Part 1 – Preliminary

Division 1.1 – Introductory

Clause 1 – Name of this Act

This clause is formal and sets out the short title of the Act.

Clause 2 – Commencement

This clause is formal and sets out when the Act commences.

Clause 3 – Main purpose of this Act

This clause sets out that the main purpose of the Act is to ‘provide for the safe management of the fatigue of drivers of regulated heavy vehicles while they are driving on a road’.

Clause 4 – Outline of the main features of this Act

This clause explains the main features of the Act, including that the Act is intended to apply to drivers of regulated heavy vehicles and to other parties ‘whose activities ‘influence the conduct of drivers of regulated heavy vehicles in such a way as to affect the drivers’ fatigue when driving on a road’. Examples are listed in the clause.

Division 1.2 – Interpretation

Clause 5 – Definitions – the dictionary etc

This clause is formal and explains that the dictionary at the end of the Act contains the definitions for terms and expressions used throughout the Act. Where definitions are defined in specific clauses of the Act, for ease of use the dictionary provides a ‘signpost’ reference to that clause.

The clause also provides that definitions provided in the C&E Act apply to this Act, unless the contrary intention appears.

Clause 6 – Examples

This clause is formal and explains the status of examples in the Act.

Clause 7 – Notes

This clause is formal and explains the status of notes in the Act.

Clause 8 – Act to be read with Compliance and Enforcement Act

This clause provides for the application of the provisions of the C&E Act to this Act by:

·        providing for this Act to be read as one with that Act;

·        providing that, for the purposes of that Act, this Act is to be taken to be a road law;

·        providing that provisions of that Act relevant to complying with or enforcing a road law apply to this Act to the extent that they are able to be applied; and

·        allowing further provision on the relationship of the two Acts to be made by regulation.

Clause 9 - Relationship with other legislation and legal instruments

This clause provides for the provisions of another law or legal instrument to continue unaffected by this Act to the extent that the law or legal instrument is not inconsistent with this Act. Examples of other laws or legal instruments include industrial awards and other safety laws that regulate fatigue.

Division 1.3 – How this Act applies

Subdivision 1.3.1 – Regulated heavy vehicles

Clause 10 – What is a regulated heavy vehicle

This clause defines a regulated heavy vehicle as:

·        a heavy truck which by itself or in a combination has a gross vehicle mass of 12 t or more; or

·        a bus that is built mainly to carry 12 adults or more.

However, a regulated heavy vehicle does not include plant or a motor home (both defined terms).

Subdivision 1.3.2 – Who this Act applies to

Clause 11 – Who is a driver

This clause defines the terms driver, employed driver and self-employed driver.

Clause 12 –Who are the parties in the chain of responsibility

This clause defines the term party in the chain of responsibility to include employers, prime contractors, operators, schedulers, loading managers, loaders and unloaders.

This clause also provides that a person may be a party in the chain of responsibility in more than one capacity.

Clause 13 – Who is an employer

This clause defines an employer as person who engages another to drive a regulated heavy vehicle under a contract of employment, apprenticeship or training.

Clause 14 – Who is a prime contractor

This clause defines a prime contractor as a person who engages another to drive a regulated heavy vehicle under a contract of services.

Clause 15 – Who is an operator

The clause defines an operator. The definition is the same as currently applying under the C&E Act.

Clause 16 – Who is a scheduler

This clause defines a scheduler as a person who schedules a driver’s work or rest time, the transport of passengers or goods by road or makes a demand that affects a time in a schedule.

Clause 17 – Who is a consignor

This clause defines a consignor. The definition is based on that currently applying under the C&E Act.

Clause 18 – Who is a consignee

This clause defines a consignee. The definition is the same as currently applying under the C&E Act.

Clause 19 – Who is a loading manager

The clause defines a loading manager as a person who manages, or is responsible for the operation of, a site or premises where regulated heavy vehicles are loaded or unloaded or who supervises, manages or controls any activity undertaken by a loader or unloader.

Clause 20 – Who is a loader

The clause defines a loader. The definition is the same as currently applying under the C&E Act.

Clause 21 – Who is an unloader

This clause defines an unloader. The definition is the reverse of that for loader.

Subdivision 1.3.3 – Where this Act applies

Clause 22 – Jurisdictions and zones

This clause defines the terms this jurisdiction, another jurisdiction, participating jurisdiction, participating zone and non-participating zone.

Division 1.4 – What does reasonable steps mean

Clause 23 – What are reasonable steps

This clause defines what is required where a provision of this Act requires a person to take all reasonable steps to do a specified thing or achieve a specified outcome. This includes:

·        identifying and assessing, on a regular basis. risks to doing that thing or achieving that outcome; and

·        taking reasonable steps to eliminate those risks; or

·        if it is not reasonably practicable to eliminate those risks, taking reasonable steps to reduce the risk, or to minimise the likelihood of the risk eventuating.

Matters that a court may have regard to are listed.

Additionally, compliance with an industry code of practice registered under the C&E Act is prima facie evidence that a person has taken all reasonable steps under this clause.

