National Transport Commission (Model Amendments Act: Heavy Vehicle Driver Fatigue – Package No. 2) Regulations 2009
In ForceCTH
Jurisdiction
Commonwealth
Act Number
238 of 2009
Collection
legislative instrument
Plain English Summary
8/10 complexity
This instrument amends the model heavy‑vehicle driver fatigue law to add and regulate electronic work diaries (approval, labelling, operation and evidentiary status), revise rest‑break and work‑time tables, and impose duties and penalties on drivers, operators and record‑keepers. The stated purpose is to improve verification of BFM/AFM accreditation and diary systems (s2). It shifts compliance costs and evidential burdens to drivers, operators, device suppliers and record‑keepers while giving the Authority discretion to approve and condition diary systems.
Mechanically, these Regulations present a package of model amendments to the Road Transport (Heavy Vehicle Driver Fatigue) Act 2006. The instrument takes the form of model legislation (Schedule 1) under the National Transport Commission Act 2003 (see the Regulations’ opening provisions: regs 1-3 and notes). The model legislation itself makes targeted changes to the 2006 Act across multiple subjects: verification and carriage of BFM (Basic Fatigue Management) and AFM (Advanced Fatigue Management) accreditation documentation; definitions and approval, labelling, operation and evidentiary treatment of electronic work diaries (EWDs); rest-break rules and work‑time thresholds for BFM and AFM drivers; duties on loading managers; the reasonable‑steps defence; outsourcing and record‑keeping obligations (including time limits for transfer of EWD entries); tampering offences; enforcement powers and powers of authorised officers; and various other operational amendments (see the table of amendments in sections 5-33 of the model Act).
The stated purpose in the model Act is fourfold: to make further provision for verification of BFM and AFM accreditation status of drivers; to supplement provisions dealing with electronic work diaries; to recognise that the Fatigue Authorities Panel has been established by rules rather than by the Act; and to otherwise improve the operation of the 2006 Act (model Act s 2). The Regulations were approved by the Australian Transport Council on 28 March 2008 (model Act s 3) and commence the day after registration (Regulation 2).
Key mechanical changes include:
Tightening and clarifying the reasonable‑steps defence by replacing the language of section 24(a)-(b) of the 2006 Act with a two‑limb test: lack of knowledge that could have been reasonably expected and either (i) all reasonable steps were taken to prevent the contravention, or (ii) the person could not reasonably be expected to have taken any steps (model Act s 5).
Current sections
Direct links to the current provisions in National Transport Commission (Model Amendments Act: Heavy Vehicle Driver Fatigue – Package No. 2) Regulations 2009.
36
1
Name of Regulations
1 Name of Regulations
These Regulations are the National Transport Commission (Model Amendments Act: Heavy Vehicle Driver Fatigue—Package No. 2) Regulations 2009.
2
Commencement
2 Commencement
These Regulations commence on the day after they are registered.
3
Proposed amendments to model legislation
3 Proposed amendments to model legislation
(1) Under section 7 of the National Transport Commission Act 2003, Schedule 1 sets out model legislation (in the form of an Act) to amend the principal model legislation.
(2) In subregulation (1), principal model legislation means the model legislation set out in Schedule 1 to the National Transport Commission (Model Legislation—Heavy Vehicle Driver Fatigue) Regulations 2007 as if it had been amended by the model legislation set out in Schedule 1 to the National Transport Commission (Model Amendments Act: Heavy Vehicle Driver Fatigue—Package No. 1) Regulations 2008.
Note 1: The model legislation does not have the force of law (see paragraph 7(2)(a) of the National Transport Commission Act 2003).
Note 2: These Regulations are not subject to disallowance—see regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003.
Note 3: These Regulations are not subject to sunsetting—see regulations made for the purposes of paragraph 54(2)(b) of the Legislation Act 2003.
1. Name
1. Name
1. Name
This Act is the Model Amendments Act: Heavy Vehicle Driver Fatigue—Package No. 2.
2. Purpose
2. Purpose
2. Purpose
The purpose of this Act is to amend the Road Transport (Heavy Vehicle Driver Fatigue) Act 2006 –
(a) to make further provision in relation to the verification of the BFM and AFM accreditation status of drivers; and
(b) to supplement the provisions dealing with electronic work diaries; and
(c) to recognise the establishment of the Fatigue Authorities Panel by the Fatigue Authorities Panel Rules, rather than by that Act; and
(d) to otherwise improve the operation of that Act.
3. Approval
3. Approval
3. Approval
This Act was approved by the Australian Transport Council on 28 March 2008.
4. Act being amended by this Act
4. Act being amended by this Act
4. Act being amended by this Act
This Act amends the Road Transport (Heavy Vehicle Driver Fatigue) Act 2006.
5. Change to the reasonable steps defenc
5. Change to the reasonable steps defence
5. Change to the reasonable steps defence
For sections 24(a) and (b) substitute –
“(a) the person did not know, and could not reasonably be expected to have known, of the contravention concerned; and
(b) either:
(i) the person had taken all reasonable steps to prevent the contravention concerned; or
(ii) the person could not reasonably be expected to have taken any steps to prevent the contravention concerned.”.
6. Duties on loading managers
6. Duties on loading managers
6. Duties on loading managers
For sections 33(3)(a) and (b) substitute –
“(a) has advised the driver, either directly or indirectly, of when the loading or unloading of the vehicle is to start, and the loading manager or person becomes aware that the loading or unloading will, or is likely to, start more than 30 minutes late; or
(b) has advised the driver, either directly or indirectly, of when the loading or unloading of the vehicle is to finish, and the loading manager or person becomes aware that the loading or unloading will, or is likely to, finish more than 30 minutes late; or
(c) is unable to advise the driver of when the loading or unloading of the vehicle is to start; or
(d) is unable to advise the driver of when the loading or unloading of the vehicle is to finish;”.
7. Change to how short rest breaks may b
7. Change to how short rest breaks may be taken
7. Change to how short rest breaks may be taken
(1) In section 44(6), in the table –
(a) in the item relating to a total period (column 1) of 5½ hours, in column 3 omit “stationary”;
(b) in the item relating to a total period (column 1) of 8 hours, in column 3 omit “stationary”;
(c) in the item relating to a total period (column 1) of 11 hours, in column 3 omit “stationary”.
(2) In section 45(6), in the table –
(a) in the item relating to a total period (column 1) of 5½ hours, in column 3 omit “stationary”;
(b) in the item relating to a total period (column 1) of 8 hours, in column 3 omit “stationary”;
(c) in the item relating to a total period (column 1) of 11 hours, in column 3 omit “stationary”.
(3) In section 49(6), in the table –
(a) in the item relating to a total period (column 1) of 6¼ hours, in column 3 omit “stationary”;
(b) in the item relating to a total period (column 1) of 9 hours, in column 3 omit “stationary”;
(c) in the item relating to a total period (column 1) of 12 hours, in column 3 omit “stationary”.
8. Other changes concerning rest breaks
8. Other changes concerning rest breaks
8. Other changes concerning rest breaks
(1) In section 46(6), in the table, in the item relating to a total period (column 1) of 24 hours, in column 3 omit “or is stationary”.
(2) In section 46(6), in the table, in the item relating to the total period (column 1) of 7 days, in column 4 –
(a) for “≤58½ hrs work time” substitute “>60 hrs but not >61½ hrs work time”;
(b) for “>58½ hrs but not >57½ hrs work time” substitute “>61½ hrs but not >62½ hrs work time”;
(c) for “>57½ hrs but not >57 hrs work time” substitute “>62½ hrs but not >63 hrs work time”;
(d) for “>57 hrs work time” substitute “>63 hrs work time”.
(3) In section 46(6), in the table, in the item relating to the total period (column 1) of 14 days, in column 4 –
(a) for “≤118½ hrs work time” substitute “>120 hrs but not >121½ hrs work time”;
(b) for “>118½ hrs but not >117½ hrs work time” substitute “>121½ hrs but not >122½ hrs work time”;
(c) for “>117½ hrs but not >117 hrs work time” substitute “>122½ hrs but not >123 hrs work time”;
(d) for “>117 hrs work time” substitute “>123 hrs work time”.
9. BFM hours — correction of error
9. BFM hours — correction of error
9. BFM hours – correction of error
In section 51(6), in the table, in the item relating to the total period (column 1) of 7 days, in column 4 –
(a) for “≤68½ hrs work time” substitute “>70 hrs but not >71½ hrs work time”;
(b) for “>68½ hrs but not >67½ hrs work time” substitute “>71½ hrs but not >72½ hrs work time”;
(c) for “>67½ hrs but not >67 hrs work time” substitute “>72½ hrs but not >73 hrs work time”;
(d) for “>67 hrs work time” substitute “>73 hrs work time”.
10. BFM hours
10. BFM hours
10. BFM hours
(1) In section 51(5), after “subsection” insert “(2) or”.
(2) In section 51(6), in the table, in the item relating to the total period (column 1) of 24 hours, in column 3 omit –
(a) “10 hrs stationary rest time, or”; and
(b) “10 hrs rest time in an approved sleeper berth while the vehicle is moving or is stationary”.
11. Change to AFM hours penalties for pe
11. Change to AFM hours penalties for periods of 7 days or more
11. Change to AFM hours penalties for periods of 7 days or more
(1) In sections 52(2) and (3), in the penalty, for “column 3” substitute “column 4”.
(2) In section 52(5), after “subsection” insert “(2) or”.
