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PARLIAMENT OF VICTORIA
Heavy Vehicle National Law Application Bill 2013
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purposes 1
2 Commencement 2
3 Definitions 2
PART 2--APPLICATION OF HEAVY VEHICLE NATIONAL
LAW 3
4 Application of Heavy Vehicle National Law 3
5 Exclusion of legislation of this jurisdiction 3
6 Disallowance of national regulations 4
7 Rail replacement buses and buses responding to an emergency
exemption 5
8 Return of seized things or samples 7
9 Use of certificates in assessing compensation 7
PART 3--MEANING OF TERMS FOR HEAVY VEHICLE
NATIONAL LAW (VICTORIA) 8
10 Meaning of generic terms in Heavy Vehicle National Law for
the purposes of this jurisdiction 8
11 Authorised warrant official 8
12 Authorised officer 8
13 Infringement Notice Offences Law 9
14 Local government authority 9
15 Relevant tribunal or court 9
16 Responsible Minister 10
17 Road authority 10
18 Road manager 10
19 Road Rules 12
20 Meaning of road and road-related area 12
21 Meaning of convicts and convicted of an offence 13
22 Primary WHS Law 13
23 Power to forfeit particular things or samples 13
24 Infringement offence under the Heavy Vehicle National Law
(Victoria) 13
25 Infringement penalty 14
571278B.I-16/4/2013 i BILL LA INTRODUCTION 16/4/2013
Clause Page
26 Review of decision by VCAT 14
27 Meaning of relevant law 14
28 Toll road authority 14
PART 4--OFFENCES AND LEGAL PROCEEDINGS 16
Division 1--General 16
29 No double jeopardy 16
30 Offences for which the person charged does not have the
benefit of the mistake of fact defence 16
31 Persons who may commence proceedings for offences 17
Division 2--Evidentiary provisions for offences against the Heavy
Vehicle National Law (Victoria) or national regulations 18
32 Average speed evidence of actual speed in certain
circumstances 18
33 Evidence of road distance 19
34 Evidence of speed 20
35 Evidence of engine management system data 20
36 Certain matters indicated by prescribed road safety cameras
are evidence 21
37 Evidence of testing and sealing 22
38 Evidence relating to prescribed road safety cameras 23
PART 5--REGISTRATION OF HEAVY VEHICLES 25
39 Application of Part 25
40 Registration provisions of Heavy Vehicle National Law
(Victoria) do not apply 25
41 GCM 25
42 GVM 25
43 Registration 25
44 Registration exemption 26
45 Registration number 26
46 Vehicle register 26
47 Unregistered heavy vehicle permit 27
48 Compliance with heavy vehicle standards 27
49 Registration of an exempt vehicle 28
50 Cancellation or suspension of an exemption 28
51 Requirements about vehicle defect notice 28
52 Power to cancel or suspend vehicle registration 29
53 Repeal of Part 29
571278B.I-16/4/2013 ii BILL LA INTRODUCTION 16/4/2013
Clause Page
PART 6--GENERAL 30
Division 1--Regulations 30
54 Regulations 30
55 Repeal of transitional regulation making powers 31
Division 2--Savings and transitional provisions 31
56 Definitions 31
57 Authorised officers 31
58 Fatigue management 32
59 Work diary 32
PART 7--CONSEQUENTIAL AMENDMENTS 33
60 Consequential amendments 33
61 Repeal 33
__________________
SCHEDULE--Consequential Amendments 34
PART 1--CONSEQUENTIAL AMENDMENTS ON
COMMENCEMENT OF NATIONAL LAW 34
1 Accident Compensation Act 1985 34
239AAD Regulator may disclose information to Authority 34
2 Accident Towing Services Act 2007 35
3 Children, Youth and Families Act 2005 35
4 Infringements Act 2006 36
5 Interpretation of Legislation Act 1984 36
38I References to Heavy Vehicle National Law 36
6 Local Government Act 1989 36
208AA Heavy Vehicle National Law (Victoria) 36
7 Magistrates' Court Act 1989 36
8 Road Safety Act 1986 36
103ZG Transitional provision Heavy Vehicle National Law
Application Act 2013 38
149A Part does not apply to a heavy vehicle 39
PART 10A--FATIGUE MANAGEMENT LIGHT BUSES 40
Division 1--Application of Heavy Vehicle National Law
(Victoria) 40
191A Definition 40
191B Application of the Heavy Vehicle National Law
(Victoria)--fatigue management of light buses 40
571278B.I-16/4/2013 iii BILL LA INTRODUCTION 16/4/2013
Clause Page
Division 2--Meaning of terms for Heavy Vehicle National
Law (Victoria) 40
191C Meaning of fatigue-regulated heavy vehicle 40
191D Meaning of fatigue-regulated bus 40
191E Meaning of Regulator 41
191F Meaning of responsible Ministers 41
9 Sheriff Act 2009 41
PART 2--CONSEQUENTIAL AMENDMENTS FOR
NATIONAL REGISTRATION 42
10 Accident Towing Services Act 2007 42
11 Environment Protection Act 1970 42
12 Heavy Vehicle National Law Application Act 2013 43
13 Infringements Act 2006 44
14 Motor Car Traders Act 1986 47
42B All heavy vehicles must be sold with a certificate 47
15 Road Safety Act 1986 49
16 Transport Accident Act 1986 50
17 Transport (Compliance and Miscellaneous) Act 1983 52
ENDNOTES 53
Annexure 54
571278B.I-16/4/2013 iv BILL LA INTRODUCTION 16/4/2013
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Heavy Vehicle National Law
Application Bill 2013
A Bill for an Act to provide for the application of a National Law to
regulate the use of heavy vehicles, to make related and consequential
amendments to other Acts and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purposes
The main purposes of this Act are--
(a) to provide for the application of a National
5 Law to regulate the use of heavy vehicles;
and
(b) to make related and consequential
amendments to other Acts.
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Heavy Vehicle National Law Application Bill 2013
Part 1--Preliminary
s. 2
2 Commencement
This Act comes into operation on a day or days to
be proclaimed.
3 Definitions
5 (1) In this Act--
Heavy Vehicle National Law (Victoria) means
the provisions applying in this jurisdiction
because of section 4;
magistrate means a magistrate within the meaning
10 of the Magistrates' Court Act 1989;
Roads Corporation has the same meaning as in
the Transport Integration Act 2010;
Scrutiny of Acts and Regulations Committee
means the committee established under
15 section 5(k) of the Parliamentary
Committees Act 2003;
this jurisdiction means Victoria.
(2) Terms used in this Act and also in the Heavy
Vehicle National Law set out in the Schedule to
20 the Heavy Vehicle National Law Act 2012 of
Queensland have the same meanings in this Act as
they have in that law.
__________________
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Part 2--Application of Heavy Vehicle National Law
s. 4
PART 2--APPLICATION OF HEAVY VEHICLE NATIONAL
LAW
4 Application of Heavy Vehicle National Law
The Heavy Vehicle National Law, as in force
5 from time to time, set out in the Schedule to the
Heavy Vehicle National Law Act 2012 of
Queensland--
(a) subject to Part 5, applies as a law of this
jurisdiction; and
10 (b) as so applying may be referred to as the
Heavy Vehicle National Law (Victoria); and
(c) so applies as if it were an Act.
5 Exclusion of legislation of this jurisdiction
(1) The following Acts of this jurisdiction do not
15 apply to the Heavy Vehicle National Law
(Victoria) or to instruments made under that
Law--
(a) the Financial Management Act 1994;
(b) the Freedom of Information Act 1982;
20 (c) the Information Privacy Act 2000;
(d) the Interpretation of Legislation Act 1984,
other than sections 11, 13 and 46A;
(e) the Monetary Units Act 2004;
(f) the Public Administration Act 2004;
25 (g) the Public Records Act 1973;
(h) the Subordinate Legislation Act 1994
(except as provided by section 6).
(2) However, the Acts referred to in subsection (1)(a),
(b), (c), (f) and (g) apply to a public sector body or
30 a public sector employee exercising a function
under the Heavy Vehicle National Law (Victoria).
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Part 2--Application of Heavy Vehicle National Law
s. 6
(3) The Audit Act 1994 does not apply to the Heavy
Vehicle National Law (Victoria) or to instruments
made under that law, except to the extent that that
law and those instruments apply to--
5 (a) a public sector body and the employees,
decisions, actions and records of the public
sector body in carrying out a function; or
(b) the Auditor-General in carrying out an audit
as required by a national regulation made
10 under section 693(3)(b) of the Heavy
Vehicle National Law (Victoria).
(4) For the avoidance of doubt--
(a) subsection (1)(d) does not limit the
application of the Interpretation of
15 Legislation Act 1984 to a provision of this
Act;
(b) subsection (1)(h) does not limit the
application of the Subordinate Legislation
Act 1994 to regulations made under
20 section 54 of this Act.
(5) In this section--
public sector body has the same meaning as in the
Public Administration Act 2004;
public sector employee has the same meaning as
25 in the Public Administration Act 2004.
6 Disallowance of national regulations
(1) Section 15(1) and Part 5 (except sections
21(1)(ga) and (j)) of the Subordinate Legislation
Act 1994 apply to a national regulation as if--
30 (a) the national regulation were a statutory rule
within the meaning of that Act; and
(b) a reference in section 15(1) of that Act to the
publication of notice of the making of the
statutory rule in the Government Gazette
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Part 2--Application of Heavy Vehicle National Law
s. 7
under section 17(2) of that Act were a
reference to the later of--
(i) the publication of the national
regulation under section 733 of the
5 Heavy Vehicle National Law
(Victoria);
(ii) the day this section comes into
operation.
Note
10 Section 15(1) of the Subordinate Legislation Act 1994
requires that a statutory rule be laid before each House of
Parliament. Part 5 of that Act provides for the suspension or
disallowance of statutory rules in certain circumstances.
(2) If a national regulation is disallowed in whole or
15 in part under the Subordinate Legislation Act
1994, then despite anything to the contrary in that
Act, the disallowed regulation does not, or the
disallowed part does not, cease to have effect in
this jurisdiction unless the disallowed regulation,
20 or disallowed part, is disallowed in a majority of
the participating jurisdictions.
(3) In such a case, the disallowed regulation, or
disallowed part, ceases to have effect on the date
that regulation or part is disallowed in the last of
25 the participating jurisdictions forming the majority
of participating jurisdictions.
7 Rail replacement buses and buses responding to an
emergency exemption
(1) Chapter 6 of the Heavy Vehicle National Law
30 (Victoria) does not apply to a person in the course
of carrying out his or her duties as--
(a) a driver for a rail replacement bus service
who is responding to a rail disruption; or
(b) a driver for a bus service who is responding
35 to an emergency.
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Part 2--Application of Heavy Vehicle National Law
s. 7
(2) In this section--
bus service has the same meaning as in the Bus
Safety Act 2009;
emergency means an event, or an anticipated
5 event, that--
(a) endangers, or may endanger life,
property or the environment; or
(b) has disrupted, or may disrupt,
communications, energy, water supply
10 or sewerage services; or
(c) is declared to be an emergency or
disaster by--
(i) the Commonwealth or a State or
Territory; or
15 (ii) a Commonwealth, State or
Territory authority responsible for
managing responses to
emergencies or disasters;
rail disruption means the unplanned disruption of
20 a rail service that is sufficiently serious to
require the provision of a rail replacement
bus service;
rail replacement bus service means a bus service
(operated by an accredited bus operator
25 within the meaning of the Bus Safety Act
2009) which carries passengers of a
disrupted rail service;
rail service means a train service or a tram
service.
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Part 2--Application of Heavy Vehicle National Law
s. 8
8 Return of seized things or samples
Section 556 of the Heavy Vehicle National Law
(Victoria) applies as if after section 556(4) there
were inserted--
5 "(4A) If the relevant tribunal or court is not
satisfied as set out in subsection (4), it
may--
(a) make an order for the return of the
thing or sample to the person from
10 whom it was seized or to the owner if
that person is not entitled to possess it;
or
(b) make an order that the thing or sample
be forfeited to the State and--
15 (i) destroyed in accordance with the
order; or
(ii) sold in accordance with the order
and the proceeds of the sale paid
into the Consolidated Fund.
20 (4B) An order made under subsection (4A)(b)
cannot take effect before the end of any
applicable appeal period or the determination
of any appeal made within that period.".
9 Use of certificates in assessing compensation
25 Section 613(1) of the Heavy Vehicle National
Law (Victoria) applies as if a reference in that
section to 28 days were a reference to 60 days.
__________________
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Heavy Vehicle National Law Application Bill 2013
Part 3--Meaning of Terms for Heavy Vehicle National Law (Victoria)
s. 10
PART 3--MEANING OF TERMS FOR HEAVY VEHICLE
NATIONAL LAW (VICTORIA)
10 Meaning of generic terms in Heavy Vehicle National
Law for the purposes of this jurisdiction
5 In the Heavy Vehicle National Law (Victoria)--
Roads Corporation has the same meaning as in
the Transport Integration Act 2010;
this jurisdiction means Victoria.
11 Authorised warrant official
10 A magistrate is declared to be an authorised
warrant official for this jurisdiction for the
purposes of the Heavy Vehicle National Law
(Victoria).
Note
15 See section 5 of the Heavy Vehicle National Law (Victoria)
for the definition of authorised warrant official.
12 Authorised officer
(1) A member of the force authorised by the Chief
Commissioner of Police is declared to be an
20 authorised officer for the purposes of Part 9.2 of
the Heavy Vehicle National Law (Victoria).
(2) Any member of the force is declared to be an
authorised officer for the purposes of the Heavy
Vehicle National Law (Victoria) other than
25 Part 9.2.
(3) In this section--
member of the force has the same meaning as in
the Police Regulation Act 1958.
Note
30 See section 5 of the Heavy Vehicle National Law (Victoria)
for the definition of authorised officer.
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Part 3--Meaning of Terms for Heavy Vehicle National Law (Victoria)
s. 13
13 Infringement Notice Offences Law
The Infringements Act 2006 and the regulations
made under that Act are declared to be the
Infringement Notice Offences Law for the
5 purposes of the Heavy Vehicle National Law
(Victoria).
Note
See section 5 of the Heavy Vehicle National Law (Victoria)
for the definition of Infringement Notice Offences Law.
10 14 Local government authority
A Council within the meaning of the Local
Government Act 1989 is declared to be a local
government authority for this jurisdiction for the
purposes of the Heavy Vehicle National Law
15 (Victoria).
Note
See section 5 of the Heavy Vehicle National Law (Victoria)
for the definition of local government authority.
15 Relevant tribunal or court
20 (1) VCAT is declared to be the relevant tribunal or
court for this jurisdiction for the purposes of the
Heavy Vehicle National Law (Victoria) other than
Division 2 of Part 9.4.
Note
25 See section 5 of the Heavy Vehicle National Law (Victoria)
for the definition of relevant tribunal or court.
(2) The Magistrates' Court is declared to be the
relevant tribunal or court for this jurisdiction for
the purposes of Division 2 of Part 9.4 of the
30 Heavy Vehicle National Law (Victoria).
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Part 3--Meaning of Terms for Heavy Vehicle National Law (Victoria)
s. 16
16 Responsible Minister
The Minister responsible for administering this
Act is nominated as the responsible Minister for
this jurisdiction for the purposes of the Heavy
5 Vehicle National Law (Victoria).
Note
See section 5 of the Heavy Vehicle National Law (Victoria)
for the definition of responsible Minister.
17 Road authority
10 The Roads Corporation is declared to be the road
authority for this jurisdiction for the purposes of
the Heavy Vehicle National Law (Victoria).
Note
See section 5 of the Heavy Vehicle National Law (Victoria)
15 for the definition of road authority.
18 Road manager
(1) The following entities are declared to be the road
manager for the following roads for the purposes
of the Heavy Vehicle National Law (Victoria)--
20 (a) the Roads Corporation for--
(i) a freeway;
(ii) an arterial road;
(iii) the Extension road;
(iv) the Link road;
25 (v) the EastLink;
(vi) the Peninsula Link Freeway;
(b) the relevant responsible road authority under
section 37(1)(c) or (d) of the Road
Management Act 2004 for a non-arterial
30 State road;
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Heavy Vehicle National Law Application Bill 2013
Part 3--Meaning of Terms for Heavy Vehicle National Law (Victoria)
s. 18
(c) the Council of the municipal district for a
municipal road or part of a municipal road
situated in that district;
(d) the owner of the road for any other road.
5 Note
See section 5 of the Heavy Vehicle National Law (Victoria)
for the definition of road manager.
(2) An entity referred to in subsection (1) may enter
into an arrangement with another such entity to
10 transfer a function of the entity in relation to a
road to that other entity.
(3) If an arrangement is in force under subsection (2),
a reference in the Heavy Vehicle National Law
(Victoria) to the road manager for the road in
15 relation to the function transferred is taken to be a
reference to the entity to which the function has
been transferred.
(4) In this section--
arterial road has the same meaning as in the
20 Road Management Act 2004;
EastLink has the same meaning as in the
EastLink Project Act 2004;
Extension road has the same meaning as in the
Melbourne City Link Act 1995;
25 freeway has the same meaning as in the Road
Management Act 2004;
Link road has the same meaning as in the
Melbourne City Link Act 1995;
municipal road has the same meaning as in the
30 Road Management Act 2004;
non-arterial State road has the same meaning as
in the Road Management Act 2004;
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Heavy Vehicle National Law Application Bill 2013
Part 3--Meaning of Terms for Heavy Vehicle National Law (Victoria)
s. 19
Peninsula Link Freeway has the same meaning as
in the Road Management Act 2004.
19 Road Rules
The Road Safety Road Rules 2009 made under
5 section 95D of the Road Safety Act 1986 are
declared to be the Road Rules for the purposes of
the Heavy Vehicle National Law (Victoria).
Note
See section 5 of the Heavy Vehicle National Law (Victoria)
10 for the definition of Road Rules.
20 Meaning of road and road-related area
(1) If a declaration of a place or class of places to be a
road or roads or a road related area or road related
areas for the purposes of the Road Safety Act
15 1986 in an Order made under section 3(2)(a) of
that Act is in force, it is taken to be a declaration
of the area to which it relates to be a road or road-
related area (as the case requires) for the purposes
of the Heavy Vehicle National Law (Victoria).
20 Note
Section 8(3) of the Heavy Vehicle National Law (Victoria)
provides for the declaration of an area to be a road or road-
related area for the purposes of that Law.
(2) If a declaration of a place or class of places not to
25 be a road or roads or a road related area or road
related areas for the purposes of the Road Safety
Act 1986 in an Order made under section 3(2)(a)
of that Act is in force, the area to which the
declaration relates is taken not to be a road or
30 road-related area (as the case requires) for the
purposes of the Heavy Vehicle National Law
(Victoria).
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Part 3--Meaning of Terms for Heavy Vehicle National Law (Victoria)
s. 21
21 Meaning of convicts and convicted of an offence
For the avoidance of doubt, section 9(1) of the
Heavy Vehicle National Law (Victoria) applies
only for the purposes of that Law and offences
5 under that Law and not for the purposes of any
other law of this jurisdiction.
22 Primary WHS Law
The Occupational Health and Safety Act 2004
and the regulations made under that Act are
10 declared to be the primary WHS Law for the
purposes of the Heavy Vehicle National Law
(Victoria).
Note
See section 18(4) of the Heavy Vehicle National Law
15 (Victoria) for the definition of primary WHS Law.
23 Power to forfeit particular things or samples
The Police Regulation Act 1958 is the applicable
legislation for the purposes of section 561(4)(b) of
the Heavy Vehicle National Law (Victoria).
20 Note
Section 561(4)(b) of the Heavy Vehicle National Law
(Victoria) makes provision for dealing with things or
samples seized by a police officer.
24 Infringement offence under the Heavy Vehicle
25 National Law (Victoria)
An offence for which an infringement notice may
be served under section 591 of the Heavy Vehicle
National Law (Victoria) is an infringement
offence for the purposes of the Infringements Act
30 2006.
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Part 3--Meaning of Terms for Heavy Vehicle National Law (Victoria)
s. 25
25 Infringement penalty
The infringement penalty for a prescribed offence
within the meaning of section 591 of the Heavy
Vehicle National Law (Victoria) is 10% of the
5 maximum penalty for the offence.
Note
Section 591(3) of the Heavy Vehicle National Law
(Victoria) sets out the meaning of prescribed offence.
Section 596(3) of the Heavy Vehicle National Law
10 (Victoria) provides for the maximum penalty for an offence
applicable to a body corporate. Section 737 of the Heavy
Vehicle National Law (Victoria) sets out the method for
increasing a penalty amount each 1 July.
26 Review of decision by VCAT
15 (1) A reference in the Heavy Vehicle National Law
(Victoria) to an appeal against a review decision
under Part 11.3 of that Law is a reference to an
application to VCAT for review of the decision in
accordance with the Victorian Civil and
20 Administrative Tribunal Act 1998.
(2) For the avoidance of doubt, the Heavy Vehicle
National Law (Victoria) is an enabling enactment
for the purposes of the Victorian Civil and
Administrative Tribunal Act 1998.
25 27 Meaning of relevant law
The Road Safety Act 1986 is the law specified
for the purposes of the definition of relevant law
in section 727(1) of the Heavy Vehicle National
Law (Victoria).
30 28 Toll road authority
Each of the following is an entity for the purposes
of paragraph (h) of the definition of authorised
use in section 727(1) of the Heavy Vehicle
National Law (Victoria)--
35 (a) the relevant corporation within the meaning
of the Melbourne City Link Act 1995;
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Part 3--Meaning of Terms for Heavy Vehicle National Law (Victoria)
s. 28
(b) the Freeway Corporation within the meaning
of the EastLink Project Act 2004;
(c) any other person the Roads Corporation, by
notice published in the Government Gazette,
5 declares to be an entity for the purposes of
that paragraph.
__________________
571278B.I-16/4/2013 15 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Part 4--Offences and Legal Proceedings
s. 29
PART 4--OFFENCES AND LEGAL PROCEEDINGS
Division 1--General
29 No double jeopardy
If--
5 (a) an act or omission is an offence against the
Heavy Vehicle National Law (Victoria) or
the national regulations and is also an
offence against a law of another participating
jurisdiction; and
10 (b) the offender has been punished for the
offence under the law of the other
jurisdiction--
the offender is not liable to be punished for the
offence against the Heavy Vehicle National Law
15 (Victoria) or the national regulations.
30 Offences for which the person charged does not
have the benefit of the mistake of fact defence
(1) This section declares the effect of a provision of
the Heavy Vehicle National Law (Victoria) or the
20 national regulations that states that a person
charged with an offence does not have the benefit
of the mistake of fact defence for the offence.
(2) It is not a defence to a charge for the offence that,
at or before the time of the conduct constituting
25 the offence, the person was under a mistaken but
honest and reasonable belief about facts which,
had they existed, would have meant that the
conduct would not have constituted an offence.
Note
30 See section 14 of the Heavy Vehicle National Law
(Victoria).
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Part 4--Offences and Legal Proceedings
s. 31
31 Persons who may commence proceedings for
offences
(1) A proceeding for an offence against the Heavy
Vehicle National Law (Victoria) or the national
5 regulations may be commenced by--
(a) the Regulator; or
(b) the Roads Corporation; or
(c) an officer of the Roads Corporation who is
authorised in writing to do so either
10 generally or in any particular case by the
Regulator or the Roads Corporation; or
(d) an employee of the Victorian Public Service
who is authorised in writing to do so either
generally or in any particular case by the
15 Regulator; or
(e) an authorised officer who is authorised in
writing to do so either generally or in any
particular case by the Regulator or the Roads
Corporation; or
20 (f) a person who is authorised in writing to do
so either generally or in any particular case
by the Regulator or the Roads Corporation
where the offence occurs on land or premises
that are vested in or under the control of the
25 Regulator or the Roads Corporation.
(2) An authorisation under subsection (1) is sufficient
authority to continue proceedings in any case
where the court amends the charge-sheet, warrant
or summons.
30 (3) Any person authorised under subsection (1) may
conduct before a court any proceedings for an
offence against the Heavy Vehicle National Law
(Victoria) or the national regulations.
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Part 4--Offences and Legal Proceedings
s. 32
Division 2--Evidentiary provisions for offences against the
Heavy Vehicle National Law (Victoria) or national
regulations
32 Average speed evidence of actual speed in certain
5 circumstances
(1) If, in a proceeding for an offence against the
Heavy Vehicle National Law (Victoria) or
national regulations--
(a) the speed at which a heavy vehicle travelled
10 is relevant; and
(b) the prosecution relies on the average speed
of the heavy vehicle between 2 points on a
road as determined in accordance with
subsection (2)--
15 the average speed so determined is evidence, and
in the absence of evidence of the actual speed of
the heavy vehicle to the contrary is proof, of the
speed of the heavy vehicle.
(2) For the purposes of subsection (1), the average
20 speed of a heavy vehicle between 2 points on a
road expressed in kilometres per hour is calculated
in accordance with the following formula and
rounded down to the next whole number--
D × 3 6
T
25 where--
D is the shortest distance, expressed in metres,
that would be travelled by a heavy vehicle on
the road between the 2 points;
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Part 4--Offences and Legal Proceedings
s. 33
T is the time, expressed in seconds (including
any part of a second), that has elapsed
between the heavy vehicle passing the first
and second points.
5 Example
In 16·2 seconds a heavy vehicle travels between two points
that are 400 metres apart. 400 × 3·6 divided by 16·2 equals
88·9 or, when rounded down to the next whole number,
gives a result of 88. Therefore, for the purpose of
10 subsection (1), the average speed of the heavy vehicle is
88 kilometres per hour.
(3) This section does not derogate from any other
mode of proof of the speed of the heavy vehicle.
(4) For the purpose of a proceeding for an offence
15 against the Heavy Vehicle National Law
(Victoria) or national regulations, in which the
speed at which a heavy vehicle travelled is
relevant, if a heavy vehicle that is being towed is
attached to a heavy vehicle, the heavy vehicle and
20 the towing heavy vehicle are to be taken to be
travelling at the same speed.
33 Evidence of road distance
(1) A certificate in the prescribed form purporting to
be issued by an approved surveyor certifying as to
25 the shortest distance, expressed in metres, that
would be travelled by a heavy vehicle on a road
between 2 points is admissible in evidence in a
proceeding for an offence against the Heavy
Vehicle National Law (Victoria) or national
30 regulations and, in the absence of evidence to the
contrary, is proof of that distance.
(2) In this section--
approved surveyor means a licensed surveyor
approved under section 78A(2) of the Road
35 Safety Act 1986;
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Part 4--Offences and Legal Proceedings
s. 34
prescribed means prescribed in regulations made
under the Road Safety Act 1986 for the
purposes of section 78A of that Act.
34 Evidence of speed
5 (1) If, in a proceeding for an offence against the
Heavy Vehicle National Law (Victoria) or
national regulations, the speed at which a heavy
vehicle travelled on any occasion is relevant,
evidence of the speed of the heavy vehicle as
10 indicated or determined on that occasion by a
prescribed road safety camera or prescribed speed
detector when tested, sealed and used in the
prescribed manner is, without prejudice to any
other mode of proof and in the absence of
15 evidence to the contrary, proof of the speed of the
heavy vehicle on that occasion.
(2) For the purpose of a proceeding for an offence
against the Heavy Vehicle National Law
(Victoria) or national regulations in which the
20 speed at which a heavy vehicle travelled on any
occasion is relevant, if a heavy vehicle that is
being towed is attached to another heavy vehicle,
the heavy vehicle and the towing heavy vehicle
are to be taken to be travelling at the same speed.
25 (3) In this section--
prescribed means prescribed in regulations made
under the Road Safety Act 1986 for the
purposes of section 79 of that Act.
35 Evidence of engine management system data
30 (1) If, in a proceeding for an offence against the
Heavy Vehicle National Law (Victoria) or
national regulations, any information held in a
heavy vehicle's engine management system is
relevant, any representation of that information
35 derived from an engine management system
reading device specified by the regulations is to be
571278B.I-16/4/2013 20 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Part 4--Offences and Legal Proceedings
s. 36
presumed, in the absence of evidence to the
contrary, to be an accurate record of that
information if the device is operated in the manner
specified for that device in the regulations and the
5 information is derived in accordance with the
regulations.
(2) In this section--
the regulations means regulations made under the
Road Safety Act 1986 for the purposes of
10 section 79A of that Act.
36 Certain matters indicated by prescribed road safety
cameras are evidence
(1) If, in a proceeding for an offence against
section 204, 205, 206, 207, 208, 209, 210, 211,
15 212, 213 or 219 of the Heavy Vehicle National
Law (Victoria) the speed at which a heavy vehicle
travelled on any occasion is relevant, evidence of
the speed of the heavy vehicle as indicated or
determined on that occasion by--
20 (a) a prescribed road safety camera when tested,
sealed and used in the prescribed manner; or
(b) an image or message produced by a
prescribed road safety camera when tested,
sealed and used in the prescribed manner; or
25 (c) an image or message produced by a
prescribed process when used in the
prescribed manner--
is, without prejudice to any other mode of proof
and in the absence of evidence to the contrary,
30 proof of the speed of the heavy vehicle on that
occasion.
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Part 4--Offences and Legal Proceedings
s. 37
(2) For the purpose of a proceeding for an offence
against section 204, 205, 206, 207, 208, 209, 210,
211, 212, 213 or 219 of the Heavy Vehicle
National Law (Victoria) in which the speed at
5 which a heavy vehicle travelled on any occasion is
relevant, if a heavy vehicle that is being towed is
attached to another heavy vehicle, the heavy
vehicle or towed heavy vehicle and the towing
heavy vehicle are to be taken to be travelling at
10 the same speed.
(3) If, in a proceeding for an offence against section
204, 205, 206, 207, 208, 209, 210, 211, 212, 213
or 219 of the Heavy Vehicle National Law
(Victoria), the speed limit at the time and place at
15 which a heavy vehicle travelled on any occasion is
relevant, evidence of the speed limit at that time
and place as indicated or determined on that
occasion by an image or message produced by a
prescribed process when used in the prescribed
20 manner is, without prejudice to any other mode of
proof and in the absence of evidence to the
contrary, proof of the speed limit on that occasion.
(4) In this section--
prescribed means prescribed in regulations made
25 under the Road Safety Act 1986 for the
purposes of section 81 of that Act.
37 Evidence of testing and sealing
(1) In a proceeding for an offence against the Heavy
Vehicle National Law (Victoria) or national
30 regulations, a certificate in the prescribed form to
the effect that any prescribed speed detector
referred to in section 34 has been tested or sealed
in the prescribed manner, signed or purporting to
be signed by a person authorised to do so by the
35 regulations is, without prejudice to any other
mode of proof and in the absence of evidence to
571278B.I-16/4/2013 22 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Part 4--Offences and Legal Proceedings
s. 38
the contrary, proof that the prescribed speed
detector or device has been so tested or sealed.
(2) In this section--
prescribed means prescribed in regulations made
5 under the Road Safety Act 1986 for the
purposes of section 83 of that Act.
38 Evidence relating to prescribed road safety cameras
(1) A certificate containing the prescribed information
purporting to be issued by an authorised person
10 certifying--
(a) that a prescribed road safety camera was
tested, sealed or used in the prescribed
manner; or
(b) that an image or message described in the
15 certificate was produced by a prescribed road
safety camera or by a prescribed process; or
(c) as to any other matter that appears in, or that
can be determined from, the records kept in
relation to the prescribed road safety camera
20 or the prescribed process by the police force
of Victoria--
is admissible in evidence in a proceeding for an
offence against the Heavy Vehicle National Law
(Victoria) or national regulations and, in the
25 absence of evidence to the contrary, is proof of the
matters stated in the certificate.
(2) In this section--
authorised person means a person authorised for
the purposes of section 83A of the Road
30 Safety Act 1986 by the Chief Commissioner
of Police;
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Heavy Vehicle National Law Application Bill 2013
Part 4--Offences and Legal Proceedings
s. 38
prescribed means prescribed in regulations made
under the Road Safety Act 1986 for the
purposes of section 83A of that Act.
__________________
571278B.I-16/4/2013 24 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Part 5--Registration of Heavy Vehicles
s. 39
PART 5--REGISTRATION OF HEAVY VEHICLES
39 Application of Part
This Part applies for the period beginning on the
commencement of section 4 and ending on the
5 commencement of section 53.
40 Registration provisions of Heavy Vehicle National
Law (Victoria) do not apply
Chapter 2 of the Heavy Vehicle National Law set
out in the Schedule to the Heavy Vehicle National
10 Law Act 2012 of Queensland does not apply as a
law of this jurisdiction.
41 GCM
The Heavy Vehicle National Law (Victoria)
applies as if for the definition of GCM in section 5
15 of that Law there were substituted--
"GCM has the same meaning as in the Road
Safety Act 1986.".
42 GVM
The Heavy Vehicle National Law (Victoria)
20 applies as if for the definition of GVM in section 5
of that Law there were substituted--
"GVM has the same meaning as in the Road
Safety Act 1986.".
43 Registration
25 (1) The Heavy Vehicle National Law (Victoria)
applies as if for the definition of registration in
section 5 of that Law there were substituted--
"registration, of a heavy vehicle, means
registration of the vehicle under the Road
30 Safety Act 1986.".
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Part 5--Registration of Heavy Vehicles
s. 44
(2) The Heavy Vehicle National Law (Victoria)
applies as if a reference to registration under that
Law were a reference to registration under the
Road Safety Act 1986.
5 44 Registration exemption
The Heavy Vehicle National Law (Victoria)
applies as if for the definition of registration
exemption in section 5 of that Law there were
substituted--
10 "registration exemption means an exemption
under the Road Safety Act 1986 from the
requirement for a heavy vehicle to be
registered.".
45 Registration number
15 The Heavy Vehicle National Law (Victoria)
applies as if for the definition of registration
number in section 5 of that Law there were
substituted--
"registration number, for a heavy vehicle, means
20 letters, numbers or characters, or a
combination of one or more letters, numbers
or characters, assigned to a heavy vehicle
under the Road Safety Act 1986.".
46 Vehicle register
25 The Heavy Vehicle National Law (Victoria)
applies as if for the definition of vehicle register
in section 5 of that Law there were substituted--
"vehicle register means the register of motor
vehicles and trailers under the Road Safety
30 Act 1986.".
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Part 5--Registration of Heavy Vehicles
s. 47
47 Unregistered heavy vehicle permit
The Heavy Vehicle National Law (Victoria)
applies as if for the definition of unregistered
heavy vehicle permit in section 5 of that Law
5 there were substituted--
"unregistered heavy vehicle permit means a short
term unregistered vehicle permit issued by
the Roads Corporation under the Road
Safety Act 1986 or under regulations made
10 under that Act.".
48 Compliance with heavy vehicle standards
The Heavy Vehicle National Law (Victoria)
applies as if for section 60(3) and (4) of that Law
there were substituted--
15 "(3) A person does not commit an offence against
subsection (1) in relation to a heavy vehicle's
noncompliance with a heavy vehicle
standard if, and to the extent, the
noncompliance relates to a noncompliance
20 known to the Roads Corporation when the
vehicle was registered under the Road
Safety Act 1986.
(4) For the purposes of subsection (3), the Roads
Corporation is taken to know of a heavy
25 vehicle's noncompliance with a heavy
vehicle standard when the vehicle was
registered under the Road Safety Act 1986
if the noncompliance is mentioned in--
(a) an operations plate that was installed on
30 the vehicle when it was registered; or
(b) a certificate of approved operations
issued for the vehicle and in force when
the vehicle was registered; or
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Heavy Vehicle National Law Application Bill 2013
Part 5--Registration of Heavy Vehicles
s. 49
(c) a document obtained by the Roads
Corporation under the Road Safety Act
1986 in connection with the registration
of the vehicle.".
5 49 Registration of an exempt vehicle
The Roads Corporation may register a heavy
vehicle under the Road Safety Act 1986 if the
Regulator has granted a vehicle standards
exemption (notice) for the category of heavy
10 vehicle or granted a vehicle standards exemption
(permit) to the person who applies to be a
registered operator under the Heavy Vehicle
National Law (Victoria).
50 Cancellation or suspension of an exemption
15 The Roads Corporation may cancel the
registration of a vehicle under the Road Safety
Act 1986 if a vehicle standards exemption (notice)
for the category of heavy vehicle or a vehicle
standards exemption (permit) granted to the
20 registered operator, is cancelled or suspended
under the Heavy Vehicle National Law (Victoria).
51 Requirements about vehicle defect notice
The Heavy Vehicle National Law (Victoria)
applies as if for section 527(1)(i) of that Law there
25 were substituted--
"(i) that, if the notice is not cleared by the
Regulator under section 530, the vehicle's
registration may be suspended and
subsequently cancelled by the Roads
30 Corporation;".
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Part 5--Registration of Heavy Vehicles
s. 52
52 Power to cancel or suspend vehicle registration
The Heavy Vehicle National Law (Victoria)
applies as if for section 598(5) of that Law there
were substituted--
5 "(5) The court is to ensure that the Roads
Corporation is notified of the decision to
make an order under subsection (2) or (3)
and the terms of the order, but failure to do
so does not invalidate the decision or the
10 order.".
53 Repeal of Part
This Part is repealed.
__________________
571278B.I-16/4/2013 29 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Part 6--General
s. 54
PART 6--GENERAL
Division 1--Regulations
54 Regulations
(1) The Governor in Council may make regulations
5 for or with respect to--
(a) prescribing offences for the purposes of
section 591 of the Heavy Vehicle National
Law (Victoria);
(b) prescribing a notice that may be served under
10 section 591 of the Heavy Vehicle National
Law (Victoria);
(c) for any matter or thing required or permitted
by this Act to be prescribed or necessary to
be prescribed to give effect to this Act.
15 (2) Regulations made under this section may--
(a) be of limited or general application; and
(b) leave any matter or thing to be decided by a
specified person or class of person.
(3) The Governor in Council may make regulations
20 containing provisions of a transitional nature,
including matters of an application and savings
nature, arising as a result of the enactment of this
Act, including any repeals and amendments made
as a result of the enactment of this Act.
25 (4) Regulations made under subsection (3) may have
a retrospective effect to a day on or after the day
of the commencement of section 4.
(5) To the extent that regulations made under
subsection (3) have a retrospective effect, the
30 regulations do not operate so as--
(a) to affect, in a manner prejudicial to any
person (other than this jurisdiction or an
authority of this jurisdiction), the rights of
571278B.I-16/4/2013 30 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Part 6--General
s. 55
that person existing before the date of the
regulations coming into operation; or
(b) to impose liabilities on any person (other
than this jurisdiction or an authority of this
5 jurisdiction) in respect of anything done or
omitted to be done before the date of the
regulations coming into operation.
(6) Regulations made under subsection (3) have effect
despite anything to the contrary in any Act (other
10 than this Act or the Charter of Human Rights
and Responsibilities Act 2006) or in any
subordinate instrument.
55 Repeal of transitional regulation making powers
Section 54(3), (4), (5) and (6) are repealed on the
15 first anniversary of the commencement of
section 53.
Division 2--Savings and transitional provisions
56 Definitions
In this Division--
20 commencement day means the day on which
section 4 comes into operation;
RS Act means the Road Safety Act 1986 as in
force from time to time before the
commencement day.
25 57 Authorised officers
Despite section 748(3)(a) of the Heavy Vehicle
National Law (Victoria)--
(a) a person who was an authorised officer under
section 112 of the RS Act immediately
30 before the commencement day is taken, on
and after that day, to be an authorised officer
for the purposes of the Heavy Vehicle
National Law (Victoria) as if he or she had
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Heavy Vehicle National Law Application Bill 2013
Part 6--General
s. 58
been appointed by the Regulator under
section 481 of that Law; and
(b) an authorisation of a member of the police
force for the purposes of paragraph (b) of the
5 definition of authorised inspector in
section 119 of the RS Act that was in force
immediately before the commencement day
is taken, on and after that day, to be an
authorisation of the member for the purposes
10 of section 12(1) of this Act.
58 Fatigue management
A period spent driving a heavy vehicle within
7 days immediately before commencement day is
to be taken into account for the purposes of
15 Chapter 6 of the Heavy Vehicle National Law
(Victoria).
59 Work diary
For the purposes of Chapter 6 of the Heavy
Vehicle National Law (Victoria) a work diary kept
20 in accordance with Part 10A of the RS Act on or
before the commencement day is taken to be a
written work diary for the purposes of that Law.
__________________
571278B.I-16/4/2013 32 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Part 7--Consequential Amendments
s. 60
PART 7--CONSEQUENTIAL AMENDMENTS
60 Consequential amendments
On the coming into operation of an item in the
Schedule, the Act specified in the heading to that
5 item is amended as set out in that item.
61 Repeal
This Part and the Schedule are repealed on the
first anniversary of the commencement of
section 53.
10 Note
The repeal of this Part and the Schedule does not affect the
continuing operation of the amendments made by this Part
and the Schedule (see section 15(1) of the Interpretation of
Legislation Act 1984).
__________________
571278B.I-16/4/2013 33 BILL LA INTRODUCTION 16/4/2013
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Sch.
SCHEDULE
Section 60
CONSEQUENTIAL AMENDMENTS
PART 1--CONSEQUENTIAL AMENDMENTS ON
5 COMMENCEMENT OF NATIONAL LAW
1 Accident Compensation Act 1985
1.1 After section 239AAC insert--
"239AAD Regulator may disclose information to
Authority
10 (1) The Regulator may, at the written request of
the Authority, disclose relevant information
gained by the Regulator to the Authority for
the purpose of the assessment by the
Authority of a claim by a person for
15 compensation under this Act, being relevant
information that the Authority considers
relates to conduct by the person that the
Authority considers may be conduct to
which the injury to which the claim relates
20 may be attributable.
(2) In this section--
Regulator has the same meaning as in the
Heavy Vehicle National Law
(Victoria);
25 relevant information means details of--
(a) a conviction or finding of guilt; or
571278B.I-16/4/2013 34 BILL LA INTRODUCTION 16/4/2013
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Sch.
(b) an infringement notice within the
meaning of the Infringements
Act 2006--
that relate, or may relate, to conduct
5 comprising serious and wilful
misconduct as referred to in
section 82(4).".
2 Accident Towing Services Act 2007
2.1 In section 3(1), for the definition of mass,
10 dimension or load restraint limit or requirement
substitute--
"mass, dimension or load restraint limit or
requirement means--
(a) a mass, dimension or load restraint
15 limit or requirement within the meaning
of the Road Safety Act 1986; or
(b) a mass, dimension or loading
requirement within the meaning of the
Heavy Vehicle National Law
20 (Victoria);".
2.2 In section 3(6), after "Act 1986" insert "or the
Heavy Vehicle National Law (Victoria)".
2.3 In section 32(1)--
(a) in paragraph (b), for "Acts." substitute
25 "Acts; or";
(b) after paragraph (b) insert--
"(c) the holder of the licence has not
complied with a provision of the Heavy
Vehicle National Law (Victoria) or the
30 national regulations.".
3 Children, Youth and Families Act 2005
3.1 Clause 12(4) of Schedule 3 is repealed.
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Sch.
4 Infringements Act 2006
4.1 Section 61(4) is repealed.
5 Interpretation of Legislation Act 1984
5.1 After section 38H insert--
5 "38I References to Heavy Vehicle National Law
In an Act or a subordinate instrument--
Heavy Vehicle National Law (Victoria)
means the provisions applying because
of section 4 of the Heavy Vehicle
10 National Law Application Act 2013.".
6 Local Government Act 1989
6.1 After section 208 insert--
"208AA Heavy Vehicle National Law (Victoria)
A Council must not exercise its powers
15 under this Division inconsistently with the
functions and powers of the Regulator under
the Heavy Vehicle National Law (Victoria)
and the national regulations under that
Law.".
20 7 Magistrates' Court Act 1989
7.1 In section 82I(1) after "Act 1986" insert "or the
Heavy Vehicle National Law (Victoria)".
8 Road Safety Act 1986
8.1 In section 3(1) in the example at the foot of the
25 definition of approved road transport compliance
scheme omit "or for a system involving the use of
an intelligent transport system".
8.2 In section 3(1) the definition of associate is
repealed.
30 8.3 In section 3(1) the definition of beneficiary is
repealed.
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Sch.
8.4 In section 3(1) the definition of container weight
declaration is repealed.
8.5 In section 3(1) the definition of engage in
conduct is repealed.
5 8.6 In section 3(1) the definition of fatigue regulated
heavy vehicle is repealed.
8.7 In section 3(1) for the definition of heavy vehicle
substitute--
"heavy vehicle has the same meaning as in the
10 Heavy Vehicle National Law (Victoria);".
8.8 In section 3(1) the definition of intelligent
transport system is repealed.
8.9 In section 3(1) insert the following definition--
"Regulator has the same meaning as in the Heavy
15 Vehicle National Law (Victoria);".
8.10 In section 3(1) for the definition of semi-trailer
substitute--
"semi-trailer means a trailer that has--
(a) one axle group or a single axle towards
20 the rear; and
(b) a means of attachment to a prime
mover that results in some of the mass
of the trailer's load being imposed on
the prime mover;".
25 8.11 In section 3AAA(a)--
(a) omit "or fatigue regulated heavy vehicle";
(b) omit "or fatigue regulated heavy vehicles".
8.12 After section 25(2) insert--
"(2A) For the avoidance of doubt, the regulations
30 may provide that a person may incur demerit
points in respect of an offence against the
571278B.I-16/4/2013 37 BILL LA INTRODUCTION 16/4/2013
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Sch.
Heavy Vehicle National Law (Victoria) or
the national regulations under that Law.".
8.13 In section 28(1B)(a) for "or load restraint limit or
requirement" substitute "or loading requirement
5 within the meaning of the Heavy Vehicle National
Law (Victoria)".
8.14 In section 77A for "or 6 of Part 10 or under Part
10A" substitute "of Part 10".
8.15 Section 77B is repealed.
10 8.16 In section 84BB for the definition of
corresponding law substitute--
"corresponding law means--
(a) a law of the Commonwealth or of
another State or of a Territory that
15 corresponds to Division 2 of Part 2; or
(b) the Heavy Vehicle National Law
(Victoria) or a law of another State or
of a Territory that corresponds to that
law;".
20 8.17 Section 103R is repealed.
8.18 Section 103S is repealed.
8.19 Section 103T is repealed.
8.20 After section 103ZF insert--
"103ZG Transitional provision Heavy Vehicle
25 National Law Application Act 2013
Part 11 as in force immediately before its
repeal by item 8.35 of the Schedule to the
Heavy Vehicle National Law Application
Act 2013, continues to apply to offences
30 alleged to have been committed before that
commencement.".
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Sch.
8.21 For section 149A substitute--
"149A Part does not apply to a heavy vehicle
This Part does not apply to a heavy vehicle.
Note
5 Chapter 4 of the Heavy Vehicle National Law
(Victoria) sets out the mass, dimension and loading
requirements for heavy vehicles.".
8.22 Section 162(2)(a) is repealed.
8.23 Section 163(2)(a) is repealed.
10 8.24 Section 167 is repealed.
8.25 At the foot of section 171(2) insert--
"Note
The penalties that apply in respect of the offences created by
this section are set out in section 178.".
15 8.26 Section 171(3) is repealed.
8.27 At the foot of section 172(2) insert--
"Note
The penalties that apply in respect of the offences created by
this section are set out in section 178.".
20 8.28 Section 172(3) is repealed.
8.29 Section 174(3) is repealed.
8.30 Section 175(3) is repealed.
8.31 The note at the foot of section 176(2) is repealed.
8.32 Section 180 is repealed.
25 8.33 Division 6 of Part 10 is repealed.
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8.34 For Part 10A substitute--
"PART 10A--FATIGUE MANAGEMENT LIGHT
BUSES
Division 1--Application of Heavy Vehicle
5 National Law (Victoria)
191A Definition
In this Part--
light bus means a bus with a GVM of
4.5 tonnes or less.
10 191B Application of the Heavy Vehicle National
Law (Victoria)--fatigue management of
light buses
For the purposes of this Act the following
provisions of the Heavy Vehicle National
15 Law (Victoria) apply to a light bus--
(a) Chapter 6; and
(b) sections 622, 623, 653(g) and (h), 654,
725, 726 and 740.
Division 2--Meaning of terms for Heavy
20 Vehicle National Law (Victoria)
191C Meaning of fatigue-regulated heavy
vehicle
The provisions of the Heavy Vehicle
National Law (Victoria) applied under
25 section 191B, apply as if a reference to a
fatigue-regulated heavy vehicle under that
Law were a reference to a light bus.
191D Meaning of fatigue-regulated bus
The provisions of the Heavy Vehicle
30 National Law (Victoria) applied under
section 191B, apply as if a reference to a
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Sch.
fatigue-regulated bus under that Law were a
reference to a light bus.
191E Meaning of Regulator
The provisions of the Heavy Vehicle
5 National Law (Victoria) applied under
section 191B, apply as if a reference to the
Regulator under that Law were a reference to
the Corporation.
191F Meaning of responsible Ministers
10 The provisions of the Heavy Vehicle
National Law (Victoria) applied under
section 191B, apply as if a reference to the
responsible Ministers under that Law were a
reference to the Minister.
15 __________________".
8.35 Part 11 is repealed.
8.36 Part 12 is repealed.
8.37 Part 13 is repealed.
8.38 Schedule 3 is repealed.
20 8.39 Schedule 4 is repealed.
8.40 Schedule 4A is repealed.
9 Sheriff Act 2009
9.1 In section 30(1)(a), after "Road Safety Act 1986"
insert "or the Heavy Vehicle National Law
25 (Victoria)".
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Sch.
PART 2--CONSEQUENTIAL AMENDMENTS FOR
NATIONAL REGISTRATION
10 Accident Towing Services Act 2007
10.1 In section 3(1), in the definition of owner after
5 paragraph (c) insert--
"(d) a person in whose name a tow truck is
registered under the Heavy Vehicle National
Law (Victoria) or any law of any State or
Territory of the Commonwealth
10 corresponding to this law;".
11 Environment Protection Act 1970
11.1 In section 4(1) insert the following definition--
"heavy vehicle has the same meaning as in the
Heavy Vehicle National Law (Victoria);".
15 11.2 In section 4(1) in the definition of registered
owner--
(a) in paragraph (a) after "motor vehicle" (where
first occuring) insert "that is not a heavy
vehicle";
20 (b) after paragraph (a) insert--
"(ab) in relation to a heavy vehicle--the
person who is registered under the
Heavy Vehicle National Law (Victoria)
as the registered operator of the heavy
25 vehicle; and".
(c) in paragraph (b) after "2010;" insert "and".
11.3 In section 57B after "a vehicle" (where first
occurring) insert "that is not a heavy vehicle".
11.4 At the end of section 57B insert--
30 "(2) In proceedings against the registered owner
of a heavy vehicle, a certificate from the
Regulator within the meaning of the Heavy
Vehicle National Law (Victoria), stating that
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Sch.
a person was the registered operator of a
heavy vehicle under that law on a specified
date is evidence that that person was the
registered owner of the heavy vehicle on that
5 date.".
11.5 For section 61(1B)(b) substitute--
"(b) in the case of an offence alleged against the
registered owner of a motor vehicle other
than a heavy vehicle, the address appearing
10 as the address of the owner in the certificate
of registration of the motor vehicle for the
time being in force under the Road Safety
Act 1986 or under any corresponding Act or
law of a State or Territory of the
15 Commonwealth; and
(c) in the case of an offence alleged against the
registered owner of a heavy vehicle, the
address appearing as the address of the
registered operator in the certificate of
20 registration of the heavy vehicle for the time
being in force under the Heavy Vehicle
National Law (Victoria) or under any law of
a place outside Victoria which contains
provisions corresponding to that Law for
25 registration of a heavy vehicle; and
(d) in the case of an offence alleged against the
registered owner of a vessel, the address
appearing as the address of the owner in the
certificate of registration of the vessel for the
30 time being in force under the Marine Safety
Act 2010 or under any corresponding Act or
law of a State or Territory of the
Commonwealth--".
12 Heavy Vehicle National Law Application Act 2013
35 12.1 In section 4(a), omit "subject to Part 5,".
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13 Infringements Act 2006
13.1 In section 3(1) insert the following definitions--
"heavy vehicle has the same meaning as in the
Heavy Vehicle National Law (Victoria);
5 Regulator has the same meaning as in the Heavy
Vehicle National Law (Victoria);".
13.2 In the heading to section 112 after "VicRoads"
insert "or the Regulator".
13.3 After section 112(1) insert--
10 "(1A) The sheriff may direct the Regulator to
suspend the registration of a heavy vehicle
under the Heavy Vehicle National Law
(Victoria) if the person who is the registered
operator of a heavy vehicle is a person in
15 default, until the sheriff notifies the
Regulator that the suspension has ceased in
accordance with section 113.".
13.4 In section 112--
(a) in subsection (2)--
20 (i) after "subsection (1)" insert "or (1A)";
(ii) after "VicRoads" insert "or the
Regulator";
(b) in subsection (2)(b) after "subsection (1)"
insert "or (1A)";
25 (c) in subsection (2)(c) after "subsection (1)"
insert "or (1A)";
(d) in subsection (3) after "subsection (1)" insert
"or (1A)";
(e) in subsection (3A) after "subsection (1)"
30 insert "or (1A)";
(f) in subsection (3B) after "subsection (1)"
insert "or (1A)".
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13.5 In section 113--
(a) after "VicRoads" insert "or the Regulator (as
the case requires)";
(b) for "or trailer" substitute ", trailer or heavy
5 vehicle";
(c) in paragraph (j) for "or trailer" substitute ",
trailer or heavy vehicle".
13.6 In the heading to section 114 omit "motor".
13.7 In section 114--
10 (a) in subsection (2)--
(i) after "VicRoads" (wherever occurring)
insert "or the Regulator (as the case
requires)";
(ii) for "motor vehicle or trailer" substitute
15 "motor vehicle, heavy vehicle or
trailer";
(b) in subsection (4) after "VicRoads" insert "or
the Regulator";
(c) in subsection (4)(a) for "motor vehicle or
20 trailer" (wherever occurring) substitute
"motor vehicle, heavy vehicle or trailer";
(d) in subsection (5) for "or trailer" substitute
"or heavy vehicle or trailer".
13.8 In section 115--
25 (a) after "VicRoads" insert "or the Regulator";
(b) for "motor vehicle" substitute "motor
vehicle, heavy vehicle";
(c) in paragraph (j) for "motor vehicle"
substitute "motor vehicle, heavy vehicle".
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13.9 In section 116--
(a) in subsection (1) for "motor vehicle"
(wherever occurring) substitute "motor
vehicle, heavy vehicle";
5 (b) in subsection (1) after "VicRoads"(wherever
occurring) insert "or the Regulator";
(c) in subsection (3)(a) for "motor vehicle"
(wherever occurring) substitute "motor
vehicle, heavy vehicle";
10 (d) in subsection (3)(a) after "VicRoads" insert
"or the Regulator".
13.10 In section 117--
(a) after "VicRoads" insert "or the Regulator";
(b) in paragraph (b) for "motor vehicle"
15 substitute "motor vehicle, heavy vehicle";
(c) in paragraph (j) for "motor vehicle"
substitute "motor vehicle, heavy vehicle".
13.11 In section 118--
(a) in subsection (1) for "motor vehicle"
20 substitute "motor vehicle, heavy vehicle";
(b) in subsection (1) after "this Act" insert "or
the Heavy Vehicle National Law (Victoria)";
(c) in subsection (2) for "motor vehicle"
substitute "motor vehicle, heavy vehicle".
25 13.12 In section 119(1) after "VicRoads" insert "or the
Regulator".
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14 Motor Car Traders Act 1986
14.1 In section 3(1) for the definition of used motor
car substitute--
"used motor car includes--
5 (a) a motor car that has, at any time before
being offered or displayed for sale,
been registered under the Road Safety
Act 1986 or the Motor Car Act 1958
or under any Act or law of a place
10 outside Victoria which contains
provisions corresponding to the
provisions of the Road Safety Act
1986 for registration of motor cars;
(b) a motor car that is a heavy vehicle that
15 has, at any time before being offered or
displayed for sale, been registered
under the Heavy Vehicle National Law
(Victoria) or under any law of a place
outside Victoria which contains
20 provisions corresponding to that Law
for registration of a heavy vehicle.".
14.2 After section 42A insert--
"42B All heavy vehicles must be sold with a
certificate
25 (1) A person must not sell a heavy vehicle that is
registered under the Heavy Vehicle National
Law (Victoria) unless--
(a) the person gives the buyer of the car a
current certificate in relation to the car;
30 or
(b) if the person is required under the
Heavy Vehicle National Law (Victoria)
or the national regulations under that
Law to send a current certificate in
35 relation to the heavy vehicle to the
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Regulator, the person gives the buyer a
copy of that certificate.
Penalty: 50 penalty units.
(2) This section does not apply if the buyer is a
5 licensed motor car trader or a special trader.
(3) This section does not apply to a heavy
vehicle that is sold by auction at a public
auction by a person acting on behalf of the
owner of the heavy vehicle.
10 (4) In this section current means issued within
the last 30 days.
(5) Despite anything to the contrary under the
Heavy Vehicle National Law (Victoria), for
the purposes of subsection (1) a reference to
15 "a heavy vehicle that is registered under the
Heavy Vehicle National Law (Victoria)"--
(a) includes a reference to a heavy vehicle
the registration of which has been
suspended under that law; but
20 (b) does not include a reference to a heavy
vehicle the registration of which has
expired and has not been renewed on or
before the day the heavy vehicle is
sold.".
25 14.3 After section 69(3)(c) insert--
"(ca) the Regulator within the meaning of the
Heavy Vehicle National Law (Victoria); or".
14.4 After section 76(1)(d) insert--
"(da) loss has been incurred from a failure of a
30 motor car trader to pay transfer fees or
registration fees to the Regulator within the
meaning of the Heavy Vehicle National Law
(Victoria) or stamp duty on a motor car or to
provide any certificate of roadworthiness or
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other document necessary to enable a motor
car to be registered under the Heavy Vehicle
National Law (Victoria) subject to payment
of the appropriate fee; or".
5 15 Road Safety Act 1986
15.1 In section 3(1) for the definition of registered
operator substitute--
"registered operator of a vehicle means--
(a) the person recorded on the register as
10 the person responsible for the vehicle;
or
(b) the person recorded on the vehicle
register within the meaning of the
Heavy Vehicle National Law (Victoria)
15 as the person responsible for the
vehicle;".
15.2 In section 6 after "highway" insert "and does not
apply to heavy vehicles within the meaning of the
Heavy Vehicle National Law (Victoria)".
20 15.3 For section 84W(1)(d) substitute--
"(d) the Regulator in the case of a heavy vehicle
or the Corporation in any other case.".
15.4 For section 84Y(1)(d) substitute--
"(d) the Regulator in the case of a heavy vehicle
25 or the Corporation in any other case."
15.5 In section 84YA(1) after "the Corporation"
(wherever occurring) insert "or the Regulator".
15.6 In section 84YA(3) after "the Corporation" insert
"or the Regulator".
30 15.7 In the heading to section 84YB after
"Corporation" insert "or the Regulator".
15.8 In section 84YB(1) after "the Corporation" insert
"or the Regulator".
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15.9 In section 84YB(2) after "the Corporation" insert
"or the Regulator (as the case requires)".
16 Transport Accident Act 1986
16.1 In section 3(1) in the definition of registered
5 motor vehicle after paragraph (c) insert--
"(d) a heavy vehicle that is registered in
accordance with the Heavy Vehicle National
Law (Victoria); or
(da) a heavy vehicle that is not so registered
10 because it is exempt from registration in
accordance with Chapter 2 of the Heavy
Vehicle National Law (Victoria) or the
national regulations under that Law; or".
16.2 In section 41A(2) for the definition of
15 unregistered motor vehicle substitute--
"unregistered motor vehicle means--
(a) a motor vehicle, other than a heavy
vehicle, that has never been registered
under Part 2 of the Road Safety Act
20 1986 or a corresponding law of another
State or a Territory and in respect of
which a transport accident charge was
not paid at the time that the transport
accident occurred; or
25 (b) a heavy vehicle that has never been
registered in accordance with the
Heavy Vehicle National Law (Victoria)
or a corresponding law of another State
or a Territory and in respect of which a
30 transport accident charge was not paid
at the time that the transport accident
occurred.".
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16.3 In section 84 for the definition of trailer
substitute--
"trailer means--
(a) a trailer within the meaning of the
5 Road Safety Act 1986 or a trailer
within the meaning of, and registered or
about to be registered in Victoria under,
the Interstate Road Transport Act 1985
of the Commonwealth or, if that Act is
10 amended, that Act as amended and in
force for the time being; or
(b) a trailer within the meaning of the
Heavy Vehicle National Law (Victoria)
that is registered or about to be
15 registered under that law and has a
garage address in Victoria.".
16.4 In section 109(3) after "motor vehicle" insert
", other than a heavy vehicle,".
16.5 After section 109(3) insert--
20 "(3A) The registration of a heavy vehicle must not
be made or renewed and an unregistered
heavy vehicle permit under the national
regulations made under the Heavy Vehicle
National Law (Victoria) must not be granted
25 unless the owner has paid the transport
accident charge for the relevant prescribed
period or periods.".
16.6 In section 111(1)(b)(ii) for "being--" substitute
"being; or".
30 16.7 After section 111(1)(b)(ii) insert--
"(iii) under the Heavy Vehicle National Law
(Victoria) and the garage address of the
heavy vehicle under that law is in another
State or Territory--".
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16.8 After section 112(1) insert--
"(1A) Section 109 applies to a person who is in the
possession or under the control of a heavy
vehicle that is not registered or the subject of
5 an unregistered heavy vehicle permit granted
under the national regulations made under
the Heavy Vehicle National Law (Victoria)
as if the person were the owner.".
16.9 In section 112(2) for "subsection (1)" substitute
10 "subsection (1) or (1A)".
17 Transport (Compliance and Miscellaneous) Act
1983
17.1 In section 86(1) in the definition of owner, in
paragraph (c) for "agreement;" substitute
15 "agreement; and".
17.2 In section 86(1) in the definition of owner, after
paragraph (c) insert--
"(d) any person in whose name a commercial
goods vehicle is registered under the Heavy
20 Vehicle National Law (Victoria) or any law
of any State or Territory of the
Commonwealth corresponding to that law
but does not include an unpaid vendor of any
such vehicle under a hire-purchase
25 agreement;".
17.3 Section 217A is repealed.
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Endnotes
ENDNOTES
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Annexure 1
Heavy Vehicle National Law
Explanatory Notes
Notes
1 The Heavy Vehicle National Law was originally enacted
in the Schedule to the Heavy Vehicle National Law Act
2012 of Queensland. Subsequently Queensland enacted
the Heavy Vehicle National Law Amendment Act 2013,
which substituted the Schedule with a revised version of
the Heavy Vehicle National Law. These explanatory
notes are based on a compilation of the parts of the
explanatory notes relating to the Heavy Vehicle National
Law that accompanied the Bills for each of the above
Queensland Acts.
2 The pecuniary value of penalties for court ordered
penalties for offences against the National Law are set
out in Appendix 1.
Chapter 1 Preliminary
Part 1.1 Introductory matters
Section 1 provides for the Law to be cited as the Heavy Vehicle
National Law.
Section 2 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.
In Victoria, the Law will commence when clause 4 of the Heavy
Vehicle National Law Application Bill 2013 comes into
operation.
Section 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:
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· promotes public safety;
· manages the impact of heavy vehicles on the environment,
road infrastructure and public amenity;
· promotes industry productivity and efficiency in the road
transport of goods and passengers by heavy vehicles;
· encourages and promotes productive, efficient, innovative
and safe business practices.
Section 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;
· includes measures to allow improved access to the road
network in certain circumstances.
Part 1.2 Interpretation
Section 5 defines numerous technical and other terms used
throughout the Law.
Section 6 defines the key term `heavy vehicle' to mean a vehicle
that has a gross vehicle mass (as defined in section 5) or
aggregate trailer mass (as defined in section 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 section 6(4).
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Section 7 defines the term `fatigue-regulated heavy vehicle' to
mean a motor vehicle with a gross vehicle mass (as defined in
section 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 section 5 as a motor vehicle built or fitted to carry
more than 12 adults, including the driver). The section 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 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.
Section 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 section 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.
Section 9 defines the terms `convicts' and `convicted'.
Section 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.
Section 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.
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Section 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 section 5), enacted in a participating
jurisdiction. This section 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.
Section 13 states that a reference in the Law to a road includes a
reference to a road-related area (as defined in section 8), unless a
contrary intention appears.
Section 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 section 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 section 618 of
this Law.
Clause 30 of the Heavy Vehicle National Law Application Bill
2013 sets out the effect of section 14 of the Law for Victoria.
Section 15 clarifies the basis on which vehicles may be
categorised.
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Part 1.3 Application and operation
of Law
Section 16 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.
Section 17 provides that the Law binds the State (as defined in
section 5). However, section 17(2) states that no criminal
liability attaches to the State itself (as distinct from its agents,
instrumentalities, officers and employees) under the Law.
Section 18 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, subsection (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, subsection (2) provides that evidence of a
contravention of this Law is admissible in any proceedings
under the primary WHS law.
Part 1.4 Performance based
standards
Section 19 explains the purpose of this Part and other associated
provisions to enable Performance Based Standards (PBS)
vehicles that meet a particular performance level to operate
(unless otherwise specified by the responsible Minister) on
roads that are authorised to be used by PBS vehicles that meet or
exceed that performance level.
Section 20 requires the Regulator to notify the road authority for
this jurisdiction of a PBS design approval together with a
description of the significant features of the design to which the
approval relates. The purpose of this section is to ensure the
responsible Minister is apprised of the application in
contemplation of the exercise of the power granted to the
Minister under section 21.
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Section 21 empowers the Minister to issue a notice to the
Regulator requiring the Regulator to impose conditions
prohibiting any heavy vehicle built to a design that is the subject
of a PBS design approval from operating in this jurisdiction, or
making such operation subject to the condition set out in the
notice.
Section 22 empowers the Regulator to consider an application
for a PBS design approval, and reject or approve the application
subject to any condition the Regulator sees fit. The breadth of
the power to impose these conditions is necessary given the safe
operation of the vehicle may contemplate such matters as driver
licensing, a matter not otherwise dealt with under the Law at this
point. In making this decision the Regulator is required to have
regard to any approved guidelines, performance based standards
and assessment rules prescribed in the national regulations, and
the advice of the PBS Review Panel.
Section 23 empowers the Regulator to consider an application
for a PBS vehicle approval. The approval functions as evidence
that a vehicle is constructed in accordance with an approved
PBS design and must contain the condition relevant to that
approval, whether imposed by the Regulator under section 22, or
section 21. In making this decision the Regulator is required to
have regard to any approved guidelines, performance based
standards and assessment rules prescribed in the national
regulations, and the advice of the PBS Review Panel.
Section 24 creates a head of power to make regulations
stipulating which vehicle standards a PBS vehicle may be
exempted from. It is intended at this point that the exemptions
be limited to the following matters:
· Axle configuration;
· Relation between axles in a group;
· Selection of couplings and drawbar eyes on road trains;
· Tow coupling overhang on road trains.
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Section 25 makes it clear a mass or dimension limit authorised
in a PBS approval is to have precedence over the general mass
or dimension limits.
Section 26 creates a head of power to make regulations dealing
with procedures for applications for PBS design and vehicle
approvals, procedures for cancelling or modifying a PBS design
or vehicle approval, assessment criteria and procedures and the
appointment of persons to assess designs and certify vehicles
purportedly built to them.
Chapter 2 Registration
A note clarifies that Chapter 2 is not to commence at the same
time as other provisions of the National Law but at a later time,
and that transitional provisions for this jurisdiction relating to
and consequential on the delayed commencement are intended
to be dealt with by national regulations or by legislation of this
jurisdiction.
Part 2.1 Preliminary
Section 27 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 section 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
Section 28 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
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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.
Section 29 states that the registration of a heavy vehicle under
the Law is not evidence of title to the heavy vehicle.
This section intends to maintain the distinction between
registration of a heavy vehicle and ownership of a 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
Section 30 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 $10000. Note that the inclusion of `permit
to be used' in section 30 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 subsection (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
Section 31 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.
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Section 32 authorises the use of an unregistered heavy vehicle
on a road when that vehicle is travelling, by the most direct or
convenient route, to the nearest `registration place', as defined in
subsection (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. It includes a journey by way of the nearest inspection
place (as defined in subsection (2)). 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.
Section 33 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 driver must
carry proof of the temporary admission carnet as defined in
subsection (2). 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 section does not intend to authorise the use of
foreign registered heavy vehicles on a road in Australia for an
indefinite time period.
Section 34 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 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.
Section 35 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
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which the heavy vehicle is being used must also be complied
with.
Section 36 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
section 5) being towed by a registered `agricultural machine'
(defined in section 5) that is suitably matched to the
implement or another registered heavy vehicle of a suitable
size for towing the implement;
· the vehicle is an agricultural trailer being towed by a
registered agricultural machine that is being used to perform
`agricultural tasks' (defined in section 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.
Section 37 authorises the use of an unregistered heavy vehicle
on a road when it is under tow by a tow truck.
Section 38 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 section recognises the Regulator's
power to issue registration exemptions for categories of
vehicles.
Section 39 creates an offence where a person uses, or permits to
be used, an unregistered heavy vehicle on a road in any of the
circumstances mentioned in sections 32 to 38 if the driver does
not have in the driver's possession proof that the requirements
of third party insurance legislation applying to the vehicle are
complied with.
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Division 4 Exemption from requirement to
be registered
Subdivision 1 Exemption by Regulator
Section 40 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 section 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 section 44.
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.
Section 41 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 section 5 as guidelines approved by responsible
Ministers under section 653) for granting registration
exemptions.
Section 42 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 section are not intended to operate as
prescriptive requirements for conditions nor limit the scope of
conditions that may be imposed by the Regulator.
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Section 43 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 section 40 that a registration exemption must
be a period of not more than one year.
Section 44 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.
Section 45 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
section is in allowing time for those who may be adversely
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affected by a decision to amend or cancel a registration
exemption time in which to adjust their business practices.
Section 46 inserts a new section that allows the Regulator to
suspend a registration exemption immediately if there is a need
to minimise serious harm to public safety or significant damage
to road infrastructure. The exercise of the power is subject to
publication requirements to minimise the possibility of
inadvertent noncompliance.
Subdivision 2 Exemption by national
regulations
Section 47 creates a head of power for the making of regulations
in relation to the exempting (whether conditional or otherwise)
of a specific category of heavy vehicle from the requirement to
be registered.
Part 2.3 Vehicle register
Section 48 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. Subsection (2) stipulates that the heavy
vehicle register must be kept in the way, and contain the
particulars, prescribed by the national regulations. Subsection
(3) enables the Regulator to also include any other information
in the register that it considers reasonable and relevant for the
purposes of the Law.
Part 2.4 Other provisions relating
to registration
Section 49 clarifies that a `registration item' (defined in section
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.
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Section 50 creates various registration offences. Subsection (1)
makes it an offence to attempt to obtain, renew or transfer
registration, or to be issued with an unregistered heavy vehicle
permit, by making a false or misleading statement or
representation or in another dishonest way and imposes a
maximum penalty of $10000 for non-compliance.
Subsection (2) makes it an offence to, without a reasonable
excuse, possess a registration item obtained in a way specified
in subsection (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 subsection (4).
Section 51 empowers the Regulator to cancel an incorrect,
duplicate or poor quality 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 item to the Regulator.
Subsection (3) creates an offence to fail to comply with a notice
and imposes a maximum penalty of $4000 for non-compliance.
Whilst section 51 is an enabling provision, it is not intended to
place a duty on the Regulator to replace or recover every
incorrect, duplicate or poor quality registration item issued.
Section 52 authorises the Regulator, by notice, to require the
registered operator of a heavy vehicle registered under the Law
or the holder 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.
Subsection (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 $3000 for non-compliance.
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Part 2.5 Written-off and wrecked
heavy vehicles
Section 53 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.
Section 54 defines `insurer', `wrecked' and `written-off' for the
purposes of Part 2.5.
Section 55 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 section also requires the types
of matters that the national regulations may provide for in
relation to entries in the register, access to the register, the
giving of information contained in the register, driving written
off and wrecked heavy vehicles and notification of the regulator
about written off and wrecked heavy vehicles. Subsection (3)
enables the Regulator to also include any other information it
considers reasonable and relevant to the purpose of Part 2.5.
Part 2.6 Other provisions
Section 56 empowers the Regulator to specify the gross
combination mass (see the definition of GCM in section 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.
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Section 57 empowers the Regulator to specify the gross vehicle
mass (see the definition of GVM in section 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
Section 58 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
Section 59 provides a head of power for regulations to prescribe
vehicle standards (heavy vehicle standards), with which heavy
vehicles must comply to use roads. These may include
requirements applying to heavy vehicles, components of heavy
vehicles or equipment of heavy vehicles. The section also
provides a head of power for the making of regulations to
prescribe exemptions for different requirements for component
vehicles that are not heavy vehicles. This allows for light
vehicles to be exempted from all or part of one or more heavy
vehicle standards when the light vehicle is part of a heavy
vehicle combination.
Section 60 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 $3000 or $6000 depending on the
circumstances.
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The inclusion of the phrase `permit to be used' in subsection (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.
Subsection (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 by an
approved vehicle examiner to check its compliance with the
heavy vehicle standards, is not carrying any passengers, has
only the quantity of goods that is necessary or appropriate for
the conduct of the testing or analysis, and those goods do not
pose a safety risk, and is used in a way that does not pose a
safety risk.
A note clarifies that the exception allowing the movement of the
vehicle to a place repair does not supersede the requirements of
any defect notice issued for the vehicle.
Subsection (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 subsection (5).
Subsection (4) specifies the circumstances in which the
Regulator is taken to have known of the noncompliance at the
time of registration.
Subsection (6) provides that a PBS vehicle is exempt from
vehicle standards stated in its PBS vehicle approval and where it
complies with the other applicable vehicle standards, the vehicle
is regarded for the purposes of the National Law as complying
with the vehicle standards applying to the vehicle.
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Division 2 Exemptions by Commonwealth
Gazette notice
Section 61 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
section 65. An exemption made under this section is 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.
Section 62 limits the Regulator's power to grant a vehicle
standards exemption (notice). Under subsection (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.
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In deciding whether to grant a vehicle standards exemption
(notice), the Regulator must have regard to the approved
guidelines (defined in section 5 as guidelines approved by
responsible Ministers under section 653) for granting vehicle
standards exemptions.
Section 62 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).
Section 63 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.
Section 64 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 section 61
that a vehicle standard exemption (notice) must be for a period
of not more than 5 years.
Section 65 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.
Section 66 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;
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· 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 presented
to the Regulator for consideration. An additional benefit of this
section 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.
Section 67 empowers the Regulator to suspend a vehicle
standards exemption notice immediately to prevent or minimise
serious harm to public safety or significant damage to road
infrastructure. The power is exercisable through the meeting of
the ordinary publication requirements (in or on each of the
Commonwealth Gazette, a relevant newspaper, and on the
Regulator's website). The maximum length of the suspension is
calculated with reference to the matters set out in subsection (2).
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Division 3 Exemptions by permit
Section 68 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 section 73.
An exemption under this section 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.
Section 69 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 section 5 as a fee
prescribed by the national regulations under section 740(1)).
Section 70 limits the Regulator's power to grant a vehicle
standards exemption (permit). Under subsection (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
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· the heavy vehicle was, 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
(permit), the Regulator must have regard to the approved
guidelines (defined in section 5 as guidelines approved by
responsible Ministers under section 653) for granting vehicle
standards exemptions.
This section 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).
Section 71 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.
Section 72 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 section 68 that
the exemption must be for a period of not more than 3 years.
Subsection (1) clarifies that the time period may be less than the
period sought by the applicant for the permit.
Section 73 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.
Section 74 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 section 5 as a notice stating
the decision, the reasons for the decision and the review and
appeal information (also defined in section 5) for the decision.
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Section 75 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 the
prescribed fee 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 subsection (3) to require any
additional information from the applicant that is reasonably
required to decide the application.
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, subsection (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 section 5 as a
notice stating the decision, the reasons for the decision and the
review and appeal information (also defined in section 5) for the
decision.
Section 76 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;
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· 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.
Section 77 empowers the Regulator to immediately suspend a
vehicle standards exemption permit where there is an immediate
need to prevent or minimise serious harm to public safety or
significant damage to road infrastructure. Subsection (2) sets out
the procedures the Regulator must follow in exercising this
power.
Section 78 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 section, 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 section 76.
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Section 79 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 $4000.
In the case of an exemption that has been amended, the
Regulator must give the person a replacement permit in
accordance with subsection 64(3).
Section 80 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 $4000.
Subsection (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.
Subsection (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 section 5 as a notice stating the decision, the reasons
for the decision and the review and appeal information (also
defined in section 5) for the decision.
Subsection (4) clarifies that the offence of failing to apply for a
replacement permit cannot be committed where the person has
already applied for cancellation of the permit.
Division 4 Operating under vehicle
standards exemption
Section 81 creates a number of offences, each with a maximum
penalty of $3000, where there has been a contravention of a
vehicle standards exemption.
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Under subsection (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 subsection (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 section 82.
Under subsection (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 subsection (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.
Subsection (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.
Subsection (5) specifies that, if a person commits an offence
against subsection (1), (2) or (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.
Subsection (6) operates to prevent any double jeopardy arising
because a person has been denied the benefit of an exemption
under subsection (5). A person can be charged with either the
offence against this section or the offence against the
contravention of the vehicle standard but must not be charged
with both offences.
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Section 82 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 $3000 applies for both offences.
A relevant party for the driver means:
· 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
section 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.
Subsection (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:
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· 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.
Section 83 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
$3000 applies for both offences. A relevant party for the driver
means:
· 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
section 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
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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.
Subsection (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;
· evidence of details stated in an infringement notice 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
section 83, 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. Subsection (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 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 $3000.
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Part 3.3 Modifying heavy vehicles
Section 84 defines modification to limit the expression to
alterations or changes resulting in non-compliance with an
applicable vehicle standard, or a departure from an applicable
vehicle standards exemption already in place (other than a
departure bringing the vehicle into full compliance with all
applicable vehicle standards).
Section 85 creates offences in relation to unauthorised vehicle
modifications.
Under subsection (1) it is an offence for a person to modify a
heavy vehicle unless the modification has been approved by an
approved vehicle examiner under section 86 or by the Regulator
under section 87. The maximum penalty for this offence $3000.
Under subsection (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
approved vehicle examiner under section 86 or by the Regulator
under section 87. The maximum penalty for this offence is
$3000.
It is intended that under section 85, 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.
Section 86 empowers an approved vehicle examiner, if
authorised to do so by the national regulations, to approve a
modification of a heavy vehicle if the modification complies
with a code of practice prescribed by the national regulations for
this section.
Unlike a modification approved by the Regulator under
section 87, the examiner does not have to consider whether the
modification will constitute a significant safety risk. This is
because the examiner does not have the same broad discretion
to approve a modification even if it does not comply with a
prescribed code of practice.
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Subsection (3) specifies what an approved vehicle examiner
must do if the examiner approves a modification. The examiner
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. Failure to comply with this
requirement is an offence, with a maximum penalty of $3000.
Section 87 authorises the Regulator to approve a modification of
a heavy vehicle if the Regulator is satisfied that the use on a
road of the heavy vehicle as modified will not pose a significant
safety risk or the modified vehicle will comply with applicable
noise and emission standards prescribed by national regulations,
or the Regulator is satisfied that the modified vehicle complies
with the requirements of any exemption from a noise or
emission standard.
Unlike an examiner under section 86, 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 examiner under section
86(3), section 87(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.
Subsection (4) establishes the requirements for a plate or label
that operates as evidence of the Regulator's approval of a
modification.
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Section 88 establishes a general head of power for the making of
regulations with respect to the modification of heavy vehicles.
Part 3.4 Other offences
Section 89 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 $6000.
The inclusion of the phrase `permit to be used' in subsection (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.
Subsection (3) authorises the movement of these vehicles
through the use of vehicle defect notices where the vehicle
complies with any conditions imposed through the notice.
Section 90 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. The Law does not require all heavy vehicles
to be fitted with a gaseous emission control system if they were
built before the relevant emissions control ADR (Australian
Design Rule) came into force.
Subsection (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 if one is
required to be fitted by an applicable heavy vehicle standard,
the maximum penalty for non-compliance being $3000.
Subsection (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 in accordance with the
manufacturer's design. The maximum penalty for non-
compliance is $3000.
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The inclusion of the phrase `permit to be used' in subsection (1)
and (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.
Subsection (3) makes it an offence to use, or permit to be used,
on a road a heavy vehicle fitted with an emission control system
if the operation of the system results in a failure to comply with
an applicable heavy vehicle standard. This is necessary to
address a concern that an aftermarket component such as an
exhaust pipe may be operating in the way it is intended but still
leaves the vehicle in an unsatisfactory state.
Subsection (4) clarifies that offence in subsection (2) or (3)
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.
Subsection (5) allows national regulations to be made that
prescribe testing standards for emissions from heavy vehicles.
Section 91 makes it an offence to tamper with an emissions
control system or permitting a heavy vehicle to be used in
circumstances where it is known or ought to be known that the
emissions control system has been tampered with. The new
section excludes the mistake of fact defence and in its place
provides for the reasonable steps defence to be raised.
Section 92 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 of the
particular type, size or configuration. The maximum penalty for
non-compliance is $3000.
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This section is intended to ensure that warning signs are only
used for vehicles that, under the heavy vehicle standards, are
required to use them.
Section 93 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.
Subsection (2) prohibits a person from fitting or directing
another person to fit a speed limiter to a heavy vehicle in
circumstances where the person knows or ought reasonably to
know that the speed limiter has been tampered with.
Subsection (3) prohibits an operator of a heavy vehicle from
permitting the vehicle to be driven on a road if the operator
knows, or ought reasonably to know, that a speed limiter fitted
to the vehicle, as required under an Australian road law or by
order of an Australian court, has been tampered with. An
exception to this requirement is created by subsection (5), which
provides that subsection (3) does not apply where the vehicle is
on a journey to a place for the repair of the speed limiter.
Subsection (4) 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
$10000, 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
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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.
Section 93 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.
Chapter 4 Vehicle operations--
mass, dimension and
loading
Part 4.1 Preliminary
Section 94 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 or excessively large heavy
vehicles; and
· To minimise any adverse impact of excessively loaded or
excessively large heavy vehicles on road infrastructure or
public amenity.
Subsection (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;
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· 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, subsection (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.
Part 4.2 Mass requirements
Division 1 Requirements
Section 95 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 prescribed mass
requirements. In addition, subsection (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.
Section 96 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 $4000);
substantial (maximum penalty $6000) or severe risk breach
(maximum penalty $10000 plus $500 for every additional 1%
above 120% to a maximum incremental penalty of $20000,
(the total penalty will not exceed $30000 for an individual)).
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These categories of breach are defined in Part 4.2, Division 2 of
this Bill (section 97 to 100).
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
However, in a proceeding for an offence under this section 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.
Subsection (4) allows the mass limit for a PBS vehicle to be
established in the PBS vehicle approval. Under this subsection
the limit stipulated in the approval is taken to be the applicable
limit, and the vehicle is regarded for the purposes of this Law as
complying with the prescribed mass requirements.
Division 2 Categories of breaches of
mass requirements
Section 97 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 particular
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.
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Sections 98, 99 and 100 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.
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The operation of the penalty regime for breaches of a mass
requirement can be summarised in the following flowchart:
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
Section 101 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, subsection (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.
Section 102 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 section 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 (sections 105 - 107).
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
However, in a proceeding for an offence under this section 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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Subsection (4) allows the dimension limit for a PBS vehicle to
be established in the PBS vehicle approval. Under this
subsection the limit stipulated in the approval is taken to be the
applicable limit, and the vehicle is regarded for the purposes of
this Law as complying with the prescribed dimension
requirements.
Division 2 Categories of breaches of
dimension requirements
Section 103 restricts the application of Division 2 to a heavy
vehicle only while it is carrying goods or passengers.
This restriction is required to ensure that risk categorisations
created for dimensional breaches apply only to laden vehicles.
Beaches of internal dimension limits are not intended to be
penalised on this basis but rather will be subject to the
obligations set out in the regulations made under Chapter 3
dealing with vehicle standards.
Section 104 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.
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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 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.
· 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.
Section 105 states when a contravention of a dimension
requirement is a minor risk breach. Under section 105, 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.
Section 106 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 section 104 is to
be treated as a substantial risk breach if any escalating factors
mentioned in subsection (2) or (3) are present.
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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.
Section 107 states when a contravention of a dimension
requirement is a severe risk breach. A contravention of a
dimension requirement is a severe 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 section 106(1)(a) is to be regarded
as a severe risk breach if any escalating factors mentioned in
section 107(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.
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· 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 section 108):
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
Section 108 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 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
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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.
Section 109 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 section, 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 section is $3000.
Part 4.4 Loading requirements
Division 1 Requirements
Section 110 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.
Section 111 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 section does not
have the benefit of the mistake of fact defence for the offence.
However, in a proceeding for an offence under this section 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
Sections 112, 113 and 114 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 sections 112 - 114, 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.
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If the subject matter of the contravention does involve an actual
loss or shifting of the load:
· 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 flowchart on the following page 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 provision
Section 115 concerns certain evidence in proceedings for an
offence in regard to a contravention of a loading requirement.
Under this section:
· 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.
Subsection (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. Section 115
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.
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Part 4.5 Exemptions for particular
overmass or oversize
vehicles
Division 1 Preliminary
Section 116 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 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
section 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 Law provides that these
vehicles may only operate on public roads if the Regulator
issues a Class 1 or Class 3 notice or permit.
Subsection (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 subsection (4) 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 other than an agricultural trailer.
An agricultural vehicle is defined in section 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. Subsection (4) defines the term large
indivisible item for this section. A large invisible item is an
item that cannot be divided into smaller items without
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extreme effort, expense or risk of damage and it cannot be
carried without contravening a mass or dimension
requirement.
Subsection (1) stipulates that agricultural trailers (whether or not
they exceed mass and dimension requirements) are to be treated
as Class 1, and not Class 3, heavy vehicles. This allows for these
trailers to be subject to Class 1 rather than Class 3 notices or
permits and for the standard conditions that are to apply to
Class 1 vehicles as a result of the regulations made under this
Chapter to be used for these notices or permits.
Subsection (4) 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
Section 117 empowers the Regulator, by Commonwealth
gazette notice complying with section 121, 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).
Limitations to the power of the Regulator to issue a mass or
dimension exemption (notice) in this section 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
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· 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 section 117 indicates that Division 3,
Part 4.7 should be read when considering the amendment,
suspension or cancellation of a mass or dimension exemption
(notice).
Section 118 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 subsection (1)
and (2) are present.
The matters mentioned in subsections (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 is satisfied that all other consents required
for the exemption under the law of the relevant jurisdiction
have been obtained by the applicant or have been otherwise
given.
· the Regulator has had regard to the approved guidelines
(defined in section 5 as guidelines approved by responsible
Ministers under section 653) for granting mass or dimension
exemptions in making the decision whether to grant the mass
or dimension exemption (notice). The requirement in
subsection (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
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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.
Section 119 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 section 119 a mass or dimension exemption
(notice) is also subject to the road conditions or travel conditions
required by a relevant road manager for the exemption under
section 160 or 161.
A significant provision in section 119 is subsection (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. Subsection (2) provides
that the route restrictions may be stated on map by the
Regulator. Subsection (3) prescribes requirements for such a
map that the Regulator must follow, including a requirement to
make the map publicly available.
Subsection (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.
Subsection (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 section 5;
· intelligent access conditions; or
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· 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.
Subsection (4) clarifying that the Regulator may only extend, or
add to the condition stating the areas or routes, if the relevant
road manager has consented to a grant that includes the relevant
areas or routes.
Section 120 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.
Paragraph (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
section 117 that a mass or dimension exemption (notice) cannot
be granted for a period of more than 5 years.
Section 121 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
Section 122 empowers the Regulator to exempt, by permit as
mentioned in section 127, 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).
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Limitations to the Regulator's power under section 122 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 subsection (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.
A legislative note to section 122 indicates that Division 4,
Part 4.7 should be read when considering the amendment,
suspension or cancellation of a mass or dimension exemption
(notice).
Section 123 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 subsection (3) to require
the applicant to give the Regulator any additional information
reasonably required to decide the application.
Section 124 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 subsections (1) and (2) are present.
The factors in section 124(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 (section 124(1)(a));
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· each relevant road manager for the exemption has consented
to the grant of the mass or dimension exemption (permit)
(section 124(1) (b)); and
· the Regulator is satisfied that all consents required for the
exemption under the law of the relevant jurisdiction have
been obtained by the applicant or have been otherwise given
(section 124(1)(c));
· the Regulator has had regard to the approved guidelines
(defined in section 5 as guidelines approved by responsible
Ministers under section 653) for granting mass or dimension
exemptions in making the decision whether to grant the mass
or dimension exemption (permit) (section 124(2)).
The requirement in section 124(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.
Section 125 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 section 125 is subsection (1)(a) which
requires a compulsory condition regarding the areas or routes to
which the exemption applies for all mass or dimension
exemptions (permit). This section 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 section 125. 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
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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.
Section 126 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 section 126 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 section 122 that a mass or
dimension exemption (permit) cannot be granted for a period of
more than 3 years.
Section 127 requires the Regulator to give the applicant a permit
stating certain information if the Regulator grants a mass or
dimension exemption (permit). Subsection (1)(b) specifies that
if the Regulator has imposed conditions on the permit (including
the compulsory conditions in section 125) 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 section 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.
Subsection (2)(b) facilitates the issuing of so-called `farm gate'
permits. These permits authorise the movement of heavy
vehicles on roads without necessarily knowing the details of the
exact vehicle that will perform the relevant transport task.
It does so recognising the registration details may not be known
at the time of issuing.
Section 128 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 166 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
Section 129 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
$6000 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 subsection (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).
Subsection(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.
Subsection (5) states that if a condition offence (defined in
subsection (8) as an offence against subsection (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.
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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. Subsection (7) excludes from subsection (1) a
condition that the driver keep a relevant document (such as the
notice) in their possession while driving. This is done to ensure
that an offence for not carrying a document is subject to a lower
penalty, being $3000.
Subsection (6) ensures that a person denied the benefit of an
exemption because of the operation of subsection (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.
Section 130 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 section 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 $6000. 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.
Subsection (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
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record a conviction against a driver under this section does
not preclude the operator of a heavy vehicle from being
charged or convicted under this section.
· Evidence a court has convicted the driver of the relevant
offence 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.
· Details stated in an infringement notice issued for the
relevant offence is evidence that the offence happened at the
time and place, and in the circumstances, stated in the
infringement notice.
Section 131 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 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 section, and the operator of the heavy vehicle contravening
the condition of the mass or dimension exemption are the same
person, subsection (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.
Section 131 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.
However, to restrict the circumstances in which the driver of a
pilot vehicle may be found liable for accompanying a heavy
vehicle contravening a condition of a mass or dimension
exemption, those conditions are restricted to matters reasonably
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within the knowledge of the pilot (such as route and time
restrictions) and exclude matters it maybe unreasonable for them
to be imputed knowledge of (such as the breach of a particular
mass requirement applying to the vehicle).
Section 132 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 $3000 is
committed by the driver of the vehicle and the relevant party for
the driver. For this section, 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
section, 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.
Subsection (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 section 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 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.
· Details stated in an infringement notice issued for the
relevant offence is evidence that the offence happened at the
time and place, and in the circumstances, stated in the
infringement notice.
Section 133 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 $3000, is committed by the driver of the
vehicle and the relevant party for the driver. For this section, 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
section 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 (section 133(2)).
The maximum penalty for not complying with this requirement
is $4000.
Subsections (4) to (5) state that when the relevant party is
charged with an offence under this section 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
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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.
Subsection (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 section 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 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.
· Details stated in an infringement notice issued for the
relevant offence is evidence that the offence happened at the
time and place, and in the circumstances, stated in the
infringement notice.
Division 5 Other provision
Section 134 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).
Subsection (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 $3000. Section 134 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.
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The terms heavy vehicle warning sign and pilot vehicle warning
sign are defined in subsection (3) for the purposes of this
section.
Part 4.6 Restricting access to roads
by large vehicles that are
not overmass or oversize
vehicles
Division 1 Preliminary
Section 135 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 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.
Section 136 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
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· a single motor vehicle, or a combination, that is higher than
4.3 m and is built to carry cattle, sheep, pigs or horses.
Section 136 also deems a PBS vehicle to be a class 2 vehicle for
the purpose of Chapter 4. This allows the access management
system created under this Chapter (modified as necessary) to be
applied to these vehicles so that they may be regulated using
notices and permits.
Division 2 Restriction
Section 137 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
section 135, this is intended to protect public safety, road
infrastructure and public amenity from adverse interference by
particularly large heavy vehicles.
Division 3 Authorisation by
Commonwealth Gazette notice
Section 138 empowers the Regulator, by Commonwealth
Gazette notice complying with section 142, 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.
Section 139 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 section 139
are met.
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The requirements in section 139 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 is satisfied that all consents required for the
authorisation under the law of the relevant jurisdiction have
been obtained by the applicant or have been otherwise given;
· the Regulator has had regard to the approved guidelines
(defined in section 5 as guidelines approved by responsible
Ministers under section 653) for granting class 2 heavy
vehicle authorisations in making the decision whether to
grant the class 2 heavy vehicle authorisation (notice).
The requirement in subsection (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.
Section 140 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 prescribe conditions applying
to a class 2 heavy vehicle authorisation (notice) in section 140.
Section 141 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
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published or, if a later time is stated in the notice, at the later
time. Section 141(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 section 138 that a class 2 heavy vehicle
authorisation (notice) cannot be granted for a period of more
than 5 years.
Section 142 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 section 142 in order to be a valid exemption.
In addition, subsection (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.
Subsection (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
Section 143 empowers the Regulator to authorise, by giving a
permit as mentioned in section 148, 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 section 143 indicates that Division 4,
Part 4.7 should be read when considering the amendment,
suspension or cancellation of a mass or dimension exemption
(notice).
Section 144 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 section 144(3), by notice given
to the applicant; to require the applicant to give the Regulator
any additional information reasonably required to decide the
application.
Section 145 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 subsections (1) and (2) are met.
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The requirements in subsections (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;
· each relevant road manager for the exemption has consented
to the grant of the class 2 heavy vehicle authorisation
(permit); and
· the Regulator is satisfied that all consents required for the
authorisation under the law of the relevant jurisdiction have
been obtained by the applicant or have been otherwise given;
· the Regulator has had regard to the approved guidelines
(defined in section 5 as guidelines approved by responsible
Ministers under section 653) for class 2 heavy vehicle
authorisations in making the decision whether to grant the
class 2 heavy vehicle authorisation (permit) (section 145(2)).
The requirement in subsection (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.
Section 146 requires that a class 2 heavy vehicle authorisation
(permit) must be subject to the road conditions or travel
conditions required by a relevant road manager for the
authorisation under section 160 or 161; and empowers the
Regulator to subject the authorisation to any other conditions
the Regulator considers appropriate.
Section 147 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, section 143 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.
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Section 148 requires the Regulator to give the applicant a permit
stating particular information if the Regulator grants a class 2
heavy vehicle authorisation (permit). Subsection (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 subsection (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.
Section 149 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
Section 150 creates an offence for a driver or operator of a
heavy with a maximum penalty of $6000 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 section 151(1), relating to an obligation to carry a
copy of a notice, or information about it, that has been published
in the Commonwealth Gazette).
Section 151 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 $3000 and the offence is committed
by the driver of the vehicle and the relevant party for the driver.
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For section 151, 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.
Subsection (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 section 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 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.
· Details stated in an infringement notice issued for the
relevant offence is evidence that the offence happened at the
time and place, and in the circumstances, stated in the
infringement notice.
Subsections (4) and (5) state that when the relevant party is
charged with an offence under this section 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.
Section 152 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
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authorisation. If this requirement is not complied with, an
offence, with a maximum penalty of $3000, is committed by the
driver of the vehicle and the relevant party for the driver.
For section 152, 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
section the relevant party will give a driver a copy of the permit
that they have been issued by the Regulator. In such a situation,
subsection (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 $4000.
Subsection (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
section 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 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.
· Details stated in an infringement notice issued for the
relevant offence is evidence that the offence happened at the
time and place, and in the circumstances, stated in the
infringement notice
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Subsections (4) to (5) state that when the relevant party is
charged with an offence under this section 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.
Section 153 is a new provision that requires a driver of a class 2
heavy vehicle that is a PBS vehicle to which a class 2 heavy
vehicle authorisation applies to keep a copy of the PBS vehicle
approval in their possession.
The section extends liability for an offence by the driver under
subsection (1) to an employer, or prime contractor or an operator
of the vehicle.
A person charged under this proposed section does not have the
benefit of the mistake of fact defence for the offence but does
have the benefit of the reasonable steps defence.
Part 4.7 Particular provisions about
mass or dimension
authorities
Division 1 Preliminary
Section 154 provides definitions, for Part 4.7, of the terms road
condition, route assessment, travel condition 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.
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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 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.
The term travel condition is required to expressly allow a mass
or dimension authority to include conditions governing route
and time of travel as requested by a relevant road manager.
The term is intended to encompass conditions about which way
a vehicle turns, as safe access to roads is in some cases subject
to the heavy vehicle travelling in a specific direction or turning
in a particular direction at an intersection.
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
Section 155 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
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granting a mass or dimension authority are sections 118(1)(b),
124(1)(b), 139(1)(b) and 145(1)(b).
The terms road manager and mass or dimension authority are
defined in section 5.
Road manager is defined in section 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 section 5 as meaning
a mass or dimension exemption or a class 2 heavy vehicle
authorisation.
Section 156 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.
Section 157 applies where an applicant for a mass or dimension
exemption (permit) or class 2 heavy vehicle authorisation
(permit) and consultation with another entity is required under a
jurisdictional law. Subsection (2) requires the Regulator to
notify the applicant of this requirement and advise the relevant
road manager of the fact of this notification simultaneously.
Section 158 applies where an applicant for a mass or dimension
exemption (permit) or class 2 heavy vehicle authorisation
(permit) and consultation with another entity is required under a
jurisdictional law. It is intended to ensure that the actions
required to be undertaken by the road manager to respond to the
request for consent are completed as far as possible and not
delayed on the basis of the requirement to undertake additional
consultation with another entity. Subsection (3) provides that the
consent provide by the road manager in this instance is
conditional upon the completion of consultation with the other
entity.
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Subsection (4) outlines the obligations of the road manager
where consultation is required but the road manager's consent
would be inoperative as a result of the actions of the other entity.
Subsection (5) prevents the Regulator from granting a mass or
dimension authority where the other entity has declined to
provide its approval.
Section 159 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 section the road manager is to
notify the Regulator of certain matters listed in subsection (2)
and requires the Regulator to notify the applicant of further
matters listed in subsection (3). Subsection (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 subsection (5), the application lapses if the applicant does
not pay a required fee for the 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.
Subsection (2) empowers the road manager to notify the
Regulator of the requirement for the route assessment and the
fee payable for the route assessment.
Subsection (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;
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· if, under section 158(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.
Subsection (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. Subsection (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.
Section 160 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 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 section 164 must be issued to the applicant.
The term relevant road manager is defined in section 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.
Section 161 authorises a road manager for a mass or dimension
authority to consent to the grant of the authority subject to the
condition that a stated travel condition is imposed on the
authority
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Section 162 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 section 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.
Section 163 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 section, relevant road authority is defined by subsection
(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. Section 5 defines the term road authority so
as to make it clear that there is to be only 1 such authority for
each participating jurisdiction.
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Section 164 requires certain information (listed in subsection
(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 subsection (2) is:
· all information required for the information notice by other
sections of the Law; 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
· a written statement that explains the road manager's decision
that complies with the requirements set out in section 172;
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.
Section 165 sets out the minimum contents of an information
notice where the Regulator grants a mass or dimension authority
by giving a person a permit and the authority is subject to a
travel condition required by a relevant road manager. This is a
consequence of the inclusion of the conditioning power
provided in section 161.
Section 166 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 subsection (2) regarding the refusal of
consent.
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The required information that the information notice provided
by the Regulator must state under section 166 is:
· all information required for the information notice by other
sections of the Law; and
· that the road manager has refused to consent to the mass or
dimension authority; and
· a written statement that explains the road manager's decision
that complies with the requirements set out in section 172;
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 section 5.
Section 167 establishes an expedited process for the renewal of
certain mass and dimension authorities. The circumstances in
which the process is available are set out in subsection (1).
The circumstances in which the process is inapplicable or ceases
to apply are set out in subsection (2). These circumstances
include material differences between the terms of the previous
authority and the terms of the proposed replacement authority,
an objection to the application by the road manager within the
specified time limit, or the operation of a law of the jurisdiction
that requires consultation with third parties before the grant of
the proposed replacement authority,
This proposed section formalises best practice in a number if
jurisdictions. The institution of this process is intended to
provide productivity benefits by minimising the time required
for the granting of consent as the road manager has previously
consented to a grant of a mass or dimension authority in similar
circumstances and the Regulator proposes to issue a replacement
authority on the same conditions as the original authority.
Subsection (3) provides that the consent of the relevant road
manager must be deemed to have been granted on the same
terms as the consent for the previous authority unless the road
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manager refuses consent, or lodges a notice of objection within
the time limits specified in subsection (2).
Section 168 suspends the operations of sections 156 to 166
while a proposed replacement authority is being dealt with under
the expedited procedure under section 167.
Section 169 authorises a relevant road manager to consent to
grant of a mass or dimension authority for a trial period of no
more than 3 months. Subsection (3) provides that the trial can be
undertaken only if all relevant road managers require that the
access be trialled. The purpose of the time restriction is to
encourage road managers to consent to future access once the
impact of the access during the trial has been assessed.
Section 170 provides that the Regulator must, one month before
the end of a trial initiated under section 169, notify the relevant
road managers that the trial is due to end and will automatically
be re-granted by the Regulator unless a road manager advises
the trial must end. If there is no written objection from road
managers, the Regulator must renew the trial access on the same
terms and conditions. If there is a response to end the trial, the
Regulator must not renew the trial access. Instead, the normal
process for granting access for a vehicle and operation of the
type contemplated must be followed.
Section 171 applies at the granting or renewal of a mass or
dimension authority under sections 169 or 170 respectively.
Subsection (2) provides that, in the case of a mass or dimension
exemption (permit) or a class 2 heavy vehicle authorisation
(permit), the period for which the permit applies must not
exceed the length of the trial period.
Subsection (3) provides that, in the case of a mass or dimension
exemption (notice) or a class 2 heavy vehicle authorisation
(notice), then, despite sections 120 or 141, the period for which
the notice applies is so much of the period stated in the
Commonwealth Gazette notice referred to in that section as does
not exceed the trial period. This allows for the management of
trials through notices and the broader productivity benefits this
more efficient process can provide.
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Section 172 inserts a new section that sets out the minimum
requirements to be contained in a written statement required to
be issued for various decisions by road managers in relation to
applications for mass or dimension authorities under Chapter 4.
Subsection (2)(a) provides that the road manager must include in
the notice its findings on material questions of fact, the evidence
or other material on which those findings were based and giving
the reasons for the road manager's decision.
Subsection (2)(b) requires the road manager to identify each
document or part of a document that is relevant to the road
manager's decision (without automatically requiring the
production of the documents themselves).
Division 3 Amendment, cancellation or
suspension of mass or
dimension authority granted by
Commonwealth Gazette notice
Section 173 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
subsections (3) to (5) are complied with.
The intent of the requirements of this section 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 section 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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The requirements in subsections (3) to (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 (subsection (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 (subsection (3)).
· If the action proposed in the Commonwealth Gazette notice
made under subsection (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, 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 subsection (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. Subsection
(7) states that in this section 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.
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Under this section 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.
Section 174 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 section 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
section 163.
If the Regulator does amend or cancel a mass or dimension
authority under section 174, 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 section is to provide for the revocation or
amendment of consent given by the road manager after the mass
or dimension authority has been granted. Subsection (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 section 163. 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
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· 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.
Subsection (7) states that in this section 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.
Section 175 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. Section 175 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. Section 175 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 a notice to
alter or cancel the exemption or authority takes effect.
Subsection (5) states that this section applies despite
sections 173 and 174. 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
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requirements concerning the amendment or the cancellation of
the authority.
Division 4 Amendment, cancellation or
suspension of mass or
dimension authority granted by
permit
Section 176 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 subsection (3) to require, by
notice, any additional information from the applicant that is
reasonably required to decide the application.
Subsection (4) requires the Regulator to seek the consent of the
relevant road manager unless the amendment of the mass or
dimension authority seeks to omit an area or route or reducing
an area or route in size.
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, subsection (6) requires the Regulator to
give the applicant an information notice for the decision and
return the permit for the authority to the applicant.
Section 177 empowers the Regulator to amend or cancel a
permit for a mass or dimension authority at the Regulator's
initiative if the Regulator considers one or more of the grounds
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mentioned in subsection (1) exists and the requirements of
subsections (2) to (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 subsections (2) to (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 section 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.
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The intent of the requirements of this section 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 section is in allowing to those who may be adversely
affected by a decision time in which to adjust their business
practices.
Section 178 provides for the revocation or amendment of
consent given by the road manager after the mass or dimension
authority has been granted. Section 178 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 section 163.
If the Regulator does amend or cancel a mass or dimension
authority under this section, 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.
Subsection (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 section 140. In such a situation:
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· 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.
Section 179 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. Section 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. Section 179 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 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
a notice to alter or cancel the authority takes effect.
Subsection (5) states that this section applies despite
sections 176, 177 and 178. 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.
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Section 180 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 section, 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
Section 181 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, subsection (4) states
that the Regulator must give the person a replacement permit for
the authority when amended. Section 181(3) requires a person
issued with a notice under this section to 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 $4000.
Section 182 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 $4000. 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.
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Part 4.8 Extended liability
Section 183 extends chain of responsibility for certain offences
against section 96 (contravention of a mass requirement
applying to a heavy vehicle); section 102 (contravention of a
dimension requirement applying to a heavy vehicle) and
section 111 (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 section is the penalty for the contravention of
the provision by the driver of the heavy vehicle. Subsection (4)
states that in a proceeding for an offence under this section:
· Whether or not the driver has or will be proceeded against for
or convicted of an offence against section 96, 102 or 111 is
irrelevant. A decision not to prosecute or convict a driver
under this section does not preclude the relevant party from
being proceeded against or convicted.
· Evidence a court has convicted the driver of the relevant
offence against section 96, 102 or 111 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
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conviction. This is intended to facilitate proof of the relevant
facts
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
However, in a proceeding for an offence under this section 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
Section 184 creates an offence where a person drives a heavy
motor vehicle towing more than 1 other vehicle. The maximum
penalty for this offence is $3000. This section 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 or in circumstances prescribed by the national regulations.
Division 2 Coupling requirements
Section 185 creates offences, both with a maximum penalty of
$6000, 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 section, 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
Section 186 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 section 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 section are:
· Each consignor of the goods (consign and consignor are
defined in section 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 section 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 section 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 (Section 186(9)
defines receiver of goods in Australia for this section).
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
However, in a proceeding for an offence under this section 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.
Section 187 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 contains information that is false or
misleading in a material particular. The maximum penalty for an
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offence under this section is $10000. Subsection (4) states that,
for the purposes of this section, 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. Section 5 defines container weight declaration and
freight container and responsible entity for a freight container.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
However, in a proceeding for an offence under this section 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
Section 188 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
section 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.
Section 189 defines the term complying container weight
declaration. This term is an important term throughout the
provisions of this Division. This section 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.
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This section states that a container weight declaration for a
freight container is a complying container weight declaration if:
· it contains the following additional information--
(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.
Section 190 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 $6000 applies. The term
responsible entity is defined in section 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. Subsections (2) and (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.
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Section 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.
Section 191 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. Subsection (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 complying container weight declaration or the prescribed
particulars contained in a complying container weight
declaration for the freight container. Noncompliance for either
offence in section 191 has a maximum penalty of $6000.
Subsection (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 subsection (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 section does not
have the benefit of the mistake of fact defence for the offence.
However, in a proceeding for an offence under this section 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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Section 192 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.
Subsection (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 $3000.
A person charged with either offence under this section does not
have the benefit of the mistake of fact defence for the offence.
However, in a proceeding for an offence under this section 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 5 Other offences
Section 193 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.
Subsection (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 section does not
have the benefit of the mistake of fact defence for the offence.
However, in a proceeding for an offence under this section the
person does have the benefit of the reasonable steps defence for
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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.
Section 194 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.
Subsection (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 the Law 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
Section 195 provides the basis for determining which mass
requirement is to prevail in the case of conflicting requirements.
In that case, the lower or lowest of the applicable limits applies.
This section 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.
Section 196 provides the basis for determining which dimension
requirement is to prevail in the case of conflicting requirements.
For example, a vehicle may be exempted from a prescribed
dimension requirement through a dimension exemption.
The same vehicle may be subject to a temporary restriction
imposed through an official traffic sign. Subsection (2) requires
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the more or most (if there are two or more such requirements)
restrictive of these to be applied in determining what are the
relevant dimension requirements.
The section necessarily departs from the approach taken in
respect to mass limits in section 195 in specifying that is the
more or most `restrictive' limit that applies, rather than the
`shortest' or `lowest' requirement on the basis that in some
(likely limited) circumstances the requirement imposed on the
vehicle and intended to be applied may be longer than another
requirement. For example a prescribed dimension requirement
may establish that a heavy vehicle is compliant if the distance
between two axle groups is more than 2.5 meters while a mass
and dimension exemption may require the same distance to be
more than 3 meters, in which case the 3 meter requirement is the
most restrictive and the prescribed dimension requirement
should be disregarded
Section 197 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) 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.
Subsection (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.
Subsection (5) imposes an obligation on the Regulator to notify
the relevant road authority of the grant of an exemption under
subsection (1) as soon as practicable after it is granted.
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Section 198 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. Section 5 defines responsible entity for
a freight container.
Losses that may be recovered under this section 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;
· 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 section 199 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.
Section 199 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
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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, section 199
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 section 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;
· 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 section. However, section 201 states that the court may
assess the monetary value of a loss recoverable in the way it
considers appropriate. Section 201 also provides that the court
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may have regard to the matters it considers appropriate in
making this assessment.
Section 201 provides that the court may have regard to the
matters it considers appropriate in making this assessment.
Section 200 grants a right of recovery to responsible entities that
have proceedings initiated against them under section 199 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
section 199.
Subsection (3) provides that the responsible entity may enforce
their right to recover under subsection (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.
Section 201 empowers the court to assess the monetary value
recoverable under the recovery sections of this division
(sections 198; 199 and 200). In making this assessment
section 201 empowers the court to have regard to matters it
considers appropriate, including any evidence adduced in a
proceeding for an offence against this Law.
Chapter 5 Vehicle operations--
speeding
Part 5.1 Preliminary
Section 202 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.
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Section 203 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
Part 5.2 Particular duties and
offences
Division 1 Employers, prime contractors
and operators
Section 204 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
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exceed a speed limit applying to the driver. The maximum
penalty for not complying with this requirement is $10000.
It should be noted that, because of the operation of section 218
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 section, 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 section, 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.
Notes to subsection (1) indicate that sections 622 and 623
should be considered in deciding whether a person has taken all
reasonable steps.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for this offence.
Section 205 imposes an obligation on an employer not to cause
an employed driver to drive a heavy vehicle unless the employer
has complied with section 204 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.
It should be noted that, because of the operation of section 218,
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.
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A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for this offence.
This section encourages employers to be vigilant as to factors
within their control that may encourage a driver to not comply
with a speed limit.
Section 206 states where a driver is self-employed, this section
imposes on prime contractors and operators of vehicles
obligations similar to those imposed on employers by
section 205. A maximum penalty of $4000 is prescribed for a
person contravening this provision.
It should be noted that, because of the operation of section 218,
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 section does not
have the benefit of the mistake of fact defence for this offence.
This section 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
Section 207 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 $10000 applies to the offence of
contravening this provision. Section 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 section 218,
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.
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Examples of what may be regarded as reasonable steps are
provided in a note under this section. 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;
· Allowing for traffic conditions or other delays in schedules;
and
· Contingency planning concerning schedules.
Notes to subsection (1) indicate that sections 622 and 623
should be considered in deciding whether a person has taken all
reasonable steps.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
Section 208 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 section 218,
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:
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· 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.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
Division 3 Loading managers
Section 209 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 $10000 applies to the offence of contravening this provision.
For this section, 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 section 218,
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 section. 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;
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· 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.
Notes to subsection (1) indicate that sections 622 and 623
should be considered in deciding whether a person has taken all
reasonable steps.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
Division 4 Particular consignors and
consignees
Section 210 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.
Section 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.
Section 211 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 section 211 refers to section 632 for the matters a
court must consider deciding whether a person ought reasonably
to have known something.
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Section 212 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 $10000 applies to both
offences in this section.
It should be noted that, because of the operation of section 218,
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 section, 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 section, 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 section. 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
· regular consultation with other parties in the chain of
responsibility, unions and industry associations to address
compliance issues.
Notes to subsection (1) indicate that sections 622 and 623
should be considered in deciding whether a person has taken all
reasonable steps.
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A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
Section 213 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 section 212
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 section 218,
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
Section 214 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 subsection (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.
Subsection (2) provides that a person may be a party in the chain
or responsibility for the heavy vehicle in more than one
capacity.
Section 215 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 $10000
applies to the offence of contravening this provision.
It should be noted that, because of the operation of section 218,
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 subsection (1) indicates that section 632 states the
matters a court must consider when deciding whether a person
ought reasonably to have known something.
Section 216 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.
Subsection (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 $10000 applies to the
offence of contravening this provision.
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It should be noted that, because of the operation of section 218,
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.
Note 1 to section 216 indicates that section 632 states the
matters a court must consider when deciding whether a person
ought reasonably to have known something. Note 2 indicates
that section 742 provides that particular contracts or other
agreements are void.
Division 6 Provisions about offences
against this Part
Section 217 deals with circumstances included within the
concept of failing to take all reasonable steps in relation to this
Division. Under section 217, 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 section 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.
Subsection (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.
Section 218 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.
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Part 5.3 Extended liability
Section 219 creates offences for employers, prime contractors
and operators of heavy vehicles if a speeding offence is
committed in relation to the vehicle. However, a driver need not
be proceeded against or convicted of a speeding offence for this
section to operate.
In this section 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.
Subsection (1) states that when a speeding offence is committed,
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;
· if the driver is making a journey for an operator of a vehicle,
the operator of the vehicle.
The maximum penalty for a person committing an offence under
this provision is dependent on both the speed limit exceeded by
the driver and how much the driver exceeded the limit by and
ranges from $3000 to $10000.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
However, in a proceeding for an offence under this section 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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Subsection (4) clarifies that legal proceedings or any conviction
against the driver for the speeding offence is irrelevant.
Evidence of a conviction against the driver is evidence of certain
matters, and details stated in an infringement notice issued for
the relevant offence is evidence that the offence happened at the
time and place, and in the circumstances, stated in the
infringement.
Chapter 6 Vehicle operations--
driver fatigue
Part 6.1 Preliminary
Section 220 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
section 7. Normally, a vehicle designed to carry more than
12 adults (including the driver) or having a gross vehicle or
combination mass of 12 tonnes or more will be a fatigue-
regulated heavy vehicle, although section 7 provides exceptions,
including some machinery and motor homes.
Subsection (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.
Section 221 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.
Section 222 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.
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Part 6.2 Duties relating to fatigue
Division 1 Preliminary
Section 223 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 (a), (b), or (c).
Subsection (2) gives a head of power for the making of national
regulations supplementing, clarifying or providing examples for
any of the provisions of sections 223 to 226 (encompassing, the
meaning of `fatigue', the matters a court may consider in
deciding whether a person was fatigued, the meaning of
`impaired by fatigue', and the matters a court may consider in
deciding whether a person was impaired by fatigue).
Section 224 sets out some matters which a court may consider in
determining whether a driver is fatigued but subsection (2) states
that the court is not limited by those matters.
Section 225 states that a driver is impaired by fatigue if the
driver's ability to drive a fatigue-regulated heavy vehicle safely
is affected by fatigue. This is consistent with Regulation 44 of
the Road Transport (General) Regulation 2005 (NSW).
Section 226 sets out matters that a court may consider in
determining whether a person is impaired by fatigue. Subsection
(2) provides that the court is not limited to a consideration of
those things and subsection (3) provides that a court may
consider a driver to be impaired by fatigue even though he or
she has complied with legal requirements.
Section 227 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;
· a prime contractor for the vehicle's driver;
· an operator of the vehicle;
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· 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.
Subsection (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
Section 228 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 $6000 applies to the offence
of contravening this provision.
Section 228 also makes provision for participating jurisdictions
to classify offences under other state or territory laws as a
"prescribed driver offence under another law". When an offence
under another law of the jurisdiction (for instance, an
occupational health and safety law) is so prescribed, then a
driver cannot be convicted of both a heavy vehicle driver fatigue
offence and the "prescribed driver offence under another law".
This will provide drivers of fatigue-regulated heavy vehicle with
protection from double jeopardy without having to rely on the,
often uncertain, operation of general statutory or common law
rules to the same effect.
Section 229 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
$10000 applies to the offence of contravening this provision.
Section 229(2) deals with evidence that a party took all
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reasonable steps and subsection (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.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
Division 3 Additional duties of employers,
prime contractors and
operators
Section 230 imposes on certain employers, contractors and
operators (as specified by subsection (3)) 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 $6000
applies to the offence of contravening this provision.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
Section 231 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 section 230 and is
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.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
Section 232 provides that where a driver is self-employed,
section 232 imposes on prime contractors and operators of
vehicles obligations similar to those imposed on employers by
section 231. A maximum penalty of $4000 applies to the offence
of contravening this provision.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
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Division 4 Additional duties of schedulers
Section 233 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 $6000 applies to the
offence of contravening this provision.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
Section 234 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 $6000
applies to the offence of contravening this provision.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
Division 5 Additional duties of
consignors and consignees
Section 235 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 $10000 applies to the
offence of contravening this provision.
Subsection (2) imposes 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.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
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Section 236 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 section 235 and is satisfied that others upon
whom obligations are imposed by Divisions 3 and 4 have
complied with those Divisions. A maximum penalty of $4000
applies to the offence of contravening this provision.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
Section 237 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 $10000 applies to the offence of
contravening this provision but Subsection (2) protects the
consignor if certain precautions are taken before the demand is
made.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
Division 6 Additional duties of loading
managers
Section 238 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
$100000 applies to the offence of contravening this provision.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
Section 239 imposes an obligation to ensure drivers can rest in
particular circumstances. In circumstances specified by
subsection (1), a loading 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.
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The circumstances include delays in the starting or finishing
times advised to the driver for the loading or unloading.
A maximum penalty of $6000 applies to the offence of
contravening this provision.
A person charged with an offence under this section does not
have the benefit of the mistake of fact defence for the offence.
Division 7 Particular requests etc. and
contracts etc. prohibited
Section 240 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 $10000
applies to the offence of contravening this provision.
Section 241 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.
Subsection (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 $10000
applies to the offence of contravening this provision.
Division 8 Provisions about offences
against this Part
Section 242 deals with circumstances included within the
concept of failing to take all reasonable steps. Subsection (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
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would have foreseen that the person's conduct would be
reasonably likely to cause the other person to do the prohibited
act.
Part 6.3 Requirements relating to
work time and rest time
Division 1 Preliminary
Section 243 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.
Section 244 deals with counting time. As the driving task may
extend across State or Territory borders, section 244 states how
time (for work and rest) is to be counted where more than one
participating jurisdiction is involved.
Section 245 provides for the possibility that the driving task
may extend across State or Territory borders, section 245
indicates how time (for work and rest) is to be counted where
both participating and non-participating jurisdictions are
involved.
Section 246 provides for the computation of short periods of
less than 15 minutes of both work and rest times.
Section 247 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.
Section 248 deals with the situation where the driving extends
across two or more time zones.
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Division 2 Standard work and rest
arrangements
Section 249 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 sections deal with hours that are
not standard, called BFM and AFM.
Section 250 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. Subsection (1) applies
different monetary penalties by reference to whether the breach
of the provision is categorised as minor, substantial, severe or
critical. Subsections (2) and (3) deal with defences to a
prosecution for contravening subsection (1).
Section 251 makes provision, similar to section 250, where
drivers under standard hours are party to a two-up driving
arrangement.
Section 252 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
Section 253 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
section 458 provides.
Section 254 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. Subsection (1) applies
different monetary penalties by reference to whether the breach
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of the provision is categorised as minor, substantial, severe or
critical.
Subsections (2) and (3) deal with defences to a prosecution for
contravening subsection (1).
Section 255 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.
Section 256 provides a provision, similar to section 254, where
drivers under BFM hours are party to a two-up driving
arrangement.
Division 4 AFM work and rest
arrangements
Section 257 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 section 458 provides.
Section 258 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. Subsection (1) applies
different monetary penalties by reference to whether the breach
of the provision is categorised as minor, substantial, severe or
critical.
Subsections (2) and (3) deal with defences to a prosecution for
contravening subsection (1).
Division 5 Arrangements under work and
rest hours exemption
Section 259 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.
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Section 260 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. Subsection (1)
applies different monetary penalties by reference to whether the
breach of the provision is categorised as minor, substantial,
severe or critical. Subsections (2) and (3) deal with defences to a
prosecution for contravening subsection (1).
Division 6 Extended liability
Section 261 extends liability to employers, prime contractors,
operators, schedulers, consignors, consignees, loading
managers, loaders and unloaders if a driver of a fatigue-
regulated heavy vehicle exceeds 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 $4000 to $15000. Subsections (3)
and (4) deal with defences to a prosecution for contravening
subsection (1).
Subsection (5) clarifies that legal proceedings or any conviction
against the driver for a breach of work and rest requirements is
irrelevant, evidence of a conviction against the driver is
evidence of certain matters, and details stated in an infringement
notice issued for the relevant offence is evidence that the
offence happened at the time and place, and in the
circumstances, stated in the infringement notice.
Division 7 Changing work and rest hours
option
Section 262 states the limits of a driver to 1 work and rest hours
option but allows him or her to change the option available
Section 263 deals with the circumstances in which a work and
rest hours option can be changed and obligations arising from a
change. Section 263 defines the options in terms of standard
hours, BFM hours or AFM hours.
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Section 264 imposes duties on employers, prime contractors,
operators and schedulers where a driver changes a work and rest
hours option. A maximum penalty of $6000 applies where the
duties are breached. Subsections (3) and (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
Section 265 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 section on the way to,
during and returning from an emergency, as defined in
subsection (4).
Subsection (3) provides that an emergency services exemption is
only applicable when the emergency service personnel have
complied with any guidelines issued by any emergency service
or for that service by an agency responsible for oversight of the
emergency service. An example of this would be the South
Australian Fire and Emergency Services Commission as the
agency responsible for oversight of the South Australian
Country Fire Service, which is an emergency service
Subdivision 2 Exemptions by Commonwealth
Gazette notice
Section 266 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.
Section 267 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
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the applicants. Subsection (2) requires the Regulator to have
regard to guidelines approved by the responsible Ministers.
Section 268 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.
Section 269 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.
Section 270 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.
Section 271 sets out the grounds that warrant amendment or
cancellation of a notice granting an exemption from work and
rest hours. In particular, subsection (1) states that a notice may
be amended or cancelled due to a change in circumstances that
would have resulted in a decision not to grant the exemption or
grant it subject to conditions or different conditions had the facts
existed at the original grant, or where the use of a fatigue-
regulated heavy vehicle has caused, or is likely to cause, a
significant risk to public safety.
Subsections (4) to (6) provide that the Regulator's amendment
or cancellation of a work and rest hours exemption (notice)
takes effect in the same timeframe and circumstances as those
for an amendment or cancellation of a work diary exemption
(notice).
Section 272 empowers the Regulator to immediately suspend a
work and rest hours exemption (notice). The power is based on
similar provisions in the Act relating to exemptions from
registration, vehicle standards requirements, and mass and
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dimension authorities. It is exercisable where it is necessary to
suspend the exemption immediately to prevent or minimise
serious harm to public safety, and requires a public notification
process to be undertaken.
Subdivision 3 Exemptions by permit
Section 273 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.
Section 274 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.
Section 275 states the restrictions on the Regulator in relation to
the grant of a permit under section 271. The Regulator must be
satisfied of certain matters specified in the section, 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 section 653.
Section 276 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.
Section 277 deals with the period during which a permit
granting an exemption from work and rest hours is in force.
Section 278 deals with the contents of and, in some cases,
information which must accompany a work and rest hours
exemption permit.
Section 279 provides that if the Regulator refuses a permit, an
information notice is to be provided to the applicant.
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Section 280 deals with an application for the amendment or
cancellation of a work and rest hours exemption (permit).
Section 281 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.
Section 282 provides for the circumstances in which the
Regulator may immediately suspend a work and rest hours
exemption (permit).
Section 283 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.
Section 284 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 $6000 applies.
The Regulator may issue a replacement permit where a permit
has been amended.
Section 285 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 $4000 applies for a
contravention of this requirement. The section 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.
Section 286 states that it is an offence not to comply with a
condition of an exemption from work and rest hours.
A maximum penalty of $6000 applies.
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Section 287 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 $3000. Subsection (3) extends the
liability (with a similar penalty) to employers, prime contractors
and operators where a driver contravenes subsection (1), thereby
committing an offence against subsection (2).
Section 288 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 $3000
Subsection (3) extends liability to employers, prime contractors
and operators if the driver is found to have contravened
subsection (1).
Subsection (2) imposes obligations to return permits when they
are no longer needed. A maximum penalty of $4000 applies.
Subsections (4), (5) and (6) deal with defences and things
relevant or irrelevant to the court's consideration in a
prosecution for offences created by this section.
Part 6.4 Requirements about record
keeping
Division 1 Preliminary
Section 289 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. Section 5 defines what the
driver's base is.
Section 290 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.
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Division 2 Work diary requirements
Subdivision 1 Requirement to carry work
diary
Section 291 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.
Section 292 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.
Section 293 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.
Subsections (2) and (3) deal with situations irrelevant to the
offence created by subsection (1) and with defences to a
prosecution for tis contravention.
Subdivision 2 Information required to be
included in work diary
Section 294 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.
Section 295 creates a broad head of power to allow the making
of regulations in respect of various matters related to work
diaries including the information that is to be recorded, and the
manner in which the information is to be recorded.
Section 296 requires a driver to record information in the
driver's work diary in the manner and at the time prescribed by
the national regulations. However, it does not apply to
information to which section 297 applies.
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Section 297 states that the driver must record certain
information in the diary immediately after starting work.
A maximum penalty of $3000 applies. Subsection (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.
Section 298 requires the driver of a fatigue-regulated heavy
vehicle to record the odometer reading in the manner prescribed
by the national regulations if and when required to do so by the
national regulations. A defence is provided where at the time of
the offence, the odometer was malfunctioning and the driver has
complied with the requirements of section 397 in informing the
relevant persons.
Section 299 requires a driver who is a party to a two-up driving
arrangement to provide the other two-up driver on request with
the details relating to the arrangement that are prescribed by the
national regulations.
Subdivision 3 How information must be
recorded in work diary
Section 300 states that the purpose of Subdivision 3 is to state
how information required by Subdivision 2 is to be recorded.
Section 301 explains how information is to be recorded in the
driver's written work diary. A maximum penalty of $1500
applies.
Section 302 explains how information is to be recorded in the
driver's electronic work diary. A maximum penalty of $1500
applies.
Section 303 states that the driver must record time according to
the time zone of the driver's base. A penalty of $1500 applies.
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Subdivision 4 Requirements about work
diaries that are filled up etc.
Section 304 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.
Section 305 states that information must be recorded in a
supplementary record during a period when the circumstances
described in section 304 apply. A maximum penalty of $6000
applies. The driver must record time in the supplementary
record according to the time zone of the driver's base.
A maximum penalty of $1500 applies.
Subsection (4) details circumstances where these obligations do
not apply.
Section 306 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 section is $3000.
Section 307 contains an obligation similar to that imposed by
section 306 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. Subsection (2) requires the driver to give the
Regulator notice of the matter within 2 business days.
The maximum penalty prescribed for contravention of this
section is $3000.
Section 308 prescribes the steps a driver must take if a written
diary that has been lost or stolen is found. A maximum penalty
of $3000 applies.
Section 309 provides an obligation to notify the Regulator in
the circumstances similar to those described in section 307.
This section provides that the driver must notify the driver's
record keeper. A maximum penalty of $6000 applies.
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Section 310 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 $6000 applies.
Section 311 states what a record keeper must do if an electronic
work diary has been filled up to render it incapable of receiving
further information. Subsection (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 $6000 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.
Subsections (4) and (5) deal with defences to prosecutions for
the offences created by the section.
Section 312 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 $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.
Subsections (4) and (5) deal with defences to prosecutions for
the offences created by the section.
Section 313 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 $6000 applies.
Under subsection (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
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penalty as the record keeper. Subsection (4) provides that
subsection (3) does not apply, however, where the other person
has been engaged only to repair the electronic diary or bring it
into working order.
Subsections (5) and (6) deal with defences to prosecutions for
the offences created by the section.
Subdivision 5 Use of electronic work diaries
Section 314 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
$3000 applies. A record keeper must ensure that the driver using
such a diary complies with those conditions or specifications.
A maximum penalty of $6000 applies.
Subsection (4) provides a defence to a prosecution for breach of
the duties imposed by the section on drivers and record keepers.
Subdivision 6 Extended liability
Section 315 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. Subsection (3)
provides that a mistake of fact defence does not apply.
However, a person charged has the benefit of the reasonable
steps defence.
Subsection (4) clarifies that legal proceedings or any conviction
against the driver for a breach of work and rest requirements is
irrelevant, evidence of a conviction against the driver is
evidence of certain matters, and details stated in an infringement
notice issued for the relevant offence is evidence that the
offence happened at the time and place, and in the
circumstances, stated in the infringement notice.
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Division 3 Records relating to drivers
Subdivision 1 Preliminary
Section 316 states that this Division 3 applies to each record
keeper for the driver of a fatigue-regulated heavy vehicle.
Section 317 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 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
Section 318 states that Subdivision 2 applies where a driver of
a fatigue-regulated heavy vehicle engages only in 100km work
under standard hours.
Section 319 states that the record keeper must record the
information specified in subsection (1) within the `prescribed
period' referred in subsection (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.
Subsections (3) and (4) deal with defences available in a
prosecution.
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Subdivision 3 Record keeping obligations
relating to drivers engaging in
100+km work under standard
hours or operating under
BFM hours, AFM hours or
exemption hours
Section 320 states that Subdivision 3 applies to drivers engaging
in 100+km work or operating under BFM or AFM hours or
exemption hours.
Section 321 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.
Subsections (4) and (5) deal with defences available in a
prosecution.
Subsection (6) provides that the section does not apply where
certain exemptions are in place.
Section 322 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 $3000 applies.
The record keeper must ensure that the driver complies with this
obligation. A maximum penalty of $3000 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.
Subsections (6) and (7) deal with defences available in a
prosecution.
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Section 323 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 section 322 for drivers, record keepers and
those engaged by them.
Section 324 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 $3000 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.
Subsections (4) and (5) deal with defences available in a
prosecution.
Division 4 Provisions about false
representations relating to
work records
Section 325 deals with false or misleading entries in a work
record. A maximum penalty of $10000 applies for making such
an entry where the person making it knows or reasonably ought
to know that it was false or misleading.
Section 326 imposes a prohibition against a driver keeping
2 work diaries simultaneously. Maximum penalties of $10000
apply.
Section 327 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 $10000 applies.
Section 328 states that a person must not falsely represent that a
work record was made by the person. A maximum penalty of
$10000 applies.
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Division 5 Interfering with work records
Subdivision 1 Work records generally
Section 329 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 $10000 applies for
noncompliance.
Section 330 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 so or the person is an authorised officer.
A maximum penalty of $10000 applies for noncompliance.
Section 331 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 $10000 applies for
noncompliance.
Section 332 states that it is an offence to remove pages from a
written work diary unless legally required to do so. A maximum
penalty of $10000 applies for noncompliance.
Subdivision 2 Approved electronic recording
systems
Section 333 states that Subdivision 2 applies to an approved
electronic recording system comprising the whole or part of an
electronic work diary.
Section 334 defines `tamper' 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.
Section 335 makes it an offence for a person to tamper with an
approved electronic recording system. Subsection (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, or conduct associated with maintaining an
approved electronic recording system, or an authorised officer
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when exercising functions under this Law. A maximum penalty
of $10000 applies for noncompliance.
Subsections (3), (4) and (5) deal with defences that are available
to the person charged.
Section 336 states that a person using an approved electronic
recording system must not permit another person to tamper with
it. A maximum penalty of $10000 applies for noncompliance.
Subsection (1) provides examples of persons who use an
approved electronic recording system.
Subsections (2) and (3) deal with defences that are available to
the person charged.
Section 337 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 $10000 applies for noncompliance.
Subsections (3) and (4) deal with defences available to a person
charged.
Division 6 Obtaining written work diary
Section 338 prescribes the requirements for a written work diary
issued by the Regulator.
Section 339 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.
Section 340 states that the Regulator must issue a written work
diary where the driver follows the procedures specified in this
and the preceding section and pays the prescribed fee.
Subsections (2) and (3) deal with information required or
permitted to be noted by the Regulator at the time of issue.
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Division 6A Requirements about records
record keeper must make or
keep
Section 341 specifies the period for which and the way in which
records must be kept under s Chapter 6. Subsection (4), clarifies
that a driver who is also their own record keeper must ensure the
record or a copy of the record is kept at the driver's record
location in a way that ensures it is readily available to an
authorised officer at the record location by the end of the 21-day
period after the day the record is made.
Division 7 Approval of electronic
recording systems
Subdivision 1 Approval of electronic
recording systems
Section 342 states that a person must apply, in the approved
form, to the Regulator for approval of an electronic recording
system.
Section 343 states that, as soon as is practicable after receiving
an application, the Regulator must grant, either conditionally or
unconditionally, approval or refuse it.
Subsection (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.
Subsection (3) requires the Regulator to have regard to approved
guidelines (defined in section 5 as guidelines approved by
responsible Ministers under section 653) for granting approvals.
Section 344 deals with the procedures to be followed by the
Regulator after granting an approval, including the provision of
evidence of the approval.
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Section 345 states that if the Regulator refuses an application for
approval, section 345 requires an information notice to be given
to the applicant.
Section 346 provides that an approval extends to any system
identical with the one approved.
Subdivision 2 Provisions about electronic
work diary labels
Section 347 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 $10000 apply for noncompliance.
Section 348 provides that the label is evidence of the approval
of the electronic recording system.
Section 349 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.
Section 350 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.
Subdivision 3 Amendment or cancellation of
approval
Section 351 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 Subsection (3) but subsection (4) requires the
Regulator to decide the application as soon as practicable after
receiving it.
Subsections (5) and (6) require the Regulator to provide
information to the applicant as to how the application has been
determined.
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Section 352 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,
subsections (2) and (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.
Once a decision has been made, the Regulator must provide the
holder with information about it. Subsection (5) provides that
the amendment or cancellation takes effect when that
information is given or at a later time stated in the information
notice.
Section 353 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.
Section 354 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 turn, notify those others.
A maximum penalty of $6000 applies. Subsection (6) provides
that nothing in the section prevents the Regulator from
publishing details of the amendment more widely.
Section 355 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
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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.
Subsection (7) provides that nothing in the section prevents the
Regulator from publishing details of the cancellation more
widely.
Division 8 Exemptions from work diary
requirements of Division 2
Subdivision 1 Exemption for emergency
services
Section 356 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
section on the way to, during and returning from an emergency,
as defined in subsection (4).
Subdivision 2 Exemptions by Commonwealth
Gazette notice
Section 357 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.
Section 358 states the restrictions on the Regulator in relation to
the publication of a notice under section 357. The Regulator
must be satisfied of certain matters specified in the section,
including safety and the unreasonableness of requiring
compliance with the requirements which would otherwise apply,
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and must have regard to guidelines approved by the responsible
Ministers under section 653.
Section 359 states that a notice granting an exemption from
work diary requirements may be subject to conditions.
Section 360 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.
Section 361 contains requirements for a notice granting an
exemption from work diary requirements.
Section 362 provides for the amendment of cancellation of a
notice granting an exemption from work diary requirements.
Subdivision 3 Exemptions by permit
Section 363 empowers the Regulator to exempt a driver of
fatigue-regulated heavy vehicles from work diary requirements
that would otherwise apply to the driver.
Section 364 provides that a driver or employer may apply for an
exemption permit in the approved form. It specifies other
requirements for an application.
Section 365 imposes restrictions on the Regulator to the grant of
a permit under section 363. 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 section 653.
Section 366 provides that a permit granting an exemption from
work diary requirements may be subject to conditions.
Section 367 states the period during which a permit granting an
exemption from work diary requirements is in force.
Section 368 states the contents of and, in some cases,
information which must accompany a work diary exemption
permit.
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Section 369 states that if the Regulator refuses a permit,
section 339 requires an information notice to be provided to
the applicant.
Section 370 deals with the amendment or cancellation of a work
diary exemption (permit).
Section 371 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.
Section 372 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.
Section 373 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 $6000 applies. The Regulator may issue a
replacement permit where a permit has been amended.
Section 374 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 $4000 applies for a
contravention of this requirement. Section 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
Section 375 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.
Section 376 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 $3000 applies. Liability is
extended to the driver's employers and others. A person to
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whom liability is so extended may rely on the defence of the
taking of reasonable steps but does not have the benefit of the
mistake of fact defence for the offence.
Section 377 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 $3000 applies.
Division 8A Exemptions from fatigue
record keeping requirements
of Division 3
Subdivision 1 Exemptions by Commonwealth
Gazette notice
Section 378 creates a power on the part of the Regulator to
exempt record keepers for drivers of fatigue-regulated heavy
vehicles carrying out a class of work from any or all of the
fatigue record keeping requirements contained in Division 3
of Part 6.4 of the Act for a period of not more than 3 years,
through the use of a fatigue record keeping exemption (notice).
In exercising the power the Regulator must have regard to any
approved guidelines.
Section 379 empowers the Regulator to impose a range of
conditions on a notice issued under section 378, including but
not limited to any conditions prescribed in the national
regulations.
Section 380 establishes the period for which a fatigue record
keeping exemption (notice) applies, being the time when the
Commonwealth Gazette notice for the exemption is published,
or such later period as stated in that gazette notice.
Section 381 sets out the minimum requirements a gazette notice
issued for a fatigue record keeping exemption (notice) must
contain and imposes an obligation on the Regulator to publish a
copy of the Commonwealth Gazette notice on the Regulator's
website.
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Section 382 empowers the Regulator to amend or cancel a
fatigue record keeping exemption (notice). The section
establishes the grounds on which the notice may be amended or
cancelled and specifies the procedure to be followed where the
power is intended to be exercised. This procedure imposes
public notice requirements and obliges the Regulator to consider
representations by affected persons.
Subdivision 2 Exemptions by permit
Section 383 empowers the Regulator to exempt a record keeper
for one or more drivers of a fatigue-regulated heavy vehicle
from any or all of the fatigue record keeping requirements
contained in of Division 3 of Part 6.4 of the Act for a period of
not more than 3 years through a fatigue record keeping
exemption (permit).
Section 384 establishes the procedures to be followed in the
making of an application for a fatigue record keeping exemption
(permit).
Section 385 empowers the Regulator to impose a range of
conditions on a permit applied for under section 384, including
but not limited to any conditions prescribed in the national
regulations.
Section 386 stipulates the period for which fatigue record
keeping exemption (permit) applies, being the period nominated
in the permit itself.
Section 387 requires the Regulator to provide a copy of a record
keeping exemption (permit) to the applicant. Where conditions
have been imposed on the permit, or it has been granted for less
than the period sought by the applicant, the Regulator must also
provide an information notice for the decision. This section also
stipulates the information the Regulator is required to include in
the permit.