Clause 24 – What is the reasonable steps defence

This clause defines the term reasonable steps defence. To gain the benefit of the defence, where it is available, the defendant must show that:

·        they had taken all reasonable steps to prevent the breach; or

·        the person could not be reasonably expected to have taken any steps to prevent the breach.

Clause 25 – Deciding whether persons ought reasonably to have known

This clause provides for matters that a court may have regard to in determining whether a person ought reasonably to have known something under any other clause of this Act.

Part 2 – Duties relating to fatigue

Division 2.1 – What is fatigue

Clause 26 – What is fatigue

This clause provides an inclusive definition of fatigue.

Matters that a court may have regard to are listed including cause of fatigue, sign of fatigue and the body of fatigue knowledge (all defined terms).

Clause 27 – What is impaired by fatigue

This clause defines impaired by fatigue as when a driver is fatigued to the extent that he or she is incapable of driving a vehicle safely.

Matters that a court may have regard to are listed including any relevant causes of fatigue or signs of fatigue and the body of fatigue knowledge.

The clause also provides that a court may consider a driver to be impaired by fatigue even if the driver has complied any other requirements of this or legislation (eg complying with work/rest hours).

Division 2.2 – Duties to avoid and prevent fatigue

Clause 28 – Driver’s duty to avoid driver fatigue

This clause provides that a person must not drive a regulated heavy vehicle while impaired by fatigue.

The clause also provides a capacity for a jurisdiction to allow a limited double jeopardy protection for drivers from being prosecuted for contemporaneous offences resulting from conduct at a particular time, but only where the jurisdiction chooses to prescribe those other offences by regulation.

For instance, a person who drives while impaired by fatigue may be guilty of an offence of dangerous driving as well as an offence under this clause. If a jurisdiction prescribes this offence, a person could not be convicted of both offences in relation to the same instance of fatigued driving.

Clause 29 – Duty on parties in the chain of responsibility to prevent driver fatigue

This clause provides that a party in the chain responsibility must take all reasonable steps to ensure that a person does not drive the vehicle on a road while the person is impaired by fatigue.

It is not necessary to establish that a driver was in fact impaired by fatigue in order to prove an offence under this clause.

The clause also provides that evidence that a person is complying with a prescribed fatigue duty under another law is prima facie evidence that the defendant had taken all reasonable steps.

Where a jurisdiction considers there is an equivalence in the requirements of another legislative regime directed toward the management of fatigue risks, this can be given formal legal recognition using this clause. For instance, a workplace safety law that requires a party to manage fatigue risks could be recognised under this clause.

Finally, the clause also provides that evidence of compliance with all the requirements of BFM or AFM accreditation is prima facie evidence that a person has taken all reasonable steps.

Division 2.3 – Additional duties on certain parties in the chain of responsibility

Clause 30 – Duties on employers, prime contractors and operators

This clause provides that an employer, prime contractor and operator must:

·        take all reasonable steps to ensure that the schedule for a driver will not cause or permit the driver to drive in breach of this Act; and

·        not cause or permit a driver to drive, or enter into a contract or agreement to that effect, unless they have made reasonable inquiries to satisfy themselves that the scheduler has complied with the duties under clause 31.

Clause 31 – Duties on schedulers

This clause provides that a scheduler must:

·        take all reasonable steps to ensure that the schedule for a driver will not cause or permit the driver to drive in breach of this Act; and

·        not cause or permit a driver to drive a vehicle unless the schedule allows for the driver to take rest breaks in accordance with his or her work/rest hours option and allows for traffic conditions and other delays that could reasonably be expected.

Clause 32 – Duties on consignors and consignees

This clause provides that a consignor and consignee must take all reasonable steps to ensure that the terms of consignment will not result in, encourage or provide an incentive to:

·        the driver to drive in breach of this Act; or

·        the employer, prime contractor or operator to cause or permit the driver to drive in breach of this Act.

Additionally, the clause provides that a consignor and consignee must not cause or permit a driver to drive in breach of this Act or enter into a contract or agreement to that effect unless they have made reasonable inquiries to satisfy themselves that:

·        the scheduler has complied with the duties under clause 31; and

·        the driver’s employer or the driver’s prime contractor and the operator of the driver’s vehicle have complied with clause 30.

Clause 33 – Duties on loading managers

This clause provides that a loading manager must take all reasonable steps to ensure that the arrangements for loading and unloading vehicles at the premises that they manage will not cause, or contribute to causing, a driver to drive in breach of this Act. Examples include managing loading queues to enable drivers to rely on time slots allocated.

In addition, the clause provides that, if the loading manager is unable to nominate a loading time accurately, they must take all reasonable steps to ensure that a driver is able to take rest while waiting for their vehicle to be loaded or unloaded.

Division 2.4 – Certain requests, contracts etc prohibited

Clause 34 – Certain requests etc prohibited

This clause prohibits a person making requests or demands, direct or indirect, that would cause or contribute to breaches of this Act by drivers or parties in the chain of responsibility.

Clause 35 – Certain contracts etc prohibited

This clause prohibits contracts or agreements with drivers or other parties in the chain of responsibility that would cause or contribute to breaches of this Act by drivers or parties in the chain of responsibility.

