise this power if the officer has asked the driver to
produce his or her work diary under clause 512 and either the driver has
failed to produce the work diary without a reasonable excuse or the driver
produces a document the officer reasonably believes is not the work diary
the driver is required to keep or the officer reasonably believes that the
diary cannot be relied on as an accurate record.
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Clause 490 creates an offence for a person given a notice under this
Division to not comply with the notice, unless the person has a reasonable
excuse. A maximum penalty of $9,000 applies.
Subclause 490(2) empowers an authorised officer who has given a notice
under clause 486, 487, 488 to allow deferral of compliance for up to 1 hour
if the officer reasonably believes it is necessary to allow the driver to drive
to the nearest suitable rest place for fatigue-regulated heavy vehicles (as
defined in clause 5) and it is reasonably safe to do so or if the officer
reasonably believes it is necessary to allow the driver time to attend to or
secure the load.
Part 9.4 Other powers
Division 1 Powers relating to equipment
Clause 491 states that an authorised officer or a person helping the officer
may operate equipment at a place or a vehicle entered under Chapter 9 so
as to read information held on a storage device such as a disc or tape where
it is reasonably believed to be necessary for checking compliance with the
Law. However, this can only be done if the person reasonably believes the
operation can be carried out without damaging the equipment.
Clause 492 provides that an authorised officer or a person helping the
officer may operate equipment at a place or a vehicle entered under
Chapter 9 to examine or process a thing so as to determine whether it
should be seized.
In the case of a heavy vehicle entered under clause 470, dealing with the
power to enter and search a heavy vehicle for investigation purposes
(defined in clause 5), the person may operate equipment in the vehicle to
examine or process the thing or move it to another place for examination
and processing if not practicable to do it where it is found or if the driver
gives written consent.
However, these things can only be done if the person reasonably believes
the equipment is suitable and the operation can be carried out without
damaging the equipment or thing.
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Division 2 Seizure and embargo notices
Subdivision 1 Power to seize
Clause 493 states that an authorised officer who enters a place the officer
may enter under Chapter 9 without the consent of its occupier and without
a warrant may seize a thing at the place if the officer reasonably believes
the thing is evidence of an offence against this Law.
Clause 494 deals with the seizure of things from a place that the authorised
officer has entered with the consent of the occupier or under a warrant.
If the officer has entered with the occupier's consent, the officer may seize
a thing which he or she reasonably believes is evidence of an offence
against the Law and its seizure is consistent with the purpose of entry as
explained to the occupier when obtaining consent.
If the officer has entered under a warrant, the officer may seize the
evidence for which the warrant was issued.
In addition, the officer may seize anything else at a place entered with the
consent of the occupier or under a warrant if the officer reasonably believes
the thing:
· is evidence of an offence against the Law and the seizure is necessary
to prevent its hiding, loss or destruction or its use to continue or repeat
the offence; or
· has just been used in committing an offence against the Law.
Clause 495 authorises seizure from a heavy vehicle entered under clause
470 of a thing that the authorised officer reasonably believes is evidence of
an offence against the Law. Clause 470 deals with the power to enter and
search a heavy vehicle for investigation purposes (defined in clause 5).
Clause 496 provides that where an authorised officer or a person helping
the officer finds at a place or in a heavy vehicle a storage device such as a
disc or tape containing which the officer reasonably believes is relevant to
deciding whether the Law has been contravened, this clause authorises
putting the information in documentary form and seizing the document,
copying the information to another storage device and seizing that device
or seizing the original storage device and any equipment by which its
contents can be read if it is not practicable to put it into documentary form
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or copy it to another storage device and it is reasonably believed that the
device and equipment can be seized without damage.
Clause 497 deals with the situation where a thing or sample has been taken
for examination under subclause 449(1)(c). Clause 449 deals with the
general powers exercisable by an authorised officer who enters a place
(other than a public place) for investigation purposes (as defined in clause
5).
If the officer, having examined the thing or sample, reasonably believes it
to be evidence of an offence against the Law, he or she may seize it if such
seizure would have been authorised by clauses 492 to 496 at the time it was
taken had the officer formed the reasonable belief at that earlier time.
Clause 498 allows an authorised officer to seize a thing and exercise
powers relating to it, even if a third party holds a lien or other security over
it. However, the seizure does not affect the security holder's claim against
a person other than the officer or a person helping the officer.
Subdivision 2 Powers to support seizure
Clause 499 empowers an authorised officer, to enable a thing to be seized,
to require a person in control of it to take the thing to a stated reasonable
place by a stated reasonable time and, if necessary, to remain there with it
for a stated reasonable period.
The requirement must be made (or confirmed) in writing or, if not
practicable, may be given orally and later confirmed in writing.
A person so required must comply unless there is a reasonable excuse. A
maximum penalty of $6,000 applies.
Subdivision 3 Safeguards for seized things or
samples
Clause 500 sets out procedures to be followed where a thing or sample has
been seized under Chapter 9 relating to the giving of a receipt for the item
seized. However, this is not required where it is impracticable or
unreasonable because of the condition, nature and value of the thing or
sample or, in the case of a thing that has been seized other than under
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clause 497, the officer reasonably believes there is nobody apparently in
possession of the thing or the thing has been abandoned. Clause 497 deals
with the subsequent seizure of a thing that was taken for examination by an
authorised officer who entered a place (other than a public place) for
investigation purposes (as defined in clause 5).
Clause 501 states that until a thing that has been seized has been forfeited
or returned, its owner must be allowed access to it to inspect it and (for
documentation) to copy it unless that is not practicable or reasonable.
Clause 502 provides that a thing or sample that has been seized must
generally be returned after 2 years unless it has been forfeited, court
proceedings for an offence or any appeal from such proceedings are
pending or the authorised officer who seized it believes that its continued
retention is no longer required and necessary and it is lawful for the person
to possess it.
Subdivision 4 Embargo notices
Clause 503 states that where something that has been seized cannot readily
be removed, an authorised officer may issue an embargo notice prohibiting
any dealing with the thing or any part of it without the written consent of
the Regulator or an authorised officer. The clause sets out procedures
relating to the issue of an embargo notice and its contents.
Clause 504 creates an offence for a person who knows an embargo notice
relates to a thing to do anything the notice prohibits or instruct somebody
else to do so. A maximum penalty of $8,000 applies.
In a proceeding for an offence relating to a charge that the defendant moved
an embargoed thing or a part of it, it is a defence if the person proves that
the embargoed thing or thing was moved to protect or preserve it or that the
authorised officer who issued the notice was informed of the move and new
location within 48 hours.
Subclause 504(3) requires a person served with an embargo notice to take
all reasonable steps to stop any other person from doing something
prohibited by the notice. A maximum penalty of $8,000 applies.
Subclause 504(4) provides that, despite any other Act or law, a sale, lease,
transfer or other dealing with an embargoed thing is void.
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Clause 505 enables an authorised officer to take reasonable action to
restrict access to an embargoed thing, including sealing it or the entrance to
the place where it is or (for equipment) rendering it inoperable.
The officer may also require a person he or she reasonably believes to be in
control of the embargoed thing to take such steps. It is an offence not to
comply without a reasonable excuse. A maximum penalty of $8,000
applies.
If access to an embargoed thing is restricted, it is an offence against
subclause 505(4) to tamper with the thing or anything used to restrict
access to the thing without an authorised officer's approval or a reasonable
excuse. A maximum penalty of $8,000 applies.
If access to a place is restricted, it is an offence to enter that place or to
tamper with anything used to restrict access to the place without an
authorised officer's approval or a reasonable excuse. A maximum penalty
of $8,000 applies.
Clause 506 sets out the procedures for withdrawing an embargo notice,
together with restrictions on when such a notice may be withdrawn.
Division 3 Forfeiture and transfers
Clause 507 states that where a thing or sample has been taken for
examination or a thing has been seized under Chapter 9 the Regulator may
declare it to be forfeited to the Regulator if its owner cannot reasonably be
found or the thing cannot reasonably be returned.
Clause 508 sets out the requirements for giving an information notice if the
Regulator decides to forfeit a thing or sample. An information notice is
defined in clause 5 as a notice stating the decision, the reasons for the
decision and the review and appeal information (also defined in clause 5)
for the decision.
Clause 509 specifies that a thing or sample become the property of the
Regulator if it is forfeited or the owner and Regulator agree in writing to
the transfer of ownership.
Clause 510 states that where a thing or sample becomes the property of the
Regulator under clause 509, the Regulator may deal with it in the
Regulator's discretion, including by destroying it or giving it away.
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However, the Regulator may not deal with it in such a way as to prejudice
the outcome of a review of the forfeiture decision or an appeal against the
decision on review. Chapter 11 deals with reviews and appeals and the
decision of the Regulator that a thing or sample is forfeited is a reviewable
decision for the purposes of that Chapter.