Section 388 requires the Regulator to give the applicant an
information notice where the Regulator has decided to refuse an
application for a fatigue record keeping exemption (permit).
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Section 389 enables the holder of a fatigue record keeping
exemption (permit) to apply to the Regulator for an amendment
or cancellation of the exemption. The section outlines the
procedure the applicant must follow in seeking the power to be
exercised for their benefit, and the procedures to be followed by
the Regulator in granting the application or refusing to grant the
application.
Section 390 empowers the Regulator to amend or cancel a
fatigue record keeping exemption (permit) on its own initiative.
The section sets out the grounds upon which the power may be
exercised as well as the procedures to be followed where the
Regulator considers a ground exists to amend or cancel the
permit. These procedures include a requirement on the part of
the Regulator to notify the holder of the proposed action and
invite representations as to why the action should not be taken.
Section 391 allows the Regulator to make a minor amendment
of a fatigue record keeping exemption (permit) for formal or
clerical reasons or other reasons that do not adversely affect the
holder's interests on the giving of notice to the holder.
Section 392 provides that where a person's fatigue record
keeping exemption (permit) is amended or cancelled, the
Regulator may, by notice given to the person, require the person
to return the person's permit for the exemption to the Regulator
Section 393 requires the holder of a fatigue record keeping
exemption (permit) that is defaced, destroyed, lost or stolen to
apply to the Regulator for a replacement permit as soon as
reasonably practicable after becoming aware of the matter.
Subdivision 3 Exemptions by national
regulations
Section 394 creates a head of power to make regulations for the
exemption of record keepers for drivers of fatigue-regulated
heavy vehicles from the requirement to comply with all or stated
provisions of Division 3. There is currently no such capacity to
allow for 'enduring' exemptions to be prescribed in regulations
but it is likely there will be a need for these in future and they
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already may found in jurisdictional laws (for example,
regulation 115E of the Road Transport (General) Regulations
(NSW) that exempt motor hire, repair etc. companies who drive
vehicles locally from record keeping).
Subdivision 4 Other provisions
Section 395 creates an offence for a person who contravenes a
condition of a fatigue record keeping exemption.
Division 9 Requirements about
odometers
Section 396 states that an owner of a fatigue-regulated heavy
vehicle must maintain its odometer in accordance with the
national regulations. A maximum penalty of $6000 applies.
Subsections (2) and (3) deal with defences to a prosecution.
Section 397 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 $3000
applies.
Subsection (3) provides that the driver does not commit an
offence if another driver has provided the necessary information.
Section 398 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
$6000 applies. Subsections (3) and (4) deal with defences that
are available to a person charged with an offence under this
section.
Section 399 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 section 398. A maximum penalty of
$6000 applies. Subsections (3) and (4) deal with defences that
are available to a person charged with an offence under this
section.
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Chapter 7 Intelligent Access
Program
Part 7.1 Preliminary
Section 400 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
collection, keeping and handling of intelligent access
information. Sections 402 and 403 respectively define the
terms `intelligence access conditions' and `intelligent access
information.' Subsections (2) and (3) indicate 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 streamlined
alternative it presents to conventional enforcement. This Chapter
provides for the monitoring of intelligent access vehicles
(as defined in section 403) and the means of ensuring that the
systems needed to effect the monitoring are accurate and secure.
Section 401 introduces the concept of the `Intelligent Access
Program' and explains its purpose. The term has been
historically applied to the regulatory activities incorporated in
Chapter 7 and is well understood by users in industry and
government. The retention of this concept allows for the clearer
differentiation between regulatory telematics required as
condition of access and non-regulatory systems used for other
purposes.
Section 402 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 section 5 and refers to an exemption from a mass or
dimension requirement granted by the Regulator under a mass or
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dimension exemption (notice) under section 117 or a mass or
dimension exemption (permit) under section 122. 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 section 403)
by means of an intelligent transport system.
The term `intelligent transport system' is defined in section 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.
Section 403 defines terms used in Chapter 7.
Part 7.2 Duties and obligations of
operators of intelligent
access vehicles
Section 404 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 section 403, is essentially one subject to intelligent access
conditions. The vehicle's operator enters into an intelligent
access agreement (as defined in section 403) with an 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.
Subsection (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
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access agreement (as defined in section 403) 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 $10000 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.
Subsection (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 $10000
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.
Subsection (6) deals with what may be stated in a charge for an
offence against either subsection (1) or (4).
Section 405 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.
Subsections (2) and (3) deal with how the operator can comply
with the requirement.
Section 406 states that an operator of an intelligent access
vehicle who becomes aware that a part of an approved
intelligent transport system fitted to the vehicle is
malfunctioning or has malfunctioned, must report the matter to
the Regulator as soon as is practicable. A maximum penalty of
$6000 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 $6000 applies for noncompliance.
Section 407 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
section 408 (relating to reporting malfunctioning of the
intelligent access system to the operator) and how the driver
can discharge that obligation. Subsections (2) and (3) deal with
how the operator can comply with the requirement.
Part 7.3 Obligations of drivers of
intelligent access vehicles
Section 408 states that the driver of an intelligent access vehicle
who becomes aware that a part of an approved intelligent
transport system fitted to the vehicle is malfunctioning or has
malfunctioned, must report the matter to the vehicle's operator
as soon as is practicable. A maximum penalty of $6000 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 $6000 applies for non-compliance.
However, subsection (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
Section 409 authorises an intelligent access service provider to
collect and hold information for the purposes of relevant
monitoring of an intelligent access vehicle.
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Section 410 imposes on the intelligent access service provider
an obligation to take all reasonable steps to ensure that
information collected is appropriate, is not excessive, and is
accurate, complete and up to date. A maximum penalty of $6000
applies for noncompliance.
A further obligation is imposed under subsection (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 $6000
applies for noncompliance.
Section 411 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 section 5 as a person
engaged by TCA for auditing activities conducted by intelligent
access service providers.
Section 412 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.
Section 413 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 subsection (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.
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However, subsection (3) clarifies that the provider is not
required to inform the individual of any reports made by the
provider to the Regulator under sections 422 or 423 of relevant
contraventions or of tampering or suspected tampering with an
approved intelligent transport system.
Section 414 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, as soon as practicable and without cost. A maximum
penalty of $6000 applies for noncompliance.
Note that personal information is defined in section 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 section 403.
Subsection (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
sections 422 or 423 of relevant contraventions or of tampering
or suspected tampering with an approved intelligent transport
system.
Section 415 deals with the making of changes to personal
information held about an individual upon request by that
individual.
Subsection (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 $6000 applies for noncompliance.
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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 $6000
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.
Section 416 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 section 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.
Section 417 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.
Section 418 specifies how an intelligent access service provider
may use and disclose intelligent access information.
Subsection (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 section 403 and relates to
monitoring of a relevant vehicle's compliance with intelligent
access conditions (as defined in section 402).
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Subsection (2) authorises the service provider to disclose the
information to the Regulator for compliance purposes. The term
`compliance purposes' is defined in section 5 to mean
monitoring purposes or investigation purposes (both of which
are also defined in section 5).
Subsection (3) authorises the service provider to disclose
intelligent access information to--
· an authorised officer, other than a police officer, for law
enforcement purposes (a defined term in section 5) if so
authorised by a warrant issued under this Law; or
· an authorised officer who is a police officer, for law
enforcement purposes if so authorised by a warrant issued
under this Law or another law.
Subsection (4) defines the circumstances in which an authorised
officer or a police officer to whom a disclosure has been made
under this section may further use or disclose the information.
Those circumstances include law enforcement purposes, or a
purpose otherwise authorised under this Law or any other law.
Subject to subsection (6), subsection (5) authorises the service
provider to disclose the information to an operator, where that
information is about the operator.
Subsection (6) provides that the provider is not required to
disclose to operators information relating to noncompliance
reports. A `noncompliance report' is defined in section 403 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.
Subsection (7) 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.
Subsection (8) authorises the use and disclosure of personal
information about an individual if the individual gives written
consent.
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The whole of section 418 is, by reason of subsection (9), subject
to section 424. That section 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.
Section 419 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 specified in subsection (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 subsection (3) the record must be retained for at least
2 years, and a maximum penalty of $6000 applies for
noncompliance.
Section 420 states that where an intelligent access system
generates a noncompliance report (as defined in section 403),
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 $6000 applies
for noncompliance.
Section 421 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 section 419. 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 section 419 within 1 year after the expiry of the
time that the record is required be kept. A maximum penalty of
$6000 applies for noncompliance.
Section 422 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 section 5
to mean a form approved by the Regulator under section 735.
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The term `relevant contravention' is defined in section 403.
A maximum penalty of $6000 applies for non-compliance.
Subsection (3) deems the access service provider to know of a
relevant contravention if it has been detected by the provider's
monitoring equipment.
Section 423 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 section 5 to mean a form approved by the Regulator
under section 671). A maximum penalty of $6000 applies for
noncompliance.
Subsection (2) requires an intelligent access service provider to
notify TCA of its knowledge or suspicion that a back-office
intelligent transport system (a defined term) has been tampered
with. A maximum penalty of $6000 applies for noncompliance.
Subsection (3) 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. 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.
Section 424 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
or TCA, unless such disclosure is authorised under another law.
A maximum penalty of $6000 applies for noncompliance.
As with section 423(3), subsection (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
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detected electronically or has analysed information generated by
the system.
Subsection (3) prohibits a provider who has reported to the
Regulator under section 423(1) 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.
Subsection (4) prohibits a provider who has reported to TCA
under section 423(2) 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 7.5 Functions, powers, duties
and obligations of TCA
Section 425 sets out the functions of TCA as approving
intelligent transport systems, certifying service providers, and
auditing the activities of those certified. The section also enables
TCA to engage individuals, consultants and contractors to assist
it in the performance of its audit functions and makes it clear
that TCA's functions include cancelling the approval of
intelligent transport systems for use by intelligent access service
providers and approving and cancelling the certification of
intelligent access service providers.
Subsection (2) clarifies that an approval, certification or
engagement under subsection (1) may be given or made
unconditionally or subject to stated conditions imposed or varied
from time to time.
Section 426 authorises TCA to collect and hold intelligent
access information for discharging its functions and for law
enforcement purposes.
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Section 427 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.
Section 428 requires TCA to take all reasonable steps to protect
the information collected from unauthorised access,
unauthorised use, misuse, loss, modification or unauthorised
disclosure.
Section 429 states that TCA must make a document setting out
its policies as to how it manages personal information publicly
available.
Under subsection (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, subsection (3) clarifies that TCA is not required to
inform the individual of any reports made under the following
sections:
· 422 - being a report by an intelligent access service provider
to the Regulator relating to relevant contraventions for an
intelligent access vehicle;
· 423 - being a report by an intelligent access service provider
to the Regulator relating to tampering or suspected tampering
with an approved intelligent transport system;
· 438 - 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;
· 451 - being a report by an intelligent access auditor to TCA
relating to contraventions by an intelligent access service
provider; and
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· 452 - 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.
Section 430 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 section 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 section 403.
However, subsection (3) clarifies that TCA is not required to
inform the individual of any reports made under the following
sections:
· 422 - being a report by an intelligent access service provider
to the Regulator relating to relevant contraventions for an
intelligent access vehicle;
· 423 - being a report by an intelligent access service provider
to the Regulator relating to tampering or suspected tampering
with an approved intelligent transport system;
· 438 - 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;
· 451 - being a report by an intelligent access auditor to TCA
relating to contraventions by an intelligent access service
provider; and
· 452 - 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.
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Section 431 deals with the making of changes to personal
information held about an individual upon request by that
individual.
Subsection (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.
Subsections (3) and (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.
Section 432 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 section 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.
Section 433 specifies how TCA may use and disclose intelligent
access information.
Subsection (1) authorises TCA to use or disclose the information
for the discharge of its functions (set out in section 425) or for
law enforcement purposes. The term `law enforcement
purposes' is defined in section 403 and refers to the
investigation or prosecution of an offence against an Australian
road law (defined in section 5 to mean this Law or another law
of a State or Territory that regulates the use of vehicles on
roads).
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Subsection (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 section 659.
Subsection (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.
Subsection (4) authorises TCA to disclose the information to the
operator of an intelligent access vehicle, where that information
is about the operator.
Subsection (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 subsection (6), TCA may use or disclose information for
research purposes if no personal information is involved.
Subsection (7) authorises the use and disclosure of personal
information about an individual if the individual gives written
consent.
The whole of section 433 is, by reason of subsection (8), subject
to section 439. That section 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.
Section 434 states that TCA must not use or disclose certain
information unless it is reasonably satisfied that the information
is accurate, complete and up to date.
Section 435 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 subsection (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 subsection (3) the record must be
retained for at least 2 years.
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Section 436 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 section 403 to
mean a report made by an approved intelligent transport system
of a relevant contravention for an intelligent access vehicle
and/or apparent tampering with, or malfunctioning of, the
system.
Section 437 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 section 436.
Subsection (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 as soon as
practicable after it ceases to be required for those purposes.
Under subsection (2), TCA will be taken to have complied with
subsection (1) if it permanently removes from that information
anything by which an individual can be identified.
Section 438 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. Subsection (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.
Section 439 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
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made to the Regulator, unless such disclosure is authorised
under another law.
As with subsection 438(2), subsection (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.
Subsection (3) prohibits TCA, if it has reported to the Regulator
under section 438 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
Section 440 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 section 5 as a person engaged by TCA for
auditing activities conducted by intelligent access service
providers. An intelligent access audit is defined in section 403.
Section 441 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
$6000 applies for noncompliance.
A further obligation is imposed under subsection (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
$6000 applies for noncompliance.
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Section 442 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.
Section 443 provides, in subsection (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 $6000 applies for
noncompliance.
Subsection (2) clarifies that nothing in subsection (1) requires
the auditor to inform the individual of any reports made under
the following sections:
· 422 - being a report by an intelligent access service provider
to the Regulator relating to relevant contraventions for an
intelligent access vehicle;
· 423 - being a report by an intelligent access service provider
to the Regulator relating to tampering or suspected tampering
with an approved intelligent transport system;
· 438 - 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;
· 451 - being a report by an intelligent access auditor to TCA
relating to contraventions by an intelligent access service
provider; and
· 452 - 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.
Section 444 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.
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Subsection (2) clarifies that nothing in subsection (1) requires
the auditor to give the individual access to any reports made
under the following sections:
· 422 - being a report by an intelligent access service provider
to the Regulator relating to relevant contraventions for an
intelligent access vehicle;
· 423 - being a report by an intelligent access service provider
to the Regulator relating to tampering or suspected tampering
with an approved intelligent transport system;
· 438 - 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;
· 451 - being a report by an intelligent access auditor to TCA
relating to contraventions by an intelligent access service
provider; and
· 452 - 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.
Section 445 deals with the making of changes to personal
information held about an individual upon request by that
individual.
Subsection (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 $6000 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 $6000
applies for not notifying the individual or not complying with
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the individual's request to attach the individual's request for a
change to the information or a record of it.
Section 446 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 section 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.
Section 447 specifies how an intelligent access auditor may use
and disclose intelligent access information.
Subsection (1) states that an auditor may use and disclose the
information collected for the following purposes:
· conducting an intelligent access audit (as defined in
section 403);
· 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.
Subsection (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 section 659.
Subsection (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
section 425.
Subsection (4) authorises the auditor to disclose the information
to the operator of an intelligent access vehicle, where that
information is about the operator.
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Subsection (5) authorises the use and disclosure of personal
information about an individual if the individual gives written
consent.
The whole of section 447 is, by reason of subsection (6), subject
to section 453. That section 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.
Section 448 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.
Section 449 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 subsection 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 subsection 401(3) the
record must be retained for at least 2 years, and a maximum
penalty of $6000 applies for noncompliance.
Section 450 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 subsection (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.
Section 451 requires an auditor who knows or has reasonable
grounds to suspect that an intelligent access service provider has
contravened an obligation under this Chapter to, as soon as
practicable, report the matter to TCA. A maximum penalty of
$6000 applies for noncompliance.
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Section 452 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.
Section 453 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.
Subsection (2) prohibits an auditor who has reported to the
Regulator or TCA under section 452 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
Section 454 creates an offence, in subsection (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 $10000 applies.
Subsection (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 $8000 applies.
Subsection (3) provides an extended definition of fail for the
purposes of this section.
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Section 455 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 that 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
Section 456 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.
Section 457 provides definitions for terms used in Chapter 8.
Part 8.2 Grant of heavy vehicle
accreditation
Section 458 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
registration of the vehicle may be renewed 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 section 253); and
· AFM accreditation, allowing drivers of the vehicle to operate
under AFM hours (which are defined in section 257).
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Section 459 prescribes formal requirements for making an
application for heavy vehicle accreditation.
Subsection (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 section 457 to be
one relevant to the type of accreditation sought) for ensuring
compliance with the relevant standards and business rules
(defined in section 457 to be those relevant to the type of
accreditation sought, which are approved by the responsible
Ministers under section 654) and a statement from an approved
auditor (being a person defined in section 457 to be an auditor of
a class approved by the responsible Ministers under section 654)
that the applicant's management system will ensure compliance
with those standards and business rules.
Subsection (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 section 5 so as to
include a number of individuals and corporations having a
personal, employment or business relationship with the
applicant.
Subsection (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.
Subsection (5) empowers the Regulator to require additional
information or verify information by statutory declaration.
Section 460 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-section (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
section 5, or an offence involving fraud or dishonesty
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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
commissioner and such request may include specified
particulars. The police commissioner must give the requested
report to the Regulator.
Section 461 limits the Regulator's power to grant a heavy
vehicle accreditation.
Under subsection (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.
Subsection (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.
Subsection (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.
Subsection (4)(a) specifies matters the Regulator may consider
in deciding an application and subsection (4)(b) requires the
Regulator to have regard to the approved guidelines (defined in
section 5 as guidelines approved by responsible Ministers under
section 653) for granting heavy vehicle accreditations under this
Law.
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Section 462 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.
Section 463 provides that the heavy vehicle accreditation may
be for such period as is stated in the accreditation certificate
(issued by the Regulator under section 464), which may be less
than the period the applicant sought.
Section 464 states that if a heavy vehicle accreditation is
granted, the Regulator must give the applicant an accreditation
certificate containing the information set out in subsection (2).
Where the accreditation is subject to conditions not sought by
the applicant, granted for a period less than the 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
section 5 as a notice stating the decision, the reasons for the
decision and the review and appeal information (also defined
in section 5) for the decision.
Section 465 states that if the Regulator refuses an application,
an information notice must be given to the applicant.
An information notice is defined in section 5 as a notice stating
the decision, the reasons for the decision and the review and
appeal information (also defined in section 5) for the decision.
Section 466 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.
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Part 8.3 Operating under heavy
vehicle accreditation
Section 467 requires the holder of a BFM accreditation or AFM
accreditation to comply with the conditions of the accreditation.
A maximum penalty of $6000 applies.
Section 468 imposes obligations in relation to the driver
carrying accreditation details.
Subsection (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 the AFM hours (defined in section 257)
applying under the accreditation. A maximum penalty of $3000
applies.
Subsection (3) provides that if an offence against subsection (1)
is committed involving the driver, the operator commits an
offence, to which 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 section
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
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appropriate steps to prevent an on-road breach from occurring
and cannot rely on a honest and reasonable mistake alone.
Subsections (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
· evidence of the details in an infringement notice issued for
the offence is evidence 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.
Section 469 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 section 468(1). A maximum penalty of $4000 applies.
Section 470 imposes obligations on an operator who holds a
heavy vehicle accreditation.
Subsection (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, subsection (3)
also requires the operator to ensure that each driver is informed
of the AFM hours (defined in section 257) applying under the
accreditation. A maximum penalty of $6000 applies.
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Subsection (4) requires an operator who is the holder of:
· AFM or BFM accreditation to keep a list of the drivers
operating under the accreditation; and
· mass management accreditation or maintenance management
accreditation to keep a current list of heavy vehicles to which
the operator's accreditation relates.
A maximum penalty of $6000 applies.
Subsection (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.
Subsection (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 $3000 applies.
If required under subsection (7) by the Regulator by notice to do
so, an operator must provide the Regulator with a copy of the
list referred to in subsection (4)(b) or (c), together with details of
any change to the list, unless the operator has a reasonable
excuse. A maximum penalty of $3000 applies.
Subsection (9) clarifies that the obligations under subsections
(4) to (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).
Section 471 applies where a heavy vehicle accreditation is
amended or suspended or is no longer held by an operator.
Subsection (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
section 468(1). A maximum penalty of $4000 applies. Section
468(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
section 257) applying under the accreditation.
Part 8.4 Amendment or
cancellation of heavy
vehicle accreditation
Section 472 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.
Section 473 deals with the amendment, suspension or
cancellation of a heavy vehicle accreditation on the Regulator's
initiative. Subsection (1) specifies the grounds for the Regulator
to amend, suspend or cancel the accreditation. Subsections (2)
to (5) deal with the procedures to be followed, including
notification requirements and giving the holder an opportunity
to make written representations.
Section 474 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
section 5).
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Section 475 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.
Part 8.5 Other provisions about
heavy vehicle
accreditations
Section 476 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 $6000 applies.
If the accreditation is amended, subsection (3) requires the
Regulator to issue a replacement accreditation certificate.
Subsection (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.
Section 477 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 $4000 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 section 5 as a notice stating the decision, the reasons
for the decision and the review and appeal information (also
defined in section 5) for the decision.
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Section 478 creates various offences relating to approved
auditors, each of which has a maximum penalty of $10000.
An approved auditor is defined in section 457 to be an auditor of
a class approved by the responsible Ministers under section 654.
Subsection (1) provides that a person must not falsely represent
that the person is an approved auditor.
Subsection (2) prohibits a person from falsely representing that
the person is an auditor of a particular approved class.
For example, an auditor approved for the purposes of mass
management accreditation is prohibited from representing the
person was approved for the purpose of AFM accreditation,
when no such approval is held.
Subsection (3) provides that an approved auditor must not
falsely represent that the person has audited an operator's
relevant management system. Under subsection 459(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 section 457 to be one relevant to the type of accreditation
sought) will ensure compliance with the relevant standards and
business rules (defined in section 457 to be those relevant to the
type of accreditation sought, which are approved by the
responsible Ministers under section 654).
Subsection (4) provides that a person must not falsely represent
the opinion of an approved auditor as to an operator's relevant
management system.
Subsection (5) inserts a new definition of approved class, to
support subsection (2).
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Chapter 9 Enforcement
Part 9.1 General matters about
authorised officers
Division 1 Functions
Section 479 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
Section 480 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.
Section 481 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.
Section 482 empowers an authorised officer's appointment to be
subject to conditions (which may restrict the officer's powers)
set out in the instrument of appointment, a notice signed by the
Regulator given to the officer or the regulations.
Section 483 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 section 484 (below).
Section 484 specifies that an authorised officer may resign by
giving a signed notice to the Regulator. However, subsection (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
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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
Section 485 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 .
Section 486 requires the Regulator to issue an identity card to
each authorised officer. Subsection (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. Subsection (3) allows for a single identity card to
be issued for this Law and other purposes.
Section 487 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, subsection (3) makes it clear that the mere entry into
specified places does not necessitate the production or display of
the card. Those are:
· a place entered under subsection 495(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 subsection 497(1)(b) for investigation
purposes, being a public place when it is open to the public;
or
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· a place entered under subsection 497(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.
Section 488 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 $3000 applies.
Division 4 Miscellaneous provisions
Section 489 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.
Section 490 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.
Section 491 clarifies that the National Law does not authorise
the use of force against any person by an authorised officer, or a
person assisting them or acting under their direction in the
exercise or purported exercise of a function under the National
Law.
This restriction extends to warrants issued under the national
Law. An exception is allowed where the application Act for a
jurisdiction authorises the use of force against a person by a
police officer. This exception is necessary to ensure the existing
powers of police officers are not inadvertently constrained as a
consequence of enactment of the National Law.
Section 492 clarifies the circumstances in which an authorised
officer may use force against property in the exercise of a
function under the Law.
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The use of force is authorised under various sections of the
National Law. For example, in section 498(6) an authorised
officer may use force that is reasonably necessary for gaining
entry to places mentioned in section 498(2)(c), where the officer
reasonably believes there may be evidence at the place of an
offence against the National Law that may be concealed or
destroyed unless the place is immediately entered and searched.
Section 492 provides for this and other sections where the use of
force against property is authorised, it is a condition of that use
that the use of force is authorised under the application Act.
This approach reflects the divergent and irreconcilable law and
policy governing this issue in the states and territories.
The restriction does not extend to police officers, who may use
force in the circumstances provided in the National Law (and in
any other law of the jurisdiction) without further legislative
reference.
Subsection (4) provides that the application Act of a jurisdiction
may include additional circumstances in which an authorised
officer, whether or not a police officer, may use force against
property in the exercise or purported exercise of a function
under this Chapter. This response is demanded by the
conflicting policies applying to these matters in the states and
territories.
Clause 493 makes it clear the powers provided under this
Chapter are exercisable in relation to light vehicles only where
the light vehicle is a pilot vehicle or escort vehicle, or where the
exercise is necessary to determine whether the vehicle is a heavy
vehicle.
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Part 9.2 Powers in relation to
places
Division 1 Preliminary
Section 494 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 section 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.
A relevant place is a place of business (as defined in this
section), the relevant garage address of a heavy vehicle, the
driver's base (as defined in section 5) or a place where records
required to kept under this Law or a heavy vehicle accreditation
(as defined in section 5) are located or are required to be located
under this Law or a heavy vehicle accreditation. However, it
does not include a place used predominantly for residential
purposes.
Subsection (2) has the effect, in combination with subsection
(1), that the various provisions of the Act that authorise entry of
an authorised officer to relevant places to exercise powers, may
extend to premises where temporary or casual sleeping or other
accommodation is provided there for drivers of heavy vehicles.
Division 2 Entry of relevant places for
monitoring purposes
Section 495 enables an authorised officer to enter a relevant
place (as defined in section 494) for monitoring purposes.
That term is defined in section 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
section 503, which outlines what an officer must tell a person
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when seeking consent. Subsection (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. Subsection (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 authorised officer who enters a place under the belief that it
is attended, must leave immediately upon determining that it is
unattended
An officer may not use force to gain entry, but may open
unlocked doors, panels and things at a place to gain entry.
Section 496 states that, having entered a relevant place under
this Division, an authorised officer may, for monitoring
purposes (as defined in section 5), do the things set out in this
section. These include power to inspect the place, a vehicle at
the place or a relevant document (as defined in this section) at
the place, to copy or take an extract from such a document or
from a relevant device (as defined in this section) 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 section 520 (which makes
further provision for the inspection of heavy vehicles for
monitoring purposes).
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.
Subsection (1)(d) recognises that an officer may need to take
away something containing a relevant electronic document
(as defined in this section) 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,
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subsection (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
section.
Division 3 Entry of places for
investigation purposes
Section 497 deals with entry into places for investigation
purposes. The term `investigation purposes' is defined in
section 5 to mean investigating a contravention or suspected
contravention of the Law.
The places that may be entered are wider than those provided by
section 495, 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, section 510
(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 section 498 or section 499 (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).
Subsection (2) clarifies that the requisite belief that triggers the
investigation powers in this section can be formed during, after
or independently of the monitoring of premises under Division 2
(Entry of relevant places for monitoring purposes).
As with section 495(2), subsection (3) 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.
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Subsection (4) provides that, where entry is by warrant, force
may be used if reasonably necessary and the entry is subject to
the terms of the warrant. If there is no warrant, subsection (8)
makes it clear that force cannot be used.
Subsection (5) 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, used
predominantly for residential purposes.
Subsection (6) provides that an authorised officer who enters a
place under the belief that it is attended, must leave immediately
upon determining that it is unattended.
The officer may open unlocked doors, panels or things to gain
entry.
Section 498 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
section 5 and cover a variety of documents directly or indirectly
associated with the transport task .
Where those circumstances exist, subsection (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, subsection (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 used
predominantly for residential purposes.
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Subsection (4) provides that an authorised officer who enters a
place under the belief that it is attended, must leave immediately
upon determining that it is unattended.
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.
Section 499 sets out specified circumstances when an authorised
officer may enter a place without the occupier's consent or a
warrant.
Subsection (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;
(c) there is a connection of a kind described in subsection (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.
Subsection (3) restricts the power to enter a place under this
section in relation to an incident that involves the death, or
injury to, to an authorised officer who is a police officer.
Subsection (4) 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 used
predominantly for residential purposes.
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Subsection (5) provides that an authorised officer who enters a
place under the belief that it is attended, must leave immediately
upon determining that it is unattended.
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.
Section 500 sets out the powers that an authorised officer may
exercise after having entered a place for investigation powers
(as defined in section 5). It applies in respect of all the places
entered under subsection (1), except for a public place.
The powers are broader than the powers that may be exercised
under section 496 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.
Subsections (3) and (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.
Subsection (5) allows the use of photocopying equipment at the
place free of charge in order to copy a document at the place.
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Subsections (6) and (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.
Subsection (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.
Subsection (9) clarifies that the requisite belief that triggers the
investigation powers in this section can be formed during or
after or independently of the monitoring of premises under
Division 2 (Entry of relevant places for monitoring purposes).
Subsection (10) clarifies that this section does not include a
power to search a person.
Division 4 Procedure for entry by consent
Section 501 states that Division 4 applies where an authorised
officer seeks consent to enter a place under section 495(1)(a) or
section 497(1)(a), dealing respectively with entry for monitoring
purposes and entry for investigation purposes.
Section 502 allows for incidental entry, without consent or a
warrant, to enable the authorised officer to contact the occupier
for the purpose of seeking consent.
Section 503 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.
Section 504 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.
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Subsection (5) ensures that non-compliance by an authorised
officer with the requirements in subsection (2) does not
automatically invalidate the exercise of the powers (and by
extension compromise any compliance action undertaken as a
result of the exercise of the powers). To do otherwise may
allow a defendant to establish a defence based on the officer's
failure to accurately stipulate the power, when the power was
available and otherwise legitimately exercised. To prevent
injustice, subsections (5)(b) and (6) have been incorporated.
Subsection (5) applies where the acknowledgement states some
but not all the powers exercised or intended to be exercised to
achieve the purpose of the entry and allows the court to
determine the validity in any subsequent proceedings.
Subsection (6) 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.
Section 505 establishes the requirements for an authorised
officer intending to ask the occupier for consent to enter a
place under this Division (otherwise than under section 502).
Before asking for consent, an authorised officer other than a
police officer, or who is a police officer not in uniform, must
produce documentary evidence establishing the officer's
appointment under the Act or as a police officer.
Division 5 Entry under warrant
Section 506 provides for an authorised officer to apply to an
authorised warrant official (defined in section 5 to mean an
entity declared as such an official for the purposes of the Law)
for a warrant for a place.
Section 507 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. Subsection (2) sets out what must appear in
the warrant.
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Section 508 provides for applications for warrants and their
issue by electronic communication, rather than the procedures
under section 506 and section 507, where the matter is urgent
or there are other special circumstances, such as the officer's
remote location, that make it necessary and appropriate.
Section 509 preserves a warrant from invalidity by reason of
insubstantial defects in it or the procedures attending its
application or issue.
Section 510 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, subsection (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.
Part 9.3 Powers in relation to heavy
vehicles
Division 1 Preliminary
Section 511 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.
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Section 512 extends the definition of driver (defined in
section 5), for the purposes of Part 9.3, so as to include a person
in, or in the vicinity of, the vehicle whom an authorised officer
who is present at the scene reasonably believes is the vehicle's
driver.
Division 2 Stopping, not moving or not
interfering with heavy vehicle
etc.
Section 513 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 section 520 or to enter and search under
section 521.
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 $6000 applies.
Section 513 also sets out identification requirements for the
officer to follow when directing the vehicle to stop and once the
vehicle has stopped.
Section 514 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.
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 $6000 applies.
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Division 3 Moving heavy vehicle
Section 515 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 section 5) or not fit (as defined in
section 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 section 524.
Section 516 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 $6000 applies.
Subsection (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, subsection (4) does not limit what might be a
reasonable excuse for not complying with a direction.
Section 517 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
section 5), the environment or road infrastructure (defined in
section 5) or is obstructing or is likely to obstruct 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.
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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 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 $6000 applies.
Subsection (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, subsection (5) does not limit what might be a
reasonable excuse for not complying with a direction.
Section 518 provides that where an authorised officer
reasonably believes that a vehicle is unattended (as defined in
section 515) 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 section 5) or not fit (as defined in
section 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.
Section 519 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 section 5), the environment or road infrastructure
(defined in section 5) or is obstructing or is likely to obstruct
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 section 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
Section 520 empowers an authorised officer to enter and
inspect a heavy vehicle for monitoring purposes. That term is
defined in section 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 equipment or load, inspecting a relevant document
(as defined in this section) in the vehicle, copying or taking an
extract from such a document or from an electronic relevant
document (as defined in this section).
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
section.
Subsection (2)(f) recognises that an officer may need to take an
extract of relevant information (as defined in this section) from a
device or other thing in the vehicle in order to produce an image
or writing from that document. In that event, subsection (5)
provides that the image or writing must be produced and the
thing returned to the vehicle as soon as practicable.
Section 521 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 section 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 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. However, the section does not authorise an
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authorised officer to exercise a power in relation to an incident
that involves the death of, or injury to, a person unless the
authorised officer is a police officer.
The powers that the officer may exercise are broader than the
powers specified under section 520 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 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.
Subsection (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,
subsections (4) and (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.
Subsection (6) clarifies that the section does not authorise an
authorised officer to exercise a power under this section in
relation to an incident that involves the death of, or injury to, a
person unless the authorised officer is a police officer.
Subsection (7) clarifies that the power to search under this
section does not include a power to search a person.
Section 522 establishes the power for an authorised officer to
order the presentation of a heavy vehicle for inspection.
The exercise of the power is limited to circumstances where the
officer believes the vehicle has within the previous 30 days been
defective, is of a kind used by a driver other than in compliance
with the Act, or does not comply with the law. The power is
exercisable by the service of a statutory notice on the person in
charge of the heavy vehicle, its registered operator, or its owner.
The section makes provision for a person to request a change in
the place or time of inspection. Failure by the recipient to
produce or allow a heavy vehicle to be inspected as required
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under this section constitutes an offence and is a ground for
suspending the registration of the vehicle.
Division 5 Other powers in relation to all
heavy vehicles
Section 523 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 section 577
to start or stop the engine, or if there is no responsible person for
the vehicle (defined in section 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.
Section 524 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
· the officer reasonably believes that the driver is not qualified
(as defined in section 5), fit (as defined in section 5) or
authorised by the operator to drive the vehicle so as to
comply with the direction;
· the authorised officer reasonably believes it would be unsafe
to inspect or search a heavy vehicle or any part of it or any
part of its equipment or load while the driver occupies the
driver's seat or is in the vehicle or another person
accompanying the driver is in the vehicle.
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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 $6000 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
section 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
Section 525 defines certain terms used in Division 6.
Section 526 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 section 5), the officer may issue a vehicle defect
notice. The term `defective vehicle' is defined in section 525
to mean a vehicle that contravenes the heavy vehicle standards
(defined in section 59) 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.
Subsection (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, subsection (4) requires
the driver, as soon as practicable, to pass it on to the operator.
A maximum penalty of $3000 applies.
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Subsection (5) provides that the operator of a heavy vehicle,
that is the subject of a defect notice, may request permission for
the vehicle to be used on a road during a period stated in the
permission. The request may only be granted where the
conditions in subsection (5)(a) to (d) have been met.
The permission may be extended under subsection (6) on the
same grounds. Subsection (7) stipulates the form of the
permission or its extension and empowers the officer to impose
reasonable conditions on it.
Section 527 sets out the contents of a vehicle defect notice,
including a statement that the vehicle is a defective heavy
vehicle and the details of 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.
Subsection (2) empowers an authorised officer to impose
conditions the officer considers appropriate for the use of the
vehicle on a road on the use of the defective heavy vehicle.
The breadth of the conditions that may be imposed is a
consequence of the diversity of the particular defect/s that may
be involved.
Section 528 states that if a major defect notice is issued, the
authorised officer must attach a vehicle defect label to the
vehicle. If a minor defect notice is issued, the authorised officer
may attach a defective vehicle label to the vehicle. Attaching a
defective vehicle label is mandatory for major defect notices but
for minor defect notices it is at the discretion of the authorised
officer, reflecting existing jurisdictional practice for light and
heavy vehicles
Subsection (3) creates an offence for a person to remove, deface
or otherwise interfere with such a label. A maximum penalty of
$3000 applies.
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The offence does not apply where the Regulator arranges for the
label to be removed following clearance of the notice under
section 530(2) or following withdrawal of the notice under
subsection 531(4).
Section 529 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 $3000 applies.
The inclusion of the phrase `permit to be used' in section 529
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.
Section 530 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.
Subsection (1) provides that a vehicle defect notice issued in this
jurisdiction by an authorised officer who is a police officer may
be amended or withdrawn by any authorised officer who is:
· a police officer of this jurisdiction;
· a police officer of another jurisdiction if the Application Act
of this jurisdiction permits this to be done; or
· a class of authorised officers approved by the Regulator for
the purposes of this subsection.
Subsection (2) enables the Regulator to approve a class of
authorised officers who may amend or withdraw a vehicle defect
notice issued by any other authorised officer who is not a police
officer. This is intended to assist in the delivery of services in
regional areas, in particular.
Subsections (1) and (2) empower the Regulator and the
participating jurisdictions to transparently address potential
inconsistencies in the training and capabilities of police officers
and other authorised officers in this area.
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If a major defect notice is cleared, the Regulator must arrange
for the defective vehicle label to be removed.
Section 531 deals with the amendment or withdrawal of a
vehicle defect notice. If a major defect notice is withdrawn, the
Regulator must arrange for the defective vehicle label to be
removed.
Division 7 Further powers in relation to
heavy vehicles concerning
mass, dimension or loading
requirements
Section 532 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.
Section 533 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'.
Subsection (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.
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Subsection (4) provides that an authorised officer may authorise
the driver or operator to continue a journey if there has been a
minor risk breach of a mass, dimension or loading requirement
relating to the vehicle. The section constrains the authorisation
to circumstances where the officer has not issued a direction
under subsection (2) and reasonably believes the driver or
operator is not, or is no longer, subject to a direction for the
rectification of the breach
Subsection (5) requires a direction under subsection (2) to be in
writing (and given with or without conditions) but subsection (6)
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 $10000 applies.
Section 534 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.
Subsection (3) requires the direction to be in writing (and given
with or without conditions) but subsection (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 $10000 applies.
An important distinction between section 533 and section 534 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.
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Section 535 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 section 5, or an appreciable risk to the
environment, road infrastructure or public amenity, as defined
in section 5) to move it or cause it to be moved to the nearest
stated safe place (as defined in this section) and not to move it
thereafter until the stated breaches have been rectified.
Subsection (3) requires the direction to be in writing (and given
with or without conditions) but subsection (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 $10000 applies.
Section 536 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.
Division 8 Further powers in relation to
fatigue-regulated heavy
vehicles
Section 537 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
section 7. The powers in Division 8 assist in the enforcement of
the matters regulated under Chapter 6.
Section 538 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.
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Subsection (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.
Subsection (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 subsection (2) and subsection (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 section 222.
Subsection (4) requires an authorised officer, who has issued a
requirement under subsection (2) or (3) for a contravention of a
maximum work requirement, to record the details of the
requirement in the driver's work diary
Section 539 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.
Subsection (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 compensate for the
shortfall. The term `night rest break' is defined in section 5.
Subsection (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.
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The distinction between subsection (2) and subsection (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.
Subsection (4) requires an authorised officer, who has issued a
requirement under subsection (2) or (3) for a contravention of a
minimum rest requirement, to record the details of the
requirement in the driver's work diary.
Section 540 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 subsection
(3) this must be a reasonable period having regard to the
matters prescribed in the national regulations.
Subsection (4) imposes a requirement on an authorised officer
who has issued a requirement under subsection (2)(a) to record
the details of the requirement in the driver's work diary.
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 subsection (5) authorise somebody else to move the
vehicle to a suitable rest place for fatigue-regulated heavy
vehicles (as defined in section 5) if that person is qualified and
fit to do so.
Subsection (6) 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 section.
Section 541 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.
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The officer may exercise this power if the officer has asked the
driver to produce his or her work diary under section 568 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.
Section 542 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 $10000
applies.
Subsection (2) empowers an authorised officer who has given a
notice under section 538, 539 or 541 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
section 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
Section 543 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.
Section 544 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.
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In the case of a heavy vehicle entered under section 521, dealing
with the power to enter and search a heavy vehicle for
investigation purposes (defined in section 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.
Division 2 Seizure and embargo notices
Subdivision 1 Power to seize
Section 545 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.
Section 546 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.
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Section 547 authorises seizure from a heavy vehicle entered
under section 521 of a thing that the authorised officer
reasonably believes is evidence of an offence against the Law.
Section 521 deals with the power to enter and search a heavy
vehicle for investigation purposes (defined in section 5).
Section 548 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 section 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 or copy it to another
storage device and it is reasonably believed that the device and
equipment can be seized without damage.
Section 549 deals with the situation where a thing or sample
has been taken for examination under subsection 500(1)(c).
Section 500 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 section 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
sections 545 to 548 at the time it was taken had the officer
formed the reasonable belief at that earlier time.
Section 550 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.
Section 551 empowers an authorised officer to seize a number
plate for a heavy vehicle where the officer reasonably believes
any of the matters outlined in subsections (2) and (3).
Subsection (4) empowers the officer to retain the number plates
for the period necessary to facilitate the investigation of offences
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against the Law or another applicable law. Subsection (5)
creates a head of power for determining an appropriate authority
to which the number plates must be returned, and the making of
guidelines to similar effect.
Section 552 restricts the seizure of a heavy vehicle, a thing, or a
thing of a class, prescribed by the national regulations unless the
Application Act of the participating jurisdiction in which the
vehicle or thing is located provides that the heavy vehicle or
thing can be impounded or seized.
Concerns as to the potential for this power to be used to unjustly
deprive an individual of their property is mitigated by Division 3
- Forfeiture and transfer.
Subdivision 2 Powers to support seizure
Section 553 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 $10000 applies.
Subdivision 3 Safeguards for seized things or
samples
Section 554 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 section 549, the officer
reasonably believes there is nobody apparently in possession of
the thing or the thing has been abandoned. Section 549 deals
with the subsequent seizure of a thing that was taken for
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examination by an authorised officer who entered a place (other
than a public place) for investigation purposes (as defined in
section 5).
Section 555 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.
Section 556 provides for the return of a thing or sample that has
been seized.
An authorised officer must be satisfied that the thing or sample
is not or no longer required as evidence of an offence against
this Law and that the continued retention of the thing or sample
is not necessary to prevent the thing or sample being used to
continue, or repeat, an offence against this Law.
An authorised officer must also be satisfied that the thing or
sample is not subject to a dispute as to ownership, which would
be appropriately resolved by making an application to the
relevant tribunal or court for the return of the thing or sample.
The section provides for the seized thing or sample to be
returned to the person from whom it was seized, or the owner if
that person is not entitled to possess it.
Subsections (3) and (4) provide for application to the relevant
tribunal or court for the return of a seized thing or sample, as
well as the circumstances in which the relevant tribunal or court
may make an order for return. Subsection (5) provides a
regulation-making power for procedures to be followed -
including notification of the Regulator - when an application is
made.
This section does not prevent the return of a thing or sample to
its owner if the Regulator considers there is no reason for its
continued retention.
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Subdivision 4 Embargo notices
Section 557 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 section sets out procedures relating to
the issue of an embargo notice and its contents.
Section 558 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 $10000 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.
Subsection (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
$10000 applies.
Subsection (4) provides that, despite any other Act or law, a
sale, lease, transfer or other dealing with an embargoed thing is
void.
Section 559 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 $10000 applies.
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If access to an embargoed thing is restricted, it is an offence
against subsection (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
$10000 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 $10000 applies.
Section 560 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
Section 561 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.
However, subsection (4) provides that a thing or sample seized
by a police officer cannot be forfeited to the Regulator and must
be dealt with under the national regulations, except as provided
by applicable state or territory legislation.
Section 562 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 section 5 as a notice stating
the decision, the reasons for the decision and the review and
appeal information (also defined in section 5) for the decision.
Section 563 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.
Section 564 states that where a thing or sample becomes the
property of the Regulator under section 563, 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.
The Regulator must give 28 days' notice of its intention to deal
with a thing or sample that has become the property of the
Regulator to the person from whom the thing or sample was
seized; the former owner of the thing or sample; and each person
having a registered interest in the thing or sample
If the Regulator sells the thing or sample, 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.
Section 565 provides for third party protection in the event
that a thing or sample becomes the property of the Regulator.
The section provides for applications for an order in relation to
the thing or sample to be made to a relevant tribunal or court by
the owner or a person with a registered interested in the thing or
sample. The section further provides that such applications may
be made in relation to the proceeds of a thing or sample already
sold or otherwise disposed of.
Section 566 provides a regulation-making power for the
circumstances in which the Regulator must apply to the
Registrar of Personal Property Securities to register, amend or
cancel an instrument in relation to a sample or thing. The section
further provides a regulation-making power for the priority in
which the proceeds of disposal of anything under this Division
are to be applied.
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Division 4 Information-gathering powers
Section 567 deals with the circumstances in which an authorised
officer may require a person to state his or her name, date of
birth 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 committed, or there is
information to reasonably suspect that the person has
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 section 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, date of birth 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.
Failure to comply with either requirement without a reasonable
excuse is an offence. A maximum penalty of $3000 applies.
Subsection (7) provides that, 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.
Subsection (8) restricts the circumstances in which an authorised
officer may impose a requirement under this section so that it
does not extend to an incident that involves the death of, or
injury to, a person unless the authorised officer is a police
officer.
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Section 568 empowers an authorised officer to require, for
compliance purposes (as defined in section 5), the driver of a
heavy vehicle to produce 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 section 513 (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. The maximum penalty is the same
maximum penalty for the offence of failing to keep the
document, device or thing in the driver's possession.
Subsection (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
$3000 applies.
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.
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Section 569 states that an authorised officer may require a
responsible person for a heavy vehicle (as defined in section 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 section 5)
or other specified documentation in the person's possession or
control that relates to the vehicle or the transport task or the
person's business practices. The person must comply with the
requirement unless there is a reasonable excuse. A maximum
penalty of $6000 applies.
Subsection (4) clarifies that a claim of privilege against self-
incrimination is not a reasonable excuse. Note, however, that
section 588 limits the use of particular documents or information
in civil or criminal proceedings. The effect of that section is
that, if a responsible person who is an individual produces for
inspection a document under section 569 (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 $3000 applies.
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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.
Section 570 empowers an authorised officer to, for compliance
purposes (as defined in section 5), require a responsible person
for a heavy vehicle (as defined in section 5) to provide
information about the vehicle, its equipment or load and
personal details (as defined in this section) known to the person
about any other responsible person for the vehicle.
It is an offence not to comply without a requirement without
reasonable excuse. A maximum penalty of $6000 applies.
Subsection (4) 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.
Subsection (5) clarifies that it is not a reasonable excuse to claim
the privilege against self-incrimination. Note, however, that
section 588 limits the use of particular documents or information
in civil or criminal proceedings. The effect of that section is
that, if a responsible person who is an individual provides
information under section 570, 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
Section 571 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).
Section 572 provides that where an authorised officer
reasonably believes that a person has contravened or is
contravening the Law in circumstances that make it likely that
the contravention will continue or be repeated, the officer may
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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.
Section 573 states that the recipient of an improvement notice
must comply unless there is a reasonable excuse. A maximum
penalty of $10000 applies.
Subsection (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.
Subsection (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
section 575.
Section 574 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.
Section 575 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.
Section 576 states that an approved authorised officer may issue
a clearance certificate stating that the requirements of an
improvement notice have been satisfied. Subsection (3) defines
the term `approved authorised officer'. In the case of an
improvement notice issued by an authorised officer who is a
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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 Power to require reasonable
help
Section 577 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.
It is an offence not to comply with the requirement without
reasonable excuse. A maximum penalty of $10000 applies.
Subsection (5) 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, subsection (6) 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 section
588 limits the use of particular documents or information in civil
or criminal proceedings. The effect of that section is that, if an
individual gives an officer a document or information in
response to a requirement under section 577, 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.
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Part 9.5 Provisions about exercise
of powers
Division 1 Damage in exercising powers
Section 578 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.
Section 579 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. The section only applies where there has been an
improper or unreasonable exercise of a power or the use of
unauthorised force.
Section 580 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 section 581.
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.
The provision also does not apply in relation to any damage
resulting from the exercise of powers under the Law where the
damage was not caused by an improper or unreasonable exercise
of a power or the use of unauthorised force.
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Division 2 Compensation
Section 581 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, subsection (2) specifies that this does not apply to
costs, damage or loss incurred because of a lawful seizure or
forfeiture or because of an exercise, or purported exercise, of a
power by or for an authorised officer.
The provision details procedures for claiming compensation and
the matters a court must consider in determining whether to
make a compensation order.
Subsection (6) authorises the making of national 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
Section 582 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 section 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.
Part 9.6 Miscellaneous provisions
Division 1 Powers of regulator
Section 583 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. Subsection (1)
clarifies that the powers conferred on an authorised officer and
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exercisable by the Regulator are functions of the Regulator and
therefore delegable by the Regulator to its own staff.
Division 2 Other offences relating to
authorised officers
Section 584 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 section 518 (dealing with moving an unattended heavy
vehicle on a road to enable the exercise of another power),
section 519 (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 section 523 (dealing with entering a vehicle and starting or
stopping its engine to enable the exercise of another power).
A maximum penalty of $10000 applies.
The term `obstruct' is defined in subsection (2) so as to include
assault, hindrance, resistance and attempts or threats to obstruct.
Section 585 states that a person must not impersonate an
authorised officer. A maximum penalty of $10000 applies.
Division 3 Other provisions
Section 586 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.
Section 587 clarifies that a person is not excused from
compliance with a requirement imposed by an authorised officer
under this Chapter on the ground that compliance might
incriminate the person or make the person liable to a penalty.
This provision is necessary to nullify an argument by a person
who refused to comply with a requirement issued under the Act
that the refusal was justified by protections against self
incrimination provided under the general law.
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Section 588 applies to a document or information required to be
produced or provided under section 569(1)(c) to (f), 570 or 577
(respectively relating to the power to require production of
specified documents, the power to require specified information
and the power to require reasonable help).
Subsection (2) provides that evidence of or derived from
information provided 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
information or anything in the information.
Subsection (3) provides that a document produced is not
inadmissible in evidence in court proceedings against the
individual on the ground that the document might incriminate
the individual.
This abrogation of the privilege against self-incrimination is
necessary for compliance and enforcement purposes. In the
absence of a provision compelling the production of documents
and further providing for the use of those documents as
evidence, prosecuting breaches of the Act - particularly offences
detected during the course of on-road enforcement - would
require far greater investigative resources. Public safety is liable
to be compromised if prosecution of heavy vehicle offences is
more difficult under the Law than existing jurisdictional laws.
Section 589 provides that any evidence obtained (including any
evidence seized) up to the time the consent is withdrawn after an
authorised officer enters a place with the occupier's consent, is
not invalid or inadmissible in proceedings for a contravention of
this Law merely because the consent was withdrawn.
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Chapter 10 Sanctions and
provisions about
liability for offences
Part 10.1 Formal warnings
Section 590 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 cannot 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 the possibility of proceedings
for the contravention for which the warning was given.
Part 10.2 Infringement notices
Section 591 establishes a general power for an authorised officer
to issue infringement notices for prescribed offences against this
Law. The section further provides that procedures to be
followed in connection with infringement notices issued for the
purposes of this Law as applied in this jurisdiction are to be the
procedures prescribed by or under the Infringement Notice
Offences Law of this jurisdiction. Subsection (3) allows for the
prescription of the offences in the Law for which infringement
notices may be issued through the inclusion of the definition
prescribed offences.
Section 592 authorises the Regulator to keep a record of
infringement notices issued and paid. The recorded information
may be used for research purposes, for proceedings related to
the offence or if the information is relevant in deciding whether
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the individual is a systematic or persistent offender for the
purpose of issuing a supervisory intervention order or
prohibition order. Information in a record of an infringement
notice issued for the purposes of the Law and kept by the
Regulator may also be used in a proceeding for a relevant
extended liability offence. Relevant extended liability offences
are expressly identified through the Law by provisions
authorising the use of details stated in the infringement notice
as evidence in the proceedings.
Supervisory intervention orders and prohibition orders are
respectively dealt with by Divisions 5 and 6 of Part 10.3 of this
Chapter.
Part 10.3 Court sanctions
Division 1 General provisions
Section 593 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.
Section 594 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, unfair commercial advantage, traffic
congestion, diminished public amenity and public safety.
Section 595 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.
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Division 2 Provisions about imposing
fines
Section 596 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.
Division 3 Commercial benefits penalty
orders
Section 597 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.
Division 4 Cancelling or suspending
registration
Section 598 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.
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Subsection (5) requires a court to notify the Regulator when a
decision has been made to suspend or cancel the registration of a
vehicle.
Division 5 Supervisory intervention
orders
Section 599 (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.
Section 600 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.
Section 601 provides that the court may make a supervisory
intervention order only if satisfied the order is capable of
improving the convicted person's ability or willingness to
comply with the Law, having regard to the person's record of
offences and certain other matters.
Section 602 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.
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Section 603 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.
Section 604 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 $10000
applies.
Section 605 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
Section 606 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.
Section 607 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. Subsection (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.
Section 608 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 and certain
other matters, a supervisory intervention order would be
inappropriate
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Section 609 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.
Section 610 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
Section 611 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.
Section 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. Subsection (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.
Subsection (4) provides that the order may be made at the point
of conviction or later.
Section 612 states that a wide discretion is conferred on the
court in assessing compensation. Subsection (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
subsection (3) provides that it is to be presumed, unless
otherwise proved, that the person who signs the certificate had
authority to do so.
Section 613 sets out further procedures attending the use of and
challenges to, certificate evidence for which section 612(2)(c)
provides.
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Subsection (3) requires a defendant who intends to challenge the
accuracy of any measurement, analysis or reading in the
certificate submitted by a road authority to assist a court to make
a compensation order to state the basis for the claimed
inaccuracy and state the measurement, analysis or reading that
the defendant considers to be correct.
Section 614 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
· 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.
Section 615 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.
Section 616 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.
Section 617 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
Section 618 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.
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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
Section 619 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, while other offences provide
a reasonable steps defence as outlined in section 618 (above).
This provision states that Division 2 applies in both such
situations.
Section 620 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.
Section 621 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 section 5) which is
known or ought reasonably to have been known, to be
inaccurate.
Section 622 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 section sets out certain matters which the court
may have regard for.
Section 623 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 section explains how the reasonable
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steps defence may apply to a party within the chain of
responsibility if charged.
Section 624 authorises the making of regulations about matters
dealt with in section 623 (above).
Section 625 provides that compliance with a registered industry
code of practice may sometimes be relevant to a reasonable
steps defence. This section sets out procedures to be followed in
such a case. Section 706 deals with the registration of industry
codes of practice.
Division 3 Other defences
Section 626 defines the term deficiency in relation to a heavy
vehicle for purposes of Division 3. The term includes for
example a vehicle being 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.
Section 627 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.
Section 628 provides a defence to a driver charged with an
offence involving a deficiency of the kind described in section
626. 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.
Section 629 provides a defence for a person charged under the
Law where the person can establish that the conduct constituting
the offence was done in compliance with a direction given by
the Regulator, an authorised officer, or a person authorised
under a law of a state or territory.
Section 630 provides a defence for a person charged under the
Law where the person can establish that the conduct constituting
the offence occurred in response to circumstances of sudden or
extraordinary emergency.
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Section 631 provides a defence for a person charged under the
Law where the person can establish that the conduct constituting
the offence is authorised or excused by or under a law.
Division 4 Other provisions about liability
Section 632 states that in determining whether a person ought
reasonably to have known something for the purposes of the
Law, a court is required, by section 632, to consider relevant
factors including the person's abilities, experience, expertise and
knowledge.
Section 633 sets out that where the Law 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.
Section 634 protects a person from being punished more than
once for the same contravention of this Law or for the same
offence.
Section 635 states that in some provisions of the Law, 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, section 635 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.
Section 636 provides that where a corporation commits an
offence (whether or not it has been prosecuted or convicted of
the offence), an executive officer may be liable for the same
offence. This applies to a range of offences committed by a
corporation where it can be established the executive officer
knowingly authorised or permitted the conduct constituting the
offence. These offences are set out in column 2 of Schedule 4 to
the Law.
Subsection (2) establishes a second, alternative, basis for
derivative liability where an offence is committed and the
executive officer knew or ought reasonably to have known of
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the conduct constituting the offence or that there was a
substantial risk that the offence would be committed. The range
of offences for which derivative liability might arise is set out in
column 3 of Schedule 4 to the Law.
The executive officer is only liable for the penalty applying to
an individual, and not the 5 times greater penalty applying to a
corporation under section 596. Subsection (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, subsection (7) protects unpaid
executives from liability under this provision.
Section 5 defines executive officer as someone who is concerned
in or takes part in the corporation's management.
The provision is intended to bring the obligations of executive
officers as far as practicable into conformity with the COAG-
agreed principles for assessment of directors' liability
provisions. It is intended this section forms the subject of a more
comprehensive review in future to ensure the adequacy of the
approach taken.
Not all offences created under the Law satisfy the requirements
of the COAG principles. Accordingly the range of offences set
out in Schedule 4 for which derivative liability may arise does
not encompass all offences created under the Law. An
explanation of the basis on which offences were selected for
incorporation is set out at Appendix 2.
Section 637 subjects each of the individual partners to the same
penalty as an individual where their partnership would otherwise
be liable similarly to the approach adopted for section 636 and
for the same reasons. Accordingly, derivative liability will
attach to a partner in an unincorporated partnership only where
the partner knew knowingly authorised or permitted the conduct
constituting the offence, or ought reasonably to have known of
the conduct constituting the offence or that there was a
substantial risk that the offence would be committed.
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However, whereas executive officers for a corporation are liable
only for the offences stipulated in Schedule 4, partners are liable
on behalf of the partnership for all offences that would have
been otherwise committed by the partnership (which itself has
no legal personality and cannot be the subject of enforcement
action) to avoid the possibility no person would be liable for an
offence on behalf of the partnership.
Subsection (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.
Section 638 makes provision for the liability of those involved
in the management of unincorporated bodies similarly to the
approach adopted for sections 636 and 637 and for the same
reasons. As for partners, the management members for an
unincorporated body remain liable for all offences that would
have been otherwise committed by the unincorporated body.
Section 639 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
Section 640 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
Section 641 outlines the timeframes and other requirements that
apply when a dissatisfied person applies for an internal review.
The section 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 section further ensures that if a
person is not given an information notice they may ask the
Regulator to provide the statement of reasons.
This section also defines `dissatisfied person' to ensure there is
clear identification of persons entitled to seek a review of a
reviewable decision.
Section 642 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 section
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.
Section 643 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.
Section 644 explains who may decide an internal review of a
reviewable decision and how the review is to be conducted.
Section 645 requires the reviewer to, within the prescribed
period as defined in the section, make a review decision to either
confirm or amend the reviewable decision or to substitute
another decision for the reviewable decision. The section
outlines the effect of each type of review decision. The section
further requires a road manager that is a reviewer to give the
Regulator notice of the review decision and reasons.
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Section 646 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 include the
reasons for the decision and whether or not an appeal is
available and, if so, how to appeal. This section 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 section 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
Section 647 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 section also provides that the filing of an appeal
does not affect the review decision unless the review decision is
stayed.
Section 648 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 section outlines
some timeframes and processes that apply to the application for
a stay. The section 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.
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Section 649 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 section 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.
Section 650 indicates the effect where the relevant appeal body
substitutes a decision for a review decision on appeal.
Chapter 12 Administration
Part 12.1 Responsible Ministers
Section 651 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 section 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.
Section 652 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. Any fee charged by the Regulator when dealing with a
request by a responsible Minister is not subject to section 740(2)
to (4).
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Section 653 provides the responsible Ministers may approve
guidelines about various matters including granting exemptions,
authorisations, approvals and accreditations under this Law.
The section 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.
Section 654 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 section 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.
Section 655 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 section 662 which indicates the responsible
Ministers' recommendation for appointment of Board members
is to be unanimous.
This section also clarifies that changes to the membership of
the responsible Ministers do not invalidate prior decisions and
that the Commonwealth responsible Minister (as defined in
section 5) is not compelled by the law to participate in the
exercise of functions by the responsible Ministers.
The provision also clarifies that if the Commonwealth
responsible Minister does decide not to participate it will not
stop the remaining members of the responsible Ministers
performing the functions, including making unanimous
decisions.
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Part 12.2 National Heavy Vehicle
Regulator
Division 1 Establishment, functions and
powers
Section 656 establishes the National Heavy Vehicle Regulator.
The section 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
section 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 prescribed by a national regulation,
are still participating jurisdictions with the laws being
administered and enforced by the same national Regulator.
Section 657 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 section also states that the Regulator represents the State.
Section 658 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 section 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:
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· 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.
Section 659 provides that the main function of the Regulator is
to achieve the object of this law as provided in section 3.
The section further describes a range of functions in more detail,
but this list of functions is not to be considered limiting.
Section 660 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.
Section 661 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.
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`Appropriately qualified' is defined in section 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 section 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 functions
Section 662 establishes the governing board for the Regulator.
The section 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
section 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 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.
Section 663 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 section 5 to mean the responsible Minister for
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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, at least one member will
have experience in managing risks to public safety arising from
the use of vehicles on roads and at least one other member
having expertise in financial management skills, business skills,
administrative expertise or another skill considered relevant by
the responsible Ministers. This section aims to ensure the
responsible Ministers have sufficient guidance and the flexibility
to appoint the Board it considers appropriate to govern the
Regulator in the exercise of its functions.
The section 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.
Section 664 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
Section 665 provides for the term of office for Board members
being up to three years as determined in their instrument of
appointment. The section allows for members to be reappointed
if otherwise qualified.
Section 666 provides for the responsible Ministers to determine
the remuneration for Board members.
Section 667 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
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incapacity, incompetence of misbehaviour. Under section 655
the responsible Ministers will decide their own procedures
including voting requirements for decisions to remove a Board
member.
Section 668 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.
Section 669 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.
Section 670 requires Board members to exercise their functions
impartially and in the public interest.
Section 671 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 section 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
Section 672 provides for the general procedure for calling and
conduct of meetings of the Board to be determined by the
Board.
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Section 673 provides a quorum for a meeting of the Board is the
majority of its members.
Section 674 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 must disclose any direct
personal interest in matters before the Board and must not be
present during consideration of these matters.
Section 675 describes who will be the presiding member at a
Board meeting and, if the voting is otherwise tied, this section
provides for the presiding member to have a second vote to
decide the matter.
Section 676 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.
Section 677 provides that the Chairperson or presiding member
is to ensure minutes are taken of meetings.
Section 678 provides for the Chairperson to call the first
meeting. Subsequent calling of meetings will be governed by
the procedures developed under section 672.
Section 679 provides that a decision of the Board is not
invalidated by a defect in a Board member's appointment.
Subdivision 4 Committees
Section 680 allows the Board to establish committees to assist in
the exercise of the Board's functions.
Division 3 Chief executive officer
Section 681 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 section 684.
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Section 682 provides the chief executive officer is responsible
for the day to day management of the Regulator and any other
functions conferred by the Board.
Section 683 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.
Division 4 Staff
Section 684 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.
Section 685 allows staff from participating jurisdictions, the
Commonwealth or local governments to be seconded to the
Regulator.
Section 686 allows the Regulator to engage contractors and
consultants.
Part 12.3 Miscellaneous
Division 1 Finance
Section 687 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.
Section 688 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
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· 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.
Subsection (2) clarifies that, with regards to registration charges,
the road user component of the charge is not automatically
payable into the Regulator Fund but the regulatory component
of registration charges is automatically payable into the
Regulator Fund. The regulatory component will be defined by a
national regulation.
Section 689 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 section 655 the responsible Ministers will decide their
own procedures including voting requirements for approval of
payments out of the Fund under 689(c).
Section 690 allows the Regulator to make secure, low risk
investments of moneys in the Fund.
Section 691 requires the Regulator to:
· carry out its operations efficiently, effectively and
economically
· keep proper books and records for all money it receives
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· 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
Accounting Standards
· facilitate audits of financial statements including any
additional audits required by the responsible Ministers.
Section 692 clarifies that the Regulator can establish accounts
for moneys that are payable to other entities, such as money
collected by the Regulator on behalf of jurisdictions.
Division 2 Reporting and planning
arrangements
Section 693 provides for the Regulator to prepare an annual
report within 3 months of the end of each financial year.
The section outlines the matters to be included in the annual
report and these may include matters prescribed under national
regulations. The performance-reporting requirements for the
Regulator are aligned with the standards and indicators outlined
in the National Performance Standards. The section 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.
Section 694 provides that the responsible Ministers may direct
the Regulator to provide other reports relating to the exercise of
the Regulator's functions.
Section 695 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 corporate plan is also to include
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National Performance Measures, including the standards and
indicators for the term of the plan. The section 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
Section 696 provides for the application of the following
Queensland Acts: Information Privacy Act 2009, Public Records
Act 2002 and Right to Information Act 2009 to guide the
procedures and standards appropriate for privacy, recordkeeping
and access to information for the Regulator and the Board.
National regulations will be used to modify the Queensland Acts
to ensure they can operate effectively for this scheme in all
participating jurisdictions. In particular, the national regulations
will be used to make necessary adjustments to cater for
administrative arrangements.
The section ensures that jurisdictional agencies, including the
Department of Transport and Main Roads in Queensland, road
managers, and police services continue to be required to apply
their local oversight laws even where they are performing
services for the Regulator under a service agreement or
delegation. The modified Queensland oversight laws will apply
to the activities of the Regulator regardless of which jurisdiction
it operates in. This section makes it clear a national regulation
can be used to modify the operation of subsection (5).
Division 4 Provisions relating to persons
exercising functions under
Law
Section 697 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 section also provides for an offence for
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a person improperly using their position or information that
comes to their knowledge through the exercise of their functions
under this Law.
Section 698 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 section 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 section 347 or a statement by an approved
auditor under section 459 may be activities identified in this law
but it is not a function under this law.
The section clarifies that not only natural persons who are
performing functions for the Regulator (including the Regulator
Board) are protected from personal liability. An individual who
constitutes a body corporate (such as the Roads Corporation
under the Transport Integration Act 2010) is also protected
and other persons or classes of persons can be included by
national regulations.
Chapter 13 General
Part 13.1 General offences
Division 1 Offence about discrimination
or victimisation
Section 699 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 section 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
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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
section. 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 gave information
to a public authority or law enforcement agency or made a
complaint.
Section 700 establishes that if an employer is convicted of an
offence against section 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
Section 701 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).
Section 702 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).
Section 703 creates an offence for a responsible person for a
heavy vehicle (defined in section 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
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the driver of a heavy vehicle about the schedule that they know
or reasonably ought to know is false or misleading.
Subsection (2) prohibits the reckless provision of false or
misleading information by one responsible person for a heavy
vehicle to another. This complements and provides a lower
maximum penalty ($8000) than the knowledge based offence for
the giving of false or misleading information in subsection (1).
Section 704 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 section 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.
Part 13.2 Industry codes of practice
Section 705 enables the Regulator to make guidelines for
industry codes of practice that may be registered under the Law.
Section 706 provides that the Regulator may register an industry
code of practice prepared in accordance with the guidelines.
Subsection (2) requires the Regulator to impose a series of
statutory conditions on an industry code of practice at
registration. These conditions require regular review, the
designation of persons to maintain the code, and an obligation
to update the code following changes to the guidelines for the
preparation and content of the industry code of practice that is
in force. The Regulator may impose further conditions on the
registration.
Subsection (7) clarifies that the Regulator incurs no liability for
loss or damage suffered by a person because the person relied on
a registered industry code of practice.
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Part 13.3 Legal proceedings
Division 1 Proceedings
Section 707 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.
Division 2 Evidence
Section 708 provides that it is not necessary to prove the
appointment of an official or the police commissioner.
Section 709 provides that a signature purported to be the
signature of an official or the police commissioner is evidence
of the signature.
Section 710 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 section effectively shifts the evidential burden to the
accused person and is a potential breach of fundamental
legislative principles.
Section 711 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.
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This section effectively shifts the evidential burden to the
accused person and is a potential breach of fundamental
legislative principles.
Section 712 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 section effectively shifts the evidential burden to the
accused person and is a potential breach of fundamental
legislative principles.
Section 713 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 section effectively shifts the evidential burden to the
accused person and is a potential breach of fundamental
legislative principles.
Section 714 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.
This section effectively shifts the evidential burden to the
accused person and is a potential breach of fundamental
legislative principles.
Section 715 requires that a defendant who intends to challenge
evidence provided by certificate under section 711, 712, 713
or 714(1) must give notice of their intention to challenge and
describes the way in which such notice is to be given.
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Section 716 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.
Section 717 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.
Section 718 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.
Section 719 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, the destination of a load, the location of
a person, the time and date at which a range of events took
place, and the location of anything mentioned in the
documentation.
Section 720 provides that evidence obtained in relation to a
vehicle is not affected merely because the vehicle is not a heavy
vehicle.
Section 721 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.
Section 722 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 section 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 section must give notice of their intention to
challenge and describes the way in which such notice is to be
given.
This section effectively shifts the evidential burden to the
accused person and is a potential breach of fundamental
legislative principles.
Section 723 establishes a series of evidential presumptions to
facilitate the admissibility of IAP maps in legal proceedings.
Subsection (1) establishes a conclusive presumption that a
particular certified map was or was not the intelligent access
map as issued by TCA on a stated date or during a stated period.
Subsections (2) and (3) establish rebuttable presumptions as to
the correctness of the contents of the certified map, and the
authority of the signatory respectively.
Section 724 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.
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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 section must give notice of their
intention to challenge and describes the way in which such
notice is to be given.
This section effectively shifts the evidential burden to the
accused person.
Section 725 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.
Section 726 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
Section 727 provides definitions of certain terms used in this
Part of the Law including `authorised use', `law enforcement
agency' and `protected information'.
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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.
Subsection (2) clarifies that it is also an authorised use of
protected information disclosed to or otherwise held by a police
agency for any purpose or for a particular purpose to disclose
the information to another police agency authorised to hold
protected information (whether or not for the same purpose).
Subsection (3) clarifies that the authorised disclosure of
protected information to an entity includes a reference to the
disclosure of the information to a duly authorised employee or
agent of the entity.
Section 728 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.
Section 729 requires that protected information may only be
used for certain purposes and outlines those purposes.
Part 13.5 National regulations
Section 730 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 section 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 $20000 for a corporation, this is
higher than that which is normally included in regulations.
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Section 731 authorises the making of regulations to establish
and manage a scheme for persons performing vehicle
examination functions under the Law. Subsection (2) allows
for the recognition of existing schemes by which comparable
entities are currently managed under state and territory laws
as an interim measure to prevent dislocation during the
establishment of the new scheme.
Section 732 allows for the making of regulations to specify
particular matters contained in or relating to agreements with
States or Territories to provide services that are to be published
on the Regulator's website.
Section 733 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.
Section 734 provides a process to allow responsible Ministers to
give due consideration to, and advice on, issues raised during
jurisdictional parliamentary scrutiny of national regulations with
the aim of avoiding possible disallowance.
Subsection (1) requires the responsible Minister for a
participating jurisdiction to refer any adverse report about a
national regulation from a legislation scrutiny body for that
jurisdiction to the responsible Ministers for consideration and
advice.
Subsection (2) requires responsible Ministers to prepare advice
on the adverse report and provide a report to the relevant
responsible Minister about the issues raised.
The process provides an avenue for the responsible Ministers to
be advised of issues raised, and to provide advice that may assist
a local Minister in maintaining national consistency across the
regulatory scheme.
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Part 13.6 Other
Section 735 states that the Regulator may approve forms and it
requires the Regulator to publish the approval of a form on its
website.
Section 736 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.
Section 737 allows for the indexation of penalties for offences
against the Law. The indexation mechanism is to be set out in
regulations and is intended to be derived from generally
accepted indexes such as inflation, for example, or the consumer
or labour price indexes published by the Australian Bureau of
Statistics. The note to subsection (2) recognises that the
application of the index may result in no increase at all in a
given year.
In addition to the ordinary requirement of a unanimous
recommendation required for regulations made under the Law
in section 730, a regulation establishing the index referred to in
subsection (2) requires responsible Ministers to be satisfied that
the method generally accords with increases in relevant inflation
indexes or similar indexes.
Section 738 sets out the procedure for serving documents
required or permitted to be served on a person under this Law.
Section 739 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.
Section 740 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 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.
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It is also a requirement for the Regulator to publish the fees it
sets in the Commonwealth Gazette and on the Regulator's
website.
Subsection (3) provides a head of power for the making of
national regulations to provide that stated kinds of fees may be
set by the Regulator for inspection services, except so far as
those fees are provided for under another law of this jurisdiction.
Subsection (6) allows the Regulator to waive fees in
circumstances prescribed by national regulations.
Subsection (7) clarifies that a decision maker can decline to deal
with a matter if the fee is not paid.
Section 741 states that a fee, charge or other amount payable
under this Law is a debt due to the Regulator and may be
recovered.
Section 742 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 section does not limit parties from entering into a contract
that imposes greater or more onerous obligations than those
required by the Law.
Section 743 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.
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Chapter 14 Savings and transitional
provisions
Part 14.1 Interim provisions relating
to Ministers and Board
Section 744 states that any jurisdiction that has signed the Inter-
governmental Agreement on Heavy Vehicle Regulatory Reform
may nominate a responsible Minister (as defined in section 5)
even though the jurisdiction is not yet a participating jurisdiction
(as defined in section 5) for the purposes of relevant provisions
of the Law. Those are defined in this section as the provisions
relating to the function of responsible Ministers other than
section 652. Section 652 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-section (3) specifies that this applies until the prescribed
day for the jurisdiction. This is defined as the earlier of the
participation day for the jurisdiction (defined in section 5 as the
day it becomes a participating jurisdiction) or 30 June 2014.
The effect of this section 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.
Section 745 provides that if the responsible Ministers rely on
section 30 of Schedule 1 to the Law to appoint the members of
the Board after enactment but before commencement of
section 663 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.
Section 30 of Schedule 1 deals with the exercise of specified
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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 section 681 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 section also provides that in exercising functions, Board
members are entitled to receive the remuneration and
allowances specified under section 666, even if that section has
not commenced. However, in determining duration of office,
a member's term does not start until section 663 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.
Part 14.2 General provisions
Part 14.2 (sections 746 to 755) provides general savings and
transitional arrangements. Part 14.2 will work with national
regulations and provisions in local application laws (that is the
provisions in local laws that apply the National Law) to
collectively manage the savings and transitional arrangements.
The savings and transitional provisions in Part 14.2 ensure or
facilitate the following:
· As a general principle, from commencement of the National
Law in a jurisdiction, matters relating to the administration
of heavy vehicles under the National Law will be transferred
from the jurisdictional agency to the Regulator, unless
excluded. For example, applications for permits which have
not yet been decided by the jurisdictional agency will move
to the Regulator for finalisation. However, the transitional
arrangement will still support a cooperative arrangement
between the Regulator and jurisdiction in finalising these
matters.
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· Permits, notices or other exemption instruments in force prior
to the commencement day will continue for a period as if
they were made under the National Law. Consequently, after
the commencement day these matters will be subject to the
National Law and may be cancelled as if they were issued
under the National Law.
· Permits will be saved for up to 3 years from commencement
unless they sooner expire or are cancelled.
· Notices and similar exemption instruments of a class nature,
will continue for a maximum of 5 years from commencement
in the jurisdiction unless they sooner expire, are cancelled or
are replaced by a new notice or instrument that covers the
same matters in a substantially similar way as the previous
notice.
· Industry Codes of Practice will be preserved for up to 3 years
unless they have an earlier review date.
· The bulk of the administrative aspects of the PBS scheme and
the instruments and decisions made under the scheme prior to
the commencement of the Heavy Vehicle National Law will
continue until the arrangements introduced by the Heavy
Vehicle National Law Amendment Act 2012 are
implemented.
As a general principle, matters relating to offences under local
laws or decisions already made under local laws (including for
example, review and appeals of decisions or prosecutions made
under local laws) are not to be automatically transferred to the
Regulator.
The savings and transitional scheme is intentionally designed to
be flexible enough to provide an effective response for savings
and transitional matters across a broad range of matters that may
arise through implementation.
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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 schedule is necessary to provide
consistency in interpretation across jurisdictions - see
section 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
sections 119, 125 and 146.
Schedule 3 Reviewable
decisions
Schedule 3 to the sets out the decisions that are reviewable
decisions for the purposes of Chapter 11 of the National 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 section 640.
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Schedule 4 Provisions
specified for
liability of executive
officers for
offences by
corporation
Schedule 4 is inserted to outline the provisions specified for
liability of executive officers for offences by corporations - see
section 636.
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Appendix 1 Penalties for
offences against
the Heavy Vehicle
National Law
Maximum
Section Number and Provision Penalty
($)
Chapter 2: Registration
30 Registration requirement 10000
39 Driver to carry proof of compliance with third 3000
party insurance legislation
50 (1) Obtaining registration or registration items 10000
by false statements
50 (2) Obtaining registration or registration items 10000
by false statements.
51 (3) Replacement and recovery of incorrect 4000
registration items
52 (4) Verification of particular records. 3000
Chapter 3: Vehicle Operations - standards and safety
60 (1)(a) Compliance with heavy vehicle standards 3000
60 (1)(b) Compliance with heavy vehicle standards 6000
79 (2) Return of permit 4000
80 (1) Replacement of defaced permit 4000
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Maximum
Section Number and Provision Penalty
($)
81 (1) Contravening condition of vehicle standards 3000
exemption
81(2) Contravening condition of vehicle standards 3000
exemption
81 (3) Contravening condition of vehicle standards 3000
82 (2) Keeping relevant document while driving 3000
under vehicle standards exemption (notice).
82 (3) Keeping relevant document while driving 3000
under vehicle standards exemption (notice)
83 (1) Keeping copy of permit while driving under 3000
vehicle standards exemption (permit)
83 (2) Keeping copy of permit while driving under 3000
vehicle standards exemption (permit)
83 (3) Keeping copy of permit while driving under 3000
vehicle standards exemption (permit)
85 (1) Modifying heavy vehicle requires approval 3000
85 (2) Modifying heavy vehicle requires approval 3000
86 (2) Approval of modifications by approved 3000
vehicle examiners
89 (1) Safety requirement 6000
90 (1) Requirement about properly operating 3000
emission control system
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Maximum
Section Number and Provision Penalty
($)
90 (2) Requirement about properly operating 3000
emission control system
90 (3) Requirement about properly operating 3000
emission control system
91 (1) Person must not tamper with emission 10000
control system fitted to heavy vehicle
91 (2) Person must not tamper with emission 10000
control system fitted to heavy vehicle
92(2) Display of warning signs required by Heavy 3000
Vehicle Standards on vehicles to which
requirement does not apply
93(1) Person must not tamper with speed limiter 10000
fitted to heavy vehicle
93(2) Person must not tamper with speed limiter 10000
fitted to heavy vehicle
93 (3) Person must not tamper with speed limiter 10000
fitted to heavy vehicle
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Maximum
Section Number and Provision Penalty
($)
Chapter 4: Vehicle Operations - mass, dimension and loading
96 (1) Compliance with mass requirements
· Minor: 4000
· Substantial: 6000
· Severe: 10000, Plus an additional maximum
$500 for every additional 1% over a 120%
overload (but so that the additional maximum
penalty does not exceed $20000).
102(1)(a)Compliance with dimension requirements 3000
102 (1)(b)Compliance with dimension
requirements
· Minor: 3000
· Substantial: 5000
· Severe: 10000
109 (2) Warning signals required for rear 3000
projection of loads
111 (1) Compliance with loading requirements
· Minor: 3000
· Substantial: 5000
· Severe: 10000
129 (1) Contravening condition of mass or 6000
dimension exemption generally
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Maximum
Section Number and Provision Penalty
($)
129 (2) Contravening condition of mass or 6000
dimension exemption generally
129 (3) Contravening condition of mass or 6000
dimension exemption generally
130 (2) Contravening condition of mass or 6000
dimension exemption relating to pilot or escort
vehicle
130 (3) Contravening condition of mass or 6000
dimension exemption relating to pilot or escort
vehicle
131 (1) Using pilot vehicle with a heavy vehicle 6000
that contravenes mass or dimension exemption
132 (2) Keeping relevant document while driving 3000
under mass or dimension exemption (notice)
132 (3) Keeping relevant document while driving 3000
under mass or dimension exemption (notice)
133 (1) Keeping copy of permit while driving 3000
under mass or dimension exemption (permit)
133 (2) Keeping copy of permit while driving 4000
under mass or dimension exemption (permit)
133(3) Keeping copy of permit while driving under 3000
mass or dimension exemption (permit)
134 (1) Displaying warning signs on vehicles if not 3000
required by dimension exemption
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Maximum
Section Number and Provision Penalty
($)
134 (2) Displaying warning signs on vehicles if not 3000
required by dimension exemption
137 Using class 2 heavy vehicle 6000
150 (1) Contravening condition of class 2 heavy 6000
vehicle authorisation
151 (2) Keeping relevant document while driving 3000
under class 2 heavy vehicle authorisation (notice)
151 (3) Keeping relevant document while driving 3000
under class 2 heavy vehicle authorisation (notice)
152 (1) Keeping copy of permit while driving 3000
under class 2 heavy vehicle authorisation (permit)
152 (2) Keeping copy of permit while driving 4000
under class 2 heavy vehicle authorisation (permit)
152 (3) Keeping copy of permit while driving 3000
under class 2 heavy vehicle authorisation (permit)
NEW - 153 (1) Keeping copy of PBS vehicle 3000
approval while driving under class 2 heavy vehicle
authorisation
NEW - 153 (2) If Keeping copy of PBS vehicle 3000
approval while driving under class 2 heavy vehicle
authorisation
181(3) Return of permit 4000
182(1) Replacement of defaced etc. permit 4000
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Maximum
Section Number and Provision Penalty
($)
183 (2) Liability of employer etc. for driver's contravention of
mass, dimension or loading requirement: An amount equal to
the maximum penalty for the relevant offence
184 (1) Towing restriction 3000
185 (1) Requirements about coupling trailers 6000
185 (2) Requirements about coupling trailers 6000
186 (2) False or misleading transport 10000
documentation for goods
186 (3) False or misleading transport 10000
documentation for goods
186 (4) False or misleading transport 10000
documentation for goods
186 (5) False or misleading transport 10000
documentation for goods
187 (2) False or misleading information in 10000
container weight declaration
187 (3) False or misleading information in 10000
container weight declaration
190 (1) Duty of responsible entity 6000
191 (1) Duty of operator 6000
191 (3) Duty of operator 6000
192 (1) Duty of driver 6000
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Maximum
Section Number and Provision Penalty
($)
192 (2) Duty of driver 3000
193 (2) Weight of freight container exceeding 10000
weight stated on container or safety approval plate
194 (1) Conduct of consignee resulting or 10000
potentially resulting in contravention of mass,
dimension or loading requirement
Chapter 5: Vehicle operations - speeding
204 (1) Duty of employer, prime contractor or 10000
operator to ensure business practices will not cause
driver to exceed speed limit
205 Duty of employer not to cause driver to drive 4000
if particular requirements not complied with
206 (2) Duty of prime contractor or operator not to 4000
cause driver to drive if particular requirements not
complied with
207 (1) Duty to ensure driver's schedule will not 10000
cause driver to exceed speed limit
208 (1) Duty not to cause driver to drive if 4000
particular requirements not complied with
209 (1) Duty to ensure loading arrangements will 10000
not cause driver to exceed speed limit
212 (1) Duty to ensure terms of consignment will 10000
not cause driver to exceed speed limit
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Maximum
Section Number and Provision Penalty
($)
212 (2) Duty to ensure terms of consignment will 10000
not cause driver to exceed speed limit
213 Duty not to make a demand that may result in 6000
driver exceeding the speed limit
215 Particular requests etc. prohibited 10000
216 (1) Particular contracts etc. prohibited 10000
216 (2) Particular contracts etc. prohibited 10000
219 (1) Liability of employer etc. for driver's contravention of
speeding offence
Limit 50km/h- 60km/h
· By less than 15km/h - 3000
Limit of 70km/h - 80km/h
· By less than 15km/h - 3000
· By 15km/h or more - 5000
Limit of 90km/h
· By less than 15km/h - 3000
· By 15km/h or more - 5000
Limit of 90km/h (Road Train)
· By less than 15km/h - 5000
· By 15km/h or more - 10000
Limit of 100km/h
· By less than 15km/h - 5000
· By 15km/h or more - 10000
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Maximum
Section Number and Provision Penalty
($)
Chapter 6: Vehicle operations - driver fatigue
228 Duty of driver to avoid driving while fatigued 6000
229 (1) Duty of party in the chain of responsibility 10000
to prevent driver driving while fatigued
230 (1) Duty of employer, prime contractor or 6000
operator to ensure business practices will not cause
driver to drive while fatigued by fatigue etc
231 Duty of employer not to cause driver to drive 4000
if particular requirements not complied with
232 (2)Duty of prime contractor or operator not to 4000
cause driver to drive if particular requirements not
complied with
233 (1) Duty to ensure driver's schedule will not 6000
cause driver to drive while fatigued
234 (1) Duty not to cause driver to drive if 6000
particular requirements not complied with
235 (1) Duty to ensure terms of consignment will 10000
not cause driver to drive while fatigued
235 (2 ) Duty to ensure terms of consignment will 10000
not cause driver to drive while fatigued
236 (1) Duty not to cause driver to drive if 4000
particular requirements not complied with
237(1) Duty not to make a demand that may result 10000
in driver driving while fatigued
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Maximum
Section Number and Provision Penalty
($)
238 (1) Duty to ensure loading arrangements will 10000
not cause driver to drive while fatigued
239 (2) Duty to ensure drivers can rest in particular 6000
circumstances
240 Particular requests prohibited 10000
241 (1) Particular contracts prohibited 10000
241 (2) Particular contracts prohibited 10000
250 (1) Operating under standard hours--solo
drivers.
· Minor: 4000
· Substantial: 6000
· Severe: 10000
· Critical: 15000
251 (1) Operating under standard hours--two-up
drivers
· Minor: 4000
· Substantial: 6000
· Severe: 10000
· Critical: 15000
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Maximum
Section Number and Provision Penalty
($)
254 (1) Operating under BFM hours--solo drivers
· Minor: 4000
· Substantial: 6000
· Severe: 10000
· Critical: 15000
256 (1) Operating under BFM hours--two-up
drivers
· Minor: 4000
· Substantial: 6000
· Severe: 10000
· Critical: 15000
258 (1) Operating under AFM hours
· Minor: 4000
· Substantial: 6000
· Severe: 10000
· Critical: 15000
260 (1) Operating under exemption hours
Minor: 4000 Substantial: 6000 Severe: 10000
Critical: 15000
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Maximum
Section Number and Provision Penalty
($)
261(2) Liability of employer etc. for driver's contravention of
maximum work requirement or minimum rest requirement
· Minor: - 4000
· Substantial: - 6000
· Severe: - 10000
· Critical: - 15000
263 (1) Operating under new work and rest hours 4000
option after change.
264 (2) Duty of employer, prime contractor, 6000
operator and scheduler to ensure driver compliance
284 (2) Return of permit 6000
285 (1) Replacement of defaced permit 4000
286(1) Contravening condition of work and rest 6000
hours exemption
287 (2) Keeping relevant document while 3000
operating under work and rest hours exemption
(notice)
287 (3) Keeping relevant document while 3000
operating under work and rest hours exemption
(notice)
288 (1)Keeping copy of permit while driving under 3000
work and rest hours exemption (permit)
288 (2) Keeping copy of permit while driving 4000
under work and rest hours exemption (permit)
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Maximum
Section Number and Provision Penalty
($)
288 (3) Keeping copy of permit while driving 3000
under work and rest hours exemption (permit)
293 (1) Driver of fatigue-regulated heavy vehicle 6000
must carry work diary
296 (1) Recording information under the national 1500
regulations--general
297 (2) Information required to be recorded 3000
immediately after starting work
298 (1) Failing to record information about 1500
odometer reading
299 Two-up driver to provide details 3000
301 Recording information in written work diary 1500
302 Recording information in electronic work 1500
diary
303 Time zone of driver's base must be used 1500
305 (1) Driver must make supplementary records 6000
in particular circumstances
305 (2) Driver must make supplementary records 3000
in particular circumstances
305 (3) Driver must make supplementary records 1500
in particular circumstances
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Maximum
Section Number and Provision Penalty
($)
306 Driver must notify Regulator if written work 3000
diary filled up
307(2) Driver must notify Regulator if electronic 3000
work diary filled up
308 (1) What driver must do if lost or stolen 3000
written work diary found or returned
309 (2) Driver must notify record keeper if 6000
electronic work diary filled up
310 (2) Intelligent access reporting entity must 6000
notify record keeper if approved electronic
recording system malfunctioning
311 (2) What record keeper must do if electronic 6000
work diary filled up
312 (2) What record keeper must do if electronic 6000
work diary destroyed, lost or stolen
313 (2) What record keeper must do if electronic 6000
work diary not in working order or malfunctioning
314 (2) How electronic work diary must be used 3000
314 (3) How electronic work diary must be used 6000
315 (2) Liability of employer etc. for driver's 6000
contravention of particular requirements of this
Division
319(1) Records record keeper must have. 6000
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Maximum
Section Number and Provision Penalty
($)
321 (1) Records record keeper must have 6000
321 (2) Records record keeper must have 6000
322 (2) General requirements about driver giving 3000
information to record keeper
322 (4) General requirements about driver giving 3000
information to record keeper
323 (2) Requirements about driver giving 3000
information to record keeper if driver changes
record keeper
323 (3) Requirements about driver giving 3000
information to record keeper if driver changes
record keeper
324 (2) Record keeper must give printouts of 3000
information from electronic work diary
325 (1) False or misleading entries 10000
326 (1) Keeping 2 work diaries simultaneously 10000
prohibited
326 (2) Keeping 2 work diaries simultaneously 10000
prohibited
327 Possession of purported work records etc. 10000
prohibited
328 False representation about work records 10000
prohibited n.
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Maximum
Section Number and Provision Penalty
($)
329 Defacing or changing work records etc. 10000
prohibited
330 Making entries in someone else's work records 10000
prohibited
331 Destruction of particular work records 10000
prohibited
332 Offence to remove pages from written work 10000
diary
335 (1) Person must not tamper with approved 10000
electronic recording system -
336 (1) Person using approved electronic recording 10000
system must not permit tampering with it
337 (2) Intelligent access reporting entity must not 10000
permit tampering with approved electronic
recording system
341 (1) Period for which, and way in which, 6000
records must be kept
341 (2) Period for which, and way in which, 6000
records must be kept
341(3) Period for which, and way in which, 3000
records must be kept
341(4) Period for which, and way in which, 3000
records must be kept
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Maximum
Section Number and Provision Penalty
($)
341(5) Period for which, and way in which, 6000
records must be kept
347 (2) Placing electronic work diary label on 10000
device
347 (3) Placing electronic work diary label on 10000
device
350 (1) Prohibition on using device as electronic 10000
work diary if it is not, and is not a part of, an
approved electronic recording system
350 (2) Prohibition on using device as electronic 10000
work diary if it is not, and is not a part of, an
approved electronic recording system
354 (3) Requirements if approval amended 6000
354 (5) Requirements if approval amended 6000
355 (2) Requirements if approval cancelled 6000
355 (4) Requirements if approval cancelled 6000
355(6) Requirements if approval cancelled 6000
355 (8) Requirements if approval cancelled 6000
373 (2) Return of permit 6000
374 (1) Replacement of defaced permit 4000
375 Contravening conditions of work diary 6000
exemption
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Maximum
Section Number and Provision Penalty
($)
376 (2) Keeping relevant document while 3000
operating under work diary exemption (notice)
376 (3) Keeping relevant document while 3000
operating under work diary exemption (notice)
377 (1) Keeping copy of permit while operating 3000
under work diary exemption (permit)
392 (2) Return of permit. 6000
393 (1) Replacement of defaced etc. Permit 4000
395 Contravening condition of fatigue record 6000
keeping exemption
396 (2) Owner must maintain odometer 6000
397 (2) Driver must report malfunctioning 3000
odometer
398 (2) What owner must do if odometer 6000
malfunctioning -
399 (2) What employer or operator must do if 6000
odometer malfunctioning
Chapter 7: Intelligent access
404 (1) Offence to give false or misleading 10000
information to intelligent access service provider
404 (4) Offence to give false or misleading 10000
information to intelligent access service provider
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Maximum
Section Number and Provision Penalty
($)
405 (1) Advising vehicle driver of collection of 6000
information by intelligent access service provider.
406 (1) Reporting system malfunctions to 6000
Regulator
406 (2) Reporting system malfunctions to 6000
Regulator
407 (1) Advising driver of driver's obligations 6000
about reporting system malfunctions
408(1) Reporting system malfunctions to operator 6000
408 (2) Reporting system malfunctions to operator 6000
-
410 (1) Collecting intelligent access information 6000
410 (2) Collecting intelligent access information 6000
411(1) Keeping records of intelligent access 6000
information collected
412 Protecting intelligent access information 6000
413 (1) Making individuals aware of personal 6000
information held
413(2) Making individuals aware of personal 6000
information held
414(1) Giving individuals access to their personal 6000
information
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Maximum
Section Number and Provision Penalty
($)
415 (2) Correcting errors 6000
415 (4) Correcting errors 6000
416 General restriction on use and disclosure of 6000
intelligent access information
417 Giving intelligent access auditor access to 6000
records
419 (1) Keeping record of use or disclosure of 6000
intelligent access information
419 (3) Keeping record of use or disclosure of 6000
intelligent access information
420 (2) Keeping noncompliance report 6000
421 (1) Destroying intelligent access information 6000
422 (2) Reporting relevant contraventions to 6000
Regulator -
423 (1) Reporting tampering or suspected 6000
tampering with approved intelligent transport
system
423 (2) Reporting tampering or suspected 6000
tampering with approved intelligent transport
system
424(1) Restriction on disclosing information about 6000
tampering or suspected tampering with approved
intelligent transport system
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Maximum
Section Number and Provision Penalty
($)
424(3) Restriction on disclosing information about 6000
tampering or suspected tampering with approved
intelligent transport system
424(4) Restriction on disclosing information about 6000
tampering or suspected tampering with approved
intelligent transport system.
427 (1) Collecting intelligent access information 6000
427 (2) Collecting intelligent access information 6000
428 Protecting intelligent access information 6000
collected
429 (1) Making individuals aware of personal 6000
information held
429 (2) Making individuals aware of personal 6000
information held
430 (1) Giving individuals access to their personal 6000
information
431 (2) Correcting errors etc 6000
431 (5) Correcting errors etc 6000
432 General restriction on use and disclosure of 6000
intelligent access information
434 Restriction about intelligent access 6000
information that may be used or disclosed
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Maximum
Section Number and Provision Penalty
($)
435(1) Keeping record of use or disclosure of 6000
intelligent access information
435(3) Keeping record of use or disclosure of 6000
intelligent access information
436 Keeping noncompliance reports 6000
437 (1) Destroying intelligent access information 6000
or removing personal information from it
438 (1) Reporting tampering or suspected 6000
tampering with, or malfunction or suspected
malfunction of, approved intelligent transport
system to Regulator
439 (1) Restriction on disclosing information about 6000
tampering or suspected tampering with approved
intelligent transport system
439 (3) Restriction on disclosing information about 6000
tampering or suspected tampering with approved
intelligent transport system
441 (1) Collecting intelligent access information 6000
441 (2) Collecting intelligent access information 6000
442 Protecting intelligent access information 6000
collected -
443 (1) Making individuals aware of personal 6000
information held
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Maximum
Section Number and Provision Penalty
($)
444(1) Giving individuals access to their personal 6000
information
445 (2) Correcting errors 6000
445 (4) Correcting errors 6000
446 General restriction on use and disclosure of 6000
intelligent access information
448 Restriction about intelligent access 6000
information that may be used or disclosed
449 (1) Keeping record of use or disclosure of 6000
intelligent access Information
449 (2) Keeping record of use or disclosure of 6000
intelligent access Information
449 (3) Keeping record of use or disclosure of 6000
intelligent access Information
450 (1) Destroying intelligent access information 6000
or removing personal information from it
451 Reporting contraventions by intelligent access 6000
service providers to TCA
452 Reporting tampering or suspected tampering 6000
with approved intelligent transport system to
Regulator or TCA
453 (1) Restriction on disclosing information about 6000
tampering or suspected tampering with approved
intelligent transport system
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Maximum
Section Number and Provision Penalty
($)
453 (2) Restriction on disclosing information about 6000
tampering or suspected tampering with approved
intelligent transport system
454 (1) Offence to tamper with approved 10000
intelligent transport System
454 (2) Offence to tamper with approved 8000
intelligent transport system
Chapter 8: Accreditation
467 Compliance with conditions of BFM 6000
accreditation or AFM Accreditation
468 (1) Driver must carry accreditation details 3000
468 (3) Driver must carry accreditation details 3000
469 (2) Driver must return particular documents if 4000
stops operating under accreditation
470 (2) General requirements applying to operator 6000
with heavy vehicle accreditation
470 (3) General requirements applying to operator 6000
with heavy vehicle accreditation
470 (4) General requirements applying to operator 6000
with heavy vehicle accreditation
470 (5) General requirements applying to operator 6000
with heavy vehicle accreditation.
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Maximum
Section Number and Provision Penalty
($)
470 (6) General requirements applying to operator 3000
with heavy vehicle accreditation
470 (8) General requirements applying to operator 3000
with heavy vehicle accreditation
471 (2) Operator must give notice of amendment, 6000
suspension or ending of heavy vehicle
accreditation
471 (3) Operator must give notice of amendment, 4000
suspension or ending of heavy vehicle
accreditation
476 (2) Return of accreditation certificate. 6000
477 (1) Replacement of defaced etc. accreditation 4000
certificate
478 (1) Offences relating to auditors 10000
478 (2) Offences relating to auditors 10000
478 (3) Offences relating to auditors 10000
478 (4) Offences relating to auditors 10000
Chapter 9: Enforcement
488 Return of identity card 3000
513 (4) Direction to stop heavy vehicle to enable 6000
exercise of other powers
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Section Number and Provision Penalty
($)
514 (3) Direction not to move or interfere with a 6000
heavy vehicle to enable exercise of other power
516 (3) Direction to move heavy vehicle to enable 6000
exercise of other powers
517 (4) Direction to move heavy vehicle if causing 6000
harm
522 (5) Power to order presentation of heavy 6000
vehicles for inspection
524(5) Direction to leave heavy vehicle 6000
526 (4) Issue of vehicle defect notice - 3000
528 (3) Defective vehicle labels 3000
529 Using defective heavy vehicles contrary to 3000
defect vehicle Notice
533 (7) Powers for minor risk breach of mass, 10000
dimension or loading requirement
534 (5) Powers for substantial risk breach of mass, 10000
dimension or loading requirement
535 (5) Powers for severe risk breach of mass, 10000
dimension or loading requirement.
542 (1) Compliance with requirement under this 10000
Division -
553(3) Requirement of person in control of thing to 10000
be seized
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Maximum
Section Number and Provision Penalty
($)
558 (1) Noncompliance with embargo notice 10000
558 (3) Noncompliance with embargo notice 10000
559(3) Power to secure embargoed thing 10000
559 (4) Power to secure embargoed thing 10000
559 (5) Power to secure embargoed thing - 10000
567 (4) Power to require name and address - 3000
568 (3) Power to require production of document etc. required to
be in driver's possession: An amount equal to the amount of the
maximum penalty for an offence of failing to keep the
document, device or other thing in the driver's possession.
568 (7) Power to require production of document 3000
etc. required to be in driver's possession
569 (2) Power to require production of documents 6000
etc. generally
569 (7) Power to require production of documents 3000
generally
570 (3) Power to require information about heavy 6000
vehicles
573 (1) Contravention of improvement notice 10000
577 (4) Power to require reasonable help 10000
584 (1) Obstructing authorised officer 10000
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Maximum
Section Number and Provision Penalty
($)
585 Impersonating authorised officer 10000
Chapter 10: Sanctions and provisions about liability for
offences
604 Contravention of supervisory intervention 10000
order
610 Contravention of prohibition order 10000
636 (1) Liability of executive officers of corporations: The
penalty for a contravention of the provision by an individual.
636 (2) Liability of executive officers of corporation: The
penalty for a contravention of the provision by an individual.
Chapter 12: Administration
697(3) General duties of persons exercising 10000
functions under this Law
Chapter 13: General
699 (1) Discrimination against or victimisation of 10000
employees
699 (2) Discrimination against or victimisation of 10000
employees
700 (4) Order for damages or reinstatement. 10000
701 (1) False or misleading statements 10000
701 (2) False or misleading statements 8000
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Section Number and Provision Penalty
($)
702 (1) False or misleading documents. 10000
702 (3 ) False or misleading documents 8000
703 (1) False or misleading information given by 10000
responsible person to another responsible person
703 (2) False or misleading information given by 8000
responsible person to another responsible person
704 (1) Offence to falsely represent that heavy 10000
vehicle authority is held
704 (2) Offence to falsely represent that heavy 10000
vehicle authority is held
704 (3) Offence to falsely represent that heavy 10000
vehicle authority is held
728 (1) Duty of confidentiality 20000
729 (1) Protected information only to be used for 20000
authorised use
729 (3) Protected information only to be used for 20000
authorised use
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Appendix 2 Offences
prescribed for the
purposes of
proposed
section 636
(Executive Officer
liability)
In the following table, the column headed `636(1)' refers to the
provision specified for the purposes of section 636(1) and the
column headed `636(2)' refers to the provision specified for the
purposes of section 636(2).
Section of this Basis for not exempting
636(1) 636(2)
Law liability
Chapter 2 - Registration
This section implements
section 20 of the Road
Transport Reform (Heavy
Vehicles Registration) Act
1997 (Cwth). Registration
laws were expressly
contemplated as road laws to
which executive officer
30 Registration liability may attach under
30(1) 30(1)
requirement section 149 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
The requirement is central to
the regulatory scheme.
Without a reliable registration
the identification of the
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
vehicles and operators is more
expensive and less certain and
there is less certainty that the
vehicle meets basic safety and
operational requirements
before it is used on the road
network
Management of the
registration of a heavy vehicle
(particular for fleets of
vehicles) is a matter that
would naturally fall within the
internal management systems
of a corporate entity.
The offence is not confined to
the actions of an individual
(driver or otherwise) being
largely an administrative
activity and executive officers
can readily control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
This section implements
section 21 of the Road
Transport Reform (Heavy
50 Obtaining Vehicles Registration) Act
50(1),
Registration by --- 1997 (Cwth). Registration
50(2)
false statement laws were expressly
contemplated as road laws to
which executive officer
liability may attach under
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
section 149 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
The offences may be
committed by an individual or
corporation directly
authorising or permitting the
offence. The proposed
subsections 50(1) and (2)
import sufficient elements of
personal knowledge as to
exclude the possibility of a
charge based around
recklessness on the part of
executive officers as a basis
for liability, hence the offence
is not specified for the
purposes section 636(2).
There are financial incentives
for noncompliance by
mis-stating registration
categories and noncompliance
would adversely impact the
underlying objectives of
registration discussed for
section 30.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
Chapter 3 - Vehicle Operations - standards and safety
This section implements
Regulation 10 of the Road
Transport Reform (Heavy
Vehicle Standards)
Regulations. These
regulations were made under
the Road Transport Reform
(Vehicles and Traffic) Act
1993. This Act was expressly
contemplated as a road law to
which executive officer
liability may attach under
section 149 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
60 Compliance
with heavy The physical elements of the
60(1) 60(1)
vehicle offence are not exclusively
standards confined to the actions and
judgement of a given
individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct
(appropriate purchasing and
maintenance policies can
ensure compliance and are
matters that fall within the
ordinary control of a properly
managed entity).
While these penalties are in
the middle to lower range of
the Bill respectively,
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
non-compliance has
potentially serious safety
implications either through
degradation of the vehicle's
performance, inappropriate
construction or after market
modification. These
implications extend to death
or disabling injury to
individuals from excessive
overhang, inadequate warning
lights etc.
The maximum penalty for an
individual offender is $6000
for contravention of a heavy
vehicle standard relating to a
speed limiter and $3000
otherwise.
This section implements
Regulation 38 of the Road
Transport Reform (Vehicle
Standards) Regulations 1998.
These regulations were made
under the Road Transport
79 Return of Reform (Vehicles and Traffic)
79(2) 79(2) Act 1993. This Act was
Permit
expressly contemplated as a
road law to which executive
officer liability may attach
under section 149 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
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636(1) 636(2)
Law liability
A permit provides evidence of
the granting of a legal
concession and the suspension
of the relevant ordinarily
applicable operating rules.
An offence is created under
this provision only where the
Regulator has amended or
cancelled the document and
the holder is unable or
unwilling to return the permit
no receipt of written
requirement.
The retention of the permit
may facilitate non-compliance
in circumstances where the
Regulator has determined the
permit is no longer
appropriate in the form
originally issued.
The Regulator is only
authorised to issue such a
notice where the permit:
· was dishonestly
obtained;
· has been contravened;
· has caused, or is likely
to cause, a significant
safety risk; or
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Law liability
· where circumstances
have changed to the
extent the Regulator
would not have issued
the permit had they
been operative at that
time
These restrictions on the
circumstances in which the
offence can materialise
indicate the potential
seriousness of any
noncompliance.
The offence is not confined to
the actions of an individual
(driver or otherwise) being
exclusively an administrative
matter, and executive officers
can therefore readily control
the relevant corporate
conduct.
The maximum penalty for an
individual offender is $4000,
a mid-range penalty.
This section implements
Regulation 19 of the Road
81 Transport Reform (Vehicle
Contravening Standards) Regulations 1998.
81(1), 81(1),
condition of These regulations were made
81(2), 81(2),
vehicle under the Road Transport
81(3) 81(3)
standards Reform (Vehicles and Traffic)
exemption Act 1993. This Act was
expressly contemplated as a
road law to which executive
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
officer liability may attach
under section 149 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
The extension of liability to
executive officers for
contravention of a condition
of a vehicle standards
exemption is justifiable on
the same grounds as
contravention of a vehicle
standard set out for
section 60. There are sound
arguments such
noncompliance should attract
additional blameworthiness
on the basis the ordinarily
applicable rules of operation
have been suspended on the
basis the conditions of the
concession would be
complied with.
The offences are not confined
to the actions of an individual
(driver or otherwise) and
executive officers can
therefore readily control the
relevant corporate conduct.
There may be some
conditions noncompliance
with which may not fall
within this rule however this
cannot be known at this time
and it is more appropriate to
allow for such liability to
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636(1) 636(2)
Law liability
potentially arise, than to
exclude it in all
circumstances.
The maximum penalty for an
individual offender is $3000,
a low-range penalty under the
Bill.
Using or permitting the use of
a vehicle that has been
unlawfully modified raises
similar considerations as
discussed above for the
contravention of a vehicle
standard or exemption in
sections 60 and 81.
The physical elements of the
85 Modifying
offence are not exclusively
heavy vehicle 85(1),
85(2) confined to the actions and
requires 85(2)
judgement of a given
approval
individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $3000,
a low-range penalty under the
Bill.
This section implements
Regulation 11 of the Road
Transport Reform (Vehicle
89 Safety
89(1) 89(1) Standards) Regulations 1998.
requirement
These regulations were made
under the Road Transport
Reform (Vehicles and Traffic)
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
Act 1993. This Act was
expressly contemplated as a
road law to which executive
officer liability may attach
under section 149 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
By definition, the commission
of an offence against this
provision suggests the
potential for the real
possibility of death or
disabling injury to members
of the public or drivers of the
vehicle in question.
The requirement contemplates
a wide range of circumstances
in which an offence may be
committed. There may be
some offences arising from
circumstances in which
noncompliance with which
may not fall within this rule
however this cannot be known
beforehand. It is therefore
more appropriate to allow for
derivative liability to
potentially arise, than to
exclude it in all circumstances
and restrict the obligation to
individual drivers and
involved corporations.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
The speed limiting of
nominated classes of heavy
vehicles is a regulatory
requirement intended to
protect members of the public
and drivers. Tampering with
these devices represents
wilful circumvention of the
law, enables unfair
competition through
dangerous practices, and
jeopardises the safety of road
users and drivers.
The incentives for tampering
93 Person must
are well known and tampering
not tamper with 93(1) 93(1)
itself requires alteration of the
speed limiter
physical condition of the
vehicle. Tampering may be
identified through an effective
maintenance management
system or secondary evidence
such as work diaries.
Executive officers can
therefore reasonably be
expected to control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
Chapter 4 - Vehicle Operations - mass, dimension and loading
An equivalent offence against
which executive officer
liability may attach was
provided under section 114
(Offence of contravening
condition) of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
129
This is a composite offence
Contravening
creating liability for a range
condition of 129(1), 129(1),
of offences. Non-compliance
mass or 129(2), 129(2),
with dimension and load
dimension 129(3) 129(3)
restraint offences creates risks
exemption
to safety of other road users.
generally
These offences and mass non-
compliances present risks to
infrastructure that may
impose significant costs to the
community. Only the most
serious of mass
noncompliance will create
risks to public safety (through
bridge or culvert collapse, for
example). The most obvious
outcome of systematic
noncompliance with mass
requirements is to distort the
market for transport services.
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636(1) 636(2)
Law liability
There are sound arguments
such noncompliance should
attract additional
blameworthiness on the basis
the ordinarily applicable rules
of operation have been
suspended on the basis the
conditions of the concession
would be complied with.
The physical elements of the
offence are not exclusively
confined to the actions and
judgement of a given
individual (driver or
otherwise) and executive
officers can therefore
reasonably be expected to
control the relevant corporate
conduct. (the specific
reference to an offence by an
`operator' supports this
conclusion which may have
been less reasonable had the
offence been confined to the
actions of the driver alone).
This section implements
130
Regulation 14 of the Road
Contravening
Transport Reform (Oversize
condition of
and Overmass Vehicles)
mass or
Regulation. The Model
dimension 130(3) 130(3)
Regulations were made by the
exemption
Commonwealth on 6 June
relating to pilot
1995 under the Road
or escort
Transport Reform (Vehicles
vehicle
and Traffic) Act 1993 (Cwth).
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
This Act was expressly
contemplated as a road law to
which executive officer
liability may attach under
section 149 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
The use of pilots and escorts
provides a warning to road
users that an over-
dimensional (especially over
wide) vehicle is on the road
and that they need to take
special care when driving in
the vicinity of the oversize
vehicle.
There are sound arguments
such noncompliance should
attract additional
blameworthiness on the basis
the ordinarily applicable rules
of operation have been
suspended on the basis the
conditions of the concession
would be complied with.
The physical elements of the
offence are not exclusively
confined to the actions and
judgement of a given
individual (driver or
otherwise) and executive
officers can therefore
reasonably be expected to
control the relevant corporate
conduct.
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The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
This section implements
Regulation 8 of the Road
Transport Reform (Restricted
Access Vehicles) Regulations.
The Model Regulations were
made under the Road
Transport Reform (Vehicles
and Traffic) Act 1993 (Cwth).
This Act was expressly
contemplated as a road law to
which executive officer
liability may attach under
section 149 of the Road
137 Using Transport Reform
class 2 heavy 137 137 (Compliance and
vehicle Enforcement) Bill 2003.
Class 2 vehicles can only be
made subject to a limited
range of conditions
(prescribed in regulations) as
well as route and time
restrictions. These vehicles
include road trains, b-doubles,
controlled access buses less
than 14.5 metres long, certain
vehicles carrying animals, and
certain combinations carrying
other vehicles.
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Regulation 8 of the Model
Regulations provides that it is
an offence to drive or operate
a Class 2 vehicle except in
accordance with a Class 2
permit or notice.
There are sound arguments
such noncompliance should
attract additional
blameworthiness on the basis
the ordinarily applicable rules
of operation have been
suspended on the basis the
conditions of the concession
would be complied with.
The breadth of the conditions
able to be applied to these
vehicles is narrower than that
applicable to vehicles
operating under mass and
dimension exemption permits,
however it is still conceivable
they may extend to matters
beyond the actions and
judgement of a given
individual (driver or
otherwise). Given the
potential breadth and nature
of these conditions executive
officers can reasonably be
expected to control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
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Section of this Basis for not exempting
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Law liability
This section implements
Regulation 8 of the Road
Transport Reform (Restricted
Access Vehicles) Regulations.
The Model Regulations were
made under the Road
Transport Reform (Vehicles
and Traffic) Act 1993 (Cwth).
This Act was expressly
contemplated as a road law to
which executive officer
liability may attach under
section 149 of the Road
Transport Reform
(Compliance and
150 Enforcement) Bill 2003.
Contravening
A contravention of this
condition of
150(1) 150(1) provision raises similar
class 2 heavy
considerations as discussed
vehicle
above for the use of the
authorisation
vehicle contrary to
contravention of heavy
vehicle authorisation, vehicle
standard or exemption in
sections 60 and 81. The same
considerations apply, except
that the offence in question
relates to individual
conditions, rather than failing
to comply with the notice at
all.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
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A permit provides evidence of
the granting of a legal
concession and the suspension
of the ordinarily applicable
requirements under the
National Law.
An offence is created under
this provision only where the
Regulator has amended or
cancelled the document and
the holder is unable or
unwilling to the permit no
receipt of written requirement
form the Regulator.
The retention of the permit
181 Return of may facilitate non-compliance
181(3) ---
Permit in circumstances where the
Regulator has determined the
permit is no longer
appropriate in the form
originally issued. The
Regulator is authorised to
issue such a notice where the
permit:
· was dishonestly
obtained;
· has been contravened;
and
· has caused, or is likely
to cause, a significant
safety risk
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These restrictions on the
circumstances in which the
offence can materialise
indicate the potential
seriousness of any
noncompliance.
Liability has not been
extended to executive officers
for an offence against this
provision under subsection
636(2) on the basis that it
encompasses a range of
offences for which there may
be no obvious safety
implications (although there
may be adverse infrastructure
and amenity consequences).
The maximum penalty for an
individual offender is $4000,
a mid-range penalty.
This section implements
Division 5 (Liability for
breaches of mass, dimension
or load restraint requirements)
183 Liability of of the Road Transport Reform
employer etc. (Compliance and
for Enforcement) Bill 2003.
contravention Executive officer liability
183(2) 183(2)
of mass, attached to these offences
dimension or under section 149 of that Bill.
loading
requirement These offences are central to
the regulatory regime. The
rationale for extending
liability in these
circumstances is to better
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target those chiefly
responsible for the breaches
of road law and to enhance
the effectiveness of the law by
deterring offending
behaviour.
This is a composite offence
creating liability for a range
of statutory or administrative
requirements. Non-
compliance with dimension
and load restraint
requirements creates risks to
safety of other road users.
These offences and mass
noncompliances present risks
to infrastructure that may
impose significant costs to the
community.
Only the most serious mass
noncompliance will create
risks to public safety (through
bridge or culvert collapse for
example). The most frequent
outcome of systematic
noncompliance with mass
requirements is to distort the
market for transport services.
The range parties on whom
the obligation is imposed and
the nature of the obligation
itself mean the offence is not
exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise) and executive
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officers can therefore
reasonably control the
relevant corporate conduct.
The criteria for severe
dimension (section 107(3)(b))
and loading breaches
(section 114) expressly
stipulate the safety
considerations that inform
these offences.
A graduated penalty regime is
created under which the
maximum penalty for a severe
risk breach is $10000, plus an
additional maximum $500 for
every additional 1% over a
120% overload for mass
limits breaches (but so that
the additional maximum
penalty does not exceed
$20000). This is a high range
penalty.
This section implements
Part 3.2 of the Schedule to
the Road Transport Reform
(Mass and Loading)
Regulations. The Model
185
Regulations were made under
Requirements 185(1), 185(1),
the Road Transport Reform
about coupling 185(2) 185(2)
(Vehicles and Traffic) Act
trailers
1993 (Cwth). This Act was
expressly contemplated as a
road law to which executive
officer liability may attach
under section 149 of the
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Law liability
Road Transport Reform
(Compliance and
Enforcement) Bill 2003.
The offences for which
liability arises under this
section relate to both the
coupling of vehicles within a
combination and the
compatibility and proper
connection of components of
the coupling.
Improper coupling may allow
for the uncontrolled release of
trailers or other unsafe
movement. This imposes a
safety risk on other road users
and drivers.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
This section implements
section 112 of the Road
Transport Reform
(Compliance and
186 False or Enforcement) Bill 2003.
186(2), 186(2), Executive officer liability
misleading
186(3), 186(3), attached to these offences
transport
186(4), 186(4), under section 149 of that Bill.
documentation
186(5) 186(5)
for goods The making of such
representations distorts the
market for transport services,
prejudices the capacity of
other duty holders to manage
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Law liability
their own obligations and
operates to conceal and
promote noncompliance.
Misleading documentation
may have safety implications
where it contributes to the
unsafe loading or overloading
of a vehicle and the attendant
degradation in on road
performance.
The maximum penalty for an
individual offender is
$10 000; the second highest
penalty provided for under the
Bill.
This section implements
section 112 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
187 False or under section 149 of that Bill.
misleading The making of such
information in 187(2), 187(2), representations distorts the
container 187(3) 187(3) market for transport services,
weight prejudices the capacity of
declaration other duty holders to manage
their own obligations and
operates to conceal and
promote noncompliance.
The misrepresentation may
have safety implications
where it contributes to the
unsafe loading or overloading
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Law liability
of a vehicle and the attendant
degradation in on road
performance.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
This section implements
section 103 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill.
The offence can be committed
by the full range of
responsible persons for the
container as defined in
190 Duty of section 5. Given the physical
responsible 190(1) 190(1) elements of the offence are
entity not exclusively confined to
the actions and judgement of
a given individual (driver or
otherwise) executive officers
can reasonably be expected
control the relevant corporate
conduct.
The making of such
representations distorts the
market for transport services,
prejudices the capacity of
other duty holders to manage
their own obligations and
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Law liability
operates to conceal and
promote noncompliance.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
This section implements
section 104 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill.
The offence may only be
committed by an operator
who permits transport of a
freight container in the
absence of a complying
container weight declaration,
191 Duty of 191(1), 191(1),
or fails to provide such a
operator 191(3) 191(3)
declaration. The physical
elements of the offence are
not exclusively confined to
the actions and judgement of
a given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The making of such
representations distorts the
market for transport services,
prejudices the capacity of
other duty holders to manage
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Law liability
their own obligations and
operates to conceal and
promote noncompliance
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
This section implements
section 106 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill.
This is an extended liability
offence for which liability
193 Weight of attaches to consignors and
freight packers.
container
exceeding The making of such
193(2) 193(2) representations distorts the
weight stated
on container or market for transport services,
safety approval prejudices the capacity of
plate other duty holders to manage
their own obligations and
operates to conceal and
promote noncompliance.
The offence would be
committed in the ordinary
course of the relevant party's
duties and executive officers
can therefore reasonably
control the relevant corporate
conduct.
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Law liability
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
This section implements
section 96 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill
This is a extended liability
offence for which liability
194 Conduct of attaches to consignees
consignee
resulting or The offence may be
potentially committed in circumstances
resulting in of intent, recklessness and
194(1) 194(1) negligence. It is as a result of
contravention
of mass, the last of these mental
dimension or elements that the possibility
loading of the extension of derivative
requirement liability is justified
The making of such
representations distorts the
market for transport services,
prejudices the capacity of
other duty holders to manage
their own obligations and
operates to conceal and
promote noncompliance.
The safety implications of
dimensional and loading
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636(1) 636(2)
Law liability
breaches have been discussed
above.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
Chapter 5 - Vehicle operations--speeding
The offence implements
section 17 of the Model Act
on Heavy Vehicle Speeding
Compliance. Executive
officer liability is applied to
this offence through section 8.
This section is an extended
204 Duty of liability provision. It is
employer, integral to the regulatory
prime objective of ensuring heavy
contractor or vehicle safety through the
operator to contribution it makes to
ensure business 204(1) 204(1) managing heavy vehicle
practices will speeding.
not cause
The breadth of the duty and
driver to
range of parties to whom it
exceed speed
applies means the elements
limit
of the offence are not
exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
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Law liability
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
The offence implements
section 17 of the Model Act
on Heavy Vehicle Speeding
Compliance. Executive
officer liability is applied to
this offence through section 8.
This section imposes an
obligation on the employer to
ensure observance on its own
part and that of all relevant
205 Duty of parties with the obligation in
employer not to section 204. The imposition
cause driver to of derivative liability is
drive if justified in on the same
205(1) 205(1) grounds as it is for those
particular
Requirements parties under section 204.
not complied This section is an extended
with liability provision. It is
integral to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing heavy vehicle
speeding.
The maximum penalty for an
individual offender is $4000,
a mid-range penalty under the
Bill.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 17 of the Model Act
on Heavy Vehicle Speeding
Compliance. Executive
officer liability is applied to
this offence through section 8.
This section imposes an
obligation on a prime
contractor or operator to
ensure observance on its own
206 Duty of part and that of all relevant
prime parties with the obligation in
contractor or section 204. Imposition of
operator not to derivative liability is justified
cause driver to in on the same grounds as it
206(2) 206(2)
drive if is for those parties under
particular section 204.
Requirements
not complied This section is an extended
with liability provision. It is
integral to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing heavy vehicle
speeding.
The maximum penalty for an
individual offender is $4000,
a mid-range penalty under the
Bill.
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Law liability
Section 207 implements
section 20 of the Model Act
on Heavy Vehicle Speeding
Compliance. Executive
officer liability is applied to
this offence through section 8.
This section is an extended
liability provision. It is
integral to the regulatory
objective of ensuring heavy
vehicle safety through the
207 Duty to contribution it makes to
ensure driver's managing heavy vehicle
schedule will speeding.
not cause 207(1) 207(1)
driver to The physical elements of the
exceed speed offences are not exclusively
limit confined to the actions and
judgement of a given
individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $10000
for an offence against
section 207 and $4000 for an
offence against section 208.
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Law liability
Section 208 implements
section 20 of the Model Act
on Heavy Vehicle Speeding
Compliance. Executive
officer liability is applied to
this offence through section 8.
It is an extended liability
provisions that creates a duty
208 Duty not to
to take all reasonable steps to
cause driver to
ensure their activities will not
drive if
cause speeding and prescribes
particular 208(1) 208(1)
specific minimum mandatory
Requirements
steps to be taken to prevent
not complied
inappropriate scheduling. It is
with
integral to the regulatory
objective of ensuring heavy
vehicle safety.
The prescription of this
offence for derivative liability
is justified on the same
grounds as the offence in
section 207(1)
The offence implements
section 22 of the Model Act
on Heavy Vehicle Speeding
209 Duty to Compliance. Executive
ensure loading officer liability is applied to
arrangements this offence through section 8.
will not cause 209(1) 209(1) This section is an extended
driver to liability provision that creates
exceed speed an obligation to safely
limit manage speeding vehicles. It
is integral to the regulatory
objective of ensuring heavy
vehicle safety.
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636(1) 636(2)
Law liability
The physical elements of the
offence are not exclusively
confined to the actions and
judgement of a given
individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
This section implements
section 25 of the Model Act
on Heavy Vehicle Speeding
Compliance. Executive
officer liability is applied to
this offence through section 8.
This section is an extended
212 Duty to liability provision. It is
ensure terms of integral to the regulatory
consignment objective of ensuring heavy
212(1), 212(1),
will not cause vehicle safety through the
212(2) 212(2)
driver to contribution it makes to
exceed speed managing heavy vehicle
limit speeding.
The physical elements of the
offence are not exclusively
confined to the actions and
judgement of a given
individual (driver or
otherwise) and executive
officers can therefore
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
reasonably control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill
This section implements
section 25 of the Model Act
on Heavy Vehicle Speeding
Compliance. Executive
officer liability is applied to
this offence through section 8.
This section is an extended
liability provision. It is
integral to the regulatory
objective of ensuring heavy
vehicle safety through the
213 Duty not to contribution it makes to
make a demand managing heavy vehicle
that may result speeding.
213 213
in driver
exceeding the The physical elements of the
speed limit offence are not exclusively
confined to the actions and
judgement of a given
individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
This section implements
section 26 of the Model Act
on Heavy Vehicle Speeding
Compliance. Executive
officer liability is applied to
this offence through section 8.
This section is an extended
liability provision that creates
a duty to safely manage
speeding vehicles. It is
integral to the regulatory
objective of ensuring heavy
vehicle safety.
The physical elements of the
offence are not exclusively
215 Particular confined to the actions and
requests etc. 215 215 judgement of a given
prohibited individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The range parties on whom
the obligation is imposed and
the nature of the obligation
itself mean the offence is not
exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill
This section implements
section 27 of the Model Act
on Heavy Vehicle Speeding
Compliance. Executive
officer liability is applied to
this offence through section 8.
This section is an extended
liability provision. It is
integral to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing heavy vehicle
216 Particular speeding.
216(1), 216(1),
contracts etc.
216(2) 216(2) A broad range of natural
prohibited
persons may commit the
offences and bodies corporate
and these offences are largely
administrative in nature
(arising from contract
formation). The physical
elements of the offence are
not exclusively confined to
the actions and judgement of
a given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
The offence implements
section 27 of the Model Act
on Heavy Vehicle Speeding
Compliance. Executive
officer liability is applied to
this offence through section 8.
This section is an extended
liability provision. It is
integral to the regulatory
objective of ensuring heavy
219 Liability vehicle safety through the
of employer contribution it makes to
etc. for 219(1) 219(1) managing heavy vehicle
speeding speeding.
offence
The range parties on whom
the obligation is imposed and
the nature of the obligation
itself mean the offence is not
exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
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Law liability
A range of graduated offences
are provided under this
section up to a maximum
penalty for an individual
offender is $10000; the
second highest penalty
provided for under the Bill
Chapter 6 - Vehicle operations - driver fatigue
The offence implements
section 29 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8.
This section is an extended
liability provision that
imposes a duty on a party in
229 Duty of
the extended liability to
party in the
prevent driver driving while
extended
fatigued. It is integral to the
liability to 229(1) 229(1)
regulatory objective of
prevent driver
ensuring heavy vehicle safety.
driving while
fatigued The range parties on whom
the obligation is imposed and
the nature of the obligation
itself mean the offence is not
exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
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636(1) 636(2)
Law liability
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill
The offence implements
section 30 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that law.
This section is an extended
liability provision. It is
integral to the regulatory
230 Duty of objective of ensuring heavy
employer, vehicle safety through the
prime contribution it makes to
contractor or managing driver fatigue.
operator to
230(1) 230(1) The breadth of the duty and
ensure business
practices will range of parties to whom it
not cause applies means the elements of
driver to drive the offence are not
while fatigued exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 30 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that law.
This section is an extended
liability provision. It is
231 Duty of integral to the regulatory
employer not to objective of ensuring heavy
cause driver to vehicle safety through the
drive if contribution it makes to
231(1) 231(1) managing driver fatigue.
particular
requirements This offence may only be
not complied committed by an employer,
with and not a given individual
(driver or otherwise).
Executive officers can
therefore reasonably control
the relevant corporate
conduct.
The maximum penalty for an
individual offender is $4000,
a mid-range penalty under the
Bill
232 Duty of The offence implements
prime section 30 of the Heavy
contractor or Vehicle Driver Fatigue
operator not to National Model Legislation.
cause driver to Executive officer liability is
232(2) 232(2)
drive if applied to this offence
particular through section 8 of that
Requirements legislation.
not complied
with
571278B.I-16/4/2013 392 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
This section is an extended
liability provision. It is
integral to the regulatory
objective of ensuring heavy
vehicle safety.
The range of parties on whom
the obligation is imposed and
the nature of the obligation
itself mean the offence is not
exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $4000,
a mid-range penalty under the
Bill
The offence implements
section 31 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
233 Duty to applied to this offence
ensure driver's through section 8 of that
schedule will legislation.
233(1) 233(1)
not cause
driver to drive This section is an extended
while fatigued liability provision. It is
integral to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
571278B.I-16/4/2013 393 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 31 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
234 Duty not to
legislation.
cause driver to
drive if This section is an extended
particular 234(1) 234(1) liability provision. It is
Requirements integral to the regulatory
not complied objective of ensuring heavy
with vehicle safety through the
contribution it makes to
managing driver fatigue.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
235 Duty to section 32 of the Heavy
ensure terms of Vehicle Driver Fatigue
consignment 235(1), 235(1), National Model Legislation.
will not cause 235(2) 235(2) Executive officer liability is
driver to drive applied to this offence
while fatigued through section 8 of that
legislation.
571278B.I-16/4/2013 394 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
This section is an extended
liability provision. It is
integral to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill
The offence implements
section 32 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
236 Duty not to through section 8.
cause driver to
This section is an extended
drive if
liability provision. It is
particular 236(1) 236(1)
integral to the regulatory
Requirements
objective of ensuring heavy
not complied
vehicle safety through the
with
contribution it makes to
managing driver fatigue.
The maximum penalty for an
individual offender is $4000,
a mid-range penalty under the
Bill.
571278B.I-16/4/2013 395 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 32 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
237 Duty not to legislation.
make a demand
This section is an extended
that may result
237(1) 237(1) liability provision. It is
in driver
integral to the regulatory
driving while
objective of ensuring heavy
fatigued
vehicle safety through the
contribution it makes to
managing driver fatigue.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill
The offence implements
section 33 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
238 Duty to applied to this offence
ensure loading through section 8 of that
arrangements legislation.
238(1) 238(1)
will not cause
driver to drive This section is an extended
while fatigued. liability provision. It is
integral to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
571278B.I-16/4/2013 396 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill
The offence implements
section 33 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
239 Duty to
ensure drivers This section is an extended
can rest in 239(2) 239(2) liability provision. It is
particular integral to the regulatory
circumstances objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 34 of the Heavy
Vehicle Driver Fatigue
240 Particular
National Model Legislation.
requests etc. 240 240
Executive officer liability is
Prohibited
applied to this offence
through section 8 of that
legislation.
571278B.I-16/4/2013 397 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
This section is an extended
liability provision. It is
integral to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
The physical elements of the
offence are not exclusively
confined to the actions and
judgement of a given
individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill
The offence implements
section 34 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
241 Particular
241(1), 241(1), through section 8.
contracts etc.
241(2) 241(2) This section is an extended
Prohibited
liability provision. It is
integral to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
571278B.I-16/4/2013 398 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offences may be
committed by a broad range
of natural persons and bodies
corporate and these offences
are largely administrative in
nature (arising from contract
formation). The physical
elements of the offence are
not exclusively confined to
the actions and judgement of
a given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill
The offence implements
section 91 of the Heavy
Vehicle Driver Fatigue
261 Liability of National Model Legislation.
employer etc. Executive officer liability is
for driver's applied to this offence
contravention through section 8 of that
of maximum 261(2) 261(2) legislation.
work This section is an extended
requirement or liability provision. It is
minimum rest integral to the regulatory
requirement objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
571278B.I-16/4/2013 399 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The range of parties on whom
the obligation is imposed and
the nature of the obligation
itself mean the offence is not
exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The maximum penalty that
may be imposed for an
offence under this section is
$15000 for a critical risk
breach; the highest penalty
provided for under the Bill.
The offence implements
section 53 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
264 Duty of through section 8 of that
employer, legislation.
prime
This section is an extended
contractor,
264(2) 264(2) liability provision. It is
operator and
integral to the regulatory
scheduler to
objective of ensuring heavy
ensure driver
vehicle safety through the
compliance
contribution it makes to
managing driver fatigue.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
571278B.I-16/4/2013 400 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 101 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
The grounds on which a
permit may be cancelled are
set out in sections 280 and
281 and include cases where
the permit was dishonestly
obtained, or it is no longer
284 Return of assured of achieving the
284(2) 284(2)
permit outcomes intended at its grant
due to changing
circumstances
Failure to return a permit may
facilitate noncompliance with
the fatigue duties provided
under the Act and prejudices
the capacity of other duty
holders to manage their own
obligations.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
571278B.I-16/4/2013 401 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 94B of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
This section is an extended
liability provision. It is
integral to the regulatory
286 objective of ensuring heavy
Contravening vehicle safety through the
condition of contribution it makes to
286(1) 286(1) managing driver fatigue.
work, and rest
hours There is arguably a higher
exemption level of blameworthiness
arising from an offence under
this provision given it only
applies in circumstances
where the ordinary operation
of the Act has been suspended
through the issuing of a work
and rest hours exemption.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
571278B.I-16/4/2013 402 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 59 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
The obligation imposed under
310 Intelligent this section will apply to a
access limited range of service
reporting entity providers with specialist
must notify expertise.
record keeper if Failure to discharge the
310(2) 310(2)
approved obligation impacts the ability
electronic of other duty holders to
recording satisfy their legal
system requirements including the
malfunctioning management of driver safety.
It is integral to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
311 What
section 59 of the Heavy
record keeper
Vehicle Driver Fatigue
must do if
National Model Legislation.
electronic work 311(2) 311(2)
Executive officer liability is
diary
applied to this offence
destroyed, lost
through section 8 of that
or stolen
legislation.
571278B.I-16/4/2013 403 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The obligation imposed under
this section will apply to a
limited range of service
providers with specialist
expertise.
Failure to discharge the
obligation impacts the ability
of other duty holders to
satisfy their legal
requirements including the
management of driver safety.
It is integral to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 59 of the Heavy
Vehicle Driver Fatigue
312 What National Model Legislation.
record keeper Executive officer liability is
must do if applied to this offence
electronic work 312(2) 312(2) through section 8 of that
diary legislation.
destroyed, lost The obligation imposed under
or stolen this section will apply to a
limited range of service
providers with specialist
expertise.
571278B.I-16/4/2013 404 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
Failure to discharge the
obligation impacts the ability
of other duty holders to
satisfy their legal
requirements including the
management of driver safety.
It is integral to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 59 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
313 What
legislation.
record keeper
must do if The obligation in respect of
electronic work which liability arises is
313(2) 313(2)
diary not in relevant to the regulatory
working order objective of ensuring heavy
or vehicle safety through the
malfunctioning. contribution it makes to
managing driver fatigue.
The obligation imposed under
this section will apply to a
limited range of service
providers with specialist
expertise.
571278B.I-16/4/2013 405 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
Failure to discharge the
obligation impacts the ability
of other duty holders to
satisfy their legal
requirements including the
management of driver safety.
It is integral to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 76B of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
The obligation imposed under
314 How this section (to comply with
electronic work the conditions of use for the
314(3) ---
diary must be electronic work diary) applies
used to the actions of the driver and
is therefore largely under his
or her control. Given that
fact, it is unreasonable to
extend derivative liability to
an executive officer on the
basis of recklessness and the
offence is therefore not a
provision prescribed for the
purposes of section 636(2).
571278B.I-16/4/2013 406 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
Failure to discharge the
obligation impacts the ability
of the driver as well as other
duty holders to satisfy their
legal requirements including
the management of driver
safety. It is integral to the
regulatory objective of
ensuring heavy vehicle safety
through the contribution it
makes to managing driver
fatigue.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 61 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
315 Liability of
legislation.
employer etc.
for driver's This section establishes the
contravention 315(2) 315(2) primary extended liability
of particular offence to ensure compliance
requirements with the record-keeping
for this division obligations in the Bill.
It applies to a range of clearly
identified parties.
Accurate record keeping,
electronic or otherwise, is an
essential tool in the
management and self-
571278B.I-16/4/2013 407 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
management of fatigue in
drivers of heavy vehicles.
The records produced also
provide enforcement agencies
with the necessary
information to ensure
compliance.
The obligation in respect of
which liability arises is
relevant to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
The range parties of parties on
whom the obligation is
imposed and the nature of the
obligation itself mean the
offence is not exclusively
confined to the actions and
judgement of a given
individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
571278B.I-16/4/2013 408 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 62 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
The offence contemplates
the contracting out of the
obligations under
subsection (1).
Accurate record keeping,
electronic or otherwise, is an
essential tool in the
management and self-
319 Records
management of fatigue in
record keeper 319(1) 319(1)
drivers of heavy vehicles.
must have
The records produced also
provide enforcement agencies
with the necessary
information to ensure
compliance.
The obligation in respect of
which liability arises is
relevant to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
571278B.I-16/4/2013 409 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 62 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
Accurate record keeping,
electronic or otherwise, is
an essential tool in the
management and self-
management of fatigue in
drivers of heavy vehicles.
321Records
321(1), 321(1), The records produced also
record keeper
321(2) 321(2) provide enforcement agencies
must have with the necessary
information to ensure
compliance.
The obligations in respect of
which liability arises are
relevant to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution the make to
managing driver fatigue.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
571278B.I-16/4/2013 410 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 62 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
The obligation in respect of
which liability arises is
relevant to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
322 General
Requirements The offence contemplates the
about driver contracting out of the
322(4) 322(4) obligations under subsection
giving
information to (1) and the use of records
record keeper produced through the use of
an electronic work diary.
Given the involvement of
these parties, it is
unreasonable to exclude
derivative liability for this
offence on the basis the
elements of the offence are
primarily or exclusively
within the knowledge and
control of the driver or
another given individual. .
The maximum penalty for an
individual offender is $3000,
a low-range penalty under the
Bill.
571278B.I-16/4/2013 411 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 62 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
Accurate record keeping,
electronic or otherwise, is an
essential tool in the
323 management and self-
Requirements management of fatigue in
about driver drivers of heavy vehicles.
giving The records produced also
323(3) 323(3) provide enforcement agencies
information to
record keeper if with the necessary
driver changes information to ensure
record keeper compliance.
The obligation in respect of
which liability arises is
relevant to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
The maximum penalty for an
individual offender is $3000,
a low-range penalty under the
Bill.
571278B.I-16/4/2013 412 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 62 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
Accurate record keeping,
electronic or otherwise, is an
essential tool in the
management and self-
324 Record management of fatigue in
keeper must drivers of heavy vehicles.
give printouts The records produced also
324(2) 324(2) provide enforcement agencies
of information
from electronic with the necessary
work diary information to ensure
compliance.
The obligation in respect of
which liability arises is
relevant to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
The maximum penalty for an
individual offender is $3000,
a low-range penalty under the
Bill.
571278B.I-16/4/2013 413 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 66 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
Accurate record keeping,
electronic or otherwise, is
an essential tool in the
management and self-
management of fatigue in
327 Possession drivers of heavy vehicles.
of purported The records produced also
327 327
work records provide enforcement agencies
etc. prohibited with the necessary
information to ensure
compliance.
The offence may be
committed by drivers or
record keepers but is justified
for retention primarily on the
basis of the seriousness of the
offence involved.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
571278B.I-16/4/2013 414 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 68 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
Accurate record keeping,
electronic or otherwise, is
an essential tool in the
management and self-
management of fatigue in
drivers of heavy vehicles.
The records produced also
provide enforcement agencies
with the necessary
328 False
information to ensure
representation
compliance.
about work 328 ---
records Given the commission of an
prohibited offence is likely to
substantially involve the
actions and judgement of a
given individual it would be
unreasonable to extend
derivative liability to an
executive officer on the basis
of recklessness by specifying
it for the purposes of section
636(2). However, given the
seriousness of the offence, the
breadth of circumstances in
which it could be committed
and range of potential
offenders suggests it is
reasonable for inclusion as an
offence specified for the
purposes of section 636(1).
571278B.I-16/4/2013 415 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
The offence implements
section 67 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
Accurate record keeping,
electronic or otherwise, is an
essential tool in the
management and self-
management of fatigue in
329 Defacing drivers of heavy vehicles.
or changing The records produced also
329 ---
work records provide enforcement agencies
etc. prohibited with the necessary
information to ensure
compliance.
