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Road Safety Amendment (Fatigue
Management) Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
General
Part 1 sets out the purposes of the Bill and when the Bill comes into
force.
Part 2 amends the Road Legislation Further Amendment Act 2007--
· to implement nationally agreed amendments to
provisions providing for fatigue management for drivers
of certain heavy vehicles, based on national model
amending legislation which has been developed by the
National Transport Commission for implementation
throughout Australia;
· to make minor and technical amendments to the
provisions providing for fatigue management for drivers
of certain heavy vehicles.
The Road Legislation Further Amendment Act 2007 inserts a
new Part 10A into the Road Safety Act 1986 to establish a new
scheme for managing heavy vehicle driver fatigue.
These provisions give effect to Victoria's commitment to
implement the National Transport Commission's model
legislation on fatigue management for drivers of heavy vehicles,
subject to some minor departures. The national model legislation
is set out in the National Transport Commission (Model
Legislation--Heavy Vehicle Driver Fatigue) Regulations 2007.
The national model legislation is intended to address all aspects
of the driver fatigue problem, rather than simply focussing on
hours of work. Central components of the National Transport
Commission's approach include--
561283 1 30/7/2008
· addressing the factors which cause fatigue;
· imposing the obligations on other parties in the transport
chain whose decisions may influence fatigue outcomes;
and
· improving compliance through more effective
enforcement, targeted offences, a wider range of
sanctions and improved record-keeping requirements.
The reforms provide three options for the heavy vehicle transport
industry--
· option 1: is to comply with standard hours limitations
on maximum working hours and minimum rest hours.
This is the default requirement;
· option 2: is to implement a Basic Fatigue Management
(BFM) regime. This comprises an optional set of
working and rest hours, providing more flexibility than
the standard hours, but with some mandatory fatigue
management and compliance-assurance responsibilities
imposed on operators;
· option 3: is to implement an Advanced Fatigue
Management (AFM) regime. Under AFM, operators
must comply with agreed standards and operating limits.
Work and rest hours are approved by the regulatory
agency (VicRoads) based on the operator's specific
fatigue risks and fatigue management system.
The fatigue management provisions apply the "chain of
responsibility" principles developed by the National Transport
Commission (also applying to the mass, dimension and load
restraint requirements under the Road Safety Act 1986).
However, they do so in a manner that is specific to driver fatigue.
They also extend to fatigue management the compliance and
enforcement provisions set out in Parts 9 and 11 of the Road
Safety Act 1986 relating to relevant heavy vehicle offences.
Since enactment of the Road Legislation Further Amendment
Act 2007, there have been three packages of national model
amending legislation which have been developed by the National
Transport Commission and approved by the Australian Transport
Council for implementation throughout Australia. This Part
gives effect to those three amendment packages.
2
This Part also makes some minor and technical amendments to
the fatigue management provisions of the Road Legislation
Further Amendment Act 2007.
Part 3 amends the Road Safety Act 1986 to extend the operation of
section 77A to Part 10A of the Road Safety Act 1986 and to
rectify a minor drafting error.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Act.
Clause 2 provides for the commencement date of the Act.
PART 2--AMENDMENT OF ROAD LEGISLATION
FURTHER AMENDMENT ACT 2007
Clause 3 amends sections 3(b) and 3(c) of the Road Legislation Further
Amendment Act 2007 in relation to the proposed definitions of
consignee and consignor.
Subclause (1) substitutes a new subparagraph (i) of paragraph (a)
of the proposed definition of consignee in section 3(b), to make it
more consistent with the definition in the National Transport
Commission (Model Legislation--Heavy Vehicle Driver
Fatigue) Regulations 2007.
Subclause (2) amends paragraph (d) of the proposed definition
of consignor in section 3(c) by changing the reference from
"unattended premises" to "usually unattended premises".
This amendment is designed to avoid the possibility of a person
arguing that they were not a consignor because, at the time in
question, the premises were in fact attended at the time even
though it was an abnormal occurrence.
Clause 4 amends the definitions of AFM standards and business rules,
approved sleeper berth, BFM standards and business rules and
Fatigue Authorities Panel in proposed section 191A of the Road
Safety Act 1986 as inserted by section 20 of the Road
Legislation Further Amendment Act 2007 to reflect the
changes in the definitions of those terms made by the National
Transport Commission's Model Amendments Act: Heavy
Vehicle Driver Fatigue--Package No. 3.