Part 3 – Duties relating to work and rest times

Division 3.1 – Key concepts for this Part

Subdivision 3.1.1 – Work and rest time

Clause 36 – What is work/rest hours option

This clause defines a work/rest hours option as:

·        standard hours;

·        BFM hours; or

·        AFM hours.

Clause 37 – What is work time

This clause defines work time as time spent by a driver:

·        driving a regulated heavy vehicle (whether or not on a road); and

·        doing tasks that are related to the operation of a regulated heavy vehicle (examples of such tasks are listed).

Clause 38 – What is rest time

This clause defines rest time as any time of a driver that is not work time.

Clause 39 – What is a work/rest change

This clause defines a work/rest change as a change from work to rest or from solo to two-up driving – and vice versa.

Subdivision 3.1.2 – Counting time

Clause 40 – Counting time, including work and rest time

This clause provides that work and rest time must be counted:

·        in 15 minute intervals, rounded up for work time and rounded down for rest time;

·        from the end of a major rest break (a defined term), thereby preventing artificial counting; and

·        by reference to the time zone of the driver’s base (a defined term), regardless of the actual time zone in which the driving occurred.

Clause 41 – Counting time within the participating zone

This clause provides that any time spent in another participating jurisdiction is to be treated as if it had occurred in this jurisdiction.

Clause 42 – Counting time from outside the participating zone

This clause provides that if a driver has spent time within a non-participating jurisdiction the time is to be treated as if it had occurred in this jurisdiction unless the driver has not spent any time in a participating jurisdiction within the last seven days. In such cases, time may only be counted from the last major rest break.

Division 3.2 – Standard hours

Clause 43 – What this Division is about

This clause explains that:

·        the standard hours in this division apply to drivers who are not in BFM or AFM accreditation; and

·        solo bus drivers have the option of special standard hours in addition to the default standard hours.

Clause 44 – Standard hours — solo drivers

This clause sets out the standard hours work and rest limits for solo drivers and provides that, subject to a reasonable steps defence:

·        drivers must comply with the limits; and

·        parties in the chain of responsibility must ensure that drivers comply with the limits.

Clause 45 – Standard hours — solo drivers of buses

This clause sets out the standard hours work and rest limits for solo drivers of buses and provides that, subject to a reasonable steps defence:

·        drivers must comply with the limits; and

·        parties in the chain of responsibility must ensure that drivers comply with the limits.

Clause 46 – Standard hours — two-up drivers

This clause sets out the standard hours work and rest limits for two-up drivers and provides that, subject to a reasonable steps defence:

·        drivers must comply with the limits; and

·        parties in the chain of responsibility must ensure that drivers comply with the limits.

Clause 47 – Defence relating to short rest breaks

This clause provides a defence for a driver in relation to short rest breaks under standard hours if, at the time that the rest had to be taken, there was no suitable rest place (a defined term) and the driver took the rest within the next 45 minutes at the next available place.

Division 3.3 – BFM hours

Clause 48 – What this Division is about

This clause explains that the BFM hours in this division apply to drivers who working under and complying the conditions of a BFM accreditation or a prescribed bus accreditation (both defined terms).

Clause 49 – BFM hours — solo drivers

This clause sets out the BFM hours work and rest limits for solo drivers and provides that, subject to a reasonable steps defence:

·        drivers must comply with the limits; and

·        parties in the chain of responsibility must ensure that drivers comply with the limits.

Clause 50 – Defence for solo drivers relating to split rest breaks

This clause provides a defence for a solo driver under BFM hours allowing a driver to take less than a 7 hour continuous rest by taking a split rest break (defined as two breaks of 6 hours and 2 hours within a 24 hour period) – provided that the driver has not taken a split rest break in the 24 hours period immediately preceding. This allows a driver more flexibility in taking rest when the driver judges this is necessary.

Clause 51 – BFM hours — two-up drivers

This clause sets out the BFM hours work and rest limits for two-up drivers and provides that, subject to a reasonable steps defence:

·        drivers must comply with the limits; and

·        parties in the chain of responsibility must ensure that drivers comply with the limits.

Division 3.4 – AFM hours

Clause 52 – AFM hours

This clause sets out outer limits for the approval of AFM hours for an accredited operator. The clause explains that the work and rest limits specified in the operator’s AFM accreditation certificate apply as the AFM hours to a driver working under that accreditation and provides that, subject to a reasonable steps defence:

·        drivers must comply with the limits; and

·        parties in the chain of responsibility must ensure that drivers comply with the limits.

Division 3.5 – Changing work/rest hours option

Clause 53 – Changing work/rest hours option

This clause explains how a driver changes from one work/rest hours option to another.

If a driver is changing from AFM hours, they must take a reset rest break (defined as 48 hours of rest). In changing from BFM or standard hours, the driver must either be compliant with the work/rest hours option to which they are changing or take a reset rest break.

In all cases, the driver must be compliant with any other requirements of the work/rest hours option to which they are changing.

Part 4 – Duties relating to record keeping

Division 4.1 – Key concepts for this Part

Clause 54 – What is 100 km work and 100+ km work

This clause defines 100km work and 100+km work.

