TLIF0002: Administer chain of responsibility policies and procedures

where—

D is the shortest distance, expressed in metres, that would be travelled by a heavy vehicle on the road between the 2 points;

T is the time, expressed in seconds (including any part of a second), that has elapsed between the heavy vehicle passing the first and second points.

Example

In 16·2 seconds a heavy vehicle travels between two points that are 400 metres apart. 400 × 3·6 divided by 16·2 equals 88·9 or, when rounded down to the next whole number, gives a result of 88. Therefore, for the purpose of subsection (1), the average speed of the heavy vehicle is 88 kilometres per hour.

(3) This section does not derogate from any other mode of proof of the speed of the heavy vehicle.

(4) For the purpose of a proceeding for an offence against the Heavy Vehicle National Law (Victoria) or national regulations, in which the speed at which a heavy vehicle travelled is relevant, if a heavy vehicle that is being towed is attached to a heavy vehicle, the heavy vehicle and the towing heavy vehicle are to be taken to be travelling at the same speed.

s. 33

(1) A certificate in the prescribed form purporting to be issued by an approved surveyor certifying as to the shortest distance, expressed in metres, that would be travelled by a heavy vehicle on a road between 2 points is admissible in evidence in a proceeding for an offence against the Heavy Vehicle National Law (Victoria) or national regulations and, in the absence of evidence to the contrary, is proof of that distance.

(2) In this section—

approved surveyor means a licensed surveyor approved under section 78A(2) of the Road Safety Act 1986;

prescribed means prescribed in regulations made under the Road Safety Act 1986 for the purposes of section 78A of that Act.

s. 34

(1) If, in a proceeding for an offence against the Heavy Vehicle National Law (Victoria) or national regulations, the speed at which a heavy vehicle travelled on any occasion is relevant, evidence of the speed of the heavy vehicle as indicated or determined on that occasion by a prescribed road safety camera or prescribed speed detector when tested, sealed and used in the prescribed manner is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the heavy vehicle on that occasion.

(2) For the purpose of a proceeding for an offence against the Heavy Vehicle National Law (Victoria) or national regulations in which the speed at which a heavy vehicle travelled on any occasion is relevant, if a heavy vehicle that is being towed is attached to another heavy vehicle, the heavy vehicle and the towing heavy vehicle are to be taken to be travelling at the same speed.

(3) In this section—

prescribed means prescribed in regulations made under the Road Safety Act 1986 for the purposes of section 79 of that Act.

(1) If, in a proceeding for an offence against the Heavy Vehicle National Law (Victoria) or national regulations, any information held in a heavy vehicle's engine management system is relevant, any representation of that information derived from an engine management system reading device specified by the regulations is to be presumed, in the absence of evidence to the contrary, to be an accurate record of that information if the device is operated in the manner specified for that device in the regulations and the information is derived in accordance with the regulations.

(2) In this section—

the regulations means regulations made under the Road Safety Act 1986 for the purposes of section 79A of that Act.

s. 36

(1) If, in a proceeding for an offence against section 204, 205, 206, 207, 208, 209, 210, 211, 212, 213 or 219 of the Heavy Vehicle National Law (Victoria) the speed at which a heavy vehicle travelled on any occasion is relevant, evidence of the speed of the heavy vehicle as indicated or determined on that occasion by—

(a) a prescribed road safety camera when tested, sealed and used in the prescribed manner; or

(b) an image or message produced by a prescribed road safety camera when tested, sealed and used in the prescribed manner; or

(c) an image or message produced by a prescribed process when used in the prescribed manner—

is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the heavy vehicle on that occasion.

(2) For the purpose of a proceeding for an offence against section 204, 205, 206, 207, 208, 209, 210, 211, 212, 213 or 219 of the Heavy Vehicle National Law (Victoria) in which the speed at which a heavy vehicle travelled on any occasion is relevant, if a heavy vehicle that is being towed is attached to another heavy vehicle, the heavy vehicle or towed heavy vehicle and the towing heavy vehicle are to be taken to be travelling at the same speed.

(3) If, in a proceeding for an offence against section 204, 205, 206, 207, 208, 209, 210, 211, 212, 213 or 219 of the Heavy Vehicle National Law (Victoria), the speed limit at the time and place at which a heavy vehicle travelled on any occasion is relevant, evidence of the speed limit at that time and place as indicated or determined on that occasion by an image or message produced by a prescribed process when used in the prescribed manner is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed limit on that occasion.

(4) In this section—

prescribed means prescribed in regulations made under the Road Safety Act 1986 for the purposes of section 81 of that Act.

s. 37

(1) In a proceeding for an offence against the Heavy Vehicle National Law (Victoria) or national regulations, a certificate in the prescribed form to the effect that any prescribed speed detector referred to in section 34 has been tested or sealed in the prescribed manner, signed or purporting to be signed by a person authorised to do so by the regulations is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof that the prescribed speed detector or device has been so tested or sealed.

(2) In this section—

prescribed means prescribed in regulations made under the Road Safety Act 1986 for the purposes of section 83 of that Act.

s. 38

(1) A certificate containing the prescribed information purporting to be issued by an authorised person certifying—

(a) that a prescribed road safety camera was tested, sealed or used in the prescribed manner; or

(b) that an image or message described in the certificate was produced by a prescribed road safety camera or by a prescribed process; or

(c) as to any other matter that appears in, or that can be determined from, the records kept in relation to the prescribed road safety camera or the prescribed process by the police force of Victoria—

is admissible in evidence in a proceeding for an offence against the Heavy Vehicle National Law (Victoria) or national regulations and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.

(2) In this section—

authorised person means a person authorised for the purposes of section 83A of the Road Safety Act 1986 by the Chief Commissioner of Police;

prescribed means prescribed in regulations made under the Road Safety Act 1986 for the purposes of section 83A of that Act.

s. 38

__________________

s. 39

This Part applies for the period beginning on the commencement of section 4 and ending on the commencement of section 53.

Chapter 2 of the Heavy Vehicle National Law set out in the Schedule to the Heavy Vehicle National Law Act 2012 of Queensland does not apply as a law of this jurisdiction.

The Heavy Vehicle National Law (Victoria) applies as if for the definition of GCM in section 5 of that Law there were substituted—

" GCM has the same meaning as in the Road Safety Act 1986.".

The Heavy Vehicle National Law (Victoria) applies as if for the definition of GVM in section 5 of that Law there were substituted—

" GVM has the same meaning as in the Road Safety Act 1986.".

(1) The Heavy Vehicle National Law (Victoria) applies as if for the definition of registration in section 5 of that Law there were substituted—

" registration , of a heavy vehicle, means registration of the vehicle under the Road Safety Act 1986.".

(2) The Heavy Vehicle National Law (Victoria) applies as if a reference to registration under that Law were a reference to registration under the Road Safety Act 1986.

s. 44

The Heavy Vehicle National Law (Victoria) applies as if for the definition of registration exemption in section 5 of that Law there were substituted—

" registration exemption means an exemption under the Road Safety Act 1986 from the requirement for a heavy vehicle to be registered.".

The Heavy Vehicle National Law (Victoria) applies as if for the definition of registration number in section 5 of that Law there were substituted—

" registration number , for a heavy vehicle, means letters, numbers or characters, or a combination of one or more letters, numbers or characters, assigned to a heavy vehicle under the Road Safety Act 1986.".

The Heavy Vehicle National Law (Victoria) applies as if for the definition of vehicle register in section 5 of that Law there were substituted—

" vehicle register means the register of motor vehicles and trailers under the Road Safety Act 1986.".

s. 47

The Heavy Vehicle National Law (Victoria) applies as if for the definition of unregistered heavy vehicle permit in section 5 of that Law there were substituted—

" unregistered heavy vehicle permit means a short term unregistered vehicle permit issued by the Roads Corporation under the Road Safety Act 1986 or under regulations made under that Act.".

The Heavy Vehicle National Law (Victoria) applies as if for section 60(3) and (4) of that Law there were substituted—

"(3) A person does not commit an offence against subsection (1) in relation to a heavy vehicle's noncompliance with a heavy vehicle standard if, and to the extent, the noncompliance relates to a noncompliance known to the Roads Corporation when the vehicle was registered under the Road Safety Act 1986.

(4) For the purposes of subsection (3), the Roads Corporation is taken to know of a heavy vehicle's noncompliance with a heavy vehicle standard when the vehicle was registered under the Road Safety Act 1986 if the noncompliance is mentioned in—

(a) an operations plate that was installed on the vehicle when it was registered; or

(b) a certificate of approved operations issued for the vehicle and in force when the vehicle was registered; or

(c) a document obtained by the Roads Corporation under the Road Safety Act 1986 in connection with the registration of the vehicle.".

s. 49

The Roads Corporation may register a heavy vehicle under the Road Safety Act 1986 if the Regulator has granted a vehicle standards exemption (notice) for the category of heavy vehicle or granted a vehicle standards exemption (permit) to the person who applies to be a registered operator under the Heavy Vehicle National Law (Victoria).

The Roads Corporation may cancel the registration of a vehicle under the Road Safety Act 1986 if a vehicle standards exemption (notice) for the category of heavy vehicle or a vehicle standards exemption (permit) granted to the registered operator, is cancelled or suspended under the Heavy Vehicle National Law (Victoria).

The Heavy Vehicle National Law (Victoria) applies as if for section 527(1)(i) of that Law there were substituted—

"(i) that, if the notice is not cleared by the Regulator under section 530, the vehicle's registration may be suspended and subsequently cancelled by the Roads Corporation;".

s. 52

The Heavy Vehicle National Law (Victoria) applies as if for section 598(5) of that Law there were substituted—

"(5) The court is to ensure that the Roads Corporation is notified of the decision to make an order under subsection (2) or (3) and the terms of the order, but failure to do so does not invalidate the decision or the order.".

This Part is repealed.

__________________

s. 54

(1) The Governor in Council may make regulations for or with respect to—

(a) prescribing offences for the purposes of section 591 of the Heavy Vehicle National Law (Victoria);

(b) prescribing a notice that may be served under section 591 of the Heavy Vehicle National Law (Victoria);

(c) for any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) Regulations made under this section may—

(a) be of limited or general application; and

(b) leave any matter or thing to be decided by a specified person or class of person.

(3) The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application and savings nature, arising as a result of the enactment of this Act, including any repeals and amendments made as a result of the enactment of this Act.

(4) Regulations made under subsection (3) may have a retrospective effect to a day on or after the day of the commencement of section 4.

(5) To the extent that regulations made under subsection (3) have a retrospective effect, the regulations do not operate so as—

(a) to affect, in a manner prejudicial to any person (other than this jurisdiction or an authority of this jurisdiction), the rights of that person existing before the date of the regulations coming into operation; or

(b) to impose liabilities on any person (other than this jurisdiction or an authority of this jurisdiction) in respect of anything done or omitted to be done before the date of the regulations coming into operation.

(6) Regulations made under subsection (3) have effect despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument.

s. 55

Section 54(3), (4), (5) and (6) are repealed on the first anniversary of the commencement of section 53.

In this Division—

commencement day means the day on which section 4 comes into operation;

RS Act means the Road Safety Act 1986 as in force from time to time before the commencement day.

Despite section 748(3)(a) of the Heavy Vehicle National Law (Victoria)—

(a) a person who was an authorised officer under section 112 of the RS Act immediately before the commencement day is taken, on and after that day, to be an authorised officer for the purposes of the Heavy Vehicle National Law (Victoria) as if he or she had been appointed by the Regulator under section 481 of that Law; and

(b) an authorisation of a member of the police force for the purposes of paragraph (b) of the definition of authorised inspector in section 119 of the RS Act that was in force immediately before the commencement day is taken, on and after that day, to be an authorisation of the member for the purposes of section 12(1) of this Act.

s. 58

A period spent driving a heavy vehicle within 7 days immediately before commencement day is to be taken into account for the purposes of Chapter 6 of the Heavy Vehicle National Law (Victoria).

For the purposes of Chapter 6 of the Heavy Vehicle National Law (Victoria) a work diary kept in accordance with Part 10A of the RS Act on or before the commencement day is taken to be a written work diary for the purposes of that Law.

__________________

s. 60

On the coming into operation of an item in the Schedule, the Act specified in the heading to that item is amended as set out in that item.

This Part and the Schedule are repealed on the first anniversary of the commencement of section 53.

Note

The repeal of this Part and the Schedule does not affect the continuing operation of the amendments made by this Part and the Schedule (see section 15(1) of the Interpretation of Legislation Act 1984).

__________________

1.1 After section 239AAC insert—

Sch.

(1) The Regulator may, at the written request of the Authority, disclose relevant information gained by the Regulator to the Authority for the purpose of the assessment by the Authority of a claim by a person for compensation under this Act, being relevant information that the Authority considers relates to conduct by the person that the Authority considers may be conduct to which the injury to which the claim relates may be attributable.

(2) In this section—

Regulator has the same meaning as in the Heavy Vehicle National Law (Victoria);

relevant information means details of—

(a) a conviction or finding of guilt; or

(b) an infringement notice within the meaning of the Infringements Act 2006—

that relate, or may relate, to conduct comprising serious and wilful misconduct as referred to in section 82(4).".

Sch.

2.1 In section 3(1), for the definition of mass, dimension or load restraint limit or requirement substitute—

" mass, dimension or load restraint limit or requirement means—

(a) a mass, dimension or load restraint limit or requirement within the meaning of the Road Safety Act 1986; or

(b) a mass, dimension or loading requirement within the meaning of the Heavy Vehicle National Law (Victoria);".

2.2 In section 3(6), after "Act 1986" insert "or the Heavy Vehicle National Law (Victoria)".

2.3 In section 32(1)—

(a) in paragraph (b), for "Acts." substitute "Acts; or";

(b) after paragraph (b) insert—

"(c) the holder of the licence has not complied with a provision of the Heavy Vehicle National Law (Victoria) or the national regulations.".

3.1 Clause 12(4) of Schedule 3 is repealed.

Sch.

4.1 Section 61(4) is repealed.

5.1 After section 38H insert—

In an Act or a subordinate instrument—

Heavy Vehicle National Law (Victoria) means the provisions applying because of section 4 of the Heavy Vehicle National Law Application Act 2013.".

6.1 After section 208 insert—

A Council must not exercise its powers under this Division inconsistently with the functions and powers of the Regulator under the Heavy Vehicle National Law (Victoria) and the national regulations under that Law.".

7.1 In section 82I(1) after "Act 1986" insert "or the Heavy Vehicle National Law (Victoria)".

8.1 In section 3(1) in the example at the foot of the definition of approved road transport compliance scheme omit "or for a system involving the use of an intelligent transport system".

8.2 In section 3(1) the definition of associate is repealed.

8.3 In section 3(1) the definition of beneficiary is repealed.

8.4 In section 3(1) the definition of container weight declaration is repealed.

Sch.

8.5 In section 3(1) the definition of engage in conduct is repealed.

8.6 In section 3(1) the definition of fatigue regulated heavy vehicle is repealed.

8.7 In section 3(1) for the definition of heavy vehicle substitute—

" heavy vehicle has the same meaning as in the Heavy Vehicle National Law (Victoria);".

8.8 In section 3(1) the definition of intelligent transport system is repealed.

8.9 In section 3(1) insert the following definition—

" Regulator has the same meaning as in the Heavy Vehicle National Law (Victoria);".

8.10 In section 3(1) for the definition of semi-trailer substitute—

" semi-trailer means a trailer that has—

(a) one axle group or a single axle towards the rear; and

(b) a means of attachment to a prime mover that results in some of the mass of the trailer's load being imposed on the prime mover;".

8.11 In section 3AAA(a)—

(a) omit "or fatigue regulated heavy vehicle";

(b) omit "or fatigue regulated heavy vehicles".

8.12 After section 25(2) insert—

"(2A) For the avoidance of doubt, the regulations may provide that a person may incur demerit points in respect of an offence against the Heavy Vehicle National Law (Victoria) or the national regulations under that Law.".

8.13 In section 28(1B)(a) for "or load restraint limit or requirement" substitute "or loading requirement within the meaning of the Heavy Vehicle National Law (Victoria)".

Sch.

8.14 In section 77A for "or 6 of Part 10 or under Part 10A" substitute "of Part 10".

8.15 Section 77B is repealed.

8.16 In section 84BB for the definition of corresponding law substitute—

" corresponding law means—

(a) a law of the Commonwealth or of another State or of a Territory that corresponds to Division 2 of Part 2; or

(b) the Heavy Vehicle National Law (Victoria) or a law of another State or of a Territory that corresponds to that law;".

8.17 Section 103R is repealed.

8.18 Section 103S is repealed.

8.19 Section 103T is repealed.

8.20 After section 103ZF insert—

Part 11 as in force immediately before its repeal by item 8.35 of the Schedule to the Heavy Vehicle National Law Application Act 2013, continues to apply to offences alleged to have been committed before that commencement.".

8.21 For section 149A substitute—

This Part does not apply to a heavy vehicle.

Note

Chapter 4 of the Heavy Vehicle National Law (Victoria) sets out the mass, dimension and loading requirements for heavy vehicles.".

Sch.

8.22 Section 162(2)(a) is repealed.

8.23 Section 163(2)(a) is repealed.

8.24 Section 167 is repealed.

8.25 At the foot of section 171(2) insert—

"Note

The penalties that apply in respect of the offences created by this section are set out in section 178.".

8.26 Section 171(3) is repealed.

8.27 At the foot of section 172(2) insert—

"Note

The penalties that apply in respect of the offences created by this section are set out in section 178.".

8.28 Section 172(3) is repealed.

8.29 Section 174(3) is repealed.

8.30 Section 175(3) is repealed.

8.31 The note at the foot of section 176(2) is repealed.

8.32 Section 180 is repealed.

8.33 Division 6 of Part 10 is repealed.

8.34 For Part 10A substitute—

Sch.

In this Part—

light bus means a bus with a GVM of 4.5 tonnes or less.

For the purposes of this Act the following provisions of the Heavy Vehicle National Law (Victoria) apply to a light bus—

(a) Chapter 6; and

(b) sections 622, 623, 653(g) and (h), 654, 725, 726 and 740.

The provisions of the Heavy Vehicle National Law (Victoria) applied under section 191B, apply as if a reference to a fatigue-regulated heavy vehicle under that Law were a reference to a light bus.

The provisions of the Heavy Vehicle National Law (Victoria) applied under section 191B, apply as if a reference to a fatigue-regulated bus under that Law were a reference to a light bus.

The provisions of the Heavy Vehicle National Law (Victoria) applied under section 191B, apply as if a reference to the Regulator under that Law were a reference to the Corporation.

Sch.

The provisions of the Heavy Vehicle National Law (Victoria) applied under section 191B, apply as if a reference to the responsible Ministers under that Law were a reference to the Minister.

__________________".

8.35 Part 11 is repealed.

8.36 Part 12 is repealed.

8.37 Part 13 is repealed.

8.38 Schedule 3 is repealed.

8.39 Schedule 4 is repealed.

8.40 Schedule 4A is repealed.

9.1 In section 30(1)(a), after "Road Safety Act 1986" insert "or the Heavy Vehicle National Law (Victoria)".

Sch.

10.1 In section 3(1), in the definition of owner after paragraph (c) insert—

"(d) a person in whose name a tow truck is registered under the Heavy Vehicle National Law (Victoria) or any law of any State or Territory of the Commonwealth corresponding to this law;".

11.1 In section 4(1) insert the following definition—

" heavy vehicle has the same meaning as in the Heavy Vehicle National Law (Victoria);".

11.2 In section 4(1) in the definition of registered owner —

(a) in paragraph (a) after "motor vehicle" (where first occuring) insert "that is not a heavy vehicle";

(b) after paragraph (a) insert—

"(ab) in relation to a heavy vehicle—the person who is registered under the Heavy Vehicle National Law (Victoria) as the registered operator of the heavy vehicle; and".

(c) in paragraph (b) after "2010;" insert "and".

11.3 In section 57B after "a vehicle" (where first occurring) insert "that is not a heavy vehicle".

11.4 At the end of section 57B insert—

"(2) In proceedings against the registered owner of a heavy vehicle, a certificate from the Regulator within the meaning of the Heavy Vehicle National Law (Victoria), stating that a person was the registered operator of a heavy vehicle under that law on a specified date is evidence that that person was the registered owner of the heavy vehicle on that date.".

11.5 For section 61(1B)(b) substitute—

Sch.

"(b) in the case of an offence alleged against the registered owner of a motor vehicle other than a heavy vehicle, the address appearing as the address of the owner in the certificate of registration of the motor vehicle for the time being in force under the Road Safety Act 1986 or under any corresponding Act or law of a State or Territory of the Commonwealth; and

(c) in the case of an offence alleged against the registered owner of a heavy vehicle, the address appearing as the address of the registered operator in the certificate of registration of the heavy vehicle for the time being in force under the Heavy Vehicle National Law (Victoria) or under any law of a place outside Victoria which contains provisions corresponding to that Law for registration of a heavy vehicle; and

(d) in the case of an offence alleged against the registered owner of a vessel, the address appearing as the address of the owner in the certificate of registration of the vessel for the time being in force under the Marine Safety Act 2010 or under any corresponding Act or law of a State or Territory of the Commonwealth—".

12.1 In section 4(a), omit "subject to Part 5,".

13.1 In section 3(1) insert the following definitions—

Sch.

" heavy vehicle has the same meaning as in the Heavy Vehicle National Law (Victoria);

Regulator has the same meaning as in the Heavy Vehicle National Law (Victoria);".

13.2 In the heading to section 112 after "VicRoads" insert "or the Regulator".

13.3 After section 112(1) insert—

"(1A) The sheriff may direct the Regulator to suspend the registration of a heavy vehicle under the Heavy Vehicle National Law (Victoria) if the person who is the registered operator of a heavy vehicle is a person in default, until the sheriff notifies the Regulator that the suspension has ceased in accordance with section 113.".

13.4 In section 112—

(a) in subsection (2)—

(i) after "subsection (1)" insert "or (1A)";

(ii) after "VicRoads" insert "or the Regulator";

(b) in subsection (2)(b) after "subsection (1)" insert "or (1A)";

(c) in subsection (2)(c) after "subsection (1)" insert "or (1A)";

(d) in subsection (3) after "subsection (1)" insert "or (1A)";

(e) in subsection (3A) after "subsection (1)" insert "or (1A)";

(f) in subsection (3B) after "subsection (1)" insert "or (1A)".

13.5 In section 113—

Sch.

(a) after "VicRoads" insert "or the Regulator (as the case requires)";

(b) for "or trailer" substitute ", trailer or heavy vehicle";

(c) in paragraph (j) for "or trailer" substitute ", trailer or heavy vehicle".

13.6 In the heading to section 114 omit "motor".

13.7 In section 114—

(a) in subsection (2)—

(i) after "VicRoads" (wherever occurring) insert "or the Regulator (as the case requires)";

(ii) for "motor vehicle or trailer" substitute "motor vehicle, heavy vehicle or trailer";

(b) in subsection (4) after "VicRoads" insert "or the Regulator";

(c) in subsection (4)(a) for "motor vehicle or trailer" (wherever occurring) substitute "motor vehicle, heavy vehicle or trailer";

(d) in subsection (5) for "or trailer" substitute "or heavy vehicle or trailer".

13.8 In section 115—

(a) after "VicRoads" insert "or the Regulator";

(b) for "motor vehicle" substitute "motor vehicle, heavy vehicle";

(c) in paragraph (j) for "motor vehicle" substitute "motor vehicle, heavy vehicle".

13.9 In section 116—

Sch.

(a) in subsection (1) for "motor vehicle" (wherever occurring) substitute "motor vehicle, heavy vehicle";

(b) in subsection (1) after "VicRoads"(wherever occurring) insert "or the Regulator";

(c) in subsection (3)(a) for "motor vehicle" (wherever occurring) substitute "motor vehicle, heavy vehicle";

(d) in subsection (3)(a) after "VicRoads" insert "or the Regulator".

13.10 In section 117—

(a) after "VicRoads" insert "or the Regulator";

(b) in paragraph (b) for "motor vehicle" substitute "motor vehicle, heavy vehicle";

(c) in paragraph (j) for "motor vehicle" substitute "motor vehicle, heavy vehicle".

13.11 In section 118—

(a) in subsection (1) for "motor vehicle" substitute "motor vehicle, heavy vehicle";

(b) in subsection (1) after "this Act" insert "or the Heavy Vehicle National Law (Victoria)";

(c) in subsection (2) for "motor vehicle" substitute "motor vehicle, heavy vehicle".

13.12 In section 119(1) after "VicRoads" insert "or the Regulator".

14.1 In section 3(1) for the definition of used motor car substitute—

Sch.