3
Clause 4 also inserts a new definition of Australian Transport
Council, consequent upon changes to the role of the Fatigue
Authorities Panel made by the National Transport Commission's
Model Amendments Act: Heavy Vehicle Driver Fatigue--
Package No. 3.
It also amends the definition of unloader to make it consistent
with the definition in the National Transport Commission (Model
Legislation--Heavy Vehicle Driver Fatigue) Regulations 2007.
Clause 5 substitutes a new subsection (2) for proposed section 191I of the
Road Safety Act 1986.
New section 191I imposes duties on loading managers in respect
of loading and unloading arrangements.
New subsection 191I(2) provides that the loading manager must
take all reasonable steps to ensure that the driver is able to take a
rest while waiting for the vehicle to be loaded or unloaded if the
loading manager, or a person acting under the loading manager's
supervision or control, nominates a time for loading or unloading
and the nominated time is likely to start or finish more than
30 minutes late, or the loading manager, or a person acting under
his or her supervision or control, is unable to nominate a time for
when the loading or unloading of the vehicle is likely to start or
finish.
The effect of the substituted subsection (2) is to clarify that the
loading manager's obligation to nominate a time for loading or
unloading the vehicle relates to the time when the loading or
unloading is to start as well as when it is to finish.
Clause 6 makes minor technical amendments to proposed sections
191L(6), 191M(6), 191N(6), 191O(6), 191P(6), 191Q(6),
191R(6), 191W(7), 191Y(13) and 191ZG(5) of the Road Safety
Act 1986 by substituting "under" for "against" to ensure
consistent references in those sections and with the rest of
Part 10A of the Road Safety Act 1986.
Clause 7 amends proposed sections 191W(2), 191ZI(2)(b), 191ZK(1) and
191ZR(2)(c) of the Road Safety Act 1986 by providing that the
matters set out therein are to be approved by the Australian
Transport Council (by notice published in the Commonwealth
Government Gazette--refer to proposed new section 191ZZZA,
as inserted by clause 39), rather than specified by the Fatigue
Authorities Panel. These matters relate to standards for the
maintenance of odometers fitted to fatigue regulated heavy
vehicles, classes of auditors who can issue statements about an
operator's BFM system being able to comply with the BFM
standards and business rules, the form for BFM accreditation
4
certificates and classes of auditors who can issue statements
about an operator's AFM system being able to comply with the
AFM standards and business rules.
Subclause (2) amends proposed section 191ZT(1) by providing
the form for AFM accreditation certificates is to be as approved
by the Australian Transport Council (by notice published in the
Commonwealth Government Gazette--refer to proposed new
section 191ZZZA, as inserted by clause 39), rather than as
prescribed.
These amendments are a result of the National Transport
Commission's Model Amendments Act: Heavy Vehicle Driver
Fatigue--Package No. 3. They reflect a changed role for the
Fatigue Authorities Panel, which is no longer to have a decision-
making role but is to retain its advisory role. It is considered
more appropriate for the Australian Transport Council to be the
decision-making body in relation to the matters specified.
Clause 8 makes a minor technical amendment to proposed section 191P(1)
of the Road Safety Act 1986 by deleting the reference to a
fatigue regulated heavy vehicle. Proposed section 191A defines
a driver as being a "driver of a fatigue regulated heavy vehicle".
It is therefore not necessary to specify in section 191P(1) that it
applies to a driver "of a fatigue regulated heavy vehicle" and its
current inclusion is inconsistent with other provisions in
Part 10A.
Clause 9 makes a minor technical amendment to proposed section 191X(2)
of the Road Safety Act 1986 by changing "this section" to
"subsection (1)", consistent with the terminology in other
provisions in Part 10A of the Road Safety Act 1986.
Clause 10 amends section 191Q of the Road Safety Act 1986.
Section 191Q sets out requirements in relation to workers driving
under AFM accreditation to observe maximum work times and
minimum rest times specified in the certificate for the AFM
accreditation under which the driver is working.
