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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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HEAVY VEHICLE NATIONAL LAW (SOUTH AUSTRALIA) BILL

Introduction and First Reading

The Hon. A. KOUTSANTONIS (West Torrens—Minister for Transport and Infrastructure, Minister for Mineral Resources and Energy, Minister for Housing and Urban Development) (16:17): Introduced a bill for an act to make provision for a national scheme for facilitating and regulating the use of heavy vehicles on roads; and for other purposes. Read a first time.

Second Reading

The Hon. A. KOUTSANTONIS (West Torrens—Minister for Transport and Infrastructure, Minister for Mineral Resources and Energy, Minister for Housing and Urban Development) (16:18): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

I am pleased to introduce the Heavy Vehicle National Law (South Australia) Bill 2013 (the Application Bill).

This Bill and its companion, the Statutes Amendment (Heavy Vehicle National Law) Bill 2013 (the Consequential Amendments Bill), will enable South Australia to fulfil its commitments under the Council of Australian Governments' Intergovernmental Agreement on Heavy Vehicle Regulatory Reform (IGA). The heavy vehicle reform is one of the competition reform priorities under the National Partnership Agreement to Deliver a Seamless National Economy. This is the last of 3 transport regulatory reforms to be considered by this Parliament, following the passage of the Rail Safety National Law (South Australia) Act 2012 and the introduction of the Marine Safety (Domestic Commercial Vessel) National Law (Application) Bill 2013.

The purpose of the Application Bill is to establish a national system of heavy vehicle regulation governed by one national law (the National Law), that brings together model legislation developed through national heavy vehicle regulatory reforms over the last 20 years. This includes registration; fatigue management; accreditation schemes; mass, dimension and loading limits; compliance requirements and enforcement powers for all heavy vehicles over 4.5 tonnes.

The National Law also includes matters not the subject of the model legislation but which are necessary for it to be self-contained and fully operational. Examples of such matters include, provisions establishing a National Regulator as a corporate entity to administer the scheme, associated financial controls and governance structures; a review and appeals system; and requirements regulating the use and release of information. There are also savings and transitional provisions to enable the smooth transfer of business to the new national system, for example, recognition of things done under corresponding provisions of former jurisdictional laws.

This reform recognises the importance of national consistency in heavy vehicle law and regulations, and the huge contribution made by the transport industry to the national economy. It aims to create a more productive and safer heavy vehicle industry.

COAG agreed that the National Regulator would be based in Queensland. It also agreed the National Law would be introduced in Queensland and, then, jurisdictions would apply the law as a law of their own jurisdiction. The National Law was passed by the Queensland Parliament on 23 August 2012 and the National Heavy Vehicle Regulator (National Regulator) Board and Chief Executive were appointed at the end of 2012. A National Law Amendment Bill passed the Queensland Parliament on 14 February 2013.

The National Regulator commenced limited business on 21 January 2013 administering the National Heavy Vehicle Accreditation Scheme and Performance Based Standards Scheme (under delegations or administrative arrangements using existing state and territory laws), in conjunction with establishing a dedicated national website and call centre. Full operation of the National Law cannot commence until jurisdictions have passed and commenced their application laws. Jurisdictions are working to a commencement date of 1 July 2013, although Western Australia has indicated that it will not be able to enact legislation until 2014.

The regulation of heavy vehicles is currently carried out by 9 governments. The multiplicity of legislation and administration has economic and efficiency impacts. Nationally, differences in the adoption, application, interpretation and enforcement of model laws and the use of jurisdiction-specific exemptions, permits, notices, business practices and guidelines have lessened their efficacy. The benefits of the reform include:

efficiencies in administration and business operations;

reductions in compliance burdens and costs;

improved policy and decision making;

increased certainty of outcome that leads to reduced stress for drivers and better safety outcomes;

improvements in responsiveness of regulation;

regulation promoting outcomes rather than setting minimum standards.

In the National Regulator Project Office's preliminary analysis for South Australia regarding the establishment of the National Regulator scheme, the economic benefits for operators in South Australia were estimated to be $236.1 million over a 22 year period. Approximately 46 per cent of these benefits are the result of assumed productivity improvements.

Some of these benefits will be delivered by the activities of the National Regulator in administering, monitoring and reviewing performance against the corporate reporting and other requirements of the National Law. As an independent body, the National Regulator will assist with identifying issues and trends. It will be a catalyst for economic productivity, ascertaining measures that will improve safety, promote partnerships between government and industry, and make customer service more efficient and effective.

Currently, heavy vehicle operators and drivers must comply with multiple regulations in each jurisdiction that they enter. For example, an interstate operator operating a restricted access vehicle through several states is compelled to contact and ensure they obtain appropriate access approvals from each State's regulatory authority, and then comply with the specific access conditions for each. The National Regulator will ensure that the current level of regulatory inconsistency, costs, and red tape is reduced by acting as a central link or one stop shop issuing a single permit with a simplified set of operating conditions for all the jurisdictions through which the vehicle will pass.

The National Law includes a penalties framework, including maximum court imposed penalties, with a 5 times corporate multiplier. The Ministerial Council has approved a schedule setting out which offences will be expiable and which will be subject to demerit points.

National model laws provided indicative penalties with the exact level being left to jurisdictions to set according to their own frameworks. South Australia generally followed the model law penalty amounts. The National Law penalty framework was achieved by negotiation and compromise, and all jurisdictions have accepted changes to their existing positions.

The National Law includes a national heavy vehicle registration scheme. It is intended that this part of the Law will be deferred from commencement until 2015 or 2016, when a national system for the real time exchange of registration and number plate data has been fully developed and implemented. In the meantime, a heavy vehicle registered under a jurisdictional registration law will be taken to be registered for the purposes of the National Law.

SA Police does not support any diminution of its existing enforcement powers and has requested that existing police powers be retained. South Australia will therefore depart from the agreed national law in a small number of instances to preserve some enforcement powers that were implemented as part of the national model compliance and enforcement law but omitted from the National Law because of specific conflicts with other jurisdictions' laws.

Retaining these powers will assist SA Police in the effective enforcement of heavy vehicle laws. For example, neither the exclusion in the National Law of the ability to issue improvement notices where a breach of the National Law is likely to occur (as well as where an offence has occurred or is occurring) nor the inclusion in the National Law of the reasonable steps defence for the offence of tampering with a speed limiter will be implemented.

In addition, 4 offences that are currently expiable in South Australia but will not be under the National Law, will continue to be expiable in South Australia.

South Australia will also maintain several existing powers and offences in relation to heavy vehicles. These will supplement, rather than vary, the National Law. For example, the Application Bill provides the power to enter premises where vehicles are offered for sale or hire to inspect and defect vehicles at such premises; and includes the current offences of possession of a device designed, or adapted, to enable tampering with a speed limiter and of selling or disposing of a defected vehicle.