Given the commission of an
offence is likely to
substantially involve the
actions and judgement of a
given individual it would be
unreasonable to extend
derivative liability to an
executive officer on the basis
of recklessness by specifying
it for the purposes of section
636(2). However, given the
571278B.I-16/4/2013 416 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
seriousness of the offence, the
breadth of circumstances in
which it could be committed
and range of potential
offenders suggests it is
reasonable for inclusion as an
offence specified for the
purposes of section 636(1).
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
The offence implements
section 69 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
Accurate record keeping,
330 Making
electronic or otherwise, is an
entries in
essential tool in the
someone else's 330(1) ---
management and self-
work records
management of fatigue in
prohibited
drivers of heavy vehicles.
The records produced also
provide enforcement agencies
with the necessary
information to ensure
compliance.
Given the commission of an
offence is likely to
substantially involve the
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Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
actions and judgement of a
given individual it would be
unreasonable to extend
derivative liability to an
executive officer on the basis
of recklessness by specifying
it for the purposes of section
636(2). However, given the
seriousness of the offence, the
breadth of circumstances in
which it could be committed
and range of potential
offenders suggests it is
reasonable for inclusion as an
offence specified for the
purposes of section 636(1).
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
The offence implements
section 70 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
331 applied to this offence
Destruction of through section 8 of that
particular work 331 --- legislation.
records The obligation in respect of
prohibited which liability arises is
relevant to the regulatory
objective of ensuring heavy
vehicle safety through the
contribution it makes to
managing driver fatigue.
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Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
Given the commission of an
offence is likely to
substantially involve the
actions and judgement of a
given individual it would be
unreasonable to extend
derivative liability to an
executive officer on the basis
of recklessness by specifying
it for the purposes of section
636(2). However, given the
seriousness of the offence, the
breadth of circumstances in
which it could be committed
and range of potential
offenders suggests it is
reasonable for inclusion as an
offence specified for the
purposes of section 636(1).
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
There is no directly
corresponding provision for
this offence in the model laws
on which the Act is based.
332 Offence to
remove pages Accurate record keeping,
332 --- electronic or otherwise, is an
from written
work diary essential tool in the
management and self-
management of fatigue in
drivers of heavy vehicles.
The records produced also
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
provide enforcement agencies
with the necessary
information to ensure
compliance.
Given the commission of an
offence is likely to
substantially involve the
actions and judgement of a
given individual it would be
unreasonable to extend
derivative liability to an
executive officer on the basis
of recklessness by specifying
it for the purposes of section
636(2). However, given the
seriousness of the offence, the
breadth of circumstances in
which it could be committed
and range of potential
offenders suggests it is
reasonable for inclusion as an
offence specified for the
purposes of section 636(1).
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
335 Person The offence implements
must not section 71 of the Heavy
tamper with Vehicle Driver Fatigue
approved 335(1) 335(1) National Model Legislation.
electronic Executive officer liability is
recording applied to this offence
system through section 8.
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Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
Accurate record keeping,
electronic or otherwise, is an
essential tool in the
management and self-
management of fatigue in
drivers of heavy vehicles.
The records produced also
provide enforcement agencies
with the necessary
information to ensure
compliance with regulatory
obligations.
The range parties on whom
the obligation is imposed and
the nature of the obligation
itself mean the offence is not
exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
336 Person The offence implements
using approved section 71 of the Heavy
electronic Vehicle Driver Fatigue
recording National Model Legislation.
336(1) 336(1)
system must Executive officer liability is
not permit applied to this offence
tampering with through section 8 of that
it legislation.
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Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
Accurate record keeping,
electronic or otherwise, is an
essential tool in the
management and self-
management of fatigue in
drivers of heavy vehicles.
The records produced also
provide enforcement agencies
with the necessary
information to ensure
compliance with regulatory
obligations.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
The offence implements
section 71 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
337 Intelligent through section 8 of that
access legislation.
reporting entity
must not permit Accurate record keeping,
tampering with 337(2) 337(2) electronic or otherwise, is an
approved essential tool in the
electronic management and self-
recording management of fatigue in
system drivers of heavy vehicles.
The records produced also
provide enforcement agencies
with the necessary
information to ensure
compliance with regulatory
obligations.
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Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
Accurate record keeping,
electronic or otherwise, is an
essential tool in the
management and self-
management of fatigue in
drivers of heavy vehicles.
The records produced also
provide enforcement agencies
with the necessary
information to ensure
compliance with regulatory
obligations.
The nature of the duty is
341 Period for 341(1), 341(1), largely administrative and this
which, and in 341(2), 341(2), fact, in combination with the
which, records 341(3), 341(3), range of parties to whom it
must be kept 341(4) 341(4) applies means the elements of
the offence are not
exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
Penalties for contraventions
of this section range from
$3000 (a low range penalty)
to $6000 (a mid range
penalty)
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 74A of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
Accurate record keeping,
electronic or otherwise, is an
essential tool in the
management and self-
management of fatigue in
drivers of heavy vehicles.
The records produced also
provide enforcement agencies
347 Placing with the necessary
electronic work 347(2), information to ensure
---
diary label on 347(3) compliance with regulatory
device obligations. An offence under
this section may misrepresent
the authorisation of capability
of an electronic work diary
and interfere with those
objectives. The nature of the
offence suggests however that
it would be unreasonable to
specify it for the purposes of
section 636 (2).
The nature of the obligation is
largely administrative and this
fact, in combination with the
range of parties to whom it
applies means the elements of
the offence are not
exclusively confined to the
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
actions and judgement of a
given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
The offence implements
section 74A of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
350 Prohibition
on using device Accurate record keeping,
as electronic electronic or otherwise, is an
work diary if it essential tool in the
is not, and is 350(1), 350(1), management and self-
not a part of an 350(2) 350(2) management of fatigue in
approved drivers of heavy vehicles.
electronic The records produced also
recording provide enforcement agencies
system. with the necessary
information to ensure
compliance with regulatory
obligations.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 76A of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
Accurate record keeping,
electronic or otherwise, is an
essential tool in the
management and self-
management of fatigue in
drivers of heavy vehicles.
The records produced also
provide enforcement agencies
354
with the necessary
Requirements 354(3), 354(3),
information to ensure
if approval 354(5) 354(5)
compliance with regulatory
amended
obligations.
This offence only arises
where in the Regulator's
opinion, the amendment will,
or is likely to, significantly
affect the way the electronic
recording system the subject
of the approval is to be used,
and on recept of the relevant
notice. Failure to comply with
a requirement therefore self-
evidently raises serious safety
concerns as well as
prejudicing the ability of other
duty holders to manage their
obligations under the Act.
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 75A of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
Accurate record keeping,
electronic or otherwise, is an
essential tool in the
management and self-
management of fatigue in
355 355(2), 355(2), drivers of heavy vehicles.
Requirements 355(4), 355(4), The records produced also
if approval 355(6), 355(6), provide enforcement agencies
cancelled 355(8) 355(8) with the necessary
information to ensure
compliance with regulatory
obligations
Noncompliance with the
obligations in section 355
may prejudice the ability of
other duty holders to manage
their own obligations fatigue
management obligations.
The grounds on which such
an approval can be cancelled
are set out in section 352 and
strongly suggest that
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Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
continued use of the approval
after cancellation is likely to
be unsafe.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 101 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8.
Failure to return a permit may
facilitate noncompliance with
the fatigue duties provided
373 Return of under the Act. And prejudice
work diary the capacity of other duty
373(2) --- holders to manage their own
exemption
(permit) obligations.
Given the offence may only
be committed in response to a
notice provided under the Act,
it would be inappropriate to
prescribe it for the purposes
of section 636(2)
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 94B of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
Work diary exemptions may
only be issued where the
Regulator is satisfied the class
of work to which the
exemption is to apply will not
pose:
· a significant risk to
375 public safety; or
Contravening · a significant risk of
condition of 375 375 the drivers to whom
work diary the exemption is to
exemption apply driving on a
road while impaired
by fatigue.
The conditions imposed in the
exemption are likely to be
included to mitigate the above
risks. By implication
contravening such a condition
is likely to produce the
adverse safety outcomes the
conditions sought to avoid.
There are sound arguments
such noncompliance should
attract additional
blameworthiness on the basis
the ordinarily applicable rules
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
of operation have been
suspended on the basis the
conditions of the concession
would be complied with.
Given the range of
circumstances in which the
offence may be committed
there is no basis to assume the
physical elements of the
offence will inevitably be
exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise). Executive officers
can therefore reasonably
control the relevant corporate
conduct in most if not all
plausible cases.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 60 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
396 Owner applied to this offence
must maintain 396(2) 396(2) through section 8 of that
odometer legislation.
A properly functioning
odometer is likely to remain
necessary for the majority of
fatigue regulated duty holders
to meet their obligations
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
under the Act for the
foreseeable future.
The absence of such will
compromise the capacity of
drivers and other parties to
safely manage their record
keeping and fatigue
management obligations with
obvious safety implications.
Given this offence arises in
relation to the mechanical
condition of the vehicle there
is no basis to assume the
physical elements of the
offence will inevitably be
exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise). Executive officers
can therefore reasonably
control the relevant corporate
conduct in most if not all
plausible cases.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 60 of the Heavy
398 What Vehicle Driver Fatigue
owner must do National Model Legislation.
398(2) 398(2)
if odometer Executive officer liability is
malfunctioning applied to this offence
through section 8 of that
legislation.
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Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The prescription of this
offence for derivative liability
is justified on the same
grounds as the offence in
section 396.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 60 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
The prescription of this
offence for derivative liability
399 What is justified on the same
employer or grounds as the offence in
operator must 399(2) 399(2) section 396.
do if odometer This offence may only be
malfunctioning committed by an employer,
and not a given individual
(driver or otherwise).
Executive officers can
therefore reasonably control
the relevant corporate
conduct.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
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Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
Chapter 7 - Intelligent Access Program
The offence implements
section 10 of the Model
Legislation -- Intelligent
Access Program. Executive
officer liability is applied to
this offence through section 5
of that legislation.
The IAP may be used to
404 Offence to
monitor a broad range of
give false or
conditions potentially
misleading
404(1), 404(1), including speed and fatigue
information to
404(4) 404(4) management. The provision
intelligent
of misleading information
access service
may compromise the integrity
provider
of the monitoring system as a
whole to ensure compliance
with these conditions with the
obvious safety implications.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
The offence implements
section 11 of the Model
405 Advising Legislation -- Intelligent
vehicle driver Access Program. Executive
of collection of officer liability is applied to
information by 405(1) --- this offence through section 5
intelligent of that legislation.
access service The maximum penalty for an
provider individual offender is $6000,
a mid-range penalty under the
Bill
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 12 of the Model
Legislation -- Intelligent
Access Program. Executive
officer liability is applied to
this offence through section 5
of that legislation.
406 Reporting Failure to abide by this
system 406(1), obligation may compromise
406(1)
malfunctions to 406(2) the integrity of the monitoring
Regulator system as a whole to ensure
compliance with these
conditions with the obvious
safety implications.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 15 of the Model
Legislation -- Intelligent
Access Program. Executive
officer liability is applied to
417 Giving this offence through section 5
intelligent of that legislation.
access auditor 417 --- The nature of the offence
access to suggests it would unlikely if
records not impossible to arise in
circumstances of (mere)
recklessness so it is
inappropriate to prescribe
it for the purposes of
sections 636(2).
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Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 20 of the Model
Legislation -- Intelligent
Access Program. Executive
422 Reporting officer liability is applied to
relevant this offence through section 5
422(2) 422(2)
contraventions of that legislation.
to Regulator
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 21 of the Model
Legislation -- Intelligent
Access Program. Executive
officer liability is applied to
this offence through section 5
423 Reporting
of that legislation.
tampering or
suspected Failure to abide by this
tampering with obligation may compromise
423(1) 423(1)
approved the integrity of the monitoring
intelligent system as a whole to ensure
transport compliance with these
system. conditions with the obvious
safety implications.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 21 of the Model
Legislation -- Intelligent
424 Restriction Access Program. Executive
on disclosing officer liability is applied to
information this offence through section 5
about of that legislation.
tampering or
424(1), 424(1), The commission of an offence
suspected
424(3) 424(3) under this section my impede
tampering with
the proper administration of
approved
the Act and compromise
intelligent
compliance activity.
transport
system. The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 42 of the Model
Legislation -- Intelligent
Access Program. Executive
officer liability is applied to
this offence through section 5
451 Reporting
of that legislation.
contraventions
by intelligent The commission of an offence
451 451
access service under this section my impede
providers to the proper administration of
TCA the Act and compromise
compliance activity.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 43 of the Model
Legislation -- Intelligent
Access Program. Executive
452 Reporting
officer liability is applied to
tampering or
this offence through section 5
suspected
of that legislation.
tampering with
approved The commission of an offence
452 452
intelligent under this section my impede
transport the proper administration of
system to the Act and compromise
Regulator or compliance activity.
TCA
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The commission of an offence
under this section my impede
453 Restriction the proper administration of
on disclosing the Act and compromise
information compliance activity.
about
The commission of an offence
tampering or
453(1), 453(1), under this section my impede
suspected
453(2) 453(2) the proper administration of
tamping with
the Act and compromise
approved
compliance activity.
intelligent
transport The maximum penalty for an
system individual offender is $6000,
a mid-range penalty under the
Bill.
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Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 45 of the Model
Legislation -- Intelligent
Access Program. Executive
officer liability is applied to
this offence through section 5
of that legislation.
Failure to abide by this
obligation may compromise
the integrity of the monitoring
system as a whole to ensure
compliance with these
conditions with the obvious
safety implications.
454 Offence to
tamper with The breadth of the duty and
approved 454(1), 454(1), range of parties to whom it
intelligent 454(2) 454(2) applies means the elements of
transport the offence are not
system exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The maximum penalty for an
individual offender for a
contravention of subsection
(1) and (2) is $10000; the
second highest penalty
provided for under the Heavy
Vehicle National Law and
$8000 (a high range penalty)
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
Chapter 8 - Accreditation
The offence implements
sections 80 and 85 of the
Heavy Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
AFM and BFM accreditation
represent alternative
compliance arrangements to
facilitate more intensive
operations and may be subject
to a broad range of conditions.
467 Noncompliance with the
Compliance conditions on which the
with conditions accreditation is issued avoids
of BFM 467 467 the mitigating actions that are
accreditation or put in place to manage the
AFM risks associated with these
accreditation more intensive operations.
There are sound arguments
such noncompliance should
attract additional
blameworthiness on the basis
the ordinarily applicable rules
of operation have been
suspended on the basis the
conditions of the concession
would be complied with.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
571278B.I-16/4/2013 439 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
sections 81 and 87 of the
Heavy Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
Given the range of
circumstances in which the
offence may be committed
there is no basis to assume
the physical elements of the
offence will inevitably be
exclusively confined to the
470 General actions and judgement of a
470(2), 470(2), given individual (driver or
Requirements
470(3), 470(3), otherwise). Executive officers
applying to
470(4), 470(4), can therefore reasonably
operator with
470(5), 470(5), control the relevant corporate
heavy vehicle
470(6) 470(6) conduct in most if not all
accreditation
plausible cases.
The conditions that will be
attached to the accreditation
will most likely be directly
relevant to ensuring the
proper management of the
work and rest of the driver,
an issue with obvious safety
implications.
There are sound arguments
such noncompliance should
attract additional
blameworthiness on the basis
the ordinarily applicable rules
of operation have been
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
suspended on the basis the
conditions of the concession
would be complied with.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
The offence implements
section 82 and 88 of the
Heavy Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
471 Operator
Failure to provide the notice
must give
may facilitate non-compliance
notice of
in circumstances where the
amendment,
471(2) 471(2) Regulator has determined the
suspension or
accreditation should be
ending of
suspended or amended.
heavy vehicle
This may also adversely
accreditation
impact the ability of other
duty holders to safely manage
their own activities and their
legal obligations.
(2) The maximum penalty for
an individual offender is
$6000, a mid-range penalty
under the Bill
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Heavy Vehicle National Law Application Bill 2013
Annexure 1
Section of this Basis for not exempting
636(1) 636(2)
Law liability
The offence implements
section 101 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
Executive officer liability is
applied to this offence
through section 8 of that
legislation.
Failure to return the certificate
may facilitate non-compliance
476 Return of
in circumstances where the
accreditation 476(2) 476(2)
Regulator has determined the
certificate
accreditation should be
suspended. This may also
adversely impact the ability of
other duty holders to safely
manage their own activities
and their legal obligations.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill.
The offence implements
section 103 of the Heavy
Vehicle Driver Fatigue
National Model Legislation.
478(1), Executive officer liability is
478 Offences
478(2), applied to this offence
relating to ---
478(3), through section 8
auditors
478(4)
The maximum penalty for an
individual offender is $10000,
the second highest penalty
provided for under the Bill.
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Law liability
Chapter 9- Enforcement
This section implements
section 28 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill.
The commission of an offence
under this section my impede
the proper administration of
514 Direction the Act and compromise
not to move or compliance activity.
interfere with
heavy vehicle 514(3) --- Given the commission of the
etc. to enable offence is likely to
exercise of substantially involve the
other powers actions and judgement of a
given individual (driver or
operator), it would be
unreasonable to extend
derivative liability to an
executive officer on the basis
of recklessness by specifying
it under section 636(2)
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
This section implements
section 29 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill.
The commission of an offence
under this section my impede
the proper administration of
the Act and compromise
516 Direction compliance activity.
to move heavy
vehicle to 516(3) --- Given the commission of the
enable exercise offence is likely to
of other powers substantially involve the
actions and judgement of a
given individual (driver or
operator), it would be
unreasonable to extend
derivative liability to an
executive officer on the basis
of recklessness by specifying
it under section 636(2)
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
This section implements
section 30 of the Road
517 Direction
Transport Reform
to move heavy
(Compliance and
vehicle if 517(4) ---
Enforcement) Bill 2003.
causing harm
Executive officer liability
etc.
attached to these offences
under section 149 of that Bill.
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Section of this Basis for not exempting
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Law liability
The commission of an offence
under this section my impede
the proper administration of
the Act and compromise
compliance activity.
Given the commission of the
offence is likely to
substantially involve the
actions and judgement of a
given individual (driver or
operator), it would be
unreasonable to extend
derivative liability to an
executive officer on the basis
of recklessness by specifying
it under section 636(2).
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
This section implements
Regulation 40 of the National
Transport Commission (Road
Transport Legislation --
Heavy Vehicles Registration
Regulations) Regulations
2006, Schedule 1.
528 Defective
528(3) --- These regulations were made
vehicle labels
under the Road Transport
Reform (Heavy Vehicles
Registration) Act 1997
(Cwth). This Act was
expressly contemplated as a
road law to which executive
officer liability may attach
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under section 149 of the
Road Transport Reform
(Compliance and
Enforcement) Bill 2003.
A defect notice the subject of
this offence may be issued
where the authorised officer
reasonably believes the
vehicle presents an imminent
and serious safety risk.
Accordingly, there are
substantial safety implications
for other road users should
such a direction be ignored.
While the range of
circumstances in which the
offence can be committed
justify extension of derivate
liability under section 636(1),
the act of removing or
defacing the label is likely to
be so far the product of the
actions and judgement of a
given individual (driver or
operator), it would be
unreasonable to extend
derivative liability to an
executive officer on the basis
of recklessness by specifying
it under section 636(2)
The maximum penalty for an
individual offender is $3000,
a low-range penalty under the
Bill.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
This section implements
Regulation 42 of the National
Transport Commission (Road
Transport Legislation --
Heavy Vehicles Registration
Regulations) Regulations
2006, Schedule 1. These
regulations were made under
the Road Transport Reform
(Heavy Vehicles Registration)
Act 1997 (Cwth). This Act
was expressly contemplated
as a road law to which
executive officer liability may
attach under section 149 of
529 Using
the Road Transport Reform
defective heavy
(Compliance and
vehicles
529 529 Enforcement) Bill 2003.
contrary to
vehicle defect A defect notice, defacement
notice or removal of which is the
subject of this offence, may
be issued where the
authorised officer reasonably
believes the vehicle presents
an imminent and serious
safety risk. Accordingly, there
are substantial safety
implications for other road
users should such a direction
be ignored.
The maximum penalty for an
individual offender is $3000,
a low-range penalty under the
Bill.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
This section implements
sections 82 and 85 of the
Road Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill.
Given the commission of the
533 Powers for
offence is likely to
minor risk
substantially involve the
breach of mass,
533(7) --- actions and judgement of a
dimension or
given individual (driver or
loading
operator), it would be
requirement
unreasonable to extend
derivative liability to an
executive officer on the basis
of recklessness by specifying
it under section 636(2)
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
This section implements
section 83 of the Road
Transport Reform
534 Powers for (Compliance and
substantial risk Enforcement) Bill 2003.
breach of mass, Executive officer liability
534(5) ---
dimension or attached to these offences
loading under section 149 of that Bill.
requirement
Given the powers are only
exercisable in relation to
substantial breaches, there are
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Section of this Basis for not exempting
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Law liability
substantial safety implications
for other road users should
such a direction be ignored.
Given the commission of an
offence is likely to
substantially involve the
actions and judgement of a
given individual (driver or
operator), it would be
unreasonable to extend
derivative liability to an
executive officer on the basis
of recklessness by specifying
it under section 636(2).
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
This section implements
section 84 of the Road
Transport Reform
(Compliance and
535 Powers for Enforcement) Bill 2003.
severe risk Executive officer liability
breach of mass, attached to these offences
535(5) --- under section 149 of that Bill.
dimension or
loading Given the powers are only
requirement exercisable in relation to
severe breaches, there are
substantial safety implications
for other road users should
such a direction be ignored.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
Given the commission of an
offence is likely to
substantially involve the
actions and judgement of a
given individual (driver or
operator), it would be
unreasonable to extend
derivative liability to an
executive officer on the basis
of recklessness by specifying
it under section 636(2)
An offence against this
section may result in the loss
or destruction of evidence,
compromising the capacity of
the Regulator to effectively
prosecute a range of offences
under the law.
The commission of an offence
under this section my impede
553 the proper administration of
Requirement of the Act and compromise
person in 553(3) --- compliance activity.
control of thing
to be seized Given fact the offence will be
enlivened only on the receipt
of a formal notice, specifying
recklessness as a basis for
extending derivative liability
appears inappropriate.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
This section implements
section 55 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill
An offence against this
section may result in the loss
or destruction of evidence,
compromising the capacity of
the Regulator to effectively
prosecute a range of offences
under the law.
558 Non The section expressly
compliance 558(1), 558(1), contemplates the commission
with embargo 558(3) 558(3) of an offence through the
notice issuing of instructions, a
matter within the ordinary
prerogatives of management.
Given the physical elements
of the offence are not
exclusively confined to the
actions and judgement of a
given individual (driver or
otherwise) executive officers
can reasonably be expected to
control the relevant corporate
conduct and derivative
liability appropriate.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
The commission of an offence
under this section my impede
the proper administration of
the Act and compromise
compliance activity.
Given the breadth of the range
559 Power to of circumstances in which the
559(3), 559(3),
secure power may be exercised and
559(4), 559(4),
embargoed an offence committed, the
559(5) 559(5)
thing exclusion of derivative
liability would be
inappropriate.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
This section implements
section 42 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
567 Power to under section 149 of that Bill
require name, This offence extends to
567(4) ---
address and responsible persons and other
date of birth persons involved in
commission of an offence or
may possess information to
assist in the investigation of
an offence against this law.
It is conceivable therefore
that there are circumstances
in which the relevant person
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
may be subject to the direct
control of their employer or
whose behaviour may be able
to be otherwise influenced by
their employer. On this basis
there is justification for
extending derivative liability
to an executive officer.
Given the offence inevitably
involves the participation of a
driver at some level, it would
not be reasonable to further
extend liability to an
executive officer on the basis
of recklessness alone.
Obtaining this information in
an accurate and timely way
may be critical to the
investigation of serious
offences under the law, and
the provisions justified on
being central to the regulatory
scheme on that basis.
The maximum penalty for an
individual offender is $3000,
a low-range penalty under the
Bill.
This section implements
568 Power to
sections 41 and 44 of the
require
Road Transport Reform
production of
(Compliance and
document etc. 568(7) ---
Enforcement) Bill 2003.
required to be
Executive officer liability
in drivers
attached to these offences
possession
under section 149 of that Bill
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
While an offence against this
section may only be
committed by a driver, it may
be committed in
circumstances (particularly
for 568(1)(b)) where it would
be reasonably expected the
driver was under the
supervision of his or her
employer. On this basis it is
reasonable to extend
derivative liability to en
executive officer where their
management systems fail to
adequately ensure
compliance. The documents
that may be the subject of
such a requirement are critical
evidential tools in
determining compliance
(work diaries etc.).
The commission of an offence
under this section my impede
the proper administration of
the Act and compromise
compliance activity.
Given the offence inevitably
involves the participation of a
driver at some level, it would
not be reasonable to further
extend liability to an
executive officer on the basis
of recklessness alone.
The maximum penalty for an
individual offender is $3000,
a low-range penalty under the
Bill.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
This section implements
sections 41 and 44 of the
Road Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill.
The offences can be
committed by the full range of
responsible persons and in
569 Power to relation to a similarly broad
require spectrum of documents and
569(2), devices.
production of ---
569(7)
documents etc. This power is essential to
generally facilitate the investigation of
most if not all offences under
the Bill. The commission of
an offence under this section
my impede the proper
administration of the Act and
compromise compliance
activity.
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
This section implements
section 45 of the Road
570 Power to
Transport Reform
require
(Compliance and
information 570(3) ---
Enforcement) Bill 2003.
about heavy
Executive officer liability
vehicles
attached to these offences
under section 149 of that Bill
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636(1) 636(2)
Law liability
Offences may be committed
by responsible persons and
the requirements issued under
this section may extend to
information about persons,
vehicle and loads extending
well beyond the immediate
knowledge of a driver.
The commission of an offence
under this section my impede
the proper administration of
the Act and compromise
compliance activity.
Given the above it is
reasonable to assume the
management of the response
to this issue could be
regulated through the ordinary
internal management
processes of a corporation
and it would be reasonable
to extend derivative liability
for the purposes of section
636(1). However, given the
offence may be committed in
on the basis of failing to
provide the personal
information in subsection
(1)(b), it would not be
reasonable to prescribe this
section for the purposes of
subsection 636(2).
The maximum penalty for an
individual offender is $6000,
a mid-range penalty under the
Bill
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
This section implements
section 119 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill.
The stated action to be
implemented through service
of an improvement notice
may and likely will extend
beyond the operation of a
heavy vehicle or other such
localised matters.
573 Implementing the terms of
Contravention the notice and ensuring
of 573(1) 573(1) observation of the relevant
improvement obligations to make certain
notice there is no repetition or
continuation of the offence is
matter executive officers can
reasonably control. Given the
above it is reasonable to
extend derivative liability
under this section.
The commission of an offence
under this section my impede
the proper administration of
the Act and compromise
compliance activity.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
This section implements
section 46 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill.
Failure to comply with a
requirement issued under this
provision inhibits the
effective enforcement of the
law, and may render the
performance of an authorised
officer's functions more
577 Power to dangerous.
require 577(4) ---
reasonable help The obligation imposed under
this section is most likely to
an individual driver and is
therefore largely under his or
her control. Given that fact, it
is unreasonable to extend
derivative liability to an
executive officer on the basis
of recklessness and the
offence is therefore not a
provision prescribed for the
purposes of section 636(2).
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
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636(1) 636(2)
Law liability
Chapter 10 - Sanctions and provisions about liability for
offences
This section implements
section 137 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill.
The purpose of this
instrument is to adopt a
proactive approach to
improving the performance
of systematic or persistent
604 offenders. It allows for the
Contravention imposition of conditions that
of supervisory 604 604 necessarily co-ordinate
intervention managerial involvement
order (e.g. the acceptance of
supervision by an auditor,
appointing or removing
certain staff from particular
positions, implementing
training and supervision as
required, installing
monitoring, compliance
management or operational
equipment, implementing
practices, systems or
procedures). Executive
officers can reasonably be
expected to be to control these
aspects of corporate conduct.
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Law liability
The circumstances in which
the orders may be made
provide a strong argument for
the extension of derivative
liability for corporate non-
compliance.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
This section implements
section 139 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill.
This sanction is reserved for
systematic or persistent
610 offending against the Bill and
Contravention is the most sever sanction
610 610
of prohibition available under the law. It
order may be contravened through
the person subject to the order
and a person who ignores it in
employing such a person.
The management of
employment relationships is
by definition a managerial
function and executive
officers can reasonably be
expected to be to control the
relevant corporate conduct
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Law liability
The past behaviour of a
person subject to the order
suggests that their continuing
involvement in the industry is
likely to lead to a continuation
or repeat of behaviour which
is likely to have had
significant adverse safety or
financial implications
previously.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
Chapter 13 - General
This section implements
section 181 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill.
699
Discrimination The offence may be made can
699(1), 699(1), only be committed by an
against or
699(2) 699(2) employer, and that employer
victimisation of
employees may be a natural person or
body corporate. The
termination of employment
relationships is by definition a
managerial function and
Executive officers can
reasonably be expected to be
to control the relevant
corporate conduct.
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Law liability
The victimisation of
employees operates to
prejudice the proper
enforcement of provisions of
the Bill and in acting as a
deterrent to the notification of
noncompliance, seeks to
facilitate evasion of
regulatory obligations.
The underlying offences in
respect of which behaviour is
protected extends from the
minor, to the most critical of
offences, under the Bill.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
This section implements
section 181 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
700 Order for under section 149 of that Bill.
damages or 700(4) 700(4)
reinstatement An order able to be made
under this section relates to
the payment of a financial
penalty and or management of
the employment relationship
with the employee(s)
concerned. Both matters are
inherently managerial
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Law liability
functions and executive
officers can reasonably be
expected to be to control the
relevant corporate conduct.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
This section implements
section 183 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill.
The documents referred to
throughout this section maybe
produced by a range of parties
and the offence is therefore
702 False or
702(1), not necessarily limited to the
misleading ---
702(3) actions judgement and control
documents
of a given individual (driver
or otherwise). Executive
officers can reasonably be
expected to be to control the
relevant corporate conduct.
The offences under this
section require proof of
sufficient knowledge of or
recklessness of the falsity of
the relevant documents so as
to make it unreasonable to
extend derivative liability on
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Law liability
the basis of recklessness
alone, to an executive officer.
The offence may be
committed in relation to all
domains of regulation under
the Bill and extension of
derivative liability is
justifiable on the same
grounds as operating in
contravention of the relevant
authority The making of such
representations distorts the
market for transport services,
prejudices the capacity of
other duty holders to manage
their own obligations and
operates to conceal and
promote noncompliance.
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
This section implements
section 184 of the Road
703 False or Transport Reform
misleading (Compliance and
information Enforcement) Bill 2003.
given by Executive officer liability
703(1),
responsible --- attached to these offences
703(2)
person to under section 149 of that Bill.
another
responsible The information referred to
person throughout this section is not
limited to the making of oral
statements and is therefore not
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Law liability
limited to the actions and
judgement of a given
individual (driver or
otherwise). Executive officers
can reasonably be expected to
be to control the relevant
corporate conduct.
The offences under this
section require proof of
sufficient knowledge of or
recklessness of the falsity of
the relevant information so as
to make it unreasonable to
extend derivative liability on
the basis of recklessness
alone, to an executive officer.
The offence may be
committed in relation to all
domains of regulation under
the Bill and extension of
derivative liability is
justifiable on the same
grounds as operating in
contravention of the relevant
authority The making of such
representations distorts the
market for transport services,
prejudices the capacity of
other duty holders to manage
their own obligations and
operates to conceal and
promote noncompliance.
The penalties for offences
under this section $10000 and
$8000 mid to high range
penalties under the law
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Section of this Basis for not exempting
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Law liability
The representations
mentioned in 704(1) are not
limited to oral statements.
Similarly, the possession of
the relevant documents is not
limited to the actions and
judgement of a given
individual (driver or
otherwise) and executive
officers can therefore
reasonably control the
relevant corporate conduct.
The offences under this
section require proof of
sufficient knowledge of the
704 Offence to relevant facts (explicitly in
falsely the case of the offence under
704(1),
represent that subsection 704(3)) so as to
704(2), ---
heavy vehicle make it unreasonable to
704(3)
authority is extend liability on the basis
held of recklessness alone, to an
executive officer.
The offence may be
committed in relation to all
domains of regulation under
the Bill and extension of
derivative liability is
justifiable on the same
grounds as operating in
contravention of the relevant
authority The making of such
representations distorts the
market for transport services
and operates to conceal and
arguably promote
noncompliance.
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Law liability
The maximum penalty for an
individual offender is $10000;
the second highest penalty
provided for under the Bill.
This section implements
section 182 of the Road
Transport Reform
(Compliance and
Enforcement) Bill 2003.
Executive officer liability
attached to these offences
under section 149 of that Bill
This offence primarily, if not
exclusively, applies to
regulatory functions under the
728 Duty of
728(1) 728(1) law (the internal management
confidentiality
of government agencies) and
is not within the
contemplation of the COAG
principles.
The maximum penalty for
an individual offender is
$20000; the highest penalty
range provided for under the
Bill however this penalty is
not one to which regulated
persons are exposed.
This offence primarily, if not
exclusively, applies to
729 Protected
regulatory functions under the
information
729(1), 729(1), law (the internal management
only to be used
729(3) 729(3) of government agencies) and
for authorised
is not within the
use
contemplation of the COAG
principles.
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Section of this Basis for not exempting
636(1) 636(2)
Law liability
The maximum penalty for an
individual offender is $20000;
the highest penalty range
provided for under the Bill
however this penalty is not
one to which regulated
persons are exposed.
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Heavy Vehicle National Law
Chapter 1 Preliminary
Part 1.1 Introductory matters
1 Short title .......................................................................... 507
2 Commencement ............................................................... 507
3 Object of Law ................................................................... 507
4 Regulatory framework to achieve object .......................... 508
Part 1.2 Interpretation
5 Definitions ........................................................................ 509
6 Meaning of heavy vehicle ................................................. 567
7 Meaning of fatigue-regulated heavy vehicle ..................... 568
8 Meaning of road and road-related area ............................ 569
9 Meaning of convicts and convicted of an offence ............. 571
10 Interpretation generally .................................................... 571
11 References to laws includes references to instruments
made under laws .............................................................. 571
12 References to this Law as applied in a participating
jurisdiction ........................................................................ 571
13 References to road........................................................... 572
14 References to mistake of fact defence ............................. 572
15 References to categories of heavy vehicles ..................... 572
Part 1.3 Application and operation of Law
16 Extraterritorial operation of Law ....................................... 573
17 Law binds the State.......................................................... 573
18 Relationship with primary work health and safety laws .... 573
Part 1.4 Performance based standards
19 Main purpose of this Part ................................................. 574
20 Notification to road authority of PBS design approval ...... 574
21 Notification by responsible Minister of non-application
or restricted application of PBS design approval .............. 575
22 Application for PBS design approval ................................ 575
23 Application for PBS vehicle approval ............................... 576
24 Exemption from stated vehicle standards ........................ 577
25 Authorisation of different mass or dimension
requirement ...................................................................... 577
26 National regulations ......................................................... 578
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Chapter 2 Registration
Part 2.1 Preliminary
27 Main purpose of Ch 2 ....................................................... 579
Part 2.2 Registration scheme
Division 1 Preliminary
28 Scheme for registration of heavy vehicles........................ 580
29 Registration not evidence of title ...................................... 582
Division 2 Requirement for heavy vehicle to be registered
30 Registration requirement .................................................. 582
Division 3 Authorised use of unregistered heavy vehicle
31 Purpose of Div 3............................................................... 582
32 Unregistered heavy vehicle on journey for obtaining
registration ....................................................................... 583
33 Unregistered heavy vehicle temporarily in Australia......... 584
34 Unregistered heavy vehicle used for short term only ....... 585
35 Unregistered heavy vehicle used locally only................... 585
36 Unregistered heavy vehicle that is an agricultural
vehicle .............................................................................. 586
37 Unregistered heavy vehicle being towed.......................... 587
38 Unregistered heavy vehicle to which exemption under
Div 4 applies..................................................................... 587
39 Driver to carry proof of compliance with third party
insurance legislation......................................................... 587
Division 4 Exemption from requirement to be registered
Subdivision 1 Exemption by Regulator
40 Regulator's power to exempt category of heavy vehicles
from requirement to be registered .................................... 588
41 Restriction on grant of registration exemption .................. 588
42 Conditions of registration exemption ................................ 588
43 Period for which registration exemption applies ............... 589
44 Requirements about Commonwealth Gazette notice ....... 590
45 Amendment or cancellation of registration exemption...... 590
46 Immediate suspension ..................................................... 592
Subdivision 2 Exemption by national regulations
47 National regulations exempting heavy vehicles from
requirement to be registered ............................................ 593
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Part 2.3 Vehicle register
48 Vehicle register ................................................................ 594
Part 2.4 Other provisions relating to registration
49 Ownership of registration items ........................................ 594
50 Obtaining registration or registration items by false
statements etc. ................................................................. 595
51 Replacement and recovery of certain registration items .. 595
52 Verification of particular records ....................................... 596
Part 2.5 Written-off and wrecked heavy vehicles
53 Purpose of Pt 2.5 ............................................................. 597
54 Definitions for Pt 2.5 ......................................................... 597
55 Written-off and wrecked heavy vehicles register .............. 598
Part 2.6 Other provisions
56 Regulator may specify GCM in particular
circumstances .................................................................. 599
57 Regulator may specify GVM in particular
circumstances .................................................................. 600
Chapter 3 Vehicle operations--standards and safety
Part 3.1 Preliminary
58 Main purpose of Ch 3 ....................................................... 601
Part 3.2 Compliance with heavy vehicle standards
Division 1 Requirements
59 Heavy vehicle standards .................................................. 602
60 Compliance with heavy vehicle standards ....................... 602
Division 2 Exemptions by Commonwealth Gazette notice
61 Regulator's power to exempt category of heavy vehicles
from compliance with heavy vehicle standard .................. 605
62 Restriction on grant of vehicle standards exemption
(notice) ............................................................................. 605
63 Conditions of vehicle standards exemption (notice) ......... 607
64 Period for which vehicle standards exemption (notice)
applies.............................................................................. 607
65 Requirements about Commonwealth Gazette notice ....... 608
66 Amendment or cancellation of vehicle standards
exemption (notice)............................................................ 608
67 Immediate suspension on Regulator's initiative ............... 610
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Division 3 Exemptions by permit
68 Regulator's power to exempt particular heavy vehicle
from compliance with heavy vehicle standard .................. 611
69 Application for vehicle standards exemption (permit) ....... 612
70 Restriction on grant of vehicle standards exemption
(permit)............................................................................. 612
71 Conditions of vehicle standards exemption (permit)......... 613
72 Period for which vehicle standards exemption (permit)
applies.............................................................................. 613
73 Permit for vehicle standards exemption (permit) etc. ....... 614
74 Refusal of application for vehicle standards exemption
(permit)............................................................................. 614
75 Amendment or cancellation of vehicle standards
exemption (permit) on application by permit holder.......... 615
76 Amendment or cancellation of vehicle standards
exemption (permit) on Regulator's initiative ..................... 616
77 Immediate suspension on Regulator's initiative ............... 618
78 Minor amendment of vehicle standards exemption
(permit)............................................................................. 618
79 Return of permit ............................................................... 619
80 Replacement of defaced etc. permit................................. 619
Division 4 Operating under vehicle standards exemption
81 Contravening condition of vehicle standards
exemption ........................................................................ 620
82 Keeping relevant document while driving under vehicle
standards exemption (notice) ........................................... 621
83 Keeping copy of permit while driving under vehicle
standards exemption (permit)........................................... 623
Part 3.3 Modifying heavy vehicles
84 Definition for Pt 3.3........................................................... 625
85 Modifying heavy vehicle requires approval ...................... 625
86 Approval of modifications by approved vehicle
examiners ........................................................................ 626
87 Approval of modification by Regulator.............................. 627
88 National regulations for heavy vehicle modification.......... 628
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Part 3.4 Other offences
89 Safety requirement ........................................................... 628
90 Requirement about properly operating emission control
system.............................................................................. 629
91 Person must not tamper with emission control system
fitted to heavy vehicle....................................................... 630
92 Display of warning signs required by heavy vehicle
standards on vehicles to which the requirement does
not apply .......................................................................... 632
93 Person must not tamper with speed limiter fitted to
heavy vehicle ................................................................... 632
Chapter 4 Vehicle operations--mass, dimension and loading
Part 4.1 Preliminary
94 Main purposes of Ch 4 ..................................................... 634
Part 4.2 Mass requirements
Division 1 Requirements
95 Prescribed mass requirements......................................... 636
96 Compliance with mass requirements ............................... 637
Division 2 Categories of breaches of mass requirements
97 Definitions for Div 2 .......................................................... 638
98 Minor risk breach.............................................................. 639
99 Substantial risk breach ..................................................... 639
100 Severe risk breach ........................................................... 639
Part 4.3 Dimension requirements
Division 1 Requirements
101 Prescribed dimension requirements ................................. 640
102 Compliance with dimension requirements........................ 641
Division 2 Categories of breaches of dimension
requirements
103 Application of Div 2 .......................................................... 642
104 Definitions for Div 2 .......................................................... 642
105 Minor risk breach.............................................................. 644
106 Substantial risk breach ..................................................... 644
107 Severe risk breach ........................................................... 645
Division 3 Other provisions relating to load projections
108 Dangerous projections taken to be contravention of
dimension requirement..................................................... 646
109 Warning signals required for rear projection of loads ....... 647
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Part 4.4 Loading requirements
Division 1 Requirements
110 National regulations may prescribe loading
requirements .................................................................... 648
111 Compliance with loading requirements ............................ 648
Division 2 Categories of breaches of loading requirements
112 Minor risk breach.............................................................. 649
113 Substantial risk breach ..................................................... 649
114 Severe risk breach ........................................................... 650
Division 3 Evidentiary provision
115 Proof of contravention of loading requirement ................. 650
Part 4.5 Exemptions for particular overmass or oversize
vehicles
Division 1 Preliminary
116 Class 1 heavy vehicles and class 3 heavy vehicles ......... 651
Division 2 Exemptions by Commonwealth Gazette notice
117 Regulator's power to exempt category of class 1 or 3
heavy vehicles from compliance with mass or dimension
requirement ...................................................................... 653
118 Restriction on grant of mass or dimension exemption
(notice) ............................................................................. 653
119 Conditions of mass or dimension exemption (notice) ....... 654
120 Period for which mass or dimension exemption (notice)
applies.............................................................................. 656
121 Requirements about Commonwealth Gazette notice ....... 656
Division 3 Exemptions by permit
122 Regulator's power to exempt particular class 1 or class 3
heavy vehicle from compliance with mass or dimension
requirement ...................................................................... 657
123 Application for mass or dimension exemption (permit)..... 658
124 Restriction on grant of mass or dimension exemption
(permit)............................................................................. 658
125 Conditions of mass or dimension exemption (permit) ...... 659
126 Period for which mass or dimension exemption (permit)
applies.............................................................................. 660
127 Permit for mass or dimension exemption (permit) etc. ..... 660
128 Refusal of application for mass or dimension exemption
(permit)............................................................................. 661
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Division 4 Operating under mass or dimension exemption
129 Contravening condition of mass or dimension
exemption generally ......................................................... 661
130 Contravening condition of mass or dimension exemption
relating to pilot or escort vehicle ....................................... 663
131 Using pilot vehicle with a heavy vehicle that
contravenes certain conditions of mass or dimension
exemption ........................................................................ 664
132 Keeping relevant document while driving under mass
or dimension exemption (notice) ...................................... 665
133 Keeping copy of permit while driving under mass or
dimension exemption (permit) .......................................... 667
Division 5 Other provision
134 Displaying warning signs on vehicles if not required by
dimension exemption ....................................................... 669
Part 4.6 Restricting access to roads by large vehicles that
are not overmass or oversize vehicles
Division 1 Preliminary
135 Main purpose of Pt 4.6 ..................................................... 670
136 Class 2 heavy vehicles..................................................... 670
Division 2 Restriction
137 Using class 2 heavy vehicle ............................................. 671
Division 3 Authorisation by Commonwealth Gazette notice
138 Regulator's power to authorise use of all or stated
categories of class 2 heavy vehicles ................................ 671
139 Restriction on grant of class 2 heavy vehicle
authorisation (notice)........................................................ 672
140 Conditions of class 2 heavy vehicle authorisation
(notice) ............................................................................. 672
141 Period for which class 2 heavy vehicle authorisation
(notice) applies ................................................................. 673
142 Requirements about Commonwealth Gazette
notice etc.......................................................................... 673
Division 4 Authorisation by permit
143 Regulator's power to authorise use of a particular
class 2 heavy vehicle ....................................................... 675
144 Application for class 2 heavy vehicle authorisation
(permit)............................................................................. 675
145 Restriction on grant of class 2 heavy vehicle
authorisation (permit) ....................................................... 676
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146 Conditions of class 2 heavy vehicle authorisation
(permit)............................................................................. 676
147 Period for which class 2 heavy vehicle authorisation
(permit) applies ................................................................ 677
148 Permit for class 2 heavy vehicle authorisation
(permit) etc. ...................................................................... 677
149 Refusal of application for class 2 heavy vehicle
authorisation (permit) ....................................................... 678
Division 5 Operating under class 2 heavy vehicle
authorisation
150 Contravening condition of class 2 heavy vehicle
authorisation..................................................................... 679
151 Keeping relevant document while driving under class 2
heavy vehicle authorisation (notice) ................................. 679
152 Keeping copy of permit while driving under class 2
heavy vehicle authorisation (permit)................................. 681
153 Keeping copy of PBS vehicle approval while driving
under class 2 heavy vehicle authorisation........................ 683
Part 4.7 Particular provisions about mass or dimension
authorities
Division 1 Preliminary
154 Definitions for Pt 4.7 ......................................................... 684
Division 2 Obtaining consent of relevant road managers
155 Application of Div 2 .......................................................... 685
156 Deciding request for consent generally ............................ 686
157 Obtaining third party's approval for giving consent for
permit ............................................................................... 688
158 Action pending consultation with third party ..................... 688
159 Deciding request for consent if route assessment
required ............................................................................ 690
160 Imposition of road conditions ........................................... 691
161 Imposition of travel conditions .......................................... 692
162 Imposition of vehicle conditions ....................................... 693
163 Obtaining consent of road authority if particular road
manager refuses to give consent ..................................... 693
164 Information notice for imposition of road conditions
requested by road manager ............................................. 695
165 Information notice for imposition of travel conditions
requested by road manager ............................................. 696
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166 Information notice for decision to refuse application
because road manager did not give consent ................... 696
167 Expedited procedure for road manager's consent for
renewal of mass or dimension authority ........................... 697
168 Operation of section 167 .................................................. 699
169 Granting limited consent for trial purposes ....................... 699
170 Renewal of limited consent for trial purposes ................... 699
171 Period for which mass or dimension authority applies
where limited consent ...................................................... 700
172 Requirements for statement explaining adverse decision
of road manager ............................................................... 700
Division 3 Amendment, cancellation or suspension of mass
or dimension authority granted by Commonwealth
Gazette notice
173 Amendment or cancellation on Regulator's initiative ........ 701
174 Amendment or cancellation on request by relevant road
manager ........................................................................... 704
175 Immediate suspension ..................................................... 706
Division 4 Amendment, cancellation or suspension of mass
or dimension authority granted by permit
176 Amendment or cancellation on application by permit
holder ............................................................................... 707
177 Amendment or cancellation on Regulator's initiative ........ 709
178 Amendment or cancellation on request by relevant road
manager ........................................................................... 711
179 Immediate suspension ..................................................... 713
180 Minor amendment of permit for a mass or dimension
authority ........................................................................... 714
Division 5 Provisions about permits for mass or dimension
authorities
181 Return of permit ............................................................... 714
182 Replacement of defaced etc. permit................................. 715
Part 4.8 Extended liability
183 Liability of employer etc. for contravention of mass,
dimension or loading requirement ................................... 715
Part 4.9 Other offences
Division 1 Towing restriction
184 Towing restriction ............................................................. 717
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Division 2 Coupling requirements
185 Requirements about coupling trailers ............................... 717
Division 3 Transport documentation
186 False or misleading transport documentation for goods... 718
187 False or misleading information in container weight
declaration ....................................................................... 720
Division 4 Other offences about container weight
declarations
188 Application of Div 4 .......................................................... 721
189 Meaning of complying container weight declaration ......... 721
190 Duty of responsible entity ................................................. 722
191 Duty of operator ............................................................... 723
192 Duty of driver .................................................................... 724
Division 5 Other offences
193 Weight of freight container exceeding weight stated on
container or safety approval plate .................................... 725
194 Conduct of consignee resulting or potentially resulting
in contravention of mass, dimension or loading
requirement ...................................................................... 726
Part 4.10 Other provisions
195 Conflicting mass requirements ......................................... 727
196 Conflicting dimension requirements ................................. 727
197 Exemption from compliance with particular requirements
in emergency.................................................................... 727
198 Recovery of losses arising from non-provision of
container weight declaration ............................................ 729
199 Recovery of losses for provision of inaccurate container
weight declaration ............................................................ 730
200 Recovery by responsible entity of amount paid under
s 199 ................................................................................ 732
201 Assessment of monetary value or attributable amount .... 732
Chapter 5 Vehicle operations--speeding
Part 5.1 Preliminary
202 Main purpose of Ch 5 ....................................................... 733
203 Outline of the main features of Ch 5................................. 733
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Part 5.2 Particular duties and offences
Division 1 Employers, prime contractors and operators
204 Duty of employer, prime contractor or operator to ensure
business practices will not cause driver to exceed speed
limit................................................................................... 734
205 Duty of employer not to cause driver to drive if particular
requirements not complied with........................................ 736
206 Duty of prime contractor or operator not to cause driver
to drive if particular requirements not complied with ........ 736
Division 2 Schedulers
207 Duty to ensure driver's schedule will not cause driver to
exceed speed limit ........................................................... 737
208 Duty not to cause driver to drive if particular
requirements not complied with........................................ 738
Division 3 Loading managers
209 Duty to ensure loading arrangements will not cause
driver to exceed speed limit ............................................. 739
Division 4 Particular consignors and consignees
210 Consignors to whom Div 4 applies ................................... 740
211 Consignees to whom Div 4 applies .................................. 740
212 Duty to ensure terms of consignment will not cause
driver to exceed speed limit etc. ....................................... 740
213 Duty not to make a demand that may result in driver
exceeding the speed limit................................................. 742
Division 5 Particular requests etc. and contracts etc.
prohibited
214 Who is a party in the chain of responsibility ..................... 742
215 Particular requests etc. prohibited .................................... 743
216 Particular contracts etc. prohibited ................................... 744
Division 6 Provisions about offences against this Part
217 Objective reasonableness test to be used in deciding
causation .......................................................................... 744
218 Commission of speeding offence is irrelevant to Pt 5.2
prosecution ...................................................................... 745
Part 5.3 Extended liability
219 Liability of employer etc. for speeding offence ................. 746
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Chapter 6 Vehicle operations--driver fatigue
Part 6.1 Preliminary
220 Main purpose of Ch 6 ....................................................... 748
221 Definitions for Ch 6........................................................... 749
222 Categories of breaches .................................................... 757
Part 6.2 Duties relating to fatigue
Division 1 Preliminary
223 What is fatigue ................................................................. 758
224 Matters court may consider in deciding whether person
was fatigued ..................................................................... 759
225 What is impaired by fatigue .............................................. 759
226 Matters court may consider in deciding whether person
was impaired by fatigue ................................................... 759
227 Who is a party in the chain of responsibility ..................... 760
Division 2 Duty to avoid and prevent fatigue
228 Duty of driver to avoid driving while fatigued .................... 761
229 Duty of party in the chain of responsibility to prevent
driver driving while fatigued.............................................. 762
Division 3 Additional duties of employers, prime contractors
and operators
230 Duty of employer, prime contractor or operator to ensure
business practices will not cause driver to drive while
fatigued etc. ..................................................................... 763
231 Duty of employer not to cause driver to drive if particular
requirements not complied with........................................ 765
232 Duty of prime contractor or operator not to cause driver
to drive if particular requirements not complied with ........ 765
Division 4 Additional duties of schedulers
233 Duty to ensure driver's schedule will not cause driver to
drive while fatigued etc..................................................... 766
234 Duty not to cause driver to drive if particular
requirements not complied with........................................ 766
Division 5 Additional duties of consignors and consignees
235 Duty to ensure terms of consignment will not cause
driver to drive while fatigued etc. ...................................... 767
236 Duty not to cause driver to drive if particular
requirements not complied with........................................ 769
237 Duty not to make a demand that may result in driver
driving while fatigued etc. ................................................. 770
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Division 6 Additional duties of loading managers
238 Duty to ensure loading arrangements will not cause
driver to drive while fatigued etc. ...................................... 770
239 Duty to ensure drivers can rest in particular
circumstances .................................................................. 771
Division 7 Particular requests etc. and contracts etc.
prohibited
240 Particular requests etc. prohibited .................................... 773
241 Particular contracts etc. prohibited ................................... 773
Division 8 Provisions about offences against this Part
242 Objective reasonableness test to be used in deciding
causation .......................................................................... 775
Part 6.3 Requirements relating to work time and rest time
Division 1 Preliminary
243 What is a driver's work and rest hours option .................. 776
244 Counting time spent in participating jurisdictions.............. 777
245 Counting time spent outside participating jurisdictions ..... 777
246 Counting periods of less than 15 minutes ........................ 778
247 Time to be counted after rest time ends ........................... 779
248 Time to be counted by reference to time zone of driver's
base ................................................................................. 780
Division 2 Standard work and rest arrangements
249 Standard hours................................................................. 781
250 Operating under standard hours--solo drivers ................ 781
251 Operating under standard hours--two-up drivers ............ 782
252 Defence relating to short rest breaks for drivers
operating under standard hours ....................................... 783
Division 3 BFM work and rest arrangements
253 BFM hours ....................................................................... 784
254 Operating under BFM hours--solo drivers ....................... 784
255 Defence for solo drivers operating under BFM hours
relating to split rest breaks ............................................... 785
256 Operating under BFM hours--two-up drivers ................... 786
Division 4 AFM work and rest arrangements
257 AFM hours ....................................................................... 787
258 Operating under AFM hours ............................................. 787
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Division 5 Arrangements under work and rest hours
exemption
259 Exemption hours .............................................................. 788
260 Operating under exemption hours .................................... 788
Division 6 Extended liability
261 Liability of employer etc. for driver's contravention of
maximum work requirement or minimum rest
requirement ...................................................................... 789
Division 7 Changing work and rest hours option
262 Changing work and rest hours option............................... 791
263 Operating under new work and rest hours option after
change ............................................................................. 791
264 Duty of employer, prime contractor, operator and
scheduler to ensure driver compliance............................. 793
Division 8 Exemptions relating to work times and rest times
Subdivision 1 Exemption for emergency services
265 Emergency services exemption ....................................... 794
Subdivision 2 Exemptions by Commonwealth Gazette notice
266 Regulator's power to exempt class of drivers from
particular maximum work requirements and minimum
rest requirements ............................................................. 796
267 Restriction on grant of work and rest hours exemption
(notice) ............................................................................. 796
268 Conditions of work and rest hours exemption (notice) ..... 798
269 Period for which work and rest hours exemption (notice)
applies.............................................................................. 798
270 Requirements about Commonwealth Gazette notice ....... 799
271 Amendment or cancellation of work and rest hours
exemption (notice)............................................................ 799
272 Immediate suspension ..................................................... 801
Subdivision 3 Exemptions by permit
273 Regulator's power to exempt drivers from particular
maximum work requirements and minimum rest
requirements .................................................................... 803
274 Application for work and rest hours exemption (permit) ... 803
275 Restriction on grant of work and rest hours exemption
(permit)............................................................................. 805
276 Conditions of work and rest hours exemption (permit) ..... 806
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277 Period for which work and rest hours exemption (permit)
applies.............................................................................. 806
278 Permit for work and rest hours exemption (permit) etc..... 807
279 Refusal of application for work and rest hours exemption
(permit)............................................................................. 808
280 Amendment or cancellation of work and rest hours
exemption (permit) on application by permit holder.......... 808
281 Amendment or cancellation of work and rest hours
exemption (permit) on Regulator's initiative ..................... 809
282 Immediate suspension of work and rest hours exemption
(permit)............................................................................. 811
283 Minor amendment of work and rest hours exemption
(permit)............................................................................. 812
284 Return of permit ............................................................... 812
285 Replacement of defaced etc. permit................................. 813
Subdivision 4 Offences relating to operating under work and rest
hours exemption etc.
286 Contravening condition of work and rest hours
exemption ........................................................................ 813
287 Keeping relevant document while operating under work
and rest hours exemption (notice) .................................... 814
288 Keeping copy of permit while driving under work and rest
hours exemption (permit) ................................................. 815
Part 6.4 Requirements about record keeping
Division 1 Preliminary
289 What is 100km work and 100+km work............................ 817
290 What is a driver's record location ..................................... 818
Division 2 Work diary requirements
Subdivision 1 Requirement to carry work diary
291 Application of Sdiv 1......................................................... 818
292 Meaning of work diary for Sdiv 1 ...................................... 819
293 Driver of fatigue-regulated heavy vehicle must carry
work diary ......................................................................... 820
Subdivision 2 Information required to be included in work diary
294 Purpose of and definition for Sdiv 2 ................................. 822
295 National regulations for information to be included in
work diary ......................................................................... 822
296 Recording information under the national regulations--
general ............................................................................. 823
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297 Information required to be recorded immediately after
starting work ..................................................................... 823
298 Failing to record information about odometer reading ...... 824
299 Two-up driver to provide details ....................................... 825
Subdivision 3 How information must be recorded in work diary
300 Purpose of Sdiv 3 ............................................................. 825
301 Recording information in written work diary ..................... 825
302 Recording information in electronic work diary................. 826
303 Time zone of driver's base must be used......................... 827
Subdivision 4 Requirements about work diaries that are filled up
etc.
304 Application of Sdiv 4......................................................... 827
305 Driver must make supplementary records in particular
circumstances .................................................................. 828
306 Driver must notify Regulator if written work diary filled
up etc. .............................................................................. 831
307 Driver must notify Regulator if electronic work diary filled
up etc. .............................................................................. 831
308 What driver must do if lost or stolen written work diary
found or returned.............................................................. 831
309 Driver must notify record keeper if electronic work diary
filled up etc. ...................................................................... 832
310 Intelligent access reporting entity must notify record
keeper if approved electronic recording system
malfunctioning .................................................................. 833
311 What record keeper must do if electronic work diary
filled up............................................................................. 834
312 What record keeper must do if electronic work diary
destroyed, lost or stolen ................................................... 835
313 What record keeper must do if electronic work diary not
in working order or malfunctioning ................................... 836
Subdivision 5 Use of electronic work diaries
314 How electronic work diary must be used .......................... 838
Subdivision 6 Extended liability
315 Liability of employer etc. for driver's contravention of
particular requirements of this Division ............................ 840
Division 3 Records relating to drivers
Subdivision 1 Preliminary
316 Application of Div 3 .......................................................... 841
317 Who is a driver's record keeper........................................ 842
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Subdivision 2 Record keeping obligations relating to drivers
undertaking 100km work under standard hours
318 Application of Sdiv 2......................................................... 843
319 Records record keeper must have ................................... 843
Subdivision 3 Record keeping obligations relating to drivers
undertaking 100+km work under standard hours
or operating under BFM hours, AFM hours or
exemption hours
320 Application of Sdiv 3......................................................... 845
321 Records record keeper must have ................................... 845
322 General requirements about driver giving information to
record keeper ................................................................... 848
323 Requirements about driver giving information to record
keeper if driver changes record keeper ............................ 849
324 Record keeper must give printouts of information from
electronic work diary ........................................................ 850
Division 4 Provisions about false representations relating to
work records
325 False or misleading entries .............................................. 851
326 Keeping 2 work diaries simultaneously prohibited............ 852
327 Possession of purported work records etc. prohibited...... 853
328 False representation about work records prohibited ........ 853
Division 5 Interfering with work records
Subdivision 1 Work records generally
329 Defacing or changing work records etc. prohibited .......... 853
330 Making entries in someone else's work records
prohibited ......................................................................... 854
331 Destruction of particular work records prohibited ............. 855
332 Offence to remove pages from written work diary ............ 855
Subdivision 2 Approved electronic recording systems
333 Application of Sdiv 2......................................................... 855
334 Meaning of tamper ........................................................... 855
335 Person must not tamper with approved electronic
recording system .............................................................. 856
336 Person using approved electronic recording system must
not permit tampering with it .............................................. 857
337 Intelligent access reporting entity must not permit
tampering with approved electronic recording system ..... 858
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Division 6 Obtaining written work diary
338 Form of written work diary ................................................ 858
339 Application for written work diary...................................... 859
340 Issue of written work diary................................................ 860
Division 6A Requirements about records record keeper must
make or keep
341 Period for which, and way in which, records must be
kept .................................................................................. 861
Division 7 Approval of electronic recording systems
Subdivision 1 Approval of electronic recording systems
342 Application for approval of electronic recording system ... 863
343 Deciding application for approval ..................................... 864
344 Steps after decision to grant approval .............................. 866
345 Steps after decision to refuse application......................... 867
346 Effect of approval ............................................................. 867
Subdivision 2 Provisions about electronic work diary labels
347 Placing electronic work diary label on device ................... 867
348 Particular label indicates device is an approved
electronic recording system ............................................. 868
349 Effect of electronic work diary label on device ................. 868
350 Prohibition on using device as electronic work diary if
it is not, and is not a part of, an approved electronic
recording system .............................................................. 869
Subdivision 3 Amendment or cancellation of approval
351 Amendment or cancellation of approval on application .... 870
352 Amendment or cancellation of approval on Regulator's
initiative ............................................................................ 871
353 Minor amendment of approval.......................................... 873
354 Requirements if approval amended ................................. 873
355 Requirements if approval cancelled ................................. 875
Division 8 Exemptions from work diary requirements of
Division 2
Subdivision 1 Exemption for emergency services
356 Emergency services exemption ....................................... 878
Subdivision 2 Exemptions by Commonwealth Gazette notice
357 Regulator's power to exempt particular drivers from work
diary requirements ........................................................... 879
358 Restriction on grant of work diary exemption (notice) ...... 880
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359 Conditions of work diary exemption (notice) .................... 880
360 Period for which work diary exemption (notice) applies ... 881
361 Requirements about Commonwealth Gazette notice ....... 881
362 Amendment or cancellation of work diary exemption
(notice) ............................................................................. 881
Subdivision 3 Exemptions by permit
363 Regulator's power to exempt driver of fatigue-regulated
heavy vehicle from work diary requirement ...................... 884
364 Application for work diary exemption (permit) .................. 884
365 Restriction on grant of work diary exemption (permit) ...... 885
366 Conditions of work diary exemption (permit) .................... 886
367 Period for which work diary exemption (permit)
applies.............................................................................. 886
368 Permit for work diary exemption (permit) etc.................... 886
369 Refusal of application for work diary exemption
(permit)............................................................................. 887
370 Amendment or cancellation of work diary exemption
(permit) on application by permit holder ........................... 887
371 Amendment or cancellation of work diary exemption
(permit) on Regulator's initiative ....................................... 889
372 Minor amendment of work diary exemption (permit) ........ 891
373 Return of permit ............................................................... 891
374 Replacement of defaced etc. permit................................. 892
Subdivision 4 Operating under work diary exemption
375 Contravening condition of work diary exemption .............. 892
376 Keeping relevant document while operating under work
diary exemption (notice) ................................................... 892
377 Keeping permit or copy while operating under work
diary exemption (permit) .................................................. 894
Division 8A Exemptions from fatigue record keeping
requirements of Division 3
Subdivision 1 Exemptions by Commonwealth Gazette notice
378 Regulator's power to exempt record keepers from
fatigue record keeping requirements ................................ 895
379 Conditions of fatigue record keeping exemption
(notice) ............................................................................. 895
380 Period for which fatigue record keeping exemption
(notice) applies ................................................................. 896
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381 Requirements about Commonwealth Gazette notice ....... 896
382 Amendment or cancellation of fatigue record keeping
exemption (notice)............................................................ 897
Subdivision 2 Exemptions by permit
383 Regulator's power to exempt record keepers from
fatigue record keeping requirements ................................ 899
384 Application for fatigue record keeping exemption
(permit)............................................................................. 900
385 Conditions of fatigue record keeping exemption
(permit)............................................................................. 901
386 Period for which fatigue record keeping exemption
(permit) applies ................................................................ 902
387 Permit for fatigue record keeping exemption
(permit) etc. ...................................................................... 902
388 Refusal of application for fatigue record keeping
exemption (permit) ........................................................... 902
389 Amendment or cancellation of fatigue record keeping
exemption (permit) on application by permit holder.......... 903
390 Amendment or cancellation of fatigue record keeping
exemption (permit) on Regulator's initiative ..................... 904
391 Minor amendment of fatigue record keeping exemption
(permit)............................................................................. 906
392 Return of permit ............................................................... 906
393 Replacement of defaced etc. permit................................. 907
Subdivision 3 Exemptions by national regulations
394 Exemptions from provisions of Division 3......................... 907
Subdivision 4 Other provisions
395 Contravening condition of fatigue record keeping
exemption ........................................................................ 908
Division 9 Requirements about odometers
396 Owner must maintain odometer ....................................... 908
397 Driver must report malfunctioning odometer .................... 908
398 What owner must do if odometer malfunctioning ............. 909
399 What employer or operator must do if odometer
malfunctioning .................................................................. 910
Chapter 7 Intelligent Access Program
Part 7.1 Preliminary
400 Main purposes of Ch 7 ..................................................... 910
401 What the Intelligent Access Program is............................ 912
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402 Application of Ch 7 ........................................................... 912
403 Definitions for Ch 7........................................................... 913
Part 7.2 Duties and obligations of operators of intelligent
access vehicles
404 Offence to give false or misleading information to
intelligent access service provider.................................... 917
405 Advising vehicle driver of collection of information by
intelligent access service provider.................................... 919
406 Reporting system malfunctions to Regulator.................... 920
407 Advising driver of driver's obligations about reporting
system malfunctions......................................................... 921
Part 7.3 Obligations of drivers of intelligent access
vehicles
408 Reporting system malfunctions to operator ...................... 922
Part 7.4 Powers, duties and obligations of intelligent
access service providers
409 Powers to collect and hold intelligent access
information ....................................................................... 923
410 Collecting intelligent access information .......................... 924
411 Keeping records of intelligent access information
collected .......................................................................... 924
412 Protecting intelligent access information .......................... 924
413 Making individuals aware of personal information held .... 925
414 Giving individuals access to their personal information .... 926
415 Correcting errors etc. ....................................................... 926
416 General restriction on use and disclosure of intelligent
access information ........................................................... 927
417 Giving intelligent access auditor access to records .......... 927
418 Powers to use and disclose intelligent access
information ....................................................................... 928
419 Keeping record of use or disclosure of intelligent access
information ....................................................................... 929
420 Keeping noncompliance report etc. .................................. 931
421 Destroying intelligent access information etc. .................. 931
422 Reporting relevant contraventions to Regulator ............... 932
423 Reporting tampering or suspected tampering with
approved intelligent transport system............................... 932
424 Restriction on disclosing information about tampering or
suspected tampering with approved intelligent transport
system.............................................................................. 933
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Part 7.5 Functions, powers, duties and obligations of TCA
425 Functions of TCA ............................................................. 935
426 Powers to collect and hold intelligent access
information ....................................................................... 935
427 Collecting intelligent access information .......................... 936
428 Protecting intelligent access information collected ........... 936
429 Making individuals aware of personal information held .... 936
430 Giving individuals access to their personal information .... 937
431 Correcting errors etc. ....................................................... 938
432 General restriction on use and disclosure of intelligent
access information ........................................................... 938
433 Powers to use and disclose intelligent access
information ....................................................................... 939
434 Restriction about intelligent access information that may
be used or disclosed ........................................................ 940
435 Keeping record of use or disclosure of intelligent access
information ....................................................................... 940
436 Keeping noncompliance reports ....................................... 941
437 Destroying intelligent access information or removing
personal information from it.............................................. 941
438 Reporting tampering or suspected tampering with, or
malfunction or suspected malfunction of, approved
intelligent transport system to Regulator .......................... 942
439 Restriction on disclosing information about tampering or
suspected tampering with approved intelligent transport
system.............................................................................. 942
Part 7.6 Powers, duties and obligations of intelligent
access auditors
440 Powers to collect and hold intelligent access
information ....................................................................... 944
441 Collecting intelligent access information .......................... 944
442 Protecting intelligent access information collected ........... 944
443 Making individuals aware of personal information held .... 945
444 Giving individuals access to their personal information .... 945
445 Correcting errors etc. ....................................................... 946
446 General restriction on use and disclosure of intelligent
access information ........................................................... 946
447 Powers to use and disclose intelligent access
information ....................................................................... 947
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448 Restriction about intelligent access information that may
be used or disclosed ........................................................ 948
449 Keeping record of use or disclosure of intelligent access
information ....................................................................... 948
450 Destroying intelligent access information or removing
personal information from it.............................................. 949
451 Reporting contraventions by intelligent access service
providers to TCA .............................................................. 950
452 Reporting tampering or suspected tampering with
approved intelligent transport system to Regulator
or TCA .............................................................................. 950
453 Restriction on disclosing information about tampering or
suspected tampering with approved intelligent transport
system.............................................................................. 950
Part 7.7 Other provisions
454 Offence to tamper with approved intelligent transport
system.............................................................................. 951
455 Regulator may issue intelligent access identifiers ............ 952
Chapter 8 Accreditation
Part 8.1 Preliminary
456 Purpose of Ch 8 ............................................................... 953
457 Definitions for Ch 8........................................................... 953
Part 8.2 Grant of heavy vehicle accreditation
458 Regulator's power to grant heavy vehicle accreditation ... 958
459 Application for heavy vehicle accreditation ...................... 959
460 Obtaining criminal history information about applicant ..... 960
461 Restriction on grant of heavy vehicle accreditation .......... 961
462 Conditions of heavy vehicle accreditation ........................ 964
463 Period for which heavy vehicle accreditation applies ....... 964
464 Accreditation certificate for heavy vehicle
accreditation etc. .............................................................. 964
465 Refusal of application for heavy vehicle accreditation ...... 966
466 Accreditation labels for maintenance management
accreditation and mass management accreditation ......... 966
Part 8.3 Operating under heavy vehicle accreditation
467 Compliance with conditions of BFM accreditation or
AFM accreditation ............................................................ 967
468 Driver must carry accreditation details ............................. 967
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469 Driver must return particular documents if stops
operating under accreditation etc. .................................... 969
470 General requirements applying to operator with heavy
vehicle accreditation......................................................... 969
471 Operator must give notice of amendment, suspension
or ending of heavy vehicle accreditation .......................... 972
Part 8.4 Amendment or cancellation of heavy vehicle
accreditation
472 Amendment or cancellation of heavy vehicle
accreditation on application.............................................. 973
473 Amendment, suspension or cancellation of heavy
vehicle accreditation on Regulator's initiative................... 974
474 Immediate suspension of heavy vehicle accreditation ..... 977
475 Minor amendment of heavy vehicle accreditation ............ 977
Part 8.5 Other provisions about heavy vehicle
accreditations
476 Return of accreditation certificate ..................................... 978
477 Replacement of defaced etc. accreditation certificate ...... 978
478 Offences relating to auditors ............................................ 979
Chapter 9 Enforcement
Part 9.1 General matters about authorised officers
Division 1 Functions
479 Functions of authorised officers ....................................... 980
Division 2 Appointment
480 Application of Div 2 .......................................................... 980
481 Appointment and qualifications ........................................ 980
482 Appointment conditions and limit on powers .................... 981
483 When office ends ............................................................. 981
484 Resignation ...................................................................... 982
Division 3 Identity cards
485 Application of Div 3 .......................................................... 982
486 Issue of identity card ........................................................ 982
487 Production or display of identity card ............................... 983
488 Return of identity card ...................................................... 983
Division 4 Miscellaneous provisions
489 References to exercise of powers .................................... 984
490 Reference to document includes reference to
reproduction from electronic document ............................ 984
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491 Use of force against persons ........................................... 984
492 Use of force against property ........................................... 985
493 Exercise of functions in relation to light vehicles .............. 986
Part 9.2 Powers in relation to places
Division 1 Preliminary
494 Definitions for Pt 9.2 ......................................................... 986
Division 2 Entry of relevant places for monitoring purposes
495 Power to enter relevant place .......................................... 987
496 General powers after entering relevant place .................. 988
Division 3 Entry of places for investigation purposes
497 General power to enter places ......................................... 991
498 Power to enter a place if evidence suspected to be at
the place .......................................................................... 992
499 Power to enter particular places if incident involving
death, injury or damage ................................................... 993
500 General powers after entering a place ............................. 995
Division 4 Procedure for entry by consent
501 Application of Div 4 .......................................................... 999
502 Incidental entry to ask for access ..................................... 999
503 Matters authorised officer must tell occupier .................... 1000
504 Consent acknowledgement .............................................. 1000
505 Procedure for entry with consent...................................... 1002
Division 5 Entry under warrant
506 Application for warrant ..................................................... 1003
507 Issue of warrant................................................................ 1003
508 Application by electronic communication and duplicate
warrant ............................................................................. 1004
509 Defect in relation to a warrant .......................................... 1006
510 Procedure for entry under warrant ................................... 1007
Part 9.3 Powers in relation to heavy vehicles
Division 1 Preliminary
511 Application of Pt 9.3 ......................................................... 1008
512 Persons who are drivers for this Part ............................... 1008
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Division 2 Stopping, not moving or not interfering with heavy
vehicle etc.
513 Direction to stop heavy vehicle to enable exercise of
other powers .................................................................... 1008
514 Direction not to move or interfere with heavy vehicle
etc. to enable exercise of other powers............................ 1010
Division 3 Moving heavy vehicle
515 Definition for Div 3 ............................................................ 1010
516 Direction to move heavy vehicle to enable exercise of
other powers .................................................................... 1011
517 Direction to move heavy vehicle if causing harm etc........ 1012
518 Moving unattended heavy vehicle on road to exercise
another power .................................................................. 1013
519 Moving unattended heavy vehicle on road if causing
harm etc. .......................................................................... 1015
Division 4 Inspecting and searching heavy vehicles
520 Power to enter and inspect heavy vehicles for
monitoring purposes......................................................... 1016
521 Power to enter and search heavy vehicle involved, or
suspected to be involved, in an offence etc. .................... 1018
522 Power to order presentation of heavy vehicles for
inspection ......................................................................... 1021
Division 5 Other powers in relation to all heavy vehicles
523 Starting or stopping heavy vehicle engine........................ 1023
524 Direction to leave heavy vehicle ....................................... 1024
Division 6 Further powers in relation to heavy vehicles
concerning heavy vehicle standards
525 Definitions for Div 6 .......................................................... 1025
526 Issue of vehicle defect notice ........................................... 1027
527 Requirements about vehicle defect notice ....................... 1029
528 Defective vehicle labels.................................................... 1030
529 Using defective heavy vehicles contrary to vehicle
defect notice ..................................................................... 1031
530 Clearance of vehicle defect notices.................................. 1031
531 Amendment or withdrawal of vehicle defect notices......... 1031
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Division 7 Further powers in relation to heavy vehicles
concerning mass, dimension or loading
requirements
532 Application of Div 7 .......................................................... 1032
533 Powers for minor risk breach of mass, dimension or
loading requirement ......................................................... 1033
534 Powers for substantial risk breach of mass, dimension
or loading requirement ..................................................... 1035
535 Powers for severe risk breach of mass, dimension or
loading requirement ......................................................... 1036
536 Operation of direction in relation to a combination ........... 1038
Division 8 Further powers in relation to fatigue-regulated
heavy vehicles
537 Application of Div 8 .......................................................... 1038
538 Requiring driver to rest for contravention of maximum
work requirement ............................................................. 1039
539 Requiring driver to rest for contravention of minimum
rest requirement ............................................................... 1040
540 Requiring driver to stop working if impaired by fatigue ..... 1041
541 Requiring driver to stop working if work diary not
produced or unreliable ..................................................... 1043
542 Compliance with requirement under this Division............. 1044
Part 9.4 Other powers
Division 1 Powers relating to equipment
543 Power to use equipment to access information ................ 1044
544 Power to use equipment to examine or process a thing... 1045
Division 2 Seizure and embargo notices
Subdivision 1 Power to seize
545 Seizing evidence at a place that may be entered
without consent or warrant ............................................... 1046
546 Seizing evidence at a place that may be entered only
with consent or warrant .................................................... 1047
547 Seizing evidence in a heavy vehicle entered under
s 521 ................................................................................ 1048
548 Additional seizure power relating to information stored
electronically .................................................................... 1048
549 Seizing thing or sample taken for examination under
s 500 ................................................................................ 1049
550 Seizure of property subject to security ............................. 1049
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551 Seizure of number plates ................................................. 1049
552 Restriction on power to seize certain things ..................... 1051
Subdivision 2 Powers to support seizure
553 Requirement of person in control of thing to be seized .... 1051
Subdivision 3 Safeguards for seized things or samples
554 Receipt for seized thing or sample ................................... 1052
555 Access to seized thing ..................................................... 1053
556 Return of seized things or samples .................................. 1054
Subdivision 4 Embargo notices
557 Power to issue embargo notice ........................................ 1056
558 Noncompliance with embargo notice ............................... 1057
559 Power to secure embargoed thing ................................... 1058
560 Withdrawal of embargo notice .......................................... 1059
Division 3 Forfeiture and transfers
561 Power to forfeit particular things or samples .................... 1060
562 Information notice for forfeiture decision .......................... 1061
563 Forfeited or transferred thing or sample becomes
property of the Regulator ................................................. 1062
564 How property may be dealt with ....................................... 1063
565 Third party protection ....................................................... 1063
566 National regulations ......................................................... 1065
Division 4 Information-gathering powers
567 Power to require name, address and date of birth ........... 1066
568 Power to require production of document etc. required
to be in driver's possession .............................................. 1068
569 Power to require production of documents etc.
generally .......................................................................... 1071
570 Power to require information about heavy vehicles .......... 1074
Division 5 Improvement notices
571 Authorised officers to whom Division applies ................... 1076
572 Improvement notices ........................................................ 1076
573 Contravention of improvement notice............................... 1077
574 Amendment of improvement notice.................................. 1078
575 Revocation of an improvement notice .............................. 1079
576 Clearance certificate ........................................................ 1079
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Division 6 Power to require reasonable help
577 Power to require reasonable help .................................... 1080
Part 9.5 Provisions about exercise of powers
Division 1 Damage in exercising powers
578 Duty to minimise inconvenience or damage..................... 1083
579 Restoring damaged thing ................................................. 1083
580 Notice of damage ............................................................. 1084
Division 2 Compensation
581 Compensation because of exercise of powers ................. 1085
Division 3 Provision about exercise of particular powers
582 Duty to record particular information in driver's work
diary ................................................................................. 1086
Part 9.6 Miscellaneous provisions
Division 1 Powers of Regulator
583 Regulator may exercise powers of authorised officers ..... 1087
Division 2 Other offences relating to authorised officers
584 Obstructing authorised officer .......................................... 1088
585 Impersonating authorised officer ...................................... 1088
Division 3 Other provisions
586 Multiple requirements ....................................................... 1088
587 Compliance with particular requirements ......................... 1089
588 Evidential immunity for individuals complying with
particular requirements .................................................... 1089
589 Effect of withdrawal of consent to enter under this
Chapter ............................................................................ 1090
Chapter 10 Sanctions and provisions about liability for
offences
Part 10.1 Formal warnings
590 Formal warning ................................................................ 1090
Part 10.2 Infringement notices
591 Infringement notices ......................................................... 1092
592 Recording information about infringement penalties ........ 1092
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Part 10.3 Court sanctions
Division 1 General provisions
593 Penalties court may impose ............................................. 1093
594 Matters court must consider when imposing sanction
for noncompliance with mass, dimension or loading
requirement ...................................................................... 1094
595 Court may treat noncompliance with mass, dimension
or loading requirement as a different risk category .......... 1096
Division 2 Provisions about imposing fines
596 Body corporate fines under penalty provision .................. 1096
Division 3 Commercial benefits penalty orders
597 Commercial benefits penalty order................................... 1097
Division 4 Cancelling or suspending registration
598 Power to cancel or suspend vehicle registration .............. 1098
Division 5 Supervisory intervention orders
599 Application of Div 5 .......................................................... 1099
600 Court may make supervisory intervention order ............... 1099
601 Limitation on making supervisory intervention order ........ 1101
602 Supervisory intervention order may suspend other
sanctions .......................................................................... 1102
603 Amendment or revocation of supervisory intervention
order................................................................................. 1102
604 Contravention of supervisory intervention order ............... 1102
605 Effect of supervisory intervention order if prohibition
order applies to same person ........................................... 1102
Division 6 Prohibition orders
606 Application of Div 6 .......................................................... 1103
607 Court may make prohibition order .................................... 1103
608 Limitation on making prohibition order ............................. 1103
609 Amendment or revocation of prohibition order ................. 1104
610 Contravention of prohibition order .................................... 1104
Division 7 Compensation orders
611 Court may make compensation order .............................. 1104
612 Assessment of compensation .......................................... 1105
613 Use of certificates in assessing compensation................. 1106
614 Limits on amount of compensation................................... 1107
615 Costs ................................................................................ 1108
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616 Enforcement of compensation order and costs ................ 1108
617 Relationship with orders or awards of other courts and
tribunals ........................................................................... 1108
Part 10.4 Provisions about liability
Division 1 Reasonable steps defence
618 Reasonable steps defence............................................... 1109
Division 2 Matters relating to reasonable steps
619 Application of Div 2 .......................................................... 1110
620 Matters court may consider for deciding whether
person took all reasonable steps--mass, dimension
or loading offences ........................................................... 1110
621 Reliance on container weight declaration--offences
about mass ...................................................................... 1112
622 Matters court may consider for deciding whether
person took all reasonable steps--speeding or fatigue
management offences...................................................... 1113
623 When particular persons regarded to have taken all
reasonable steps--speeding or fatigue management
offences ........................................................................... 1115
624 Regulation for s 623 ......................................................... 1117
625 Proof of compliance with registered industry code of
practice ............................................................................ 1118
Division 3 Other defences
626 Definition for Div 3 ............................................................ 1119
627 Defence for owner or operator of vehicle if offence c
ommitted while vehicle used by unauthorised person ...... 1120
628 Defence for driver of vehicle subject to a deficiency ........ 1121
629 Defence of compliance with direction ............................... 1121
630 Sudden or extraordinary emergency ................................ 1122
631 Lawful authority ................................................................ 1122
Division 4 Other provisions about liability
632 Deciding whether person ought reasonably to have
known something ............................................................. 1122
633 Multiple offenders ............................................................. 1123
634 Multiple offences .............................................................. 1123
635 Responsibility for acts or omissions of representative...... 1124
636 Liability of executive officers of corporation...................... 1125
637 Treatment of unincorporated partnerships ....................... 1127
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638 Treatment of other unincorporated bodies ....................... 1128
639 Liability of registered operator .......................................... 1130
Chapter 11 Reviews and appeals
Part 11.1 Preliminary
640 Definitions for Ch 11......................................................... 1133
Part 11.2 Internal review
641 Applying for internal review .............................................. 1135
642 Stay of reviewable decisions made by Regulator or
authorised officer.............................................................. 1137
643 Referral of applications for review of decisions made
by road managers ............................................................ 1138
644 Internal review .................................................................. 1139
645 Review decision ............................................................... 1139
646 Notice of review decision ................................................. 1140
Part 11.3 Appeals
647 Appellable decisions ........................................................ 1142
648 Stay of review decision .................................................... 1142
649 Powers of relevant appeal body on appeal ...................... 1143
650 Effect of decision of relevant appeal body on appeal ....... 1144
Chapter 12 Administration
Part 12.1 Responsible Ministers
651 Policy directions ............................................................... 1144
652 Referral of matters etc. by responsible Minister ............... 1145
653 Approved guidelines for exemptions, authorisations,
permits and other authorities ............................................ 1146
654 Other approvals................................................................ 1147
655 How responsible Ministers exercise functions .................. 1148
Part 12.2 National Heavy Vehicle Regulator
Division 1 Establishment, functions and powers
656 Establishment of National Heavy Vehicle Regulator ........ 1149
657 Status of Regulator .......................................................... 1150
658 General powers of Regulator ........................................... 1150
659 Functions of Regulator ..................................................... 1151
660 Cooperation with participating jurisdictions and
Commonwealth ................................................................ 1153
661 Delegation ........................................................................ 1154
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Division 2 Governing board of Regulator
Subdivision 1 Establishment and functions
662 Establishment of National Heavy Vehicle Regulator
Board ............................................................................... 1155
663 Membership of Board ....................................................... 1155
664 Functions of Board ........................................................... 1156
Subdivision 2 Members
665 Terms of office of members ............................................. 1157
666 Remuneration................................................................... 1157
667 Vacancy in office of member ............................................ 1157
668 Board member to give responsible Ministers notice
of certain events ............................................................... 1158
669 Extension of term of office during vacancy in
membership ..................................................................... 1158
670 Members to act in public interest...................................... 1159
671 Disclosure of conflict of interest........................................ 1159
Subdivision 3 Meetings
672 General procedure ........................................................... 1161
673 Quorum ............................................................................ 1161
674 Chief executive officer may attend meetings .................... 1161
675 Presiding member ............................................................ 1162
676 Voting ............................................................................... 1162
677 Minutes ............................................................................ 1162
678 First meeting .................................................................... 1162
679 Defects in appointment of members................................. 1162
Subdivision 4 Committees
680 Committees ...................................................................... 1163
Division 3 Chief executive officer
681 Chief executive officer ...................................................... 1163
682 Functions of chief executive officer .................................. 1164
683 Delegation by chief executive officer ................................ 1164
Division 4 Staff
684 Staff.................................................................................. 1164
685 Staff seconded to Regulator............................................. 1164
686 Consultants and contractors ............................................ 1165
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Part 12.3 Miscellaneous
Division 1 Finance
687 National Heavy Vehicle Regulator Fund .......................... 1165
688 Payments into Fund ......................................................... 1165
689 Payments out of Fund ...................................................... 1167
690 Investment by Regulator .................................................. 1167
691 Financial management duties of Regulator ...................... 1167
692 Amounts payable to other entities .................................... 1168
Division 2 Reporting and planning arrangements
693 Annual report.................................................................... 1169
694 Other reports .................................................................... 1171
695 Corporate plans................................................................ 1171
Division 3 Oversight of the Regulator and Board
696 Application of particular Queensland Acts to this Law...... 1173
Division 4 Provisions relating to persons exercising
functions under Law
697 General duties of persons exercising functions under
this Law ............................................................................ 1174
698 Protection from personal liability for persons exercising
Regulator's or Board's functions under this Law .............. 1175
Chapter 13 General
Part 13.1 General offences
Division 1 Offence about discrimination or victimisation
699 Discrimination against or victimisation of employees ....... 1176
700 Order for damages or reinstatement ................................ 1178
Division 2 Offences about false or misleading information
701 False or misleading statements ....................................... 1179
702 False or misleading documents ....................................... 1180
703 False or misleading information given by responsible
person to another responsible person .............................. 1181
704 Offence to falsely represent that heavy vehicle
authority is held etc. ......................................................... 1183
Part 13.2 Industry codes of practice
705 Guidelines for industry codes of practice ......................... 1184
706 Registration of industry codes of practice ........................ 1184
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Part 13.3 Legal proceedings
Division 1 Proceedings
707 Proceedings for offences ................................................. 1186
Division 2 Evidence
708 Proof of appointments unnecessary ................................. 1187
709 Proof of signatures unnecessary ...................................... 1187
710 Averments ........................................................................ 1187
711 Evidence by certificate by Regulator generally ................ 1188
712 Evidence by certificate by road authority.......................... 1190
713 Evidence by certificate by Regulator about matters
stated in or worked out from records ................................ 1191
714 Evidence by certificate by authorised officer about
instruments ...................................................................... 1192
715 Challenging evidence by certificate .................................. 1193
716 Evidence by record about mass ....................................... 1194
717 Manufacturer's statements ............................................... 1194
718 Measurement of weight on tyre ........................................ 1195
719 Transport and journey documentation.............................. 1195
720 Evidence not affected by nature of vehicle....................... 1196
721 Certificates of TCA ........................................................... 1197
722 Approved intelligent transport system .............................. 1197
723 Evidence as to intelligent access map ............................. 1199
724 Reports and statements made by approved intelligent
transport system............................................................... 1199
725 Documents produced by an approved electronic
recording system .............................................................. 1201
726 Statement by person involved with use or maintenance
of approved electronic recording system.......................... 1201
Part 13.4 Protected information
727 Definitions for Pt 13.4 ....................................................... 1202
728 Duty of confidentiality ....................................................... 1205
729 Protected information only to be used for authorised
use ................................................................................... 1206
Part 13.5 National regulations
730 National regulations ......................................................... 1206
731 National regulations for approved vehicle examiners ....... 1207
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732 National regulations for publication of agreements for
services to States or Territories........................................ 1209
733 Publication of national regulations.................................... 1209
734 Scrutiny of national regulations ........................................ 1210
Part 13.6 Other
735 Approved forms ................................................................ 1210
736 Penalty at end of provision ............................................... 1211
737 Increase of penalty amounts ............................................ 1211
738 Service of documents....................................................... 1212
739 Service by post................................................................. 1213
740 Fees ................................................................................. 1214
741 Recovery of amounts payable under Law ........................ 1215
742 Contracting out prohibited ................................................ 1215
743 Other powers not affected ................................................ 1216
Chapter 14 Savings and transitional provisions
Part 14.1 Interim provisions relating to Ministers and Board
744 Responsible Ministers ...................................................... 1216
745 Exercise of powers by Board between enactment and
commencement................................................................ 1217
Part 14.2 General provisions
746 Application of Part 14.2 .................................................... 1218
747 Definitions for Part 14.2.................................................... 1219
748 General savings and transitional provision....................... 1220
749 Expiry of certain permits, exemptions, notices and
authorities ........................................................................ 1222
750 Amendment or cancellation of instruments carried over
from former legislation...................................................... 1222
751 Expiry of industry codes of practice.................................. 1224
752 Pending matters ............................................................... 1224
753 Preservation of current PBS scheme ............................... 1225
754 Preservation of contracts for current PBS scheme........... 1225
755 National regulations for savings and transitional
matters ............................................................................. 1226
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Schedule 1 Miscellaneous provisions relating to interpretation ... 1228
Part 1 Preliminary
1 Displacement of Schedule by contrary intention .............. 1228
Part 2 General
2 Law to be construed not to exceed legislative power of
Parliament ........................................................................ 1228
3 Every section to be a substantive enactment ................... 1229
4 Material that is, and is not, part of this Law ...................... 1229
5 References to particular Acts and to enactments ............. 1229
6 References taken to be included in Law or Act
citation etc. ....................................................................... 1230
7 Interpretation best achieving Law's purpose or object ..... 1231
8 Use of extrinsic material in interpretation ......................... 1231
9 Effect of change of drafting practice ................................. 1233
10 Use of examples .............................................................. 1233
11 Compliance with forms ..................................................... 1233
Part 3 Terms and references
12 Definitions ........................................................................ 1234
13 Provisions relating to defined terms and gender and
number ............................................................................. 1240
14 Meaning of `may' and `must'............................................. 1241
15 Words and expressions used in statutory instruments ..... 1241
16 Effect of express references to bodies corporate and
individuals ........................................................................ 1241
17 Production of records kept in computers etc. ................... 1242
18 References to this jurisdiction to be implied ..................... 1243
19 References to officers and holders of offices ................... 1243
20 Reference to certain provisions of Law ............................ 1243
21 Reference to provisions of this Law or an Act is
inclusive ........................................................................... 1244
Part 4 Functions and powers
22 Exercise of statutory functions ......................................... 1245
23 Power to make instrument or decision includes power
to amend or repeal ........................................................... 1245
24 Matters for which statutory instruments may make
provision ........................................................................... 1246
25 Presumption of validity and power to make...................... 1248
26 Appointments may be made by name or office ................ 1248
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27 Acting appointments......................................................... 1248
28 Powers of appointment imply certain incidental powers ... 1250
29 Delegation of functions..................................................... 1251
30 Exercise of powers between enactment and
commencement................................................................ 1254
Part 5 Distance, time and age
31 Matters relating to distance, time and age ....................... 1257
Part 6 Effect of repeal, amendment or expiration
32 Time of Law ceasing to have effect .................................. 1258
33 Repealed Law provisions not revived............................... 1258
34 Saving of operation of repealed Law provisions ............... 1258
35 Continuance of repealed provisions ................................. 1259
36 Law and amending Acts to be read as one ...................... 1259
Part 7 Instruments under Law
37 Schedule applies to statutory instruments........................ 1259
Part 8 Application to coastal waters
38 Application ....................................................................... 1260
Schedule 2 Subject matter for conditions of mass or
dimension authorities .................................................... 1261
Schedule 3 Reviewable decisions .................................................... 1262
Schedule 4 Provisions specified for liability of executive
officers for offences by corporations........................... 1270
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Heavy Vehicle National Law
Chapter 1 Preliminary
Part 1.1 Introductory matters
1 Short title
This Law may be cited as the Heavy Vehicle
National Law.
2 Commencement
This Law commences in a participating jurisdiction
as provided by the Act of that jurisdiction that
applies this Law as a law of that jurisdiction.
3 Object of Law
The object of this Law is to establish a national
scheme for facilitating and regulating the use of
heavy vehicles on roads in a way that--
(a) promotes public safety; and
(b) manages the impact of heavy vehicles on the
environment, road infrastructure and public
amenity; and
(c) promotes industry productivity and efficiency
in the road transport of goods and passengers
by heavy vehicles; and
(d) encourages and promotes productive,
efficient, innovative and safe business
practices.
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4 Regulatory framework to achieve object
The object of this Law is to be achieved by a
regulatory framework that--
(a) establishes an entity (the National Heavy
Vehicle Regulator) with functions directed at
ensuring the object is achieved; and
(b) provides for the national registration of heavy
vehicles; and
(c) prescribes requirements about the
following--
(i) the standards heavy vehicles must meet
when on roads;
(ii) the maximum permissible mass and
dimensions of heavy vehicles used on
roads;
(iii) securing and restraining loads on heavy
vehicles used on roads;
(iv) preventing drivers of heavy vehicles
exceeding speed limits;
(v) preventing drivers of heavy vehicles
from driving while fatigued; and
(d) imposes duties and obligations directed at
ensuring heavy vehicles and drivers of heavy
vehicles comply with requirements
mentioned in paragraph (c)(i) to (v) on
persons whose activities may influence
whether the vehicles or drivers comply with
the requirements; and
(e) includes measures directed at the matters
mentioned in section 3(c) and (d) by allowing
improved access to roads in certain
circumstances, including by--
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(i) allowing heavy vehicles, that would
otherwise be prevented from being used
on roads, access to the roads through
exemptions or authorisations granted in
circumstances in which the matters
mentioned in section 3(a) and (b) will
not be compromised; and
(ii) providing for accreditation schemes
allowing operators of heavy vehicles
who adopt best practices directed at the
matters mentioned in section 3 to be
subject to alternative requirements more
suited to the operators' business
operations.
Part 1.2 Interpretation
5 Definitions
In this Law--
100km work, for the purposes of Chapter 6, has the
meaning given by section 289(1).
100+km work, for the purposes of Chapter 6, has
the meaning given by section 289(2).
accreditation certificate means--
(a) for a heavy vehicle accreditation granted
under this Law--the accreditation certificate
given for the accreditation under section 464;
or
(b) for a heavy vehicle accreditation granted
under another law of a participating
jurisdiction--the certificate of accreditation
(however called) issued for the accreditation
under that law.
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ADR means a national standard under section 7 of
the Motor Vehicle Standards Act 1989 of the
Commonwealth.
AFM accreditation means--
(a) accreditation under this Law of a kind
mentioned in section 458(d); or
(b) accreditation of a similar kind under another
law of a participating jurisdiction.
AFM fatigue management system, for the
purposes of Chapters 6 and 8, has the meaning
given by section 457.
AFM hours, for the purposes of Chapters 6 and 8,
has the meaning given by section 257.
AFM standards and business rules, for the
purposes of Chapter 8, has the meaning given by
section 457.
agricultural implement means a vehicle without its
own automotive power, built to perform
agricultural tasks, and includes an agricultural
trailer.
Examples--
· Example text
· auger
· conveyor
· field bin
· harvester front
· irrigating equipment or machinery
agricultural machine means a vehicle with its own
automotive power, built to perform agricultural
tasks.
Examples--
harvester, tractor
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agricultural task means a task carried out in
agriculture.
Examples of an agricultural task--
· cultivating land
· growing and harvesting crops
· rearing livestock
agricultural trailer means a trailer that is designed
to carry a load and used exclusively to perform
agricultural tasks, but does not include a
semitrailer.
agricultural vehicle means an agricultural
implement or agricultural machine.
Application Act, of this jurisdiction, means the Act
of this jurisdiction by which this Law applies as a
law of this jurisdiction.
appropriately qualified, for a function, includes
having the qualifications, experience or standing
appropriate to exercise the function.
Example of standing--
a person's classification level or position in the public
service or a government agency of a participating
jurisdiction
approved, by the responsible Ministers, for the
purposes of Chapter 8, has the meaning given by
section 457.
approved auditor, for the purposes of Chapter 8,
has the meaning given by section 457.
approved electronic recording system has the
meaning given by section 221.
approved form means a form approved by the
Regulator under section 735.
approved guidelines means guidelines approved by
the responsible Ministers under section 653.
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approved intelligent transport system has the
meaning given by section 403.
approved sleeper berth, for the purposes of Chapter
6, has the meaning given by section 221.
approved vehicle examiner means a person
approved as a vehicle examiner under the national
regulations (as referred to in section 731).
articulated bus means a bus with 2 or more rigid
sections connected to one another in a way that
allows--
(a) passenger access between the sections; and
(b) rotary movement between the sections.
AS means an Australian standard made or
published by Standards Australia.
associate, of a person, means--
(a) if the person is an individual--
(i) the individual's spouse or de facto
partner; or
(ii) a relative of the individual, whether by
blood, spousal relationship or adoption;
or
(iii) an employee of the individual; or
(iv) an employee of a corporation of which
the individual is an executive officer; or
(v) a partner of the individual; or
(vi) a corporation of which the individual is
an executive officer; or
(vii) a corporation in which the individual
holds a controlling interest; or
(viii) a person who is a trustee of a trust of
which the individual is a trustee or
beneficiary; or
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(ix) a person who is a beneficiary of a trust
of which the individual is a trustee or
beneficiary; or
(x) a person who is accustomed or under an
obligation, whether formal or informal,
to act in accordance with the directions,
instructions or wishes of the individual;
or
(xi) a person who is an associate of someone
who is an associate of the individual; or
(b) if the person is a corporation--
(i) an executive officer of the corporation;
or
(ii) an associate of an executive officer of
the corporation; or
(iii) an employee of the corporation; or
(iv) a person who holds a controlling interest
in the corporation; or
(v) a related body corporate, within the
meaning of the Corporations Act 2001
of the Commonwealth, of the
corporation; or
(vi) a person who is an associate of someone
who is an associate of the corporation.
ATM (aggregate trailer mass), of a heavy trailer,
means the total maximum mass of the trailer, as
stated by the manufacturer, together with its load
and the mass imposed on the towing vehicle by the
trailer when the towing vehicle and trailer are on a
horizontal surface.
Australian Accounting Standards means
Accounting Standards issued by the Australian
Accounting Standards Board.
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Australian road law means--
(a) this Law; or
(b) another law of a State or Territory that
regulates the use of vehicles on roads.
authorised officer means--
(a) a police officer declared by a law of a
participating jurisdiction to be an authorised
officer for the purposes of this Law; or
(b) a person who holds office under this Law as
an authorised officer.
authorised use, for the purposes of Part 13.4, has
the meaning given by section 727.
authorised warrant official, for a participating
jurisdiction, means an entity that is declared by a
law of that jurisdiction to be an authorised warrant
official for that jurisdiction for the purposes of this
Law.
axle means 1 or more shafts positioned in a line
across a vehicle, on which 1 or more wheels
intended to support the vehicle turn.
axle group means a tandem axle group, twinsteer
axle group, tri-axle group or quad-axle group.
base, of the driver of a heavy vehicle--
1 The base of the driver of a heavy vehicle, in
relation to particular work--
(a) is the place from which the driver
normally does the work; but
(b) is, for the purposes of Chapter 6, the
garage address of the vehicle if--
(i) the vehicle is a fatigue-regulated
heavy vehicle; and
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(ii) the driver is required under Part
6.4, in relation to that particular
work, to keep a work diary and to
record the location of the driver's
base in the work diary, and has not
done so.
Note--
The driver of a fatigue-regulated heavy
vehicle may not be required under Part 6.4, in
relation to particular work, to keep a work
diary and to record the location of the driver's
base in the work diary, if, for example--
· the driver is undertaking 100km work
under standard hours
· the driver is working under a work diary
exemption
2 For a driver who is a self-employed driver
and an employed driver at different times, the
driver may have one base as a self-employed
driver under paragraph 1 and another base as
an employed driver under that paragraph.
3 For a driver who has 2 or more employers,
the driver may have a different base in
relation to each employer under paragraph 1.
B-double means a combination consisting of a
prime mover towing 2 semitrailers, with the first
semitrailer being attached directly to the prime
mover by a fifth wheel coupling and the second
semitrailer being mounted on the rear of the first
semitrailer by a fifth wheel coupling on the first
semitrailer.
Typical B-double
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BFM accreditation means--
(a) accreditation under this Law of a kind
mentioned in section 458(c); or
(b) accreditation of a similar kind under another
law of a participating jurisdiction.
BFM fatigue management system, for the
purposes of Chapter 8, has the meaning given by
section 457.
BFM hours, for the purposes of Chapters 6 and 8,
has the meaning given by section 253.
BFM standards and business rules, for the
purposes of Chapter 8, has the meaning given by
section 457.
Board means the National Heavy Vehicle
Regulator Board established under section 662.
body of fatigue knowledge means any accreditation
scheme, scientific knowledge, expert opinion,
guidelines, standards or other knowledge about
preventing or managing exposure to risks to safety
either on a road or in a workplace, arising from
fatigue.
bus means a heavy motor vehicle built or fitted to
carry more than 9 adults (including the driver).
cancel, for the purposes of Chapter 6 in relation to
an unused daily sheet in a written work diary, has
the meaning given by section 221.
category, of heavy vehicles--see section 15.
cause, a thing, includes--
(a) contribute to causing the thing; and
(b) encourage the thing.
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centre-line, of an axle, means--
(a) for an axle consisting of 1 shaft--a line
parallel to the length of the axle and passing
through its centre; and
(b) for an axle consisting of 2 shafts--a line in
the vertical plane passing through--
(i) the centre of both shafts; and
(ii) the centres of the wheels on the shafts.
class 1 heavy vehicle has the meaning given by
section 116(1) and (2).
class 2 heavy vehicle has the meaning given by
section 136.
class 2 heavy vehicle authorisation means--
(a) a class 2 heavy vehicle authorisation (notice);
or
(b) a class 2 heavy vehicle authorisation (permit).
class 2 heavy vehicle authorisation (notice) has the
meaning given by section 138(2).
class 2 heavy vehicle authorisation (permit) has
the meaning given by section 143(2).
class 3 heavy vehicle has the meaning given by
section 116(3).
combination means a group of vehicles consisting
of a motor vehicle towing 1 or more other vehicles.
commercial consignor, for the purposes of
Divisions 4 and 5 of Part 5.2, has the meaning
given by section 210.
Commonwealth Gazette means the Commonwealth
of Australia Gazette.
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Commonwealth Gazette notice means notice
published in the Commonwealth Gazette.
Commonwealth responsible Minister means the
Commonwealth Minister nominated by the
Commonwealth as the responsible Minister for the
Commonwealth for the purposes of this Law.
compensation order has the meaning given by
section 611(1).
compliance purposes means--
(a) monitoring purposes; or
(b) investigation purposes.
complying container weight declaration has the
meaning given by section 189.
component, of a heavy vehicle that is a
combination, means--
(a) a component vehicle of the combination; or
(b) a component of any component vehicle of the
combination.
component vehicle, of a heavy combination, means
the towing vehicle or another vehicle in the
combination.
condition includes a restriction.
conditionally registered, for a heavy vehicle,
means the vehicle is registered under this Law
subject to conditions.
conduct means an act, an omission to perform an
act, or a state of affairs.
consent includes an approval or concurrence.
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consign and consignor--
A person consigns goods, and is a consignor of
goods, for road transport using a heavy vehicle,
if--
(a) the person has consented to being, and is,
named or otherwise identified as a consignor
of the goods in the transport documentation
relating to the road transport of the goods; or
(b) there is no person as described in
paragraph (a) and--
(i) the person engages an operator of the
vehicle, either directly or indirectly or
through an agent or other intermediary,
to transport the goods by road; or
(ii) there is no person as described in
subparagraph (i) and the person has
possession of, or control over, the goods
immediately before the goods are
transported by road; or
(iii) there is no person as described in
subparagraph (i) or (ii) and the person
loads a vehicle with the goods, for road
transport, at a place--
(A) where goods in bulk are stored,
temporarily held or otherwise held
waiting collection; and
(B) that is usually unattended, other
than by the vehicle's driver or
someone else necessary for the
normal use of the vehicle, during
loading; or
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(c) there is no person as described in
paragraph (a) or (b) and the goods
are imported into Australia and the
person is the importer of the
goods.
consignee, of goods--
(a) means a person who--
(i) 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
(ii) actually receives the goods after
completion of their road transport; but
(b) does not include a person who merely
unloads the goods.
container weight declaration--
(a) means a written declaration, whether
contained in 1 or more documents, stating or
purporting to state the weight of a freight
container and its contents; and
Examples--
an email, a placard fixed to the container
(b) includes a copy of a declaration mentioned in
paragraph (a).
converter dolly means a pig trailer with a fifth
wheel coupling designed to convert a semitrailer
into a dog trailer.
Typical converter dolly
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convict, a person of an offence, has the meaning
given by section 9(1).
convicted, of an offence, has the meaning given by
section 9(2).
convicted person--
(a) for the purposes of Division 5 of Part 10.3,
has the meaning given by section 599(a); or
(b) for the purposes of Division 6 of Part 10.3,
has the meaning given by section 606(a).
corporation includes a body politic or corporate.
corresponding fatigue law, for the purposes of
Chapter 6, has the meaning given by section 221.
critical risk breach, for a maximum work
requirement or minimum rest requirement, has the
meaning given by section 222(4).
daily sheet, for a written work diary, for the
purposes of Chapter 6, has the meaning given by
section 338(2)(b).
daytime means the period of a day between sunrise
and sunset.
de facto partner, of a person, means a person
(whether of the same gender or a different gender)
who is in a de facto relationship, within the
meaning given by section 2F of the Acts
Interpretation Act 1901 of the Commonwealth,
with the person.
defective heavy vehicle, for the purposes of
Division 6 of Part 9.3, has the meaning given by
section 525.
defective vehicle label, for the purposes of
Division 6 of Part 9.3, has the meaning given by
section 525.
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defendant, for a proceeding for an offence, means
the person charged with the offence (whether called
the defendant or the accused).
deficiency, for the purposes of Division 3 of
Part 10.4, has the meaning given by section 626.
dimension requirement means--
(a) a prescribed dimension requirement (under
section 101); or
(b) a requirement as to a dimension limit relating
to a heavy vehicle under a condition to which
a mass or dimension authority is subject
(where the dimension limit is more restrictive
than the relevant prescribed dimension
requirement); or
(c) a requirement as to a dimension limit under a
PBS vehicle approval; or
(d) a requirement as to a dimension limit
indicated by an official traffic sign; or
Note--
See the definitions indicated and official traffic
sign.
(e) a requirement as to a dimension limit for a
component vehicle as prescribed by a heavy
vehicle standard.
drive, a vehicle or combination, includes--
(a) be in control of the steering, movement or
propulsion of the vehicle or combination; and
(b) for a trailer--drive a vehicle towing the
trailer.
driver, of a vehicle or combination--
(a) means the person driving the vehicle or
combination; and
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(b) includes--
(i) a person accompanying the person
driving the vehicle or combination on a
journey or part of a journey, who has
been, is or will be sharing the task of
driving the vehicle or combination
during the journey or part; and
(ii) a person who is driving the vehicle or
combination as a driver under
instruction or under an appropriate
learner licence or learner permit; and
(iii) where the driver is a driver under
instruction, the holder of a driver licence
occupying the seat in the vehicle or
combination next to the driver.
driver licence means--
(a) a driver licence issued under a law of a State
or Territory that regulates the use of vehicles
on roads; or
(b) a licence, permit or other authorisation to
drive a motor vehicle issued under a law of
another country if a law mentioned in
paragraph (a) exempts the holder of the
licence, permit or other authorisation from the
requirement to hold a driver licence under
that law to drive a motor vehicle.
electronic recording system has the meaning given
by section 221.
electronic recording system approval means an
approval of an electronic recording system under
Division 7 of Part 6.4.
electronic work diary has the meaning given by
section 221.
electronic work diary label has the meaning given
by section 221.
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embargo notice has the meaning given by
section 557(2).
embargoed thing means a thing the subject of an
embargo notice.
employed driver, of a heavy vehicle, means a
person who is employed by someone else to drive
the vehicle.
employee means an individual who is employed by
someone else.
employer means a person who employs someone
else.
entity includes a person and an unincorporated
body.
entry, in a work record, for the purposes of
Chapter 6, has the meaning given by section 221.
equipment, in relation to a heavy vehicle, includes
tools, devices and accessories in the vehicle.
escort vehicle means a pilot vehicle that is driven
by a police officer or another person authorised to
direct traffic under an Australian road law.
examine includes analyse, test, account, measure,
weigh, grade, gauge or identify.
executive officer, of a corporation, means--
(a) a director of the corporation; or
(b) any person, by whatever name called and
whether or not the person is a director of the
corporation, who is concerned or takes part in
the management of the corporation.
exemption hours, for the purposes of Chapter 6,
has the meaning given by section 259.
exercise, for a function, includes perform.
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extract, of a document, device or other thing,
means a copy of any information contained in the
document, device or other thing.
fatigue has the meaning given by section 223.
fatigue record keeping exemption means--
(a) a fatigue record keeping exemption (notice);
or
(b) a fatigue record keeping exemption (permit).
fatigue record keeping exemption (notice) has the
meaning given by section 378.
fatigue record keeping exemption (permit) has the
meaning given by section 383.
fatigue-regulated bus means a heavy motor vehicle
built or fitted to carry more than 12 adults
(including the driver).
Note--
A fatigue-regulated bus is a bus that weighs more than 4.5t
for the purposes of being regulated under this Law.
fatigue-regulated heavy vehicle has the meaning
given by section 7.
fifth wheel coupling means a device (other than an
upper rotating element and a kingpin) used with a
prime mover, semitrailer or converter dolly to--
(a) permit quick coupling and uncoupling; and
(b) provide for articulation.
film, a thing, includes--
(a) photograph or videotape the thing; and
(b) record an image of the thing in another way.
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fit, to drive a heavy vehicle, or to start or stop its
engine, for a person, means the person--
(a) is apparently physically and mentally fit to
drive the vehicle, or start or stop its engine;
and
(b) is not apparently affected by either or both of
the following--
(i) alcohol;
(ii) a drug that affects a person's ability to
drive a vehicle; and
(c) is not found to have an alcohol concentration
in the person's blood or breath exceeding the
amount permitted, under an Australian road
law of this jurisdiction, for the driver of a
heavy vehicle; and
(d) is not found to be under the influence of a
drug or to have present in the person's blood
or saliva a drug that the driver of a heavy
vehicle is not permitted to have present in the
driver's blood or saliva under an Australian
road law of this jurisdiction.
freight container means--
(a) a re-usable container of the kind mentioned in
AS 3711.1 that is designed for repeated use
for transporting goods; or
Note--
AS 3711.1 may be purchased from Standards
Australia at .
(b) a re-usable container of the same or a similar
design and construction to a container
mentioned in paragraph (a) though of
different dimensions.
Fund means the National Heavy Vehicle Regulator
Fund established under section 687.
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garage address, of a heavy vehicle, means--
(a) for a heavy vehicle normally kept at a depot
when not in use--the principal depot of the
vehicle; or
(b) for a heavy vehicle not normally kept at a
depot when not in use--the address of the
place of business or residence at which the
vehicle is normally kept when not in use.
GCM (gross combination mass), of a motor
vehicle, means the total maximum loaded mass of
the motor vehicle and any vehicles it may lawfully
tow at any given time--
(a) if the Regulator has, under section 56,
specified the total maximum loaded mass of
the motor vehicle and any vehicles it may
lawfully tow at any given time--specified by
the Regulator under that section; or
(b) otherwise--stated by the motor vehicle's
manufacturer.
goods--
(a) includes--
(i) animals (whether alive or dead); and
(ii) a container (whether empty or not); but
(b) does not include--
(i) people; or
(ii) fuel, water, lubricants and readily
removable equipment required for the
normal use of the vehicle or
combination in which they are carried;
or
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(iii) personal items used by the driver of the
vehicle or combination, or someone else
necessary for the normal use of the
vehicle, in which they are carried.
GVM (gross vehicle mass), of a vehicle, means the
maximum loaded mass of the vehicle--
(a) if the Regulator has specified the vehicle's
maximum loaded mass under section 57--
specified by the Regulator under that section;
or
(b) otherwise--stated by the vehicle's
manufacturer.
hauling unit means a motor vehicle that forms part
of a combination, but does not include a prime
mover.
heavy combination means a combination that is a
heavy vehicle.
heavy motor vehicle means a motor vehicle that is
a heavy vehicle.
heavy trailer means a trailer that is a heavy vehicle.
heavy vehicle has the meaning given by section 6.
heavy vehicle accreditation means--
(a) AFM accreditation; or
(b) BFM accreditation; or
(c) maintenance management accreditation; or
(d) mass management accreditation.
heavy vehicle standards has the meaning given by
section 59.
higher mass limits, for the purposes of Chapter 7,
has the meaning given by section 403.
HML authority, for the purposes of Chapter 7, has
the meaning given by section 403.
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home address means--
(a) for an individual--the individual's residential
address in Australia; or
(b) for a body corporate with a registered office
in Australia--the address of the registered
office; or
(c) for another person--the address of the
person's principal or only place of business in
Australia.
identification details, for the purposes of
Division 6 of Part 9.3, has the meaning given by
section 525.
identification plate means a plate authorised to be
placed on a vehicle, or taken to have been placed
on a vehicle, under the Motor Vehicle Standards
Act 1989 of the Commonwealth.
impaired by fatigue has the meaning given by
section 225.
improvement notice has the meaning given by
section 572(2).
in, a vehicle, includes on the vehicle.
indicated, by an official traffic sign, includes--
(a) indicated by way of a direction on an official
traffic sign; and
(b) indicated by way of a direction, indication or
requirement that, under a law, is prescribed as
being given or imposed, because of an
official traffic sign.
information notice, for a decision, means a notice
stating the following--
(a) the decision;
(b) the reasons for the decision;
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(c) the review and appeal information for the
decision.
infringement notice means--
(a) an infringement notice issued under
section 591; or
(b) an infringement notice, expiation notice,
penalty notice or similar notice under the
Infringement Notice Offences Law.
Infringement Notice Offences Law, for a
participating jurisdiction, means the law that is
declared by a law of that jurisdiction to be the
Infringement Notice Offences Law for the purposes
of this Law.
inspect, a thing, includes--
(a) open the thing and examine its contents; and
(b) test the thing or its contents or both.
insurer, for the purposes of Part 2.5, has the
meaning given by section 54.
intelligent access agreement, for the purposes of
Chapter 7, has the meaning given by section 403.
intelligent access audit, for the purposes of
Chapter 7, has the meaning given by section 403.
intelligent access auditor means a person engaged
by TCA for auditing activities conducted by
intelligent access service providers.
intelligent access conditions has the meaning given
by section 402.
intelligent access information, for the purposes of
Chapter 7, has the meaning given by section 403.
intelligent access map means the spatial data set in
electronic form, issued by TCA from time to time,
that defines the national public road system.
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intelligent access reporting entity, for the purposes
of Chapter 6, has the meaning given by section 221.
intelligent access service provider has the meaning
given by section 403.
intelligent access vehicle, for the purposes of
Chapter 7, has the meaning given by section 403.
intelligent transport system means a system
involving the use of electronic or other technology,
whether located in a heavy vehicle or on or near a
road or elsewhere, that is able to monitor, generate,
record, store, display, analyse, transmit or report
information about--
(a) any or all of the following--
(i) a heavy vehicle, its equipment or load;
(ii) the driver of a heavy vehicle;
(iii) an operator of a heavy vehicle;
(iv) anyone else involved in road transport
using a heavy vehicle; and
(b) without limiting paragraph (a), the
compliance or noncompliance with this Law
of the use of a heavy vehicle on a road.
investigation purposes means investigating a
contravention or suspected contravention of this
Law.
journey documentation--
(a) means a document, other than transport
documentation, in any form--
(i) directly or indirectly associated with--
(A) a transaction for the actual or
proposed road transport of goods
or passengers using a heavy
vehicle, or for a previous transport
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of the goods or passengers by any
transport method; or
(B) goods or passengers, to the extent
the document is relevant to a
transaction for their actual or
proposed road transport; and
(ii) whether relating to a particular journey
or to journeys generally; and
(b) includes, for example, any or all of the
following--
(i) a document kept, used or obtained by a
responsible person for a heavy vehicle in
connection with the transport of goods
or passengers;
(ii) a workshop, maintenance or repair
record relating to a heavy vehicle used,
or claimed to be used, for transporting
goods or passengers;
(iii) a subcontractor's payment advice
relating to goods or passengers or their
transport;
(iv) records kept, used or obtained by the
driver of a heavy vehicle used, or
claimed to be used, for transporting
goods or passengers;
Examples--
· driver's run sheet
· work diary entry
· fuel docket or receipt
· food receipt
· tollway receipt
· pay record
· mobile or other telephone record
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(v) information reported through the use of
an intelligent transport system;
(vi) a driver manual or instruction sheet;
(vii) an advice resulting from check weighing
of a heavy vehicle's mass or load
performed before, during or after a
journey.
law enforcement agency means an agency that has
functions or activities directed at the prevention,
detection, investigation, prosecution or punishment
of offences and other contraventions of a law for
which penalties or sanctions may be imposed.
law enforcement purposes, for the purposes of
Chapter 7, has the meaning given by section 403.
load, of a heavy vehicle or in a heavy vehicle,
means--
(a) all the goods, passengers, drivers and other
persons in the vehicle; and
(b) all fuel, water, lubricants and readily
removable equipment carried in the vehicle
and required for its normal use; and
(c) personal items used by the vehicle's driver or
someone else necessary for the normal use of
the vehicle; and
(d) anything that is normally removed from the
vehicle when not in use.
load, when used as a verb, and loader--
A person loads goods in a heavy vehicle, and is a
loader of goods in a heavy vehicle, if the person is
a person who--
(a) loads the vehicle, or any container that is in
or part of the vehicle, with the goods for road
transport; or
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(b) loads the vehicle with a freight container,
whether or not it contains goods, for road
transport.
loaded mass, of a vehicle, means the vehicle's
mass together with the mass of the vehicle's load
that is transmitted to the ground.
loading manager--
1 A person is a loading manager for goods in
heavy vehicles, other than for the purposes of
Chapter 4, if--
(a) goods are--
(i) loaded onto a heavy vehicle at
regular loading or unloading
premises for heavy vehicles; or
(ii) unloaded from a heavy vehicle at
regular loading or unloading
premises for heavy vehicles; and
(b) the person--
(i) is the person who manages, or is
responsible for the operation of,
the premises; or
(ii) has been assigned by a person
mentioned in subparagraph (i) as
responsible for supervising,
managing or controlling, directly
or indirectly, activities carried out
by a loader or unloader of goods at
the premises.
2 For the purposes of Chapter 4, a person is a
loading manager for goods in a heavy vehicle
if--
(a) the goods are loaded onto the heavy
vehicle at regular loading or unloading
premises for heavy vehicles; and
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(b) the person--
(i) is the person who manages, or is
responsible for the operation of,
the premises; or
(ii) has been assigned by a person
mentioned in subparagraph (i) as
responsible for supervising,
managing or controlling, directly
or indirectly, activities carried out
by a loader of the goods.
loading requirements has the meaning given by
section 110.
local government authority, for a participating
jurisdiction, means an entity that is declared by a
law of that jurisdiction to be a local government
authority for that jurisdiction for the purposes of
this Law.
maintenance management accreditation means--
(a) accreditation under this Law of a kind
mentioned in section 458(a); or
(b) accreditation of a similar kind under another
law of a participating jurisdiction.
maintenance management standards and business
rules, for the purposes of Chapter 8, has the
meaning given by section 457.
maintenance management system, for the
purposes of Chapter 8, has the meaning given by
section 457.
major defect notice has the meaning given by
section 526(2)(a).
major rest break, for the purposes of Chapter 6, has
the meaning given by section 221.
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malfunction--
(a) for the purposes of Chapter 6, has the
meaning given by section 221; and
(b) for the purposes of Chapter 7, has the
meaning given by section 403.
mass, dimension or loading requirement means a
mass requirement, dimension requirement or
loading requirement.
mass management accreditation means--
(a) accreditation under this Law of a kind
mentioned in section 458(b); or
(b) accreditation of a similar kind under another
law of a participating jurisdiction.
mass management standards and business rules,
for the purposes of Chapter 8, has the meaning
given by section 457.
mass management system, for the purposes of
Chapter 8, has the meaning given by section 457.
mass or dimension authority means--
(a) a mass or dimension exemption; or
(b) a class 2 heavy vehicle authorisation.
mass or dimension exemption means--
(a) a mass or dimension exemption (notice); or
(b) a mass or dimension exemption (permit).
mass or dimension exemption (notice) has the
meaning given by section 117(2).
mass or dimension exemption (permit) has the
meaning given by section 122(3).
mass requirement means--
(a) a prescribed mass requirement (under
section 95); or
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(b) a requirement as to a mass limit relating to a
heavy vehicle under a condition to which a
mass or dimension authority is subject (where
the mass limit is lower than the relevant
prescribed mass requirement); or
(c) a requirement as to a mass limit under a PBS
vehicle approval; or
(d) a requirement as to a mass limit indicated by
an official traffic sign; or
Note--
See the definitions indicated and official traffic
sign.
(e) a requirement as to a mass limit under the
GVM or GCM for a heavy vehicle; or
(f) a requirement as to a mass limit for a
component vehicle as stated by the
manufacturer or as prescribed by a heavy
vehicle standard.
maximum work requirement means a requirement
of Chapter 6 relating to a maximum work time for
the driver of a fatigue-regulated heavy vehicle.
maximum work time means the maximum time the
driver of a fatigue-regulated heavy vehicle may
drive a fatigue-regulated heavy vehicle, or
otherwise work, without taking a rest.
minimum rest requirement means a requirement of
Chapter 6 relating to the minimum rest time for the
driver of a fatigue-regulated heavy vehicle.
minimum rest time means the minimum time the
driver of a fatigue-regulated heavy vehicle must
rest in order to break up the period of time the
driver drives a fatigue-regulated heavy vehicle or
otherwise works.
minor defect notice has the meaning given by
section 526(2)(b).
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minor risk breach--
(a) for a mass requirement--has the meaning
given by section 98; or
(b) for a dimension requirement--has the
meaning given by section 105; or
(c) for a loading requirement--has the meaning
given by section 112; or
(d) for a maximum work requirement or
minimum rest requirement--has the meaning
given by section 222(1).
mistake of fact defence--see section 14.
monitoring purposes means finding out whether
this Law is being complied with.
motor vehicle means a vehicle built to be propelled
by a motor that forms part of the vehicle.
national regulations means the regulations made
under section 730.
National Transport Commission means the
National Transport Commission established by the
National Transport Commission Act 2003 of the
Commonwealth.
night means the period between sunset on a day
and sunrise on the next day.
night rest break means--
(a) 7 continuous hours stationary rest time
between 10p.m. on a day and 8a.m. on the
next day; or
Note--
Under sections 248 and 303, the time must be based
on the time zone of the driver's base for drivers on a
journey in a different time zone to the driver's base.
(b) 24 continuous hours stationary rest time.
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night work time, for the purposes of Chapter 6, has
the meaning given by section 221.
noncompliance report, for the purposes of
Chapter 7, has the meaning given by section 403.
non-participating jurisdiction, for the purposes of
Chapter 6, has the meaning given by section 221.
notice means written notice.
occupier, of a place, includes the following--
(a) if there is more than 1 person who apparently
occupies the place--any 1 of the persons;
(b) any person at the place who is apparently
acting with the authority of a person who
apparently occupies the place;
(c) if no--one apparently occupies the place--
any person who is an owner of the place.
official means any of the following persons
exercising a function under this Law--
(a) the Regulator;
(b) a road authority;
(c) an authorised officer.
official traffic sign means a sign or device erected
or placed, under a law, by a public authority
(including, for example, a police force or police
service) to regulate traffic.
operate and operator--
A person operates a vehicle or combination, and is
an operator of the vehicle or combination, if the
person is responsible for controlling or directing the
use of--
(a) for a vehicle (including a vehicle in a
combination)--the vehicle; or
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(b) for a combination--the towing vehicle in the
combination.
oversize vehicle means a heavy vehicle that does
not comply with a dimension requirement applying
to it.
owner--
(a) of a vehicle means--
(i) each person who is an owner, joint
owner or part owner of the vehicle; or
(ii) a person who has the use or control of
the vehicle under a credit agreement,
hiring agreement, hire-purchase
agreement or leasing arrangement; or
(b) of a combination means--
(i) each person who is an owner, joint
owner or part owner of the towing
vehicle in the combination; or
(ii) a person who has the use or control of
the towing vehicle in the combination
under a credit agreement, hiring
agreement, hire-purchase agreement or
leasing arrangement; or
(c) of a sample means an owner of the sample or
the thing from which it was taken.
pack and packer--
A person packs goods, and is a packer of goods, if
the person--
(a) puts the goods in packaging, even if that
packaging is already on a vehicle; or
Example for the purposes of paragraph (a)--
A person who uses a hose to fill the tank of a tank
vehicle with petrol packs the petrol for transport.
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(b) assembles the goods as packaged goods in an
outer packaging, even if that packaging is
already on a vehicle; or
(c) supervises an activity mentioned in
paragraph (a) or (b); or
(d) manages or controls an activity mentioned in
paragraph (a), (b) or (c).
packaging, in relation to goods, means anything
that contains, holds, protects or encloses the goods,
whether directly or indirectly, to enable them to be
received or held for transport, or to be transported.
Note--
It may be that a container constitutes the whole of the
packaging of goods, as in the case of a drum in which
goods are directly placed.
participating jurisdiction--
(a) for the purposes of this Law other than
Chapter 6--means a State or Territory in
which--
(i) this Law applies as a law of the State or
Territory; or
(ii) a law that substantially corresponds to
the provisions of this Law has been
enacted; or
(iii) a law prescribed by the national
regulations for the purposes of this
subparagraph has been enacted; or
(b) for the purposes of Chapter 6--has the
meaning given by section 221.
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party in the chain of responsibility--
(a) for a heavy vehicle, for the purposes of
Division 5 of Part 5.2, has the meaning given
by section 214; or
(b) for a fatigue-regulated heavy vehicle, for the
purposes of Chapter 6, has the meaning given
by section 227.
passenger, of a vehicle, means any person carried
in the vehicle other than the vehicle's driver or
someone else necessary for the normal use of the
vehicle.
PBS design approval means a current approval
given under section 22 for the design of a type of
heavy vehicle that, if built to the design, is eligible
for PBS vehicle approval.
Note--
`PBS' stands for performance based standards.
PBS Review Panel means an advisory body
appointed by the Regulator to provide expert advice
in the assessment of applications for PBS design
approvals or PBS vehicle approvals and of their
impacts.
Note--
The membership of the PBS Review Panel consists of one
representative of each State and Territory, an independent
Chairperson and an independent Deputy Chairperson.
The Commonwealth may, if it decides to do so, nominate a
representative of the Commonwealth. The procedure of the
Panel is as determined by the Regulator.
PBS vehicle means a heavy vehicle that is the
subject of a current PBS vehicle approval under
Part 1.4.
PBS vehicle approval means a current approval
issued for a heavy vehicle by the Regulator under
section 23.
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personal information--
(a) generally, means information or an opinion,
including information or an opinion 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; and
(b) for the purposes of Chapter 7, has the
meaning given by section 403.
pig trailer means a trailer--
(a) with 1 axle group or a single axle near the
middle of its load carrying surface; and
(b) connected to the towing vehicle by a drawbar.
pilot vehicle means a motor vehicle that
accompanies an oversize vehicle to warn other road
users of the oversize vehicle's presence.
place of business, for the purposes of Part 9.2, has
the meaning given by section 494.
pole-type trailer means a trailer that--
(a) is attached to a towing vehicle by a pole or an
attachment fitted to a pole; and
(b) is ordinarily used for transporting loads, such
as logs, pipes, structural members, or other
long objects, that can generally support
themselves like beams between supports.
Pole-type trailer
police commissioner means the head of the police
force or police service (however called) of a
participating jurisdiction.
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premises--
(a) means a building or other structure, a vessel,
or another place (whether built on or not)--
(i) from which a business is carried out; or
(ii) at or from which goods are loaded onto
or unloaded from vehicles; and
(b) includes a part of a building, structure, vessel
or place mentioned in paragraph (a).
prescribed dimension requirement means a
requirement prescribed by the national regulations
under section 101.
prescribed fee means a fee prescribed by the
national regulations under section 740(1).
prescribed mass requirement means a requirement
prescribed by the national regulations under
section 95.
previous corresponding law--
1 A previous corresponding law is a law of a
participating jurisdiction that, before the
participation day for the jurisdiction,
provided for the same, or substantially the
same, matters as the provisions of this Law.
2 A previous corresponding law for a provision
of this Law is a provision of a previous
corresponding law within the meaning of
paragraph 1 that corresponds, or substantially
corresponds, to the provision of this Law.
3 For the purposes of paragraph 1, it is
irrelevant whether the law of the participating
jurisdiction--
(a) is in 1 instrument or 2 or more
instruments; or
(b) is part of an instrument; or
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(c) is part of an instrument and the whole or
part of 1 or more other instruments.
prime contractor, of the driver of a heavy vehicle,
means a person who engages the driver to drive the
vehicle under a contract for services.
Example--
a logistics business that engages a subcontractor to
transport goods.
prime mover means a heavy motor vehicle
designed to tow a semitrailer.
prohibition order has the meaning given by
section 607(1).
protected information, for the purposes of
Part 13.4, has the meaning given by section 727.
public authority means--
(a) a State or Territory or the Commonwealth, in
any capacity; or
(b) a body established under a law, or the holder
of an office established under a law, for a
public purpose, including a local government
authority.
public place means a place or part of a place--
(a) that the public is entitled to use, is open to
members of the public or is used by the
public, whether or not on payment of money;
or
(b) the occupier of which allows members of the
public to enter, whether or not on payment of
money.
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public safety means the safety of persons or
property, including the safety of--
(a) the drivers of, and passengers and other
persons in, vehicles and combinations; and
(b) persons or property in or in the vicinity of, or
likely to be in or in the vicinity of, road
infrastructure and public places; and
(c) vehicles and combinations and any loads in
them.
public safety ground, for a reviewable decision,
has the meaning given by section 640.
quad-axle group means a group of 4 axles, in
which the horizontal distance between the centre-
lines of the outermost axles is more than 3.2m but
not more than 4.9m.
qualified, to drive a heavy vehicle, or to start or
stop its engine, for a person, means the person--
(a) holds a driver licence of the appropriate class
to drive the vehicle that is not suspended; and
(b) is not prevented under a law, including, for
example, by the conditions of the driver
licence, from driving the vehicle at the
relevant time.
Queensland Minister means the responsible
Minister for Queensland.
reasonable steps defence means the defence
mentioned in section 618.
reasonably believes means believes on grounds that
are reasonable in the circumstances.
reasonably satisfied means satisfied on grounds
that are reasonable in the circumstances.
reasonably suspects means suspects on grounds
that are reasonable in the circumstances.
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record keeper, for the purposes of Chapter 6, has
the meaning given by section 317.
record location, of the driver of a fatigue-regulated
heavy vehicle, for the purposes of Chapter 6, has
the meaning given by section 290.
registered industry code of practice means an
industry code of practice registered under
section 706.
registered interest means an interest registered
under the Personal Property Securities Act 2009 of
the Commonwealth by a secured party for which
the thing or sample is collateral.
registered operator, of a heavy vehicle, means the
person recorded on the vehicle register as the
person responsible for the vehicle.
registration, of a heavy vehicle, means registration
of the vehicle under this Law.
registration exemption means an exemption under
Division 4 of Part 2.2 from the requirement for a
heavy vehicle to be registered.
registration item means a document, number plate,
label or other thing relating to--
(a) the registration or purported registration of a
heavy vehicle; or
(b) an unregistered heavy vehicle permit for a
heavy vehicle.
registration number, for a heavy vehicle, means
letters, numbers or characters, or a combination of
one or more letters, numbers or characters, issued
for the vehicle by the Regulator and recorded on
the vehicle register.
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regular loading or unloading premises--
1 Regular loading or unloading premises, for
heavy vehicles, means premises at or from
which an average of at least 5 heavy vehicles
are loaded or unloaded on each day the
premises are operated for loading or
unloading heavy vehicles.
2 For the purposes of paragraph 1, an average
of at least 5 heavy vehicles are loaded or
unloaded at or from premises on each day the
premises are operated for loading or
unloading heavy vehicles if--
(a) for premises operated for loading or
unloading heavy vehicles for 12 months
or more--during the previous
12 months, an average of at least
5 heavy vehicles were loaded or
unloaded at or from the premises on
each day the premises were operated for
loading or unloading heavy vehicles; or
(b) for premises operated for loading or
unloading heavy vehicles for less than
12 months--during the period the
premises have been in operation for
loading or unloading heavy vehicles, an
average of at least 5 heavy vehicles were
loaded or unloaded at or from the
premises on each day the premises were
operated for loading or unloading heavy
vehicles.
3 In the application of this definition to the
definition loading manager where used in
Chapter 6, references in paragraphs 1 and 2 to
`an average of at least 5 heavy vehicles' are
to be read as references to an average of at
least 5 fatigue-regulated heavy vehicles.
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Note--
Consequently, Chapter 6 (including sections 227,
238, 239 and 261) applies to a person as a loading
manager only if the premises concerned are
premises at or from which an average of at least
5 fatigue-regulated heavy vehicles are loaded or
unloaded on each day the premises are operated for
loading or unloading heavy vehicles.
Regulator means the National Heavy Vehicle
Regulator established under section 656.
Regulator's website means the website of the
Regulator on the internet.
relevant appeal body, for the purposes of
Chapter 11, has the meaning given by section 640.
relevant contravention, for the purposes of
Chapter 7, has the meaning given by section 403.
relevant emission, for a heavy vehicle, means noise
emission, gaseous emission or particle emission
emanating from the vehicle.
relevant garage address, of a heavy vehicle,
means--
(a) the heavy vehicle's garage address; or
(b) if the heavy vehicle is a combination--the
garage address of the towing vehicle in the
combination.
relevant jurisdiction, for the purposes of
Chapter 11, has the meaning given by section 640.
relevant management system, for the purposes of
Chapter 8, has the meaning given by section 457.
relevant monitoring matters, for the purposes of
Chapter 7, has the meaning given by section 403.
relevant place, for the purposes of Part 9.2, has the
meaning given by section 494.
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relevant police commissioner, in relation to a
police officer, means the police commissioner for
the police force or police service (however called)
of which the police officer is a member.
relevant road manager, for a mass or dimension
authority, means a road manager for a road in the
area, or on the route, to which the authority applies.
relevant standards and business rules, for the
purposes of Chapter 8, has the meaning given by
section 457.
relevant tribunal or court, for a participating
jurisdiction, means a tribunal or court that is
declared by a law of that jurisdiction to be the
relevant tribunal or court for that jurisdiction for
the purposes of this Law.
responsible entity, for a freight container, means--
(a) the person who, in Australia, consigned the
container for road transport using a heavy
vehicle; or
(b) if there is no person as described in
paragraph (a)--the person who, in Australia,
for a consignor, arranged for the container's
road transport using a heavy vehicle; or
(c) if there is no person as described in
paragraph (a) or (b)--the person who, in
Australia, physically offered the container for
road transport using a heavy vehicle.
responsible Minister, for a participating
jurisdiction, means the Minister of that jurisdiction
nominated by it as its responsible Minister for the
purposes of this Law.
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responsible Ministers means a group of Ministers
consisting of--
(a) the responsible Minister for each participating
jurisdiction; and
(b) the Commonwealth responsible Minister.
Note--
See also section 655(3).
responsible person, for a heavy vehicle, means a
person having, at a relevant time, a role or
responsibility associated with road transport using
the vehicle, and includes any of the following--
(a) an owner of the vehicle or, if it is a
combination, an owner of a heavy vehicle
forming part of the combination;
(b) the vehicle's driver;
(c) an operator or registered operator of the
vehicle or, if it is a combination, an operator
or registered operator of a heavy vehicle
forming part of the combination;
(d) a person in charge or apparently in charge
of--
(i) the vehicle; or
(ii) the vehicle's garage address or, if it is a
combination, the garage address of a
heavy vehicle forming part of the
combination; or
(iii) a base of the vehicle's driver;
(e) a person appointed under a heavy vehicle
accreditation to have monitoring or other
responsibilities under the accreditation,
including, for example, responsibilities for
certifying, monitoring or approving the use of
heavy vehicles under the accreditation;
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(f) a person who provides to an owner or
registered operator of the vehicle or, if it is a
combination, an owner or registered operator
of a heavy vehicle forming part of the
combination, an intelligent transport system
for the vehicle;
(g) a person in charge of a place entered by an
authorised officer under this Law for the
purpose of exercising a power under this
Law;
(h) a consignor of goods for road transport;
(i) a packer of goods in a freight container or
other container or in a package or on a pallet
for road transport;
(j) a person who loads goods or a container for
road transport;
(k) a person who unloads goods or a container
containing goods consigned for road
transport;
(l) a person to whom goods are consigned for
road transport;
(m) a person who receives goods packed outside
Australia in a freight container or other
container or on a pallet for road transport in
Australia;
(n) an owner or operator of a weighbridge or
weighing facility used to weigh the vehicle,
or an occupier of the place where the
weighbridge or weighing facility is located;
(o) a responsible entity for a freight container on
the vehicle;
(p) a loading manager for goods in heavy
vehicles for road transport or another person
who controls or directly influences the
loading of goods for road transport;
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(q) a scheduler for the vehicle;
(r) an employer, employee, agent or
subcontractor of a person mentioned in any of
paragraphs (a) to (q).
rest, in relation to a fatigue-regulated heavy
vehicle, has the meaning given by section 221.
rest time, for the purposes of Chapter 6, has the
meaning given by section 221.
review and appeal information--
(a) for a decision made by the Regulator or an
authorised officer who is not a police officer,
means the following information--
(i) that, under section 641, a dissatisfied
person for the decision may ask for the
decision to be reviewed by the
Regulator;
(ii) that, under section 642, the person may
apply for the decision to be stayed by a
relevant tribunal or court unless the
decision was made by the Regulator on
the basis of a public safety ground;
(iii) that, in relation to the Regulator's
decision on the review, the person
may--
(A) under section 647, appeal against
the decision to a relevant tribunal
or court; and
(B) under section 648, apply for the
decision to be stayed by a relevant
tribunal or court unless the
reviewable decision to which the
review decision relates was made
by the Regulator on the basis of a
public safety ground; and
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(b) for a decision made by a road manager (for a
road) that is a public authority, means the
following information--
(i) that, under section 641, a dissatisfied
person for the decision may apply to the
Regulator to have the decision reviewed;
(ii) that, under section 643, the Regulator
must refer the application to the road
manager for review;
(iii) that the decision of the road manager on
the review is not subject to further
review or appeal under this Law; and
(c) for a decision made by an authorised officer
who is a police officer, or a road manager (for
a road) that is not a public authority, means
that the decision is not subject to review or
appeal under this Law.
review application, for the purposes of Chapter 11,
has the meaning given by section 640.
review decision, for the purposes of Chapter 11,
has the meaning given by section 640.
reviewable decision has the meaning given by
section 640.
reviewer, for the purposes of Chapter 11, has the
meaning given by section 640.
rigid, other than in the definition articulated bus,
means not articulated.
risk category--
(a) for a contravention of a mass, dimension or
loading requirement, means 1 of the
following categories--
(i) minor risk breach;
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(ii) substantial risk breach;
(iii) severe risk breach; or
(b) for a contravention of a maximum work
requirement or minimum rest requirement,
means 1 of the following categories--
(i) minor risk breach;
(ii) substantial risk breach;
(iii) severe risk breach;
(iv) critical risk breach.
road has the meaning given by section 8.