It inserts a new section 191Q(2A), making it an offence for a
driver to contravene the AFM outer limits in relation to
maximum work times and minimum rest times. It is also an
offence for a party in the chain of responsibility to allow the
driver to do so. The AFM outer limits are set out in Schedule 4A
to the Road Safety Act 1986.
5
Clause 11 inserts a proposed new section 191QA of the Road Safety Act
1986.
It sets out the circumstances in which an offence by a driver
(under section 191Q(2) or section 191Q(2A)) or another party
in the chain of responsibility (under section 191Q(3)) will be
considered to be a minor, substantial, severe or critical risk
offence, thereby determining the penalty levels which apply to
the relevant offences. The penalty levels are specified in
proposed section 191ZZU of the Road Safety Act 1986.
The new provisions give effect to agreed national model
amending legislation by imposing new penalties for breach of
AFM hours and AFM outer limits for periods in excess of 7 days
in relation to breach of maximum work time parameters.
They also make some technical amendments to ensure
consistency of terminology.
Clause 12 inserts a proposed new section 191S(3) of the Road Safety Act
1986.
It specifies that the requirement to keep a work diary in the
vehicle that contains the information for the last 28 days required
to be recorded by section 191T of the Road Safety Act 1986
does not apply to the keeping of a supplementary record in
accordance with section 191V of the Road Safety Act 1986.
The effect of this provision is that a driver does not commit an
offence for failing to keep a work diary containing information
for the last 28 days where the driver's work diary has become
filled up, destroyed, lost or stolen or, in the case of an electronic
work diary, is malfunctioning. The supplementary recording
ceases at the earliest of the driver being issued with a
replacement work diary being brought into working order or the
expiry of 7 business days (refer proposed new section 191V(2A)
and (2C) of the Road Safety Act 1986 as inserted by
clause 15(2)).
At the end of this period, the driver has an obligation to keep a
work diary in the vehicle which records the necessary
information. The driver is also required to keep in the vehicle the
supplementary record that contains the information for the last
28 days (refer proposed new section 191V(2B) of the Road
Safety Act 1986 as inserted by clause 15(2)).
The combined effect of these provisions is that a driver must
have in his or her vehicle at all times the information required to
be recorded for the last 28 days, whether that information is
recorded in a work diary (written or electronic), a supplementary
6
record, a replacement work diary or an electronic work diary
which has been brought into working order.
Clause 13 amends section 191T of the Road Safety Act 1986, which sets
out the information that a driver must record in the work diary
required to be kept under section 191S.
Subclause (1) substitutes section 191T(3)(f)(iii) to clarify that, in
relation to a two-up driving arrangement, the recording of
information about the first driver's work diary only applies in the
case of a written work diary.
Subclause (2) deletes section 191T(3)(f)(iv) as the requirement to
identify the participating jurisdiction that issued the work diary is
now part of substituted section 191T(3)(f)(iii).
Subclause (3) inserts new section 191T(6) to ensure that a two-up
driver provides the other driver with the details the other driver
needs to comply with his or her record-keeping obligations (that
is, the first driver's name, licence number, work diary identifying
number and participating jurisdiction where that diary was
issued).
Clause 14 substitutes section 191U(1)(c) of the Road Safety Act 1986 to
clarify that where a driver changes from one work/rest hours
option to another work/rest hours option during a day (for
example a change from BFM hours to standard hours), the driver
must record any information for that day that relates to the period
after the changes occur on a separate daily sheet in the driver's
work diary.
Clause 15 amends section 191V of the Road Safety Act 1986, which sets
out requirements where a work diary is filled up, destroyed, lost
or stolen or, in the case of an electronic work diary, is
malfunctioning. The amendments restructure section 191V and
make some minor enhancements and clarifications to the existing
provision.
Subclause (1) substitutes new sections 191V(1) and (2).
New subsection (1) clarifies that section 191V applies where a
driver's work diary has become filled up, destroyed, lost or stolen
or, in the case of an electronic diary, is malfunctioning.
New subsection (2) specified what a driver must do if a work
diary has become filled up, destroyed, lost or stolen or, in the
case of an electronic diary is malfunctioning. The driver must, as
soon as practicable and within 2 business days, notify VicRoads
of that happening or apply for a replacement work diary.