These few departures and additions will have little impact on compliant drivers, operators and others in the chain of responsibility. For many years, South Australia has worked closely with the heavy vehicle transport industry to find practical solutions to difficult operational issues. As a result, a number of local productivity initiatives have been implemented to suit South Australia's specific conditions, for example, a dimension exemption for commercial motor vehicles and trailers carrying a load consisting solely of sheaved hay up to 3.4m wide. The Intergovernmental Agreement for this reform agreed that operators would retain the benefits of these initiatives.

Existing local productivity initiatives will be preserved under the National Law and, where appropriate, following assessment by the National Regulator, may be extended in similar circumstances across the nation. Other jurisdictions' local productivity initiatives will also be assessed. Assessing local initiatives on a national basis will provide opportunities for greater consistency and general harmonisation, leading to efficiency gains and a further reduction in the overall cost of regulation.

The National Regulator will undertake central administration and systems operations and the States and Territories will deliver regulatory services through service agreements as delegates of the National Regulator. Service standards will be agreed and key performance indicators will be set and reported on. This will drive efficiencies in service provision.

Under the Intergovernmental Agreement, the ongoing costs of the National Regulator are to be fully cost-recovered from industry. This will occur through direct fee for service arrangements that will ensure the costs are borne by those gaining the actual benefits; and through the heavy vehicle charges determination that sets the heavy vehicle registration charge, of which regulatory services will be one component.

Full cost recovery may result in a marginal increase in costs for operators. It is anticipated that this will be offset by the significant benefits that will accrue to them following the implementation of the reform.

The cost to industry is expected to decrease in real terms over time; firstly, due to a reduction in administrative overheads, with one regulator replacing many agencies which will provide economies of scale; and secondly, as the Regulator shifts towards more activity-based costing models. The Regulator's costs and charging arrangements will be regularly reviewed and approved by the Ministerial Council.

The Intergovernmental Agreement also provides that the Commonwealth will fund the establishment costs of the National Regulator; and that jurisdictions will pay for the costs of transitioning from existing state and territory legislation to the new regime.

The Consequential Amendments Bill principally amends the Road Traffic Act 1961. Amendments to that Act remove the heavy vehicle matters now covered in the National Law and its Application Bill. The Road Traffic Act will only cover vehicle standards and defective vehicle requirements for light vehicles. However, drink and drug driving, careless and dangerous driving, excessive speed and the Australian Road Rules requirements will continue to apply to heavy vehicles as well as light vehicles.

The National Law is something industry has, for many years, been calling for. It is an ambitious undertaking that aims to deliver clear productivity and safety benefits to the broad heavy vehicle freight industry and to reduce duplication and red tape. Industry has been directly engaged in all stages of its development and will continue to be actively involved in the future. I look forward to the support of all members for this national initiative.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause provides for definitions for the purposes of this measure. The measure is comprised of the local application provisions and the South Australian Heavy Vehicle National Law text (being the Heavy Vehicle National Law set out in the schedule, as in force for the time being, of this measure). Unless the context or subject matter otherwise indicates or requires, terms used in the local application provisions and also in the South Australian Heavy Vehicle National Law text have the same meanings in those provisions as in that Law.

Part 2—Application of Heavy Vehicle National Law and Heavy Vehicle National Regulations

Division 1—General

4—Application of Heavy Vehicle National Law

This clause provides that the South Australian Heavy Vehicle National Law text—

applies as a law of South Australia; and

as so applying may be referred to as the Heavy Vehicle National Law(South Australia) (HVNL (SA)).

5—Amendments to Schedule to maintain national consistency

This clause makes provision for the Governor to make regulations to amend the South Australian Heavy Vehicle National Law text to maintain consistency with the Heavy Vehicle National Law as set out in the Schedule to the Heavy Vehicle National Law Act 2012 of Queensland, and as amended and in force from time to time.

6—Application of Heavy Vehicle National Regulations

This clause provides that the Heavy Vehicle National Regulations, as in force from time to time—

apply as National Regulations in force for the purposes of the Heavy Vehicle National Law (South Australia), subject to modifications by the local regulations; and

as so applying may be referred to as the Heavy Vehicle National Regulations (South Australia).

7—Exclusion of legislation of this jurisdiction

This clause excludes or limits the application of certain Acts of South Australia in respect of the operation of the HVNL (SA).

Division 2—Definitions, declarations and other references for purposes of Heavy Vehicle National Law (South Australia)

8—Definition of generic terms and terms having meaning provided by this Act

This clause sets out the definition of certain terms used in the HVNL (SA) for the purposes of their application in this jurisdiction. For example, a reference to a police officer in the HVNL (SA) is a reference to a member of SA Police under the Police Act 1998; a reference to an infringement notice in section 591 of the HVNL (SA) is a reference to an expiation notice issued under the Expiation of Offences Act 1996; and so on.

9—Declarations about industrial relations status of Regulator

This clause makes the following declarations:

the National Heavy Vehicle Regulator (the Regulator) is not a public sector employer for the purposes of the Fair Work (Commonwealth Powers) Act 2009;

it is the intention of the Parliament that the Regulator be a national system employer for the purposes of the Fair Work Act 2009 of the Commonwealth;

no Act of South Australia can have effect to stop the Regulator from being a national system employer for the purposes of the Fair Work Act 2009 of the Commonwealth.

10—Other declarations for purposes of Heavy Vehicle National Law in this jurisdiction

This clause contains the following declarations for the purposes of the HVNL (SA):

each magistrate is declared to be an authorised warrant official;

each police officer is declared to be an authorised officer;

the Expiation of Offences Act 1996 is declared to be the Infringement Notice Offences Law;

each council under the Local Government Act 1999 is declared to be a local government authority;

the Work Health and Safety Act 2012 is declared to be the primary WHS Law;

the Magistrates Court is declared to be the relevant tribunal or court for the purposes of section 556 of the HVNL (SA);

the Administrative and Disciplinary Division of the District Court is declared to be the relevant tribunal or court for all other purposes;

an area that is a road or road-related area within the meaning of the Road Traffic Act 1961 is declared to be a road or road-related area;

the Minister to whom the administration of the Road Traffic Act 1961 is committed is declared to be the road authority;

an authority, person or body responsible for the care, control or management of a road is declared to be a road manager;

the Australian Road Rules are declared to be the Road Rules.

11—References to mistake of fact defence

This clause provides that the effect of a provision of the HVNL (SA) that states that a person charged with an offence does not have the benefit of the mistake of fact defence for the offence is that the person does not have the benefit of the mistake of fact defence for that offence (see section 14 of the HVNL (SA)).