(3) In section 52(6), for the table substitute –
“AFM hours—Penalties
Column 1Total period
Column 2Maximum work
Column 3Minimum rest time
Column 4Offence category
In any period of …
If a driver has exceeded the maximum work time by …
If a driver has had less than the minimum rest time by …
… the following category of offence is committed …
Less than 7 days
45 mins work time
45 mins rest time
minor risk
> 45 but 75 mins work time
> 45 but 75 mins rest time
substantial risk
> 75 but 90 mins work time
> 75 but 90 mins rest time
severe risk
> 90 mins work time
> 90 mins rest time
critical risk
7 days or more
1½ hours work time
minor risk
> 1½ but 2½ hours work time
substantial risk
> 2½ but 3 hours work time
severe risk
> 3 hours work time
critical risk
”.
(3) In sections 52A(2) and (3), in the penalty, for “column 3” substitute “column 4”.
(4) In section 52A(6), for the table substitute –
“AFM outer limits—Penalties
Column 1Total period
Column 2Maximum work
Column 3Minimum rest time
Column 4Offence category
In any period of …
If a driver has exceeded the maximum work time by …
If a driver has had less than the minimum rest time by …
… the following category of offence is committed …
Less than 7 days
15 mins work time
15 mins rest time
substantial risk
> 15 mins but 30 mins work time
> 15 but 30 mins rest time
severe risk
> 30 mins work time
> 30 mins rest time
critical risk
7 days or more
30 mins work time
substantial risk
> 30 mins but 1 hour work time
severe risk
> 1 hour work time
critical risk
”.
12. Driver base
12. Driver base
12. Driver base
(1) For section 55(1) substitute –
“(1) The base of a driver of a regulated heavy vehicle, in relation to particular work, is the place from which he or she normally does the work.
(1A) Despite subsection (1), if a driver has not recorded a base in his or her work diary in relation to particular work, for the purposes of this Act the driver’s base in relation to that work is the garage address of the vehicle.”.
(2) For section 57(3)(f) substitute –
“(f) details of his or her base, unless he or she has previously recorded those details in relation to the work and they are still current; and”.
13. Driver must carry work diary
13. Driver must carry work diary
13. Driver must carry work diary
In section 56(2), in note 1, after “record.” insert “Section 59 does not apply if a driver forgets to take a work diary on a journey – in that circumstance the driver is liable to be prosecuted under this subsection.”.
14. Definition of electronic work diary
14. Definition of electronic work diary
14. Definition of electronic work diary
(1) For section 56(5) substitute –
“(5) An electronic work diary is any system of recording information electronically:
(a) that has attached to each device that forms part of the system a label:
(i) that indicates that the device is, or is part of, an electronic work diary that is the subject of a current approval of the Authority under section 74; and
(ii) that states the number of the certificate of approval issued by the Authority in respect of the approval; and
(iii) that is in a form approved by the Authority; and
(b) that is the subject of a current approval of the Authority under section 74.
(5A) For the purposes of this Act, a person is entitled to rely on a label that appears to comply with subsection (5)(a) unless he, she or it knows, or reasonably ought to know, that the thing is not the subject of a current approval of the Authority under section 74.”.
15. Information that must be recorded in
15. Information that must be recorded in a work diary
15. Information that must be recorded in a work diary
For sections 57(4)(f)(iii) and (iv) substitute –
“(iii) except in the case of a shared electronic work diary, the security or other identifying number of the other driver’s work diary and the name of the participating jurisdiction that issued that diary.”.
16. Destroyed, lost, stolen or malfuncti
16. Destroyed, lost, stolen or malfunctioning work diaries
16. Destroyed, lost, stolen or malfunctioning work diaries
(1) In section 59(3) –
(a) after “has been” insert “filled up,”;
(b) after “written notice” insert “, in a form approved by the Authority,”.
(2) After section 59(4) insert –
“(4A) If a driver gives a work diary to the Authority under subsection (4), the Authority must:
(a) cancel any unused daily sheets in the diary; and
(b) return the diary to the driver.”.
17. Outsourcing of record keeping
17. Outsourcing of record keeping
17. Outsourcing of record keeping
(1) After section 62(2) insert –
“(2A) Despite subsection (2), a record keeper may engage the services of another person to carry out some or all of the record keeper’s functions as a record keeper under this Act.
(2B) If such an engagement occurs:
(a) the record keeper remains liable for all obligations imposed on the record keeper under this Act; and
(b) the other person is also liable under this Act, in respect of any obligation imposed on the record keeper as a record keeper that is covered by the terms of the engagement, as if he, she or it was the record keeper.”.
18. Recording of information by record k
18. Recording of information by record keeper
18. Recording of information by record keeper
(1) In section 62(3)(a), after “record” insert “ the following information as soon as possible after receiving it”.
(2) After section 62(8) insert –
“(8A) Subsection (8) does not apply with respect to any entries that are transferred from an electronic work diary to the record keeper within the 21 day period referred to in that subsection.”.
(3) After section 62(9) insert –
“(9A) If a driver uses an electronic work diary, the record keeper must ensure that the information recorded in the diary on a specific day is transferred, or otherwise given, to the record keeper within 21 days after that specific day.
Court‑imposed penalty: $6 000.”.
19. Tampering with electronic work diari
19. Tampering with electronic work diaries
19. Tampering with electronic work diaries
(1) In section 71(4) –
(a) in paragraph (d), for “diary.” substitute “diary; or”;
(b) after paragraph (d) insert –
“(e) results in inaccurate data being recorded by the diary; or
(f) may result in inaccurate data being recorded by the diary.”.
(2) After section 71(4) insert –
“(4A) A person also tampers with an electronic work diary if the person tampers or otherwise interferes with any electronic signal that is sent to, or from, the diary, and that conduct has any of the effects listed in subsection (4).”.
(3) After section 71(7) insert –
“(8) If a person is charged with an offence against subsection (1) and the alleged offence involves tampering or otherwise interfering with any electronic signal that is sent to, or from, an electronic work diary, it is a defence to the charge if the person proves that he or she was not aware, and could not reasonably be expected to have been aware, that the activity that constituted the alleged tampering or interfering would interfere with the electronic signal.
(9) Subsection (8) does not apply to a driver who was using the electronic work diary or to the driver’s record keeper.”.
20. Electronic work diaries
20. Electronic work diaries
20. Electronic work diaries
(1) For section 74(3) substitute –
“(3) The Authority may approve a system of recording information electronically for use as an electronic work diary for the purposes of this Act if it is satisfied that the system:
(a) is suitable for fitting to, or for use in, a regulated heavy vehicle; and
(b) has a mechanism that readily indicates to the driver of the vehicle that the system is, or is not, properly functioning; and
(c) is capable of accurately monitoring and recording the work and rest times of the driver of the vehicle, and of recording any other information that a driver is required, under this Act, to record in a work diary; and
(d) if the system is to be fitted to the vehicle and is to be used by more than one driver, is capable of ensuring:
(i) that all of the information referred to in paragraph (c) can be accurately monitored or recorded (as the case may be) for each driver; and
(ii) that the details recorded by, or in respect of a driver, are readily distinguishable from the details recorded by, or in respect, of any other driver; and
(iii) that the name of each driver in respect of which details are recorded is shown whenever the details are accessed; and
(iv) that a driver cannot record any information that a driver is required, under this Act, to record in a work diary in the system for, or on behalf of, another driver; and
(e) has a mechanism to ensure that the driver cannot alter any information that the driver records in the system once the driver has had an opportunity to confirm the accuracy of that information; and
(f) if the system is designed to enable the driver 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, the information it contains; and
(h) is capable of readily reproducing, on being accessed by an authorised officer or a police officer while the vehicle to which it is fitted is on the road, the information it contains in a form:
(i) that is readily accessible by the officer; and
(ii) that is reasonably capable of being understood by the officer; and
(iii) that can be used as evidence.
Note: An electronic work diary may include or form part of an approved intelligent transport system under the IAP Act. Intelligent transport system is defined in the C & E Act.”.
(2) After section 74(4) insert –
“(4A) If the Authority grants an application under this section, it must issue a numbered certificate of approval to the applicant.
(4B) In granting an application, the Authority may impose conditions in relation to the operation and maintenance of the diary.
(4C) An approval under this section covers any system that is identical to the system that was submitted to the Authority for approval.
(4D) Any identical system that is covered by an approval is also subject to any conditions that were imposed in relation to the approval.
(4E) A document that purports to be a certificate of approval issued by the Authority under this section is evidence that any system referred to in the document has been approved by the Authority as an electronic work diary under this section.”.
21. Insertion of section 74A
21. Insertion of section 74A
21. Insertion of section 74A
After section 74 insert –
“74A. Labelling of electronic work diary devices
(1) In this section, approved electronic work diary means a system of recording information electronically that is the subject of a current approval of the Authority under section 74 for use as an electronic work diary for the purposes of this Act, or that is identical to such a system.
(2) A person may place on any device that is, or that forms part of, an approved electronic work diary a label that indicates that the device is, or is part of, an approved electronic work diary.
Note: Under section 56(5), placing a label of the sort described in this subsection on a thing makes the thing an electronic work diary for the purposes of this Act, provided the label states the number of the certificate of approval that applies to the thing, and provided the thing is the subject of a current approval under section 74 and is in a form that has been approved by the Authority.
(3) A person must not place on any device a label that indicates that the device is, or is part of, an approved electronic work diary if the device is not, or does not form part of, an approved electronic work diary.
Court‑imposed penalty: $6 000.
(4) A person must not use as an electronic work diary for the purposes of this Act any device that has a label that indicates that the device is, or is part of, an approved electronic work diary if the person knows, or reasonably ought to know, that the device is not, or does not form part of, an approved electronic work diary.
Court‑imposed penalty: $6 000.
(5) The existence of a label on a thing that indicates that the thing is, or forms part of, an approved electronic work diary, and that purports to show the number of a certificate of approval, is evidence that the thing is an approved electronic work diary.
(6) An offence against subsection (3) or (4) is an offence of strict liability.”.