" used motor car includes—

(a) a motor car that has, at any time before being offered or displayed for sale, been registered under the Road Safety Act 1986 or the Motor Car Act 1958 or under any Act or law of a place outside Victoria which contains provisions corresponding to the provisions of the Road Safety Act 1986 for registration of motor cars;

(b) a motor car that is a heavy vehicle that has, at any time before being offered or displayed for sale, been registered under the Heavy Vehicle National Law (Victoria) or under any law of a place outside Victoria which contains provisions corresponding to that Law for registration of a heavy vehicle.".

14.2 After section 42A insert—

(1) A person must not sell a heavy vehicle that is registered under the Heavy Vehicle National Law (Victoria) unless—

(a) the person gives the buyer of the car a current certificate in relation to the car; or

(b) if the person is required under the Heavy Vehicle National Law (Victoria) or the national regulations under that Law to send a current certificate in relation to the heavy vehicle to the Regulator, the person gives the buyer a copy of that certificate.

Penalty: 50 penalty units.

Sch.

(2) This section does not apply if the buyer is a licensed motor car trader or a special trader.

(3) This section does not apply to a heavy vehicle that is sold by auction at a public auction by a person acting on behalf of the owner of the heavy vehicle.

(4) In this section current means issued within the last 30 days.

(5) Despite anything to the contrary under the Heavy Vehicle National Law (Victoria), for the purposes of subsection (1) a reference to "a heavy vehicle that is registered under the Heavy Vehicle National Law (Victoria)"—

(a) includes a reference to a heavy vehicle the registration of which has been suspended under that law; but

(b) does not include a reference to a heavy vehicle the registration of which has expired and has not been renewed on or before the day the heavy vehicle is sold.".

14.3 After section 69(3)(c) insert—

"(ca) the Regulator within the meaning of the Heavy Vehicle National Law (Victoria); or".

14.4 After section 76(1)(d) insert—

"(da) loss has been incurred from a failure of a motor car trader to pay transfer fees or registration fees to the Regulator within the meaning of the Heavy Vehicle National Law (Victoria) or stamp duty on a motor car or to provide any certificate of roadworthiness or other document necessary to enable a motor car to be registered under the Heavy Vehicle National Law (Victoria) subject to payment of the appropriate fee; or".

Sch.

15.1 In section 3(1) for the definition of registered operator substitute—

" registered operator of a vehicle means—

(a) the person recorded on the register as the person responsible for the vehicle; or

(b) the person recorded on the vehicle register within the meaning of the Heavy Vehicle National Law (Victoria) as the person responsible for the vehicle;".

15.2 In section 6 after "highway" insert "and does not apply to heavy vehicles within the meaning of the Heavy Vehicle National Law (Victoria)".

15.3 For section 84W(1)(d) substitute—

"(d) the Regulator in the case of a heavy vehicle or the Corporation in any other case.".

15.4 For section 84Y(1)(d) substitute—

"(d) the Regulator in the case of a heavy vehicle or the Corporation in any other case."

15.5 In section 84YA(1) after "the Corporation" (wherever occurring) insert "or the Regulator".

15.6 In section 84YA(3) after "the Corporation" insert "or the Regulator".

15.7 In the heading to section 84YB after "Corporation" insert "or the Regulator".

15.8 In section 84YB(1) after "the Corporation" insert "or the Regulator".

15.9 In section 84YB(2) after "the Corporation" insert "or the Regulator (as the case requires)".

Sch.

16.1 In section 3(1) in the definition of registered motor vehicle after paragraph (c) insert—

"(d) a heavy vehicle that is registered in accordance with the Heavy Vehicle National Law (Victoria); or

(da) a heavy vehicle that is not so registered because it is exempt from registration in accordance with Chapter 2 of the Heavy Vehicle National Law (Victoria) or the national regulations under that Law; or".

16.2 In section 41A(2) for the definition of unregistered motor vehicle substitute—

" unregistered motor vehicle means—

(a) a motor vehicle, other than a heavy vehicle, that has never been registered under Part 2 of the Road Safety Act 1986 or a corresponding law of another State or a Territory and in respect of which a transport accident charge was not paid at the time that the transport accident occurred; or

(b) a heavy vehicle that has never been registered in accordance with the Heavy Vehicle National Law (Victoria) or a corresponding law of another State or a Territory and in respect of which a transport accident charge was not paid at the time that the transport accident occurred.".

16.3 In section 84 for the definition of trailer substitute—

" trailer means—

(a) a trailer within the meaning of the Road Safety Act 1986 or a trailer within the meaning of, and registered or about to be registered in Victoria under, the Interstate Road Transport Act 1985 of the Commonwealth or, if that Act is amended, that Act as amended and in force for the time being; or

(b) a trailer within the meaning of the Heavy Vehicle National Law (Victoria) that is registered or about to be registered under that law and has a garage address in Victoria.".

Sch.

16.4 In section 109(3) after "motor vehicle" insert ", other than a heavy vehicle,".

16.5 After section 109(3) insert—

"(3A) The registration of a heavy vehicle must not be made or renewed and an unregistered heavy vehicle permit under the national regulations made under the Heavy Vehicle National Law (Victoria) must not be granted unless the owner has paid the transport accident charge for the relevant prescribed period or periods.".

16.6 In section 111(1)(b)(ii) for "being—" substitute "being; or".

16.7 After section 111(1)(b)(ii) insert—

"(iii) under the Heavy Vehicle National Law (Victoria) and the garage address of the heavy vehicle under that law is in another State or Territory—".

16.8 After section 112(1) insert—

"(1A) Section 109 applies to a person who is in the possession or under the control of a heavy vehicle that is not registered or the subject of an unregistered heavy vehicle permit granted under the national regulations made under the Heavy Vehicle National Law (Victoria) as if the person were the owner.".

16.9 In section 112(2) for "subsection (1)" substitute "subsection (1) or (1A)".

Sch.

17.1 In section 86(1) in the definition of owner , in paragraph (c) for "agreement;" substitute "agreement; and".

17.2 In section 86(1) in the definition of owner , after paragraph (c) insert—

"(d) any person in whose name a commercial goods vehicle is registered under the Heavy Vehicle National Law (Victoria) or any law of any State or Territory of the Commonwealth corresponding to that law but does not include an unpaid vendor of any such vehicle under a hire-purchase agreement;".

17.3 Section 217A is repealed.

Act

Part 4—Offences and Legal Proceedings

Heavy Vehicle National Law Application Act 2013 No. 30 of 2013

Endnotes

Minister's second reading speech—

Legislative Assembly: 18 April 2013

Legislative Council: 9 May 2013

The long title for the Bill for this Act was "A Bill for an Act to provide for the application of a National Law to regulate the use of heavy vehicles, to make related and consequential amendments to other Acts and for other purposes."

1 The Heavy Vehicle National Law was originally enacted in the Schedule to the Heavy Vehicle National Law Act 2012 of Queensland. Subsequently Queensland enacted the Heavy Vehicle National Law Amendment Act 2013, which substituted the Schedule with a revised version of the Heavy Vehicle National Law. These explanatory notes are based on a compilation of the parts of the explanatory notes relating to the Heavy Vehicle National Law that accompanied the Bills for each of the above Queensland Acts.

2 The pecuniary value of penalties for court ordered penalties for offences against the National Law are set out in Appendix 1.

Chapter 1 Preliminary

Part 1.1 Introductory matters

Section 1 provides for the Law to be cited as the Heavy Vehicle National Law.

Annexure 1

Section 2 reflects the intention that each State and Territory will enact the Law and will individually determine in its applied law the commencement date of the Law in its jurisdiction. In Victoria, the Law will commence when clause 4 of the Heavy Vehicle National Law Application Bill 2013 comes into operation.

Section 3 identifies the object of the Law, in establishing a national scheme for facilitating and regulating the use of heavy vehicles on roads in a way that:

· promotes public safety;

· manages the impact of heavy vehicles on the environment, road infrastructure and public amenity;

· promotes industry productivity and efficiency in the road transport of goods and passengers by heavy vehicles;

· encourages and promotes productive, efficient, innovative and safe business practices.

Section 4 sets out the regulatory framework to achieve the object of the Law as one that:

· establishes an entity called the National Heavy Vehicle Regulator (the Regulator);

· provides for the national registration of heavy vehicles;

· prescribes specified requirements for the driving and use of heavy vehicles;

· imposes duties and obligations on persons whose activities may influence compliance with such requirements;

Annexure 1

· includes measures to allow improved access to the road network in certain circumstances.

Part 1.2 Interpretation

Section 5 defines numerous technical and other terms used throughout the Law.

Section 6 defines the key term ‘heavy vehicle’ to mean a vehicle that has a gross vehicle mass (as defined in section 5) or aggregate trailer mass (as defined in section 5) of more than 4.5 tonnes. It also includes light vehicles (vehicles with a gross vehicle mass of 4.5 tonnes or less) when used in a combination with a heavy vehicle, but does not include light vehicles for the purposes of the registration requirements. However, it does not include ‘rolling stock’ (for example, trains, trams, wagons and monorail vehicles) as defined in section 6(4).

Section 7 defines the term ‘fatigue-regulated heavy vehicle’ to mean a motor vehicle with a gross vehicle mass (as defined in section 5) of more than 12 tonnes; a combination with a gross vehicle mass of more than 12 tonnes; or a fatigue-regulated bus (defined in section 5 as a motor vehicle built or fitted to carry more than 12 adults, including the driver). The section clarifies that, in the case of a truck or a truck in a combination, the gross vehicle mass includes any machine or implement attached to the truck. However, the term does not include a motorhome or (except in the case of truck or a combination with a truck that has a machine or implement attached to it) a motor vehicle built or modified to operate primarily as an off-road machine or implement or on a road-related area or on a road under construction and which is not capable of carrying goods or passengers by road.

The term is of particular importance to ‘Chapter 6-Vehicle operations-driver fatigue’, as the driver fatigue provisions of the Law only apply in respect of drivers of these fatigue-regulated heavy vehicles.

Annexure 1

Section 8 defines two other key terms in the Law, being ‘road’ and ‘road-related area’. The terms are important as the Law regulates the use of heavy vehicles on roads and road-related areas. Also note that section 13 (see below) states that a reference in the Law to a road includes a reference to a road-related area, unless a contrary intention appears in the Law.

Section 9 defines the terms ‘convicts’ and ‘convicted’.

Section 10 provides that Schedule 1 applies to the Law. This schedule contains miscellaneous interpretation provisions of a kind usually contained in the Interpretation Act of a State or Territory. The schedule is necessary to provide consistency in interpretation across jurisdictions.

Section 11 provides that a reference in this Law, either generally or specifically to a law or a provision of a law of the Commonwealth or a State or Territory (including this Law) includes a reference to each instrument (including a regulation) made or in force under the law or provision as well as each instrument made or in force under any such instrument.

Section 12 states that a reference to ‘this Law as applied in a participating jurisdiction’ in the Law means the law of a participating jurisdiction that substantially corresponds to the Law, or a law prescribed by the national regulations for the purposes of paragraph (a)(iii) of the definition of ‘participating jurisdiction’ (as defined in section 5), enacted in a participating jurisdiction. This section is necessary to acknowledge that the Law is intended to apply across Australia even if a jurisdiction mirrors the Law or makes minor amendments to its application of the Law.

Section 13 states that a reference in the Law to a road includes a reference to a road-related area (as defined in section 8), unless a contrary intention appears.

Annexure 1

Section 14 states that where the provision of the Law expressly states that a person is not to have the benefit of the mistake of fact defence for the offence, then the effect of that provision in a participating jurisdiction will be the effect that is declared by a law of that jurisdiction. This section allows for each jurisdiction to ensure that the mistake of fact defence as used in that jurisdiction does not apply for the purpose of this Law in respect of a number of offences under the Law that are to be absolute liability offences. These are offences where the mistake of fact defence is not to apply, so that the person cannot rely on honest and reasonable mistakes of fact to excuse his or her behaviour. Note that most of the absolute liability offences in this Law are subject to the reasonable steps defence created by section 618 of this Law.

Clause 30 of the Heavy Vehicle National Law Application Bill 2013 sets out the effect of section 14 of the Law for Victoria.

Section 15 clarifies the basis on which vehicles may be categorised.

Part 1.3 Application and operation of Law

Section 16 provides for the extraterritorial operation of the Law so far as it is possible so that the national regulation scheme for heavy vehicles is effective.

Section 17 provides that the Law binds the State (as defined in section 5). However, section 17(2) states that no criminal liability attaches to the State itself (as distinct from its agents, instrumentalities, officers and employees) under the Law.

Section 18 sets out the relationship of the Law with the primary work health and safety (WHS) law in a participating jurisdiction. In essence, the Law and WHS laws are to operate independently of each other. Thus, subsection (3) clarifies that compliance with the Law is not by itself evidence that a person has complied with the primary WHS law, regulations made under the WHS law or with a common law duty of care. However, subsection (2) provides that evidence of a contravention of this Law is admissible in any proceedings under the primary WHS law.

Annexure 1

Part 1.4 Performance based standards

Section 19 explains the purpose of this Part and other associated provisions to enable Performance Based Standards (PBS) vehicles that meet a particular performance level to operate (unless otherwise specified by the responsible Minister) on roads that are authorised to be used by PBS vehicles that meet or exceed that performance level.

Section 20 requires the Regulator to notify the road authority for this jurisdiction of a PBS design approval together with a description of the significant features of the design to which the approval relates. The purpose of this section is to ensure the responsible Minister is apprised of the application in contemplation of the exercise of the power granted to the Minister under section 21.

Section 21 empowers the Minister to issue a notice to the Regulator requiring the Regulator to impose conditions prohibiting any heavy vehicle built to a design that is the subject of a PBS design approval from operating in this jurisdiction, or making such operation subject to the condition set out in the notice.

Section 22 empowers the Regulator to consider an application for a PBS design approval, and reject or approve the application subject to any condition the Regulator sees fit. The breadth of the power to impose these conditions is necessary given the safe operation of the vehicle may contemplate such matters as driver licensing, a matter not otherwise dealt with under the Law at this point. In making this decision the Regulator is required to have regard to any approved guidelines, performance based standards and assessment rules prescribed in the national regulations, and the advice of the PBS Review Panel.

Annexure 1

Section 23 empowers the Regulator to consider an application for a PBS vehicle approval. The approval functions as evidence that a vehicle is constructed in accordance with an approved PBS design and must contain the condition relevant to that approval, whether imposed by the Regulator under section 22, or section 21. In making this decision the Regulator is required to have regard to any approved guidelines, performance based standards and assessment rules prescribed in the national regulations, and the advice of the PBS Review Panel.

Section 24 creates a head of power to make regulations stipulating which vehicle standards a PBS vehicle may be exempted from. It is intended at this point that the exemptions be limited to the following matters:

· Axle configuration;

· Relation between axles in a group;

· Selection of couplings and drawbar eyes on road trains;

· Tow coupling overhang on road trains.

Section 25 makes it clear a mass or dimension limit authorised in a PBS approval is to have precedence over the general mass or dimension limits.

Section 26 creates a head of power to make regulations dealing with procedures for applications for PBS design and vehicle approvals, procedures for cancelling or modifying a PBS design or vehicle approval, assessment criteria and procedures and the appointment of persons to assess designs and certify vehicles purportedly built to them.

Chapter 2 Registration

A note clarifies that Chapter 2 is not to commence at the same time as other provisions of the National Law but at a later time, and that transitional provisions for this jurisdiction relating to and consequential on the delayed commencement are intended to be dealt with by national regulations or by legislation of this jurisdiction.

Annexure 1

Part 2.1 Preliminary

Section 27 states that the main purpose of Chapter 2 is to establish a scheme for the national registration of heavy vehicles that meets safety objectives, allows for identification of heavy vehicles and those responsible for them, and ensures compliance with compensation legislation. The section also recognises that unregistered heavy vehicles may be used in particular circumstances without posing significant safety risks.

Part 2.2 Registration scheme

Division 1 Preliminary

Section 28 provides a head of power for national regulations to prescribe procedures for the registration of heavy vehicles. The types of matters that may be prescribed cover a broad spectrum including eligibility for registration requirements, conditional registration, registration charges, unregistered heavy vehicle permits, registration transfers, surrenders and renewals, amendment, suspension or cancellation of registration or unregistered heavy vehicle permits, and arrangements for the collection of third party insurance and vehicle registration duty.

Section 29 states that the registration of a heavy vehicle under the Law is not evidence of title to the heavy vehicle. This section intends to maintain the distinction between registration of a heavy vehicle and ownership of a heavy vehicle at law as the registered operator of a heavy vehicle may not be the owner or sole owner of the heavy vehicle.

Division 2 Requirement for heavy vehicle to be registered

Annexure 1

Section 30 creates an offence for a person to use, or permit to be used, on a road an unregistered heavy vehicle or one whose registration has been suspended. The maximum penalty for noncompliance is $10000. Note that the inclusion of ‘permit to be used’ in section 30 extends the responsibility beyond the driver of the heavy vehicle and is intended to require persons responsible for a vehicle to prevent the use of that vehicle while it is unregistered or the registration has been suspended.

An exception to the above is set out in subsection (2): no offence is committed if the vehicle is being used under an unregistered heavy vehicle permit, or if the use of the unregistered heavy vehicle is authorised under Division 3. That Division specifies various circumstances in which an unregistered heavy vehicle is authorised to be used on a road without an unregistered heavy vehicle permit issued under the national regulations.

Division 3 Authorised use of unregistered heavy vehicle

Section 31 specifies that the purpose of Division 3 is to state the circumstances in which an unregistered heavy vehicle is authorised to be used on a road without an unregistered heavy vehicle permit issued under the national regulations.

Section 32 authorises the use of an unregistered heavy vehicle on a road when that vehicle is travelling, by the most direct or convenient route, to the nearest ‘registration place’, as defined in subsection (2). A registration place is a place where a heavy vehicle is taken for the purpose of obtaining registration and includes a place where the vehicle may be first weighed or inspected for checking its compliance with the heavy vehicle standards. It includes a journey by way of the nearest inspection place (as defined in subsection (2)). However, the requirements of any third party insurance legislation required by the local jurisdiction in which the heavy vehicle is being used must be complied with and the vehicle must not be carrying goods.

Annexure 1

Section 33 authorises the use of an unregistered heavy vehicle on a road if it is registered in a foreign country and temporarily in Australia, and the registration requirements of that country are satisfied, so far as is reasonably practicable. The driver must carry proof of the temporary admission carnet as defined in subsection (2). The requirements of third party insurance legislation of the local jurisdiction in which the heavy vehicle is being used must also be complied with. The intention is to allow the use of foreign registered heavy vehicles in Australia for a limited time period without the requirement for registration in Australia. This section does not intend to authorise the use of foreign registered heavy vehicles on a road in Australia for an indefinite time period.

Section 34 authorises the use of an unregistered heavy vehicle on a road if a road authority has authorised the use of the vehicle on the road for short-term purposes (usually known as ‘trade plates’ or ‘dealer plates’), if any relevant conditions imposed by the authority are complied with, and any third party insurance requirements of the local jurisdiction in which the heavy vehicle is being used are complied with.

Section 35 authorises the use of an unregistered heavy vehicle on a road if the vehicle is on a journey between two parcels of land used solely or mainly for primary production, is travelling by the most direct or convenient route between the places, and for a distance of no more than 500 metres. The requirements of any third party insurance legislation of the local jurisdiction in which the heavy vehicle is being used must also be complied with.

Section 36 authorises the use of an unregistered heavy vehicle on a road if it falls within either of the following categories:

· the vehicle is an ‘agricultural implement’ (defined in section 5) being towed by a registered ‘agricultural machine’ (defined in section 5) that is suitably matched to the implement or another registered heavy vehicle of a suitable size for towing the implement;

· the vehicle is an agricultural trailer being towed by a registered agricultural machine that is being used to perform ‘agricultural tasks’ (defined in section 5) for which it was built or a conditionally registered heavy vehicle.

Annexure 1

The requirements of any third party insurance legislation of the local jurisdiction in which the heavy vehicle is being used must also be complied with.

Section 37 authorises the use of an unregistered heavy vehicle on a road when it is under tow by a tow truck.

Section 38 authorises the use of an unregistered heavy vehicle on a road if it is of a category of heavy vehicles exempted from the requirement to be registered under Part 2.2, Division 4. The requirements of any third party insurance legislation of the local jurisdiction in which the heavy vehicle is being used must also be complied with. This section recognises the Regulator’s power to issue registration exemptions for categories of vehicles.

Section 39 creates an offence where a person uses, or permits to be used, an unregistered heavy vehicle on a road in any of the circumstances mentioned in sections 32 to 38 if the driver does not have in the driver’s possession proof that the requirements of third party insurance legislation applying to the vehicle are complied with.

Division 4 Exemption from requirement to be registered

Subdivision 1 Exemption by Regulator

Section 40 empowers the Regulator to exempt a category of heavy vehicles from the requirement to be registered, for a period of not more than one year. An exemption made under this section is referred to as a ‘registration exemption’. Such exemptions must be issued by the Regulator by way of a Commonwealth Gazette notice that complies with section 44. This power has been included in the Law to allow for the preservation of current local productivity initiatives in jurisdictions and for the implementation of future productivity initiatives which authorise the use of unregistered vehicles.

Annexure 1

Section 41 limits the Regulator’s power to grant a registration exemption by specifying that it may only grant an exemption if it is satisfied that:

· it is not reasonable to require heavy vehicles of the category to be registered; and

· the use of heavy vehicles of that category on a road without being registered will not pose a significant safety risk.

In deciding whether to grant a registration exemption, the Regulator must have regard to the ‘approved guidelines’ (defined in section 5 as guidelines approved by responsible Ministers under section 653) for granting registration exemptions.

Section 42 authorises the Regulator to make registration exemptions subject to any conditions that it considers appropriate. For example, conditions could relate to route and time restrictions for the use of the vehicle, the documentation the driver of a heavy vehicle must carry and the signs or other things that must be displayed on a heavy vehicle. The examples provided in this section are not intended to operate as prescriptive requirements for conditions nor limit the scope of conditions that may be imposed by the Regulator.

Section 43 states that a registration exemption takes effect when the Commonwealth Gazette notice for the exemption is published or, if a later time is stated in the notice, at the later time. The registration exemption applies for the period stated in the Commonwealth Gazette notice. However, this is limited by the requirement in section 40 that a registration exemption must be a period of not more than one year.

Section 44 specifies the matters to be set out in a Commonwealth Gazette notice for a registration exemption and that a copy of the notice must be published on the Regulator’s website.

Annexure 1

Section 45 gives the Regulator discretion to amend or cancel a registration exemption on either or both of two grounds:

· the use of heavy vehicles on a road under the exemption has caused, or is likely to cause, a significant safety risk;

· since the exemption was granted, there has been a change in the circumstances and had these changed circumstances existed when the exemption was granted, the Regulator would not have granted the exemption in the first instance or would have granted the exemption subject to conditions or different conditions.

It also sets out procedural requirements, including notification of the proposal to amend or cancel the registration exemption, giving affected persons at least 14 days to make written representations as to why the Regulator should not amend or cancel the registration exemption, considering all written representations made and giving notice of the decision to amend or cancel the registration exemption. It also specifies when the amendment or cancellation takes effect.

The intent of these requirements is to ensure transparency and fairness in the decision-making process. This is achieved by requiring adequate notice to be given to those affected by a proposed amendment or cancellation and by ensuring that possible adverse consequences of such action can be presented to the Regulator for consideration. An additional benefit of this section is in allowing time for those who may be adversely affected by a decision to amend or cancel a registration exemption time in which to adjust their business practices.

Section 46 inserts a new section that allows the Regulator to suspend a registration exemption immediately if there is a need to minimise serious harm to public safety or significant damage to road infrastructure. The exercise of the power is subject to publication requirements to minimise the possibility of inadvertent noncompliance.

Section 47 creates a head of power for the making of regulations in relation to the exempting (whether conditional or otherwise) of a specific category of heavy vehicle from the requirement to be registered.

Part 2.3 Vehicle register

Annexure 1

Section 48 requires the Regulator to keep a register of heavy vehicles (the vehicle register) that enables the identification of a heavy vehicle used on a road and of the person who is responsible for it. Subsection (2) stipulates that the heavy vehicle register must be kept in the way, and contain the particulars, prescribed by the national regulations. Subsection (3) enables the Regulator to also include any other information in the register that it considers reasonable and relevant for the purposes of the Law.

Part 2.4 Other provisions relating to registration

Section 49 clarifies that a ‘registration item’ (defined in section 5 to mean documents, number plates and labels relating to registration or purported registration of a heavy vehicle or an unregistered heavy vehicle permit) issued by the Regulator remains the property of the Regulator.