Clause 55 – What is a driver’s base and record location

This clause defines a driver’s base and record location.

Division 4.2 – Work diary requirements

Clause 56 – Driver must carry work diary

This clause provides that a driver must carry a work diary (a defined term) if the driver is or, in the last 28 days, was working:

·        100+km work; or

·        under a BFM or AFM accreditation.

While driving a regulated heavy vehicle, a driver must carry a work diary that contains information for the last 28 days.

A work diary means a written work diary or an electronic work diary, in combination with any supplementary records. Rules about changing from one form of work diary to another are set out in the clause.

The clause explains that:

·        written work diaries must be issued by the Authority; and

·        electronic work diaries must be approved by the Authority and conform to a set of operating criteria that are specified.

Clause 57 – Information that driver must record in work diary

This clause explains that, if a driver is working 100+km work or under a BFM or AFM accreditation, they must record specified information about themselves, their vehicle and their work in their work diary:

·        when commencing work each day;

·        at each work/rest change;

·        until their next major rest break (a defined term); and

·        at the end of work each day.

Information required to be recorded includes:

·        contact details and driver licence;

·        the driver’s base and record location;

·        accreditation details (if relevant);

·        two-up driver details (if relevant);

·        vehicle registration; and

·        time, location and odometer reading at each work/rest/change.

The clause also provides a limited defence for drivers who are not aware that they will be working 100+km work on a day if they complete information as soon as practicable after they became aware that they would be.

Clause 58 – How driver must record information in work diary

This clause explains how a driver must record information in:

·        a written work diary; and

·        an electronic work diary.

Time must be recorded in a work diary according to the time zone of the driver’s base.

Clause 59 – Destroyed, lost, stolen or malfunctioning work diaries

This clause provides that if a driver’s work diary has been destroyed, lost, stolen or, in the case of an electronic work diary, is malfunctioning, a driver must:

·        in the case of a written work diary – within 2 business days notify the Authority;

·        in the case of an electronic work diary – within 2 business days notify their record keeper (defined further on); and

·        keep supplementary records (a defined term) until either a replacement written work diary has been issued or the electronic work diary has been repaired.

Clause 60 – Malfunctioning odometers

This clause provides that if a vehicle’s odometer is malfunctioning, the driver must within 2 business days notify the vehicle owner, operator and their employer. Subject to a reasonable steps defence, the vehicle owner must ensure the odometer is repaired and the operator and employer are obliged to ensure the owner meets this requirement.

Clause 61 – Duty on employers, prime contractors, operators and schedulers to ensure driver compliance

This clause provides that an employer, prime contractor, operator and scheduler, subject to a reasonable steps defence, must ensure that a driver complies with the requirements of this Division.

Division 4.3 – Records relating to drivers

Clause 62 – Information that record keeper must record

This clause provides that a record keeper (a defined term) must keep certain records for three years at the driver’s record location. Generally, the record keeper will be the employer, unless the driver is:

·        self-employed; or

·        working under an operator’s BFM or AFM accreditation.

These records include:

·        in the case of 100km work – driver contact and licence details, dates on which drivers drive regulated heavy vehicles, and daily and weekly totals of driver work and rest time;

·        in the case of 100+km work – driver work diaries;

·        roster and trip schedules;

·        pay and timesheet records; and

·        in the case of BFM or AFM accreditation – other records required under the accreditation requirements.

Subject to a reasonable steps defence, drivers are required to give a copy of their work diary and any supplementary records for a day to record keepers within 21 days and record keepers are required to ensure drivers do so.

Moreover, if a driver changes record keepers, the driver must give the last 28 days records to the record keeper who must not let the driver drive a regulated heavy vehicle until they have done so.

Division 4.4 – False work records etc

Clause 63 – Definitions for this Division

This clause defines an entry and a work record for the purposes of this Division.

Clause 64– False entries

This clause provides that it is an offence to make an entry in a work record that a person knows, or reasonably ought to have known, is false or misleading in a significant respect.

Clause 65 – Keeping 2 work diaries simultaneously prohibited

This clause provides that it is an offence for a driver to:

·        have more than 1 written work diary in which information can be recorded on a daily sheet; and

·        record information for the same period in more than 1 work diary.

Clause 66 – Possession of purported work records etc prohibited

This clause provides that it is an offence for a driver or record keeper to have in their possession something purporting to be a work record if they know, or reasonably ought to know, that it is not.

Clause 67 – Defacing or changing work records etc prohibited

This clause provides that it is an offence to deface or change an entry in a work record.

Clause 68 – False representation of work records prohibited

This clause provides that it is an offence to falsely represent that a work record, or an entry in a work record, was made by the person.

Clause 69 – Making entries in someone else’s work records prohibited

This clause provides that it is an offence to make an entry in someone else’s work record, other than:

·        when a driver has a work diary exemption allowing another to make entries;

·        an enforcement officer making an annotation in a work record; or

·        a two-up driver signing the work record.

Clause 70 – Destruction of certain work records prohibited

This clause provides that it is an offence to destroy work records that are required to be kept for a period under this Act before the period expires.