If the Regulator sells the item, the Regulator may return the proceeds of
sale to the person who owned it immediately before the forfeiture, after
deducting the costs of the sale.
Division 4 Information-gathering powers
Clause 511 deals with the circumstances in which an authorised officer
may require a person to state his or her name and address (including the
person's residential and business address and, for a person temporarily in
the jurisdiction, the person's residence in the jurisdiction).
The officer may do so:
· if the person is committing, or is found in circumstances to reasonably
suspect the person has just committed, or there is information to
reasonably suspect that the person has just committed, an offence
against the Law; or
· if the person is reasonably suspected to be the driver of a heavy
vehicle involved in an incident involving death, injury or damage to
property; or
· if the person is reasonably suspected to be a responsible person for a
heavy vehicle (as defined in clause 5) and may be able to help in an
investigation of an offence against the Law involving the vehicle.
The officer may require the person to provide verification of the name or
address if it would be reasonable to expect the person to be in possession of
evidence to verify the name or address or otherwise be able to provide the
verification.
Subclause 511(4) requires that officer give an offence warning for when
making a requirement to state the person's name and address or to provide
verification of the stated name or address. The term `offence warning' is
defined in clause 5 as a warning that it is an offence not to comply.
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Failure to comply with either requirement without a reasonable excuse is
an offence. A maximum penalty of $6,000 applies. However, a person
will not be convicted of the offence if the basis for requiring the name and
address was that the person was committing, or was found in circumstances
to reasonably suspect the person had just committed, or there was
information to reasonably suspect that the person had just committed, an
offence against the Law if the person is not subsequently found guilty of
committing that offence against the Law.
In addition, if a person is charged with a failure to state a business address
it is a defence to prove that the person did not have a business address or
the person's business address was not directly or indirectly connected with
road transport involving heavy vehicles.
Clause 512 empowers an authorised officer to require, for compliance
purposes (as defined in clause 5), the driver of a heavy vehicle to produce
his or her driver licence or a document, device or thing he or she is required
by the Law to keep in the driver's possession while driving. This power
arises if the vehicle is stationary on a road, or if it is in or at a place entered
under Part 9 or if it has been stopped under clause 461 (dealing with a
direction to stop the vehicle to enable the exercise of other powers).
The driver must comply with the requirement unless there is a reasonable
excuse. A maximum penalty of $4,500 applies.
Subclause 512(4) clarifies that it is not a reasonable excuse merely not to
have the item in the driver's possession or to refuse on the ground of
self-incrimination.
In the case of a document, device or other thing required to be in the
driver's possession, the officer may take a copy of or extract from a
document, produce an image or writing from an electronic document or
take an extract from a device or other thing. The officer must return the
item as soon as practicable after inspection or, if a copy, extract or image or
writing is produced from it, as soon as practicable thereafter.
Where the officer reasonably believes the document, device or other thing
required to be in the driver's possession may provide evidence of an
offence against the Law, he or she may seize it.
The officer may require the driver to certify that a copy, extract or image or
writing from a document or an entry in a document is a true copy. The
driver must comply with the requirement unless there is a reasonable
excuse. A maximum penalty of $4,500 applies.
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The officer does not have to return a document, where he or she has asked
the driver to certify the copy, extract or image or writing of, until the driver
complies with the requirement.
Clause 513 states that an authorised officer may require a responsible
person for a heavy vehicle (as defined in clause 5) to produce for inspection
a document issued under the Law or document, device or other thing
required to be kept under the Law or a heavy vehicle accreditation (as
defined in clause 5) or other specified documentation in the person's
possession or control that relates to the vehicle or the transport task. The
person must comply with the requirement unless there is a reasonable
excuse. A maximum penalty of $4,500 applies.
Subclause 513(4) clarifies that a claim of privilege against
self-incrimination is not a reasonable excuse. Note, however, that clause
531 limits the use of particular documents or information in civil or
criminal proceedings. The effect of that clause is that, if a responsible
person who is an individual produces for inspection a document under
clause 513 (other than a document issued to the person under the Law or a
document, device or other thing required to be kept by the person under the
Law or a heavy vehicle accreditation), the document and any evidence
directly or indirectly derived from it is not admissible against the
individual, except in a proceeding about the false or misleading nature of
the document or anything in the document.
The officer may take a copy of or extract from a document, produce an
image or writing from an electronic document or take an extract from a
device or other thing. The officer must return the item as soon as
practicable after inspection or, if a copy, extract or image or writing is
produced from it, as soon as practicable thereafter.
Where the officer reasonably believes the document, device or other thing
may provide evidence of an offence against the Law, he or she may seize it.
The officer may require the person responsible for keeping the document to
certify that a copy, extract or image or writing from a document or an entry
in a document is a true copy. The person must comply with the requirement
unless there is a reasonable excuse. A maximum penalty of $4,500 applies.
The officer does not have to return a document, where he or she has asked
the person to certify the copy, extract or image or writing of, until the
person complies with the requirement.
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Clause 514 empowers an authorised officer to, for compliance purposes
(as defined in clause 5), require a responsible person for a heavy vehicle (as
defined in clause 5) to provide information about the vehicle, its equipment
or load and personal details (as defined in this clause) known to the person
about any other responsible person for the vehicle.
The officer must give an offence warning for the requirement. The term
`offence warning' is defined in clause 5 as a warning that it is an offence
not to comply.
It is an offence not to comply without a requirement without reasonable
excuse. A maximum penalty of $4,500 applies.
Subclause 514(5) provides that it is a defence for the person not to prove
that he or she did not know and could not reasonably be expected to know
or to ascertain the information.
Subclause 514(6) clarifies that it is not a reasonable excuse to claim the
privilege against self-incrimination. Note, however, that clause 531 limits
the use of particular documents or information in civil or criminal
proceedings. The effect of that clause is that, if a responsible person who is
an individual provides information under clause 514, the information and
any evidence directly or indirectly derived from it is not admissible against
the individual, except in a proceeding about the false or misleading nature
of the information or anything in the information.
Division 5 Improvement notices
Clause 515 states that the Division applies only where the authorised
officer is authorised to issue improvement notices (through written
authority from the relevant police commissioner in the case of an
authorised officer who is a police officer or if stated in the instrument of
appointment in the case of an authorised officer who is not a police officer).
Clause 516 provides that where an authorised officer reasonably believes
that a person has contravened, is contravening, or is likely to contravene the
Law, the officer may issue an improvement notice requiring the person to
remedy the situation or the matters or activities occasioning it within the
period stated in the notice. The provision sets out restrictions on the time
period that can be stated and specifies the contents of the notice.
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Clause 517 states that the recipient of an improvement notice must comply
unless there is a reasonable excuse. A maximum penalty of $8,000 applies.
Subclause 517(2) provides a defence where the alleged contravention,
likely contravention or matters or activities occasioning them was remedied
within the time stated in the notice, although in a way different from that
stated in the notice.
Subclause 517(3) clarifies that if a person is given an improvement notice
because of a contravention of the Law, the person cannot be proceeded
against for that contravention unless the person fails to comply with the
improvement notice, without a reasonable excuse, or the improvement
notice is revoked under clause 519.
Clause 518 sets out the procedures for amending an improvement notice. It
also specifies that if the notice was issued by an authorised officer who is a
police officer, it can be amended by another such officer and if the notice
was issued by an authorised officer who is not a police officer, it can be
amended by any authorised officer who is not a police officer.
Clause 519 deals with the revocation of an improvement notice. It
specifies that a notice given by an authorised officer who is a police officer
may be revoked by the relevant police commissioner or by a more senior
police officer who has the relevant commissioner's authority to issue
improvement notices. A notice given by an authorised officer who is not a
police officer may be revoked by the Regulator.
Clause 520 states that an approved authorised officer may issue a clearance
certificate stating that the requirements of an improvement notice have
been satisfied. Subclause 520(3) defines the term `approved authorised
officer'. In the case of an improvement notice issued by an authorised
officer who is a police officer, it means another police officer who has the
relevant commissioner's authority to issue improvement notices. In the
case of an improvement notice issued by an authorised officer who is not a
police officer, it means any authorised officer who is not a police officer.
Division 6 Powers to require reasonable help
Clause 521 empowers an authorised officer to require reasonable help from
an occupier of or a person at a place entered under Chapter 9 or from a
driver of a heavy vehicle on a road where a power under Chapter 9 is being
exercised.
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When making such a requirement, the officer must give an offence
warning. The term `offence warning' is defined in clause 5 as a warning
that it is an offence not to comply.
It is an offence not to comply with the requirement without reasonable
excuse. A maximum penalty of $9,000 applies.
Subclause 521(6) specifies that it is a reasonable excuse for an individual if
the assistance required is outside the scope of a individual's business or
other activities or if self-incrimination might occur.