Note--
See also section 13.
road authority, for a participating jurisdiction,
means an entity that is declared by a law of that
jurisdiction to be the road authority for that
jurisdiction for the purposes of this Law.
road condition has the meaning given by
section 154.
road infrastructure includes--
(a) a road, including its surface or pavement; and
(b) anything under or supporting a road or its
surface or pavement; and
(c) any bridge, tunnel, causeway, road-ferry, ford
or other work or structure forming part of a
road system or supporting a road; and
(d) any bridge or other work or structure located
above, in or on a road; and
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(e) any traffic control devices, railway
equipment, electricity equipment, emergency
telephone systems or any other facilities
(whether of the same or a different kind) in,
on, over, under or connected with anything
mentioned in paragraphs (a) to (d).
road manager, for a road in a participating
jurisdiction, means 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.
road-related area has the meaning given by
section 8.
Road Rules, for a participating jurisdiction, means
the law that is declared by a law of that jurisdiction
to be the Road Rules for the purposes of this Law.
road train means a combination, other than a
B-double, consisting of a motor vehicle towing at
least 2 trailers, excluding any converter dolly
supporting a semitrailer.
Typical triple road train
road transport means transport by road.
route assessment, for the purposes of Part 4.7, has
the meaning given by section 154.
safety risk means a risk--
(a) to public safety; or
(b) of harm to the environment.
schedule, for the driver of a heavy vehicle,
means--
(a) the schedule for the transport of any goods or
passengers by the vehicle; or
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(b) the schedule of the driver's work times and
rest times.
scheduler, for a heavy vehicle, means a person
who--
(a) schedules the transport of any goods or
passengers by the vehicle; or
(b) schedules the work times and rest times of the
vehicle's driver.
self-employed driver, of a heavy vehicle, means a
driver of the vehicle who is not an employed driver
of the vehicle.
semitrailer means a trailer that has--
(a) 1 axle group or a single axle towards the rear;
and
(b) a means of attachment to a prime mover that
results in some of the mass of the trailer's
load being imposed on the prime mover.
severe risk breach--
(a) for a mass requirement--has the meaning
given by section 100; or
(b) for a dimension requirement--has the
meaning given by section 107; or
(c) for a loading requirement--has the meaning
given by section 114; or
(d) for a maximum work requirement or
minimum rest requirement--has the meaning
given by section 222(3).
severe risk breach lower limit--
(a) for the purposes of Division 2 of Part 4.2, has
the meaning given by section 97; or
(b) for the purposes of Division 2 of Part 4.3, has
the meaning given by section 104.
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sign of fatigue, for the purposes of Chapter 6, has
the meaning given by section 221.
single axle means--
(a) 1 axle; or
(b) 2 axles with centres between transverse,
parallel, vertical planes spaced less than 1.0m
apart.
solo driver, for the purposes of Chapter 6, has the
meaning given by section 221.
speed limit means--
(a) a speed limit applying under this Law, the
Road Rules or another law; and
(b) when used in the context of a speed limit
applying to the driver of a heavy vehicle--
a speed limit applying to the driver or the
vehicle (or both) under this Law, the Road
Rules or another law (whether it applies
specifically to the particular driver or the
particular vehicle or it applies to all drivers or
vehicles or to a class of drivers or vehicles to
which the driver or vehicle belongs).
Note--
A reference to a speed limit applying under this Law, the
Road Rules or another law covers both--
· a speed limit specified in this Law, the Road Rules
or other law
· a speed limit specified in an instrument, or in some
other manner, under this Law, the Road Rules or
other law (for example, a speed limit specified in a
permit or a Commonwealth Gazette notice)
standard hours, for the purposes of Chapter 6, has
the meaning given by section 249.
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Standards Australia means Standards Australia
Limited CAN 087 326 690, and includes a
reference to the Standards Association of Australia
as constituted before 1 July 1999.
stationary rest time has the meaning given by
section 221.
substantial risk breach--
(a) for a mass requirement--has the meaning
given by section 99; or
(b) for a dimension requirement--has the
meaning given by section 106; or
(c) for a loading requirement--has the meaning
given by section 113; or
(d) for a maximum work requirement or
minimum rest requirement--has the meaning
given by section 222(2).
substantial risk breach lower limit--
(a) for the purposes of Division 2 of Part 4.2, has
the meaning given by section 97; or
(b) for the purposes of Division 2 of Part 4.3, has
the meaning given by section 104.
suitable rest place, for fatigue-regulated heavy
vehicles, means--
(a) a rest area designated for use, and able to be
used, by fatigue-regulated heavy vehicles; or
(b) a place at which a fatigue-regulated heavy
vehicle may be safely and lawfully parked.
supervisory intervention order has the meaning
given by section 600(1).
supplementary record, for the purposes of
Chapter 6, has the meaning given by section 221.
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tamper--
(a) with an emission control system, for the
purposes of section 91, has the meaning given
by that section; or
(b) with a speed limiter, for the purposes of
section 93, has the meaning given by that
section; or
(c) with an approved electronic recording
system, for the purposes of Chapter 6, has the
meaning given by section 334; or
(d) with an approved intelligent transport system,
for the purposes of Chapter 7, has the
meaning given by section 403.
tandem axle group means a group of at least 2
axles, in which the horizontal distance between the
centre-lines of the outermost axles is at least 1m but
not more than 2m.
TCA means Transport Certification Australia
Limited ACN 113 379 936.
Territory means the Australian Capital Territory or
the Northern Territory.
the State means the Crown in right of this
jurisdiction, and includes--
(a) the Government of this jurisdiction; and
(b) a Minister of the Crown in right of this
jurisdiction; and
(c) a statutory corporation, or other entity,
representing the Crown in right of this
jurisdiction.
third party insurance legislation means--
(a) legislation about compensation for third
parties who are injured or killed by the use of
motor vehicles or trailers; or
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(b) legislation about payment of contributions
towards compensation of that kind; or
(c) legislation requiring public liability
insurance.
this jurisdiction--see the law of each participating
jurisdiction for the meaning of this term.
this Law means--
(a) this Law as it applies as a law of a
participating jurisdiction; or
(b) a law of a participating jurisdiction that--
(i) substantially corresponds to the
provisions of this Law; or
(ii) is prescribed by the national regulations
for the purposes of paragraph (a)(iii) of
the definition participating jurisdiction.
Note--
See also section 11.
tow truck means--
(a) a heavy motor vehicle that is--
(i) equipped with a crane, winch, ramp or
other lifting device; and
(ii) used or intended to be used for the
towing of motor vehicles; or
(b) a heavy motor vehicle to which is attached,
temporarily or otherwise, a trailer or device
that is--
(i) equipped with a crane, winch, ramp or
other lifting device; and
(ii) used or intended to be used for the
towing of motor vehicles.
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tractor means a motor vehicle used for towing
purposes, other than--
(a) a motor vehicle designed to carry goods or
passengers; or
(b) a tow truck.
traffic includes vehicular traffic, pedestrian traffic
and all other forms of road traffic.
trailer means a vehicle that is built to be towed, or
is towed, by a motor vehicle, but does not include a
motor vehicle being towed.
transport documentation means each of the
following--
(a) each contractual document directly or
indirectly associated with--
(i) a transaction for the actual or proposed
road transport of goods or passengers or
any previous transport of the goods or
passengers by any transport method; or
(ii) goods or passengers, to the extent the
document is relevant to the transaction
for their actual or proposed road
transport;
(b) each document--
(i) contemplated in a contractual document
mentioned in paragraph (a); or
(ii) required by law, or customarily given, in
connection with a contractual document
or transaction mentioned in paragraph
(a).
Examples--
· bill of lading
· consignment note
· container weight declaration
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· contract of carriage
· delivery order
· export receival advice
· invoice
· load manifest
· sea carriage document
· vendor declaration
travel condition has the meaning given by
section 154.
tri-axle group means a group of at least 3 axles, in
which the horizontal distance between the centre-
lines of the outermost axles is more than 2m but not
more than 3.2m.
truck means a rigid motor vehicle built mainly as a
load carrying vehicle.
twinsteer axle group means a group of 2 axles--
(a) with single tyres; and
(b) fitted to a motor vehicle; and
(c) connected to the same steering mechanism;
and
(d) the horizontal distance between the centre-
lines of which is at least 1m but not more
than 2m.
two-up driving arrangement, for the purposes of
Chapter 6, has the meaning given by section 221.
unattended, for a heavy vehicle, for the purposes of
Division 3 of Part 9.3, has the meaning given by
section 515.
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under, for a law or a provision of a law, includes--
(a) by; and
(b) for the purposes of; and
(c) in accordance with; and
(d) within the meaning of.
unincorporated local government authority means
a local government authority that is not a body
corporate.
unload and unloader--
A person unloads goods in a heavy vehicle, and is
an unloader of goods in a heavy vehicle, if the
person is a person who--
(a) unloads from the vehicle, or any container
that is in or part of the vehicle, goods that
have been transported by road; or
(b) unloads from the vehicle a freight container,
whether or not it contains goods, that has
been transported by road.
unregistered heavy vehicle means a heavy vehicle
that is not registered.
unregistered heavy vehicle permit means a permit
issued under the national regulations authorising
the use of an unregistered heavy vehicle on a road.
use, a heavy vehicle on a road, includes standing
the vehicle on the road.
vehicle condition has the meaning given by
section 154.
vehicle defect notice means a major defect notice
or a minor defect notice.
vehicle register means the vehicle register kept
under Part 2.3.
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vehicle registration duty--
(a) includes any duties, levies, fees or charges
(however called) payable under a law of a
participating jurisdiction at the time of
registration of a vehicle on an application for
the registration of, the renewal of registration
of, or the transfer of the registration of, a
vehicle; and
(b) includes, by way of example, emergency
service levies.
vehicle registration duty legislation means
legislation about payment of vehicle registration
duty.
vehicle standards exemption means--
(a) vehicle standards exemption (notice); or
(b) vehicle standards exemption (permit).
vehicle standards exemption (notice) has the
meaning given by section 61(2).
vehicle standards exemption (permit) has the
meaning given by section 68(2).
VIN (vehicle identification number), for a heavy
vehicle, means--
(a) for a heavy vehicle built before 1 January
1989 with an identification plate, the number
quoted on the vehicle's identification plate
that--
(i) uniquely identifies the vehicle and sets it
apart from similar vehicles; and
(ii) corresponds to the identification number
of the vehicle that is permanently
recorded elsewhere on the vehicle; or
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(b) otherwise, the unique vehicle identification
number assigned to the heavy vehicle under
the Motor Vehicle Standards Act 1989 of the
Commonwealth.
work, in relation to a fatigue-regulated heavy
vehicle, has the meaning given by section 221.
work and rest change, for the purposes of
Chapter 6, has the meaning given by section 221.
work and rest hours exemption means--
(a) a work and rest hours exemption (notice); or
(b) a work and rest hours exemption (permit).
work and rest hours exemption (notice) has the
meaning given by section 266(2).
work and rest hours exemption (permit) has the
meaning given by section 273(2).
work and rest hours option, for the purposes of
Chapter 6, has the meaning given by section 243.
work diary, for the purposes of Chapter 6, has the
meaning given by section 221.
work diary exemption means--
(a) a work diary exemption (notice); or
(b) a work diary exemption (permit).
work diary exemption (notice) has the meaning
given by section 357(2).
work diary exemption (permit) has the meaning
given by section 363(2).
work record, for the purposes of Chapter 6, has the
meaning given by section 221.
work time, for the purposes of Chapter 6, has the
meaning given by section 221.
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wrecked, in relation to a heavy vehicle, for the
purposes of Part 2.5, has the meaning given by
section 54.
written-off, in relation to a heavy vehicle, for the
purposes of Part 2.5, has the meaning given by
section 54.
written work diary, for the purposes of Chapter 6,
has the meaning given by section 221.
6 Meaning of heavy vehicle
(1) For the purposes of this Law, a vehicle is a heavy
vehicle if it has a GVM or ATM of more than 4.5t.
(2) Also, for the purposes of this Law other than in
relation to registration under this Law, a
combination that includes a vehicle with a GVM or
ATM of more than 4.5t is a heavy vehicle.
(3) However, rolling stock is not a heavy vehicle for
the purposes of this Law.
(4) In this section--
rolling stock--
1 Rolling stock is a vehicle designed to operate
or move on a railway track and includes a
locomotive, carriage, rail car, rail motor, light
rail vehicle, tram, light inspection vehicle,
self-propelled infrastructure maintenance
vehicle, trolley, wagon or monorail vehicle.
2 A vehicle designed to operate both on and off
a railway track is rolling stock when the
vehicle is being--
(a) operated or moved on a railway track; or
(b) maintained, repaired or modified in
relation to the operation or movement of
the vehicle on a railway track.
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7 Meaning of fatigue-regulated heavy vehicle
(1) For the purposes of this Law, a heavy vehicle is a
fatigue-regulated heavy vehicle if it is any of the
following--
(a) a motor vehicle with a GVM of more than
12t;
(b) a combination with a GVM of more than 12t;
(c) a fatigue-regulated bus.
(2) However, subject to subsection (3), a heavy vehicle
is not a fatigue-regulated heavy vehicle for the
purposes of this Law if it is any of the following--
(a) a motor vehicle that--
(i) is built, or has been modified, to operate
primarily as a machine or implement
off-road, on a road-related area, or on an
area of road that is under construction;
and
(ii) is not capable of carrying goods or
passengers by road;
Examples for the purposes of paragraph (a)--
agricultural machine, backhoe, bulldozer,
excavator, forklift, front-end loader, grader, motor
vehicle registered under an Australian road law as a
special purpose vehicle (type p)
(b) a motorhome.
(3) For the purposes of this Law, a truck, or a
combination including a truck, that has a machine
or implement attached to it is a fatigue-regulated
heavy vehicle--
(a) if the GVM of the truck or combination with
the attached machine or implement is more
than 12t; and
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(b) whether or not the truck or combination has
been built or modified primarily to operate as
a machine or implement off-road, on a road-
related area, or on an area of road that is
under construction.
Example for the purposes of subsection (3)--
a truck to which a crane or drilling rig is attached
(4) For the purposes of subsection (2)(b), a
motorhome--
(a) is a rigid or articulated motor vehicle or
combination that is built, or has been
modified, primarily for residential purposes;
and
(b) does not include a motor vehicle that is
merely a motor vehicle constructed with a
sleeper berth.
(5) For the purposes of this section, the GVM of a
combination is the total of the GVMs of the
vehicles in the combination.
8 Meaning of road and road-related area
(1) For the purposes of this Law, a road is an area that
is open to or used by the public and is developed
for, or has as 1 of its uses, the driving or riding of
motor vehicles.
Examples of areas that are roads--
bridges, cattle grids, culverts, ferries, fords, railway
crossings, tunnels or viaducts
(2) For the purposes of this Law, a road-related area
is--
(a) an area that divides a road; or
(b) a footpath, shared path or nature strip
adjacent to a road; or
(c) a shoulder of a road; or
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(d) a bicycle path or another area that is not a
road and that is open to the public and
designated for use by cyclists or animals; or
(e) an area that is not a road and that is open to,
or used by, the public for driving, riding or
parking motor vehicles.
(3) Also, an area is a road or road-related area for the
purposes of this Law or a particular provision of
this Law as applied in a participating jurisdiction, if
the area is declared by a law of that jurisdiction to
be a road or road-related area for the purposes of
this Law or the particular provision.
(4) In this section--
bicycle path means an area open to the public that
is designated for, or has as 1 of its main uses, use
by riders of bicycles.
footpath means an area open to the public that is
designated for, or has as 1 of its main uses, use by
pedestrians.
shared path means an area open to the public that
is designated for, or has as 1 of its main uses, use
by both the riders of bicycles and pedestrians.
shoulder, of a road--
(a) includes any part of the road that is not
designed to be used by motor vehicles in
travelling along the road; and
(b) includes--
(i) for a kerbed road-any part of the kerb;
and
(ii) for a sealed road-any unsealed part of
the road, and any sealed part of the road
outside an edge line on the road; but
(c) does not include a bicycle path, footpath or
shared path.
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9 Meaning of convicts and convicted of an
offence
(1) For the purposes of this Law, a court convicts a
person of an offence if the court finds the person
guilty, or accepts the person's plea of guilty, for the
offence whether or not a conviction is recorded.
(2) For the purposes of this Law, a person is convicted
of an offence if a court convicts the person of the
offence.
10 Interpretation generally
Schedule 1 applies in relation to this Law.
11 References to laws includes references to
instruments made under laws
(1) In this Law, a reference (either generally or
specifically) to a law or a provision of a law
(including this Law) includes a reference to--
(a) each instrument (including a regulation) made
or in force under the law or provision; and
(b) each instrument made or in force under any
such instrument.
(2) In this section--
law means a law of the Commonwealth or a State
or Territory.
12 References to this Law as applied in a
participating jurisdiction
In this Law, a reference to this Law as applied by
an Act of a participating jurisdiction includes a
reference to--
(a) a law that substantially corresponds to this
Law enacted in a participating jurisdiction;
and
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(b) a law prescribed by the national regulations
for the purposes of paragraph (a)(iii) of the
definition participating jurisdiction in
section 5, enacted in a participating
jurisdiction.
13 References to road
A reference in this Law to a road includes a
reference to a road-related area, unless a contrary
intention appears in this Law.
14 References to mistake of fact defence
(1) This section applies if a provision of this Law states
that a person charged with an offence does not have
the benefit of the mistake of fact defence for the
offence.
(2) The effect of the provision, for a participating
jurisdiction, is the effect that is declared by a law of
that jurisdiction to be the effect of the provision.
15 References to categories of heavy vehicles
If a provision of this Law provides for the
exemption, authorisation, prescription or
description of a category of heavy vehicles, heavy
vehicles may, without limitation, be categorised for
the purposes of the provision as being of any stated
class, including, for example--
(a) a class of heavy vehicles used for a particular
task; and
(b) a class of heavy vehicles used by particular
persons or a particular class of persons; and
(c) a class of heavy vehicles with a particular
configuration.
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Part 1.3 Application and operation
of Law
16 Extraterritorial operation of Law
It is the intention of the Parliament of this
jurisdiction that the operation of this Law is, as far
as possible, to include operation in relation to the
following--
(a) things situated in or outside the territorial
limits of this jurisdiction;
(b) acts, transactions and matters done, entered
into or occurring in or outside the territorial
limits of this jurisdiction;
(c) things, acts, transactions and matters
(wherever situated, done, entered into or
occurring) that would, apart from this Law,
be governed or otherwise affected by the law
of another jurisdiction.
17 Law binds the State
(1) This Law binds the State.
(2) No criminal liability attaches to the State itself
(as distinct from its agents, instrumentalities,
officers and employees) under this Law.
18 Relationship with primary work health and
safety laws
(1) This Law does not limit the application of the
primary WHS Law or any regulations made under
that Law.
(2) Evidence of a relevant contravention of this Law is
admissible in any proceeding for an offence against
the primary WHS Law.
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(3) Compliance with this Law, or with any requirement
imposed under this Law, is not, in itself, evidence
that a person has complied with the primary WHS
Law or any regulations made under that Law or
with a common law duty of care.
(4) In this section--
primary WHS Law, for a participating jurisdiction,
means the law that is declared by a law of that
jurisdiction to be the primary WHS Law for the
purposes of this Law.
Note--
`WHS' stands for workplace health and safety.
Part 1.4 Performance based
standards
19 Main purpose of this Part
(1) The main purposes of this Part and other associated
provisions of this Law are to enable PBS vehicles
that meet a particular performance level to operate
(unless otherwise specified by the responsible
Minister) on roads that are authorised to be used by
PBS vehicles that meet or exceed that performance
level.
(2) It is intended that authorisations or exemptions can
be granted under this Law for PBS vehicles.
20 Notification to road authority of PBS design
approval
The Regulator must, as soon as practicable, notify
the road authority for this jurisdiction, in writing, of
a PBS design approval, together with a description
of the significant features of the design to which the
approval relates.
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21 Notification by responsible Minister of non-
application or restricted application of PBS
design approval
(1) The responsible Minister for this jurisdiction may
notify the Regulator in writing that any heavy
vehicle built to a design that is the subject of a PBS
design approval--
(a) is not to be permitted to operate in this
jurisdiction; or
(b) is only to be permitted to operate in this
jurisdiction subject to stated conditions.
(2) A notice under this section can not be about--
(a) a particular person; or
(b) a particular heavy vehicle.
(3) A notice under this section is not valid for the
purposes of this Law if it does not set out reasons
for why it has been issued.
(4) On receiving a notice under this section, the
Regulator must give a copy of the notice to the
person who was given the PBS design approval.
(5) On receiving a notice under this section, the
Regulator must accordingly impose on the PBS
design approval--
(a) a condition giving effect to subsection (1)(a);
or
(b) the stated conditions referred to in
subsection (1)(b).
22 Application for PBS design approval
(1) An application for a PBS design approval for the
design of a type of heavy vehicle may be made to
the Regulator.
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(2) In assessing the application, the Regulator must
have regard to--
(a) the approved guidelines relevant to the grant
of PBS design approvals; and
(b) any performance based standards and
assessment rules prescribed in the national
regulations for the purposes of this paragraph;
and
(c) the advice of the PBS Review Panel in
relation to the application.
(3) Having assessed the application, the Regulator
must approve or reject the application.
(4) The Regulator may approve the application subject
to any condition the Regulator considers
appropriate.
(5) The PBS design approval must state the conditions
(if any) to which it is subject under subsection (4)
or section 21(5).
23 Application for PBS vehicle approval
(1) An application for a PBS vehicle approval for a
heavy vehicle may be made to the Regulator.
(2) In assessing the application, the Regulator must
have regard to--
(a) the approved guidelines relevant to the grant
of PBS vehicle approvals; and
(b) any vehicle certification rules prescribed in
the national regulations for the purposes of
this paragraph; and
(c) the advice of the PBS Review Panel in
relation to the application.
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(3) Having assessed the application, the Regulator
must approve or reject the application.
(4) The Regulator may approve the application subject
to conditions included in the PBS design approval
to which the heavy vehicle is built.
(5) The PBS vehicle approval must state the conditions
(if any) to which--
(a) the PBS vehicle approval is subject under
subsection (4); and
(b) the relevant PBS design approval is subject
under section 21(5).
(6) A PBS vehicle approval can not be given for a
class 1 heavy vehicle.
24 Exemption from stated vehicle standards
(1) A PBS vehicle approval for a heavy vehicle may
provide that the vehicle is exempt from stated
vehicle standards.
(2) Subsection (1) applies only to vehicle standards of
a kind prescribed by the national regulations for the
purposes of this section.
Note--
See section 60(6).
25 Authorisation of different mass or dimension
requirement
(1) A PBS vehicle approval for a heavy vehicle may
provide that the vehicle is authorised to have a
mass limit that exceeds a limit that would otherwise
apply to the vehicle under a prescribed mass
requirement.
Note--
See section 96(4).
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(2) A PBS vehicle approval for a heavy vehicle may
provide that the vehicle is authorised to have a
dimension that exceeds a dimension limit that
would otherwise apply to the vehicle under a
prescribed dimension requirement.
Note--
See section 102(4).
26 National regulations
The national regulations may provide for--
(a) the procedures for determining an application
for a PBS design approval or a PBS vehicle
approval, including, for example, providing
for the time for making a decision on the
application, the fee for the application and
forms relating to the application; and
(b) the procedures for cancelling or modifying a
PBS design approval or PBS vehicle
approval; and
(c) performance based standards, and assessment
and certification rules, relating to PBS design
approvals or PBS vehicle approvals; and
(d) the appointment, functions and management
of persons as PBS assessors and PBS vehicle
certifiers.
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Chapter 2 Registration
Note--
If this Chapter is not to commence at the same time as
other provisions of this Law but at a later time, transitional
provisions for this jurisdiction relating to and consequential
on the delayed commencement are intended to be dealt
with by national regulations or by legislation of this
jurisdiction.
Part 2.1 Preliminary
27 Main purpose of Ch 2
The main purpose of this Chapter is to establish a
scheme for the national registration of heavy
vehicles that--
(a) allows for the registration of heavy vehicles
of a standard and in a condition that prevents
or minimises safety risks; and
(b) recognises that unregistered heavy vehicles
may be used on roads in particular
circumstances without posing significant
safety risks; and
(c) provides for identifying heavy vehicles and
the persons responsible for them; and
(d) ensures compliance with--
(i) vehicle registration duty legislation; and
(ii) third party insurance legislation.
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Part 2.2 Registration scheme
Division 1 Preliminary
28 Scheme for registration of heavy vehicles
(1) The national regulations may prescribe procedures
for the registration of heavy vehicles.
(2) Without limiting subsection (1), the national
regulations may prescribe--
(a) the persons who are eligible to have heavy
vehicles registered in their name; and
(b) the heavy vehicles that are eligible to be
registered; and
(c) the circumstances in which heavy vehicles
may be registered without conditions; and
(d) the circumstances in which heavy vehicles
may be registered subject to conditions; and
(e) the period for which heavy vehicles may be
registered; and
(f) the circumstances in which unregistered
heavy vehicle permits may be issued for
heavy vehicles, and conditions that may be
imposed on the permits; and
(g) the charges payable for the registration of
heavy vehicles, and refunds of part of the
charges paid for a heavy vehicle's registration
if the registration is surrendered before it
expires; and
(h) requirements about the display of plates and
labels on heavy vehicles to identify the
vehicles' registration; and
(i) matters about--
(i) the renewal of the registration of heavy
vehicles; and
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(ii) the transfer or surrender of the
registration of heavy vehicles; and
(iii) the amendment, suspension or
cancellation of the registration of heavy
vehicles or unregistered heavy vehicle
permits for heavy vehicles; and
(iv) the refusal of the registration or renewal
of the registration, or the suspension or
cancellation of the registration, of heavy
vehicles for--
(A) noncompliance with requirements
of vehicle registration duty
legislation or third party insurance
legislation of the State or Territory
in which a vehicle's garage
address is located; or
(B) not providing adequate proof of
compliance with any of the
requirements referred to in sub-
subparagraph (A); and
(v) without limiting subparagraph (iv), the
suspension or cancellation of the
registration of heavy vehicles for--
(A) noncompliance with any of the
requirements referred to in that
subparagraph if a vehicle's garage
address changes during the period
of registration; or
(B) not providing adequate proof of
compliance with any of the
requirements referred to in sub-
subparagraph (A); and
(j) matters about the provision of the Regulator's
services to States and Territories, under
agreements mentioned in section 658(2)(b),
relating to--
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(i) collecting vehicle registration duty; or
(ii) ensuring compliance with third party
insurance legislation, including, for
example, by collecting third party
insurance premiums.
29 Registration not evidence of title
The registration of a heavy vehicle under this Law
is not evidence of title to the heavy vehicle.
Division 2 Requirement for heavy vehicle
to be registered
30 Registration requirement
(1) A person must not use, or permit to be used, on a
road--
(a) an unregistered heavy vehicle; or
(b) a heavy vehicle whose registration is
suspended under the national regulations.
Maximum penalty--$10000.
(2) Subsection (1) does not apply to the use of an
unregistered heavy vehicle on a road if--
(a) the vehicle is being used under an
unregistered heavy vehicle permit; or
(b) the use of the vehicle on the road is
authorised under Division 3.
Division 3 Authorised use of unregistered
heavy vehicle
31 Purpose of Div 3
The purpose of this Division is to state, for the
purposes of section 30(2)(b), the circumstances in
which an unregistered heavy vehicle is authorised
to be used on a road.
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32 Unregistered heavy vehicle on journey for
obtaining registration
(1) An unregistered heavy vehicle may be used on a
road when--
(a) any of the following apply--
(i) it is on a journey to the nearest
registration place and is travelling on the
most direct and convenient route to the
registration place from where the
journey began;
(ii) it is on a journey to the nearest
registration place by way of the nearest
inspection place to the registration place
and is travelling on the most direct and
convenient route to the inspection place
from where the journey began;
(iii) it is on a journey to the nearest
registration place by way of the nearest
inspection place from where the journey
began and is travelling on the most
direct and convenient route to the
registration place from the inspection
place; and
(b) it does not have any goods in it; and
(c) the requirements (if any) of third party
insurance legislation applying to the vehicle
are complied with.
(2) In this section--
inspection place means a place where the heavy
vehicle can be taken for the purpose of inspecting
or weighing the vehicle for registration purposes.
registration place means a place where the heavy
vehicle is required to be taken for the purpose of
obtaining registration of the vehicle (whether or not
it is also an inspection place).
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33 Unregistered heavy vehicle temporarily in
Australia
(1) An unregistered heavy vehicle may be used on a
road if--
(a) the vehicle--
(i) is temporarily in Australia; and
(ii) is registered in a foreign country; and
(b) the foreign number plates and labels for the
vehicle are conspicuously displayed on the
vehicle and in the way (if any) required by a
law of the foreign country; and
(c) so far as is reasonably practicable, the vehicle
is used in accordance with any conditions of
the registration in the foreign country; and
(d) the driver of the vehicle keeps in the driver's
possession proof of an applicable temporary
admission carnet; and
(e) the requirements (if any) of third party
insurance legislation applying to the vehicle
are complied with.
(2) In this section--
foreign number plates and labels, for a heavy
vehicle registered in a foreign country, means the
number plates and labels required, under a law of
the foreign country, to be displayed on the vehicle
if it is used on a road in the foreign country.
temporary admission carnet means a document
that is or is of the same nature as a carnet de
passages en douane, relating to the presence in
Australia of a heavy vehicle registered in a foreign
country.
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34 Unregistered heavy vehicle used for short term
only
(1) An unregistered heavy vehicle may be used on a
road if--
(a) a road authority has, under a law of a
participating jurisdiction, authorised the use
of the vehicle on the road for short-term
purposes; and
(b) the short-term number plates for the vehicle
are conspicuously displayed on the vehicle in
the way (if any) required under that law; and
(c) the vehicle is used in accordance with any
conditions imposed by the road authority on
the authorisation; and
(d) the requirements (if any) of third party
insurance legislation applying to the vehicle
are complied with.
(2) In this section--
short-term number plates, for a heavy vehicle
authorised by a road authority to be used on a road
as mentioned in subsection (1)(a), means the
number plates (usually called `trade plates') issued
by the road authority and required under the law
under which the authorisation is given to be
displayed on the vehicle if it is used on a road
under the authorisation.
35 Unregistered heavy vehicle used locally only
(1) An unregistered heavy vehicle may be used on a
road if--
(a) the vehicle is on a journey between 2 parcels
of land used solely, or mainly, for primary
production and is travelling by the most direct
or convenient route between the places; and
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(b) for any one use, the total distance travelled on
a road is not more than 500m; and
(c) the requirements (if any) of third party
insurance legislation applying to the vehicle
are complied with.
(2) In this section--
primary production means primary production for
agriculture or fishing.
36 Unregistered heavy vehicle that is an
agricultural vehicle
An unregistered heavy vehicle may be used on a
road if--
(a) it is--
(i) an agricultural implement being towed
by--
(A) an agricultural machine that is
registered; or
(B) another registered heavy vehicle;
or
(ii) an agricultural trailer being towed by--
(A) an agricultural machine that is
being used to perform agricultural
tasks for which it was built and is
registered; or
(B) a conditionally registered heavy
vehicle; and
(b) the requirements (if any) of third party
insurance legislation applying to the vehicle
are complied with.
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37 Unregistered heavy vehicle being towed
An unregistered heavy vehicle may be used on a
road if--
(a) it is being lawfully towed by a tow truck; and
(b) the requirements (if any) of third party
insurance legislation applying to the vehicle
are complied with.
38 Unregistered heavy vehicle to which exemption
under Div 4 applies
An unregistered heavy vehicle may be used on a
road if--
(a) it is of a category of heavy vehicles exempted
from the requirement to be registered under
Division 4; and
(b) it complies with, or is being used in
compliance with, any applicable conditions
referred to in Division 4; and
(c) the requirements (if any) of third party
insurance legislation applying to the vehicle
are complied with.
39 Driver to carry proof of compliance with third
party insurance legislation
(1) This section applies if use of an unregistered heavy
vehicle in any of the circumstances referred to in
sections 32 to 38 is dependent on compliance with
the requirements of third party insurance legislation
applying to the vehicle.
(2) A person must not use, or permit to be used, the
unregistered heavy vehicle on a road in any of
those circumstances if the driver does not have in
the driver's possession proof that the requirements
of third party insurance legislation applying to the
vehicle are complied with.
Maximum penalty--$3000.
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Division 4 Exemption from requirement to
be registered
Subdivision 1 Exemption by Regulator
40 Regulator's power to exempt category of heavy
vehicles from requirement to be registered
(1) The Regulator may, by Commonwealth Gazette
notice complying with section 44, exempt a
category of heavy vehicles from the requirement to
be registered, for a period of not more than 1 year.
(2) An exemption under subsection (1) is a registration
exemption.
41 Restriction on grant of registration exemption
(1) The Regulator may grant a registration exemption
under this Subdivision only if the Regulator is
satisfied--
(a) it is not reasonable to require heavy vehicles
of the category to be registered; and
(b) the use of heavy vehicles of the category on a
road without being registered will not pose a
significant safety risk.
(2) In deciding whether to grant a registration
exemption, the Regulator must have regard to the
approved guidelines for granting registration
exemptions.
42 Conditions of registration exemption
A registration exemption under this Subdivision
may be subject to any conditions the Regulator
considers appropriate, including, for example, 1 or
more of the following conditions--
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(a) that a heavy vehicle may be used on a road
under the exemption only--
(i) on stated routes; or
(ii) during stated hours of stated days;
(b) that the driver of a heavy vehicle who is
driving the vehicle on a road under the
exemption must keep in the driver's
possession--
(i) a copy of the Commonwealth Gazette
notice for the exemption; or
(ii) an information sheet about the
exemption published by the Regulator
on the Regulator's website;
(c) that stated signs or other things must be
displayed on a heavy vehicle being used on a
road under the exemption.
43 Period for which registration exemption applies
A registration exemption under this Subdivision--
(a) takes effect--
(i) when the Commonwealth Gazette notice
for the exemption is published; or
(ii) if a later time is stated in the
Commonwealth Gazette notice, at the
later time; and
(b) applies for the period stated in the
Commonwealth Gazette notice.
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44 Requirements about Commonwealth Gazette
notice
(1) A Commonwealth Gazette notice for a registration
exemption under this Subdivision must state the
following--
(a) the category of heavy vehicles to which the
exemption applies;
(b) the conditions of the exemption;
(c) the period for which the exemption applies.
(2) The Regulator must publish a copy of the
Commonwealth Gazette notice on the Regulator's
website.
45 Amendment or cancellation of registration
exemption
(1) Each of the following is a ground for amending or
cancelling a registration exemption granted under
this Subdivision--
(a) the use of heavy vehicles on a road under the
exemption has caused, or is likely to cause, a
significant safety risk;
(b) since the exemption was granted, there has
been a change in the circumstances that were
relevant to the Regulator's decision to grant
the exemption and, had the changed
circumstances existed when the exemption
was granted, the Regulator would not have
granted the exemption, or would have granted
the exemption subject to conditions or
different conditions.
(2) If the Regulator considers a ground exists to amend
or cancel a registration exemption, the Regulator
may amend or cancel the exemption by complying
with subsections (3) to (5).
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(3) The Regulator must publish a notice in the
Commonwealth Gazette, in a newspaper circulating
generally throughout each participating jurisdiction
and on the Regulator's website--
(a) stating that the Regulator believes a ground
mentioned in subsection (1)(a) or (b) for
amending or cancelling the exemption exists;
and
(b) outlining the facts and circumstances forming
the basis for the belief; and
(c) stating the action the Regulator is proposing
to take under this section (the proposed
action); and
(d) inviting 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.
(4) If, after considering all written representations
made under subsection (3)(d), the Regulator still
considers a ground exists to take the proposed
action, the Regulator may--
(a) if the proposed action was to amend the
exemption--amend the exemption, including,
for example, by imposing additional
conditions on the exemption, in a way that is
not substantially different from the proposed
action; or
(b) if the proposed action was to cancel the
exemption--
(i) amend the exemption, including, for
example, by imposing additional
conditions on the exemption; or
(ii) cancel the exemption.
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(5) Notice of the amendment or cancellation must be
published--
(a) in--
(i) the Commonwealth Gazette; and
(ii) a newspaper circulating generally
throughout each participating
jurisdiction; and
(b) on the Regulator's website.
(6) The amendment or cancellation takes effect--
(a) 28 days after the Commonwealth Gazette
notice is published; or
(b) if a later time is stated in the Commonwealth
Gazette notice, at the later time.
46 Immediate suspension
(1) This section applies if the Regulator considers it is
necessary to suspend a registration exemption
granted under this Subdivision immediately to
prevent or minimise serious harm to public safety
or significant damage to road infrastructure.
(2) The Regulator may, by publishing a notice as
mentioned in subsection (3) (immediate suspension
notice), immediately suspend the exemption until
the earliest of the following--
(a) the Regulator publishes a notice under section
45(5) and the amendment or cancellation
takes effect under section 45(6);
(b) the Regulator cancels the suspension;
(c) the end of 56 days after the day the
immediate suspension notice is published.
(3) The immediate suspension notice, and (where
relevant) notice of the cancellation of the
suspension, must be published--
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(a) in--
(i) the Commonwealth Gazette; and
(ii) a newspaper circulating generally
throughout each relevant participating
jurisdiction; and
(b) on the Regulator's website; and
(c) in any other newspaper the Regulator
considers appropriate.
Example for the purposes of paragraph (c)--
If the exemption relates to a particular part of a
participating jurisdiction, the Regulator may
consider it appropriate to publish the notice in a
newspaper circulating generally in the part.
(4) The suspension, and (where relevant) the
cancellation of the suspension, takes effect
immediately after the Commonwealth Gazette
notice is published under subsection (3).
(5) This section applies despite section 45.
(6) In this section--
relevant participating jurisdiction, for an
exemption granted under this Subdivision, means a
participating jurisdiction in which the whole or part
of an area or route to which the exemption applies
is situated.
Subdivision 2 Exemption by national
regulations
47 National regulations exempting heavy vehicles
from requirement to be registered
(1) The national regulations may provide for the
exemption of heavy vehicles from the requirement
to be registered.
(2) An exemption under subsection (1) is a registration
exemption.
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(3) Without limiting subsection (1), the national
regulations may prescribe matters about--
(a) the registration exemptions for categories of
heavy vehicles; and
(b) the amendment, suspension or cancellation of
registration exemptions; and
(c) the imposition, amendment or cancellation of
the conditions (if any) to which a registration
exemption is subject, whether any such
condition is stated in, or is of a kind
authorised to be made under, the national
regulations.
Part 2.3 Vehicle register
48 Vehicle register
(1) The Regulator must 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.
(2) The vehicle register must--
(a) be kept in the way prescribed by the national
regulations; and
(b) contain the particulars prescribed by the
national regulations.
(3) The Regulator may include in the vehicle register
other information the Regulator considers
reasonable and relevant to the purposes of this Law.
Part 2.4 Other provisions relating
to registration
49 Ownership of registration items
A registration item issued by the Regulator remains
the property of the Regulator.
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50 Obtaining registration or registration items by
false statements etc.
(1) A person must not attempt to have a heavy vehicle
registered, or to have the registration of a heavy
vehicle renewed or transferred, or to be issued with
an unregistered heavy vehicle permit, under this
Law--
(a) by making a statement or representation the
person knows is false or misleading in a
material particular; or
(b) in another dishonest way.
Maximum penalty--$10000.
(2) A person must not, without a reasonable excuse,
possess a registration item obtained--
(a) by making a statement or representation the
person knows is false or misleading in a
material particular; or
(b) in another dishonest way.
Maximum penalty--$10000.
(3) The registration of a heavy vehicle is void if a
person contravenes subsection (1) in relation to the
registration or the renewal or transfer of the
registration of the vehicle.
(4) A registration item is void if a person contravenes
subsection (2) in relation to obtaining the item.
51 Replacement and recovery of certain
registration items
(1) This section applies if the Regulator is reasonably
satisfied a registration item (the relevant item)
issued by the Regulator for the purposes of this
Law is incorrect, is a duplicate, is of poor quality or
is difficult to read.
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(2) The Regulator may cancel the relevant item and, if
the Regulator considers it is appropriate--
(a) issue a replacement registration item to the
registered operator of the heavy vehicle; or
(b) by notice, require the registered operator of
the heavy vehicle to return the relevant item
to the Regulator.
(3) A person who is given a notice under subsection
(2)(b) must comply with the notice, unless the
person has a reasonable excuse.
Maximum penalty--$4000.
52 Verification of particular records
(1) This section applies in relation to a heavy vehicle--
(a) registered under this Law; or
(b) the subject of an unregistered heavy vehicle
permit.
(2) The Regulator may, by notice, require a registered
operator of the heavy vehicle or the holder of an
unregistered heavy vehicle permit for the vehicle--
(a) to produce documents about, or otherwise
verify, a matter about the vehicle included in
the vehicle register or other records kept by
the Regulator for the purposes of this Law; or
(b) at a stated reasonable time and place, to--
(i) present the heavy vehicle for inspection
by the Regulator; or
(ii) personally attend on the Regulator for
identification purposes.
(3) Without limiting subsection (2)(a), the Regulator
may require the production of documents or other
verification relating to any of the following--
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(a) the identity, description or condition of the
heavy vehicle;
(b) the origin or history of the heavy vehicle;
(c) the identity and address of the operator of the
heavy vehicle;
(d) the garage address of the heavy vehicle;
(e) the currency of any compulsory third party
insurance required for the heavy vehicle
under third party insurance legislation.
(4) A person given a notice under subsection (2) must
comply with the notice, unless the person has a
reasonable excuse.
Maximum penalty--$3000.
Part 2.5 Written-off and wrecked
heavy vehicles
53 Purpose of Pt 2.5
The purpose of this Part is to provide for the
collection and recording of information about
written-off or wrecked heavy vehicles to ensure a
previously written-off or wrecked heavy vehicle is
registered only if--
(a) the identity of the vehicle and its operator is
certain; and
(b) the vehicle is safe.
54 Definitions for Pt 2.5
In this Part--
insurer means a body corporate authorised under
the Insurance Act 1973 of the Commonwealth to
carry on insurance business.
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wrecked, for a heavy vehicle, means the vehicle
is--
(a) demolished or dismantled; or
(b) in a state or condition prescribed by the
national regulations.
written-off, for a heavy vehicle, means the vehicle
can not reasonably be expected to be repaired,
including because--
(a) an insurer has decided the vehicle should not
be repaired; or
(b) the vehicle is in a state or condition
prescribed by the national regulations.
55 Written-off and wrecked heavy vehicles register
(1) The Regulator must keep a register of written-off
and wrecked heavy vehicles (the written-off and
wrecked vehicles register).
(2) The written-off and wrecked vehicles register
must--
(a) be kept in the way prescribed by the national
regulations; and
(b) contain the particulars prescribed by the
national regulations, to the extent the
particulars apply, for each heavy vehicle that
is written-off or wrecked.
(3) The Regulator may include in the written-off and
wrecked vehicles register other information the
Regulator considers reasonable and relevant to the
purpose of this Part.
(4) The national regulations may provide for--
(a) the written-off and wrecked vehicles register
to be kept in a form allowing other entities to
make entries in it, and the making of the
entries; and
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(b) access to the written-off and wrecked
vehicles register by particular entities, with or
without conditions; and
(c) the giving of information contained in the
written-off and wrecked vehicles register to
particular entities, with or without conditions;
and
(d) creating an offence of driving written-off and
wrecked heavy vehicles; and
(e) notifying the Regulator about written-off and
wrecked heavy vehicles.
Part 2.6 Other provisions
56 Regulator may specify GCM in particular
circumstances
(1) This section applies if--
(a) under the national regulations, a person
applies for--
(i) the registration or the renewal of the
registration of a heavy motor vehicle; or
(ii) an unregistered heavy vehicle permit for
a heavy motor vehicle; and
(b) the total maximum loaded mass of the heavy
motor vehicle and any vehicles it may
lawfully tow at any given time--
(i) is not stated by the heavy motor
vehicle's manufacturer on the vehicle's
identification plate or another place on
the vehicle; or
(ii) is stated as mentioned in subparagraph
(i) but is no longer appropriate because
the vehicle has been modified since the
total maximum loaded mass was stated
as mentioned in subparagraph (i).
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(2) The Regulator may specify the total maximum
loaded mass for the heavy motor vehicle and any
vehicles it may lawfully tow at any given time for
the purposes of this Law.
Note--
Under the national regulations--
(a) if the Regulator registers a heavy motor vehicle,
the Regulator must give the registered operator a
certificate of registration, and a registration label,
for the vehicle stating the vehicle's GCM, and
record the vehicle's GCM in the vehicle register;
and
(b) if the Regulator issues an unregistered heavy
vehicle permit for a heavy motor vehicle, the
permit must state the vehicle's GCM, and the
Regulator must record the vehicle's GCM in the
vehicle register.
57 Regulator may specify GVM in particular
circumstances
(1) This section applies if--
(a) under the national regulations, a person
applies for--
(i) the registration or the renewal of the
registration of a heavy vehicle; or
(ii) an unregistered heavy vehicle permit for
a heavy vehicle; and
(b) either the vehicle does not have an
identification plate or the vehicle's maximum
loaded mass--
(i) is not stated on the vehicle's
identification plate; or
(ii) is stated on the vehicle's identification
plate but is no longer appropriate
because the vehicle has been modified
since the maximum loaded mass was
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stated on the vehicle's identification
plate.
(2) The Regulator may specify the vehicle's maximum
loaded mass for the purposes of this Law.
Note--
Under the national regulations--
(a) if the Regulator registers a heavy vehicle, the
Regulator must give the registered operator a
certificate of registration, and a registration label,
for the vehicle stating the vehicle's GVM, and
record the vehicle's GVM in the vehicle register;
and
(b) if the Regulator issues an unregistered heavy
vehicle permit for a heavy vehicle, the permit must
state the vehicle's GVM, and the Regulator must
record the vehicle's GVM in the vehicle register.
Chapter 3 Vehicle operations--
standards and safety
Part 3.1 Preliminary
58 Main purpose of Ch 3
The main purpose of this Chapter is to ensure
heavy vehicles used on roads are of a standard and
in a condition that prevents or minimises safety
risks.
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Part 3.2 Compliance with heavy
vehicle standards
Division 1 Requirements
59 Heavy vehicle standards
(1) The national regulations may prescribe vehicle
standards (heavy vehicle standards) with which
heavy vehicles must comply to use roads.
(2) Without limiting subsection (1), the heavy vehicle
standards may include requirements applying to--
(a) heavy vehicles; or
(b) components of heavy vehicles, including
component vehicles that are not heavy
vehicles; or
(c) equipment of heavy vehicles.
(3)The national regulations may prescribe
exemptions or different requirements for
component vehicles that are not heavy vehicles.
60 Compliance with heavy vehicle standards
(1) A person must not use, or permit to be used, on a
road a heavy vehicle that contravenes a heavy
vehicle standard applying to the vehicle.
Maximum penalty--
(a) $3000, except as provided in paragraph (b);
or
(b) $6000, for contravention of a heavy vehicle
standard relating to a speed limiter.
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(2) Subsection (1) does not apply to--
(a) a heavy vehicle that--
(i) is on a journey to a place for the repair
of the vehicle, or any of its components
or equipment, and is travelling on the
most direct or convenient route to that
place from the place where the journey
began; and
Note for the purposes of subparagraph (i)--
The subparagraph does not operate to exempt
a person from complying with the
requirements of a vehicle defect notice
applying to the vehicle.
(ii) does not have any goods in it; and
(iii) is used on a road in a way that does not
pose a safety risk; or
(b) a heavy vehicle that--
(i) is on a road for testing or analysis of the
vehicle, or any of its components or
equipment, by an approved vehicle
examiner for the purpose of checking its
compliance with the heavy vehicle
standards; and
(ii) does not have any passengers in it; and
(iii) does not have any goods in it, unless--
(A) it has a quantity of goods that is
necessary or appropriate for the
conduct of the testing or analysis;
and
(B) without limiting subparagraph
(iv), there are no reasonable
grounds to believe the vehicle
laden with those goods poses a
significant safety risk; and
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(iv) is used on a road in a way that does not
pose a safety risk.
(3) A person does not commit an offence against
subsection (1) in relation to a heavy vehicle's
noncompliance with a heavy vehicle standard if,
and to the extent, the noncompliance relates to a
noncompliance known to the Regulator when the
vehicle was registered under the national
regulations.
(4) For the purposes of subsection (3), the Regulator is
taken to know of a heavy vehicle's noncompliance
with a heavy vehicle standard when the vehicle was
registered under the national regulations if the
noncompliance is mentioned in--
(a) an operations plate that was installed on the
vehicle when it was registered; or
(b) a certificate of approved operations issued for
the vehicle and in force when the vehicle was
registered; or
(c) a document obtained by the Regulator under
the national regulations in connection with
the registration of the vehicle.
(5) Subsection (3) applies only if the heavy vehicle,
and its use on a road, complies with the conditions
of the registration.
(6) If a PBS vehicle is exempt from vehicle standards
stated in its PBS vehicle approval but it complies
with the other applicable vehicle standards, the
vehicle is regarded for the purposes of this Law as
complying with the vehicle standards applying to
the vehicle.
Note--
See also section 81(4) to (6) for the effect of a vehicle
standards exemption on compliance with subsection (1).
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Division 2 Exemptions by Commonwealth
Gazette notice
61 Regulator's power to exempt category of heavy
vehicles from compliance with heavy vehicle
standard
(1) The Regulator may, by Commonwealth Gazette
notice complying with section 65, exempt, for a
period of not more than 5 years, a category of
heavy vehicles from the requirement to comply
with a heavy vehicle standard.
(2) An exemption under subsection (1) is a vehicle
standards exemption (notice).
62 Restriction on grant of vehicle standards
exemption (notice)
(1) The Regulator may grant a vehicle standards
exemption (notice) for a category of heavy vehicles
only if--
(a) 1 of the following applies--
(i) the Regulator is satisfied complying
with the heavy vehicle standard to which
the exemption is to apply would prevent
heavy vehicles of that category from
operating in the way in which, or for the
purpose for which, the vehicles were
built or modified;
(ii) 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 heavy vehicle standard
to which the exemption is to apply;
(iii) 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;
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(iv) the category of heavy vehicles consists
of heavy vehicles that, immediately
before the commencement of this
section in a participating jurisdiction,
were not required to comply with a
similar standard at that time and were--
(A) registered under an Australian
road law of that jurisdiction and
not required to comply with a
similar standard at that time; or
(B) operating under an unregistered
heavy vehicle permit or exemption
from registration (however
described) granted or issued under
an Australian road law of that
jurisdiction;
(v) the category of heavy vehicles consists
of heavy vehicles referred to in the
national regulations for the purposes of
this subparagraph; and
(b) the Regulator is satisfied the use of heavy
vehicles of the category to which the
exemption is to apply on a road under the
exemption will not pose a significant safety
risk.
(2) In deciding whether to grant a vehicle standards
exemption (notice), the Regulator must have regard
to the approved guidelines for granting vehicle
standards exemptions.
(3) The national regulations may prescribe additional
requirements or restrictions regarding the granting
of a vehicle standards exemption (notice).
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63 Conditions of vehicle standards exemption
(notice)
A vehicle standards exemption (notice) may be
subject to any conditions the Regulator considers
appropriate, including, for example--
(a) conditions about protecting road
infrastructure from damage; and
(b) a condition that the driver of a heavy vehicle
who is driving the vehicle under the
exemption must keep in the driver's
possession a copy of--
(i) the Commonwealth Gazette notice for
the exemption; or
(ii) an information sheet about the
exemption published by the Regulator
on the Regulator's website.
64 Period for which vehicle standards exemption
(notice) applies
A vehicle standards exemption (notice)--
(a) takes effect--
(i) when the Commonwealth Gazette notice
for the exemption is published; or
(ii) if a later time is stated in the
Commonwealth Gazette notice, at the
later time; and
(b) applies for the period stated in the
Commonwealth Gazette notice.
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65 Requirements about Commonwealth Gazette
notice
(1) A Commonwealth Gazette notice for a vehicle
standards exemption (notice) must state the
following--
(a) the category of heavy vehicles to which the
exemption applies;
(b) the heavy vehicle standard to which the
exemption applies;
(c) the conditions of the exemption;
(d) the period for which the exemption applies.
(2) The Regulator must publish a copy of the
Commonwealth Gazette notice on the Regulator's
website.
66 Amendment or cancellation of vehicle
standards exemption (notice)
(1) Each of the following is a ground for amending or
cancelling a vehicle standards exemption (notice)--
(a) the use of heavy vehicles on a road under the
exemption has caused, or is likely to cause, a
significant safety risk;
(b) since the exemption was granted, there has
been a change in circumstances that were
relevant to the Regulator's decision to grant
the exemption and, had the changed
circumstances existed when the exemption
was granted, the Regulator would not have
granted the exemption, or would have granted
the exemption subject to conditions or
different conditions.
(2) If the Regulator considers a ground exists to amend
or cancel a vehicle standards exemption (notice),
the Regulator may amend or cancel the exemption
by complying with subsections (3) to (5).
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(3) The Regulator must publish a notice in the
Commonwealth Gazette, in a newspaper circulating
generally throughout each participating jurisdiction
and on the Regulator's website--
(a) stating that the Regulator believes a ground
mentioned in subsection (1)(a) or (b) for
amending or cancelling the exemption exists;
and
(b) outlining the facts and circumstances forming
the basis for the belief; and
(c) stating the action the Regulator is proposing
to take under this section (the proposed
action); and
(d) inviting 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.
(4) If, after considering all written representations
made under subsection (3)(d), the Regulator still
considers a ground exists to take the proposed
action, the Regulator may--
(a) if the proposed action was to amend the
exemption--amend the exemption, including,
for example, by imposing additional
conditions on the exemption, in a way that is
not substantially different from the proposed
action; or
(b) if the proposed action was to cancel the
exemption--
(i) amend the exemption, including, for
example, by imposing additional
conditions on the exemption; or
(ii) cancel the exemption.
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(5) Notice of the amendment or cancellation must be
published--
(a) in--
(i) the Commonwealth Gazette; and
(ii) a newspaper circulating generally
throughout each participating
jurisdiction; and
(b) on the Regulator's website.
(6) The amendment or cancellation takes effect--
(a) 28 days after the Commonwealth Gazette
notice is published; or
(b) if a later time is stated in the Commonwealth
Gazette notice, at the later time.
67 Immediate suspension on Regulator's initiative
(1) This section applies if the Regulator considers it is
necessary to suspend a vehicle standards exemption
(notice) immediately to prevent or minimise serious
harm to public safety or significant damage to road
infrastructure.
(2) The Regulator may, by publishing a notice as
mentioned in subsection (3) (immediate suspension
notice), immediately suspend the exemption until
the earliest of the following--
(a) the Regulator publishes a notice under
section 66(5) and the amendment or
cancellation takes effect under section 66(6);
(b) the Regulator cancels the suspension;
(c) the end of 56 days after the day the
immediate suspension notice is published.
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(3) The immediate suspension notice, and (where
relevant) notice of the cancellation of the
suspension, must be published--
(a) in--
(i) the Commonwealth Gazette; and
(ii) a newspaper circulating generally
throughout each participating
jurisdiction; and
(b) on the Regulator's website.
(4) The suspension, and (where relevant) the
cancellation of the suspension, takes effect
immediately after the Commonwealth Gazette
notice is published under subsection (3).
(5) This section applies despite section 66.
Division 3 Exemptions by permit
68 Regulator's power to exempt particular heavy
vehicle from compliance with heavy vehicle
standard
(1) The Regulator may, by giving a person a permit as
mentioned in section 73, exempt a heavy vehicle
from compliance with a heavy vehicle standard for
a period of not more than 3 years.
(2) An exemption under subsection (1) is a vehicle
standards exemption (permit).
(3) A vehicle standards exemption (permit) may apply
to 1 or more heavy vehicles.
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69 Application for vehicle standards exemption
(permit)
(1) A person may apply to the Regulator for a vehicle
standards exemption (permit).
(2) The application must be--
(a) in the approved form; and
(b) accompanied by the prescribed fee for the
application.
(3) The Regulator may, by notice given to the applicant
for a vehicle standards exemption (permit), require
the applicant to give the Regulator any additional
information the Regulator reasonably requires to
decide the application.
70 Restriction on grant of vehicle standards
exemption (permit)
(1) The Regulator may grant a vehicle standards
exemption (permit) for a heavy vehicle only if--
(a) 1 of the following applies--
(i) the Regulator is satisfied complying
with the heavy vehicle standard to which
the exemption is to apply would prevent
the heavy vehicle from operating in the
way in which, or for the purpose for
which, the vehicle was built or
modified;
(ii) 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 heavy vehicle standard to which
the exemption is to apply;
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(iii) the heavy vehicle, immediately before
the commencement of this section in a
participating jurisdiction, was not
required to comply with a similar
standard at that time and was--
(A) registered under an Australian
road law of that jurisdiction; or
(B) operating under an unregistered
heavy vehicle permit or exemption
from registration (however
described) granted or issued under
an Australian road law of that
jurisdiction; and
(b) the Regulator is satisfied the use of the heavy
vehicle on a road under the exemption will
not pose a significant safety risk.
(2) In deciding whether to grant a vehicle standards
exemption (permit), the Regulator must have regard
to the approved guidelines for granting vehicle
standards exemptions.
71 Conditions of vehicle standards exemption
(permit)
A vehicle standards exemption (permit) may be
subject to any conditions the Regulator considers
appropriate, including, for example, a condition
about protecting road infrastructure from damage.
72 Period for which vehicle standards exemption
(permit) applies
(1) A vehicle standards exemption (permit) applies for
the period stated in the permit for the exemption.
(2) The period may be less than the period sought by
the applicant for the vehicle standards exemption
(permit).
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73 Permit for vehicle standards exemption (permit)
etc.
(1) If the Regulator grants a vehicle standards
exemption (permit) to a person, the Regulator must
give the person--
(a) a permit for the exemption; and
(b) if the Regulator has imposed conditions on
the exemption under section 71 or has granted
the exemption for a period less than the
period of not more than 3 years sought by the
person--an information notice for the
decision to impose the conditions or grant the
exemption for the shorter period.
(2) A permit for a vehicle standards exemption
(permit) must state the following--
(a) the name of the person to whom the permit is
given;
(b) each heavy vehicle to which the exemption
applies, including the registration number of
the vehicle if known when the permit is
given;
(c) the heavy vehicle standard to which the
exemption applies;
(d) the conditions of the exemption;
(e) the period for which the exemption applies.
74 Refusal of application for vehicle standards
exemption (permit)
If the Regulator refuses an application for a vehicle
standards exemption (permit), the Regulator must
give the applicant an information notice for the
decision to refuse the application.
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75 Amendment or cancellation of vehicle
standards exemption (permit) on application by
permit holder
(1) The holder of a permit for a vehicle standards
exemption (permit) may apply to the Regulator for
an amendment or cancellation of the exemption.
(2) The application must--
(a) be in the approved form; and
(b) be accompanied by the prescribed fee for the
application; and
(c) if the application is for an amendment--state
clearly the amendment sought and the reasons
for the amendment; and
(d) be accompanied by the permit.
(3) The Regulator may, by notice given to the
applicant, require the applicant to give the
Regulator any additional information the Regulator
reasonably requires to decide the application.
(4) The Regulator must decide the application as soon
as practicable after receiving it.
(5) If the Regulator decides to grant the application--
(a) the Regulator must give the applicant notice
of the decision; and
(b) the amendment or cancellation takes effect--
(i) when notice of the decision is given to
the applicant; or
(ii) if a later time is stated in the notice, at
the later time; and
(c) if the Regulator amended the exemption, the
Regulator must give the applicant a
replacement permit for the exemption as
amended.
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(6) If the Regulator decides not to amend or cancel the
exemption as sought by the applicant, the Regulator
must--
(a) give the applicant an information notice for
the decision; and
(b) return the permit for the exemption to the
applicant.
76 Amendment or cancellation of vehicle
standards exemption (permit) on Regulator's
initiative
(1) Each of the following is a ground for amending or
cancelling a vehicle standards exemption
(permit)--
(a) the exemption was granted because of a
document or representation that was--
(i) false or misleading; or
(ii) obtained or made in an improper way;
(b) the holder of the permit for the exemption has
contravened a condition of the exemption;
(c) the use of a heavy vehicle on a road under the
exemption has caused, or is likely to cause, a
significant safety risk;
(d) since the exemption was granted, there has
been change in the circumstances that were
relevant to the Regulator's decision to grant
the exemption and, had the changed
circumstances existed when the exemption
was granted, the Regulator would not have
granted the exemption, or would have granted
the exemption subject to conditions or
different conditions.
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(2) If the Regulator considers a ground exists to amend
or cancel a vehicle standards exemption (permit)
(the proposed action), the Regulator must give the
holder of the permit for the exemption a notice--
(a) stating the proposed action; and
(b) stating the ground for the proposed action;
and
(c) outlining the facts and circumstances forming
the basis for the ground; and
(d) if the proposed action is to amend the
exemption (including a condition of the
exemption)--stating the proposed
amendment; and
(e) inviting the holder to make, within a stated
time of at least 14 days after the notice is
given to the holder, written representations
about why the proposed action should not be
taken.
(3) If, after considering all written representations
made under subsection (2)(e), the Regulator still
considers a ground exists to take the proposed
action, the Regulator may--
(a) if the proposed action was to amend the
exemption--amend the exemption, including,
for example, by imposing additional
conditions on the exemption, in a way that is
not substantially different from the proposed
action; or
(b) if the proposed action was to cancel the
exemption--
(i) amend the exemption, including, for
example, by imposing additional
conditions on the exemption; or
(ii) cancel the exemption.
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(4) The Regulator must give the holder an information
notice for the decision to amend or cancel the
exemption.
(5) The amendment or cancellation takes effect--
(a) when the information notice is given to the
holder; or
(b) if a later time is stated in the information
notice, at the later time.
77 Immediate suspension on Regulator's initiative
(1) This section applies if the Regulator considers it is
necessary to suspend a vehicle standards exemption
(permit) immediately to prevent or minimise
serious harm to public safety or significant damage
to road infrastructure.
(2) The Regulator may, by notice (immediate
suspension notice) given to the person to whom the
permit was given, immediately suspend the
exemption until the earliest of the following--
(a) the Regulator gives the person an information
notice under section 76(4) and the
amendment or cancellation takes effect under
section 76(5);
(b) the Regulator cancels the suspension;
(c) the end of 56 days after the day the
immediate suspension notice is given to the
person.
(3) This section applies despite sections 75 and 76.
78 Minor amendment of vehicle standards
exemption (permit)
The Regulator may, by notice given to the holder of
a permit for a vehicle standards exemption
(permit), amend the exemption in a minor
respect--
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(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect
the holder's interests.
79 Return of permit
(1) If a person's vehicle standards exemption (permit)
is amended or cancelled, the Regulator may, by
notice, require the person to return the person's
permit for the exemption to the Regulator.
(2) The person must comply with the notice within
7 days after the notice is given to the person or, if a
longer period is stated in the notice, within the
longer period.
Maximum penalty--$4000.
(3) If the exemption has been amended, the Regulator
must give the person a replacement permit for the
exemption as amended.
80 Replacement of defaced etc. permit
(1) If a person's permit for a vehicle standards
exemption (permit) is defaced, destroyed, lost or
stolen, the person must, as soon as reasonably
practicable after becoming aware of the matter,
apply to the Regulator for a replacement permit.
Maximum penalty--$4000.
(2) 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.
(3) If the Regulator decides not to give the person a
replacement permit, the Regulator must give the
person an information notice for the decision.
(4) Subsection (1) does not apply to a vehicle standards
exemption (permit) for which an application to
cancel the permit has been made and is pending
determination.
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Division 4 Operating under vehicle
standards exemption
81 Contravening condition of vehicle standards
exemption
(1) A person must not contravene a condition of a
vehicle standards exemption.
Maximum penalty--$3000.
(2) A person must not use, or permit to be used, on a
road a heavy vehicle that contravenes a condition
of a vehicle standards exemption applying to the
vehicle.
Maximum penalty--$3000.
(3) A person must not use a heavy vehicle, or permit a
heavy vehicle to be used, on a road in a way that
contravenes a condition of a vehicle standards
exemption applying to the vehicle.
Maximum penalty--$3000.
(4) A person does not commit an offence against this
Law in relation to a heavy vehicle contravening a
heavy vehicle standard if--
(a) the heavy vehicle is exempt, under a vehicle
standards exemption, from compliance with
the heavy vehicle standard; and
(b) the heavy vehicle, and its use on a road,
complies with the conditions of the
exemption.
(5) However, if a person commits a condition offence
in relation to the exemption--
(a) the exemption does not operate in the
person's favour while the contravention
constituting the offence continues; and
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(b) the 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.
(6) If, because of the operation of subsection (5), a
person commits an offence against a provision of
this Law (the other offence provision) in relation to
a heavy vehicle standard to which the exemption
applies, the person--
(a) may be charged with the condition offence or
an offence against the other offence
provision; but
(b) must not be charged with both offences.
(7) Subsection (1) does not apply to a condition
mentioned in section 82(1).
(8) In this section--
condition offence means an offence against
subsection (1), (2) or (3).
82 Keeping relevant document while driving under
vehicle standards exemption (notice)
(1) This section 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.
(2) A driver of the heavy vehicle who is driving the
vehicle under the vehicle standards exemption
(notice) must comply with the condition.
Maximum penalty--$3000.
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(3) If the driver of a heavy vehicle commits an offence
against subsection (2), each relevant party for the
driver is taken to have committed an offence
against this subsection.
Maximum penalty--$3000.
(4) A person charged with an offence against
subsection (3) does not have the benefit of the
mistake of fact defence for the offence.
(5) However, in a proceeding for an offence against
subsection (3), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(6) In a proceeding for an offence against
subsection (3)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the offence against
subsection (2); and
(b) evidence a court has convicted the driver of
the offence against subsection (2) is evidence
that the offence happened at the time and
place, and in the circumstances, stated in the
charge resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the offence against
subsection (2) is evidence that the offence
happened at the time and place, and in the
circumstances, stated in the infringement
notice.
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(7) In this section--
relevant document, for a vehicle standards
exemption (notice), means a copy of--
(a) the Commonwealth Gazette notice for the
exemption; or
(b) an information sheet about the exemption
published by the Regulator on the Regulator's
website.
relevant party, for the driver of a heavy vehicle,
means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
(c) an operator of the vehicle if the driver is
making a journey for the operator.
83 Keeping copy of permit while driving under
vehicle standards exemption (permit)
(1) The driver of a heavy vehicle who is driving the
vehicle under a vehicle standards exemption
(permit) must keep a copy of the permit for the
exemption in the driver's possession.
Maximum penalty--$3000.
(2) If the driver of a heavy vehicle is driving the
vehicle under a vehicle standards exemption
(permit) granted to a relevant party for the driver
and the relevant party has given the driver a copy
of a permit for the purpose of subsection (1), the
driver must, as soon as reasonably practicable,
return the copy to the relevant party if the driver
stops working for the relevant party.
Maximum penalty--$3000.
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(3) If the driver of a heavy vehicle commits an offence
against subsection (1), each relevant party for the
driver is taken to have committed an offence
against this subsection.
Maximum penalty--$3000.
(4) A person charged with an offence against
subsection (3) does not have the benefit of the
mistake of fact defence for the offence.
(5) However, in a proceeding for an offence against
subsection (3), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(6) In a proceeding for an offence against
subsection (3)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the offence against subsection
(1); and
(b) evidence a court has convicted the driver of
the offence against subsection (1) is evidence
that the offence happened at the time and
place, and in the circumstances, stated in the
charge resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the offence against
subsection (1) is evidence that the offence
happened at the time and place, and in the
circumstances, stated in the infringement
notice.
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(7) In this section--
relevant party, for the driver of a heavy vehicle,
means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
(c) an operator of the vehicle if the driver is
making a journey for the operator.
Part 3.3 Modifying heavy vehicles
84 Definition for Pt 3.3
In this Part--
modification, of a heavy vehicle, means an
alteration to the vehicle resulting in--
(a) noncompliance with an applicable heavy
vehicle standard; or
(b) a departure from an applicable vehicle
standards exemption, unless the departure
brings the vehicle into full compliance with
all relevant heavy vehicle standards (even if
the departure complies with a particular
heavy vehicle standard).
85 Modifying heavy vehicle requires approval
(1) A person must not modify a heavy vehicle unless
the modification has been approved by--
(a) an approved vehicle examiner under section
86; or
(b) the Regulator under section 87.
Maximum penalty--$3000.
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(2) A person must not use, or permit to be used, on a
road a heavy vehicle that has been modified unless
the modification has been approved by--
(a) an approved vehicle examiner under
section 86; or
(b) the Regulator under section 87.
Maximum penalty--$3000.
86 Approval of modifications by approved vehicle
examiners
(1) An approved vehicle examiner may, if authorised
to do so under the national regulations, approve a
modification of a heavy vehicle if, and only if, the
modification complies with a code of practice
prescribed by the national regulations for the
purposes of this section.
(2) If an approved vehicle examiner approves a
modification of a heavy vehicle, the examiner
must--
(a) give a certificate approving the modification,
in the approved form, to--
(i) the registered operator of the vehicle; or
(ii) if there is no registered operator of the
vehicle--an owner of the vehicle; and
(b) ensure a plate or label that complies with
subsection (3) is fitted or affixed to a
conspicuous part of the vehicle.
Maximum penalty--$3000.
(3) For the purposes of subsection (2)(b), a plate or
label complies with this subsection if--
(a) it is of a type approved by the Regulator; and
(b) it is stamped, engraved or marked so as to
display information that relates to the
modification and that is--
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(i) approved by the Regulator; or
(ii) prescribed by the national regulations
for the purposes of this section.
87 Approval of modification by Regulator
(1) The Regulator may approve a modification of a
heavy vehicle if the Regulator is satisfied--
(a) the use on a road of the modified vehicle will
not pose a significant safety risk; and
(b) as to either or both of the following
(as relevant)--
(i) the modified vehicle will comply with
applicable noise and emission standards
prescribed by national regulations,
except as provided by subparagraph (ii);
(ii) the Regulator has exempted the
modified vehicle from a noise or
emission standard referred to in
subparagraph (i) and the Regulator is
satisfied that the modified vehicle
complies with the requirements of the
exemption.
(2) Subsection (1) applies whether or not the
modification complies with a code of practice
prescribed by the national regulations prescribed
for the purposes of this section.
(3) If the Regulator approves a modification of a heavy
vehicle, the Regulator must--
(a) give a certificate approving the modification,
in the approved form, to--
(i) the registered operator of the vehicle; or
(ii) if there is no registered operator of the
vehicle--an owner of the vehicle; and
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(b) ensure a plate or label that complies with
subsection (4) is fitted or affixed to a
conspicuous part of the vehicle.
(4) For the purposes of subsection (3)(b), a plate or
label complies with this subsection if--
(a) it is of a type approved by the Regulator; and
(b) it is stamped, engraved or marked so as to
display information that relates to the
modification and that is--
(i) approved by the Regulator; or
(ii) prescribed by the national regulations
for the purposes of this section.
88 National regulations for heavy vehicle
modification
The national regulations may provide for any
matter relating to the modification of heavy
vehicles.
Part 3.4 Other offences
89 Safety requirement
(1) A person must not use, or permit to be used, on a
road a heavy vehicle that is unsafe.
Maximum penalty--$6000.
(2) For the purposes of subsection (1), a heavy vehicle
is unsafe only if the condition of the vehicle, or any
of its components or equipment--
(a) makes the use of the vehicle unsafe; or
(b) endangers public safety.
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(3) Subsection (1) does not apply to a heavy vehicle for
which a vehicle defect notice is in force and that is
being moved in accordance with the terms of the
notice.
90 Requirement about properly operating
emission control system
(1) A person must not use, or permit to be used, on a
road a heavy vehicle that is not fitted with an
emission control system for each relevant emission
if and as required by an applicable heavy vehicle
standard.
Maximum penalty--$3000.
(2) A person must not use, or permit to be used, on a
road a heavy vehicle fitted with an emission control
system that is not operating in accordance with the
manufacturer's design.
Maximum penalty--$3000.
(3) A person must not use, or permit to be used, on a
road a heavy vehicle fitted with an emission control
system if the operation of the system results in a
failure to comply with an applicable heavy vehicle
standard (whether in relation to the vehicle or in
relation to the system).
Maximum penalty--$3000.
(4) Subsections (2) and (3) do not apply to a heavy
vehicle that--
(a) is on a journey to a place for the repair of the
emission control system or any of the
vehicle's components or equipment that
affect the operation of the emission control
system; and
(b) is travelling on the most direct or convenient
route to that place from the place where the
journey began.
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(5) The national regulations may prescribe testing
standards for relevant emissions from heavy
vehicles.
(6) In this section--
emission control system means a device or system
fitted to a heavy vehicle that reduces the emission
of a relevant emission from the vehicle.
91 Person must not tamper with emission control
system fitted to heavy vehicle
(1) A person must not tamper with an emission control
system fitted to a heavy vehicle.
Maximum penalty--$10000.
(2) An operator of a heavy vehicle must not use or
permit the vehicle to be used on a road if the
vehicle is fitted with an emission control system
that the operator knows or ought reasonably to
know has been tampered with in contravention of
subsection (1).
Maximum penalty--$10000.
(3) Subsection (1) does not apply to--
(a) conduct associated with repairing a
malfunctioning emission control system or
maintaining an emission control system; or
(b) an authorised officer when exercising
functions under this Law.
(4) Subsection (2) does not apply to a heavy vehicle
that--
(a) is on a journey to a place for the repair of the
emission control system or any of the
vehicle's components or equipment that
affect the operation of the emission control
system; and
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(b) is travelling on the most direct or convenient
route to that place from the place where the
journey began.
(5) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(6) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(7) In this section--
emission control system means a device or system
fitted to a heavy vehicle that reduces the emission
of a relevant emission from the vehicle.
tamper, with an emission control system fitted to a
heavy vehicle, means alter, damage, remove,
override or otherwise interfere with--
(a) the system in a way that renders the system
totally ineffective or less effective than as
provided by an applicable heavy vehicle
standard or (in the absence of an applicable
heavy vehicle standard) as designed; or
(b) the vehicle or any component of the vehicle
in a way that renders the system totally
ineffective or less effective than as provided
by an applicable heavy vehicle standard or
(in the absence of an applicable heavy vehicle
standard) as designed.
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92 Display of warning signs required by heavy
vehicle standards on vehicles to which the
requirement does not apply
(1) This section applies 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.
(2) 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 of the particular
type, size or configuration.
Maximum penalty--$3000.
(3) In this section--
warning sign means a sign indicating that the
vehicle to which it is attached is of a particular
type, size or configuration.
Example of warning sign--
A sign (consisting of 1 or more parts) showing the words
`LONG VEHICLE' or `ROAD TRAIN'.
93 Person must not tamper with speed limiter
fitted to heavy vehicle
(1) A person must not tamper with a speed limiter that
is required under an Australian road law or by order
of an Australian court to be, and is, fitted to a heavy
vehicle.
Maximum penalty--$10000.
(2) A person must not fit, or direct the fitting of, a
speed limiter to a heavy vehicle in circumstances
where the person knows or ought reasonably to
know that the speed limiter has been tampered with
in such a way that, had it been fitted to the vehicle
at the time of the tampering, an offence would have
been committed against subsection (1).
Maximum penalty--$10000.
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(3) An operator of a heavy vehicle must not use or
permit the vehicle to be used on a road if the
operator knows, or ought reasonably to know, that
a speed limiter fitted to the vehicle, as required
under an Australian road law or by order of an
Australian court, has been tampered with in
contravention of subsection (1) or fitted to the
vehicle in contravention of subsection (2).
Maximum penalty--$10000.
(4) Subsections (1) and (2) do not apply to--
(a) conduct associated with repairing a
malfunctioning speed limiter or maintaining a
speed limiter; or
(b) an authorised officer when exercising
functions under this Law.
(5) Subsection (3) does not apply to a heavy vehicle
that--
(a) is on a journey to a place for the repair of the
speed limiter or any of the vehicle's
components or equipment that affect the
operation of the speed limiter; and
(b) is travelling on the most direct or convenient
route to that place from the place where the
journey began.
(6) Subsection (3) applies whether or not a person has
been proceeded against or found guilty of an
offence against subsection (1) or (2) in relation to
the tampering.
(7) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(8) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
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Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(9) In this section--
speed limiter means a device or system that is used
to limit the maximum road speed of a heavy vehicle
to which it is fitted and that complies with any
applicable heavy vehicle standard.
tamper, with a speed limiter fitted to a heavy
vehicle, means alter, damage, remove, override or
otherwise interfere with the speed limiter in a way
that--
(a) enables the vehicle to be driven at a speed
higher than the speed permitted by an
applicable heavy vehicle standard; or
(b) alters, or may alter, any information recorded
by the speed limiter; or
(c) results, or may result, in the speed limiter
recording inaccurate information.
Chapter 4 Vehicle operations--
mass, dimension and
loading
Part 4.1 Preliminary
94 Main purposes of Ch 4
(1) The main purposes of this Chapter are--
(a) to improve public safety by decreasing risks
to public safety caused by excessively loaded
or excessively large heavy vehicles; and
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(b) to minimise any adverse impact of
excessively loaded or excessively large heavy
vehicles on road infrastructure or public
amenity.
(2) The purposes are achieved by--
(a) imposing mass limits for heavy vehicles,
particular components of heavy vehicles, and
loads on heavy vehicles; and
(b) imposing restrictions about the size of heavy
vehicles and the projections of loads on heavy
vehicles; and
(c) imposing requirements about securing loads
on heavy vehicles; and
(d) 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 in paragraphs (a) to (c).
(3) However, this Chapter recognises that the use of
particular heavy vehicles that do not comply with
the mass limits, restrictions and requirements
mentioned in subsection (2)(a) to (c) may be
permitted on roads in particular circumstances and
subject to particular conditions--
(a) to allow for--
(i) the efficient road transport of goods or
passengers by heavy vehicles; or
(ii) the efficient use of large heavy vehicles
that are transporting neither goods nor
passengers and need to use roads for
special uses; and
(b) without compromising the achievement of the
purposes.
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Part 4.2 Mass requirements
Division 1 Requirements
95 Prescribed mass requirements
(1) The national regulations may prescribe
requirements (the prescribed mass requirements)
about the following--
(a) the mass of heavy vehicles;
(b) the mass of components of heavy vehicles.
(2) Without limiting subsection (1), the prescribed
mass requirements may include the following--
(a) requirements about mass limits relating to--
(i) the tare mass of heavy vehicles; or
(ii) the mass of heavy vehicles together with
their loads; or
(iii) the mass on tyres, axles or axle groups
of heavy vehicles;
(b) requirements about mass limits relating to
axle spacing.
(3) Also, without limiting subsection (1) or (2), the
prescribed mass requirements may--
(a) include mass limits that are to apply only to
particular areas or routes; and
(b) authorise or require the Regulator to decide
the areas or routes to which the mass limits
are to apply.
(4) The national regulations may prescribe
requirements (that are not prescribed mass
requirements) about the use on roads of heavy
vehicles under particular mass limits, including, for
example--
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(a) a requirement that drivers of heavy vehicles
using the vehicles under mass limits applying
only to particular areas or routes decided by
the Regulator must comply with conditions
on the use of heavy vehicles on roads under
the mass limits imposed by the Regulator
(including conditions required by road
managers for the roads); and
(b) a requirement that drivers of heavy vehicles
who are driving the vehicles under particular
mass limits must carry particular documents;
and
(c) a requirement that a particular document or
other thing must be displayed on heavy
vehicles used under particular mass limits.
(5) In this section--
tare mass, of a heavy vehicle, means the mass of
the vehicle that--
(a) is ready for service; and
(b) is fitted with all standard equipment, together
with any options that are fitted; and
(c) is unoccupied and unladen; and
(d) has all fluid reservoirs (other than for fuel)
filled to nominal capacity; and
(e) has 10 litres of fuel in the fuel reservoir or
reservoirs (but excluding any loaded fuel in
excess of 10 litres).
96 Compliance with mass requirements
(1) 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.
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Maximum penalty--
(a) for a minor risk breach--$4000; or
(b) for a substantial risk breach--$6000; or
(c) for a severe risk breach--$10000, plus an
additional maximum $500 for every
additional 1% over a 120% overload (but so
that the additional maximum penalty does not
exceed $20000).
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(3) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(4) If a PBS vehicle is authorised by its PBS vehicle
approval to have a mass limit that exceeds a limit
that would otherwise apply to the vehicle under a
prescribed mass requirement, the authorised limit is
taken to be the applicable limit, and the vehicle is
regarded for the purposes of this Law as complying
with the prescribed mass requirement.
Division 2 Categories of breaches of
mass requirements
97 Definitions for Div 2
In this Division--
severe risk breach lower limit, for a particular mass
requirement applying to a heavy vehicle, means a
mass equalling 120% of the maximum mass
(rounded up to the nearest 0.1t) permitted for the
vehicle under that mass requirement.
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substantial risk breach lower limit, for a particular
mass requirement applying to a heavy vehicle,
means the higher of the following--
(a) a mass equalling 105% of the maximum mass
(rounded up to the nearest 0.1t) permitted for
the vehicle under that mass requirement;
(b) 0.5t.
98 Minor risk breach
A contravention of a mass requirement applying to
a heavy vehicle is a minor risk breach if the subject
matter of the contravention is less than the
substantial risk breach lower limit for the
requirement.
99 Substantial risk breach
A contravention of a mass requirement applying to
a heavy vehicle is a substantial risk breach if the
subject matter of the contravention is--
(a) equal to or greater than the substantial risk
breach lower limit for the requirement; and
(b) less than the severe risk breach lower limit
for the requirement.
100 Severe risk breach
A contravention of a mass requirement applying to
a heavy vehicle is a severe risk breach if the subject
matter of the contravention is equal to or greater
than the severe risk breach lower limit for the
requirement.
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Part 4.3 Dimension requirements
Division 1 Requirements
101 Prescribed dimension requirements
(1) The national regulations may prescribe
requirements (the prescribed dimension
requirements) about the following--
(a) the dimensions of a heavy vehicle (together
with its equipment);
(b) the dimensions of a component of a heavy
vehicle;
(c) the dimensions of a heavy vehicle's load.
(2) Without limiting subsection (1), the prescribed
dimension requirements may include requirements
about the following--
(a) the dimensions of a heavy vehicle (together
with its equipment) disregarding its load;
(b) the dimensions of a heavy vehicle together
with its equipment and load;
(c) the dimensions by which a heavy vehicle's
load projects from the vehicle;
(d) the internal measurements of a heavy vehicle,
including, for example--
(i) the distance between components of the
vehicle; and
(ii) for a combination, the distance
between--
(A) the component vehicles of the
combination; or
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(B) a component vehicle of the
combination and a component of
another component vehicle of the
combination.
(3) The national regulations may also prescribe
requirements (that are not prescribed dimension
requirements) about the use of a vehicle to which a
dimension requirement applies, including, for
example, requirements about the use of signs and
warning devices.
102 Compliance with dimension requirements
(1) 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.
Maximum penalty--
(a) if the heavy vehicle does not have goods or
passengers in it--$3000; or
(b) if the heavy vehicle has goods or passengers
in it--
(i) for a minor risk breach--$3000; or
(ii) for a substantial risk breach--$5000; or
(iii) for a severe risk breach--$10000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(3) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
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(4) If a PBS vehicle is authorised by its PBS vehicle
approval to have a dimension that exceeds a
dimension limit that would otherwise apply to the
vehicle under a prescribed dimension requirement,
the authorised dimension is taken to be the
applicable dimension, and the vehicle is regarded
for the purposes of this Law as complying with the
prescribed dimension requirement.
Division 2 Categories of breaches of
dimension requirements
103 Application of Div 2
This Division applies to a heavy vehicle only while
it is carrying goods or passengers.
104 Definitions for Div 2
In this Division--
severe risk breach lower limit means--
(a) for a particular dimension requirement
applying to a heavy vehicle relating to its
length--the length equalling the maximum
length permitted for the vehicle under the
dimension requirement plus 600mm; or
(b) for a particular dimension requirement
applying to a heavy vehicle relating to its
width--the width equalling the maximum
width permitted for the vehicle under the
dimension requirement plus 80mm; or
(c) for a particular dimension requirement
applying to a heavy vehicle relating to its
height--the height equalling the maximum
height permitted for the vehicle under the
dimension requirement plus 300mm; or
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(d) for a particular dimension requirement
applying to a heavy vehicle relating to its
load projection--the projection of the
vehicle's load equalling the maximum load
projection permitted from any side of the
vehicle under the dimension requirement
plus 80mm.
substantial risk breach lower limit means--
(a) for a particular dimension requirement
applying to a heavy vehicle relating to its
length--the length equalling the maximum
length permitted for the vehicle under the
dimension requirement plus 350mm; or
(b) for a particular dimension requirement
applying to a heavy vehicle relating to its
width--the width equalling the maximum
width permitted for the vehicle under the
dimension requirement plus 40mm; or
(c) for a particular dimension requirement
applying to a heavy vehicle relating to its
height--the height equalling the maximum
height permitted for the vehicle under the
dimension requirement plus 150mm; or
(d) for a particular dimension requirement
applying to a heavy vehicle relating to its
load projection--the projection of the
vehicle's load equalling the maximum load
projection permitted from any side of the
vehicle under the dimension requirement
plus 40mm.
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105 Minor risk breach
A contravention of a dimension requirement
applying to a heavy vehicle is a minor risk breach if
the subject matter of the contravention is less than
the substantial risk breach lower limit for the
requirement.
Note--
See also section 108(2).
106 Substantial risk breach
(1) A contravention of a dimension requirement
applying to a heavy vehicle is a substantial risk
breach if--
(a) the subject matter of the contravention is--
(i) equal to or greater than a substantial risk
breach lower limit for the requirement;
and
(ii) less than the severe risk breach lower
limit for the requirement; or
(b) the requirement is a substantial risk breach of
a dimension requirement under subsection (2)
or (3).
(2) A contravention of a dimension requirement
applying to a heavy vehicle relating to its length is
a substantial risk breach if--
(a) the contravention would only be a minor risk
breach of the dimension requirement if this
subsection were not enacted; and
(b) either--
(i) the rear of the vehicle's load does not
carry a sign or warning device required
by the national regulations; or
(ii) the vehicle's load projects in a way that
is dangerous to persons or property.
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(3) A contravention of a dimension requirement
applying to a heavy vehicle relating to its width is a
substantial risk breach if--
(a) the contravention would only be a minor risk
breach of the dimension requirement if this
subsection were not enacted; and
(b) the contravention happens--
(i) at night; or
(ii) in hazardous weather conditions causing
reduced visibility.
Note--
See also section 108(3).
107 Severe risk breach
(1) A contravention of a dimension requirement
applying to a heavy vehicle is a severe risk breach
if--
(a) the subject matter of the contravention is
equal to or greater than the severe risk breach
lower limit for the dimension requirement; or
(b) the contravention is a severe risk breach of
the dimension requirement under subsection
(2) or (3).
(2) A contravention of a dimension requirement
applying to a heavy vehicle relating to its length is
a severe risk breach if--
(a) the contravention would only be a substantial
risk breach of the dimension requirement as
provided by section 106(1)(a) if this
subsection were not enacted; and
(b) either--
(i) the rear of the vehicle's load does not
carry a sign or warning device required
by the national regulations; or
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(ii) the vehicle's load projects from it in a
way that is dangerous to persons or
property.
(3) A contravention of a dimension requirement
applying to a heavy vehicle relating to its width is a
severe risk breach if--
(a) the contravention would only be a substantial
risk breach of the dimension requirement as
provided by section 106(1)(a) if this
subsection were not enacted; and
(b) either--
(i) the contravention happens--
(A) at night; or
(B) in hazardous weather conditions
causing reduced visibility; or
(ii) the vehicle's load projects from it in a
way that is dangerous to persons or
property.
Division 3 Other provisions relating to
load projections
108 Dangerous projections taken to be
contravention of dimension requirement
(1) This section applies if a heavy vehicle's load
projects in a way that is dangerous to persons or
property even if all dimension requirements, and all
warning and other requirements prescribed by the
national regulations, are met.
(2) The projection of the load is taken to be--
(a) a contravention of a dimension requirement;
and
(b) a minor risk breach of that requirement unless
subsection (3) applies.
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(3) The projection of the load is taken to be--
(a) a contravention of a dimension requirement;
and
(b) a substantial risk breach of that requirement if
the contravention happens--
(i) at night; or
(ii) in hazardous weather conditions causing
reduced visibility.
109 Warning signals required for rear projection of
loads
(1) This section applies if--
(a) a load projects more than 1.2m behind a
heavy vehicle consisting of only a motor
vehicle; or
(b) a load projects more than 1.2m behind either
the towing vehicle or a trailer in a heavy
combination; or
(c) a load projects from a pole-type trailer in a
heavy combination; or
(d) a load projects from a heavy vehicle in a way
that it would not be readily visible to a person
following immediately behind the vehicle.
(2) A person must not use the heavy vehicle, or permit
the heavy vehicle to be used, on a road unless--
(a) during the daytime--a brightly coloured red,
red and yellow, or yellow flag at least 300mm
by 300mm is fixed to the extreme back of the
load; or
(b) at night--a light showing a clear red light to
the back, visible at a distance of at least
200m, is fixed to the extreme back of the
load.
Maximum penalty--$3000.
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Part 4.4 Loading requirements
Division 1 Requirements
110 National regulations may prescribe loading
requirements
(1) The national regulations may prescribe
requirements (the loading requirements) about
securing a load on a heavy vehicle or a component
of a heavy vehicle.
(2) Without limiting subsection (1), the loading
requirements may include requirements about the
restraint or positioning of a load or any part of it on
a motor vehicle or trailer.
111 Compliance with loading requirements
(1) A person 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.
Maximum penalty--
(a) for a minor risk breach--$3000; or
(b) for a substantial risk breach--$5000; or
(c) for a severe risk breach--$10000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(3) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
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Division 2 Categories of breaches of
loading requirements
112 Minor risk breach
A contravention of a loading requirement applying
to a heavy vehicle is a minor risk breach if--
(a) the subject matter of the contravention does
not involve a loss or shifting of the load; and
(b) had the subject matter of the contravention
involved a loss or shifting of the load, the loss
or shifting of the load would not have been
likely to have involved--
(i) an appreciable safety risk; or
(ii) an appreciable risk of--
(A) damage to road infrastructure; or
(B) causing an adverse effect on
public amenity.
113 Substantial risk breach
(1) A contravention of a loading requirement applying
to a heavy vehicle is a substantial risk breach if the
subject matter of the contravention involves a loss
or shifting of the load that does not involve--
(a) an appreciable safety risk; or
(b) an appreciable risk of--
(i) damage to road infrastructure; or
(ii) causing an adverse effect on public
amenity.
(2) A contravention of a loading requirement applying
to a heavy vehicle is also a substantial risk breach
if--
(a) the subject matter of the contravention does
not involve a loss or shifting of the load; and
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(b) had the subject matter of the contravention
involved a loss or shifting of the load, the loss
or shifting of the load would have been likely
to have involved--
(i) an appreciable safety risk; or
(ii) an appreciable risk of--
(A) damage to road infrastructure; or
(B) causing an adverse effect on
public amenity.
114 Severe risk breach
A contravention of a loading requirement applying
to a heavy vehicle is a severe risk breach if the
subject matter of the contravention involves a loss
or shifting of the vehicle's load that involves--
(a) an appreciable safety risk; or
(b) an appreciable risk of--
(i) damage to road infrastructure; or
(ii) causing an adverse effect on public
amenity.
Division 3 Evidentiary provision
115 Proof of contravention of loading requirement
(1) In a proceeding for an offence against Division 1--
(a) 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; and
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(b) evidence that a load, or part of a load, has
fallen off a heavy vehicle is evidence that the
load was not properly secured; and
(c) a court must presume a document purporting
to be the Load Restraint Guide as in force at
the time of the offence is the Load Restraint
Guide as in force at the time of the offence,
until the contrary is proved.
(2) In this section--
Load Restraint Guide means a document of that
name prepared by the National Transport
Commission and published in the Commonwealth
Gazette, from time to time.
Note--
The Load Restraint Guide may be accessed on the National
Transport Commission's website at .
Part 4.5 Exemptions for particular
overmass or oversize
vehicles
Division 1 Preliminary
116 Class 1 heavy vehicles and class 3 heavy
vehicles
(1) A heavy vehicle is a class 1 heavy vehicle if it,
together with its load, does not comply with a
prescribed mass requirement or prescribed
dimension requirement applying to it, and--
(a) it is a special purpose vehicle; or
(b) it is an agricultural vehicle other than an
agricultural trailer; or
Note--
See subsection (2) for agricultural trailers.
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(c) it--
(i) is 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
(ii) is not a road train or B-double, or
carrying a freight container designed for
multi-modal transport.
(2) An agricultural trailer is a class 1 heavy vehicle,
irrespective of whether it, together with its load,
does or does not comply with a prescribed mass
requirement or prescribed dimension requirement
applying to it.
(3) A heavy vehicle is a class 3 heavy vehicle if--
(a) it, together with its load, does not comply
with a prescribed mass requirement or
prescribed dimension requirement applying to
it; and
(b) it is not a class 1 heavy vehicle.
(4) In this section--
concrete pump means a vehicle with a component
that can be used to transfer liquid concrete by
pumping.
large indivisible item means an item that--
(a) can not be divided without extreme effort,
expense or risk of damage to it; and
(b) can not be carried on any heavy vehicle
without contravening a mass requirement or
dimension requirement.
low loader means a trailer with a loading deck no
more than 1m above the ground.
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special purpose vehicle means--
(a) a motor vehicle or trailer, other than an
agricultural vehicle or a tow truck, built for a
purpose other than carrying goods; or
(b) a concrete pump or fire truck.
Division 2 Exemptions by Commonwealth
Gazette notice
117 Regulator's power to exempt category of
class 1 or 3 heavy vehicles from compliance
with mass or dimension requirement
(1) The Regulator may, by Commonwealth Gazette
notice complying with section 121, exempt, for a
period of not more than 5 years, a stated category
of class 1 heavy vehicles or class 3 heavy vehicles
from--
(a) a prescribed mass requirement; or
(b) a prescribed dimension requirement.
(2) An exemption under subsection (1) is a mass or
dimension exemption (notice).
Note--
See Division 3 of Part 4.7 in relation to amendment,
suspension or cancellation of a mass or dimension
exemption (notice).
118 Restriction on grant of mass or dimension
exemption (notice)
(1) The Regulator may grant a mass or dimension
exemption (notice) for a category of heavy vehicles
only if--
(a) 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; and
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(b) each relevant road manager for the exemption
has consented to the grant; and
(c) the Regulator is satisfied all other consents
required for the exemption under the law of
the relevant jurisdiction have been obtained
or given.
(2) In deciding whether to grant a mass or dimension
exemption (notice), the Regulator must have regard
to the approved guidelines for granting mass or
dimension exemptions.
119 Conditions of mass or dimension exemption
(notice)
(1) A mass or dimension exemption (notice)--
(a) must include a condition about the areas or
routes to which the exemption applies; and
(b) is subject to conditions prescribed by the
national regulations for the exemption; and
(c) must be subject to the road conditions or
travel conditions required by a relevant road
manager for the exemption under section 160
or 161; and
(d) may be subject to any other conditions the
Regulator considers appropriate, including,
for example--
(i) conditions about 1 or more matters
mentioned in Schedule 2; and
(ii) without limiting subparagraph (i),
intelligent access conditions; and
(iii) 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--
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(A) the Commonwealth Gazette notice
for the exemption; or
(B) an information sheet about the
exemption published by the
Regulator on the Regulator's
website.
(2) The condition about the areas or routes to which the
exemption applies may be imposed by stating that
the areas or routes to which the exemption applies
are the areas or routes shown on a stated map
prepared by the relevant road authority and
published by the Regulator.
(3) If the condition about the areas or routes to which
the exemption applies is imposed as mentioned in
subsection (2)--
(a) the Regulator or the relevant road authority
may amend the stated map but only by
omitting, varying, extending or adding areas
or routes to which the exemption applies,
including, for example, by adding additional
areas or routes; and
(b) the Regulator must ensure a copy of the
stated map as in force from time to time is--
(i) made available for inspection, without
charge, during normal business hours at
each office of the Regulator; and
(ii) published on the Regulator's website.
(4) When amending the stated map, the Regulator must
comply with the consent requirements of Part 4.7.
(5) Without limiting the conditions that may be
prescribed under subsection (1)(b), the national
regulations may--
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(a) prescribe conditions that are to apply only to
particular areas or roads; and
(b) authorise the Regulator to decide the areas or
roads to which the conditions are to apply.
(6) In this section--
relevant road authority, for a mass or dimension
exemption (notice), means the road authority for
the participating jurisdiction in which the road
likely to be travelled under the exemption is
situated.
120 Period for which mass or dimension exemption
(notice) applies
A mass or dimension exemption (notice)--
(a) takes effect--
(i) when the Commonwealth Gazette notice
for the exemption is published; or
(ii) if a later time is stated in the
Commonwealth Gazette notice, at the
later time; and
(b) applies for the period stated in the
Commonwealth Gazette notice.
121 Requirements about Commonwealth Gazette
notice
(1) A Commonwealth Gazette notice for a mass or
dimension exemption (notice) must state the
following--
(a) the category of heavy vehicles to which the
exemption applies;
(b) the mass requirement or dimension
requirement to which the exemption applies;
(c) the areas or routes to which the exemption
applies;
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(d) the conditions mentioned in section
119(1)(b), including, for example, by
referencing the relevant provision of the
national regulations;
(e) the road conditions or travel conditions
required by a relevant road manager for the
exemption under section 160 or 161;
(f) the other conditions of the exemption;
(g) the period for which the exemption applies.
(2) The Regulator must publish a copy of the
Commonwealth Gazette notice on the Regulator's
website.
Division 3 Exemptions by permit
122 Regulator's power to exempt particular class 1
or class 3 heavy vehicle from compliance with
mass or dimension requirement
(1) The Regulator may, by giving a person a permit as
mentioned in section 127, exempt, for a period of
not more than 3 years--
(a) a class 1 heavy vehicle or class 3 heavy
vehicle from compliance with--
(i) a prescribed mass requirement; or
(ii) a prescribed dimension requirement; or
(b) a class 1 heavy vehicle or class 3 heavy
vehicle from a requirement relating to the
GCM of the vehicle, if subsection (2) applies.
(2) The Regulator may, under subsection (1), exempt a
class 1 heavy vehicle or class 3 heavy vehicle that
includes 2 or more prime movers or 2 or more
hauling units from compliance with a mass
requirement relating to the GCM of the individual
prime movers or hauling units if the total GCM of
the prime movers or hauling units complies with
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the mass requirement relating to the GCM of the
combined prime movers or hauling units.
(3) An exemption under subsection (1) is a mass or
dimension exemption (permit).
(4) A mass or dimension exemption (permit) may
apply to 1 or more heavy vehicles.
Note--
See Division 4 of Part 4.7 in relation to amendment,
suspension or cancellation of a mass or dimension
exemption (permit).
123 Application for mass or dimension exemption
(permit)
(1) A person may apply to the Regulator for a mass or
dimension exemption (permit).
(2) The application must be--
(a) in the approved form; and
(b) accompanied by the prescribed fee for the
application.
(3) The Regulator may, by notice given to the
applicant, require the applicant to give the
Regulator any additional information the Regulator
reasonably requires to decide the application.
124 Restriction on grant of mass or dimension
exemption (permit)
(1) The Regulator may grant a mass or dimension
exemption (permit) for a heavy vehicle only if--
(a) the Regulator is satisfied the use of the heavy
vehicle on a road under the exemption will
not pose a significant risk to public safety;
and
(b) each relevant road manager for the exemption
has consented to the grant; and
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(c) the Regulator is satisfied all other consents
required for the exemption under the law of
the relevant jurisdiction have been obtained
by the applicant or have been otherwise
given.
(2) In deciding whether to grant a mass or dimension
exemption (permit), the Regulator must have regard
to the approved guidelines for granting mass or
dimension exemptions.
125 Conditions of mass or dimension exemption
(permit)
(1) A mass or dimension exemption (permit)--
(a) must include a condition about the areas or
routes to which the exemption applies; and
(b) is subject to conditions prescribed by the
national regulations for the exemption; and
(c) must be subject to the road conditions or
travel conditions required by a relevant road
manager for the exemption under section 160
or 161; and
(d) may be subject to any other conditions the
Regulator considers appropriate, including,
for example--
(i) conditions about 1 or more matters
mentioned in Schedule 2; and
(ii) without limiting subparagraph (i),
intelligent access conditions.
(2) Without limiting the conditions that may be
prescribed under subsection (1)(b), the national
regulations may--
(a) prescribe conditions that are to apply only to
particular areas or roads; and
(b) authorise the Regulator to decide the areas or
roads to which the conditions are to apply.
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126 Period for which mass or dimension exemption
(permit) applies
(1) A mass or dimension exemption (permit) applies
for the period stated in the permit for the
exemption.
(2) The period may be less than the period sought by
the applicant for the mass or dimension exemption
(permit).
127 Permit for mass or dimension exemption
(permit) etc.
(1) If the Regulator grants a mass or dimension
exemption (permit) to a person, the Regulator must
give the person--
(a) a permit for the exemption; and
(b) if the Regulator has imposed conditions on
the exemption under section 125(1)(a), (c)
or (d) or has granted the exemption for a
period less than the period of not more than
3 years sought by the person--an information
notice for the decision to impose the
conditions or grant the exemption for the
shorter period.
Note--
See sections 164 and 165 for the requirements for
an information notice relating to the imposition of a
road condition or travel condition at the request of a
relevant road manager.
(2) A permit for a mass or dimension exemption
(permit) must state the following--
(a) the name of the person to whom the permit is
given;
(b) a description of each heavy vehicle to which
the exemption applies, including the
registration number of the vehicle if it is
registered;
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(c) the mass requirement or dimension
requirement to which the exemption applies;
(d) the areas or routes to which the exemption
applies;
(e) the conditions mentioned in section
125(1)(b), including, for example, by
referencing the relevant provision of the
national regulations;
(f) the road conditions or travel conditions
required by a relevant road manager for the
exemption under section 160 or 161;
(g) the other conditions of the exemption;
(h) the period for which the exemption applies.
128 Refusal of application for mass or dimension
exemption (permit)
If the Regulator refuses an application for a mass or
dimension exemption (permit), the Regulator must
give the applicant an information notice for the
decision to refuse the application.
Note--
See section 166 for the requirements for an information
notice relating to a relevant road manager's decision not to
give consent to the grant of a mass or dimension exemption
(permit).
Division 4 Operating under mass or
dimension exemption
129 Contravening condition of mass or dimension
exemption generally
(1) The driver or operator of a heavy vehicle being
used on a road under a mass or dimension
exemption must not contravene a condition of the
exemption.
Maximum penalty--$6000.
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(2) A person must not use, or permit to be used, on a
road a heavy vehicle that contravenes a condition
of a mass or dimension exemption applying to the
vehicle.
Maximum penalty--$6000.
(3) A person must not use a heavy vehicle, or permit a
heavy vehicle to be used, on a road in a way that
contravenes a condition of a mass or dimension
exemption applying to the vehicle.
Maximum penalty--$6000.
(4) A person does not commit an offence against this
Law in relation to a heavy vehicle contravening a
mass requirement or dimension requirement if--
(a) the vehicle is exempt, under a mass or
dimension exemption, from compliance with
the mass requirement or dimension
requirement; and
(b) the vehicle, and its use on a road, complies
with the conditions of the exemption.
(5) However, if a person commits a condition
offence--
(a) the exemption does not operate in the
person's favour while the contravention
constituting the offence continues; and
(b) the exemption must be disregarded in
deciding--
(i) whether the person has committed an
offence in relation to a contravention of
a mass requirement or dimension
requirement applying to a heavy vehicle;
and
(ii) the risk category for the contravention.
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(6) If, because of the operation of subsection (5), a
person commits an offence against a provision of
this Law (the other offence provision) in relation to
a mass requirement or dimension requirement to
which an exemption under this Part applies, the
person--
(a) may be charged with the condition offence or
an offence against the other offence
provision; but
(b) must not be charged with both offences.
(7) Subsection (1) does not apply to a condition
mentioned in section 132(1).
(8) In this section--
condition offence means an offence against
subsection (1), (2) or (3).
130 Contravening condition of mass or dimension
exemption relating to pilot or escort vehicle
(1) This section applies if a mass or dimension
exemption is subject to a condition requiring a
heavy vehicle to which the exemption applies to be
accompanied by a pilot vehicle or escort vehicle
while the heavy vehicle is used on a road.
(2) The driver of the pilot vehicle or escort vehicle
accompanying the heavy vehicle must comply with
the conditions of the mass or dimension exemption
about the use of the pilot vehicle or escort vehicle.
Maximum penalty--$6000.
(3) If the driver of the pilot vehicle or escort vehicle
commits an offence against subsection (2), the
operator of the heavy vehicle is taken to have
committed an offence against this subsection.
Maximum penalty--$6000.
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(4) In a proceeding for an offence against
subsection (3)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the offence against
subsection (2); and
(b) evidence a court has convicted the driver of
the offence against subsection (2) is evidence
that the offence happened at the time and
place, and in the circumstances, stated in the
charge resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the offence against
subsection (2) is evidence that the offence
happened at the time and place, and in the
circumstances, stated in the infringement
notice.
131 Using pilot vehicle with a heavy vehicle that
contravenes certain conditions of mass or
dimension exemption
(1) The driver of a pilot vehicle must ensure the pilot
vehicle does not accompany a heavy vehicle to
which a mass or dimension exemption applies if the
heavy vehicle, or its use on a road, contravenes a
condition of the exemption because the heavy
vehicle--
(a) travels on a route not allowed under the
exemption; or
(b) travels at a time other than a time allowed
under the exemption; or
(c) is accompanied by fewer than the number of
pilot or escort vehicles required under the
exemption.
Maximum penalty--$6000.
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(2) If a person is both the driver of a pilot vehicle
accompanying a heavy vehicle to which a mass or
dimension exemption applies and an operator of the
heavy vehicle, the person may, in relation to the
heavy vehicle or its use on a road contravening a
condition of the exemption of the kind
contemplated by subsection (1), be prosecuted
under section 129 or subsection (1), but not both.
132 Keeping relevant document while driving under
mass or dimension exemption (notice)
(1) This section applies if a mass or dimension
exemption (notice) is subject to the 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 a relevant document in the
driver's possession.
(2) A driver of the class 1 heavy vehicle or class 3
heavy vehicle who is driving the vehicle under the
mass or dimension exemption (notice) must comply
with the condition.
Maximum penalty--$3000.
(3) If the driver of a class 1 heavy vehicle or class 3
heavy vehicle commits an offence against
subsection (2), each relevant party for the driver is
taken to have committed an offence against this
subsection.
Maximum penalty--$3000.
(4) A person charged with an offence against
subsection (3) does not have the benefit of the
mistake of fact defence for the offence.
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(5) However, in a proceeding for an offence against
subsection (3), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(6) In a proceeding for an offence against
subsection (3)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the offence against
subsection (2); and
(b) evidence a court has convicted the driver of
the offence against subsection (2) is evidence
that the offence happened at the time and
place, and in the circumstances, stated in the
charge resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the offence against
subsection (2) is evidence that the offence
happened at the time and place, and in the
circumstances, stated in the infringement
notice.
(7) In this section--
relevant document, for a mass or dimension
exemption (notice), means a copy of--
(a) the Commonwealth Gazette notice for the
exemption; or
(b) an information sheet about the exemption
published by the Regulator on the Regulator's
website.
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relevant party, for the driver of a class 1 heavy
vehicle or class 3 heavy vehicle, means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
(c) an operator of the vehicle if the driver is
making a journey for the operator.
133 Keeping copy of permit while driving under
mass or dimension exemption (permit)
(1) The driver of a class 1 heavy vehicle or class 3
heavy vehicle who is driving the vehicle under a
mass or dimension exemption (permit) must keep a
copy of the permit for the exemption in the driver's
possession.
Maximum penalty--$3000.
(2) If the driver of a class 1 heavy vehicle or class 3
heavy vehicle is driving the vehicle under a mass or
dimension exemption (permit) granted to a relevant
party for the driver and the relevant party has given
the driver a copy of a permit for the purpose of
subsection (1), the driver must, as soon as
reasonably practicable, return the copy to the
relevant party if the driver stops working for the
relevant party.
Maximum penalty--$4000.
(3) If the driver of a class 1 heavy vehicle or class 3
heavy vehicle commits an offence against
subsection (1), each relevant party for the driver is
taken to have committed an offence against this
subsection.
Maximum penalty--$3000.
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(4) A person charged with an offence against
subsection (3) does not have the benefit of the
mistake of fact defence for the offence.
(5) However, in a proceeding for an offence against
subsection (3), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(6) In a proceeding for an offence against
subsection (3)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the offence against
subsection (1); and
(b) evidence a court has convicted the driver of
the offence against subsection (1) is evidence
that the offence happened at the time and
place, and in the circumstances, stated in the
charge resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the offence against
subsection (1) is evidence that the offence
happened at the time and place, and in the
circumstances, stated in the infringement
notice.
(7) In this section--
relevant party, for the driver of a class 1 heavy
vehicle or class 3 heavy vehicle, means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
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(c) an operator of the vehicle if the driver is
making a journey for the operator.
Division 5 Other provision
134 Displaying warning signs on vehicles if not
required by dimension exemption
(1) A heavy vehicle warning sign must not be
displayed on a heavy vehicle unless it is being used
under a dimension exemption.
Maximum penalty--$3000.
(2) A pilot vehicle warning sign must not be displayed
on a vehicle unless it is being used as a pilot
vehicle for a heavy vehicle being used under a
dimension exemption.
Maximum penalty--$3000.
(3) In this section--
dimension exemption means an exemption under
this Part from compliance with a dimension
requirement.
heavy vehicle warning sign means a warning sign
required under the national regulations to be
attached to a heavy vehicle being used under a
dimension exemption.
pilot vehicle warning sign means a warning sign
required under the national regulations to be
attached to a vehicle being used as a pilot vehicle
for a heavy vehicle being used under a dimension
exemption.
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Part 4.6 Restricting access to roads
by large vehicles that are
not overmass or oversize
vehicles
Division 1 Preliminary
135 Main purpose of Pt 4.6
The main purpose of this Part is to restrict access to
roads by heavy vehicles that, while complying with
mass requirements and dimension requirements
applying to them, may, because of their size--
(a) endanger public safety; or
(b) damage road infrastructure; or
(c) adversely affect public amenity.
136 Class 2 heavy vehicles
A heavy vehicle is a class 2 heavy vehicle if--
(a) it--
(i) complies with the prescribed mass
requirements and prescribed dimension
requirements applying to it; and
(ii) is--
(A) a B-double; or
(B) a road train; or
(C) a bus, other than an articulated
bus, that is longer than 12.5m; or
(D) a combination designed and built
to carry vehicles on more than
1 deck that, together with its load
is longer than 19m or higher than
4.3m; or
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(E) a motor vehicle, or a combination,
that is higher than 4.3m and is
built to carry cattle, sheep, pigs or
horses; or
(b) it is a PBS vehicle.
Division 2 Restriction
137 Using class 2 heavy vehicle
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.
Maximum penalty--$6000.
Division 3 Authorisation by
Commonwealth Gazette notice
138 Regulator's power to authorise use of all or
stated categories of class 2 heavy vehicles
(1) The Regulator may, by Commonwealth Gazette
notice complying with section 142, authorise, for a
period of not more than 5 years, the use of all or
stated categories of class 2 heavy vehicles in one or
more of the following ways--
(a) in stated areas or on stated routes;
(b) during stated hours of stated days;
(c) in the case of PBS vehicles, in accordance
with a stated requirement that the vehicles are
operated in accordance with the conditions
contained in a PBS vehicle approval.
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(2) An authorisation under subsection (1) is a class 2
heavy vehicle authorisation (notice).
Note--
See Division 3 of Part 4.7 in relation to amendment,
suspension or cancellation of a class 2 heavy vehicle
authorisation (notice).
139 Restriction on grant of class 2 heavy vehicle
authorisation (notice)
(1) The Regulator may grant a class 2 heavy vehicle
authorisation (notice) only if--
(a) the Regulator is satisfied the use of class 2
heavy vehicles, or the stated categories of
class 2 heavy vehicles, on a road under the
authorisation will not pose a significant risk
to public safety; and
(b) each relevant road manager for the
authorisation has consented to the grant; and
(c) the Regulator is satisfied all other consents
required for the authorisation under the law of
the relevant jurisdiction have been obtained
or given.
(2) In deciding whether to grant a class 2 heavy vehicle
authorisation (notice), the Regulator must have
regard to the approved guidelines for granting class
2 heavy vehicle authorisations.
140 Conditions of class 2 heavy vehicle
authorisation (notice)
A class 2 heavy vehicle authorisation (notice) may
be subject to a condition that the driver of a class 2
heavy vehicle who is driving the vehicle under the
authorisation must keep in the driver's possession a
copy of--
(a) the Commonwealth Gazette notice for the
authorisation; or
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(b) an information sheet about the authorisation
published by the Regulator on the Regulator's
website.
Note--
Section 160 requires the Regulator to impose certain road
conditions, and section 161 requires the Regulator to
impose certain travel conditions.
141 Period for which class 2 heavy vehicle
authorisation (notice) applies
A class 2 heavy vehicle authorisation (notice)--
(a) takes effect--
(i) when the Commonwealth Gazette notice
for the authorisation is published; or
(ii) if a later time is stated in the
Commonwealth Gazette notice, at the
later time; and
(b) applies for the period stated in the
Commonwealth Gazette notice.
142 Requirements about Commonwealth Gazette
notice etc.
(1) A Commonwealth Gazette notice for a class 2
heavy vehicle authorisation (notice) must state the
following--
(a) that the authorisation applies to all class 2
heavy vehicles or, if the authorisation only
applies to particular categories of class 2
heavy vehicles, the categories of class 2
heavy vehicles to which the authorisation
applies;
(b) the areas or routes to which the authorisation
applies;
(c) the days and hours to which the authorisation
applies;
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(d) any conditions applying to class 2 heavy
vehicles being used on a road under the
authorisation;
(e) the period for which the authorisation applies.
(2) The Commonwealth Gazette notice may state that
the areas or routes to which the authorisation
applies are the areas or routes shown on a stated
map prepared by the relevant road authority and
published by the Regulator.
(3) The Regulator must publish a copy of the
Commonwealth Gazette notice on the Regulator's
website.
(4) If the Commonwealth Gazette notice states the
areas or routes to which the authorisation applies as
mentioned in subsection (2)--
(a) the Regulator or the relevant road authority
may amend the stated map but only by
omitting, varying or extending the areas or
routes to which the authorisation applies,
including, for example, by adding additional
areas or routes; and
(b) the Regulator must ensure a copy of the
stated map as in force from time to time is--
(i) made available for inspection, without
charge, during normal business hours at
each office of the Regulator; and
(ii) published on the Regulator's website.
(5) When amending the stated map, the Regulator must
comply with the consent requirements of Part 4.7.
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(6) In this section--
relevant road authority, for a class 2 heavy vehicle
authorisation (notice), means the road authority for
the participating jurisdiction in which the road
likely to be travelled under the authorisation is
situated.
Division 4 Authorisation by permit
143 Regulator's power to authorise use of a
particular class 2 heavy vehicle
(1) The Regulator may, by giving a person a permit as
mentioned in section 148, authorise, for a period of
not more than 3 years, the use of a class 2 heavy
vehicle--
(a) in stated areas or on stated routes; and
(b) during stated hours of stated days.
(2) An authorisation under subsection (1) is a class 2
heavy vehicle authorisation (permit).
(3) A class 2 heavy vehicle authorisation (permit) may
apply to 1 or more heavy vehicles.
Note--
See Division 4 of Part 4.7 in relation to amendment,
suspension or cancellation of a class 2 heavy vehicle
authorisation (permit).
144 Application for class 2 heavy vehicle
authorisation (permit)
(1) A person may apply to the Regulator for a class 2
heavy vehicle authorisation (permit).
(2) The application must be--
(a) in the approved form; and
(b) accompanied by the prescribed fee for the
application.
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(3) The Regulator may, by notice given to the
applicant, require the applicant to give the
Regulator any additional information the Regulator
reasonably requires to decide the application.
145 Restriction on grant of class 2 heavy vehicle
authorisation (permit)
(1) The Regulator may grant a class 2 heavy vehicle
authorisation (permit) for a class 2 heavy vehicle
only if--
(a) the Regulator is satisfied the use of the class 2
heavy vehicle on a road under the
authorisation will not pose a significant risk
to public safety; and
(b) each relevant road manager for the
authorisation has consented to the grant; and
(c) the Regulator is satisfied all other consents
required for the authorisation under the law of
the relevant jurisdiction have been obtained
by the applicant or have been otherwise
given.
(2) In deciding whether to grant a class 2 heavy vehicle
authorisation (permit), the Regulator must have
regard to the approved guidelines for granting class
2 heavy vehicle authorisations.
146 Conditions of class 2 heavy vehicle
authorisation (permit)
A class 2 heavy vehicle authorisation (permit)--
(a) must be subject to the road conditions or
travel conditions required by a relevant road
manager for the authorisation under
section 160 or 161; and
(b) may be subject to any other conditions the
Regulator considers appropriate, including,
for example--
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(i) conditions about 1 or more matters
mentioned in Schedule 2; and
(ii) without limiting subparagraph (i),
intelligent access conditions.
147 Period for which class 2 heavy vehicle
authorisation (permit) applies
(1) A class 2 heavy vehicle authorisation (permit)
applies for the period stated in the permit for the
authorisation.
(2) The period may be less than the period sought by
the applicant for the class 2 heavy vehicle
authorisation (permit).
148 Permit for class 2 heavy vehicle authorisation
(permit) etc.
(1) If the Regulator grants a class 2 heavy vehicle
authorisation (permit) to a person, the Regulator
must give the person--
(a) a permit for the authorisation; and
(b) if the Regulator has imposed conditions on
the authorisation under section 146 or has
granted the authorisation for a period less
than the period of not more than 3 years
sought by the person--an information notice
for the decision to impose the conditions or
grant the authorisation for the shorter period.
Note--
See sections 164 and 165 for the requirements for
an information notice relating to the imposition of a
road condition or travel condition at the request of a
relevant road manager.
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(2) A permit for a class 2 heavy vehicle authorisation
(permit) must state the following--
(a) the name and address of the person to whom
the permit is given;
(b) if the authorisation applies to particular
categories of class 2 heavy vehicles, the
categories of heavy vehicles to which the
authorisation applies;
(c) the areas or routes to which the authorisation
applies;
(d) the days and hours to which the authorisation
applies;
(e) the road conditions or travel conditions
required by a relevant road manager for the
authorisation under section 160 or 161;
(f) any other conditions applying to a class 2
heavy vehicle being used on a road under the
authorisation;
(g) the period for which the authorisation applies.
149 Refusal of application for class 2 heavy vehicle
authorisation (permit)
If the Regulator refuses an application for a class 2
heavy vehicle authorisation (permit), the Regulator
must give the applicant an information notice for
the decision to refuse the application.
Note--
See section 166 for the requirements for an information
notice relating to a road manager's decision not to give
consent to the grant of a class 2 heavy vehicle authorisation
(permit).
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Division 5 Operating under class 2 heavy
vehicle authorisation
150 Contravening condition of class 2 heavy
vehicle authorisation
(1) The driver or operator of a class 2 heavy vehicle
being used on a road under a class 2 heavy vehicle
authorisation must not contravene a condition of
the authorisation.
Maximum penalty--$6000.
(2) Subsection (1) does not apply to a condition
mentioned in section 151(1).
151 Keeping relevant document while driving under
class 2 heavy vehicle authorisation (notice)
(1) This section applies if a class 2 heavy vehicle
authorisation (notice) is subject to the condition
that the driver of a class 2 heavy vehicle who is
driving the vehicle under the authorisation must
keep a relevant document in the driver's
possession.
(2) A driver of the class 2 heavy vehicle who is driving
the vehicle under the class 2 heavy vehicle
authorisation (notice) must comply with the
condition.
Maximum penalty--$3000.
(3) If the driver of a class 2 heavy vehicle commits an
offence against subsection (2), each relevant party
for the driver is taken to have committed an offence
against this subsection.
Maximum penalty--$3000.
(4) A person charged with an offence against
subsection (3) does not have the benefit of the
mistake of fact defence for the offence.
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(5) However, in a proceeding for an offence against
subsection (3), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(6) In a proceeding for an offence against
subsection (3)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the offence against
subsection (2); and
(b) evidence a court has convicted the driver of
the offence against subsection (2) is evidence
that the offence happened at the time and
place, and in the circumstances, stated in the
charge resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the offence against
subsection (2) is evidence that the offence
happened at the time and place, and in the
circumstances, stated in the infringement
notice.
(7) In this section--
relevant document, for a class 2 heavy vehicle
authorisation (notice), means a copy of--
(a) the Commonwealth Gazette notice for the
authorisation; or
(b) an information sheet about the authorisation
published by the Regulator on the Regulator's
website.
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relevant party, for the driver of a class 2 heavy
vehicle, means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
(c) an operator of the vehicle if the driver is
making a journey for the operator.
152 Keeping copy of permit while driving under
class 2 heavy vehicle authorisation (permit)
(1) The driver of a class 2 heavy vehicle who is driving
the vehicle under a class 2 heavy vehicle
authorisation (permit) must keep a copy of the
permit for the authorisation in the driver's
possession.
Maximum penalty--$3000.
(2) If the driver of a class 2 heavy vehicle is driving the
vehicle under a class 2 heavy vehicle authorisation
(permit) granted to a relevant party for the driver
and the relevant party has given the driver a copy
of a permit for the purpose of subsection (1), the
driver must, as soon as reasonably practicable,
return the copy to the relevant party if the driver
stops working for the relevant party.
Maximum penalty--$4000.
(3) If the driver of a class 2 heavy vehicle commits an
offence against subsection (1), each relevant party
for the driver is taken to have committed an offence
against this subsection.
Maximum penalty--$3000.
(4) A person charged with an offence against
subsection (3) does not have the benefit of the
mistake of fact defence for the offence.
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(5) However, in a proceeding for an offence against
subsection (3), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(6) In a proceeding for an offence against
subsection (3)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the offence against
subsection (1); and
(b) evidence a court has convicted the driver of
the offence against subsection (1) is evidence
that the offence happened at the time and
place, and in the circumstances, stated in the
charge resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the offence against
subsection (1) is evidence that the offence
happened at the time and place, and in the
circumstances, stated in the infringement
notice.
(7) In this section--
relevant party, for the driver of a class 2 heavy
vehicle, means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
(c) an operator of the vehicle if the driver is
making a journey for the operator.
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153 Keeping copy of PBS vehicle approval while
driving under class 2 heavy vehicle
authorisation
(1) A driver of a class 2 heavy vehicle that is a PBS
vehicle who is driving under a class 2 heavy
vehicle authorisation must keep a copy of the PBS
vehicle approval in the driver's possession.
Maximum penalty--$3000.
(2) If the driver of a class 2 heavy vehicle commits an
offence against subsection (1), each relevant party
for the driver is taken to have committed an offence
against this subsection.
Maximum penalty--$3000.
(3) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
(4) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(5) In a proceeding for an offence against
subsection (2)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the offence against
subsection (1); and
(b) evidence a court has convicted the driver of
the offence against subsection (1) is evidence
that the offence happened at the time and
place, and in the circumstances, stated in the
charge resulting in the conviction; and
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(c) evidence of details stated in an infringement
notice issued for the offence against
subsection (1) is evidence that the offence
happened at the time and place, and in the
circumstances, stated in the infringement
notice.
(6) In this section--
relevant party, for the driver of a class 2 heavy
vehicle, means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
(c) an operator of the vehicle if the driver is
making a journey for the operator.
Part 4.7 Particular provisions about
mass or dimension
authorities
Division 1 Preliminary
154 Definitions for Pt 4.7
In this Part--
road condition--
(a) means a condition directed at--
(i) protecting road infrastructure; or
(ii) preventing or minimising an adverse
effect on the community arising from
noise, emissions or traffic congestion or
from other matters stated in approved
guidelines; or
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(iii) preventing or minimising significant
risks to public safety arising from heavy
vehicle use that is incompatible with
road infrastructure or traffic conditions;
but
(b) 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 the
matters mentioned in paragraph (a)(i), (ii)
or (iii).
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.
travel condition means a condition directed at
ensuring that access to a stated route or area is
limited to either or both of the following--
(a) stated days or hours (or both);
(b) travel in a stated direction.
vehicle condition means a condition directed at
ensuring a vehicle can operate safely on roads.
Division 2 Obtaining consent of relevant
road managers
155 Application of Div 2
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.
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156 Deciding request for consent generally
(1) If the Regulator asks a road manager for a road for
the road manager's consent to the grant of a mass
or dimension authority, the road manager must
decide to give or not to give the consent--
(a) within--
(i) 28 days after the request is made, unless
subparagraph (ii) applies; or
(ii) if this section applies because the road
manager gave the Regulator a notice
of objection to the grant under
section 167--14 days after giving the
notice of objection; or
(b) within a longer period, of not more than
6 months after the request is made, agreed to
by the Regulator.
Note--
See, however, sections 159, 167 and 168.
(2) The road manager may ask for, and the Regulator
may agree to, a longer period under subsection
(1)(b) only if--
(a) consultation is required under a law with
another entity (including, for example, for the
purpose of obtaining that entity's approval to
give the consent); or
(b) the road manager considers a route
assessment is necessary for deciding whether
to give or not to give the consent; or
(c) the road manager is the road authority for the
participating jurisdiction and considers that a
local government authority that is not
required under a law to be consulted should
nevertheless be consulted before deciding
whether to give or not to give the consent.
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(3) The road manager may decide not to give the
consent only if the road manager is satisfied--
(a) the mass or dimension authority will, or is
likely to--
(i) cause damage to road infrastructure; or
(ii) impose adverse effects on the
community arising from noise,
emissions or traffic congestion or from
other matters stated in approved
guidelines; or
(iii) pose significant risks to public safety
arising from heavy vehicle use that is
incompatible with road infrastructure or
traffic conditions; and
(b) it is not possible to grant the authority subject
to road conditions or travel conditions that
will avoid, or significantly minimise--
(i) the damage or likely damage; or
(ii) the adverse effects or likely adverse
effects; or
(iii) the significant risks or likely significant
risks.
(4) Also, in deciding whether or not to give the
consent, the road manager must have regard to--
(a) for a mass or dimension exemption--the
approved guidelines for granting mass or
dimension exemptions; or
(b) for a class 2 heavy vehicle authorisation--
the approved guidelines for granting class 2
heavy vehicle authorisations.
(5) If the Regulator agrees to a longer period under
subsection (1)(b), the Regulator must give the
applicant for the mass or dimension authority
concerned a written statement of the decision--
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(a) identifying the road manager concerned; and
(b) indicating the ground on which the road
manager asked for a longer period.
(6) If a relevant road manager for a mass or dimension
authority decides not to give consent to the grant of
the authority, the relevant road manager must give
the Regulator a written statement that explains the
road manager's decision and complies with
section 172.
157 Obtaining third party's approval for giving
consent for permit
(1) This section applies if--
(a) a person (the applicant) applies for a mass or
dimension exemption (permit) or class 2
heavy vehicle authorisation (permit); and
(b) consultation with another entity is required
under a law.
(2) The Regulator must--
(a) notify the applicant that consultation is
required; and
(b) notify the road manager that the applicant has
been notified of the requirement.
(3) The Regulator must, as far as practicable, give the
notifications under subsection (2) concurrently with
asking the road manager for the consent.
158 Action pending consultation with third party
(1) This section applies if--
(a) consultation with another entity is required
under a law; and
(b) the road manager does not ask for a longer
period under section 156(1)(b) or the
Regulator refuses to agree to a longer period
asked for under section 156(1)(b).
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(2) If the consultation with the other entity is not yet
completed, the road manager must, as far as
practicable, deal with the request for consent and
decide to give or not to give the consent (even
though the consultation with the other entity is not
completed).
(3) If the road manager decides to give the consent
even though the consultation with the other entity is
not completed, the consent is not operative unless
and until--
(a) the consultation is completed; and
(b) if the other entity's approval is required, the
other entity gives its approval.
(4) If--
(a) the consultation with the other entity is
completed and the other entity's approval is
required; and
(b) the road manager has not yet decided to give
or not to give the consent;
the road manager may--
(c) decide not to give the consent, on the ground
that the consent would be inoperative; or
(d) decide to give the consent, but the consent is
inoperative without the other entity's
approval.
(5) The Regulator must not grant a mass or dimension
authority if--
(a) consultation is required under a law with
another entity; and
(b) the other entity's approval is required; and
(c) the other entity has declined to give its
approval.
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159 Deciding request for consent if route
assessment required
(1) This section applies if--
(a) a person (the applicant) applies for a mass or
dimension exemption (permit) or class 2
heavy vehicle authorisation (permit); and
(b) the Regulator asks a road manager for a road
for the road manager's consent to the grant of
the exemption or authorisation; and
(c) the road manager considers a route
assessment is necessary for deciding whether
to give or not to give the consent.
(2) The road manager may notify the Regulator of the
following--
(a) that a route assessment is required for the
road manager deciding whether to give or not
to give the consent;
(b) the fee payable (if any) for the route
assessment under a law of the jurisdiction in
which the road is situated.
(3) The Regulator must notify the applicant of the
following--
(a) that a route assessment is required for the
road manager deciding whether to give or not
to give the consent;
(b) the fee payable (if any) for the route
assessment under a law of the jurisdiction in
which the road is situated;
(c) 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;
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(d) if, under section 156(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.
(4) If a fee is payable for the route assessment under a
law of the jurisdiction in which the road is
situated--
(a) the road manager may stop considering
whether to give or not to give the consent
until the fee is paid; and
(b) the period between the day the applicant is
given the notification under subsection (3)
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.
(5) If the applicant does not pay the fee for the route
assessment within 28 days after the notification is
given to the applicant under subsection (3), or a
longer period agreed to by the Regulator, the
application lapses.
160 Imposition of road conditions
(1) A relevant road manager for a mass or dimension
authority may consent to the grant of the authority
subject to--
(a) except in the case of a class 2 heavy vehicle
authorisation (notice)--the condition that a
stated road condition is imposed on the
authority; or
(b) in the case of a class 2 heavy vehicle
authorisation (notice)--the condition that a
stated road condition of a type prescribed by
the national regulations is imposed on the
authority.
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(2) If a relevant road manager for a mass or dimension
authority consents to the grant of the authority
subject to a condition as mentioned in
subsection (1)(a)--
(a) the relevant road manager must give the
Regulator a written statement that explains
the road manager's decision to give consent
to the grant of the authority subject to the
condition and complies with section 172; and
(b) the Regulator must impose the stated road
condition on the authority.
(3) If a relevant road manager for a mass or dimension
authority consents to the grant of the authority
subject to a condition as mentioned in subsection
(1)(b), the Regulator must impose the stated road
condition on the authority.
(4) The national regulations may prescribe road
conditions, or kinds of road conditions, for the
purposes of subsection (1)(b) and must prescribe
the circumstances in which it is appropriate to
impose such a condition.
161 Imposition of travel conditions
(1) A relevant road manager for a mass or dimension
authority may consent to the grant of the authority
subject to the condition that a stated travel
condition is imposed on the authority.
(2) If a relevant road manager for a mass or dimension
authority consents to the grant of the authority as
mentioned in subsection (1)--
(a) the relevant road manager must give the
Regulator a written statement that explains
the road manager's decision to give consent
to the grant of the authority subject to the
condition and complies with section 172; and
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(b) the Regulator must impose the stated travel
condition on the authority.
162 Imposition of vehicle conditions
(1) A relevant road manager for a mass or dimension
authority who gives consent to the grant of the
authority may ask the Regulator to impose a stated
vehicle condition on the authority.
(2) If a relevant road manager for a mass or dimension
authority makes a request as mentioned in
subsection (1), the Regulator must--
(a) consider the request and decide--
(i) to impose the stated vehicle condition on
the authority (with or without
modification); or
(ii) not to impose the stated vehicle
condition on the authority; and
(b) notify the relevant road manager of the
decision under paragraph (a).
163 Obtaining consent of road authority if particular
road manager refuses to give consent
(1) This section applies if a relevant road manager for a
mass or dimension authority--
(a) is a public authority other than a road
authority; and
(b) either--
(i) decides not to consent to the grant of the
mass or dimension authority; or
(ii) consents to the grant of the mass or
dimension authority subject to the
imposition of road conditions or travel
conditions the Regulator considers are
not necessary to avoid, or significantly
minimise--
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(A) damage, or likely damage, to road
infrastructure; or
(B) adverse effects, or likely adverse
effects, on the community arising
from noise, emissions or traffic
congestion or from other matters
stated in approved guidelines; or
(C) significant risks, or likely
significant risks, to public safety
arising from heavy vehicle use
that is incompatible with road
infrastructure or traffic conditions.
(2) The Regulator may ask the relevant road authority
to consent to the grant.
(3) If the Regulator asks the relevant road authority for
consent under this section, the road authority must
decide to give or not to give the consent--
(a) within 3 months of the request; or
(b) within a longer period, of not more than
6 months, agreed to by the Regulator.
(4) If the relevant road authority gives the consent or
gives the consent on the condition that a stated road
condition or travel condition is imposed on the
mass or dimension authority--
(a) the decision of the relevant road manager has
no effect for the purposes of this Law; and
(b) to the extent this Law applies in relation to
the consent of, or the road conditions or travel
conditions required by, the relevant road
manager, this Law (other than this section)
applies as if a reference in it to the relevant
road manager were a reference to the relevant
road authority.
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(5) In this section--
relevant road authority, for a decision of a relevant
road manager for a mass or dimension authority,
means the road authority for the participating
jurisdiction in which the road for which the
relevant road manager is a road manager is situated.
164 Information notice for imposition of road
conditions requested by road manager
(1) This section applies if--
(a) the Regulator grants a mass or dimension
authority by giving a person a permit; and
(b) the authority is subject to a road condition
required by a relevant road manager for the
authority when consenting to the grant of the
authority.
(2) The information notice for the decision to impose
the condition given to the person under this Law
must state the following, in addition to any other
information required to be included in the
information notice--
(a) that the road manager consented to the mass
or dimension authority on the condition that
the road condition is imposed on the
authority;
(b) a written statement that explains the road
manager's decision to give the consent on the
condition that the road condition be imposed
on the authority and complies with
section 172;
(c) 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.
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165 Information notice for imposition of travel
conditions requested by road manager
(1) This section applies if--
(a) the Regulator grants a mass or dimension
authority by giving a person a permit; and
(b) the authority is subject to a travel condition
required by a relevant road manager for the
authority when consenting to the grant of the
authority.
(2) The information notice for the decision to impose
the condition given to the person under this Law
must state the following, in addition to any other
information required to be included in the
information notice--
(a) that the road manager consented to the mass
or dimension authority on the condition that
the travel condition is imposed on the
authority;
(b) a written statement that explains the road
manager's decision to give the consent on
the condition that the travel condition be
imposed on the authority and complies with
section 172;
(c) the review and appeal information for the
road manager's decision to give the consent
on the condition that the travel condition be
imposed on the authority.
166 Information notice for decision to refuse
application because road manager did not give
consent
(1) This section applies if 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.
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(2) The information notice for the decision to refuse
the application given to the applicant under this
Law must state the following, in addition to any
other information required to be included in the
information notice--
(a) that the road manager has refused to consent
to the mass or dimension authority;
(b) a written statement that explains the road
manager's decision to refuse to give the
consent and complies with section 172;
(c) the review and appeal information for the
road manager's decision to refuse to give the
consent.
167 Expedited procedure for road manager's
consent for renewal of mass or dimension
authority
(1) This section applies if--
(a) the relevant road manager has previously
consented to a grant of a mass or dimension
authority (the previous authority); and
(b) the Regulator proposes to grant a mass or
dimension authority (the proposed
replacement authority) by way of renewal so
as to replace the previous authority on its
expiry; and
(c) the Regulator proposes to impose the same
conditions on the proposed replacement
authority as applied to the previous authority;
and
(d) the Regulator informs the relevant road
manager that the Regulator is seeking to
obtain the manager's consent in accordance
with the procedure under this section
(the expedited procedure).
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(2) However, this section does not apply, or ceases to
apply, if--
(a) there are differences between the terms of the
previous authority and the terms of the
proposed replacement authority, including,
for example--
(i) differences relating to the description of
the type of heavy vehicle covered by the
proposed replacement authority; and
(ii) additional, deleted or varied conditions;
and
(iii) the inclusion of additional areas or
routes; or
(b) the relevant road manager gives the Regulator
a notice of objection to the application of this
section to the proposed replacement authority
and that notice of objection is given within
the period (the relevant period) of--
(i) 14 days after the request for consent is
made; or
(ii) 28 days after the request for consent is
made if the road manager seeks the
extension of time within the initial
14 days; or
(c) the Regulator gives the relevant road manager
a notice that the Regulator withdraws the
proposed replacement authority from the
expedited procedure; or
(d) a law of this jurisdiction requires consultation
with third parties before the grant of the
proposed replacement authority or before
access to a particular route or area covered by
it is given.
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(3) The road manager is taken to have given the
consent at the end of the relevant period to the
grant of the proposed replacement authority on the
same conditions as applied to the previous
authority, unless before the end of that period the
road manager gives written notice to the Regulator
that the road manager gives or refuses consent.
168 Operation of section 167
(1) Sections 156 to 166 do not apply to a request for
consent while a proposed replacement authority is
being dealt with under the expedited procedure
under section 167.
(2) Those sections apply to the request for consent if
section 167 does not apply or ceases to apply, as
referred to in section 167(2).
169 Granting limited consent for trial purposes
(1) A relevant road manager may give consent to the
grant of a mass or dimension authority for a trial
period of no more than 3 months specified by the
road manager.
(2) The trial period determines the maximum period
for which the mass or dimension authority applies.
(3) If there is more than one relevant road manager in
relation to a proposed mass or dimension authority,
the consent of one or more of the road managers is
ineffective unless all the road managers give their
consent to the same effect.
170 Renewal of limited consent for trial purposes
(1) The Regulator must notify each relevant road
manager that gave consent under section 169 that
the mass or dimension authority concerned will be
renewed with effect from the end of the current
period of its duration unless action is taken under
this section.
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(2) The notification must be given at least one month
before the end of the current trial period.
(3) The Regulator must renew the mass or dimension
authority for a further trial period of no more than
3 months, unless the Regulator receives a written
objection to its renewal from a relevant road
manager within the current trial period.