Section 50 creates various registration offences. Subsection (1) makes it an offence to attempt to obtain, renew or transfer registration, or to be issued with an unregistered heavy vehicle permit, by making a false or misleading statement or representation or in another dishonest way and imposes a maximum penalty of $10000 for non-compliance. Subsection (2) makes it an offence to, without a reasonable excuse, possess a registration item obtained in a way specified in subsection (1) and imposes a maximum penalty of $10000 for non-compliance. Any registration item that is obtained by a person in this way is declared void under subsection (4).

Annexure 1

Section 51 empowers the Regulator to cancel an incorrect, duplicate or poor quality registration item. It further enables the Regulator, if it considers it is appropriate to do so, to issue a replacement registration item or to give the registered operator a notice requiring it to return the item to the Regulator. Subsection (3) creates an offence to fail to comply with a notice and imposes a maximum penalty of $4000 for non-compliance.

Whilst section 51 is an enabling provision, it is not intended to place a duty on the Regulator to replace or recover every incorrect, duplicate or poor quality registration item issued.

Section 52 authorises the Regulator, by notice, to require the registered operator of a heavy vehicle registered under the Law or the holder of an unregistered heavy vehicle permit to produce documents, or to present the vehicle for inspection, so that the Regulator can verify the records about that vehicle. Subsection (4) creates an offence for a person to fail to comply with such a notice without a reasonable excuse and imposes a maximum penalty of $3000 for non-compliance.

Part 2.5 Written-off and wrecked heavy vehicles

Section 53 states that the purpose of Part 2.5 is to provide for the collection and recording of information about written-off or wrecked heavy vehicles to ensure that such vehicles are registered only in circumstances where the identity of the vehicle and its operator is certain and the vehicle is safe.

Certainty in the identity of the vehicle and its operator and the safety of the vehicle are important because of the incidence of theft, fraud, and dangerous disassembly and reassembly practices which attempt to disguise the true identity or origin of written-off or wrecked vehicles or parts of vehicles.

Annexure 1

Section 54 defines ‘insurer’, ‘wrecked’ and ‘written-off’ for the purposes of Part 2.5.

Section 55 requires the Regulator to keep a register of written-off and wrecked heavy vehicles. It stipulates that the register must be kept in the way, and contain the particulars, prescribed by the national regulations. The section also requires the types of matters that the national regulations may provide for in relation to entries in the register, access to the register, the giving of information contained in the register, driving written off and wrecked heavy vehicles and notification of the regulator about written off and wrecked heavy vehicles. Subsection (3) enables the Regulator to also include any other information it considers reasonable and relevant to the purpose of Part 2.5.

Part 2.6 Other provisions

Section 56 empowers the Regulator to specify the gross combination mass (see the definition of GCM in section 5) for a motor vehicle, being the total maximum loaded mass of the vehicle and any vehicles it may lawfully tow at any given time for the purposes of the Law in the circumstances specified in the provision.

Section 57 empowers the Regulator to specify the gross vehicle mass (see the definition of GVM in section 5) for a vehicle for the purposes of this Law in the circumstances specified in the provision.

Chapter 3 Vehicle operations—standards and safety

Part 3.1 Preliminary

Annexure 1

Section 58 states that the main purpose of Chapter 3 is to ensure heavy vehicles used on roads are of a standard and in a condition that prevents or minimises safety risks.

Part 3.2 Compliance with heavy vehicle standards

Division 1 Requirements

Section 59 provides a head of power for regulations to prescribe vehicle standards (heavy vehicle standards), with which heavy vehicles must comply to use roads. These may include requirements applying to heavy vehicles, components of heavy vehicles or equipment of heavy vehicles. The section also provides a head of power for the making of regulations to prescribe exemptions for different requirements for component vehicles that are not heavy vehicles. This allows for light vehicles to be exempted from all or part of one or more heavy vehicle standards when the light vehicle is part of a heavy vehicle combination.

Section 60 creates an offence for a person to use, or permit to be used, on a road a heavy vehicle that contravenes a heavy vehicle standard applying to the vehicle. The maximum penalty for noncompliance is $3000 or $6000 depending on the circumstances.

The inclusion of the phrase ‘permit to be used’ in subsection (1) extends the responsibility beyond the driver of the heavy vehicle and is intended to require persons responsible for a heavy vehicle to ensure the vehicle complies with heavy vehicle standards applying to it.

Subsection (2) clarifies that the offence does not apply in either of the following circumstances:

· the heavy vehicle is travelling to a place for the repair of the vehicle or any of its components or equipment by the most direct or convenient route, is not carrying goods and is used in a way that does not pose a safety risk; or

· the heavy vehicle is on a road for testing or analysis of the vehicle or any of its components or equipment by an approved vehicle examiner to check its compliance with the heavy vehicle standards, is not carrying any passengers, has only the quantity of goods that is necessary or appropriate for the conduct of the testing or analysis, and those goods do not pose a safety risk, and is used in a way that does not pose a safety risk.

Annexure 1

A note clarifies that the exception allowing the movement of the vehicle to a place repair does not supersede the requirements of any defect notice issued for the vehicle.

Subsection (3) specifies that a person does not commit an offence if and to the extent that the noncompliance with a heavy vehicle standard was known to the Regulator when the vehicle was registered. However, a person only has the benefit of this provision if the heavy vehicle and its use on the road complies with the conditions of registration, as per subsection (5).

Subsection (4) specifies the circumstances in which the Regulator is taken to have known of the noncompliance at the time of registration.

Subsection (6) provides that a PBS vehicle is exempt from vehicle standards stated in its PBS vehicle approval and where it complies with the other applicable vehicle standards, the vehicle is regarded for the purposes of the National Law as complying with the vehicle standards applying to the vehicle.

Division 2 Exemptions by Commonwealth Gazette notice

Section 61 empowers the Regulator to exempt a category of heavy vehicles from the requirement to comply with a heavy vehicle standard for a period of not more than 5 years. This must be done by Commonwealth Gazette notice complying with section 65. An exemption made under this section is referred to as a vehicle standards exemption (notice). This power has been included in the Law to allow for the preservation of current local productivity initiatives in jurisdictions and for the implementation of future productivity initiatives which exempt categories of vehicles from compliance with heavy vehicle standards.

Annexure 1

Section 62 limits the Regulator’s power to grant a vehicle standards exemption (notice). Under subsection (1) a vehicle standards exemption (notice) may only be granted if:

· the Regulator is satisfied that the use of heavy vehicles of that category under the exemption will not pose a significant safety risk; and

· one of the following applies:

· the Regulator is satisfied complying with the relevant standard would prevent heavy vehicles of that category from operating as they were built or modified;

· the Regulator is satisfied heavy vehicles of that category are experimental vehicles, prototypes or similar vehicles that could not reasonably be expected to comply with the relevant standard;

· the exemption has been requested by a road authority for a participating jurisdiction for the use of heavy vehicles of that category in that jurisdiction; or

· the category of heavy vehicles consists of heavy vehicles that were, immediately before the commencement of this section in a participating jurisdiction, registered under an Australian road law of that jurisdiction and not required to comply with a similar standard at that time.

In deciding whether to grant a vehicle standards exemption (notice), the Regulator must have regard to the approved guidelines (defined in section 5 as guidelines approved by responsible Ministers under section 653) for granting vehicle standards exemptions.

Section 62 ensures that the Regulator always has regard to the safety risks of granting an exemption and limits the granting of a vehicle standards exemption (notice) to highly specific circumstances. If those requirements are not met, the Regulator is not empowered to grant the vehicle standards exemption (notice).

Annexure 1

Section 63 authorises the Regulator to make a vehicle standards exemption (notice) subject to any conditions it considers appropriate. Such conditions could include, but are not limited to, conditions about protecting road infrastructure from damage and a condition requiring the driver of a heavy vehicle to keep documentation regarding the exemption in his or her possession.

Section 64 states that a vehicle standard exemption (notice) takes effect when the Commonwealth Gazette notice for the exemption is published or, if a later time is stated on the Commonwealth Gazette notice, at the later time. The exemption applies for the period stated in the Commonwealth Gazette notice. However, this is limited by the requirement in section 61 that a vehicle standard exemption (notice) must be for a period of not more than 5 years.

Section 65 specifies the matters to be set out in a Commonwealth Gazette notice for a vehicle standard exemption (notice) and that a copy of the notice must be published on the Regulator’s website.

Section 66 gives the Regulator discretion to amend or cancel a vehicle standards exemption (notice) on either or both of two grounds:

· the use of heavy vehicles on a road under the exemption has caused, or is likely to cause, a significant safety risk;

· since the exemption was granted, there has been a change in the circumstances and had these changed circumstances existed when the exemption was granted, the Regulator would not have granted the exemption in the first instance or would have granted the exemption subject to conditions or different conditions.

It also sets out procedural requirements, including notification of the proposal to amend or cancel the vehicle standards exemption (notice), giving affected persons at least 14 days to make written representations as to why the Regulator should not amend or cancel the vehicle standards exemption (notice), considering all written representations made and giving notice of the decision to amend or cancel the vehicle standards exemption (notice). It also specifies when the amendment or cancellation takes effect.

Annexure 1

The intent of these requirements is to ensure transparency and fairness in the decision-making process. This is achieved by requiring adequate notice to be given to those affected by a proposed amendment or cancellation and by ensuring that possible adverse consequences of such action can be presented to the Regulator for consideration. An additional benefit of this section is in allowing those who may be adversely affected by a decision to amend or cancel a vehicle standards exemption (notice) time in which to adjust their business practices.

Section 67 empowers the Regulator to suspend a vehicle standards exemption notice immediately to prevent or minimise serious harm to public safety or significant damage to road infrastructure. The power is exercisable through the meeting of the ordinary publication requirements (in or on each of the Commonwealth Gazette, a relevant newspaper, and on the Regulator’s website). The maximum length of the suspension is calculated with reference to the matters set out in subsection (2).

Division 3 Exemptions by permit

Section 68 empowers the Regulator to exempt a heavy vehicle from the requirement to comply with a heavy vehicle standard for a period not more than 3 years. This must be done by giving a permit to a person in accordance with section 73. An exemption under this section is referred to as a vehicle standards exemption (permit) and may apply to 1 or more heavy vehicles. This power has been included in the Law to allow for the preservation of current local productivity initiatives in jurisdictions and for the implementation of future productivity initiatives which exempt categories of vehicles from compliance with heavy vehicle standards.

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Section 69 sets out requirements for an application for a vehicle standards exemption (permit). It includes the requirement that an application must be in the approved form and be accompanied by the relevant prescribed fee (defined in section 5 as a fee prescribed by the national regulations under section 740(1)).

Section 70 limits the Regulator’s power to grant a vehicle standards exemption (permit). Under subsection (1) a vehicle standards exemption (permit) may only be granted if:

· the Regulator is satisfied that the use of the heavy vehicle under the exemption will not pose a significant safety risk; and

· one of the following applies:

· the Regulator is satisfied complying with the relevant standard would prevent the heavy vehicle from operating as built or modified;

· the Regulator is satisfied the heavy vehicle is an experimental vehicle, prototype or similar vehicle that could not reasonably be expected to comply with the relevant standard; or

· the heavy vehicle was, immediately before the commencement of this section in a participating jurisdiction, registered under an Australian road law of that jurisdiction and not required to comply with a similar standard at that time.

In deciding whether to grant a vehicle standards exemption (permit), the Regulator must have regard to the approved guidelines (defined in section 5 as guidelines approved by responsible Ministers under section 653) for granting vehicle standards exemptions.

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This section ensures that the Regulator always has regard to the safety risks of granting an exemption and limits the granting of a vehicle standards exemption (permit) to highly specific circumstances. If those requirements are not met, the Regulator must not grant the vehicle standards exemption (permit).

Section 71 authorises the Regulator to make a vehicle standards exemption (permit) subject to any conditions it considers appropriate. Such conditions could include, but are not limited to, a condition about protecting road infrastructure from damage.

Section 72 sets out that a vehicle standards exemption (permit) applies for the period stated in the permit for the exemption. However, this is limited by the requirement in section 68 that the exemption must be for a period of not more than 3 years. Subsection (1) clarifies that the time period may be less than the period sought by the applicant for the permit.

Section 73 sets out what the Regulator must provide to an applicant to whom a permit is granted, including the information which must be stated in the permit.

Section 74 requires the Regulator to give the applicant an information notice for the decision if the Regulator refuses an application for a vehicle standards exemption (permit). An information notice is defined in section 5 as a notice stating the decision, the reasons for the decision and the review and appeal information (also defined in section 5) for the decision.

Section 75 empowers the holder of a vehicle standards exemption (permit) to apply to the Regulator for an amendment or cancellation of the exemption. This application must be in the approved form, be accompanied by the permit and the prescribed fee and, if for an amendment, state clearly the amendment sought and the reasons for it. The Regulator must decide this application as soon as practicable after receiving it.

The Regulator is empowered by subsection (3) to require any additional information from the applicant that is reasonably required to decide the application.

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The Regulator must give notice to the applicant if it decides to grant the application. The amendment or cancellation takes effect when notice of the decision is given to the applicant or, if a later time is stated in the notice, at that time. If the exemption has been amended, the Regulator must give the applicant a replacement permit for the exemption as amended.

If the Regulator decides not to amend or cancel the exemption in the way sought by the applicant, subsection (6) requires the Regulator to give the applicant an information notice for the decision and return the permit for the exemption to the applicant. An information notice is defined in section 5 as a notice stating the decision, the reasons for the decision and the review and appeal information (also defined in section 5) for the decision.

Section 76 allows the Regulator to amend or cancel a vehicle standards exemption (permit) on the following grounds:

· the exemption was granted because of a false or misleading documentation or representation or one that was obtained or made in an improper way;

· the holder of the permit has contravened a condition of the exemption;

· the use of a heavy vehicle on a road under the exemption has caused, or is likely to cause, a significant safety risk;

· since the exemption was granted, there has been a change in the circumstances and had these changed circumstances existed when the exemption was granted, the Regulator would not have granted the exemption in the first instance or would have granted the exemption subject to conditions or different conditions.

It also sets out procedural requirements, including notification of the proposal to amend or cancel the vehicle standards exemption (permit), giving the permit holder at least 14 days to make written representations as to why the Regulator should not amend or cancel the vehicle standards exemption (permit), considering all written representations made and giving notice of the decision to amend or cancel the vehicle standards exemption (permit). It also specifies when the amendment or cancellation takes effect.

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The intent of these requirements is to ensure transparency and fairness in the decision-making process. This is achieved by requiring adequate notice to be given to the permit holder and by ensuring that possible adverse consequences of such action can be presented to the Regulator for consideration.

Section 77 empowers the Regulator to immediately suspend a vehicle standards exemption permit where there is an immediate need to prevent or minimise serious harm to public safety or significant damage to road infrastructure. Subsection (2) sets out the procedures the Regulator must follow in exercising this power.

Section 78 empowers the Regulator, by notice given to the holder of a permit for a vehicle standards exemption (permit), to make minor amendments to a vehicle standards exemption (permit). Under this section, an amendment is considered minor if it is for a formal or clerical reason or does not adversely affect the holder’s interest.

As such amendments would not adversely affect the permit holder’s interest, there is no need to follow the procedural requirements that apply when an amendment or cancellation occurs under section 76.

Section 79 provides that the Regulator may require, by notice, a person to return a permit for a vehicle standards exemption (permit) to the Regulator if it has been amended or cancelled. It is an offence for a person to fail to comply with that notice within 7 days or within any longer period stated in the notice. The maximum penalty for non-compliance is $4000.

In the case of an exemption that has been amended, the Regulator must give the person a replacement permit in accordance with subsection 64(3).

Section 80 requires a person to apply for a replacement permit as soon as practicable after becoming aware that their permit is defaced, destroyed lost or stolen. The maximum penalty for a person not doing so is $4000.

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Subsection (2) states that if the Regulator is satisfied the permit has been defaced, destroyed, lost or stolen the Regulator must give the person a replacement permit as soon as practicable. The only valid reason why the Regulator could refuse the application for a replacement permit is if the Regulator is not satisfied that the permit has been defaced, destroyed, lost or stolen.

Subsection (3) states that if the Regulator decides not to give a replacement permit the Regulator must give the person an information notice for the decision. An information notice is defined in section 5 as a notice stating the decision, the reasons for the decision and the review and appeal information (also defined in section 5) for the decision.

Subsection (4) clarifies that the offence of failing to apply for a replacement permit cannot be committed where the person has already applied for cancellation of the permit.

Division 4 Operating under vehicle standards exemption

Section 81 creates a number of offences, each with a maximum penalty of $3000, where there has been a contravention of a vehicle standards exemption.

Under subsection (1) it is an offence for a person to contravene a condition of an exemption. This does not apply to a condition referred to in subsection (7), relating to the requirement for the driver of a heavy vehicle who is driving under a vehicle standards exemption (notice) to keep a copy of the Commonwealth Gazette notice or an information sheet about the exemption. This is because contravention of such a condition is an offence under section 82.

Under subsection (2) it is an offence for a person to use or permit the use of a vehicle on a road where that vehicle contravenes a condition of a vehicle standards exemption.

Under subsection (3) it is an offence for a person to use or permit a heavy vehicle to be used on a road in a way that contravenes a condition of a vehicle standards exemption.

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Subsection (4) clarifies that, if a heavy vehicle is exempt from compliance with a heavy vehicle standard, no offence is committed against this Law in relation to non-compliance with the standard from which it is exempt, so long as the heavy vehicle and its use on the road complies with the conditions of that exemption.

Subsection (5) specifies that, if a person commits an offence against subsection (1), (2) or (3), the person does not have the benefit of the exemption. The exemption does not operate in the person’s favour while the contravention continues and the relevant exemption must be disregarded in deciding whether the person has committed an offence in relation to a contravention of a heavy vehicle standard.

Subsection (6) operates to prevent any double jeopardy arising because a person has been denied the benefit of an exemption under subsection (5). A person can be charged with either the offence against this section or the offence against the contravention of the vehicle standard but must not be charged with both offences.

Section 82 applies if a vehicle standards exemption (notice) is subject to the condition that the driver of a heavy vehicle who is driving the vehicle under the exemption must keep a relevant document in the driver’s possession. A relevant document is either a copy of the Commonwealth Gazette notice for the exemption or a copy of an information sheet about the exemption.

If the driver does not comply with the condition both the driver and each relevant party for the driver commit an offence. A maximum penalty of $3000 applies for both offences. A relevant party for the driver means:

· if the driver is employed, the employer of the driver;

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· if the driver is a self-employed driver, a prime contractor of the driver;

· if the driver is making a journey for the operator of a vehicle, an operator of the vehicle.

Extending liability for the driver’s non-compliance to the employer, prime contractor or operator is to encourage all parties responsible for the use of the heavy vehicle to ensure that the exemption documentation is with the vehicle at all times. This will assist compliance, by ensuring drivers are aware of the exemption conditions and enabling authorised officers to readily ascertain whether a vehicle is exempted from vehicle standards and the conditions applying to the exemption.

When the relevant party is charged with an offence under this section that person does not have the benefit of the mistake of fact defence for the offence. However, that person does have the benefit of the reasonable steps defence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Subsection (6) specifies certain matters that are irrelevant in a proceeding and matters that constitute evidence in a proceeding against a relevant party. It provides that:

· it is irrelevant whether or not the driver has been or will be proceeded against or convicted. Thus it is not necessary to take action against a driver or to obtain a conviction against a driver in order to proceed against a relevant party;

· evidence a court has convicted a driver is evidence that the offence happened at the time and place, and in the circumstances, stated in the charge resulting in the conviction or evidence that the driver has paid an infringement penalty, is evidence that the offence happened at the time and place, and in the circumstances, stated in the infringement notice. These are intended to facilitate proof of the relevant facts.

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Section 83 requires a driver of a heavy vehicle driving under a vehicle standards exemption (permit) to keep a copy of the permit in the driver’s possession.

If the driver does not do so, both the driver and each relevant party for the driver commit an offence. A maximum penalty of $3000 applies for both offences. A relevant party for the driver means:

· if the driver is employed, the employer of the driver;

· if the driver is a self-employed driver, a prime contractor of the driver;

· if the driver is making a journey for the operator of a vehicle, an operator of the vehicle.

Extending liability for the driver’s non-compliance to the employer, prime contractor or operator is to encourage all parties responsible for the use of the heavy vehicle to ensure that the permit is with the vehicle at all times. This will assist compliance, by ensuring drivers are aware of the exemption conditions and enabling authorised officers to readily ascertain whether a vehicle is exempted from vehicle standards and the conditions applying to the exemption.

When the relevant party is charged with an offence under this section that person does not have the benefit of the mistake of fact defence for the offence. However, that person does have the benefit of the reasonable steps defence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that a person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Subsection (6) specifies certain matters that are irrelevant in a proceeding and matters that constitute evidence in a proceeding against a relevant party. It provides that:

· it is irrelevant whether or not the driver has been or will be proceeded against or convicted. Thus it is not necessary to take action against a driver or to obtain a conviction against a driver in order to proceed against a relevant party;

· evidence a court has convicted a driver is evidence that the offence happened at the time and place, and in the circumstances, stated in the charge resulting in the conviction;

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· evidence of details stated in an infringement notice is evidence that the offence happened at the time and place, and in the circumstances, stated in the infringement notice.

These are intended to facilitate proof of the relevant facts.

It is anticipated that to comply with the requirements of section 83, the relevant party will give a driver of a heavy vehicle driving under a vehicle standards exemption (permit) a copy of the permit granted to the relevant party. Subsection (2) makes it an offence for a driver who is driving the vehicle under a heavy vehicle standards (permit) granted to a relevant party who stops working for that relevant party to fail to return the copy of the permit to the relevant party as soon as reasonably practicable after the driver stops working for that party. The maximum penalty for the offence is $3000.

Part 3.3 Modifying heavy vehicles

Section 84 defines modification to limit the expression to alterations or changes resulting in non-compliance with an applicable vehicle standard, or a departure from an applicable vehicle standards exemption already in place (other than a departure bringing the vehicle into full compliance with all applicable vehicle standards).

Section 85 creates offences in relation to unauthorised vehicle modifications.

Under subsection (1) it is an offence for a person to modify a heavy vehicle unless the modification has been approved by an approved vehicle examiner under section 86 or by the Regulator under section 87. The maximum penalty for this offence $3000.

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Under subsection (2) it is an offence for a person to use or permit to be used on a road a heavy vehicle that has been modified unless the modification has been approved by an approved vehicle examiner under section 86 or by the Regulator under section 87. The maximum penalty for this offence is $3000.

It is intended that under section 85, responsibility for any unauthorised modifications to heavy vehicles be extended to all persons involved in the modification process and in the use of the modified vehicle.

Section 86 empowers an approved vehicle examiner, if authorised to do so by the national regulations, to approve a modification of a heavy vehicle if the modification complies with a code of practice prescribed by the national regulations for this section.

Unlike a modification approved by the Regulator under section 87, the examiner does not have to consider whether the modification will constitute a significant safety risk. This is because the examiner does not have the same broad discretion to approve a modification even if it does not comply with a prescribed code of practice.

Subsection (3) specifies what an approved vehicle examiner must do if the examiner approves a modification. The examiner must give a certificate approving the modification in the approved form to the registered operator of the vehicle or, if there is no registered operator of the vehicle, to an owner of the vehicle and must ensure a plate, in the approved form that is stamped or engraved with details of the modification is fitted to a conspicuous part of the vehicle. Failure to comply with this requirement is an offence, with a maximum penalty of $3000.

Section 87 authorises the Regulator to approve a modification of a heavy vehicle if the Regulator is satisfied that the use on a road of the heavy vehicle as modified will not pose a significant safety risk or the modified vehicle will comply with applicable noise and emission standards prescribed by national regulations, or the Regulator is satisfied that the modified vehicle complies with the requirements of any exemption from a noise or emission standard.

Unlike an examiner under section 86, the Regulator may approve a modification even if the modification does not comply with a prescribed code of practice.

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This is intended to enable the Regulator to approve a modification where a code of practice approving such a modification is not yet published or published code does not apply. However, the Regulator is bound by the duty to be satisfied that the modification will not pose a significant safety risk.

Similar to the requirements placed on an examiner under section 86(3), section 87(3) specifies what the Regulator must do if it approves a modification. It must give a certificate approving the modification in the approved form to the registered operator of the vehicle or, if there is no registered operator of the vehicle, to an owner of the vehicle and must ensure a plate, in the approved form that is stamped or engraved with details of the modification is fitted to a conspicuous part of the vehicle.

Subsection (4) establishes the requirements for a plate or label that operates as evidence of the Regulator’s approval of a modification.