Division 3—Authorisations for purposes of this jurisdiction

12—Authority to use force

This clause authorises authorised officers who are police officers to use force against a person in the exercise or purported exercise of a function under the HVNL (SA) (see section 491 of the HVNL (SA)), and all authorised officers to use force against property in the exercise or purported exercise of a function under the HVNL (SA) in relation to this jurisdiction (see section 492 of the HVNL (SA)).

13—Authority to amend or withdraw vehicle defect notices

This clause authorises authorised officers who are police officers of another jurisdiction to amend or withdraw a vehicle defect notice issued in this jurisdiction by an authorised officer who is a police officer (see section 531 of the HVNL (SA)).

14—Authority to seize heavy vehicles or things

This clause provides that section 552(1) of the HVNL (SA) does not apply to an authorised officer who is a police officer impounding or seizing a heavy vehicle or thing under an Act or law of this jurisdiction (see section 552(2) of the HVNL (SA)).

15—Authorised use of protected information

This clause declares that the Motor Vehicles Act 1959 is specified as a relevant law for the purposes of Chapter 13 Part 4 of the HVNL (SA).

Division 4—Modification of Heavy Vehicle National Law (South Australia) for purposes of this jurisdiction

16—Modification of Law for certain purposes

17—Modification of Law for other purposes

These clauses provide for modifications of the HVNL (SA) for the purposes of its application as a law of South Australia. The modifications do not directly amend the South Australian Heavy Vehicle National Law text but provide for the text to be read as if the modifications set out in the clauses were made to the text.

Division 5—Supplementary powers relating to enforcement in this jurisdiction

18—Application of this Division

The provisions set out in this Division are additional to the provisions of the HVNL (SA) and the powers that may be exercised by authorised officers in this jurisdiction under this Division are additional to the powers that may be exercised by an authorised officer under the HVNL (SA).

19—Power to enter certain places

This clause authorises authorised officers to enter premises where heavy vehicles are exhibited or kept for sale or hire during business hours in order to determine whether any vehicle for sale or hire at the place is a defective heavy vehicle.

20—Person must not possess certain devices

This clause prohibits the possession, without reasonable excuse, of a device designed or adapted to enable tampering with a speed limiter. The maximum penalty for an offence under this clause is a fine of $10,000 for a natural person and $50,000 for a body corporate.

21—Offence to sell or dispose of heavy vehicle in respect of which vehicle defect notice is in force

This clause prohibits the sale or disposal of a heavy vehicle in respect of which a vehicle defect notice has been issued if the notice has not been cleared under the Heavy Vehicle National Law of a participating jurisdiction. The maximum penalty for an offence under this clause is a fine of $3,000.

22—Moving unattended etc heavy vehicle if danger or obstruction

This clause authorises an authorised officer (or his or her assistant) to move heavy vehicle (or any component vehicle of a combination heavy vehicle) if the vehicle is unattended or broken down on a bridge, culvert or freeway or, in particular circumstances, on a road. For the purposes of this clause, an authorised officer includes, in relation to a vehicle unattended or broken down on a freeway, a person authorised by the responsible Minister and, in relation to a vehicle unattended or broken down on a road within the area of a council under the Local Government Act 1999, an officer of the council.

Division 6—Miscellaneous

23—Approved vehicle examiners

This clause provides that a person who is, immediately before the commencement of this clause, approved under the Recognised Engineering Signatory Scheme to inspect vehicle modifications for the purposes of the Road Traffic Act 1961 will be taken to be an approved vehicle examiner for that purpose under the HVNL (SA).

24—Proof of lawful authority or lawful or reasonable excuse

This clause provides that in proceedings for an offence against this measure in which it is material to establish whether an act was done with or without lawful authority, lawful excuse or reasonable excuse, the onus of proving the authority or excuse lies on the defendant and, in the absence of such proof, it will be presumed that no such authority or excuse exists.

25—Provision of information and assistance by Registrar of Motor Vehicles

This clause authorises the Registrar of Motor Vehicles under the Motor Vehicles Act 1959 to provide the Regulator with information, including confidential information, and any other reasonable assistance, for the purposes of this measure or the Heavy Vehicle National Law.

26—Various powers may be exercised on same occasion

This clause provides for an authorised officer to exercise various powers under the Road Traffic Act 1961, the Motor Vehicles Act 1959 and this measure on the same occasion, whether the exercise of the powers is for the same purpose or different purposes and whether the opportunity to exercise 1 power arises only as a result of the exercise of another power.

Part 3—Regulations

27—National regulations

This clause disapplies the Subordinate Legislation Act 1978 to the national regulations made under the Heavy Vehicle National Law. However, the national regulations are still subject to parliamentary scrutiny, including the ability for a regulation to be disallowed by a House of Parliament.

28—Local regulations

This clause authorises the Governor to make regulations (local regulations) for the purposes of this measure.

Part 4—Savings and transitional provisions

Division 1—Special transitional arrangements relating to Chapter 2 of Heavy Vehicles National Law

29—Definitions for this Division

This clause defines terms used in this Division, including the definition of relevant day, being the day on which Chapter 2 of the HVNL (SA) comes into operation.

30—Modification of Law in this jurisdiction until national registration scheme comes into operation

This clause is necessary because heavy vehicles will continue to be registered by the Registrar of Motor Vehicles under the Motor Vehicles Act 1959 in this jurisdiction, or by an authority under a corresponding registration law of a participating jurisdiction, until the relevant day. This clause deems certain references in the HVNL (SA) to be references to terms used in the Motor Vehicles Act 1959 or a corresponding registration law so that the HVNL (SA) can be read meaningfully in the interim period until Chapter 2 of the HVNL (SA) comes into operation.

31—Declaratory regulation making power for general savings and transitional provision for purposes of this Division

This clause provides that a regulation may make provision of a declaratory nature (a declaratory regulation) in relation to the operation of section 748 of the HVNL (SA) (the general savings and transitional provision).

A declaratory regulation may in relation to a particular thing done under the Motor Vehicles Act 1959 as in force immediately before the relevant day—

declare that the general savings and transitional provision applies to it; or

declare how the general savings and transitional provision applies to it; or

declare that the general savings and transitional provision does not apply to it, and provide how the thing must otherwise be deal with.

A declaratory regulation must declare that it is a declaratory regulation and has effect according to its terms. It may not have retrospective effect.

Division 2—Provisions relating to section 748 of Heavy Vehicles National Law

32—Definitions for this Division

This clause contains definitions for the purposes of this Division.

33—Operation of general savings and transitional provision

This Division does not affect the operation of section 748 of the HVNL (SA) (the general savings and transitional provision) except to the extent expressly provided for.