(4) The mass or dimension authority is renewable for
one or more further trial periods.
171 Period for which mass or dimension authority
applies where limited consent
(1) This section applies where a mass or dimension
exemption is granted under section 169 or 170.
(2) In the case of a mass or dimension exemption
(permit) or a class 2 heavy vehicle authorisation
(permit), the period for which the permit applies
must not exceed the length of the trial period.
(3) In the case of a mass or dimension exemption
(notice) or a class 2 heavy vehicle authorisation
(notice), then, despite section 120 or 141, the
period for which the notice applies is so much of
the period stated in the Commonwealth Gazette
notice referred to in that section as does not exceed
the trial period.
172 Requirements for statement explaining adverse
decision of road manager
(1) This section applies to a written statement
explaining a decision of a relevant road manager
under this Division--
(a) not to give consent to the grant of a mass or
dimension authority (as referred to in
section 156); or
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(b) to consent to the grant of a mass or dimension
authority on the condition that--
(i) a road condition is imposed on the
authority (as referred to in section 160);
or
(ii) a travel condition is imposed on the
authority (as referred to in section 161).
(2) The written statement complies with this section if
it--
(a) sets out the findings on material questions of
fact, referring to the evidence or other
material on which those findings were based
and giving the reasons for the road manager's
decision; and
(b) identifies every document or part of a
document that is relevant to the road
manager's decision and is--
(i) in the road manager's possession; or
(ii) under the road manager's control; or
(iii) otherwise available to the road manager.
Division 3 Amendment, cancellation or
suspension of mass or
dimension authority granted by
Commonwealth Gazette notice
173 Amendment or cancellation on Regulator's
initiative
(1) It is a ground for amending or cancelling a mass or
dimension authority granted by Commonwealth
Gazette notice if the use of heavy vehicles on a
road under the authority has caused, or is likely to
cause, a significant risk to public safety.
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(2) If the Regulator considers a ground exists to amend
or cancel the mass or dimension authority, the
Regulator may amend or cancel the authority by
complying with subsections (3) to (5).
(3) The Regulator must publish a notice in the
Commonwealth Gazette, in a newspaper circulating
generally throughout each relevant participating
jurisdiction and on the Regulator's website--
(a) stating that the Regulator believes a ground
exists to amend or cancel the authority; and
(b) outlining the facts and circumstances forming
the basis for the belief; and
(c) stating the action the Regulator is proposing
to take under this section (the proposed
action); and
(d) inviting 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.
(4) If, after considering all written representations
made under subsection (3)(d), the Regulator still
considers a ground exists to take the proposed
action, the Regulator may--
(a) if the proposed action was to amend the mass
or dimension authority--amend the authority
in a way that is not substantially different
from the proposed action, including, for
example, by--
(i) amending the areas or routes to which
the authority applies; or
(ii) amending the days or hours to which the
authority applies; or
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(iii) imposing additional vehicle conditions
on the authority; or
(b) if the proposed action was to cancel the mass
or dimension authority--
(i) amend the authority, including, for
example, as mentioned in paragraph
(a)(i), (ii) or (iii); or
(ii) cancel the authority.
(5) Notice of the amendment or cancellation must be
published--
(a) in--
(i) the Commonwealth Gazette; and
(ii) a newspaper circulating generally
throughout each relevant participating
jurisdiction; and
(b) on the Regulator's website; and
(c) in any other newspaper the Regulator
considers appropriate.
Example for the purposes of paragraph (c)--
If the mass or dimension authority relates to a
particular part of a participating jurisdiction, the
Regulator may consider it appropriate to publish the
notice in a newspaper circulating generally in the
part.
(6) The amendment or cancellation takes effect--
(a) 28 days after the Commonwealth Gazette
notice is published under subsection (5); or
(b) if a later time is stated in the Commonwealth
Gazette notice, at the later time.
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(7) In this section--
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.
174 Amendment or cancellation on request by
relevant road manager
(1) This section applies if a relevant road manager for a
mass or dimension authority granted by
Commonwealth Gazette notice is satisfied the use
of heavy vehicles on a road under the authority--
(a) has caused, or is likely to cause, damage to
road infrastructure; or
(b) has had, or is likely to have, an adverse effect
on the community arising from noise,
emissions or traffic congestion or from other
matters stated in approved guidelines; or
(c) has posed, or is likely to pose, a significant
risk to public safety arising from heavy
vehicle use that is incompatible with road
infrastructure or traffic conditions.
(2) The road manager may ask the Regulator to--
(a) amend the mass or dimension authority by--
(i) amending the areas or routes to which
the authority applies; or
(ii) amending the days or hours to which the
authority applies; or
(iii) imposing or amending road conditions
or travel conditions; or
(b) cancel the authority.
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(3) The Regulator must comply with the request.
(4) However, if consent to the grant of the mass or
dimension authority was given by a road authority
under section 163--
(a) the Regulator may refer the request to the
road authority; and
(b) if the road authority gives the Regulator its
written approval of the request, the Regulator
must comply with the request; and
(c) 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--
(i) must not comply with the request; and
(ii) 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.
(5) Notice of the amendment or cancellation must be
published--
(a) in--
(i) the Commonwealth Gazette; and
(ii) a newspaper circulating generally
throughout each relevant participating
jurisdiction; and
(b) on the Regulator's website; and
(c) in any other newspaper the Regulator
considers appropriate.
Example for the purposes of paragraph (c)--
If the mass or dimension authority relates to a
particular part of a participating jurisdiction, the
Regulator may consider it appropriate to publish the
notice in a newspaper circulating generally in the
part.
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(6) The amendment or cancellation takes effect--
(a) 28 days after the Commonwealth Gazette
notice is published under subsection (5); or
(b) if a later time is stated in the Commonwealth
Gazette notice, at the later time.
(7) In this section--
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.
175 Immediate suspension
(1) This section applies if the Regulator considers it is
necessary to suspend a mass or dimension authority
granted by Commonwealth Gazette notice
immediately to prevent or minimise serious harm to
public safety or significant damage to road
infrastructure.
(2) The Regulator may, by publishing a notice as
mentioned in subsection (3) (immediate suspension
notice), immediately suspend the authority until the
earliest of the following--
(a) the Regulator publishes a notice under section
173(5) or 174(5) and the amendment or
cancellation takes effect under section 173(6)
or 174(6);
(b) the Regulator cancels the suspension;
(c) the end of 56 days after the day the
immediate suspension notice is published.
(3) The immediate suspension notice, and (where
relevant) notice of the cancellation of the
suspension, must be published--
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(a) in--
(i) the Commonwealth Gazette; and
(ii) a newspaper circulating generally
throughout each relevant participating
jurisdiction; and
(b) on the Regulator's website; and
(c) in any other newspaper the Regulator
considers appropriate.
Example for the purposes of paragraph (c)--
If the mass or dimension authority relates to a
particular part of a participating jurisdiction, the
Regulator may consider it appropriate to publish the
notice in a newspaper circulating generally in the
part.
(4) The suspension, and (where relevant) the
cancellation of the suspension, takes effect
immediately after the Commonwealth Gazette
notice is published under subsection (3).
(5) This section applies despite sections 173 and 174.
(6) In this section--
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.
Division 4 Amendment, cancellation or
suspension of mass or
dimension authority granted by
permit
176 Amendment or cancellation on application by
permit holder
(1) The holder of a permit for a mass or dimension
authority may apply to the Regulator for an
amendment or cancellation of the authority.
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(2) The application must--
(a) be in writing; and
(b) be accompanied by the prescribed fee for the
application; and
(c) if the application is for an amendment, state
clearly the amendment sought and the reasons
for the amendment; and
(d) be accompanied by the permit.
(3) The Regulator may, by notice given to the
applicant, require the applicant to give the
Regulator any additional information the Regulator
reasonably requires to decide the application.
(4) If the proposed amendment of the mass or
dimension authority is--
(a) to amend the areas or routes to which the
authority applies (otherwise than by omitting
an area or route or reducing an area or route
in size); or
(b) to impose or amend road conditions or travel
conditions;
then--
(c) the Regulator must ask the relevant road
managers (for the roads to which the
amendment relates) for their consent to the
amendment; and
(d) the provisions of Division 2 apply to the
request for consent in the same way as they
apply to a request for consent under that
Division, with the modifications (if any)
prescribed by the national regulations and
with any necessary modifications.
(5) The Regulator must decide the application as soon
as practicable after receiving it.
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(6) If the Regulator decides to grant the application--
(a) the Regulator must give the applicant notice
of the decision; and
(b) the amendment or cancellation takes effect--
(i) when notice of the decision is given to
the applicant; or
(ii) if a later time is stated in the notice, at
the later time; and
(c) if the Regulator amended the authority, the
Regulator must give the applicant a
replacement permit for the authority as
amended.
(7) If the Regulator decides not to amend or cancel the
mass or dimension authority as sought by the
applicant, the Regulator must--
(a) give the applicant an information notice for
the decision; and
(b) return the permit for the authority to the
applicant.
177 Amendment or cancellation on Regulator's
initiative
(1) Each of the following is a ground for amending or
cancelling a mass or dimension authority granted
by giving a person a permit--
(a) the authority was granted because of a
document or representation that was--
(i) false or misleading; or
(ii) obtained or made in an improper way;
(b) the holder of the permit for the authority has
contravened a condition of the authority;
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(c) the use of heavy vehicles on a road under the
authority has caused, or is likely to cause, a
significant risk to public safety.
(2) If the Regulator considers a ground exists to amend
or cancel a mass or dimension authority granted by
giving a person a permit (the proposed action), the
Regulator must give the holder of the permit a
notice--
(a) stating the proposed action; and
(b) stating the ground for the proposed action;
and
(c) outlining the facts and circumstances forming
the basis for the ground; and
(d) if the proposed action is to amend the
authority (including a condition of the
authority)--stating the proposed amendment;
and
(e) inviting the holder to make, within a stated
time of at least 14 days after the notice is
given to the holder, written representations
about why the proposed action should not be
taken.
(3) If, after considering all written representations
made under subsection (2)(e), the Regulator still
considers a ground exists to take the proposed
action, the Regulator may--
(a) if the proposed action was to amend the mass
or dimension authority--amend the authority
in a way that is not substantially different
from the proposed action, including, for
example, by--
(i) amending the areas or routes to which
the authority applies; or
(ii) amending the days or hours to which the
authority applies; or
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(iii) imposing additional vehicle conditions
on the authority; or
(b) if the proposed action was to cancel the
authority--
(i) amend the authority, including, for
example, as mentioned in paragraph
(a)(i), (ii) or (iii); or
(ii) cancel the authority.
(4) The Regulator must give the holder an information
notice for the decision.
(5) The amendment or cancellation takes effect--
(a) when the information notice is given to the
holder; or
(b) if a later time is stated in the information
notice, at the later time.
178 Amendment or cancellation on request by
relevant road manager
(1) This section applies if a relevant road manager for a
mass or dimension authority granted by giving a
person a permit is satisfied the use of heavy
vehicles on a road under the authority--
(a) has caused, or is likely to cause, damage to
road infrastructure; or
(b) has had, or is likely to have, an adverse effect
on the community arising from noise,
emissions or traffic congestion or from other
matters stated in approved guidelines; or
(c) has posed, or is likely to pose, a significant
risk to public safety arising from heavy
vehicle use that is incompatible with road
infrastructure or traffic conditions.
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(2) The road manager may ask the Regulator to--
(a) amend the mass or dimension authority,
including, for example, by--
(i) amending the areas or routes to which
the authority applies; or
(ii) amending the days or hours to which the
authority applies; or
(iii) imposing or amending road conditions
or travel conditions on the authority; or
(b) cancel the authority.
(3) The Regulator must comply with the request.
(4) However, if consent to the grant of the mass or
dimension authority was given by a road authority
under section 163--
(a) the Regulator may refer the request to the
road authority; and
(b) if the road authority gives the Regulator its
written approval of the request, the Regulator
must comply with the request; and
(c) if the road authority does not give written
approval of the request within 28 days after
the referral is made, the Regulator--
(i) must not comply with the request; and
(ii) 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.
(5) If the mass or dimension authority is amended or
cancelled under this section, the Regulator must
give the holder of the permit for the authority
notice of the amendment or cancellation at least
28 days before the amendment or cancellation is to
take effect.
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(6) The notice given to the holder must state--
(a) the day the amendment or cancellation is to
take effect; and
(b) the reasons given by the road manager for the
amendment or cancellation; and
(c) the review and appeal information for the
road manager's decision.
179 Immediate suspension
(1) This section applies if the Regulator considers it is
necessary to suspend a mass or dimension authority
granted by issuing a permit to someone
immediately to prevent or minimise serious harm to
public safety or significant damage to road
infrastructure.
(2) The Regulator may, by notice (immediate
suspension notice) given to the person to whom the
permit was given, immediately suspend the
authority until the earliest of the following--
(a) the Regulator gives the person a notice
under section 177(4) or 178(5) and the
amendment or cancellation takes effect under
section 177(5) or 178;
(b) the Regulator cancels the suspension;
(c) the end of 56 days after the day the
immediate suspension notice is given to the
person.
(3) This section applies despite sections 176, 177
and 178.
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180 Minor amendment of permit for a mass or
dimension authority
(1) The Regulator may, by notice given to the holder of
a permit for a mass or dimension authority, amend
the authority in a minor respect--
(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect
the holder's interests.
(2) The Regulator must provide the relevant road
manager with notice of the amendment.
Division 5 Provisions about permits for
mass or dimension authorities
181 Return of permit
(1) This section applies to a mass or dimension
authority granted by giving a person a permit.
(2) If the mass or dimension authority is amended or
cancelled, the Regulator may, by notice, require the
person to return the person's permit for the
authority to the Regulator.
(3) The person must comply with the notice within
7 days after the notice is given to the person or, if
a longer period is stated in the notice, within the
longer period.
Maximum penalty--$4000.
(4) If the mass or dimension authority has been
amended, the Regulator must give the person a
replacement permit for the authority as amended.
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182 Replacement of defaced etc. permit
(1) If a person's permit for a mass or dimension
authority is defaced, destroyed, lost or stolen, the
person must, as soon as reasonably practicable after
becoming aware of the matter, apply to the
Regulator for a replacement permit.
Maximum penalty--$4000.
(2) 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.
(3) If the Regulator decides not to give a replacement
permit to the person, the Regulator must give the
person an information notice for the decision.
Part 4.8 Extended liability
183 Liability of employer etc. for contravention of
mass, dimension or loading requirement
(1) This section applies to an offence against
section 96, 102 or 111 (a relevant offence).
(2) If a relevant offence is committed in relation to a
heavy vehicle, each of the following persons is
taken to have committed an offence against this
subsection--
(a) an employer of the driver of the vehicle if the
driver is an employed driver;
(b) a prime contractor of the driver of the vehicle
if the driver is a self-employed driver;
(c) an operator of the vehicle or, if it is a
combination, an operator of a vehicle in the
combination;
(d) a consignor of any goods for road transport
using the vehicle that are in the vehicle;
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(e) a packer of any goods in the vehicle;
(f) a loading manager for any goods in the
vehicle;
(g) a loader of any goods in the vehicle.
Maximum penalty for an offence against this
subsection--an amount equal to the maximum
penalty for the relevant offence.
(3) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
(4) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(5) In a proceeding for an offence against
subsection (2)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the relevant offence; and
(b) evidence a court has convicted the driver of
the relevant offence is evidence that the
offence happened at the time and place, and
in the circumstances, stated in the charge
resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the relevant offence is
evidence that the offence happened at the
time and place, and in the circumstances,
stated in the infringement notice.
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Part 4.9 Other offences
Division 1 Towing restriction
184 Towing restriction
(1) A person must not drive a heavy motor vehicle
towing more than 1 other vehicle.
Maximum penalty--$3000.
(2) Subsection (1) does not apply to a person driving a
heavy vehicle--
(a) under a mass or dimension authority; or
(b) in circumstances prescribed by the national
regulations.
Division 2 Coupling requirements
185 Requirements about coupling trailers
(1) A person commits an offence if--
(a) the person uses, or permits to be used, on a
road a heavy combination; and
(b) a trailer in the combination is not securely
coupled to the vehicle in front of it.
Maximum penalty--$6000.
(2) A person commits an offence if--
(a) the person uses, or permits to be used, on a
road a heavy combination; and
(b) the components of a coupling used between
vehicles in the heavy combination are not
compatible with, or properly connected to,
each other.
Maximum penalty--$6000.
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(3) In this section--
coupling means a device used to couple a vehicle
in a combination to the vehicle in front of it.
Division 3 Transport documentation
186 False or misleading transport documentation
for goods
(1) This section applies 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.
(2) Each consignor of the goods commits an offence if
the transport documentation for the consignment 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.
Maximum penalty--$10000.
(3) Each packer of the goods commits an offence if--
(a) the goods are packed in Australia in a freight
container or other container, or in a package
or on a pallet, for road transport; and
(b) the transport documentation for the
consignment 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.
Maximum penalty--$10000.
(4) Each loading manager for, or loader of, the goods
commits an offence if--
(a) the goods are loaded onto a heavy vehicle for
road transport; and
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(b) the transport documentation for the
consignment 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.
Maximum penalty--$10000.
(5) Each receiver of the goods in Australia commits an
offence if--
(a) the goods are packed outside Australia in a
freight container or other container, or in a
package or on a pallet, for road transport; and
(b) the transport documentation for the
consignment 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.
Maximum penalty--$10000.
(6) A person charged with an offence against
subsection (2), (3), (4) or (5) does not have the
benefit of the mistake of fact defence for the
offence.
(7) However, in a proceeding for an offence against
subsection (2), (3), (4) or (5), the person charged
has the benefit of the reasonable steps defence for
the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(8) In a proceeding for an offence against subsection
(2), (3), (4) or (5), 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.
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(9) In this section--
receiver, of goods in Australia, means a person
who, other than the person who merely unloads the
goods--
(a) first receives the goods in Australia; or
(b) unpacks the goods after the goods are first
unloaded in Australia.
187 False or misleading information in container
weight declaration
(1) This section applies in relation to a freight
container to be transported by road using a heavy
vehicle, or partly by road using a heavy vehicle and
partly by some other means.
(2) The responsible entity for the freight container
commits an offence if--
(a) the responsible entity gives the container to
an operator of a heavy vehicle; and
(b) the container weight declaration for the
container contains information that is false or
misleading in a material particular.
Maximum penalty--$10000.
(3) An operator of a heavy vehicle commits an offence
if--
(a) the operator arranges for the freight container
to be transported by road using the vehicle;
and
(b) the container weight declaration for the
container given to the vehicle's driver
contains information that is false or
misleading in a material particular.
Maximum penalty--$10000.
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(4) For the purposes of this section, 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.
(5) A person charged with an offence against
subsection (2) or (3) does not have the benefit of
the mistake of fact defence for the offence.
(6) However, in a proceeding for an offence against
subsection (2) or (3), the person charged has the
benefit of the reasonable steps defence for the
offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(7) In a proceeding for an offence against subsection
(2) or (3), it is enough for a charge to state that
information contained in the container weight
declaration was `false or misleading', without
specifying whether it was false or whether it was
misleading.
Division 4 Other offences about container
weight declarations
188 Application of Div 4
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.
189 Meaning of complying container weight
declaration
A container weight declaration for a freight
container is a complying container weight
declaration if--
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(a) it contains the following additional
information--
(i) the number and other particulars of the
freight container necessary to identify
the container;
(ii) the name and residential address or
business address in Australia of the
responsible entity for the freight
container;
(iii) the date the container weight declaration
is made; and
(b) it is written and easily legible; and
(c) 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.
190 Duty of responsible entity
(1) The responsible entity for the freight container
must not permit an operator or driver of a heavy
vehicle to transport the freight container by road
using the vehicle unless the operator or driver has
been provided with a complying container weight
declaration for the freight container.
Maximum penalty--$6000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
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(3) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
191 Duty of operator
(1) An operator of a heavy vehicle must not permit the
vehicle's driver to transport the freight container by
road using the vehicle unless the driver has been
provided with a complying container weight
declaration for the freight container.
Maximum penalty--$6000.
(2) If the driver of a 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
contravened subsection (1) unless the operator
proves that the driver was provided with the
declaration before the driver started transporting
the freight container.
(3) If the freight container is to be transported partly by
a person (a carrier) by a means other than by road
using a heavy vehicle, an operator of a heavy
vehicle must not give the freight container to the
carrier unless the carrier has been provided with--
(a) a complying container weight declaration for
the freight container; or
(b) the prescribed particulars contained in a
complying container weight declaration for
the freight container.
Maximum penalty--$6000.
(4) A person charged with an offence against
subsection (1) or (3) does not have the benefit of
the mistake of fact defence for the offence.
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(5) However, in a proceeding for an offence against
subsection (1) or (3), the person charged has the
benefit of the reasonable steps defence for the
offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(6) In this section--
prescribed particulars, contained in a complying
container weight declaration for a freight container,
means--
(a) information about the weight of the freight
container and its contents; and
(b) the information mentioned in section 189(a).
192 Duty of driver
(1) A person must not drive a heavy vehicle loaded
with the freight container on a road unless the
person has a complying container weight
declaration for the container.
Maximum penalty--$6000.
(2) The driver of a heavy vehicle loaded with the
freight container must, when driving the vehicle on
a road, keep the complying container weight
declaration for the container--
(a) in or about the vehicle; and
(b) 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.
Maximum penalty--$3000.
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(3) A person charged with an offence against
subsection (1) or (2) does not have the benefit of
the mistake of fact defence for the offence.
(4) However, in a proceeding for an offence against
subsection (1) or (2), the person charged has the
benefit of the reasonable steps defence for the
offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
Division 5 Other offences
193 Weight of freight container exceeding weight
stated on container or safety approval plate
(1) This section applies if a freight container contains
goods consigned for road transport using a heavy
vehicle, or for transport partly by road using a
heavy vehicle and partly by some other means.
(2) Each consignor or packer of the goods commits an
offence if the weight of the container exceeds the
maximum gross weight marked on the container or
the container's safety approval plate.
Maximum penalty--$10000.
(3) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
(4) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
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(5) In this section--
safety approval plate, for a freight container, means
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.
194 Conduct of consignee resulting or potentially
resulting in contravention of mass, dimension
or loading requirement
(1) A person who is a consignee of goods consigned
for road transport using a heavy vehicle commits an
offence if--
(a) the person does an act or makes an omission;
and
(b) the doing of the act or making of the omission
results, or is likely to result, in inducing or
rewarding a contravention of a mass,
dimension or loading requirement; and
(c) the person--
(i) intends that result; or
(ii) is reckless or negligent as to the matter
mentioned in paragraph (b).
Maximum penalty--$10000.
(2) Without limiting subsection (1)(c)(i), the person is
taken to have intended the result mentioned in
subsection (1)(b) if the person knew or ought
reasonably to have known that--
(a) a container weight declaration for the
container in which the goods were consigned
was not given as required by this Law; or
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(b) a 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
195 Conflicting mass requirements
(1) This section applies if 2 or more conflicting mass
requirements apply to a heavy vehicle.
(2) Of the conflicting requirements, the requirement
imposing the lower or lowest mass limit applies to
the heavy vehicle and the other requirement or
requirements must be disregarded to the extent of
the conflict.
196 Conflicting dimension requirements
(1) This section applies if 2 or more conflicting
dimension requirements apply to a heavy vehicle.
(2) Of the conflicting requirements, the requirement
imposing the more or most restrictive dimension
limit applies to the heavy vehicle and the other
requirement or requirements must be disregarded to
the extent of the conflict.
197 Exemption from compliance with particular
requirements in emergency
(1) The Regulator may, orally or in writing, exempt a
heavy vehicle, or the driver or operator of a heavy
vehicle, from a prescribed requirement if the
Regulator is satisfied--
(a) the vehicle is being used, or is intended to be
used, in an emergency, including, for
example, a fire, explosion or natural
disaster--
(i) to protect life or property; or
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(ii) to restore communication or the supply
of energy or water or services,
including, for example, sewage disposal;
and
(b) granting the exemption will not create an
unreasonable danger to other road users.
(2) An exemption granted under subsection (1) may be
subject to conditions the Regulator considers
appropriate.
(3) If an exemption is granted orally under subsection
(1), the Regulator must, as soon as practicable--
(a) make a written record of the exemption and
any conditions to which it is subject; and
(b) give a copy of the written record to an
operator of the heavy vehicle to which it
relates.
(4) An exemption under this section has effect only
while the conditions, if any, to which it is subject
are complied with.
(5) The Regulator is to notify the relevant road
authority of the grant of an exemption under
subsection (1) as soon as practicable after it is
granted.
(6) In this section--
prescribed requirement means--
(a) a mass requirement; or
(b) a dimension requirement; or
(c) a requirement under Part 4.5, including, for
example, a requirement to comply with a
condition of an exemption under that Part; or
(d) a requirement under Part 4.6, including, for
example, a requirement to comply with a
condition of an authorisation under that Part.
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relevant road authority, for an exemption granted
under subsection (1), means the road authority for
the participating jurisdiction in which the road
likely to be travelled under the exemption is
situated.
198 Recovery of losses arising from non-provision
of container weight declaration
(1) This section applies if the 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.
(2) A person who has incurred a loss as a result of the
declaration not being provided (the plaintiff) has a
right to recover the loss from the responsible entity
for the freight container.
(3) For the purposes of subsection (2), the losses that
may be recovered include the following--
(a) loss incurred from delays in the delivery of
the freight container, any of its contents or
any other goods;
(b) loss incurred from the damage to or spoliation
of anything contained in the freight container;
(c) loss incurred from providing another heavy
vehicle, and loss incurred from delays arising
from providing another heavy vehicle;
(d) costs or expenses incurred for weighing the
freight container or any of its contents.
(4) The plaintiff may enforce the plaintiff's right to
recovery under subsection (2) by bringing a
proceeding in a court of competent jurisdiction for
an order for payment of the monetary value of the
loss.
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199 Recovery of losses for provision of inaccurate
container weight declaration
(1) This section applies if--
(a) 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
(b) the declaration contains information (the false
or misleading information) that is false or
misleading in a material particular because
it--
(i) understates the weight of the container;
or
(ii) otherwise indicates the weight of the
container is lower than its actual weight;
and
(c) 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
(d) at the relevant time, the operator or driver
either--
(i) had a reasonable belief the vehicle was
not in contravention of the mass
requirement; or
(ii) 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.
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(2) A person who has incurred a loss as a result of the
declaration containing the false or misleading
information (the plaintiff) has a right to recover the
loss from the responsible entity for the freight
container.
(3) For the purposes of subsection (2), the losses that
may be recovered include the following--
(a) the amount of a fine or other penalty imposed
on the plaintiff for an offence against this
Law;
(b) the amount of a fine or other penalty imposed
on an employee or agent of the plaintiff for an
offence against this Law and reimbursed by
the plaintiff;
(c) loss incurred from delays in the delivery of
the freight container, any of its contents, or
any other goods;
(d) loss incurred from the damage to or spoliation
of anything contained in the freight container;
(e) loss incurred from providing another heavy
vehicle, and loss incurred from delays arising
from providing another heavy vehicle;
(f) costs or expenses incurred for weighing the
freight container or any of its contents.
(4) The plaintiff may enforce the plaintiff's right to
recovery under subsection (2) by bringing a
proceeding in a court of competent jurisdiction for
an order for payment of the monetary value of the
loss.
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200 Recovery by responsible entity of amount paid
under s 199
(1) This section applies if, under section 199, a person
brings a proceeding (a recovery proceeding) in a
court for an order that the responsible entity for a
freight container pay the person an amount for loss
incurred by the person as a result of the container
weight declaration for the freight container
containing false or misleading information
mentioned in section 199(1)(b).
(2) The responsible entity has a right to recover from a
person (the information provider) who provided
the responsible entity with all or part of the false or
misleading information the part of the amount (the
attributable amount) attributable to the information
provided by the information provider.
(3) The responsible entity may enforce the entity's
right to recovery under subsection (2) by--
(a) if the recovery proceeding has not been
decided-- joining the information provider in
the proceeding and applying to the court for
an order that the information provider pay the
attributable amount to the responsible entity
if an order is made under section 199(4); or
(b) if the recovery proceeding has been
decided--bringing a proceeding in a court of
competent jurisdiction for an order that the
information provider pay the attributable
amount to the responsible entity.
201 Assessment of monetary value or attributable
amount
(1) The court may assess the monetary value of a loss
recoverable under section 198(2) or 199(2), or the
attributable amount recoverable under section
200(2), in the way it considers appropriate.
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(2) In making the assessment, the court may have
regard to the matters it considers appropriate,
including any evidence adduced in a proceeding for
an offence against this Law.
Chapter 5 Vehicle operations--
speeding
Part 5.1 Preliminary
202 Main purpose of Ch 5
The main purpose of this Chapter 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.
203 Outline of the main features of Ch 5
This Chapter--
(a) 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
(b) requires 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
(c) requires 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
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(d) requires 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
(e) 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; and
(f) 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.
Part 5.2 Particular duties and
offences
Division 1 Employers, prime contractors
and operators
204 Duty of employer, prime contractor or operator
to ensure business practices will not cause
driver to exceed speed limit
(1) A relevant party for the driver of a heavy vehicle
must take all reasonable steps to ensure the relevant
party's business practices will not cause the driver
to exceed a speed limit applying to the driver.
Examples of reasonable steps--
· regular consultation with other parties in the chain of
responsibility, unions and industry associations to
address compliance issues
· reviewing driving, work and trip records
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· a program to report and monitor (for example, by GPS
tracking) incidents of speeding and related risks and
hazards
· training and information about speeding for drivers of
heavy vehicles, staff and parties in the chain of
responsibility for heavy vehicles (within the meaning
given by section 214)
· regular maintenance of vehicle components that relate
to complying with speed limits (for example,
speedometer, engine management system and speed
limiters)
Maximum penalty--$10000.
Notes--
1 Section 622 sets out some of the factors a court may
consider in deciding whether a person has taken all
reasonable steps.
2 Section 623 sets out 1 method by which an employer,
prime contractor and operator can take all reasonable
steps for the purposes of this section.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(3) In this section--
business practices, of a relevant party for the driver
of a heavy vehicle, means the practices of the
relevant party in running the relevant party's
business, and includes each of the following--
(a) the operating policies and procedures of the
business;
(b) the human resource and contract management
arrangements of the business;
(c) arrangements for managing safety.
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relevant party, for the driver of a heavy vehicle,
means any of the following--
(a) an employer of the driver if the driver is an
employed driver;
(b) a prime contractor of the driver if the driver is
a self-employed driver;
(c) an operator of the vehicle if the driver is
making or is to make a journey for the
operator.
205 Duty of employer not to cause driver to drive if
particular requirements not complied with
(1) An employer of an employed driver of a heavy
vehicle must not cause the driver to drive the heavy
vehicle unless--
(a) the employer has complied with section 204;
and
(b) the employer is reasonably satisfied each
scheduler for the vehicle has complied with
sections 207 and 208.
Maximum penalty--$4000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
206 Duty of prime contractor or operator not to
cause driver to drive if particular requirements
not complied with
(1) This section applies to--
(a) a prime contractor of a self-employed driver
of a heavy vehicle (the driver); and
(b) an operator of a heavy vehicle that is to be
driven by someone else (also the driver).
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(2) The prime contractor, or operator, must not cause
the driver to drive the heavy vehicle unless--
(a) the prime contractor, or operator, has
complied with section 204; and
(b) the prime contractor, or operator, is
reasonably satisfied each scheduler for the
vehicle has complied with sections 207
and 208.
Maximum penalty--$4000.
(3) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
Division 2 Schedulers
207 Duty to ensure driver's schedule will not cause
driver to exceed speed limit
(1) A scheduler for a heavy vehicle must take all
reasonable steps to ensure the schedule for the
vehicle's driver will not cause the driver to exceed
a speed limit applying to the driver.
Examples of reasonable steps--
· consulting drivers about their schedules and work
requirements
· taking account of the average speed that can be
travelled lawfully on scheduled routes
· allowing for traffic conditions or other delays in
schedules
· contingency planning concerning schedules
Maximum penalty--$10000.
Notes--
1 Section 622 sets out some of the factors a court may
consider in deciding whether a person has taken all
reasonable steps.
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2 Section 623 sets out 1 method by which a scheduler for
a heavy vehicle can take all reasonable steps for the
purposes of this section.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
208 Duty not to cause driver to drive if particular
requirements not complied with
(1) A scheduler for a heavy vehicle must not cause the
vehicle's driver to drive the vehicle unless--
(a) the scheduler has complied with section 207;
and
(b) the driver's schedule for driving the vehicle
allows--
(i) for compliance with all speed limits; and
(ii) for the driver to take all required rest in
compliance with all laws regulating the
driver's work times and rest times; and
(iii) for traffic conditions and other delays
that could reasonably be expected.
Examples for the purposes of subparagraph (iii)--
· 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
· delays caused by loading, unloading or queuing
Maximum penalty--$4000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
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Division 3 Loading managers
209 Duty to ensure loading arrangements will not
cause driver to exceed speed limit
(1) A loading manager for goods in heavy vehicles
must take all reasonable steps to ensure the
arrangements for loading goods onto and unloading
goods from heavy vehicles will not cause the driver
of a heavy vehicle to exceed a speed limit applying
to the driver.
Examples of reasonable steps--
· 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
allowing loading and unloading to happen at an agreed
time
Maximum penalty--$10000.
Notes--
1 Section 622 sets out some of the factors a court may
consider in deciding whether a person has taken all
reasonable steps.
2 Section 623 sets out 1 method by which a loading
manager can take all reasonable steps for the purposes
of this section.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
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Division 4 Particular consignors and
consignees
210 Consignors to whom Div 4 applies
This Division applies to a person (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.
211 Consignees to whom Div 4 applies
This Division applies only to a consignee of
goods--
(a) 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
(b) who knows, or who ought reasonably to
know, that the goods are to be transported by
road.
Note--
See section 632 for the matters a court may consider when
deciding whether a person ought reasonably to have known
something.
212 Duty to ensure terms of consignment will not
cause driver to exceed speed limit etc.
(1) A commercial consignor or a consignee of goods
must take all reasonable steps to ensure the terms of
consignment will not cause the relevant driver to
exceed a speed limit applying to the driver.
Maximum penalty--$10000.
(2) A commercial consignor or a consignee of goods
must take all reasonable steps to ensure the terms of
consignment will not cause a relevant party for the
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relevant driver to cause the driver to exceed a speed
limit applying to the driver.
Examples of reasonable steps for the purposes of
subsections (1) and (2)--
· ensuring contractual arrangements and documentation
for the consignment and delivery of goods enable
speed limit compliance
· contingency planning concerning consignments and
delivery times
· regular consultation with other parties in the chain of
responsibility, unions and industry associations to
address compliance issues
Maximum penalty--$10000.
Notes for the purposes of subsections (1) and (2)--
1 Section 622 sets out some of the factors a court may
consider in deciding whether a person has taken all
reasonable steps.
2 Section 623 sets out 1 method by which a consignor or
consignee can take all reasonable steps for the
purposes of subsection (1) or (2).
(3) A person charged with an offence against
subsection (1) or (2) does not have the benefit of
the mistake of fact defence for the offence.
(4) In this section--
relevant driver, for consigned goods, means the
driver of the heavy vehicle by which the goods are
to be or are being transported.
relevant party, for the relevant driver for consigned
goods, means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
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(c) an operator of the heavy vehicle by which the
goods are transported if the driver is to make,
or is making, a journey for the operator.
213 Duty not to make a demand that may result in
driver exceeding the speed limit
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--
(a) the consignor or consignee has complied with
section 212; and
(b) the consignor or consignee is reasonably
satisfied the making of the demand will not
cause a person to contravene section 207
or 208.
Maximum penalty--$6000.
Division 5 Particular requests etc. and
contracts etc. prohibited
214 Who is a party in the chain of responsibility
(1) For the purposes of this Division, each of the
following persons is a party in the chain of
responsibility for a heavy vehicle--
(a) an employer of the vehicle's driver if the
driver is an employed driver;
(b) a prime contractor for the vehicle's driver if
the driver is a self-employed driver;
(c) an operator of the vehicle;
(d) a scheduler for the vehicle;
(e) a loading manager for any goods in the
vehicle;
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(f) a commercial consignor of any goods for
transport by the vehicle that are in the
vehicle;
(g) a consignee of any goods in the vehicle, if
Division 4 applies to the consignee.
Note--
The exercise of any of these functions, whether exclusively
or occasionally, decides whether a person falls within any
of these definitions, rather than the person's job title or
contractual description.
(2) A person may be a party in the chain of
responsibility for a heavy vehicle in more than
1 capacity.
Example--
A person may be simultaneously the driver's employer, an
operator and a consignor of goods in relation to a heavy
vehicle and be subject to duties in each of the capacities.
215 Particular requests etc. prohibited
A person must not ask, direct or require, directly or
indirectly, the driver of a heavy vehicle, or a party
in the chain of responsibility for a heavy vehicle, to
do something 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.
Example of a requirement that contravenes this section--
a requirement that the driver complete a journey in a time
the person knows or ought reasonably to know can not be
complied with unless the driver exceeds the speed limit or
does not have all the rest time the driver is required to have
under a minimum rest requirement
Maximum penalty--$10000.
Note--
See section 632 for the matters a court may consider when
deciding whether a person ought reasonably to have known
something.
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216 Particular contracts etc. prohibited
(1) A person must not enter into a contract or other
agreement with the driver of a heavy vehicle, or
with a party in the chain of responsibility for a
heavy vehicle, that the person knows, or ought
reasonably to know, would have the effect of
causing the vehicle's driver to exceed a speed limit
applying to the driver.
Maximum penalty--$10000.
(2) A person must not enter into a contract or other
agreement with the driver of a heavy vehicle, or
with a party in the chain of responsibility for a
heavy vehicle, that the person knows, or ought
reasonably to know, would encourage or provide an
incentive for the vehicle's driver, or a party in the
chain of responsibility for the vehicle to cause the
vehicle's driver, to exceed a speed limit applying to
the driver.
Maximum penalty--$10000.
Notes for the purposes of subsections (1) and (2)--
1 See section 632 for the matters a court may consider
when deciding whether a person ought reasonably to
have known something.
2 See also section 742, which provides that particular
contracts or other agreements are void.
Division 6 Provisions about offences
against this Part
217 Objective reasonableness test to be used in
deciding causation
(1) This section applies in relation to a proceeding for
an offence against this Part that may be committed
by a person failing to take all reasonable steps to
ensure someone else does not drive a heavy vehicle
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in excess of a speed limit applying to the vehicle's
driver (prohibited act).
(2) For the purposes of subsection (1), a person failing
to take all reasonable steps to ensure someone else
does not do a prohibited act includes--
(a) the person failing to take reasonable steps to
ensure the other person does not do the
prohibited act; and
(b) the person failing to take reasonable steps to
ensure the person's activities, or anything
arising out of the person's activities, do not--
(i) cause the other person to do the
prohibited act; or
(ii) result in the other person doing the
prohibited act; or
(iii) provide an incentive for the other person
to do the prohibited act.
(3) Subsection (4) applies if--
(a) a person does an act or makes an omission;
and
(b) as a result of the act or omission someone
else does a prohibited act.
(4) A court may find the person caused the other
person to do the prohibited act if the court is
satisfied a reasonable person would have foreseen
that the person's act or omission would be
reasonably likely to cause the other person to do the
prohibited act.
218 Commission of speeding offence is irrelevant
to Pt 5.2 prosecution
In a prosecution for an offence against this Part, it
is not necessary to prove the driver of the heavy
vehicle exceeded a speed limit applying to the
driver.
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Part 5.3 Extended liability
219 Liability of employer etc. for speeding offence
(1) If a speeding offence is committed in relation to a
heavy vehicle, each of the following persons is
taken to have committed an offence against this
subsection--
(a) an employer of the driver if the driver is an
employed driver;
(b) a prime contractor of the driver if the driver is
a self-employed driver;
(c) an operator of the vehicle if the driver is
making a journey for the operator.
Maximum penalty--
(a) if the speeding offence involves the driver of
a heavy vehicle exceeding a speed limit of
50km/h or 60km/h--$3000; or
(b) if the speeding offence involves the driver of
a heavy vehicle exceeding a speed limit of
70km/h or 80km/h--
(i) by less than 15km/h--$3000; or
(ii) by 15km/h or more--$5000; or
(c) if the speeding offence involves the driver of
a heavy vehicle other than a road train
exceeding a speed limit of 90km/h--
(i) by less than 15km/h--$3000; or
(ii) by 15km/h or more--$5000; or
(d) if the speeding offence involves the driver of
a road train exceeding a speed limit of
90km/h--
(i) by less than 15km/h--$5000; or
(ii) by 15km/h or more--$10000; or
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(e) if the speeding offence involves the driver of
a heavy vehicle exceeding a speed limit of
100km/h or more--
(i) by less than 15km/h--$5000; or
(ii) by 15km/h or more--$10000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(3) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(4) In a proceeding for an offence against
subsection (1)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the speeding offence; and
(b) evidence a court has convicted the driver of
the speeding offence is evidence that the
offence happened at the time and place, and
in the circumstances, stated in the charge
resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the speeding offence is
evidence that the offence happened at the
time and place, and in the circumstances,
stated in the infringement notice.
(5) In this section--
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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Chapter 6 Vehicle operations--
driver fatigue
Part 6.1 Preliminary
220 Main purpose of Ch 6
(1) The main purpose of this Chapter is to provide for
the safe management of the fatigue of drivers of
fatigue-regulated heavy vehicles while they are
driving on a road.
(2) The main purpose is achieved by--
(a) imposing duties on drivers of fatigue-
regulated heavy vehicles and particular
persons whose activities influence the
conduct of drivers of fatigue-regulated heavy
vehicles in a way that affects the drivers'
fatigue when driving on a road; and
(b) imposing general duties directed at
preventing persons driving fatigue-regulated
heavy vehicles on a road while impaired by
fatigue; and
(c) imposing additional duties directed at helping
drivers of fatigue-regulated heavy vehicles to
comply with this Chapter, which are imposed
on particular parties in the chain of
responsibility; and
(d) providing for the maximum work
requirements and minimum rest requirements
applying to drivers of fatigue-regulated heavy
vehicles; and
(e) providing for recording the work times and
rest times of drivers, amongst other things.
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221 Definitions for Ch 6
In this Chapter--
100km work has the meaning given by
section 289(1).
100+km work has the meaning given by
section 289(2).
AFM fatigue management system has the meaning
given by section 457.
AFM hours has the meaning given by section 257.
approved electronic recording system means an
electronic recording system the subject of a current
approval under section 343 or a corresponding
fatigue law.
approved sleeper berth means--
(a) for a fatigue-regulated heavy vehicle other
than a fatigue-regulated bus--a driver's
sleeper berth that complies with ADR 42 and
is able to be used by the driver when resting;
or
(b) for a fatigue-regulated bus--a driver's sleeper
berth that--
(i) complies with a standard for sleeper
berths that is approved by the
responsible Ministers under section 654;
and
(ii) is able to be used by the driver when
resting.
BFM hours has the meaning given by section 253.
cancel, in relation to an unused daily sheet in a
written work diary, means cancel by writing
`cancelled' in large letters across the sheet.
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cause of fatigue means any factor that could cause
or contribute to a person being fatigued while
driving a fatigue-regulated heavy vehicle on a road
(whether or not the cause arises while the person is
at work).
Examples--
· physical or mental exertion
· long periods of time awake
· not enough sleep or not enough restorative sleep
· not enough rest time
· a person's circadian rhythm (body clock)
· environmental stress factors, including heat, noise,
vibrations
· personal health
corresponding fatigue law--
1 A corresponding fatigue law is a law of a
non-participating jurisdiction that provides
for the same, or substantially the same,
matters as this Chapter.
2 A corresponding fatigue law for a provision
of this Chapter is a provision of a
corresponding fatigue law within the meaning
of paragraph 1 that corresponds, or
substantially corresponds, to the provision of
this Chapter.
3 For the purposes of paragraph 1, it is
irrelevant whether the law of the non-
participating jurisdiction--
(a) is in 1 instrument or 2 or more
instruments; or
(b) is part of an instrument; or
(c) is part of an instrument and the whole or
part of 1 or more other instruments.
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critical risk breach, for a maximum work
requirement or minimum rest requirement, has the
meaning given by section 222(4).
daily sheet, for a written work diary, has the
meaning given by section 338(2)(b).
electronic recording system means a system of
recording information electronically.
electronic work diary means a device that--
(a) is, or is part of, an approved electronic
recording system; and
(b) is fitted to or used in a fatigue-regulated
heavy vehicle; and
(c) has attached to it an electronic work diary
label relating to the approval.
electronic work diary label means a label that--
(a) indicates that the device to which it is
attached is, or is part of, an approved
electronic recording system; and
(b) states the number of the certificate of
approval issued by the Regulator for the
approved electronic recording system; and
(c) is in a form approved by the Regulator.
entry, in a work record, means anything written in
the work record.
exemption hours has the meaning given by
section 259.
fatigue has the meaning given by section 223.
impaired by fatigue has the meaning given by
section 225.
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intelligent access reporting entity, for an approved
intelligent transport system, means a person on
whom there is an obligation, imposed by Chapter 7,
to report a malfunction of or tampering with the
system to the Regulator.
loading manager--
Note--
Section 5 contains the definition loading manager.
That definition is affected by the definition regular loading
or unloading premises, and is used in this Chapter
(including sections 227, 238, 239 and 261).
As a result of the interaction of the 2 definitions, this
Chapter applies to a person as a loading manager only if
the premises concerned are premises at or from which an
average of at least 5 fatigue-regulated heavy vehicles are
loaded or unloaded on each day the premises are operated
for loading or unloading heavy vehicles.
major rest break means rest time of at least
5 continuous hours.
malfunction, of an electronic work diary or an
odometer, means the work diary or odometer--
(a) ceases to work at all, or works only
intermittently; or
(b) does not perform 1 or more functions
required under this Chapter; or
(c) performs the functions mentioned in
paragraph (b) only intermittently; or
(d) performs the functions mentioned in
paragraph (b) in a way that is inaccurate or
unreliable, including intermittently inaccurate
or unreliable.
Examples of an electronic work diary malfunctioning--
· corruption of data held in the electronic work diary
· a software program fault
· physical damage that impairs the functioning of the
electronic work diary
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Example of an odometer malfunctioning--
· an odometer that no longer keeps an accurate record of
distance travelled
minor risk breach has the meaning given by
section 222(1).
night work time means work time between
midnight and 6a.m.
Note--
Under sections 248 and 303, the time must be based on the
time zone of the driver's base for drivers on a journey in a
different time zone to the driver's base.
non-participating jurisdiction means a State or
Territory that is not a participating jurisdiction.
participating jurisdiction means a State or
Territory in which--
(a) this Chapter applies as a law of the State or
Territory; or
(b) a law containing provisions that substantially
correspond to the provisions of this Chapter is
in force.
party in the chain of responsibility, for a fatigue-
regulated heavy vehicle, has the meaning given by
section 227.
record keeper has the meaning given by
section 317.
record location, of the driver of a fatigue-regulated
heavy vehicle, has the meaning given by
section 290.
rest, in relation to a fatigue-regulated heavy
vehicle, means not work in relation to a fatigue-
regulated heavy vehicle.
rest time, for the driver of a fatigue-regulated heavy
vehicle, means any time that is not work time for
the driver.
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severe risk breach has the meaning given by
section 222(3).
sign of fatigue means any sign that a person was, is
or will be fatigued while driving a fatigue-regulated
heavy vehicle on a road (whether the sign manifests
itself before, during or after the driver drove the
vehicle).
Examples--
· lack of alertness
· inability to concentrate
· reduced ability to recognise or respond to external
stimuli
· poor judgment or memory
· making more mistakes than usual
· drowsiness, or falling asleep, at work (including
microsleeps)
· finding it difficult to keep eyes open
· needing more frequent naps than usual
· not feeling refreshed after sleep
· excessive head-nodding or yawning
· blurred vision
· mood changes, increased irritability or other changes
to the person's mental health
· changes to the person's health or fitness
solo driver means a driver who is not a party to a
two-up driving arrangement.
standard hours has the meaning given by
section 249.
stationary rest time means rest time a driver
spends--
(a) out of a fatigue-regulated heavy vehicle; or
(b) in an approved sleeper berth of a stationary
fatigue-regulated heavy vehicle.
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substantial risk breach has the meaning given by
section 222(2).
supplementary record means a supplementary
record made under section 305.
tamper, with an approved electronic recording
system, has the meaning given by section 334.
two-up driving arrangement means an
arrangement under which 2 persons share the
driving of a fatigue-regulated heavy vehicle that
has an approved sleeper berth.
work, in relation to a fatigue-regulated heavy
vehicle, means--
(a) drive a fatigue-regulated heavy vehicle; or
(b) instruct another person to drive, or supervise
another person driving, a fatigue-regulated
heavy vehicle; or
(c) perform another task relating to the use of a
fatigue-regulated heavy vehicle, including,
for example--
(i) load things onto, or unload things from,
the heavy vehicle; and
(ii) inspect, service or repair the heavy
vehicle; and
(iii) inspect or attend to a load on the heavy
vehicle; and
(iv) if the heavy vehicle is a bus, attend to
passengers on the bus; and
(v) clean or refuel the heavy vehicle; and
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(vi) perform marketing tasks in relation to
the use of the vehicle; and
Examples for the purposes of
subparagraph (vi)--
· arranging for the transport of goods or
passengers by the heavy vehicle
· canvassing for orders for the transport of
goods or passengers by the heavy vehicle
(vii) help another person to perform, or
supervise another person performing,
a task mentioned in any of
subparagraphs (i) to (vi); and
(viii) record information or complete a
document, as required under this Law, a
corresponding fatigue law or otherwise,
in relation to the use of the vehicle; or
(d) occupy the driver's seat of a fatigue-regulated
heavy vehicle while its engine is running.
work and rest change, for the driver of a fatigue-
regulated heavy vehicle, means--
(a) a change from work time to rest time; or
(b) a change from rest time to work time; or
(c) a change from being a solo driver to being a
driver who is a party to a two-up driving
arrangement; or
(d) a change from being a driver who is a party to
a two-up driving arrangement to being a solo
driver.
work and rest hours option has the meaning given
by section 243.
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work diary, for the driver of a fatigue-regulated
heavy vehicle--
(a) generally, means a written work diary or
electronic work diary kept by the driver for
the purposes of this Law; and
(b) for Subdivision 1 of Division 2 of Part 6.4,
see section 292.
work record means--
(a) a written or electronic work diary of the
driver of a fatigue-regulated heavy vehicle; or
(b) a supplementary record; or
(c) a record required to be made or kept under
(or by a condition under) Division 2, 3, 8
or 8A of Part 6.4; or
(d) a copy of a document, or an entry in a
document, mentioned in paragraph (a), (b)
or (c).
work time, for the driver of a fatigue-regulated
heavy vehicle, means any time the driver spends
undertaking work in relation to the vehicle.
written work diary means a written work diary
issued to the driver of a fatigue-regulated heavy
vehicle by the Regulator under section 340 or a
corresponding fatigue law.
222 Categories of breaches
(1) A contravention of a maximum work requirement
or minimum rest requirement is a minor risk
breach if it is declared under the national
regulations to be a breach in the minor risk
category.
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(2) A contravention of a maximum work requirement
or minimum rest requirement is a substantial risk
breach if it is declared under the national
regulations to be a breach in the substantial risk
category.
(3) A contravention of a maximum work requirement
or minimum rest requirement is a severe risk
breach if it is declared under the national
regulations to be a breach in the severe risk
category.
(4) A contravention of a maximum work requirement
or minimum rest requirement is a critical risk
breach if it is declared under the national
regulations to be a breach in the critical risk
category.
Part 6.2 Duties relating to fatigue
Division 1 Preliminary
223 What is fatigue
(1) Fatigue includes (but is not limited to)--
(a) feeling sleepy; and
(b) feeling physically or mentally tired, weary or
drowsy; and
(c) feeling exhausted or lacking energy; and
(d) behaving in a way consistent with
paragraph (a), (b) or (c).
(2) The national regulations may contain provisions
supplementing, clarifying or providing examples
for any of the provisions of sections 223 to 226.
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224 Matters court may consider in deciding whether
person was fatigued
(1) When deciding whether the driver of a fatigue-
regulated heavy vehicle was fatigued, a court may
consider the following--
(a) what is commonly understood as being
fatigued;
(b) the causes of fatigue;
(c) the signs of fatigue;
(d) any relevant body of fatigue knowledge;
(e) any other matter prescribed by the national
regulations.
(2) Subsection (1) does not limit the matters the court
may consider when deciding whether a driver was
impaired by fatigue.
225 What is impaired by fatigue
A driver is impaired by fatigue if the driver's
ability to drive a fatigue-regulated heavy vehicle
safely is affected by fatigue.
226 Matters court may consider in deciding whether
person was impaired by fatigue
(1) When deciding whether the driver of a fatigue-
regulated heavy vehicle was impaired by fatigue, a
court may consider any of the following--
(a) any relevant cause of fatigue or sign of
fatigue that was evident, and the degree to
which it may indicate that the driver was
impaired by fatigue;
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(b) any behaviour exhibited by the driver that
may have resulted from the driver being
impaired by fatigue;
Examples for the purposes of paragraph (b)--
· the circumstances of any incident, crash or near
miss
· poor driving judgement
· inattentive driving such as drifting into other
lanes on a road or not changing gears smoothly
(c) the nature and extent of any physical or
mental exertion by the driver;
(d) whether the driver was in breach of the
driver's work and rest hours option.
(2) Subsection (1) does not limit the matters the court
may consider when deciding whether a driver was
impaired by fatigue.
(3) A court may consider the driver to be impaired by
fatigue even if the driver has complied with--
(a) the requirements of this Law, including, for
example, the maximum work requirements
and minimum rest requirements applying to
the driver; or
(b) any other law.
227 Who is a party in the chain of responsibility
(1) Each of the following persons is a party in the
chain of responsibility for a fatigue-regulated heavy
vehicle--
(a) an employer of the vehicle's driver;
(b) a prime contractor for the vehicle's driver;
(c) an operator of the vehicle;
(d) a scheduler for the vehicle;
(e) a consignor of any goods for transport by the
vehicle that are in the vehicle;
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(f) a consignee of any goods in the vehicle;
(g) a loading manager for any goods in the
vehicle;
(h) a loader of any goods in the vehicle;
(i) an unloader of any goods in the vehicle.
(2) A person may be a party in the chain of
responsibility for a fatigue-regulated heavy vehicle
in more than 1 capacity.
Example--
A person may be simultaneously a driver's employer, an
operator and a consignor of goods in relation to a fatigue-
regulated heavy vehicle, and be subject to duties in each of
the capacities.
Division 2 Duty to avoid and prevent
fatigue
228 Duty of driver to avoid driving while fatigued
(1) A person must not drive a fatigue-regulated heavy
vehicle on a road while the person is impaired by
fatigue.
Maximum penalty--$6000.
(2) If, in relation to conduct at a particular time in
relation to which a driver has been charged with an
offence under subsection (1), the driver has been
convicted of a prescribed driver offence under
another law in relation to--
(a) the same conduct; or
(b) the same kind of conduct occurring during the
same journey;
the court must discharge the proceedings against
the driver.
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(3) If, in relation to conduct at a particular time in
relation to which a driver has been charged with an
offence under subsection (1), the driver has been
convicted of the offence and is also charged with
a prescribed driver offence under another law
(the other offence) in relation to--
(a) the same conduct; or
(b) the same kind of conduct occurring during the
same journey;
the court dealing with the other offence must
discharge the proceedings against the driver for the
other offence.
(4) In this section--
prescribed driver offence under another law
means an offence under another law of any
jurisdiction prescribed for this definition by the
national regulations or a law of that jurisdiction.
229 Duty of party in the chain of responsibility to
prevent driver driving while fatigued
(1) A party in the chain of responsibility (a party) for a
fatigue-regulated heavy vehicle must take all
reasonable steps to ensure a person (the other
person) does not drive the vehicle on a road while
the other person is impaired by fatigue.
Maximum penalty--$10000.
(2) In relation to proof of whether a party took all
reasonable steps to ensure the other person did not
drive the vehicle on a road while impaired by
fatigue, in a proceeding for an offence against
subsection (1)--
(a) evidence that, at the relevant time, the party
complied with a prescribed fatigue duty under
another law is evidence the party took the
reasonable steps; and
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(b) if the party is an operator of the fatigue-
regulated heavy vehicle--evidence that, at
the relevant time, the party, in that capacity,
complied with the conditions of the
operator's BFM accreditation or AFM
accreditation is evidence the party, in that
capacity, took the reasonable steps.
(3) In a proceeding for an offence against subsection
(1), it is not necessary for the prosecution to prove
that the other person drove, or would or may have
driven, the vehicle on a road while impaired by
fatigue.
(4) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(5) In this section--
prescribed fatigue duty under another law means a
duty under another law of a participating
jurisdiction prescribed by the national regulations.
Division 3 Additional duties of employers,
prime contractors and
operators
230 Duty of employer, prime contractor or operator
to ensure business practices will not cause
driver to drive while fatigued etc.
(1) A relevant party for the driver of a fatigue-
regulated heavy vehicle must take all reasonable
steps to ensure the relevant party's business
practices will not cause the driver to--
(a) drive while impaired by fatigue; or
(b) drive while in breach of the driver's work and
rest hours option; or
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(c) drive in breach of another law to avoid
driving while impaired by fatigue or while in
breach of the driver's work and rest hours
option.
Maximum penalty--$6000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(3) In this section--
business practices, of a relevant party for the driver
of a fatigue-regulated heavy vehicle, means the
practices of the relevant party in running the
relevant party's business, and includes--
(a) the operating policies and procedures of the
business; and
(b) the human resource and contract management
arrangements of the business; and
(c) arrangements for managing safety.
relevant party, for the driver of a fatigue-regulated
heavy vehicle, means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
(c) an operator of the vehicle if the driver is
making, or is to make, a journey for the
operator.
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231 Duty of employer not to cause driver to drive if
particular requirements not complied with
(1) An employer of an employed driver of a fatigue-
regulated heavy vehicle must not cause the driver
to drive the vehicle unless--
(a) the employer has complied with section 230;
and
(b) the employer, after making reasonable
inquiries, is satisfied each scheduler for the
vehicle has complied with Division 4.
Maximum penalty--$4000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
232 Duty of prime contractor or operator not to
cause driver to drive if particular requirements
not complied with
(1) This section applies to--
(a) a prime contractor of a self-employed driver
(the driver) of a fatigue-regulated heavy
vehicle; and
(b) an operator of a fatigue-regulated heavy
vehicle being driven by someone else (also
the driver).
(2) The prime contractor or operator must not cause the
driver to drive the fatigue-regulated heavy vehicle,
or enter into a contract or other agreement with the
driver to that effect, unless--
(a) the prime contractor or operator has complied
with section 230; and
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(b) the prime contractor or operator, after making
reasonable inquiries, is satisfied each
scheduler for the vehicle has complied with
Division 4.
Maximum penalty--$4000.
(3) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
Division 4 Additional duties of schedulers
233 Duty to ensure driver's schedule will not cause
driver to drive while fatigued etc.
(1) A scheduler for a fatigue-regulated heavy vehicle
must take all reasonable steps to ensure the
schedule for the vehicle's driver will not cause the
driver to--
(a) drive while impaired by fatigue; or
(b) drive while in breach of the driver's work and
rest hours option; or
(c) drive in breach of another law to avoid
driving while impaired by fatigue or while in
breach of the driver's work and rest hours
option.
Maximum penalty--$6000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
234 Duty not to cause driver to drive if particular
requirements not complied with
(1) A scheduler for a fatigue-regulated heavy vehicle
must not cause the vehicle's driver to drive the
vehicle unless--
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(a) the scheduler has complied with section 233;
and
(b) the schedule for the vehicle's driver allows
for--
(i) the driver to have the rest time required
under the driver's work and rest hours
option; and
(ii) traffic conditions and other delays that
could reasonably be expected.
Examples of traffic conditions and other delays
that could reasonably be expected--
· the actual average speed able to be
travelled lawfully and safely by the driver
on the route to be travelled by the vehicle
· known traffic conditions, for example,
road works or traffic congestion on the
route
· delays caused by loading, unloading or
queuing
Maximum penalty--$6000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
Division 5 Additional duties of
consignors and consignees
235 Duty to ensure terms of consignment will not
cause driver to drive while fatigued etc.
(1) A consignor or consignee of goods for transport by
a fatigue-regulated heavy vehicle must take all
reasonable steps to ensure the terms of consignment
will not result in, encourage or provide an incentive
to the vehicle's driver to--
(a) drive while impaired by fatigue; or
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(b) drive while in breach of the driver's work and
rest hours option; or
(c) drive in breach of another law to avoid
driving while impaired by fatigue or while in
breach of the driver's work and rest hours
option.
Maximum penalty--$10000.
(2) A consignor or consignee of goods for transport by
a fatigue-regulated heavy vehicle must take all
reasonable steps to ensure the terms of consignment
will not result in, encourage or provide an incentive
to a relevant party for the vehicle's driver to cause
the driver to--
(a) drive while impaired by fatigue; or
(b) drive while in breach of the driver's work and
rest hours option; or
(c) drive in breach of another law in order to
avoid driving while impaired by fatigue or
while in breach of the driver's work and rest
hours option.
Example of terms of consignment--
delivery times
Maximum penalty--$10000.
(3) A person charged with an offence against
subsection (1) or (2) does not have the benefit of
the mistake of fact defence for the offence.
(4) In this section--
relevant party, for the driver of a fatigue-regulated
heavy vehicle, means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
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(c) an operator of the vehicle if the driver is
making, or is to make, a journey for the
operator.
236 Duty not to cause driver to drive if particular
requirements not complied with
(1) A consignor or consignee of goods for transport by
a fatigue-regulated heavy vehicle must not cause
the vehicle's driver to drive the vehicle, or enter
into a contract or other agreement to that effect,
unless--
(a) the consignor or consignee has complied with
section 235; and
(b) the consignor or consignee, after making
reasonable inquiries, is satisfied--
(i) each relevant party for the driver has
complied with Division 3; and
(ii) each scheduler for the vehicle has
complied with Division 4.
Maximum penalty--$4000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(3) In this section--
relevant party, for the driver of a fatigue-regulated
heavy vehicle, means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
(c) an operator of the vehicle if the driver is
making, or is to make, a journey for the
operator.
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237 Duty not to make a demand that may result in
driver driving while fatigued etc.
(1) A consignor or consignee of goods for transport by
a fatigue-regulated heavy vehicle must not make a
demand that affects, or may affect, a time in a
schedule for the transport of the consigned goods
and that may cause the vehicle's driver to--
(a) drive while impaired by fatigue; or
(b) drive while in breach of the driver's work and
rest hours option; or
(c) drive in breach of another law to avoid
driving while impaired by fatigue or while in
breach of the driver's work and rest hours
option.
Maximum penalty--$10000.
(2) Subsection (1) does not apply if the consignor or
consignee, before making the demand--
(a) has complied with section 235; and
(b) is satisfied, after making reasonable inquiries,
that the making of the demand will not cause
a scheduler for the fatigue-regulated heavy
vehicle to contravene Division 4.
(3) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
Division 6 Additional duties of loading
managers
238 Duty to ensure loading arrangements will not
cause driver to drive while fatigued etc.
(1) A loading manager for goods in heavy vehicles
must take all reasonable steps to ensure the
arrangements for loading goods onto and unloading
goods from fatigue-regulated heavy vehicles at or
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from the premises in relation to which the person is
a loading manager will not cause the driver of a
fatigue-regulated heavy vehicle to--
(a) drive while impaired by fatigue; or
(b) drive while in breach of the driver's work and
rest hours option; or
(c) drive in breach of another law in order to
avoid driving while impaired by fatigue or
while in breach of the driver's work and rest
hours option.
Examples of reasonable steps to comply with this section--
· providing for necessary rest time to be had with
adequate facilities
· providing for the reporting of travel delays and
providing a mechanism for managing late arrivals
· allowing loading and unloading to happen at an agreed
time
· having a system of setting and allocating loading and
unloading times the driver of a fatigue-regulated heavy
vehicle can reasonably rely on to comply with the
maximum work requirements and minimum rest
requirements applying to the driver
Maximum penalty--$10000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
239 Duty to ensure drivers can rest in particular
circumstances
(1) This section applies if a loading manager for goods
in a fatigue-regulated heavy vehicle, or a person
acting under the loading manager's supervision or
control--
(a) has advised the vehicle's driver, either
directly or indirectly, of when the loading of
goods onto or unloading of goods from the
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vehicle is to start, and the loading manager or
person becomes aware the loading or
unloading will, or is likely to, start more than
30 minutes late; or
(b) has advised the vehicle's driver, either
directly or indirectly, of when the loading of
goods onto or unloading of goods from the
vehicle is to finish, and the loading manager
or person becomes aware the loading or
unloading will, or is likely to, finish more
than 30 minutes late; or
(c) is unable to advise the vehicle's driver of
when the loading of goods onto or unloading
of goods from the vehicle is to start; or
(d) is unable to advise the vehicle's driver of
when the loading of goods onto or unloading
of goods from the vehicle is to finish.
(2) The loading manager must take all reasonable steps
to ensure the driver is able to rest while waiting for
the goods to be loaded onto or unloaded from the
fatigue-regulated heavy vehicle.
Example of reasonable steps that may be taken to ensure the
driver of a fatigue-regulated heavy vehicle is able to rest--
providing a system of notifying the driver when goods can
be loaded onto or unloaded from the driver's vehicle that
does not require the driver to be awake or unreasonably
alert
Maximum penalty--$6000.
(3) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
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Division 7 Particular requests etc. and
contracts etc. prohibited
240 Particular requests etc. prohibited
A person must not ask, direct or require, directly or
indirectly, the driver of a fatigue-regulated heavy
vehicle, or a party in the chain of responsibility for
a fatigue-regulated heavy vehicle, to do or not do
something the person knows, or ought reasonably
to know, would have the effect of causing the
vehicle's driver to--
(a) drive while impaired by fatigue; or
(b) drive while in breach of the driver's work and
rest hours option; or
(c) drive in breach of another law in order to
avoid driving while impaired by fatigue or
while in breach of the driver's work and rest
hours option.
Example of a requirement that contravenes this section--
a requirement that the driver complete a journey in a time
the person knows or ought reasonably to know can not be
complied with unless the driver commits a speeding
offence or does not have all the rest time the driver is
required to have under this Law
Maximum penalty--$10000.
Note--
See section 632 for the matters a court may consider when
deciding whether a person ought reasonably to have known
something.
241 Particular contracts etc. prohibited
(1) A person must not enter into a contract or other
agreement with the driver of a fatigue-regulated
heavy vehicle, or with a party in the chain of
responsibility for a fatigue-regulated heavy vehicle,
that the person knows, or ought reasonably to
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know, would have the effect of causing the
vehicle's driver to--
(a) drive while impaired by fatigue; or
(b) drive while in breach of the driver's work and
rest hours option; or
(c) drive in breach of another law to avoid
driving while impaired by fatigue or while in
breach of the driver's work and rest hours
option.
Maximum penalty--$10000.
(2) A person must not enter into a contract or other
agreement with the driver of a fatigue-regulated
heavy vehicle, or with a party in the chain of
responsibility for a fatigue-regulated heavy vehicle
that the person knows, or ought reasonably to
know, would encourage or provide an incentive for
the vehicle's driver, or a party in the chain of
responsibility for the vehicle to cause the vehicle's
driver, to--
(a) drive while impaired by fatigue; or
(b) drive while in breach of the driver's work and
rest hours option; or
(c) drive in breach of another law to avoid
driving while impaired by fatigue or while in
breach of the driver's work and rest hours
option.
Maximum penalty--$10000.
Notes for the purposes of subsections (1) and (2)--
1 See section 632 for the matters a court may consider
when deciding whether a person ought reasonably to
have known something.
2 See section 742, which provides that particular
contracts or other agreements are void.
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Division 8 Provisions about offences
against this Part
242 Objective reasonableness test to be used in
deciding causation
(1) This section applies in relation to a proceeding for
an offence against this Part that may be committed
by a person failing to take all reasonable steps to
ensure someone else does not drive a fatigue-
regulated heavy vehicle while impaired by fatigue
(prohibited act).
(2) For the purposes of subsection (1), a person failing
to take all reasonable steps to ensure someone else
does not do a prohibited act includes--
(a) the person failing to take reasonable steps to
ensure the other person does not do the
prohibited act; and
(b) the person failing to take reasonable steps to
ensure the person's activities, or anything
arising out of the person's activities, do not--
(i) cause the other person to do the
prohibited act; or
(ii) result in the other person doing the
prohibited act; or
(iii) provide an incentive for the other person
to do the prohibited act.
(3) Subsection (4) applies if--
(a) a person does an act or makes an omission;
and
(b) as a result of the act or omission someone
else does a prohibited act.
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(4) A court may find the person caused the other
person to do the prohibited act if the court is
satisfied a reasonable person would have foreseen
the person's act or omission would be reasonably
likely to cause the other person to do the prohibited
act.
Part 6.3 Requirements relating to
work time and rest time
Division 1 Preliminary
243 What is a driver's work and rest hours option
(1) The work and rest hours option of the driver of a
fatigue-regulated heavy vehicle is the maximum
work requirements and minimum rest requirements
applying to the driver under this Law.
(2) The work and rest hours option is--
(a) the standard work and rest arrangements,
which--
(i) apply to drivers of fatigue-regulated
heavy vehicles operating other than
under a BFM accreditation, AFM
accreditation or work and rest hours
exemption; and
(ii) are known as `standard hours'; or
(b) the BFM work and rest arrangements,
which--
(i) apply to drivers of fatigue-regulated
heavy vehicles operating under a BFM
accreditation; and
(ii) are known as `BFM hours'; or
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(c) the AFM work and rest arrangements,
which--
(i) apply to drivers of fatigue-regulated
heavy vehicles operating under an AFM
accreditation; and
(ii) are known as `AFM hours'; or
(d) the maximum work times and minimum rest
times stated in a work and rest hours
exemption, which--
(i) apply to drivers of fatigue-regulated
heavy vehicles operating under the
exemption; and
(ii) are known as `exemption hours'.
244 Counting time spent in participating
jurisdictions
When counting work time or rest time spent by the
driver of a fatigue-regulated heavy vehicle for this
Part, the work time or rest time spent by the driver
in any participating jurisdiction must be counted.
245 Counting time spent outside participating
jurisdictions
(1) This section applies to the driver of a fatigue-
regulated heavy vehicle if the driver drives a
fatigue-regulated heavy vehicle into a participating
jurisdiction from a non-participating jurisdiction.
(2) If, within the last 7 days, the driver has spent any
work time in a participating jurisdiction, any time
spent by the driver in the non-participating
jurisdiction must be treated in the same way as it
would have been treated if the time had been spent
in a participating jurisdiction.
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(3) If, within the last 7 days, the driver spent work time
only in non-participating jurisdictions--
(a) any time spent by the driver in the non-
participating jurisdiction before the start of
the driver's last major rest break before
entering a participating jurisdiction must be
disregarded; and
(b) any time spent by the driver in the non-
participating jurisdiction after the start of the
last major rest break mentioned in paragraph
(a) must be--
(i) taken into account; and
(ii) treated in the same way as it would have
been treated if the time had been spent
in a participating jurisdiction.
246 Counting periods of less than 15 minutes
(1) Work time must be counted in 15 minute periods.
(2) A period of work time of less than 15 minutes
counts as 15 minutes work time.
Examples for the purposes of subsection (2)--
1 A period of working for 14 minutes counts as
15 minutes work time.
2 A period of working for 17 minutes counts as
30 minutes work time.
3 A period of working for 53 minutes counts as 1 hour
work time.
(3) Rest time must be counted in blocks of time of no
less than 15 minutes.
(4) A period of rest time of less than 15 minutes must
be disregarded.
Examples for the purposes of subsection (4)--
1 A period of not working for only 14 minutes does not
count as rest time, because 14 minutes is less than
15 minutes.
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2 A period of not working for 17 minutes counts as
15 minutes rest time, because 17 minutes is more than
15 minutes, but is less than 2 lots of 15 minutes
(30 minutes).
247 Time to be counted after rest time ends
When counting time in a period, the time must not
be counted from within rest time, but instead must
be counted forward from--
(a) if 1 or more major rest breaks are relevant to
the period--the end of a relevant major rest
break; or
(b) in any other case--the end of a relevant
period of rest time.
Example--
An authorised officer intercepts the driver of a fatigue-
regulated heavy vehicle on a Friday and inspects the
driver's work diary. The driver operates under standard
hours. The officer examines the work diary entries for the
previous Monday. The entries show that the driver
completed 7 continuous hours of stationary rest time at
6.30a.m. on that day, started work at that time, worked until
11a.m. that day, had 45 minutes of rest time, worked until
5.00p.m. that day, then had stationary rest time until
4.30a.m. on the following day, Tuesday, and then worked
until 6.30a.m. on that day.
In order to determine the total number of hours worked by
the driver in a 24 hour period starting on the Monday, then
in accordance with section 247(a) the officer must
commence counting from the end of the relevant major rest
break, which in this case is from 6.30a.m. on the Monday
until 6.30a.m. on the Tuesday. Adding up the driver's work
periods - 6.30a.m. to 11a.m., 11.45a.m. to 5.00p.m. and
4.30a.m. to 6.30a.m. - results in a total of 11¾ hours
worked in the 24 hour period.
The officer might also decide to assess whether the driver
has complied with his or her maximum work and minimum
rest requirements for the same 24 hour period.
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For instance, in any period of 5½ hours, a driver must not
work for more than 5¼ hours and must have at least
15 minutes continuous rest when operating under standard
hours. To assess whether the driver has complied with this
requirement, then in accordance with section 247(b) the
officer must commence counting only from the end of a
period of rest - from either 6.30a.m. or 11.45a.m. on the
Monday, or from 4.30a.m. on the Tuesday. If the officer
commenced counting at the end of the rest time that
finished at 11.45a.m., the officer would see that the driver
had worked for 5¼ continuous hours before commencing
rest.
For the purposes of determining whether on Monday the
driver had a minimum of 7 continuous hours stationary rest
in a 24 hour period as required under standard hours, the
officer must assess the length of the periods of stationary
rest time the driver had between the end of the major rest
break that finished at 6.30a.m. on the Monday and 6.30a.m.
on the Tuesday. The officer sees that between 5.00p.m. on
the Monday and 4.30a.m. on the Tuesday the driver had a
total of 11½ continuous hours of stationary rest time.
248 Time to be counted by reference to time zone of
driver's base
If the driver of a fatigue-regulated heavy vehicle
undertakes a journey and is in a different time zone
from the time zone of the driver's base at the time
when a period of time is relevant for the purposes
of this Law, the period must be counted by
reference to the time zone of the driver's base.
Example--
If, for the driver of a fatigue-regulated heavy vehicle with a
base in Queensland, it is necessary to work out the hours of
night work time while the driver is in Western Australia on
a journey, the hours of night work time are the hours
between midnight and 6a.m. in the Queensland time zone
(being the time zone in which the driver's base is situated),
even though the hours equate to 10p.m. and 4a.m. in
Western Australia.
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Division 2 Standard work and rest
arrangements
249 Standard hours
(1) The national regulations may prescribe the
maximum work times and minimum rest times
(the standard hours) applying to the driver of a
fatigue-regulated heavy vehicle for a period if the
driver is not operating under a BFM accreditation,
AFM accreditation or work and rest hours
exemption.
(2) Without limiting subsection (1), the national
regulations may prescribe--
(a) different standard hours for solo drivers, solo
drivers of fatigue-regulated buses and drivers
who are a party to a two-up driving
arrangement; and
(b) that a solo driver of a fatigue-regulated bus
may operate under either, but not both, the
standard hours for solo drivers or the standard
hours for solo drivers of fatigue-regulated
buses.
250 Operating under standard hours--solo drivers
(1) The solo driver of a fatigue-regulated heavy vehicle
commits an offence if, in any period stated in the
standard hours for the driver, the driver--
(a) works for more than the maximum work time
stated in the standard hours for the period; or
(b) rests for less than the minimum rest time
stated in the standard hours for the period.
Maximum penalty--
(a) for a minor risk breach--$4000; or
(b) for a substantial risk breach--$6000; or
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(c) for a severe risk breach--$10000; or
(d) for a critical risk breach--$15000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(3) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
251 Operating under standard hours--two-up
drivers
(1) The driver of a fatigue-regulated heavy vehicle who
is a party to a two-up driving arrangement commits
an offence if, in any period stated in the standard
hours for the driver, the driver--
(a) works for more than the maximum work time
stated in the standard hours for the period; or
(b) rests for less than the minimum rest time
stated in the standard hours for the period.
Maximum penalty--
(a) for a minor risk breach--$4000; or
(b) for a substantial risk breach--$6000; or
(c) for a severe risk breach--$10000; or
(d) for a critical risk breach--$15000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
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(3) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
252 Defence relating to short rest breaks for drivers
operating under standard hours
(1) This section applies if, at a particular time, the
driver of a fatigue-regulated heavy vehicle is
required, under section 250 or 251, to have a short
rest break.
Examples of when this section applies--
The driver is required to have 15 continuous minutes rest
time because--
(a) the driver has worked for 51/4 hours; or
(b) the driver has worked for 71/2 hours and has only
had 15 continuous minutes rest time during that
period; or
(c) the driver has worked for 10 hours and has only
had 3 lots of 15 continuous minutes rest time
during that period.
(2) In a proceeding for an offence against section 250
or 251 relating to the driver failing to have the short
rest break, it is a defence for the driver to prove
that--
(a) at the time the driver was required to have the
short rest break, there was no suitable rest
place for fatigue-regulated heavy vehicles;
and
(b) the driver had the short rest break--
(i) at the next suitable rest place for fatigue-
regulated heavy vehicles available after
that time on the forward route of the
driver's journey; and
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(ii) no later than 45 minutes after the time
the driver was required to have the short
rest break.
Example of when the defence applies--
The driver of a fatigue-regulated heavy vehicle fails to have
a short rest break after 51/4 hours of work time because
there was no suitable rest place for fatigue-regulated heavy
vehicles when the driver was scheduled to have the short
rest break. Instead, the driver has a short rest break after
51/2 hours work at a suitable rest place for fatigue-
regulated heavy vehicles down the road.
(3) In this section--
short rest break means rest time of less than
1 hour.
Division 3 BFM work and rest
arrangements
253 BFM hours
(1) The national regulations may prescribe the
maximum work times and minimum rest times
applying to the driver of a fatigue-regulated heavy
vehicle for a period if the driver is operating under
a BFM accreditation (the BFM hours).
(2) Without limiting subsection (1), the national
regulations may prescribe different BFM hours for
solo drivers and drivers who are a party to a two-up
driving arrangement.
254 Operating under BFM hours--solo drivers
(1) The solo driver of a fatigue-regulated heavy vehicle
commits an offence if, in any period stated in the
BFM hours for the driver, the driver--
(a) works for more than the maximum work time
stated in the BFM hours for the period; or
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(b) rests for less than the minimum rest time
stated in the BFM hours for the period.
Maximum penalty--
(a) for a minor risk breach--$4000; or
(b) for a substantial risk breach--$6000; or
(c) for a severe risk breach--$10000; or
(d) for a critical risk breach--$15000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(3) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
255 Defence for solo drivers operating under BFM
hours relating to split rest breaks
(1) This section applies if, at a particular time, the
driver of a fatigue-regulated heavy vehicle is
required under section 254 to have 7 continuous
hours of stationary rest time in a period of 24 hours.
(2) In a proceeding for an offence against section 254
for a solo driver of a fatigue-regulated heavy
vehicle relating to the driver failing to have the
7 continuous hours of stationary rest time, it is a
defence for the driver to prove that--
(a) at the time the driver was required to have the
7 continuous hours of stationary rest time, the
driver was operating under BFM hours as a
solo driver of a fatigue-regulated heavy
vehicle; and
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(b) during the period of 24 hours for which the
7 continuous hours of stationary rest time
was required to be had, the driver had
6 continuous hours of stationary rest time and
2 continuous hours of stationary rest time
(a split rest break); and
(c) the driver had not had a split rest break in the
previous 24-hour period.
Example of when the defence applies--
The driver of a fatigue-regulated heavy vehicle stops work
to have 7 continuous hours of stationary rest time, but can
not sleep, so the driver has only 2 continuous hours of
stationary rest time and then drives on for a further 2 hours
and has a further 6 continuous hours of stationary rest time
at another place down the road. In the previous 24-hour
period the driver had 7 continuous hours of stationary rest
time.
256 Operating under BFM hours--two-up drivers
(1) The driver of a fatigue-regulated heavy vehicle who
is a party to a two-up driving arrangement commits
an offence if, in any period stated in the BFM hours
for the driver, the driver--
(a) works for more than the maximum work time
stated in the BFM hours for the period; or
(b) rests for less than the minimum rest time
stated in the BFM hours for the period.
Maximum penalty--
(a) for a minor risk breach--$4000; or
(b) for a substantial risk breach--$6000; or
(c) for a severe risk breach--$10000; or
(d) for a critical risk breach--$15000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
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(3) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
Division 4 AFM work and rest
arrangements
257 AFM hours
AFM hours are the maximum work times and
minimum rest times applying, for a period, to the
driver of a fatigue-regulated heavy vehicle
operating under an AFM accreditation, and stated
in the accreditation certificate for the accreditation.
258 Operating under AFM hours
(1) The driver of a fatigue-regulated heavy vehicle
commits an offence if, in any period stated in the
AFM hours for the driver, the driver--
(a) works for more than the maximum work time
stated in the AFM hours; or
(b) rests for less than the minimum rest time
stated in the AFM hours.
Maximum penalty--
(a) for a minor risk breach--$4000; or
(b) for a substantial risk breach--$6000; or
(c) for a severe risk breach--$10000; or
(d) for a critical risk breach--$15000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
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(3) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
Division 5 Arrangements under work and
rest hours exemption
259 Exemption hours
(1) Exemption hours are the maximum work times and
minimum rest times applying, for a period, to the
driver of a fatigue-regulated heavy vehicle
operating under a work and rest hours exemption,
and stated in the relevant document for the
exemption.
(2) In this section--
relevant document means--
(a) for a work and rest hours exemption
(notice)--the Commonwealth Gazette notice
for the exemption; or
(b) for a work and rest hours exemption
(permit)--the permit for the exemption.
260 Operating under exemption hours
(1) The driver of a fatigue-regulated heavy vehicle
operating under a work and rest hours exemption
commits an offence if, in any period stated in the
exemption hours for the exemption, the driver--
(a) works for more than the maximum work time
stated in the exemption hours; or
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(b) rests for less than the minimum rest time
stated in the exemption hours.
Maximum penalty--
(a) for a minor risk breach--$4000; or
(b) for a substantial risk breach--$6000; or
(c) for a severe risk breach--$10000; or
(d) for a critical risk breach--$15000.
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(3) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
Division 6 Extended liability
261 Liability of employer etc. for driver's
contravention of maximum work requirement or
minimum rest requirement
(1) This section applies to an offence committed
because the driver of a fatigue-regulated heavy
vehicle contravenes a maximum work requirement
or minimum rest requirement applying to the driver
under Division 2, 3, 4 or 5 (a relevant offence).
(2) If a relevant offence is committed involving the
driver of a fatigue-regulated heavy vehicle, each of
the following persons is taken to have committed
an offence against this subsection--
(a) an employer of the driver if the driver is an
employed driver;
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(b) a prime contractor of the driver if the driver is
a self-employed driver;
(c) an operator of the vehicle;
(d) a scheduler for the vehicle;
(e) a consignor of any goods for transport by the
vehicle that are in the vehicle;
(f) a consignee of any goods in the vehicle;
(g) a loading manager for any goods in the
vehicle;
(h) a loader of any goods in the vehicle;
(i) an unloader of goods in the vehicle.
Maximum penalty--
(a) for a minor risk breach--$4000; or
(b) for a substantial risk breach--$6000; or
(c) for a severe risk breach--$10000; or
(d) for a critical risk breach--$15000.
(3) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
(4) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(5) In a proceeding for an offence against
subsection (2)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the relevant offence; and
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(b) evidence a court has convicted the driver of
the relevant offence is evidence that the
offence happened at the time and place, and
in the circumstances, stated in the charge
resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the relevant offence is
evidence that the offence happened at the
time and place, and in the circumstances,
stated in the infringement notice.
Division 7 Changing work and rest hours
option
262 Changing work and rest hours option
(1) The driver of a fatigue-regulated heavy vehicle may
operate under only 1 work and rest hours option at
any 1 time.
(2) However, the driver of a fatigue-regulated heavy
vehicle may change from 1 work and rest hours
option to a different work and rest hours option.
263 Operating under new work and rest hours
option after change
(1) The driver of a fatigue-regulated heavy vehicle
must not drive the vehicle after changing from
1 work and rest hours option to a different work
and rest hours option unless--
(a) if the change is from standard hours or BFM
hours, either the driver--
(i) is in compliance with all the maximum
work requirements and minimum rest
requirements under the work and rest
hours option to which the driver has
changed; or
(ii) has had a reset rest break; and
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Examples for the purposes of paragraph (a)--
1 If the driver of a fatigue-regulated heavy
vehicle is changing from BFM hours to
standard hours and the minimum rest
requirements applying to drivers operating
under standard hours requires the driver to have
a longer rest time than is required under BFM
hours, the driver may start driving under
standard hours only if the driver has had the
longer rest time or a reset rest break.
2 If the driver of a fatigue-regulated heavy
vehicle is changing from BFM hours to
standard hours and the minimum rest
requirements applying to drivers operating
under standard hours requires the driver to have
rest time earlier than is required under BFM
hours, the driver may start driving under
standard hours only if the driver has had the
earlier rest time or a reset rest break.
(b) if the change is from AFM hours or
exemption hours, the driver has had a reset
rest break; and
(c) the driver complies with all other
requirements of the work and rest hours
option to which the driver has changed.
Example of other requirements for the purposes of
paragraph (c)--
If the driver is changing to BFM hours or AFM
hours, the driver must be inducted into the relevant
operator's BFM or AFM fatigue management
system.
Maximum penalty--$4000.
(2) If the driver of a fatigue-regulated heavy vehicle
has had a reset rest break between changing from
1 work and rest hours option to a different work
and rest hours option, the period to which the new
work and rest hours option applies must be counted
forward from the end of the reset rest break.
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(3) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(4) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(5) In this section--
reset rest break means a period of rest time of at
least 48 continuous hours.
264 Duty of employer, prime contractor, operator
and scheduler to ensure driver compliance
(1) This section applies if the driver of a fatigue-
regulated heavy vehicle changes from 1 work and
rest hours option to a different work and rest hours
option.
(2) A relevant party for the driver must--
(a) ensure the driver does not drive a fatigue-
regulated heavy vehicle after making the
change unless the driver has complied with
section 263; and
(b) take whatever action is necessary to ensure
the driver can comply with his or her
obligations in relation to the change.
Maximum penalty--$6000.
(3) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
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(4) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(5) In this section--
relevant party, for the driver of a fatigue-regulated
heavy vehicle, means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
(c) an operator of the vehicle if the driver is
making a journey for the operator; or
(d) a scheduler for the vehicle.
Division 8 Exemptions relating to work
times and rest times
Subdivision 1 Exemption for emergency
services
265 Emergency services exemption
(1) A person who is acting for an emergency service
and who has time-critical duties on the way to, or
during, an emergency is exempted in the course of
carrying out the duties from compliance with this
Part.
(2) A person who is acting for an emergency service
and who is returning from attending an emergency
is exempted from compliance with this Part if the
person reasonably believes the noncompliance does
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not present an unreasonable danger to other road
users.
(3) A person who is acting for an emergency service is
exempted from compliance with this Part under
subsection (1) or (2) only if, at the relevant time,
the person complies with any guidelines regarding
the management of fatigue issued by or on behalf
of the emergency service or an authority
responsible for oversight of the emergency service.
(4) In this section--
emergency means an event, or an anticipated event,
that--
(a) endangers, or may endanger, life, property or
the environment; or
(b) has disrupted, or may disrupt,
communications, energy supply, water supply
or sewerage services; or
(c) is declared to be an emergency or disaster
by--
(i) the Commonwealth or a State or
Territory; or
(ii) a Commonwealth or State or Territory
authority responsible for managing
responses to emergencies or disasters.
Examples of an emergency--
fire, explosion or natural disaster
emergency service means an entity that has a
statutory responsibility to respond to an emergency
and includes the following--
(a) an ambulance service;
(b) a fire brigade, including a volunteer fire
brigade;
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(c) a police force or police service;
(d) a disaster or emergency organisation of the
Commonwealth or a State or Territory.
Subdivision 2 Exemptions by Commonwealth
Gazette notice
266 Regulator's power to exempt class of drivers
from particular maximum work requirements
and minimum rest requirements
(1) The Regulator may, by Commonwealth Gazette
notice complying with section 270, grant an
exemption to allow, for a period of not more than
3 years, a class of drivers of fatigue-regulated
heavy vehicles to operate under the maximum work
times and minimum rest times stated in the
exemption.
(2) An exemption under subsection (1) is a work and
rest hours exemption (notice).
267 Restriction on grant of work and rest hours
exemption (notice)
(1) The Regulator may grant a work and rest hours
exemption (notice) only if the Regulator is
satisfied--
(a) requiring the class of drivers to whom the
exemption is to apply to comply with the
standard hours would be an unreasonable
restriction on operations conducted by--
(i) the class of drivers; or
(ii) relevant parties for the class of drivers;
and
(b) if the maximum work times and minimum
rest times to apply under the exemption could
be accommodated within BFM hours or AFM
hours--the requirements applying to BFM
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accreditation or AFM accreditation under this
Law would, having regard to the nature of the
operations, be unreasonable for the operations
conducted by--
(i) the class of drivers; or
(ii) relevant parties for the class of drivers;
and
(c) the driver fatigue management practices that
are to apply to drivers operating under the
exemption would, if followed, safely manage
fatigue risks; and
(d) the class of drivers to whom the exemption is
to apply is likely to follow the practices
consistently and effectively.
(2) In deciding whether or not to grant a work and rest
hours exemption (notice), the Regulator must have
regard to the approved guidelines for granting work
and rest hours exemptions.
(3) In this section--
relevant parties, for a class of drivers of fatigue-
regulated heavy vehicles, means--
(a) employers of the class of drivers if they are
employed drivers; or
(b) prime contractors for the class of drivers if
they are self-employed drivers; or
(c) operators of fatigue-regulated heavy vehicles
if the drivers of the class are to make journeys
for the operators using the vehicles.
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268 Conditions of work and rest hours exemption
(notice)
A work and rest hours exemption (notice) may be
subject to any conditions the Regulator considers
appropriate, including, for example--
(a) conditions about driver fatigue management
practices that are to apply to drivers operating
under the exemption; and
(b) conditions about keeping records relating to
the driver fatigue management practices; and
(c) a condition that the driver of a fatigue-
regulated heavy vehicle who is operating
under the exemption must keep in the driver's
possession a copy of--
(i) the Commonwealth Gazette notice for
the exemption; or
(ii) an information sheet about the
exemption published by the Regulator
on the Regulator's website.
269 Period for which work and rest hours
exemption (notice) applies
A work and rest hours exemption (notice)--
(a) takes effect--
(i) when the Commonwealth Gazette notice
for the exemption is published; or
(ii) if a later time is stated in the
Commonwealth Gazette notice, at the
later time; and
(b) applies for the period stated in the
Commonwealth Gazette notice.
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270 Requirements about Commonwealth Gazette
notice
(1) A Commonwealth Gazette notice for a work and
rest hours exemption (notice) must state the
following--
(a) the class of drivers of fatigue-regulated heavy
vehicles to which the exemption applies;
(b) the maximum work times and minimum rest
times that are to apply to drivers operating
under the exemption;
(c) the other conditions of the exemption;
(d) the period for which the exemption applies.
(2) The Regulator must publish a copy of the
Commonwealth Gazette notice on the Regulator's
website.
271 Amendment or cancellation of work and rest
hours exemption (notice)
(1) Each of the following is a ground for amending or
cancelling a work and rest hours exemption
(notice)--
(a) since the exemption was granted, there has
been a change in the circumstances that were
relevant to the Regulator's decision to grant
the exemption and, had the changed
circumstances existed when the exemption
was granted, the Regulator would not have
granted the exemption, or would have granted
the exemption subject to conditions or
different conditions;
(b) the use of fatigue-regulated heavy vehicles
under the exemption has caused, or is likely
to cause, a significant risk to public safety.
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(2) If the Regulator considers a ground exists to amend
or cancel a work and rest hours exemption (notice),
the Regulator may amend or cancel the exemption
by complying with subsections (3) to (5).
(3) The Regulator must publish a notice in the
Commonwealth Gazette, in a newspaper circulating
generally throughout each participating jurisdiction
and on the Regulator's website--
(a) stating that the Regulator believes a ground
mentioned in subsection (1)(a) or (b) for
amending or cancelling the exemption exists;
and
(b) outlining the facts and circumstances forming
the basis for the belief; and
(c) stating the action the Regulator is proposing
to take under this section (the proposed
action); and
(d) inviting 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.
(4) If, after considering all written representations
made under subsection (3)(d), the Regulator still
considers a ground exists to take the proposed
action, the Regulator may--
(a) if the proposed action was to amend the
exemption--amend the exemption, including,
for example, by imposing additional
conditions on the exemption, in a way that is
not substantially different from the proposed
action; or
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(b) if the proposed action was to cancel the
exemption--
(i) amend the exemption, including, for
example, by imposing additional
conditions on the exemption; or
(ii) cancel the exemption.
(5) Notice of the amendment or cancellation must be
published--
(a) in--
(i) the Commonwealth Gazette; and
(ii) a newspaper circulating generally
throughout each participating
jurisdiction; and
(b) on the Regulator's website.
(6) The amendment or cancellation takes effect--
(a) 28 days after the Commonwealth Gazette
notice is published; or
(b) if a later time is stated in the Commonwealth
Gazette notice, at the later time.
272 Immediate suspension
(1) This section applies if the Regulator considers--
(a) a ground exists to cancel a work and rest
hours exemption (notice); and
(b) it is necessary to suspend the exemption
immediately to prevent or minimise serious
harm to public safety.
(2) The Regulator may, by publishing a notice as
mentioned in subsection (3) (immediate suspension
notice), immediately suspend the work and rest
hours exemption (notice) until the earliest of the
following--
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(a) the Regulator publishes a notice under section
271(5) and the amendment or cancellation
takes effect under section 271(6);
(b) the Regulator cancels the suspension;
(c) the end of 56 days after the day the
immediate suspension notice is published.
(3) The immediate suspension notice, and (where
relevant) notice of the cancellation of the
suspension, must be published--
(a) in--
(i) the Commonwealth Gazette; and
(ii) a newspaper circulating generally
throughout each relevant participating
jurisdiction; and
(b) on the Regulator's website; and
(c) in any other newspaper the Regulator
considers appropriate.
Example for the purposes of paragraph (c)--
If the work and rest hours exemption (notice)
relates to a particular part of a participating
jurisdiction, the Regulator may consider it
appropriate to publish the notice in a newspaper
circulating generally in the part.
(4) The suspension, or (where relevant) the
cancellation of the suspension, takes effect
immediately after the Commonwealth Gazette
notice is published under subsection (3).
(5) This section applies despite section 271.
(6) In this section--
relevant participating jurisdiction, for a work and
rest hours exemption (notice), means a participating
jurisdiction in which the whole or part of an area or
route to which the exemption applies is situated.
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Subdivision 3 Exemptions by permit
273 Regulator's power to exempt drivers from
particular maximum work requirements and
minimum rest requirements
(1) The Regulator may, by giving a person a permit as
mentioned in section 278, grant an exemption to
allow, for a period of not more than 3 years, a
driver of a fatigue-regulated heavy vehicle, or a
class of drivers of fatigue-regulated heavy vehicles,
to operate under the maximum work times and
minimum rest times stated in the exemption.
(2) An exemption under subsection (1) is a work and
rest hours exemption (permit).
(3) The Regulator may grant a work and rest hours
exemption (permit) to the operator of a fatigue-
regulated heavy vehicle in combination with the
operator's BFM accreditation or AFM
accreditation.
(4) The Regulator may grant a work and rest hours
exemption (permit)--
(a) in a way that does not cover all the drivers
sought by the applicant; or
(b) setting maximum work times and minimum
rest times different to the maximum work
times and minimum rest times sought by the
applicant.
274 Application for work and rest hours exemption
(permit)
(1) Any of the following persons may apply to the
Regulator for a work and rest hours exemption
(permit)--
(a) an employer of a driver of a fatigue-regulated
heavy vehicle;
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(b) a prime contractor for a driver of a fatigue-
regulated heavy vehicle;
(c) an operator of a fatigue-regulated heavy
vehicle;
(d) a self-employed driver of a fatigue-regulated
heavy vehicle.
(2) The application must--
(a) be in the approved form; and
(b) state the following--
(i) the period for which the exemption is
sought;
(ii) any conditions to which the exemption
is sought to be subject;
(iii) the name of the driver of a fatigue-
regulated heavy vehicle to whom the
exemption is sought to apply, or details
of the class of drivers of fatigue-
regulated heavy vehicles to whom the
exemption is sought to apply;
(iv) the proposed maximum work times and
minimum rest times that would be
followed by drivers operating under the
exemption;
(v) if the proposed maximum work times
and minimum rest times to apply under
the exemption could be accommodated
within BFM hours or AFM hours--
(A) the driver fatigue management
practices that would be followed
by the applicant and drivers
operating under the exemption;
and
(B) how the practices would safely
manage fatigue risks; and
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(C) how the requirements applying to
BFM accreditation or AFM
accreditation under this Law
would be unreasonable for the
operations conducted by the
applicant, having regard to the
nature of the operations; and
(c) be accompanied by the prescribed fee for the
application.
(3) The Regulator may, by notice given to the
applicant, require the applicant to give the
Regulator any additional information the Regulator
reasonably requires to decide the application.
275 Restriction on grant of work and rest hours
exemption (permit)
(1) The Regulator may grant a work and rest hours
exemption (permit) only if the Regulator is
satisfied--
(a) requiring the drivers to whom the exemption
is to apply to comply with the standard hours
would be an unreasonable restriction on
operations conducted by the applicant; and
(b) if the maximum work times and minimum
rest times to apply under the exemption could
be accommodated within BFM hours or AFM
hours--the requirements applying to BFM
accreditation or AFM accreditation under this
Law would be unreasonable for the
operations conducted by the applicant, having
regard to the nature of the operations; and
(c) the driver fatigue management practices that
are to apply to drivers operating under the
exemption would, if followed, safely manage
fatigue risks; and
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(d) the drivers to whom the exemption is to apply
are likely to follow the practices consistently
and effectively.
(2) In deciding whether or not to grant a work and rest
hours exemption (permit), the Regulator must have
regard to the approved guidelines for granting work
and rest hours exemptions.
276 Conditions of work and rest hours exemption
(permit)
(1) If the Regulator grants a work and rest hours
exemption (permit) to the operator of a fatigue-
regulated heavy vehicle in combination with the
operator's BFM accreditation or AFM
accreditation, it is a condition of the exemption that
the operator must comply with all the conditions of
the operator's BFM accreditation or AFM
accreditation.
(2) A work and rest hours exemption (permit) may be
subject to any other conditions the Regulator
considers appropriate, including, for example,
conditions about--
(a) driver fatigue management practices that are
to apply to drivers operating under the
exemption; and
(b) keeping records relating to the driver fatigue
management practices.
277 Period for which work and rest hours
exemption (permit) applies
(1) A work and rest hours exemption (permit) applies
for the period stated in the permit for the
exemption.
(2) The period may be less than the period sought by
the applicant for the work and rest hours exemption
(permit).
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278 Permit for work and rest hours exemption
(permit) etc.
(1) If the Regulator grants a work and rest hours
exemption (permit) to a person, the Regulator must
give the person--
(a) a permit for the exemption; and
(b) if prescribed circumstances apply to the grant
of the exemption--an information notice for
the prescribed circumstances.
(2) A permit for a work and rest hours exemption
(permit) must state the following--
(a) the name of the person to whom the permit is
given;
(b) the driver of a fatigue-regulated heavy
vehicle, or class of drivers of fatigue-
regulated heavy vehicles, to which the
exemption applies;
(c) the maximum work times and minimum rest
times that apply to drivers operating under the
exemption;
(d) the conditions of the exemption, including, if
applicable, the condition mentioned in
section 276(1);
(e) the period for which the exemption applies.
(3) In this section--
prescribed circumstances, for a work and rest
hours exemption (permit), means the Regulator
has--
(a) imposed conditions on the exemption under
section 276(2); or
(b) granted the exemption in a way that does not
cover all the drivers sought by the applicant
for the exemption; or
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(c) granted the exemption setting maximum work
times and minimum rest times different to the
maximum work times and minimum rest
times sought by the applicant for the
exemption; or
(d) granted the exemption for a period less than
the period of not more than 3 years sought by
the applicant for the exemption.
279 Refusal of application for work and rest hours
exemption (permit)
If the Regulator refuses an application for a work
and rest hours exemption (permit), the Regulator
must give the applicant an information notice for
the decision to refuse the application.
280 Amendment or cancellation of work and rest
hours exemption (permit) on application by
permit holder
(1) The holder of a permit for a work and rest hours
exemption (permit) may apply to the Regulator for
an amendment or cancellation of the exemption.
(2) The application must--
(a) be in the approved form; and
(b) be accompanied by the prescribed fee for the
application; and
(c) if the application is for an amendment--state
clearly the amendment sought and the reasons
for the amendment; and
(d) be accompanied by the permit.
(3) The Regulator may, by notice given to the
applicant, require the applicant to give the
Regulator any additional information the Regulator
reasonably requires to decide the application.
(4) The Regulator must decide the application as soon
as practicable after receiving it.
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(5) If the Regulator decides to grant the application--
(a) the Regulator must give the applicant notice
of the decision; and
(b) the amendment or cancellation takes effect--
(i) when notice of the decision is given to
the applicant; or
(ii) if a later time is stated in the notice, at
the later time; and
(c) if the Regulator amended the exemption, the
Regulator must give the applicant a
replacement permit for the exemption as
amended.
(6) If the Regulator decides not to amend or cancel the
exemption as sought by the applicant, the Regulator
must--
(a) give the applicant an information notice for
the decision; and
(b) return the permit for the exemption to the
applicant.
281 Amendment or cancellation of work and rest
hours exemption (permit) on Regulator's
initiative
(1) Each of the following is a ground for amending or
cancelling a work and rest hours exemption
(permit)--
(a) the exemption was granted because of a
document or representation that was--
(i) false or misleading; or
(ii) obtained or made in an improper way;
(b) the holder of the permit for the exemption has
contravened this Law or a corresponding
fatigue law;
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(c) a driver of a fatigue-regulated heavy vehicle
to whom the exemption applies has
contravened this Law or a corresponding
fatigue law;
(d) since the exemption was granted, there has
been a change in the circumstances that were
relevant to the Regulator's decision to grant
the exemption and, had the changed
circumstances existed when the exemption
was granted, the Regulator would not have
granted the exemption, or would have granted
the exemption subject to conditions or
different conditions.
(2) If the Regulator considers a ground exists to amend
or cancel a work and rest hours exemption (permit)
(the proposed action), the Regulator must give the
holder of the permit for the exemption a notice--
(a) stating the proposed action; and
(b) stating the ground for the proposed action;
and
(c) outlining the facts and circumstances forming
the basis for the ground; and
(d) if the proposed action is to amend the
exemption (including a condition of the
exemption)--stating the proposed
amendment; and
(e) inviting the holder to make, within a stated
time of at least 14 days after the notice is
given to the holder, written representations
about why the proposed action should not be
taken.
(3) If, after considering all written representations
made under subsection (2)(e), the Regulator still
considers a ground exists to take the proposed
action, the Regulator may--
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(a) if the proposed action was to amend the
exemption--amend the exemption, including,
for example, by imposing additional
conditions on the exemption, in a way that is
not substantially different from the proposed
action; or
(b) if the proposed action was to cancel the
exemption--
(i) amend the exemption, including, for
example, by imposing additional
conditions on the exemption; or
(ii) cancel the exemption.
(4) The Regulator must give the holder an information
notice for the decision.
(5) The amendment or cancellation takes effect--
(a) when the information notice is given to the
holder; or
(b) if a later time is stated in the information
notice, at the later time.
282 Immediate suspension of work and rest hours
exemption (permit)
(1) This section applies if the Regulator considers--
(a) a ground exists to cancel a work and rest
hours exemption (permit); and
(b) it is necessary to suspend the exemption
immediately to prevent or minimise serious
harm to public safety.
(2) The Regulator may, by notice (immediate
suspension notice) given to the person to whom the
permit for the exemption was given, immediately
suspend the exemption until the earliest of the
following--
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(a) the Regulator gives the holder a notice under
section 281(4) and the amendment or
cancellation takes effect under section 281(5);
(b) the Regulator cancels the suspension;
(c) the end of 56 days after the day the
immediate suspension notice is given to the
holder.
(3) This section applies despite sections 280 and 281.
283 Minor amendment of work and rest hours
exemption (permit)
The Regulator may, by notice given to the holder of
a permit for a work and rest hours exemption
(permit), amend the exemption in a minor
respect--
(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect
the holder's interests.
284 Return of permit
(1) If a person's work and rest hours exemption
(permit) is amended or cancelled, the Regulator
may, by notice given to the person, require the
person to return the person's permit for the
exemption to the Regulator.
(2) The person must comply with the notice within
7 days after the notice is given to the person or, if
a longer period is stated in the notice, within the
longer period.
Maximum penalty--$6000.
(3) If the exemption has been amended, the Regulator
must give the person a replacement permit for the
exemption as amended.
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285 Replacement of defaced etc. permit
(1) If a person's permit for a work and rest hours
exemption (permit) is defaced, destroyed, lost or
stolen, the person must, as soon as reasonably
practicable after becoming aware of the matter,
apply to the Regulator for a replacement permit.
Maximum penalty--$4000.
(2) 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.
(3) If the Regulator decides not to give a replacement
permit to the person, the Regulator must give the
person an information notice for the decision.
Subdivision 4 Offences relating to operating
under work and rest hours
exemption etc.
286 Contravening condition of work and rest hours
exemption
(1) A person must not contravene a condition of a work
and rest hours exemption.
Maximum penalty--$6000.
(2) In this section--
condition, of a work and rest hours exemption,
does not include--
(a) a condition mentioned in section 287(1); or
(b) anything stating the exemption hours for the
exemption.
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287 Keeping relevant document while operating
under work and rest hours exemption (notice)
(1) This section applies if a work and rest hours
exemption (notice) is subject to the condition that
the driver of a fatigue-regulated heavy vehicle who
is operating under the exemption must keep a
relevant document in the driver's possession.
(2) A driver of the fatigue-regulated heavy vehicle who
is operating under the work and rest hours
exemption (notice) must comply with the condition.
Maximum penalty--$3000.
(3) If an offence is committed against subsection (2)
involving the driver of a fatigue-regulated heavy
vehicle, each relevant party for the driver is taken
to have committed an offence against this
subsection.
Maximum penalty--$3000.
(4) A person charged with an offence against
subsection (3) does not have the benefit of the
mistake of fact defence for the offence.
(5) However, in a proceeding for an offence against
subsection (3), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(6) In a proceeding for an offence against
subsection (3)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the offence against
subsection (2); and
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(b) evidence a court has convicted the driver of
the offence against subsection (2) is evidence
that the offence happened at the time and
place, and in the circumstances, stated in the
charge resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the offence against
subsection (2) is evidence that the offence
happened at the time and place, and in the
circumstances, stated in the infringement
notice.
(7) In this section--
relevant document, for a work and rest hours
exemption (notice), means a copy of--
(a) the Commonwealth Gazette notice for the
exemption; or
(b) an information sheet about the exemption
published by the Regulator on the Regulator's
website.
relevant party, for the driver of a fatigue-regulated
heavy vehicle, means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
(c) an operator of the vehicle if the driver is
making a journey for the operator.
288 Keeping copy of permit while driving under
work and rest hours exemption (permit)
(1) The driver of a fatigue-regulated heavy vehicle who
is driving the vehicle under a work and rest hours
exemption (permit) must keep a copy of the permit
for the exemption in the driver's possession.
Maximum penalty--$3000.
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(2) If the driver of a fatigue-regulated heavy vehicle is
operating under a work and rest hours exemption
(permit) granted to a relevant party for the driver
and the relevant party has given the driver a copy
of a permit for the purpose of subsection (1), the
driver must, as soon as reasonably practicable,
return the copy to the relevant party if the driver--
(a) stops working for the relevant party; or
(b) stops operating under the relevant party's
exemption; or
(c) no longer meets the requirements relating to
drivers under the relevant party's exemption.
Maximum penalty--$4000.
(3) If an offence is committed against subsection (1)
involving the driver of a fatigue-regulated heavy
vehicle, each relevant party for the driver is taken
to have committed an offence against this
subsection.
Maximum penalty--$3000.
(4) A person charged with an offence against
subsection (3) does not have the benefit of the
mistake of fact defence for the offence.
(5) However, in a proceeding for an offence against
subsection (3), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(6) In a proceeding for an offence against
subsection (3)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the offence against
subsection (1); and
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(b) evidence a court has convicted the driver of
the offence against subsection (1) is evidence
that the offence happened at the time and
place, and in the circumstances, stated in the
charge resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the offence against
subsection (1) is evidence that the offence
happened at the time and place, and in the
circumstances, stated in the infringement
notice.
(7) In this section--
relevant party, for the driver of a fatigue-regulated
heavy vehicle, means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
(c) an operator of the vehicle if the driver is
making a journey for the operator.
Part 6.4 Requirements about record
keeping
Division 1 Preliminary
289 What is 100km work and 100+km work
(1) The driver of a fatigue-regulated heavy vehicle is
undertaking 100km work if the driver is driving in
an area with a radius of 100km or less from the
driver's base.
(2) The driver of a fatigue-regulated heavy vehicle is
undertaking 100+km work if the driver is driving in
an area with a radius of more than 100km from the
driver's base.
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(3) To remove any doubt, it is declared that the driver
of a fatigue-regulated heavy vehicle to whom
subsection (2) applies--
(a) is taken to be undertaking 100+km work even
while the driver is driving in an area within a
radius of 100km or less from the driver's
base; and
(b) if the driver is required to record information
in a work diary under this Part, must record
particulars of the journey in the driver's work
diary from the beginning of the journey.
290 What is a driver's record location
The record location of the driver of a fatigue-
regulated heavy vehicle is--
(a) if the driver's record keeper has advised the
driver of the place that is the driver's record
location--the place advised; or
(b) otherwise--the driver's base.
Division 2 Work diary requirements
Subdivision 1 Requirement to carry work
diary
291 Application of Sdiv 1
This Subdivision applies if the driver of a fatigue-
regulated heavy vehicle--
(a) is undertaking 100+km work under standard
hours; or
(b) was undertaking 100+km work under
standard hours in the last 28 days; or
(c) is working under BFM hours, AFM hours or
exemption hours; or
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(d) was working under BFM hours, AFM hours
or exemption hours in the last 28 days.
292 Meaning of work diary for Sdiv 1
(1) In this Subdivision, a reference to a work diary in
relation to the driver of a fatigue-regulated heavy
vehicle is a reference to the following--
(a) if the driver has used only 1 or more written
work diaries in the last 28 days--
(i) the written work diary the driver is
currently using; and
(ii) any filled-up written work diary the
driver has used during the last 28 days;
(b) if the driver has used only 1 or more
electronic work diaries in the last 28 days--
(i) the electronic work diary the driver is
currently using; and
(ii) printouts of the information no longer
stored in the electronic work diary the
driver is currently using and relating to
any period during the last 28 days; and
(iii) printouts of the information in any other
electronic work diary the driver has used
in the last 28 days, relating to any period
during the last 28 days and not stored in
the electronic work diary the driver is
currently using;
(c) if the driver has used a combination of
written work diaries and electronic work
diaries in the last 28 days--
(i) the written work diary, or electronic
work diary, the driver is currently using;
and
(ii) each written work diary the driver has
used during the last 28 days; and
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(iii) if the driver is currently using an
electronic work diary, printouts of the
information no longer stored in the diary
and relating to any period during the last
28 days; and
(iv) printouts of the information in any
electronic work diary the driver has used
in the last 28 days, relating to any period
during the last 28 days and not recorded
in the written work diary or electronic
work diary the driver is currently using.
(2) If the driver has made a supplementary record in
the last 28 days, for this Subdivision, the
supplementary record is taken to be part of the
driver's work diary.
Note--
Section 305(4) provides in effect that a driver can no longer
use a supplementary record if the driver is issued with a
new work diary, the driver's existing electronic work diary
is made capable of recording new information or is brought
back into working order, or 7 business days have expired
(whichever first happens).
293 Driver of fatigue-regulated heavy vehicle must
carry work diary
(1) The driver of a fatigue-regulated heavy vehicle
must--
(a) keep a work diary; and
(b) ensure--
(i) the driver's work diary records the
information required to be recorded
under Subdivision 2 for each day in the
previous 28 days; and
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(ii) the driver's work diary is in the driver's
possession while the driver is driving the
vehicle.
Maximum penalty--$6000.
Notes--
1 For the requirement to record particular information in
a supplementary record if the work diary of the driver
of a fatigue-regulated heavy vehicle is filled up,
destroyed, lost, stolen or, for an electronic diary, is
malfunctioning, see section 305.
2 Under section 568, an authorised officer may require
the driver of a fatigue-regulated heavy vehicle to
produce for inspection the driver's work diary.
(2) Subsection (1) applies irrespective of the number of
days in the previous 28 days the driver spent
working in relation to a fatigue-regulated heavy
vehicle.
(3) In a proceeding for an offence against subsection
(1) relating to the driver failing to keep a work
diary containing particular information, it is a
defence for the driver to prove that--
(a) the information was recorded in a work diary
that, at the time of the offence, has been
destroyed (other than by the driver) or lost or
stolen; or
(b) the information was--
(i) recorded in an electronic work diary;
and
(ii) destroyed or lost as a result of a
malfunction of the electronic work diary
before the information was given to the
driver's record keeper or recorded in any
other way.
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Subdivision 2 Information required to be
included in work diary
294 Purpose of and definition for Sdiv 2
(1) This Subdivision provides for the information the
driver of a fatigue-regulated heavy vehicle must
record in the driver's work diary for each day on
which the driver--
(a) undertakes 100+km work under standard
hours; or
(b) works under BFM hours, AFM hours or
exemption hours.
(2) In this Subdivision--
required information means information required
by the national regulations under section 295 to be
recorded in the driver's work diary.
295 National regulations for information to be
included in work diary
(1) The national regulations may provide for--
(a) the information that is to be recorded in the
driver's work diary; and
(b) the manner in which information is to be
recorded in the driver's work diary; and
(c) any other matter relating to information that
is to be recorded in the driver's work diary.
(2) Without limiting subsection (1), the national
regulations may provide--
(a) for information to be recorded on a daily
basis (including each period of work time and
rest time the driver has on a day) or on some
other stated basis; and
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(b) for information to be recorded immediately
before or after a period of work time or rest
time; and
(c) for information to be recorded when finishing
work for a day; and
(d) for information to be recorded when there is a
change of the driver's base; and
(e) for information to be recorded when there is a
change of the driver's record location; and
(f) for information to be recorded regarding the
parties to a two-up driving arrangement.
(3) Without limiting subsections (1) and (2), the
national regulations may provide that, if the driver
stops working on a day and starts a major rest break
that will continue until the end of the day, the
driver may stop recording information for the day
when the driver stops working and starts the major
rest break.
296 Recording information under the national
regulations--general
(1) The driver must record the required information in
the driver's work diary in the manner and at the
time prescribed by the national regulations.
Maximum penalty--$1500.
(2) Subsection (1) does not apply to information to
which section 297 applies.
297 Information required to be recorded
immediately after starting work
(1) This section applies to required information that the
national regulations specify for the purposes of this
section as required to be recorded immediately after
the driver starts work on a day.
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(2) The driver must record the required information to
which this section applies immediately after
starting work on a day.
Maximum penalty--$3000.
(3) In a proceeding for an offence against subsection
(2) in relation to the failure of the driver to record
information immediately after starting to undertake
100+km work under standard hours on a day, it is a
defence for the driver to prove that at the time of
the offence--
(a) the driver was unaware that the driver would
be undertaking 100+kmwork under standard
hours on the day; and
(b) the driver recorded the information in the
driver's work diary as soon as practicable
after becoming aware that the driver would be
undertaking 100+km work under standard
hours on the day.
298 Failing to record information about odometer
reading
(1) The driver of a fatigue-regulated heavy vehicle
must record the odometer reading in the manner
prescribed by the national regulations if and when
required to do so by the national regulations.
Maximum penalty--$1500.
(2) In a proceeding for the offence against subsection
(1), it is a defence for the driver to prove that--
(a) at the time of the offence, the odometer was
malfunctioning; and
(b) the driver has complied with section 397.
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299 Two-up driver to provide details
If the driver is a party to a two-up driving
arrangement, the driver must, at the request of the
other driver (the other driver) who is a party to the
arrangement, provide the other driver with the
details relating to the arrangement that are
prescribed by the national regulations for the
purposes of this section.
Maximum penalty--$3000.
Subdivision 3 How information must be
recorded in work diary
300 Purpose of Sdiv 3
This Subdivision states how the driver of a fatigue-
regulated heavy vehicle who is required to record
information in the driver's work diary under
Subdivision 2 must record the information.
301 Recording information in written work diary
If the driver's work diary is a written work diary,
the driver must record information in the work
diary in the following way--
(a) the information for each day must be written
on a separate daily sheet in the work diary
that has not been cancelled by the Regulator;
(b) if, on a day, the driver changes the work and
rest hours option under which the driver is
working, the information for the part of the
day after the change must be written on a
separate daily sheet in the work diary that has
not been cancelled by the Regulator;
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(c) information must be written on a daily sheet
in the way stated in the instructions in the
work diary for recording information on daily
sheets;
(d) the daily sheets in the work diary must be
used in turn from the front of the work diary;
(e) each daily sheet must be--
(i) signed and dated by the driver; and
(ii) if the driver is driving under a two-up
driving arrangement--signed by the
other driver who is a party to the
arrangement;
(f) information must be written on a daily sheet
with enough pressure to ensure a readable
record of the information appears on the
duplicate daily sheets;
(g) information recorded other than on a daily
sheet must be written in the work diary in the
way stated in the instructions in the work
diary for the recording of the information.
Maximum penalty--$1500.
302 Recording information in electronic work diary
If the driver's work diary is an electronic work
diary, the driver must record information in the
work diary in a way complying with--
(a) if the Regulator has, when approving the
electronic recording system constituting the
work diary, or of which the work diary is a
part, imposed any conditions in relation to the
way information must be recorded in the
work diary--those conditions; and
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(b) the manufacturer's instructions for recording
information in the electronic work diary, to
the extent the instructions are consistent with
the conditions mentioned in paragraph (a).
Maximum penalty--$1500.
Note--
The Regulator may impose conditions on the use of an
electronic recording system under section 343.
303 Time zone of driver's base must be used
The driver must record time in the driver's work
diary according to the time zone in the place where
the driver's base is, rather than the time zone in the
place where the driver is.
Maximum penalty--$1500.
Note--
See also section 248, which requires that time periods be
counted by reference to the time zone of a driver's base
when the driver's journey involves travelling into a
different time zone.
Subdivision 4 Requirements about work
diaries that are filled up etc.
304 Application of Sdiv 4
This Subdivision applies to the driver of a fatigue-
regulated heavy vehicle who is required to record
information in the driver's work diary under
Subdivision 2 if--
(a) for a driver who uses a written work diary--
the driver's work diary has been filled up,
destroyed, lost or stolen; or
(b) for a driver who uses an electronic work
diary--the driver's work diary--
(i) has been filled up, destroyed, lost or
stolen; or
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(ii) is not in working order because a part of
the diary has been destroyed, lost or
stolen; or
(iii) is malfunctioning or has malfunctioned.
305 Driver must make supplementary records in
particular circumstances
(1) During any period in which the driver of a fatigue-
regulated heavy vehicle is unable to use the driver's
work diary (the existing work diary) because of
circumstances mentioned in section 304(a) or (b),
the driver must record in a supplementary record
the information the driver is required under
Subdivision 2 to record for the period (the required
information).
Maximum penalty--$6000.
Note--
Under Subdivision 1, the driver of a fatigue-regulated
heavy vehicle must keep a supplementary record for
28 days after it is made as part of the driver's work diary.
See sections 292(2) and 293.
Also, under section 341, the driver's record keeper must
keep the supplementary record for at least 3 years after it is
made (if the record keeper is the driver) or received by the
record keeper (if the record keeper is not the driver).
However, the period can be less than 3 years if a condition
of an exemption states a record must be kept for a period of
less than 3 years.
(2) For a supplementary record that is not in electronic
form, the required information must be recorded in
the record as follows--
(a) the information for each day must be written
on a separate page of the record;
(b) if, on a day, the driver changes the work and
rest hours option under which the driver is
working, the information for the part of the
day after the change must be written on a
separate page of the record;
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(c) each page of the record must be--
(i) signed and dated by the driver; and
(ii) if the driver is driving under a two-up
driving arrangement--signed by the
other driver who is a party to the
arrangement.
Maximum penalty--$3000.
(3) The driver must record time in the supplementary
record according to the time zone in the place
where the driver's base is, rather than the time zone
in the place where the driver is.
Maximum penalty--$1500.
(4) Subsections (1) to (3) cease to apply--
(a) if the existing work diary is a written work
diary, when the first of the following
happens--
(i) the driver is issued a new written work
diary, or obtains an electronic work
diary that is in working order;
(ii) the expiry of 7 business days after the
day on which the driver starts recording
information under this section; or
(b) if the existing work diary is an electronic
work diary, when the first of the following
happens--
(i) the driver obtains a new electronic work
diary that is in working order, or a
written work diary;
(ii) the existing work diary is--
(A) if the diary is filled up--made
capable of recording new
information; or
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(B) if the diary is not in working order
as mentioned in section 304(b)(ii)
or is malfunctioning--brought
into working order;
(iii) the expiry of 7 business days after--
(A) the day on which the driver starts
recording information under this
section; or
(B) if the driver is directed to use a
written work diary under
section 313 and the driver did not
have a written work diary when
the direction was given--the day
the direction is given to the driver
under that section.
Note--
If one of the circumstances in subsection (4) applies, a
driver may no longer use a supplementary record to record
the information required to be recorded under
Subdivision 2, and if the driver does not begin to keep a
work diary in accordance with section 293 then the driver
commits an offence against that section.
(5) In this section--
supplementary record means a record that--
(a) is not made in a written or electronic work
diary; but
(b) is in a similar form to a written or electronic
work diary.
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306 Driver must notify Regulator if written work
diary filled up etc.
Within 2 business days after the driver of a fatigue-
regulated heavy vehicle becomes aware that the
driver's written work diary has been filled up,
destroyed, lost or stolen, the driver must notify the
Regulator in the approved form of that happening.
Maximum penalty--$3000.
307 Driver must notify Regulator if electronic work
diary filled up etc.
(1) This section applies if the driver of a fatigue-
regulated heavy vehicle--
(a) becomes aware that the driver's electronic
work diary has been filled up, destroyed, lost
or stolen or is not in working order as
mentioned in section 304(b)(ii); or
(b) becomes aware or has reason to suspect that
the driver's electronic work diary is
malfunctioning or has malfunctioned.
(2) The driver must notify the Regulator in the
approved form of the matter within 2 business days.
Maximum penalty--$3000.
308 What driver must do if lost or stolen written
work diary found or returned
(1) If a lost or stolen written work diary (the old work
diary) is found by or returned to the driver of a
fatigue-regulated heavy vehicle after a replacement
work diary has been issued to the driver, the driver
must do the following--
(a) immediately cancel any unused daily sheets
in the old work diary;
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(b) if the old work diary is found or returned
within 28 days after it was lost or stolen--
(i) immediately notify the Regulator in the
approved form that it has been found or
returned; and
(ii) give it to the Regulator within
2 business days after the 28-day period
ends;
(c) if the old work diary is found or returned later
than 28 days after it was lost or stolen--give
it to the Regulator as soon as practicable after
it is found or returned.
Maximum penalty--$3000.
(2) If a driver of a fatigue-regulated heavy vehicle
gives a previously lost or stolen written work diary
to the Regulator under subsection (1), the Regulator
must--
(a) if the driver has not complied with subsection
(1)(a), cancel any unused daily sheets in the
work diary; and
(b) return the work diary to the driver.
309 Driver must notify record keeper if electronic
work diary filled up etc.
(1) This section applies if--
(a) the driver of a fatigue-regulated heavy
vehicle--
(i) becomes aware that the driver's
electronic work diary has been filled up,
destroyed, lost or stolen or is not in
working order as mentioned in
section 304(b)(ii); or
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(ii) becomes aware or has reason to suspect
that the driver's electronic work diary is
malfunctioning or has malfunctioned;
and
(b) the driver's record keeper is a person other
than the driver.
(2) The driver must, within 2 business days after the
driver becomes aware of the matter, inform the
driver's record keeper of the matter.
Maximum penalty--$6000.
310 Intelligent access reporting entity must notify
record keeper if approved electronic recording
system malfunctioning
(1) This section applies if--
(a) an approved electronic recording system--
(i) constitutes an electronic work diary or
has a part that constitutes an electronic
work diary; and
(ii) is or is part of an approved intelligent
transport system; and
(b) an intelligent access reporting entity for the
approved intelligent transport system
becomes aware or has reason to suspect that
the approved electronic recording system is
malfunctioning or has malfunctioned.
(2) The intelligent access reporting entity must inform
the driver's record keeper of the matter within
2 business days.
Maximum penalty--$6000.
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311 What record keeper must do if electronic work
diary filled up
(1) This section applies if--
(a) the record keeper for the driver of a fatigue-
regulated heavy vehicle is a person other than
the driver; and
(b) the driver uses an electronic work diary
supplied to the driver by the record keeper;
and
(c) the record keeper is informed, under
section 309, that the electronic work diary
has been filled up.
(2) The record keeper must, as soon as reasonably
practicable after being informed of the matter--
(a) either--
(i) make the electronic work diary capable
of recording new information; or
(ii) give the driver a new electronic work
diary that is in working order; and
(b) if the record keeper removes any information
relating to any period during the last 28 days
from the work diary to make it capable of
recording new information--give the driver a
printout of the removed information.
Maximum penalty--$6000.
(3) If the record keeper has engaged another person
under a contract for services to comply with
subsection (2) for the record keeper--
(a) the record keeper remains liable for an
offence against subsection (2); and
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(b) the other person is also liable for an offence
against subsection (2) as if the other person
were the record keeper mentioned in the
subsection.
(4) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
(5) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
312 What record keeper must do if electronic work
diary destroyed, lost or stolen
(1) This section applies if--
(a) the record keeper for the driver of a fatigue-
regulated heavy vehicle is a person other than
the driver; and
(b) the driver uses an electronic work diary
supplied to the driver by the record keeper;
and
(c) the record keeper is informed, under
section 309, that the electronic work diary
has been destroyed, lost or stolen.
(2) The record keeper must, as soon as reasonably
practicable after being informed of the matter--
(a) give the driver a new electronic work diary
that is in working order; and
(b) give the driver a printout of any information
that was in the destroyed, lost or stolen
electronic work diary that--
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(i) has been given to the record keeper; and
(ii) relates to any period during the last
28 days; and
(iii) is not stored in the new electronic work
diary.
Maximum penalty--$6000.
(3) If the record keeper has engaged another person
under a contract for services to comply with
subsection (2) for the record keeper--
(a) the record keeper remains liable for an
offence against subsection (2); and
(b) the other person is also liable for an offence
against subsection (2) as if the other person
were the record keeper mentioned in the
subsection.
(4) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
(5) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
313 What record keeper must do if electronic work
diary not in working order or malfunctioning
(1) This section applies if--
(a) the record keeper for the driver of a fatigue-
regulated heavy vehicle is a person other than
the driver; and
(b) the driver uses an electronic work diary
supplied to the driver by the record keeper;
and
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(c) the record keeper--
(i) is informed, under section 309, that the
electronic work diary is not in working
order as mentioned in section 304(b)(ii);
or
(ii) is informed, under section 309 or 310, of
malfunctioning or suspected
malfunctioning of the electronic work
diary.
(2) The record keeper must, as soon as reasonably
practicable after being informed of the matter--
(a) do one of the following--
(i) ensure the electronic work diary is
examined and brought into working
order;
(ii) give the driver a new electronic work
diary;
(iii) direct the driver, in writing, to use a
written work diary for recording
information the driver is required to
record in the driver's work diary under
this Part; and
(b) give the driver a printout of any information
that was in the electronic work diary that--
(i) has been given to the record keeper; and
(ii) relates to any period during the last
28 days; and
(iii) is not stored in the work diary that has
been brought into working order under
paragraph (a)(i), or a new electronic
work diary given to the driver under
paragraph (a)(ii).
Maximum penalty--$6000.
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(3) If the record keeper has engaged another person
under a contract for services to comply with
subsection (2) for the record keeper--
(a) the record keeper remains liable for an
offence against subsection (2); and
(b) the other person is also liable for an offence
against subsection (2) as if the other person
were the record keeper mentioned in the
subsection.
(4) Subsection (3) does not apply if the other person is
engaged under a contract for services only to repair
or otherwise bring the electronic work diary into
working order.
Example for the purposes of subsection (4)--
A person in the business of repairing electronic recording
systems is engaged under a contract for services to repair or
otherwise bring the electronic work diary into working
order on behalf of the record keeper.
(5) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
(6) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
Subdivision 5 Use of electronic work diaries
314 How electronic work diary must be used
(1) This section applies if the driver of a fatigue-
regulated heavy vehicle who is required to record
information in the driver's work diary under
Subdivision 2 uses an electronic work diary.
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(2) The driver must use the electronic work diary in a
way complying with--
(a) any conditions applying under this Law or a
corresponding fatigue law in relation to the
use of the approved electronic recording
system constituting the work diary or of
which the work diary is a part; and
(b) the manufacturer's specifications for the
electronic recording system that is or includes
the work diary, to the extent the
specifications are consistent with the
conditions mentioned in paragraph (a).
Maximum penalty--$3000.
Note--
The Regulator may impose conditions on the use of an
electronic recording system under section 343.
(3) The record keeper of a driver of a fatigue-regulated
heavy vehicle who uses an electronic work diary
must ensure the driver complies with the
requirements of subsection (2).
Maximum penalty--$6000.
(4) In a proceeding for an offence against subsection
(2) or (3) involving a person failing to comply with
a particular specification of the manufacturer of an
electronic recording system, it is a defence for the
person to prove that--
(a) the specification was not integral to the
effective operation of the electronic recording
system; or
(b) what was done or not done in relation to the
specification was in accordance with industry
practice in relation to the handling or
maintenance of an electronic recording
system of that type from that manufacturer.
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Subdivision 6 Extended liability
315 Liability of employer etc. for driver's
contravention of particular requirements of this
Division
(1) This section applies to an offence committed
because the driver of a fatigue-regulated heavy
vehicle contravenes a provision of Subdivision 1, 2,
3 or 4 (a relevant offence).
(2) If a relevant offence is committed involving the
driver of a fatigue-regulated heavy vehicle, each of
the following persons is taken to have committed
an offence against this subsection--
(a) an employer of the driver if the driver is an
employed driver;
(b) a prime contractor of the driver if the driver is
a self-employed driver;
(c) an operator of the vehicle if the driver is
making a journey for the operator;
(d) a scheduler for the vehicle.
Maximum penalty--$6000.
(3) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
(4) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
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(5) In a proceeding for an offence against
subsection (2)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the relevant offence; and
(b) evidence a court has convicted the driver of
the relevant offence is evidence that the
offence happened at the time and place, and
in the circumstances, stated in the charge
resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the relevant offence is
evidence that the offence happened at the
time and place, and in the circumstances,
stated in the infringement notice.
Division 3 Records relating to drivers
Subdivision 1 Preliminary
316 Application of Div 3
This Division--
(a) applies in relation to each record keeper for
the driver of a fatigue-regulated heavy
vehicle; and
(b) if there is more than 1 record keeper for the
driver of a fatigue-regulated heavy vehicle--
applies only to the extent the driver is
carrying out work in relation to which the
record keeper is a record keeper for the
driver.
Example for the purposes of paragraph (b)--
The driver of a fatigue-regulated heavy vehicle is an
employed driver employed by employer A and
employer B, each of whom is a record keeper of the
driver. A's obligations to record information under
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this Division apply only to the extent the
information is about the work the driver carries out
for A.
For example, under section 319, A need only record
the registration numbers of the fatigue-regulated
heavy vehicles the driver drives for carrying out
work for A and the work times and rest times of the
driver while carrying out that work. A does not
need to record the registration numbers for the
fatigue-regulated heavy vehicles the driver drives
for carrying out work for B or the work times and
rest times of the driver while carrying out that work.
317 Who is a driver's record keeper
The following person is the record keeper for the
driver of a fatigue-regulated heavy vehicle--
(a) if the driver is operating under a BFM
accreditation or AFM accreditation of an
operator of the vehicle or a work and rest
hours exemption (permit) granted in
combination with an operator's BFM
accreditation or AFM accreditation--the
operator;
(b) otherwise--
(i) for an employed driver of a fatigue-
regulated heavy vehicle--the driver's
employer; or
(ii) for a self-employed driver of a fatigue-
regulated heavy vehicle--the driver.
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Subdivision 2 Record keeping obligations
relating to drivers undertaking
100km work under standard
hours
318 Application of Sdiv 2
This Subdivision applies in relation to the driver of
a fatigue-regulated heavy vehicle who is
undertaking only 100km work under standard
hours.
319 Records record keeper must have
(1) The driver's record keeper must--
(a) record the following information within the
prescribed period--
(i) the driver's name and contact details;
(ii) the driver's current driver licence
number and the jurisdiction in which the
licence was issued;
(iii) the dates on which the driver drives a
fatigue-regulated heavy vehicle on a
road;
(iv) the registration number for each fatigue-
regulated heavy vehicle the driver
drives, being--
(A) in the case of a vehicle that is not
in a combination--that vehicle; or
(B) in the case of a vehicle that is in a
combination--the towing vehicle
in the combination;
(v) the total of the driver's work times and
rest times on each day on which the
driver drives a fatigue-regulated heavy
vehicle;
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(vi) the total of the driver's work times and
rest times for each week during which
the driver drives a fatigue-regulated
heavy vehicle;
(vii) the driver's rosters and trip schedules,
including details of driver changeovers;
and
(b) keep a copy of payment records relating to
the driver, including time sheet records if the
driver is paid according to time at work.
Maximum penalty--$6000.
(2) If the record keeper has engaged another person
under a contract for services to comply with
subsection (1) for the record keeper--
(a) the record keeper remains liable for an
offence against subsection (1); and
(b) the other person is also liable for an offence
against subsection (1) as if the other person
were the record keeper mentioned in the
subsection.
(3) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(4) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(5) In this section--
prescribed period, for recording information
mentioned in subsection (1) relating to the driver of
a fatigue-regulated heavy vehicle, means--
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(a) if the driver's record keeper is the driver--
within 24 hours after the driver stops working
on a day for which the information is
relevant; or
(b) if the driver's record keeper is a person other
than the driver--as soon as possible after the
person receives the information.
Subdivision 3 Record keeping obligations
relating to drivers undertaking
100+km work under standard
hours or operating under
BFM hours, AFM hours or
exemption hours
320 Application of Sdiv 3
This Subdivision applies in relation to the driver of
a fatigue-regulated heavy vehicle who is--
(a) undertaking 100+km work under standard
hours; or
(b) operating under BFM hours, AFM hours or
exemption hours.
321 Records record keeper must have
(1) The driver's record keeper must--
(a) record the following information within the
prescribed period--
(i) the driver's name and contact details;
(ii) the driver's current driver licence
number and the jurisdiction in which the
licence was issued;
(iii) the driver's rosters and trip schedules,
including details of driver changeovers;
and
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(b) keep a copy of all duplicate pages and other
copies of work diary entries, including any
entry made in a supplementary record--
(i) given to the record keeper under
section 322; or
(ii) as required to be made by the record
keeper as a self-employed driver under
Division 2; and
(c) keep a copy of payment records relating to
the driver, including time sheet records if the
driver is paid according to time at work.
Maximum penalty--$6000.
(2) If the driver is operating under BFM hours or AFM
hours, the record keeper must also record the
following information--
(a) the information required to be kept by the
record keeper as a condition of the BFM
accreditation or AFM accreditation under
which the driver is operating;
(b) the information required to be kept by the
record keeper under the BFM standards and
business rules or AFM standards and business
rules.
Maximum penalty--$6000.
Note--
See also section 470 for other record-keeping requirements
applying to a record keeper who is an operator operating
under a BFM accreditation or AFM accreditation.
(3) If the record keeper has engaged another person
under a contract for services to comply with
subsection (1) or (2) for the record keeper--
(a) the record keeper remains liable for an
offence against the subsection; and
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(b) the other person is also liable for an offence
against the subsection as if the other person
were the record keeper mentioned in the
subsection.
(4) A person charged with an offence against
subsection (1) or (2) does not have the benefit of
the mistake of fact defence for the offence.
(5) However, in a proceeding for an offence against
subsection (1) or (2), the person charged has the
benefit of the reasonable steps defence for the
offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(6) This section does not apply to the record keeper for
the driver of a fatigue-regulated heavy vehicle
who--
(a) is exempt from the requirements of
Division 2 under section 356; or
(b) is operating under a work diary exemption
(notice).
Note--
A record keeper for the driver of a fatigue-regulated heavy
vehicle who is not exempt from the requirements of
Division 2 under section 356 and who is operating under a
work diary exemption (permit) is not exempt from this
section and therefore is subject to its requirements.
(7) In this section--
AFM standards and business rules has the
meaning given by section 457.
BFM standards and business rules has the
meaning given by section 457.
prescribed period, for recording information
mentioned in subsection (1) relating to the driver of
a fatigue-regulated heavy vehicle, means--
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(a) if the driver's record keeper is the driver--
within 24 hours after the driver stops working
on a day for which the information is
relevant; or
(b) if the driver's record keeper is a person other
than the driver--as soon as possible after the
person receives the information.
322 General requirements about driver giving
information to record keeper
(1) This section applies if--
(a) the driver of a fatigue-regulated heavy
vehicle is required to record information in
the driver's work diary under Division 2; and
(b) the driver's record keeper is a person other
than the driver.
(2) The driver must, within 21 days after the day on
which the driver drove the vehicle, give a copy of
the work diary entry recording the information,
including any entry made in a supplementary
record recording the information for that day, to
each person who was a record keeper for the driver
on that day.
Maximum penalty--$3000.
(3) For the purposes of subsection (2), if the work
diary entry is made in an electronic work diary, the
driver may give a copy of the entry to the record
keeper by electronically transmitting it to the record
keeper.
(4) The record keeper must ensure the driver complies
with subsection (2).
Maximum penalty--$3000.
(5) If the record keeper has engaged another person
under a contract for services to comply with
subsection (4) for the record keeper--
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(a) the record keeper remains liable for an
offence against subsection (4); and
(b) the other person is also liable for an offence
against subsection (4) as if the other person
were the record keeper mentioned in the
subsection.
(6) A person charged with an offence against
subsection (2) or (4) does not have the benefit of
the mistake of fact defence for the offence.
(7) However, in a proceeding for an offence against
subsection (2) or (4), the person charged has the
benefit of the reasonable steps defence for the
offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
323 Requirements about driver giving information
to record keeper if driver changes record
keeper
(1) This section applies if--
(a) the driver of a fatigue-regulated heavy
vehicle is, or was in the previous 28 days,
required to record information in the driver's
work diary under Division 2; and
(b) the driver changes record keepers; and
(c) the new record keeper is a person other than
the driver.