7
Subclause (2) inserts proposed new sections 191V(2A), (2B)
and (2C). New subsection (2A) requires drivers to record
information in a supplementary record during any period in
which they are unable to use a work diary. New subsection (2B)
specifies that the driver is required to keep the supplementary
record in the vehicle for 28 days. New subsection (2C) specifies
that the requirement to keep a supplementary record ceases at the
earliest of the driver being issued with a replacement work diary,
a malfunctioning electronic work diary being brought into
working order or the expiry of 7 days from when the driver was
unable to use the work diary. A work diary is a vital record-
keeping requirement and it is important that it be replaced or, in
the case of an electronic work diary, become functional again at
the earliest opportunity. A supplementary record should only be
a temporary measure.
Subclause (3) inserts proposed new section 191V(3A) to clarify
that, where a lost or stolen written work diary is found or
returned to the driver after a replacement work diary has been
issued and the driver has given the old work diary to VicRoads as
required under section 191V(3), VicRoads must cancel any
unused daily sheets in the diary and return the diary to the driver.
Subclause (4) inserts proposed new subsections 191V(7) and (8)
to clarify that a person charged with an offence under section
191V does not have the benefit of the mistake of fact defence
(meaning that a person is not able to rely on the defence of honest
and reasonable mistake of fact). However a person charged
under subsection (5) or (6) does not have the benefit of the
reasonable steps defence.
Clause 16 amends section 191Y of the Road Safety Act 1986, which sets
out the information that must be recorded by a driver's record
keeper in various circumstances.
Subclause (1) amends section 191Y(1)(a) by specifying that a
record keeper is required to record specified information as soon
as practicable after receiving it. This amendment has been made
to give greater guidance to record keepers about the timeframe in
which information must be recorded.
Subclause (2) inserts new sections 191Y(2A) and (2B).
They clarify that a record keeper may contract another person to
provide record keeping services. In such cases, the contracted
party shares liability with the record keeper in relation to the
records required to be kept.
8
Subclauses (3) and (4) clarify that, in the case of electronic work
diaries, the record keeper has an obligation to download
information from the electronic work diary within 21 days of the
recording of that information without any further obligation on
the driver. They do so by inserting new sections 191Y(7A), (8A)
and (8B).
Section 191Y(7A) states that the driver does not have to comply
with the requirement under subsection (7) to provide a copy of
the driver's diary entries to a record keeper within 21 days of
driving a fatigue regulated heavy vehicle where the driver has an
electronic work diary and the contents of the diary are transferred
to the record keeper within the 21 day period.
Section 191Y(8A) states that the record keeper's obligation to
ensure that a driver gives the record keeper a copy of the driver's
diary entries within 21 days does not apply to an electronic work
diary where its contents are transferred to the record keeper
within the 21 day period.
Section 191Y(8B) requires the record keeper to ensure that the
information from the electronic work diary is transferred to the
record keeper within 21 days of it being recorded.
Clause 17 amends section 191ZE of the Road Safety Act 1986, which
prohibits a person from making an entry in someone else's work
record. It substitutes subsection (2)(c) to clarify that a two-up
driver may complete their details in the other driver's work record
and sign that other driver's work record.
Clause 18 amends section 191ZG of the Road Safety Act 1986, which
prohibits tampering with electronic work diaries.
It expands the range of conduct covered by the prohibition on
tampering to include conduct that results or may result in
inaccurate data being recorded or that otherwise interferes with
an electronic signal sent to or from the electronic work diary.
It provides a defence where a person (other than the driver or the
record keeper) was not aware and could not reasonably be
expected to be aware that their conduct would interfere with the
electronic signal sent by an electronic work diary.
It also clarifies that the offences in section 191ZG (other than the
offence of tampering with an electronic signal sent by an
electronic work diary) are absolute liability offences by
specifying that a person charged with an offence under this
section does not have the benefit of the mistake of fact defence.
9
Clause 19 substitutes section 191ZJ(4) of the Road Safety Act 1986, to
specify the matters that VicRoads must have regard to in granting
BFM accreditation. It must have regard to any advice from the
Fatigue Authorities Panel and to any guidelines issued by the
Fatigue Authorities Panel and published in the Commonwealth
Government Gazette.