Clause 71 – Tampering with electronic work diaries prohibited

This clause provides that it is an offence to tamper (a defined term) with the operation of an electronic work diary, other than by:

·        a person repairing a malfunctioning electronic work diary;

·        a person authorised by the Authority; or

·        an authorised officer or police officer.

The clause further provides that a driver and record keeper must ensure that noone tampers with an electronic work diary.

Division 4.5 – Written work diaries

Clause 72 – Form of written work diaries

This clause provides that a written work diary must be in a format prescribed by the regulations, subject to certain minimum criteria listed in the clause.

Clause 73 – Issue of written work diaries

This clause provides that a written work diary may only be issued by the Authority after receiving an application from a driver in the form prescribed by the regulations that sets out certain particulars.

The clause also provides that if an Authority issues a written work diary to a driver from another participating jurisdiction, the Authority must notify certain details to the corresponding Authority of that jurisdiction.

Division 4.6 – Electronic work diaries

Clause 74 – Approval of electronic work diaries

This clause provides that an electronic work diary may only be approved by the Authority after receiving an application in the form prescribed by the regulations.

The Authority may only approve an electronic work diary if it records at least the same information as a written work diary.

In approving a type of electronic work diary, the Authority must have regard to any recommendations of the Fatigue Authorities Panel (defined further on).

Clause 75 – Variation or cancellation of approval — on application

This clause provides for the variation or cancellation of an approval of an electronic work diary on application by its holder.

Clause 76 – Variation or cancellation of approval — without application

This clause provides for the variation or cancellation of an approval of an electronic work diary without application.

Grounds for cancellation or variation include:

·        the original application was false or misleading; or

·        since the original approval was given, some change in circumstances has occurred that would have affected the original approval.

Part 5 – Accreditation and exemptions

Division 5.1 – Accreditation

Subdivision 5.1.1 – What is an accreditation

Clause 77 – What is an accreditation

This clause defines an accreditation as either BFM or AFM accreditation or a variation thereof.

Subdivision 5.1.2 – BFM accreditation

Clause 78 – Applying for BFM accreditation

This clause sets out how an operator may apply for BFM accreditation.

The application must be in the form approved by the Authority and include certain details, in particular:

·        confirmation that the operator has a BFM fatigue management system (a defined term) in place;

·        an auditor’s report affirming that system is appropriate; and

·        a bona fide declaration of the operator’s and their associates’ road law compliance record.

A BFM fatigue management system must:

·        ensure compliance with the BFM standards and business rules;

·        record details of drivers working under the accreditation;

·        ensure drivers are fit for duty and have been trained appropriately; and

·        ensuring that other staff are trained appropriately.

It is intended that intellectual property in any information provided as part of a BFM application remains with the applicant.

Clause 79 – Granting BFM accreditation

This clause provides that the Authority may grant BFM accreditation for up to three years to an operator if it is satisfied that the operator is.

·        able to comply with this Act; and

·        a suitable person to be granted BFM accreditation.

The Authority may take into account anything relevant in making its decision, including audit results and relevant compliance records.

In granting BFM accreditation, the Authority must have regard to any advice given by the Fatigue Authorities Panel.

If accreditation is granted, the Authority must issue an accreditation certificate to the operator.

Clause 80 – Conditions of BFM accreditation

This clause provides that BFM accreditation is subject to:

·        any conditions imposed in the BFM standards and business rules; and

·        any other conditions imposed in the accreditation certificate.

The clause also provides that it is an offence to contravene an accreditation condition.

Clause 81 – Information that operator must record

This clause provides that a BFM accredited operator must keep:

·        a current list of the drivers under the BFM accreditation; and

·        records demonstrating that the driver has been trained appropriately and meets the other requirements of the accreditation.

Clause 82 – Operator must advise of change or end of accreditation

This clause provides that if an operator’s BFM accreditation changes or ceases, the operator must inform drivers and schedulers who may be affected by this as soon as practicable.

Subdivision 5.1.2 – AFM accreditation

Clause 83 – Applying for AFM accreditation

This clause sets out how an operator may apply for AFM accreditation.

The application must be in the form approved by the Authority and include certain details, in particular:

·        an AFM fatigue management proposal (a defined term);

·        confirmation that the operator has an AFM fatigue management system (a defined term) in place;

·        an auditor’s report affirming that system is appropriate; and

·        a bona fide declaration of the operator’s and their associates’ road law compliance record.

An AFM fatigue management proposal must include:

·        proposed work and rest hours limits; and

·        a description of the risks involved under the limits, and the proposed countermeasures designed to manage those risks.

An AFM fatigue management system must:

·        ensure compliance with the AFM standards and business rules;

·        record details of drivers working under the accreditation;

·        ensure drivers are fit for duty and have been trained appropriately; and

·        ensuring that other staff are trained appropriately.

It is intended that intellectual property in any information provided as part of a AFM application remains with the applicant.

Clause 84 – Granting AFM accreditation

This clause provides that the Authority may grant AFM accreditation for up to three years to an operator if it is satisfied that.