22. Insertion of sections 75A and 75B
22. Insertion of sections 75A and 75B
22. Insertion of sections 75A and 75B
After section 75 insert –
“75A Removal of electronic work diary approval label
(1) This section applies if the Authority cancels the approval of an electronic work diary.
(2) The person who, immediately before the cancellation took effect, held the approval –
(a) must remove from any diaries in his, her or its possession any label that relates to the former approval; and
(b) must notify in writing each person to whom he, she or it has supplied any diary under the approval that the approval has been cancelled and that any label on any such diary still in the person’s possession should be removed.
Court‑imposed penalty: $6 000.
(3) Any person who is aware that the approval of a diary in the person’s possession has been cancelled must remove from the diary any label that relates to the former approval.
Court‑imposed penalty: $6 000.
75B Authority may permit the use of diaries whose approval has been cancelled
(1) The Authority may, by notice published in the Gazette, permit the use of diaries whose approval has been cancelled:
(a) for a specified period or indefinitely; and
(b) on specified conditions.
(2) Despite anything to the contrary in this Act, a diary that is the subject of a notice under this section is to be treated as if it were an electronic work diary, unless it is being used contrary to any condition specified in the notice.
(3) The Authority may, by notice published in the Gazette, vary or revoke a notice under this section.”.
23. Insertion of section 76A
23. Insertion of section 76A
23. Insertion of section 76A
After section 76 insert –
“76A. How electronic work diary to be operated
(1) A driver using an electronic work diary must ensure that he or she operates and maintains the diary:
(a) in accordance with the manufacturer’s specifications; and
(b) in compliance with any conditions imposed by the Authority that apply to the operation of the diary.”.
Court‑imposed penalty: $6 000.
(2) The record keeper of a driver using an electronic work diary must ensure that the driver complies with the requirements of subsection (1).
Court‑imposed penalty: $6 000.
(3) It is a defence to a charge of failing to comply with a particular specification of the manufacturer for the person charged to prove either:
(a) that the specification was not integral to the effective operation of the diary; or
(b) that what was done or not done with respect to the specification was in accordance with industry practice in relation to the handling or maintenance of a diary of that type from that manufacturer.
(4) An offence against subsection (1) or (2) is an offence of strict liability.
76B. Admissibility of documents produced by an electronic work diary
(1) A document produced by an electronic work diary is evidence of the matters contained in the document.
(2) A statement as to the operation of an electronic work diary made in a document purporting to be signed by a person purporting to be involved with the operation of the diary is evidence of any fact contained in the statement.”.
24. Insertion of section 80A
24. Insertion of section 80A
24. Insertion of section 80A
After section 80 insert –
“80A. Driver must carry BFM accreditation documents
(1) At all times while working under an operator’s BFM accreditation, a driver must have in his or her possession:
(a) a copy of the operator’s accreditation certificate; and
(b) 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 fatigue management system and meets the requirements relating to drivers under the accreditation.
Note 1: A driver is already required to record his or her operator’s BFM accreditation number under section 57(3)(e).
Note 2: An authorised officer or police officer may direct a driver to produce a record required to be kept by the driver—see section 44 of the C & E Act.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(2) The operator must ensure that each of the drivers driving under the operator’s BFM accreditation does not contravene subsection (1).
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(3) A driver must immediately return to an operator any document given to him or her by the operator for the purposes of subsection (1) if the driver:
(a) ceases to work under an operator’s BFM accreditation; or
(b) ceases to meet the requirements relating to drivers under that accreditation.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.
(4) An offence against subsection (1), (2) or (3) is an offence of strict liability.”.
25. BFM driver details to be supplied to
25. BFM driver details to be supplied to the Authority
25. BFM driver details to be supplied to the Authority
After section 81(3) insert –
“(3A) If required to do so by the Authority, the operator must give to the Authority, in the form and within the time specified by the Authority –
(a) a copy of the list of drivers kept by the operator under subsection (2)(b); and
(b) details of any changes to that list.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.”.
26. Operator must advise of change or en
26. Operator must advise of change or end of accreditation
26. Operator must advise of change or end of accreditation
(1) After section 82(1) insert –
“(1A) If a driver is informed that an operator’s BFM accreditation has changed or ceased, he or she must immediately return to the operator any document given to him or her by the operator for the purposes of section 80A(1).
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.”.
(2) In section 82(2), after “(1)” insert “or (1A)”.
(1) For section 86(1) substitute –
“(1) At all times while working under an operator’s AFM accreditation, a driver must have in his or her possession:
(a) a copy of the operator’s accreditation certificate; and
(b) 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 fatigue management system and meets the requirements relating to drivers under the accreditation; and
(c) a document that sets out the AFM hours allowed under the accreditation.
Note: Example: It would be sufficient compliance with the requirement in paragraph (c) for a driver to have a record of the AFM hours allowed under the accreditation stored in his or her electronic work diary (as the diary is a document).
Note 1: A driver is already required to record his or her operator’s AFM accreditation number under section 57(3)(e).
Note 2: An authorised officer or police officer may direct a driver to produce a record required to be kept by the driver—see section 44 of the C & E Act.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $ 600.”.
(2) After section 86(2) insert –
“(2A) A driver must immediately return to an operator any document given to him or her by the operator for the purposes of subsection (1)(a) or (b) if the driver:
(a) ceases to work under an operator’s AFM accreditation; or
(b) ceases to meet the requirements relating to drivers under that accreditation.
Court‑imposed penalty: $2 000.
Infringement notice penalty: $ 600.”.
(3) In section 86(3), for “and (2)” substitute “, (2) or (2A)”.
(4) After section 88(1) insert –
“(1A) If a driver is informed that an operator’s AFM accreditation has changed or ceased, he or she must immediately return to the operator any document given to him or her by the operator for the purposes of section 86(1)(a) or (b).
Court‑imposed penalty: $2 000.
Infringement notice penalty: $600.”.
(5) In section 88(2), after “(1)” insert “or (1A)”.
28. AFM driver details to be supplied to
28. AFM driver details to be supplied to the Authority
28. AFM driver details to be supplied to the Authority
After section 87(3) insert –
“(3A) If required to do so by the Authority, the operator must give to the Authority, in the form and within the time specified by the Authority –
(a) a copy of the list of drivers kept by the operator under subsection (2)(b); and
(b) details of any changes to that list.
Court‑imposed penalty: $ 2 000.
Infringement notice penalty: $600.”.
29. Offence to falsely represent that ac
29. Offence to falsely represent that accreditation etc. held
29. Offence to falsely represent that accreditation etc. held
(1) After section 103(1) insert –
“(1A) A person must not represent that he or she is working under an accreditation or exemption if that accreditation or exemption is no longer in force.
Court‑imposed penalty: $10 000.”.
(2) For section 103(2) substitute –
“(2) A person must not possess a document that falsely purports to be:
(a) an accreditation or exemption under this Act; or
(b) a copy of an accreditation or exemption under this Act; or
(c) a document of the sort required by section 80A(1)(b) or 86(1)(b).
Court‑imposed penalty: $6 000.”.
(3) In section 103(3), for “subsections (1) or (2)” substitute “subsection (1), (1A) or (2)”.
30. Enforcement powers
30. Enforcement powers
30. Enforcement powers
(1) For section 107(1) substitute –
“(1) This section applies if an authorised officer or police officer reasonably believes:
(a) that a driver has committed an offence against section 28 (Driver’s duty to avoid driver fatigue) or Part 3 (Duties relating to work and rest times); and
(b) either:
(i) that the driver is impaired by fatigue that may have been caused by the occurrence of the offence; or
(ii) that the commission of the offence occurred sufficiently recently that there is a risk that the driver may be impaired by fatigue.”.
(2) In section 107(2), for “time” (wherever occurring) substitute “break”.
31. Duty on officers to annotate driver’
31. Duty on officers to annotate driver’s work diary
31. Duty on officers to annotate driver’s work diary
After section 109(4) substitute –
“(4A) If more than one driver has been stopped at a place, and the drivers are spoken to by an officer in the order in which they were stopped, the counting of time for the purposes of subsection (2) only starts once the officer begins to speak to the driver for the purpose of pursuing any matter in respect of which the driver was stopped.”.
32. Fatigue Authorities Panel
32. Fatigue Authorities Panel
32. Fatigue Authorities Panel
Omit section 114.
33. Definitions
33. Definitions
33. Definitions
In the Dictionary –
(a) in the definition of base, for “55(1)” substitute “55”;
(b) in the definition of electronic work diary, for “55(5)” substitute “56(5)”;
(c) for the definition of Fatigue Authorities Panel substitute –
“Fatigue Authorities Panel means the Panel established by the Fatigue Authorities Panel Rules made by the National Transport Commission, and approved by the ATC on xx xxx 2008, as amended from time to time.”.
Source text: opening excerpt
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
1 Name of Regulations
1 Name of Regulations
These Regulations are the National Transport Commission (Model Amendments Act: Heavy Vehicle Driver Fatigue—Package No. 2) Regulations 2009.
2 Commencement
2 Commencement
These Regulations commence on the day after they are registered.
3 Proposed amendments to model legislation
3 Proposed amendments to model legislation
(1) Under section 7 of the National Transport Commission Act 2003, Schedule 1 sets out model legislation (in the form of an Act) to amend the principal model legislation.
(2) In subregulation (1), principal model legislation means the model legislation set out in Schedule 1 to the National Transport Commission (Model Legislation—Heavy Vehicle Driver Fatigue) Regulations 2007 as if it had been amended by the model legislation set out in Schedule 1 to the National Transport Commission (Model Amendments Act: Heavy Vehicle Driver Fatigue—Package No. 1) Regulations 2008.