However, subclause 521(7) clarifies that it is not a reasonable excuse to
claim the privilege against self-incrimination in relation to a document or
information required to be kept or held by the individual under the Law.
Note, however, that clause 531 limits the use of particular documents or
information in civil or criminal proceedings. The effect of that clause is
that, if an individual gives an officer a document or information in response
to a requirement under clause 521, the document or information and any
evidence directly or indirectly derived from it is not admissible against the
individual, except in a proceeding about the false or misleading nature of
the document or information or anything in the document or information.
Part 9.5 Provisions about exercise of
powers
Division 1 Damage in exercising powers
Clause 522 provides that, in exercising a power under the Law, it is the
responsibility of an authorised officer to take all reasonable steps to cause
as little inconvenience and damage as possible. However, this does not
confer a statutory right to compensation, other than as provided under
Division 2. That Division provides for compensation for costs, damage or
loss incurred because of the exercise of a power under Chapter 9.
Clause 523 states that where an authorised officer, in the course of
exercising a power under the Law, or a person assisting the officer damages
something, the officer must take all reasonable steps to restore the thing to
its condition immediately before the damage.
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Clause 524 sets out the procedures for giving notice of the damage and the
contents of the notice, including a statement that a person may have a right
to compensation under clause 525.
However, the provision does not apply if the officer reasonably believes
that the thing has been restored to its condition immediately before the
damage, or the damage is trivial, or there is nobody apparently in
possession of the thing or it appears to have been abandoned.
Division 2 Compensation
Clause 525 states that a person may claim compensation from the
Regulator if the person incurs costs, damage or loss because of the
exercise, or purported exercise, of a power by or for an authorised officer,
under Chapter 9.
However, subclause 525(2) specifies that this does not apply to costs,
damage or loss incurred because of a lawful seizure or forfeiture.
The provision details procedures for claiming compensation and the
matters a court must consider in determining whether to make a
compensation order.
Subclause 535(6) authorises the making of by regulations to prescribe other
matters the court may or must take into account when considering whether
it is just to order compensation.
Division 3 Provision about exercise of particular
powers
Clause 526 deals with the situation where an authorised officer directs the
driver of a fatigue-regulated heavy vehicle to stop the vehicle for
compliance purposes (as defined in clause 5). If the driver is detained for
more than 5 minutes, he or she may request the officer to make a notation
in the driver's work diary setting out specified details, including the length
of time spent talking to the officer, and the officer must comply.
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Part 9.6 Miscellaneous provisions
Division 1 Powers of regulator
Clause 527 states that the Regulator may exercise powers conferred on an
authorised officer under the Law which do not require the physical
presence of an officer.
Division 2 Other offences relating to authorised
officers
Clause 528 creates an offence for a person without reasonable excuse to
obstruct an authorised officer or somebody helping an authorised officer or
an assistant who is exercising a power under clause 467 (dealing with
moving an unattended heavy vehicle on a road to enable the exercise of
another power), clause 468 (dealing with moving an unattended heavy
vehicle on a road if it is causing or creating an imminent risk of serious
harm to public safety, the environment or road infrastructure), or clause
471 (dealing with entering a vehicle and starting or stopping its engine to
enable the exercise of another power). A maximum penalty of $8,000
applies.
The term `obstruct' is defined in subclause 528(4) so as to include assault,
hindrance, resistance and attempts or threats to obstruct.
Subclause 528(2) provides that, where a person has obstructed an
authorised officer or a person helping an authorised officer and the officer
decides to proceed to exercise the power, the officer must warn the person
that it is an offence to cause an obstruction without a reasonable excuse and
the officer considers the person's conduct an obstruction.
Subclause 528(3) provides that, where a person has obstructed an assistant
who is exercising a power under clauses 467, 468 or 471 and the assistant
decides to proceed to exercise the power, the warning must be given by the
assistant.
Clause 529 states that a person must not impersonate an authorised officer.
A maximum penalty of $10000 applies.
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Division 3 Other provisions
Clause 530 makes it clear that an authorised officer may give multiple
directions or requirements and may give further directions or requirements,
whether under the 1 provision or 1 or more other provisions of Chapter 9.
Clause 531 provides that where an individual gives an authorised officer a
document or information as required under clauses 513, 514 or 521
(respectively relating to the power to require production of specified
documents, the power to require specified information and the power to
require reasonable help), evidence of or derived from the document or
information is not admissible in court proceedings against the individual to
the extent that it tends to incriminate the individual or expose the individual
to a penalty unless the proceedings relate to the false or misleading nature
of the document or information or anything in the document or
information.
Chapter 10 Sanctions and provisions
about liability for offences
Part 10.1 Formal warnings
Clause 532 states that where an authorised officer is reasonably satisfied of
a contravention of the Law (other than a substantial or sever risk breach of
a mass, dimension or loading requirement), the authorised officer may give
the individual a written warning. When the warning is given to the
individual under this section, the person can not be proceeded against for
an offence against this Law constituted by the contravention.
The warning is, however, subject to revocation within 21 days by an
approved authorised officer (being a police officer who is an authorised
officer and whose Commissioner has authorised them or any other
authorised officer, to withdraw warnings), thereby exposing the offender to
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the possibility of proceedings for the contravention for which the warning
was given.
Part 10.2 Infringement penalties
Clause 533 authorises the Regulator to keep a record of infringement
notices issued and paid. The recorded information may be used for
research purposes, for proceeding related to the offence or if the
information is relevant in deciding whether the individual is a systematic or
persistent offender for the purpose of issuing a supervisory intervention
order or prohibition order.
A payment of the penalty under an infringement notice is not generally a
conviction but may be relevant to the exercise of a power or to some
proceeding other than one for the offence which was the subject of the
infringement.
Supervisory intervention orders and prohibition orders are respectively
dealt with by Divisions 5 and 6 of Part 10.2 of this Chapter.
Part 10.3 Court sanctions
Division 1 General provisions
Clause 534 states that a court which finds a person guilty of an offence
may impose any one or more of the penalties available under this Part for
that offence.
Clause 535 sets out that in deciding penalty for the contravention of a
mass, dimension or loading requirement, a court is to have regard for the
magnitude of the risk assigned by the Law (which categorises breaches of
its requirements as minor, substantial or severe) to the offence.
The provision explains how the breaches have been determined in terms of
the magnitude of risk in relation to such factors as accelerated road wear,
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unfair commercial advantage, traffic congestion, diminished public
amenity and public safety.
Clause 536 states that where a court is satisfied that there has been a
contravention of a mass, dimension or loading requirement, but is not
satisfied as to the seriousness of the contravention against the offence
categories provided in the Law, the court may treat the breach as being of a
lesser categorised risk breach.
Division 2 Provisions about imposing fines
Clause 537 sets out that the maximum penalties specified in the Law, are
generally those available to be imposed on individual offenders. Where a
body corporate is involved, this provision allows the imposition of a
penalty of up to five times the amount for an individual.
Clause 538 provides examples where penalties are graded by the Law
according to whether the offence is a first, second or subsequent offence.
Subclause 538 (2) makes it clear that it is the conduct giving rise to the
offence which is in view. A single act might for example, involve the
commission by the same individual of two offences, but the two offences
could not be counted separately for the purpose of determining whether
either offence was a second or subsequent offence.
Division 3 Commercial benefits penalty orders
Clause 539 provides that a court which finds a individual guilty of an
offence may, on application of the prosecution, impose a gross commercial
benefits penalty of up to three times the actual or anticipated gross
commercial benefit (disregarding in the calculations any costs, expenses or
liabilities in obtaining that benefit), which the court estimates was or would
have been but for intervention by an authorised officer, derived from the
conduct giving rise to the offence.
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Division 4 Cancelling or suspending registration
Clause 540 states that a court convicting an individual of an offence may
cancel or suspend the registration of a heavy vehicle to which the offence
relates and to which the individual convicted is the registered operator. In
addition, the court may disqualify the person or an associate of the person
from applying for registration for a specified time.
The term associate is defined in terms of family, employment, corporate or
business relationships in provision 5 of the Law.
Provision is made to protect the rights of individuals who may not be
present in court, by granting them opportunity to show cause why the court
should not order the suspension or cancellation.
Division 5 Supervisory intervention orders
Clause 541 (Division 5) applies in situations where a court that convicts an
individual of an offence against the Law, considers that the individual is or
is likely to become a systematic or persistent offender, having regard to the
circumstances of present convictions and other convictions of the
individual.
Clause 542 maintains that in a case to which Division 5 applies, the court,
on application of the prosecution or the Regulator, may make a supervisory
intervention order requiring the convicted individual to:
· do stated things to improve the individual's compliance with the Law
(such as appointing or training staff, obtaining expert advice or
installing equipment); or
· implement stated practices, systems or procedures for monitoring or
ensuring compliance; or
· give compliance reports to the Regulator and/or the court; or
· appoint a person to assist in improving compliance.