·        the operator is able to comply with this Act;

·        the operator is a suitable person to be granted BFM accreditation;

·        the AFM fatigue management proposal would, if followed, safely manage the risk of driver fatigue; and

·        the operator and drivers are likely to follow the proposal consistently and effectively.

The Authority may take into account anything relevant in making its decision, including the body of fatigue knowledge, audit results and relevant compliance records.

In granting BFM accreditation, the Authority must have regard to any advice given by the Fatigue Authorities Panel.

In setting the hours for an AFM fatigue management proposal, the Authority must not:

·        exceed the AFM outer limits (a defined term); or

·        set hours that would be unsafe.

If accreditation is granted, the Authority must issue an accreditation certificate to the operator that sets out the approved hours.

Clause 85 – Conditions of AFM accreditation

This clause provides that AFM accreditation is subject to:

·        any conditions imposed in the AFM standards and business rules; and

·        any other conditions imposed in the accreditation certificate.

The clause also provides that it is an offence to contravene an accreditation condition.

Clause 86 – Driver must carry AFM accreditation details

This clause provides that a driver working under an AFM accreditation must record in their work diary a statement of the AFM hours allowed under the accreditation.

Clause 87 – Information that operator must record

This clause provides that a AFM accredited operator must keep:

·        a current list of the drivers under the AFM accreditation; and

·        records demonstrating that the driver has been trained appropriately and meets the other requirements of the accreditation.

Clause 88 – Operator must advise of change or end of accreditation

This clause provides that if an operator’s AFM accreditation changes or ceases, the operator must inform drivers and schedulers who may be affected by this as soon as practicable.

Division 5.2 – Exemptions

Subdivision 5.2.1 – Exemptions for emergency services

Clause 89 – Exemptions for emergency services

This clause provides that in an emergency (a defined term) a person acting for an emergency service (a defined term) and who has ‘any time-critical duties in the way to, or during, an emergency’ is exempted from the work/rest hours limits and record-keeping requirements. The exemption does not apply to persons returning from an emergency.

Subdivision 5.2.2 – Other exemptions

Clause 90 – What is an exemption

This clause defines an exemption to include a work/rest hours exemption and a work diary exemption or any variation thereof.

Clause 91 – Work/rest hours exemptions

This clause provides that the Authority may grant a work/rest hours exemption to:

·        an employer, prime contractor or a self-employed driver who applies for the exemption; or

·        a class of persons, without the need for anyone to apply for the exemption.

Certain matters must be included in an exemption application, including why BFM or AFM accreditation would be unreasonable if the hours sought could be accommodated within either accreditation.

A work/rest hours exemption may be granted in combination with accreditation, but in any event may only be granted if the Authority considers that:

·        it would be unreasonable to expect the persons to be covered by the exemption to comply with the work/rest hours;

·        the conditions of the exemption would, if followed, safely manage fatigue risks;

·        the persons to be covered by the exemption are likely to follow those conditions consistently and effectively; and

·        BFM or AFM accreditation would be unreasonable for the proposed operation in safely managing fatigue risks.

Clause 92 – Work diary exemptions

This clause provides that the Authority may grant a work diary exemption to a driver who is working under standard hours if the Authority is satisfied that:

·        the driver cannot make records in the driver’s work diary because of inadequate English literacy; and

·        a nominee will be able to make records that are no less complete or accurate than a work diary.

Clause 93 – Applying for an exemption

This clause sets out how a person must apply for an exemption and what information they must provide.

Clause 94 – Granting an exemption

This clause provides that the Authority may grant an exemption to an individual or to a class of persons by gazettal.

The clause also provides that it is an offence for a person to contravene a condition of an exemption.

Division 5.3 – Variation, suspension or cancellation of accreditation or exemptions

Subdivision 5.3.1 – On application of holder

Clause 95 – Variation or cancellation of accreditation or exemption — on application

This clause provides for the variation or cancellation of accreditation of exemption on application by its holder.

Subdivision 5.3.2 – Without application of holde

Clause 96 – Grounds for variation — without application

This clause sets out the grounds for variation of an accreditation of exemption, including:

·        that the original application was false or misleading; or

·        that a person to whom the accreditation or exemption applies is not suitable or has contravened this Act or a corresponding fatigue law; and

·        that since the original accreditation or exemption was granted, some change in circumstances has occurred that would have affected the original decision.

Clause 97 – Grounds for cancellation — without application

This clause sets out the grounds for cancellation of an accreditation of exemption, including:

·        that the original application was false or misleading; or

·        that a person to whom the accreditation or exemption applies is not suitable or has contravened this Act or a corresponding fatigue law; and

·        that since the original accreditation or exemption was granted, some change in circumstances has occurred that would have affected the original decision.

Clause 98 – Variation or cancellation of accreditation or individual exemption — without application

This clause sets out the process for the variation or cancellation of an accreditation or individual exemption without application, allowing its holder to provide reasons why the accreditation or exemption should not be varied or cancelled within 14 days.

Clause 99 – Immediate suspension of accreditation or an individual exemption in public interest

This clause provides that the Authority may immediately suspend an accreditation or individual exemption for up to 56 days if the Authority considers it necessary in the interest of public safety. To effect a variation or cancellation after this period of suspension, the Authority is obliged to go through the process outlined in clause 98.