(2) The driver must, before driving a fatigue-regulated
heavy vehicle for the driver's new record keeper,
give the new record keeper a copy of information
the driver recorded in a work diary in the 28 days
before the change happened that relates to that
28-day period.
Maximum penalty--$3000.
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(3) The new record keeper must ensure the driver
complies with subsection (2).
Maximum penalty--$3000.
(4) If the new record keeper has engaged another
person under a contract for services to comply with
subsection (3) for the new record keeper--
(a) the new record keeper remains liable for an
offence against subsection (3); and
(b) the other person is also liable for an offence
against subsection (3) as if the other person
were the new record keeper mentioned in the
subsection.
(5) A person charged with an offence against
subsection (2) or (3) does not have the benefit of
the mistake of fact defence for the offence.
(6) However, in a proceeding for an offence against
subsection (2) or (3), the person charged has the
benefit of the reasonable steps defence for the
offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
324 Record keeper must give printouts of
information from electronic work diary
(1) This section applies if--
(a) the driver of a fatigue-regulated heavy
vehicle is required to record information in
the driver's work diary under Division 2; and
(b) the driver's record keeper is a person other
than the driver; and
(c) the driver is using an electronic work diary
supplied to the driver by the driver's record
keeper.
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(2) If the driver stops using the electronic work diary,
the driver's record keeper must immediately give
the driver a printout of the information recorded in
the work diary for each day on which the driver
was using the electronic work diary.
Maximum penalty--$3000.
(3) If the record keeper has engaged another person
under a contract for services to comply with
subsection (2) for the record keeper--
(a) the record keeper remains liable for an
offence against subsection (2); and
(b) the other person is also liable for an offence
against subsection (2) as if the other person
were the record keeper mentioned in the
subsection.
(4) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
(5) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
Division 4 Provisions about false
representations relating to
work records
325 False or misleading entries
(1) A person must not record something in a work
record that the person knows, or ought reasonably
to know, is false or misleading in a material
particular.
Maximum penalty--$10000.
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Note--
See section 632 for the matters a court may consider when
deciding whether a person ought reasonably to have known
something.
(2) In a proceeding for an offence against subsection
(1), it is enough for a charge to state that the entry
was `false or misleading', without specifying
whether it was false or whether it was misleading.
326 Keeping 2 work diaries simultaneously
prohibited
(1) The driver of a fatigue-regulated heavy vehicle
must not have in the driver's possession more than
1 written work diary in which information can be
recorded on a daily sheet.
Maximum penalty--$10000.
(2) The driver of a fatigue-regulated heavy vehicle
must not record information for the same period
in--
(a) a written work diary and an electronic work
diary; or
(b) more than 1 electronic work diary.
Example--
The driver of a fatigue-regulated heavy vehicle works for
A and B. The driver keeps a written work diary for work
done for A and an electronic work diary for work done
for B. On a particular day, the driver works from 1p.m.
to 5p.m. for A and from 6p.m. to 11p.m. for B.
The driver must record the information about the period
between 1p.m. and 5p.m. in the written work diary kept for
A, and the information for the period between 6p.m. and
11p.m. in the electronic work diary kept for B.
The driver must not record information about the period
between 1p.m. and 5p.m., or the period between 6p.m. to
11p.m., in both the written work diary and electronic work
diary.
Maximum penalty--$10000.
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327 Possession of purported work records etc.
prohibited
The driver of a fatigue-regulated heavy vehicle or
the record keeper for a driver of a fatigue-regulated
heavy vehicle must not have in the driver's or
record keeper's possession a thing purporting to be
a work record if the driver or record keeper knows,
or ought reasonably to know, that it is not a work
record.
Maximum penalty--$10000.
Note--
See section 632 for the matters a court may consider when
deciding whether a person ought reasonably to have known
something.
328 False representation about work records
prohibited
A person must not falsely represent that a work
record was made by the person.
Maximum penalty--$10000.
Division 5 Interfering with work records
Subdivision 1 Work records generally
329 Defacing or changing work records etc.
prohibited
A person must not deface or change a work record
that the person knows, or ought reasonably to
know, is correct.
Maximum penalty--$10000.
Note--
1 Giving a false or misleading document to an official is
prohibited by section 702.
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2 See section 341 for the requirement that the record
keeper for the driver of a fatigue-regulated heavy
vehicle keep particular records in a way that ensures
they are readable and reasonably capable of being
understood and capable of being used as evidence.
3 See section 632 for the matters a court may consider
when deciding whether a person ought reasonably to
have known something.
330 Making entries in someone else's work records
prohibited
(1) A person must not make an entry in someone else's
work record.
Maximum penalty--$10000.
(2) Subsection (1) does not apply to--
(a) a person who--
(i) makes an entry in another person's work
diary under a work diary exemption
(permit) applying to the other person;
and
(ii) is nominated by the other person to
make the entry; or
(b) an authorised officer; or
(c) a party to a two-up driving arrangement--
(i) signing the written work diary of the
other party to the arrangement; or
(ii) making an entry in the other party's
electronic work diary indicating the
party's approval of the information
recorded in the work diary.
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331 Destruction of particular work records
prohibited
If a work record is required under (or by a
condition under) this Part to be kept for a particular
period by a person, the person or someone else
must not destroy the record before the end of the
period.
Maximum penalty--$10000.
Note--
See section 341 for the period for which record keepers for
drivers of fatigue-regulated heavy vehicles are required to
keep particular work records.
332 Offence to remove pages from written work
diary
A person must not remove a daily sheet, or the
duplicates of a daily sheet, from a written work
diary except as required or authorised by this Law
or a corresponding fatigue law.
Maximum penalty--$10000.
Subdivision 2 Approved electronic recording
systems
333 Application of Sdiv 2
This Subdivision applies to an approved electronic
recording system constituting an electronic work
diary or of which an electronic work diary is a part.
334 Meaning of tamper
Tamper with an approved electronic recording
system means--
(a) engage in conduct that--
(i) results in the system, or a part of the
system, malfunctioning; or
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(ii) could result in the system, or a part of
the system, malfunctioning; or
(iii) alters any of the data recorded by the
system or a part of the system; or
(iv) could alter any of the data recorded by
the system or a part of the system; or
(v) results in inaccurate information being
recorded by the system or a part of the
system; or
(vi) could result in inaccurate information
being recorded by the system or a part of
the system; or
(b) engage in conduct that alters or otherwise
interferes with an electronic signal sent to or
from the system, or a part of the system, if the
alteration or interference has or could have an
effect mentioned in paragraph (a)(i), (iii)
or (v).
335 Person must not tamper with approved
electronic recording system
(1) A person must not tamper with an approved
electronic recording system.
Maximum penalty--$10000.
(2) Subsection (1) does not apply to--
(a) conduct associated with repairing an
approved electronic recording system, or a
part of an approved electronic recording
system, that is malfunctioning or has
malfunctioned; or
(b) conduct associated with maintaining an
approved electronic recording system; or
(c) an authorised officer when exercising
functions under this Law.
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(3) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
(4) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(5) Also, in a proceeding for an offence against
subsection (1) involving a person engaging in
conduct that alters or otherwise interferes with any
electronic signal sent to or from an approved
electronic recording system, or a part of an
approved electronic recording system, it is a
defence for the person to prove that the person was
not aware, and could not reasonably be expected to
have been aware, that the conduct would alter or
otherwise interfere with the electronic signal.
336 Person using approved electronic recording
system must not permit tampering with it
(1) A person who uses an approved electronic
recording system must not permit another person to
tamper with the system.
Maximum penalty--$10000.
Examples of a person who uses an approved electronic
recording system--
· a driver of a heavy vehicle
· a driver's record keeper
(2) A person charged with an offence against
subsection (1) does not have the benefit of the
mistake of fact defence for the offence.
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(3) However, in a proceeding for an offence against
subsection (1), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
337 Intelligent access reporting entity must not
permit tampering with approved electronic
recording system
(1) This section applies if an approved electronic
recording system is or is part of an approved
intelligent transport system.
(2) An intelligent access reporting entity for the
approved intelligent transport system must not
permit another person to tamper with the approved
electronic recording system.
Maximum penalty--$10000.
(3) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
(4) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
Division 6 Obtaining written work diary
338 Form of written work diary
(1) This section states the requirements for written
work diaries issued by the Regulator under this
Division.
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(2) A written work diary must contain--
(a) a unique identifying number for the work
diary; and
(b) sheets (daily sheets) that--
(i) provide for recording information daily;
and
(ii) are sequentially numbered; and
(c) 2 duplicates of each daily sheet; and
(d) a duplicate of any application form contained
in the work diary under subsection (3); and
(e) instructions for use of the work diary.
(3) A written work diary may contain an application in
the approved form for the issue of another work
diary.
(4) Each daily sheet of a written work diary must be in
a form that ensures that, if information is written on
the daily sheet in the way stated in the instructions
in the work diary or this Law, the information
should be automatically copied on to the duplicates
for the sheet.
339 Application for written work diary
(1) The driver of a fatigue-regulated heavy vehicle may
apply to the Regulator for a written work diary.
(2) The application must be--
(a) in the approved form; and
(b) accompanied by the prescribed fee for the
application.
(3) If the application is for a written work diary to
replace a written work diary previously issued to
the driver (the existing written work diary), the
driver must give the existing written work diary to
the Regulator with the application, unless the
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existing written work diary has been destroyed, lost
or stolen.
(4) If the driver gives the existing written work diary to
the Regulator, the Regulator must--
(a) cancel any unused daily sheets in the written
work diary; and
(b) return the written work diary to the driver
when the Regulator issues the replacement
written work diary to the driver.
(5) If the application is for a written work diary to
replace a written work diary that has been
destroyed, lost or stolen, the application must--
(a) state the previous work diary's number and
that it has been destroyed, lost or stolen; and
(b) briefly outline the circumstances of the
destruction, loss or theft.
340 Issue of written work diary
(1) The Regulator must issue a written work diary to
the driver of a fatigue-regulated heavy vehicle if
the driver--
(a) applies for the work diary under section 339;
and
(b) identifies himself or herself by showing his or
her current driver licence to the Regulator;
and
(c) pays the prescribed fee for the issue of the
work diary.
(2) If the Regulator issues a written work diary to the
driver of a fatigue-regulated heavy vehicle, the
Regulator must note the date, time and place of
issue on the written work diary.
(3) The Regulator may make other notes on the written
work diary the Regulator considers appropriate.
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Division 6A Requirements about records
record keeper must make or
keep
341 Period for which, and way in which, records
must be kept
(1) The record keeper of the driver of a fatigue-
regulated heavy vehicle must keep a record
required to be made or kept under Division 3, or a
copy of the record, for 3 years after--
(a) for a record made by the record keeper--the
day the record keeper makes the record; or
(b) for another record--the day the record keeper
receives the record.
Maximum penalty--$6000.
(2) The record keeper of the driver of a fatigue-
regulated heavy vehicle must keep a record
required to be made or kept under (or by a
condition under) Division 8 or 8A, or a copy of the
record, for a period of 3 years, or, if a condition of
an exemption states a record must be kept for a
period of less than 3 years, the period stated in the
condition, after--
(a) for a record made by the record keeper--the
day the record keeper makes the record; or
(b) for another record--the day the record keeper
receives the record.
Maximum penalty--$6000.
(3) Except where the driver is his or her own record
keeper, the record keeper must keep the record or
copy at the driver's record location in a way that
ensures it is readily available to an authorised
officer at the record location.
Maximum penalty--$3000.
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(4) If the driver is his or her own record keeper, the
driver as record keeper must ensure the record or
copy of the record is kept at the driver's record
location in a way that ensures it is readily available
to an authorised officer at the record location by the
end of the 21-day period after the day the record is
made.
Maximum penalty--$3000.
(5) The record keeper must keep the record or copy in
a way that ensures it is--
(a) readable and reasonably capable of being
understood; and
(b) capable of being used as evidence.
Example--
To ensure a record kept in a storage facility does not
become unreadable, for example, by degrading, the record
keeper could scan the hard copy of the record and keep it in
an electronic format that is readable.
Maximum penalty--$6000.
(6) If the record keeper has engaged another person
under a contract for services to comply with
subsection (1), (2), (3) or (5) for the record
keeper--
(a) the record keeper remains liable for an
offence against the subsection; and
(b) the other person is also liable for an offence
against the subsection as if the other person
were the record keeper mentioned in the
subsection.
(7) A person charged with an offence against
subsection (1), (2), (3) or (5) does not have the
benefit of the mistake of fact defence for the
offence.
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(8) However, in a proceeding for an offence against
subsection (1), (2), (3) or (5), the person charged
has the benefit of the reasonable steps defence for
the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
Division 7 Approval of electronic
recording systems
Subdivision 1 Approval of electronic
recording systems
342 Application for approval of electronic recording
system
(1) A person may apply to the Regulator for the
approval of an electronic recording system.
Examples of persons who may apply for an approval under
this section--
· manufacturers of electronic recording systems
· operators of fatigue-regulated heavy vehicles
· drivers of fatigue-regulated heavy vehicles
(2) The application must be--
(a) in the approved form; and
(b) accompanied by the prescribed fee for the
application.
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343 Deciding application for approval
(1) The Regulator must, as soon as practicable after
receiving an application for an electronic recording
system approval--
(a) grant the approval, with or without conditions
about the use or maintenance of the electronic
recording system to which the approval
relates; or
(b) refuse the application.
(2) The Regulator may approve an electronic recording
system only if the Regulator is satisfied the
system--
(a) is suitable or has a part that is suitable for
fitting to, or for use in, a fatigue-regulated
heavy vehicle; and
(b) has a mechanism that readily indicates to the
driver of the fatigue-regulated heavy vehicle
to which it or a part of it is fitted, or in which
it or a part of it is used, that the system is or is
not properly functioning; and
(c) is capable of--
(i) accurately monitoring and recording the
work times and rest times of the driver
of the fatigue-regulated heavy vehicle to
which it or a part of it is fitted, or in
which it or a part of it is used; and
(ii) accurately recording any other
information the driver is required by this
Law to record in a work diary; and
(d) if the system or a part of it is to be fitted to a
fatigue-regulated heavy vehicle and is to be
used by more than 1 driver of the vehicle, is
capable of ensuring the following--
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(i) all of the information mentioned in
paragraph (c) can be accurately
monitored or recorded for each of the
drivers;
(ii) the details recorded by, or in relation to,
1 of the drivers are readily
distinguishable from the details recorded
by, or in relation to, the other drivers;
(iii) the name of the driver in relation to
whom details are recorded is shown
whenever the details are accessed;
(iv) 1 of the drivers can not record any
information, that the driver is required
by this Law to record in a work diary, in
the system for any of the other drivers;
and
(e) has a mechanism to ensure the driver of the
fatigue-regulated heavy vehicle to which it or
a part of it is fitted, or in which it or a part of
it is used, can not alter any information the
driver records in the system once the driver
has had an opportunity to confirm the
accuracy of the information; and
(f) if the system is designed to enable the driver
of the fatigue-regulated heavy vehicle to
which it or a part of it is fitted, or in which it
or a part of it is used, to send information to
the driver's record keeper--has a mechanism
that readily indicates to the driver that the
information has, or has not, been sent to the
record keeper; and
(g) is capable of readily reproducing, on being
accessed by the record keeper for the driver
of the fatigue-regulated heavy vehicle to
which it or a part of it is fitted, or in which it
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or a part of it is used, the information that the
system contains; and
(h) is capable of readily reproducing, on being
accessed by an authorised officer while the
vehicle to which it or a part of it is fitted, or
in which it or a part of it is used, is on a road,
the information the system contains in a form
that--
(i) is readily accessible by the officer; and
(ii) is reasonably capable of being
understood by the officer; and
(iii) can be used as evidence.
(3) In deciding whether or not to grant the approval,
the Regulator must have regard to the approved
guidelines for granting electronic recording system
approvals.
(4) An approved electronic recording system may be,
or be a part of, an approved intelligent transport
system.
344 Steps after decision to grant approval
(1) If the Regulator grants an approval under section
343, the Regulator must give the applicant--
(a) a numbered certificate of approval; and
(b) an electronic work diary label the holder can
use to create a copy for attaching to a device
that is or is part of the electronic recording
system the subject of the approval.
(2) If the Regulator imposes conditions on the
approval, the certificate of approval given to the
applicant must state the conditions.
(3) If the Regulator imposes conditions on the approval
not sought by the applicant, the Regulator must
give the applicant an information notice for the
decision to impose the conditions.
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345 Steps after decision to refuse application
If the Regulator decides not to grant an application
for an electronic recording system approval, the
Regulator must give the applicant an information
notice for the decision.
346 Effect of approval
(1) An electronic recording system approval granted
under this Subdivision applies to any system
identical to the system given to the Regulator for
approval.
(2) The conditions imposed on the approval under
section 343, or Subdivision 3, apply to each
identical system to which the approval applies.
Subdivision 2 Provisions about electronic
work diary labels
347 Placing electronic work diary label on device
(1) A person may place on any device that is, or is part
of, an approved electronic recording system an
electronic work diary label relating to the approval.
Note--
Under the definition electronic work diary in section 221,
placing an electronic work diary label on a device that is, or
is part of, an approved electronic recording system and is
fitted to or used in a fatigue-regulated heavy vehicle makes
the device an electronic work diary for the purposes of this
Law.
See also section 349.
(2) A person must not place an electronic work diary
label on a device unless the device is, or is part of,
an approved electronic recording system to which
the label relates.
Maximum penalty--$10000.
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(3) A person must not place any other label on a device
indicating the device is, or is part of, an approved
electronic recording system, unless the device is, or
is part of, an approved electronic recording system.
Maximum penalty--$10000.
348 Particular label indicates device is an approved
electronic recording system
(1) This section applies if a device has attached to it an
electronic work diary label.
(2) The existence of the electronic work diary label on
the device is evidence the device is, or is part of, an
approved electronic recording system.
349 Effect of electronic work diary label on device
(1) This section applies if a device has attached to it a
label that is, or appears to be, an electronic work
diary label.
(2) For the purposes of this Law, a person is entitled to
rely on the label as indicating the device is, or is
part of, an approved electronic recording system
unless the person knows, or ought reasonably to
know, the device is neither an approved electronic
recording system nor a part of an approved
electronic recording system.
Example for the purposes of subsection (2)--
The record keeper for the driver of a fatigue-regulated
heavy vehicle gives the driver a device to which an
electronic work diary label is attached for recording
information required to be included in the driver's work
diary under this Law. The driver may rely on the label as
indicating the device is, or is part of, an approved
electronic recording system meaning the driver may record
the required information in the device on the basis it is an
electronic work diary. However, the driver may not rely on
the label if the driver knows, or ought reasonably to know
the device is not, or is not part of, an approved electronic
recording system.
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Note--
See section 632 for the matters a court may consider when
deciding whether a person ought reasonably to have known
something.
350 Prohibition on using device as electronic work
diary if it is not, and is not a part of, an
approved electronic recording system
(1) A person must not use as an electronic work diary
for the purposes of this Law a device that has
attached to it an electronic work diary label if the
person knows, or ought reasonably to know, the
device is neither an approved electronic recording
system, nor a part of an approved electronic
recording system, to which the label relates.
Maximum penalty--$10000.
(2) A person must not use as an electronic work diary
for the purposes of this Law a device that has
attached to it any other label indicating the device
is, or is part of, an approved electronic recording
system, if the person knows, or ought reasonably to
know, the device is neither an approved electronic
recording system, nor a part of an approved
electronic recording system.
Maximum penalty--$10000.
Note--
See section 632 for the matters a court may consider when
deciding whether a person ought reasonably to have known
something.
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Subdivision 3 Amendment or cancellation of
approval
351 Amendment or cancellation of approval on
application
(1) The holder of an electronic recording system
approval may apply to the Regulator for an
amendment or cancellation of the approval.
(2) The application must--
(a) be in writing; and
(b) be accompanied by the prescribed fee for the
application; and
(c) if the application is for an amendment of the
approval, state clearly the amendment sought
and outline the reasons for the application;
and
(d) be accompanied by the certificate of approval
for the approval.
(3) The Regulator may, by notice given to the
applicant, require the applicant to give the
Regulator any additional information the Regulator
reasonably requires to decide the application.
(4) The Regulator must decide the application as soon
as practicable after receiving it.
(5) If the Regulator decides to grant the application--
(a) the Regulator must give the applicant notice
of the decision; and
(b) the amendment or cancellation takes effect--
(i) when notice of the decision is given to
the applicant; or
(ii) if a later time is stated in the notice, at
the later time; and
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(c) if the Regulator amended the approval, the
Regulator must give the applicant a
replacement certificate of approval for the
approval as amended.
(6) If the Regulator decides not to amend or cancel the
approval as sought by the applicant, the Regulator
must--
(a) give the applicant an information notice for
the decision; and
(b) return the certificate of approval for the
approval to the applicant.
(7) In this section--
certificate of approval, for an electronic recording
system approval, means the certificate of approval
issued by the Regulator under section 344 for the
approval.
352 Amendment or cancellation of approval on
Regulator's initiative
(1) Each of the following is a ground for amending or
cancelling an electronic recording system
approval--
(a) the approval was granted because of a
document or representation that was--
(i) false or misleading; or
(ii) obtained or made in an improper way;
(b) since the approval was granted, there has
been a change in the circumstances that were
relevant to the Regulator's decision to grant
the approval and, had the changed
circumstances existed when the approval was
granted, the Regulator would not have
granted the approval, or would have granted
the approval subject to conditions or different
conditions.
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(2) If the Regulator considers a ground exists to amend
or cancel an electronic recording system approval
(the proposed action), the Regulator must give the
holder of the approval a notice--
(a) stating the proposed action; and
(b) stating the ground for the proposed action;
and
(c) outlining the facts and circumstances forming
the basis for the ground; and
(d) if the proposed action is to amend the
approval (including a condition of the
approval)--stating the proposed amendment;
and
(e) inviting the holder to make, within a stated
time of at least 14 days after the notice is
given to the holder, written representations
about why the proposed action should not be
taken.
(3) If, after considering all written representations
made under subsection (2)(e), the Regulator still
considers a ground exists to take the proposed
action, the Regulator may--
(a) if the proposed action was to amend the
approval--amend the approval, including, for
example, by imposing additional conditions
on the approval, in a way that is not
substantially different from the proposed
action; or
(b) if the proposed action was to cancel the
approval--
(i) amend the approval, including, for
example, by imposing additional
conditions on the approval; or
(ii) cancel the approval.
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(4) The Regulator must give the holder an information
notice for the decision.
(5) The amendment or cancellation takes effect--
(a) when the information notice is given to the
holder; or
(b) if a later time is stated in the information
notice, at the later time.
353 Minor amendment of approval
The Regulator may, by notice given to the holder of
an electronic recording system approval, amend the
approval in a minor respect--
(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect
the holder's interests.
354 Requirements if approval amended
(1) This section applies if, under this Subdivision--
(a) the Regulator amends an electronic recording
system approval to change the conditions
about the use or maintenance of the electronic
recording system the subject of the approval;
and
(b) in the Regulator's opinion, the amendment
will, or is likely to, significantly affect the
way the electronic recording system the
subject of the approval is to be used.
(2) The Regulator may, by notice, direct the holder of
the approval to give each person to whom the
holder has supplied an electronic recording system
the subject of the approval, or a device forming part
of the system, a notice stating the amended
conditions of the approval.
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(3) If the Regulator gives the holder of the approval a
direction under subsection (2), the holder must
comply with the direction.
Maximum penalty--$6000.
(4) With the Regulator's written consent, a person may
comply with subsection (3) by publishing the
amended conditions, and any further details stated
by the Regulator, using at least 2 of the following
methods--
(a) by notice published in a newspaper stated by
the Regulator;
(b) by notice published in a journal or newsletter
stated by the Regulator;
(c) on a website stated by the Regulator.
(5) If, under subsection (3), the holder of the approval
gives a person a notice stating the amended
conditions of the approval, the person must give a
copy of the notice to each other person to whom the
person has supplied an electronic recording system
the subject of the approval, or a device forming part
of the system.
Example for the purposes of subsection (5)--
The holder of an approval is a manufacturer and the
manufacturer has supplied an electronic recording system
the subject of the approval to an operator of a fatigue-
regulated heavy vehicle who has supplied the system to the
vehicle's driver. If, under subsection (3), the manufacturer
gives the operator a notice stating the amended conditions
of the approval, the operator must, under subsection (5),
give the driver a copy of the notice.
Maximum penalty--$6000.
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(6) Nothing in this section prevents the Regulator from
publishing details of the amendment by whatever
means the Regulator thinks appropriate.
Example--
The Regulator may publish the amended conditions in the
Commonwealth Gazette or on a website.
(7) In this section--
amended conditions, of an electronic recording
system approval that has been amended under this
Division, means the conditions of the approval as
they apply after the amendment.
355 Requirements if approval cancelled
(1) This section applies if, under this Subdivision, the
Regulator notifies the holder of an electronic
recording system approval that the approval has
been cancelled.
(2) The holder of the approval must remove from any
device that is, or is part of, an electronic recording
system in the holder's possession any electronic
work diary label relating to the approval.
Maximum penalty--$6000.
(3) The Regulator may, by notice, direct the holder of
the approval to give each person to whom the
holder has supplied a device that is, or is part of, an
electronic recording system the subject of the
approval a notice stating that--
(a) the approval has been cancelled; and
(b) any electronic work diary label relating to the
approval on any device that is, or is part of,
the electronic recording system still in the
other person's possession must be removed.
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(4) If the Regulator gives the holder of the approval a
direction under subsection (3), the holder must
comply with the direction.
Maximum penalty--$6000.
(5) With the Regulator's written consent, a person may
comply with subsection (4) by publishing details of
the cancellation, and any further details stated by
the Regulator, using at least 2 of the following
methods--
(a) by notice published in a newspaper stated by
the Regulator;
(b) by notice published in a journal or newsletter
stated by the Regulator;
(c) on a website stated by the Regulator.
(6) If, under subsection (4), the holder of the approval
gives a person a notice that the approval has been
cancelled, the person must give a notice to each
other person to whom the person has supplied an
electronic recording system the subject of the
approval, or a device forming part of the system,
stating that--
(a) the approval has been cancelled; and
(b) any electronic work diary label relating to the
approval on any device that is, or is part of,
an electronic recording system still in the
other person's possession must be removed.
Example for the purposes of subsection (6)--
The holder of an approval is a manufacturer and the
manufacturer has supplied a device that is, or is part
of, an electronic recording system the subject of the
approval to an operator of a fatigue-regulated heavy
vehicle who has supplied the device to the vehicle's
driver. If, under subsection (4), the manufacturer
gives the operator a notice stating the approval has
been cancelled and any electronic work diary label
relating to the approval on any device that is, or is
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part of, an electronic recording system still in the
operator's possession must be removed, the
operator must give the driver a notice stating the
approval has been cancelled and any electronic
work diary label relating to the approval on any
device that is, or is part of, an electronic recording
system still in the driver's possession must be
removed.
Maximum penalty--$6000.
(7) Nothing in this section prevents the Regulator from
publishing details of the cancellation by whatever
means the Regulator thinks appropriate.
Example--
The Regulator may publish the cancellation in the
Commonwealth Gazette or on a website.
(8) A person who is aware that an electronic recording
system approval has been cancelled must remove
from any device that is, or is part of, an electronic
recording system in the person's possession any
electronic work diary label relating to the approval.
Maximum penalty--$6000.
(9) In this section--
holder, of an electronic recording system approval
that has been cancelled, means the person who,
immediately before the cancellation took effect,
held the approval.
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Division 8 Exemptions from work diary
requirements of Division 2
Subdivision 1 Exemption for emergency
services
356 Emergency services exemption
(1) A person who is acting for an emergency service
and who has time-critical duties on the way to, or
during, an emergency is exempted in the course of
carrying out the duties from compliance with
Division 2.
(2) A person who is acting for an emergency service
and who is returning from attending an emergency
is exempted from compliance with Division 2 if the
person reasonably believes the noncompliance does
not present an unreasonable danger to other road
users.
(3) A person who is acting for an emergency service is
exempted from compliance with Division 2 under
subsection (1) or (2) only if, at the relevant time,
the person complies with any guidelines regarding
the management of fatigue issued by or on behalf
of the emergency service or an authority
responsible for oversight of the emergency service.
(4) In this section--
emergency means an event, or an anticipated event,
that--
(a) endangers, or may endanger, life, property or
the environment; or
(b) has disrupted, or may disrupt,
communications, energy supply, water supply
or sewerage services; or
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(c) is declared to be an emergency or disaster
by--
(i) the Commonwealth or a State or
Territory; or
(ii) a Commonwealth or State or Territory
authority responsible for managing
responses to emergencies or disasters.
Examples of an emergency--
fire, explosion or natural disaster
emergency service means an entity that has a
statutory responsibility to respond to an emergency
and includes the following--
(a) an ambulance service;
(b) a fire brigade, including a volunteer fire
brigade;
(c) a police force or police service;
(d) a disaster or emergency organisation of the
Commonwealth or a State or Territory.
Subdivision 2 Exemptions by Commonwealth
Gazette notice
357 Regulator's power to exempt particular drivers
from work diary requirements
(1) The Regulator may, by Commonwealth Gazette
notice complying with section 361, exempt, for a
period of not more than 3 years, drivers of fatigue-
regulated heavy vehicles carrying out a class of
work from the requirement to comply with
Subdivisions 1 to 5 of Division 2 for the work.
(2) An exemption under subsection (1) is a work diary
exemption (notice).
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358 Restriction on grant of work diary exemption
(notice)
(1) The Regulator may grant a work diary exemption
(notice) only if the Regulator is satisfied--
(a) requiring the drivers to whom the exemption
is to apply to comply with Subdivisions 1 to 5
of Division 2 would be an unreasonable
restriction on operations conducted by the
drivers; and
(b) the class of work to which the exemption is to
apply will not pose--
(i) a significant risk to public safety; or
(ii) a significant risk of the drivers to whom
the exemption is to apply driving on a
road while impaired by fatigue.
(2) In deciding whether or not to grant a work diary
exemption (notice), the Regulator must have regard
to the approved guidelines for granting work diary
exemptions.
359 Conditions of work diary exemption (notice)
A work diary exemption (notice) may be subject to
any conditions the Regulator considers appropriate,
including, for example--
(a) conditions about recording information about
the work to which the exemption applies; and
(b) a condition that the driver of a fatigue-
regulated heavy vehicle who is operating
under the exemption must keep in the driver's
possession a copy of--
(i) the Commonwealth Gazette notice for
the exemption; or
(ii) an information sheet about the
exemption published by the Regulator
on the Regulator's website.
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360 Period for which work diary exemption (notice)
applies
A work diary exemption (notice)--
(a) takes effect--
(i) when the Commonwealth Gazette notice
for the exemption is published; or
(ii) if a later time is stated in the
Commonwealth Gazette notice, at the
later time; and
(b) applies for the period stated in the
Commonwealth Gazette notice.
361 Requirements about Commonwealth Gazette
notice
(1) A Commonwealth Gazette notice for a work diary
exemption (notice) must state the following--
(a) the class of work to which the exemption
applies;
(b) that drivers of fatigue-regulated heavy
vehicles who carry out the class of work are
exempt from the requirement to comply with
Subdivisions 1 to 5 of Division 2 for the
work;
(c) the conditions of the exemption;
(d) the period for which the exemption applies.
(2) The Regulator must publish a copy of the
Commonwealth Gazette notice on the Regulator's
website.
362 Amendment or cancellation of work diary
exemption (notice)
(1) It is a ground for amending or cancelling a work
diary exemption (notice) if, since the exemption
was granted, there has been a change in the
circumstances that were relevant to the Regulator's
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decision to grant the exemption and, had the
changed circumstances existed when the exemption
was granted, the Regulator would not have granted
the exemption, or would have granted the
exemption subject to conditions or different
conditions.
(2) If the Regulator considers a ground exists to amend
or cancel the work diary exemption (notice), the
Regulator may amend or cancel the exemption by
complying with subsections (3) to (5).
(3) The Regulator must publish a notice in the
Commonwealth Gazette, in a newspaper circulating
generally throughout each relevant participating
jurisdiction and on the Regulator's website--
(a) stating that the Regulator believes a ground
exists to amend or cancel the exemption; and
(b) outlining the facts and circumstances forming
the basis for the belief; and
(c) stating the action the Regulator is proposing
to take under this section (the proposed
action); and
(d) inviting 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.
(4) If, after considering all written representations
made under subsection (3)(d), the Regulator still
considers the circumstances in which the Regulator
may grant the work diary exemption (notice) are no
longer satisfied, the Regulator may--
(a) if the proposed action was to amend the
exemption--amend the exemption in a way
that is not substantially different from the
proposed action, including, for example, by--
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(i) amending the class of work to which the
exemption applies; or
(ii) amending the conditions of the
exemption; or
(b) if the proposed action was to cancel the
exemption--
(i) amend the exemption, including, for
example, by amending the exemption
in a way mentioned in paragraph (a)(i)
or (ii); or
(ii) cancel the exemption.
(5) Notice of the amendment or cancellation must be
published--
(a) in--
(i) the Commonwealth Gazette; and
(ii) a newspaper circulating generally
throughout each relevant participating
jurisdiction; and
(b) on the Regulator's website; and
(c) in any other newspaper the Regulator
considers appropriate.
Example for the purposes of paragraph (c)--
If the work diary exemption (notice) relates to a particular
part of a participating jurisdiction, the Regulator may
consider it appropriate to publish the notice in a newspaper
circulating generally in the part.
(6) The amendment or cancellation takes effect--
(a) 28 days after the Commonwealth Gazette
notice is published under subsection (5); or
(b) if a later time is stated in the Commonwealth
Gazette notice, at the later time.
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(7) In this section--
relevant participating jurisdiction, for a work diary
exemption (notice), means a participating
jurisdiction in which the whole or part of an area or
route to which the exemption applies is situated.
Subdivision 3 Exemptions by permit
363 Regulator's power to exempt driver of fatigue-
regulated heavy vehicle from work diary
requirement
(1) The Regulator may, by giving a person a permit as
mentioned in section 368, exempt, for a period of
not more than 3 years, a driver of a fatigue-
regulated heavy vehicle from the requirement to
comply with Subdivisions 1 to 5 of Division 2.
(2) An exemption under subsection (1) is a work diary
exemption (permit).
364 Application for work diary exemption (permit)
(1) The driver of a fatigue-regulated heavy vehicle who
is working under standard hours may apply to the
Regulator for a work diary exemption (permit).
(2) The application must--
(a) be in the approved form; and
(b) state the following--
(i) the period for which the exemption is
sought;
(ii) any conditions for the exemption sought
by the applicant; and
(c) nominate a person (the nominee) to make
written work records for the driver; and
(d) be accompanied by the nominee's written
agreement to the nomination; and
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(e) be accompanied by the prescribed fee for the
application.
(3) An employer of the driver of a fatigue-regulated
heavy vehicle may make an application under
subsection (1) on behalf of the driver.
(4) The Regulator may, by notice given to the
applicant, require the applicant to give the
Regulator any additional information the Regulator
reasonably requires to decide the application.
365 Restriction on grant of work diary exemption
(permit)
(1) The Regulator may grant a work diary exemption
(permit) only if the Regulator is satisfied--
(a) the driver can not make records in the
driver's work diary because of the driver's
inadequate English literacy; and
(b) the nominee for the driver will be able to
make records that are no less complete or
accurate than records made under
Subdivisions 1 to 5 of Division 2; and
(c) the driver works only under standard hours.
(2) In deciding whether or not to grant a work diary
exemption (permit), the Regulator must have regard
to the approved guidelines for granting work diary
exemptions.
(3) In this section--
nominee, for the driver of a fatigue-regulated
heavy vehicle, means the person nominated, in the
application for the work diary exemption (permit),
by the driver to make written work records for the
driver.
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366 Conditions of work diary exemption (permit)
(1) A work diary exemption (permit) is subject to the
condition that the driver to whom the exemption
applies must carry out all work as a driver of
fatigue-regulated heavy vehicles under standard
hours only.
(2) A work diary exemption (permit) may be subject to
any other conditions the Regulator considers
appropriate, including, for example, conditions
about--
(a) the information to be included in records
about the work carried out by the driver of a
fatigue-regulated heavy vehicle to whom the
exemption applies; and
(b) how the records are to be made.
367 Period for which work diary exemption (permit)
applies
(1) A work diary exemption (permit) applies for the
period stated in the permit for the exemption.
(2) The period may be less than the period sought by
the applicant for the work diary exemption
(permit).
368 Permit for work diary exemption (permit) etc.
(1) If the Regulator grants a work diary exemption
(permit) to a person, the Regulator must give the
person--
(a) a permit for the exemption; and
(b) if the Regulator has imposed conditions on
the exemption under section 366 or has
granted the exemption for a period less than
the period of not more than 3 years sought by
the person--an information notice for the
decision to impose the conditions or grant the
exemption for the shorter period.
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(2) A permit for a work diary exemption (permit) must
state the following--
(a) the name of the driver of a fatigue-regulated
heavy vehicle to whom the permit is given;
(b) the name of the nominee for the driver;
(c) the conditions of the exemption;
(d) the period for which the exemption applies.
(3) In this section--
nominee, for the driver of a fatigue-regulated
heavy vehicle, means the person nominated, in the
application for the work diary exemption (permit),
by the driver to make written work records for the
driver.
369 Refusal of application for work diary exemption
(permit)
If the Regulator refuses an application for a work
diary exemption (permit), the Regulator must give
the applicant an information notice for the decision
to refuse the application.
370 Amendment or cancellation of work diary
exemption (permit) on application by permit
holder
(1) The holder of a permit for a work diary exemption
(permit) may apply to the Regulator for an
amendment or cancellation of the exemption.
(2) The application must--
(a) be in the approved form; and
(b) be accompanied by the prescribed fee for the
application; and
(c) if the application is for an amendment--state
clearly the amendment sought and the reasons
for the amendment; and
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(d) if the application is for an amendment of the
person nominated by the holder to make
written work records for the holder--be
accompanied by the nominee's written
agreement to the nomination; and
(e) be accompanied by the permit.
(3) The Regulator may, by notice given to the
applicant, require the applicant to give the
Regulator any additional information the Regulator
reasonably requires to decide the application.
(4) The Regulator must decide the application as soon
as practicable after receiving it.
(5) If the Regulator decides to grant the application--
(a) the Regulator must give the applicant notice
of the decision; and
(b) the amendment or cancellation takes effect--
(i) when notice of the decision is given to
the applicant; or
(ii) if a later time is stated in the notice, at
the later time; and
(c) if the Regulator amends the exemption, the
Regulator must give the applicant a
replacement permit for the exemption as
amended.
(6) If the Regulator decides not to amend or cancel the
work diary exemption (permit), as sought by the
applicant, the Regulator must--
(a) give the applicant an information notice for
the decision; and
(b) return the permit for the exemption to the
applicant.
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371 Amendment or cancellation of work diary
exemption (permit) on Regulator's initiative
(1) Each of the following is a ground for amending or
cancelling a work diary exemption (permit)--
(a) the exemption was granted because of a
document or representation that was--
(i) false or misleading; or
(ii) obtained or made in an improper way;
(b) the person to whom the exemption is granted
has contravened this Law or a corresponding
fatigue law;
(c) the nominee has contravened a condition of
the exemption;
(d) since the exemption was granted, there has
been a change in the circumstances that were
relevant to the Regulator's decision to grant
the exemption and, had the changed
circumstances existed when the exemption
was granted, the Regulator would not have
granted the exemption, or would have granted
the exemption subject to conditions or
different conditions.
(2) If the Regulator considers a ground exists to amend
or cancel a work diary exemption (permit) (the
proposed action), the Regulator must give the
holder of the permit for the exemption a notice--
(a) stating the proposed action; and
(b) stating the ground for the proposed action;
and
(c) outlining the facts and circumstances forming
the basis for the ground; and
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(d) if the proposed action is to amend the
exemption (including a condition of the
exemption)--stating the proposed
amendment; and
(e) inviting the holder to make, within a stated
time of at least 14 days after the notice is
given to the holder, written representations
about why the proposed action should not be
taken.
(3) If, after considering all written representations
made under subsection (2)(e), the Regulator still
considers a ground exists to take the proposed
action, the Regulator may--
(a) if the proposed action was to amend the
exemption--amend the exemption, including,
for example, by imposing additional
conditions on the exemption, in a way that is
not substantially different from the proposed
action; or
(b) if the proposed action was to cancel the
exemption--
(i) amend the exemption, including, for
example, by imposing additional
conditions on the exemption; or
(ii) cancel the exemption.
(4) The Regulator must give the holder an information
notice for the decision.
(5) The amendment or cancellation takes effect--
(a) when the information notice is given to the
holder; or
(b) if a later time is stated in the information
notice, at the later time.
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(6) In this section--
nominee, for the person to whom a work diary
exemption (permit) is granted, means the person
stated in the permit for the exemption as the person
nominated by the person to make written work
records for the person.
372 Minor amendment of work diary exemption
(permit)
The Regulator may, by notice given to the holder of
a permit for a work diary exemption (permit),
amend the exemption in a minor respect--
(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect
the holder's interests.
373 Return of permit
(1) If a person's work diary exemption (permit) is
amended or cancelled under this Subdivision, the
Regulator may, by notice given to the person,
require the person to return the person's permit for
the exemption to the Regulator.
(2) The person must comply with the notice within
7 days after the notice is given to the person or, if
a longer period is stated in the notice, within the
longer period.
Maximum penalty--$6000.
(3) If the exemption has been amended, the Regulator
must give the person a replacement permit for the
exemption as amended.
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374 Replacement of defaced etc. permit
(1) If a person's permit for a work diary exemption
(permit) is defaced, destroyed, lost or stolen, the
person must, as soon as reasonably practicable after
becoming aware of the matter, apply to the
Regulator for a replacement permit.
Maximum penalty--$4000.
(2) 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.
(3) If the Regulator decides not to give a replacement
permit to the person, the Regulator must give the
person an information notice for the decision.
Subdivision 4 Operating under work diary
exemption
375 Contravening condition of work diary
exemption
A person must not contravene a condition of a work
diary exemption.
Maximum penalty--$6000.
376 Keeping relevant document while operating
under work diary exemption (notice)
(1) This section applies if a work diary exemption
(notice) is subject to the condition that the driver of
a fatigue-regulated heavy vehicle who is operating
under the exemption must keep a relevant
document in the driver's possession.
(2) A driver of the fatigue-regulated heavy vehicle who
is operating under the work diary exemption
(notice) must comply with the condition.
Maximum penalty--$3000.
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(3) If an offence is committed against subsection (2)
involving the driver of a fatigue-regulated heavy
vehicle, each relevant party for the driver is taken
to have committed an offence against this
subsection.
Maximum penalty--$3000.
(4) A person charged with an offence against
subsection (3) does not have the benefit of the
mistake of fact defence for the offence.
(5) However, in a proceeding for an offence against
subsection (3), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(6) In a proceeding for an offence against
subsection (3)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the offence against
subsection (2); and
(b) evidence a court has convicted the driver of
the offence against subsection (2) is evidence
that the offence happened at the time and
place, and in the circumstances, stated in the
charge resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the offence against
subsection (2) is evidence that the offence
happened at the time and place, and in the
circumstances, stated in the infringement
notice.
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(7) In this section--
relevant document, for a work diary exemption
(notice), means a copy of--
(a) the Commonwealth Gazette notice for the
exemption; or
(b) an information sheet about the exemption
published by the Regulator on the Regulator's
website.
relevant party, for the driver of a fatigue-regulated
heavy vehicle, means--
(a) an employer of the driver if the driver is an
employed driver; or
(b) a prime contractor of the driver if the driver is
a self-employed driver; or
(c) an operator of the vehicle if the driver is
making a journey for the operator.
377 Keeping permit or copy while operating under
work diary exemption (permit)
The driver of a fatigue-regulated heavy vehicle who
is operating under a work diary exemption (permit)
must keep the permit or a copy of the permit in the
driver's possession.
Maximum penalty--$3000.
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Division 8A Exemptions from fatigue
record keeping requirements
of Division 3
Subdivision 1 Exemptions by Commonwealth
Gazette notice
378 Regulator's power to exempt record keepers
from fatigue record keeping requirements
(1) The Regulator may, by Commonwealth Gazette
notice complying with section 381, exempt, for a
period of not more than 3 years, record keepers for
drivers of fatigue-regulated heavy vehicles carrying
out a class of work from the requirement to comply
with all or stated provisions of Division 3 for the
work.
(2) An exemption under subsection (1) is a fatigue
record keeping exemption (notice).
(3) In deciding whether or not to grant a fatigue record
keeping exemption (notice), the Regulator must
have regard to the approved guidelines for granting
fatigue record keeping exemptions.
379 Conditions of fatigue record keeping exemption
(notice)
A fatigue record keeping exemption (notice)--
(a) is subject to conditions prescribed by the
national regulations for the exemption; and
(b) may be subject to any other conditions the
Regulator considers appropriate, including,
for example--
(i) conditions about recording information
about the work to which the exemption
applies; and
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(ii) a condition that a record keeper for the
driver of a fatigue-regulated heavy
vehicle who is operating under the
exemption must keep in the record
keeper's possession--
(A) a copy of the Commonwealth
Gazette notice for the exemption;
or
(B) a stated document or stated kind
of document relating to the
exemption.
380 Period for which fatigue record keeping
exemption (notice) applies
A fatigue record keeping exemption (notice)--
(a) takes effect--
(i) when the Commonwealth Gazette notice
for the exemption is published; or
(ii) if a later time is stated in the
Commonwealth Gazette notice, at the
later time; and
(b) applies for the period stated in the
Commonwealth Gazette notice.
381 Requirements about Commonwealth Gazette
notice
(1) A Commonwealth Gazette notice for a fatigue
record keeping exemption (notice) must state the
following--
(a) the class of work to which the exemption
applies;
(b) that record keepers for drivers of fatigue-
regulated heavy vehicles who carry out the
class of work are exempt from the
requirement to comply with all or stated
provisions of Division 3 for the work;
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(c) the conditions of the exemption;
(d) the period for which the exemption applies.
(2) The Regulator must publish a copy of the
Commonwealth Gazette notice on the Regulator's
website.
382 Amendment or cancellation of fatigue record
keeping exemption (notice)
(1) It is a ground for amending or cancelling a fatigue
record keeping exemption (notice) if, since the
exemption was granted, there has been a change in
the circumstances that were relevant to the
Regulator's decision to grant the exemption and,
had the changed circumstances existed when the
exemption was granted, the Regulator would not
have granted the exemption, or would have granted
the exemption subject to conditions or different
conditions.
(2) If the Regulator considers a ground exists to amend
or cancel a fatigue record keeping exemption
(notice), the Regulator may amend or cancel the
exemption by complying with subsections (3)
to (5).
(3) The Regulator must publish a notice in the
Commonwealth Gazette, in a newspaper circulating
generally throughout each relevant participating
jurisdiction and on the Regulator's website--
(a) stating that the Regulator believes a ground
exists to amend or cancel the exemption; and
(b) outlining the facts and circumstances forming
the basis for the belief; and
(c) stating the action the Regulator is proposing
to take under this section (the proposed
action); and
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(d) inviting 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.
(4) If, after considering all written representations
made under subsection (3)(d), the Regulator still
considers the circumstances in which the Regulator
may grant the fatigue record keeping exemption
(notice) are no longer satisfied, the Regulator
may--
(a) if the proposed action was to amend the
exemption--amend the exemption in a way
that is not substantially different from the
proposed action, including, for example, by--
(i) amending the class of work to which the
exemption applies; or
(ii) amending the conditions of the
exemption; or
(b) if the proposed action was to cancel the
exemption--
(i) amend the exemption, including, for
example, by amending the exemption
in a way mentioned in paragraph (a)(i)
or (ii); or
(ii) cancel the exemption.
(5) Notice of the amendment or cancellation must be
published--
(a) in--
(i) the Commonwealth Gazette; and
(ii) a newspaper circulating generally
throughout each relevant participating
jurisdiction; and
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(b) on the Regulator's website; and
(c) in any other newspaper the Regulator
considers appropriate.
Example for the purposes of paragraph (c)--
If the fatigue record keeping exemption (notice)
relates to a particular part of a participating
jurisdiction, the Regulator may consider it
appropriate to publish the notice in a newspaper
circulating generally in the part.
(6) The amendment or cancellation takes effect--
(a) 28 days after the Commonwealth Gazette
notice is published under subsection (5); or
(b) if a later time is stated in the Commonwealth
Gazette notice, at the later time.
(7) In this section--
relevant participating jurisdiction, for a fatigue
record keeping exemption (notice), means a
participating jurisdiction in which the whole or part
of an area or route to which the exemption applies
is situated.
Subdivision 2 Exemptions by permit
383 Regulator's power to exempt record keepers
from fatigue record keeping requirements
(1) The Regulator may, by giving a person a permit as
mentioned in section 387, exempt, for a period of
not more than 3 years, a record keeper for one or
more drivers of a fatigue-regulated heavy vehicle
from the requirement to comply with all or stated
provisions of Division 3.
(2) An exemption under subsection (1) is a fatigue
record keeping exemption (permit).
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(3) The Regulator may grant a fatigue record keeping
exemption (permit) to the operator of a fatigue-
regulated heavy vehicle in combination with the
operator's BFM accreditation or AFM
accreditation.
(4) The Regulator may grant a fatigue record keeping
exemption (permit)--
(a) in a way that does not cover all the drivers
sought by the applicant; or
(b) setting conditions different from those sought
by the applicant.
384 Application for fatigue record keeping
exemption (permit)
(1) The record keeper for a driver of a fatigue-
regulated heavy vehicle may apply to the Regulator
for a fatigue record keeping exemption (permit).
(2) The application must--
(a) be in the approved form; and
(b) state the following--
(i) the period for which the exemption is
sought;
(ii) any conditions for the exemption sought
by the applicant;
(iii) the name and details of each driver of a
fatigue-regulated heavy vehicle to whom
the exemption sought is to apply;
(iv) any other details prescribed by the
national regulations; and
(c) be accompanied by the prescribed fee for the
application.
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(3) The Regulator may, by notice given to the
applicant, require the applicant to give the
Regulator any additional information the Regulator
reasonably requires to decide the application.
(4) In deciding whether or not to grant a fatigue record
keeping exemption (permit), the Regulator must
comply with any requirements prescribed by the
national regulations for the purposes of this
subsection and have regard to the approved
guidelines for granting fatigue record keeping
exemptions.
385 Conditions of fatigue record keeping exemption
(permit)
A fatigue record keeping exemption (permit)--
(a) is subject to conditions prescribed by the
national regulations for the exemption; and
(b) may be subject to any other conditions the
Regulator considers appropriate, including,
for example--
(i) a condition about the information to be
included in records about the work
carried out by drivers of fatigue-
regulated heavy vehicles to whom the
exemption applies; and
(ii) a condition about how the records are to
be made; and
(iii) a condition that a record keeper for the
driver of a fatigue-regulated heavy
vehicle who is operating under the
exemption must keep in the record
keeper's possession--
(A) the permit for the exemption; or
(B) a stated document or stated kind
of document relating to the
exemption.
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386 Period for which fatigue record keeping
exemption (permit) applies
(1) A fatigue record keeping exemption (permit)
applies for the period stated in the permit for the
exemption.
(2) The period may be less than the period sought by
the applicant for the fatigue record keeping
exemption (permit).
387 Permit for fatigue record keeping exemption
(permit) etc.
(1) If the Regulator grants a fatigue record keeping
exemption (permit) to a person, the Regulator must
give the person--
(a) a permit for the exemption; and
(b) if the Regulator has imposed conditions on
the exemption under section 385 or has
granted the exemption for a period less than
the period of not more than 3 years sought by
the person--an information notice for the
decision to impose the conditions or grant the
exemption for the shorter period.
(2) A permit for a fatigue record keeping exemption
(permit) must state the following--
(a) the name of the drivers of fatigue-regulated
heavy vehicles to whom the permit applies;
(b) the conditions of the exemption;
(c) the period for which the exemption applies.
388 Refusal of application for fatigue record
keeping exemption (permit)
If the Regulator refuses an application for a fatigue
record keeping exemption (permit), the Regulator
must give the applicant an information notice for
the decision to refuse the application.
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389 Amendment or cancellation of fatigue record
keeping exemption (permit) on application by
permit holder
(1) The holder of a permit for a fatigue record keeping
exemption (permit) may apply to the Regulator for
an amendment or cancellation of the exemption.
(2) The application must--
(a) be in the approved form; and
(b) be accompanied by the prescribed fee for the
application; and
(c) if the application is for an amendment--state
clearly the amendment sought and the reasons
for the amendment; and
(d) be accompanied by the permit.
(3) The Regulator may, by notice given to the
applicant, require the applicant to give the
Regulator any additional information the Regulator
reasonably requires to decide the application.
(4) The Regulator must decide the application as soon
as practicable after receiving it.
(5) If the Regulator decides to grant the application--
(a) the Regulator must give the applicant notice
of the decision; and
(b) the amendment or cancellation takes effect--
(i) when notice of the decision is given to
the applicant; or
(ii) if a later time is stated in the notice, at
the later time; and
(c) if the Regulator amended the exemption, the
Regulator must give the applicant a
replacement permit for the exemption as
amended.
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(6) If the Regulator decides not to amend or cancel the
exemption as sought by the applicant, the Regulator
must--
(a) give the applicant an information notice for
the decision; and
(b) return the permit for the exemption to the
applicant.
390 Amendment or cancellation of fatigue record
keeping exemption (permit) on Regulator's
initiative
(1) Each of the following is a ground for amending or
cancelling a fatigue record keeping exemption
(permit)--
(a) the exemption was granted because of a
document or representation that was--
(i) false or misleading; or
(ii) obtained or made in an improper way;
(b) the holder of the permit for the exemption has
contravened this Law or a corresponding
fatigue law;
(c) a driver of a fatigue-regulated heavy vehicle
to whom the exemption applies has
contravened this Law or a corresponding
fatigue law;
(d) since the exemption was granted, there has
been a change in the circumstances that were
relevant to the Regulator's decision to grant
the exemption and, had the changed
circumstances existed when the exemption
was granted, the Regulator would not have
granted the exemption, or would have granted
the exemption subject to conditions or
different conditions.
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(2) If the Regulator considers a ground exists to amend
or cancel a fatigue record keeping exemption
(permit) (the proposed action), the Regulator must
give the holder of the permit for the exemption a
notice--
(a) stating the proposed action; and
(b) stating the ground for the proposed action;
and
(c) outlining the facts and circumstances forming
the basis for the ground; and
(d) if the proposed action is to amend the
exemption (including a condition of the
exemption)--stating the proposed
amendment; and
(e) inviting the holder to make, within a stated
time of at least 14 days after the notice is
given to the holder, written representations
about why the proposed action should not be
taken.
(3) If, after considering all written representations
made under subsection (2)(e), the Regulator still
considers a ground exists to take the proposed
action, the Regulator may--
(a) if the proposed action was to amend the
exemption--amend the exemption, including,
for example, by imposing additional
conditions on the exemption, in a way that is
not substantially different from the proposed
action; or
(b) if the proposed action was to cancel the
exemption--
(i) amend the exemption, including, for
example, by imposing additional
conditions on the exemption; or
(ii) cancel the exemption.
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(4) The Regulator must give the holder an information
notice for the decision.
(5) The amendment or cancellation takes effect--
(a) when the information notice is given to the
holder; or
(b) if a later time is stated in the information
notice, at the later time.
391 Minor amendment of fatigue record keeping
exemption (permit)
The Regulator may, by notice given to the holder of
a permit for a fatigue record keeping exemption
(permit), amend the exemption in a minor
respect--
(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect
the holder's interests.
392 Return of permit
(1) If a person's fatigue record keeping exemption
(permit) is amended or cancelled, the Regulator
may, by notice given to the person, require the
person to return the person's permit for the
exemption to the Regulator.
(2) The person must comply with the notice within
7 days after the notice is given to the person or, if
a longer period is stated in the notice, within the
longer period.
Maximum penalty--$6000.
(3) If the exemption has been amended, the Regulator
must give the person a replacement permit for the
exemption as amended.
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393 Replacement of defaced etc. permit
(1) If a person's permit for a fatigue record keeping
exemption (permit) is defaced, destroyed, lost or
stolen, the person must, as soon as reasonably
practicable after becoming aware of the matter,
apply to the Regulator for a replacement permit.
Maximum penalty--$4000.
(2) 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.
(3) If the Regulator decides not to give a replacement
permit to the person, the Regulator must give the
person an information notice for the decision.
Subdivision 3 Exemptions by national
regulations
394 Exemptions from provisions of Division 3
(1) The national regulations may provide for the
exemption of record keepers for drivers of fatigue-
regulated heavy vehicles from the requirement to
comply with all or stated provisions of Division 3.
(2) Without limiting subsection (1), the national
regulations may prescribe matters about--
(a) one or more classes of record keepers for
which an exemption is to apply; and
(b) one or more classes of drivers of fatigue-
regulated heavy vehicles for which an
exemption is to apply; and
(c) conditions to which an exemption is to be
subject.
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Subdivision 4 Other provisions
395 Contravening condition of fatigue record
keeping exemption
A person must not contravene a condition of a
fatigue record keeping exemption.
Maximum penalty--$6000.
Division 9 Requirements about
odometers
396 Owner must maintain odometer
(1) The national regulations may require the fitting and
maintenance of an odometer to a fatigue-regulated
heavy vehicle.
(2) An owner of a fatigue-regulated heavy vehicle
required by the national regulations to be fitted
with an odometer must maintain the odometer in
accordance with the requirements prescribed by the
national regulations.
Maximum penalty--$6000.
(3) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
(4) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
397 Driver must report malfunctioning odometer
(1) This section applies if the driver of a fatigue-
regulated heavy vehicle becomes aware or has
reason to suspect an odometer fitted to the vehicle
is malfunctioning or has malfunctioned.
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(2) The driver must inform the following persons of
the matter within 2 business days--
(a) each owner of the vehicle;
(b) the driver's employer if the driver is an
employed driver;
(c) each operator of the vehicle.
Maximum penalty--$3000.
(3) Subsection (2) does not apply to the driver of a
fatigue-regulated heavy vehicle in relation to a
malfunction of an odometer if another driver of the
vehicle has complied with the subsection in relation
to the malfunction.
398 What owner must do if odometer
malfunctioning
(1) This section applies if an owner of a fatigue-
regulated heavy vehicle is informed under
section 397 of malfunctioning or suspected
malfunctioning of the vehicle's odometer.
(2) The owner must, as soon as reasonably practicable
after being informed of the matter, ensure the
odometer is examined and brought into working
order.
Maximum penalty--$6000.
(3) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
(4) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
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399 What employer or operator must do if odometer
malfunctioning
(1) This section applies if an employer of the driver of
a fatigue-regulated heavy vehicle or an operator of
a fatigue-regulated heavy vehicle is informed under
section 397 of malfunctioning or suspected
malfunctioning of the vehicle's odometer.
(2) The employer or operator must not drive, or permit
another person to drive, the fatigue-regulated heavy
vehicle unless the owner of the vehicle has
complied with section 398.
Maximum penalty--$6000.
(3) A person charged with an offence against
subsection (2) does not have the benefit of the
mistake of fact defence for the offence.
(4) However, in a proceeding for an offence against
subsection (2), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
Chapter 7 Intelligent Access
Program
Part 7.1 Preliminary
400 Main purposes of Ch 7
(1) The main purposes of this Chapter are--
(a) to ensure the integrity of systems used for
compliance with intelligent access conditions;
and
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(b) to provide for appropriate collection, keeping
and handling of intelligent access
information.
(2) The purpose mentioned in subsection (1)(a) is
achieved by--
(a) requiring particular entities to report relevant
contraventions for intelligent access vehicles;
and
(b) requiring particular entities to report
tampering or suspected tampering with, or
malfunctioning of, approved intelligent
transport systems; and
(c) prohibiting persons from tampering with
approved intelligent transport systems; and
(d) giving particular entities functions and
powers to audit the activities of intelligent
access service providers.
(3) The purpose mentioned in subsection (1)(b) is
achieved by--
(a) allowing entities to collect, hold, use and
disclose intelligent access information for
only limited purposes and subject to
restrictions; and
(b) requiring entities with monitoring or auditing
functions to ensure intelligent access
information collected is accurate, complete
and up to date; and
(c) requiring entities who collect intelligent
access information to protect the information
and destroy it when it is no longer required by
the entities; and
(d) providing for persons about whom an entity
holds personal information to have access to
the information and have it corrected in
appropriate circumstances.
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401 What the Intelligent Access Program is
The Intelligent Access Program is a program to
allow heavy vehicles to have access, or improved
access, to the road network in return for
monitoring, by an intelligent transport system, of
their compliance with stated access conditions.
402 Application of Ch 7
(1) This Chapter applies in relation to a heavy vehicle
for which a mass or dimension authority is in force
with the following conditions (intelligent access
conditions)--
(a) a condition about the areas or routes to which
the authority applies;
(b) conditions about the use of a heavy vehicle
on a road under the authority, including, for
example, conditions about one or more of the
following--
(i) the maximum permissible mass of the
vehicle, or the vehicle together with its
load, while it is being used on the road
under the authority;
(ii) the times when the vehicle may be used
on the road under the authority;
(iii) the maximum speed at which the vehicle
may be driven on the road under the
authority;
(c) conditions that--
(i) a heavy vehicle's compliance with the
conditions mentioned in paragraphs (a)
and (b) is monitored by an approved
intelligent transport system used by an
intelligent access service provider; and
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(ii) any noncompliance reports made by the
system are sent to the Regulator within a
stated period.
(2) This Chapter also applies in relation to a heavy
vehicle for which an HML authority is in force with
the conditions (also intelligent access conditions)
that--
(a) either or both of the following is monitored
by an approved intelligent transport system
used by an intelligent access service
provider--
(i) the roads on which the vehicle is used
under the higher mass limits;
(ii) the vehicle's compliance with conditions
about the use of a heavy vehicle on a
road under the higher mass limits,
including, for example, conditions about
one or more of the following--
(A) the times when the vehicle may be
driven on the road under the
higher mass limits;
(B) the maximum speed at which the
vehicle may be driven on the road
under the higher mass limits; and
(b) any noncompliance reports made by the
system are sent to the Regulator within a
stated period.
403 Definitions for Ch 7
In this Chapter--
approved intelligent transport system means an
intelligent transport system approved by TCA, for
the purposes of the Intelligent Access Program, for
use by an intelligent access service provider to
monitor the relevant monitoring matters for an
intelligent access vehicle.
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higher mass limits means the higher mass limits
applying under the mass requirements.
HML authority means a declaration made, or
permit granted, under the national regulations
allowing a heavy vehicle to be used on a road under
the higher mass limits.
intelligent access agreement means an agreement
between the operator of a heavy vehicle and an
intelligent access service provider under which the
service provider agrees to monitor, by using an
approved intelligent transport system, the relevant
monitoring matters for the vehicle.
intelligent access audit means the process of doing
1 or more of the following--
(a) reviewing intelligent access information held
by an intelligent access service provider to
assess whether the information is accurate,
complete and up to date;
(b) reviewing the processes by which intelligent
access information held by an intelligent
access service provider is generated,
recorded, stored, displayed, analysed,
transmitted and reported;
(c) examining how intelligent access information
held by an intelligent access service provider
is used and disclosed by the service provider;
(d) examining an approved intelligent transport
system.
intelligent access conditions has the meaning given
by section 402.
intelligent access information means information
generated, recorded, stored, displayed, analysed,
transmitted or reported by an approved intelligent
transport system for any purpose relating to the
Intelligent Access Program.
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Intelligent Access Program has the meaning given
in section 401.
intelligent access service provider means a person
certified by TCA as a service provider for
monitoring, by using an approved intelligent
transport system, the relevant monitoring matters
for an intelligent access vehicle.
intelligent access vehicle means a heavy vehicle--
(a) for which a mass or dimension exemption is
in force with intelligent access conditions
(as referred to in section 402(1)); or
(b) for which an HML authority is in force with
intelligent access conditions (as referred to in
section 402(2)).
law enforcement purposes means the purposes of
investigating or prosecuting an offence against an
Australian road law.
malfunction, in relation to an approved intelligent
transport system, means the system--
(a) ceases to work at all, or works only
intermittently; or
(b) does not perform one or more functions
required under the Intelligent Access
Program; or
(c) performs a function mentioned in
paragraph (b)--
(i) only intermittently; or
(ii) in a way that the results of it doing so
are inaccurate or unreliable, including
intermittently inaccurate or unreliable.
noncompliance report means a report made by an
approved intelligent transport system that reports
either or both of the following--
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(a) a relevant contravention for an intelligent
access vehicle;
(b) apparent tampering with, or malfunctioning
of, the system.
personal information means personal information
that is intelligent access information or otherwise
collected for the purposes of this Chapter.
Note--
See also definition personal information in section 5.
relevant contravention means--
(a) for an intelligent access vehicle used under a
mass or dimension exemption--the vehicle's
contravention of conditions mentioned in
section 402(1)(a) or (b) applying to the
vehicle; or
(b) for an intelligent access vehicle used under
the higher mass limits--
(i) the vehicle's use under the higher mass
limits on a road to which the higher
mass limits do not apply; or
(ii) the vehicle's contravention of a
condition about the use of the vehicle on
a road under the higher mass limits.
relevant monitoring matters means--
(a) for a heavy vehicle used under a mass or
dimension exemption--the vehicle's
compliance with conditions mentioned in
section 402(1)(a) or (b) applying to the
vehicle; or
(b) for a heavy vehicle used under the higher
mass limits--the matters mentioned in
section 402(2)(a)(i) or (ii) for the vehicle.
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tamper, with an approved intelligent transport
system, means engage in conduct that has the result
that--
(a) the system is changed; or
(b) the system is installed or used in a way that is
not in accordance with the conditions of its
approval by TCA; or
(c) any operating software that the system uses
internally is changed.
Part 7.2 Duties and obligations of
operators of intelligent
access vehicles
404 Offence to give false or misleading information
to intelligent access service provider
(1) The operator of an intelligent access vehicle
commits an offence if--
(a) the operator gives information to an
intelligent access service provider with whom
the operator has entered into an intelligent
access agreement for the vehicle; and
(b) the information is relevant to the use of the
vehicle; and
(c) the operator knows, or ought reasonably to
know, the information is false or misleading
in a material particular.
Maximum penalty--$10000.
Note--
See section 632 for the matters a court may consider when
deciding whether a person ought reasonably to have known
something.
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(2) Subsection (1) does not apply if the operator gives
the information in writing and, when giving the
information--
(a) tells the intelligent access service provider, to
the best of the operator's ability, how it is
false or misleading; and
(b) if the operator has, or can reasonably obtain,
the correct information--gives the correct
information in writing.
(3) Without limiting subsection (1)(b), information
about the intelligent access conditions applying to
an intelligent access vehicle is relevant to the use of
the vehicle.
(4) The operator of a heavy vehicle commits an
offence if--
(a) the operator gives information to an
intelligent access service provider; and
(b) the operator intends that the intelligent access
service provider will enter into an intelligent
access agreement with the operator in
reliance on the information; and
(c) the operator knows, or ought reasonably to
know, the information is false or misleading
in a material particular.
Maximum penalty--$10000.
Note--
See section 632 for the matters a court may consider when
deciding whether a person ought reasonably to have known
something.
(5) Subsection (4) does not apply if the operator gives
the information in writing and, when giving the
information--
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(a) tells the intelligent access service provider, to
the best of the operator's ability, how it is
false or misleading; and
(b) if the operator has, or can reasonably obtain,
the correct information--gives the correct
information in writing.
(6) In a proceeding for an offence against subsection
(1) or (4), it is enough for a charge to state that the
information given was `false or misleading' to the
operator's knowledge, without specifying whether
it was false or whether it was misleading.
405 Advising vehicle driver of collection of
information by intelligent access service
provider
(1) The operator of an intelligent access vehicle must
take all reasonable steps to give the vehicle's driver
the following information, before the vehicle
begins a journey--
(a) that the vehicle will be monitored by an
intelligent access service provider;
(b) that this Chapter provides for the collection of
information by the intelligent access service
provider;
(c) the information that will be collected by the
intelligent access service provider;
(d) the purposes for which the information will
be collected;
(e) the entities to whom the information collected
may be disclosed;
(f) that, under this Chapter, the driver has rights
of access to personal information or to have
personal information changed to ensure it is
accurate, complete and up to date;
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(g) how the rights mentioned in paragraph (f) can
be exercised;
(h) the name and address of the intelligent access
service provider.
Maximum penalty--$6000.
(2) The operator of an intelligent access vehicle is
taken to comply with subsection (1) if the
operator--
(a) gives the intelligent access vehicle's driver a
notice stating the information mentioned in
the subsection, including, for example, by
placing it in the vehicle's driving cabin in a
clearly visible position; or
(b) includes the information mentioned in the
subsection in a written contract of
employment between the operator and the
intelligent access vehicle's driver.
(3) The national regulations may prescribe--
(a) a form of notice that may be used under
subsection (2)(a); and
(b) for the purposes of subsection (2)(b), a
standard form of words that may be used as
part of a written contract of employment.
406 Reporting system malfunctions to Regulator
(1) If an operator of an intelligent access vehicle
becomes aware that a part of an approved
intelligent transport system fitted to the vehicle is
malfunctioning or has malfunctioned, the operator
must as soon as practicable report the matter to the
Regulator in person or by radio, telephone, fax or
email.
Maximum penalty--$6000.
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(2) The operator must keep, for at least 4 years, a
written record of a report of a malfunction under
subsection (1), containing the following
particulars--
(a) the type of malfunction to which the report
relates;
(b) the date and time the operator became aware
of the malfunction;
(c) the location of the vehicle when the operator
became aware of the malfunction;
(d) the date and time the report was made;
(e) the location of the vehicle when the report
was made;
(f) the way, in person or by radio, telephone, fax
or email, that the report was made;
(g) the name of the operator or, if someone else
made the report on behalf of the operator, the
name of the person who made the report;
(h) the name of the individual to whom the report
was made.
Maximum penalty--$6000.
407 Advising driver of driver's obligations about
reporting system malfunctions
(1) The operator of an intelligent access vehicle must
take all reasonable steps to tell the vehicle's driver
before the vehicle begins a journey--
(a) about the vehicle driver's obligation under
section 408; and
(b) how the vehicle's driver can make the reports
required by that obligation.
Maximum penalty--$6000.
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(2) The operator of an intelligent access vehicle is
taken to comply with subsection (1) if the
operator--
(a) gives the vehicle's driver a notice stating the
information mentioned in the subsection,
including, for example, by placing it in the
vehicle's driving cabin in a clearly visible
position; or
(b) includes the information mentioned in the
subsection in a written contract of
employment between the operator and the
vehicle's driver.
(3) The national regulations may prescribe--
(a) a form of notice that may be used under
subsection (2)(a); and
(b) for the purposes of subsection (2)(b), a
standard form of words that may be used as
part of a written contract of employment.
Part 7.3 Obligations of drivers of
intelligent access vehicles
408 Reporting system malfunctions to operator
(1) If the driver of an intelligent access vehicle
becomes aware that a part of an approved
intelligent transport system fitted to the vehicle is
malfunctioning or has malfunctioned, the driver
must as soon as practicable report the malfunction
to the vehicle's operator in person or by radio,
telephone, fax or email.
Maximum penalty--$6000.
(2) The driver must keep, for at least 4 years, a written
record of a report of a malfunction under
subsection (1), containing the following
particulars--
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(a) the type of malfunction to which the report
relates;
(b) the date and time the driver became aware of
the malfunction;
(c) the location of the vehicle when the driver
became aware of the malfunction;
(d) the date and time the report was made;
(e) the location of the vehicle when the report
was made;
(f) the way, in person or by radio, telephone, fax
or email, that the report was made;
(g) the driver's name;
(h) the name of the individual to whom the report
was made.
Maximum penalty--$6000.
(3) Subsection (1) does not apply to the driver of a
heavy vehicle in relation to a malfunction of a part
of an approved intelligent transport system if
another driver of the vehicle has complied with the
subsection in relation to the malfunction.
Part 7.4 Powers, duties and
obligations of intelligent
access service providers
409 Powers to collect and hold intelligent access
information
An intelligent access service provider may collect
and hold intelligent access information for
monitoring the relevant monitoring matters for an
intelligent access vehicle.
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410 Collecting intelligent access information
(1) An intelligent access service provider must take all
reasonable steps to ensure the intelligent access
information the service provider collects--
(a) is necessary for the purpose for which it is
collected or a directly related purpose; and
(b) is not excessive for that purpose; and
(c) is accurate, complete and up to date.
Maximum penalty--$6000.
(2) An intelligent access service provider must take all
reasonable steps to ensure the collection of
intelligent access information by the service
provider does not intrude to an unreasonable extent
on the personal privacy of any individual to whom
the information relates.
Maximum penalty--$6000.
411 Keeping records of intelligent access
information collected
(1) An intelligent access service provider must keep, in
a way complying with subsection (2), records of the
intelligent access information collected by the
service provider.
Maximum penalty--$6000.
(2) Records kept under subsection (1) must be
organised in a way that allows the records to be
conveniently and properly audited by an intelligent
access auditor.
412 Protecting intelligent access information
An intelligent access service provider must take all
reasonable steps to protect intelligent access
information collected by the service provider
against unauthorised access, unauthorised use,
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misuse, loss, modification or unauthorised
disclosure.
Maximum penalty--$6000.
413 Making individuals aware of personal
information held
(1) An intelligent access service provider must prepare,
and make publicly available, a document setting
out the service provider's policies on the
management of personal information held by the
service provider.
Examples of how a document is made publicly available--
· making a document available at the service provider's
office
· making a document available on the service provider's
website
Maximum penalty--$6000.
(2) If asked by an individual about whom an intelligent
access service provider holds personal information,
the service provider must, within 28 days after
receiving the request, give the individual the
following information if the service provider can
reasonably give the information--
(a) the kind of information the service provider
holds about the individual;
(b) the purpose for which the information is held;
(c) the way in which the service provider
collects, holds, uses and discloses the
information;
(d) the entities to whom the information may be
disclosed;
(e) that, under this Chapter, the individual has
rights of access to the information or to have
the information changed to ensure it is
accurate, complete and up to date;
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(f) how the rights mentioned in paragraph (e) can
be exercised.
Maximum penalty--$6000.
(3) Subsection (2) does not require an intelligent access
service provider to inform an individual that a
report under section 422 or 423 exists or has been
made.
414 Giving individuals access to their personal
information
(1) An intelligent access service provider must, if
asked by an individual about whom the service
provider holds personal information, give the
individual access to the information as soon as
practicable and without cost.
Maximum penalty--$6000.
(2) Subsection (1) does not require an intelligent access
service provider to give an individual access to a
report made under section 422 or 423 or
information showing that a report of that kind
exists or has been made.
415 Correcting errors etc.
(1) This section applies if an individual about whom an
intelligent access service provider holds personal
information asks the service provider to make a
particular change to the personal information.
(2) The intelligent access service provider must make
the change if the service provider is satisfied the
change is appropriate to ensure the personal
information is accurate, complete and up to date.
Maximum penalty--$6000.
(3) If the intelligent access service provider is not
satisfied as mentioned in subsection (2), the service
provider may refuse to comply with the request.
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(4) If, under subsection (3), an intelligent access
service provider refuses to comply with an
individual's request under subsection (1), the
service provider must--
(a) give the individual a notice stating--
(i) the service provider's reasons for
refusing; and
(ii) that the individual may ask the service
provider to attach to or include with the
personal information the individual's
request or a record of it; and
(b) if asked by the individual, attach to or include
with the personal information the request or a
record of the request.
Maximum penalty--$6000.
416 General restriction on use and disclosure of
intelligent access information
An intelligent access service provider must not use
or disclose intelligent access information other than
as required or authorised under this Law or another
law.
Maximum penalty--$6000.
417 Giving intelligent access auditor access to
records
An intelligent access service provider must give an
intelligent access auditor access to a record kept by
the service provider for the purposes of this
Chapter.
Maximum penalty--$6000.
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418 Powers to use and disclose intelligent access
information
(1) An intelligent access service provider may use
intelligent access information for monitoring the
relevant monitoring matters for an intelligent
access vehicle.
(2) An intelligent access service provider may disclose
intelligent access information to the Regulator for
compliance purposes.
(3) An intelligent access service provider may disclose
intelligent access information to--
(a) an authorised officer, other than a police
officer, for law enforcement purposes if so
authorised by a warrant issued under this
Law; or
(b) an authorised officer who is a police officer,
for law enforcement purposes if so authorised
by a warrant issued under this Law or another
law.
(4) If an intelligent access service provider discloses
intelligent access information to an authorised
officer or a police officer under this section, the
officer must not use the information, or disclose it
to any other person, unless--
(a) the officer believes the use or disclosure is
reasonably necessary for law enforcement
purposes; or
(b) the use or disclosure is otherwise authorised
under this Law or any other law.
(5) An intelligent access service provider may disclose
intelligent access information about an operator of
an intelligent access vehicle to the operator.
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(6) Subsection (5) does not apply to the following--
(a) a noncompliance report about an intelligent
access vehicle operated by the operator;
(b) information that a noncompliance report has
been made about an intelligent access vehicle
operated by the operator;
(c) information disclosed under the authority of a
warrant as referred to in subsection (3).
(7) An intelligent access service provider may, with the
written consent of an operator of an intelligent
access vehicle, disclose intelligent access
information about the operator to a person other
than the operator for any purpose if the
information--
(a) does not identify any individual other than the
operator; and
(b) contains nothing by which the identity of any
individual, other than the operator, can
reasonably be found out.
(8) An intelligent access service provider may use or
disclose intelligent access information that is
personal information with the written consent of the
individual to whom the personal information
relates.
(9) This section is subject to section 424.
419 Keeping record of use or disclosure of
intelligent access information
(1) If an intelligent access service provider uses or
discloses intelligent access information, the service
provider must, within 7 days after the use or
disclosure, make a record of the use or disclosure
that--
(a) contains the information mentioned in
subsection (2); and
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(b) is in a form that ensures the record is readily
accessible by an intelligent access auditor at
the place where it is kept.
Maximum penalty--$6000.
(2) The record must contain the following
information--
(a) the intelligent access service provider's name
or, if someone else used or disclosed the
intelligent access information on behalf of the
service provider, the name of the person who
used or disclosed the intelligent access
information;
(b) the date of the use or disclosure;
(c) for a use of intelligent access information by
or on behalf of the intelligent access service
provider, a brief description of how the
information was used;
(d) for a disclosure of intelligent access
information by or on behalf of the intelligent
access service provider, the entity to whom
the information was disclosed;
(e) the provision of this Law or another law the
intelligent access service provider believes
authorises the use or disclosure;
(f) if the use or disclosure is authorised only
under a particular document (including, for
example, a warrant, a certificate or a
consent), a copy of the document.
(3) An intelligent access service provider must keep a
record made under this section for at least 2 years.
Maximum penalty--$6000.
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420 Keeping noncompliance report etc.
(1) This section applies if a noncompliance report is
made by an approved intelligent transport system
operated by an intelligent access service provider.
(2) The intelligent access service provider must keep
the following for at least 4 years after the
noncompliance report is made--
(a) a copy of the report;
(b) the information relied on to make the report.
Example of information that could be relied on to make a
noncompliance report--
GPS information about a vehicle's position at a particular
time
Maximum penalty--$6000.
421 Destroying intelligent access information etc.
(1) An intelligent access service provider must take all
reasonable steps--
(a) to destroy intelligent access information
collected by the provider 1 year after the
information is collected by the service
provider; and
(b) to destroy a record the service provider is
required to keep under section 419 within
1 year after the service provider is no longer
required to keep the record under that section.
Maximum penalty--$6000.
(2) This section does not apply to a noncompliance
report or information the intelligent access service
provider is required to keep under section 420.
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422 Reporting relevant contraventions to Regulator
(1) This section applies if an intelligent access service
provider knows of a relevant contravention for an
intelligent access vehicle.
(2) The intelligent access service provider must, within
7 days, give the Regulator a report about the
relevant contravention in the approved form.
Maximum penalty--$6000.
(3) For the purposes of subsection (1), an intelligent
access service provider is taken to know of a
relevant contravention for an intelligent access
vehicle if the service provider's approved
intelligent transport system has detected the
contravention.
423 Reporting tampering or suspected tampering
with approved intelligent transport system
(1) If an intelligent access service provider knows, or
has reasonable grounds to suspect, an approved
intelligent transport system has been tampered
with, the service provider must report the matter to
the Regulator--
(a) within 7 days; and
(b) in the approved form.
Maximum penalty--$6000.
(2) If an intelligent access service provider knows, or
has reasonable grounds to suspect, a back-office
intelligent transport system has been tampered
with, the service provider must report the matter to
TCA--
(a) within 7 days; and
(b) in the approved form.
Maximum penalty--$6000.
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(3) For the purposes of subsections (1) and (2), an
intelligent access service provider does not know,
or have reasonable grounds to suspect, an approved
intelligent transport system or back-office
intelligent transport system has been tampered with
merely because the service provider has--
(a) accessed a report made by the system
(including a noncompliance report) indicating
that apparent tampering with the system has
been detected electronically; or
(b) analysed information generated by the
system.
(4) In this section--
back-office intelligent transport system means that
part of an approved intelligent transport system that
is not fitted, and is not intended to be fitted, to an
intelligent access vehicle.
424 Restriction on disclosing information about
tampering or suspected tampering with
approved intelligent transport system
(1) If an intelligent access service provider knows, or
has reasonable grounds to suspect, an approved
intelligent transport system has been tampered
with, the service provider must not disclose to any
entity (other than the Regulator and TCA) the
following--
(a) information that the service provider has that
knowledge or suspicion;
(b) information from which it could reasonably
be inferred that the service provider has that
knowledge or suspicion.
Maximum penalty--$6000.
(2) For the purposes of subsection (1), an intelligent
access service provider does not know, or have
reasonable grounds to suspect, an approved
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intelligent transport system has been tampered with
merely because the service provider has--
(a) accessed a report made by the system
(including a noncompliance report) indicating
that apparent tampering with the system has
been detected electronically; or
(b) analysed information generated by the
system.
(3) If an intelligent access service provider has made a
report to the Regulator under section 423(1) of
apparent or suspected tampering, the service
provider must not disclose to any entity (other than
the Regulator) the following--
(a) information that the report has been made;
(b) information from which it could reasonably
be inferred that the service provider has made
the report.
Maximum penalty--$6000.
(4) If an intelligent access service provider has made a
report to TCA under section 423(2) of apparent or
suspected tampering, the service provider must not
disclose to any entity (other than the Regulator and
TCA) the following--
(a) information that the report has been made;
(b) information from which it could reasonably
be inferred that the service provider has made
the report.
Maximum penalty--$6000.
(5) Subsection (1), (3) or (4) does not apply if the
disclosure of the information to which the
subsection applies is authorised under another law.
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Part 7.5 Functions, powers, duties
and obligations of TCA
425 Functions of TCA
(1) TCA has the following functions for the purposes
of this Chapter--
(a) approving, and cancelling the approval of,
intelligent transport systems for use by
intelligent access service providers to monitor
the relevant monitoring matters for an
intelligent access vehicle;
(b) managing the certification and audit regime
for the Intelligent Access Program;
(c) certifying and auditing, and cancelling the
certification of, intelligent access service
providers;
(d) engaging individuals, consultants and
contractors to assist TCA in the exercise of its
auditing activities.
(2) An approval, certification or engagement under
subsection (1) may be given or made
unconditionally or subject to stated conditions
imposed or varied from time to time.
426 Powers to collect and hold intelligent access
information
TCA may collect and hold intelligent access
information--
(a) for the exercise of its functions mentioned in
section 425; or
(b) for law enforcement purposes.
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427 Collecting intelligent access information
(1) TCA must take all reasonable steps to ensure the
intelligent access information it collects--
(a) is necessary for the purpose for which it is
collected or a directly related purpose; and
(b) is not excessive for that purpose; and
(c) is accurate, complete and up to date.
Maximum penalty--$6000.
(2) TCA must take all reasonable steps to ensure the
collection of intelligent access information by it
does not intrude to an unreasonable extent on the
personal privacy of any individual to whom the
information relates.
Maximum penalty--$6000.
428 Protecting intelligent access information
collected
TCA must take all reasonable steps to protect
intelligent access information collected by it
against unauthorised access, unauthorised use,
misuse, loss, modification or unauthorised
disclosure.
Maximum penalty--$6000.
429 Making individuals aware of personal
information held
(1) TCA must prepare, and make publicly available, a
document setting out its policies on the
management of personal information held by it.
Examples of how a document is made publicly available--
· making a document available at TCA's office
· making a document available on TCA's website
Maximum penalty--$6000.
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(2) If asked by an individual about whom TCA holds
personal information, TCA must, within 28 days
after receiving the request, give the individual the
following information if it can reasonably give the
information--
(a) the kind of information it holds about the
individual;
(b) the purpose for which the information is held;
(c) the way in which it collects, holds, uses and
discloses the information;
(d) the entities to whom the information may be
disclosed;
(e) that, under this Chapter, the individual has
rights of access to the information or to have
the information changed to ensure it is
accurate, complete and up to date;
(f) how the rights mentioned in paragraph (e) can
be exercised.
Maximum penalty--$6000.
(3) Subsection (2) does not require TCA to inform an
individual that a report under section 422, 423, 438,
451 or 452 exists or has been made.
430 Giving individuals access to their personal
information
(1) TCA must, if asked by an individual about whom
TCA holds personal information, give the
individual access to the information as soon as
practicable and without cost.
Maximum penalty--$6000.
(2) Subsection (1) does not require TCA to give an
individual access to a report made under section
422, 423, 438, 451 or 452 or information showing
that a report of that kind exists or has been made.
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431 Correcting errors etc.
(1) This section applies if an individual about whom
TCA holds personal information asks TCA to make
a particular change to the personal information.
(2) TCA must make the change if it is satisfied the
change is appropriate to ensure the personal
information is accurate, complete and up to date.
Maximum penalty--$6000.
(3) If TCA is not satisfied as mentioned in subsection
(2), it may refuse to comply with the request.
(4) If TCA refuses, under subsection (3), to comply
with an individual's request, it must give the
individual a notice stating--
(a) TCA's reasons for refusing; and
(b) that the individual may ask TCA to attach to
or include with the personal information the
individual's request or a record of it.
(5) If an individual referred to in subsection (4) asks
TCA to do so, it must attach to or include with the
personal information the request or a record of the
request.
Maximum penalty--$6000.
432 General restriction on use and disclosure of
intelligent access information
TCA must not use or disclose intelligent access
information other than as required or authorised
under this Law or another law.
Maximum penalty--$6000.
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433 Powers to use and disclose intelligent access
information
(1) TCA may use or disclose intelligent access
information--
(a) for the exercise of its functions mentioned in
section 425; or
(b) for law enforcement purposes.
(2) TCA may disclose intelligent access information to
the Regulator if it is satisfied the information is
relevant to the Regulator's functions under this
Law.
(3) TCA may disclose intelligent access information to
an intelligent access auditor if it is satisfied the
information is relevant to an intelligent access audit
the auditor is conducting.
(4) TCA may disclose intelligent access information
relating to a particular operator of an intelligent
access vehicle to the operator.
(5) TCA may, with the written consent of an operator
of an intelligent access vehicle, disclose intelligent
access information about the operator to a person
other than the operator for any purpose if the
information--
(a) does not identify any individual other than the
operator; and
(b) contains nothing by which the identity of any
individual, other than the operator, can
reasonably be found out.
(6) TCA may use or disclose intelligent access
information for research purposes if the
information contains no personal information.
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(7) TCA may use or disclose intelligent access
information that is personal information with the
written consent of the individual to whom the
personal information relates.
(8) This section is subject to section 439.
434 Restriction about intelligent access information
that may be used or disclosed
TCA must not use or disclose intelligent access
information unless TCA is reasonably satisfied,
having regard to the purpose for which the
information is to be used or disclosed, the
information is accurate, complete and up to date.
Maximum penalty--$6000.
435 Keeping record of use or disclosure of
intelligent access information
(1) If TCA uses or discloses intelligent access
information, TCA must, within 7 days after the use
or disclosure, make a record of the use or
disclosure that--
(a) contains the information mentioned in
subsection (2); and
(b) is in a form that ensures the record is readily
accessible by an authorised officer at the
place where it is kept.
Maximum penalty--$6000.
(2) The record must contain the following
information--
(a) the name of the person who used or disclosed
the intelligent access information on behalf of
TCA;
(b) the date of the use or disclosure;
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(c) for a use of intelligent access information by
or on behalf of TCA, a brief description of
how the information was used;
(d) for a disclosure of intelligent access
information by or on behalf of TCA, the
entity to whom the information was
disclosed;
(e) the provision of this Law or another law TCA
believes authorises the use or disclosure;
(f) if the use or disclosure is authorised only with
a particular document (including, for
example, a warrant, a certificate or a
consent), a copy of the document.
(3) TCA must keep a record made under this section
for at least 2 years.
Maximum penalty--$6000.
436 Keeping noncompliance reports
TCA must keep any noncompliance report received
by it for at least 4 years after its receipt.
Maximum penalty--$6000.
437 Destroying intelligent access information or
removing personal information from it
(1) TCA must take all reasonable steps to destroy
intelligent access information collected by it--
(a) generally--1 year after the information is
collected; or
(b) if, at the end of the period mentioned in
paragraph (a), the information is required for
law enforcement purposes--as soon as
practicable after the information ceases to be
required for law enforcement purposes.
Maximum penalty--$6000.
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(2) TCA is taken to have complied with subsection (1)
for intelligent access information if it permanently
removes anything by which an individual can be
identified from the information.
(3) This section does not apply to a noncompliance
report TCA is required to keep under section 436.
438 Reporting tampering or suspected tampering
with, or malfunction or suspected malfunction
of, approved intelligent transport system to
Regulator
(1) If TCA knows, or has reasonable grounds to
suspect, an approved intelligent transport system
has been tampered with or has malfunctioned, TCA
must report the matter to the Regulator within
7 days.
Maximum penalty--$6000.
(2) For the purposes of subsection (1), TCA does not
know, or have reasonable grounds to suspect, an
approved intelligent transport system has been
tampered with or has malfunctioned merely
because it has--
(a) accessed a report made by the system
(including a noncompliance report) indicating
that apparent tampering with, or
malfunctioning of, the system has been
detected electronically; or
(b) analysed information generated by the
system.
439 Restriction on disclosing information about
tampering or suspected tampering with
approved intelligent transport system
(1) If TCA knows, or has reasonable grounds to
suspect, an approved intelligent transport system
has been tampered with, TCA must not disclose the
following to any entity other than the Regulator--
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(a) information that TCA has that knowledge or
suspicion;
(b) information from which it could reasonably
be inferred that TCA has that knowledge or
suspicion.
Maximum penalty--$6000.
(2) For the purposes of subsection (1), TCA does not
know or have reasonable grounds to suspect an
approved intelligent transport system has been
tampered with merely because it has--
(a) accessed a report made by the system
(including a noncompliance report) indicating
that apparent tampering with the system has
been detected electronically; or
(b) analysed information generated by the
system.
(3) If TCA has made a report of apparent or suspected
tampering to the Regulator under section 438, TCA
must not disclose to any entity other than the
Regulator the following--
(a) information that the report has been made;
(b) information from which it could reasonably
be inferred that TCA has made the report.
Maximum penalty--$6000.
(4) Subsection (1) or (3) does not apply if the
disclosure of the information to which the
subsection applies is authorised under another law.
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Part 7.6 Powers, duties and
obligations of intelligent
access auditors
440 Powers to collect and hold intelligent access
information
An intelligent access auditor may collect and hold
intelligent access information for conducting an
intelligent access audit.
441 Collecting intelligent access information
(1) An intelligent access auditor must take all
reasonable steps to ensure intelligent access
information the auditor collects--
(a) is necessary for the purpose for which it is
collected or a directly related purpose; and
(b) is not excessive for that purpose; and
(c) is accurate, complete and up to date.
Maximum penalty--$6000.
(2) An intelligent access auditor must take all
reasonable steps to ensure the collection of
intelligent access information by the auditor does
not intrude to an unreasonable extent on the
personal privacy of any individual to whom the
information relates.
Maximum penalty--$6000.
442 Protecting intelligent access information
collected
An intelligent access auditor must take all
reasonable steps to protect intelligent access
information collected by the auditor against
unauthorised access, unauthorised use, misuse, loss,
modification or unauthorised disclosure.
Maximum penalty--$6000.
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443 Making individuals aware of personal
information held
(1) If asked by an individual about whom an intelligent
access auditor holds personal information, the
auditor must, within 28 days after receiving the
request, give the individual the following
information if the auditor can reasonably give the
information--
(a) the kind of information the auditor holds
about the individual;
(b) the purpose for which the information is held;
(c) the entities to whom the information may be
disclosed;
(d) that, under this Chapter, the individual has
rights of access to the information or to have
the information changed to ensure it is
accurate, complete and up to date;
(e) how the rights mentioned in paragraph (d)
can be exercised.
Maximum penalty--$6000.
(2) Subsection (1) does not require an intelligent access
auditor to inform an individual that a report under
section 422, 423, 438, 451 or 452 exists or has been
made.
444 Giving individuals access to their personal
information
(1) An intelligent access auditor must, if asked by an
individual about whom the auditor holds personal
information, give the individual access to the
information as soon as practicable and without cost.
Maximum penalty--$6000.
(2) Subsection (1) does not require an intelligent access
auditor to give an individual access to a report
made under section 422, 423, 438, 451 or 452.
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445 Correcting errors etc.
(1) This section applies if an individual about whom an
intelligent access auditor holds personal
information asks the auditor to make a particular
change to the personal information.
(2) The intelligent access auditor must make the
change if the auditor is satisfied the change is
appropriate to ensure the personal information is
accurate, complete and up to date.
Maximum penalty--$6000.
(3) If the intelligent access auditor is not satisfied as
mentioned in subsection (2), the auditor may refuse
to comply with the request.
(4) If, under subsection (3), an intelligent access
auditor refuses to comply with an individual's
request, the auditor must--
(a) give the individual a notice stating--
(i) the auditor's reasons for refusing; and
(ii) that the individual may ask the auditor
to attach to or include with the personal
information the individual's request or a
record of it; and
(b) if asked by the individual, attach to or include
with the personal information the request or a
record of the request.
Maximum penalty--$6000.
446 General restriction on use and disclosure of
intelligent access information
An intelligent access auditor must not use or
disclose intelligent access information other than as
required or authorised under this Law or another
law.
Maximum penalty--$6000.
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447 Powers to use and disclose intelligent access
information
(1) An intelligent access auditor may use and disclose
intelligent access information for--
(a) conducting an intelligent access audit; or
(b) reporting, to TCA, any of the following--
(i) a relevant contravention for an
intelligent access vehicle;
(ii) tampering or suspected tampering with
an approved intelligent transport system
by an operator of an intelligent access
vehicle;
(iii) tampering or suspected tampering with
an approved intelligent transport system
by an intelligent access service provider;
(iv) a failure by an intelligent access service
provider to comply with the service
provider's obligations under this
Chapter.
(2) An intelligent access auditor may disclose
intelligent access information to the Regulator if
the auditor is reasonably satisfied the information is
relevant to the Regulator's functions under this
Law.
(3) An intelligent access auditor may disclose
intelligent access information to TCA if the auditor
is reasonably satisfied the information is relevant to
TCA's functions under this Chapter.
(4) An intelligent access auditor may disclose
intelligent access information relating to a
particular operator of an intelligent access vehicle
to the operator.
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(5) An intelligent access auditor may use and disclose
intelligent access information that is personal
information with the written consent of the
individual to whom the personal information
relates.
(6) This section is subject to section 453.
448 Restriction about intelligent access information
that may be used or disclosed
An intelligent access auditor must not use or
disclose intelligent access information unless the
auditor is reasonably satisfied, having regard to the
purpose for which the information is to be used or
disclosed, the information is accurate, complete and
up to date.
Maximum penalty--$6000.
449 Keeping record of use or disclosure of
intelligent access information
(1) If an intelligent access auditor uses or discloses
intelligent access information, the auditor must,
within 7 days after the use or disclosure, make a
record of the use or disclosure that--
(a) contains the information mentioned in
subsection (2); and
(b) is in a form that ensures the record is readily
accessible by an authorised officer at the
place where it is kept.
Maximum penalty--$6000.
(2) The record must contain the following
information--
(a) the intelligent access auditor's name or, if
someone else used or disclosed the intelligent
access information on behalf of the auditor,
the name of the person who used or disclosed
the intelligent access information;
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(b) the date of the use or disclosure;
(c) for a use of intelligent access information by
or on behalf of the auditor, a brief description
of how the information was used;
(d) for a disclosure of intelligent access
information by or on behalf of the auditor, the
entity to whom the information was
disclosed;
(e) the provision of this Law or another law the
auditor believes authorises the use or
disclosure;
(f) if the use or disclosure is authorised only
under a particular document (including, for
example, a warrant, a certificate or a
consent), a copy of the document.
Maximum penalty--$6000.
(3) An intelligent access auditor must keep a record
made under this section for at least 2 years.
Maximum penalty--$6000.
450 Destroying intelligent access information or
removing personal information from it
(1) An intelligent access auditor must take all
reasonable steps to destroy intelligent access
information held by the auditor that is no longer
needed for an intelligent access audit conducted by
the auditor.
Maximum penalty--$6000.
(2) An intelligent access auditor is taken to have
complied with subsection (1) for intelligent access
information if the auditor permanently removes
anything by which an individual can be identified
from the information.
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451 Reporting contraventions by intelligent access
service providers to TCA
If an intelligent access auditor knows, or has
reasonable grounds to suspect, an intelligent access
service provider has contravened an obligation
under this Chapter, the auditor must, as soon as
practicable, report the matter to TCA.
Maximum penalty--$6000.
452 Reporting tampering or suspected tampering
with approved intelligent transport system to
Regulator or TCA
If an intelligent access auditor knows, or has
reasonable grounds to suspect, an approved
intelligent transport system has been tampered
with, the auditor must, as soon as practicable,
report the matter--
(a) for tampering or suspected tampering by an
operator of an intelligent access vehicle--to
the Regulator; or
(b) for tampering or suspected tampering by an
intelligent access service provider--to TCA.
Maximum penalty--$6000.
453 Restriction on disclosing information about
tampering or suspected tampering with
approved intelligent transport system
(1) If an intelligent access auditor knows, or has
reasonable grounds to suspect, an approved
intelligent transport system has been tampered
with, the auditor must not disclose the following to
any entity other than the Regulator or TCA--
(a) information that the auditor has that
knowledge or suspicion;
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(b) information from which it could reasonably
be inferred that the auditor has that
knowledge or suspicion.
Maximum penalty--$6000.
(2) If an intelligent access auditor has made a report to
the Regulator or TCA under section 452 of
apparent or suspected tampering, the auditor must
not disclose the following to any entity other than
the Regulator or TCA--
(a) information that the report has been made;
(b) information from which it could reasonably
be inferred that the auditor has made the
report.
Maximum penalty--$6000.
(3) Subsection (1) or (2) does not apply if the
disclosure of the information to which the
subsection applies is authorised under another law.
Part 7.7 Other provisions
454 Offence to tamper with approved intelligent
transport system
(1) A person commits an offence if--
(a) the person tampers with an approved
intelligent transport system; and
(b) the person does so with the intention of
causing the system to--
(i) fail to generate, record, store, display,
analyse, transmit or report intelligent
access information; or
(ii) fail to generate, record, store, display,
analyse, transmit or report intelligent
access information correctly.
Maximum penalty--$10000.
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(2) A person commits an offence if--
(a) the person tampers with an approved
intelligent transport system; and
(b) the person is negligent or reckless as to
whether, as a result of the tampering, the
system may--
(i) fail to generate, record, store, display,
analyse, transmit or report intelligent
access information; or
(ii) fail to generate, record, store, display,
analyse, transmit or report intelligent
access information correctly.
Maximum penalty--$8000.
(3) In this section--
fail--
(a) means does not perform as intended in
relation to accuracy, timeliness, reliability,
verifiability or any other performance
requirement or standard; and
(b) includes fail permanently, fail temporarily,
fail on a particular occasion and fail in
particular circumstances.
455 Regulator may issue intelligent access
identifiers
(1) The Regulator may issue a distinguishing number
for an intelligent access vehicle that indicates
the vehicle is an intelligent access vehicle
(an intelligent access identifier).
(2) The intelligent access identifier may consist of
numbers or letters or a combination of numbers and
letters.
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(3) If an intelligent access identifier is, or becomes,
known to an entity that has the ability to associate it
with a particular individual, the entity must treat the
identifier as personal information for the purposes
of this Chapter or a law relating to privacy.
Chapter 8 Accreditation
Part 8.1 Preliminary
456 Purpose of Ch 8
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 the aspects, that are more suited to the operators'
business operations.
457 Definitions for Ch 8
In this Chapter--
AFM fatigue management system, for an operator
of a fatigue-regulated heavy vehicle, means the
operator's management system for ensuring
compliance with the AFM standards and business
rules, including by--
(a) recording the name, current driver licence
number and contact details of each driver
who is currently operating under the
operator's AFM accreditation; and
(b) ensuring each of the drivers is in a fit state--
(i) to safely perform required duties; and
(ii) to meet any specified medical
requirements; and
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(c) ensuring each of the drivers--
(i) has been inducted into the system; and
(ii) has been informed of the AFM hours
applying under the operator's AFM
accreditation; and
(d) ensuring anyone employed in the operator's
business, who has responsibilities relating to
scheduling or managing the fatigue of the
drivers--
(i) has been inducted into the system; and
(ii) has been informed of the AFM hours
applying under the operator's AFM
accreditation.
AFM standards and business rules means the
standards and business rules for advanced fatigue
management approved by the responsible
Ministers.
Note--
A copy of the AFM standards and business rules is
published on the Regulator's website.
approved, by the responsible Ministers, means
approved by the responsible Ministers under
section 654.
approved auditor means an auditor of a class
approved by the responsible Ministers.
Note--
Details of the approved classes are published on the
Regulator's website.
BFM fatigue management system, for an operator
of a fatigue-regulated heavy vehicle, means the
operator's management system for ensuring
compliance with the BFM standards and business
rules, including by--
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(a) recording the name, current driver licence
number and contact details of each driver
who is currently operating under the
operator's BFM accreditation; and
(b) ensuring each of the drivers is in a fit state--
(i) to safely perform required duties; and
(ii) to meet any specified medical
requirements; and
(c) ensuring each of the drivers--
(i) has been inducted into the system; and
(ii) has been informed of the BFM hours;
and
(d) ensuring anyone employed in the operator's
business, who has responsibilities relating to
scheduling or managing the fatigue of the
drivers--
(i) has been inducted into the system; and
(ii) has been informed of the BFM hours.
BFM standards and business rules means the
standards and business rules for basic fatigue
management approved by the responsible
Ministers.
Note--
A copy of the BFM standards and business rules is
published on the Regulator's website.
maintenance management standards and business
rules means the standards and business rules for
heavy vehicle maintenance management approved
by the responsible Ministers.
Note--
A copy of the maintenance management standards and
business rules is published on the Regulator's website.
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maintenance management system, for an operator
of a heavy vehicle, means the operator's
management system for ensuring compliance with
the maintenance management standards and
business rules, including by--
(a) identifying each heavy vehicle currently
being operated in accordance with the
management system; and
(b) for each heavy vehicle being operated in
accordance with the management system,
having measures for the following--
(i) daily checks of the condition of the
vehicle, and its components and
equipment, for each day on which the
vehicle is driven on a road;
(ii) recording and reporting vehicle faults;
(iii) identifying, assessing and rectifying all
identified faults;
(iv) periodic maintenance of the vehicle; and
(c) keeping records relating to the operation of
the management system.
mass management standards and business rules
means the standards and business rules for heavy
vehicle mass management approved by the
responsible Ministers.
Note--
A copy of the mass management standards and business
rules is published on the Regulator's website.
mass management system, for an operator of a
heavy vehicle, means the operator's management
system for ensuring compliance with the mass
management standards and business rules,
including by--
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(a) identifying each heavy vehicle currently
being operated in accordance with the
management system; and
(b) for each heavy vehicle being operated in
accordance with the management system,
having measures for the following--
(i) weighing the vehicle and its load before
it starts a journey, or starts a part of a
journey after the vehicle's load is
changed;
(ii) recording each measurement made
under subparagraph (i) in a form that
allows the record to be readily available
for inspection by an approved auditor;
(iii) ensuring the vehicle's suspension
system accords with the specifications
given by its manufacturer or a qualified
mechanical engineer; and
(c) keeping records relating to the operation of
the management system.
relevant management system means--
(a) for maintenance management accreditation--
a maintenance management system; or
(b) for mass management accreditation--a mass
management system; or
(c) for BFM accreditation--a BFM fatigue
management system; or
(d) for AFM accreditation--an AFM fatigue
management system.
relevant standards and business rules means--
(a) for maintenance management accreditation--
the maintenance management standards and
business rules; or
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(b) for mass management accreditation--the
mass management standards and business
rules; or
(c) for BFM accreditation--the BFM standards
and business rules; or
(d) for AFM accreditation--the AFM standards
and business rules.
Part 8.2 Grant of heavy vehicle
accreditation
458 Regulator's power to grant heavy vehicle
accreditation
The Regulator may grant an operator of a heavy
vehicle--
(a) an accreditation exempting, for a period of
not more than 3 years, the vehicle from the
requirement to be inspected before renewal of
registration of the vehicle under this Law
(maintenance management accreditation);
or
(b) an accreditation allowing, for a period of not
more than 3 years, the vehicle to operate at
concessional mass limits or higher mass
limits applying under the mass requirements
(mass management accreditation); or
(c) an accreditation allowing, for a period of not
more than 3 years, drivers of the vehicle to
operate under BFM hours (BFM
accreditation); or
(d) an accreditation allowing, for a period of not
more than 3 years, drivers of the vehicle to
operate under AFM hours (AFM
accreditation).
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459 Application for heavy vehicle accreditation
(1) An operator of a heavy vehicle may apply to the
Regulator for heavy vehicle accreditation under this
Law.
(2) The application must be--
(a) in the approved form; and
(b) accompanied by the following--
(i) a statement by the applicant that the
applicant has a relevant management
system for ensuring compliance with the
relevant standards and business rules;
(ii) a statement from an approved auditor
that the auditor considers the applicant's
relevant management system will ensure
compliance with the relevant standards
and business rules;
(iii) any other information required for the
application under the relevant standards
and business rules;
(iv) the prescribed fee for the application.
(3) The application must also be accompanied by a
declaration by the applicant, declared to be made
after having taken all reasonable steps to find out
the following information, of the applicant's
knowledge of that information--
(a) whether, in the 5 years immediately before
the application was made, the applicant or an
associate of the applicant has been convicted
of any of the following offences and, if so,
details of the conviction--
(i) an offence against this Law or a
previous corresponding law;
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(ii) an offence involving fraud or dishonesty
punishable on conviction by
imprisonment of 6 months or more,
whether committed in this jurisdiction or
elsewhere;
(b) whether the applicant or an associate of the
applicant has had the applicant's or
associate's accreditation under this Chapter
or a previous corresponding law, amended,
suspended or cancelled under this Chapter or
that law and, if so, details of the amendment,
suspension or cancellation.
(4) Subsection (3)(b) does not require the applicant to
declare information about an amendment,
suspension or cancellation of an accreditation that
happened because of a conviction if the operator is
not required to declare the information about the
conviction under subsection (3)(a).
(5) The Regulator may, by notice given to the
applicant, require the applicant--
(a) to give the Regulator any additional
information the Regulator reasonably requires
to decide the application; or
(b) to verify by statutory declaration any
information relating to the application given
to the Regulator.
460 Obtaining criminal history information about
applicant
(1) The Regulator may, by notice, ask an applicant for
heavy vehicle accreditation under this Law for
written consent for the Regulator to obtain the
applicant's prescribed criminal history.
(2) If the applicant does not consent, or withdraws his
or her consent, to the Regulator obtaining the
applicant's prescribed criminal history, the
application is taken to have been withdrawn.
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(3) If the applicant gives written consent to the
Regulator obtaining the applicant's prescribed
criminal history, the Regulator may ask a police
commissioner for a written report about the
applicant's prescribed criminal history.
(4) The request may include the following--
(a) the applicant's name and any other name the
Regulator believes the applicant may use or
may have used;
(b) the applicant's date and place of birth, gender
and address.
(5) The police commissioner must give the requested
report to the Regulator.
(6) In this section--
prescribed criminal history, of an applicant for
heavy vehicle accreditation under this Law, means
information about each conviction of the applicant,
within the 5 years immediately before the
application was made, of--
(a) an offence against this Law or a previous
corresponding law; or
(b) an offence involving fraud or dishonesty
punishable on conviction by imprisonment of
6 months or more, whether committed in this
jurisdiction or elsewhere.
461 Restriction on grant of heavy vehicle
accreditation
(1) The Regulator may grant an applicant heavy
vehicle accreditation only if the Regulator is
satisfied--
(a) the applicant has in place a relevant
management system for operations to be
carried out under the accreditation; and
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(b) the applicant is able to comply with this Law,
having regard to--
(i) the information provided to the
Regulator under this Part; and
(ii) the matters to which the Regulator
may or must have regard under
subsection (4); and
(c) the applicant is a suitable person to be
granted the accreditation, having regard to--
(i) the information provided to the
Regulator under this Part; and
(ii) the matters to which the Regulator
may or must have regard under
subsection (4); and
(d) for AFM accreditation--
(i) the driver fatigue management practices
stated in the applicant's AFM fatigue
management system, together with the
maximum work times and minimum rest
times that are to apply to drivers
operating under the accreditation would,
if complied with, safely manage the risk
of driver fatigue; and
(ii) the applicant and drivers operating
under the accreditation are likely to
follow the driver fatigue management
practices consistently and effectively;
and
(iii) the drivers operating under the
accreditation are likely to comply with
the maximum work times and minimum
rest times that are to apply to the drivers
under the accreditation.
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(2) In considering the maximum work times and
minimum rest times that are to apply to drivers
operating under an AFM accreditation, the
Regulator--
(a) must be satisfied the maximum work times
and minimum rest times appear to provide a
safe balance between work, rest, risk
management and fatigue countermeasures;
and
(b) must not set maximum work times and
minimum rest times the Regulator considers
would be unsafe, having regard to the
applicant's AFM fatigue management system
and any relevant body of fatigue knowledge.
(3) The Regulator may grant an AFM accreditation
setting maximum work times and minimum rest
times different to the maximum work times and
minimum rest times sought by the applicant.
(4) In deciding an application for a heavy vehicle
accreditation, the Regulator--
(a) may have regard to anything the Regulator
considers relevant including--
(i) the results of any audits carried out on
the applicant's relevant management
system; and
(ii) for assessing an applicant's AFM
fatigue management system--any
relevant body of fatigue knowledge; and
(b) must have regard to the approved guidelines
for granting heavy vehicle accreditations
under this Law.
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462 Conditions of heavy vehicle accreditation
(1) A heavy vehicle accreditation granted under this
Law is subject to the condition that the operator
who holds the accreditation must comply with the
relevant standards and business rules.
(2) A heavy vehicle accreditation granted under this
Law may be subject to any other conditions the
Regulator considers appropriate, including, for
example--
(a) a condition that a named person can not
operate under the operator's accreditation for
a stated period; and
(b) a condition that a named employee or
associate of the operator can not be involved
in the operator's relevant management system
at all or for a stated period; and
(c) a condition requiring additional records to be
kept, and audits to be performed, to ensure
practices (for example, driver fatigue
management practices) applying under the
accreditation are followed consistently and
effectively.
463 Period for which heavy vehicle accreditation
applies
(1) A heavy vehicle accreditation granted under this
Law applies for the period stated in the
accreditation certificate for the accreditation.
(2) The period may be less than the period sought by
the applicant for the heavy vehicle accreditation.
464 Accreditation certificate for heavy vehicle
accreditation etc.
(1) If the Regulator grants a heavy vehicle
accreditation under this Law to an operator of a
heavy vehicle, the Regulator must give the
operator--
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(a) an accreditation certificate in the approved
form; and
(b) if prescribed circumstances apply to the grant
of the accreditation--an information notice
for the prescribed circumstances.
(2) An accreditation certificate for a heavy vehicle
accreditation must state the following--
(a) the name of the operator who has been
granted the accreditation;
(b) the number identifying the accreditation;
(c) any conditions imposed on the accreditation
by the Regulator;
(d) for an AFM accreditation, the maximum
work times and minimum rest times that
apply to drivers of fatigue-regulated heavy
vehicles operating under the accreditation;
(e) the period for which the accreditation applies.
(3) In this section--
prescribed circumstances, for a heavy vehicle
accreditation, means the Regulator has--
(a) imposed a condition on the accreditation that
was not sought by the applicant for the
accreditation; or
(b) granted the accreditation for a period less
than the period of not more than 3 years
sought by the applicant for the accreditation;
or
(c) for AFM accreditation, granted the AFM
accreditation setting maximum work times
and minimum rest times different to the
maximum work times and minimum rest
times sought by the applicant for the
accreditation.
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465 Refusal of application for heavy vehicle
accreditation
If the Regulator refuses an application for heavy
vehicle accreditation, the Regulator must give the
applicant an information notice for the decision to
refuse the application.
466 Accreditation labels for maintenance
management accreditation and mass
management accreditation
(1) If the Regulator grants maintenance management
accreditation or mass management accreditation to
an operator of a heavy vehicle, the Regulator must
give the operator an accreditation label for each
relevant vehicle for the accreditation.
(2) If the operator amends the relevant management
system to identify a new relevant vehicle for the
accreditation--
(a) the operator may ask the Regulator for an
accreditation label for the new relevant
vehicle; and
(b) the Regulator must give the accreditation
label to the operator.
(3) In this section--
accreditation label, for a relevant vehicle for a
maintenance management accreditation or mass
management accreditation, means a label stating
the number identifying the accreditation for
attaching to the vehicle.
relevant vehicle, for a maintenance management
accreditation or mass management accreditation,
means a vehicle identified in the relevant
management system as currently being operated in
accordance with the management system.
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Part 8.3 Operating under heavy
vehicle accreditation
467 Compliance with conditions of BFM
accreditation or AFM accreditation
The holder of a BFM accreditation or AFM
accreditation must comply with the conditions of
the accreditation.
Maximum penalty--$6000.
468 Driver must carry accreditation details
(1) The driver of a heavy vehicle who is operating
under a heavy vehicle accreditation must keep in
the driver's possession--
(a) a copy of the accreditation certificate for the
accreditation; and
(b) a document, signed by the operator of the
vehicle who holds the accreditation, stating
that the driver--
(i) is operating under the operator's heavy
vehicle accreditation; and
(ii) has been inducted into the operator's
relevant management system; and
(iii) meets the requirements relating to
drivers operating under the operator's
heavy vehicle accreditation (if any); and
(c) for a driver operating under AFM
accreditation, a document stating the AFM
hours applying under the accreditation.
Example for the purposes of paragraph (c)--
The driver records a statement of the AFM hours
applying under the AFM accreditation in the
driver's electronic work diary (which is a
document).
Maximum penalty--$3000.
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(2) Subsection (1) applies even if the driver and
operator are the same person.
(3) If an offence is committed against subsection (1)
involving the driver of a heavy vehicle, the operator
of the vehicle is taken to have committed an
offence against this subsection.
Maximum penalty--$3000.
(4) A person charged with an offence against
subsection (3) does not have the benefit of the
mistake of fact defence for the offence.
(5) However, in a proceeding for an offence against
subsection (3), the person charged has the benefit
of the reasonable steps defence for the offence.
Note--
See Divisions 1 and 2 of Part 10.4 for the reasonable steps
defence.
(6) In a proceeding for an offence against
subsection (3)--
(a) it is irrelevant whether or not the driver has
been or will be proceeded against, or
convicted of, the offence against
subsection (1); and
(b) evidence a court has convicted the driver of
the offence against subsection (1) is evidence
the offence happened at the time and place,
and in the circumstances, stated in the charge
resulting in the conviction; and
(c) evidence of details stated in an infringement
notice issued for the offence against
subsection (1) is evidence the offence
happened at the time and place, and in the
circumstances, stated in the infringement
notice.
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469 Driver must return particular documents if
stops operating under accreditation etc.
(1) This section applies if--
(a) the driver of a heavy vehicle is operating
under a heavy vehicle accreditation; and
(b) the operator of the heavy vehicle has given
the driver a document for the purposes of
section 468(1); and
(c) the driver--
(i) stops operating under the operator's
heavy vehicle accreditation; or
(ii) no longer meets the requirements
relating to drivers operating under the
operator's heavy vehicle accreditation
(if any).
(2) The driver must return the document to the operator
as soon as reasonably practicable.
Maximum penalty--$4000.
470 General requirements applying to operator with
heavy vehicle accreditation
(1) This section applies to an operator of a heavy
vehicle who holds a heavy vehicle accreditation.
(2) The operator must ensure each driver who operates
under the accreditation--
(a) is inducted into the operator's relevant
management system; and
(b) at all times, meets the requirements relating
to drivers operating under the accreditation
(if any).
Maximum penalty--$6000.
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(3) If the accreditation is AFM accreditation, the
operator must also ensure each driver who operates
under the accreditation is informed of the AFM
hours applying under the accreditation.
Maximum penalty--$6000.
(4) The operator must keep--
(a) the accreditation certificate for the operator's
heavy vehicle accreditation; and
(b) if the operator's heavy vehicle accreditation
is AFM accreditation or BFM accreditation--
a current list of drivers operating under the
operator's accreditation; and
(c) if the operator's heavy vehicle accreditation
is mass management accreditation or
maintenance management accreditation--a
current list of heavy vehicles to which the
operator's accreditation relates; and
(d) records demonstrating the operator has
complied with--
(i) if the operator's heavy vehicle
accreditation is AFM accreditation--
subsections (2) and (3); or
(ii) otherwise--subsection (2).
Maximum penalty--$6000.
(5) The operator must keep a document required to be
kept under subsection (4) for the following
period--
(a) for an accreditation certificate--while the
operator's heavy vehicle accreditation is
current;
(b) for each list made under subsection (4)(b)
or (c)--at least 3 years after the list is made;
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(c) for each record made under subsection
(4)(d)--at least 3 years after the record is
made.
Maximum penalty--$6000.
(6) The operator must keep a document required to be
kept under subsection (4) in a way that ensures it
is--
(a) readily accessible by an authorised officer at
the place where the document is kept; and
(b) reasonably capable of being understood by
the authorised officer; and
(c) capable of being used as evidence.
Maximum penalty--$3000.
(7) The Regulator may, by notice, require the operator
to give the Regulator, in the form and within the
time required by the Regulator--
(a) a copy of the list mentioned in subsection
(4)(b) or (c); and
(b) details of any change to the list.
(8) The operator must comply with a requirement made
under subsection (7), unless the operator has a
reasonable excuse.
Maximum penalty--$3000.
(9) Subsections (4) to (6) do not apply in relation to--
(a) an accreditation certificate given to the
Regulator under section 472 or 476, unless
the Regulator has returned it or given the
operator a replacement accreditation
certificate; or
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(b) an accreditation certificate that has been
defaced, destroyed, lost or stolen, unless the
Regulator has given the operator a
replacement accreditation certificate.
Note--
See section 477 for the requirement to apply to the
Regulator for a replacement accreditation certificate for a
defaced, destroyed, lost or stolen accreditation certificate.
471 Operator must give notice of amendment,
suspension or ending of heavy vehicle
accreditation
(1) This section applies if--
(a) an operator of a heavy vehicle holds a heavy
vehicle accreditation; and
(b) the accreditation is amended or suspended, or
the operator ceases to hold the accreditation.
(2) The operator must as soon as practicable after the
amendment, suspension or cessation happens give
notice of the amendment, suspension or cessation
to any driver of, or scheduler for, a heavy vehicle
who may be affected by the amendment,
suspension or cessation.
Maximum penalty--$6000.
(3) If the driver of a heavy vehicle is given a notice
under subsection (2), the driver must, as soon as
reasonably practicable, return to the operator any
document relevant to the notice given to the driver
by the operator for the purposes of section 468(1).
Maximum penalty--$4000.
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Part 8.4 Amendment or
cancellation of heavy
vehicle accreditation
472 Amendment or cancellation of heavy vehicle
accreditation on application
(1) A person may apply to the Regulator for an
amendment or cancellation of the person's heavy
vehicle accreditation granted under this Law.
(2) The application must--
(a) be in writing; and
(b) be accompanied by the prescribed fee for the
application; and
(c) if the application is for an amendment--state
clearly the amendment sought and the reasons
for the amendment; and
(d) be accompanied by the accreditation
certificate for the accreditation.
(3) The Regulator may, by notice given to the
applicant, require the applicant to give the
Regulator any additional information the Regulator
reasonably requires to decide the application.
(4) The Regulator must decide the application as soon
as practicable after receiving it.
(5) If the Regulator decides to grant the application--
(a) the Regulator must give the applicant notice
of the decision; and
(b) the amendment or cancellation takes effect--
(i) when notice of the decision is given to
the applicant; or
(ii) if a later time is stated in the notice, at
the later time; and
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(c) if the Regulator amended the accreditation,
the Regulator must give the applicant a
replacement accreditation certificate for the
accreditation as amended.
(6) If the Regulator decides not to amend or cancel the
accreditation as sought by the applicant, the
Regulator must--
(a) give the applicant an information notice for
the decision; and
(b) return the accreditation certificate to the
applicant.
473 Amendment, suspension or cancellation of
heavy vehicle accreditation on Regulator's
initiative
(1) Each of the following is a ground for amending,
suspending or cancelling a heavy vehicle
accreditation granted under this Law--
(a) the accreditation was granted because of a
document or representation that was--
(i) false or misleading; or
(ii) obtained or made in an improper way;
(b) the holder of the accreditation has
contravened a condition of the accreditation;
(c) the holder of the accreditation, or an associate
of the holder, has been convicted of--
(i) an offence against this Law or a
previous corresponding law; or
(ii) an offence involving fraud or dishonesty
punishable on conviction by
imprisonment of 6 months or more,
whether committed in this jurisdiction or
elsewhere;
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(d) since the accreditation was granted, there has
been a change in the circumstances that were
relevant to the Regulator's decision to grant
the accreditation and, had the changed
circumstances existed when the accreditation
was granted, the Regulator would not have
granted the accreditation, or would have
granted the accreditation subject to conditions
or different conditions;
(e) for a maintenance management accreditation
or mass management accreditation--
(i) public safety has been endangered, or is
likely to be endangered, because of the
accreditation; or
(ii) road infrastructure has been damaged, or
is likely to be damaged, because of the
accreditation;
(f) for a BFM accreditation or AFM
accreditation--public safety has been
endangered, or is likely to be endangered,
because of the accreditation;
(g) the Regulator considers it necessary in the
public interest.
(2) If the Regulator considers a ground exists to
amend, suspend or cancel a heavy vehicle
accreditation granted under this Law (the proposed
action), the Regulator must give the holder of the
accreditation a notice--
(a) stating the proposed action; and
(b) stating the ground for the proposed action;
and
(c) outlining the facts and circumstances forming
the basis for the ground; and
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(d) if the proposed action is to amend the
accreditation (including a condition of the
accreditation)--stating the proposed
amendment; and
(e) if the proposed action is to suspend the
accreditation--stating the proposed
suspension period; and
(f) inviting the holder to make, within a stated
time of at least 14 days after the notice is
given to the holder, written representations
about why the proposed action should not be
taken.
(3) If, after considering all written representations
made under subsection (2)(f), the Regulator still
considers a ground exists to take the proposed
action, the Regulator may--
(a) if the proposed action was to amend the
accreditation--amend the accreditation,
including, for example, by imposing
additional conditions on the accreditation, in
a way that is not substantially different from
the proposed action; or
(b) if the proposed action was to suspend the
accreditation--suspend the accreditation for
no longer than the period stated in the notice;
or
(c) if the proposed action was to cancel the
accreditation--
(i) amend the accreditation, including, for
example, by imposing additional
conditions on the accreditation; or
(ii) suspend the accreditation for a period; or
(iii) cancel the accreditation.
(4) The Regulator must give the holder an information
notice for the decision.
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(5) The decision takes effect--
(a) when the information notice is given to the
holder; or
(b) if a later time is stated in the information
notice, at the later time.
474 Immediate suspension of heavy vehicle
accreditation
(1) This section applies if the Regulator considers--
(a) a ground exists to suspend or cancel a heavy
vehicle accreditation granted under this Law;
and
(b) it is necessary to suspend the accreditation
immediately to prevent or minimise serious
harm to public safety.
(2) The Regulator may, by notice given to the holder,
immediately suspend the heavy vehicle
accreditation until the earliest of the following--
(a) the Regulator gives the holder an information
notice under section 473(4) and the decision
takes effect under section 473(5);
(b) the Regulator cancels the suspension;
(c) the end of 56 days after the day the notice is
given to the holder.
(3) This section applies despite sections 472 and 473.
475 Minor amendment of heavy vehicle
accreditation
The Regulator may, by notice given to the holder of
a heavy vehicle accreditation granted under this
Law, amend the accreditation in a minor respect--
(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect
the holder's interests.
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Part 8.5 Other provisions about
heavy vehicle
accreditations
476 Return of accreditation certificate
(1) If a person's heavy vehicle accreditation granted
under this Law is amended, suspended or cancelled,
the Regulator may, by notice, require the person to
return the person's accreditation certificate to the
Regulator.
(2) The person must comply with the notice within
7 days after the notice is given to the person or, if
a longer period is stated in the notice, within the
longer period.
Maximum penalty--$6000.
(3) If the heavy vehicle accreditation has been
amended, the Regulator must give the person a
replacement accreditation certificate for the
accreditation as amended.
(4) If the heavy vehicle accreditation has been
suspended, the Regulator must give the person the
accreditation certificate for the accreditation or, if
the accreditation has also been amended, a
replacement accreditation certificate for the
accreditation as amended, as soon as practicable
after the suspension ends.
477 Replacement of defaced etc. accreditation
certificate
(1) If a person's accreditation certificate for a heavy
vehicle accreditation granted under this Law is
defaced, destroyed, lost or stolen, the person must,
as soon as reasonably practicable after becoming
aware of the matter, apply to the Regulator for a
replacement accreditation certificate.
Maximum penalty--$4000.
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Note--
See section 470 for the requirement to keep an
accreditation certificate for a heavy vehicle accreditation
while the accreditation is current.
(2) If the Regulator is satisfied the accreditation
certificate has been defaced, destroyed, lost or
stolen, the Regulator must give the person a
replacement accreditation certificate as soon as
practicable.
(3) If the Regulator decides not to give the person a
replacement accreditation certificate, the Regulator
must give the person an information notice for the
decision.
478 Offences relating to auditors
(1) A person must not falsely represent that the person
is an approved auditor.
Maximum penalty--$10000.
(2) An approved auditor must not falsely represent that
the person is an auditor of a particular approved
class.
Maximum penalty--$10000.
(3) An approved auditor must not falsely represent that
the person has audited an operator's relevant
management system.
Maximum penalty--$10000.
(4) A person must not falsely represent the opinion of
an approved auditor in relation to an operator's
relevant management system.
Maximum penalty--$10000.
(5) In this section--
approved class means a class of auditors approved
by the responsible Ministers under section 654.
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Chapter 9 Enforcement
Part 9.1 General matters about
authorised officers
Division 1 Functions
479 Functions of authorised officers
An authorised officer has the following functions
under this Law--
(a) to monitor, investigate and enforce
compliance with this Law;
(b) to monitor or investigate whether an occasion
has arisen for the exercise of powers under
this Law;
(c) to facilitate the exercise of powers under this
Law.
Division 2 Appointment
480 Application of Div 2
This Division does not apply to an authorised
officer who is a police officer.
481 Appointment and qualifications
(1) The Regulator may, by instrument, appoint any of
the following individuals as an authorised officer
for the purposes of this Law--
(a) an individual who is--
(i) a member of the staff of the Regulator;
or
(ii) a person whose services are being used
under an arrangement under section 685;
or
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(iii) a consultant or contractor engaged by
the Regulator under section 686;
(b) an employee of the State;
(c) an employee of a local government authority;
(d) an individual of a class prescribed by the
national regulations.
(2) However, the Regulator may appoint a person as an
authorised officer only if the Regulator is satisfied
the person is qualified for appointment because the
person has the necessary expertise or experience.
482 Appointment conditions and limit on powers
(1) An authorised officer holds office on any
conditions stated in--
(a) the officer's instrument of appointment; or
(b) a notice signed by the Regulator given to the
officer; or
(c) the national regulations.
(2) The instrument of appointment, a signed notice
given to the authorised officer, or the national
regulations may limit the officer's powers.
483 When office ends
(1) The office of a person as an authorised officer ends
if any of the following happens--
(a) the term of office stated in a condition of
office ends;
(b) under another condition of office, the office
ends;
(c) the officer's resignation under section 484
takes effect.
(2) Subsection (1) does not limit the ways an
authorised officer may cease to hold office.
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(3) In this section--
condition of office means a condition under which
the authorised officer holds office.
484 Resignation
(1) An authorised officer may resign by signed notice
given to the Regulator.
(2) However, if holding office as an authorised officer
is a condition of the officer holding another office,
the officer may not resign as an authorised officer
without resigning from the other office.
Division 3 Identity cards
485 Application of Div 3
This Division does not apply to an authorised
officer who is a police officer.
486 Issue of identity card
(1) The Regulator must issue an identity card to each
authorised officer.
(2) The identity card must--
(a) contain a recent photo of the authorised
officer; and
(b) contain a copy of the authorised officer's
signature; and
(c) identify the person as an authorised officer
for the purposes of this Law; and
(d) state the identification number allocated to
the authorised officer; and
(e) state an expiry date for the card.
(3) This section does not prevent the issue of a single
identity card to a person for the purposes of this
Law and other purposes.
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487 Production or display of identity card
(1) In exercising a power in relation to a person in the
person's presence, an authorised officer must--
(a) produce the officer's identity card for the
person's inspection before exercising the
power; or
(b) have the identity card displayed so it is
clearly visible to the person when exercising
the power.
(2) However, if it is not practicable to comply with
subsection (1), the authorised officer must produce
the identity card for the person's inspection at the
first reasonable opportunity.
(3) For the purposes of subsection (1), an authorised
officer does not exercise a power in relation to a
person only because the officer has entered a place
as mentioned in section 495(1)(b) or 497(1)(b)
or (d).
Note--
Sections 505 and 510 include provisions requiring the
production of identification by an authorised officer in
circumstances mentioned in those sections.
488 Return of identity card
If the office of a person as an authorised officer
ends, the person must return the person's identity
card to the Regulator within 21 days after the office
ends unless the person has a reasonable excuse.
Maximum penalty--$3000.
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Division 4 Miscellaneous provisions
489 References to exercise of powers
If--
(a) a provision of this Chapter refers to the
exercise of a power by an authorised officer;
and
(b) there is no reference to a specific power;
the reference is to the exercise of all or any
authorised officers' powers under this Chapter or a
warrant, to the extent the powers are relevant.
490 Reference to document includes reference to
reproduction from electronic document
A reference in this Chapter to a document includes
a reference to an image or writing--
(a) produced from an electronic document; or
(b) not yet produced, but reasonably capable of
being produced from an electronic document,
with or without the aid of another article or
device.
491 Use of force against persons
(1) This Chapter does not authorise--
(a) an authorised officer (or a person assisting or
otherwise acting under the direction or
authority of an authorised officer) to use force
against a person in the exercise or purported
exercise of a function under this Chapter; or
(b) without limiting paragraph (a), a warrant to be
issued under this Chapter authorising a
person to use force against a person.
(2) However, subsection (1) does not affect the powers
of a police officer to the extent (if any) the police
officer is authorised to use force against a person
under the Application Act of this jurisdiction.
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(3) This section has effect despite any other provision
of this Chapter in relation to the use of force
against a person, even if the other provision is
expressed as authorising the use of force for the
purposes of the provision.
492 Use of force against property
(1) A power to use force against property under
another section of this Chapter in the exercise or
purported exercise of a function in relation to this
jurisdiction cannot be exercised by an authorised
officer (or a person assisting or otherwise acting
under the direction or authority of the authorised
officer) unless--
(a) the authorised officer is a police officer; or
(b) exercise of the power to use force is
authorised under the Application Act of this
jurisdiction.
(2) Subsection (1)--
(a) has effect despite any other section of this
Chapter in relation to the use of force against
property, even if the other section is
expressed as authorising the use of force for
the purposes of the section; but
(b) does not affect any prohibition or restriction
on a power to use force set out in the other
section.
(3) Subsections (1) and (2) apply to a power to use
force against property whether the power is express
or implied.
(4) Despite subsections (1) to (3) and any other section
of this Chapter, this Chapter does not preclude the
inclusion of additional circumstances in the
Application Act of this jurisdiction in which an
authorised officer, whether or not a police officer,
may use force against property in the exercise or
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purported exercise of a function under this Chapter
in relation to this jurisdiction.
493 Exercise of functions in relation to light
vehicles
(1) This Chapter does not authorise the exercise of any
function under this Chapter in relation to a vehicle
that is not a heavy vehicle.
(2) However, a function under this Chapter may be
exercised in relation to--
(a) a pilot vehicle or escort vehicle; or
(b) a vehicle to the extent (if any) that it is
reasonably necessary for the purpose of
determining if the vehicle is or is not a heavy
vehicle.
Part 9.2 Powers in relation to
places
Division 1 Preliminary
494 Definitions for Pt 9.2
(1) In this Part--
place of business, of a responsible person for a
heavy vehicle, means a place--
(a) at or from which the person carries on a
business; or
(b) occupied by the person in connection with a
business carried on by the person; or
(c) that is the registered office of the person if the
person is a body corporate.
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relevant place--
(a) means--
(i) a place of business of a responsible
person for a heavy vehicle; or
(ii) the relevant garage address of a heavy
vehicle; or
(iii) the base of the driver or drivers of a
heavy vehicle; or
(iv) a place where records required to be
kept under this Law or a heavy vehicle
accreditation are located or are required
to be located under this Law or a heavy
vehicle accreditation; but
(b) does not include a place or part of a place
mentioned in paragraph (a) used
predominantly for residential purposes.
(2) For the purposes of this Part, a place or part of a
place is taken not to be used for residential
purposes merely because temporary or casual
sleeping or other accommodation is provided there
for drivers of heavy vehicles.
Division 2 Entry of relevant places for
monitoring purposes
495 Power to enter relevant place
(1) An authorised officer may, for monitoring
purposes, enter a relevant place if--
(a) an occupier of the place consents under
Division 4 to the entry and section 503 has
been complied with for the occupier; or
(b) the place is--
(i) open for carrying on a business; or
(ii) otherwise open for entry; or
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(iii) required to be open for inspection under
this Law.
(2) If the power to enter arose only because an
occupier of the place consented to the entry, the
power is subject to any conditions of the consent
and ceases if the consent is withdrawn.
(3) Subsection (1)(b) does not authorise an authorised
officer, without the occupier's consent or a warrant,
to enter a relevant place that is unattended, unless
the officer reasonably believes the place is
attended.
(4) If an authorised officer enters a place reasonably
believing the place is attended, the officer must
leave the place immediately after finding the place
is or appears to be unattended.
(5) An authorised officer may open unlocked doors and
other unlocked panels and things at a place for
gaining entry to the place under subsection (1).
(6) This section does not authorise an authorised
officer to use force for exercising a power under
this section.
496 General powers after entering relevant place
(1) If an authorised officer enters a relevant place
under this Division, the officer may, for monitoring
purposes, do any of the following (each a general
power)--
(a) inspect any part of the place or a vehicle at
the place;
(b) inspect a relevant document at the place;
(c) copy, or take an extract from, a relevant
document at the place;
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(d) produce an image or writing at the place from
an electronic relevant document at the place
or, if it is not practicable to produce the
image or writing at the place, take a thing
containing the electronic relevant document
to another place to produce the image or
writing;
(e) look for, and inspect, a relevant device at the
place;
(f) take an extract from a relevant device at the
place, including, for example--
(i) by taking a copy of, or an extract from, a
readout or other data obtained from the
device; or
(ii) by accessing and downloading
information from the device;
(g) exercise a power in relation to a heavy
vehicle at the place that the authorised officer
may exercise under section 520;
(h) take to, into or onto the place and use any
persons, equipment, materials, vehicles or
other things the officer reasonably requires
for exercising the officer's powers under this
section.
(2) The authorised officer may take a necessary step to
allow the exercise of a general power, including,
for example--
(a) open an unlocked door or an unlocked panel
or thing at the place; and
(b) move but not take away anything that is not
locked up or sealed.
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(3) For exercising a power under subsection (1)(c)
or (f), the authorised officer may use photocopying
equipment at the place free of charge.
Note--
See also sections 543 and 544 for use of particular
equipment at a place, or in a vehicle, entered under this
Chapter.
(4) If the authorised officer takes from the place a thing
containing an electronic relevant document to
produce an image or writing from the document,
the image or writing must be produced, and the
thing must be returned to the place, as soon as
practicable.
(5) However, if the authorised officer entered the place
under section 495(1)(a), the officer's powers under
this section are subject to the conditions of the
consent.
(6) This section does not authorise an authorised
officer to use force for exercising a power under
this section.
(7) In this section--
electronic relevant document means a relevant
document that is an electronic document.
relevant device means a device relating to a heavy
vehicle and required to be installed, used or
maintained under this Law or a heavy vehicle
accreditation.
Example of a device that may be a relevant device--
a weighing, measuring, recording or monitoring device
relevant document means a document relating to a
heavy vehicle and required to be kept under this
Law or a heavy vehicle accreditation.
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Division 3 Entry of places for
investigation purposes
497 General power to enter places
(1) An authorised officer may, for investigation
purposes, enter a place if--
(a) an occupier of the place consents under
Division 4 to the entry and section 503 has
been complied with for the occupier; or
(b) it is a public place and the entry is made
when it is open to the public; or
(c) the entry is authorised under a warrant and, if
there is an occupier at the place, section 510
has been complied with for the occupier; or
(d) it is a relevant place and is--
(i) open for carrying on a business; or
(ii) otherwise open for entry; or
(iii) required to be open for inspection under
this Law; or
(e) the entry is authorised under section 498
or 499.
(2) The authorised officer may exercise powers under
this section at the place even if entry to the place
was originally effected under Division 2 for
monitoring purposes.
(3) If the power to enter arose only because an
occupier of the place consented to the entry, the
power is subject to any conditions of the consent
and ceases if the consent is withdrawn.
(4) If the power to enter is under a warrant--
(a) the authorised officer may use force that is
reasonably necessary for gaining entry to the
place; and
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(b) the power to enter is subject to the terms of
the warrant.
(5) Subsection (1)(d) does not authorise an authorised
officer, without the occupier's consent or a warrant,
to enter--
(a) a place that is unattended, unless the officer
reasonably believes the place is attended; or
(b) a place, or part of a place, used
predominantly for residential purposes.
(6) If an authorised officer enters a place reasonably
believing the place is attended, the officer must
leave the place immediately after finding the place
is or appears to be unattended.
(7) An authorised officer may open unlocked doors and
other unlocked panels and things at a place for
gaining entry to the place under subsection (1).
(8) This section does not authorise an authorised
officer to use force for exercising a power under
this section unless the power is exercised under a
warrant.
498 Power to enter a place if evidence suspected to
be at the place
(1) This section applies if an authorised officer
reasonably believes that--
(a) either--
(i) a heavy vehicle is or has been at a place;
or
(ii) transport documentation or journey
documentation is at a place; and
(b) there may be at the place evidence of an
offence against this Law that may be
concealed or destroyed unless the place is
immediately entered and searched.
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(2) The authorised officer may enter the place if it is--
(a) open for carrying on a business; or
(b) otherwise open for entry; or
(c) required to be open for inspection under this
Law.
(3) Subsection (2) does not authorise an authorised
officer to enter--
(a) a place that is unattended, unless the officer
reasonably believes the place is attended; or
(b) a place, or part of a place, used
predominantly for residential purposes.