Section 88 establishes a general head of power for the making of regulations with respect to the modification of heavy vehicles.

Part 3.4 Other offences

Section 89 creates an offence for a person to use, or permit to be used, on a road a heavy vehicle that is unsafe. The maximum penalty for non-compliance is $6000.

The inclusion of the phrase ‘permit to be used’ in subsection (1) extends the responsibility beyond the driver of the heavy vehicle and is intended to require persons responsible for a heavy vehicle to ensure the vehicle is safe.

Subsection (3) authorises the movement of these vehicles through the use of vehicle defect notices where the vehicle complies with any conditions imposed through the notice.

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Section 90 sets out requirements about properly operating emission control systems for a relevant emission. A relevant emission refers to a gas, particles or noise emission. An emission control system refers to a device or system fitted to a vehicle that reduces the emission of a relevant emission from the vehicle. The Law does not require all heavy vehicles to be fitted with a gaseous emission control system if they were built before the relevant emissions control ADR (Australian Design Rule) came into force.

Subsection (1) creates an offence for a person to use, or permit to be used on a road a heavy vehicle that is not fitted with an emission control system for a relevant emission if one is required to be fitted by an applicable heavy vehicle standard, the maximum penalty for non-compliance being $3000.

Subsection (2) creates an offence for a person to use, or permit to be used on a road a heavy vehicle fitted with such a system if the system is not operating in accordance with the manufacturer's design. The maximum penalty for non-compliance is $3000.

The inclusion of the phrase ‘permit to be used’ in subsection (1) and (2) extends the responsibility beyond the driver of the heavy vehicle and is intended to require persons responsible for a heavy vehicle to ensure the vehicle is compliant. Requiring that the emission control system must be operating substantially in accordance with the system’s intended purpose is to ensure that persons cannot escape liability for having an ineffective or damaged emission control system.

Subsection (3) makes it an offence to use, or permit to be used, on a road a heavy vehicle fitted with an emission control system if the operation of the system results in a failure to comply with an applicable heavy vehicle standard. This is necessary to address a concern that an aftermarket component such as an exhaust pipe may be operating in the way it is intended but still leaves the vehicle in an unsatisfactory state.

Subsection (4) clarifies that offence in subsection (2) or (3) does not apply if the vehicle is travelling on the most direct or convenient route to a place of repair for the emission control system, or any of the vehicle’s components or equipment that affect the operation of the system.

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Subsection (5) allows national regulations to be made that prescribe testing standards for emissions from heavy vehicles.

Section 91 makes it an offence to tamper with an emissions control system or permitting a heavy vehicle to be used in circumstances where it is known or ought to be known that the emissions control system has been tampered with. The new section excludes the mistake of fact defence and in its place provides for the reasonable steps defence to be raised.

Section 92 states that if, under the heavy vehicle standards, a warning sign is required to be displayed on a heavy vehicle of a particular type, size or configuration (such as a sign showing the words ‘LONG VEHICLE’ or ‘ROAD TRAIN’) a person must not use, or permit to be used, on a road a heavy vehicle that has the warning sign displayed on it unless the vehicle is of the particular type, size or configuration. The maximum penalty for non-compliance is $3000.

This section is intended to ensure that warning signs are only used for vehicles that, under the heavy vehicle standards, are required to use them.

Section 93 creates an offence for a person to tamper with a speed limiter that is required under an Australian road law to be, and is, fitted to a heavy vehicle.

A speed limiter is defined as a device or system used to limit the maximum road speed of a heavy vehicle to which it is fitted. To tamper with a speed limiter means to alter, damage, remove or otherwise interfere with the speed limiter to the effect of enabling the vehicle to be driven at a higher speed than the speed limiter would permit.

Subsection (2) prohibits a person from fitting or directing another person to fit a speed limiter to a heavy vehicle in circumstances where the person knows or ought reasonably to know that the speed limiter has been tampered with.

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Subsection (3) prohibits an operator of a heavy vehicle from permitting the vehicle to be driven on a road if the operator knows, or ought reasonably to know, that a speed limiter fitted to the vehicle, as required under an Australian road law or by order of an Australian court, has been tampered with. An exception to this requirement is created by subsection (5), which provides that subsection (3) does not apply where the vehicle is on a journey to a place for the repair of the speed limiter.

Subsection (4) clarifies that, if the relevant conduct is associated with the repair of a malfunctioning speed limiter, no offence is committed.

The maximum penalty for tampering with a speed limiter is $10000, which is significantly higher than other offences in this Chapter. This indicates the gravity of, and safety risks associated with, the offence.

A person charged with an offence for tampering with a speed limiter does not have the benefit of the mistake of fact defence for the offence. However the person does have the benefit of the reasonable steps defence for the offence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Section 93 is different to other offence provisions in this Chapter as it does not extend responsibility to a person who uses, or permits to be used, a heavy vehicle with a tampered speed limiter. The offence is intended to be limited to the person who physically performs or authorises the tampering.

Chapter 4 Vehicle operations—mass, dimension and loading

Part 4.1 Preliminary

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Section 94 states that the main purposes of Chapter 4. The main purposes are:

· To improve public safety by decreasing risks to public safety caused by excessively loaded or excessively large heavy vehicles; and

· To minimise any adverse impact of excessively loaded or excessively large heavy vehicles on road infrastructure or public amenity.

Subsection (2) states that these purposes are achieved by:

· imposing mass limits for heavy vehicles, particular components of heavy vehicles, and loads on heavy vehicles;

· imposing restrictions about the size of heavy vehicles and the projections of loads on heavy vehicles;

· imposing requirements about securing loads on heavy vehicles;

· restricting access to roads by heavy vehicles of a particular mass, size or configuration even if the vehicles comply with the mass limits, restrictions and requirements mentioned above (Class 2 vehicles).

However, subsection (3) states that particular heavy vehicles that do not comply with mass limits, restrictions and requirements (Class 1 and Class 3 vehicles) may be permitted to be used on roads subject to conditions when such use would be allowed for the efficient road transport of goods or passengers by heavy vehicles provided that its use does not compromise the safety or infrastructure protection purposes of Chapter 4.

Part 4.2 Mass requirements

Division 1 Requirements

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Section 95 authorises regulations to prescribe requirements about the mass of heavy vehicles and their components. The requirements apply not only to the heavy vehicle as a whole but also to combinations and to parts of the vehicle or combination. These requirements are referred to as prescribed mass requirements. In addition, subsection (4) authorises regulations to prescribe requirements that are not mass requirements but are about the use, on roads, of heavy vehicles under particular mass limits such as Higher Mass Limits. Examples are provided of requirements that the regulations are authorised to make including route restrictions and requirements to display signs on heavy vehicles.

Section 96 states that a person must not drive on a road a heavy vehicle that (together with its load) does not, or whose components do not, comply with the mass requirements applying to the vehicle. The maximum penalty for contravening this requirement depends on the extent of the breach and whether it is classified as a: minor (maximum penalty $4000); substantial (maximum penalty $6000) or severe risk breach (maximum penalty $10000 plus $500 for every additional 1% above 120% to a maximum incremental penalty of $20000, (the total penalty will not exceed $30000 for an individual)). These categories of breach are defined in Part 4.2, Division 2 of this Bill (section 97 to 100).

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence. However, in a proceeding for an offence under this section the person does have the benefit of the reasonable steps defence for the offence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Subsection (4) allows the mass limit for a PBS vehicle to be established in the PBS vehicle approval. Under this subsection the limit stipulated in the approval is taken to be the applicable limit, and the vehicle is regarded for the purposes of this Law as complying with the prescribed mass requirements.

Division 2 Categories of breaches of mass requirements

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Section 97 defines the terms severe risk breach lower limit and substantial risk breach lower limit . These terms are important for determining the maximum penalty applying to a breach of a mass requirement.

The substantial risk breach lower limit, in relation to a particular mass requirement applying to a heavy vehicle, is a mass equalling 105% of the maximum mass (rounded up to nearest 0.1t) permitted for the vehicle under the mass requirements or 0.5t over the maximum mass permitted for the vehicle. The effect of this definition is that the substantial risk breach lower limit will never be reached if the heavy vehicle’s mass is less than 0.5t over the mass permitted for the vehicle.

The severe risk breach lower limit is a mass equalling 120% of the maximum mass (rounded up to nearest 0.1t) permitted for the vehicle under the mass requirements.

Sections 98, 99 and 100 combine to apply the definitions of substantial risk breach lower limit and severe risk breach lower limit to effect that a contravention of a mass requirement applying to a heavy vehicle will be classified as:

· A minor risk breach if the subject matter of the contravention is less than the substantial risk breach lower limit for the requirement. Note: A heavy vehicle with a total mass less than 0.5t over the maximum mass permitted for the vehicle will always be a minor risk breach under this Division.

· A substantial risk breach if the subject matter of the contravention is equal to or greater than the substantial risk breach lower limit for the requirement and less than the severe risk breach lower limit for the requirement.

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· A severe risk breach if the subject matter of the contravention is equal to or greater than the severe risk breach lower limit.

The operation of the penalty regime for breaches of a mass requirement can be summarised in the following flowchart:

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Figure 1 – Flowchart summarising penalty regime for breaches of a mass requirement by a heavy vehicle

Part 4.3 Dimension requirements

Division 1 Requirements

Section 101 authorises regulations to prescribe requirements about the dimensions of a heavy vehicle, a component of a heavy vehicle and the dimensions of a heavy vehicle’s load. These requirements are referred to as dimension requirements. In addition, subsection (3) authorises the national regulations to prescribe requirements that are not dimension requirements but are about the use of a vehicle to which a dimension requirement applies. This regulation making power is used to impose such requirements as using warning signs and having a heavy vehicle accompanied by an escort or pilot vehicle.

Section 102 states that a person must not drive on a road a heavy vehicle that (together with its load) does not, or whose components do not, or whose load does not, comply with the dimension requirements applying to the vehicle.

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If the heavy vehicle does not have goods or passengers in it the maximum penalty for an offence under this section is $3000. If the heavy vehicle does have goods or passengers in it, the extent of the penalty will depend on whether the breach is categorised as a minor risk breach (maximum penalty $3000), a substantial risk breach (maximum penalty $5000) or a severe risk breach (maximum penalty $10000). These categories of breach are defined in Part 4.3, Division 2 (sections 105 – 107).

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence. However, in a proceeding for an offence under this section the person does have the benefit of the reasonable steps defence for the offence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Subsection (4) allows the dimension limit for a PBS vehicle to be established in the PBS vehicle approval. Under this subsection the limit stipulated in the approval is taken to be the applicable limit, and the vehicle is regarded for the purposes of this Law as complying with the prescribed dimension requirements.

Division 2 Categories of breaches of dimension requirements

Section 103 restricts the application of Division 2 to a heavy vehicle only while it is carrying goods or passengers. This restriction is required to ensure that risk categorisations created for dimensional breaches apply only to laden vehicles. Beaches of internal dimension limits are not intended to be penalised on this basis but rather will be subject to the obligations set out in the regulations made under Chapter 3 dealing with vehicle standards.

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Section 104 provides definitions for the terms severe risk breach lower limit and substantial risk breach lower limit in relation to dimension requirements. These terms are used to classify a breach of a dimension requirement as a minor, substantial or severe risk breach under this Division. These definitions provide for the operation of both terms in relation to length, width, height and load projection dimensions of the heavy vehicle.

A ‘substantial risk breach lower limit’ means:

· In relation to a dimension requirement concerning length: the maximum length permitted for the vehicle under the dimension requirements plus 350mm.

· In relation to a dimension requirement concerning width: the maximum width permitted for the vehicle under the dimension requirements plus 40mm.

· In relation to a dimension requirement concerning height: the maximum height permitted for the vehicle under the dimension requirements plus 150mm.

· In relation to a dimension requirement concerning the projection of a load, the maximum load projection permitted for the vehicle under the dimension requirements plus 40mm.

A ‘severe risk breach lower limit’ means:

· In relation to a dimension requirement concerning length: the maximum length permitted for the vehicle under the dimension requirements plus 600mm.

· In relation to a dimension requirement concerning width: the maximum width permitted for the vehicle under the dimension requirements plus 80mm.

· In relation to a dimension requirement concerning height: the maximum height permitted for the vehicle under the dimension requirements plus 300mm.

· In relation to a dimension requirement concerning the projection of a load: the maximum load projection permitted for the vehicle under the dimension requirements plus 80mm.

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Section 105 states when a contravention of a dimension requirement is a minor risk breach . Under section 105, a contravention of a dimension requirement is a minor risk breach if the subject matter of the contravention is less than the substantial risk breach lower limit for the requirement.

Section 106 states when a contravention of a dimension requirement is a substantial risk breach. A contravention of a dimension requirement is a substantial risk breach if the subject matter of the contravention is equal to or greater than a substantial risk breach lower limit for the requirement and less than the severe risk breach lower limit for the requirement.

However, a breach that would ordinarily be classified as a minor risk breach of the dimension requirement under section 104 is to be treated as a substantial risk breach if any escalating factors mentioned in subsection (2) or (3) are present.

The escalating factors are:

· where the contravention relates to length:

· a warning sign or device is not carried on the rear of the vehicle’s load as required by the national regulations; or

· the vehicle’s load projects in a way that is dangerous to persons or property;

· where the contravention relates to width:

· the contravention happens at night; or

· the contravention happens in hazardous weather conditions causing reduced visibility.

Providing for the risk category to be escalated from minor to substantial in certain circumstances recognises that in these circumstances the risk of adverse consequences arising from the breach is increased. Providing for risk categories to be escalated on this basis allows situations of contravention of requirement occasioning a greater risk to attract a greater maximum penalty.

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Section 107 states when a contravention of a dimension requirement is a severe risk breach. A contravention of a dimension requirement is a severe risk breach when the subject matter of the contravention is equal to or greater than a severe risk breach lower limit for the requirement.

However, a breach that would ordinarily be classified as a substantial risk breach under section 106(1)(a) is to be regarded as a severe risk breach if any escalating factors mentioned in section 107(2) or (3) are present.

The escalating factors are:

· For a contravention relating to length:

· a warning sign or device is not carried on the rear of the vehicle’s load as required by the national regulations; or

· the vehicle’s load projects in a way that is dangerous to persons or property.

· For a contravention relating to width:

· the contravention happens at night; or

· the contravention happens in hazardous weather conditions causing reduced visibility.

Providing for the risk category to be escalated from substantial to severe in certain circumstances recognises that in these circumstances the risk of adverse consequences arising from the breach is increased. Providing for risk categories to be escalated on this basis allows situations of contravention of requirement occasioning a greater risk to attract a greater maximum penalty.

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The following flowchart summarises the operation of the basic penalty regime for contravention of a dimension requirement by a heavy vehicle.

( NOTE: This flowchart does not include contraventions of a dimension requirement under section 108) :

Annexure 1

Figure 2 – Summary of basic penalty regime for breaches of a dimension requirement for a heavy vehicle

Division 3 Other provisions relating to load projections

Section 108 states that when a load projects in a way dangerous to persons or property a minor risk breach of a dimension requirement occurs even if all dimension requirements, warning and other requirements are met. If such a load projection contravention happens at night or in hazardous weather conditions causing reduced visibility, the contravention is escalated to a substantial risk breach of a dimension requirement. Complying with dimension and related requirements is not sufficient to avoid a penalty when the load projects in a way dangerous to persons or property.

Section 109 provides for warning signals for rear projections loads when the load projects more than 1.2 metres behind a heavy vehicle or the load projects from a pole-type trailer or the load projects in a way that would not be readily visible to a person following immediately behind the vehicle. These warning signals provide an indication to following road users that the project of the load is greater than they may otherwise expect.

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Under this section, a person commits an offence if a load projects behind a heavy vehicle as described above and a warning flag (required when the vehicle is operated during the day time) or a warning light (required when the vehicle is operated during the night time) is not fixed to the extreme back of the load. The maximum penalty for not complying with the requirements of this section is $3000.

Part 4.4 Loading requirements

Division 1 Requirements

Section 110 authorises regulations to prescribe requirements about securing a load on a heavy vehicle or a component of heavy vehicle. These regulations are referred to as loading requirements. The regulations may include, but are not limited to, including requirements about the restraint or positioning of a load or any part of it on a motor vehicle or trailer.

Section 111 states that persons must not drive on a road a heavy vehicle that does not, or whose load does not, comply with the loading requirements applying to the vehicle. The penalty for not complying with loading requirements will depend on the extent of the breach and whether it is classified as a minor risk breach (maximum penalty $3000); substantial risk breach (maximum penalty $5000); or severe risk breach (maximum penalty $10000).

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence. However, in a proceeding for an offence under this section the person does have the benefit of the reasonable steps defence for the offence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Division 2 Categories of breaches of loading requirements

Sections 112, 113 and 114 provide when a contravention of a leading requirement will be categorised as a minor, substantial or severe risk breach to determine the extent of penalty applying to an offence of breaching a loading requirement.

In sections 112 - 114, determining whether a risk breach is minor, substantial or severe depends on:

· Whether the contravention involved an actual loss or shifting of the load; and

· The actual or potential effect of a contravention on safety, road infrastructure or public amenity.

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If the subject matter of the contravention involved no actual loss or shifting of the load:

· the contravention can never be classified as a severe risk breach of a loading requirement under this division and;

· the contravention is a substantial risk breach if, had the loss or shifting of the load occurred, it would likely have involved an appreciable safety risk, an appreciable risk of damage to road infrastructure or an appreciable risk of causing an adverse affect on public amenity. If the consequences of the contravention would not likely have given rise to these effects, the contravention is classified as a minor risk breach.

If the subject matter of the contravention does involve an actual loss or shifting of the load:

· the contravention can never be classified as a minor risk breach of a loading requirement under this division and;

· the contravention is a severe risk breach if the loss or shifting of the load involves an appreciable safety risk or an appreciable risk of damage to road infrastructure or an appreciable risk of causing an adverse affect on public amenity. If the consequences of the contravention would not likely have given rise to these effects, the contravention is classified as a substantial risk breach.

Annexure 1

The flowchart on the following page summarises the operation of the penalty regime for the breach of a loading requirement applying to a heavy vehicle.

Figure 3 - Summary of penalty regime for breaches of a loading requirement for a heavy vehicle

Division 3 Evidentiary provision

Section 115 concerns certain evidence in proceedings for an offence in regard to a contravention of a loading requirement. Under this section:

· evidence that a load on a heavy vehicle was not placed, secured or restrained in a way that met a performance standard in the Load Restraint Guide as in force at the time, is evidence that the load was not placed, secured or restrained in compliance with a loading requirement applying to the vehicle.

· evidence that a load, or part of the load, has fallen off a heavy vehicle is evidence that the load was not properly secured.

· a court must presume a document purporting to be the Load Restrain Guide, as in force at the time of the offence is the Load Restraint Guide as in force at the time of offence, until the contrary is proved.

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Subsection (2) defines Load Restraint Guide as a document of that name prepared by the National Transport Commission and published in the Commonwealth Gazette, from time to time. A legislative note indicates that this is able to be accessed from the National Transport Commission’s website. Section 115 gives the content of the Load Restraint Guide, produced by the National Transport Commission, a critical role in determining and proving what a contravention of a loading requirement is. The Load Restraint Guide is developed by the National Transport Commission after consultation with stakeholders.

Part 4.5 Exemptions for particular overmass or oversize vehicles

Division 1 Preliminary

Section 116 defines when a heavy vehicle is a class 1 heavy vehicle or a class 3 heavy vehicle. These definitions are important for determining exemptions under this chapter as there are differences in the types of conditions that are imposed on class 1 heavy vehicles as compared to class 3 heavy vehicles. Class 1 heavy vehicles are subject to specific conditions to ensure that they may be used safely on public roads. The effect of the definitions of class 1 and class 3 heavy vehicles in this section is that all heavy vehicles that do not comply with mass or dimension requirements applying to it are either class 1 or class 3 heavy vehicles. Part 4.5 of the Law provides that these vehicles may only operate on public roads if the Regulator issues a Class 1 or Class 3 notice or permit.

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Subsection (1) defines a vehicle as a class 1 heavy vehicle if the vehicle, together with its load, does not comply with a mass requirement or dimension requirement applying to it and it is either:

· a special purpose vehicle. A special purpose vehicle is defined in subsection (4) and includes concrete pumps, fire engines and motor vehicles built for a purpose other than carrying goods (such as a mobile crane); or

· an agricultural vehicle other than an agricultural trailer. An agricultural vehicle is defined in section 5; or

· a heavy vehicle carrying or designed for the purpose of carrying, a large indivisible item, including, for example, a combination including a low loader; but is not a road train or B-double, or carrying a freight container designed for multi-modal transport. Subsection (4) defines the term large indivisible item for this section. A large invisible item is an item that cannot be divided into smaller items without extreme effort, expense or risk of damage and it cannot be carried without contravening a mass or dimension requirement.

Subsection (1) stipulates that agricultural trailers (whether or not they exceed mass and dimension requirements) are to be treated as Class 1, and not Class 3, heavy vehicles. This allows for these trailers to be subject to Class 1 rather than Class 3 notices or permits and for the standard conditions that are to apply to Class 1 vehicles as a result of the regulations made under this Chapter to be used for these notices or permits.

Subsection (4) defines a class 3 heavy vehicle as any other heavy vehicle not classified as a class 1 heavy vehicle that, together with its load, does not comply with a mass requirement or dimension requirement applying to it.

Division 2 Exemptions by Commonwealth Gazette notice

Annexure 1

Section 117 empowers the Regulator, by Commonwealth gazette notice complying with section 121, to exempt a category of class 1 or 3 heavy vehicles from a mass or dimension requirement for a period not more than 5 years. These exemptions are referred to as mass or dimension exemption (notice).

Limitations to the power of the Regulator to issue a mass or dimension exemption (notice) in this section are:

· a mass or dimension exemption (notice) must not be issued by the Regulator for a period more than 5 years; and

· a mass or dimension exemption (notice) must not be issued by the Regulator exempting a vehicle from a mass requirement relating to a heavy vehicle’s GVM (Gross Vehicle Mass) or GCM (Gross Combination Mass); and

· a mass or dimension exemption (notice) must not be issued by the Regulator exempting a vehicle from a mass requirement relating to a maximum mass limit for a heavy vehicle, or a component of a heavy vehicle, set by the manufacturer of the vehicle or component.

A legislative note to section 117 indicates that Division 3, Part 4.7 should be read when considering the amendment, suspension or cancellation of a mass or dimension exemption (notice).

Section 118 further limits the power of the Regulator to grant a mass or dimension exemption (notice) by stating that a mass or dimension exemption (notice) must not be granted for a category of heavy vehicles unless the matters mentioned in subsection (1) and (2) are present.

The matters mentioned in subsections (1) and (2) that are all required to be present prior to a mass or dimension exemption (notice) being issued are:

· the Regulator is satisfied the use of heavy vehicles of that category on a road under the exemption will not pose a significant risk to public safety.

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· each relevant road manager for the exemption has consented to the grant of the mass or dimension exemption (notice).

· the Regulator is satisfied that all other consents required for the exemption under the law of the relevant jurisdiction have been obtained by the applicant or have been otherwise given.

· the Regulator has had regard to the approved guidelines (defined in section 5 as guidelines approved by responsible Ministers under section 653) for granting mass or dimension exemptions in making the decision whether to grant the mass or dimension exemption (notice). The requirement in subsection (1)(b) that each road manager consent to the grant of the issue of a grant or mass dimension exemption (notice) ensures that all road managers affected by the granting of the exemption have an opportunity to maintain control over the use of heavy vehicles on roads under their authority. This allows road managers to have regard to the impact of an exemption on its road assets.

Section 119 specifies the conditions that must be included on a mass or dimension exemption (notice), authorises regulations to make conditions for the exemption and empowers the Regulator to subject the exemption to any other conditions it considers appropriate. Under section 119 a mass or dimension exemption (notice) is also subject to the road conditions or travel conditions required by a relevant road manager for the exemption under section 160 or 161.

A significant provision in section 119 is subsection (1)(a), which requires a compulsory condition regarding the areas or routes to which the exemption applies for all mass or dimension exemptions (notice). The requirement to include a condition about specifying areas ensures that the geographical extent of the exemption is always clearly stated. Subsection (2) provides that the route restrictions may be stated on map by the Regulator. Subsection (3) prescribes requirements for such a map that the Regulator must follow, including a requirement to make the map publicly available.

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Subsection (1)(b) authorises the regulations to prescribe conditions for the exemption. These regulations may prescribe conditions that are to apply only to particular areas or roads and may authorise the Regulator to decide the areas or roads to which the conditions are to apply.