Clause 100 – Variation or cancellation of an exemption granted to a class of persons

This clause provides for the variation or cancellation of an exemption that has been granted to a class of persons by gazettal.

Subdivision 5.3.3 – Return of accreditation certificate or exemption

Clause 101 – Return of accreditation certificate or exemption

This clause provides that if an accreditation or individual exemption has been varied or cancelled, its holder must return the accreditation certificate or exemption within 7 days of notice being received of that.

If the accreditation or exemption has been varied, the Authority must issue a replacement certificate of exemption as soon as practicable.

Division 5.4 – Replacement of lost etc accreditation certificates or exemptions

Clause 102 – Replacement of lost etc accreditation certificates or exemptions

This clause provides for replacement accreditation certificate or exemptions if the original is defaced, destroyed, lost or stolen.

Division 5.5 – Offences relating to accreditation etc

Clause 103 – Offence to falsely represent that accreditation etc held

This clause provides that it is an offence to:

·        falsely represent oneself as the holder of an accreditation or exemption;

·        falsely represent an entitlement to work under an accreditation or exemption; or

·        possess a document that falsely purports to be an accreditation or exemption.

Clause 104 – Offences relating to auditors

This clause provides that it is an offence to:

·        falsely represent oneself as an approved auditor;

·        falsely represent that one has audited an operator’s BFM or AFM fatigue management system; or

·        falsely represent the opinion of an auditor in relation to an operator’s BFM or AFM fatigue management system.

Part 6 – Compliance and enforcement provisions

Division 6.1 – Risk categorisation of offences

Clause 105 – Categories of offences

This clause explains that offences under this Act that involve a direct risk of death or injury or of damage to property are classified as:

·        minor risk offences;

·        substantial risk offences;

·        severe risk offences; or

·        critical risk offences.

Clause 106 – How is an offence category specified

This clause provides how an offence category is specified.

Division 6.2 – Enforcement powers

Clause 107 –Powers of authorised officers or police officers in relation to fatigue and work/rest hours breaches

This clause provides that an authorised officer and police officer may direct the driver:

·        to take rest immediately;

·        to take additional rest at their next required rest break;

·        to work reduced hours in the next relevant period;

·        to take the next night rest time;

·        not to work for a specified period of time;

·        to stop driving immediately, and authorise a qualified person to move the vehicle to a suitable rest place; or

·        not to work for a 24-hour period, if the driver fails to produce his or her work diary.

The nature of these powers varies according to the risk category of the breach detected.

Clause 108 – Other enforcement powers

This clause provides that any other enforcement powers under another law, such as the C&E Act, remain available for use under this Act.

The clause also provides that, for the purposes of this Act, the power to inspect a heavy vehicle under the C&E Act includes the power to download information from the engine management system and any intelligent transport system, including an electronic work diary, fitted to the vehicle.

Clause 109 – Duty on authorised officers and police officers to annotate driver’s work diary

This clause requires an authorised officer or police officer who stops a driver to make an annotation in the driver’s work diary setting out certain particulars.

Division 6.3 – Penalties

Clause 110 – Penalties

This clause sets out penalties for each risk category of offence, including demerit points for some offences committed by drivers. For second or subsequent offences, higher penalties apply.

The clause also provides that:

·        for bodies corporate the court-imposed penalty is five times the court-imposed penalty for an individual; and

·        sanctions available under the C&E Act may be applied in relation to an offence under this Act.

Clause 111 – Provisions relating to first offences and second or subsequent offences

This clause provides that an offence may be treated as a second or subsequent offence if:

·        it occurred at a different occasion to the first offence; and

·        within three years of the first offence.

Offences committed under a corresponding fatigue law must be considered by the court in determining whether an offence is a second or subsequent offence.

Part 7 – Decision-making provisions

Division 7.1 – What is a decision

Clause 112 – What is a decision

This clause defines a decision as ‘any administrative action taken under this Act to approve, grant, issue, vary, suspend or cancel an instrument, concession, privilege or right’.

Division 7.2 – Who may make a decision

Clause 113 – Authority may delegate powers

This clause provides that the Authority may, by written instrument, delegate its powers under this Act to a person or specified class of persons.

Clause 114 – Fatigue Authorities Panel

This clause defines the Fatigue Authorities Panel as a panel established in accordance with this clause or a corresponding provision of a corresponding fatigue law (a defined term).

The Panel must:

·        consist of the Authorities of each participating jurisdiction and the federal department of transport;

·        consider matters referred to it under this Act or a corresponding fatigue law; and

·        operate according to certain procedures, including majority vote.

The Panel may:

·        invite submissions;

·        utilise expert advice in its deliberations;

·        meet in person or by electronic means; and

·        invite observers, including the National Transport Commission and fatigue authorities from the non-participating zone.

Division 7.3 – Referral and mutual recognition of decisions

Clause 115 – Referral of matters to the Panel and other Authorities

This clause provides that if the Authority proposes to make a decision on certain matters that may, or is intended to, have application in another participating jurisdiction, prior to making the decision the Authority must refer the matter to Panel for consideration. If the Panel makes a recommendation on the matter, the Authority must take note of that in making its decision.