(4) If an authorised officer enters a place reasonably
believing the place is attended, the officer must
leave the place immediately after finding the place
is or appears to be unattended.
(5) An authorised officer may open unlocked doors and
other unlocked panels and things at a place for
gaining entry to the place under subsection (2).
(6) An authorised officer may use force that is
reasonably necessary for gaining entry to a place
mentioned in subsection (2)(c).
(7) This section does not authorise an authorised
officer to use force for exercising a power under
this section other than as provided by
subsection (6).
499 Power to enter particular places if incident
involving death, injury or damage
(1) An authorised officer, without an occupier's
consent or a warrant, may enter a place at any time
if the officer reasonably believes--
(a) an incident involving the death of, or injury
to, a person or damage to property involves or
may have involved a heavy vehicle; and
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(b) the incident may have involved an offence
against this Law; and
(c) there is a connection between the place and
the heavy vehicle; and
(d) there may be at the place evidence of the
offence mentioned in paragraph (b) that may
be concealed or destroyed unless the place is
immediately entered and searched.
(2) For the purposes of subsection (1), there is a
connection between a place and a heavy vehicle
if--
(a) the place is the vehicle's garage address or,
if the vehicle is a combination, the garage
address of a heavy vehicle in the
combination; or
(b) the vehicle is, or within the past 72 hours has
been, located at the place; or
(c) the place is, or may be, otherwise directly or
indirectly connected with the vehicle or any
part of its equipment or load.
(3) This section does not authorise an authorised
officer to enter a place in relation to an incident that
involves the death, or injury to, a person unless the
authorised officer is a police officer.
(4) This section does not authorise an authorised
officer, without the occupier's consent or a warrant,
to enter--
(a) a place that is unattended, unless the officer
reasonably believes the place is attended; or
(b) a place, or part of a place, used
predominantly for residential purposes.
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(5) If an authorised officer enters a place without the
occupier's consent or a warrant, reasonably
believing the place is attended, the officer must
leave the place immediately after finding the place
is or appears to be unattended.
(6) An authorised officer may open unlocked doors and
other unlocked panels and things at a place for
gaining entry to the place under subsection (1).
(7) This section does not authorise an authorised
officer to use force for exercising a power under
this section.
500 General powers after entering a place
(1) If an authorised officer enters a place under section
497(1), the officer may, for investigation purposes,
do any of the following (each a general power)--
(a) search any part of the place or a vehicle at the
place, including--
(i) searching any part of the place or a
vehicle at the place for evidence of an
offence against this Law; and
(ii) searching any part of the place or a
vehicle at the place for a document,
device or other thing relating to a heavy
vehicle or any part of its equipment or
load;
(b) inspect, examine or film any part of the place
or anything at the place;
(c) take a thing, or a sample of or from a thing, at
the place for examination;
(d) place an identifying mark in or on anything at
the place;
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(e) take an extract from a document, device or
other thing at the place, including, for
example--
(i) by taking a copy of, or an extract from, a
readout or other data obtained from a
device or other thing at the place; or
(ii) by accessing and downloading
information from a device or other thing
at the place;
Example of device or other thing--
an intelligent transport system
(f) copy a document at the place, or take a
document at the place to another place to
copy it;
Examples of documents for the purposes of
paragraphs (e) and (f)--
· a document required to be kept at the place
under this Law or a heavy vehicle accreditation
· transport documentation
· journey documentation
· a document the authorised officer reasonably
believes provides, or may provide on further
inspection, evidence of an offence against this
Law
(g) produce an image or writing at the place from
an electronic document at the place or, if it is
not practicable to produce the image or
writing at the place, take a thing containing
the electronic document to another place to
produce the image or writing;
(h) exercise a power in relation to a heavy
vehicle at the place that the authorised officer
may exercise under Part 9.3;
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(i) take to, into or onto the place and use any
persons, equipment, materials, vehicles or
other things the officer reasonably requires
for exercising the officer's powers under this
section.
Note--
The term public place is defined in section 5 as a place or
part of a place--
(a) that the public is entitled to use, is open to members of
the public or is used by the public, whether or not on
payment of money; or
(b) the occupier of which allows members of the public to
enter, whether or not on payment of money.
Accordingly, the term `public place' does not include an
office area or an area behind a reception counter, unless the
public have access to the area as provided in the definition.
(2) The authorised officer may take a necessary step to
allow the exercise of a general power, including,
for example--
(a) open an unlocked door or an unlocked panel
or thing at the place; and
(b) move anything that is not locked up or sealed;
and
(c) if the authorised officer entered the place
under section 497(1)(c), use the force that is
reasonably necessary for the exercise of the
power.
(3) If an authorised officer takes, or authorises another
person to take, a thing or sample for examination
under subsection (1)(c), the officer must--
(a) give a receipt for the thing or sample to--
(i) the person in possession of the thing or
sample or the thing from which the
sample was taken; or
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(ii) the person in charge of the place from
which the thing or sample was taken;
and
(b) at the end of 6 months after the thing or
sample was taken, return it to the person
who appears to be an owner of it, a person
to whom a receipt was given under
paragraph (a) for it, or a person in charge of
the place from which it was taken, unless the
thing or sample--
(i) has been seized under section 549; or
(ii) does not have any intrinsic value.
Note--
See section 561 for what happens if a thing or sample can
not be returned to its owner or the owner can not be found.
(4) However, if for any reason it is not practicable to
comply with subsection (3)(a), the authorised
officer must leave the receipt at the place in a
conspicuous position and in a reasonably secure
way.
(5) For exercising a power under subsection (1)(f), the
authorised officer may use photocopying
equipment at the place free of charge.
Note--
See also sections 543 and 544 for use of particular
equipment at a place, or in a vehicle, entered under this
Chapter.
(6) If the authorised officer takes a document from the
place to copy it, the document must be copied and
returned to the place as soon as practicable.
(7) If the authorised officer takes from the place a thing
containing an electronic document to produce an
image or writing from the document, the image or
writing must be produced, and the thing must be
returned to the place, as soon as practicable.
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(8) However--
(a) if the authorised officer entered the place
under section 497(1)(a), the officer's powers
under this section are subject to the
conditions of the consent; and
(b) if the authorised officer entered the place
under section 497(1)(c), the officer's powers
under this section are subject to the terms of
the warrant.
(9) Without limiting section 497(2), the authorised
officer may exercise powers under this section at
the place even if entry to the place was originally
effected under Division 2 for monitoring purposes.
(10) The power to search under this section does not
include a power to search a person.
Division 4 Procedure for entry by consent
501 Application of Div 4
This Division applies if an authorised officer
intends to ask an occupier of a place for consent to
the officer or another authorised officer entering the
place under section 495(1)(a) or 497(1)(a).
502 Incidental entry to ask for access
(1) For the purpose of asking the occupier for the
consent, the authorised officer may, without the
occupier's consent or a warrant--
(a) enter land around a building or other structure
at the place to an extent that is reasonable to
contact the occupier; or
(b) enter part of the place the officer reasonably
believes members of the public ordinarily are
allowed to enter when they wish to contact
the occupier.
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(2) The authorised officer must not enter land or a part
of a place under subsection (1) if the officer knows
or ought reasonably to know the place is
unattended.
(3) If the authorised officer enters land or a part of a
place under subsection (1), the officer must leave it
immediately after finding the place is or appears to
be unattended.
503 Matters authorised officer must tell occupier
Before asking for the consent, the authorised
officer must give a reasonable explanation to the
occupier about the following--
(a) the purpose of the entry;
(b) that the occupier is not required to consent;
(c) that the consent may be given subject to
conditions and may be withdrawn at any
time;
(d) any other powers intended to be exercised to
achieve the purpose of the entry.
504 Consent acknowledgement
(1) If the consent is given, the authorised officer may
ask the occupier to sign an acknowledgement of the
consent.
(2) The acknowledgement must state--
(a) the purpose of the entry, including the powers
intended to be exercised to achieve the
purpose of the entry; and
(b) that the following have been explained to the
occupier--
(i) the purpose of the entry, including the
powers intended to be exercised to
achieve the purpose of the entry;
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(ii) that the occupier is not required to
consent; and
(c) that the occupier gives the authorised officer
consent to enter the place and exercise the
powers; and
(d) the time and day the consent was given; and
(e) any conditions of the consent.
(3) If the occupier signs the acknowledgement, the
authorised officer must immediately give a copy to
the occupier.
(4) However, if it is impractical for the authorised
officer to give the occupier a copy of the
acknowledgement immediately, the officer must
give the copy as soon as practicable.
(5) If the acknowledgment states some but not all the
powers exercised or intended to be exercised to
achieve the purpose of the entry--
(a) the acknowledgment is not necessarily invalid
merely because of the omission; but
(b) if an issue arises in a proceeding about the
validity of the acknowledgment--the court
has a discretion to decide if the
acknowledgment is invalid on the ground
that the exercise of the power was of such
significance in the particular circumstances
as to have warranted its inclusion in the
acknowledgment.
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(6) If--
(a) an issue arises in a proceeding about whether
the occupier consented to the entry; and
(b) an acknowledgement complying with
subsection (2) for the entry is not produced in
evidence;
the onus of proof is on the person relying on the
lawfulness of the entry to prove the occupier
consented.
505 Procedure for entry with consent
(1) This section applies if an authorised officer is
intending to ask the occupier for consent to enter a
place under this Division (otherwise than under
section 502).
(2) Before asking for consent, the authorised officer
must identify himself or herself to a person who is
an occupier of the place and is present by
producing--
(a) for an authorised officer who is a police
officer--an identity card or other document
evidencing the officer's appointment as a
police officer; or
(b) for an authorised officer who is not a police
officer--the identity card issued to the officer
under this Law or another document
evidencing the officer's appointment as an
authorised officer.
(3) Subsection (2)(a) does not apply to a police officer
in uniform.
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Division 5 Entry under warrant
506 Application for warrant
(1) An authorised officer may apply to an authorised
warrant official for a warrant for a place.
(2) The authorised officer must prepare a written
application stating the grounds on which the
warrant is sought.
(3) The written application must be sworn.
(4) The authorised warrant official may refuse to
consider the application until the authorised officer
gives the official all the information the official
requires about the application in the way the
official requires.
Example--
The authorised warrant official may require additional
information supporting the written application to be given
by statutory declaration.
507 Issue of warrant
(1) The authorised warrant official may issue the
warrant for the place only if the official is satisfied
there are reasonable grounds for suspecting there is
at the place, or will be at the place within the next
72 hours, a particular thing or activity that may
provide evidence of an offence against this Law.
(2) The warrant must state the following--
(a) the place to which the warrant applies;
(b) that a stated authorised officer or any
authorised officer may, with necessary and
reasonable help and force--
(i) enter the place and any other place
necessary for entry to the place; and
(ii) exercise the authorised officer's powers;
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(c) particulars of the offence that the authorised
warrant official considers appropriate in the
circumstances;
(d) the name of the person suspected of having
committed the offence unless the name is
unknown or the authorised warrant official
considers it inappropriate to state the name;
(e) the evidence that may be seized under the
warrant;
(f) the hours of the day or night when the place
may be entered;
(g) the authorised warrant official's name;
(h) the date and time of the warrant's issue;
(i) the day, within 14 days after the warrant's
issue, the warrant ends.
508 Application by electronic communication and
duplicate warrant
(1) An application under section 506 may be made by
radio, telephone, fax, email, video conferencing or
another form of electronic communication if the
authorised officer reasonably believes it necessary
because of--
(a) urgent circumstances; or
(b) other special circumstances, including, for
example, the officer's remote location.
(2) The application--
(a) may not be made before the authorised officer
prepares the written application under
section 506(2); but
(b) may be made before the written application is
sworn.
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(3) The authorised warrant official may issue the
warrant (the original warrant) only if the official is
satisfied--
(a) it was necessary to make the application
under subsection (1); and
(b) the way the application was made under
subsection (1) was appropriate.
(4) After the authorised warrant official issues the
original warrant--
(a) if there is a reasonably practicable way of
immediately giving a copy of the warrant to
the authorised officer, for example, by
sending a copy by fax or email, the official
must immediately give a copy of the warrant
to the officer; or
(b) otherwise--
(i) the official must tell the authorised
officer the information mentioned in
section 507(2); and
(ii) the authorised officer must complete a
form of warrant, including by writing on
it the information mentioned in section
507(2) provided by the official.
(5) The copy of the warrant mentioned in subsection
(4)(a), or the form of warrant completed under
subsection (4)(b) (in either case the duplicate
warrant), is a duplicate of, and as effectual as, the
original warrant.
(6) The authorised officer must, at the first reasonable
opportunity, send to the authorised warrant
official--
(a) the written application complying with
section 506(2) and (3); and
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(b) if the officer completed a form of warrant
under subsection (4)(b)--the completed form
of warrant.
(7) The authorised warrant official must keep the
original warrant and, on receiving the documents
under subsection (6)--
(a) attach the documents to the original warrant;
and
(b) file the original warrant and documents in the
relevant court.
(8) Despite subsection (5), if--
(a) an issue arises in a proceeding about whether
an exercise of a power was authorised by a
warrant issued under this section; and
(b) the original warrant is not produced in
evidence;
the onus of proof is on the person relying on the
lawfulness of the exercise of the power to prove a
warrant authorised the exercise of the power.
(9) This section does not limit section 506.
509 Defect in relation to a warrant
(1) A warrant is not invalidated by a defect in--
(a) the warrant; or
(b) compliance with this Division;
unless the defect affects the substance of the
warrant in a material particular.
(2) In this section--
warrant includes a duplicate warrant mentioned in
section 508(5).
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510 Procedure for entry under warrant
(1) This section applies if an authorised officer is
intending to enter a place under a warrant issued
under this Division.
(2) Before entering the place, the authorised officer
must do or make a reasonable attempt to do the
following things--
(a) identify himself or herself to a person who is
an occupier of the place and is present by
producing--
(i) for an authorised officer who is a police
officer--an identity card or other
document evidencing the officer's
appointment as a police officer; or
(ii) for an authorised officer who is not a
police officer--the identity card issued
to the officer under this Law or another
document evidencing the officer's
appointment as an authorised officer;
(b) give the person a copy of the warrant;
(c) tell the person the officer is permitted by the
warrant to enter the place;
(d) give the person an opportunity to allow the
officer immediate entry to the place without
using force.
(3) However, the authorised officer need not comply
with subsection (2) if the officer reasonably
believes that entry to the place is required to ensure
the execution of the warrant is not frustrated.
(4) Subsection (2)(a)(i) does not apply to a police
officer in uniform.
(5) In this section--
warrant includes a duplicate warrant mentioned in
section 508(5).
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Part 9.3 Powers in relation to heavy
vehicles
Division 1 Preliminary
511 Application of Pt 9.3
Unless otherwise stated in this Part, this Part
applies to a heavy vehicle--
(a) on a road; or
(b) in or at a public place; or
(c) in or at a place owned or occupied by a road
authority or by another public authority; or
(d) in or at a place entered by an authorised
officer under Part 9.2.
512 Persons who are drivers for this Part
In this Part, a reference to the driver of a heavy
vehicle includes a reference to a person in, on or in
the vicinity of the vehicle whom an authorised
officer present at the scene reasonably believes is
the vehicle's driver.
Division 2 Stopping, not moving or
not interfering with heavy
vehicle etc.
513 Direction to stop heavy vehicle to enable
exercise of other powers
(1) To enable an authorised officer to exercise a power
under this Law, the officer may direct the driver of
a heavy vehicle to stop the vehicle.
Example--
An authorised officer may direct the driver of a heavy
vehicle to stop the vehicle so that the authorised officer can
enter and inspect it under section 520 or enter and search it
under section 521.
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(2) The direction may be given orally or in any other
way, including, for example, by way of a sign or
electronic or other signal.
(3) The direction may require the heavy vehicle to
be--
(a) stopped immediately; or
(b) stopped at a place indicated by the authorised
officer as the nearest place for it to be safely
stopped.
(4) A person given a direction under subsection (1)
must comply with the direction, unless the person
has a reasonable excuse.
Maximum penalty--$6000.
(5) When the heavy vehicle stops, the authorised
officer must as soon as practicable produce for the
inspection of the vehicle's driver--
(a) for an authorised officer who is a police
officer--an identity card or other document
evidencing the officer's appointment as a
police officer; or
(b) for an authorised officer who is not a police
officer--the identity card issued to the officer
under this Law or another document
evidencing the officer's appointment as an
authorised officer.
(6) Subsection (5)(a) does not apply to a police officer
in uniform.
(7) In this section--
stop a heavy vehicle means to stop the vehicle and
keep it stationary.
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514 Direction not to move or interfere with heavy
vehicle etc. to enable exercise of other powers
(1) To enable an authorised officer to exercise a power
under this Law, the officer may direct the driver of
a heavy vehicle or any other person not to--
(a) move the vehicle; or
(b) interfere with the vehicle or any equipment in
it; or
(c) interfere with the vehicle's load.
(2) The direction may be given orally or in any other
way, including, for example, by way of a sign or
electronic or other signal.
(3) A person given a direction under subsection (1)
must comply with the direction, unless the person
has a reasonable excuse.
Maximum penalty--$6000.
Division 3 Moving heavy vehicle
515 Definition for Div 3
In this Division--
unattended, for a heavy vehicle, means--
(a) there is no-one in or near the vehicle who
appears to be its driver; or
(b) there is a person in or near the vehicle who
appears to be its driver but the person is--
(i) unwilling, or not qualified or fit, to drive
the vehicle; or
(ii) not authorised by the operator of the
vehicle to drive it; or
(iii) subject to a direction under section 524.
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516 Direction to move heavy vehicle to enable
exercise of other powers
(1) To enable an authorised officer to exercise a power
under this Law, the officer may direct the driver or
operator of a heavy vehicle that is stationary or has
been stopped under section 513 to move the
vehicle, or cause it to be moved, to a stated
reasonable place within a 30km radius from--
(a) where the vehicle was stationary or stopped;
or
(b) if the direction is given within the course of
the vehicle's journey--any point along the
forward route of the journey.
Example--
An authorised officer may direct the driver of a heavy
vehicle to move the vehicle onto a weighing or testing
device.
(2) The direction may be made orally or in any other
way, including, for example--
(a) for a direction given to the driver of a heavy
vehicle--by way of a sign or electronic or
other signal; or
(b) for a direction given to the operator of a
heavy vehicle--by radio, telephone, fax or
email.
(3) A person given a direction under subsection (1)
must comply with the direction, unless the person
has a reasonable excuse.
Maximum penalty--$6000.
(4) Without limiting what may be a reasonable excuse
for the purposes of subsection (3), in a proceeding
for an offence against the subsection, it is a defence
for the person charged to prove that--
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(a) it was not possible to move the heavy vehicle
because it was broken down; and
(b) the breakdown happened for a physical
reason beyond the person's control; and
(c) the breakdown could not be readily rectified
in a way that would enable the direction to be
complied with within a reasonable time.
517 Direction to move heavy vehicle if causing
harm etc.
(1) This section applies if an authorised officer
reasonably believes a stationary heavy vehicle is--
(a) causing, or creating a risk of, serious harm to
public safety, the environment or road
infrastructure; or
(b) obstructing traffic or likely to obstruct traffic.
(2) The authorised officer may direct the driver or
operator of the heavy vehicle to do either or both of
the following--
(a) move the vehicle, or cause it to be moved, to
the extent necessary to avoid the harm or
obstruction;
(b) do, or cause to be done, anything else the
officer reasonably requires to avoid the harm
or obstruction.
(3) The direction may be made orally or in any other
way, including, for example--
(a) for a direction given to the driver of a heavy
vehicle--by way of a sign or electronic or
other signal; or
(b) for a direction given to the operator of a
heavy vehicle--by radio, telephone, fax or
email.
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(4) A person given a direction under subsection (2)
must comply with the direction, unless the person
has a reasonable excuse.
Maximum penalty--$6000.
(5) Without limiting what may be a reasonable excuse
for the purposes of subsection (4), in a proceeding
for an offence against the subsection, it is a defence
for the person charged to prove that--
(a) it was not possible to move the heavy vehicle
because it was broken down; and
(b) the breakdown happened for a physical
reason beyond the person's control; and
(c) the breakdown could not be readily rectified
in a way that would enable the direction to be
complied with within a reasonable time.
518 Moving unattended heavy vehicle on road to
exercise another power
(1) This section applies if an authorised officer--
(a) reasonably believes a heavy vehicle on a road
is unattended; and
(b) intends to exercise a power under this Law in
relation to the heavy vehicle; and
(c) reasonably believes it is necessary to move
the heavy vehicle to enable the exercise of the
power.
(2) To the extent reasonably necessary to enable the
exercise of the power, the authorised officer--
(a) may move the heavy vehicle; or
(b) authorise someone else (the assistant) to
move the heavy vehicle.
Example--
by driving, pushing or towing the heavy vehicle
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(3) The authorised officer or assistant may enter the
heavy vehicle to enable the authorised officer or
assistant to move it.
(4) Despite subsection (2), the authorised officer--
(a) may only drive the heavy vehicle if the
officer is qualified and fit to drive it; and
(b) may only authorise the assistant to drive the
heavy vehicle if the assistant is qualified and
fit to drive it.
(5) It is immaterial that--
(a) the assistant is not the operator of the heavy
vehicle; or
(b) the authorised officer or assistant is not
authorised by the operator to drive the heavy
vehicle.
(6) The authorised officer or assistant may--
(a) open unlocked doors and other unlocked
panels and things in the heavy vehicle; and
(b) use the force that is reasonably necessary
to--
(i) gain access to the heavy vehicle, its
engine or other mechanical components
to enable it to be moved; or
(ii) enable the heavy vehicle to be towed.
(7) The authorised officer must ensure that, so far as is
reasonably practicable, the driver or operator is
notified that the vehicle has been moved and the
place to which it has been moved.
(8) The notification may be given orally or in any other
way, including, for example, by radio, telephone,
fax or email.
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519 Moving unattended heavy vehicle on road if
causing harm etc.
(1) This section applies if an authorised officer
reasonably believes--
(a) a heavy vehicle on a road is unattended; and
(b) the heavy vehicle is--
(i) causing, or creating an imminent risk of,
serious harm to public safety, the
environment or road infrastructure; or
(ii) obstructing traffic or likely to obstruct
traffic.
(2) The authorised officer may move or authorise
someone else (the assistant) to move the heavy
vehicle or, if it is a combination, any component
vehicle of the combination, to the extent it is
reasonably necessary to avoid the harm or
obstruction.
Example--
by driving, pushing or towing the vehicle
(3) The authorised officer or assistant may--
(a) enter the heavy vehicle to enable the
authorised officer or assistant to move it; and
(b) for a combination--separate any or all of the
component vehicles of the combination for
the purpose of moving 1 or more of them.
(4) The authorised officer or assistant may drive the
heavy vehicle even if the officer or assistant is not
qualified to drive it if the authorised officer
reasonably believes there is no-one else in or near
the vehicle who is more capable of driving it and fit
and willing to drive it.
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(5) It is immaterial that--
(a) the assistant is not the operator of the heavy
vehicle; or
(b) the authorised officer or assistant is not
authorised by the operator to drive the heavy
vehicle.
(6) In driving the heavy vehicle under subsection (4),
the authorised officer or assistant is exempt from a
provision of an Australian road law to the extent
the provision would require the authorised officer
or assistant to be qualified to drive the vehicle.
(7) The authorised officer or assistant may use the
force that is reasonably necessary to do anything
that is reasonably necessary to avoid the harm or
obstruction.
Division 4 Inspecting and searching
heavy vehicles
520 Power to enter and inspect heavy vehicles for
monitoring purposes
(1) An authorised officer may enter and inspect a
heavy vehicle for monitoring purposes.
(2) Without limiting subsection (1), the authorised
officer may--
(a) inspect, examine or film any part of the heavy
vehicle or any part of its equipment or load;
and
(b) without limiting paragraph (a), look for,
check the details of, or film a number plate,
label or other thing required to be displayed
on the heavy vehicle under this Law; and
(c) inspect a relevant document in the heavy
vehicle; and
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(d) copy, or take an extract from, a relevant
document in the heavy vehicle; and
(e) produce an image or writing in or near the
vehicle from an electronic relevant document
in the vehicle or, if it is not practicable to
produce the image or writing in or near the
vehicle, take a thing containing the electronic
relevant document somewhere else to
produce the image or writing; and
(f) take an extract of relevant information from a
device or other thing found in the heavy
vehicle, including, for example--
(i) by taking a copy of, or an extract from, a
readout or other data obtained from the
device or other thing; or
(ii) by accessing and downloading relevant
information from the device or other
thing.
Example of device or other thing--
an intelligent transport system
(3) The authorised officer may take a necessary step to
allow the exercise of a power under subsection (1)
or (2), including, for example--
(a) open an unlocked door or an unlocked panel
or thing on the heavy vehicle; and
(b) move but not take away anything that is not
locked up or sealed.
(4) However, this section does not authorise an
authorised officer to use force for exercising a
power under this section.
(5) If the authorised officer takes from the heavy
vehicle a thing containing an electronic relevant
document to produce an image or writing from the
document, the image or writing must be produced,
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and the thing must be returned to the vehicle, as
soon as practicable.
(6) In this section--
electronic relevant document means a relevant
document that is an electronic document.
relevant document means a document relating to a
heavy vehicle and required to be kept under this
Law or a heavy vehicle accreditation, including, for
example, a document required to be kept in the
possession of the driver of a heavy vehicle.
relevant information means information relating to
a heavy vehicle required to be kept under this Law
or a heavy vehicle accreditation.
521 Power to enter and search heavy vehicle
involved, or suspected to be involved, in an
offence etc.
(1) An authorised officer may, using necessary and
reasonable help and force, enter and search a heavy
vehicle for investigation purposes if the officer
reasonably believes--
(a) the vehicle is being, or has been, used to
commit an offence against this Law; or
(b) the vehicle, or a thing in the vehicle, may
provide evidence of an offence against this
Law that is being, or has been, committed; or
(c) the vehicle has been or may have been
involved in an incident involving the death
of, or injury to, a person or damage to
property.
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(2) The authorised officer may form the necessary
belief--
(a) during or after an inspection of the heavy
vehicle under Part 9.2 or section 520; or
(b) independently of an inspection of the heavy
vehicle under Part 9.2 or section 520.
(3) Without limiting subsection (1), the authorised
officer may--
(a) search any part of the heavy vehicle or any
part of its equipment or load for evidence of
an offence against this Law; and
(b) inspect, examine or film any part of the heavy
vehicle or any part of its equipment or load;
and
(c) without limiting paragraph (b), look for,
check the details of, or film a number plate,
label or other thing required to be displayed
on the heavy vehicle under this Law; and
(d) search for and inspect a document, device or
other thing in the heavy vehicle; and
(e) take an extract from a document, device or
other thing in the heavy vehicle, including,
for example--
(i) by taking a copy of, or an extract from,
a readout or other data obtained from a
device or other thing in the vehicle; or
(ii) by accessing and downloading
information from a device or other thing
in the vehicle; and
Example of device or other thing--
an intelligent transport system
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(f) copy a document in the heavy vehicle, or take
a document in the heavy vehicle somewhere
else to copy it; and
Examples of documents for the purposes of
paragraphs (e) and (f)--
· a document required to be kept in the vehicle
under this Law or a heavy vehicle accreditation
· transport documentation
· journey documentation
· a document the authorised officer reasonably
believes provides, or may provide on further
inspection, evidence of an offence against this
Law
(g) produce an image or writing in or near the
vehicle from an electronic document in the
vehicle or, if it is not practicable to produce
the image or writing in or near the vehicle,
take a thing containing the electronic
document somewhere else to produce the
image or writing; and
(h) take the persons, equipment or materials the
officer reasonably requires into or onto the
heavy vehicle.
(4) If the authorised officer takes a document from the
heavy vehicle to copy it, the document must be
copied and returned to the vehicle as soon as
practicable.
(5) If the authorised officer takes from the heavy
vehicle a thing containing an electronic document
to produce an image or writing from the document,
the image or writing must be produced, and the
thing must be returned to the vehicle, as soon as
practicable.
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(6) This section does not authorise an authorised
officer to exercise a power under this section in
relation to an incident that involves the death of, or
injury to, a person unless the authorised officer is a
police officer.
(7) The power to search under this section does not
include a power to search a person.
522 Power to order presentation of heavy vehicles
for inspection
(1) An authorised officer may, by notice under
subsection (2), require to be produced for
inspection at a place and time stated in the notice, a
heavy vehicle--
(a) that the officer reasonably believes has within
the preceding 30 days been used or will be
used on a road if the officer reasonably
believes that--
(i) the driver of the vehicle has not
complied with this Law in driving a
heavy vehicle of that kind; or
(ii) the vehicle does not comply with this
Law; or
(iii) the vehicle is a defective heavy vehicle
as defined in section 525; or
(b) without limiting paragraph (a), for the
purpose of deciding if a vehicle defect
notice for the vehicle can be cleared under
section 530.
(2) A notice must be served on--
(a) the person in charge of the heavy vehicle; or
(b) the registered operator or, if the heavy vehicle
is not registered, an owner.
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(3) If a notice has been served on a person under this
section--
(a) the person may, not later than 24 hours before
the time stated in the notice, request an
authorised officer to change the place or time
of inspection or both; and
(b) subject to paragraph (c), the authorised
officer must--
(i) consider the request; and
(ii) vary the notice by changing the place or
time; and
(iii) notify the person of the change; and
(c) the authorised officer may refuse the request
if the officer considers--
(i) there may be a safety risk in acceding to
the request; or
(ii) the request is made for an improper
reason; or
(iii) it is otherwise not reasonable to vary the
notice.
(4) An inspection may include any tests an authorised
officer decides to be appropriate.
(5) A person must not fail to produce a heavy vehicle
for inspection--
(a) subject to paragraph (b), at the place and time
stated in the notice served on the person; or
(b) if the notice has been varied under this
section, at the place and time stated in the
notice as varied.
Maximum penalty--$6000.
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(6) Failure to produce or allow a heavy vehicle to be
inspected as required under this section is a ground
for suspending the registration of the vehicle.
Division 5 Other powers in relation to all
heavy vehicles
523 Starting or stopping heavy vehicle engine
(1) To enable an authorised officer to effectively
exercise a power under this Law in relation to a
heavy vehicle, the officer may enter the vehicle and
start or stop its engine (take the prescribed action)
or authorise someone else (the assistant) to enter
the vehicle and take the prescribed action if--
(a) a person fails to comply with a requirement
made by an authorised officer under
section 577 to take the prescribed action; or
(b) no responsible person for the heavy vehicle is
available or willing to take the prescribed
action; or
(c) the authorised officer reasonably believes
there is no-one else in or near the vehicle who
is more capable of taking the prescribed
action and is fit and willing to do so.
(2) The authorised officer or assistant may use the
force that is reasonably necessary to enter the
heavy vehicle and take the prescribed action.
(3) Subsection (2) does not authorise the authorised
officer or assistant to use force against a person.
(4) It is immaterial that--
(a) the assistant is not the operator of the heavy
vehicle; or
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(b) the authorised officer or assistant is not--
(i) authorised by the operator to take the
prescribed action; or
(ii) qualified to take the prescribed action.
(5) This section does not authorise the authorised
officer or assistant to drive the heavy vehicle.
(6) In taking the prescribed action, the authorised
officer or assistant is exempt from a provision of an
Australian road law to the extent the provision
would require the authorised officer or assistant to
be qualified to take the prescribed action.
(7) In this section--
start, in relation to a heavy vehicle's engine,
includes run the engine.
524 Direction to leave heavy vehicle
(1) This section applies if--
(a) the driver of a heavy vehicle fails to comply
with a direction given by an authorised
officer under this Chapter; or
(b) an authorised officer reasonably believes the
driver of a heavy vehicle is not qualified, fit
or authorised by the operator to drive the
vehicle in order to comply with a direction
the authorised officer may give under this
Chapter; or
(c) an authorised officer reasonably believes it
would be unsafe to inspect or search a heavy
vehicle or any part of it or any part of its
equipment or load while the driver occupies
the driver's seat or is in the vehicle or another
person accompanying the driver is in the
vehicle.
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(2) The authorised officer may direct the driver to do
1 or more of the following--
(a) to vacate the driver's seat;
(b) to leave the heavy vehicle;
(c) not to occupy the driver's seat until permitted
by an authorised officer;
(d) not to enter the heavy vehicle until permitted
by an authorised officer.
(3) The authorised officer may direct any other person
accompanying the driver of the heavy vehicle to do
either or both of the following--
(a) to leave the vehicle;
(b) not to enter the vehicle until permitted by an
authorised officer.
(4) A direction under subsection (2) or (3) may be
made orally or in any other way, including, for
example, by way of a sign or electronic or other
signal.
(5) A person given a direction under subsection (2)
or (3) must comply with the direction, unless the
person has a reasonable excuse.
Maximum penalty--$6000.
Division 6 Further powers in relation to
heavy vehicles concerning
heavy vehicle standards
525 Definitions for Div 6
In this Division--
defective heavy vehicle means a heavy vehicle
that--
(a) contravenes the heavy vehicle standards; or
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(b) has a part that--
(i) does not perform its intended function;
or
(ii) has deteriorated to an extent that it can
not be reasonably relied on to perform
its intended function.
defective vehicle label means a label--
(a) for attaching to a heavy vehicle to which a
vehicle defect notice applies; and
(b) stating--
(i) the vehicle's registration number or, if
the vehicle is not registered, a temporary
identification number marked on the
vehicle by the authorised officer issuing
the notice; and
(ii) that the vehicle must not be used on a
road except as specified in the notice;
and
(iii) the identification details for the
authorised officer who issued the notice;
and
(iv) the day and time the notice was issued;
and
(v) the number of the notice.
identification details, for an authorised officer,
means details to identify the authorised officer,
including, for example--
(a) the officer's name; or
(b) an identification number allocated to the
officer under this Law or another law.
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526 Issue of vehicle defect notice
(1) This section applies if an authorised officer who
has inspected a heavy vehicle under this Law
reasonably believes--
(a) the vehicle is a defective heavy vehicle; and
(b) the use of the vehicle on a road poses a safety
risk.
(2) The authorised officer may issue the following
notice in relation to the heavy vehicle, in the way
mentioned in subsection (3)--
(a) if the officer reasonably believes the safety
risk is an imminent and serious safety risk--
a notice (a major defect notice) stating the
vehicle must not be used on a road after the
notice is issued other than to move it to a
stated location in a stated way; or
(b) if the officer reasonably believes the safety
risk is not an imminent and serious safety
risk--a notice (a minor defect notice) stating
the vehicle must not be used on a road after a
stated time unless stated action required to
stop the vehicle from being a defective heavy
vehicle is taken.
(3) The authorised officer may issue the vehicle defect
notice by--
(a) if the driver of the heavy vehicle is present--
giving the notice to the driver; or
(b) if the driver of the heavy vehicle is not
present--attaching the notice to the vehicle.
(4) If the driver of a heavy vehicle for which a vehicle
defect notice is issued under this section is not the
operator of the vehicle, the driver must, as soon as
practicable, give the notice to the operator.
Maximum penalty--$3000.
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(5) An authorised officer may, on request made by the
operator of a heavy vehicle that is the subject of a
vehicle defect notice, give permission for the
vehicle to be used on a road during a period stated
in the permission, but only if the authorised officer
is satisfied that--
(a) the relevant repairs have been undertaken;
and
(b) the vehicle will be taken within that stated
period to be inspected for the purpose of
enabling the vehicle defect notice to be
cleared under section 530; and
(c) the request is necessary and reasonable; and
(d) the permitted use will not pose a safety risk.
(6) An authorised officer may, on request made by the
operator of a heavy vehicle that is the subject of a
permission under subsection (5), vary the
permission by extending the stated time that the
vehicle may be used on a road, but only if the
authorised officer is satisfied--
(a) the relevant repairs have been undertaken;
and
(b) the vehicle will be taken within that extended
period to be inspected for the purpose of
enabling the vehicle defect notice to be
cleared under section 530; and
(c) the request is necessary and reasonable; and
(d) the permitted use during the extended period
will not pose a safety risk.
(7) A permission under subsection (5) or an extension
of time under subsection (6) must be in writing and
may be given unconditionally or subject to any
reasonable conditions imposed by the authorised
officer.
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(8) Subsections (5) and (6) have effect in relation to a
heavy vehicle that is the subject of a major defect
notice despite anything in subsection (2) or in the
major defect notice.
527 Requirements about vehicle defect notice
(1) A vehicle defect notice for a heavy vehicle must be
in the approved form and state the following--
(a) that the vehicle is a defective heavy vehicle
and details of how the vehicle is a defective
heavy vehicle;
(b) for a notice given in circumstances mentioned
in section 526(2)(a)--that the vehicle must
not be used on a road after the notice is issued
other than to move it to a location stated in
the notice in the way stated in the notice;
(c) for a notice given in circumstances mentioned
in section 526(2)(b)--that the vehicle must
not be used on a road after a time stated in the
notice unless action required to stop the
vehicle from being a defective heavy vehicle
stated in the notice is taken;
(d) the name of the vehicle's driver if known by
the authorised officer issuing the notice when
the notice is issued or, if the driver is not
present or the driver's name is not known by
the authorised officer issuing the notice when
the notice is issued, the term `registered
operator';
(e) details to identify the vehicle, including, for
example--
(i) the vehicle's registration number or, if
the vehicle is not registered, a temporary
identification number marked on the
vehicle by the authorised officer issuing
the notice; and
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(ii) the vehicle's make and category; and
(iii) the vehicle's VIN or, if there is no VIN,
the vehicle's chassis number or engine
number, but only if it is practicable and
safe to do so;
(f) the nature of the inspection that led to the
notice being issued;
(g) whether an infringement notice was also
given when the notice was issued;
(h) the identification details for the authorised
officer who issued the notice;
(i) that, if the notice is not cleared by the
Regulator under section 530, the vehicle's
registration may be suspended and
subsequently cancelled under this Law;
(j) any conditions imposed under subsection (2).
(2) The authorised officer issuing a vehicle defect
notice may impose any conditions on the use of the
defective heavy vehicle the officer considers
appropriate for use of the vehicle on a road.
(3) Any conditions imposed under subsection (2) are
taken to form part of the vehicle defect notice
concerned.
528 Defective vehicle labels
(1) If an authorised officer issues a major defect notice
for a heavy vehicle, the authorised officer must
attach a defective vehicle label to the vehicle.
(2) If an authorised officer issues a minor defect notice
for a heavy vehicle, the authorised officer may
attach a defective vehicle label to the vehicle.
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(3) A person must not remove or deface a defective
vehicle label attached to a heavy vehicle under
subsection (1) or (2).
Maximum penalty--$3000.
(4) Subsection (3) does not apply to a person removing
a defective vehicle label under section 530(2)
or 531(4).
529 Using defective heavy vehicles contrary to
vehicle defect notice
A person must not use, or permit to be used, on a
road a heavy vehicle in contravention of a vehicle
defect notice.
Maximum penalty--$3000.
530 Clearance of vehicle defect notices
(1) A vehicle defect notice may be cleared by the
Regulator if--
(a) the Regulator decides the vehicle is no longer
a defective heavy vehicle; or
(b) the Regulator receives a notice, in the
approved form, from an authorised officer
stating that the heavy vehicle is no longer a
defective heavy vehicle.
(2) If the Regulator clears a vehicle defect notice
applying to a heavy vehicle, the Regulator must
arrange for any defective vehicle label for the
vehicle to be removed from the vehicle.
531 Amendment or withdrawal of vehicle defect
notices
(1) A vehicle defect notice issued in this jurisdiction by
an authorised officer who is a police officer may be
amended or withdrawn by any authorised officer
who--
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(a) is a police officer of this jurisdiction; or
(b) is a police officer of another jurisdiction if the
Application Act of this jurisdiction permits
this to be done; or
(c) is not a police officer but is of a class of
authorised officers for the time being
approved by the Regulator for the purposes of
this subsection.
(2) A vehicle defect notice issued by an authorised
officer who is not a police officer may be amended
or withdrawn by any authorised officer who is of a
class of authorised officers for the time being
approved by the Regulator for the purposes of this
subsection.
(3) If an authorised officer amends or withdraws a
vehicle defect notice for a heavy vehicle, the officer
must give notice of the amendment or withdrawal
to the Regulator and the person to whom the
vehicle defect notice was issued.
(4) If an authorised officer withdraws a vehicle defect
notice applying to a heavy vehicle, the Regulator
must arrange for the defective vehicle label for the
vehicle to be removed from the vehicle.
Division 7 Further powers in relation to
heavy vehicles concerning
mass, dimension or loading
requirements
532 Application of Div 7
This Division applies to a heavy vehicle regardless
of whether the vehicle is, has been, or becomes the
subject of a direction or requirement given or made
by an authorised officer under another provision of
this Chapter.
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533 Powers for minor risk breach of mass,
dimension or loading requirement
(1) This section applies if an authorised officer
reasonably believes a heavy vehicle--
(a) is the subject of 1 or more minor risk
breaches of mass, dimension or loading
requirements; and
(b) is not, or is no longer, also the subject of a
substantial, or severe, risk breach of a mass,
dimension or loading requirement.
(2) If the authorised officer reasonably believes it
appropriate in the circumstances, the officer may
direct the driver or operator of the heavy vehicle--
(a) to immediately rectify stated breaches of
mass, dimension or loading requirements
relating to the vehicle; or
(b) to move the vehicle, or cause it to be moved,
to a stated place and not to move the vehicle,
or cause it to be moved, from there until
stated breaches of mass, dimension or loading
requirements relating to the vehicle are
rectified.
Examples of circumstances for the purposes of
subsection (2)--
1 Rectification is reasonable and can be carried out
easily.
2 Rectification is necessary in the public interest to avoid
a safety risk, damage to road infrastructure or an
adverse effect on public amenity.
(3) A place mentioned in subsection (2)(b) must be--
(a) a place the authorised officer reasonably
believes is suitable for the purpose of
complying with the direction; and
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(b) within a 30km radius from--
(i) where the heavy vehicle is located when
the direction is given; or
(ii) if the direction is given in the course of
the heavy vehicle's journey--any point
along the forward route of the journey.
(4) If the authorised officer does not give the driver or
operator of a heavy vehicle a direction under
subsection (2) and the authorised officer reasonably
believes the driver or operator is not, or is no
longer, subject to a direction for the rectification of
a minor risk breach of a mass, dimension or loading
requirement relating to the vehicle, the officer may
authorise the driver or operator to continue the
vehicle's journey.
(5) A direction given under subsection (2) must be in
writing and may be given with or without
conditions.
(6) Despite subsection (5), a direction to move a heavy
vehicle may be given orally if the moving of the
vehicle is carried out in the presence, or under the
supervision, of an authorised officer.
(7) The person to whom a direction is given under this
section must comply with the direction, unless the
person has a reasonable excuse.
Maximum penalty--$10000.
(8) In this section--
stated means stated by the authorised officer.
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534 Powers for substantial risk breach of mass,
dimension or loading requirement
(1) This section applies if an authorised officer
reasonably believes--
(a) a heavy vehicle is the subject of 1 or more
substantial risk breaches of mass, dimension
or loading requirements; and
(b) the heavy vehicle is not, or is no longer, also
the subject of a severe risk breach of a mass,
dimension or loading requirement.
(2) The authorised officer must direct the driver or
operator of the heavy vehicle--
(a) not to move the vehicle until stated breaches
of mass, dimension or loading requirements
relating to the vehicle are rectified; or
(b) to move the vehicle, or cause it to be moved,
to a stated reasonable place and not to move
it, or cause it to be moved, from there until
stated breaches of mass, dimension or loading
requirements relating to the vehicle are
rectified.
Examples of reasonable place for the purposes of
paragraph (b)--
· the intended destination of the heavy vehicle's journey
· a depot of the heavy vehicle or, if the heavy vehicle is
a combination, a depot of a vehicle in the combination
· a weighbridge
· a rest area
· a place where the heavy vehicle can be loaded or
unloaded
(3) A direction given under subsection (2) must be in
writing and may be given with or without
conditions.
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(4) Despite subsection (3), a direction to move a heavy
vehicle may be given orally if the moving of the
vehicle is carried out in the presence, or under the
supervision, of an authorised officer.
(5) The person to whom a direction is given under this
section must comply with the direction, unless the
person has a reasonable excuse.
Maximum penalty--$10000.
(6) In this section--
stated means stated by the authorised officer.
535 Powers for severe risk breach of mass,
dimension or loading requirement
(1) This section applies if an authorised officer
reasonably believes a heavy vehicle is the subject
of 1 or more severe risk breaches of mass,
dimension or loading requirements.
(2) The authorised officer must direct the driver or
operator of the heavy vehicle--
(a) not to move the heavy vehicle until stated
breaches of mass, dimension or loading
requirements relating to the vehicle are
rectified; or
(b) if the prescribed circumstances exist--
(i) to move the vehicle, or cause it to be
moved, to the nearest stated safe
location; and
(ii) not to proceed from there until stated
breaches of mass, dimension or loading
requirements relating to the vehicle are
rectified.
(3) A direction given under subsection (2) must be in
writing and may be given with or without
conditions.
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(4) Despite subsection (3), a direction to move a heavy
vehicle may be given orally if the moving of the
vehicle is carried out in the presence, or under the
supervision, of an authorised officer.
(5) The person to whom a direction is given under this
section must comply with the direction, unless the
person has a reasonable excuse.
Maximum penalty--$10000.
(6) Nothing in this section prevents an authorised
officer from taking into account the safety of the
heavy vehicle or any load in it if the officer
reasonably believes the officer can do so without
prejudicing the safety of other property, people, the
environment, road infrastructure or public amenity.
(7) In this section--
prescribed circumstances means--
(a) there is a risk of harm to public safety; or
(b) there is an appreciable risk of harm to the
environment, road infrastructure or public
amenity.
risk of harm to public safety, in relation to a heavy
vehicle--
(a) includes the risk of harm to the safety of
people, or live animals, in the vehicle; but
(b) does not include the risk of harm to the safety
of the vehicle or goods, other than a live
animal, in the vehicle.
safe location means a location where the authorised
officer reasonably believes the heavy vehicle will
pose a reduced risk or no appreciable risk of harm
to public safety, the environment, road
infrastructure or public amenity.
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Example of a safe location--
· a depot of the heavy vehicle or, if the heavy vehicle is
a combination, a depot of a vehicle in the combination
· a weighbridge
· a rest area
· a place where the heavy vehicle can be loaded or
unloaded
stated means stated by the authorised officer.
536 Operation of direction in relation to a
combination
(1) This section applies if a direction is given under
this Division in relation to a heavy combination.
(2) Subject to subsection (3), nothing in this Division
prevents a component vehicle of the heavy
combination from being separately driven or
moved if--
(a) the component vehicle is not itself the subject
of a contravention of a mass, dimension or
loading requirement; and
(b) it is not otherwise unlawful for the
component vehicle to be driven or moved.
(3) Subsection (2) does not apply if a condition of the
direction prevents the component vehicle from
being separately driven or moved.
Division 8 Further powers in relation to
fatigue-regulated heavy
vehicles
537 Application of Div 8
This Division applies to a fatigue-regulated heavy
vehicle regardless of whether the vehicle is, has
been, or becomes the subject of a direction or
requirement given or made by an authorised officer
under another provision of this Chapter.
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538 Requiring driver to rest for contravention of
maximum work requirement
(1) This section applies if an authorised officer
reasonably believes the driver of a fatigue-
regulated heavy vehicle has contravened a
maximum work requirement by working for a
period in excess of the maximum work time
allowed under the requirement.
(2) If the authorised officer reasonably believes the
contravention is a critical risk breach or severe risk
breach, the authorised officer must, by notice,
require the driver--
(a) to immediately rest for a stated period in
accordance with a minimum rest requirement
applying to the driver; and
(b) to work for a stated shorter period when the
driver next works to compensate for the
excess period worked.
(3) If the authorised officer reasonably believes the
contravention is a substantial risk breach or minor
risk breach, the authorised officer may, by notice,
require the driver--
(a) to immediately rest for a stated period in
accordance with a minimum rest requirement
applying to the driver; and
(b) to work for a stated shorter period when the
driver next works to compensate for the
excess period worked.
(4) If the authorised officer imposes a requirement
under subsection (2) or (3), the authorised officer
must record details of the requirement in the
driver's work diary.
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Note--
Section 541 deals with the situation where the driver does
not produce the work diary or produces something as a
work diary that the authorised officer reasonably believes
to be unacceptable.
539 Requiring driver to rest for contravention of
minimum rest requirement
(1) This section applies if an authorised officer
reasonably believes the driver of a fatigue-
regulated heavy vehicle has contravened a
minimum rest requirement by resting for a period
shorter than the minimum rest time required under
the requirement.
(2) If the authorised officer reasonably believes the
contravention is a critical risk breach or severe risk
breach, the authorised officer must, by notice,
require the driver--
(a) to immediately rest for a stated period to
compensate for the shortfall between the
period of rest the driver had and the minimum
rest time required under the minimum rest
requirement; and
(b) if the driver has failed to have 1 or more night
rest breaks required under a minimum rest
requirement--to have 1 or more night rest
breaks to compensate for the shortfall
between the number of night rest breaks the
driver had and the number of night rest
breaks required under the minimum rest
requirement.
(3) If the authorised officer reasonably believes the
contravention is a substantial risk breach or minor
risk breach, the authorised officer may, by notice,
require the driver--
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(a) to immediately rest for a stated period to
compensate for the shortfall between the
period of rest the driver had and the minimum
rest time required under the minimum rest
requirement; or
(b) to rest for an additional stated period, at the
next rest break the driver is required to have
under a maximum work requirement or
minimum rest requirement, to compensate for
the shortfall between the period of rest the
driver had and the minimum rest time
required under the minimum rest
requirement; or
(c) if the driver has failed to have 1 or more night
rest breaks required under a minimum rest
requirement--to have 1 or more night rest
breaks to compensate for the shortfall
between the number of night rest breaks the
driver had and the number of night rest
breaks required under the minimum rest
requirement.
(4) If the authorised officer imposes a requirement
under subsection (2) or (3), the authorised officer
must record the details of the requirement in the
driver's work diary.
Note--
Section 541 deals with the situation where the driver does
not produce the work diary or produces something as a
work diary that the authorised officer reasonably believes
to be unacceptable.
540 Requiring driver to stop working if impaired by
fatigue
(1) This section applies if an authorised officer
reasonably believes the driver of a fatigue-
regulated heavy vehicle is impaired by fatigue.
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(2) The authorised officer may, by notice--
(a) require the driver to immediately stop work
and not work again for a stated period; and
(b) if the officer has observed the driver driving
in a way the officer considers on reasonable
grounds to be dangerous, require the driver to
also immediately stop being in control of the
fatigue-regulated heavy vehicle.
(3) A stated period under subsection (2)(a) must be a
reasonable period having regard to the matters
prescribed for the purposes of this section by the
national regulations.
(4) If the authorised officer imposes a requirement
under subsection (2)(a), the authorised officer must
record details of the requirement in the driver's
work diary.
Note--
Section 541 deals with the situation where the driver does
not produce the work diary or produces something as a
work diary that the authorised officer reasonably believes
to be unacceptable.
(5) If the authorised officer imposes a requirement
under subsection (2)(b), the authorised officer may
authorise a person to move the fatigue-regulated
heavy vehicle to a suitable rest place for fatigue-
regulated heavy vehicles but only if the person is
qualified and fit to drive the vehicle.
(6) The national regulations may prescribe the matters
to which the authorised officer, or a court, must or
may have regard when deciding whether or not a
person was impaired by fatigue for the purposes of
this section.
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541 Requiring driver to stop working if work diary
not produced or unreliable
(1) This section applies if--
(a) an authorised officer has, under section 568,
asked the driver of a fatigue-regulated heavy
vehicle to produce a work diary the driver is
required to keep under this Law; and
(b) either--
(i) the driver has failed to produce the diary
without a reasonable excuse; or
(ii) the driver produces a document that the
authorised officer reasonably believes is
not the work diary the driver is required
to keep under this Law; or
(iii) the authorised officer reasonably
believes the work diary, or purported
work diary, produced by the driver can
not be relied on as an accurate record of
the time the driver recently spent
working or resting.
Examples for the purposes of subparagraph
(iii)--
· Information in the work diary appears to
be incorrect.
· Particular information appears to be
missing from the work diary.
· The work diary appears to have been
tampered with.
(2) The authorised officer may, by notice, require the
driver to immediately stop work and to not work
again for a stated period of up to 24 hours.
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542 Compliance with requirement under this
Division
(1) A person given a notice under this Division must
comply with the notice, unless the person has a
reasonable excuse.
Maximum penalty--$10000.
(2) An authorised officer who gives a person a notice
under section 538, 539 or 541 may, by stating it in
the notice, allow the person to delay complying
with the notice for a period of up to 1 hour if the
authorised officer reasonably believes--
(a) the delay is necessary to allow the person
time to drive the relevant fatigue-regulated
heavy vehicle to the nearest suitable rest
place for fatigue-regulated heavy vehicles and
it is reasonably safe to allow the person to
continue driving the vehicle to that place; or
(b) the delay is necessary to allow the person
time to attend to, or to secure, the load on the
relevant fatigue-regulated heavy vehicle
before resting.
Part 9.4 Other powers
Division 1 Powers relating to equipment
543 Power to use equipment to access information
(1) This section applies if--
(a) a thing found at a place, or in a vehicle,
entered by an authorised officer under
this Chapter is, or includes, a disc, tape or
other device used for storing information
(the storage device); and
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(b) equipment at the place, or in the vehicle, may
be used with the storage device to access
information on the storage device; and
(c) the authorised officer reasonably believes
information stored on the storage device may
be relevant for deciding whether this Law is
being complied with.
(2) The authorised officer, or a person helping the
officer, may operate the equipment to access the
information.
(3) A person may operate equipment under subsection
(2) only if the person reasonably believes the
operation can be carried out without damaging the
equipment.
Note--
See section 548 for action an authorised officer may take
if the officer, or a person helping the officer, finds a disc,
tape or other device containing information the officer
reasonably believes is relevant for deciding whether this
Law has been contravened.
(4) In this section--
equipment, at a place or in a vehicle, includes
equipment taken into the place or vehicle by the
authorised officer.
544 Power to use equipment to examine or process
a thing
(1) An authorised officer, or a person helping an
authorised officer, may operate equipment at a
place, or in a vehicle, entered under this Chapter to
examine or process a thing found at the place, or in
the vehicle, in order to decide whether it is a thing
that may be seized under this Chapter.
(2) Also, for a heavy vehicle entered under
section 521, an authorised officer, or a person
helping the authorised officer, may, for deciding
whether a thing may be seized under section 547--
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(a) operate equipment in the vehicle to examine
or process the thing; or
(b) move the thing to another place if it is not
practicable to examine or process the thing
where it is found, or the vehicle's driver
consents in writing, and operate equipment at
that place to examine or process the thing.
(3) However, subsections (1) and (2) only apply if the
authorised officer or person reasonably believes--
(a) the equipment is suitable for exercising the
power; and
(b) the power can be exercised without damaging
the equipment or thing.
(4) In this section--
equipment, at a place or in a vehicle, includes
equipment taken into the place or vehicle by the
authorised officer.
Division 2 Seizure and embargo notices
Subdivision 1 Power to seize
545 Seizing evidence at a place that may be entered
without consent or warrant
An authorised officer who enters a place the officer
may enter under this Chapter 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.
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546 Seizing evidence at a place that may be entered
only with consent or warrant
(1) This section applies if--
(a) an authorised officer is authorised to enter a
place only with the consent of an occupier at
the place or a warrant; and
(b) the authorised officer enters the place after
obtaining the necessary consent or under a
warrant.
(2) If the authorised officer enters the place with the
occupier's consent, the officer may seize a thing at
the place if--
(a) the officer reasonably believes the thing is
evidence of an offence against this Law; and
(b) seizure of the thing is consistent with the
purpose of entry as explained to the occupier
when asking for the occupier's consent.
(3) If the authorised officer enters the place under a
warrant, the officer may seize the evidence for
which the warrant was issued.
(4) The authorised officer may also seize anything else
at the place if the officer reasonably believes--
(a) the thing is evidence of an offence against
this Law; and
(b) the seizure is necessary to prevent the thing
being--
(i) hidden, lost or destroyed; or
(ii) used to continue, or repeat, the offence.
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547 Seizing evidence in a heavy vehicle entered
under s 521
An authorised officer who enters a heavy vehicle
under section 521 may seize a thing in the heavy
vehicle if the officer reasonably believes the thing
is evidence of an offence against this Law.
548 Additional seizure power relating to information
stored electronically
(1) This section applies if, under this Chapter, an
authorised officer, or a person helping an
authorised officer--
(a) enters a place or heavy vehicle; and
(b) finds a disc, tape or other device used for
storing information (the original information
storage device) containing information the
authorised officer reasonably believes is
relevant for deciding whether this Law has
been contravened.
(2) The authorised officer or person may--
(a) put the information in documentary form and
seize the document; or
(b) copy the information from the original
information storage device to another
information storage device and seize the other
information storage device; or
(c) seize the original information storage device
and any equipment at the place or in the
vehicle necessary for accessing the
information contained in the device if--
(i) it is not practicable to take action, at
the place or in the vehicle, under
paragraph (a) or (b) in relation to the
information; and
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(ii) the officer or person reasonably believes
the device and equipment can be seized
without being damaged.
549 Seizing thing or sample taken for examination
under s 500
An authorised officer who takes a thing or sample
for examination under section 500(1)(c) may, after
examining it, seize the thing or sample if--
(a) the officer reasonably believes the thing or
sample is evidence of an offence against this
Law; and
(b) had the officer had the reasonable belief when
the thing or sample was taken, the officer
could have seized the thing or the thing
from which the sample was taken under
section 545 to 548.
550 Seizure of property subject to security
(1) An authorised officer may seize a thing under this
Chapter, and exercise powers relating to the thing,
despite a lien or other security over it claimed by
another person.
(2) However, the seizure does not affect the other
person's claim to the lien or other security against a
person other than the authorised officer or a person
helping the officer.
551 Seizure of number plates
(1) Without limiting any other provision of this
Chapter, a power under this Chapter for an
authorised officer to seize a thing includes a power
to seize a number plate for a heavy vehicle under
subsection (2) or (3).
(2) An authorised officer may seize a number plate
(whether or not displayed on a heavy vehicle) if the
officer reasonably believes--
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(a) that the number plate is being used other than
in accordance with this Law or any other
applicable law; or
(b) that the number plate was not issued in
accordance with this Law or any other
applicable law.
(3) An authorised officer may seize a number plate if it
is displayed on a heavy vehicle and the officer
reasonably believes--
(a) that the number plate does not bear the
registration number last assigned to the
vehicle; or
(b) that--
(i) the vehicle is not registered or exempted
from registration; and
(ii) the period during which the registration
of the vehicle may be renewed has
expired.
(4) An authorised officer may retain--
(a) a number plate seized under subsection (2)
until the officer is satisfied that it was not
being so used and that it was issued in
accordance with this Law or any other
applicable law; or
(b) a number plate seized under subsection (3)
until the officer is satisfied that circumstances
exist that allow it to be used without being
subject to retention under this subsection.
(5) An authorised officer must return a number plate
seized under subsection (2) or (3) to--
(a) the driver or operator of the vehicle, if the
officer is satisfied as to the relevant matters
referred to in subsection (4); or
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(b) an appropriate authority, if the officer is not
satisfied as to those matters after a reasonable
period.
(6) The national regulations may prescribe, or
prescribe guidelines for determining, an appropriate
authority for the purposes of subsection (5).
552 Restriction on power to seize certain things
(1) This Chapter does not authorise an authorised
officer to seize--
(a) a heavy vehicle; or
(b) a thing, or a thing of a class, prescribed by the
national regulations.
(2) Subsection (1) does not apply if the Application
Act of the participating jurisdiction in which the
vehicle or thing is located provides that the heavy
vehicle or thing can be impounded or seized under
a law of that jurisdiction.
Subdivision 2 Powers to support seizure
553 Requirement of person in control of thing to be
seized
(1) To enable a thing to be seized under this Chapter,
an authorised officer may require the person in
control of it--
(a) to take it to a stated reasonable place by a
stated reasonable time; and
(b) if necessary, to remain in control of it at the
stated place for a stated reasonable period.
(2) The requirement--
(a) must be made by notice; or
(b) if for any reason it is not practicable to give a
notice, may be made orally and confirmed by
notice as soon as practicable.
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(3) A person of whom a requirement is made under this
section must comply with the requirement, unless
the person has a reasonable excuse.
Maximum penalty--$10000.
Subdivision 3 Safeguards for seized things or
samples
554 Receipt for seized thing or sample
(1) This section applies if an authorised officer seizes a
thing or sample under this Chapter unless--
(a) it is impracticable or unreasonable for the
officer to account for the thing or sample
given its condition, nature and value; or
(b) for a thing seized other than under
section 549--the officer reasonably believes
there is no-one apparently in possession of
the thing or the thing has been abandoned.
(2) The authorised officer must, as soon as practicable
after the thing or sample is seized, give the relevant
person for the thing or sample a receipt that
generally describes the thing or sample and its
condition.
(3) However, for a thing seized other than under
section 549, if a relevant person for the thing is not
present when the thing is seized, the receipt may be
given by leaving it in a conspicuous position and in
a reasonably secure way at the place at which the
thing was seized.
(4) The receipt may relate to more than 1 seized thing.
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(5) In this section--
relevant person means--
(a) for a thing or sample seized under
section 549--
(i) an owner of the thing or sample; or
(ii) a person in possession of the thing, or
the thing from which the sample was
taken, before the thing or sample
was taken for examination under
section 500(1)(c); or
(b) for a thing seized under this Chapter other
than under section 549--
(i) an owner of the thing; or
(ii) a person in possession of the thing
before it was seized.
555 Access to seized thing
(1) Until a thing seized under this Chapter is forfeited
or returned, the authorised officer who seized the
thing must allow any owner of the thing--
(a) to inspect it at any reasonable time and from
time to time; and
(b) if it is a document--to copy it.
(2) Subsection (1) does not apply if it is impracticable
or would be unreasonable to allow the inspection or
copying.
(3) The inspection or copying must be allowed free of
charge.
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556 Return of seized things or samples
(1) This section applies if--
(a) an authorised officer has seized a thing or
sample under this Chapter; and
(b) the thing or sample is not forfeited under
Division 3.
(2) If an authorised officer is satisfied that--
(a) the thing or sample is not required (or is no
longer required) as evidence of an offence
against this Law; and
(b) the continued retention of the thing or sample
is not necessary to prevent the thing or
sample being used to continue, or repeat, an
offence against this Law; and
(c) the thing or sample is not subject to a dispute
as to ownership, which would be
appropriately resolved by making an
application under subsection (3) for the return
of the thing or sample;
the authorised officer must take reasonable steps to
return the thing or sample to the person from whom
it was seized or to the owner if that person is not
entitled to possess it.
(3) An application for the return of the thing or sample
may be made to the relevant tribunal or court by--
(a) the person from whom it was seized; or
(b) a person who claims to be the owner; or
(c) an authorised officer.
(4) If the relevant tribunal or court is satisfied that--
(a) the thing or sample is not required (or is no
longer required) as evidence of an offence
against this Law; and
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(b) the continued retention of the thing or sample
is not necessary to prevent the thing or
sample being used to continue, or repeat, an
offence against this Law; and
(c) there are no reasonable grounds to suspect
that the thing or sample is likely to be used by
any person in the commission of an offence
of a kind prescribed by the national
regulations for the purposes of this
subsection;
the relevant tribunal or court may make an order for
the return of the thing or sample to the person from
whom it was seized or to the owner if that person is
not entitled to possess it.
(5) The national regulations may--
(a) provide for the procedures to be followed
when an application is made under
subsection (3); and
(b) without limiting paragraph (a)--
(i) provide for the notification of the
Regulator or an authorised officer
(or both) of the making of the
application if it is made by a person
who is not an authorised officer; and
(ii) specify the information that is to be
included in the notification.
(6) Nothing in this section affects a lien or other
security over a thing.
(7) Nothing in this section prevents the return of a
thing or sample to its owner at any time if the
Regulator considers there is no reason for its
continued retention.
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Subdivision 4 Embargo notices
557 Power to issue embargo notice
(1) This section applies if--
(a) an authorised officer may seize a thing under
this Chapter; and
(b) the thing can not, or can not readily, be
physically seized and removed.
(2) The authorised officer may issue a notice
(an embargo notice) under this section prohibiting
any dealing with the thing or any part of it without
the written consent of the Regulator or an
authorised officer.
(3) The embargo notice--
(a) must be in the approved form; and
(b) must list the activities it prohibits; and
(c) must include a copy of section 558.
(4) The authorised officer may issue the embargo
notice--
(a) by causing a copy of it to be served on the
relevant entity; or
(b) if a relevant entity can not be located after all
reasonable steps have been taken to do so, by
fixing a copy of the notice on the thing the
subject of the notice in a conspicuous position
and in a reasonably secure way.
(5) In this section--
dealing, with a thing or part of a thing, includes--
(a) moving, selling, leasing or transferring the
thing or part; and
(b) changing information on, or deleting
information from, the thing or part.
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relevant entity, for an embargo notice, means--
(a) the driver of the heavy vehicle to which the
thing the subject of the notice relates; or
(b) the occupier of the place in which the thing
the subject of the notice is located.
558 Noncompliance with embargo notice
(1) A person (the relevant person) who knows an
embargo notice relates to a thing must not--
(a) do anything the notice prohibits; or
(b) instruct someone else (the other person) to do
anything the notice prohibits--
(i) anyone from doing; or
(ii) the relevant person or other person from
doing.
Maximum penalty--$10000.
(2) In a proceeding for an offence against subsection
(1) to the extent it relates to a charge that the person
charged with the offence (defendant) moved an
embargoed thing, or a part of an embargoed thing,
it is a defence for the defendant to prove that he or
she--
(a) moved the embargoed thing, or part, to
protect or preserve it; and
(b) notified the authorised officer who issued
the embargo notice of the move and new
location of the embargoed thing, or part,
within 48 hours after the move.
(3) A person served with an embargo notice must take
all reasonable steps to stop any other person from
doing anything prohibited by the notice.
Maximum penalty--$10000.
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(4) Despite any other Act or law, a sale, lease, transfer
or other dealing with an embargoed thing in
contravention of this section is void.
559 Power to secure embargoed thing
(1) An authorised officer may take reasonable action to
restrict access to an embargoed thing.
(2) For the purposes of subsection (1), the authorised
officer may, for example--
(a) seal the embargoed thing, or the entrance to
the place where the embargoed thing is
located, and mark the thing or place to show
access to the thing or place is restricted; or
(b) for equipment--make it inoperable; or
Example--
dismantling equipment or removing a component of
equipment without which the equipment can not be
used
(c) require a person the authorised officer
reasonably believes is in control of the
embargoed thing, or the place where the
embargoed thing is located, to do an act
mentioned in paragraph (a) or (b) or anything
else an authorised officer could do under
subsection (1).
(3) A person of whom a requirement is made under
subsection (2)(c) must comply with the
requirement, unless the person has a reasonable
excuse.
Maximum penalty--$10000.
(4) If access to an embargoed thing is restricted under
this section, a person must not tamper with the
thing or with anything used to restrict access to the
thing without--
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(a) an authorised officer's approval; or
(b) a reasonable excuse.
Maximum penalty--$10000.
(5) If access to a place is restricted under this section, a
person must not enter the place in contravention of
the restriction or tamper with anything used to
restrict access to the place without--
(a) an authorised officer's approval; or
(b) a reasonable excuse.
Maximum penalty--$10000.
(6) The restricted access to an embargoed thing, or a
place where an embargoed thing is located, under
this section applies only for the period the thing is
an embargoed thing.
560 Withdrawal of embargo notice
(1) This section applies if--
(a) an authorised officer has issued an embargo
notice for a thing; and
(b) the thing has not been forfeited under
Division 3.
(2) The authorised officer must withdraw the embargo
notice--
(a) generally--at the end of 3 months after it is
issued; or
(b) if a relevant tribunal or court has made an
order under subsection (5) extending the time
for withdrawing the notice--at the end of the
extended time; or
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(c) if a proceeding for an offence involving the
thing is started before the notice must be
withdrawn under paragraph (a) or (b)--at the
end of the proceeding and any appeal from
the proceeding.
(3) Despite subsection (2), if the embargo notice is
issued on the basis that the thing may provide
evidence of an offence against this Law, the
authorised officer must as soon as practicable
withdraw the notice if the officer is satisfied--
(a) the thing is no longer required as evidence of
an offence against this Law; and
(b) it is not necessary for the notice to continue to
prevent the thing being used to continue, or
repeat, the offence.
(4) An authorised officer may apply to a relevant
tribunal or court within 3 months after the embargo
notice is issued for an extension of the time by
which the notice must be withdrawn under this
section.
(5) The relevant tribunal or court may order the
extension if it is satisfied the continued operation of
the embargo notice is necessary for investigation
purposes.
Division 3 Forfeiture and transfers
561 Power to forfeit particular things or samples
(1) If, under this Chapter, a thing or sample is taken for
examination by an authorised officer or a person
authorised by an authorised officer, or a thing or
sample is seized by an authorised officer, the
Regulator may decide it is forfeited to the
Regulator if an authorised officer--
(a) after making reasonable inquiries, can not
find its owner; or
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(b) after making reasonable efforts, can not
return it to its owner.
(2) However, the authorised officer is not required to--
(a) make inquiries if it would be unreasonable to
make inquiries to find the owner; or
(b) make efforts if it would be unreasonable to
make efforts to return the thing or sample to
its owner.
Example for the purposes of paragraph (b)--
the owner of the thing or sample has migrated to
another country
(3) Regard must be had to the thing's or sample's
condition, nature and value in deciding--
(a) whether it is reasonable to make inquiries or
efforts; and
(b) if inquiries or efforts are made--what
inquiries or efforts, including the period over
which they are made, are reasonable.
(4) A thing or sample seized under this Chapter by a
police officer can not be forfeited to the Regulator
but must be dealt with under--
(a) the national regulations, except as provided
by paragraph (b); or
(b) applicable legislation of the relevant State or
Territory.
562 Information notice for forfeiture decision
(1) If the Regulator decides under section 561(1) to
forfeit a thing or sample, the Regulator must as
soon as practicable give an information notice for
the decision to--
(a) the person from whom the thing or sample
was seized; and
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(b) the person who was the owner of the thing or
sample immediately before the forfeiture; and
(c) each person having a registered interest in the
thing or sample.
(2) The information notice may be given--
(a) by post; or
(b) in the case of the person from whom the thing
or sample was seized, by leaving the notice in
a conspicuous position and in a reasonably
secure way at--
(i) for a thing or sample taken for
examination, whether or not it is seized
under section 549--the place where the
thing or sample was taken; or
(ii) for a thing or sample seized under this
Chapter other than under section 549--
the place where the thing or sample was
seized.
(3) However, subsection (2)(b) does not apply if the
place is--
(a) a public place; or
(b) a place where the notice is unlikely to be read
by the person for whom it is intended.
563 Forfeited or transferred thing or sample
becomes property of the Regulator
A thing or sample becomes the property of the
Regulator if--
(a) the thing or sample is forfeited to the
Regulator under section 561(1); or
(b) the owner of the thing or sample and the
Regulator agree, in writing, to the transfer of
the ownership of the thing or sample to the
Regulator.
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564 How property may be dealt with
(1) This section applies if, under section 563, a thing or
sample becomes the property of the Regulator.
(2) The Regulator may take action under this section
after giving 28 days' notice of the intention to do so
to--
(a) the person from whom the thing or sample
was seized; and
(b) the person who was the owner of the thing or
sample immediately before the forfeiture; and
(c) each person having a registered interest in the
thing or sample.
(3) The Regulator may deal with the thing or sample as
the Regulator considers appropriate, including, for
example, by destroying it or giving it away.
(4) The Regulator must not deal with the thing or
sample in a way that could prejudice the outcome
of a review of the decision to forfeit the thing or
sample, or an appeal against the decision on that
review, under this Law.
(5) If the Regulator sells the thing or sample, the
Regulator may, after deducting the costs of the sale,
return the proceeds of the sale to the person who
was the owner of the thing or sample immediately
before the forfeiture.
565 Third party protection
(1) This section applies if, under section 563, a thing or
sample becomes the property of the Regulator and
applies to the following parties--
(a) the owner of the thing or sample, except
where the owner gave consent under
section 563(b);
(b) a person who has a registered interest in the
thing or sample.
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(2) A party mentioned in subsection (1) may apply to a
relevant tribunal or court for an order--
(a) that ownership of the thing or sample be
transferred to the applicant, if the applicant
had full ownership of the thing or sample
immediately before the thing or sample
became the property of the Regulator under
section 561; or
(b) that, if the applicant had a registered interest
in the thing or sample immediately before it
became the property of the Regulator--
(i) the thing or sample be sold; and
(ii) the Regulator pay to the applicant, and
any other persons with a registered
interest in the thing or sample, an
amount commensurate with the value of
their respective interest.
(3) If the thing or sample has been sold or otherwise
disposed of, the Regulator must pay to--
(a) an applicant who had a registered interest in
the thing or sample immediately before the
thing or sample was sold or otherwise
disposed of, an amount commensurate with
the value of the applicant's interest; or
(b) an applicant who was an owner of the thing
or sample, the amount obtained through its
sale or disposal.
(4)Leave of the relevant tribunal or court is
required to bring an application if 6 months or more
have elapsed since the thing or sample became the
property of the Regulator.
(5) The relevant tribunal or court may grant leave
under subsection (4) only if it is satisfied that the
delay in making the application was not due to the
applicant's neglect.
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(6) The relevant tribunal or court may make an order--
(a) declaring the nature, extent and, if necessary
for the order, the value (at the time the
declaration is made) of the applicant's
registered interest; and
(b) directing the Regulator--
(i) if the thing or sample is vested in the
Regulator and the applicant has full
ownership of the thing or sample, to
transfer ownership of the thing or
sample to the applicant; or
(ii) if the thing or sample is no longer vested
in the Regulator, or if the applicant does
not have full ownership of the thing or
sample, to pay to the applicant the value
of the applicant's registered interest in
the thing or sample.
(7) The relevant tribunal or court may make an order
under subsection (6) only if it is satisfied that the
offence with respect to which the thing or sample
was seized occurred without the knowledge or
consent of the applicant.
(8) Any amount to be paid under this section is to be
paid out of the proceeds (if any) of the sale of the
thing or sample.
(9) The Regulator may deduct any reasonable costs
incurred in dealing with the thing or sample from
an amount ordered to be paid under this section.
566 National regulations
The national regulations may prescribe--
(a) the circumstances in which the Regulator
must apply to the Registrar of Personal
Property Securities under the Personal
Property Securities Act 2009 of the
Commonwealth to register, amend or cancel
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an instrument in relation to a sample or thing
referred to in this Division; and
(b) the priority in which the proceeds of the
disposal of anything under this Division are
to be applied.
Division 4 Information-gathering powers
567 Power to require name, address and date of
birth
(1) This section applies if an authorised officer--
(a) finds a person committing an offence against
this Law; or
(b) finds a person in circumstances that lead the
officer to reasonably suspect the person has
committed an offence against this Law; or
(c) has information that leads the officer to
reasonably suspect a person has committed an
offence against this Law; or
(d) reasonably suspects a person is or was the
driver of or other person in charge of a heavy
vehicle that has been or may have been
involved in an incident involving the death
of, or injury to, a person or damage to
property; or
(e) reasonably suspects a person is or may be a
responsible person for a heavy vehicle; or
(f) reasonably suspects a person is or may be
able to help in the investigation of an offence
against this Law.
(2) The authorised officer may require the person to
state the person's name, address and date of birth.
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(3) The authorised officer may also require the person
to give evidence of the correctness of the stated
name, address or date of birth if--
(a) the officer reasonably suspects that the stated
name, address or date of birth is incorrect;
and
(b) in the circumstances, it would be reasonable
to expect the person to--
(i) be in possession of evidence of the
correctness of the stated name, address
or date of birth; or
(ii) otherwise be able to give the evidence.
(4) A person of whom a requirement is made under
subsection (2) or (3) must comply with the
requirement, unless the person has a reasonable
excuse.
Maximum penalty--$3000.
(5) If a person of whom a requirement is made under
subsection (2) or (3) requests, when the
requirement is made, the authorised officer to
produce the officer's identification details, the
officer must as soon as practicable produce for the
inspection of the person--
(a) for an authorised officer who is a police
officer--an identity card or other document
evidencing the officer's appointment as a
police officer; or
(b) for an authorised officer who is not a police
officer--the identity card issued to the officer
under this Law or another document
evidencing the officer's appointment as an
authorised officer.
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(6) Subsection (5)(a) does not apply to a police officer
in uniform.
(7) In a proceeding for an offence of contravening a
requirement made under subsection (2) to state a
business address, it is a defence for the person
charged to prove that--
(a) the person did not have a business address; or
(b) the person's business address was not
connected, directly or indirectly, with road
transport involving heavy vehicles.
(8) This section does not authorise an authorised
officer to impose a requirement under this section
in relation to an incident that involves the death of,
or injury to, a person unless the authorised officer
is a police officer.
(9) In this section--
address, of a person, includes the person's
residential and business address and, for a person
temporarily in this jurisdiction, includes the place
where the person is living in this jurisdiction.
568 Power to require production of document etc.
required to be in driver's possession
(1) This section applies if a heavy vehicle--
(a) is stationary on a road; or
(b) is in or at a place entered by an authorised
officer under Part 9.2; or
(c) has been stopped under section 513.
(2) An authorised officer may, for compliance
purposes, require the driver of the heavy vehicle to
produce, for inspection by the officer a document,
device or other thing the driver is required under
this Law to keep in the driver's possession while
driving the vehicle.
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Examples--
· a copy of a Commonwealth Gazette notice or permit
· a work diary
(3) A person of whom a requirement is made under
subsection (2) must comply with the requirement,
unless the person has a reasonable excuse.
Maximum penalty--an amount equal to the amount
of the maximum penalty for an offence of failing to
keep the document, device or other thing in the
driver's possession.
(4) It is not a reasonable excuse for the person to fail
to comply with a requirement made under
subsection (2)--
(a) that the person does not have the document,
device or other thing in his or her immediate
possession; or
(b) that complying with the requirement might
tend to incriminate the person or make the
person liable to a penalty.
(5) The authorised officer may--
(a) take a copy of, or an extract from, a document
mentioned in subsection (2); or
(b) produce an image or writing from a document
mentioned in subsection (2) that is an
electronic document; or
(c) take an extract from a device or other thing
mentioned in subsection (2), including, for
example--
(i) by taking a copy of, or an extract from, a
readout or other data obtained from the
device or other thing; or
(ii) by accessing and downloading
information from the device or other
thing; or
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(d) seize a document, device or other thing
mentioned in subsection (2) if the authorised
officer reasonably believes the document,
device or other thing may provide evidence of
an offence against this Law.
(6) If, under subsection (5), the authorised officer
copies, takes an extract from, or produces an image
or writing from, a document or an entry in a
document, the officer may require the person
responsible for keeping the document to certify the
copy as a true copy of the document or entry.
(7) A person of whom a requirement is made under
subsection (6) must comply with the requirement,
unless the person has a reasonable excuse.
Maximum penalty--$3000.
(8) If a document, device or other thing is produced to
an authorised officer under this section and it is not
seized under subsection (5)(d), the officer must
return it to the person who produced it--
(a) as soon as practicable after the officer
inspects it; or
(b) if the officer takes a copy of, extract from, or
produces an image or writing from, it under
subsection (5)(a), (b) or (c), as soon as
practicable after the copy or extract is taken
or the image or writing is produced.
(9) However, if a requirement is made of the person
under subsection (6) for a document, the authorised
officer may keep the document until the person
complies with the requirement.
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569 Power to require production of documents etc.
generally
(1) An authorised officer may require a responsible
person for a heavy vehicle to make available for
inspection by an authorised officer, or to produce to
an authorised officer for inspection, at a reasonable
time and place nominated by the officer--
(a) a document issued to the person under this
Law; or
(b) a document, device or other thing required to
be kept by the person under this Law or a
heavy vehicle accreditation; or
(c) transport documentation or journey
documentation in the person's possession or
under the person's control; or
(d) a document in the person's possession or
under the person's control relating to--
(i) the use, performance or condition of a
heavy vehicle; or
(ii) the ownership, insurance, licensing or
registration of a heavy vehicle; or
(iii) the load or equipment carried or
intended to be carried by a heavy
vehicle, including, for example, a
document relating to insurance of the
load or equipment; or
(e) a document in the person's possession or
under the person's control relating to any
business practices; or
(f) a document in the person's possession or
under the person's control showing that a
heavy vehicle's garage address recorded in
the vehicle register is or is not the vehicle's
actual garage address.
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(2) A person of whom a requirement is made under
subsection (1) must comply with the requirement,
unless the person has a reasonable excuse.
Maximum penalty--$6000.
(3) Compliance with a requirement made under
subsection (1) for an electronic document requires
the making available or production of a clear
written reproduction of the electronic document.
(4) It is not a reasonable excuse for the person to fail to
comply with a requirement made under subsection
(1) that complying with the requirement might tend
to incriminate the person or make the person liable
to a penalty.
(5) The authorised officer may--
(a) take a copy of, or an extract from, a document
mentioned in subsection (1); or
(b) produce an image or writing from a document
mentioned in subsection (1) that is an
electronic document; or
(c) take an extract from a device or other thing
mentioned in subsection (1)(b), including, for
example--
(i) by taking a copy of, or an extract from, a
readout or other data obtained from the
device or other thing; or
(ii) by accessing and downloading
information from the device or other
thing; or
(d) seize a document, device or other thing
mentioned in subsection (1) if the authorised
officer reasonably believes the document,
device or other thing may provide evidence of
an offence against this Law.
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(6) If, under subsection (5), the authorised officer
copies, takes an extract from, or produces an image
or writing from, a document or an entry in a
document, the officer may require the person
responsible for keeping the document to certify the
copy as a true copy of the document or entry.
(7) A person of whom a requirement is made under
subsection (6) must comply with the requirement,
unless the person has a reasonable excuse.
Maximum penalty--$3000.
(8) If a document, device or other thing is produced to
an authorised officer under this section and it is not
seized under subsection (5)(d), the officer must
return it to the person who produced it--
(a) as soon as practicable after the officer
inspects it; or
(b) if the officer takes a copy of, extract from, or
produces an image or writing from, it under
subsection (5)(a), (b) or (c), as soon as
practicable after the copy or extract is taken
or the image or writing is produced.
(9) However, if a requirement is made of the person
under subsection (6) for a document, the authorised
officer may keep the document until the person
complies with the requirement.
(10) A requirement under subsection (1) in relation to a
document referred to in subsection (1)(e) may be
made only in relation to an alleged or possible
offence against section 204 or 230.
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570 Power to require information about heavy
vehicles
(1) An authorised officer may, for compliance
purposes, require a responsible person for a heavy
vehicle to give the officer--
(a) information about the vehicle or any load or
equipment carried or intended to be carried
by the vehicle; or
(b) personal details known to the responsible
person about any other responsible person for
the vehicle.
(2) Without limiting subsection (1), a responsible
person who is associated with a particular vehicle
may be required to provide information about the
current or intended journey of the vehicle,
including, for example, the following--
(a) the location of the start or intended start of
the journey;
(b) the route or intended route of the journey;
(c) the location of the destination or intended
destination of the journey.
(3) A person of whom a requirement is made under
subsection (1) must comply with the requirement,
unless the person has a reasonable excuse.
Maximum penalty--$6000.
(4) Without limiting what may be a reasonable excuse
for the purposes of subsection (3), in a proceeding
for an offence of contravening a requirement under
subsection (1), it is a defence for the person
charged to prove that the person did not know, and
could not be reasonably expected to know or
ascertain, the required information.
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(5) It is not a reasonable excuse for a person to fail to
comply with a requirement made under subsection
(1) that complying with the requirement might tend
to incriminate the person or make the person liable
to a penalty.
(6) In this section--
information includes electronically stored
information.
personal details, about a responsible person,
means--
(a) the person's name; or
(b) the person's residential address or business
address.
responsible person, for a heavy vehicle, for the
exercise of a power under this section in relation to
a speeding offence, does not include--
(a) a person mentioned in section 5, definition
responsible person, paragraph (i), (j), (k)
or (n); or
Note--
Those paragraphs deal with persons who pack, load
or unload goods or containers, and owners and
operators etc. of weighbridges or weighbridge
facilities.
(b) an employer, employee, agent or
subcontractor of that person.
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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Division 5 Improvement notices
571 Authorised officers to whom Division applies
(1) This Division applies to an authorised officer who
is a police officer only if the police officer has the
relevant police commissioner's written authority to
issue improvement notices under this Division.
(2) This Division applies to an authorised officer who
is not a police officer only if the officer's
instrument of appointment provides that the
authorised officer may issue improvement notices
under this Division.
572 Improvement notices
(1) This section applies if an authorised officer
reasonably believes a person has contravened or is
contravening a provision of this Law in
circumstances that make it likely that the
contravention will continue or be repeated.
(2) The authorised officer may give the person a notice
(an improvement notice) requiring the person to
take action within a stated period to stop the
contravention from continuing or occurring again
or to remedy the matters or activities occasioning
the contravention.
(3) The period stated in the improvement notice within
which the person is required to comply with the
notice must be at least 7 days after the notice is
given unless the authorised officer is satisfied it is
reasonable to require the person to comply with the
notice in a shorter period because--
(a) it is reasonably practicable for the person to
comply with the notice within the shorter
period; and
(b) requiring the person to comply with the
notice within the shorter period is not likely
to involve--
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(i) a higher cost to the person to comply
with the notice; or
(ii) a more adverse effect on the person's
business operations.
(4) The improvement notice must be in the approved
form and state the following--
(a) that the authorised officer reasonably believes
the person has contravened or is contravening
a provision of this Law in circumstances that
make it likely that the contravention will
continue or be repeated;
(b) the reasons for that belief;
(c) the provision of this Law in relation to which
that belief is held;
(d) that the person must take action within a
stated period to stop the contravention from
continuing or occurring again or to remedy
the matters or activities occasioning the
contravention;
(e) the review and appeal information for the
decision to give the notice;
(f) that the notice is given under this section.
(5) The improvement notice may state the way the
action is to be taken.
573 Contravention of improvement notice
(1) A person given an improvement notice must
comply with the notice, unless the person has a
reasonable excuse.
Maximum penalty--$10000.
(2) In a proceeding for an offence against subsection
(1), it is a defence for the person charged to prove
that the alleged contravention, or the matters or
activities occasioning the alleged contravention,
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were remedied within the period stated in the
improvement notice, though in a way different to
that stated in the notice.
(3) A person who is given an improvement notice in
relation to a contravention of a provision of this
Law can not be proceeded against for an offence
constituted by the contravention unless--
(a) the person fails to comply with the
improvement notice and does not have a
reasonable excuse for the noncompliance; or
(b) the improvement notice is revoked under
section 575.
574 Amendment of improvement notice
(1) An improvement notice given by an authorised
officer who is a police officer may be amended by
any authorised officer who is a police officer and
who has the relevant police commissioner's written
authority to issue improvement notices under this
Division.
(2) An improvement notice given by an authorised
officer who is not a police officer may be amended
by any authorised officer who is not a police
officer.
(3) An amendment of an improvement notice given to
a person is ineffective to the extent it purports to
deal with a contravention of a different provision of
this Law to that dealt with in the improvement
notice when first given.
(4) If an authorised officer decides to amend an
improvement notice given to a person, the officer
must give the person notice of the amendment
stating the following--
(a) the amendment;
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(b) the reasons for the amendment;
(c) the review and appeal information for the
decision to amend the improvement notice.
Note--
Section 23 of Schedule 1 allows for the amendment of an
improvement notice.
575 Revocation of an improvement notice
(1) An improvement notice given to a person by an
authorised officer who is a police officer may be
revoked, by giving notice of the revocation to the
person, by--
(a) the relevant police commissioner; or
(b) an authorised officer who--
(i) is a police officer; and
(ii) has the relevant police commissioner's
written authority to issue improvement
notices under this Division; and
(iii) is more senior in rank to the police
officer who gave the notice to the
person.
(2) An improvement notice given to a person by an
authorised officer who is not a police officer may
be revoked by the Regulator by giving notice of the
revocation to the person.
(3) Section 23 of Schedule 1 does not apply in relation
to the revocation of the improvement notice.
576 Clearance certificate
(1) An approved authorised officer may issue a
certificate (a clearance certificate) stating that all
or stated requirements of an improvement notice
have been complied with.
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(2) If a person to whom an improvement notice is
given receives a clearance certificate about the
improvement notice, each requirement of the
improvement notice that the certificate states has
been complied with stops being operative.
(3) In this section--
approved authorised officer means--
(a) for an improvement notice given by an
authorised officer who is a police officer--
any authorised officer who is a police officer
and who has the relevant police
commissioner's written authority to issue
improvement notices under this Division; or
(b) for an improvement notice given by an
authorised officer who is not a police
officer--any authorised officer who is not a
police officer.
Division 6 Power to require reasonable
help
577 Power to require reasonable help
(1) An authorised officer who enters a place under this
Chapter may require an occupier of the place or a
person at the place to give the officer reasonable
help to exercise a power under this Chapter.
(2) An authorised officer who is exercising a power
under this Chapter in relation to a heavy vehicle on
a road may require the vehicle's driver to give the
officer reasonable help to exercise the power.
(3) Without limiting subsection (1) or (2), a
requirement under the subsection may be that the
occupier, person or driver--
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(a) produce a document or give information to
the authorised officer; or
Example--
The authorised officer wishes to obtain information
relating to the purpose of the entry. Information of that
type is stored or recorded on a computer at the place.
The authorised officer may require the occupier to give
reasonable help to produce a reproduction of the
information from the computer.
(b) help the authorised officer to find and gain
access to a document or information,
including electronically stored information;
or
Examples of documents or information--
· a document about the heavy vehicle's performance,
specifications (including the dimensions and other
physical attributes of the vehicle or its fittings),
functional capabilities (including the vehicle's GVM,
GCM and speed capabilities) or authorised operations
required to be kept in the vehicle under this Law or a
heavy vehicle accreditation
· a weighing document for a container loaded on to the
heavy vehicle
· a telephone record
(c) help the authorised officer to weigh or
measure--
(i) a heavy vehicle or a component of a
heavy vehicle; or
(ii) the whole or part of a heavy vehicle's
load or equipment; or
(d) start or stop the engine of a heavy vehicle
under section 523; or
(e) help the authorised officer to operate
equipment or facilities for a purpose relevant
to the power being or proposed to be
exercised; or
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(f) provide access free of charge to photocopying
equipment for the purpose of copying any
records or other material.
(4) A person of whom a requirement is made under
subsection (1) or (2) must comply with the
requirement, unless the person has a reasonable
excuse.
Maximum penalty--$10000.
(5) Without limiting what may be a reasonable excuse
for the purposes of subsection (4), it is a reasonable
excuse for a person not to comply with a
requirement made under subsection (1) or (2) if
doing so would require the person to take action
that is outside the scope of the business or other
activities of the person.
(6) It is not a reasonable excuse for a person to fail to
comply with a requirement made under subsection
(1) or (2), in relation to a document or information
that is the subject of the requirement, if doing so
might tend to incriminate the person or make the
person liable to a penalty.
(7) If a requirement made under subsection (1) or (2) is
that the occupier of, or person at, a place start or
stop the engine of a heavy vehicle--
(a) it is immaterial that the occupier or person is
not--
(i) the operator of the vehicle; or
(ii) authorised by the operator to drive the
vehicle or start or stop its engine; or
(iii) qualified to drive the vehicle or start or
stop its engine; and
(b) in starting or stopping the engine of the
vehicle in compliance with the requirement,
the occupier or person is exempt from a
provision of an Australian road law to the
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extent the provision would require the
occupier or person to be qualified to start or
stop the engine.
Part 9.5 Provisions about exercise
of powers
Division 1 Damage in exercising powers
578 Duty to minimise inconvenience or damage
(1) In exercising a power under this Law, an authorised
officer must take all reasonable steps to cause as
little inconvenience, and do as little damage, as
possible.
(2) Subsection (1) does not provide for a statutory right
of compensation other than as provided under
Division 2.
Note--
Division 2 provides for compensation for costs, damage or
loss incurred because of the exercise of a power by an
authorised officer under this Chapter.
579 Restoring damaged thing
(1) This section applies if--
(a) an authorised officer damages something
when exercising, or purporting to exercise, a
power under this Law and the damage was
caused by an improper or unreasonable
exercise of the power or the use of
unauthorised force; or
(b) a person (the assistant) acting under the
direction or authority of an authorised officer
damages something and the damage was
caused by an improper or unreasonable
exercise of a power or the use of unauthorised
force.
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(2) The authorised officer must take all reasonable
steps to restore the thing to the condition it was in
immediately before the officer exercised the power,
or the assistant took action under the officer's
direction or authority.
580 Notice of damage
(1) This section applies if--
(a) an authorised officer damages something
when exercising, or purporting to exercise, a
power under this Law; or
(b) a person (the assistant) acting under the
direction or authority of an authorised officer
damages something.
(2) However, this section does not apply to damage if
the authorised officer reasonably believes--
(a) the thing has been restored to the condition it
was in immediately before the officer
exercised the power, or the assistant took
action under the officer's direction or
authority; or
(b) the damage is trivial; or
(c) there is no-one apparently in possession of
the thing; or
(d) the thing has been abandoned; or
(e) the damage was not caused by an improper or
unreasonable exercise of a power or the use
of unauthorised force.
(3) The authorised officer must give notice of the
damage to the person who appears to the officer to
be an owner, or person in control, of the thing.
(4) However, if for any reason it is not practicable to
comply with subsection (3), the authorised officer
must--
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(a) leave the notice at the place where the
damage happened; and
(b) ensure it is left in a conspicuous position and
in a reasonably secure way.
(5) The notice must state--
(a) particulars of the damage; and
(b) that the person who suffered the damage may
claim compensation under section 581.
(6) If the authorised officer believes the damage was
caused by a latent defect in the thing or
circumstances beyond the control of the officer or
the assistant the officer may state the belief in the
notice.
(7) The authorised officer may delay complying with
subsection (3) or (4) if the officer reasonably
suspects complying with the subsection may
frustrate or otherwise hinder an investigation by the
officer under this Law.
(8) The delay may be only for so long as the authorised
officer continues to have the reasonable suspicion
and remains in the vicinity of the place.
Division 2 Compensation
581 Compensation because of exercise of powers
(1) 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, including
costs, damage or loss incurred because of
compliance with a requirement made of the person
under this Chapter.
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(2) However, subsection (1) does not apply--
(a) to costs, damage or loss incurred because of a
lawful seizure or forfeiture; or
(b) if the costs, damage or loss was not caused by
an improper or unreasonable exercise of a
power or the use of unauthorised force.
(3) The compensation may be claimed and ordered in a
proceeding--
(a) brought in a court with jurisdiction for the
recovery of the amount of compensation
claimed; or
(b) for an offence against this Law in relation to
which the power was exercised or
purportedly exercised.
(4) A court may order the payment of compensation
only if it is satisfied it is just to make the order in
the circumstances of the particular case.
(5) In considering whether it is just to order
compensation, the court must have regard to any
relevant offence committed by the claimant.
(6) The national regulations may prescribe other
matters that may, or must, be taken into account by
the court when considering whether it is just to
order compensation.
Division 3 Provision about exercise of
particular powers
582 Duty to record particular information in driver's
work diary
(1) This section applies if, under this Law, an
authorised officer directs the driver of a fatigue-
regulated heavy vehicle to stop the vehicle for
compliance purposes.
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(2) If, for the exercise or purported exercise of a power
under this Law, the authorised officer detains the
driver for 5 minutes or longer, the driver may ask
the officer to record the following details in the
driver's work diary--
(a) the officer's identifying details;
(b) the time, date and place at which the driver
stopped the heavy vehicle in compliance with
the officer's direction;
(c) the length of time the driver spent talking to
the officer in the exercise or purported
exercise of a power under this Law.
(3) The authorised officer must comply with the
request.
(4) An authorised officer complies with subsection
(2)(a) by recording either his or her name, or his or
her identification number.
Part 9.6 Miscellaneous provisions
Division 1 Powers of Regulator
583 Regulator may exercise powers of authorised
officers
(1) The Regulator may exercise a power that is
conferred on authorised officers under this Law,
and accordingly the functions of the Regulator
include the powers exercisable by the Regulator
under this subsection.
(2) Subsection (1) does not apply to a power that
requires the physical presence of an authorised
officer.
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Division 2 Other offences relating to
authorised officers
584 Obstructing authorised officer
(1) A person must not obstruct--
(a) an authorised officer, or someone helping an
authorised officer, exercising a power under
this Law; or
(b) an assistant mentioned in section 518, 519
or 523 exercising a power under that section.
Maximum penalty--$10000.
(2) In this section--
obstruct includes assault, hinder, resist, attempt to
obstruct and threaten to obstruct.
585 Impersonating authorised officer
A person must not impersonate an authorised
officer.
Maximum penalty--$10000.
Division 3 Other provisions
586 Multiple requirements
An authorised officer may--
(a) on the same occasion--
(i) give more than 1 direction to, or make
more than 1 requirement of, a person
under a provision of this Chapter; or
(ii) give a direction to, or make a
requirement of, a person under a
provision of this Chapter and give a
direction to, or make a requirement of,
the person under 1 or more other
provisions of this Chapter; or
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(b) give a direction to, or make a requirement of,
a person under a provision and give a further
direction to, or make a further requirement of,
the person under the same provision; or
(c) make a combination of directions or
requirements under paragraph (a)(i) or (ii)
or (b).
587 Compliance with particular requirements
(1) A person is not excused from compliance with a
requirement imposed by an authorised officer under
this Chapter on the ground that compliance might
incriminate the person or make the person liable to
a penalty.
(2) Subsection (1) has effect subject to section 588.
588 Evidential immunity for individuals complying
with particular requirements
(1) This section applies to a requirement made by an
authorised officer under section 569(1)(c) to (f),
570 or 577.
(2) The following is not admissible in evidence against
an individual in a criminal proceeding (except a
proceeding for an offence against this Chapter)--
(a) information provided by an individual in
compliance with the requirement;
(b) information directly or indirectly derived
from information mentioned in paragraph (a).
(3) Any document produced by an individual in
compliance with the requirement is not
inadmissible in evidence against the individual in a
criminal proceeding on the ground that the
document might incriminate the individual.
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(4) Subsection (2) does not apply to a proceeding about
the false or misleading nature of anything in the
information or in which the false or misleading
nature of the information is relevant evidence.
589 Effect of withdrawal of consent to enter under
this Chapter
(1) This section applies if--
(a) an authorised officer enters a place with the
occupier's consent and has obtained evidence
at the place; but
(b) the occupier's consent is later withdrawn.
(2) The evidence obtained (including any evidence
seized) up to the time the consent is withdrawn is
not invalid or inadmissible in proceedings for a
contravention of this Law merely because the
consent was withdrawn.
Chapter 10 Sanctions and
provisions about
liability for offences
Part 10.1 Formal warnings
590 Formal warning
(1) This section applies if an authorised officer
reasonably believes--
(a) a person has contravened this Law; and
(b) the person had taken reasonable steps to
prevent the contravention and was unaware of
the contravention; and
(c) the contravention may appropriately be dealt
with by way of a warning under this section.
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(2) The authorised officer may give the person a
written warning.
(3) However, a warning must not be given for a
contravention of a mass, dimension or loading
requirement constituting a substantial risk breach or
severe risk breach.
(4) Subject to subsection (6), if a warning is given to a
person under this section for a contravention of this
Law, the person can not be proceeded against for
an offence against this Law constituted by the
contravention.
(5) A warning given under this section may, within
21 days after it is given, be withdrawn by an
approved authorised officer by giving the person to
whom the warning was given notice of the
withdrawal.
(6) After a warning given under this section is
withdrawn under subsection (5), a proceeding may
be taken against the person to whom the warning
was given for the contravention for which the
warning was given.
(7) In this section--
approved authorised officer means--
(a) for a warning given under this section by an
authorised officer who is a police officer--an
authorised officer who is a police officer and
who has the relevant police commissioner's
written authority to withdraw warnings given
under this section; or
(b) for a warning given under this section by an
authorised officer who is not a police
officer--an authorised officer whose
instrument of appointment provides that the
authorised officer may withdraw warnings
given under this section.
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proceeding includes action by way of an
infringement notice.
Part 10.2 Infringement notices
591 Infringement notices
(1) An authorised officer who reasonably believes that
a person has committed a prescribed offence
against this Law may serve the person with an
infringement notice issued as an alternative to
prosecution in court for the offence.
(2) The procedures to be followed in connection with
infringement notices issued for the purposes of this
Law as applied in this jurisdiction are to be the
procedures prescribed by or under the Infringement
Notice Offences Law of this jurisdiction.
(3) In this section--
prescribed offence means an offence prescribed by
a law of this jurisdiction for the purposes of this
section.
592 Recording information about infringement
penalties
(1) The Regulator may keep a record of--
(a) each infringement notice issued for the
purposes of this Law; and
(b) the payment of a fine sought by an
infringement notice by a person to whom the
notice is issued for the purposes of this Law.
(2) Information in a record kept under subsection (1)
may be used only--
(a) to accumulate aggregate data for research or
education; or
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(b) in a proceeding relating to the offence for
which the infringement notice was issued,
including, for example, an appeal against the
conviction for the offence; or
(c) in a proceeding for an offence (the extended
liability offence) where--
(i) the extended liability offence arises in
connection with another offence
(the relevant offence) for which the
infringement notice was issued; and
(ii) a provision of this Law (for example,
section 315(5)) provides that evidence
of details stated in the infringement
notice is evidence in the proceeding that
the relevant offence happened at the
time and place, and in the
circumstances, stated in the
infringement notice; or
(d) for the purposes of section 601(b) or 608(b);
or
(e) as authorised under subsection (3).
(3) Information in a record kept under subsection (1)(a)
may be used by authorised officers in connection
with the exercise of functions under this Law.
Part 10.3 Court sanctions
Division 1 General provisions
593 Penalties court may impose
(1) A court that finds a person guilty of an offence
against this Law may impose any 1 or more of the
penalties provided for in this Part.
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(2) Without limiting the court's discretion, when
imposing 2 or more penalties under this Part, the
court must take into account the combined effect of
the penalties imposed.
(3) This Part does not limit the powers or discretion of
the court under another law.
594 Matters court must consider when imposing
sanction for noncompliance with mass,
dimension or loading requirement
(1) The purpose of this section is to bring to a court's
attention the implications and consequences of a
contravention of a mass, dimension or loading
requirement when deciding the kind and level of
sanction to be imposed for the contravention.
(2) In deciding the sanction, including the level of a
fine, to be imposed for the contravention, the court
must consider the following matters--
(a) a minor risk breach of a mass, dimension or
loading requirement involves either or both of
the following--
(i) an appreciable risk of accelerated road
wear;
(ii) an appreciable risk of unfair commercial
advantage;
(b) a substantial risk breach of a mass, dimension
or loading requirement involves 1 or more of
the following--
(i) a substantial risk of accelerated road
wear;
(ii) an appreciable risk of damage to road
infrastructure;
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(iii) an appreciable risk of increased traffic
congestion;
(iv) an appreciable risk of diminished public
amenity;
(v) a substantial risk of unfair commercial
advantage;
(c) a severe risk breach of a mass, dimension or
loading requirement involves 1 or more of the
following--
(i) an appreciable risk of harm to public
safety or the environment;
(ii) a serious risk of accelerated road wear;
(iii) a serious risk of damage to road
infrastructure;
(iv) a serious risk of increased traffic
congestion;
(v) a serious risk of diminished public
amenity;
(vi) a serious risk of unfair commercial
advantage.
(3) This section does not limit the matters the court
may consider in deciding the sanction for the
contravention.
(4) Nothing in this section authorises or requires the
court to assign the contravention to a different risk
category.
(5) Nothing in this section requires evidence to
be adduced about a matter mentioned in
subsection (2).
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595 Court may treat noncompliance with mass,
dimension or loading requirement as a different
risk category
(1) If a court is satisfied there has been a contravention
of a mass, dimension or loading requirement but is
not satisfied the contravention is a substantial risk
breach or a severe risk breach, the court may treat
the contravention as a minor risk breach.
(2) If a court is satisfied there has been a contravention
of a mass, dimension or loading requirement and
that the contravention is at least a substantial risk
breach but is not satisfied the contravention is a
severe risk breach, the court may treat the
contravention as a substantial risk breach.
Division 2 Provisions about imposing
fines
596 Body corporate fines under penalty provision
(1) This section applies to a provision of this Law
that--
(a) prescribes a maximum fine for an offence;
and
(b) does not expressly prescribe a maximum fine
for a body corporate different to the
maximum fine for an individual.
(2) The maximum fine is taken only to be the
maximum fine for an individual.
(3) If a body corporate is found guilty of the offence,
the court may impose a maximum fine of an
amount equal to 5 times the maximum fine for an
individual.
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Division 3 Commercial benefits penalty
orders
597 Commercial benefits penalty order
(1) If a court convicts a person of an offence against
this Law, the court may, on application by the
prosecutor, make an order (a commercial benefits
penalty order) requiring the person to pay, as a
fine, an amount not exceeding 3 times the amount
estimated by the court to be the gross commercial
benefit--
(a) received or receivable, by the person or by an
associate of the person, from the commission
of the offence; and
(b) for a journey that was interrupted or not
commenced because of action taken by an
authorised officer in connection with the
commission of the offence--that would have
been received or receivable, by the person or
by an associate of the person, from the
commission of the offence had the journey
been completed.
(2) In estimating the gross commercial benefit, the
court may take into account--
(a) benefits of any kind, whether or not
monetary; and
(b) any other matters it considers relevant,
including, for example--
(i) the value of any goods involved in the
offence; and
(ii) the distance over which the goods were,
or were to be, carried.
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(3) However, in estimating the gross commercial
benefit, the court must disregard any costs,
expenses or liabilities incurred by the person or by
an associate of the person.
(4) Nothing in this section prevents the court from
ordering payment of an amount that is less than the
estimated gross commercial benefit.
Division 4 Cancelling or suspending
registration
598 Power to cancel or suspend vehicle registration
(1) This section applies if a court convicts a person
of--
(a) an offence against this Law relating to a
contravention of a mass, dimension or
loading requirement constituting a severe risk
breach; or
(b) an offence against this Law other than an
offence relating to a contravention of a mass,
dimension or loading requirement.
(2) The court may make an order that the registration
of a heavy vehicle in relation to which the offence
was committed and of which the person is a
registered operator is--
(a) cancelled; or
(b) suspended for a stated period.
(3) If the court makes an order under subsection (2)
against a person, the court may also make an order
that the person, or an associate of the person, is
disqualified from applying for the registration of
the heavy vehicle for a stated period.
(4) If the court considers that another person who is not
present in court may be substantially affected by an
order under subsection (2) or (3), the court may
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issue a summons to that person to show cause why
the order should not be made.
(5) The court is to ensure that the Regulator is notified
of the decision to make an order under subsection
(2) or (3) and the terms of the order, but failure to
do so does not invalidate the decision or the order.
Division 5 Supervisory intervention
orders
599 Application of Div 5
This Division applies if a court--
(a) convicts a person (the convicted person) of
an offence against this Law; and
(b) considers the person to be, or likely to
become, a systematic or persistent offender of
this Law having regard to the circumstances
of offences against this Law and previous
corresponding laws for which the person has
previously been convicted.
600 Court may make supervisory intervention order
(1) The court may, on application by the prosecutor or
the Regulator, make an order (a supervisory
intervention order) requiring the convicted person,
at the person's own expense and for a stated period
of not more than 1 year, to do 1 or more of the
following--
(a) stated things the court considers will improve
the person's compliance with this Law, or
stated aspects of this Law, including, for
example--
(i) appointing staff to, or removing staff
from, particular positions; or
(ii) training and supervising staff; or
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(iii) obtaining expert advice about
maintaining compliance with this Law,
or stated aspects of this Law; or
(iv) installing equipment for monitoring or
managing compliance with this Law, or
stated aspects of this Law, including, for
example, intelligent transport system
equipment; or
(v) implementing practices, systems or
procedures for monitoring or ensuring
compliance with this Law, or stated
aspects of this Law;
(b) implement stated practices, systems or
procedures for monitoring or ensuring
compliance with this Law, or stated aspects
of this Law, subject to the direction of the
Regulator or a person nominated by the
Regulator;
(c) give compliance reports about the convicted
person to the Regulator or the court (or both),
in a stated way and for stated periods;
(d) appoint a person to have the following
responsibilities--
(i) helping the convicted person to improve
the convicted person's compliance with
this Law or stated aspects of this Law;
(ii) monitoring the convicted person's
compliance with this Law or stated
aspects of this Law and with the order;
(iii) giving compliance reports about the
convicted person to the Regulator or the
court (or both), in a stated way and for
stated periods.
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(2) In this section--
compliance report, about a person in relation to
whom a supervisory intervention order is made,
means a report about the person's compliance with
this Law, stated aspects of this Law, or the order,
including, for example, a report containing stated
information about--
(a) things done by the person to ensure
compliance with this Law or stated aspects of
this Law; and
(b) the effect of the things mentioned in
paragraph (a).
601 Limitation on making supervisory intervention
order
The court may make a supervisory intervention
order only if the court is satisfied the order is
capable of improving the convicted person's ability
or willingness to comply with this Law having
regard to--
(a) the offences against this Law or a previous
corresponding law for which the person has
previously been convicted; and
(b) the offences against this Law or a previous
corresponding law for which the person has
been proceeded against by way of
unwithdrawn infringement notices; and
(c) any other offences or other matters that the
court considers relevant to the person's
conduct in connection with road transport.
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602 Supervisory intervention order may suspend
other sanctions
(1) A supervisory intervention order may direct that
any other penalty or sanction imposed for the
offence to which it relates is suspended until the
order ends unless the court decides there has been a
substantial failure to comply with the order.
(2) For the purposes of subsection (1), a court may
decide that a failure to comply with a supervisory
intervention order is a substantial failure if the
failure causes, or creates a risk of, serious harm to
public safety, the environment or road
infrastructure.
603 Amendment or revocation of supervisory
intervention order
A court that makes a supervisory intervention order
may, on application by the Regulator or the person
to whom the order applies, amend or revoke the
order if the court is satisfied there has been a
change in circumstances warranting the amendment
or revocation.
604 Contravention of supervisory intervention
order
A person to whom a supervisory intervention order
applies must comply with the order, unless the
person has a reasonable excuse.
Maximum penalty--$10000.
605 Effect of supervisory intervention order if
prohibition order applies to same person
(1) This section applies if both a supervisory
intervention order and a prohibition order is in
force at the same time against the same person.
(2) The supervisory intervention order has no effect
while the prohibition order has effect.
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Division 6 Prohibition orders
606 Application of Div 6
This Division applies if a court--
(a) convicts a person (the convicted person) of
an offence against this Law; and
(b) considers the person to be, or likely to
become, a systematic or persistent offender of
this Law having regard to the circumstances
of offences against this Law and previous
corresponding laws for which the person has
previously been convicted.
607 Court may make prohibition order
(1) The court may, on application by the prosecutor or
the Regulator, make an order (a prohibition order)
prohibiting the convicted person, for a stated period
of not more than 1 year, from having a stated role
or responsibility associated with road transport.
(2) However, the court can not make a prohibition
order prohibiting the convicted person from driving
a vehicle or having a vehicle registered or licensed
under an Australian road law in the convicted
person's name.
608 Limitation on making prohibition order
The court may make a prohibition order only if the
court is satisfied the convicted person should not
continue to have the role or responsibilities
prohibited by the order, and that a supervisory
intervention order is not appropriate, having regard
to--
(a) the offences against this Law or a previous
corresponding law for which the person has
previously been convicted; and
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(b) the offences against this Law or a previous
corresponding law for which the person has
been proceeded against by way of
unwithdrawn infringement notices; and
(c) any other offences or other matters that the
court considers relevant to the person's
conduct in connection with road transport.
609 Amendment or revocation of prohibition order
A court that makes a prohibition order may, on
application by the Regulator or the person to whom
the order applies, amend or revoke the order if the
court is satisfied there has been a change in
circumstances warranting the amendment or
revocation.
610 Contravention of prohibition order
A person to whom a prohibition order applies must
comply with the order, unless the person has a
reasonable excuse.
Maximum penalty--$10000.
Division 7 Compensation orders
611 Court may make compensation order
(1) A court that convicts a person (the convicted
person) of an offence against this Law may make
an order (a compensation order) requiring the
convicted person to pay the road manager for a
road, by way of compensation, an amount the court
considers appropriate for loss incurred, or likely to
be incurred, by the road manager for damage
caused to road infrastructure as a result of the
offence.
(2) A compensation order may be made on the
application of the prosecutor, the Regulator or the
road manager.
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(3) The court may make a compensation order in
relation to damage the court considers, on the
balance of probabilities, was caused or partly
caused by the commission of the offence.
(4) The court may make a compensation order--
(a) when the court gives its sentence for the
offence; or
(b) at a later time, but not after the end of the
period within which a proceeding for the
offence must start under this Law.
Note--
See section 707 for the period within which a proceeding
for an offence against this Law must start.
612 Assessment of compensation
(1) In making a compensation order, the court may
assess the amount of compensation required to be
paid by the order in the way it considers
appropriate, including, for example, by reference to
the estimated cost of remedying the damage.
(2) In assessing the amount of compensation, the court
may have regard to--
(a) evidence adduced in connection with the
prosecution of the offence; and
(b) any evidence not adduced in connection with
the prosecution of the offence but adduced in
connection with the making of the order; and
(c) if the road manager is a public authority--
(i) any certificate of the public authority
stating that the authority is responsible
for maintaining the road infrastructure in
relation to which the order is sought;
and
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(ii) any other certificate of the public
authority, including, for example, a
certificate--
(A) estimating the monetary value of
all or part of the road
infrastructure in relation to which
the order is sought; or
(B) estimating the monetary value of,
or the cost of remedying, the
damage to the road infrastructure
in relation to which the order is
sought; or
(C) estimating the extent to which the
commission of the offence
contributed to the damage to the
road infrastructure in relation to
which the order is sought; and
(d) any other matters the court considers relevant.
(3) A person who purportedly signs a certificate of a
type mentioned in subsection (2)(c) on behalf of a
public authority is presumed, unless the contrary is
proved, to have been authorised by the public
authority to sign the certificate on the public
authority's behalf.
613 Use of certificates in assessing compensation
(1) If a public authority proposes to submit a certificate
mentioned in section 612(2)(c) in a proceeding for
the making of a compensation order, the public
authority must give a copy of the certificate to the
defendant at least 28 days before the day fixed for
the hearing of the proceeding.
(2) A certificate of the public authority can not be used
in a proceeding for the making of a compensation
order unless the public authority has complied with
subsection (1).
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(3) A defendant who intends to challenge a matter
stated in a certificate mentioned in section
612(2)(c) in a proceeding for the making of a
compensation order must--
(a) give the public authority notice of the
intention to challenge the matter; and
(b) if the defendant is intending to challenge the
accuracy of any measurement, analysis or
reading in the certificate--
(i) state the reason why the defendant
alleges that it is inaccurate; and
(ii) state the measurement, analysis or
reading that the defendant considers to
be correct.
(4) The notice must be--
(a) signed by the defendant; and
(b) given at least 14 days before the day fixed for
the hearing of the proceeding.
(5) A defendant can not challenge a matter stated in a
certificate mentioned in section 612(2)(c) in a
proceeding for the making of a compensation order
unless--
(a) the defendant has complied with subsections
(3) and (4); or
(b) the court gives leave to the defendant to
challenge the matter, in the interests of
justice.
614 Limits on amount of compensation
(1) If, in making a compensation order, the court is
satisfied that the commission of the offence
concerned contributed to damage to road
infrastructure but that other factors not connected
with the commission of the offence also contributed
to the damage, the court must limit the amount of
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compensation payable under the order to the
amount it assesses as being attributable to the
defendant's conduct.
(2) The amount of compensation payable under a
compensation order can not exceed the monetary
jurisdictional limit of the court in civil proceedings.
(3) The court may not include in a compensation order
any amount for--
(a) personal injury or death; or
(b) loss of income (whether suffered by the road
manager or another entity); or
(c) damage to property that is not part of the road
infrastructure concerned.
615 Costs
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, and the relevant laws applying to
costs in relation to civil proceedings before the
court apply with any necessary changes to costs in
relation to proceedings for the making of a
compensation order.
616 Enforcement of compensation order and costs
A compensation order, and any award of costs in
relation to a proceeding for the making of a
compensation order, are taken to be, and are
enforceable as, a judgment of the court sitting in
civil proceedings.
617 Relationship with orders or awards of other
courts and tribunals
(1) A compensation order may not be made in favour
of a road manager for a road in relation to damage
to road infrastructure if another court or tribunal
has awarded compensatory damages or
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compensation in civil proceedings to the road
manager in relation to the damage based on the
same or similar facts.
(2) If a court purports to make a compensation order
contrary to subsection (1)--
(a) the order is void to the extent it covers the
same matters as the matters covered by the
other award; and
(b) any payments made under the order to the
extent to which it is void must be repaid by
the road manager.
(3) The making of a compensation order in relation to
damage to road infrastructure does not prevent
another court or tribunal from later awarding
damages or compensation in civil proceedings in
relation to the damage based on the same or similar
facts, but the court or tribunal must take the
compensation order into account when making its
award.
(4) Nothing in this Division affects or limits any
liability to pay compensation under another law,
other than as provided by this section.
Part 10.4 Provisions about liability
Division 1 Reasonable steps defence
618 Reasonable steps defence
If, in relation to a provision of this Law, a person
has the benefit of the reasonable steps defence, it is
a defence to a charge for an offence against the
provision for the person charged to prove that--
(a) the person did not know, and could not
reasonably be expected to have known, of the
contravention concerned; and
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(b) either--
(i) the person took all reasonable steps to
prevent the contravention; or
(ii) there were no steps the person could
reasonably be expected to have taken to
prevent the contravention.
Note--
Generally speaking, under various provisions of this Law,
a person charged with an offence does not have the benefit
of the mistake of fact defence if the person has the benefit
of the reasonable steps defence for the offence.
The reasonable steps defence is not provided in the case of
certain offences that include the taking of reasonable steps
as an ingredient of the offence.
Division 2 Matters relating to reasonable
steps
619 Application of Div 2
This Division applies in relation to the following--
(a) a proceeding for an offence against a
provision of this Law that may be committed
by a person failing to take all reasonable
steps;
(b) a proceeding for an offence against a
provision of this Law in relation to which a
person charged has the benefit of the
reasonable steps defence.
620 Matters court may consider for deciding
whether person took all reasonable steps--
mass, dimension or loading offences
(1) In deciding whether things done or omitted to be
done by a person charged with a mass, dimension
or loading offence constitute reasonable steps, the
court may have regard to the following--
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(a) the circumstances of the alleged offence,
including any risk category for the
contravention constituting the offence;
(b) without limiting paragraph (a), the measures
available and measures taken for any or all of
the following--
(i) to accurately and safely weigh or
measure the heavy vehicle or its load, or
to safely restrain the load in the heavy
vehicle;
(ii) to provide and obtain sufficient and
reliable evidence from which the weight
or measurement of the heavy vehicle or
its load might be calculated;
(iii) to manage, reduce or eliminate a
potential contravention arising from the
location of the heavy vehicle, or from
the location of the load in the heavy
vehicle, or from the location of goods in
the load;
(iv) to manage, reduce or eliminate a
potential contravention arising from
weather and climatic conditions, or from
potential weather and climatic
conditions, affecting or potentially
affecting the weight or measurement of
the load;
(v) to exercise supervision or control over
others involved in activities leading to
the contravention;
(c) the measures available and measures taken
for any or all of the following--
(i) to include compliance assurance
conditions in relevant commercial
arrangements with other responsible
persons for heavy vehicles;
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(ii) to provide information, instruction,
training and supervision to employees to
enable compliance with this Law;
(iii) to maintain equipment and work
systems to enable compliance with this
Law;
(iv) to address and remedy similar
compliance problems that may have
happened in the past;
(d) whether the person charged had, either
personally or through an employee or agent,
custody or control of the heavy vehicle, its
load, or any goods included or to be included
in the load;
(e) the personal expertise and experience that the
person charged had or ought reasonably to
have had or that an employee or agent of the
person charged had or ought reasonably to
have had.
(2) This section does not limit the matters the court
must or may consider when deciding whether
things done or omitted to be done by a person
charged with a mass, dimension or loading offence
constitute reasonable steps.
(3) In this section--
mass, dimension or loading offence means an
offence against Chapter 4.
621 Reliance on container weight declaration--
offences about mass
(1) This section applies if the operator or driver of a
heavy vehicle is charged with an offence involving
a contravention of a mass requirement for the
vehicle and is seeking to prove the reasonable steps
defence in relation to the offence.
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(2) To the extent the weight of a freight container
together with its contents is relevant to the offence,
the person charged can not rely on the weight stated
in the relevant container weight declaration if the
person knew or ought reasonably to have known
that--
(a) the weight stated in the relevant container
weight declaration was less than the actual
weight; or
(b) the distributed weight of the container and its
contents, together with either of the following
would cause a contravention of a mass
requirement applying to the heavy vehicle--
(i) the mass or location of any other load;
(ii) the mass of the vehicle or a component
of it.
622 Matters court may consider for deciding
whether person took all reasonable steps--
speeding or fatigue management offences
(1) In deciding whether things done or omitted to be
done by a person charged with a speeding offence
or fatigue management offence constitute
reasonable steps, the court may have regard to the
following--
(a) the nature of the activity to which the
contravention constituting the offence relates;
(b) the risks to public safety associated with the
activity mentioned in paragraph (a);
(c) the likelihood of the risks mentioned in
paragraph (b) arising;
(d) the degree of harm likely to result from the
risks mentioned in paragraph (b) arising;
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(e) the circumstances of the alleged offence,
including, for a fatigue management offence,
any risk category for the contravention
constituting the offence;
(f) the measures available and measures taken--
(i) to prevent, eliminate or minimise the
likelihood of a potential contravention
happening; or
(ii) to eliminate or minimise the likelihood
of risks to public safety arising from a
potential contravention; or
(iii) to manage, minimise or eliminate risks
to public safety arising from a potential
contravention;
(g) the personal expertise and experience that the
person charged had or ought reasonably to
have had or that an employee or agent of that
person had or ought reasonably to have had;
(h) the degree of ability the person charged, or an
employee or agent of that person, had to take
a measure mentioned in paragraph (f);
(i) the costs of measures mentioned in
paragraph (f);
(j) the measures available and measures taken
for any or all of the following--
(i) to include compliance assurance
conditions in relevant commercial
arrangements with other responsible
persons for heavy vehicles;
(ii) to provide information, instruction,
training and supervision to employees to
enable compliance with this Law;
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(iii) to maintain equipment and work
systems to enable compliance with this
Law;
(iv) to address and remedy similar
compliance problems that may have
happened in the past.
(2) In addition, in deciding whether things done or
omitted to be done by a person charged with a
fatigue management offence constitute reasonable
steps, the court may have regard to any relevant
body of fatigue knowledge.
(3) This section does not limit the matters the court
must or may consider when deciding whether
things done or omitted to be done by a person
charged with a speeding offence or fatigue
management offence constitute reasonable steps.
(4) In this section--
fatigue management offence means an offence
against Chapter 6.
speeding offence means an offence against Part 5.2
or section 219.
623 When particular persons regarded to have
taken all reasonable steps--speeding or fatigue
management offences
(1) A party in the chain of responsibility for a heavy
vehicle charged with a speeding offence or fatigue
management offence is to be regarded as having
taken all reasonable steps if the party did all of the
following to prevent the act or omission that led to
the contravention to which the offence relates--
(a) identified and assessed the aspects of the
activities of the party, and relevant drivers for
the party, that may lead to a relevant
contravention by a relevant driver for the
party;
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(b) for each aspect identified and assessed under
paragraph (a), identified and assessed--
(i) the risk of the aspect leading to a
relevant contravention; and
(ii) if there is a substantial risk of the aspect
leading to a relevant contravention--the
measures the party may take to eliminate
the risk or, if it is not reasonably
possible to eliminate the risk, to
minimise the risk;
(c) carried out the identification and assessment
mentioned in paragraphs (a) and (b)--
(i) at least annually; and
(ii) after each event that indicated the way
the activities the subject of the
identification and assessment are being
carried out have led, or may lead, to a
relevant contravention;
(d) took the measures identified and assessed
under paragraph (b)(ii);
(e) for each action mentioned in any of
paragraphs (a) to (d) taken by the party--
(i) kept a record of the action for at least
3 years after taking it; or
(ii) if 3 years have not passed since taking
the action, kept a record of the action
since taking it.
(2) This section does not limit the circumstances in
which things done or omitted to be done by a
person charged with a speeding offence or fatigue
management offence constitute reasonable steps.
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(3) In this section--
fatigue management offence means an offence
against Chapter 6.
party in the chain of responsibility--
(a) for a heavy vehicle the subject of a speeding
offence--has the meaning given by
section 214; or
(b) for a fatigue-regulated heavy vehicle the
subject of a fatigue management offence--
has the meaning given by section 227.
relevant contravention, for a party in the chain of
responsibility for a heavy vehicle charged with a
speeding offence or fatigue management offence,
means a contravention of the type to which the
offence relates.
relevant driver, for a party in the chain of
responsibility for a heavy vehicle charged with a
speeding offence or fatigue management offence,
means each driver of the heavy vehicle.
speeding offence means an offence against Part 5.2
or section 219.
624 Regulation for s 623
(1) For the purposes of section 623, the national
regulations may provide for--
(a) the ways, or examples of ways, a person may
identify and assess the aspects of the
activities of the person, and relevant drivers
for the person, that may lead to a relevant
contravention by a relevant driver for the
person; and
(b) the measures, or examples of measures, a
person may take to eliminate or minimise the
risks of aspects of activities of the person, or
relevant drivers for the person, leading to a
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relevant contravention by the person or a
relevant driver for the person.
(2) In this section--
fatigue management offence means an offence
against Chapter 6.
relevant contravention means a contravention
constituting a fatigue management offence.
625 Proof of compliance with registered industry
code of practice
(1) This section applies for deciding in--
(a) a proceeding for an offence against a
provision of this Law that may be committed
by a person failing to take all reasonable
steps--whether the person took all reasonable
steps; or
(b) a proceeding for an offence against a
provision of this Law in relation to which a
person charged has the benefit of the
reasonable steps defence--whether the
person took all reasonable steps to prevent the
contravention.
(2) Proof, as established by the person, that the person
complied with all relevant standards and
procedures under a registered industry code of
practice, in relation to matters to which the offence
relates is evidence that the person took all
reasonable steps.
(3) Subsection (2) does not apply unless the person has
given the complainant notice of the intention to
prove the matters mentioned in the subsection.
(4) The notice must be--
(a) signed by the person; and
(b) given at least 28 days before the day fixed for
the hearing of the charge.
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(5) In the case of an offence referred to in section 620
or 622, this section does not prevent the court from
considering any of the matters referred to in the
section concerned in deciding whether compliance
with relevant standards and procedures under a
registered industry code of practice, was reasonable
in the circumstances in which the offence was
alleged to have been committed.
Division 3 Other defences
626 Definition for Div 3
In this Division--
deficiency, of a vehicle, means--
(a) a deficiency of the vehicle or a component of
the vehicle, including, for example, the
vehicle--
(i) contravening a heavy vehicle standard;
or
(ii) being unsafe; or
(b) a deficiency constituted by the absence of a
particular thing required to be in, or displayed
on, the vehicle, including, for example, a
thing required to be in, or displayed on, the
vehicle under--
(i) a heavy vehicle standard; or
(ii) a condition of a heavy vehicle
accreditation or a mass or dimension
authority.
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627 Defence for owner or operator of vehicle if
offence committed while vehicle used by
unauthorised person
(1) This section applies in relation to an offence
against this Law that may be committed by a
person--
(a) in the person's capacity as an owner or
operator of a vehicle; and
(b) in relation to the use of the vehicle by
someone else.
(2) Subject to subsection (3), in a proceeding for an
offence mentioned in subsection (1), it is a defence
for the person charged to prove that, at the relevant
time, the vehicle was being used by--
(a) a person not entitled (expressly, impliedly or
otherwise) to use the vehicle, other than an
employee or agent of the person; or
(b) an employee of the person who was, at the
relevant time, acting outside the scope of the
employment; or
(c) an agent of the person who was, at the
relevant time, acting outside the scope of the
agency.
(3) If the offence relates to a deficiency of the vehicle,
the defence under subsection (2) is not available
unless the person charged also proves that--
(a) the vehicle had not, before it ceased to be
under the person's control, been driven on a
road in contravention of this Law arising in
connection with the deficiency; and
(b) one or more material changes, resulting in the
deficiency, had been made after the vehicle
had ceased to be under the person's control.
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628 Defence for driver of vehicle subject to a
deficiency
(1) This section applies to an offence against this Law
relating to a deficiency of a heavy vehicle.
(2) In a proceeding for an offence mentioned in
subsection (1) alleged to be committed by the
driver of a heavy vehicle, it is a defence for the
driver to prove that the driver--
(a) did not cause the deficiency and had no
responsibility for or control over the
maintenance of the vehicle or its equipment
at any relevant time; and
(b) did not know and could not reasonably be
expected to have known of the deficiency;
and
(c) could not reasonably be expected to have
sought to ascertain whether there was or was
likely to be a deficiency of the kind to which
the offence relates.
629 Defence of compliance with direction
In a proceeding for an offence against this Law, it
is a defence for the person charged to prove that the
conduct constituting the offence was done in
compliance with a direction given--
(a) by an authorised officer; or
(b) by the Regulator (including a delegate of the
Regulator); or
(c) by a person under a law of a State or
Territory.
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630 Sudden or extraordinary emergency
(1) In a proceeding for an offence against this Law, it
is a defence for the person charged to prove that the
conduct constituting the offence occurred in
response to circumstances of sudden or
extraordinary emergency.
(2) This section applies if and only if the person
carrying out the conduct reasonably believed that--
(a) circumstances of sudden or extraordinary
emergency existed; and
(b) the conduct was the only reasonable way to
deal with the emergency; and
(c) the conduct was a reasonable response to the
emergency.
631 Lawful authority
In a proceeding for an offence against this Law, it
is a defence for the person charged to prove that the
conduct constituting the offence is authorised or
excused by or under a law.
Division 4 Other provisions about liability
632 Deciding whether person ought reasonably to
have known something
(1) This section applies in relation to a proceeding for
an offence against this Law if it is relevant to prove
that someone ought reasonably to have known
something.
(2) A court may consider the following when deciding
whether the person ought reasonably to have
known the thing--
(a) the person's abilities, experience, expertise,
knowledge, qualifications and training;
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(b) the circumstances of the offence;
(c) any other relevant matter prescribed by the
national regulations for the purposes of this
section.
633 Multiple offenders
(1) This section applies if a provision of this Law
provides that, for a particular act or omission or set
of circumstances, each of 2 or more persons is
liable for an offence against a provision of this
Law.
(2) Proceedings may be taken against all or any of the
persons in relation to the act, omission or
circumstances.
(3) Proceedings may be taken against any of the
persons in relation to the act, omission or
circumstances--
(a) regardless of whether or not proceedings have
been started against any of the other persons
in relation to the act, omission or
circumstances; and
(b) regardless of whether or not any proceedings
taken against any of the other persons in
relation to the act, omission or circumstances
have ended; and
(c) regardless of the outcome of any proceedings
taken against any of the other persons in
relation to the act, omission or circumstances.
(4) This section is subject to section 634(1).
634 Multiple offences
(1) A person may be punished only once in relation to
the same contravention of this Law by the person or
a heavy vehicle, even if the person is liable in more
than 1 capacity.
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(2) A person who has been punished for an act or
omission or circumstances constituting an offence
against this Law as it applies in another
participating jurisdiction can not be punished for an
offence against this Law as it applies in this
jurisdiction arising from the same act or omission
or circumstances.
(3) Despite any Act or other law (including subsections
(1) and (2))--
(a) a person may be punished for more than
1 contravention of a requirement of this Law
if the contraventions relate to different parts
of the same vehicle; and
(b) a person may be punished for 1 or more
contraventions of a requirement of this Law
as it applies in another participating
jurisdiction (interstate contraventions), and
1 or more contraventions of a requirement of
this Law as it applies in this jurisdiction
(local contraventions), if the interstate
contraventions and local contraventions relate
to different parts of the same vehicle.
635 Responsibility for acts or omissions of
representative
(1) This section applies in a proceeding for an offence
against this Law.
(2) If it is relevant to prove a person's state of mind
about a particular act or omission, it is enough to
show--
(a) the act was done or omitted to be done by a
representative of the person within the scope
of the representative's actual or apparent
authority; and
(b) the representative had the state of mind.
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(3) An act done or omitted to be done for a person by a
representative of the person within the scope of the
representative's actual or apparent authority is
taken to have been done or omitted to be done also
by the person, unless the person proves the person
could not, by the exercise of reasonable diligence,
have prevented the act or omission.
(4) In this section--
representative means--
(a) for an individual--an employee or agent of
the individual; or
(b) for a corporation--an executive officer,
employee or agent of the corporation or
authority.
state of mind, of a person, includes--
(a) the person's knowledge, intention, opinion,
belief or purpose; and
(b) the person's reasons for the intention,
opinion, belief or purpose.
636 Liability of executive officers of corporation
(1) If a corporation commits an offence against a
provision of this Law specified in column 2 of
Schedule 4, each executive officer of the
corporation who knowingly authorised or permitted
the conduct constituting the offence also commits
an offence against the provision.
Maximum penalty--the penalty for a contravention
of the provision by an individual.
(2) If a corporation commits an offence against a
provision of this Law specified in column 3 of
Schedule 4, each executive officer of the
corporation who knew or ought reasonably to have
known--
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(a) of the conduct constituting the offence; or
(b) that there was a substantial risk that the
offence would be committed;
also commits an offence against the provision.
Maximum penalty--the penalty for a contravention
of the provision by an individual.
(3) For the purposes of subsection (2), it is a defence
for the executive officer to prove--
(a) the officer exercised reasonable diligence to
ensure the corporation complied with the
provision; or
(b) the officer was not in a position to influence
the conduct of the corporation in relation to
the offence.
(4) An executive officer of a corporation may be
proceeded against and convicted for an offence
against the provision whether or not the corporation
has been proceeded against or convicted under that
provision.
(5) Nothing in this section affects any liability imposed
on a corporation for an offence committed by the
corporation under the provision.
(6) Nothing in this section affects the application of
any other law relating to the criminal liability of
any persons (whether or not executive officers of
the corporation) who are accessories to the
commission of an offence or are otherwise involved
in the contravention giving rise to an offence.
(7) This section does not apply to an executive officer
acting on a voluntary basis, whether or not the
officer is reimbursed for the expenses incurred by
the officer for carrying out activities for the
corporation.
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637 Treatment of unincorporated partnerships
(1) This Law (other than section 636) applies to an
unincorporated partnership as if it were a
corporation, but with the changes set out in this
section.
(2) An obligation or liability that would otherwise be
imposed on the partnership by this Law is imposed
on each partner instead, but may be discharged by
any of the partners.
(3) An amount that would be payable under this Law
by the partnership is jointly and severally payable
by the partners.
(4) An offence against this Law (other than an offence
referred to in subsection (5)) that would otherwise
be committed by the partnership is taken to have
been committed by each partner who knowingly
authorised or permitted the conduct constituting the
offence.
Maximum penalty--the penalty for a contravention
of the provision by an individual.
(5) An offence against a provision of this Law
specified in column 3 of Schedule 4 that would
otherwise be committed by the partnership is taken
to have been committed by each partner who knew
or ought reasonably to have known--
(a) of the conduct constituting the offence; or
(b) that there was a substantial risk that the
offence would be committed.
Maximum penalty--the penalty for a contravention
of the provision by an individual.
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(6) For the purposes of subsection (5), it is a defence
for the partner to prove--
(a) the partner exercised reasonable diligence to
ensure the partnership complied with the
provision; or
(b) the partner was not in a position to influence
the conduct of the partnership in relation to
the offence.
(7) Nothing in this section affects the application of
any other law relating to the criminal liability of
any persons (whether or not partners in the
partnership) who are accessories to the commission
of an offence or are otherwise involved in the
contravention giving rise to an offence.
(8) Subsections (4) and (5) do not apply to a partner
acting on a voluntary basis, whether or not the
partner is reimbursed for the expenses incurred by
the partner for carrying out activities for the
partnership.
(9) For the purposes of this section, a change in the
composition of the partnership does not affect the
continuity of the partnership.
638 Treatment of other unincorporated bodies
(1) This Law (other than section 636) applies to an
unincorporated body as if it were a corporation, but
with the changes set out in this section.
(2) An obligation or liability that would otherwise be
imposed on the unincorporated body by this Law is
imposed on each management member of the body
instead, but may be discharged by any of the
management members.
(3) An amount that would be payable under this Law
by the unincorporated body is jointly and severally
payable by the management members of the body.
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(4) An offence against this Law (other than an offence
referred to in subsection (5)) that would otherwise
be committed by the unincorporated body is taken
to have been committed by each management
member of the body who knowingly authorised or
permitted the conduct constituting the offence.
Maximum penalty--the penalty for a contravention
of the provision by an individual.
(5) An offence against a provision of this Law
specified in column 3 of Schedule 4 that would
otherwise be committed by the unincorporated
body is taken to have been committed by each
management member of the body who knew or
ought reasonably to have known--
(a) of the conduct constituting the offence; or
(b) that there was a substantial risk that the
offence would be committed.
Maximum penalty--the penalty for a contravention
of the provision by an individual.
(6) For the purposes of subsection (5), it is a defence
for the management member of the unincorporated
body to prove--
(a) the member exercised reasonable diligence to
ensure the body complied with the provision;
or
(b) the member was not in a position to influence
the conduct of the body in relation to the
offence.
(7) Nothing in this section affects the application of
any other law relating to the criminal liability of
any persons (whether or not management members
of the unincorporated body) who are accessories to
the commission of an offence or are otherwise
involved in the contravention giving rise to an
offence.
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(8) Subsections (4) and (5) do not apply to a
management member of the unincorporated body
acting on a voluntary basis, whether or not the
member is reimbursed for the expenses incurred by
the member for carrying out activities for the body.
(9) For the purposes of this section, a change in the
composition of the unincorporated body does not
affect the continuity of the body.
(10) In this section--
management member, of an unincorporated body,
means--
(a) if the body has a management committee--
each member of the management committee;
or
(b) otherwise--each member who is concerned
with, or takes part in, the body's
management, whatever name is given to the
member's position in the body.
unincorporated body includes an unincorporated
local government authority, but does not include an
unincorporated partnership.
639 Liability of registered operator
(1) This section applies to an offence against this Law
that may be committed by the operator of a heavy
vehicle (whether or not any other person can also
commit the offence).
(2) If an offence to which this section applies is
committed, the following person is taken to be the
operator of the heavy vehicle and, in that capacity,
is taken to have committed the offence--
(a) for a heavy vehicle that is not a
combination--the registered operator of the
vehicle;
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(b) for a heavy combination or the towing vehicle
in a heavy combination--the registered
operator of the towing vehicle in the
combination;
(c) for a trailer forming part of a heavy
combination--the registered operator of the
towing vehicle in the combination and the
registered operator (if any) of the trailer.
(3) The registered operator has the same excuses and
defences available to the operator of the heavy
vehicle under this Law or another law.
(4) Subsection (2) does not apply if the registered
operator gives the Regulator an operator
declaration--
(a) if an infringement notice for the offence is
issued to the registered operator--within
14 days after the infringement notice is
issued; or
(b) if the registered operator is charged with the
offence--
(i) if the charge is to be heard 28 days or
less after the charge comes to the
operator's knowledge--as soon as
practicable after the charge comes to the
registered operator's knowledge; or
(ii) if the charge is to be heard more than
28 days after the charge comes to the
operator's knowledge--as soon as
practicable after the charge comes to the
registered operator's knowledge but at
least 28 days before the charge is heard.