Subsection (1)(d) empowers the Regulator to subject a mass or dimension exemption (notice) to any conditions it considers appropriate including, but not limited to:

· conditions about 1 or more matters mentioned in Schedule 2. Schedule 2 concerns subject matter for conditions of mass or dimension authorities. A mass or dimension exemption (notice) is included in the definition of a mass or dimension authority in section 5;

· intelligent access conditions; or

· a condition that the driver of a class 1 heavy vehicle or class 3 heavy vehicle who is driving the vehicle under the exemption must keep in the driver’s possession a copy of the Commonwealth Gazette notice for the exemption; or an information sheet about the exemption published by the Regulator on the Regulator’s website.

Subsection (4) clarifying that the Regulator may only extend, or add to the condition stating the areas or routes, if the relevant road manager has consented to a grant that includes the relevant areas or routes.

Section 120 states when a mass or dimension exemption (notice) takes effect when the Commonwealth Gazette notice for the exemption is published or if a later time is stated in the notice, at the later time.

Paragraph (b) states that the mass or dimension exemption (notice) applies for the period stated on the Commonwealth Gazette notice. However, this is limited by the requirement in section 117 that a mass or dimension exemption (notice) cannot be granted for a period of more than 5 years.

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Section 121 states the requirements for the Commonwealth Gazette notice required for a mass or dimension exemption (notice). These include stating the category of heavy vehicle to which the exemption applies, the mass and dimension requirements to which the exemption applies, the areas or routes to which the exemption applies, the conditions imposed by regulations for the exemption, the road conditions required by a relevant road manager, and the period for which the exemption applies. The Regulator is also required to publish a copy of the Commonwealth Gazette notice on its website.

Division 3 Exemptions by permit

Section 122 empowers the Regulator to exempt, by permit as mentioned in section 127, a class 1 or 3 heavy vehicle from compliance with a mass or vehicle requirement for a period not more than 3 years. Such an exemption is referred to as a mass or dimension exemption (permit).

Limitations to the Regulator’s power under section 122 are:

· a mass or dimension exemption (permit) must not be granted for a period more than 3 years;

· a mass or dimension exemption (permit) must not be issued by the Regulator exempting a vehicle from a mass requirement relating to a heavy vehicle’s GVM (gross vehicle mass) or GCM (gross combination mass). (An exception to the GCM limitation is provided in subsection (2) where there are multiple hauling units as GCMs are specified for operation of a heavy vehicle when used alone to tow other vehicles).

· a mass or dimension exemption (permit) must not be issued by the Regulator exempting a vehicle from a mass requirement relating to a maximum mass limit for a heavy vehicle, or a component of a heavy vehicle, set by the manufacturer of the vehicle or component.

A legislative note to section 122 indicates that Division 4, Part 4.7 should be read when considering the amendment, suspension or cancellation of a mass or dimension exemption (notice).

Annexure 1

Section 123 states how a person may apply to the Regulator for mass or exemption (permit). This application must be in the approved form and be accompanied by the relevant prescribed fee. The Regulator is empowered by subsection (3) to require the applicant to give the Regulator any additional information reasonably required to decide the application.

Section 124 further limits the power of the Regulator to grant a mass or dimension exemption (permit) by stating that a mass or dimension exemption (permit) must not be granted for a category of class of heavy vehicles unless all of the factors mentioned in subsections (1) and (2) are present.

The factors in section 124(1) and (2) are:

· the Regulator is satisfied the use of heavy vehicles of that category on a road under the exemption will not pose a significant risk to public safety (section 124(1)(a));

· each relevant road manager for the exemption has consented to the grant of the mass or dimension exemption (permit) (section 124(1) (b)); and

· the Regulator is satisfied that all consents required for the exemption under the law of the relevant jurisdiction have been obtained by the applicant or have been otherwise given (section 124(1)(c));

· the Regulator has had regard to the approved guidelines (defined in section 5 as guidelines approved by responsible Ministers under section 653) for granting mass or dimension exemptions in making the decision whether to grant the mass or dimension exemption (permit) (section 124(2)).

The requirement in section 124(1)(b) that each road manager consent to the grant of the issue of a grant or mass dimension exemption (notice) is intended to ensure that all road managers affected by the granting of the exemption have an opportunity to maintain control over the use of heavy vehicles on roads under their authority. This allows road managers to have regard to the impact of an exemption on its road assets.

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Section 125 specifies the conditions that must be included on a mass or dimension exemption (permit), authorises the national regulations to make conditions for the exemption and empowers the Regulator to subject the exemption to other conditions it considers appropriate.

A significant provision in section 125 is subsection (1)(a) which requires a compulsory condition regarding the areas or routes to which the exemption applies for all mass or dimension exemptions (permit). This section ensures that the geographical extent of an exemption is always clearly stated.

It is to be noted that there is no provision for the indicating of the areas and roads the exemption applies to by virtue of a map in section 125. This is a point of difference between the condition requirements for a mass or dimension exemption (permit) and the condition requirements for a mass or dimension exemption (notice). The reason for this difference is that notices apply to any operator whose heavy vehicle meets the specified requirements of the notice and it is necessary for the Regulator to make available to these operators information about the areas and roads on which the relevant vehicle may be used.

Section 126 states when a mass or dimension exemption (permit) commences and the time period it applies for. A mass or dimension exemption (permit) may apply for a period less than the period sought by the applicant.

Under section 126 a mass or dimension exemption (permit) applies for the period stated in the permit for the exemption. This period may be less than the period sought by the applicant.

The scope for the permit to state its applicable time period is limited by the requirement in section 122 that a mass or dimension exemption (permit) cannot be granted for a period of more than 3 years.

Section 127 requires the Regulator to give the applicant a permit stating certain information if the Regulator grants a mass or dimension exemption (permit). Subsection (1)(b) specifies that if the Regulator has imposed conditions on the permit (including the compulsory conditions in section 125) or granted the exemption for a period less than 3 years) an information notice for these decisions must also be provided to the applicant. The section also specifies other information to be included such as the name of the permit holder, the heavy vehicles to which the exemption applies, the mass or dimension requirements to which the exemption applies, the areas and routes to which the exemption applies, the conditions to which the exemption applies, and the period for which the exemption applies.

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Subsection (2)(b) facilitates the issuing of so-called ‘farm gate’ permits. These permits authorise the movement of heavy vehicles on roads without necessarily knowing the details of the exact vehicle that will perform the relevant transport task. It does so recognising the registration details may not be known at the time of issuing.

Section 128 states that if the Regulator refuses an application for a mass or dimension exemption (permit), it must give an information notice for the decision to the applicant.

A legislative note indicates that section 166 sets out the requirements for an information notice when a relevant road manager decides not to give consent to the grant of a mass or dimension exemption (permit).

Division 4 Operating under mass or dimension exemption

Section 129 makes it an offence to drive a heavy vehicle under a mass or dimension exemption that does not comply with a condition of exemption and prescribes a maximum penalty of $6000 where either:

· a person contravenes a condition of an exemption, whether it has been given by notice or permit, (apart from one referred to in subsection (7), relating to an obligation to carry a copy of a notice, or information about it, that has been published in the Commonwealth Gazette); or

· a vehicle contravenes a condition (in which case the person using or permitting the use of the vehicle on a road is liable); or

· the way in which the vehicle is used contravenes a condition (in which case the person who used or permitted it to be used in that way is liable).

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Subsection(4) states that if a heavy vehicle is exempt from a mass or dimension requirement and is being used in compliance with the conditions of that exemption a person does not commit an offence against this Bill in relation to the standard it from which it is exempt from.

Subsection (5) states that if a condition offence (defined in subsection (8) as an offence against subsection (1), (2) or (3)) is committed in relation to an exemption, that exemption does not operate in the person’s favour while the contravention constituting the condition offence continues. This means that risk category for the offence of breaching a mass or dimension requirement will be based on the mass or dimension requirement that would have apply to the heavy vehicle but for the exemption.

Further, the relevant exemption must be disregarded in deciding whether the person has committed an offence in relation to a contravention of a heavy vehicle standard applying to a heavy vehicle. Subsection (7) excludes from subsection (1) a condition that the driver keep a relevant document (such as the notice) in their possession while driving. This is done to ensure that an offence for not carrying a document is subject to a lower penalty, being $3000.

Subsection (6) ensures that a person denied the benefit of an exemption because of the operation of subsection (5), cannot be charged with both the offence of contravening the exemption and the offence which may have been committed in contravening the mass or dimension requirement from which the exemption has ceased to be available.

Section 130 requires a driver of a pilot or escort vehicle to comply with the conditions of the mass or dimension exemption applying to the heavy vehicle it is accompanying about the use of the pilot or escort vehicle when there is a condition of a mass or dimension exemptions requiring a heavy vehicle to be accompanied by a pilot vehicle or escort vehicle while the heavy vehicle is being used on a road. The terms pilot vehicle and escort vehicle are defined in section 5.

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If the driver of the pilot vehicle or escort vehicle does not comply with these conditions both that driver and the operator of the heavy vehicle are taken to have committed an offence with a maximum penalty of $6000. The inclusion of the operator of the heavy vehicle as a responsible party for this offence reflects the fact that the relevant condition applies to the heavy vehicle, for which the operator of the heavy vehicle is responsible for.

Subsection (4) deals with a prosecution of the operator of a heavy vehicle when the driver of the pilot vehicle or escort vehicle does not comply with conditions regarding its use. It provides:

· Whether or not the driver of the pilot or escort vehicle has been or will be proceeded against or convicted of the relevant offence is irrelevant. A decision not to proceed against or record a conviction against a driver under this section does not preclude the operator of a heavy vehicle from being charged or convicted under this section.

· Evidence a court has convicted the driver of the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the charge resulting in the conviction. This is intended to facilitate proof of the relevant facts.

· Details stated in an infringement notice issued for the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the infringement notice.

Section 131 requires the driver of a pilot vehicle to ensure that the pilot vehicle does not accompany a heavy vehicle which contravenes a mass or dimension exemption condition. If a pilot vehicle does accompany a heavy vehicle that contravenes a condition of its mass or dimension exemption the driver of the pilot vehicle commits an offence with a maximum penalty of $6000.

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When the driver of the pilot vehicle, able to be prosecuted under this section, and the operator of the heavy vehicle contravening the condition of the mass or dimension exemption are the same person, subsection (2) provides that the person may be prosecuted for either the general contravention of a condition of a mass or dimension exemption as the operator of the heavy vehicle or as the driver of the accompanying pilot vehicle but not both.

Section 131 places an obligation upon the drivers of pilot vehicles to be aware of the conditions of mass or dimension exemptions applying to the heavy vehicles they are accompanying and ensure that the heavy vehicles continue to comply with these conditions.

However, to restrict the circumstances in which the driver of a pilot vehicle may be found liable for accompanying a heavy vehicle contravening a condition of a mass or dimension exemption, those conditions are restricted to matters reasonably within the knowledge of the pilot (such as route and time restrictions) and exclude matters it maybe unreasonable for them to be imputed knowledge of (such as the breach of a particular mass requirement applying to the vehicle).

Section 132 requires a driver who is driving under a mass or dimension exemption (notice) must comply with any condition requiring him or her to keep a relevant document (the Commonwealth Gazette notice for the exemption or an information sheet about the exemption published by the Regulator on the Regulator’s website) in their possession. If this is not done, an offence with a maximum penalty of $3000 is committed by the driver of the vehicle and the relevant party for the driver. For this section, the relevant party for the driver is:

· If the driver is employed, the employer of the driver

· If the driver is a self-employed driver, a prime contractor of the driver

· If the driver is making a journey for the operator of a vehicle, an operator of the vehicle.

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When a relevant party is charged with an offence under this section, that person does not have the benefit of the mistake of fact defence for the offence, but that person does have the benefit of the reasonable steps defence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Subsection (6) deals with a prosecution of a relevant party. It provides that:

· Whether or not the driver has or will be proceeded against or convicted is irrelevant. A decision not to prosecute or convict a driver under this section does not preclude the relevant party from being charged or convicted where the driver did not carry the relevant document.

· Evidence a court has convicted the driver of the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the charge resulting in the conviction. This is intended to facilitate proof of the relevant facts.

· Details stated in an infringement notice issued for the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the infringement notice.

Section 133 creates a requirement for drivers of a class 1 or class 3 heavy vehicle under a mass or dimension requirement (permit) to keep a copy of the permit for the exemption in the driver’s possession. If this is not done, an offence with a maximum penalty of $3000, is committed by the driver of the vehicle and the relevant party for the driver. For this section, the relevant party for the driver is:

· if the driver is employed, the employer of the driver;

· if the driver is a self-employed driver, a prime contractor of the driver; and

· if the driver is making a journey for the operator of a vehicle, an operator of the vehicle.

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It is anticipated that to comply with the requirements of this section the relevant party will give a driver of a heavy vehicle driving under a mass or dimension exemption (permit) a copy of the permit that has been issued by the Regulator for a particular vehicle. In such a situation, when the driver stops working for the relevant party they must return a copy of the permit to the relevant party as soon as reasonably practicable (section 133(2)). The maximum penalty for not complying with this requirement is $4000.

Subsections (4) to (5) state that when the relevant party is charged with an offence under this section that person does not have the benefit of the mistake of fact defence for the offence but that person does have the benefit of the reasonable steps defence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Subsection (6) deals with a prosecution of a relevant party. It provides that:

· Whether or not the driver has or will be proceeded against or convicted of the relevant offence is irrelevant. A decision not to prosecute or convict a driver under this section does not preclude the relevant party from being charged or convicted where the driver did not carry the relevant document.

· Evidence a court has convicted the driver of the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the charge resulting in the conviction. This is intended to facilitate proof of the relevant facts.

· Details stated in an infringement notice issued for the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the infringement notice.

Division 5 Other provision

Annexure 1

Section 134 states that a heavy vehicle warning sign must not be displayed on a heavy vehicle unless the heavy vehicle is being used under a dimension exemption (an exemption under this Part from compliance with a dimension requirement).

Subsection (2) states that a pilot vehicle warning sign must not be displayed on a vehicle unless a vehicle is being used as a pilot vehicle for a heavy vehicle being used under a dimension exemption.

The maximum penalty for non-compliance in both circumstances is $3000. Section 134 has the effect of ensuring that warning signs are only used for heavy vehicles or pilot vehicles that, under national regulations, are required to use them.

The terms heavy vehicle warning sign and pilot vehicle warning sign are defined in subsection (3) for the purposes of this section.

Part 4.6 Restricting access to roads by large vehicles that are not overmass or oversize vehicles

Division 1 Preliminary

Section 135 states that the main purpose of Part 4.6 is to restrict access to roads by heavy vehicles that, while complying with mass requirements and dimension requirements applying to them, may, because of their size endanger public safety, damage road infrastructure or adversely affect public amenity. This draws attention of the main purpose of this Part being to restrict access to roads, despite the number of provisions that deal with authorising use.

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Section 136 defines the term class 2 heavy vehicles. The common characteristic of class 2 heavy vehicles is that even though they comply with mass and dimension requirements they are particularly large vehicles that, by virtue of their size, warrant restriction from a general right of access to roads under this Part.

Class 2 heavy vehicles are defined as vehicles that comply with the mass requirements and dimension requirements applying to it and are either:

· a B-double;

· a road train (which includes B-triples);

· a bus other than an articulated bus that is longer than 12.5m (often known as a controlled access bus);

· a combination carrying vehicles on more than 1 deck that, together with its load is longer than 19m or higher than 4.3m; or

· a single motor vehicle, or a combination, that is higher than 4.3 m and is built to carry cattle, sheep, pigs or horses.

Section 136 also deems a PBS vehicle to be a class 2 vehicle for the purpose of Chapter 4. This allows the access management system created under this Chapter (modified as necessary) to be applied to these vehicles so that they may be regulated using notices and permits.

Division 2 Restriction

Section 137 states that a person must not use a class 2 heavy vehicle, or permit a class 2 heavy vehicle to be used, on a road other than in accordance with a class 2 heavy vehicle authorisation. The maximum penalty for non-compliance with this is $6000.

This is the key restriction of Part 4.6. If a class 2 heavy vehicle does not have a class 2 heavy vehicle authorisation to use a particular road, it is not permitted to use that road. As stated in section 135, this is intended to protect public safety, road infrastructure and public amenity from adverse interference by particularly large heavy vehicles.

Division 3 Authorisation by Commonwealth Gazette notice

Annexure 1

Section 138 empowers the Regulator, by Commonwealth Gazette notice complying with section 142, to authorise the use of all or stated categories of class 2 heavy vehicles in stated areas or on stated routes and during stated hours of stated days. These authorisations are referred to as class 2 heavy vehicle authorisation (notice). A class 2 heavy vehicle authorisation (notice) cannot be issued for a period of more than 5 years.

Section 139 limits the power of the Regulator to grant a class 2 heavy vehicle authorisation (notice) by stating that such an authorisation must not be granted for a category of class 2 heavy vehicles unless all of the requirements mentioned in section 139 are met.

The requirements in section 139 are:

· the Regulator is satisfied the use of class 2 heavy vehicles of that category of class 2 heavy vehicles on a road under the authorisation will not pose a significant risk to public safety; and

· each relevant road manager for the exemption has consented to the grant of the class 2 heavy vehicle authorisation (notice); and

· the Regulator is satisfied that all consents required for the authorisation under the law of the relevant jurisdiction have been obtained by the applicant or have been otherwise given;

· the Regulator has had regard to the approved guidelines (defined in section 5 as guidelines approved by responsible Ministers under section 653) for granting class 2 heavy vehicle authorisations in making the decision whether to grant the class 2 heavy vehicle authorisation (notice).

The requirement in subsection (1)(b) that each road manager consent to the grant or the issue of a mass dimension exemption (notice) ensures that all road managers affected by the granting of the authorisation have an opportunity to maintain control over the use of heavy vehicles on roads under their authority. This allows road managers to have regard to the impact of an authority on its road infrastructure and on public amenity.

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Section 140 specifies that a class 2 heavy vehicle authorisation (notice) may be subject to the condition that the driver of a class 2 heavy vehicle who is driving the vehicle under the authorisation must keep in their possession a copy of the Commonwealth Gazette notice for the authorisation or an information sheet about the authorisation published by the Regulator on the Regulator’s website. There is no broad authorisation for the Regulator to prescribe conditions applying to a class 2 heavy vehicle authorisation (notice) in section 140.

Section 141 specifies when a class 2 heavy vehicle authorisation (notice) takes effect and for how long it applies for. It states that a class 2 heavy vehicle authorisation (notice) takes effect when the Commonwealth Gazette notice for the authorisation is published or, if a later time is stated in the notice, at the later time. Section 141(b) confirms that the class 2 heavy vehicle authorisation (notice) applies for the period stated on the Commonwealth Gazette notice. However, this is limited by the requirement in section 138 that a class 2 heavy vehicle authorisation (notice) cannot be granted for a period of more than 5 years.

Section 142 states the content requirements for the Commonwealth Gazette Notice required for a class 2 heavy vehicle authorisation (notice). A class 2 heavy vehicle authorisation (notice) is to be made by Commonwealth Gazette Notice as per section 142 in order to be a valid exemption. In addition, subsection (4) requires the regulator to publish a copy of the Commonwealth Gazette notice on the Regulator’s website.

The requirements for a valid Commonwealth Gazette notice in relation to a mass or dimension exemption (notice)) are that the notice must state all of the following:

· the categories of class 2 heavy vehicles the authorisation applies to. If it is to apply to all class 2 heavy vehicles it must state this and if it is to apply to particular category of class 2 heavy vehicles it must state the categories it applies to; and

· the areas or routes to which the authorisation applies; and

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· the days and hours to which the authorisation applies; and

· any conditions applying to class 2 heavy vehicles being used on a road under an authorisation; and

· the period for which the exemption applies.

Subsection (2) authorises the Commonwealth Gazette notice to state the areas or routes to which the authorisation applies by showing them on a stated map prepared by the Regulator. If the Regulator chooses to do this, the Regulator:

· must ensure a copy of the map as in force from time to time is made available for inspection, without charge, during normal business hours at each office of the Regulator;

· must ensure a copy of the map as in force from time to time is published on the Regulator’s website; and

· may amend this map provided that the amendment extends the areas or routes to which the authorisation applies. The Regulator cannot amend the map by reducing the area to which the authorisation applies.

Division 4 Authorisation by permit

Section 143 empowers the Regulator to authorise, by giving a permit as mentioned in section 148, a class 2 heavy vehicle for use in stated areas or on stated routes and during stated hours of stated days. Such an exemption is referred to as a class 2 heavy vehicle authorisation (permit) and this authorisation may apply to 1 or more heavy vehicles. A class 2 heavy vehicle authorisation (permit) must not be granted for a period of more than 3 years.

A legislative note to section 143 indicates that Division 4, Part 4.7 should be read when considering the amendment, suspension or cancellation of a mass or dimension exemption (notice).

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Section 144 states that a person may apply to the Regulator for a class 2 heavy vehicle authorisation (permit). This application must be in the approved form and be accompanied by the relevant prescribed fee.

The Regulator is empowered by section 144(3), by notice given to the applicant; to require the applicant to give the Regulator any additional information reasonably required to decide the application.

Section 145 further limits the power of the Regulator to grant a class 2 heavy vehicle authorisation (permit) by stating that a class 2 heavy vehicle authorisation (permit) must not be granted for a category of class of heavy vehicles unless all of the requirements mentioned in subsections (1) and (2) are met.

The requirements in subsections (1) and (2) are:

· the Regulator is satisfied the use of heavy vehicles of that category on a road under the authorisation will not pose a significant risk to public safety;

· each relevant road manager for the exemption has consented to the grant of the class 2 heavy vehicle authorisation (permit); and

· the Regulator is satisfied that all consents required for the authorisation under the law of the relevant jurisdiction have been obtained by the applicant or have been otherwise given;

· the Regulator has had regard to the approved guidelines (defined in section 5 as guidelines approved by responsible Ministers under section 653) for class 2 heavy vehicle authorisations in making the decision whether to grant the class 2 heavy vehicle authorisation (permit) (section 145(2)).

The requirement in subsection (1)(b) that each road manager consent to the grant of the issue of a class 2 heavy vehicle authorisation (permit) ensures that all road managers affected by the granting of the authorisation have an opportunity to maintain control over the use of heavy vehicles on roads under their authority. This allows road managers to have regard to the impact of an authorisation on its road infrastructure and the public amenity.

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Section 146 requires that a class 2 heavy vehicle authorisation (permit) must be subject to the road conditions or travel conditions required by a relevant road manager for the authorisation under section 160 or 161; and empowers the Regulator to subject the authorisation to any other conditions the Regulator considers appropriate.

Section 147 states that a class 2 heavy vehicle authorisation (permit) applies for the period stated in the permit for the authorisation. This period may be less than the period sought by the applicant. However, section 143 continues to have the effect of ensuring that a class 2 heavy vehicle authorisation (permit) cannot be granted for a period of more than 3 years.

Section 148 requires the Regulator to give the applicant a permit stating particular information if the Regulator grants a class 2 heavy vehicle authorisation (permit). Subsection (1)(b) specifies that if the Regulator has imposed conditions on the permit or granted the authorisation for a period less than 3 years an information notice for these decisions must also be provided to the applicant.

The information required to be included in a class 2 heavy vehicle authorisation (permit) is set out in subsection (2). This includes information about the name and address of the person to whom the permit is given, each class 2 heavy vehicle to which the authorisation applies, the areas and routes and days and hours to which the authorisation applies, the conditions that apply to the authorisation, and the period for which the authorisation applies.

Section 149 requires the Regulator to give an information notice for the decision if the Regulator refuses an application for a class 2 heavy vehicle authorisation (permit).

Division 5 Operating under class 2 heavy vehicle authorisation

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Section 150 creates an offence for a driver or operator of a heavy with a maximum penalty of $6000 where a vehicle being used on a road under a class 2 heavy vehicle authorisation contravenes a condition of the authorisation (apart from one referred to in section 151(1), relating to an obligation to carry a copy of a notice, or information about it, that has been published in the Commonwealth Gazette).

Section 151 creates an offence for when a driver contravenes a condition of a class 2 heavy vehicle authorisation (notice) to keep a relevant document (the Commonwealth Gazette notice for the authorisation or an information sheet about the authorisation published by the Regulator on the Regulator’s website) whilst driving under the authorisation. Non-compliance has a maximum penalty of $3000 and the offence is committed by the driver of the vehicle and the relevant party for the driver.

For section 151, the relevant party for the driver is:

· if the driver is employed, the employer of the driver;

· if the driver is a self-employed driver, a prime contractor of the driver; and

· if the driver is making a journey for the operator of a vehicle, an operator of the vehicle.