Note 1: The model legislation does not have the force of law (see paragraph 7(2)(a) of the National Transport Commission Act 2003).
Note 2: These Regulations are not subject to disallowance—see regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003.
Note 3: These Regulations are not subject to sunsetting—see regulations made for the purposes of paragraph 54(2)(b) of the Legislation Act 2003.
1. Name 1. Name
1. Name
This Act is the Model Amendments Act: Heavy Vehicle Driver Fatigue—Package No. 2.
2. Purpose 2. Purpose
2. Purpose
The purpose of this Act is to amend the Road Transport (Heavy Vehicle Driver Fatigue) Act 2006 –
(a) to make further provision in relation to the verification of the BFM and AFM accreditation status of drivers; and
(b) to supplement the provisions dealing with electronic work diaries; and
(c) to recognise the establishment of the Fatigue Authorities Panel by the Fatigue Authorities Panel Rules, rather than by that Act; and
(d) to otherwise improve the operation of that Act.
3. Approval 3. Approval
3. Approval
This Act was approved by the Australian Transport Council on 28 March 2008.
4. Act being amended by this Act 4. Act being amended by this Act
4. Act being amended by this Act
Extending duties on loading managers to capture situations where start/finish times are unknown or likely to be more than 30 minutes late, and expressly adding inability to advise as an element (model Act s 6).
Removing the requirement that short rest breaks (in certain tables in ss 44(6), 45(6), 49(6)) must be taken while stationary, by omitting the word “stationary” from relevant entries (model Act s 7).
Recalibrating multiple work‑time and rest‑time thresholds in the tables for 24‑hour, 7‑day and 14‑day totals in the rest breaks and BFM/AFM hours tables (model Act ss 8-11).
Introducing a default rule for a driver’s “base” where the driver has not recorded a base in the work diary: the vehicle’s garage address becomes the driver’s base for the Act’s purposes (model Act s 12).
Changing diary provisions: reinforcing a prosecution route where a driver forgets to carry a diary (model Act s 13); revising the legal definition of an EWD to require Authority‑issued approvals, labelled devices and an entitlement to rely on such labels (model Act s 14); requiring additional diary content for shared EWDs (model Act s 15); and amending rules on lost/destroyed diaries and the Authority’s handling of returned diaries (model Act s 16).
Explicitly allowing record‑keepers to outsource functions while allocating residual liability to the record‑keeper and parallel liability to the outsourced person for tasks they perform (model Act s 17).
Creating time limits for transfer of entries recorded in EWDs to record‑keepers (21 days) and imposing a Court‑imposed penalty for failure (model Act s 18).
Expanding the tampering definition to include interference with electronic signals to/from a diary and creating a limited defence for persons unaware their act would interfere (excluding drivers and record‑keepers) (model Act s 19).
Substantively revising EWD approval criteria, approval certificates, conditions, reproducing data for record‑keepers and authorised officers, and declaring EWD outputs admissible evidence (model Act ss 20, 23).
Introducing a labelling regime for approved EWD devices, creating penalties for mislabelling and use of mislabelled devices, and making the existence of a label evidence of approval (model Act ss 21-22).
Adding operation and maintenance obligations on drivers and record‑keepers in respect of EWDs, with strict‑liability offences and penalties, and making documents produced by EWDs evidence (model Act s 23).
Strengthening documentary obligations for BFM and AFM drivers and operators to carry and supply accreditation documents, a signed induction statement from the operator, and operator reporting obligations to the Authority (model Act ss 24-29).
Replacing the Fatigue Authorities Panel statutory section with a reference to Panel Rules made by the National Transport Commission (model Act s 32; Dictionary amendments s 33).
The Regulations are model amendments; the text contains a note that the model legislation does not have the force of law (see Note 1 to Regulation 3 and the opening note in the Regulations). The document therefore functions as an authoritative, model drafting package rather than immediate federal law.
Main concepts
This instrument relies around several core operational and legal concepts. Each concept is instantiated by specific textual changes in the model Act and produces specific compliance and enforcement mechanics.
Electronic work diary (EWD)
Re‑defined to be a system of electronic recording that: (a) has an Authority‑approved label on each device (stating it is an approved EWD and specifying the certificate number) in a form approved by the Authority; and (b) is the subject of a current approval by the Authority (model Act s 56(5) as substituted in s 14 of the model Act). A person is entitled to rely on such a label unless they know or reasonably ought to know it is not the subject of current approval (model Act s 56(5A)).
Approval criteria are set out and broadened: suitability for the vehicle, functioning indicators for the driver, capacity to monitor and record work/rest times and required information, per‑driver data separation and authentication, non‑alterability after confirmation, send indicators to record‑keepers, and repro‑ducing data for record‑keepers and authorised/police officers in an accessible form suitable for evidence (model Act s 74(3) as substituted by s 20).
Approval process adjustments include issuing numbered certificates, ability to impose conditions, approvals covering identical systems, and certificate documents being evidentiary (model Act s 74(4A)-(4E) in s 20).
Labelling, removal and cancelled approvals
New provisions let persons place approved labels on devices (model Act s 74A(2)); mislabelling or use of mislabelled devices triggers Court‑imposed penalties of $6,000 and strict liability for certain offences (model Act s 74A(3)-(6) inserted by s 21).
Where the Authority cancels an approval, the former holder must remove labels and notify recipients (s 75A), with statutory penalties (model Act s 75A(2)-(3) in s 22).
The Authority may permit continued use of diaries whose approval has been cancelled by Gazette notice, including on conditions and for specified periods (s 75B in s 22).
EWD operation and evidentiary treatment
Drivers and record‑keepers must operate and maintain approved EWDs in accordance with manufacturer specifications and conditions imposed by the Authority; these are strict‑liability offences with a Court‑imposed penalty of $6,000 for both the driver and the record‑keeper (model Act s 76A, inserted by s 23).
Documents produced by an EWD are admissible as evidence of their contents; statements as to operation made in signed documents are also evidence (model Act s 76B, in s 23).
BFM/AFM accreditation and verification
Drivers working under BFM or AFM accreditation must carry copies of the operator’s accreditation certificate and a signed operator document confirming induction and that the driver meets driver requirements; AFM drivers must also carry a document setting out AFM hours allowed (model Act ss 80A, 86(1) as substituted by ss 24 and 27).
Operators must supply driver lists and changes to the Authority on request (model Act ss 81(3A), 87(3A) inserted by ss 25 and 28). Operators must also ensure drivers comply with the carriage requirement (s 80A(2)), and drivers must immediately return accreditation documents upon ceasing to work under the operator’s accreditation or ceasing to meet requirements (model Act ss 80A(3), 86(2A) and changes at ss 26, 27).
Work‑time and rest‑time tables and penalties
The model Act alters how short rest breaks may be taken by removing “stationary” requirements from certain table entries (model Act s 7).
Tables governing rest periods and thresholds for 24‑hour, 7‑day and 14‑day totals are amended with numeric recalibrations for both ordinary rest and BFM hours (model Act ss 8-11). AFM hours penalties for periods of 7 days or more are re‑specified with different numeric bands and reclassification columns (model Act s 11).
Record keeping, outsourcing and tampering
Record‑keepers can outsource functions but remain liable for obligations; outsourced persons are also liable for obligations covered by the engagement (model Act s 62(2A)-(2B) in s 17).
Record‑keepers must record information “as soon as possible after receiving it” (model Act s 62(3)(a) amended by s 18(1)). EWD entries must be transferred to record‑keepers within 21 days, with failure attracting a Court‑imposed penalty of $6,000 (model Act s 62(9A) inserted by s 18(3)).
Tampering is extended to electronic interference with signals to/from diaries, with explicit defences for persons unaware of the signalling consequences, but the defence does not apply to drivers or record‑keepers (model Act s 71(4)-(4A) and s 71(8)-(9) in s 19).
Enforcement and evidentiary mechanics
Authorised officers’ power to act where they reasonably believe a driver has committed a fatigue offence is clarified to require a belief that the driver is impaired by fatigue or that the commission occurred sufficiently recently to present a risk of impairment (model Act s 107(1) as substituted by s 30(1)). Timing language is adjusted from “time” to “break” (s 30(2)).
Officers’ duty to annotate work diaries is adjusted so that time‑counting in multi‑driver stops begins when the officer starts to speak to the relevant driver about the matter for which they were stopped (model Act s 109(4A) inserted by s 31).
Legal character
The Regulations are clear that these are model amendments; the model legislation does not itself have legal force (Regulation 3 note). This package is therefore a standardised drafting instrument intended for adoption by jurisdictions rather than a federal enactment that directly alters private legal obligations.
Who it affects
The model amendments create direct and indirect obligations for identifiable groups. The primary affected parties are drivers of regulated heavy vehicles, operators (BFM and AFM operators), record‑keepers (both internal and outsourced), manufacturers and suppliers of EWD devices, loading managers, and authorised or police officers who enforce fatigue laws. The Authority referred to throughout (the Act’s fatigue/approving authority) is also given new administrative tasks and powers.
Drivers
Must carry and, in some cases, produce documentary evidence when operating under BFM or AFM accreditation (model Act s 80A(1), 86(1) as substituted). AFM drivers must carry a document setting out their AFM hours (model Act s 86(1)(c) as substituted).
Must operate EWDs in accordance with manufacturer specifications and Authority conditions (model Act s 76A(1) inserted by s 23), and must ensure EWDs are properly labelled and legitimately approved if relying on device labels (model Act s 56(5) and s 74A(4)-(5)).
Face strict‑liability offences for failing to comply with certain diary operation requirements and for possessing or representing false accreditation documents (model Act s 74A(6), s 76A(4), s 29(1A)-(2)) with specified Court‑imposed penalties.