Proposed decisions covered by this clause include:

·        granting AFM accreditation or an exemption; and

·        varying, suspending or cancelling AFM or BFM accreditation or an exemption by the home jurisdiction’s Authority.

Clause 116 – Mutual recognition of certain decisions

This clause provides that certain decisions of a corresponding Authority will be automatically recognised in this jurisdiction as if it were a decision of the Authority.

Decisions covered by this clause include:

·        issuing written work diaries;

·        approving electronic work diaries;

·        granting BFM accreditation; and

·        varying, suspending or cancelling AFM or BFM accreditation or an exemption by the home jurisdiction’s Authority or if such action is in accordance with a recommendation of the Panel.

Clause 117 – Mutual recognition of other decisions

This clause provides that other decisions of a corresponding Authority or a recommendation of the Panel under clause 115 may be applied in this jurisdiction if the Authority chooses to do so.

Division 7.4 – Notification and recording of decisions

Clause 118 – Notifying other Authorities of decisions

This clause provides that the Authority must notify corresponding Authorities of certain decisions.

Decisions covered by this clause include:

·        granting, varying, suspending or cancelling BFM or AFM accreditation or exemption;

·        approving, varying or cancelling the approval of an electronic work diary; and

·        deciding not to follow a recommendation of the Panel under clause 115.

Clause 119 – Register of decisions

This clause requires the Authority to keep a register of:

·        decisions made under this Act;

·        decisions of another jurisdiction that are recognised in this jurisdiction automatically and have been notified under clause 118; and

·        decisions of another jurisdiction that have been applied in this jurisdiction under clause 117.

Division 7.5 – Reconsideration and review of decisions

Clause 120 – Decisions that may be reconsidered and reviewed

This clause provides that certain decisions may be reconsidered and reviewed.

Decisions covered by this clause include:

·        decisions relating to BFM or AFM accreditation; and

·        decisions relating to exemptions.

Clause 121 – Reconsideration of decisions

This clause sets out the process for reconsideration of decisions covered by this Division, including referral to the Panel in certain circumstances.

Clause 122 – Review of decisions by <relevant jurisdiction tribunal or court>

This clause provides that a jurisdiction may allow for review of decisions covered by this Division by the relevant jurisdiction tribunal or court with jurisdiction over review of administrative decisions.

Part 8 – Miscellaneous

Division 8.1 – Transitional provisions

Clause 123 – TFMS applications

This clause sets out how TFMS applications made prior to the commencement of this legislation are to be treated.

Clause 124 – TFMS to BFM

This clause sets out how TFMS participants may transition to BFM accreditation.

Clause 125 – TFMS to AFM

This clause sets out how TFMS participants may transition to AFM accreditation.

Clause 126 – TFMS otherwise lapses

This clause provides that TFMS lapses, other than provided in clauses 123 to 125.

Clause 127 – Applications for reconsideration by Authority

This clause sets out how applications for reconsideration of decisions made prior to the commencement of this legislation are to be treated.

Clause 128 – Applications for review by <relevant jurisdiction tribunal or court>

This clause sets out how applications for review of administrative decisions by the relevant jurisdiction tribunal or court made prior to the commencement of this legislation are to be treated.

Clause 129 – Exemption applications

This clause sets out how exemption applications made prior to the commencement of this legislation are to be treated.

Clause 130 – Existing exemptions continue

This clause provides that existing exemptions are to continue for a period of no more than three years from the commencement of this legislation.

Clause 131 – Prosecution of offences that are undecided

This clause sets out how prosecution of offences that are undecided prior to the commencement of this legislation are to be treated.

Clause 132 – Existing logbooks

This clause provides that existing logbooks may continue to be used for up to 90 days following commencement of this legislation.

Clause 133 – Repeal

This clause repeals the jurisdiction legislation implementing the model legislation set out in Schedule 1 of the National Transport Commission (Road Transport Legislation – Driving Hours Regulations) Regulations 2006.

Division 8.2 – Regulations

Clause 134 – Regulations

This clause provides that regulations may be made under this Act as required or permitted or necessary or convenient for giving effect to this Act. The regulations may:

·        incorporate or adopt by reference, with or without modifications, provisions of other legislation or other documents; and

·        create offences and specify the maximum penalty that may be imposed in relation to the offences, not exceeding $10 000 for an individual, $50 000 for a corporation or 4 demerit points for a driver.

Dictionary

The dictionary sets out defined terms and ‘signpost’ references to terms defined in particular clauses of this Act. The dictionary notes that definitions provided in the C&E Act apply to this Act, unless the contrary intention appears.

Key terms defined in the dictionary include:

·        approved sleeper berth;

·        BFM and AFM accreditation;

·        BFM and AFM standards and business rules;

·        business day;

·        corresponding Authority;

·        corresponding fatigue law;

·        duplicate daily sheet;

·        long/night work time;

·        malfunction;

·        major rest break;

·        night rest break;

·        prescribed bus accreditation;

·        solo driver;

·        stationary rest time;

·        TFMS; and

·        two-up driver.