Clause 20 makes a minor technical amendment to proposed section
191ZK(2)(a) of the Road Safety Act 1986 by adding
"certificate" after "accreditation", thereby clarifying that BFM
accreditation takes effect when the certificate is given to the
operator.
Clause 21 inserts a new section 191ZN(3) of the Road Safety Act 1986.
It imposes a requirement on BFM operators to provide, at the
written request of VicRoads, a copy of the list of their current
drivers and details of any changes to that list.
Clause 22 inserts new section 191ZO(2) of the Road Safety Act 1986.
It imposes a requirement for a driver, upon being informed that
the operator's BFM accreditation has changed or ceased, to return
the BFM accreditation documents required to be carried by the
driver under proposed new section 191ZOA. These documents
are a copy of the operator's accreditation certification and a
document signed by the operator stating that the driver is
working under the operator's accreditation, has been inducted
into the operator's BFM system and meets accreditation
requirements.
Clause 23 inserts new section 191ZOA of the Road Safety Act 1986.
It imposes a new requirement for a driver driving under an
operator's BFM accreditation to carry a copy of the operator's
accreditation certificate and a document signed by the operator
stating that the driver is working under the operator's
accreditation, has been inducted into the operator's BFM system
and meets accreditation requirements.
It imposes an obligation on an operator to ensure that each of
their drivers complies with that requirement.
It also requires a driver to return the copy of the BFM
accreditation certificate and the document signed by the operator
verifying the driver's accreditation status to the operator if the
driver ceases to work under the operator's BFM accreditation or
ceases to meet the accreditation requirements.
10
Clause 24 makes a minor technical amendment to section 191ZR(2)(b) of
the Road Safety Act 1986 by substituting "AFM proposal" for
"fatigue management" proposal, as AFM proposal is a defined
term in section 191ZP of the Road Safety Act 1986.
Clause 25 amends section 191ZS of the Road Safety Act 1986, which sets
out when VicRoads must decide an application for AFM
accreditation and the matters it can or must take into
consideration when determining the application.
Subclause (1) makes a minor technical amendment to section
191ZS(2) by inserting "fatigue" before "regulated heavy vehicle",
as fatigue regulated heavy vehicle is a defined term in section
191B of the Road Safety Act 1986.
Subclause (2) substitutes section 191ZS(4) of the Road Safety
Act 1986, to specify the matters that Vic Roads must have regard
to in granting AFM accreditation. It must have regard to any
advice from the Fatigue Authorities Panel and to any guidelines
issued by the Fatigue Authorities Panel and published in the
Commonwealth Government Gazette.
Clause 26 amends section 191ZW of the Road Safety Act 1986, which sets
out requirements in relation to drivers carrying AFM
accreditation details.
It substitutes a new section 191ZW(1) to include a new
requirement for a driver driving under an operator's AFM
accreditation to carry certain documents. These are a copy of the
operator's accreditation certificate, a document signed by the
operator stating that the driver is working under the operator's
accreditation, has been inducted into the operator's AFM system
and meets accreditation requirements and a document setting out
the AFM accreditation hours.
It also inserts a new section 191ZW(3), requiring a driver to
return the copy of the AFM accreditation certificate and the
document signed by the operator verifying the driver's
accreditation status to the operator if the driver ceases to work
under the operator's AFM accreditation or ceases to meet the
accreditation requirements.
Clause 27 inserts new section 191ZX(3) of the Road Safety Act 1986.
It imposes a requirement on AFM operators to provide, at the
written request of VicRoads, a copy of the list of current drivers
and details of any changes to that list.
11
Clause 28 inserts new sections 191ZXA and 191ZXB of the Road Safety
Act 1986.
Proposed new section 191ZXA imposes an obligation on a driver
using an electronic work diary to operate and maintain it in
accordance with the manufacturer's specifications and in
compliance with any written conditions imposed by VicRoads.
The record keeper is required to ensure that the driver complies
with that obligation. There is a defence to failing to operate or
maintain a diary in accordance with the manufacturer's
specifications if the particular specification was not integral to
the effective operation of the diary or the failure to operate or
maintain the diary in accordance with the specification was
industry practice.