Operators
Are obliged to ensure drivers under an operator’s BFM or AFM accreditation do not contravene carriage obligations and must supply driver lists and changes to the Authority if requested (model Act ss 80A(2), 81(3A), 87(3A)). Operators must also notify drivers and retrieve documentation when accreditation changes or ends (model Act s 82 and s 26).
Holders of EWD approvals must remove labels and notify customers if approval is cancelled (model Act s 75A).
Record‑keepers
Must accept liability for obligations even when outsourcing parts of record‑keeping (model Act s 62(2A)-(2B) in s 17). The record‑keeper must ensure information recorded in an EWD on a specific day is transferred to the record‑keeper within 21 days (model Act s 62(9A) in s 18(3)), with a $6,000 Court penalty for non‑compliance.
Must record information received “as soon as possible” (model Act s 62(3)(a) amendment by s 18(1)). Outsourced service providers can also be directly liable for the obligations they perform (model Act s 62(2B)).
Manufacturers and EWD suppliers
Must ensure devices can satisfy new approval criteria (model Act s 74(3) in s 20), be supplied with Authority‑approved labels, and comply with removal obligations if an approval is cancelled (model Act s 75A(2) in s 22). Suppliers who place a label on devices not covered by approval commit a strict‑liability offence attracting a Court penalty (model Act s 74A(3)-(4) in s 21).
Loading managers
Carry extended duties to advise drivers of start/finish times and be treated as in breach if they cannot advise such times (model Act s 33(3) substituted by s 6). The new wording addresses anticipated delays over 30 minutes and plain inability to advise start or finish times.
Authorised and police officers
The amendments change inspection and intervention thresholds and the mechanics of diary annotation during stops (model Act ss 107 and 109 amendments in ss 30 and 31), which affects how and when enforcement action may be taken and evidence recorded.
The Authority
Gains procedural obligations in approving EWDs, issuing numbered certificates, imposing conditions, declaring documents evidential, and might need to issue Gazette notices to permit use of cancelled diaries (model Act ss 74, 74A, 75A-75B, 76B). The Authority may also require operators to provide driver lists within specified forms and times (model Act ss 81(3A), 87(3A)).
Who bears direct costs and potential administration burdens
Drivers face compliance costs (carrying documentary proof, operating diaries per manufacturer specs).
Operators bear administrative costs of maintaining and supplying driver lists, ensuring drivers have documents, and ensuring return of documentation when accreditation changes.
Record‑keepers and outsourced providers bear compliance costs for rapid transfer of EWD data, and potential legal liability exposure.
EWD suppliers face approval costs, labelling responsibilities, and potential recall/notification obligations on cancellation.
The instrument therefore affects actors across the compliance chain: device producers, operators as accreditation holders, drivers as the primary regulated subjects, and public enforcement agents. The Authority has elevated administrative and adjudicative responsibilities related to approvals, conditions and Gazette notices.
Key duties and rights
The model amendments create and re‑articulate duties, conditions and limited rights. Below are the principal duties and the statutory rights or evidentiary effects created by the text.
Driver duties
Carry documentary proof when operating under BFM accreditation: a copy of the operator’s accreditation certificate and a signed operator document confirming induction and compliance with driver requirements (model Act s 80A(1)). For AFM, carry the operator certificate, signed induction document and the document setting out AFM hours allowed (model Act s 86(1) substitution).
Return accreditation documents immediately when ceasing to work under the accreditation or ceasing to meet driver‑requirements (model Act s 80A(3); s 86(2A)).
Operate and maintain an EWD in accordance with manufacturer specifications and any Authority‑imposed conditions (model Act s 76A(1)).
Operator duties
Ensure drivers driving under the operator’s BFM/AFM accreditation do not contravene the carriage requirements (model Act s 80A(2)).
Provide the Authority with a copy of the driver list and details of changes in the form and time specified by the Authority if required (model Act s 81(3A), 87(3A)).
Notify drivers and remove labels when an EWD approval they held is cancelled (model Act s 75A(2)).
Record‑keeper duties and rights
Ensure entries from an EWD are transferred to the record‑keeper within 21 days of the specific day on which the EWD recorded the information (model Act s 62(9A)); failure is a Court‑imposed penalty of $6,000.
If outsourcing occurs, the record‑keeper remains liable for obligations but the outsourced person is also liable for obligations they undertake (model Act s 62(2A)-(2B)).
Duty to record information “as soon as possible” after receiving it (model Act s 62(3)(a) amended by s 18(1)).
EWD and device supplier duties
Ensure systems meet approval criteria (model Act s 74(3)); obtain an approval certificate and affix approved labels in the approved form and with the certificate number (model Act s 56(5), s 74A(2)).
Remove labels and notify users upon cancellation of an approval; users who remain aware that an approval has been cancelled must remove labels (model Act s 75A(2)-(3)).
Loading manager duties
Advise drivers either directly or indirectly of expected loading/unloading start and finish times, and where the loading/unloading will or is likely to start/finish more than 30 minutes late, or where the loading manager is unable to advise the start or finish times. These are now explicit circumstances under which duties arise (model Act s 33(3) as substituted in s 6).
Enforcement rights and evidentiary consequences
Authorised officers and police may act where they reasonably believe the driver has committed an offence under s 28 or Part 3 and either the driver is impaired by fatigue or the offence occurred sufficiently recently to pose a fatigue risk (model Act s 107(1) as substituted in s 30(1)).
A document produced by an EWD is evidence of the matters contained in it; statements concerning the operation of the EWD made in documents purporting to be signed by involved persons are also evidence (model Act s 76B in s 23).
The existence of an approval label on a device that purports to show a certificate number is evidence that the device is an approved EWD (model Act s 74A(5) in s 21). Conversely, mislabelling or using a mislabel is an offence with a specified penalty and strict liability in certain cases (model Act s 74A(3)-(4), (6)).
Defences and limits
The reasonable‑steps defence is recast: the person must establish lack of knowledge that could reasonably have been known and either that they had taken all reasonable steps to prevent the contravention or that they could not reasonably have been expected to take any steps (model Act s 5).
For tampering charges involving interference with electronic signals to/from an EWD, there is a defence if the accused proves they were not aware and could not reasonably have been expected to be aware the activity would interfere, but this defence is not available to a driver using the EWD or to the driver’s record‑keeper (model Act s 71(8)-(9) inserted by s 19).
Strict liability and evidentiary presumptions
Several offences are designated strict liability (e.g., s 74A(6), s 76A(4)), which shifts evidential burdens and affects prosecutorial proof strategies. The label on a device is declared “evidence” of approval (model Act s 74A(5)), a procedural effect that can materially influence enforcement and litigation.
Administrative powers
The Authority can impose conditions on approvals, issue numbered certificates, treat identical systems as covered by approval, publish Gazettes permitting continued use of cancelled diaries, and require operators to supply lists (model Act ss 74(4A)-(4E), 75B, 81(3A), 87(3A)).
Collectively the duties create a compliance chain stretching from device design and labelling through vehicle operations and record‑keeping to operator governance and Authority oversight. Rights are principally evidentiary or procedural (authorisation to rely on labels, access to EWD outputs as evidence, the Authority’s conditional approval powers).
Penalties and enforcement
The model amendments add, adjust and specify penalties and enforcement thresholds across multiple provisions. The instrument blends monetary Court‑imposed penalties, infringement notice penalties, strict‑liability offences and enhanced powers for authorised officers.
Monetary penalties and infringement notices
EWD labelling and use: It is an offence to place a label indicating approval on a device that is not approved, and an offence to use a device as an EWD where the user knows (or reasonably ought to know) the device is not approved; both offences attract Court‑imposed penalties of $6,000 (model Act s 74A(3)-(4) in s 21).
Removal and notification on cancelled approvals: A person who, immediately before cancellation, held an approval must remove labels and notify recipients; failure attracts a Court‑imposed penalty of $6,000 (model Act s 75A(2) in s 22). Any person aware that a diary’s approval has been cancelled must remove labels (s 75A(3)).
Operation and maintenance of EWDs: Driver and record‑keeper offences for failing to operate/maintain the diary in accordance with manufacturer specs and Authority conditions carry Court‑imposed penalties of $6,000 each (model Act s 76A(1)-(2) in s 23). These offences are specified as strict liability (s 76A(4)).
Documentary requirements for BFM and AFM: Failure by drivers to carry the required accreditation documents is penalised. For BFM, s 80A(1) prescribes Court‑imposed penalty $2,000 and infringement notice penalty $600; the operator must ensure drivers do not contravene with the same penalty. Returning documents upon ceasing to work under accreditation carries similar penalties (model Act s 80A).
AFM driver documents: s 86(1) substitution prescribes Court penalty $2,000 and infringement notice $600 for failing to carry AFM accreditation documents (model Act s 27).
Operator reporting obligations: If the Authority requires the operator to supply the list of drivers, non‑compliance attracts Court‑imposed penalty $2,000 and infringement notice penalty $600 (model Act ss 81(3A), 87(3A) in ss 25 and 28).
Possessing false documents and false representation: A person must not represent they are working under an accreditation or exemption if it is no longer in force; Court‑imposed penalty $10,000 (model Act s 103(1A)). Possession of documents falsely purporting to be an accreditation, a copy of an accreditation, or the signed operator documents required by ss 80A(1)(b) or 86(1)(b) is a Court‑imposed penalty of $6,000 (s 103(2) substitution).
Record transfer failure: Failure to ensure EWD entries are transferred to the record‑keeper within 21 days attracts a Court‑imposed penalty of $6,000 (model Act s 62(9A) inserted by s 18(3)).
Strict liability and evidentiary consequences
The Act creates strict‑liability offences for certain EWD labelling and operation contraventions (s 74A(6); s 76A(4)), shortening the prosecution’s fault elements and potentially shifting factual burdens in prosecutions.