34—Offences

To remove any doubt, this clause declares that the general savings and transitional provision does not affect the operation of section 16 of the Acts Interpretation Act 1915 in relation to any offence committed or suspected to have been committed under the Road Traffic Act 1961 before the commencement of this Division.

35—Approvals and exemptions

This clause declares that, for the purposes of the general savings and transitional provision, specified provisions of the HVNL (SA) correspond to specified provisions of the Road Traffic Act 1961.

36—Seizing of evidence

This clause provides that the general savings and transitional provision does not apply to the seizing of anything under the Road Traffic Act 1961 before the commencement of this Division (and that Act continues to apply in relation to anything so seized).

37—Declaratory regulation making power for general savings and transitional provision

This clause provides that a regulation may make provision of a declaratory nature (a declaratory regulation) in relation to the operation of section 748 of the HVNL (SA) (the general savings and transitional provision).

A declaratory regulation may in relation to a particular thing done under the Road Traffic Act 1961 or the Motor Vehicles Act 1959 as in force immediately before the relevant day—

declare that the general savings and transitional provision applies to it; or

declare how the general savings and transitional provision applies to it; or

declare that the general savings and transitional provision does not apply to it, and provide how the thing must otherwise be deal with.

A declaratory regulation must declare that it is a declaratory regulation and has effect according to its terms. It may not have retrospective effect.

Division 3—Interpretative provision

38—References in documents to repealed or amended provisions

This clause is interpretative and provides that if there is a reference in a document (other than an Act) to a provision of the Road Traffic Act 1961 or the Motor Vehicles Act 1959 and that provision has been affected by the operation of the HVNL (SA), the reference may, if the context permits, be taken to be a reference to a provision of the HVNL (SA) corresponding to the affected provision.

Division 4—Savings and transitional provisions—general

39—Saving and transitional provisions—general

This clause authorises the Governor to make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of this measure.

Schedule 1—Heavy Vehicle National Law

Note—

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. 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.

Chapter 1—Preliminary

Part 1—Introductory matters

1—Short title

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

2—Commencement

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.

3—Object of Law

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.

4—Regulatory framework to achieve object

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;

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

Part 2—Interpretation

5—Definitions

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

6—Meaning of heavy vehicle

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).

7—Meaning of fatigue-regulated heavy vehicle

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.

8—Meaning of road and road-related area

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.

9—Meaning of convicts and convicted of an offence

Section 9 defines the terms 'convicts' and 'convicted'.

10—Interpretation generally

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.

11—References to laws includes references to instruments made under laws

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.

12—References to this Law as applied in a participating jurisdiction

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.

13—References to road

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.

14—References to mistake of fact defence

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.

15—References to categories of heavy vehicles

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

Part 3—Application and operation of Law

16—Extraterritorial 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.

17—Law binds the State

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.

18—Relationship with primary work health and safety laws

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.

Part 4—Performance based standards

19—Main purpose of this Part

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.

20—Notification to road authority of PBS design approval

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.

21—Notification by responsible Minister of non-application or restricted application of PBS design approval

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.

22—Application for PBS design approval

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.

23—Application for PBS vehicle approval

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.

24—Exemption from stated vehicle standards

Section 24 creates a head of power to make regulations stipulating which vehicle standards a PBS vehicle may be exempted from.

25—Authorisation of different mass or dimension requirement

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.

26—National regulations

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

Note—

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.

Part 1—Preliminary

27—Main purpose of Chapter 2

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—Registration scheme

Division 1—Preliminary

28—Scheme for registration of heavy vehicles

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.

29—Registration not evidence of title

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

30—Registration requirement

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 $10,000. 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

31—Purpose of Division 3

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.

32—Unregistered heavy vehicle on journey for obtaining registration

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.

33—Unregistered heavy vehicle temporarily in Australia

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.

34—Unregistered heavy vehicle used for short term only

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.

35—Unregistered heavy vehicle used locally only

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.

36—Unregistered heavy vehicle that is an agricultural vehicle

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.

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.

37—Unregistered heavy vehicle being towed

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

38—Unregistered heavy vehicle to which exemption under Div 4 applies

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 Chapter 2 Part 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.

39—Driver to carry proof of compliance with third party insurance legislation

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

40—Regulator's power to exempt category of heavy vehicles from requirement to be registered

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.

41—Restriction on grant of registration exemption

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.

42—Conditions of registration exemption

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.

43—Period for which registration exemption applies

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.

44—Requirements about Commonwealth Gazette notice

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.

45—Amendment or cancellation of registration exemption

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.

46—Immediate suspension

Section 46 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.

Subdivision 2—Exemption by national regulations

47—National regulations exempting heavy vehicles from requirement to be registered

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 3—Vehicle register

48—Vehicle register

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 4—Other provisions relating to registration

49—Ownership of registration items

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.

50—Obtaining registration or registration items by false statements etc

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 $10,000 for noncompliance. 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 $10,000 for noncompliance. Any registration item that is obtained by a person in this way is declared void under subsection (4).

51—Replacement and recovery of certain registration items

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 $4,000 for noncompliance.

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.

52—Verification of particular records

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 $3,000 for noncompliance.

Part 5—Written-off and wrecked heavy vehicles

53—Purpose of Chapter 2 Part 5

Section 53 states that the purpose of Chapter 2 Part 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.

54—Definitions for Chapter 2 Part 5

Section 54 defines 'insurer', 'wrecked' and 'written-off' for the purposes of Chapter 2 Part 5.

55—Written-off and wrecked heavy vehicles register

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 Chapter 2 Part 5.

Part 6—Other provisions

56—Regulator may specify GCM in particular circumstances

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.

57—Regulator may specify GVM in particular circumstances

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 1—Preliminary

58—Main purpose of Chapter 3

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 2—Compliance with heavy vehicle standards

Division 1—Requirements

59—Heavy vehicle standards

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.

60—Compliance with heavy vehicle standards

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 $3,000 or $6,000 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.

A note clarifies that the exception allowing the movement of the vehicle to a place of 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

61—Regulator's power to exempt category of heavy vehicles from compliance with heavy vehicle standard

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.

62—Restriction on grant of vehicle standards exemption (notice)

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).

63—Conditions of vehicle standards exemption (notice)

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.

64—Period for which vehicle standards exemption (notice) applies

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.

65—Requirements about Commonwealth Gazette notice

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.

66—Amendment or cancellation of vehicle standards exemption (notice)

Section 66 gives the Regulator discretion to amend or cancel a vehicle standards exemption (notice) on either or both of 2 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.

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.

67—Suspension missing

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

68—Regulator's power to exempt particular heavy vehicle from compliance with heavy vehicle standard

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.

69—Application for vehicle standards exemption (permit)

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)).

70—Restriction on grant of vehicle standards exemption (permit)

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.

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).

71—Conditions of 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.