Proposed new section 191ZXB provides that documents
produced by an electronic work diary are admissible and are
evidence of the matters contained therein and that a statement by
a person purporting to be involved in the operation of the diary is
evidence of any fact contained in the statement.
Clause 29 inserts new section 191ZY(2) of the Road Safety Act 1986.
It imposes a requirement for a driver, upon being informed that
the operator's AFM accreditation has changed or ceased, to return
the AFM accreditation documents required to be carried by the
driver under proposed new section 191ZW(1)(a) or (1)(b).
These documents are a copy of the operator's accreditation
certificate and a document signed by the operator stating that the
driver is working under the operator's accreditation, has been
inducted into the operator's AFM system and meets accreditation
requirements.
Clause 30 substitutes section 191ZZA(2) of the Road Safety Act 1986.
It clarifies that applications for exemption from complying with
the requirements to keep a work diary and to record specified
information in it may only be made by a driver or driver's
employer where the driver is working under standard hours (that
is, not working under AFM or BFM accreditation).
It is not appropriate for a driver working under AFM or BFM
accreditation to be exempted from the work diary requirements,
as it is an essential tool for ensuring compliance with the
maximum work time and minimum rest time requirements under
AFM and BFM accreditation.
12
Clause 31 makes a minor technical amendment to section 191ZZD(b) of
the Road Safety Act 1986, by inserting "or exemption" after
"accreditation" where second occurring. This makes it consistent
with where "accreditation" first occurs in section 191ZZD(b).
That subsection sets out that VicRoads may cancel a person's
accreditation or exemption where satisfied that the person is not
suitable to hold an accreditation or (now) an exemption.
Clause 32 amends section 191ZZG of the Road Safety Act 1986, which
sets out requirements for return of accreditation certificates or
exemptions.
It makes a minor technical amendment to section 191ZZG(1) to
include a requirement for a person holding an exemption to
return that exemption to VicRoads where it has been varied or
cancelled.
It also inserts a new section 191ZZG(3), requiring VicRoads to
give a person a replacement accreditation certificate or
exemption where VicRoads has varied the accreditation
certificate or exemption.
Clause 33 makes a minor technical amendment to section 191ZZH(1) of
the Road Safety Act 1986, by inserting "or exemption" after
"certificate" where second occurring. That subsection sets out
that where an accreditation certificate or exemption is defaced,
destroyed, lost or stolen, the holder of the certificate or (now)
exemption must apply for a replacement accreditation certificate
or exemption.
Clause 34 amends section 191ZZI of the Road Safety Act 1986, which
makes it an offence for a person to falsely represent that they
hold or are working under an accreditation or exemption.
It substitutes a new section 191ZZI(2), making it an offence for
a person to possess a document which falsely purports that the
person is working under an accreditation or exemption.
This would be an accreditation certificate or exemption, a copy
of an accreditation certificate or exemption, or a document signed
by the operator stating that the driver is working under the
operator's accreditation, has been inducted into the operator's
AFM or BFM system (as the case may be) and meets
accreditation requirements.
It also inserts a new section 191ZZI(3), making it an offence to
represent to be working under an accreditation or exemption
which is no longer in force.
13
Clause 35 amends section 191ZZL of the Road Safety Act 1986, which
enables an inspector to require a driver to stop working for a
stated period if impaired by fatigue.
It inserts a new section 191ZZL(3A), requiring an inspector to
record the details of the requirement to stop working for a stated
period in the driver's work diary.
Clause 36 inserts new sections 191ZZO(2)(d) and (e) into the Road Safety
Act 1986, requiring a person to document the steps taken to
ensure a driver does not contravene a fatigue management
requirement.
It also inserts new section 191ZZO(5) of the Road Safety Act
1986, stating that the person does not have to retain that
documentation for more than 3 years.
These provisions are important to enable the investigation of
breaches of the fatigue management provisions and to assist a
person who intends to rely on a reasonable steps defence (that is,
that the person took all reasonable steps to prevent the act or
omission that led to the contravention of a fatigue management
provision). They are also consistent with the intent of the
National Transport Commission (Model Legislation--Heavy
Vehicle Driver Fatigue) Regulations 2007.
Clause 37 makes a minor technical amendment to section 191ZZV(3)(a)
of the Road Safety Act 1986, by changing the reference to
"prescribed corresponding law" to "prescribed corresponding
obligation", which is a defined term for the purposes of
section 191ZZV.