Subsection (6) deals with a prosecution of a relevant party. It provides that:

· Whether or not the driver has or will be proceeded against or convicted of the relevant offence is irrelevant. A decision not to prosecute or convict a driver under this section does not preclude the relevant party from being charged or convicted where the driver did not carry the relevant document.

· Evidence a court has convicted the driver of the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the charge resulting in the conviction. This is intended to facilitate proof of the relevant facts.

· Details stated in an infringement notice issued for the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the infringement notice.

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Subsections (4) and (5) state that when the relevant party is charged with an offence under this section that person does not have the benefit of the mistake of fact defence for the offence but that person does have the benefit of the reasonable steps defence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Section 152 creates a requirement for the driver of a class 2 heavy vehicle driving under a class 2 heavy vehicle authorisation (permit) to keep a copy of the permit for the authorisation in the driver’s possession whilst driving under the authorisation. If this requirement is not complied with, an offence, with a maximum penalty of $3000, is committed by the driver of the vehicle and the relevant party for the driver.

For section 152, the relevant party for the driver is:

· if the driver is employed, the employer of the driver;

· if the driver is a self-employed driver, a prime contractor of the driver; and

· if the driver is making a journey for the operator of a vehicle, an operator of the vehicle.

It is anticipated that to comply with the requirements of this section the relevant party will give a driver a copy of the permit that they have been issued by the Regulator. In such a situation, subsection (2) requires that when the driver stops working for the relevant party they must return a copy of the permit to the relevant party as soon as reasonably practicable. The maximum penalty for not complying with this requirement is $4000.

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Subsection (6) deals with a prosecution of a relevant party. It provides that:

· Whether or not the driver has or will be proceeded against or convicted of the relevant offence is irrelevant. A decision not to prosecute or record a conviction against a driver under this section does not preclude the relevant party from being charged or convicted where the driver did not carry the relevant document.

· Evidence a court has convicted the driver of the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the charge resulting in the conviction. This is intended to facilitate proof of the relevant facts.

· Details stated in an infringement notice issued for the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the infringement notice

Subsections (4) to (5) state that when the relevant party is charged with an offence under this section that person does not have the benefit of the mistake of fact defence for the offence but that person does have the benefit of the reasonable steps defence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Section 153 is a new provision that requires a driver of a class 2 heavy vehicle that is a PBS vehicle to which a class 2 heavy vehicle authorisation applies to keep a copy of the PBS vehicle approval in their possession.

The section extends liability for an offence by the driver under subsection (1) to an employer, or prime contractor or an operator of the vehicle.

A person charged under this proposed section does not have the benefit of the mistake of fact defence for the offence but does have the benefit of the reasonable steps defence.

Part 4.7 Particular provisions about mass or dimension authorities

Division 1 Preliminary

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Section 154 provides definitions, for Part 4.7, of the terms road condition, route assessment, travel condition and vehicle condition.

In this part, road condition means a condition directed at protecting road infrastructure; or preventing or minimising an adverse effect on public amenity, including, for example, preventing or minimising an adverse effect caused by noise, emissions and traffic congestion resulting from vehicle use of roads.

However, the definition of road condition does not include a condition requiring the installation of equipment or another thing in a vehicle unless the equipment or thing is required to be installed in the vehicle for an intelligent access condition imposed in connection with a condition directed at these matters mentioned.

A road condition is otherwise not intended to include conditions that require the installation of equipment or another thing to the heavy vehicle as it is the responsibility of the Regulator to impose conditions that relate to condition of the vehicle and its equipment. Road conditions are intended to allow road managers to specify conditions about the use of the heavy vehicles on their particular roads.

In this part, route assessment, in relation to a mass or dimension authority, means an assessment of the road infrastructure in the areas or on the routes to which the authority is to apply to decide the impact the grant of the authority will have, or is likely to have, on the road infrastructure.

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The term travel condition is required to expressly allow a mass or dimension authority to include conditions governing route and time of travel as requested by a relevant road manager. The term is intended to encompass conditions about which way a vehicle turns, as safe access to roads is in some cases subject to the heavy vehicle travelling in a specific direction or turning in a particular direction at an intersection.

In this part, vehicle condition means a condition directed at ensuring a vehicle can operate safely on roads.

Division 2 Obtaining consent of relevant road managers

Section 155 states that this Division applies in relation to the Regulator obtaining the consent of the road manager for a road for the purpose of granting a mass or dimension authority. The relevant paragraphs in this Chapter that specifically require the Regulator to gain the consent of road managers prior to granting a mass or dimension authority are sections 118(1)(b), 124(1)(b), 139(1)(b) and 145(1)(b).

The terms road manager and mass or dimension authority are defined in section 5.

Road manager is defined in section 5 as meaning, for a road in a participating jurisdiction, an entity that is declared by a law of that jurisdiction to be the road manager for the road for the purposes of this Law.

Mass or dimension authority is defined in section 5 as meaning a mass or dimension exemption or a class 2 heavy vehicle authorisation.

Section 156 states how long a road manager is permitted to make a decision to give consent to the grant of a mass or dimension authority; the circumstances in which the road manager may decide not to give consent and the obligation on a road manager to provide written reasons to the Regulator for a decision not to issue consent.

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Section 157 applies where an applicant for a mass or dimension exemption (permit) or class 2 heavy vehicle authorisation (permit) and consultation with another entity is required under a jurisdictional law. Subsection (2) requires the Regulator to notify the applicant of this requirement and advise the relevant road manager of the fact of this notification simultaneously.

Section 158 applies where an applicant for a mass or dimension exemption (permit) or class 2 heavy vehicle authorisation (permit) and consultation with another entity is required under a jurisdictional law. It is intended to ensure that the actions required to be undertaken by the road manager to respond to the request for consent are completed as far as possible and not delayed on the basis of the requirement to undertake additional consultation with another entity. Subsection (3) provides that the consent provide by the road manager in this instance is conditional upon the completion of consultation with the other entity.

Subsection (4) outlines the obligations of the road manager where consultation is required but the road manager’s consent would be inoperative as a result of the actions of the other entity.

Subsection (5) prevents the Regulator from granting a mass or dimension authority where the other entity has declined to provide its approval.

Section 159 deals with the process undertaken when a road manager considers a route assessment is necessary for deciding whether to give or not to give the consent to a mass or dimension authority. Under this section the road manager is to notify the Regulator of certain matters listed in subsection (2) and requires the Regulator to notify the applicant of further matters listed in subsection (3). Subsection (4) prescribes the effect on the application for the period in which a fee required for a route assessment has not yet been paid by the applicant. Under subsection (5), the application lapses if the applicant does not pay a required fee for the route assessment within 28 days after the notification of requirement of the route assessment by the Regulator. This encourages prompt payment from applicants in such circumstances and allows the consent process to be conducted as efficiently as possible.

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Subsection (2) empowers the road manager to notify the Regulator of the requirement for the route assessment and the fee payable for the route assessment.

Subsection (3) requires the Regulator to notify the applicant for the mass or dimension exemption (permit) or a class 2 heavy vehicle authorisation (permit) of the following:

· that a route assessment is required for the road manager deciding whether to give or not to give the consent;

· the fee payable (if any) for the route assessment under a law of the jurisdiction in which the road is situated;

· if a fee is payable for the route assessment under a law of the jurisdiction in which the road is situated, that the road manager may stop considering whether to give or not to give the consent until the fee is paid;

· if, under section 158(1)(b), the Regulator agrees to a longer period for the road manager deciding whether to give or not to give the consent, the longer period agreed by the Regulator.

Subsection (4) empowers the road manager to stop considering whether to give consent for a time period if a fee for a route assessment is required under a law of the jurisdiction where the road is situated and that fee has not been paid. The period between the day the applicant is given the notification of the requirement for route assessment by the Regulator and the day the fee is paid must not be counted in working out the period taken by the road manager to decide whether to give or not to give the consent. Subsection (5) states that an application for a mass or dimension exemption (permit) or a class 2 heavy vehicle authorisation (permit) will lapse if the fee is not paid within the 28 days or longer period agreed by the Regulator.

Section 160 empowers a relevant road manager for a mass or dimension authority to consent to the grant of the authority subject to the condition that a stated road condition is imposed on the authority. When granting consent subject to a road condition the road manager must give the Regulator written reasons for their decision to do so. Unless the condition is in regard to a class 2 heavy vehicle authorisation (notice) the Regulator must impose the stated road condition on the mass or dimension authority.

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It should be noted that when the mass or dimension authority is granted by the Regulator subject to these conditions an information notice containing all of the information required under section 164 must be issued to the applicant.

The term relevant road manager is defined in section 5 as meaning for a mass or dimension authority, a road manager for a road in the area, or on the route, to which the authority applies.

Section 161 authorises a road manager for a mass or dimension authority to consent to the grant of the authority subject to the condition that a stated travel condition is imposed on the authority

Section 162 empowers a relevant road manager for a mass or dimension authority who gives consent to the grant of the authority to ask the Regulator to impose a stated vehicle condition on the authority. The Regulator must consider this request and must decide either to impose the stated vehicle condition on the authority (with or without modification) or not to impose the stated vehicle condition on the authority. Once a decision has been made, the Regulator must notify the relevant road manager of the decision.

The term relevant road manager is defined in section 5 as meaning for a mass or dimension authority, a road manager for a road in the area, or on the route, to which the authority applies.

Section 163 empowers the Regulator to ask a relevant road authority to consent to the grant of the mass or dimension authority when a road manager who is not the relevant road authority does not give consent to the grant of a mass or dimension authority or does give consent subject to what the Regulator believes are unnecessary conditions. The road authority must decide whether to give consent within 3 months of the request, or within a longer period of not more than 6 months if agreed by the Regulator.

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If the road authority responds to this request by granting the authority, the decision of the road authority is effectively treated as the decision of the road manager throughout this Bill.

This makes it difficult for road managers who are not road authorities to frustrate the issuing of authorisation by means of unreasonably withholding appropriate consent.

For this section, relevant road authority is defined by subsection (5) as the road authority for the participating jurisdiction in which the road for which the relevant road manager is a road manager is situated. Section 5 defines the term road authority so as to make it clear that there is to be only 1 such authority for each participating jurisdiction.

Section 164 requires certain information (listed in subsection (2)) to be included in the information notice provided to the applicant regarding the decision to grant a mass or dimension authority when a road manager has granted consent with the imposition of a road condition.

The information required to be included in the information notice in subsection (2) is:

· all information required for the information notice by other sections of the Law; and

· that the road manager consented to the mass or dimension authority on the condition that the road condition is imposed on the authority; and

· a written statement that explains the road manager's decision that complies with the requirements set out in section 172; and

· the review and appeal information for the road manager’s decision to give the consent on the condition that the road condition be imposed on the authority.

Section 165 sets out the minimum contents of an information notice where the Regulator grants a mass or dimension authority by giving a person a permit and the authority is subject to a travel condition required by a relevant road manager. This is a consequence of the inclusion of the conditioning power provided in section 161.

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Section 166 states that when an application for a mass or dimension authority is refused, wholly or partly, because a relevant road manager for the authority has refused to consent to the authority, the information notice for the decision to refuse the application given to the applicant by the Regulator must state the information in subsection (2) regarding the refusal of consent.

The required information that the information notice provided by the Regulator must state under section 166 is:

· all information required for the information notice by other sections of the Law; and

· that the road manager has refused to consent to the mass or dimension authority; and

· a written statement that explains the road manager's decision that complies with the requirements set out in section 172; and

· the review and appeal information for the road manager’s decision to refuse to give the consent. The definition of review and appeal information for a road manager’s decision is provided in section 5.

This proposed section formalises best practice in a number if jurisdictions. The institution of this process is intended to provide productivity benefits by minimising the time required for the granting of consent as the road manager has previously consented to a grant of a mass or dimension authority in similar circumstances and the Regulator proposes to issue a replacement authority on the same conditions as the original authority.

Subsection (3) provides that the consent of the relevant road manager must be deemed to have been granted on the same terms as the consent for the previous authority unless the road manager refuses consent, or lodges a notice of objection within the time limits specified in subsection (2).

Section 171 applies at the granting or renewal of a mass or dimension authority under sections 169 or 170 respectively. Subsection (2) provides that, in the case of a mass or dimension exemption (permit) or a class 2 heavy vehicle authorisation (permit), the period for which the permit applies must not exceed the length of the trial period.

Division 3 Amendment, cancellation or suspension of mass or dimension authority granted by Commonwealth Gazette notice

Section 173 empowers the Regulator to amend or cancel a mass or dimension authority granted by Commonwealth Gazette notice at the Regulator’s initiative when the Regulator is satisfied that the use of heavy vehicles on a road under the mass or dimension authority has caused, or is likely to cause, a significant risk to public safety; and the requirements outlined in subsections (3) to (5) are complied with.

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The intent of the requirements of this section is to ensure transparency in the amending and cancelling of mass and dimension authorities. This is achieved by requiring adequate notice to be given to those affected by an amendment or cancellation and by ensuring possible adverse consequences of such action are able to be presented to the Regulator throughout the decision making process for consideration. An additional benefit of this section is in allowing to those who may be adversely affected by a decision time in which to adjust their business practices.

The requirements in subsections (3) to (5) are:

· The Regulator must publish a notice in the Commonwealth Gazette, a newspaper circulating generally throughout each participating jurisdiction and on the Regulator’s website stating the intent, grounds and reasons for the action to be taken. This notice must also invite persons who will be affected by the proposed action to make, within a stated time of at least 14 days after the Commonwealth Gazette notice is published, written representations about why the proposed action should not be taken (subsection (3)).

· The Regulator must consider all representations made in response to the invitation issued in the Commonwealth Gazette Notice prior to making the final decision to amend or cancel the mass or dimension authority (subsection (3)).

· If the action proposed in the Commonwealth Gazette notice made under subsection (3) was to amend the exemption, the Regulator may only amend the exemption in a way that it is not substantially different from the proposed action, this may include amending areas, routes, days or hours to which the authority applies or by imposing additional conditions to the exemption.

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· If the action proposed in the Commonwealth Gazette notice made under subsection (3) was to cancel the exemption the Regulator may cancel the exemption or amend the exemption.

· The Regulator must publish notice of the amendment or cancellation in the Commonwealth Gazette, a newspaper circulating generally throughout each relevant participating jurisdiction, on the Regulator’s website and in any other newspaper the Regulator considers appropriate. Subsection (7) states that in this section relevant participating jurisdiction, for a mass or dimension authority, means a participating jurisdiction in which the whole or part of an area or route to which the authority applies is situated.

Under this section the amendment or cancellation to a vehicle standards exemption (notice) takes effect either 28 days after the publishing of the Commonwealth Gazette notice notifying of the amendment or cancellation or the time stated in that Commonwealth Gazette notice; whichever is the later.

Section 174 empowers a relevant road manager for a mass or dimension authority granted by Commonwealth gazette notice to ask the Regulator to amend the mass or dimension authority or cancel the authority if the road manager is satisfied the use of heavy vehicle on a road under the authority has caused, or is likely to cause, damage to road infrastructure; or has had, or is likely to have, an adverse effect on public amenity. If a road manager makes a request under this section to amend or cancel the mass or dimension authority the Regulator must comply with the request unless consent to the grant of the mass or dimension authority was given by a road authority under section 163.

If the Regulator does amend or cancel a mass or dimension authority under section 174, notice of an amendment must be published in the Commonwealth Gazette, a newspaper circulating generally throughout each relevant participating jurisdiction, on the Regulator’s website and in any other newspaper the Regulator considers appropriate.

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The intent of this section is to provide for the revocation or amendment of consent given by the road manager after the mass or dimension authority has been granted. Subsection (4) outlines the responsibilities upon the Regulator if a road manager makes a request to amend or cancel the mass or dimension authority in the situation where consent was obtained from a road authority under section 163. In such a situation:

· the Regulator may refer the request to the road authority; and

· if the road authority gives the Regulator its written approval of the request, the Regulator must comply with the request; and

· if the road authority does not give written approval of the road manager’s request within 28 days after the referral is made, the Regulator must not comply with the request; and must notify the road manager that the road authority has not given its written approval of the request and, as a result, the Regulator must not comply with it.

Subsection (7) states that in this section relevant participating jurisdiction, for a mass or dimension authority, means a participating jurisdiction in which the whole or part of an area or route to which the authority applies is situated.

Section 175 provides the Regulator power to immediately respond to any actual or potential serious harm to public safety or significant damage to road infrastructure that may arise by suspending any mass or dimension authority it believes necessary to prevent or minimise it. Section 175 empowers the Regulator to immediately suspend a mass or dimension authority granted by Commonwealth Gazette notice if the Regulator reasonably believes it necessary to prevent or minimise serious harm to public safety or significant damage to road infrastructure. Section 175 requires a notice for immediate suspension and specifies the time period for which the suspension is in force.

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Immediate suspension must be done by way of an immediate suspension notice being published in the Commonwealth Gazette, a newspaper circulating generally throughout each relevant participating jurisdiction, on the Regulator’s website and in any other newspaper the Regulator considers appropriate.

An immediate suspension issued by the Regulator is in force from when the immediate suspension notice is published in the Commonwealth Gazette and remains in force until a notice to alter or cancel the exemption or authority takes effect.

Subsection (5) states that this section applies despite sections 173 and 174. This ensures that the Regulator always maintains the power to affect the immediate suspension of a mass or dimension authority in situations where a risk of serious harm to public safety arises despite the usual procedural requirements concerning the amendment or the cancellation of the authority.

Division 4 Amendment, cancellation or suspension of mass or dimension authority granted by permit

Section 176 empowers the holder of a permit for a mass or dimension authority to apply to the Regulator for an amendment or cancellation of the exemption. This application must be in the approved form, be accompanied by the permit and, if for an amendment, state clearly the amendment sought and the reasons for it. The Regulator must decide this application as soon as practicable after receiving it.

The Regulator is empowered by subsection (3) to require, by notice, any additional information from the applicant that is reasonably required to decide the application.

Subsection (4) requires the Regulator to seek the consent of the relevant road manager unless the amendment of the mass or dimension authority seeks to omit an area or route or reducing an area or route in size.

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The Regulator must give notice to the applicant of all decisions made in respect to this application. If granted, the amendment or cancellation takes effect when notice of the decision is given to the applicant or, if a later time is stated in the notice, at that time. If the authority has been amended, the Regulator must give the applicant a replacement permit for the authority as amended.

If the Regulator decides not to amend or cancel the authority sought by the applicant, subsection (6) requires the Regulator to give the applicant an information notice for the decision and return the permit for the authority to the applicant.

Section 177 empowers the Regulator to amend or cancel a permit for a mass or dimension authority at the Regulator’s initiative if the Regulator considers one or more of the grounds mentioned in subsection (1) exists and the requirements of subsections (2) to (4) are met.

The grounds for amending or cancelling a mass or dimension authority granted by permit are the authority was obtained by false or misleading documents or representations, the authority was obtained or made in an improper way, the holder of the permit has contravened a condition of the authority, or the use of the heavy vehicles on a road under the authority has caused, or is likely to cause, a significant risk to public safety.

The requirements in subsections (2) to (4) are:

· The Regulator must give to the holder of the permit a notice stating the intent, grounds and reasons for the action to be taken. This notice must also invite the holder of the permit to make, within a stated time of at least 14 days after notice is given, written representations about why the proposed action should not be taken.

· The Regulator must consider all representations made in response to the invitation prior to making the final decision to amend or cancel the permit.

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· If the action proposed in the notice was to amend the exemption, the Regulator may only amend the permit in a way that it is not substantially different from the proposed action, this may include amending areas, routes, days or hours to which the authority applies or by imposing additional vehicle conditions to the exemption.

· If the action proposed in the notice was to cancel the permit the Regulator may cancel the exemption or amend the exemption.

· The Regulator provide an information notice to the holder of the permit for the decision.

Under this section the amendment or cancellation to permit takes effect when the information notice is provided to the holder or if a later time is stated in the information notice, at the later time.

The intent of the requirements of this section is to ensure transparency in the amending and cancelling of mass and dimension authorities. This is achieved by requiring adequate notice to be given to those affected by an amendment or cancellation and that possible adverse consequences of such action are able to be presented to the Regulator throughout the decision making process for consideration. An additional benefit of this section is in allowing to those who may be adversely affected by a decision time in which to adjust their business practices.

Section 178 provides for the revocation or amendment of consent given by the road manager after the mass or dimension authority has been granted. Section 178 empowers a relevant road manager for a mass or dimension authority granted by permit to ask the Regulator to amend the mass or dimension authority or cancel the authority if the road manager is satisfied the use of heavy vehicle on a road under the authority: has caused, or is likely to cause, damage to road infrastructure; or has had, or is likely to have, an adverse effect on public amenity. If a road manager makes such a request to amend or cancel the authority the Regulator must comply with the request unless consent to the grant of the mass or dimension authority was given by a road authority under section 163.

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If the Regulator does amend or cancel a mass or dimension authority under this section, the Regulator must give the holder of the permit for the authority notice of the amendment at least 28 days prior to the amendment or cancellation taking effect. This notice must state the day the amendment or cancellation is to take effect; the reasons given by the road manager for the amendment or cancellation; and the review and appeal information for the road manager’s decision.

Subsection (4) outlines the responsibilities upon the Regulator if a road manager makes a request to amend or cancel the mass or dimension authority in the situation where consent was obtained from a road authority under section 140. In such a situation:

· the Regulator may refer the request to the road authority; and

· if the road authority gives the Regulator its written approval of the request, the Regulator must comply with the request; and

· if the road authority does not give written approval of the road manager’s request within 28 days after the referral is made, the Regulator must not comply with the request; and must notify the road manager that the road authority has not given its written approval of the request and, as a result, the Regulator must not comply with it.

Section 179 empowers the Regulator to immediately suspend a mass or dimension authority granted by permit if the Regulator reasonably believes it necessary to prevent or minimise serious harm to public safety or significant damage to road infrastructure. Section 149 intends to provide the Regulator power to immediately respond to any actual or potential serious harm to public safety or significant damage to road infrastructure that may arise by suspending any mass or dimension authority it believes necessary to prevent or minimise it. Section 179 requires a notice for immediate suspension and specifies the time period for which the suspension is in force.

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Immediate suspension must be done by way of issuing a notice (termed an immediate suspension notice) to the person to whom the permit was given.

An immediate suspension issued by the Regulator is in force from when the immediate suspension notice is given to the person to whom the permit was given and remains in force until a notice to alter or cancel the authority takes effect.

Subsection (5) states that this section applies despite sections 176, 177 and 178. This ensures that the Regulator always maintains the power to effect the immediate suspension of a mass or dimension authority in situations where a risk of serious harm to public safety arises despite any proceedings that may be ongoing concerning the amendment or the cancellation of the authority.

Section 180 empowers the Regulator to, by notice given to the holder of a permit for a mass or dimension authority, make minor amendments to the authority. Under this section, an amendment is considered minor if it is for a formal or clerical reason or in another way that does not adversely affect the holder’s interest.

Division 5 Provisions about permits for mass or dimension authorities

Section 181 empowers the Regulator to require, by notice, a person to return a permit for a mass or dimension authority granted by giving a permit to the person if it has been amended or cancelled.

However, regardless of whether the Regulator requires the return of an amended or cancelled permit, subsection (4) states that the Regulator must give the person a replacement permit for the authority when amended. Section 181(3) requires a person issued with a notice under this section to return a permit to comply with that notice to within 7 days or with a longer period if that longer period is stated on the notice. The maximum penalty for non-compliance with this notice is $4000.

Annexure 1

Section 182 requires a person to apply for a replacement mass or dimension authority permit as soon as practicable after becoming aware that their mass or dimension authority permit is defaced, destroyed lost or stolen. The maximum penalty for a person not doing so is $4000. If the Regulator is satisfied the permit has been defaced, destroyed, lost or stolen the Regulator must give the person a replacement permit as soon as practicable. The only valid reason why the Regulator could refuse the application for a replacement permit is if the Regulator is not satisfied that the permit has been defaced, destroyed, lost or stolen. If the Regulator does refuse the application for a replacement permit the Regulator must give the person an information notice for the decision.

Part 4.8 Extended liability

Section 183 extends chain of responsibility for certain offences against section 96 (contravention of a mass requirement applying to a heavy vehicle); section 102 (contravention of a dimension requirement applying to a heavy vehicle) and section 111 (contravention of a loading requirement applying to a heavy vehicle). For all of these offences if a driver commits an offence each of the following persons is also taken to have committed the offence:

· an employer of the driver if the driver is an employed driver;

· a prime contractor of the driver if the driver is a self-employed driver;

· an operator of the vehicle or, if it is a combination, an operator of a vehicle in the combination;

· a consignor of any goods for road transport using the vehicle that are in the vehicle;

· a packer of any goods in the vehicle;

· a loading manager of any goods in the vehicle; and

· a loader of any goods in the vehicle.