72—Period for which vehicle standards exemption (permit) applies

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.

73—Period for which vehicle standards exemption (permit) applies

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.

74—Permit for vehicle standards exemption (permit) etc

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.

75—Refusal of application for vehicle standards exemption (permit)

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.

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.

76—Amendment or cancellation of vehicle standards exemption (permit) on application by permit holder

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.

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.

77—Amendment or cancellation of vehicle standards exemption (permit) on Regulator's initiative

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.

78—Immediate suspension on Regulator's initiative

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.

79—Minor amendment of vehicle standards exemption (permit)

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 noncompliance is $4,000.

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).

80—Return of permit

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 $4,000.

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

81—Contravening condition of vehicle standards exemption

Section 81 creates a number of offences, each with a maximum penalty of $3,000, 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.

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 noncompliance 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.

82—Keeping relevant document while driving under vehicle standards exemption (notice)

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 $3,000 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 noncompliance 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 Chapter 10 Part 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.

83—Keeping copy of permit while driving under vehicle standards exemption (permit)

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 $3,000 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 noncompliance 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 Chapter 10 Part 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;

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 $3,000.

Part 3—Modifying heavy vehicles

84—Definition for Part 3

Section 84 defines modification to limit the expression to alterations or changes resulting in noncompliance 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).

85—Modifying heavy vehicle requires approval

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 $3,000.

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 $3,000.

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.

86—Approval of modifications by approved vehicle examiners

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.

87—Approval of modification by Regulator

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.

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.

88—National regulations for heavy vehicle modification

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

Part 4—Other offences

89—Safety requirement

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 noncompliance is $6,000.

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.

90—Requirement about properly operating emission control system

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 noncompliance being $3,000.

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 noncompliance is $3,000.

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.

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

91—Person must not tamper with emission control system fitted to heavy vehicle

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 section excludes the mistake of fact defence and in its place provides for the reasonable steps defence to be raised.

92—Display of warning signs required by heavy vehicle standards on vehicles to which the requirement does not apply

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 noncompliance is $3,000.

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.

93—Person must not tamper with speed limiter fitted to heavy vehicle

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.

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 $10,000, 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 Chapter 10 Part 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 1—Preliminary

94—Main purposes of Chapter 4

Section 94 states that the main purposes of Chapter 4 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 2—Mass requirements

Division 1—Requirements

95—Prescribed mass requirements

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.

96—Compliance with mass requirements

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 $4,000); substantial (maximum penalty $6,000) or severe risk breach (maximum penalty $10,000 plus $500 for every additional 1% above 120% to a maximum incremental penalty of $20,000, (the total penalty will not exceed $30,000 for an individual)).

These categories of breach are defined in Division 2 of Chapter 4 Part 2 of this Bill (sections 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 Chapter 10 Part 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

97—Definitions for Division 2

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.

98—Minor risk breach

99—Substantial risk breach

100—Severe risk breach

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.

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

Part 3—Dimension requirements

Division 1—Requirements

101—Prescribed dimension 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.

102—Compliance with dimension requirements

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.

If the heavy vehicle does not have goods or passengers in it the maximum penalty for an offence under this section is $3,000. 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 $3,000), a substantial risk breach (maximum penalty $5,000) or a severe risk breach (maximum penalty $10,000). These categories of breach are defined in Division 2 of Chapter 4 Part 3, (sections 105 to107).

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 Chapter 10 Part 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

103—Application of Division 2

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.

104—Definitions for Division 2

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.

105—Minor risk breach

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.

106—Substantial risk breach

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.

107—Severe risk breach

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.

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

Division 3—Other provisions relating to load projections

108—Dangerous projections taken to be contravention of dimension requirement

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.

109—Warning signals required for rear projection of loads

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.

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 $3,000.

Part 4—Loading requirements

Division 1—Requirements

110—National regulations may prescribe loading 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.

111—Compliance with loading requirements

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 $3,000); substantial risk breach (maximum penalty $5,000); or severe risk breach (maximum penalty $10,000).

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 Chapter 10 Part 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

112—Minor risk breach

113—Substantial risk breach

114—Severe risk breach

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 to 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.

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.

Division 3—Evidentiary provision

115—Proof of contravention of loading requirement

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.

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 5—Exemptions for particular overmass or oversize vehicles

Division 1—Preliminary

116—Class 1 heavy vehicles and class 3 heavy vehicles

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.

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.

Class 3 notice or permit.

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

117—Regulator's power to exempt category of class 1 or 3 heavy vehicles from compliance with mass or dimension requirement

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 of Chapter 4 Part 7 should be read when considering the amendment, suspension or cancellation of a mass or dimension exemption (notice).

118—Restriction on grant of 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;

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.

119—Conditions of mass or dimension exemption (notice)

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.

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.

120—Period for which mass or dimension exemption (notice) applies

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.

121—Requirements about Commonwealth Gazette notice

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

122—Regulator's power to exempt particular class 1 or class 3 heavy vehicle from compliance with mass or dimension requirement

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 of Chapter 4 Part 7 should be read when considering the amendment, suspension or cancellation of a mass or dimension exemption (notice).

123—Application for mass or dimension exemption (permit)

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.

124—Restriction on grant of mass or dimension exemption (permit)

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));

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.

125—Conditions of mass or dimension exemption (permit)

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.

126—Period for which mass or dimension exemption (permit) applies

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.

127—Permit for mass or dimension exemption (permit) etc

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.

128—Refusal of application for mass or dimension exemption (permit)

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

129—Contravening condition of mass or dimension exemption generally

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 $6,000 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).

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 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 applied 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 $3,000.

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.

130—Contravening condition of mass or dimension exemption relating to pilot or escort vehicle

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.

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 $6,000. 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.

131—Using pilot vehicle with a heavy vehicle that contravenes mass or dimension exemption

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 $6,000.

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 may be unreasonable for them to be imputed knowledge of (such as the breach of a particular mass requirement applying to the vehicle).

132—Keeping relevant document while driving under mass or dimension exemption (notice)

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 $3,000 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.

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 Chapter 10 Part 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.

133—Keeping copy of permit while driving under mass or dimension exemption (permit)

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 $3,000, 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.

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 $4,000.

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 Chapter 10 Part 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

134—Displaying warning signs on vehicles if not required by dimension exemption

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 noncompliance in both circumstances is $3,000. 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 6—Restricting access to roads by large vehicles that are not overmass or oversize vehicles

Division 1—Preliminary

135—Main purpose of Part 6

Section 135 states that the main purpose of Chapter 4 Part 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.

136—Class 2 heavy vehicles

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;

a single motor vehicle, or a combination, that is higher than 4.3m 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

137—Using class 2 heavy vehicle

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 noncompliance with this is $6,000.