A supervisory intervention order may be made for up to 1 year and the
convicted person must bear the cost of complying with it.
Clause 543 provides that the court may make a supervisory intervention
order only if satisfied the order is capable of improving the convicted
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person's ability or willingness to comply with the Law, having regard to the
person's record of offences.
Clause 544 states that a court may suspend any other order it makes until
the supervisory intervention order ends, unless the court is satisfied that
there has been substantial failure to comply with the supervisory
intervention order.
Clause 545 specifies that on application by the Regulator or a person to
whom a supervisory intervention order applies, the court that made the
order may amend or revoke the order if satisfied there has been a change in
circumstances warranting the amendment or revocation.
Clause 546 provides that a person to whom a supervisory intervention
order applies must comply with the order unless the person has a
reasonable excuse. A maximum penalty of $10,000 applies.
Clause 547 states that if both a supervisory intervention order and a
prohibition order (made under Division 6 apply to an individual, the former
is ineffective until the prohibition order has ceased to apply.
Division 6 Prohibition orders
Clause 548 applies Division 6 in situations where a court that convicts a
person of an offence against the Law, considers that the individual is or is
likely to become a systematic or persistent offender, having regard to the
circumstances of the present conviction and other convictions of the
individual.
Clause 549 states that in a case to which Division 5 applies, the court, on
application of the prosecution or the Regulator, may make a prohibition
order prohibiting the convicted person from having a stated role or
responsibility in road transport for up to 1 year. Subclause 549(2) provides
that such a role or responsibility does not extend to holding a driver licence
or having a vehicle registered or licensed under an Australian road law.
The term Australian road law is defined in provision 5 to mean the Law or
another law regulating the use of vehicles on roads.
Clause 550 provides that a court may only make a prohibition order if
satisfied that the convicted person should not continue to have the role or
responsibility prohibited by the order and that, in the light of the person's
previous offences, a supervisory intervention order would be inappropriate
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Clause 551 maintains that on application by the Regulator or the person to
whom a prohibition order applies, the court that made the order may amend
or revoke the order if satisfied there has been a change in circumstances
warranting the amendment or revocation.
Clause 552 states that a person to whom a prohibition order applies must
comply with the order unless the person has a reasonable excuse. A
maximum penalty of $10000 applies.
Division 7 Compensation orders
Clause 553 provides that a court that convicts a person of an offence
against the Law may make a compensation order requiring the convicted
person to pay the road manager an amount awarded by the court in respect
of damage to road infrastructure resulting from the offence.
Clause 5 defines road manager as a public authority declared by law to be
the manager of a particular road for the purposes of the Law. Subclause 553
(3) allows the order to be made in respect of damage which the court is
satisfied on the balance of probability was caused or partly caused by the
offence. Subclause 553 (4) provides that the order may be made at the point
of conviction or later.
Clause 554 states that a wide discretion is conferred on the court in
assessing compensation. Subclause 554 (2) however, sets out some
matters, including evidence and other relevant considerations, to which it
may have regard.
The evidence which a court may consider in some circumstances includes
certificate evidence given by a person on behalf of a public authority which
is a road manager. In these circumstances subclause 554(3) provides that it
is to be presumed, unless otherwise proved, that the person who signs the
certificate had authority to do so.
Clause 555 sets out further procedures attending the use of and challenges
to, certificate evidence for which clause 554 provides.
Clause 556 requires that the compensation not:
· exceed the proportion of the loss attributable to the offender or any
monetary limit in the court's civil jurisdiction, and
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· be attributable to death, personal injury, the road manager's loss of
income (as might happen where a toll booth was demolished) or loss
to property that is not road infrastructure.
Clause 557 states that the court has the same power to award costs in
relation to proceedings for the making of a compensation order as it has in
relation to civil proceedings.
Clause 558 provides that compensation orders and associated costs orders
can be enforced in the same way as priers for costs in civil proceedings
before the court.
Clause 559 recognises that civil proceedings are sometimes brought to
recover damages for loss associated with damage to road infrastructure and
provides safeguards both for the road manager and the offender by
preventing unjust enrichment arising from multiple proceedings but also
preserving the road manager's right to institute civil proceedings.
Part 10.4 Provisions about liability
Division 1 Reasonable steps defence
Clause 560 states that many of the offence provisions of the Law exclude
the mistake of facts defence (under which a person's belief in a state of
facts which, if true, would have avoided liability). The Law however,
provides a reasonable steps defence and this provision further explains the
reasonable steps defence.
The reasonable steps defence is a defence for a person to show that they did
not know and could not reasonably be expected to have known of a
contravention of the Law and that they took all reasonable steps to prevent
the contravention or could do nothing to prevent the contravention.
Division 2 Matters relating to reasonable steps
Clause 561 specifies that some of the offences the Law provides involve a
person having failed to take all reasonable steps to do or avoid an outcome,
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while other offences provide a reasonable steps defence as outlined in
clause 560 (above). This provision states that Division 2 applies in both
such situations.
Clause 562 states that a court is given a wide discretion in determining
whether reasonable steps have been taken in regards to mass, dimension or
loading offences. In addition, the provision sets out several factors that may
be relevant to a court when determining whether a person took all
reasonable steps.
Clause 563 applies if the operator or owner of a heavy vehicle seeks to rely
on the reasonable steps defence in relation to a charge of contravening a
mass requirement. The provision excludes from the reasonable steps
defence, reliance on a container weight declaration (as defined in clause 5)
which is known or ought reasonably to have been known, to be inaccurate.
Clause 564 confers a wide discretion on a court in determining reasonable
steps in relation to a speeding offence under Chapter 5 or a fatigue
management offence under Chapter 6. In addition, the clause sets out
certain matters which the court may have regard for.
Clause 565 states that some of the provisions in Chapter 5 regarding
speeding and in Chapter 6 regarding fatigue, impose extended liability on a
party within the chain of responsibility, who would normally have some
measure of control over the road transport task. This clause explains how
the reasonable steps defence may apply to a party within the chain of
responsibility if charged.
Clause 566 authorises the making of regulations about matters dealt with in
clause 565 (above).
Clause 567 provides that compliance with a registered industry code of
practice may sometimes be relevant to a reasonable steps defence. This
clause sets out procedures to be followed in such a case. Clause 646 deals
with the registration of industry codes of practice.
Clause 568 provides that the exercise of reasonable diligence is included
within the concept of reasonable steps.
Division 3 Other defences
Clause 569 defines the term deficiency in relation to a heavy vehicle for
purposes of Division 3. The term includes for example a vehicle being
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unsafe, the contravention by a vehicle of a vehicle standard and a
deficiency constituted by the absence of a particular thing required to be in,
or displayed on, the vehicle.
Clause 570 provides a defence to an owner or operator of a heavy vehicle
where it is proved that the person using the vehicle did so without lawful
entitlement.
Clause 571 provides a defence to a driver charged with an offence
involving a deficiency of the kind described in clause 569. The defence
applies where the driver can prove that they did not cause the deficiency,
did not know and could not reasonably know or be expected to find out
about the deficiency and had no control or responsibility in respect of the
deficiency.
Division 4 Other provisions about liability
Clause 572 states that in determining whether a person ought reasonably to
have known something for the purposes of the Bill, a court is required, by
clause 572, to consider relevant factors including the person's abilities,
experience, expertise and knowledge.
Clause 573 sets out that where the Bill imposes liability on more than 1
person, proceedings against any one of the persons can be taken regardless
of whether proceedings against the other person or persons have
commenced or concluded, and regardless of the outcome of any such
proceedings.
Clause 574 protects a person from being punished more than once for the
same contravention of this Law or for the same offence.
Clause 575 states that in some provisions of the Bill, an offence involves
both an act or omission and a particular state of mind (such as knowledge
or intent) on the part of the alleged offender. In such a case, clause 574
provides that where somebody else (such as an employee or agent) was
acting on behalf of the alleged offender, it is sufficient to prove the state of
mind of that person rather than that of the offender.
Clause 576 provides that where a corporation commits an offence (whether
or not it has been prosecuted or convicted of the offence), each executive
officer is liable for the same offence. In such a case, the executive officer is
only liable for the penalty applying to an individual, and not the 5 times
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greater penalty applying to a corporation under clause 536. Subclause 576
(3) provides defences for executives to prove the exercising of reasonable
diligence or that they were not in a position to influence the conduct of the
corporation. In addition, subclause 576 (5) protects unpaid executives from
liability under this provision.
Clause 5 defines executive officer as someone who is concerned in or takes
part in the corporation's management.
Clause 577 applies the Law to an unincorporated local government
authority in the same way that it applies to a body corporate.
Clause 578 subjects each of the individual partners to the same penalty as
an individual where their partnership would otherwise be liable.
