Part 10Other provisions

Part 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 (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. prescribed requirement means— (a) a mass requirement; or (b) a dimension requirement; or (c) a requirement under Chapter 4 Part 5, including, for example, a requirement to comply with a condition of an exemption under that Part; or (d) a requirement under Chapter 4 Part 6, including, for example, a requirement to comply with a condition of an authorisation under that Part; 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. 199—Recovery of losses for provision of inaccurate container weight declaration (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 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. (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. 200—Recovery by responsible entity of amount paid under section 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. (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 6—Vehicle operations—driver fatigue 220—Main purpose of Chapter 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. 221—Definitions for Chapter 6 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; 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); • 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; 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, in relation to a fatigue‑regulated heavy vehicle, means all or part of an approved electronic recording system that is fitted to or used in relation to the vehicle to record information a driver of the vehicle is required by this Law to record in a work diary for the purposes of this Law; entry, in a work record, means anything written or otherwise recorded 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; intelligent access program 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— 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. 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 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 6 am; 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; 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; 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); • 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; 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 (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; 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 Chapter 6 Part 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, Division 3, Division 9 or Division 10 of Chapter 6 Part 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. (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 2—Duties relating to fatigue 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. 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; (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. Division 2—Duty to avoid 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. (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. (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. 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. Part 3—Requirements relating to work time and rest time 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 (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. (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—written work diaries (1) This section applies if a driver uses a written work diary. (2) Work time must be counted in 15 minute periods. (3) A period of work time of less than 15 minutes counts as 15 minutes work time. Examples for the purposes of subsection (3)— 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. (4) Rest time must be counted in blocks of time of no less than 15 minutes. (5) A period of rest time of less than 15 minutes must be disregarded. Examples for the purposes of subsection (5)—