This is the key restriction of Chapter 4 Part 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

138—Regulator's power to authorise use of all or stated categories of class 2 heavy vehicles

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.

139—Restriction on grant of class 2 heavy vehicle authorisation (notice)

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; and

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.

140—Conditions of class 2 heavy vehicle authorisation (notice)

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.

141—Period for which class 2 heavy vehicle authorisation (notice) applies

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.

142—Requirements about Commonwealth Gazette notice etc

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

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;

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

143—Regulator's power to authorise use of a particular class 2 heavy vehicle

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 of Chapter 4 Part 7 should be read when considering the amendment, suspension or cancellation of a mass or dimension exemption (notice).

144—Application for class 2 heavy vehicle authorisation (permit)

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.

145—Restriction on grant of class 2 heavy vehicle authorisation (permit)

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);

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.

146—Conditions of a class 2 heavy vehicle authorisation (permit)

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.

147—Period for which class 2 heavy vehicle authorisation (permit) applies

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.

148—Permit for class 2 heavy vehicle authorisation (permit) etc

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.

149—Refusal of application for class 2 heavy vehicle authorisation (permit)

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

150—Contravening condition of class 2 heavy vehicle authorisation

Section 150 creates an offence for a driver or operator of a heavy with a maximum penalty of $6,000 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).

151—Keeping relevant document while driving under class 2 heavy vehicle authorisation (notice)

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. Noncompliance has a maximum penalty of $3,000 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;

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.

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 Chapter 10 Part 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.

152—Keeping copy of permit while driving under class 2 heavy vehicle authorisation (permit)

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 $3,000, 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;

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 $4,000.

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 Chapter 10 Part 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.

153—Keeping copy of PBS vehicle approval while driving under class 2 heavy vehicle authorisation

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 7—Particular provisions about mass or dimension authorities

Division 1—Preliminary

154—Definitions for Chapter 4 Part 7

Section 154 provides definitions, for Chapter 4 Part 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.

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

155—Application of Division 2

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.

156—Deciding request for consent generally

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.

157—Obtaining third party's approval for giving consent for permit

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.

158—Action pending consultation with third party

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.

159—Deciding request for consent if route assessment required

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.

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.

160—Imposition of road conditions

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.

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.

161—Imposition of travel conditions

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.

162—Imposition of vehicle conditions

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.

163—Obtaining consent of road authority if particular road manager refuses to give consent

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.

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.

164—Information notice for imposition of road conditions requested by road manager

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.

165—Information notice for imposition of travel conditions requested by road manager

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.

166—Information notice for decision to refuse application because road manager did not give consent

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.

167—Expedited procedure for road manager's consent for renewal of mass or dimension authority

Section 167 establishes an expedited process for the renewal of certain mass and dimension authorities. The circumstances in which the process is available are set out in subsection (1).

The circumstances in which the process is inapplicable or ceases to apply are set out in subsection (2). These circumstances include material differences between the terms of the previous authority and the terms of the proposed replacement authority, an objection to the application by the road manager within the specified time limit, or the operation of a law of the jurisdiction that requires consultation with third parties before the grant of the proposed replacement authority.

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).

168—Operation of section 167

Section 168 suspends the operations of sections 156 to 166 while a proposed replacement authority is being dealt with under the expedited procedure under section 167.

169—Granting limited consent for trial purposes

Section 169 authorises a relevant road manager to consent to grant of a mass or dimension authority for a trial period of no more than 3 months. Subsection (3) provides that the trial can be undertaken only if all relevant road managers require that the access be trialled. The purpose of the time restriction is to encourage road managers to consent to future access once the impact of the access during the trial has been assessed.

170—Renewal of limited consent for trial purposes

Section 170 provides that the Regulator must, one month before the end of a trial initiated under section 169, notify the relevant road managers that the trial is due to end and will automatically be re-granted by the Regulator unless a road manager advises the trial must end. If there is no written objection from road managers, the Regulator must renew the trial access on the same terms and conditions. If there is a response to end the trial, the Regulator must not renew the trial access. Instead, the normal process for granting access for a vehicle and operation of the type contemplated must be followed.

171—Period for which mass or dimension authority applies where limited consent

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.

Subsection (3) provides that, in the case of a mass or dimension exemption (notice) or a class 2 heavy vehicle authorisation (notice), then, despite sections 120 or 141, the period for which the notice applies is so much of the period stated in the Commonwealth Gazette notice referred to in that section as does not exceed the trial period. This allows for the management of trials through notices and the broader productivity benefits this more efficient process can provide.

172—Requirements for statement explaining adverse decision of road manager

Section 172 sets out the minimum requirements to be contained in a written statement required to be issued for various decisions by road managers in relation to applications for mass or dimension authorities under Chapter 4.

Subsection (2)(a) provides that the road manager must include in the notice its findings on material questions of fact, the evidence or other material on which those findings were based and giving the reasons for the road manager's decision.

Subsection (2)(b) requires the road manager to identify each document or part of a document that is relevant to the road manager's decision (without automatically requiring the production of the documents themselves).

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

173—Amendment or cancellation on Regulator's initiative

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.

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 authority, the Regulator may only amend the authority 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 authority.

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

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 mass or dimension authority 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.

174—Amendment or cancellation on request by relevant road manager

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.

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.

175—Immediate suspension

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.

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 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

176—Amendment or cancellation on application by permit holder

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 authority. 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.

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.

177—Amendment or cancellation on Regulator's initiative

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.

If the action proposed in the notice was to amend the authority, 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 authority.

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

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.

178—Amendment or cancellation on request by relevant road manager

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.

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.

179—Immediate suspension

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. The section 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.

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.

The 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.

180—Minor amendment of permit for a mass or dimension 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

181—Return of permit

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 noncompliance with this notice is $4,000.

182—Replacement of defaced etc permit

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 $4,000. 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 8—Extended liability

183—Liability of employer etc for contravention of mass, dimension or loading requirement

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;

a loader of any goods in the vehicle.

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 Chapter 10 Part 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 9—Other offences

Division 1—Towing restriction

184—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 $3,000. 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

185—Requirements about coupling trailers

Section 185 creates offences, both with a maximum penalty of $6,000, 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

186—False or misleading transport documentation for goods

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 $10,000. 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).

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 Chapter 10 Part 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.

187—False or misleading information in container weight declaration

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 $10,000. 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 Chapter 10 Part 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

188—Application of Division 4Australian 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.

189—Meaning of complying container weight declaration

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—

the number and other particulars of the freight container necessary to identify the container; and

the name and residential address or business address in Australia of the responsible entity for the freight container; and

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.

190—Duty of responsible entity

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 $6,000 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.

191—Duty of operator

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 $6,000.

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 Chapter 10 Part 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.

192—Duty of driver

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 $6,000.