Subclause 578 (3) provides a defence for a partner who can prove the
exercise of reasonable diligence or that they were not in a position to
influence the conduct of the partnership.
Clause 579 makes provision for the liability of those involved in the
management of unincorporated bodies and is similar to the provision
relating to partners in clause 578.
Clause 580 explains that references within the Chapter to the operator of a
heavy vehicle, generally means the registered operator. However, special
provision is made for cases of vehicles in combinations (where different
operators may have responsibility for different vehicles comprising the
combination) and for situations where the registered operator is not, at the
relevant time, the actual operator of the vehicle.
Chapter 11 Reviews and appeals
Part 11.1 Preliminary
Clause 581 provides definitions for terms used in Chapter 11 which
include public safety ground, relevant appeal body, relevant jurisdiction,
reviewable decision, review application, review decision and reviewer.
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Part 11.2 Internal review
Clause 582 outlines the timeframes and other requirements that apply
when a dissatisfied person applies for an internal review. The clause
provides that the dissatisfied person is entitled to get a statement of reasons
for the original decision they are seeking to have reviewed, even if the
provision under which the decision was made does not specify that the
person must be given at statement of reasons. The clause further ensures
that if a person is not given an information notice they may ask the
Regulator to provide the statement of reasons.
This clause also defines `dissatisfied person' to ensure there is clear
identification of persons entitled to seek a review of a reviewable decision.
Clause 583 allows a person who applied for review of a reviewable
decision of the Regulator or an authorised officer to apply to the relevant
appeal body for a stay of the decision being reviewed. Reviewable
decisions made on the basis of a public safety ground are excluded as it is
not appropriate for decisions to amend or cancel an exemption or a mass or
dimension authority for public safety reasons to be stayed. The clause
outlines the timeframes and processes that apply to the application for a
stay and makes it clear that the appeal body may stay the reviewable
decision to secure the effectiveness of the review and any later appeal.
Clause 584 requires the Regulator to refer applications for the review of
decisions of a road manager to the road manager within 2 business days of
receipt.
Clause 585 explains who may decide an internal review of a reviewable
decision and how the review is to be conducted.
Clause 586 requires the reviewer to, within the prescribed period as
defined in the clause, make a review decision to either confirm or amend
the reviewable decision or to substitute another decision for the reviewable
decision. The clause outlines the effect of each type of review decision.
The clause further requires a road manager that is a reviewer to give the
Regulator notice of the review decision and reasons.
Clause 587 requires the Regulator to give the applicant a review notice of
the review decision as soon as practicable, or for decisions where the
reviewable decision was made by a road manager, within 7 days of the
reviewer giving the Regulator the notice of the decision. If the review
decision is not the decision sought by the applicant, the review notice must
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include the reasons for the decision and whether or not an appeal is
available and, if so, how to appeal. This clause also provides, for review
decisions relating to mass and dimension permits, that the review notice
provide information to assist in calculating the relevant jurisdiction for any
appeal if available. This clause also explains that if a reviewer fails to
make a review decision in the prescribed time, the reviewable decision is
taken to be confirmed.
Part 11.3 Appeals
Clause 588 allows a person to appeal a review decision of a reviewable
decision made by the Regulator or an authorised officer to the relevant
appeal body and outlines the timeframes that apply. This clause also
provides that the filing of an appeal does not affect the review decision
unless the review decision is stayed.
Clause 589 allows a person who has lodged an appeal against a review
decision of a reviewable decision of the Regulator or an authorised officer
to apply to the relevant appeal body for a stay. Reviewable decisions made
on the basis of a public safety ground are excluded as it is not appropriate
for decisions to amend or cancel an exemption or a mass or dimension
authority for public safety reasons to be stayed. The clause outlines some
timeframes and processes that apply to the application for a stay. The
clause provides that the appeal body may stay the operation of the review
decision to secure the effectiveness of the appeal and may give the stay on
conditions and it may be amended or revoked.
Clause 590 outlines the powers of the appeal body including that the
appeal is to be by way of rehearing and made unaffected by the review
decision and on the material before the appeal body and any other evidence
it accepts. The clause requires the appeal body to either: confirm the
review decision, set aside the review decision and substitute another
decision or return the matter to the person who made the reviewable
decision with directions.
Clause 591 indicates the effect where the relevant appeal body substitutes a
decision for a review decision on appeal.
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Chapter 12 Administration
Part 12.1 Responsible Ministers
Clause 592 provides for the responsible Ministers as a group to be able to
give directions to the Regulator about the policies to be applied by the
Regulator. While the Regulator must comply with a direction of the
responsible Ministers, the responsible Ministers are not able to direct the
Regulator regarding a particular person, heavy vehicle or application or
proceeding. This clause aims to ensure the Regulator is provided with
strategic policy guidance without erosion of the Regulator's independence
as a statutory authority entitled to make its own decisions.
Clause 593 allows a responsible Minister for a participating jurisdiction to
refer matters relevant to the responsible Minister's jurisdiction to the
Regulator for action or information. These referrals must be consistent
with the directions or guidelines issued by the responsible Ministers as a
group and cannot interfere with the independent exercise of the Regulator's
functions under the law. The Regulator may also charge a reasonable fee
based on the cost of dealing with the referral.
Clause 594 provides the responsible Ministers may approve guidelines
about the following matters:
· Granting registration exemptions
· Granting vehicles standards exemptions
· Granting mass or dimension exemptions
· Granting Class 2 heavy vehicle authorisation
· Granting electronic recording system approvals
· Granting work and rest hour exemptions
· Granting work diary exemptions
· Granting or issuing exemptions, authorisations, permits or authorities
or making declarations under national regulations.
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The clause provides that guidelines are to be published in the
Commonwealth Gazette and made available for inspection without charge
at the office of the Regulator and on the Regulator's website.
Clause 595 lists other matters the responsible Ministers may approve
including:
· A standard for sleeper berths
· Standards and business rules relating to fatigue, maintenance and
mass management schemes
· A class of auditors for accreditation schemes.
The clause provides the approvals are to be published in the
Commonwealth Gazette and made available for inspection without charge
at the office of the Regulator and on the Regulator's website.
Clause 596 provides that the responsible Ministers, as a group, decide their
procedures including voting requirements for making decisions under the
law unless the law otherwise specifies. An example of when the law
otherwise specifies a procedure is clause 603 which indicates the
responsible Ministers' recommendation for appointment of Board
members is to be unanimous.
This clause also clarifies that changes to the membership of the responsible
Ministers do not invalidate prior decisions.
Part 12.2 National Heavy Vehicle Regulator
Division 1 Establishment, functions and powers
Clause 597 establishes the National Heavy Vehicle Regulator. The clause
further explains that the application of this Law by one or more State or
Territory Parliaments has the effect of creating a single national Regulator
that is able to exercise its functions in one or across all participating
jurisdictions. `This Law' and `participating jurisdiction' are defined in
clause 5 to ensure that jurisdictions, that do not enact an Act to apply the
Heavy Vehicle National Law but instead enact a law that substantially
corresponds with the Heavy Vehicle National Law, or enact a law that is
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prescribed by a national regulation, are still participating jurisdictions with
the laws being administered and enforced by the same national Regulator.
Clause 598 provides that the Regulator:
· is a body corporate with perpetual succession,
· has a common seal, and
· can sue and be sued in its own corporate name.
This clause also states that the Regulator represents the State.
Clause 599 provides for the general powers of the Regulator including its
ability to enter contracts, acquire, hold, dispose of and deal with real and
personal property and other things necessary or convenient in the
performance of its functions. This clause also provides that the Regulator
may enter into service agreements with participating jurisdictions. Service
agreements may be for the jurisdiction to undertake activities for the
Regulator to assist the Regulator in performing its functions, with examples
including, but not limited to:
· provision of customer service facilities by staff in jurisdictions.
· provision of enforcement or vehicle inspection services
Service agreements may also be about the Regulator providing services for
a jurisdiction, with examples including, but not limited to:
· collection of compulsory third party insurance by arrangement with a
jurisdiction or insurance provider,
· collection of vehicle registration duty
· collection of other monies
· provision of additional enforcement services.
Clause 600 provides that the main function of the Regulator is to achieve
the object of this law as provided in clause 3. The clause further describes
a range of functions in more detail, but this list of functions is not to be
considered limiting.
Clause 601 indicates that the Regulator is able to exercise its functions in
cooperation with, or with the assistance of, a participating jurisdiction and
the Commonwealth including government agencies such as departments or
other entities of a participating jurisdiction and the Commonwealth. In
particular, jurisdictions and the Commonwealth can share information with
the Regulator to use in the exercise of its functions.
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Clause 602 provides for the Regulator to be able to delegate its functions
to:
· The chief executive of an entity or department of a participating
jurisdiction or the Commonwealth
· The Regulator's Chief Executive Officer or another member of the
Regulator's staff
· A person engaged as a contractor of the Regulator,
· Any other person the Regulator considers is appropriately qualified to
exercise the function.