Documents produced by an EWD are expressly admissible as evidence (model Act s 76B), which simplifies evidentiary routes for enforcement but also shifts the evidential landscape for defence strategies.
Tampering and signal interference
The offence provisions for tampering with diaries are expanded to cover interference with electronic signals to/from electronic work diaries (model Act s 71(4A) in s 19). Subsections (8)-(9) create a limited defence for those unaware of the signalling consequences, excluding drivers and their record‑keepers from that defence.
Enforcement powers of officers
The threshold for an authorised officer or police officer to act has been re‑defined: they must reasonably believe a driver has committed an offence under s 28 or Part 3 and either is impaired by fatigue that may have been caused by the offence or the commission was sufficiently recent to risk impairment (model Act s 107(1) as substituted by s 30(1)). This reframes when an officer may intervene, including possible testing or removal of the driver from continued duties.
Timing language in officer powers is amended from “time” to “break” (model Act s 107(2) in s 30(2)), which affects the calculation of enforcement breaks and detention windows.
The duty for officers to annotate work diaries when multiple drivers are stopped is refined so the timing of any break-counting only begins once the officer begins to speak to each driver for the matter at hand (model Act s 109(4A) in s 31).
Administrative enforcement mechanisms
The Authority can publish a Gazette notice to permit continued use of diaries whose approval has been cancelled, effectively creating a compliance‑toleration mechanism that can be time‑ and condition‑limited (model Act s 75B in s 22). Such notices, and authority conditions on approvals, represent administrative levers to manage transitional or safety‑critical operational issues.
Taken together, the enforcement regime increases the number of specific, monetised penalty points (ranging from $600 infringement notices to $10,000 Court penalties) and creates a matrix of strict‑liability offences particularly around EWD labelling, operation, and documentary accuracy. The Authority’s evidentiary and administrative powers are strengthened, while authorised officers’ operational thresholds for intervention are clarified.
How it interacts with other laws
The model amendments explicitly reference and interact with other statutory constructs and administrative arrangements. Those interactions in the text are both direct (cross‑references to other Acts and sections) and structural (the model nature of the instrument).
Model legislation status and legislative architecture
The Regulations explicitly set out model legislation under section 7 of the National Transport Commission Act 2003 (Regulation 3). A note at Regulation 3 states that the model legislation does not have the force of law (Note 1). This positions the instrument as a template for jurisdictions to adopt, rather than as a federal enactment directly altering private legal rights and duties.
Relationship to the Authority and administrative law
The amendments expand the Authority’s role in approving EWD systems, issuing numbered certificates, imposing conditions and permitting continued use of cancelled diaries by Gazette notice (model Act ss 74, 74A, 75A-75B). These provisions create administrative decision points subject to procedural fairness and administrative law norms in the jurisdictions that adopt the model. The model text itself does not set out review mechanisms or appeal paths, so administrative law rights will depend on the implementing jurisdiction’s statutes and administrative‑law framework.
References to other Acts and instruments
The model Act contains explicit notes cross‑referring to other instruments, e.g., an EWD may form part of an approved intelligent transport system under the IAP Act, and the IAP Act includes an “intelligent transport system” definition (model Act s 74(3) note). The model Act also references section 44 of the “C & E Act” as empowering an authorised officer to direct production of required records (model Act s 80A note). The model text presumes existing interaction regimes between transport fatigue regulation and broader intelligent transport systems or chain and evidence statutes in the implementing jurisdiction.
The model relies on Gazette publication as a mechanism for the Authority to permit use of cancelled diaries (model Act s 75B), tying administrative publication and information flows into the compliance scheme.
Evidentiary interactions and admissibility
The amendments make statements and documents generated by EWDs admissible as evidence (model Act s 76B), which interacts with general evidence law in the implementing jurisdiction, including presumptions of authenticity, hearsay rules, and rules about computer‑generated evidence. The model Act establishes a statutory route to admissibility; how that interacts with evidentiary rules depends on the jurisdictional implementation and courts’ reception.
Overlap with criminal and regulatory sanctions
Several offences are designated strict liability and carry Court‑imposed penalties. The interplay between strict liability under the model Act and general criminal law or quasi‑criminal enforcement in jurisdictions will determine prosecutorial standards and potential constitutional or procedural limits on strict liability importation.
Administrative reporting and privacy frameworks
Operator duties to supply driver lists and driver details to the Authority on request (ss 81(3A), 87(3A)) will engage privacy and records regimes applicable in the adopting jurisdiction. The model Act does not itself define privacy safeguards; those will be located in the implementing regime.
Interplay with existing fatigue regulatory architecture
The model Act repeals the statutory Fatigue Authorities Panel in the 2006 Act and replaces the definition in the Dictionary with a rule‑based Panel established by Fatigue Authorities Panel Rules made by the National Transport Commission (model Act s 32 and s 33). This moves the Panel’s legal basis from primary legislation into rule‑making by an administrative body, changing institutional arrangements and potentially affecting points of democratic or legislative accountability.
In summary, the model amendments are designed to slot into an architecture of transport, administrative and evidence law in each adopting jurisdiction. Key interaction points are the Authority’s administrative powers, the use of Gazette notices, evidence admissibility of EWD outputs, data transfer obligations (interacting with privacy law), and the shift of the Panel’s establishment from statute to rules. The model text leaves many procedural and remedial contours to the adopting jurisdiction and assumes existing administrative and evidence regimes to give practical effect to the changes.
Amendment history
This instrument itself is a model‑amendment package, and its own amendment history within the provided text is limited. The Regulations at the start set out that they are the National Transport Commission (Model Amendments Act: Heavy Vehicle Driver Fatigue,Package No. 2) Regulations 2009 and that Schedule 1 contains model legislation to amend the principal model legislation (Regulation 3). The Regulations also state that the principal model legislation is the model legislation from the 2007 Regulations as if amended by Package No. 1 (2008) (Regulation 3(2)), so the present package follows prior model amendments (Package No. 1) and is part of a sequence of model drafting.
Key metadata and approval steps recorded in the text:
The model Act records that it was approved by the Australian Transport Council on 28 March 2008 (model Act s 3).
The Regulations include statutory notes that the model legislation does not have the force of law (Regulation 3 note 1), that the Regulations are not subject to disallowance (Regulation 3 note 2), and are not subject to sunsetting (Regulation 3 note 3), reflecting the status of the Regulations as not parliamentary instruments in the usual sense.
The model amendments repeatedly amend specific sections of the 2006 Act; the text of each amendment indicates prior provisions being substituted or expanded. For instance:
Section 5 substitutes new text into the reasonable‑steps defence provision (replacing existing s 24(a)-(b)).
Sections 6-11 and 15-19 replace or insert new advisory, table and tabular entries and new subsections in a number of parts of the 2006 Act.
Sections 20-23 and 74-76 insert or replace provisions dealing with EWD approvals, labelling, operation and admission of documents.
Because the Regulations are model legislation intended to be adopted by States/Territories, the history of actual legal enactment depends on jurisdictional adoption. The model document itself contains no subsequent catalogue of amendments to these model amendments; it is a snapshot of the Package No. 2 proposals. The only chronological markers in the provided text are the dates of approval by the ATC (28 March 2008) and the instrument’s identification as a 2009 Regulation.
In practice, jurisdictions will adopt, vary or decline to adopt the model changes. The model text records foundational cross‑references to Package No. 1 and the 2007 model, which indicates an iterative drafting process across multiple packages. The model does not set out competence or transition mechanics for jurisdictions that adopt the model or detail retrospective application, so those rollout decisions and transitional arrangements will be a matter for implementing statutes in each jurisdiction.
Litigation history
The provided model legislation contains no litigation history, no citations to case law, and no recorded judicial decisions. The text does not cite any judicial interpretation or precedent; in places it inserts evidentiary presumptions and strict‑liability offences where the legislative intent is expressed by the amendment language (e.g., s 74A(5) treats a label as evidence of approval; s 76B treats a document produced by an EWD as evidence of the matters contained).
Because the package is model legislation and not a codified, jurisdictional statute in itself (see Regulation 3 note 1), there is no case law attached to the model instrument in the provided text. The absence of litigation history in the model text produces practical consequences:
Implementing jurisdictions will generate the first instances of statutory interpretation and evidentiary challenges when these provisions enter active enforcement. Questions likely to arise (though not canvassed in the text) include judicial reception of statutory presumptions (e.g., label as evidence), the reach of strict‑liability offences, admissibility and weight of EWD‑generated documents under local evidence rules, and fair‑process issues where administrative conditions or Gazette notices determine transitional permission for cancelled diaries.
The newly introduced 21‑day transfer obligation for EWD entries (model Act s 62(9A)) and its $6,000 penalty will likely generate early procedural challenges around what constitutes “transfer”, timing, and due diligence expectations for record‑keepers and outsourced entities.
The tampering provision expanded to cover signals to/from EWDs and the limited defence (model Act s 71(8)-(9)) may produce litigation on the scope of “awareness” and the evidential burden to establish or rebut the defence.
But the model Act itself records no examples or past litigation; therefore any litigation consequences must be inferred as potential based on the textual changes. The text’s evidential and strict‑liability mechanisms, however, are specifically designed to ease prosecutors’ evidentiary route (s 74A(5) and s 76B), so early enforcement action in adopting jurisdictions is plausible and will produce the first judicial interpretations.
Gotchas
The model package contains specific drafting choices that produce distinct compliance traps, evidentiary presumptions and administrative obligations. These are the practical “gotchas” to watch for when advising clients or preparing implementation plans.