Section 191ZZV makes provision with respect to evidence of
certain matters in proceedings for fatigue related offences.
It provides, amongst other things, that, in relation to proof of
whether a person took all reasonable steps to ensure that a driver
did not drive while impaired by fatigue, the person can rely on
evidence that they complied with a corresponding obligation
which is prescribed under the regulations. The regulations could,
for example, prescribe obligations under other legislation
designed to manage fatigue (for example, the Occupational
Health and Safety Act 2004).
Clause 38 substitutes a new heading to Division 8 of Part 10A, to replace
"Fatigue Authorities Panel" with "Australian Transport Council".
This is consequent on the changes to the role of the Fatigue
Authorities Panel made by the National Transport Commission's
Model Amendments Act: Heavy Vehicle Driver Fatigue--
Package No. 3.
14
Clause 39 substitutes section 191ZZZA of the Road Safety Act 1986, to
specify the matters that may be approved by the Australian
Transport Council by notice published in the Commonwealth
Government Gazette.
The Australian Transport Council will be able to delegate these
powers to VicRoads. VicRoads will be able to sub-delegate to an
officer of VicRoads or to an employee of the Department of
Transport.
This is consequent upon changes to the national model legislation
made by National Transport Commission's Model Amendments
Act: Heavy Vehicle Driver Fatigue--Package No. 3 to change
the role of the Fatigue Authorities Panel. It has been determined
that the Fatigue Authorities Panel will be purely an advisory
body. The power to determine matters (for example, AFM or
BFM standards and business rules) will be retained by the
Australian Transport Council or a delegate of the Australian
Transport Council.
Clause 40 repeals section 191ZZZB of the Road Safety Act 1986, which
required the Fatigue Authorities Panel to publish in the
Commonwealth Government Gazette matters that it was required
to determine under Part 10A of the Act. Given these are matters
which are now to be determined by the Australian Transport
Council in accordance with the new section 191ZZZA of the
Road Safety Act 1986, this provision is no longer required.
Clause 41 makes a minor technical amendment to Item 2 of the Table at the
foot of proposed new section 191ZZZC of the Road Safety Act
1986, by rectifying an incorrect reference. Section 191ZZZC sets
out the decisions of VicRoads which are subject to review, by
referencing the sections under which decisions are made and
providing a brief description of those decisions. Item 2 specified
the sections under which VicRoads makes decisions to give an
accreditation or exemption for less than 3 years or the period
sought by the applicant. It incorrectly referenced section 191ZU,
instead of section 191ZT.
Clause 42 inserts a new section 191ZZZE of the Road Safety Act 1986.
It imposes a requirement on inspectors to annotate a driver's work
diary upon request where a driver is detained for 5 minutes or
longer.
The details to be annotated are the inspector's identifying details,
the time, date and place at which the inspector stopped the driver
and the length of time that the driver was stopped by the
inspector.
15
Where drivers are queued up and an inspector speaks to the
drivers in the order in which they were stopped, the counting of
time for the purposes of determining whether a driver has been
stopped for 5 minutes or longer only starts once the inspector
begins to speak to the driver for the purpose for which the driver
was stopped.
Drivers will not have a right to count the time spent waiting in
the queue when requesting the inspector to annotate their work
diary. The right to request annotation of the diary should only
apply once the driver is spoken to, as part of the investigative or
enforcement process.
If drivers are not spoken to in the order they are stopped, it is not
a simple queuing scenario and implies a deliberate intent to
investigate certain drivers ahead of others. In those
circumstances, the time spent waiting should be counted in
determining when the driver has a right to request annotation of
the diary.
Clause 43 amends Schedule 3 to the Road Safety Act 1986, which sets out
the work and rest hours for drivers not working under
accreditation (that is, standard hours).
Subclause (1) makes a minor technical amendment in column 1
of Table 1, by referring to 7 "days", not "day".