Annexure 1

The maximum penalty for anyone in the chain of responsibility identified in this section is the penalty for the contravention of the provision by the driver of the heavy vehicle. Subsection (4) states that in a proceeding for an offence under this section:

· Whether or not the driver has or will be proceeded against for or convicted of an offence against section 96, 102 or 111 is irrelevant. A decision not to prosecute or convict a driver under this section does not preclude the relevant party from being proceeded against or convicted.

· Evidence a court has convicted the driver of the relevant offence against section 96, 102 or 111 or the driver has paid an infringement penalty in respect of it is evidence that the offence happened at the time and place, and in the circumstances, stated in the charge resulting in the conviction. This is intended to facilitate proof of the relevant facts

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence. However, in a proceeding for an offence under this section the person does have the benefit of the reasonable steps defence for the offence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that the person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Part 4.9 Other offences

Division 1 Towing restriction

Section 184 creates an offence where a person drives a heavy motor vehicle towing more than 1 other vehicle. The maximum penalty for this offence is $3000. This section does not apply to a person driving a heavy vehicle under a mass or dimension authority, which includes vehicles such as B-doubles and road trains or in circumstances prescribed by the national regulations.

Division 2 Coupling requirements

Annexure 1

Section 185 creates offences, both with a maximum penalty of $6000, where:

· A person uses, or permits to be used, on a road a heavy combination and a trailer in the combination is not securely coupled to the vehicle in front of it; and

· A person uses, or permits to be used, on a road a heavy combination and the components of a coupling used between vehicles in the heavy combination are not compatible with, or properly connected to, each other.

In this section, coupling means a device used to couple a vehicle in a combination to the vehicle in front of it.

Division 3 Transport documentation

Section 186 states that, if goods are consigned for road transport using a heavy vehicle, or for transport partly by road using a heavy vehicle and partly by some other means, an offence is committed if the transport documentation (defined in section 5) in so far as it relates to the mass, dimension or loading of any or all of the goods is false or misleading in a material particular. The maximum penalty for the offence committed is $10000. The persons who commit an offence under this section are:

· Each consignor of the goods (consign and consignor are defined in section 5); and

· If the goods are packed in Australia in a freight container or other container, or in a package or on a pallet, for road transport, each packer of the goods (pack and packer are defined in section 5); and

· If the goods are loaded onto a heavy vehicle for road transport, each loading manager or loader of the goods (load and loading manager are defined in section 5); and

· If the goods are packed outside Australia in a freight container, or in a package or on a pallet, for road transport, each receiver of the goods in Australia (Section 186(9) defines receiver of goods in Australia for this section).

Annexure 1

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence. However, in a proceeding for an offence under this section the person does have the benefit of the reasonable steps defence for the offence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that the person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Section 187 states that, if a freight container is to be transported by road using a heavy vehicle, the responsible entity for the freight container commits an offence if the container weight declaration for the container contains information that is false or misleading in a material particular. The maximum penalty for an offence under this section is $10000. Subsection (4) states that, for the purposes of this section, information in a container weight declaration is not false or misleading merely because it overstates the actual weight of the freight container and its contents. Section 5 defines container weight declaration and freight container and responsible entity for a freight container.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence. However, in a proceeding for an offence under this section the person does have the benefit of the reasonable steps defence for the offence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that the person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Division 4 Other offences about container weight declarations

Annexure 1

Section 188 states that this Division applies to a freight container consigned for road transport using a heavy vehicle or for transport partly by road using a heavy vehicle and partly by some other means. The term freight container is defined in section 5 as a re-usable container of a kind mentioned in Australian Standard AS 3711.1 that is designed for repeated use for transporting goods; or a re-usable container of the same or a similar design and construction to such a container though of different dimensions.

Section 189 defines the term complying container weight declaration. This term is an important term throughout the provisions of this Division. This section recognises that not all container weight declarations will be complying container weight declarations. The requirements for a complying container weight declaration ensures that container weight declarations contain important identification information for the container that is easily interpreted and readily accessible should it be required by an authorised officer.

This section states that a container weight declaration for a freight container is a complying container weight declaration if:

· it contains the following additional information—

(i) the number and other particulars of the freight container necessary to identify the container; and

(ii) the name and residential address or business address in Australia of the responsible entity for the freight container; and

(iii) the date the container weight declaration is made; and

· it is written and easily legible; and

· the information in the container weight declaration is in a form readily available to an authorised officer who seeks to ascertain it while in the presence of the freight container, including, for example, by

(i) examining documents located in the heavy vehicle on which the freight container is loaded or to be loaded; or

(ii) obtaining the information by radio or mobile telephone or by other means.

Annexure 1

Section 190 states that a responsible entity must not permit a driver or operator to transport a freight container without providing the driver or operator with a complying weight declaration. A maximum penalty of $6000 applies. The term responsible entity is defined in section 5 to mean the consignor of the container (if consigned in Australia) or (if not so consigned) the manager for the consignor of the road transport of the container. Subsections (2) and (3) deal with defences to prosecutions, excluding the mistake of facts defence but providing the reasonable steps defence. The reasonable steps defence requires that the person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Section 5 defines a responsible entity for a freight container as a person who in Australia consigned the container for road transport using a heavy vehicle or if there is no such person, the person who in Australia arranged for the container’s road transport using a heavy vehicle, or if there is still no such person, the person who in Australia physically offered the container for road transport using a heavy vehicle.

Section 191 states that it is an offence for a heavy vehicle operator to permit the vehicle’s driver to transport a freight container by road using the vehicle unless the driver has been provided with a complying container weight declaration for the freight container. Subsection (3) states that a heavy vehicle operator must not give a freight container to a carrier (who transports the container by a means other than by road) without a complying container weight declaration or the prescribed particulars contained in a complying container weight declaration for the freight container. Noncompliance for either offence in section 191 has a maximum penalty of $6000.

Annexure 1

Subsection (2) states that if the driver of the heavy vehicle does not have the complying container weight declaration when transporting the freight container by road using the vehicle, an operator of the vehicle is taken to have committed the offence against subsection (1) unless the operator proves that the driver was provided with the declaration before the driver started transporting the freight container.

A person charged with either offence under this section does not have the benefit of the mistake of fact defence for the offence. However, in a proceeding for an offence under this section the person does have the benefit of the reasonable steps defence for the offence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that the person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Section 192 states that an offence is committed by a driver of a heavy vehicle loaded with a freight container on a road where the driver does not have a complying container weight declaration for the container. The maximum penalty is $6000.

Subsection (2) states that an offence is committed by a driver of a heavy vehicle loaded with a freight container who does not keep the complying container weight declaration in or about the vehicle and in a way that enables the information in the declaration to be readily available to an authorised officer who seeks to ascertain it while in the presence of the freight container. The maximum penalty is $3000.

A person charged with either offence under this section does not have the benefit of the mistake of fact defence for the offence. However, in a proceeding for an offence under this section the person does have the benefit of the reasonable steps defence for the offence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that the person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Division 5 Other offences

Annexure 1

Section 193 states that when the weight of a freight container, containing goods consigned for road transport, exceeds the maximum gross weight marked on the container or the container’s safety approval plate, the consignor or packer of the goods commits an offence with a maximum penalty of $10000.

Subsection (5) defines safety approval plate for a freight container as the safety approval plate required to be attached to the container under the International Convention for Safe Containers set out in Schedule 5 of the Navigation Act 1912 of the Commonwealth.

A person charged with either offence under this section does not have the benefit of the mistake of fact defence for the offence. However, in a proceeding for an offence under this section the person does have the benefit of the reasonable steps defence for the offence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that the person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Section 194 allows a consignee whose act or omission results, or is likely to result, in inducing or rewarding a contravention of a mass, dimension or loading requirement and they intend or are reckless or negligent as to whether or not that result happens) commits an offence for which a maximum penalty of $10000 applies.

Subsection (2) provides that the consignee is taken to have intended the result if the container weight declaration was not given or was false or misleading in a material particular in circumstances where the consignee knew or ought reasonably to have known that a container weight declaration for the container was not given as required by the Law or that the container weight declaration given for the container contained information about the weight of the container and its contents that was false or misleading in a material particular.

Part 4.10 Other provisions

Annexure 1

Section 195 provides the basis for determining which mass requirement is to prevail in the case of conflicting requirements. In that case, the lower or lowest of the applicable limits applies. This section confirms that compliance with all mass and dimension requirements relevant to a heavy vehicle, including a combination, is required. For example, if the mass requirements for the individual axle groups making up a heavy vehicle exceed the mass requirement for the vehicle as a whole then the later mass requirement must be complied with.

Section 196 provides the basis for determining which dimension requirement is to prevail in the case of conflicting requirements. For example, a vehicle may be exempted from a prescribed dimension requirement through a dimension exemption. The same vehicle may be subject to a temporary restriction imposed through an official traffic sign. Subsection (2) requires the more or most (if there are two or more such requirements) restrictive of these to be applied in determining what are the relevant dimension requirements.

The section necessarily departs from the approach taken in respect to mass limits in section 195 in specifying that is the more or most ‘restrictive’ limit that applies, rather than the ‘shortest’ or ‘lowest’ requirement on the basis that in some (likely limited) circumstances the requirement imposed on the vehicle and intended to be applied may be longer than another requirement. For example a prescribed dimension requirement may establish that a heavy vehicle is compliant if the distance between two axle groups is more than 2.5 meters while a mass and dimension exemption may require the same distance to be more than 3 meters, in which case the 3 meter requirement is the most restrictive and the prescribed dimension requirement should be disregarded

Annexure 1

Section 197 empowers the Regulator to exempt a heavy vehicle, or the driver or operator of a heavy vehicle, from a prescribed requirement (a mass or dimension requirement or any requirement under mass or dimension authorities granted under Parts 4.5 or 4.6) to allow the heavy vehicle to be used in a particular way to assist in an emergency. The Regulator must be satisfied of certain matters, including that there will not be an unreasonable danger to other road users and that heavy vehicle is being used, or is intended to be used, in an emergency to protect life or property or to restore communications or the supply of services such as energy, water or similar services.

Subsection (3) requires that if the exemption is granted orally that the Regulator must as soon as practicable make a written record of the exemption and any conditions to which it is subject and give a copy of that record to the operator of the heavy vehicle to which it relates.

Subsection (5) imposes an obligation on the Regulator to notify the relevant road authority of the grant of an exemption under subsection (1) as soon as practicable after it is granted.

Section 198 grants a right of recovery for a loss to a person occurring because a driver of a heavy vehicle transporting a freight container by road using the vehicle has not been provided with a container weight declaration for the freight container before starting to transport the freight container. A person who has incurred a loss as a result of the delay resulting from the failure to provide the container weight declaration and the need to obtain a container weight declaration before transporting the container is entitled to compensation. The person who incurs a loss may recover the loss from the responsible entity for the freight container in a court of competent jurisdiction. Section 5 defines responsible entity for a freight container.

Losses that may be recovered under this section include:

· loss incurred from delays in the delivery of the freight container, any of its contents, or any other goods;

· loss incurred from the damage to or spoliation of anything contained in the freight container;

· loss incurred from providing another heavy vehicle, and loss incurred from delays arising from providing another heavy vehicle; or

· costs or expenses incurred for weighing the freight container or any of its contents.

Annexure 1

Unlike section 199 there is no reference to losses incurred from fines or other penalties as the driver and operator of the vehicle should not be allowing the freight container to be transported by road until a complying container weight declaration is obtained.

Section 199 grants a right of recovery for loss to a person who has incurred a loss because:

· an operator or driver of a heavy vehicle transporting a freight container by road using the vehicle has been provided with a container weight declaration for the freight container; and

· the declaration contains information that is false or misleading in a material particular because it either understates the weight of the container; or otherwise indicates the weight of the container is lower than its actual weight; and

· a contravention of a mass requirement applying to the heavy vehicle occurs as a result of the operator or driver relying on the false or misleading information; and

· at the relevant time, the operator or driver either had a reasonable belief the vehicle was not in contravention of the mass requirement; or did not know, and ought not reasonably to have known, that the minimum weight stated in the declaration was lower than the actual weight of the container.

If a loss of the kind mentioned above is incurred, section 199 states that the person incurring this loss has a right to recover that loss from the responsible entity in a court of competent jurisdiction.

Losses that may be recovered under this section include:

· the amount of a fine or other penalty imposed on the plaintiff for an offence against this Bill;

· the amount of a fine or other penalty imposed on an employee or agent of the plaintiff for an offence against this Bill and reimbursed by the plaintiff;

Annexure 1

· loss incurred from delays in the delivery of the freight container, any of its contents, or any other goods;

· loss incurred from the damage to or spoliation of anything contained in the freight container;

· loss incurred from providing another heavy vehicle, and loss incurred from delays arising from providing another heavy vehicle; and

· costs or expenses incurred for weighing the freight container or any of its contents.

There is no limit on the amount of loss that is able to be recovered from the responsible entity for the freight container in this section. However, section 201 states that the court may assess the monetary value of a loss recoverable in the way it considers appropriate. Section 201 also provides that the court may have regard to the matters it considers appropriate in making this assessment.

Section 201 provides that the court may have regard to the matters it considers appropriate in making this assessment.

Section 200 grants a right of recovery to responsible entities that have proceedings initiated against them under section 199 in respect of the whole or part of the amount that they are required to pay against a person, called an information provider, who provided the responsible entity with all or part of the false or misleading information that led to the proceeding under section 199.

Subsection (3) provides that the responsible entity may enforce their right to recover under subsection (2) by either joining the information provider to a recovery proceeding that has not been decided or by bringing a proceeding in a court of competent jurisdiction.

Section 201 empowers the court to assess the monetary value recoverable under the recovery sections of this division (sections 198; 199 and 200). In making this assessment section 201 empowers the court to have regard to matters it considers appropriate, including any evidence adduced in a proceeding for an offence against this Law.

Chapter 5 Vehicle operations—speeding

Part 5.1 Preliminary

Annexure 1

Section 202 states that the main purpose of Chapter 5 is to improve public safety and compliance with Australian road laws by imposing responsibility for speeding by heavy vehicles on persons whose business activities influence the conduct of the drivers of heavy vehicles.

Section 203 states that Chapter 5 requires:

· persons who are most directly responsible for the use of a heavy vehicle to take reasonable steps to ensure their activities do not cause the vehicle’s driver to exceed speed limits; and

· anyone who schedules the activities of a heavy vehicle, or its driver, to take reasonable steps to ensure the schedule for the vehicle’s driver does not cause the driver to exceed speed limits; and

· loading managers to take reasonable steps to ensure the arrangements for loading goods onto and unloading goods from a heavy vehicle do not cause the vehicle’s driver to exceed speed limits; and

· particular persons who consign goods for transport by a heavy vehicle, or who receive the goods, to take reasonable steps to ensure the terms of consignment of the goods do not cause the vehicle’s driver to exceed speed limits; and

· prohibits anyone from asking the driver of a heavy vehicle to exceed speed limits and from entering into an agreement that causes the driver of a heavy vehicle to exceed speed limits.

Annexure 1

Moreover, this Chapter imposes liability on persons who are most directly responsible for the use of a heavy vehicle for offences committed by the vehicle’s driver exceeding speed limits

Part 5.2 Particular duties and offences

Division 1 Employers, prime contractors and operators

Section 204 requires that a ‘relevant party’ for the driver of a heavy vehicle must take all reasonable steps to ensure that the relevant party’s business practices will not cause the driver to exceed a speed limit applying to the driver. The maximum penalty for not complying with this requirement is $10000.

It should be noted that, because of the operation of section 218 for an offence against this provision it is not necessary to prove the driver of the heavy vehicle exceeded a speed limit applying to the driver. For this section, the relevant party for the driver includes:

· if the driver is employed, the employer of the driver;

· if the driver is a self-employed driver, a prime contractor of the driver; and

· if the driver is making a journey for the operator of a vehicle, an operator of the vehicle.

For this section, business practices of a relevant party means the practices of the relevant party in running the relevant party’s business and includes the operating policies and procedures of the business; the human resource and contract management arrangements of the business; and arrangements for managing safety.

Annexure 1

Notes to subsection (1) indicate that sections 622 and 623 should be considered in deciding whether a person has taken all reasonable steps.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for this offence.

Section 205 imposes an obligation on an employer not to cause an employed driver to drive a heavy vehicle unless the employer has complied with section 204 and is reasonably satisfied that each scheduler for the vehicle has complied with that scheduler’s obligations. A maximum penalty of $4000 applies to the offence of contravening this provision.

It should be noted that, because of the operation of section 218, for an offence against this provision it is not necessary to prove the driver of the heavy vehicle exceeded a speed limit applying to the driver.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for this offence.

This section encourages employers to be vigilant as to factors within their control that may encourage a driver to not comply with a speed limit.

Section 206 states where a driver is self-employed, this section imposes on prime contractors and operators of vehicles obligations similar to those imposed on employers by section 205. A maximum penalty of $4000 is prescribed for a person contravening this provision.

It should be noted that, because of the operation of section 218, for an offence against this provision it is not necessary to prove the driver of the heavy vehicle exceeded a speed limit applying to the driver.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for this offence.

This section encourages prime contractors and operators to be vigilant as to factors within their control that may encourage a driver to not comply with a speed limit.

Division 2 Schedulers

Annexure 1

Section 207 states that a scheduler must take all reasonable steps to ensure that the schedule for the driver of a heavy vehicle will not cause the driver to exceed a speed limit applying to the driver. A maximum penalty of $10000 applies to the offence of contravening this provision. Section 5 defines a schedule for the driver of a heavy vehicle and a scheduler for a heavy vehicle.

It should be noted that, because of the operation of section 218, for an offence against this provision it is not necessary to prove the driver of the heavy vehicle exceeded a speed limit applying to the driver.

Examples of what may be regarded as reasonable steps are provided in a note under this section. These examples are:

· Consulting drivers about their schedules and work requirements;

· Taking account of the average speed that can be travelled lawfully on scheduled routes;

· Allowing for traffic conditions or other delays in schedules; and

· Contingency planning concerning schedules.

Notes to subsection (1) indicate that sections 622 and 623 should be considered in deciding whether a person has taken all reasonable steps.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Annexure 1

Section 208 imposes further obligations on schedulers to not cause a vehicle’s driver to drive unless the driver’s schedule allows for:

· the driver to take all required rest breaks in compliance with all laws regulating the driver’s work times and rest times; and

· traffic conditions and other delays that could reasonably be expected; and

· compliance with all speed limits.

A maximum penalty of $4000 applies to the offence of contravening this provision.

It should be noted that, because of the operation of section 218, for an offence against this provision it is not necessary to prove the driver of the heavy vehicle exceeded a speed limit applying to the driver.

Examples provided of considerations that may be taken into account in providing a schedule that allows for traffic conditions and other delays that could be reasonably expected are:

· the actual average speed able to be travelled lawfully and safely by the driver on the route to be travelled by the heavy vehicle;

· known traffic conditions, for example, road works or traffic congestion on the route; and

· delays caused by loading, unloading or queuing.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Division 3 Loading managers

Section 209 states that a loading manager must take all reasonable steps to ensure that loading and unloading arrangements will not cause the driver of a heavy vehicle to exceed a speed limit applying to the driver. A maximum penalty of $10000 applies to the offence of contravening this provision.

For this section, a loading manager means a person who manages, or is responsible for the operation of, regular loading or unloading premises for heavy vehicles; or has been assigned by that person as responsible for supervising, managing or controlling, directly or indirectly, activities carried out by a loader or unloader of goods at the premises.

Annexure 1

It should be noted that, because of the operation of section 218, for an offence against this provision it is not necessary to prove the driver of the heavy vehicle exceeded a speed limit applying to the driver.

Examples of what may be regarded as reasonable steps are provided in a note under this section. These examples are:

· reviewing loading and unloading times and delays at loading and unloading places;

· identifying potential loading and unloading congestion in consultation with drivers and other parties in the chain of responsibility;

· having a system of setting and allocating loading and unloading times the driver can reasonably rely on; and

· allowing loading and unloading to happen at an agreed time.

Notes to subsection (1) indicate that sections 622 and 623 should be considered in deciding whether a person has taken all reasonable steps.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Division 4 Particular consignors and consignees

Section 210 states that this Division applies to a person who is a ‘commercial consignor’ who engages a particular operator of a heavy vehicle, either directly or through an agent or other intermediary, to transport goods for the person by road for commercial purposes.

Section 5 defines a ‘consignee’ of goods as a person who has consented to being, and is, named or otherwise identified, as the intended consignee of the goods in the transport documentation relating to the road transport of the goods; or actually receives the goods after completion of their road transport. This definition does not include a person who merely unloads the goods.

Annexure 1

Section 211 states that this Division applies only to a consignee of goods who:

· has consented to being, and is named or otherwise identified as, the intended consignee of goods in the transport documentation relating to the transport of the goods by road by a particular operator of a heavy vehicle; and

· knows, or ought reasonably to know, that the goods are to be transported by road.

A note to section 211 refers to section 632 for the matters a court must consider deciding whether a person ought reasonably to have known something.

Section 212 states that a commercial consignor or a consignee of goods must take all reasonable steps to ensure that the terms of consignment of goods for transport by a heavy vehicle will not either (a) cause the relevant driver or (b) cause a relevant party for the relevant driver to exceed a speed limit applying to the driver. A maximum penalty of $10000 applies to both offences in this section.

It should be noted that, because of the operation of section 218, for an offence against this provision it is not necessary to prove the driver of the heavy vehicle exceeded a speed limit applying to the driver.

For this section, the relevant driver for consigned goods, means the driver of the heavy vehicle by which the goods are to be or are being transported. For this section, the relevant party for the driver includes:

· if the driver is employed, the employer of the driver;

· if the driver is a self-employed driver, a prime contractor of the driver; and

· if the driver is to make, or is making, a journey for the operator of a vehicle, an operator of the vehicle.

Annexure 1

Examples of what may be regarded as reasonable steps are provided in a note under this section. These examples are:

· ensuring contractual arrangements and documentation for the consignment and delivery of goods enable speed limit compliance;

· contingency planning concerning consignments and delivery times; and

· regular consultation with other parties in the chain of responsibility, unions and industry associations to address compliance issues.

Notes to subsection (1) indicate that sections 622 and 623 should be considered in deciding whether a person has taken all reasonable steps.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Section 213 states that a commercial consignor or a consignee of goods must not make a demand that affects, or may affect, a time in a schedule for the transport of the consigned goods unless the consignor or consignee has complied with section 212 and the consignor or consignee is reasonably satisfied that the making of the demand will not cause a scheduler for the vehicle to not comply with that scheduler’s obligations. A maximum penalty of $6000 applies to the offence of contravening this provision.

It should be noted that, because of the operation of section 218, for an offence against this provision it is not necessary to prove the driver of the heavy vehicle exceeded a speed limit applying to the driver.

Division 5 Particular requests etc. and contracts etc. prohibited

Annexure 1

Section 214 sets out the person included in the meaning of the term ‘party in the chain of responsibility’ for a heavy vehicle in this Division. This definition is important as persons commit an offence under this Division when they make a request to, or enter a contract or agreement with, a party in the chain of responsibility.

The persons who are a party in the chain of responsibility for this Division are:

· an employer of the vehicle’s driver if the driver is an employed driver;

· a prime contractor for the vehicle’s driver if the driver is a self-employed driver;

· an operator of the vehicle;

· a scheduler for the vehicle;

· a loading manager of any goods in the vehicle;

· a commercial consignor of any goods for transport by the vehicle that are in the vehicle;

· a consignee of any goods in the vehicle, if Division 4 applies to the consignee.

A note to subsection (1) indicates that the exercise of any of these functions, whether exclusively or occasionally, decides whether a person falls within these definitions rather than a person’s job title or contractual description.

Subsection (2) provides that a person may be a party in the chain or responsibility for the heavy vehicle in more than one capacity.

Section 215 prohibits a person from asking, directing or requiring, directly or indirectly, the driver of a heavy vehicle or a party in the chain of responsibility to do or not to do something which the person knows or ought reasonably to know would have the effect of causing the driver to exceed a speed limit applying to the driver. A maximum penalty of $10000 applies to the offence of contravening this provision.

Annexure 1

It should be noted that, because of the operation of section 218, for an offence against this provision it is not necessary to prove the driver of the heavy vehicle exceeded a speed limit applying to the driver.

A note to subsection (1) indicates that section 632 states the matters a court must consider when deciding whether a person ought reasonably to have known something.

Section 216 states a person must not enter into a contract or agreement with the driver or a party in the chain of responsibility of or for a heavy vehicle if the person knows or ought reasonably to know that the effect would be to cause the driver to exceed a speed limit applying to the driver.