`Appropriately qualified' is defined in clause 5 and can include
qualifications, experience or standing. An example of appropriate standing
would include a person's position within a public service department of a
participating jurisdiction.
As required under clause 30 of schedule 1 `Miscellaneous provision
relating to interpretation', the Regulator's delegations will be by written
instrument and may be limited or issued subject to conditions as the
Regulator sees fit. A delegate may be allowed to further sub-delegate the
function if permitted to do so through the written instrument of delegation.
This approach to delegation accommodates likely operational
arrangements for the Regulator including service agreements with
jurisdictions, other arrangements with contractors to provide services for
the Regulator, but is flexible enough to accommodate other arrangements
for the provision of services to the Regulator into the future.
Division 2 Governing board of Regulator
Subdivision 1 Establishment and function
Clause 603 establishes the governing board for the Regulator. The clause
further explains that the application of this Law by one or more State or
Territory Parliaments has the effect of creating a single national Board that
is able to exercise its functions in one or across all participating
jurisdictions. `This Law' and `participating jurisdiction' are defined in
clause 5 to ensure that even jurisdictions that do not enact an Act to apply
the Heavy Vehicle National Law but instead enact a law that substantially
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corresponds with the Heavy Vehicle National Law or enact a law that is
prescribed by a national regulation are still participating jurisdictions with
the same single national Board governing the national Regulator.
Clause 604 provides for the appointment of the board members by the
Queensland Minister on the unanimous recommendation of the responsible
Ministers. The Queensland Minister is defined in clause 5 to mean the
responsible Minister for Queensland. The Board will consist of 5 members
with at least one member having expertise in transportation policy, at least
one member having expertise in economics, law, accounting, social policy,
or education and training and at least two members having expertise in
financial management skills, business skills, administrative expertise or
another skill considered relevant by the responsible Ministers such as
expertise in heavy vehicle safety. This clause aims to ensure the
responsible Ministers have the flexibility to appoint the Board it considers
appropriate to govern the Regulator in the exercise of its functions.
The clause also provides that the Queensland Minister will, in accordance
with the unanimous recommendation of the responsible Ministers, also
appoint the Chair and Deputy Chair for the Board from amongst the board
members.
Clause 605 provides that the affairs of the Regulator are to be controlled by
the Board. The Board's functions include, subject to directions of the
responsible Ministers, deciding the policies of the Regulator and ensuring
the Regulator performs its functions in a proper, efficient and effective way.
Subdivision 2 Members
Clause 606 provides for the term of office for Board members being up to
three years as determined in their instrument of appointment. The clause
allows for members to be reappointed if otherwise qualified.
Clause 607 provides for the responsible Ministers to determine the
remuneration for Board members.
Clause 608 provides when the office of a Board member becomes vacant
including allowing for the Queensland Minister to remove a Board member
from office if the responsible Ministers recommend the removal based on
the member engaging in misconduct or where they have failed to or are
unable to properly exercise their functions as a Board member. This will
allow a Board member to be removed for matters of incapacity,
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incompetence of misbehaviour. Under clause 595 the responsible
Ministers will decide their own procedures including voting requirements
for decisions to remove a Board member.
Clause 609 requires a Board member to give notice to the responsible
Ministers of certain events including if they are convicted of an offence or
have become bankrupt.
Clause 610 provides for an extension in term of office for up to six months
for a Board member if their term of office has been completed but the
member has not yet been reappointed or the vacancy has not otherwise
been filled.
Clause 611 requires Board members to exercise their functions impartially
and in the public interest.
Clause 612 requires Board members to disclose as soon as possible after
they become aware of any direct or indirect pecuniary interests or other
interests that may conflict with the exercise of the member's function as a
Board member. The nature of the conflict must be recorded in a register of
interests kept by the Board. Generally, after disclosure of the conflict of
interest, the member must not be present during deliberations or participate
in any matter that may be affected by the conflict of interest. However, if
the member with the conflict is the Chair of the Board, the responsible
Ministers may decide to allow the Chair to continue to participate in
matters related to the conflict. Similarly, the clause provides for another
Board member, the Board may decide to allow a member to participate
despite the conflict of interest. If a Board member contravenes this section,
any decision of the Board is not invalidated, but the Board must reconsider
the prior decision.
Subdivision 3 Meetings
Clause 613 provides for the general procedure for calling and conduct of
meetings of the Board to be determined by the Board.
Clause 614 provides a quorum for a meeting of the Board is the majority of
its members.
Clause 615 allows the chief executive officer of the Regulator to attend
Board meetings and to participate in discussions. However, the chief
executive officer is not entitled to vote. Also the chief executive officer
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must disclose any direct personal interest in matters before the Board and
must not be present during consideration of these matters.
Clause 616 describes who will be the presiding member at a Board
meeting and, if the voting is otherwise tied, this clause provides for the
presiding member to have a second vote to decide the matter.
Clause 617 provides that a decision of the Board is a decision of the
majority of votes cast at a meeting where there is a quorum present.
Clause 618 provides that the Chairperson or presiding member is to ensure
minutes are taken of meetings.
Clause 619 provides for the Chairperson to call the first meeting.
Subsequent calling of meetings will be governed by the procedures in
developed under clause 613.
Clause 620 provides that a decision of the Board is not invalidated by a
defect in a Board member's appointment.
Subdivision 4 Committees
Clause 621 allows the Board to establish committees to assist in the
exercise of the Board's functions.
Division 3 Chief executive officer
Clause 622 provides for a chief executive officer for the Regulator to be
appointed by the Board. The chief executive officer may be appointed for a
maximum of five years, but may be reappointed. The chief executive
officer is considered to be a member of the staff. As a member of staff, the
remuneration and conditions of employment are governed by clause 624.
Clause 623 provides the chief executive officer is responsible for the day to
day management of the Regulator and any other functions conferred by the
Board.
Clause 624 allows the chief executive officer to delegate is functions, other
than the power of delegation, to appropriately qualified members of the
Regulator staff or chief executives of departments or other entities in
participating jurisdictions or the Commonwealth.
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Division 4 Staff
Clause 625 provides for the Regulator to employ staff, including the chief
executive officer, on terms and conditions decided by the Regulator subject
to any relevant industrial award or other agreement that applies to the staff.
Clause 626 allows staff from participating jurisdictions, the
Commonwealth or local governments to be seconded to the Regulator.
Clause 627 allows the Regulator to engage contractors and consultants.
Part 12.3 Miscellaneous
Division 1 Finance
Clause 628 establishes the National Heavy Vehicle Regulator Fund to be
administered by the Regulator. The Fund does not form part of the
consolidated fund or consolidated account for any participating jurisdiction
or the Commonwealth.
Clause 629 provides for the monies that are to be paid into the Fund
including:
· Money appropriated by a Parliament for the purposes of the Fund
· Fees, charges, costs and expenses paid to or recovered by the
Regulator under the Law
· Proceeds of investments of money in the Fund
· Subject to any declared trusts, all grants, gifts and donations made to
the Regulator
· Money directed to be paid into the Fund by this Law or another law of
a participating jurisdiction or the Commonwealth
· Other money or property received by the Regulator in connection with
the exercise of its functions
· Money paid to the Regulator for the provision of services under a
service agreement to a State or Territory.
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Clause 630 provides that the moneys that may be paid out of the Fund
include:
· Costs, expenses, discharging any liabilities incurred in the
administration or enforcement of this Law, including payments to
States and Territories for the provision of services under a service
agreement
· Moneys directed to be paid out of the Fund under this Law
· Other payments recommended by the Regulator and approved by the
responsible Ministers.
Under clause 596 the responsible Ministers will decide their own
procedures including voting requirements for approval of payments out of
the Fund under 630 (c).
Clause 631 allows the Regulator to make secure, low risk investments of
moneys in the Fund.
Clause 632 requires the Regulator to:
· carry out its operations efficiently, effectively and economically
· keep proper books and records for all money it receives
· ensure expenditure from the Fund is for lawful purposes and
reasonable value for money is received from money expended from
the Fund
· have procedures that afford adequate safeguards for correctness,
regularity and proprietary of payments from the Fund, receiving and
accounting for payments into the Fund and prevention of fraud and
mistake
· prepare financial statements in accordance with Australian ccounting
Standards
· facilitate audits of financial statements including any additional audits
required by the responsible Ministers.
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Division 2 Reporting and planning
arrangements
Clause 633 provides for the Regulator to prepare an annual report within 3
months of the end of each financial year. The clause outlines the matters to
be included in the annual report and these may include matters prescribed
under national regulations. The clause also provides for the tabling of the
annual report in the Parliaments of each participating jurisdiction and the
Commonwealth and that it is to be published on the Regulator's website.