Subclause (2) clarifies that short rest breaks (taken in any period
of 5 and a half hours, 8 hours or 11 hours) for solo drivers do not
need to be taken outside of the fatigue regulated heavy vehicle or
the sleeper berth of the fatigue regulated heavy vehicle. It does
so by deleting the word "stationary" from the rest requirements
for those periods in column 3 of Table 1, as stationary rest time
is defined in section 191A to mean rest time that a driver spends
out of a fatigue regulated heavy vehicle or an approved sleeper
berth of a stationary fatigue regulated heavy vehicle. For such
short rest breaks, it is considered sufficient for the driver to take
their rest in the fatigue regulated heavy vehicle if they so desire.
Subclause (3) makes a minor technical amendment in column 4
of Table 1 by deleting "of that" wherever occurring. This ensures
consistent terminology throughout Table 1.
Subclause (4) clarifies that short rest breaks (taken in any period
of 5 and a half hours, 8 hours or 11 hours) for solo drivers of
buses do not need to be taken outside of the bus or the sleeper
berth of the bus. It does so by deleting the word "stationary"
from the rest requirements for those periods in column 3 of
Table 2, as stationary rest time is defined in section 191A to
mean rest time that a driver spends out of a fatigue regulated
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heavy vehicle or an approved sleeper berth of a stationary fatigue
regulated heavy vehicle. For such short rest breaks, it is
considered sufficient for the driver to take their rest in the bus if
they so desire.
Subclause (5) makes a minor technical amendment in column 4
of Table 2 by deleting "of that" wherever occurring. This ensures
consistent terminology throughout Table 2.
Subclause (6) substitutes a new Table 3 of Schedule 3, which sets
out the standard hours for two-up drivers of a fatigue regulated
heavy vehicle.
Clause 44 amends Schedule 4 to the Road Safety Act 1986, which sets out
the work and rest hours for drivers working under BFM
accreditation.
Subclause (1) makes a minor technical amendment in column 4
of Table 1 by deleting "of that" wherever occurring. This ensures
consistent terminology throughout Table 1.
Subclause (2) clarifies that short rest breaks (taken in any period
of 6 and a quarter hours, 9 hours or 12 hours) for solo drivers do
not need to be taken outside of the fatigue regulated heavy
vehicle or the sleeper berth of the fatigue regulated heavy
vehicle. It does so by deleting the word "stationary" from the
rest requirements for those periods in column 3 of Table 1, as
"stationary rest time" is defined in section 191A to mean rest
time that a driver spends out of a fatigue regulated heave vehicle
or an approved sleeper berth of a stationary fatigue regulated
heavy vehicle. For such short rest breaks, it is considered
sufficient for the driver to take their rest in the fatigue regulated
heavy vehicle if they so desire.
Subclause (3) makes a minor technical amendment to Table 1 of
Schedule 4 by deleting the last items at the end of that Table as
they are a duplication of the first items at the beginning of that
Table.
Subclause (4) substitutes a new Table 2 of Schedule 4, which sets
out the BFM hours for two-up drivers of a fatigue regulated
heavy vehicle.
PART 3--AMENDMENT OF ROAD SAFETY ACT 1986
Clause 45 amends section 77A of the Road Safety Act 1986, by including
Part 10A within that provision. Section 77A allows for
proceedings to be commenced within 2 years of the commission
of relevant offences, rather than 1 year as is usually the case in
relation to summary offences. This is necessary because the
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fatigue management regime provides for parties in the transport
chain other than the driver and the operator of a heavy vehicle to
be investigated in relation to a fatigue management offence, and
these "chain of responsibility" investigations may take more than
1 year. This provision extends section 77A to apply to offences
committed under the fatigue management provisions, consistent
with the National Transport Commission (Model Legislation--
Heavy Vehicle Driver Fatigue) Regulations 2007 and with the
position in relation to mass, dimension and load restraint
offences.
Clause 46 makes a minor technical amendment to section 213(2) of the
Road Safety Act 1986, by substituting "corresponding" for
"relevant" law in that subsection. That subsection provides for
recognition of administrative actions by authorities in other
jurisdictions where they correspond to relevant heavy vehicle
offences. The reference to "relevant law" in subsection (2)
should be to "corresponding law", as corresponding law is a
defined term in subsection (1).
PART 4--REPEAL OF ACT
Clause 47 provides for the repeal of this amending Bill on the first
anniversary of the day on which it commences. The repeal of
this Bill does not affect in any way the operation of the
amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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