Subsection (2) makes similar provision for contracts or agreements that encourage or provide incentives for a driver to exceed a speed limit applying to the driver.

In both cases a maximum penalty of $10000 applies to the offence of contravening this provision.

It should be noted that, because of the operation of section 218, for an offence against this provision it is not necessary to prove the driver of the heavy vehicle exceeded a speed limit applying to the driver.

Note 1 to section 216 indicates that section 632 states the matters a court must consider when deciding whether a person ought reasonably to have known something. Note 2 indicates that section 742 provides that particular contracts or other agreements are void.

Division 6 Provisions about offences against this Part

Section 217 deals with circumstances included within the concept of failing to take all reasonable steps in relation to this Division. Under section 217, a person failing to take reasonable steps to ensure someone else does not drive a heavy vehicle in excess of a speed limit applying to the vehicle’s driver (referred to in this section as the prohibited act ) includes:

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· the person failing to take reasonable steps to ensure the other person does not do the prohibited act; and

· the person failing to take reasonable steps to ensure the person’s activities or anything arising out of them do not cause, result in or provide an incentive for the other person to do the prohibited act.

Subsection (4) states that a court may find that a person caused another person to do something prohibited if the court is satisfied that a reasonable person would have foreseen that the person’s conduct would be reasonably likely to cause the other person to do the prohibited act.

Section 218 states that in a prosecution for an offence against Part 5.2, it is not necessary to prove the driver of the heavy vehicle exceeded a speed limit applying to the driver.

Part 5.3 Extended liability

Section 219 creates offences for employers, prime contractors and operators of heavy vehicles if a speeding offence is committed in relation to the vehicle. However, a driver need not be proceeded against or convicted of a speeding offence for this section to operate.

In this section a ‘speeding offence’ means an offence committed by the driver of a heavy vehicle because the driver exceeded a speed limit applying to the driver.

Subsection (1) states that when a speeding offence is committed, each of the following persons are also taken to have committed the offence:

· if the driver is employed, the employer of the driver;

· if the driver is a self-employed driver, a prime contractor of the driver;

· if the driver is making a journey for an operator of a vehicle, the operator of the vehicle.

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The maximum penalty for a person committing an offence under this provision is dependent on both the speed limit exceeded by the driver and how much the driver exceeded the limit by and ranges from $3000 to $10000.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence. However, in a proceeding for an offence under this section the person does have the benefit of the reasonable steps defence for the offence. That defence is set out in Divisions 1 and 2 of Part 10.4. The reasonable steps defence requires that the person charged must actively consider the appropriate steps to prevent an on-road breach from occurring and cannot rely on a honest and reasonable mistake alone.

Subsection (4) clarifies that legal proceedings or any conviction against the driver for the speeding offence is irrelevant. Evidence of a conviction against the driver is evidence of certain matters, and details stated in an infringement notice issued for the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the infringement.

Chapter 6 Vehicle operations—driver fatigue

Part 6.1 Preliminary

Section 220 states the main purpose of Chapter 6 is to provide for the safe management of the fatigue of drivers of fatigue-regulated heavy vehicles while they are driving on the road.

The term ‘fatigue-regulated heavy vehicles’ is defined in section 7. Normally, a vehicle designed to carry more than 12 adults (including the driver) or having a gross vehicle or combination mass of 12 tonnes or more will be a fatigue-regulated heavy vehicle, although section 7 provides exceptions, including some machinery and motor homes.

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Subsection (2) indicates that this purpose is achieved by imposing duties, providing maximum work requirements and minimum rest requirements and, amongst other things, providing for recording the work times and rest times of drivers.

Section 221 provides definitions of terms used in Chapter 6 or refers the reader to other provisions where those terms are defined. Examples are given in some cases.

Section 222 states that breaches of maximum work requirements or minimum rest requirements are categorised as minor, substantial, severe or critical in accordance with provisions of regulations.

Part 6.2 Duties relating to fatigue

Division 1 Preliminary

Section 223 states that ‘fatigue’ includes, but is not limited to, feeling sleepy, feeling physically or mentally tired, weary or drowsy, feeling exhausted or lacking energy or behaving in a way that’s consistent with the examples referred to in paragraphs (a), (b), or (c).

Subsection (2) gives a head of power for the making of national regulations supplementing, clarifying or providing examples for any of the provisions of sections 223 to 226 (encompassing, the meaning of ‘fatigue’, the matters a court may consider in deciding whether a person was fatigued, the meaning of ‘impaired by fatigue’, and the matters a court may consider in deciding whether a person was impaired by fatigue).

Section 224 sets out some matters which a court may consider in determining whether a driver is fatigued but subsection (2) states that the court is not limited by those matters.

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Section 225 states that a driver is impaired by fatigue if the driver’s ability to drive a fatigue-regulated heavy vehicle safely is affected by fatigue. This is consistent with Regulation 44 of the Road Transport (General) Regulation 2005 (NSW).

Section 226 sets out matters that a court may consider in determining whether a person is impaired by fatigue. Subsection (2) provides that the court is not limited to a consideration of those things and subsection (3) provides that a court may consider a driver to be impaired by fatigue even though he or she has complied with legal requirements.

Section 227 refers to a number of parties in the chain of responsibility who are deemed to have committed the same offences as the driver under this Law. These persons include:

· an employer of the vehicle’s driver;

· a prime contractor for the vehicle’s driver;

· an operator of the vehicle;

· a scheduler for the vehicle;

· a consignor of any goods for transport by the vehicle that are in the vehicle;

· a consignee of any goods in the vehicle;

· a loading manager of any goods in the vehicle;

· a loader of any goods in the vehicle; and

· an unloader of any goods in the vehicle.

Subsection (2) provides that it is possible for a person to be a party in the chain of responsibility for a fatigue-regulated heavy vehicle in more than 1 capacity.

Division 2 Duty to avoid and prevent fatigue

Section 228 provides that a person must not drive a fatigue-regulated heavy vehicle on a road while the person is impaired by fatigue. A maximum penalty of $6000 applies to the offence of contravening this provision.

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Section 228 also makes provision for participating jurisdictions to classify offences under other state or territory laws as a "prescribed driver offence under another law”. When an offence under another law of the jurisdiction (for instance, an occupational health and safety law) is so prescribed, then a driver cannot be convicted of both a heavy vehicle driver fatigue offence and the "prescribed driver offence under another law". This will provide drivers of fatigue-regulated heavy vehicle with protection from double jeopardy without having to rely on the, often uncertain, operation of general statutory or common law rules to the same effect.

Section 229 provides that a party in the chain of responsibility for a fatigue-regulated heavy vehicle must take all reasonable steps to ensure that a person does not drive the vehicle on a road while that person is impaired by fatigue. A maximum penalty of $10000 applies to the offence of contravening this provision. Section 229(2) deals with evidence that a party took all reasonable steps and subsection (3) provides that it is not necessary for the prosecution to prove that a person drove or would or may have driven on a road while impaired by fatigue.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Division 3 Additional duties of employers, prime contractors and operators

Section 230 imposes on certain employers, contractors and operators (as specified by subsection (3)) to take all reasonable steps to ensure that their business practices will not cause the driver to drive while impaired by fatigue or to drive in breach of work and rest hours options. A maximum penalty of $6000 applies to the offence of contravening this provision.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

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Section 231 imposes an obligation on an employer not to cause an employed driver to drive a fatigue-regulated heavy vehicle unless the employer has complied with section 230 and is satisfied that each scheduler for the vehicle has complied with that scheduler’s obligations. A maximum penalty of $4000 applies to the offence of contravening this provision.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Section 232 provides that where a driver is self-employed, section 232 imposes on prime contractors and operators of vehicles obligations similar to those imposed on employers by section 231. A maximum penalty of $4000 applies to the offence of contravening this provision.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Division 4 Additional duties of schedulers

Section 233 provides that a scheduler must take all reasonable steps to ensure that the schedule for the driver of a fatigue-regulated heavy vehicle will not cause the driver to drive while impaired by fatigue or in breach of the driver’s work and rest hours options. A maximum penalty of $6000 applies to the offence of contravening this provision.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Section 234 imposes further obligations on schedulers, including a consideration of traffic conditions and other delays that could reasonably be expected; such matters must be allowed for in the driver’s schedule. A maximum penalty of $6000 applies to the offence of contravening this provision.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Division 5 Additional duties of consignors and consignees

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Section 235 states that consignors and consignees must take all reasonable steps to ensure that the terms of consignment of goods for transport by a fatigue-regulated heavy vehicle will not result in, encourage or provide an incentive to the driver to drive while impaired by fatigue or in breach of the driver’s work and rest hours options. A maximum penalty of $10000 applies to the offence of contravening this provision.

Subsection (2) imposes on consignors and consignees similar obligations in relation to employers, prime contractors and operators who may, in turn, cause a driver to drive while impaired by fatigue or in breach of the driver’s work and rest hours options.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Section 236 states that consignors and consignees must not cause the driver to drive or enter into a contract or other agreement to that effect unless the consignor or consignee has complied with section 235 and is satisfied that others upon whom obligations are imposed by Divisions 3 and 4 have complied with those Divisions. A maximum penalty of $4000 applies to the offence of contravening this provision.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Section 237 states that a consignor of goods for transport by road in a fatigue-regulated heavy vehicle must not make a demand that affects or may affect a time in a schedule that may cause the vehicle’s driver to drive while impaired by fatigue or in breach of the driver’s work and rest hours options. A maximum penalty of $10000 applies to the offence of contravening this provision but Subsection (2) protects the consignor if certain precautions are taken before the demand is made.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Division 6 Additional duties of loading managers

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Section 238 states that a loading manager must take all reasonable steps to ensure that loading and unloading arrangements will not cause the driver of a fatigue-regulated heavy vehicle to drive while impaired by fatigue or in breach of the driver’s work and rest hour options. A maximum penalty of $100000 applies to the offence of contravening this provision.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Section 239 imposes an obligation to ensure drivers can rest in particular circumstances. In circumstances specified by subsection (1), a loading manager must take all reasonable steps to ensure that the driver is able to rest while waiting for the goods to be loaded or unloaded onto or from the vehicle. The circumstances include delays in the starting or finishing times advised to the driver for the loading or unloading. A maximum penalty of $6000 applies to the offence of contravening this provision.

A person charged with an offence under this section does not have the benefit of the mistake of fact defence for the offence.

Division 7 Particular requests etc. and contracts etc. prohibited

Section 240 prohibits a person from asking, directing or requiring, directly or indirectly, the driver of a fatigue-regulated heavy vehicle or a party in the chain of responsibility to do or not to do something which the person knows or ought reasonably to know would have the effect of causing the driver to drive while impaired by fatigue or in breach of the driver’s work and rest hours options. A maximum penalty of $10000 applies to the offence of contravening this provision.

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Section 241 provides that a person must not enter into a contract or agreement with the driver or a party in the chain of responsibility of or for a fatigue-regulated heavy vehicle if the person knows or ought reasonably to know that the effect would be to cause the driver to drive while impaired by fatigue or in breach of the driver’s work and rest hours options.

Subsection (2) makes similar provision for contracts or agreements which encourage or provide incentives for driving while impaired by fatigue or in breach of the driver’s work and rest hours options. In both cases, a maximum penalty of $10000 applies to the offence of contravening this provision.

Division 8 Provisions about offences against this Part

Section 242 deals with circumstances included within the concept of failing to take all reasonable steps. Subsection (4) makes further provision as to when a court may find that a person caused another person to do something prohibited; this will be possible if the court is satisfied that a reasonable person would have foreseen that the person’s conduct would be reasonably likely to cause the other person to do the prohibited act.

Part 6.3 Requirements relating to work time and rest time

Division 1 Preliminary

Section 243 defines the terms ‘work and rest hours option’. The term is important in relation to various offences created by Part 6.3 involving conduct causing a driver to drive in breach of the option.

Section 244 deals with counting time. As the driving task may extend across State or Territory borders, section 244 states how time (for work and rest) is to be counted where more than one participating jurisdiction is involved.

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Section 245 provides for the possibility that the driving task may extend across State or Territory borders, section 245 indicates how time (for work and rest) is to be counted where both participating and non-participating jurisdictions are involved.

Section 246 provides for the computation of short periods of less than 15 minutes of both work and rest times.

Section 247 deals with the point from which a period of time is to be counted where a rest break or period is involved and provides an example of how the computation is to be made.

Section 248 deals with the situation where the driving extends across two or more time zones.

Division 2 Standard work and rest arrangements

Section 249 authorises the making of regulations to prescribe maximum work times and minimum rest times applying to drivers of a fatigue-regulated heavy vehicle working under what are called standard hours. Later sections deal with hours that are not standard, called BFM and AFM.

Section 250 states that a solo driver working under standard hours commits an offence where he or she works more than the maximum work time or rests for less than the minimum rest time required by the standard hours. Subsection (1) applies different monetary penalties by reference to whether the breach of the provision is categorised as minor, substantial, severe or critical. Subsections (2) and (3) deal with defences to a prosecution for contravening subsection (1).

Section 251 makes provision, similar to section 250, where drivers under standard hours are party to a two-up driving arrangement.

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Section 252 provides a defence where a rest break of less than 1 hour is required and has not been taken because there was no suitable place available in which to take it but it was taken, no later than 45 minutes late, at the first available suitable location.

Division 3 BFM work and rest arrangements

Section 253 authorises the making of regulations to prescribe maximum work times and minimum rest times applying to drivers of a fatigue-regulated heavy vehicle working under BFM hours. Such a driver drives under BFM accreditation, for which section 458 provides.

Section 254 states that a solo driver working under BFM hours commits an offence where he or she works more than the maximum work time or rests for less than the minimum rest time required by the BFM hours. Subsection (1) applies different monetary penalties by reference to whether the breach of the provision is categorised as minor, substantial, severe or critical.

Subsections (2) and (3) deal with defences to a prosecution for contravening subsection (1).

Section 255 provides a defence for a solo driver in a prosecution for not taking 7 hours of stationary rest when required by BFM hours in circumstances where the driver has had a split rest break.

Section 256 provides a provision, similar to section 254, where drivers under BFM hours are party to a two-up driving arrangement.

Division 4 AFM work and rest arrangements

Section 257 provides a definition of the term AFM hours, being the maximum work times and minimum rest times for a driver of a fatigue-regulated heavy vehicle under an AFM accreditation for which section 458 provides.

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Section 258 states that a driver working under AFM hours commits an offence where he or she works more than the maximum work time or rests for less than the minimum rest time required by the AFM hours. Subsection (1) applies different monetary penalties by reference to whether the breach of the provision is categorised as minor, substantial, severe or critical.

Subsections (2) and (3) deal with defences to a prosecution for contravening subsection (1).

Division 5 Arrangements under work and rest hours exemption

Section 259 defines the term exemption hours to be the maximum work time and minimum rest time for a driver of a fatigue-regulated heavy vehicle driving under an exemption. These times are to be specified in the notice or permit granting the exemption.

Section 260 states that a driver working under a work and rest hours exemption commits an offence where he or she works more than the maximum work time or rests for less than the minimum rest time required by the exemption. Subsection (1) applies different monetary penalties by reference to whether the breach of the provision is categorised as minor, substantial, severe or critical. Subsections (2) and (3) deal with defences to a prosecution for contravening subsection (1).

Division 6 Extended liability

Section 261 extends liability to employers, prime contractors, operators, schedulers, consignors, consignees, loading managers, loaders and unloaders if a driver of a fatigue-regulated heavy vehicle exceeds the maximum work hours or taking less than the minimum rest times required for the driver. It prescribes different penalties depending on whether the offence is characterised as minor, substantial, severe or critical with penalties ranging from $4000 to $15000. Subsections (3) and (4) deal with defences to a prosecution for contravening subsection (1).

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Subsection (5) clarifies that legal proceedings or any conviction against the driver for a breach of work and rest requirements is irrelevant, evidence of a conviction against the driver is evidence of certain matters, and details stated in an infringement notice issued for the relevant offence is evidence that the offence happened at the time and place, and in the circumstances, stated in the infringement notice.

Division 7 Changing work and rest hours option

Section 262 states the limits of a driver to 1 work and rest hours option but allows him or her to change the option available

Section 263 deals with the circumstances in which a work and rest hours option can be changed and obligations arising from a change. Section 263 defines the options in terms of standard hours, BFM hours or AFM hours.

Section 264 imposes duties on employers, prime contractors, operators and schedulers where a driver changes a work and rest hours option. A maximum penalty of $6000 applies where the duties are breached. Subsections (3) and (4) deal with defences available in a prosecution for such a breach.

Division 8 Exemptions relating to work times and rest times

Subdivision 1 Exemption for emergency services

Section 265 provides an exemption from requirements as to work and rest times a person who is acting for an emergency service in circumstances specified in the section on the way to, during and returning from an emergency, as defined in subsection (4).

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Subsection (3) provides that an emergency services exemption is only applicable when the emergency service personnel have complied with any guidelines issued by any emergency service or for that service by an agency responsible for oversight of the emergency service. An example of this would be the South Australian Fire and Emergency Services Commission as the agency responsible for oversight of the South Australian Country Fire Service, which is an emergency service

Subdivision 2 Exemptions by Commonwealth Gazette notice

Section 266 authorises the Regulator to grant an exemption to classes of drivers for 3 years to operate under maximum work times and minimum rest times prescribed in the notice that is to be published in the Commonwealth Gazette to exempt.

Section 267 states that the Regulator may grant a work and rest hours exemption only if the Regulator is satisfied that requiring the class of drivers to whom the exemption is to apply to comply with the standard hours would be an unreasonable restriction on the applicants. Subsection (2) requires the Regulator to have regard to guidelines approved by the responsible Ministers.

Section 268 provides that a notice granting an exemption from work and rest hours may be subject to conditions including driver fatigue management practices that are to apply to the drivers under the exemption, record keeping requirements, as well as a condition that the driver must keep in his or her possession a copy of the notice.

Section 269 deals with the period during which a notice granting an exemption from work and rest hours is in force. It provides that an exemption takes effect when it is published on the Commonwealth Gazette website or a later time stated in the notice.

Section 270 provides that a notice granting an exemption from work and rest hours must refer to the classes of drivers to which the exemption applies, the maximum work times and minimum rest times, the period for which the exemption applies as well as any other conditions.

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Section 271 sets out the grounds that warrant amendment or cancellation of a notice granting an exemption from work and rest hours. In particular, subsection (1) states that a notice may be amended or cancelled due to a change in circumstances that would have resulted in a decision not to grant the exemption or grant it subject to conditions or different conditions had the facts existed at the original grant, or where the use of a fatigue-regulated heavy vehicle has caused, or is likely to cause, a significant risk to public safety.

Subsections (4) to (6) provide that the Regulator’s amendment or cancellation of a work and rest hours exemption (notice) takes effect in the same timeframe and circumstances as those for an amendment or cancellation of a work diary exemption (notice).

Section 272 empowers the Regulator to immediately suspend a work and rest hours exemption (notice). The power is based on similar provisions in the Act relating to exemptions from registration, vehicle standards requirements, and mass and dimension authorities. It is exercisable where it is necessary to suspend the exemption immediately to prevent or minimise serious harm to public safety, and requires a public notification process to be undertaken.

Subdivision 3 Exemptions by permit

Section 273 states that the Regulator may grant, by a permit, an exemption from the work and rest hours that would otherwise apply to the driver of a fatigue-regulated heavy vehicle.

Section 274 allows an employer, operator, prime contractor or a self-employed driver of a fatigue-regulated heavy vehicle to apply for an exemption permit. It specifies the requirements for an application which include the requirement that the applicant must be in the approved form and specify the period for which the exemption is sought, any conditions to which the exemption is sought to be subject as well as the name of the driver.

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Section 275 states the restrictions on the Regulator in relation to the grant of a permit under section 271. The Regulator must be satisfied of certain matters specified in the section, including the unreasonableness of requiring compliance with the hours which would otherwise apply, and must have regard to guidelines approved by the responsible Ministers under section 653.

Section 276 states that a permit granting an exemption from work and rest hours may be subject to conditions. Where the exemption is granted to an operator in connection with the operator’s BFM or AFM accreditation, it is a condition that the operator complies with all of the conditions of that accreditation.

Section 277 deals with the period during which a permit granting an exemption from work and rest hours is in force.

Section 278 deals with the contents of and, in some cases, information which must accompany a work and rest hours exemption permit.

Section 279 provides that if the Regulator refuses a permit, an information notice is to be provided to the applicant.

Section 280 deals with an application for the amendment or cancellation of a work and rest hours exemption (permit).

Section 281 states the grounds for amending or cancelling a work and rest hours exemption (permit) on the Regulator’s initiative and the procedures to be followed, including opportunity for and consideration of written representations.

Section 282 provides for the circumstances in which the Regulator may immediately suspend a work and rest hours exemption (permit).

Section 283 provides the Regulator with the power to make amendments of a minor nature to a work and rest hours exemption (permit), so as to deal with formal or clerical matters or amendments which do not adversely affect the holder’s interests.

Section 284 provides that where a work and rest hours exemption (permit) is amended or cancelled, the Regulator may require its return. It is an offence not to comply with such a requirement and a maximum penalty of $6000 applies. The Regulator may issue a replacement permit where a permit has been amended.

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Section 285 provides that where a permit is defaced, destroyed, lost or stolen, the holder must apply to the Regulator for a replacement. A maximum penalty of $4000 applies for a contravention of this requirement. The section also deals with the circumstances when the Regulator is to issue such a replacement and the procedure to be followed if a replacement is not issued.

Subdivision 4 Offences relating to operating under work and rest hours exemption etc.

Section 286 states that it is an offence not to comply with a condition of an exemption from work and rest hours. A maximum penalty of $6000 applies.

Section 287 makes it an offence for a driver to not keep in his or her possession a copy of the notice granting the exemption and prescribes a penalty of $3000. Subsection (3) extends the liability (with a similar penalty) to employers, prime contractors and operators where a driver contravenes subsection (1), thereby committing an offence against subsection (2).

Section 288 makes it an offence for a driver to not keep in his or her possession a copy of the notice granting work and rest hours exemption, and prescribes a maximum penalty of $3000 Subsection (3) extends liability to employers, prime contractors and operators if the driver is found to have contravened subsection (1).

Subsection (2) imposes obligations to return permits when they are no longer needed. A maximum penalty of $4000 applies.

Subsections (4), (5) and (6) deal with defences and things relevant or irrelevant to the court’s consideration in a prosecution for offences created by this section.

Part 6.4 Requirements about record keeping

Division 1 Preliminary

Annexure 1

Section 289 defines the terms ‘100km work’ and ‘100+km work’ by reference to the radius, measured from the driver’s base, of the area in which the driver drives. Section 5 defines what the driver’s base is.

Section 290 defines a ‘driver’s record location’. It states that the record location of the driver of a fatigue-regulated heavy vehicle is the place advised to the driver by his or her record-keeper or, if there is no such advice, the driver’s base.

Division 2 Work diary requirements

Subdivision 1 Requirement to carry work diary

Section 291 provides that Subdivision 1 applies where a driver is or was in the last 28 days engaged in 100+km work under standard hours, or was working under BFM or AFM hours.

Section 292 states that, for the purposes of Subdivision 1, a work diary is defined so as to include relevant written or electronic diaries, printouts of information in electronic diaries and supplementary records.

Section 293 states that the driver of a fatigue-regulated heavy vehicle must keep a work diary, ensure its accuracy and have it in his or her possession while driving a fatigue-regulated heavy vehicle. A maximum penalty of $6000 applies.

Subsections (2) and (3) deal with situations irrelevant to the offence created by subsection (1) and with defences to a prosecution for tis contravention.

Subdivision 2 Information required to be included in work diary

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Section 294 states that the purpose of Subdivision 2 is to state what must be recorded in the work diary for each day when a driver is engaged in 100+km work under standard hours or works under BFM hours, standard hours or exemption hours.

Section 297 states that the driver must record certain information in the diary immediately after starting work. A maximum penalty of $3000 applies. Subsection (2) makes it a defence to a charge if the driver was unaware that he or she would be engaged in 100+km work under standard hours and records the information as soon as practicable after becoming aware.

Subdivision 3 How information must be recorded in work diary

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Section 300 states that the purpose of Subdivision 3 is to state how information required by Subdivision 2 is to be recorded.

Section 301 explains how information is to be recorded in the driver’s written work diary. A maximum penalty of $1500 applies.

Section 302 explains how information is to be recorded in the driver’s electronic work diary. A maximum penalty of $1500 applies.

Section 303 states that the driver must record time according to the time zone of the driver’s base. A penalty of $1500 applies.

Subdivision 4 Requirements about work diaries that are filled up etc.