Clause 634 provides that the responsible Ministers may direct the
Regulator to provide other reports relating to the exercise of the Regulator's
functions.
Clause 635 provides for the Regulator to annually provide a 3 year
corporate plan to the responsible Ministers for approval. The corporate
plan is to include the Regulator's objectives, how the Regulator intends
achieving the objectives and the proposed budget of the Regulator. The
clause also requires the Regulator to advise the responsible Ministers if it
makes a significant amendment to the corporate plan or if an issue arises
that would have a significant impact on implementing an objective.
Division 3 Oversight of the Regulator and Board
Clause 636 provides for the application of the following Commonwealth
Acts: Archives Act 1983, Freedom of Information Act 1982, Ombudsman
Act 1976,and the Privacy Act 1988 to guide the procedures and standards
appropriate for privacy, access to information and scrutiny of policies of
the Regulator and the Board. National regulations will be used to modify
the Commonwealth Acts to ensure they can operate effectively for this
scheme. In particular, the national regulations will be used to ensure the
Commonwealth laws are, for the purpose of this scheme, laws of each State
and Territory and to make necessary adjustments to cater for administrative
arrangements.
Clause 637 provides that persons exercising functions under the Heavy
Vehicle National Law must act honestly and with integrity, in good faith
and with a reasonable degree of care, diligence and skill. This clause also
provides for an offence for a person improperly using their position or
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information that comes to their knowledge through the exercise of their
functions under this Law.
Clause 638 provides for the protection of personal liability for some of the
person's exercising functions under the Law. For `protected persons'
liability instead attaches to the Regulator. `Protected persons' has been
defined to clarify who would be indemnified and who would not. Where
the definition of `protected person' in this clause refers to any other person
exercising functions under this Law' it relates to functions of the Regulator
and not other types of activities that may be mentioned in the law. For
example, placing an electronic work diary label under clause 315 or a
statement by an approved auditor under clause 409 may be activities
identified in this law but it is not a function under this law.
Chapter 13 General
Part 13.1 General offences
Division 1 Offence against or victimisation of
employees
Clause 639 provides protection for employees or prospective employees
from being dismissed, discriminated against or victimised because they
have helped or provided information to a public authority or a law
enforcement agency (both of which terms are defined in clause 5) or made
a complaint about a contravention or alleged contravention of this Law.
Such protection is afforded by the creation of offences by an employer or
potential employer for such conduct, with a maximum penalty of $10000
applying to each offence.
There is a reverse onus of proof for an offence against this clause. If all the
facts constituting the offence are proved other than the reason for the
defendant's action, the defendant must prove that the defendant's action
was not for the reason that the employee or prospective employee helped or
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gave information to a public authority or law enforcement agency or made
a complaint.
Clause 640 establishes that if an employer is convicted of an offence
against clause 639 the court may impose one or more of a range of orders
as well as a penalty for the offence. For example, a court may order the
employer to pay damages to or reinstate the employee.
It is an offence for a person against whom an order is made not to comply
with the order, with a maximum penalty of $10000 applying.
Division 2 Offences about false or misleading
information
Clause 641 creates offences for a person who knowingly provides false or
misleading statements to an official (with a maximum penalty of $10000
applying) or who recklessly provides false or misleading statements to an
official (with a maximum penalty of $8000 applying).
Clause 642 creates offences for a person who knowingly provides false or
misleading documents to an official (with a maximum penalty of $10000
applying) or who recklessly provides false or misleading documents to an
official (with a maximum penalty of $8000 applying).
Clause 643 creates an offence for a responsible person for a heavy vehicle
(defined in clause 5) to give information to another responsible person for a
heavy vehicle that they know or ought reasonably to know is false or
misleading. A maximum penalty of $10000 applies. For example, a person
who prepares the schedule for a heavy vehicle must not provide
information to the driver of a heavy vehicle about the schedule that they
know or reasonably ought to know is false or misleading.
Clause 644 creates a range of offences, each with a maximum penalty of
$10000, for falsely representing that a current and properly issued heavy
vehicle authority is held. A heavy vehicle authority is a heavy vehicle
accreditation or an exemption, authorisation, permit or other authority
issued under this law. For example, this clause creates an offence for a
person to represent that they hold a mass or dimension exemption (permit)
to operate a class 1 heavy vehicle or a class 3 heavy vehicle which does not
comply with a dimension requirement vehicle and to operate the vehicle
accordingly, if no such permit is held.
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Heavy Vehicle National Law Bill 2011
Part 13.2 Industry codes of practice
Clause 645 enables the Regulator to make guidelines for industry codes of
practice that may be registered under the Law.
Clause 646 provides that the Regulator may register an industry code of
practice prepared in accordance with the guidelines. In doing so the
Regulator may make the registration subject to conditions. For example,
the Regulator may register an industry code of practice on the condition
that it is reviewed after a certain period. The Regulator may amend or add
conditions or cancel the registration if a condition applying to the
registration is contravened or the guidelines in force under clause 645 are
changed and the registered code does not comply with the amended
guidelines.
Part 13.3 Legal proceedings
Division 1 Proceedings for offences
Clause 647 provides that a proceeding for an offence against this law is to
be by way of a summary proceeding and establishes the maximum period
for which a proceeding must start as being the later of 2 years after the
commission of the offence or 1 year from when the offence comes to the
complainant's knowledge but within 3 years after the commission of the
offence.
The period provided for the commencement of proceedings is longer than
normally allowed under the Justices Act 1886 and is a potential breach of
fundamental legislative principles.
Division 2 Evidence
Clause 648 provides that it is not necessary to prove the appointment of an
official or the police commissioner.
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Clause 649 provides that a signature purported to be the signature of an
official or the police commissioner is evidence of the signature.
Clause 650 provides that in a proceeding for an offence against this Law,
certain statements made in the complaint for the offence are evidence of the
matters so stated. Examples of matters that may be stated include that at a
stated time or during a stated period a vehicle or combination was a heavy
vehicle, or that a person was the registered operator of a heavy vehicle, or
that a stated location was or was part of a road or a road-related area.
This clause effectively shifts the evidential burden to the accused person
and is a potential breach of fundamental legislative principles.
Clause 651 provides that a certificate issued by the Regulator may be used
as evidence of the matter so stated in the certificate. Examples of matters
that may be stated include that at a stated time or during a stated period a
vehicle was or was not registered under this Law, or a stated exemption or
authorisation under this Law applied or did not apply to the stated person
or stated heavy vehicle.
This clause effectively shifts the evidential burden to the accused person
and is a potential breach of fundamental legislative principles.
Clause 652 provides that a certificate issued by a road authority may be
used as evidence of the matter so stated in the certificate. Examples of
matters that may be stated include that at a stated time or during a stated
period a vehicle was or was not registered or licensed under a law
administered by the road authority or a stated location was or was not part
of a road or road-related area.
This clause effectively shifts the evidential burden to the accused person
and is a potential breach of fundamental legislative principles.
Clause 653 provides that a certificate issued by the Regulator stating that a
matter appears in or has been worked out from a record kept by the
Regulator or appears in or has been worked out from a record accessed by
the Regulator for the administration or enforcement of this law, is evidence
of the matter so stated.
This clause effectively shifts the evidential burden to the accused person
and is a potential breach of fundamental legislative principles.
Clause 654 provides that a statement made by an authorised officer about
the functioning of a weighing device or an intelligent transport system is
evidence of the matter so stated.
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This clause effectively shifts the evidential burden to the accused person
and is a potential breach of fundamental legislative principles.
Clause 655 requires that a defendant who intends to challenge evidence
provided by certificate under subclauses 651, 652, 653 or 654(1) must give
notice of their intention to challenge and describes the way in which such
notice is to be given.
Clause 656 provides that a record made by the operator of a weighbridge or
weighing facility about the mass of a heavy vehicle or a component of a
heavy vehicle is admissible in a proceeding under this Law and is evidence
of the mass of the vehicle or component of the vehicle at the time it was
weighed.
Clause 657 provides that a manufacturer may make a written statement as
to a range of matters relating to:
· the mass rating for a heavy vehicle or a component of a heavy vehicle;
or
· the performance rating for equipment used to restrain a load.
The manufacturer's statement is admissible in a proceeding and is evidence
of the matter so stated.
Clause 658 provides that the maximum load capacity marked or printed on
a tyre is evidence of the maximum load capacity for the tyre at cold
inflation pressure decided by the manufacturer. It also provides for how
mass can be determined if it is impracticable to work out the mass on each
tyre in an axle or axle combination.
Clause 659 provides that transport documentation and journey
documentation are admissible in a proceeding under this Law and provide
evidence about certain matters, such as the status of parties to a transaction
and the destination of a load.
Clause 660 provides that evidence obtained in relation to a vehicle is not
affected merely because the vehicle is not a heavy vehicle.