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 $3,000.

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 Chapter 10 Part 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

193—Weight of freight container exceeding weight stated on container or safety approval plate

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 $10,000.

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 Chapter 10 Part 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.

194—Conduct of consignee resulting or potentially resulting in contravention of mass, dimension or loading requirement

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 $10,000 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 10—Other provisions

195—Conflicting mass requirements

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.

196—Conflicting dimension requirements

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 metres while a mass and dimension exemption may require the same distance to be more than 3 metres, in which case the 3 metre requirement is the most restrictive and the prescribed dimension requirement should be disregarded.

197—Exemption from compliance with particular requirements in emergency

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.

198—Recovery of losses arising from non-provision of container weight declaration

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.

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.

199—Recovery of losses for provision of inaccurate container weight declaration

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;

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.

200—Recovery by responsible entity of amount paid under section 199

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.

201—Assessment of monetary value or attributable amount

Section 201 empowers the court to assess the monetary value recoverable under the recovery sections of this Part (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 1—Preliminary

202—Main purpose of Chapter 5

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.

203—Outline of the main features of Chapter 5

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.

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 2—Particular duties and offences

Division 1—Employers, prime contractors and operators

204—Duty of employer, prime contractor or operator to ensure business practices will not cause driver to exceed speed limit

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 $10,000.

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;

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.

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.

205—Duty of employer not to cause driver to drive if particular requirements not complied with

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 $4,000 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.

206—Duty of prime contractor or operator not to cause driver to drive if particular requirements not complied with

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 $4,000 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

207—Duty to ensure driver's schedule will not cause driver to exceed speed limit

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 $10,000 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;

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.

208—Duty not to cause driver to drive if particular requirements not complied with

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 $4,000 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;

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

209—Duty to ensure loading arrangements will not cause driver to exceed speed limit

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 $10,000 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.

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;

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

210—Consignors to whom Division 4 applies

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.

211—Consignees to whom Division 4 applies

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.

212—Duty to ensure terms of consignment will not cause driver to exceed speed limit etc

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 $10,000 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.

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.

213—Duty not to make a demand that may result in driver exceeding the speed limit

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 $6,000 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

214—Who is a party in the chain of responsibility

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.

215—Particular requests etc prohibited

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 $10,000 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 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.

216—Particular contracts etc prohibited

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 $10,000 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

217—Objective reasonableness test to be used in deciding causation

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:

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.

218—Commission of speeding offence is irrelevant to Chapter 5 Part 2 prosecution

Section 218 states that in a prosecution for an offence against Chapter 5 Part 2, it is not necessary to prove the driver of the heavy vehicle exceeded a speed limit applying to the driver.

Part 3—Extended liability

219—Liability of employer etc for driver's contravention of speeding offence

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.

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 $3,000 to $10,000.

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 Chapter 10 Part 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 1—Preliminary

220—Main purpose of Chapter 6

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.

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.

221—Definitions for Chapter 6

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.

222—Categories of breaches

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 2—Duties relating to fatigue

Division 1—Preliminary

223—What is fatigue

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).

224—Matters court may consider in deciding whether person was fatigued

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.

225—What is impaired by fatigue

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).

226—Matters court may consider in deciding whether person was impaired by fatigue

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.

227—Who is a party in the chain of responsibility

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;

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

228—Duty of driver to avoid driving while fatigued

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 $6,000 applies to the offence of contravening this provision.

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.

229—Duty of party in the chain of responsibility to prevent driver driving while fatigued

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 $10,000 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

230—Duty of employer, prime contractor or operator to ensure business practices will not cause driver to drive while fatigued etc

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 $6,000 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.

231—Duty of employer not to cause driver to drive if particular requirements not complied with

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 $4,000 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.

232—Duty of prime contractor or operator not to cause driver to drive if particular requirements not complied with

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 $4,000 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

233—Duty to ensure driver's schedule will not cause driver to drive while fatigued etc

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 $6,000 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.

234—Duty not to cause driver to drive if particular requirements not complied with

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 $6,000 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

235—Duty to ensure terms of consignment will not cause driver to drive while fatigued etc

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 $10,000 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.

236—Duty not to cause driver to drive if particular requirements not complied with

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 $4,000 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.

237—Duty not to make a demand that may result in driver driving while fatigued etc

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 $10,000 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

238—Duty to ensure loading arrangements will not cause driver to drive while fatigued etc

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 $100,000 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.

239—Duty to ensure drivers can rest in particular circumstances

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 $6,000 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

240—Particular requests 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 $10,000 applies to the offence of contravening this provision.

241—Particular contracts etc prohibited

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 $10,000 applies to the offence of contravening this provision.

Division 8—Provisions about offences against this Part

242—Objective reasonableness test to be used in deciding causation

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 3—Requirements relating to work time and rest time

Division 1—Preliminary

243—What is a driver's work and rest hours option

Section 243 defines the terms 'work and rest hours option'. The term is important in relation to various offences created by Chapter 6 Part 3 involving conduct causing a driver to drive in breach of the option.

244—Counting time spent in participating jurisdictions

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.

245—Counting time spent outside participating jurisdictions

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.

246—Counting periods of less than 15 minutes

Section 246 provides for the computation of short periods of less than 15 minutes of both work and rest times.

247—Time to be counted after rest time ends

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.

248—Time to be counted by reference to time zone of driver's base

Section 248 deals with the situation where the driving extends across 2 or more time zones.

Division 2—Standard work and rest arrangements

249—Standard hours

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.

250—Operating under standard hours—solo drivers

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).

251—Operating under standard hours—two-up drivers

Section 251 makes provision, similar to section 250, where drivers under standard hours are party to a two-up driving arrangement.

252—Defence relating to short rest breaks for drivers operating under standard hours

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

253—BFM hours

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.

254—Operating under BFM hours—solo drivers

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).

255—Defence for solo drivers operating under BFM hours relating to split rest breaks

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.

256—Operating under BFM hours—two-up drivers

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

257—AFM hours

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.

258—Operating under AFM hours

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

259—Exemption hours

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.

260—Operating under exemption hours

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

261—Liability of employer etc for driver's contravention of maximum work requirement or minimum rest requirement

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 $4,000 to $15,000. Subsections (3) and (4) deal with defences to a prosecution for contravening subsection (1).

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

262—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.

263—Operating under new work and rest hours option after change

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.

264—Duty of employer, prime contractor, operator and scheduler to ensure driver compliance

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 $6,000 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

265—Emergency services exemption

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).

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

266—Regulator's power to exempt class of drivers from particular maximum work requirements and minimum rest requirements

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.

267—Restriction on grant of work and rest hours exemption (notice)

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.

268—Conditions of work and rest hours exemption (notice)

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.