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(5) If the registered operator gives an operator
declaration as mentioned in subsection (4)--
(a) a proceeding for the offence may be started
against the person named as the operator of
the heavy vehicle in the operator declaration
only if a copy of the operator declaration has
been served on the person; and
(b) in a proceeding for the offence against the
person named as the operator of the heavy
vehicle in the operator declaration, the
operator declaration is evidence that the
person was the operator of the heavy vehicle
at the time of the offence; and
(c) in a proceeding for the offence against the
registered operator, a court must not find the
registered operator guilty of the offence in the
registered operator's capacity as the operator
of the heavy vehicle if it is satisfied, whether
on the statements in the operator declaration
or otherwise, the registered operator was not
the operator of the heavy vehicle at the time
of the offence.
(6) To remove any doubt, it is declared that this section
does not affect the liability of the registered
operator in a capacity other than as the operator of
the heavy vehicle.
(7) In this section--
operator declaration means a statutory declaration,
made by the registered operator of a vehicle that is
or forms part of a heavy vehicle the subject of an
offence against this Law, stating--
(a) the registered operator was not the operator of
the heavy vehicle at the time of the offence;
and
(b) the name and address of the operator of the
heavy vehicle at the time of the offence.
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registered operator, of a vehicle other than a heavy
vehicle, means the registered or licensed operator
of the vehicle under an Australian road law.
Chapter 11 Reviews and appeals
Part 11.1 Preliminary
640 Definitions for Ch 11
In this Chapter--
public safety ground, for a reviewable decision,
means the Regulator being satisfied that making the
decision is necessary to prevent a significant risk to
public safety.
relevant appeal body means the relevant tribunal or
court for the relevant jurisdiction.
relevant jurisdiction, for an applicant for the
review of a reviewable decision or an appellant for
an appeal against a review decision, means--
(a) for a reviewable decision made under
Division 3 of Part 4.5 or Division 4 of
Part 4.6, or a review decision relating to a
reviewable decision made under Division 3
of Part 4.5 or Division 4 of Part 4.6--
(i) if the areas or routes for which the
authorisation the subject of the
reviewable decision was sought are
situated in the same participating
jurisdiction--the jurisdiction in which
the areas or routes are situated; or
(ii) if the areas or routes for which the
authorisation the subject of the
reviewable decision was sought are
situated in 2 or more participating
jurisdictions--
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(A) the jurisdiction in which most of
the areas or routes are situated,
worked out by reference to the
length of road covered by the
areas or routes; or
(B) if there is more than 1 jurisdiction
for which sub-subparagraph (A) is
satisfied--any of the jurisdictions
for which sub-subparagraph (A) is
satisfied chosen by the applicant
or appellant; or
(b) for another reviewable decision or review
decision--
(i) if the reviewable decision or review
decision relates to only 1 heavy vehicle
whose relevant garage address is in a
participating jurisdiction--the
jurisdiction in which the relevant garage
address is located; or
(ii) if the reviewable decision or review
decision relates to 2 or more heavy
vehicles whose relevant garage
addresses are in the same participating
jurisdiction--the jurisdiction in which
the relevant garage addresses are
located; or
(iii) if the reviewable decision or review
decision relates to 2 or more heavy
vehicles whose relevant garage
addresses are located in 2 or more
participating jurisdictions--any of those
jurisdictions chosen by the operator of
the vehicles; or
(iv) otherwise--the participating jurisdiction
in which the applicant's or appellant's
home address is located.
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review application means an application for review
of a reviewable decision under Part 11.2.
review decision has the meaning given by
section 645.
reviewable decision means--
(a) a decision mentioned in Schedule 3; or
(b) a decision made under the national
regulations prescribed as a reviewable
decision for the purposes of this Chapter.
reviewer means a person deciding a review of a
reviewable decision under Part 11.2.
Part 11.2 Internal review
641 Applying for internal review
(1) A dissatisfied person for a reviewable decision may
apply to the Regulator for a review of the decision.
(2) A review application may be made only within
28 days after--
(a) the day the person is notified of the decision;
or
(b) if the person applies for a statement of
reasons under subsection (6)--the day the
statement is given to the person.
(3) However, the Regulator may, at any time, extend
the time for making a review application.
(4) A review application must--
(a) be written; and
(b) be accompanied by the prescribed fee for the
application; and
(c) state in detail the grounds on which the
person wants the reviewable decision to be
reviewed.
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(5) The person is entitled to receive a statement of
reasons for the original decision whether or not the
provision under which the decision is made
requires that the person be given a statement of
reasons for the decision.
(6) If the person was not given an information notice
for the original decision, the person may ask the
Regulator for a statement of reasons for the
decision and the Regulator must provide the
statement within 28 days after the request is made.
(7) The making of a review application does not affect
the reviewable decision, or the carrying out of the
reviewable decision, unless it is stayed under
section 642.
(8) In this section--
dissatisfied person means--
(a) for a reviewable decision of the Regulator
made in relation to an application for an
exemption, authorisation, approval or heavy
vehicle accreditation under this Law--the
applicant; or
(b) for a reviewable decision of the Regulator not
to make a decision sought in an application
for an amendment of an exemption,
authorisation, approval or heavy vehicle
accreditation under this Law--the applicant;
or
(c) for a reviewable decision of the Regulator to
amend, cancel or suspend an exemption,
authorisation, approval or heavy vehicle
accreditation under this Law--the person to
whom the exemption, authorisation, approval
or heavy vehicle accreditation was granted; or
(d) for a reviewable decision of the Regulator not
to give a replacement permit for an
exemption or authorisation under this Law or
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not to give a replacement accreditation
certificate for a heavy vehicle accreditation
under this Law--the person to whom the
exemption, authorisation or heavy vehicle
accreditation was granted; or
(e) for a reviewable decision of the Regulator
that a thing or sample is forfeited to the
Regulator--an owner of the thing or sample;
or
(f) for a reviewable decision of an authorised
officer to give a person an improvement
notice or to amend an improvement notice
given to a person--the person to whom the
improvement notice was given; or
(g) for a reviewable decision of a relevant road
manager for a mass or dimension authority--
a person adversely affected by the decision;
or
(h) for a reviewable decision made under the
national regulations--the person prescribed
as the dissatisfied person for the decision
under the national regulations.
642 Stay of reviewable decisions made by
Regulator or authorised officer
(1) This section applies to--
(a) a reviewable decision made by the Regulator
other than a decision made on the basis of a
public safety ground; or
(b) a reviewable decision made by an authorised
officer.
(2) If a person makes a review application for the
reviewable decision, the person may immediately
apply for a stay of the decision to the relevant
appeal body.
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(3) The relevant appeal body may stay the reviewable
decision to secure the effectiveness of the review
and any later appeal to the body.
(4) In setting the time for hearing the stay application,
the relevant appeal body must allow at least
3 business days between the day the application is
filed with it and the hearing day.
(5) The Regulator is a party to the application.
(6) The person must serve a copy of the application
showing the time and place of the hearing, and any
document filed in the relevant appeal body with the
application, on the Regulator at least 2 business
days before the hearing.
(7) The stay--
(a) may be given on conditions the relevant
appeal body considers appropriate; and
(b) operates for the period specified by the
relevant appeal body; and
(c) may be revoked or amended by the relevant
appeal body.
(8) The period of a stay under this section must not
extend past the time when the reviewer reviews the
reviewable decision and any later period the
relevant appeal body allows the applicant to enable
the applicant to appeal against the decision.
643 Referral of applications for review of decisions
made by road managers
(1) This section applies to a review application relating
to a reviewable decision made by a road manager
for a road.
Note--
In Schedule 3, only decisions made by a road manager
(for a road) that is a public authority are reviewable
decisions.
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(2) The Regulator must refer the application to the road
manager for review within 2 business days after
receiving it.
644 Internal review
(1) A review of a reviewable decision that was not
made by the Regulator or a road manager
personally must not be decided by--
(a) the person who made the reviewable
decision; or
(b) a person who holds a less senior position than
the person who made the reviewable decision.
(2) The reviewer must conduct the review--
(a) on the material before the person who made
the reviewable decision; and
(b) on the reasons for the reviewable decision;
and
(c) any other relevant material the reviewer
allows.
(3) For the review, the reviewer must give the
applicant a reasonable opportunity to make written
or oral representations to the reviewer.
645 Review decision
(1) The reviewer must, within the prescribed period,
make a decision (the review decision) to--
(a) confirm the reviewable decision; or
(b) amend the reviewable decision; or
(c) substitute another decision for the reviewable
decision.
(2) If the review decision confirms the reviewable
decision, for the purpose of an appeal, the
reviewable decision is taken to be the review
decision.
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(3) If the review decision amends the reviewable
decision, for the purpose of an appeal, the
reviewable decision as amended is taken to be the
review decision.
(4) If the review decision substitutes another decision
for the reviewable decision, the substituted decision
is taken to be the review decision.
(5) If the reviewer is a road manager for a road, the
reviewer must, as soon as practicable, give the
Regulator notice of the review decision stating--
(a) the decision; and
(b) the reasons for the decision.
(6) In this section--
prescribed period means--
(a) for a review of a reviewable decision made
by a road manager for a road--
(i) 28 days after the application for the
review is given to the road manager; or
(ii) if the Regulator and road manager have
agreed to a longer period, of not more
than 3 months after the application for
the review is given to the road manager,
and the Regulator has given notice of
the longer period to the applicant--the
longer period; or
(b) for a review of another reviewable decision--
28 days after the application for the review is
made.
646 Notice of review decision
(1) The Regulator must, within the prescribed period,
give the applicant notice (the review notice) of the
review decision.
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(2) If the review decision is not the decision sought by
the applicant, the review notice must state the
following--
(a) the reasons for the decision;
(b) for a review decision relating to a reviewable
decision made by a road manager for a
road--that the review decision is not subject
to further review or appeal under this Law;
(c) for a review decision relating to another
reviewable decision--
(i) that the applicant may appeal against the
decision under Part 11.3; and
(ii) how to appeal;
(d) for a review decision relating to a reviewable
decision made under Division 3 of Part 4.5 or
Division 4 of Part 4.6 if the areas or routes for
which the authorisation the subject of the
reviewable decision was sought are situated
in 2 or more participating jurisdictions--the
jurisdiction in which most of the areas or
routes are situated, worked out by reference
to the length of road covered by the areas or
routes.
(3) If the reviewer does not make a review decision
within the period required under section 645, the
reviewer is taken to have made a review decision
confirming the reviewable decision.
(4) In this section--
prescribed period means--
(a) for a review of a reviewable decision made
by a road manager for a road--as soon as
practicable, but not more than 7 days, after
the reviewer gives the Regulator notice of the
decision; or
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(b) for a review of another reviewable decision--
as soon as practicable.
Part 11.3 Appeals
647 Appellable decisions
(1) A person may appeal to the relevant appeal body
against a review decision relating to a reviewable
decision made by the Regulator or an authorised
officer.
(2) A person may appeal against the review decision
only within 28 days after--
(a) if a review notice is given to the person under
section 646--the notice was given to the
person; or
(b) if the reviewer is taken to have confirmed the
decision under section 646(3)--the period
mentioned in that section ends.
(3) However, the relevant appeal body may extend the
period for appealing.
(4) The filing of an appeal does not affect the review
decision, or the carrying out of the review decision,
unless it is stayed under section 648.
648 Stay of review decision
(1) This section applies if, under this Law, a person
appeals to the relevant appeal body against a
review decision relating to--
(a) a reviewable decision made by the Regulator
other than on the basis of a public safety
ground; or
(b) a reviewable decision made by an authorised
officer.
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(2) The person may immediately apply to the relevant
appeal body for a stay of the decision.
(3) The relevant appeal body may stay the review
decision to secure the effectiveness of the appeal.
(4) In setting the time for hearing the stay application,
the relevant appeal body must allow at least
3 business days between the day the application is
filed with it and the hearing day.
(5) The Regulator is a party to the application.
(6) The person must serve a copy of the application
showing the time and place of the hearing, and any
document filed in the relevant appeal body with the
application, on the Regulator at least 2 business
days before the hearing.
(7) The stay--
(a) may be given on conditions the relevant
appeal body considers appropriate; and
(b) operates for the period specified by the
relevant appeal body, but not extending past
the time when it decides the appeal; and
(c) may be revoked or amended by the relevant
appeal body.
649 Powers of relevant appeal body on appeal
(1) In deciding, under this Law, an appeal against a
review decision, the relevant appeal body--
(a) has the same powers as the person who made
the reviewable decision to which the review
decision relates; and
(b) is not bound by the rules of evidence; and
(c) must comply with natural justice.
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(2) An appeal is by way of rehearing--
(a) unaffected by the review decision; and
(b) on the material before the person who made
the review decision and any further evidence
allowed by the relevant appeal body.
(3) After hearing the appeal, the relevant appeal body
must--
(a) confirm the review decision; or
(b) set aside the review decision and substitute
another decision that it considers appropriate;
or
(c) set aside the review decision and return the
issue to the person who made the reviewable
decision to which the review decision relates
with the directions that it considers
appropriate.
650 Effect of decision of relevant appeal body on
appeal
If, under this Law, the relevant appeal body
substitutes another decision for a review decision,
the substituted decision is, for the relevant
provision of this Law, taken to be that of the person
who made the reviewable decision to which the
review decision relates.
Chapter 12 Administration
Part 12.1 Responsible Ministers
651 Policy directions
(1) The responsible Ministers may give directions to
the Regulator about the policies to be applied by
the Regulator in exercising its functions under this
Law.
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(2) A direction under this section can not be about--
(a) a particular person; or
(b) a particular heavy vehicle; or
(c) a particular application or proceeding.
(3) The Regulator must comply with a direction given
to it by the responsible Ministers under this section.
(4) A copy of a direction given by the responsible
Ministers to the Regulator is to be published in the
Regulator's annual report.
652 Referral of matters etc. by responsible Minister
(1) The responsible Minister for a participating
jurisdiction may--
(a) refer a matter relevant to that jurisdiction to
the Regulator for action under this Law; or
(b) ask the Regulator for information about the
exercise of the Regulator's functions under
this Law as applied in that jurisdiction.
(2) However, the Minister can not--
(a) refer a matter to the Regulator under
subsection (1)(a) that may require the
Regulator to take action that is inconsistent
with--
(i) a direction given by the responsible
Ministers under section 651; or
(ii) the approved guidelines; or
(b) direct the Regulator to take or not to take
particular action in relation to a matter
referred to the Regulator under subsection
(1)(a); or
(c) otherwise influence the exercise of the
Regulator's functions under this Law.
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(3) The Regulator may charge a fee for dealing with a
referral or request made under subsection (1).
(4) A fee charged by the Regulator under subsection
(3) must be an amount--
(a) the Regulator considers reasonable; and
(b) that is no more than the reasonable cost of
dealing with the referral or request.
(5) Section 740(2) to (4) do not apply to a fee charged
by the Regulator under subsection (3).
653 Approved guidelines for exemptions,
authorisations, permits and other authorities
(1) The responsible Ministers may approve guidelines
about any of the following--
(a) granting registration exemptions;
(b) granting vehicle standards exemptions;
(c) granting mass or dimension exemptions;
(d) granting class 2 heavy vehicle authorisations;
(e) granting electronic recording system
approvals;
(f) granting work and rest hours exemptions;
(g) granting work diary exemptions;
(h) granting fatigue record keeping exemptions;
(i) granting heavy vehicle accreditation;
(j) granting or issuing an exemption,
authorisation, permit or authority, or making
a declaration, under the national regulations;
(k) granting PBS design approvals and PBS
vehicle approvals;
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(l) other matters as referred to in--
(i) paragraph (a)(ii) of the definition road
condition in section 154; or
(ii) section 156(3)(a)(ii); or
(iii) section 163(1)(b)(ii)(B); or
(iv) section 174(1)(b); or
(v) section 178(1)(b).
(2) The guidelines, and any instrument amending or
repealing the guidelines, must be published in the
Commonwealth Gazette.
(3) The Regulator must ensure a copy of the guidelines
as in force from time to time and any document
applied, adopted or incorporated by the guidelines
is--
(a) made available for inspection, without
charge, during normal business hours at each
office of the Regulator; and
(b) published on the Regulator's website.
654 Other approvals
(1) The responsible Ministers may approve--
(a) a standard for sleeper berths; or
(b) standards and business rules for--
(i) advanced fatigue management; or
(ii) basic fatigue management; or
(iii) heavy vehicle maintenance
management; or
(iv) heavy vehicle mass management; or
(c) a class of auditors for the purposes of
Chapter 8.
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(2) The approval, and any instrument amending or
repealing the approval, must be published in the
Commonwealth Gazette.
(3) The Regulator must ensure a copy of an approval in
force under subsection (1), and any document the
subject of the approval, is--
(a) made available for inspection, without
charge, during normal business hours at each
office of the Regulator; and
(b) published on the Regulator's website.
655 How responsible Ministers exercise functions
(1) The responsible Ministers are to give a direction or
approval, or make a recommendation, request or
decision, for the purposes of a provision of this
Law by a resolution passed by the responsible
Ministers in accordance with the procedures
decided by the responsible Ministers.
(2) Subsection (1) applies subject to the following--
(a) subsection (3);
(b) a provision of this Law that provides how a
direction or approval must be given, or a
recommendation, request or decision must be
made, by the responsible Ministers,
including, for example, a provision that
provides that a recommendation by the
responsible Ministers must be unanimous.
(3) The Commonwealth responsible Minister may
decide whether or not to participate in the exercise
of a function given to the responsible Ministers
under this Law and, if the Commonwealth
responsible Minister decides not to participate, the
following apply in relation to the exercise of the
function--
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(a) a reference in this Law to the responsible
Ministers is taken to be a reference to a group
of Ministers consisting of the responsible
Minister for each participating jurisdiction;
(b) a direction, approval, recommendation,
request or decision by the responsible
Ministers is taken to be unanimous if the
responsible Minister for each participating
jurisdiction agrees with the direction,
approval, recommendation, request or
decision.
(4) An act or thing done by the responsible Ministers
(whether by resolution, instrument or otherwise)
does not cease to have effect merely because of a
change in the Ministers comprising the responsible
Ministers.
Part 12.2 National Heavy Vehicle
Regulator
Division 1 Establishment, functions and
powers
656 Establishment of National Heavy Vehicle
Regulator
(1) The National Heavy Vehicle Regulator is
established.
(2) It is the intention of the Parliament of this
jurisdiction that this Law as applied by an Act of
this jurisdiction, together with this Law as applied
by Acts of the other participating jurisdictions, has
the effect that the National Heavy Vehicle
Regulator is one single national entity, with
functions conferred by this Law as so applied.
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(3) The Regulator has power to do acts in or in relation
to this jurisdiction in the exercise of a function
expressed to be conferred on it by this Law as
applied by Acts of each participating jurisdiction.
(4) The Regulator may exercise its functions in relation
to--
(a) one participating jurisdiction; or
(b) 2 or more or all participating jurisdictions
collectively.
657 Status of Regulator
(1) The Regulator--
(a) is a body corporate with perpetual succession;
and
(b) has a common seal; and
(c) may sue and be sued in its corporate name.
(2) The Regulator represents the State.
658 General powers of Regulator
(1) The Regulator has all the powers of an individual
and, in particular, may--
(a) enter into contracts; and
(b) acquire, hold, dispose of, and deal with, real
and personal property; and
(c) do anything necessary or convenient to be
done in the exercise of its functions.
(2) Without limiting subsection (1), the Regulator may
enter into an agreement with a State or Territory
that makes provision for--
(a) the State or Territory to provide services to
the Regulator that assist the Regulator in
exercising its functions; or
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(b) the Regulator to provide services to the State
or Territory, including, for example, services
relating to--
(i) collecting vehicle registration duty; and
(ii) ensuring compliance with third party
insurance legislation, including, for
example, by collecting third party
insurance premiums.
659 Functions of Regulator
(1) The Regulator's main function is to achieve the
object of this Law.
(2) Without limiting subsection (1), the Regulator has
the following functions--
(a) to provide the necessary administrative
services for the operation of this Law,
including, for example--
(i) services for the national registration of
heavy vehicles; and
(ii) collecting fees, charges and other
amounts payable under this Law;
(b) to monitor compliance with this Law;
(c) to investigate contraventions or possible
contraventions of provisions of this Law,
including offences against this Law;
(d) to bring and conduct proceedings in relation
to contraventions or possible contraventions
of provisions of this Law, including offences
against this Law;
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(e) to bring and conduct, or conduct and defend,
appeals from decisions in proceedings
mentioned in paragraph (d);
(f) to conduct reviews of particular decisions
made under this Law by the Regulator or
authorised officers;
(g) to conduct and defend appeals from decisions
on reviews mentioned in paragraph (f);
(h) to implement and manage an audit program
for heavy vehicle accreditations granted
under this Law;
(i) to monitor and review, and report to the
responsible Ministers on, the operation of this
Law, including, for example, monitoring,
reviewing and reporting on--
(i) the extent to which the object of this
Law or particular aspects of this Law are
being achieved; and
(ii) the extent and nature of noncompliance
with this Law; and
(iii) the outcome of activities for monitoring
and investigating compliance with this
Law; and
(iv) the effect of heavy vehicle accreditation
on achieving the object of this Law or
particular aspects of this Law; and
(v) the effect of modifications to this Law
as it applies in a particular participating
jurisdiction on achieving the object of
this Law or particular aspects of this
Law;
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(j) to identify and promote best practice
methods--
(i) for complying with this Law; and
(ii) for managing risks to public safety
arising from the use of heavy vehicles
on roads; and
(iii) for the productive and efficient road
transport of goods or passengers by
heavy vehicles;
(k) to encourage and promote safe and
productive business practices of persons
involved in the road transport of goods or
passengers by heavy vehicles that do not
compromise the object of this Law;
(l) to work collaboratively with other law
enforcement agencies to ensure a nationally
consistent approach for enforcing
contraventions of laws involving heavy
vehicles;
(m) to work collaboratively with road managers,
the National Transport Commission and
industry bodies to ensure a wide
understanding of the object of this Law or
particular aspects of this Law, and encourage
participation in achieving the object;
(n) the other functions conferred on it under this
Law.
660 Cooperation with participating jurisdictions and
Commonwealth
(1) The Regulator may exercise any of its functions in
cooperation with or with the assistance of a
participating jurisdiction or the Commonwealth,
including in cooperation with or with the assistance
of a government agency of a participating
jurisdiction or of the Commonwealth.
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(2) In particular, the Regulator may--
(a) ask a government agency of a participating
jurisdiction or the Commonwealth for
information that the Regulator requires to
exercise its functions under this Law; and
(b) use the information provided to exercise its
functions under this Law.
(3) A government agency that receives a request for
information under this section from the Regulator is
authorised to give the information to the Regulator.
661 Delegation
(1) The Regulator may delegate any of its functions
to--
(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
(c) a person engaged as a contractor by the
Regulator; or
(d) any other person whom the Regulator
considers is appropriately qualified to
exercise the function.
(2) A delegation of a function may permit the
subdelegation of the function to an appropriately
qualified person.
Note--
See section 29 of Schedule 1 which provides for matters
relating to the delegation and subdelegation of functions.
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Division 2 Governing board of Regulator
Subdivision 1 Establishment and functions
662 Establishment of National Heavy Vehicle
Regulator Board
(1) The Regulator has a governing board known as the
National Heavy Vehicle Regulator Board.
(2) It is the intention of the Parliament of this
jurisdiction that this Law as applied by an Act of
this jurisdiction, together with this Law as applied
by Acts of the other participating jurisdictions, has
the effect that the National Heavy Vehicle
Regulator Board is one single national entity, with
functions conferred by this Law as so applied.
(3) The Board has power to do acts in or in relation to
this jurisdiction in the exercise of a function
expressed to be conferred on it by this Law as
applied by Acts of each participating jurisdiction.
(4) The Board may exercise its functions in relation
to--
(a) one participating jurisdiction; or
(b) 2 or more or all participating jurisdictions
collectively.
663 Membership of Board
(1) The Board consists of 5 members appointed by the
Queensland Minister on the unanimous
recommendation of the responsible Ministers.
(2) The members of the Board must consist of--
(a) at least 1 member who has expertise in
transportation policy; and
(b) at least 1 other member who has expertise in
economics, law, accounting, social policy or
education and training; and
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(c) at least 1 other member who has experience
in managing risks to public safety arising
from the use of vehicles on roads; and
(d) at least 1 other member who has financial
management skills, business skills,
administrative expertise or other skills or
experience the responsible Ministers believe
is appropriate.
(3) Of the members of the Board, one is to be
appointed by the Queensland Minister, on the
unanimous recommendation of the responsible
Ministers, as the Chairperson of the Board and
another as the Deputy Chairperson.
664 Functions of Board
(1) The affairs of the Regulator are to be controlled by
the Board.
(2) Without limiting subsection (1), the Board's
functions include the following--
(a) subject to any directions of the responsible
Ministers, deciding the policies of the
Regulator;
(b) ensuring the Regulator exercises its functions
in a proper, effective and efficient way.
(3) All acts and things done in the name of, or on
behalf of, the Regulator by or with the authority of
the Board are taken to have been done by the
Regulator.
(4) The Board has any other functions given to the
Board under this Law.
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Subdivision 2 Members
665 Terms of office of members
(1) Subject to this Division, a member of the Board
holds office for the period, not more than 3 years,
specified in the member's instrument of
appointment.
(2) If otherwise qualified, a member of the Board is
eligible for reappointment.
666 Remuneration
A member of the Board is entitled to be paid the
remuneration and allowances decided by the
responsible Ministers from time to time.
667 Vacancy in office of member
(1) The office of a member of the Board becomes
vacant if the member--
(a) completes a term of office; or
(b) resigns the office by signed notice given to
the responsible Ministers; or
(c) has been found guilty of an offence, whether
in a participating jurisdiction or elsewhere,
that the responsible Ministers consider
renders the member unfit to continue to hold
the office of member; or
(d) becomes bankrupt, applies to take the benefit
of any law for the relief of bankrupt or
insolvent debtors, compounds with the
member's creditors or makes an assignment
of the member's remuneration for their
benefit; or
(e) is absent, without leave first being granted by
the relevant entity, from 3 or more
consecutive meetings of the Board of which
reasonable notice has been given to the
member personally or by post; or
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(f) is removed from office by the Queensland
Minister under this section; or
(g) dies.
(2) The Queensland Minister may remove a member of
the Board from office if the responsible Ministers
recommend the removal of the member on the basis
that the member has engaged in misconduct or has
failed to or is unable to properly exercise the
member's functions as a member of the Board.
(3) In this section--
relevant entity means--
(a) for a member who is the Chairperson of the
Board--the responsible Ministers; or
(b) for another member--the Chairperson of the
Board.
668 Board member to give responsible Ministers
notice of certain events
A member of the Board must, within 7 days of
either of the following events occurring, give the
responsible Ministers notice of the event--
(a) the member is convicted of an offence;
(b) the member becomes bankrupt, applies to
take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounds
with the member's creditors or makes an
assignment of the member's remuneration for
their benefit.
669 Extension of term of office during vacancy in
membership
(1) If the office of a member of the Board becomes
vacant because the member has completed the
member's term of office, the member is taken to
continue to be a member during that vacancy until
the date on which the vacancy is filled, whether by
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re-appointment of the member or appointment of a
successor to the member.
(2) However, this section ceases to apply to the
member if--
(a) the member resigns the member's office by
signed notice given to the responsible
Ministers; or
(b) the responsible Ministers decide the services
of the member are no longer required.
(3) The maximum period for which a member of the
Board is taken to continue to be a member under
this section after completion of the member's term
of office is 6 months.
670 Members to act in public interest
A member of the Board is to act impartially and in
the public interest in the exercise of the member's
functions as a member.
671 Disclosure of conflict of interest
(1) If a member of the Board has a direct or indirect
pecuniary or other interest that conflicts or may
conflict with the exercise of the member's
functions as a member, the member must, as soon
as possible after the relevant facts have come to the
member's knowledge, disclose the nature of the
member's interest and the conflict to--
(a) for a member who is the Chairperson of the
Board--the responsible Ministers; or
(b) for another member--the Chairperson of the
Board.
(2) If a disclosure is made under subsection (1), the
entity to whom the disclosure is made must notify
the Board of the disclosure.
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(3) Particulars of any disclosure made under subsection
(1) must be recorded by the Board in a register of
interests kept for the purpose.
(4) After a member of the Board has disclosed the
nature of an interest and conflict or potential
conflict under subsection (1), the member must not
be present during any deliberation of the Board
with respect to any matter that is, or may be,
affected by the conflict, or take part in any decision
of the Board with respect to any matter that is, or
may be, affected by the conflict, unless--
(a) for a member who is the Chairperson of the
Board, the responsible Ministers otherwise
decide; or
(b) for another member, the Board otherwise
decides.
(5) For the purposes of the making of a decision by the
Board under subsection (4) in relation to a matter, a
member of the Board who has a direct or indirect
pecuniary or other interest that conflicts or may
conflict with the exercise of the member's
functions as a member with respect to the matter
must not--
(a) be present during any deliberation of the
Board for the purpose of making the decision;
or
(b) take part in the making of the decision by the
Board.
(6) A contravention of this section does not invalidate
any decision of the Board but if the Board becomes
aware a member of the Board contravened this
section, the Board must reconsider any decision
made by the Board in which the member took part
in contravention of this section.
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Subdivision 3 Meetings
672 General procedure
(1) The procedure for the calling of meetings of the
Board and for the conduct of business at the
meetings is, subject to this Law, to be decided by
the Board.
(2) Without limiting subsection (1), the Chairperson of
the Board--
(a) may at any time call a meeting of the Board;
and
(b) must call a meeting if asked, in writing, by at
least 3 other members of the Board.
673 Quorum
The quorum for a meeting of the Board is a
majority of its members.
674 Chief executive officer may attend meetings
(1) The chief executive officer of the Regulator may
attend meetings of the Board and participate in
discussions of the Board.
(2) However, the chief executive officer--
(a) must, as soon as possible after becoming
aware that the chief executive officer has a
direct personal interest in a matter to be
considered by the Board, disclose the interest
to the Chairperson of the Board; and
(b) is not entitled to be present during the
consideration by the Board of any matter in
which the chief executive officer has a direct
personal interest; and
(c) is not entitled to vote at a meeting.
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675 Presiding member
(1) The Chairperson of the Board is to preside at a
meeting of the Board.
(2) However, in the absence of the Chairperson of the
Board the following person is to preside at a
meeting of the Board--
(a) if the Deputy Chairperson of the Board is
present at the meeting, the Deputy
Chairperson;
(b) otherwise, a person elected by the members
of the Board who are present at the meeting.
(3) The presiding member has a deliberative vote and,
in the event of an equality of votes, has a second or
casting vote.
676 Voting
A decision supported by a majority of the votes cast
at a meeting of the Board at which a quorum is
present is the decision of the Board.
677 Minutes
The Chairperson or other member of the Board
presiding at a meeting of the Board must ensure
minutes of the meeting are taken.
678 First meeting
The Chairperson of the Board may call the first
meeting of the Board in any way the Chairperson
thinks fit.
679 Defects in appointment of members
A decision of the Board is not invalidated by any
defect or irregularity in the appointment of any
member of the Board.
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Subdivision 4 Committees
680 Committees
(1) The Board may establish committees to assist the
Board in exercising its functions.
(2) The members of a committee need not be members
of the Board.
(3) A member of a committee is appointed on the terms
and conditions the Board considers appropriate,
including terms about remuneration.
(4) The procedure for the calling of meetings of a
committee and for the conduct of business at the
meetings may be decided by the Board or, subject
to any decision of the Board, by the committee.
Division 3 Chief executive officer
681 Chief executive officer
(1) There is to be a chief executive officer of the
Regulator.
(2) The chief executive officer is to be appointed by
the Board.
(3) The chief executive officer is to be appointed for a
period, not more than 5 years, specified in the
officer's instrument of appointment.
(4) The chief executive officer is eligible for re-
appointment.
(5) The chief executive officer is taken, while holding
that office, to be a member of the staff of the
Regulator.
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682 Functions of chief executive officer
The chief executive officer of the Regulator--
(a) is responsible for the day-to-day management
of the Regulator; and
(b) has any other functions conferred on the chief
executive officer by the Board.
683 Delegation by chief executive officer
The chief executive officer of the Regulator may
delegate any of the functions conferred on the
officer, other than this power of delegation, to--
(a) an appropriately qualified member of the staff
of the Regulator; or
(b) the chief executive of an entity, or a
department of government, of a participating
jurisdiction.
Division 4 Staff
684 Staff
(1) The Regulator may, for the purpose of exercising
its functions, employ staff.
(2) The staff of the Regulator are to be employed on
the terms and conditions decided by the Regulator
from time to time.
(3) Subsection (2) is subject to any relevant industrial
award or agreement that applies to the staff.
685 Staff seconded to Regulator
The Regulator may make arrangements for the
services of any of the following persons to be made
available to the Regulator in connection with the
exercise of its functions--
(a) a member of the staff of a government agency
of the Commonwealth, a State or a Territory;
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(b) a member of the staff of a local government
authority.
686 Consultants and contractors
(1) The Regulator may engage persons with suitable
qualifications and experience as consultants or
contractors.
(2) The terms and conditions of engagement of
consultants or contractors are as decided by the
Regulator from time to time.
Part 12.3 Miscellaneous
Division 1 Finance
687 National Heavy Vehicle Regulator Fund
(1) The National Heavy Vehicle Regulator Fund is
established.
(2) The Fund is to be administered by the Regulator.
(3) The Regulator may establish accounts with any
financial institution for money in the Fund.
(4) The Fund does not form part of the consolidated
fund or consolidated account (however described)
of a participating jurisdiction or the
Commonwealth.
688 Payments into Fund
(1) There is payable into the Fund (except as provided
by subsection (2))--
(a) all money appropriated by the Parliament of
any participating jurisdiction or the
Commonwealth for the purposes of the Fund;
and
(b) all fees, charges, costs and expenses paid to
or recovered by the Regulator under this Law;
and
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(c) the proceeds of the investment of money in
the Fund; and
(d) all grants, gifts and donations made to the
Regulator, but subject to any trusts declared
in relation to the grants, gifts or donations;
and
(e) all money directed or authorised to be paid
into the Fund under this Law, any law of a
participating jurisdiction or any law of the
Commonwealth; and
(f) any other money or property received by the
Regulator in connection with the exercise of
its functions; and
(g) any money paid to the Regulator for the
provision of services to a State or Territory
under an agreement mentioned in
section 658(2)(b).
(2) The following money is not payable into the
Fund--
(a) the road use component of the charges
payable for the registration of heavy vehicles;
(b) money that is received by the Regulator under
an agreement mentioned in section 658(2)(b)
and that is payable to another entity under
such an agreement.
Note--
Section 692 deals with the money mentioned in subsection
(2).
(3) In this section--
road use component, of the charges payable for the
registration of heavy vehicles, means those charges
other than so much of them as is, or is of a kind,
prescribed by the national regulations as the
regulatory component of those charges.
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689 Payments out of Fund
Payments may be made from the Fund for the
purpose of--
(a) paying any costs or expenses, or discharging
any liabilities, incurred in the administration
or enforcement of this Law, including, for
example, payments made to a State or
Territory for the provision of services under
an agreement mentioned in section 658(2)(a);
and
(b) paying any money directed or authorised to
be paid out of the Fund under this Law; and
(c) making any other payments recommended by
the Regulator and approved by the
responsible Ministers.
690 Investment by Regulator
(1) The Regulator must invest its funds in a way that is
secure and provides a low risk so that the
Regulator's exposure to the loss of funds is
minimised.
(2) The Regulator must keep records that show it has
invested in a way that complies with subsection (1).
691 Financial management duties of Regulator
The Regulator must--
(a) ensure its operations are carried out
efficiently, effectively and economically; and
(b) keep proper books and records in relation to
the Fund and other money received by the
Regulator; and
(c) ensure expenditure is made from the Fund for
lawful purposes only and, as far as possible,
that reasonable value is obtained for money
expended from the Fund; and
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(d) ensure its procedures, including internal
control procedures, afford adequate
safeguards with respect to--
(i) the correctness, regularity and propriety
of payments made from the Fund; and
(ii) receiving and accounting for payments
made to the Fund; and
(iii) prevention of fraud or mistake; and
(e) take any action necessary to ensure the
preparation of accurate financial statements in
accordance with Australian Accounting
Standards for inclusion in its annual report;
and
(f) take any action necessary to facilitate the
audit of the financial statements under this
Law; and
(g) arrange for any further audit by a qualified
person of the books and records kept by the
Regulator if directed to do so by the
responsible Ministers.
692 Amounts payable to other entities
(1) The Regulator may establish accounts with any
financial institution for money referred to in section
688(2), pending payment of the money to States,
Territories or other entities entitled to receive it
under--
(a) applicable agreements mentioned in
section 658(2)(b); or
(b) arrangements approved by the responsible
Ministers, to the extent applicable agreements
do not make provision for payment.
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(2) Money in an account established under this section
does not form part of the consolidated fund or
consolidated account (however described) of a
participating jurisdiction or the Commonwealth.
Division 2 Reporting and planning
arrangements
693 Annual report
(1) The Regulator must, within 3 months after the end
of each financial year, give the responsible
Ministers an annual report for the financial year.
(2) The annual report must--
(a) include for the period to which the report
relates--
(i) the financial statements that have been
audited by an auditor decided by the
responsible Ministers; and
(ii) a statement of actual performance
measured against the National
Performance Measures (Standards and
Indicators) outlined in the current
corporate plan under section 695; and
(iii) a statement of exceptions where the
National Performance Measures
(Standards and Indicators) were not
achieved, including a statement of issues
that impacted on the achievement of the
measures; and
(iv) a statement of trend analysis relating to
performance measured against the
National Performance Measures
(Standards and Indicators); and
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(v) a statement of the outcome of
consultation strategies and activities,
including a summary of industry
comments; and
(vi) a statement of the achievements attained
in implementing, and the challenges
encountered in implementing, the
Regulator's objectives stated in the
current corporate plan; and
(vii) a statement of the achievements attained
in the exercise of the Regulator's
functions; and
(viii) a statement of arrangements in place to
secure collaboration with State and
Territory agencies and the effectiveness
of those arrangements; and
(ix) a statement indicating the nature of any
reports requested by the responsible
Ministers under section 694; and
(x) other matters required by the national
regulations; and
(b) be prepared in the way required by the
national regulations.
(3) Without limiting subsection (2)(b), the national
regulations may provide--
(a) that the financial statements are to be
prepared in accordance with Australian
Accounting Standards; and
(b) for the auditing of the financial statements.
(4) The responsible Ministers are to make
arrangements for the tabling of the Regulator's
annual report in each House of the Parliament of
each participating jurisdiction and of the
Commonwealth.
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(5) As soon as practicable after the annual report has
been tabled in at least one House of the Parliament
of a participating jurisdiction, the Regulator must
publish a copy of the report on the Regulator's
website.
694 Other reports
The responsible Ministers may, by written direction
given to the Regulator, require the Regulator to
give to the responsible Ministers, within the period
stated in the direction, a report about any matter
that relates to the exercise by the Regulator of its
functions.
695 Corporate plans
(1) The Regulator must, on an annual basis, prepare
and give to the responsible Ministers for approval
by the Ministers a corporate plan for each 3 year
period.
(2) The corporate plan must--
(a) outline the Regulator's objectives for the
3 year period; and
(b) state how the Regulator's objectives will be
implemented during the 3 year period; and
(c) contain a statement outlining the National
Performance Measures (Standards and
Indicators), determined by the Regulator
under subsection (4), for the 3 year period,
including (but not limited to) annual
measures for each of the 3 years specifying--
(i) the standards expected to be complied
with for each year; and
(ii) the performance indicators proposed to
be used for measuring the Regulator's
progress in implementing the
Regulator's objectives during the year;
and
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(d) identify any challenges and risks that the
Regulator reasonably believes may have a
significant impact, during the 3 year period,
on--
(i) the Regulator's ability to implement the
Regulator's objectives; and
(ii) the achievement of the object of this
Law; and
(iii) the exercise of the Regulator's
functions; and
(e) include the Regulator's proposed budget for
each financial year commencing within the
3 year period.
(3) The Regulator must, by notice given to the
responsible Ministers, advise the Ministers if either
of the following occurs--
(a) the Regulator makes a significant amendment
to its corporate plan;
(b) the Regulator becomes aware of an issue that
will have a significant impact on its ability to
implement the objectives stated in the
corporate plan.
(4) The Regulator must publish documentation for
National Performance Measures on the Regulator's
website and determine National Performance
Measures (Standards and Indicators) in accordance
with the documentation.
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Division 3 Oversight of the Regulator and
Board
696 Application of particular Queensland Acts to
this Law
(1) The following Acts, as in force from time to time,
apply for the purposes of this Law--
(a) the Information Privacy Act 2009 of
Queensland;
(b) the Public Records Act 2002 of Queensland;
(c) the Right to Information Act 2009 of
Queensland.
(2) However, the Acts mentioned in subsection (1) do
not apply for the purposes of this Law to the extent
that--
(a) functions under this Law are being exercised
by a State or Territory entity; or
(b) without limiting paragraph (a), functions are
being exercised by a State or Territory entity
under an agreement mentioned in section
658(2)(a) or under a delegation under this
Law.
(3) The national regulations may modify an Act
mentioned in subsection (1) for the purposes of this
Law.
(4) Without limiting subsection (3), the national
regulations may--
(a) provide that the Act applies as if a provision
of the Act specified in the regulations were
omitted; or
(b) provide that the Act applies as if an
amendment to the Act made by a law of
Queensland, and specified in the regulations,
had not taken effect; or
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(c) confer a function on a State or Territory
entity; or
(d) confer jurisdiction on a tribunal or court of a
participating jurisdiction.
(5) An Act mentioned in subsection (1) applies for the
purposes of this Law as if the Minister responsible
for a government agency were the responsible
Ministers in relation to a body established by this
Law.
(6) Subsection (5) applies to an Act mentioned in
subsection (1) with the modifications (if any)
mentioned in subsection (3), but does not apply in
relation to any provisions of that Act specified in
the national regulations for the purposes of this
subsection.
(7) In this section--
State or Territory entity does not include the
Regulator.
Division 4 Provisions relating to persons
exercising functions under
Law
697 General duties of persons exercising functions
under this Law
(1) A person exercising functions under this Law must,
when exercising the functions, act honestly and
with integrity.
(2) A person exercising functions under this Law must
exercise the person's functions under this Law--
(a) in good faith; and
(b) with a reasonable degree of care, diligence
and skill.
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(3) A person exercising functions under this Law must
not make improper use of the person's position or
of information that comes to the person's
knowledge in the course of, or because of, the
person's exercise of the functions--
(a) to gain an advantage for himself or herself or
another person; or
(b) to cause a detriment to the implementation or
operation of this Law.
Maximum penalty for the purposes of
subsection (3)--$10000.
698 Protection from personal liability for persons
exercising Regulator's or Board's functions
under this Law
(1) A person who is or was a protected person does not
incur civil liability personally for anything done or
omitted to be done in good faith--
(a) in the exercise of a function of the Regulator
or the Board under this Law; or
(b) in the reasonable belief that the act or
omission was the exercise of a function of the
Regulator or the Board under this Law.
(2) Any liability resulting from an act or omission that
would, but for the purposes of subsection (1),
attach to a protected person attaches instead to the
Regulator.
(3) In this section--
protected person means an individual who is any of
the following--
(a) a member of the Board;
(b) a member of a committee of the Board;
(c) a member of the staff of the Regulator;
(d) an authorised officer;
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(e) a person to whom the Regulator has delegated
any of its functions or to whom functions
delegated by the Regulator have been
subdelegated;
(f) a person acting under the direction or
authority of a person mentioned in paragraphs
(a) to (e), including, for example, a person
helping an authorised officer or an assistant
mentioned in section 518, 519 or 523;
(g) a person--
(i) who constitutes a body corporate that
exercises functions of the Regulator
under this Law; and
(ii) who is, or is of a class, prescribed by the
national regulations;
(h) any other person exercising functions of the
Regulator under this Law.
Chapter 13 General
Part 13.1 General offences
Division 1 Offence about discrimination
or victimisation
699 Discrimination against or victimisation of
employees
(1) An employer must not dismiss an employee, or
otherwise prejudice an employee in the employee's
employment, for the reason that the employee--
(a) has helped or given information to a public
authority or law enforcement agency in
relation to a contravention or alleged
contravention of this Law; or
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(b) has made a complaint about a contravention
or alleged contravention of this Law to an
employer, former employer, fellow employee,
former fellow employee, union or public
authority or law enforcement agency.
Examples of prejudicial conduct in relation to an employee's
employment--
· demotion of the employee
· unwarranted transfer of the employee
· reducing the employee's terms of employment
Maximum penalty--$10000.
(2) An employer must not fail to offer employment to a
prospective employee, or in offering employment
to a prospective employee treat the prospective
employee less favourably than another prospective
employee would be treated in similar
circumstances, for the reason that the prospective
employee--
(a) has helped or given information to a public
authority or law enforcement agency in
relation to a contravention or alleged
contravention of this Law; or
(b) has made a complaint about a contravention
or alleged contravention of this Law to an
employer, former employer, fellow employee,
former fellow employee, union or public
authority or law enforcement agency.
Maximum penalty--$10000.
(3) In a proceeding for an offence against subsection
(1) or (2), if all the facts constituting the offence
other than the reason for the defendant's action are
proved, the defendant has the onus of proving that
the defendant's action was not for the reason
alleged in the charge for the offence.
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(4) In this section--
employee includes an individual who works under a
contract for services.
employer, of a prospective employee, includes a
prospective employer of the employee.
700 Order for damages or reinstatement
(1) This section applies if a court convicts an employer
of an offence against section 699 in relation to an
employee or prospective employee.
(2) In addition to imposing a penalty, the court may
make 1 or more of the following orders--
(a) an order that the employer pay, within a
stated period, the employee or prospective
employee the damages the court considers
appropriate to compensate the employee or
prospective employee;
(b) for an employee--an order that the employee
be reinstated or re-employed in the
employee's former position or, if that position
is not available, in a similar position;
(c) for a prospective employee--an order that the
prospective employee be employed in the
position for which the prospective employee
applied or, if that position is not available, in
a similar position.
(3) An order for damages under subsection (2)(a)--
(a) can not be for an amount exceeding the
monetary jurisdictional limit of the court in
civil proceedings; and
(b) is taken to be, and is enforceable as, a
judgment of the court sitting in civil
proceedings.
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(4) A person against whom an order is made under
subsection (2)(b) or (c) must comply with the order.
Maximum penalty--$10000.
(5) In this section--
employee includes an individual who works under a
contract for services.
employer, of a prospective employee, includes a
prospective employer of the employee.
Division 2 Offences about false or
misleading information
701 False or misleading statements
(1) A person commits an offence if the person makes a
statement to an official that the person knows is
false or misleading in a material particular.
Maximum penalty--$10000.
(2) A person commits an offence if the person--
(a) makes a statement to an official that is false
or misleading in a material particular; and
(b) is reckless as to whether the statement is false
or misleading in a material particular.
Maximum penalty--$8000.
(3) Subsections (1) and (2) apply even if the statement
was not given in response to, or in purported
compliance with, a direction or requirement under
this Law.
(4) In a proceeding for an offence against subsection
(1) or (2), it is enough for a charge to state that the
statement made was `false or misleading', without
specifying whether it was false or whether it was
misleading.
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(5) In this section--
official includes--
(a) TCA exercising a function under Chapter 7;
and
(b) a person exercising a function under this Law
under the direction or authority of an official.
702 False or misleading documents
(1) A person commits an offence if the person gives an
official a document containing information the
person knows is false or misleading in a material
particular.
Maximum penalty--$10000.
(2) Subsection (1) does not apply if the person, when
giving the document--
(a) tells the official how information contained in
the document is false or misleading; and
(b) if the person has the correct information--
gives the correct information.
(3) A person commits an offence if the person--
(a) gives an official a document containing
information that is false or misleading in a
material particular; and
(b) is reckless as to whether information
contained in the document is false or
misleading in a material particular.
Maximum penalty--$8000.
(4) Subsections (1) and (3) apply even if the document
was not given in response to, or in purported
compliance with, a direction or requirement under
this Law.
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(5) In a proceeding for an offence against subsection
(1) or (3), it is enough for a charge to state that the
information was `false or misleading', without
specifying whether it was false or whether it was
misleading.
(6) In this section--
official includes--
(a) TCA exercising a function under Chapter 7;
and
(b) a person exercising a function under this Law
under the direction or authority of an official.
703 False or misleading information given by
responsible person to another responsible
person
(1) A responsible person for a heavy vehicle (the
information giver) must not give another
responsible person for a heavy vehicle (the affected
person) information the information giver knows,
or ought reasonably to know, is false or misleading
in a material particular.
Maximum penalty--$10000.
Note--
See section 632 for the matters a court may consider when
deciding whether a person ought reasonably to have known
something.
(2) A responsible person for a heavy vehicle (also the
information giver) must not give another
responsible person for a heavy vehicle (the affected
person) information that is false or misleading in a
material particular if the information giver does so
recklessly as to whether the information is false or
misleading in the material particular.
Maximum penalty--$8000.
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(3) Subsections (1) and (2) do not apply if the affected
person knew, or ought reasonably to have known,
that the information was false or misleading in the
material particular.
(4) Subsection (1) or (2) does not apply if the
information giver gives the information in writing
and, when giving the information--
(a) tells the affected person how it is false or
misleading; and
(b) if the information giver has the correct
information--gives the correct information in
writing.
(5) Subsection (1) or (2) applies even if the
information was not given in response to, or in
purported compliance with, a direction or
requirement under this Law.
(6) In a proceeding for an offence against subsection
(1) or (2)--
(a) it is enough for a charge to state that the
statement made was `false or misleading',
without specifying whether it was false or
whether it was misleading; and
(b) it is enough for a charge to state that the
information given was false or misleading to
the information giver's knowledge, without
specifying whether the information giver
knew or ought reasonably to have known the
information was false or misleading.
(7) In this section--
information means information in any form,
whether or not in writing.
material particular means a particular relating to
an element of an offence against this Law that is or
could be committed by a person mentioned in
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paragraph (a) or (b) if the person relies, or were to
rely, on the particular--
(a) the responsible person for a heavy vehicle to
whom the information is given;
(b) any other responsible person for a heavy
vehicle who, at any time, is given the false or
misleading information.
704 Offence to falsely represent that heavy vehicle
authority is held etc.
(1) A person must not represent--
(a) that the person has been granted a heavy
vehicle authority the person has not been
granted; or
(b) that the person is operating under a heavy
vehicle authority that the person is not
entitled to operate under.
Maximum penalty--$10000.
(2) A person must not represent that the person is
operating under a heavy vehicle authority if the
authority is no longer in force.
Maximum penalty--$10000.
(3) A person must not possess a document that falsely
purports to be--
(a) an accreditation certificate for a heavy
vehicle accreditation; or
(b) a document mentioned in section 468(1)(b)
or (c); or
(c) a document evidencing the grant of an
exemption, authorisation, permit or other
authority under this Law; or
Examples--
a Commonwealth Gazette notice, a permit
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(d) a copy of a document mentioned in
paragraph (a), (b) or (c).
Maximum penalty--$10000.
(4) In this section--
heavy vehicle authority means--
(a) a heavy vehicle accreditation; or
(b) an exemption, authorisation, permit or other
authority under this Law.
Part 13.2 Industry codes of practice
705 Guidelines for industry codes of practice
(1) The Regulator may make guidelines about the
preparation and content of an industry code of
practice that may be registered under this Law.
(2) Without limiting subsection (1), the guidelines may
provide that an industry code of practice registered
under this Law must provide for the review of the
code of practice.
(3) The Regulator must--
(a) keep a copy of the guidelines available for
inspection by the public, during office hours
on business days, at the Regulator's head
office; and
(b) publish a copy of the guidelines on the
Regulator's website.
706 Registration of industry codes of practice
(1) The Regulator may register an industry code of
practice for the purposes of this Law prepared in
accordance with guidelines in force under
section 705.
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(2) The registration must be subject to the following
conditions imposed by the Regulator--
(a) that the industry code of practice must be
reviewed after a stated period;
(b) that a stated person, or a person of a stated
class, must be appointed to maintain the
industry code of practice and ensure it is
updated following changes to best practice
methods for the industry to which it relates;
(c) that the industry code of practice must be
updated following changes to the guidelines
for the preparation and content of the industry
code of practice in force under section 705.
(3) The registration may be subject to other conditions
the Regulator considers appropriate.
(4) Subsection (5) applies if--
(a) a condition applying to the registration of an
industry code of practice is contravened; or
(b) the guidelines in force under section 705
about the preparation and content of an
industry code of practice are changed and a
registered industry code of practice does not
comply with the guidelines as amended.
(5) The Regulator may--
(a) amend the conditions of the registration,
including by adding new conditions; or
Example of a condition for the purposes of
paragraph (a)--
that the registered industry code of practice be
amended in a stated way to reflect a change to the
guidelines for the preparation and content of the
code of practice in force under section 705
(b) cancel the registration.
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(6) Conditions mentioned in subsection (2) can be
amended under subsection (5) so long as the
amended conditions conform with subsection (2),
but cannot otherwise be amended.
(7) The Regulator incurs no liability for loss or damage
suffered by a person because the person relied on a
registered industry code of practice.
Part 13.3 Legal proceedings
Division 1 Proceedings
707 Proceedings for offences
(1) A proceeding for an offence against this Law is to
be by way of a summary proceeding before a court
of summary jurisdiction.
(2) The proceeding must start within the later of the
following periods to end--
(a) 2 years after the commission of the offence;
(b) 1 year after the offence comes to the
complainant's knowledge, but within 3 years
after the commission of the offence.
(3) A statement in a complaint for an offence against
this Law that the matter of the complaint came to
the knowledge of the complainant on a stated day
is evidence of when the matter came to the
complainant's knowledge.
(4) In this section--
complaint means a complaint, notice, charge or
other process by which a proceeding for an offence
is started.
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Division 2 Evidence
708 Proof of appointments unnecessary
For the purposes of this Law, it is not necessary to
prove the appointment of the following persons--
(a) an official;
(b) a police commissioner.
709 Proof of signatures unnecessary
For the purposes of this Law, a signature purporting
to be the signature of 1 of the following persons is
evidence of the signature it purports to be--
(a) an official;
(b) a police commissioner.
710 Averments
(1) In a proceeding for an offence against this Law, a
statement in the complaint for the offence that, at a
stated time or during a stated period--
(a) a stated vehicle or a stated combination was a
heavy vehicle; or
(b) a stated vehicle or a stated combination was
of a stated category of heavy vehicle; or
(c) a stated person was the registered operator of
a stated heavy vehicle; or
(d) a stated person held a permit for a mass or
dimension authority, a heavy vehicle
accreditation or another authority under this
Law; or
(e) a stated location was, or was a part of, a road
or road-related area; or
(f) a stated location was, under a stated provision
of this Law or another stated law, subject to a
stated prohibition, restriction or other
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requirement about the use of heavy vehicles
or stated categories of heavy vehicles;
is evidence of the matter.
(2) In a proceeding for an offence against this Law, a
statement or allegation in the complaint for the
offence that the act or omission constituting the
alleged offence was done or made in a stated place,
at a stated time, on a stated date or during a stated
period, is evidence of the matter.
(3) In this section--
complaint means a complaint, notice, charge or
other process by which a proceeding for an offence
is started.
711 Evidence by certificate by Regulator generally
(1) A certificate purporting to be issued by the
Regulator and stating that, at a stated time or during
a stated period--
(a) a stated vehicle was or was not registered
under this Law; or
(b) a stated vehicle was or was not registered
under this Law on the basis it is a heavy
vehicle; or
(c) a stated vehicle registered under this Law was
or was not registered as a heavy vehicle of a
stated category; or
(d) a stated person was or was not the registered
operator of a stated vehicle registered under
this Law; or
(e) a stated person held or did not hold a heavy
vehicle accreditation granted under this Law;
or
(f) a stated exemption or authorisation under this
Law applied or did not apply to a stated
person or a stated heavy vehicle; or
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(g) a stated person is the holder of a stated permit
or other authority under this Law; or
(h) a stated registration, heavy vehicle
accreditation, exemption, authorisation,
permit or other authority under this Law was
or was not amended, suspended or cancelled
under this Law; or
(i) a stated penalty, fee, charge or other amount
was or was not, or is or is not, payable under
this Law by a stated person; or
(j) a stated fee, charge or other amount payable
under this Law was or was not paid to the
Regulator; or
(k) a stated person has or has not notified the
Regulator of any, or a stated, change of the
person's address; or
(l) a stated identification card (however called)
was issued by the Regulator to a stated person
and was or was not current; or
(m) a stated authorised officer (other than an
authorised officer who is a police officer) was
authorised to exercise a stated power under
this Law and--
(i) was not restricted in the exercise of the
power by the officer's conditions of
appointment or a direction of the
Regulator; or
(ii) was not restricted in a stated way in the
exercise of the power by the officer's
conditions of appointment or a direction
of the Regulator; or
(n) a stated industry code of practice was or was
not registered under section 706; or
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(o) a stated road or road-related area, or a stated
part of a road or road-related area, was in an
area or on a route declared under a stated
provision of this Law or the national
regulations; or
(p) a stated heavy vehicle, or a stated component
of a stated heavy vehicle, was weighed by or
in the presence of a stated authorised officer
on a stated weighbridge or weighing facility
or by the use of a stated weighing device, and
that a stated mass was the mass of the vehicle
or component; or
(q) a stated mathematical or statistical procedure
was carried out in relation to stated
information generated, recorded, stored,
displayed, analysed, transmitted or reported
by an approved intelligent transport system
and the results of the procedure being carried
out;
is evidence of the matter.
(2) A procedure specified in a certificate under
subsection (1)(q) is presumed, unless the contrary
is proved--
(a) to be valid and reliable for the purpose for
which it was used; and
(b) to have been carried out correctly.
712 Evidence by certificate by road authority
A certificate purporting to be issued by a road
authority and stating that, at a stated time or during
a stated period--
(a) a stated vehicle was or was not registered or
licensed under a law administered by the
authority; or
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(b) a stated person was the person in whose name
a stated vehicle was registered or licensed
under a law administered by the authority; or
(c) a stated vehicle was not registered or licensed
under a law administered by the authority in a
stated person's name; or
(d) a stated location--
(i) was, or was part of, a road or road-
related area; or
(ii) was not a road or road-related area or
part of a road or road-related area; or
(e) a stated location was or was not, under a
stated law of a stated participating
jurisdiction, subject to a stated prohibition,
restriction or other requirement about the use
of heavy vehicles or stated categories of
heavy vehicles;
is evidence of the matter.
713 Evidence by certificate by Regulator about
matters stated in or worked out from records
(1) A certificate purporting to be issued by the
Regulator and stating any of the following matters
is evidence of the matter--
(a) a stated matter appears in a stated record kept
by the Regulator for the administration or
enforcement of this Law;
(b) a stated matter appears in a stated record
accessed by the Regulator for the
administration or enforcement of this Law.
(2) A certificate purporting to be issued by the
Regulator and stating that a matter that has been
worked out from either of the following is evidence
of the matter--
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(a) a stated record kept by the Regulator for the
administration or enforcement of this Law;
(b) a stated record accessed by the Regulator for
the administration or enforcement of this
Law.
(3) This section does not limit section 711.
714 Evidence by certificate by authorised officer
about instruments
(1) A certificate purporting to be issued by an
authorised officer and stating that, on a stated day
or at a stated time on a stated day, a stated
instrument--
(a) was in a proper condition; or
(b) had a stated level of accuracy;
is evidence of those matters on the stated day or at
the stated time.
(2) Evidence of the condition of the instrument, or the
way in which it was operated, is not required unless
evidence that the instrument was not in proper
condition or was not properly operated has been
given.
(3) A defendant in a proceeding for an offence against
this Law who intends to challenge the condition of
an instrument, or the way in which it was operated,
must give the complainant notice of the intention to
challenge.
(4) The notice must be--
(a) signed by the defendant; and
(b) given at least 14 days before the day fixed for
the hearing of the charge.
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(5) In this section--
instrument means--
(a) a weighing device; or
(b) an intelligent transport system.
715 Challenging evidence by certificate
(1) A defendant in a proceeding for an offence against
this Law who intends to challenge a matter stated
in a certificate mentioned in section 711, 712, 713
or 714(1) must give the complainant notice of the
intention to challenge.
(2) The notice must be--
(a) signed by the defendant; and
(b) given at least 14 days before the day fixed for
the hearing of the charge.
(3) If the matter intended to be challenged is the
accuracy of a measurement, an analysis or a
reading from a device, the notice must state--
(a) the basis on which the defendant intends to
challenge the accuracy of the measurement,
analysis or reading; and
(b) the measurement, analysis or reading the
defendant considers to be the correct
measurement, analysis or reading.
(4) A defendant in a proceeding for an offence against
this Law can not challenge a matter stated in a
certificate mentioned in section 711, 712, 713
or 714(1) unless--
(a) the defendant has complied with this section;
or
(b) the court gives leave to the defendant to
challenge the matter, in the interests of
justice.
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(5) This section applies only if the defendant is given a
copy of the certificate at least 28 days before the
appointed date for the hearing of the charge.
716 Evidence by record about mass
A record of the mass of a heavy vehicle, or a
component of a heavy vehicle, purporting to be
made by the operator of a weighbridge or weighing
facility at which the vehicle or component was
weighed, or by the operator's employee--
(a) is admissible in a proceeding under this Law;
and
(b) is evidence of the mass of the vehicle or
component at the time it was weighed.
717 Manufacturer's statements
(1) A written statement of the recommended maximum
loaded mass (mass rating) for a heavy vehicle, or a
component of a heavy vehicle, purporting to be
made by the manufacturer of the vehicle or
component is admissible in a proceeding under this
Law and is evidence--
(a) of the mass rating; and
(b) of any conditions, stated in the statement, to
which the mass rating is subject; and
(c) that the statement was made by the
manufacturer.
(2) A written statement of the strength or performance
rating of equipment used to restrain a load and
designed for use on a heavy vehicle, or on a
component of a heavy vehicle, purporting to be
made by the manufacturer of the equipment is
admissible in a proceeding under this Law and is
evidence--
(a) that the equipment was designed for the use;
and
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(b) of the strength or performance rating of the
equipment; and
(c) of any conditions, stated in the statement, to
which the rating is subject; and
(d) that the statement was made by the
manufacturer.
Example of equipment used to restrain a load--
a chain or strap
718 Measurement of weight on tyre
(1) A mark or print on a tyre purporting to be the
maximum load capacity decided by the
manufacturer of the tyre is evidence of the
maximum load capacity for the tyre at cold
inflation pressure decided by the manufacturer.
(2) If it is impracticable to work out the mass on each
tyre in an axle or axle group, the mass on the axle
or axle group divided by the number of tyres in the
axle or axle group is taken to be the mass on the
tyre in the absence of evidence to the contrary.
719 Transport and journey documentation
(1) Transport documentation and journey
documentation are admissible in a proceeding
under this Law and are evidence of--
(a) the identity and status of the parties to the
transaction to which the documentation
relates; and
(b) the destination or intended destination of the
load to which the documentation relates; and
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(c) either or both the date on which and the time
at which--
(i) any document in the documentation was
created; or
(ii) any transaction mentioned in the
documentation was effected or carried
out; or
(iii) any journey mentioned in the
documentation was started, carried out
or finished; or
(iv) any other matter mentioned in the
documentation was effected, started,
carried out or finished; and
(d) the location of any person, heavy vehicle,
goods or other matter or thing mentioned in
the documentation; and
(e) the date and time at which any person, heavy
vehicle, goods or other matter or thing
mentioned in the documentation was present
at a particular place.
(2) In this section--
status, of the parties to a transaction, includes the
status of each of the parties as a responsible person
for the heavy vehicle used or intended to be used
for transporting the goods the subject of the
transaction.
720 Evidence not affected by nature of vehicle
Evidence obtained in relation to a vehicle because
of the exercise of a power under this Law in the
belief or suspicion that the vehicle is a heavy
vehicle is not affected merely because the vehicle is
not a heavy vehicle.
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721 Certificates of TCA
(1) A certificate purporting to be signed by a person on
behalf of TCA stating any of the following matters
is evidence of the matter--
(a) a stated intelligent transport system was or
was not an approved intelligent transport
system on a stated date or during a stated
period;
(b) a stated person was or was not an intelligent
access service provider on a stated date or
during a stated period;
(c) a stated person was or was not an intelligent
access auditor on a stated date or during a
stated period.
(2) A person who purportedly signs a certificate of a
type mentioned in subsection (1) on behalf of TCA
is presumed, unless the contrary is proved, to have
been authorised by TCA to sign the certificate on
TCA's behalf.
722 Approved intelligent transport system
(1) An approved intelligent transport system, including
all the equipment and software that makes up the
system, is presumed, unless the contrary is proved,
to have operated properly on any particular
occasion.
(2) Without limiting subsection (1), information
generated, recorded, stored, displayed, analysed,
transmitted and reported by an approved intelligent
transport system is presumed, unless the contrary is
proved, to have been correctly generated, recorded,
stored, displayed, analysed, transmitted and
reported by the system.
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(3) Without limiting subsection (1) or (2), information
generated by an approved intelligent transport
system is presumed, unless the contrary is proved,
not to have been changed by being recorded,
stored, displayed, analysed, transmitted or reported
by the system.
(4) If in a proceeding it is established by contrary
evidence that particular information recorded or
stored by an approved intelligent transport system
is not a correct representation of the information
generated by the system, the presumption
mentioned in subsection (3) continues to apply to
the remaining information recorded or stored by the
system despite that contrary evidence.
(5) If a defendant in a proceeding for an offence
against this Law intends to challenge any of the
following matters, the defendant must give the
complainant notice of the intention to challenge--
(a) that an approved intelligent transport system
has operated properly;
(b) that information generated, recorded, stored,
displayed, analysed, transmitted or reported
by an approved intelligent transport system
has been correctly generated, recorded,
stored, displayed, analysed, transmitted or
reported by the system;
(c) that information generated by an approved
intelligent transport system has not been
changed by being recorded, stored, displayed,
analysed, transmitted or reported by the
system.
(6) The notice must--
(a) be signed by the defendant; and
(b) state the grounds on which the defendant
intends to rely to challenge a matter
mentioned in subsection (5)(a), (b) or (c); and
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(c) be given at least 14 days before the day fixed
for the hearing of the charge.
(7) This section does not limit section 714.
723 Evidence as to intelligent access map
(1) A certificate purporting to be signed by a person on
behalf of TCA stating that a particular map was or
was not the intelligent access map as issued by
TCA on a stated date or during a stated period is
conclusive evidence of the matter stated in the
certificate.
(2) The intelligent access map, as issued by TCA at a
particular time, is presumed, unless evidence
sufficient to raise doubt about the presumption is
adduced, to be a correct representation of the
national road network at the time of its issue.
(3) A person who purportedly signs a certificate of the
kind referred to in subsection (1) on behalf of TCA
is presumed, unless evidence sufficient to raise
doubt about the presumption is adduced, to have
been authorised by TCA to sign the certificate on
TCA's behalf.
724 Reports and statements made by approved
intelligent transport system
(1) A report purporting to be made by an approved
intelligent transport system--
(a) is presumed, unless the contrary is proved--
(i) to have been properly made by the
system; and
(ii) to be a correct representation of the
information generated, recorded, stored,
displayed, analysed, transmitted and
reported by the system; and
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(b) is admissible in a proceeding under this Law;
and
(c) is evidence of the matters stated in it.
(2) However, subsection (1)(c) does not apply to
information stated in a report made by an approved
intelligent transport system that has been manually
entered into the system by an operator or driver of a
heavy vehicle.
Example--
If the driver of a heavy vehicle enters the mass of the
vehicle into the intelligent transport system, the
information about the mass of the vehicle stated in a report
made by the system is not evidence of the mass of the
vehicle.
(3) Also, if in a proceeding it is established by contrary
evidence that part of a report made by an approved
intelligent transport system is not a correct
representation of particular information generated,
recorded, stored, displayed, analysed, transmitted
or reported by the system, the presumption
mentioned in subsection (1)(a) continues to apply
to the remaining parts of the report despite that
contrary evidence.
(4) If a defendant in a proceeding for an offence
against this Law intends to challenge any of the
following matters, the defendant must give the
complainant notice of the intention to challenge--
(a) that a report made by an approved intelligent
transport system has been properly made;
(b) that a report made by an approved intelligent
transport system is a correct representation of
the information generated, recorded, stored,
displayed, analysed, transmitted and reported
by the system;
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(c) the correctness of a statement of a vehicle's
position on the surface of the earth at a
particular time that is made by an approved
intelligent transport system.
(5) The notice must--
(a) be signed by the defendant; and
(b) state the grounds on which the defendant
intends to rely to challenge the matter
mentioned in subsection (4)(a), (b) or (c); and
(c) be given at least 14 days before the day fixed
for the hearing of the charge.
(6) This section does not limit section 714.
725 Documents produced by an approved
electronic recording system
(1) This section applies to an approved electronic
recording system constituting an electronic work
diary or of which an electronic work diary is a part.
(2) A document purporting to be made by the approved
electronic recording system--
(a) is admissible in a proceeding under this Law
relating to a fatigue-regulated heavy vehicle;
and
(b) is evidence of the matters stated in it.
726 Statement by person involved with use or
maintenance of approved electronic recording
system
(1) This section applies to an approved electronic
recording system constituting an electronic work
diary or of which an electronic work diary is a part.
(2) A written statement about how the approved
electronic recording system has been used or
maintained, and purporting to be made by the
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person purporting to be involved in the use or
maintenance--
(a) is admissible in a proceeding under this Law
relating to a fatigue-regulated heavy vehicle;
and
(b) is evidence of the matters included in the
statement.
Examples of statements--
· a statement made by the driver of a fatigue-regulated
heavy vehicle who uses an electronic work diary about
how the driver operated the work diary
· a statement made by an owner of an approved
electronic recording system about how the owner has
maintained the system
· a statement made by the record keeper (within the
meaning given by section 317) of the driver of a
fatigue-regulated heavy vehicle who uses an electronic
work diary about how information was transmitted
from the electronic work diary to the record keeper
Part 13.4 Protected information
727 Definitions for Pt 13.4
(1) In this Part--
authorised use, for protected information, means--
(a) use by a person--
(i) in the exercise of a function under this
Law; or
(ii) where use of the information is required
or authorised under this Law (whether
explicitly or by implication); or
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(b) use by a public authority or law enforcement
agency--
(i) for the administration or enforcement of
a law or the exercise of another function
of the authority or agency, including, for
example, investigating a contravention
or suspected contravention of a law; or
(ii) if a law authorises, requires or permits
the disclosure of the information to, and
the use of the information by, the
authority or agency; or
(c) use by a court or tribunal in a proceeding
under an Australian road law; or
(d) use by a court or tribunal if an order of the
court or tribunal requires the disclosure of the
information to the court or tribunal; or
(e) an activity associated with preventing or
minimising--
(i) a risk of danger to the life of a person; or
(ii) a risk of serious harm to the health of a
person; or
(iii) a risk to public safety; or
(f) a use authorised by the person to whom the
information relates; or
(g) research purposes if the information contains
no personal information; or
(h) use by an entity (whether public or private) in
connection with road tolls; or
(i) use by an entity (whether public or private) in
connection with the administration of third
party insurance legislation; or
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(j) use by an entity (whether public or private)
for the purpose of determining the
registration status of a heavy vehicle; or
(k) a use required or authorised under a relevant
law of a participating jurisdiction; or
(l) a use prescribed by the national regulations;
or
(m) a use referred to in subsection (2).
police agency means a police force or police
service (however called) of a participating
jurisdiction, and includes an entity prescribed by
the Application Act of this jurisdiction as an entity
included in this definition.
protected information--
(a) means information obtained in the course of
administering this Law or because of an
opportunity provided by involvement in
administering this Law; but
(b) does not include--
(i) intelligent access information; or
Note--
See Chapter 7 for the restrictions on the use
and disclosure of intelligent access
information.
(ii) information mentioned in paragraph (a)
in a form that does not identify a person;
or
(iii) information relating to proceedings
before a relevant tribunal or court that
are or were open to the public.
relevant law, of a participating jurisdiction, means
a law specified for this definition in a law of the
jurisdiction.
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(2) It is also an authorised use of protected information
disclosed to or otherwise held by a police agency
for any purpose or for a particular purpose to
disclose the information to another police agency
authorised to hold protected information (whether
or not for the same purpose).
(3) To remove any doubt, it is declared that a reference
in this Part to the disclosure of protected
information to an entity includes a reference to the
disclosure of the information to a duly authorised
employee or agent of the entity.
728 Duty of confidentiality
(1) A person who is, or has been, a person exercising
functions under this Law must not disclose
protected information to another person.
Maximum penalty--$20000.
(2) However, subsection (1) does not apply to the
Regulator--
(a) disclosing protected information in the form
of a confirmation that a stated person is the
registered operator of a stated heavy vehicle;
or
(b) disclosing details of heavy vehicles registered
in a person's name to an executor or
administrator of that person's deceased estate.
(3) Also, subsection (1) does not apply if--
(a) the disclosure is to an entity for an authorised
use; or
(b) the disclosure is to, or made with the
agreement of, the person to whom the
information relates.
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729 Protected information only to be used for
authorised use
(1) A person who is, or has been, a person exercising
functions under this Law must not use protected
information other than for an authorised use.
Maximum penalty--$20000.
(2) However, subsection (1) does not apply to the
Regulator using protected information for making a
disclosure mentioned in section 728(2).
(3) A person to whom protected information is
disclosed under section 728(3)(a) must not use the
protected information other than for the authorised
use for which it was disclosed to the person.
Maximum penalty--$20000.
Part 13.5 National regulations
730 National regulations
(1) For the purposes of this section, the designated
authority is the Queensland Governor acting with
the advice of the Executive Council of Queensland
and on the unanimous recommendation of the
responsible Ministers.
(2) The designated authority may make regulations for
the purposes of this Law.
(3) The regulations may provide for--
(a) any matter a provision of this Law states may
be provided for in the regulations; and
(b) the imposition of a maximum fine for a
contravention of a provision of the
regulations of not more than--
(i) for a contravention by an individual--
$4000; or
(ii) in any other case--$20000; and
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(c) any other matter that is necessary or
convenient to be prescribed for carrying out
or giving effect to this Law.
(4) Subsection (3)(b) does not require a provision of
the regulations prescribing a maximum fine for an
offence to expressly prescribe a maximum fine for
a body corporate different to the maximum fine for
an individual.
Note--
See section 596 in relation to a provision of the regulations
prescribing a maximum fine that does not expressly
prescribe a maximum fine for a body corporate different to
the maximum fine for an individual.
(5) In this section--
Queensland Governor means the Governor of the
State of Queensland and includes--
(a) a person acting under a delegation under
section 40 of the Constitution of Queensland
2001; and
(b) a person for the time being administering the
Government of Queensland under section 41
of the Constitution of Queensland 2001.
731 National regulations for approved vehicle
examiners
(1) Without limiting any other provision of this Law,
the national regulations may provide for--
(a) the approval of classes of vehicle examiners
to inspect vehicles for the purposes of this
Law; and
(b) the role of the Regulator in approving classes
of vehicle examiners and persons as vehicle
examiners; and
(c) probity requirements for becoming and being
approved vehicle examiners; and
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(d) the functions of approved vehicle examiners
or classes of approved vehicle examiners,
including, for example--
(i) the examination and testing of heavy
vehicles and equipment; and
(ii) the oversight of entities involved in the
inspection or repair of heavy vehicles;
and
(iii) the clearance of vehicle defect notices;
and
(e) the premises or location where functions of
approved vehicle examiners are permitted to
be conducted and any matters relating to the
premises or location where those functions
are conducted; and
(f) the facilities and equipment that approved
vehicle examiners are required to have in
connection with the exercise of their
functions; and
(g) the terms and conditions of approval of
persons as vehicle examiners (including, for
example, fees, qualifications and
responsibilities); and
(h) procedures for monitoring and auditing
compliance with--
(i) the terms and conditions of approval of
a person as a vehicle examiner; and
(ii) the relevant provisions of this Law and
any applicable code of practice
prescribed by the national regulations;
and
(iii) any other relevant requirements; and
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(i) the discipline of, and disciplinary procedures
applying to, approved vehicle examiners and
entities having responsibility for their
functions (including directors, managers and
employees), whether--
(i) by way of monetary penalties, restriction
on functions, imposition of conditions,
variation of terms of appointment,
suspension of appointment, cancellation
of appointment; or
(ii) in some other way.
(2) The national regulations may make provision with
respect to vehicle examiners (however described)
appointed or authorised under a law of any
participating jurisdiction and entities having
responsibility for their functions (including
directors, managers and employees), including
processes relating to discipline and disciplinary
procedures applying to them.
732 National regulations for publication of
agreements for services to States or Territories
Without limiting any other provision of this Law,
the national regulations may provide that particular
matters contained in or relating to agreements
referred to section 658(2) are to be published on the
Regulator's website.
733 Publication of national regulations
(1) The national regulations are to be published on
the NSW legislation website in accordance with
Part 6A of the Interpretation Act 1987 of New
South Wales.
(2) A regulation commences on the day or days
specified in the regulation for its commencement
(being not earlier than the date it is published).
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734 Scrutiny of national regulations
(1) The responsible Minister for a participating
jurisdiction is to refer any adverse report about a
national regulation from a legislation scrutiny body
for that jurisdiction to the responsible Ministers for
consideration and advice.
(2) The responsible Ministers are to prepare advice on
the adverse report and provide a report to the
relevant responsible Minister about the issues
raised.
(3) The report by the responsible Ministers is to be
provided to the responsible Minister in sufficient
time to ensure the responsible Minister can provide
the response to the relevant scrutiny body within a
period that is appropriate in the circumstances.
(4) Subsections (1) to (3) do not affect any legislative
or other arrangements regarding scrutiny and
disallowance in jurisdictions and do not limit a
responsible Minister's ability to respond
independently to any issues raised by a legislation
scrutiny body.
(5) In this section--
legislation scrutiny body means a parliamentary
committee (or other parliamentary body) whose
functions include the scrutiny of regulations and
other subordinate legislation.
Part 13.6 Other
735 Approved forms
(1) The Regulator may approve forms for use under
this Law.
(2) The approval of a form must be notified on the
Regulator's website.
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(3) Failure to comply with subsection (2) does not
affect a form's validity.
(4) The function of approving forms includes the
function of approving the format of forms.
736 Penalty at end of provision
In this Law, a penalty stated at the end of a
provision indicates that an offence mentioned in
the provision is punishable on conviction or, if no
offence is mentioned, a contravention of the
provision constitutes an offence against the
provision that is punishable on conviction, by a
penalty not more than the stated penalty.
Note--
See also section 596 in relation to maximum fines for
bodies corporate.
737 Increase of penalty amounts
(1) This section applies to the penalty stated at the end
of a provision for an offence (including a penalty
whose amount has already been increased by a
previous application or applications of this section).
(2) At the start of 1 July of each year, beginning with
1 July 2014, the amount of each penalty is
increased, from the amount that applied
immediately before that 1 July, in accordance with
the method prescribed by the national regulations
for the purposes of this section.
Note--
In some circumstances, the operation of the method can
result in no increases occurring on a particular 1 July.
(3) A recommendation of the responsible Ministers for
national regulations prescribing a method for the
increase of penalties can not be made unless the
responsible Ministers are satisfied that the method
generally accords with increases in relevant
inflation indexes or similar indexes.
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(4) As soon as practicable but before 1 July of each
year, the Regulator must publish on the Regulator's
website the amounts of each penalty applying as
from that date.
738 Service of documents
(1) If this Law requires or permits a document to be
served on a person, the document may be served--
(a) on an individual--
(i) by delivering it to the individual
personally; or
(ii) by leaving it at, or by sending it by post
to, the address of the place of residence
or business of the individual last known
to the person serving the document; or
(iii) by sending it by fax to a fax number
notified to the sender by the individual
as an address at which service of
documents under this Law will be
accepted; or
(iv) by sending it by email to an internet
address notified to the sender by the
individual as an address at which service
of documents under this Law will be
accepted; or
(b) on another person--
(i) by leaving it at, or by sending it by post
to, the head office, a registered office or
a principal office of the person; or
(ii) by sending it by fax to a fax number
notified to the sender by the person as an
address at which service of documents
under this Law will be accepted; or
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(iii) by sending it by email to an internet
address notified to the sender by the
person as an address at which service of
documents under this Law will be
accepted.
(2) Subsection (1) applies whether the expression
`deliver', `give', `notify', `send' or `serve' or
another expression is used.
(3) Subsection (1) does not affect--
(a) the operation of another law that authorises
the service of a document otherwise than as
provided in the subsection; or
(b) the power of a court or tribunal to authorise
service of a document otherwise than as
provided in the subsection.
739 Service by post
(1) If a document authorised or required to be served
on a person under this Law is served by post,
service of the document--
(a) may be effected by properly addressing,
prepaying and posting the document as a
letter; and
(b) is taken to have been effected at the time at
which the letter would be delivered in the
ordinary course of post, unless the contrary is
proved.
(2) Subsection (1) applies whether the expression
`deliver', `give', `notify', `send' or `serve' or
another expression is used.
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740 Fees
(1) The national regulations may prescribe the fees
payable for the following--
(a) an application under this Law (whether or
not another provision of this Law refers to
payment of the prescribed fee for the
application);
(b) the issue of a work diary for the driver of a
fatigue-regulated heavy vehicle.
(2) The Regulator may set fees payable for the
provision of a service in connection with the
administration of this Law (other than fees
mentioned in subsection (1)).
(3) The national regulations may provide that stated
kinds of fees may be set by the Regulator for
inspection services, except so far as those fees are
provided for under another law of this jurisdiction.
(4) A fee set by the Regulator under subsection (2)
or (3) must be an amount--
(a) the Regulator considers reasonable; and
(b) that is no more than the reasonable cost of
providing the service.
(5) The Regulator must publish a fee set by the
Regulator under subsection (2) or (3)--
(a) in the Commonwealth Gazette; and
(b) on the Regulator's website.
(6) The Regulator may waive payment of the whole or
part of a fee in circumstances, or in circumstances
of a kind, prescribed by the national regulations.
(7) If a fee is prescribed for an application or any other
matter under this Law, the decision-maker may
decline to deal with the application or proceed with
the other matter until the fee is paid.
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741 Recovery of amounts payable under Law
(1) A fee, charge or other amount payable under this
Law is a debt due to the Regulator and may be
recovered by action for a debt in a court of
competent jurisdiction.
(2) A fee, charge or other amount payable under this
Law may also be recovered in a proceeding for an
offence against this Law.
(3) An order made under subsection (2)--
(a) can not be for an amount exceeding the
monetary jurisdictional limit of the court in
civil proceedings; and
(b) is taken to be, and is enforceable as, a
judgment of the court sitting in civil
proceedings.
742 Contracting out prohibited
(1) A contract is void to the extent to which it--
(a) is contrary to this Law; or
(b) purports to annul, exclude, restrict or
otherwise change the effect of a provision of
this Law; or
(c) purports to require the payment or
reimbursement by a person of all or part of a
penalty that another person has been ordered
to pay under this Law.
(2) This section does not prevent the parties to a
contract from including provisions in the contract
imposing greater or more onerous obligations on an
entity than are imposed by the requirements of this
Law.
(3) This section applies to contracts entered into before
or after the commencement of this section.
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(4) In this section--
contract means contract or other agreement.
743 Other powers not affected
(1) Unless otherwise provided in this Law, nothing in
this Law affects any power a court, tribunal or
official has apart from this Law.
(2) Without limiting subsection (1), nothing in this
Law affects 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
Part 14.1 Interim provisions relating
to Ministers and Board
744 Responsible Ministers
(1) This section applies if a jurisdiction--
(a) is not a participating jurisdiction; but
(b) has signed the Inter-governmental Agreement
on Heavy Vehicle Regulatory Reform, as in
force from time to time, between the
Commonwealth of Australia and the States
and Territories of Australia.
(2) The jurisdiction may nominate a Minister to be the
responsible Minister for the jurisdiction for the
purposes of this Law until the prescribed day for
the jurisdiction.
(3) Until the prescribed day for the jurisdiction, the
relevant provisions of this Law apply as if--
(a) the jurisdiction were a participating
jurisdiction; and
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(b) the Minister nominated under subsection (2)
were the responsible Minister for the
jurisdiction for the purposes of this Law.
(4) To remove any doubt, it is declared that this section
does not prevent the Minister nominated under
subsection (2) being nominated as the responsible
Minister for the jurisdiction after the participation
day for the jurisdiction.
(5) In this section--
participation day, for a participating jurisdiction,
means the day the jurisdiction became a
participating jurisdiction.
prescribed day, for a jurisdiction, means the earlier
of the following--
(a) the participation day for the jurisdiction;
(b) 30 June 2014.
relevant provisions means the provisions of this
Law relating to the functions of responsible
Ministers under this Law other than section 652.
745 Exercise of powers by Board between
enactment and commencement
(1) This section applies if--
(a) under section 30 of Schedule 1, the
Queensland Minister, on the unanimous
recommendation of the responsible Ministers,
appoints the members of the Board before
section 663 commences; and
(b) a provision of this Law conferring a function
on the Board (a relevant provision) has not
commenced.
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(2) The members--
(a) may meet and exercise the function under the
relevant provision in the same way and
subject to the same conditions that would
apply if the relevant provision had
commenced; and
(b) in doing so, are entitled to be paid the
remuneration and allowances to which the
members are entitled under section 666
whether or not that section has commenced.
(3) For the purposes of deciding the duration of the
term of office of a member of the Board, the term
does not start until section 663 commences despite
the exercise of any function by the member under
subsection (2).
(4) The exercise of a function under a relevant
provision does not confer a right, or impose a
liability, on a person before the relevant provision
commences.
(5) This section does not limit section 30 of
Schedule 1.
Part 14.2 General provisions
746 Application of Part 14.2
(1) This Part has effect in relation to this jurisdiction
except to the extent any law of this jurisdiction
expressly or impliedly overrides a provision of this
Part.
(2) Nothing in this Part limits section 34 of Schedule 1,
except to the extent that the context or subject
matter otherwise indicates or requires.
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747 Definitions for Part 14.2
In this Part--
commencement day, for this jurisdiction, means,
with respect to a provision of this Law, the day this
jurisdiction became a participating jurisdiction in
relation to that provision.
current PBS scheme means the scheme in
operation immediately before the commencement
day relating to compliance with legislative
requirements for heavy vehicles by reference to
performance based standards, and comprises such
of the following instruments as are in force
immediately before the commencement day--
(a) the Standards and Vehicle Assessment Rules
as at 10 November 2008;
(b) the Assessor Accreditation Rules (July 2007);
(c) the Vehicle Certification Rules (July 2007);
(d) the Network Classification Guidelines (July
2007);
(e) the Guidelines for Determining National
Operating Conditions (July 2007).
former legislation, of this jurisdiction, means
legislation of this jurisdiction that is repealed on the
participation day for this jurisdiction or is
superseded by provisions of this Law on that day.
participation day, for this jurisdiction, means the
day this jurisdiction became a participating
jurisdiction.
relevant instrument--
(a) means an application, permit, notice,
authority or any other document; and
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(b) without limiting paragraph (a), includes any
document prescribed by a law of this
jurisdiction as being within this definition;
but
(c) does not include any document prescribed by
a law of this jurisdiction as not being within
this definition.
748 General savings and transitional provision
(1) This section applies if a provision of this Law
corresponds to a provision of the former legislation.
(2) Anything done under the provision of the former
legislation before the commencement day has
effect as if--
(a) this Law had been in force when the thing
was done; and
(b) the thing had been done under this Law; and
(c) any reference to a person in, or in relation to,
the provision were a reference to the nearest
equivalent person under this Law; and
(d) any reference in, or in relation to, the
provision to another provision of the former
legislation were a reference to the
corresponding provision of this Law; and
(e) any other adaptations necessary to enable the
thing to be effective under this Law have
been made;
and accordingly the thing is taken to have been
done under this Law.
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(3) Subsection (2) does not apply to the following--
(a) any appointment of a person as an authorised
officer;
(b) any appointment of any other person who was
employed by the department or body
administering the former legislation;
(c) any prosecution of an offence that had not
been completed immediately before the
commencement day;
(d) any review or appeal, or anything related to a
review or appeal, that was unresolved
immediately before the commencement day;
(e) anything excluded from the operation of this
section by the national regulations.
(4) Any prosecution, review or appeal referred to in
subsection (3)(c) or (d) is to proceed as if the
former legislation were still in force in the form it
was in at the relevant time before the
commencement day.
(5) On the final completion of any prosecution, review
or appeal referred to in subsection (3)(c) or (d), it is
to be treated as if it had occurred under this Law.
(6) The Regulator is not liable for anything the
Regulator is taken to have done under this section
that was done before the commencement day.
(7) Proceedings are not to be commenced by the
Regulator for an offence arising from any action or
inaction that was completed before the
commencement day, but nothing in this section
affects the commencement of proceedings by
another person.
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749 Expiry of certain permits, exemptions, notices
and authorities
(1) This section applies if a permit, exemption, notice
or authority--
(a) is taken to have been made under this Law
under section 748; and
(b) is not subject to an expiry date, or is subject
to an expiry date--
(i) that, in the case of a permit, exceeds
3 years after the commencement day; or
(ii) that in any other case exceeds 5 years
after the commencement day.
(2) In the case of a permit, it expires 3 years after the
commencement day, unless it is cancelled before
that day.
(3) In the case of an exemption, notice or authority, it
expires 5 years after the commencement day,
unless it is cancelled before that day.
(4) Despite subsections (2) and (3), a modification
approval granted in respect of a vehicle is to
continue for the life of the vehicle.
(5) For the purposes of this section, a permit that solely
provides an exemption is to be considered to be an
exemption.
750 Amendment or cancellation of instruments
carried over from former legislation
(1) This section applies to any instrument--
(a) that is taken to have been made under this
Law under section 748; and
(b) that applies to more than one person and that
confers a benefit on at least one person; and
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(c) that is of a class of instrument that is
specified by the National Regulations for the
purposes of this section.
(2) An amendment or cancellation of part of the
instrument by implication does not affect the
remainder of the instrument.
Example--
If an instrument relates to mass and fatigue exemptions, a
notice cancelling only the fatigue exemptions will not
cancel the mass exemptions. The mass exemptions, and
their associated conditions, will continue in force until they
are separately amended, or until they expire.
(3) Despite anything to the contrary in this Law, if
the instrument is amended or cancelled and the
amendment or cancellation has the effect of
removing or reducing the benefit previously
conferred on a person by the instrument, the person
may continue to enjoy the benefit as if the
amendment or cancellation had not occurred until
the instrument would have expired had the
amendment or cancellation not occurred.
(4) Despite anything to the contrary in this Law other
than subsection (3), the Regulator may amend or
cancel the instrument simply by publishing notice
of the amendment or cancellation--
(a) in--
(i) the Commonwealth Gazette; and
(ii) a newspaper circulating generally
throughout each relevant participating
jurisdiction; and
(b) on the Regulator's website; and
(c) in any other newspaper the Regulator
considers appropriate.
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(5) The amendment or cancellation takes effect--
(a) 28 days after the Commonwealth Gazette
notice is published under subsection (4); or
(b) if a later time is stated in the Commonwealth
Gazette notice, at the later time.
(6) This section applies even to amendments and
cancellations that occur by implication, and it is not
necessary that the instrument being amended or
cancelled be identified in the amending or
cancelling notice.
751 Expiry of industry codes of practice
(1) This section applies if a code of practice--
(a) is taken to have been made under this Law
under section 748; and
(b) is not subject to a review date, or is subject to
a review date that exceeds 3 years after the
commencement day.
(2) The code of practice expires 3 years after the
commencement day, unless it is cancelled before
that day.
752 Pending matters
(1) This section applies if--
(a) section 748 applies to a relevant instrument
(for example, an application); and
(b) any matter (for example, the determination of
an application) is pending in respect of the
instrument immediately before the
participation day for this jurisdiction.
(2) When the matter is being dealt with on or after the
participation day for this jurisdiction--
(a) the Regulator (or other person having
functions under this Law in relation to the
matter) may have regard to any relevant
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provisions of the former legislation for this
jurisdiction; and
(b) this Law applies in relation to the matter--
(i) with any adaptations the Regulator
(or other person) considers appropriate
to achieve consistency with provisions
of the former legislation; and
(ii) with any necessary adaptations.
753 Preservation of current PBS scheme
(1) The instruments that comprise the current PBS
scheme--
(a) continue in force on and from the
commencement day despite the
commencement of any provision of this Law;
and
(b) apply with any necessary or appropriate
modifications with respect to any relevant
provisions of this Law or any relevant
functions of the Regulator; and
(c) so apply as if a reference in the instruments to
the National Transport Commission included
a reference to the Regulator.
(2) This section ceases to apply to an instrument if it is
replaced by approved guidelines or it is otherwise
dispensed with.
754 Preservation of contracts for current PBS
scheme
(1) This section applies to a contract between the
National Transport Commission and another person
that relates to the appointment or functions of the
person for the purposes of the current PBS scheme
and that is in force immediately before the
commencement day.
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(2) A contract to which this section applies and the
arrangements to which the contract relates--
(a) continue in force on and from the
commencement day despite the
commencement of any provision of this Law;
and
(b) apply with any necessary or appropriate
modifications with respect to any relevant
provisions of this Law or any relevant
functions of the Regulator; and
(c) so apply as if a reference in the contract to the
National Transport Commission included a
reference to the Regulator.
(3) This section ceases to apply to a contract with
another person referred to in subsection (1) if--
(a) the contract is terminated; or
(b) a subsequent contract is entered into with the
Regulator and the other person for a similar
or a corresponding purpose.
755 National regulations for savings and
transitional matters
(1) The national regulations may contain provisions of
a savings and transitional nature consequent on the
enactment or commencement of provisions of this
Law in a jurisdiction.
(2) Any such provision may, if the national regulations
so provide, take effect in relation to this jurisdiction
from the participation day for this jurisdiction or a
later day.
(3) To the extent any such provision takes effect from a
day that is earlier than the date of its publication,
the provision does not operate so as--
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(a) to affect, in a manner prejudicial to any
person (other than this jurisdiction or an
authority of this jurisdiction), the rights of
that person existing before the date of its
publication; or
(b) to impose liabilities on any person (other than
this jurisdiction or an authority of this
jurisdiction) in respect of anything done or
omitted to be done before the date of its
publication.
(4) Without limiting subsections (1) to (3), the national
regulations may contain provisions of a savings or
transitional nature that--
(a) have effect in circumstances where some but
not all the provisions of this Law are
commenced; and
(b) without limiting paragraph (a), modify the
operation of the commenced provisions
pending and after commencement of the
uncommenced provisions.
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Schedule 1 Miscellaneous provisions
relating to interpretation
section 10
Part 1 Preliminary
1 Displacement of Schedule by contrary intention
The application of this Schedule may be displaced,
wholly or partly, by a contrary intention appearing
in this Law.
Part 2 General
2 Law to be construed not to exceed legislative
power of Parliament
(1) This Law is to be construed as operating to the full
extent of, but so as not to exceed, the legislative
power of the Parliament of this jurisdiction.
(2) If a provision of this Law, or the application of a
provision of this Law to a person, subject matter or
circumstance, would, but for the purposes of this
section, be construed as being in excess of the
legislative power of the Parliament of this
jurisdiction--
(a) it is a valid provision to the extent to which it
is not in excess of the power; and
(b) the remainder of this Law, and the application
of the provision to other persons, subject
matters or circumstances, is not affected.
(3) This section applies to this Law in addition to, and
without limiting the effect of, any provision of this
Law.
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3 Every section to be a substantive enactment
Every section of this Law has effect as a
substantive enactment without introductory words.
4 Material that is, and is not, part of this Law
(1) The heading to a Chapter, Part, Division or
Subdivision into which this Law is divided is part
of this Law.
(2) A Schedule to this Law is part of this Law.
(3) Punctuation in this Law is part of this Law.
(4) A heading to a section or subsection of this Law
does not form part of this Law.
(5) Notes included in this Law (including footnotes and
endnotes) do not form part of this Law.
5 References to particular Acts and to
enactments
In this Law--
(a) an Act of this jurisdiction may be cited--
(i) by its short title; or
(ii) by reference to the year in which it was
passed and its number; and
(b) Commonwealth Act may be cited--
(i) by its short title; or
(ii) in another way sufficient in a
Commonwealth Act for the citation of
such an Act;
together with a reference to the Commonwealth;
and
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(c) an Act of another jurisdiction may be cited--
(i) by its short title; or
(ii) in another way sufficient in an Act of
the jurisdiction for the citation of such
an Act;
together with a reference to the jurisdiction.
6 References taken to be included in Law or Act
citation etc.
(1) A reference in this Law to this Law or an Act
includes a reference to--
(a) this Law or the Act as originally enacted, and
as amended from time to time since its
original enactment; and
(b) if this Law or the Act has been repealed and
re-enacted (with or without modification)
since the enactment of the reference--this
Law or the Act as re-enacted, and as amended
from time to time since its re-enactment.
(2) A reference in this Law to a provision of this Law
or of an Act includes a reference to--
(a) the provision as originally enacted, and as
amended from time to time since its original
enactment; and
(b) if the provision has been omitted and re-
enacted (with or without modification) since
the enactment of the reference--the provision
as re-enacted, and as amended from time to
time since its re-enactment.
(3) Subsections (1) and (2) apply to a reference in this
Law to a law of the Commonwealth or another
jurisdiction as they apply to a reference in this Law
to an Act and to a provision of an Act.
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7 Interpretation best achieving Law's purpose or
object
(1) In the interpretation of a provision of this Law, the
interpretation that will best achieve the purpose or
object of this Law is to be preferred to any other
interpretation.
(2) Subsection (1) applies whether or not the purpose
or object is expressly stated in this Law.
8 Use of extrinsic material in interpretation
(1) In this section--
extrinsic material means relevant material not
forming part of this Law, including, for example--
(a) material that is set out in the document
containing the text of this Law as printed by
the Government Printer; and
(b) a relevant report of a Royal Commission,
Law Reform Commission, commission or
committee of inquiry, or a similar body, that
was laid before the Parliament of this
jurisdiction before the provision concerned
was enacted; and
(c) a relevant report of a committee of the
Parliament of this jurisdiction that was made
to the Parliament before the provision was
enacted; and
(d) a treaty or other international agreement that
is mentioned in this Law; and
(e) an explanatory note or memorandum relating
to the Bill that contained the provision, or any
relevant document, that was laid before, or
given to the members of, the Parliament of
this jurisdiction by the member bringing in
the Bill before the provision was enacted; and
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(f) the speech made to the Parliament of this
jurisdiction by the member in moving a
motion that the Bill be read a second time;
and
(g) material in the Votes and Proceedings of the
Parliament of this jurisdiction or in any
official record of debates in the Parliament of
this jurisdiction; and
(h) a document that is declared by this Law to be
a relevant document for the purposes of this
section.
ordinary meaning means the ordinary meaning
conveyed by a provision having regard to its
context in this Law and to the purpose of this Law.
(2) Subject to subsection (3), in the interpretation of a
provision of this Law, consideration may be given
to extrinsic material capable of assisting in the
interpretation--
(a) if the provision is ambiguous or obscure--to
provide an interpretation of it; or
(b) if the ordinary meaning of the provision leads
to a result that is manifestly absurd or is
unreasonable--to provide an interpretation
that avoids such a result; or
(c) in any other case--to confirm the
interpretation conveyed by the ordinary
meaning of the provision.
(3) In determining whether consideration should be
given to extrinsic material, and in determining the
weight to be given to extrinsic material, regard is to
be had to--
(a) the desirability of a provision being
interpreted as having its ordinary meaning;
and
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(b) the undesirability of prolonging proceedings
without compensating advantage; and
(c) other relevant matters.
9 Effect of change of drafting practice
If--
(a) a provision of this Law expresses an idea in
particular words; and
(b) a provision enacted later appears to express
the same idea in different words for the
purpose of implementing a different
legislative drafting practice, including, for
example--
(i) the use of a clearer or simpler style; or
(ii) the use of gender-neutral language;
the ideas must not be taken to be different merely
because different words are used.
10 Use of examples
If this Law includes an example of the operation of
a provision--
(a) the example is not exhaustive; and
(b) the example does not limit, but may extend,
the meaning of the provision; and
(c) the example and the provision are to be read
in the context of each other and the other
provisions of this Law, but, if the example
and the provision so read are inconsistent, the
provision prevails.
11 Compliance with forms
(1) If a form is prescribed or approved by or for the
purpose of this Law, strict compliance with the
form is not necessary and substantial compliance is
sufficient.
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(2) If a form prescribed or approved by or for the
purpose of this Law requires--
(a) the form to be completed in a specified way;
or
(b) specified information or documents to be
included in, attached to or given with the
form; or
(c) the form, or information or documents
included in, attached to or given with the
form, to be verified in a specified way;
the form is not properly completed unless the
requirement is complied with.
Part 3 Terms and references
12 Definitions
(1) In this Law--
Act means an Act of the Parliament of this
jurisdiction.
adult means an individual who is 18 or more.
affidavit, in relation to a person allowed by law to
affirm, declare or promise, includes affirmation,
declaration and promise.
amend includes--
(a) omit or omit and substitute; or
(b) alter or vary; or
(c) amend by implication.
appoint includes reappoint.
Australia means the Commonwealth of Australia
but, when used in a geographical sense, does not
include an external Territory.
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business day means a day that is not--
(a) a Saturday or Sunday; or
(b) a public holiday, special holiday or bank
holiday in the place in which any relevant act
is to be or may be done.
calendar month means a period starting at the
beginning of any day of one of the 12 named
months and ending--
(a) immediately before the beginning of the
corresponding day of the next named month;
or
(b) if there is no such corresponding day--at the
end of the next named month.
calendar year means a period of 12 months
beginning on 1 January.
commencement, in relation to this Law or an Act
or a provision of this Law or an Act, means the
time at which this Law, the Act or provision comes
into operation.
Commonwealth means the Commonwealth of
Australia but, when used in a geographical sense,
does not include an external Territory.
confer, in relation to a function, includes impose.
contravene includes fail to comply with.
country includes--
(a) a federation; or
(b) a state, province or other part of a federation.
date of assent, in relation to an Act, means the day
on which the Act receives the Royal Assent.
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definition means a provision of this Law (however
expressed) that--
(a) gives a meaning to a word or expression; or
(b) limits or extends the meaning of a word or
expression.
document includes--
(a) any paper or other material on which there is
writing; and
(b) any paper or other material on which there
are marks, figures, symbols or perforations
having a meaning for a person qualified to
interpret them; and
(c) any disc, tape or other article or any material
from which sounds, images, writings or
messages are capable of being reproduced
(with or without the aid of another article or
device).
electronic communication means--
(a) a communication of information in the form
of data, text or images by means of guided or
unguided electromagnetic energy, or both; or
(b) a communication of information in the form
of sound by means of guided or unguided
electromagnetic energy, or both, where the
sound is processed at its destination by an
automated voice recognition system.
estate includes easement, charge, right, title, claim,
demand, lien or encumbrance, whether at law or in
equity.
expire includes lapse or otherwise cease to have
effect.
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external Territory means a Territory, other than an
internal Territory, for the government of which as a
Territory provision is made by a Commonwealth
Act.
fail includes refuse.
financial year means a period of 12 months
beginning on 1 July.
foreign country means a country (whether or not
an independent sovereign State) outside Australia
and the external Territories.
function includes a power or duty.
Government Printer means the Government Printer
of this jurisdiction, and includes any other person
authorised by the Government of this jurisdiction to
print an Act or instrument.
individual means a natural person.
information system means a system for generating,
sending, receiving, storing or otherwise processing
electronic communications.
insert, in relation to a provision of this Law,
includes substitute.
instrument includes a statutory instrument.
interest, in relation to land or other property,
means--
(a) a legal or equitable estate in the land or other
property; or
(b) a right, power or privilege over, or in relation
to, the land or other property.
internal Territory means the Australian Capital
Territory, the Jervis Bay Territory or the Northern
Territory.
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Jervis Bay Territory means the Territory
mentioned in the Jervis Bay Territory Acceptance
Act 1915 of the Commonwealth.
make includes issue or grant.
minor means an individual who is under 18.
modification includes addition, omission or
substitution.
month means a calendar month.
named month means 1 of the 12 months of the
year.
Northern Territory means the Northern Territory
of Australia.
number means--
(a) a number expressed in figures or words; or
(b) a letter; or
(c) a combination of a number so expressed and
a letter.
oath, in relation to a person allowed by law to
affirm, declare or promise, includes affirmation,
declaration or promise.
office includes position.
omit, in relation to a provision of this Law or an
Act, includes repeal.
party includes an individual or a body politic or
corporate.
penalty includes forfeiture or punishment.
person includes an individual or a body politic or
corporate.
power includes authority.
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prescribed means prescribed by, or by regulations
made or in force for the purposes of or under, this
Law.
printed includes typewritten, lithographed or
reproduced by any mechanical means.
proceeding means a legal or other action or
proceeding.
property means any legal or equitable estate or
interest (whether present or future, vested or
contingent, or tangible or intangible) in real or
personal property of any description (including
money), and includes things in action.
provision, in relation to this Law or an Act, means
words or other matter that form or forms part of
this Law or the Act, and includes--
(a) a Chapter, Part, Division, Subdivision,
section, subsection, paragraph, subparagraph,
sub-subparagraph or Schedule of or to this
Law or the Act; and
(b) a section, clause, subclause, item, column,
table or form of or in a Schedule to this Law
or the Act; and
(c) the long title and any preamble to the Act.
record includes information stored or recorded by
means of a computer.
repeal includes--
(a) revoke or rescind; and
(b) repeal by implication; and
(c) abrogate or limit the effect of this Law or the
instrument concerned; and
(d) exclude from, or include in, the application of
this Law or the instrument concerned any
person, subject matter or circumstance.
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sign includes the affixing of a seal or the making of
a mark.
statutory declaration means a declaration made
under an Act, or under a Commonwealth Act or an
Act of another jurisdiction, that authorises a
declaration to be made otherwise than in the course
of a judicial proceeding.
statutory instrument means an instrument
(including a regulation) made or in force under or
for the purposes of this Law, and includes an
instrument made or in force under any such
instrument.
swear, in relation to a person allowed by law to
affirm, declare or promise, includes affirm, declare
or promise.
word includes any symbol, figure or drawing.
writing includes any mode of representing or
reproducing words in a visible form.
year, without specifying the type of year, means
calendar year.
(2) In a statutory instrument--
the Law means this Law.
13 Provisions relating to defined terms and gender
and number
(1) If this Law defines a word or expression, other
parts of speech and grammatical forms of the word
or expression have corresponding meanings.
(2) Definitions in or applicable to this Law apply
except so far as the context or subject matter
otherwise indicates or requires.
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(3) In this Law, words indicating a gender include each
other gender.
(4) In this Law--
(a) words in the singular include the plural; and
(b) words in the plural include the singular.
14 Meaning of `may' and `must'
(1) In this Law, the word may, or a similar word or
expression, used in relation to a power indicates
that the power may be exercised or not exercised, at
discretion.
(2) In this Law, the word must, or a similar word or
expression, used in relation to a power indicates
that the power is required to be exercised.
(3) This section has effect despite any rule of
construction to the contrary.
15 Words and expressions used in statutory
instruments
(1) Words and expressions used in a statutory
instrument have the same meanings as they have,
from time to time, in this Law, or relevant
provisions of this Law, under or for the purposes of
which the instrument is made or in force.
(2) This section has effect in relation to a statutory
instrument except so far as the contrary intention
appears in the instrument.
16 Effect of express references to bodies
corporate and individuals
In this Law, a reference to a person generally
(whether the expression "person", "party",
"someone", "anyone", "no-one", "one", "another"
or "whoever" or another expression is used)--
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(a) does not exclude a reference to a body
corporate or an individual merely because
elsewhere in this Law there is particular
reference to a body corporate (however
expressed); and
(b) does not exclude a reference to a body
corporate or an individual merely because
elsewhere in this Law there is particular
reference to an individual (however
expressed).
17 Production of records kept in computers etc.
If a person who keeps a record of information by
means of a mechanical, electronic or other device is
required by or under this Law--
(a) to produce the information or a document
containing the information to a court, tribunal
or person; or
(b) to make a document containing the
information available for inspection by a
court, tribunal or person;
then, unless the court, tribunal or person otherwise
directs--
(c) the requirement obliges the person to produce
or make available for inspection, as the case
may be, a document that reproduces the
information in a form capable of being
understood by the court, tribunal or person;
and
(d) the production to the court, tribunal or person
of the document in that form complies with
the requirement.
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18 References to this jurisdiction to be implied
In this Law--
(a) a reference to an officer, office or statutory
body is a reference to such an officer, office
or statutory body in and for this jurisdiction;
and
(b) a reference to a locality or other matter or
thing is a reference to such a locality or other
matter or thing in and of this jurisdiction.
19 References to officers and holders of offices
In this Law, a reference to a particular officer, or to
the holder of a particular office, includes a
reference to the person for the time being
occupying or acting in the office concerned.
20 Reference to certain provisions of Law
If a provision of this Law refers--
(a) to a Chapter, Part, section or Schedule by a
number and without reference to this Law--
the reference is a reference to the Chapter,
Part, section or Schedule, designated by the
number, of or to this Law; or
(b) to a Schedule without reference to it by a
number and without reference to this Law--
the reference, if there is only one Schedule to
this Law, is a reference to the Schedule; or
(c) to a Division, Subdivision, subsection,
paragraph, subparagraph, sub-subparagraph,
clause, subclause, item, column, table or form
by a number and without reference to this
Law--the reference is a reference to--
(i) the Division, designated by the number,
of the Part in which the reference
occurs; and
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(ii) the Subdivision, designated by the
number, of the Division in which the
reference occurs; and
(iii) the subsection, designated by the
number, of the section in which the
reference occurs; and
(iv) the paragraph, designated by the
number, of the section, subsection,
Schedule or other provision in which the
reference occurs; and
(v) the paragraph, designated by the
number, of the clause, subclause, item,
column, table or form of or in the
Schedule in which the reference occurs;
and
(vi) the subparagraph, designated by the
number, of the paragraph in which the
reference occurs; and
(vii) the sub-subparagraph, designated by the
number, of the subparagraph in which
the reference occurs; and
(viii) the section, clause, subclause, item,
column, table or form, designated by the
number, of or in the Schedule in which
the reference occurs;
as the case requires.
21 Reference to provisions of this Law or an Act is
inclusive
In this Law, a reference to a portion of this Law or
an Act includes--
(a) a reference to the Chapter, Part, Division,
Subdivision, section, subsection or other
provision of this Law or the Act referred to
that forms the beginning of the portion; and
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(b) a reference to the Chapter, Part, Division,
Subdivision, section, subsection or other
provision of this Law or the Act referred to
that forms the end of the portion.
Example--
A reference to "sections 5 to 9" includes both section 5 and
section 9. It is not necessary to refer to "sections 5 to 9
(both inclusive)" to ensure that the reference is given an
inclusive interpretation.
Part 4 Functions and powers
22 Exercise of statutory functions
(1) If this Law confers a function on a person or body,
the function may be exercised from time to time as
occasion requires.
(2) If this Law confers a function on a particular officer
or the holder of a particular office, the function
may be exercised by the person for the time being
occupying or acting in the office concerned.
(3) If this Law confers a function on a body (whether
or not incorporated), the exercise of the function is
not affected merely because of vacancies in the
membership of the body.
23 Power to make instrument or decision includes
power to amend or repeal
If this Law authorises or requires the making of an
instrument or decision--
(a) the power includes power to amend or repeal
the instrument or decision; and
(b) the power to amend or repeal the instrument
or decision is exercisable in the same way,
and subject to the same conditions, as the
power to make the instrument or decision.
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24 Matters for which statutory instruments may
make provision
(1) If this Law authorises or requires the making of a
statutory instrument in relation to a matter, a
statutory instrument made under this Law may
make provision for the matter by applying,
adopting or incorporating (with or without
modification) the provisions of--
(a) an Act or statutory instrument; or
(b) another document (whether of the same or a
different kind);
as in force at a particular time or as in force from
time to time.
(2) If a statutory instrument applies, adopts or
incorporates the provisions of a document, the
statutory instrument applies, adopts or incorporates
the provisions as in force from time to time, unless
the statutory instrument otherwise expressly
provides.
(3) A statutory instrument may--
(a) apply generally throughout this jurisdiction or
be limited in its application to a particular
part of this jurisdiction; or
(b) apply generally to all persons, matters or
things or be limited in its application to--
(i) particular persons, matters or things; or
(ii) particular classes of persons, matters or
things; or
(c) otherwise apply generally or be limited in its
application by reference to specified
exceptions or factors.
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(4) A statutory instrument may--
(a) apply differently according to different
specified factors; or
(b) otherwise make different provision in relation
to--
(i) different persons, matters or things; or
(ii) different classes of persons, matters or
things.
(5) A statutory instrument may authorise a matter or
thing to be from time to time determined, applied
or regulated by a specified person or body.
(6) If this Law authorises or requires a matter to be
regulated by statutory instrument, the power may
be exercised by prohibiting by statutory instrument
the matter or any aspect of the matter.
(7) If this Law authorises or requires provision to be
made with respect to a matter by statutory
instrument, a statutory instrument made under this
Law may make provision with respect to a
particular aspect of the matter despite the fact that
provision is made by this Law in relation to another
aspect of the matter or in relation to another matter.
(8) A statutory instrument may provide for the review
of, or a right of appeal against, a decision made
under the statutory instrument, or this Law, and
may, for that purpose, confer jurisdiction on any
court, tribunal, person or body.
(9) A statutory instrument may require a form
prescribed by or under the statutory instrument, or
information or documents included in, attached to
or given with the form, to be verified by statutory
declaration.
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25 Presumption of validity and power to make
(1) All conditions and preliminary steps required for
the making of a statutory instrument are presumed
to have been satisfied and performed in the absence
of evidence to the contrary.
(2) A statutory instrument is taken to be made under all
powers under which it may be made, even though it
purports to be made under this Law or a particular
provision of this Law.
26 Appointments may be made by name or office
(1) If this Law authorises or requires a person or
body--
(a) to appoint a person to an office; or
(b) to appoint a person or body to exercise a
power; or
(c) to appoint a person or body to do another
thing;
the person or body may make the appointment
by--
(d) appointing a person or body by name; or
(e) appointing a particular officer, or the holder
of a particular office, by reference to the title
of the office concerned.
(2) An appointment of a particular officer, or the
holder of a particular office, is taken to be the
appointment of the person for the time being
occupying or acting in the office concerned.
27 Acting appointments
(1) If this Law authorises a person or body to appoint a
person to act in an office, the person or body may,
in accordance with this Law, appoint--
(a) a person by name; or
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(b) a particular officer, or the holder of a
particular office, by reference to the title of
the office concerned;
to act in the office.
(2) The appointment may be expressed to have effect
only in the circumstances specified in the
instrument of appointment.
(3) The appointer may--
(a) determine the terms and conditions of the
appointment, including remuneration and
allowances; and
(b) terminate the appointment at any time.
(4) The appointment, or the termination of the
appointment, must be in, or evidenced by, writing
signed by the appointer.
(5) The appointee must not act for more than 1 year
during a vacancy in the office.
(6) If the appointee is acting in the office otherwise
than because of a vacancy in the office and the
office becomes vacant, then, subject to subsection
(2), the appointee may continue to act until--
(a) the appointer otherwise directs; or
(b) the vacancy is filled; or
(c) the end of a year from the day of the vacancy;
whichever happens first.
(7) The appointment ceases to have effect if the
appointee resigns by writing signed and delivered
to the appointer.
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(8) While the appointee is acting in the office--
(a) the appointee has all the powers and functions
of the holder of the office; and
(b) this Law and other laws apply to the
appointee as if the appointee were the holder
of the office.
(9) Anything done by or in relation to a person
purporting to act in the office is not invalid merely
because--
(a) the occasion for the appointment had not
arisen; or
(b) the appointment had ceased to have effect; or
(c) the occasion for the person to act had not
arisen or had ceased.
(10) If this Law authorises the appointer to appoint a
person to act during a vacancy in the office, an
appointment to act in the office may be made by
the appointer whether or not an appointment has
previously been made to the office.
28 Powers of appointment imply certain incidental
powers
(1) If this Law authorises or requires a person or body
to appoint a person to an office--
(a) the power may be exercised from time to time
as occasion requires; and
(b) the power includes--
(i) power to remove or suspend, at any
time, a person appointed to the office;
and
(ii) power to appoint another person to act
in the office if a person appointed to the
office is removed or suspended; and
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(iii) power to reinstate or reappoint a person
removed or suspended; and
(iv) power to appoint a person to act in the
office if it is vacant (whether or not the
office has ever been filled); and
(v) power to appoint a person to act in the
office if the person appointed to the
office is absent or is unable to discharge
the functions of the office (whether
because of illness or otherwise).
(2) The power to remove or suspend a person under
subsection (1)(b) may be exercised even if this Law
provides that the holder of the office to which the
person was appointed is to hold office for a
specified period.
(3) The power to make an appointment under
subsection (1)(b) may be exercised from time to
time as occasion requires.
(4) An appointment under subsection (1)(b) may be
expressed to have effect only in the circumstances
specified in the instrument of appointment.
29 Delegation of functions
(1) If this Law authorises a person or body to delegate
a function, the person or body may, in accordance
with this Law and any other applicable law,
delegate the function to--
(a) a person or body by name; or
(b) a specified officer, or the holder of a specified
office, by reference to the title of the office
concerned.
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(2) The delegation may be--
(a) general or limited; and
(b) made from time to time; and
(c) revoked, wholly or partly, by the delegator.
(3) The delegation, or a revocation of the delegation,
must be in, or evidenced by, writing signed by the
delegator or, if the delegator is a body, by a person
authorised by the body for the purpose.
(4) A delegated function may be exercised only in
accordance with any conditions to which the
delegation is subject.
(5) The delegate may, in the exercise of a delegated
function, do anything that is incidental to the
delegated function.
(6) A delegated function that purports to have been
exercised by the delegate is taken to have been
properly exercised by the delegate unless the
contrary is proved.
(7) A delegated function that is properly exercised by
the delegate is taken to have been exercised by the
delegator.
(8) If, when exercised by the delegator, a function is
dependent on the delegator's opinion, belief or state
of mind, then, when exercised by the delegate, the
function is dependent on the delegate's opinion,
belief or state of mind.
(9) If--
(a) the delegator is a specified officer or the
holder of a specified office; and
(b) the person who was the specified officer or
holder of the specified office when the
delegation was made ceases to be the holder
of the office;
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then--
(c) the delegation continues in force; and
(d) the person for the time being occupying or
acting in the office concerned is taken to be
the delegator for the purposes of this section.
(10) If--
(a) the delegator is a body; and
(b) there is a change in the membership of the
body;
then--
(c) the delegation continues in force; and
(d) the body as constituted for the time being is
taken to be the delegator for the purposes of
this section.
(11) If a function is delegated to a specified officer or
the holder of a specified office--
(a) the delegation does not cease to have effect
merely because the person who was the
specified officer or the holder of the specified
office when the function was delegated
ceases to be the officer or the holder of the
office; and
(b) the function may be exercised by the person
for the time being occupying or acting in the
office concerned.
(12) A function that has been delegated may, despite the
delegation, be exercised by the delegator.
(13) The delegation of a function does not relieve the
delegator of the delegator's obligation to ensure
that the function is properly exercised.
(14) Subject to subsection (15), this section applies to a
subdelegation of a function in the same way as it
applies to a delegation of a function.
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(15) If this Law authorises the delegation of a function,
the function may be subdelegated only if the Law
expressly authorises the function to be
subdelegated.
30 Exercise of powers between enactment and
commencement
(1) If a provision of this Law (the empowering
provision) that does not commence on its
enactment would, had it commenced, confer a
power--
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative
or administrative character; or
(c) to do another thing;
then--
(d) the power may be exercised; and
(e) anything may be done for the purpose of
enabling the exercise of the power or of
bringing the appointment, instrument or other
thing into effect;
before the empowering provision commences.
(2) If a provision of a Queensland Act (the
empowering provision) that does not commence on
its enactment would, had it commenced, amend a
provision of this Law so that it would confer a
power--
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative
or administrative character; or
(c) to do another thing;
then--
(d) the power may be exercised; and
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(e) anything may be done for the purpose of
enabling the exercise of the power or of
bringing the appointment, instrument or other
thing into effect;
before the empowering provision commences.
(3) If--
(a) this Law has commenced and confers a power
to make a statutory instrument (the basic
instrument-making power); and
(b) a provision of a Queensland Act that does not
commence on its enactment would, had it
commenced, amend this Law so as to confer
additional power to make a statutory
instrument (the additional instrument-
making power);
then--
(c) the basic instrument-making power and the
additional instrument-making power may be
exercised by making a single instrument; and
(d) any provision of the instrument that required
an exercise of the additional instrument-
making power is to be treated as made under
subsection (2).
(4) If an instrument, or a provision of an instrument, is
made under subsection (1) or (2) that is necessary
for the purpose of--
(a) enabling the exercise of a power mentioned in
the subsection; or
(b) bringing an appointment, instrument or other
thing made or done under such a power into
effect;
the instrument or provision takes effect--
(c) on the making of the instrument; or
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(d) on such later day (if any) on which, or at such
later time (if any) at which, the instrument or
provision is expressed to take effect.
(5) If--
(a) an appointment is made under subsection (1)
or (2); or
(b) an instrument, or a provision of an
instrument, made under subsection (1) or (2)
is not necessary for a purpose mentioned in
subsection (4);
the appointment, instrument or provision takes
effect--
(c) on the commencement of the relevant
empowering provision; or
(d) on such later day (if any) on which, or at such
later time (if any) at which, the appointment,
instrument or provision is expressed to take
effect.
(6) Anything done under subsection (1) or (2) does not
confer a right, or impose a liability, on a person
before the relevant empowering provision
commences.
(7) After the enactment of a provision mentioned in
subsection (2) but before the provision's
commencement, this section applies as if the
references in subsections (2) and (5) to the
commencement of the empowering provision were
references to the commencement of the provision
mentioned in subsection (2) as amended by the
empowering provision.
(8) In the application of this section to a statutory
instrument, a reference to the enactment of the
instrument is a reference to the making of the
instrument.
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Part 5 Distance, time and age
31 Matters relating to distance, time and age
(1) In the measurement of distance for the purposes of
this Law, the distance is to be measured along the
shortest road ordinarily used for travelling.
(2) If a period beginning on a given day, act or event is
provided or allowed for a purpose by this Law, the
period is to be calculated by excluding the day, or
the day of the act or event, and--
(a) if the period is expressed to be a specified
number of clear days or at least a specified
number of days--by excluding the day on
which the purpose is to be fulfilled; and
(b) in any other case--by including the day on
which the purpose is to be fulfilled.
(3) If the last day of a period provided or allowed by
this Law for doing anything is not a business day in
the place in which the thing is to be or may be
done, the thing may be done on the next business
day in the place.
(4) If the last day of a period provided or allowed by
this Law for the filing or registration of a document
is a day on which the office is closed where the
filing or registration is to be or may be done, the
document may be filed or registered at the office on
the next day that the office is open.
(5) If no time is provided or allowed for doing
anything, the thing is to be done as soon as
possible, and as often as the prescribed occasion
happens.
(6) If, in this Law, there is a reference to time, the
reference is, in relation to the doing of anything in a
jurisdiction, a reference to the legal time in the
jurisdiction.
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(7) For the purposes of this Law, a person attains an
age in years at the beginning of the person's
birthday for the age.
Part 6 Effect of repeal,
amendment or expiration
32 Time of Law ceasing to have effect
If a provision of this Law is expressed--
(a) to expire on a specified day; or
(b) to remain or continue in force, or otherwise
have effect, until a specified day;
the provision has effect until the last moment of the
specified day.
33 Repealed Law provisions not revived
If a provision of this Law is repealed or amended
by a Queensland Act, or a provision of a
Queensland Act, the provision is not revived
merely because the Queensland Act or the
provision of the Queensland Act--
(a) is later repealed or amended; or
(b) later expires.
34 Saving of operation of repealed Law provisions
(1) The repeal, amendment or expiry of a provision of
this Law does not--
(a) revive anything not in force or existing at the
time the repeal, amendment or expiry takes
effect; or
(b) affect the previous operation of the provision
or anything suffered, done or begun under the
provision; or
(c) affect a right, privilege or liability acquired,
accrued or incurred under the provision; or
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(d) affect a penalty incurred in relation to an
offence arising under the provision; or
(e) affect an investigation, proceeding or remedy
in relation to such a right, privilege, liability
or penalty.
(2) Any such penalty may be imposed and enforced,
and any such investigation, proceeding or remedy
may be begun, continued or enforced, as if the
provision had not been repealed or amended or had
not expired.
35 Continuance of repealed provisions
If a Queensland Act repeals some provisions of this
Law and enacts new provisions in substitution for
the repealed provisions, the repealed provisions
continue in force until the new provisions
commence.
36 Law and amending Acts to be read as one
This Law and all Queensland Acts amending this
Law are to be read as one.
Part 7 Instruments under Law
37 Schedule applies to statutory instruments
(1) This Schedule applies to a statutory instrument, and
to things that may be done or are required to be
done under a statutory instrument, in the same way
as it applies to this Law, and things that may be
done or are required to be done under this Law,
except so far as the context or subject matter
otherwise indicates or requires.
(2) The fact that a provision of this Schedule refers to
this Law and not also to a statutory instrument does
not, by itself, indicate that the provision is intended
to apply only to this Law.
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Part 8 Application to coastal
waters
38 Application
This Law has effect in and in relation to the coastal
waters of this jurisdiction as if the coastal waters
were part of this jurisdiction.
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Schedule 2 Subject matter for
conditions of mass or
dimension authorities
sections 119, 125 and 146
1 the maximum permissible mass of a heavy vehicle,
a heavy vehicle together with its load, or a
component of a heavy vehicle, being used on a road
2 the maximum permissible dimensions of a heavy
vehicle (including its equipment), or a component
or load of a heavy vehicle, being used on a road
3 the configuration of a heavy vehicle
4 the types of loads a heavy vehicle may carry
5 the use of signs and warning devices
6 the use of a pilot vehicle or escort vehicle
7 the times when a heavy vehicle may be used on a
road
8 the maximum speed at which a heavy vehicle may
be driven on a road
9 requirements about monitoring the movement of a
heavy vehicle
10 the use of stated technology to--
(a) ensure the safe use of a heavy vehicle; or
(b) ensure a heavy vehicle will not cause damage
to road infrastructure; or
(c) minimise the adverse effect of the use of a
heavy vehicle on public amenity
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Schedule 3 Reviewable decisions
section 640, definition reviewable decision
Part 1 Decisions of Regulator
Section under which Description of decision
decision made
section 22 decision of Regulator not to grant a PBS
design approval
section 22 decision of Regulator to impose a
condition in relation to a PBS design
approval, except to the extent the decision
relates to a condition imposed as a result
of a ministerial notice under section 21
section 23 decision of Regulator not to grant a PBS
vehicle approval
section 23 decision of Regulator to impose a
condition in relation to a PBS vehicle
approval, except to the extent the decision
relates to a condition imposed as a result
of a ministerial notice under section 21
section 68 decision of Regulator not to grant a
vehicle standards exemption (permit)
section 68 decision of Regulator to grant a vehicle
standards exemption (permit) for a period
less than the period of not more than
3 years sought by the applicant
section 71 decision of Regulator to impose on a
vehicle standards exemption (permit) a
condition not sought by the applicant
section 75 decision of Regulator not to make a
decision sought in an application for
amendment or cancellation of a vehicle
standards exemption (permit)
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Section under which Description of decision
decision made
section 76 decision of Regulator to amend or cancel
a vehicle standards exemption (permit)
section 77 decision of the Regulator to immediately
suspend a vehicle standards exemption
(permit)
section 80 decision of Regulator not to give a
replacement permit for a vehicle
standards exemption (permit)
section 122 decision of Regulator not to grant a mass
or dimension exemption (permit) other
than because a relevant road manager for
the exemption did not consent to the grant
section 122 decision of Regulator to grant a mass or
dimension exemption (permit) for a
period less than the period of not more
than 3 years sought by the applicant
section 125 decision of Regulator to impose on a
mass or dimension exemption (permit) a
condition not sought by the applicant and
not a road condition or travel conditions
required by a relevant road manager for
the exemption
section 143 decision of Regulator not to grant a class
2 heavy vehicle authorisation (permit)
other than because a relevant road
manager for the authorisation did not
consent to the grant
section 143 decision of Regulator to grant a class 2
heavy vehicle authorisation (permit) for a
period less than the period of not more
than 3 years sought by the applicant
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Section under which Description of decision
decision made
section 146 decision of Regulator to impose on a class
2 heavy vehicle authorisation (permit) a
condition not sought by the applicant and
not a road condition or travel condition
required by a relevant road manager for
the authorisation
section 176 decision of Regulator not to make a
decision sought in an application for
amendment of a mass or dimension
authority granted by giving a person a
permit
section 177 decision of Regulator to amend or cancel
a mass or dimension authority granted by
giving a person a permit, other than at the
request of a relevant road manager
section 179 decision of Regulator to immediately
suspend a mass or dimension authority
granted by giving a person a permit
section 182 decision of Regulator not to give a
replacement permit for a mass or
dimension authority
section 273 decision of Regulator not to grant a work
and rest hours exemption (permit)
section 273 decision of Regulator to grant a work and
rest hours exemption (permit) that does
not cover all of the drivers sought by the
applicant
section 273 decision of Regulator to grant a work and
rest hours exemption (permit) setting
maximum work times or minimum rest
times different to the maximum work
times or minimum rest times sought by
the applicant
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Section under which Description of decision
decision made
section 273 decision of Regulator to grant a work and
rest hours exemption (permit) for a period
less than the period of not more than
3 years sought by the applicant
section 276 decision of Regulator to impose on a
work and rest hours exemption (permit) a
condition not sought by the applicant
section 280 decision of Regulator not to make a
decision sought in an application for the
amendment or cancellation of a work and
rest hours exemption (permit)
section 281 decision of Regulator to amend or cancel
a work and rest hours exemption (permit)
section 282 decision of Regulator to immediately
suspend a work and rest hours exemption
(permit)
section 285 decision of Regulator not to give a
replacement permit for a work and rest
hours exemption (permit)
section 343 decision of Regulator not to grant an
electronic recording system approval
section 343 decision of Regulator to impose on an
electronic recording system approval a
condition not sought by the applicant
section 351 decision of Regulator not to make a
decision sought in an application for
amendment or cancellation of an
electronic recording system approval
section 352 decision of Regulator to amend or cancel
an electronic recording system approval
section 363 decision of Regulator not to grant a work
diary exemption (permit)
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Section under which Description of decision
decision made
section 363 decision of Regulator to grant a work
diary exemption (permit) for a period less
than the period of not more than 3 years
sought by the applicant
section 366 decision of Regulator to impose on a
work diary exemption (permit) a
condition not sought by the applicant
section 370 decision of Regulator not to make a
decision sought in an application for the
amendment or cancellation of a work
exemption (permit)
section 371 decision of Regulator to amend or cancel
a work diary exemption (permit)
section 374 decision of Regulator not to give a
replacement permit for work diary
exemption (permit)
section 379 decision of Regulator to impose a
condition on a fatigue record keeping
exemption (notice)
section 383 decision of Regulator to grant a fatigue
record keeping exemption (permit) in a
way that does not cover all the drivers
sought by the applicant
section 383 decision of Regulator to grant a fatigue
record keeping exemption (permit) setting
conditions different from those sought by
the applicant
section 385 decision of Regulator to impose a
condition on a fatigue record keeping
exemption (permit)
section 387 decision of Regulator to give a fatigue
record keeping exemption (permit) for a
period less than the period of not more
than 3 years sought by the applicant
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Section under which Description of decision
decision made
section 388 decision of Regulator not to grant a
fatigue record keeping exemption
(permit)
section 389 decision of Regulator not to make a
decision sought in an application for
amendment or cancellation of a fatigue
record keeping exemption (permit)
section 390 decision of Regulator to amend or cancel
a fatigue record keeping exemption
(permit)
section 393 decision of Regulator not to give a
replacement fatigue record keeping
exemption permit
section 458 decision of Regulator not to grant a heavy
vehicle accreditation
section 458 decision of Regulator to grant a heavy
vehicle accreditation for a period less than
the period of not more than 3 years sought
by the applicant
section 458 decision of Regulator to grant an AFM
accreditation setting maximum work
times and minimum rest times different to
the maximum work times and minimum
rest times sought by the applicant
section 462(2) decision of Regulator to impose on a
heavy vehicle accreditation a condition
not sought by the applicant
section 472 decision of Regulator not to make a
decision sought in an application for
amendment or cancellation of a heavy
vehicle accreditation
section 473 decision of Regulator to amend, suspend
or cancel a heavy vehicle accreditation
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Section under which Description of decision
decision made
section 474 decision of Regulator to immediately
suspend a heavy vehicle accreditation
section 477 decision of Regulator not to give a
replacement accreditation certificate
section 561 decision of Regulator that a thing or
sample is forfeited to the Regulator
Part 2 Decisions of authorised
officers
Section under which Description of decision
decision made
section 572 decision of an authorised officer who is
not a police officer to give a person an
improvement notice
sections 572 and 574 decision of an authorised officer who is
not a police officer to amend an
improvement notice given to a person
Part 3 Decisions of relevant road
managers
Section under which Description of decision
decision made
section 156 decision of a relevant road manager for a
mass or dimension authority, that is a
public authority, not to consent to the
grant of the authority
section 160 decision of a relevant road manager for a
mass or dimension authority, that is a
public authority, to consent to the grant of
the authority subject to a condition that a
road condition be imposed on the
authority
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Section under which Description of decision
decision made
section 161 decision of a relevant road manager for a
mass or dimension authority, that is a
public authority, to consent to the grant of
the authority subject to a condition that a
travel condition be imposed on the
authority
section 174 decision of a relevant road manager for a
mass or dimension authority (granted by
Commonwealth Gazette notice), that is a
public authority, to request the authority
be amended or cancelled
section 178 decision of a relevant road manager for a
mass or dimension authority (granted by
giving a person a permit), that is a public
authority, to request the authority be
amended or cancelled
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Schedule 4 Provisions specified for
liability of executive
officers for offences by
corporations
section 636
The provisions specified in column 2 of the
following table are specified for the purposes of
section 636(1). The provisions specified in
column 3 of the table are specified for the purposes
of section 636(2).
Column 1 Column 2 Column 3
Section of Provision specified Provision specified for the
this Law for the purposes of purposes of section 636(2)
section 636(1)
30 30(1) 30(1)
50 50(1), 50(2) ---
60 60(1) 60(1)
79 79(2) 79(2)
81 81(1), 81(2), 81(3) 81(1), 81(2), 81(3)
85 85(1), 85(2) 85(2)
89 89(1) 89(1)
93 93(1) 93(1)
129 129(1), 129(2), 129(3) 129(1), 129(2), 129(3)
130 130(3) 130(3)
137 137 137
150 150(1) 150(1)
181 181(3) ---
183 183(2) 183(2)
185 185(1), 185(2) 185(1), 185(2)
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Column 1 Column 2 Column 3
Section of Provision specified Provision specified for the
this Law for the purposes of purposes of section 636(2)
section 636(1)
186 186(2), 186(3), 186(4), 186(2), 186(3), 186(4),
186(5) 186(5)
187 187(2), 187(3) 187(2), 187(3)
190 190(1) 190(1)
191 191(1), 191(3) 191(1), 191(3)
193 193(2) 193(2)
194 194(1) 194(1)
204 204(1) 204(1)
205 205(1) 205(1)
206 206(2) 206(2)
207 207(1) 207(1)
208 208(1) 208(1)
209 209(1) 209(1)
212 212(1), 212(2) 212(1), 212(2)
213 213 213
215 215 215
216 216(1), 216(2) 216(1), 216(2)
219 219(1) 219(1)
229 229(1) 229(1)
230 230(1) 230(1)
231 231(1) 231(1)
232 232(2) 232(2)
233 233(1) 233(1)
234 234(1) 234(1)
235 235(1), 235(2) 235(1), 235(2)
236 236(1) 236(1)
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Column 1 Column 2 Column 3
Section of Provision specified Provision specified for the
this Law for the purposes of purposes of section 636(2)
section 636(1)
237 237(1) 237(1)
238 238(1) 238(1)
239 239(2) 239(2)
240 240 240
241 241(1), 241(2) 241(1), 241(2)
261 261(2) 261(2)
264 264(2) 264(2)
284 284(2) 284(2)
286 286(1) 286(1)
310 310(2) 310(2)
311 311(2) 311(2)
312 312(2) 312(2)
313 313(2) 313(2)
314 314(3) ---
315 315(2) 315(2)
319 319(1) 319(1)
321 321(1), 321(2) 321(1), 321(2)
322 322(4) 322(4)
323 323(3) 323(3)
324 324(2) 324(2)
327 327 327
328 328 ---
329 329 ---
330 330(1) ---
331 331 ---
332 332 ---
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Column 1 Column 2 Column 3
Section of Provision specified Provision specified for the
this Law for the purposes of purposes of section 636(2)
section 636(1)
335 335(1) 335(1)
336 336(1) 336(1)
337 337(2) 337(2)
341 341(1), 341(2), 341(3), 341(1), 341(2), 341(3),
341(4) 341(4)
347 347(2), 347(3) ---
350 350(1), 350(2) 350(1), 350(2)
354 354(3), 354(5) 354(3), 354(5)
355(2) 355(2), 355(4), 355(6), 355(2), 355(4), 355(6),
355(8) 355(8)
373 373(2) ---
375 375 375
396 396(2) 396(2)
398 398(2) 398(2)
399 399(2) 399(2)
404 404(1), 404(4) 404(1), 404(4)
405 405(1) ---
406 406(1), 406(2) 406(1)
417 417 ---
422 422(2) 422(2)
423 423(1) 423(1)
424 424(1), 424(3) 424(1), 424(3)
451 451 451
452 452 452
453 453(1), 453(2) 453(1), 453(2)
454 454(1), 454(2) 454(1), 454(2)
571278B.I-16/4/2013 1273 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 2
Column 1 Column 2 Column 3
Section of Provision specified Provision specified for the
this Law for the purposes of purposes of section 636(2)
section 636(1)
467 467 467
470 470(2), 470(3), 470(4), 470(2), 470(3), 470(4),
470(5), 470(6) 470(5), 470(6)
471 471(2) 471(2)
476 476(2) 476(2)
478 478(1), 478(2), 478(3), ---
478(4)
514 514(3) ---
516 516(3) ---
517 517(4) ---
528 528(3) ---
529 529 529
533 533(7) ---
534 534(5) ---
535 535(5) ---
553 553(3) ---
558 558(1), 558(3) 558(1), 558(3)
559 559(3), 559(4), 559(5) 559(3), 559(4), 559(5)
567 567(4) ---
568 568(7) ---
569 569(2), 569(7) ---
570 570(3) ---
573 573(1) 573(1)
577 577(4) ---
604 604 604
610 610 610
571278B.I-16/4/2013 1274 BILL LA INTRODUCTION 16/4/2013
Heavy Vehicle National Law Application Bill 2013
Annexure 2
Column 1 Column 2 Column 3
Section of Provision specified Provision specified for the
this Law for the purposes of purposes of section 636(2)
section 636(1)
699 699(1), 699(2) 699(1), 699(2)
700 700(4) 700(4)
702 702(1), 702(3) ---
703 703(1), 703(2) ---
704 704(1), 704(2), 644(3) ---
728 728(1) 728(1)
729 729(1), 729(3) 729(1), 729(3)'.
By Authority. Government Printer for the State of Victoria.
571278B.I-16/4/2013 1275 BILL LA INTRODUCTION 16/4/2013
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