Label as evidence and strict liability (model Act s 74A)
A label on a device that purports to show a certificate number is statutory evidence that the device is an approved EWD (s 74A(5)). Practically, this creates a presumption favouring the prosecution; a person who acquires or uses a labelled device may need to prove the absence of genuine approval to rebut the presumption. The Act also makes mislabelling and use of mislabelled devices offences (s 74A(3)-(4)) with $6,000 penalties and strict liability for certain offences (s 74A(6)).
Consequently, suppliers must have tight controls to ensure labels reflect current approvals, and operators/users need to have processes to verify approval numbers rather than merely rely on visual labels, because reliance is only permitted unless the person “knows, or reasonably ought to know” the thing is not subject to current approval (model Act s 56(5A) inserted by s 14).
Cancelled approvals and the Gazette escape valve (model Act ss 75A-75B)
When the Authority cancels an approval, holders must remove labels and notify persons supplied with diaries and recipients must remove labels if aware of cancellation (s 75A). Failure attracts a $6,000 penalty. But s 75B allows the Authority to permit continued use of cancelled diaries by Gazette notice. This creates a two‑tier compliance matrix: compliance obligations persist unless the Authority expressly authorises continued use. Firms must track cancellations and any Gazette permissions carefully to avoid liability.
Strict‑liability operation offences (model Act s 76A)
Drivers and record‑keepers must operate EWDs per manufacturer specs and Authority conditions, with strict‑liability penalties of $6,000. The model Act provides narrow defences (for manufacturer specifications not integral to operation or where industry practice supports non‑compliance). Practitioners should note that strict liability shifts proof burdens and increases prosecution success chances where a specification breach is shown.
Transfer deadline for EWD entries (model Act s 62(9A))
EWD data recorded for a given day must be transferred to the record‑keeper within 21 days or face a $6,000 Court penalty. The term “transferred, or otherwise given” could generate disputes over method, format, or sufficiency of transfer (e.g., push vs pull mechanisms, partial transfers, or machine‑readable standards). The outsourcing provision (s 62(2A)-(2B)) means both the record‑keeper and the outsourced provider may face liability. Contracts should therefore allocate responsibility precisely and include standards for transfer.
Tampering and signal interference (model Act s 71(4A), (8)-(9))
Tampering now expressly includes electronic signal interference. A limited defence exists if the accused proves they were not aware, and could not reasonably be expected to be aware, that their activity would interfere with the signal, but this does not apply to drivers using the diary or the driver’s record‑keeper. The exception for drivers and record‑keepers narrows the availability of a mistake‑of‑fact defence for the parties most likely to handle EWDs daily.
Default base rule (model Act s 55(1A) in s 12)
If a driver has not recorded a base in the work diary, the driver’s base for Act purposes defaults to the garage address of the vehicle. This is a crisp default that may not match contractual arrangements or employers’ expectations; drivers and operators must ensure bases are recorded accurately to avoid enforcement consequences based on a statutory default calculation.
Evidence admissibility of EWD outputs (model Act s 76B)
EWD‑produced documents are treated as evidence of the matters contained. While that eases prosecution evidence gathering, it raises potential defence challenges about provenance, integrity and system configuration. The statutory rule may influence courts’ reception of secondary challenges, but the model Act’s statement is a starting point for evidentiary fights about reliability.
Operators’ reporting duties (model Act ss 81(3A), 87(3A))
Operators can be compelled by the Authority to provide driver lists; failure incurs monetary penalties. Operators should maintain up‑to‑date lists and processes for rapid production to avoid penalties.
False representation and possession offences (model Act s 103)
Higher penalties ($10,000 for false representation that an accreditation is in force and $6,000 for possessing falsified accreditation documents) make fraudulent documentation a high‑risk exposure; procedures for document retention and return on cessation of accreditation should be formalised.
Annotation timing for multi‑driver stops (model Act s 109(4A))
Officers’ annotations start when the officer begins to speak to an individual driver about the matter. In multi‑driver stops where detentions may be lengthy, the counting mechanics can influence liability and fatigue‑impaired status. Drivers and operators should ensure procedures to record arrival and interaction times accurately.
In sum, the most acute operational “gotchas” revolve around label presumption and strict liability, the 21‑day data transfer deadline, the narrowness of tampering defences for drivers and record‑keepers, and the implications of the garage address default for a driver’s base. Each of these built‑in presumptions and deadlines transfers implementation risk and compliance burdens to private actors.
How to comply
Preparing a compliance programme for jurisdictions that adopt these model amendments requires attention to documentary controls, device lifecycle management, data flows, contractual allocation of liabilities, and operational protocols for drivers and loading managers. Below are concrete compliance tasks mapped to the statute.
EWD procurement, approval and labelling
Maintain an approvals register: For each EWD device/system used, maintain a record of the Authority approval certificate number, approval conditions, the date of approval and any Gazette notices permitting continued use after cancellation (model Act ss 74(4A)-(4E), 75B). Cross‑check labels on devices with the Authority’s approvals register to confirm the label corresponds to a current approval.
Label control and removal processes: Implement procedures for immediate removal of labels and customer notifications if an approval is cancelled. If your organisation is the approval holder or supplier, ensure contractual clauses mandate obligations to remove labels and notify recipients in compliance with s 75A(2).
Device operation and maintenance
Manufacturer specification compliance: Ensure written maintenance schedules, operator checklists and training that align with manufacturers’ specifications and any Authority conditions. As s 76A(3) allows limited defences where specs are non‑integral or industry practice permits departures, document any decisions not to follow a manufacturer spec and the industry practice justification.
Driver prompts and monitoring: Configure EWDs to indicate to drivers when the system is properly functioning and when data has been sent to the record‑keeper (model Act s 74(3)(b), (f)). Establish driver training and induction that covers these indicators and operator expectations.
Record‑keeping and the 21‑day transfer rule
Data transfer protocols: Adopt technical protocols and service‑level agreements to ensure EWD records are transferred to the record‑keeper within 21 days of the recording day (model Act s 62(9A)). Define “transfer” in contracts (e.g., successful server push and receipt with checksum, or secure FTP with delivery receipt) and maintain logs as proof of transfer dates.
Outsourcing contracts: Where outsourcing is used, include indemnities, warranties and detailed performance metrics allocating responsibility for timely transfer and for data integrity. Under s 62(2B), the outsourced person can be directly liable for duties covered by the engagement, so contractual allocation must be explicit.
Driver and operator documentary requirements
Accreditation document packs: For all drivers working under BFM/AFM accreditations, maintain pre‑prepared, operator‑signed documents including a copy of the operator’s accreditation certificate and a signed induction document confirming the driver meets requirements (model Act ss 80A(1), 86(1)). For AFM drivers keep documents describing AFM hours allowed.
Document carriage checks: Implement pre‑trip checklists and supervisor verification processes so drivers carry required documents. Include return procedures when a driver ceases to work under an accreditation or when the operator’s accreditation changes or ends (model Act s 80A(3), s 86(2A), s 82(1A)).
Tampering risk management
Systems hardening and change controls: Maintain strict change control processes for software/hardware that interacts with EWDs; document any testing and changes that could affect signals to/from EWDs. For activities that may affect electronic signals (e.g., telematics integration), perform an impact assessment and ensure staff are trained in the possibility their actions could amount to tampering under s 71(4A).
Clear incident reporting: Where a person believes they have unintentionally interfered, record contemporaneous evidence that they lacked knowledge and could not reasonably have been expected to know of the interference (the facts a court would examine under s 71(8)). Note that this defence is not available to drivers or record‑keepers (s 71(9)).
Operational adjustments for loading managers and drivers
Loading/unloading schedules and communication: Ensure the role of the loading manager is understood, including obligations to advise start/finish times and to record when they cannot advise such times or when delays exceed 30 minutes (model Act s 33(3) substitution). Keep written communications and logs demonstrating when drivers were advised or when managers became aware of likely delays.
Work diary base recording: Ensure drivers record their base in the work diary. If not recorded, the default is the vehicle’s garage address (model Act s 55(1A)); track garage‑address accuracy with leases or vehicle registration documents.
Evidence and audit readiness
Logging and retention: Keep retained copies of EWD outputs and transfer receipts for audit and enforcement, given statutory admissibility of EWD documents (model Act s 76B). Implement chain‑of‑custody and integrity checks so that evidentiary weight is less susceptible to successful defence challenges.
Internal compliance audits: Run periodic reviews to confirm EWD approvals remain current, labels match approval numbers, driver lists supplied to the Authority (if required) are accurate and current, and data transfer deadlines are met.
Policy and governance
Nominate accountable roles: Assign clear responsibility for EWD approvals, label management, driver induction certificates, operator reporting obligations and record‑keeper contractual oversight. These roles should coordinate with IT, safety, fleet and HR functions.
Training and incident response: Train drivers, loading managers and record‑keepers on the new statutory duties, especially for EWD operation, tampering risks, and documentary carriage requirements. Have incident response templates to remove labels or return documentation immediately when accreditations change or cancel.
Contracting practicalities
Include representations and warranties from suppliers that devices bear correct labels and will be supported in the event of approval cancellation; include indemnities for mislabelling and failure to remove labels.
For outsourced record‑keeping, include express obligations to transfer entries within 21 days, to maintain delivery logs and to accept direct liability where the outsourced provider performs record‑keeper obligations.
These concrete steps follow the statute’s mechanics: labels and approvals (s 56(5), s 74A), operation and maintenance (s 76A), transfer deadlines (s 62(9A)), documentation carriage (s 80A, s 86(1)), outsourcing liability (s 62(2A)-(2B)), and tampering definitions and defences (s 71(4A), (8)-(9)). Implementing a compliance programme tailored to these provisions reduces exposure to the specified Court‑imposed penalties and infringement notices.
This Act amends the Road Transport (Heavy Vehicle Driver Fatigue) Act 2006.