Clause 661 provides that a certificate purporting to be signed by a person
on behalf of TCA is evidence of a matter so stated in the certificate.
Examples of matters that may be stated include that at a stated time or
during a stated period an intelligent transport system was or was not
approved, or that a person was or was not an intelligent access service
provider.
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A person signing a certificate is presumed, unless the contrary is proved, to
have been authorised by TCA to sign the certificate on behalf of TCA.
This effectively shifts the evidential burden to the accused person and is a
potential breach of fundamental legislative principles.
Clause 662 provides that for a range of matters relating to the operation of
an approved intelligent transport system there is a presumption that the
system was operating properly at the time unless proved otherwise.
Examples of matters relating to the operation of the system include the
information generated, stored, displayed, recorded, analysed, reported or
transmitted by the system are correct.
This clause also establishes that in a proceeding where it is established by
contrary evidence that particular information was not a correct
representation of the information generated by the system, the presumption
continues to apply to the remaining information.
A defendant who intends to challenge a matter provided for under this
clause must give notice of their intention to challenge and describes the
way in which such notice is to be given.
This clause effectively shifts the evidential burden to the accused person
and is a potential breach of fundamental legislative principles.
Clause 663 provides that a report purporting to be made by an intelligent
transport system is presumed to have been properly made and correct and is
admissible in a proceeding under this law as evidence of the matters stated
in it.
However this does not apply to information that was manually entered into
the system by the operator or driver of a heavy vehicle. For example if a
driver enters information about the mass of a vehicle into the system, the
mass stated in a report generated by the system is not evidence of the mass
of the vehicle.
It also states that in a proceeding where it is established by contrary
evidence that part of a report was not a correct representation of the
information generated by the system, the presumption continues to apply to
the remainder of the report.
There is a requirement that a defendant who intends to challenge a matter
provided for under this clause must give notice of their intention to
challenge and describes the way in which such notice is to be given.
This clause effectively shifts the evidential burden to the accused person
and is a potential breach of fundamental legislative principles.
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Clause 664 provides that documents purporting to be made by an approved
electronic recording system constituting an electronic work diary or of
which an electronic work diary is a part is admissible in a proceeding under
this Law and is evidence of a matter stated in it.
Clause 665 provides that a statement made by a person involved with the
use or maintenance of an approved electronic recording system constituting
an electronic work diary or of which an electronic work diary is a part
about the maintenance of the system is admissible in a proceeding under
this Law and is evidence of the matters stated in it.
Part 13.4 Protected information
Clause 666 provides definitions of certain terms used in this Part of the
Law including `authorised use', `law enforcement agency' and `protected
information'.
The definition of authorised use provides for the authorisation, disclosure
and use of personal information about a person in certain circumstances,
including without the person's consent. This could infringe on a person's
right to privacy and is a potential breach of fundamental legislative
principles.
Clause 667 places a duty of confidentiality on a person who is or has been
exercising functions under this Law not to disclose protected information
to another person. However, the Regulator may disclose information which
confirms that a stated person is the registered operator of a stated heavy
vehicle or disclosing registration details to the executor or administrator of
a person's deceased estate. In addition, disclosure may be made to an
entity for an authorised use or to, or with, the consent of the person to
whom the information relates.
Clause 668 requires that protected information may only be used for
certain purposes and outlines those purposes.
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Part 13.5 National regulations
Clause 669 gives authority to the Governor of the State of Queensland
acting with the advice of the Executive Council of Queensland to make
regulations under this Law on the unanimous recommendation of the
responsible Ministers.
This clause prescribes the matters which may be included in the regulations
and establishes maximum penalties which may be imposed under the
regulations. The maximum penalty for an individual is $4000 and is
$50000 for a corporation, this is higher than that which is normally
included in regulations.
Clause 670 provides that regulations made under this Law are to be
published on the NSW legislation website.
It also provides that a regulation commences on a day or days to be
specified in the regulation, being not earlier than the date it is published.
Part 13.6 Other
Clause 671 states that the Regulator may approve forms and it requires the
Regulator to publish the approval of a form on its website.
Clause 672 provides that the maximum penalty for an offence or
contravention of a requirement of the Law is the penalty stated at the end of
the relevant provision.
Clause 673 sets out the procedure for serving documents required or
permitted to be served on a person under this Law.
Clause 674 prescribes the procedure for serving documents required or
permitted to be served under this Law by post. It establishes that service is
taken to have been effected at the time at which the letter would normally
be delivered in the ordinary course of post unless proved otherwise.
Clause 675 provides that the regulations may prescribe fees payable for an
application under this Law or for the issue of a work diary for the driver of
a fatigue-regulated heavy vehicle. It also enables the Regulator to set fees
for the provision of a service in connection with the administration of this
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Law (other than the fees which must be prescribed in the regulations), and
establishes that the fees set by the Regulator must be reasonable and not
more than the reasonable cost of providing the service.
It is also a requirement for the Regulator to publish the fees it sets in the
Commonwealth Gazette and on the Regulator's website.
Clause 676 states that a fee, charge or other amount payable under this
Law is a debt due to the Regulator and may be recovered.
Clause 677 has the effect of voiding any contract or agreement to the extent
to which it is contrary to the Law or purports to change the effect of a
provision of the Law or requires the payment or reimbursement of a
penalty payable by another person under the Law.
This clause does not limit parties from entering into a contract that imposes
greater or more onerous obligations than those required by the Law.
Clause 678 provides that this Law does not affect any power a court,
tribunal, or official has apart from the Law. This includes a power or
obligation under another law to amend, suspend, cancel or otherwise deal
with the registration of a heavy vehicle.
Chapter 14 Savings and transitional
provisions
Clause 679 states that any jurisdiction that has signed the
Inter-governmental Agreement on Heavy Vehicle Regulatory Reform may
nominate a responsible Minister (as defined in clause 5) even though the
jurisdiction is not yet a participating jurisdiction (as defined in clause 5) for
the purposes of relevant provisions of the Law. Those are defined in this
clause as the provisions relating to the function of responsible Ministers
other than clause 593. Clause 593 allows a responsible Minister for a
participating jurisdiction to refer a matter relevant to that jurisdiction to the
Regulator for action or to ask the Regulator for information about the
exercise of the Regulator's function as applied in that jurisdiction.
Sub-clause 679(3) specifies that this applies until the prescribed day for the
jurisdiction. This is defined as the earlier of the participation day for the
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jurisdiction (defined in clause 5 as the day it becomes a participating
jurisdiction) or 30 June 2014.
The effect of this clause is to ensure that responsible Ministers may
participate in key decisions of the responsible Ministers as a group during
the initial implementation of the scheme, including recommendations
about appointment of the Board members and national regulations.
Clause 680 provides that if the responsible Ministers rely on clause 30 of
Schedule 1 of the Law to appoint the members of the Board after enactment
but before commencement of clause 604 and a provision conferring a
function on the Board has not yet commenced, the members may meet and
exercise such a function in the same way and subject to the same conditions
as if the relevant provision had commenced. Clause 30 of Schedule 1 deals
with the exercise of specified powers between the enactment of a provision
and its commencement.
For example, the Board may appoint the chief executive officer for the
Regulator even if clause 622 has not yet commenced. This will allow
necessary operational matters to be in place for the simultaneous
commencement of the Regulator and relevant provisions of the Law.
The clause also provides that in exercising functions, Board members are
entitled to receive the remuneration and allowances specified under clause
607, even if that section has not commenced. However, in determining
duration of office, a member's term does not start until clause 604
commences. In addition, the exercise of a function does not confer a right
or impose a liability on a person before the relevant provision commences.
Clause 681 refers to the treatment of the term `de facto partner' in the
definition in clause 5 and how it relates to the Acts Interpretation Act 1901
of the Commonwealth in the event that the amended definition of `de facto
relationship' in the proposed section 2F of the Commonwealth Act
commences after the commencement of clause 5 of the Law.
Schedule 1 Miscellaneous provisions relating to
interpretation
Schedule 1 to the Law contains miscellaneous interpretation provisions of a
kind usually contained in the Interpretation Act of a State or Territory. The
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schedule is necessary to provide consistency in interpretation across
jurisdictions - see clause 10.
Schedule 2 Subject matter for conditions of mass
or dimension authorities
Schedule 2 to the Law sets out the types of conditions the Regulator may
consider appropriate to impose under a mass or dimension exemption
(notice), or a mass or dimension (permit), or a class 2 heavy vehicle
authorisation (permit) - see clauses 100, 106 and 127.
Schedule 3 Reviewable decisions
Schedule 2 to the Law sets out the decisions which are reviewable
decisions for the purposes of Chapter 11 of the Law. Part 1 identifies the
reviewable decisions of the Regulator, Part 2 identifies the reviewable
decisions of an authorised officer and Part 3 identifies reviewable decisions
of a relevant road manager- see clause 581.
© State of Queensland 2011
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