23What are reasonable steps

23 What are reasonable steps

(1) Where a provision of this Act requires a person to take all reasonable steps to do a specified thing or achieve a specified outcome, the person must: (a) identify and assess, on a regular basis, the risks to doing that thing or achieving that outcome; and

Note: Examples of ways to identify and assess risks

• consulting drivers, other parties in the chain of responsibility, unions and industry associations about those risks
• reviewing driving or work schedules and work records, including opportunities for rest breaks
• reviewing loading and unloading times and delays at loading and unloading places
• reviewing contractual arrangements and documentation relating to the consignment and delivery of goods
• regular health and safety audits
• regularly assessing driver fitness for duty
• analysing injury and incident reports
(b) manage those risks.

(2) Managing a risk means: (a) taking reasonable steps to eliminate the risk; or (b) if it is not reasonably practicable to eliminate or prevent the risk—taking reasonable steps to reduce the risk, or to minimise the likelihood of the risk eventuating.

Note: Examples of ways to manage risks

• workplace procedures and policies that relate to fatigue and compliance with work/rest hours
• contingency planning in relation to fatigue and work/rest hours
• a program to report and monitor fatigue‑related incidents, risks and hazards
• a program for assessing driver fitness for duty
• training and information for drivers, staff and parties in the chain of responsibility about fatigue and compliance with work/rest hours
• appropriate supervision and management of drivers, staff and parties in the chain of responsibility
• scheduling arrangements that take account of fatigue risks and work/rest hours
• allowing for traffic or other delays in scheduling
• a system for giving drivers sufficient notice of schedule changes
• a system to maintain equipment, work systems and work records
• compliance assurance conditions in relevant commercial arrangements with other parties in the chain of responsibility
• avoiding incentives or demands in commercial arrangements that may cause, permit, encourage or contribute to fatigue or breaches of work/rest hours
• a system for monitoring and remedying problems related to fatigue and work/rest hours

Note: Section 185 of the C & E Act voids any term of a contract or agreement that purports to exclude, limit or modify the operation of that Act. This section also applies to this Act—see section 6 above.

(3) The court may have regard to anything that it considers to be relevant when it is deciding whether things that the person did, or did not do, were reasonable steps, including: (a) the nature of the risk that the person was attempting to, or should have been attempting to, address; and (b) the likelihood of that risk eventuating and the degree of harm that would result if it did eventuate; and (c) if a driver has driven while impaired by fatigue or in breach of the work/rest hours—the circumstances of the offence (e.g. the risk category that the offence belongs to); and (d) the degree to which the person (either personally or through an agent or employee) had the ability to eliminate, prevent or reduce the risk or to minimise likelihood of the risk eventuating; and (e) the experience, expertise and knowledge that the person, or the person’s agent or employee, had or ought reasonably have had; and (f) the availability and suitability of ways to eliminate, prevent or reduce the risk or to minimise the likelihood of the risk eventuating; and (g) the body of fatigue knowledge. (4) Evidence that the person had complied with a registered industry code of practice in relation to the matters that the offence relates to, is evidence that the person had taken reasonable steps.

Note: Industry codes of practice may be registered under section 179 (Registration of industry codes of practice) of the C & E Act or under a corresponding road law.

(5) However, a person who is charged with an offence may rely on subsection (4) only if the person serves a notice of intention to do so on the prosecution at least 28 days before the day on which the hearing for the offence is to start.