5. Change to the reasonable steps defenc 5. Change to the reasonable steps defence
5. Change to the reasonable steps defence
For sections 24(a) and (b) substitute –
“(a) the person did not know, and could not reasonably be expected to have known, of the contravention concerned; and
(b) either:
(i) the person had taken all reasonable steps to prevent the contravention concerned; or
(ii) the person could not reasonably be expected to have taken any steps to prevent the contravention concerned.”.
6. Duties on loading managers 6. Duties on loading managers
6. Duties on loading managers
For sections 33(3)(a) and (b) substitute –
“(a) has advised the driver, either directly or indirectly, of when the loading or unloading of the vehicle is to start, and the loading manager or person becomes aware that the loading or unloading will, or is likely to, start more than 30 minutes late; or
(b) has advised the driver, either directly or indirectly, of when the loading or unloading of the vehicle is to finish, and the loading manager or person becomes aware that the loading or unloading will, or is likely to, finish more than 30 minutes late; or
(c) is unable to advise the driver of when the loading or unloading of the vehicle is to start; or
(d) is unable to advise the driver of when the loading or unloading of the vehicle is to finish;”.
7. Change to how short rest breaks may b 7. Change to how short rest breaks may be taken
7. Change to how short rest breaks may be taken
(1) In section 44(6), in the table –
(a) in the item relating to a total period (column 1) of 5½ hours, in column 3 omit “stationary”;
(b) in the item relating to a total period (column 1) of 8 hours, in column 3 omit “stationary”;
(c) in the item relating to a total period (column 1) of 11 hours, in column 3 omit “stationary”.
(2) In section 45(6), in the table –
(a) in the item relating to a total period (column 1) of 5½ hours, in column 3 omit “stationary”;
(b) in the item relating to a total period (column 1) of 8 hours, in column 3 omit “stationary”;
(c) in the item relating to a total period (column 1) of 11 hours, in column 3 omit “stationary”.
(3) In section 49(6), in the table –
(a) in the item relating to a total period (column 1) of 6¼ hours, in column 3 omit “stationary”;
(b) in the item relating to a total period (column 1) of 9 hours, in column 3 omit “stationary”;
(c) in the item relating to a total period (column 1) of 12 hours, in column 3 omit “stationary”.
8. Other changes concerning rest breaks 8. Other changes concerning rest breaks
8. Other changes concerning rest breaks
(1) In section 46(6), in the table, in the item relating to a total period (column 1) of 24 hours, in column 3 omit “or is stationary”.
(2) In section 46(6), in the table, in the item relating to the total period (column 1) of 7 days, in column 4 –
(a) for “≤58½ hrs work time” substitute “>60 hrs but not >61½ hrs work time”;
(b) for “>58½ hrs but not >57½ hrs work time” substitute “>61½ hrs but not >62½ hrs work time”;
(c) for “>57½ hrs but not >57 hrs work time” substitute “>62½ hrs but not >63 hrs work time”;
(d) for “>57 hrs work time” substitute “>63 hrs work time”.
(3) In section 46(6), in the table, in the item relating to the total period (column 1) of 14 days, in column 4 –
(a) for “≤118½ hrs work time” substitute “>120 hrs but not >121½ hrs work time”;
(b) for “>118½ hrs but not >117½ hrs work time” substitute “>121½ hrs but not >122½ hrs work time”;
(c) for “>117½ hrs but not >117 hrs work time” substitute “>122½ hrs but not >123 hrs work time”;
(d) for “>117 hrs work time” substitute “>123 hrs work time”.
9. BFM hours — correction of error 9. BFM hours — correction of error
9. BFM hours – correction of error
In section 51(6), in the table, in the item relating to the total period (column 1) of 7 days, in column 4 –
(a) for “≤68½ hrs work time” substitute “>70 hrs but not >71½ hrs work time”;
(b) for “>68½ hrs but not >67½ hrs work time” substitute “>71½ hrs but not >72½ hrs work time”;
(c) for “>67½ hrs but not >67 hrs work time” substitute “>72½ hrs but not >73 hrs work time”;
(d) for “>67 hrs work time” substitute “>73 hrs work time”.
10. BFM hours 10. BFM hours
10. BFM hours
(1) In section 51(5), after “subsection” insert “(2) or”.
(2) In section 51(6), in the table, in the item relating to the total period (column 1) of 24 hours, in column 3 omit –
(a) “10 hrs stationary rest time, or”; and
(b) “10 hrs rest time in an approved sleeper berth while the vehicle is moving or is stationary”.
11. Change to AFM hours penalties for pe 11. Change to AFM hours penalties for periods of 7 days or more
11. Change to AFM hours penalties for periods of 7 days or more
(1) In sections 52(2) and (3), in the penalty, for “column 3” substitute “column 4”.
(2) In section 52(5), after “subsection” insert “(2) or”.
(3) In section 52(6), for the table substitute –
“AFM hours—Penalties
Column 1Total period
Column 2Maximum work
Column 3Minimum rest time
Column 4Offence category
In any period of …
If a driver has exceeded the maximum work time by …
If a driver has had less than the minimum rest time by …
… the following category of offence is committed …
Less than 7 days
45 mins work time
45 mins rest time
minor risk
> 45 but 75 mins work time
> 45 but 75 mins rest time
substantial risk
> 75 but 90 mins work time
> 75 but 90 mins rest time
severe risk
> 90 mins work time
> 90 mins rest time
critical risk
7 days or more
1½ hours work time
minor risk
> 1½ but 2½ hours work time
substantial risk
> 2½ but 3 hours work time
severe risk
> 3 hours work time
critical risk
”.
(3) In sections 52A(2) and (3), in the penalty, for “column 3” substitute “column 4”.
(4) In section 52A(6), for the table substitute –
“AFM outer limits—Penalties
Column 1Total period
Column 2Maximum work
Column 3Minimum rest time
Column 4Offence category
In any period of …
If a driver has exceeded the maximum work time by …
If a driver has had less than the minimum rest time by …
… the following category of offence is committed …
Less than 7 days
15 mins work time
15 mins rest time
substantial risk
> 15 mins but 30 mins work time
> 15 but 30 mins rest time
severe risk
> 30 mins work time
> 30 mins rest time
critical risk
7 days or more
30 mins work time
substantial risk
> 30 mins but 1 hour work time
severe risk
> 1 hour work time
critical risk
”.
12. Driver base 12. Driver base
12. Driver base
(1) For section 55(1) substitute –
“(1) The base of a driver of a regulated heavy vehicle, in relation to particular work, is the place from which he or she normally does the work.
(1A) Despite subsection (1), if a driver has not recorded a base in his or her work diary in relation to particular work, for the purposes of this Act the driver’s base in relation to that work is the garage address of the vehicle.”.
(2) For section 57(3)(f) substitute –
“(f) details of his or her base, unless he or she has previously recorded those details in relation to the work and they are still current; and”.
13. Driver must carry work diary 13. Driver must carry work diary
13. Driver must carry work diary
In section 56(2), in note 1, after “record.” insert “Section 59 does not apply if a driver forgets to take a work diary on a journey – in that circumstance the driver is liable to be prosecuted under this subsection.”.
14. Definition of electronic work diary 14. Definition of electronic work diary
14. Definition of electronic work diary
(1) For section 56(5) substitute –
“(5) An electronic work diary is any system of recording information electronically:
(a) that has attached to each device that forms part of the system a label:
(i) that indicates that the device is, or is part of, an electronic work diary that is the subject of a current approval of the Authority under section 74; and
(ii) that states the number of the certificate of approval issued by the Authority in respect of the approval; and
(iii) that is in a form approved by the Authority; and
(b) that is the subject of a current approval of the Authority under section 74.
(5A) For the purposes of this Act, a person is entitled to rely on a label that appears to comply with subsection (5)(a) unless he, she or it knows, or reasonably ought to know, that the thing is not the subject of a current approval of the Authority under section 74.”.
15. Information that must be recorded in 15. Information that must be recorded in a work diary
15. Information that must be recorded in a work diary
For sections 57(4)(f)(iii) and (iv) substitute –
“(iii) except in the case of a shared electronic work diary, the security or other identifying number of the other driver’s work diary and the name of the participating jurisdiction that issued that diary.”.
16. Destroyed, lost, stolen or malfuncti 16. Destroyed, lost, stolen or malfunctioning work diaries
16. Destroyed, lost, stolen or malfunctioning work diaries
(1) In section 59(3) –
(a) after “has been” insert “filled up,”;
(b) after “written notice” insert “, in a form approved by the Authority,”.
(2) After section 59(4) insert –
“(4A) If a driver gives a work diary to the Authority under subsection (4), the Authority must:
(a) cancel any unused daily sheets in the diary; and
(b) return the diary to the driver.”.
17. Outsourcing of record keeping 17. Outsourcing of record keeping
17. Outsourcing of record keeping
(1) After section 62(2) insert –
“(2A) Despite subsection (2), a record keeper may engage the services of another person to carry out some or all of the record keeper’s functions as a record keeper under this Act.
(2B) If such an engagement occurs:
(a) the record keeper remains liable for all obligations imposed on the record keeper under this Act; and
(b) the other person is also liable under this Act, in respect of any obligation imposed on the record keeper as a record keeper that is covered by the terms of the engagement, as if he, she or it was the record keeper.”.
18. Recording of information by record k 18. Recording of information by record keeper
18. Recording of information by record keeper
(1) In section 62(3)(a), after “record” insert “ the following information as soon as possible after receiving it”.
(2) After section 62(8) insert –
“(8A) Subsection (8) does not apply with respect to any entries that are transferred from an electronic work diary to the record keeper within the 21 day period referred to in that subsection.”.
(3) After section 62(9) insert –
“(9A) If a driver uses an electronic
This is an opening excerpt, not the complete document.