269—Period for which work and rest hours exemption (notice) applies

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.

270—Requirements about Commonwealth Gazette 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.

271—Amendment or cancellation of work and rest hours exemption (notice)

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).

272—Immediate suspension

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

273—Regulator's power to exempt drivers from particular maximum work requirements and minimum rest requirements

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.

274—Application for work and rest hours exemption (permit)

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.

275—Restriction on grant of work and rest hours exemption (permit)

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.

276—Conditions of work and rest hours exemption (permit)

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.

277—Period for which work and rest hours exemption (permit) applies

Section 277 deals with the period during which a permit granting an exemption from work and rest hours is in force.

278—Permit for work and rest hours exemption (permit) etc

Section 278 deals with the contents of and, in some cases, information which must accompany a work and rest hours exemption permit.

279—Refusal of application for 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.

280—Amendment or cancellation of work and rest hours exemption (permit) on application

Section 280 deals with an application for the amendment or cancellation of a work and rest hours exemption (permit).

281—Amendment or cancellation of work and rest hours exemption (permit) on Regulator's initiative

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.

282—Immediate suspension of work and rest hours exemption (permit)

Section 282 provides for the circumstances in which the Regulator may immediately suspend a work and rest hours exemption (permit).

283—Minor amendment of 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.

284—Return of permit

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 $6,000 applies. The Regulator may issue a replacement permit where a permit has been amended.

285—Replacement of defaced etc permit

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 $4,000 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

286—Contravening condition of work and rest hours exemption

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 $6,000 applies.

287—Keeping relevant document while operating under work and rest hours exemption (notice)

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 $3,000. 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).

288—Keeping copy of permit while driving under work and rest hours exemption (permit)

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 $3,000. 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 $4,000 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 4—Requirements about record keeping

Division 1—Preliminary

289—What is 100km work and 100+km work

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.

290—What is a driver's record location

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

291—Application of Subdivision 1

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.

292—Meaning of work diary for Subdivision 1

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.

293—Driver of fatigue-regulated heavy vehicle must carry work diary

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 $6,000 applies.

Subsections (2) and (3) deal with situations relevant to the offence created by subsection (1) and with defences to a prosecution for its contravention.

Subdivision 2—Information required to be included in work diary

294—Purpose of and definition for Subdivision 2

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.

295—National regulations for information to be included in work diary

Section 295 creates a broad head of power to allow the making of regulations in respect of various matters related to work diaries including the information that is to be recorded, and the manner in which the information is to be recorded.

296—Recording information under the national regulations—general

Section 296 requires a driver to record information in the driver's work diary in the manner and at the time prescribed by the national regulations. However, it does not apply to information to which section 297 applies.

297—Information to be recorded immediately after starting work

Section 297 states that the driver must record certain information in the diary immediately after starting work. A maximum penalty of $3,000 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.

298—Failing to record information about odometer reading

Section 298 requires the driver of a fatigue-regulated heavy vehicle to record the odometer reading in the manner prescribed by the national regulations if and when required to do so by the national regulations. A defence is provided where at the time of the offence, the odometer was malfunctioning and the driver has complied with the requirements of section 397 in informing the relevant persons.

299—Two-up driver to provide details

Section 299 requires a driver who is a party to a two-up driving arrangement to provide the other two-up driver on request with the details relating to the arrangement that are prescribed by the national regulations.

Subdivision 3—How information must be recorded in work diary

300—Purpose of Subdivision 3

Section 300 states that the purpose of Subdivision 3 is to state how information required by Subdivision 2 is to be recorded.

301—Recording information in written work diary

Section 301 explains how information is to be recorded in the driver's written work diary. A maximum penalty of $1,500 applies.

302—Recording information in electronic work diary

Section 302 explains how information is to be recorded in the driver's electronic work diary. A maximum penalty of $1,500 applies.

303—Time zone of driver's base must be used

Section 303 states that the driver must record time according to the time zone of the driver's base. A penalty of $1,500 applies.

Subdivision 4—Requirements about work diaries that are filled up etc

304—Application of Subdivision 4

Section 304 states that subdivision 4 applies where a diary, if in written form, is full, destroyed, lost, stolen or, if electronic, cannot be used because it is full, destroyed, lost, stolen, out of order or malfunctioning.

305—Driver must make supplementary records in particular circumstances

Section 305 states that information must be recorded in a supplementary record during a period when the circumstances described in section 304 apply. A maximum penalty of $6,000 applies. The driver must record time in the supplementary record according to the time zone of the driver's base. A maximum penalty of $1,500 applies.

Subsection (4) details circumstances where these obligations do not apply.

306—Driver must notify Regulator if written work diary filled up etc

Section 306 states that a driver must notify the Regulator within 2 business days of his or her written diary being filled up, destroyed, lost or stolen. The maximum penalty prescribed for contravention of this section is $3,000.

307—Driver must notify Regulator if electronic work diary filled up etc

Section 307 contains an obligation similar to that imposed by section 306 upon a driver of fatigue-regulated heavy vehicle whose electronic diary is full, destroyed, lost, stolen or out of order or the driver has reason to suspect that it is or has been malfunctioning. Subsection (2) requires the driver to give the Regulator notice of the matter within 2 business days. The maximum penalty prescribed for contravention of this section is $3,000.

308—What driver must do if lost or stolen written work diary found or returned

Section 308 prescribes the steps a driver must take if a written diary that has been lost or stolen is found. A maximum penalty of $3,000 applies.

309—Driver must notify record keeper if electronic work diary filled up etc

Section 309 provides an obligation to notify the Regulator in the circumstances similar to those described in section 307. This section provides that the driver must notify the driver's record keeper. A maximum penalty of $6,000 applies.

310—Intelligent access reporting entity must notify record keeper if approved electronic recording system malfunctioning

Section 310 states the obligation on an intelligent access reporting entity to notify the driver's record keeper if the entity becomes aware or has reason to suspect that an approved electronic reporting system is malfunctioning or has malfunctioned. A maximum penalty of $6,000 applies.

311—What record keeper must do if electronic work diary filled up

Section 311 states what a record keeper must do if an electronic work diary has been filled up to render it incapable of receiving further information. Subsection (2) requires the record keeper to either make the electronic work diary capable of recording new information; or give the driver a new one that is in working order. Maximum penalties of $6,000 apply. The record keeper remains liable even if another person has been engaged for the task of complying with the provision but that person will also be liable to the same penalty as the record keeper.

Subsections (4) and (5) deal with defences to prosecutions for the offences created by the section.

312—What record keeper must do if electronic work diary destroyed, lost or stolen

Section 312 provides that where an electronic diary has been destroyed, lost or stolen, a record keeper must replace it and give the driver any relevant information which the record keeper has which was in the replaced diary unless that information is stored in the replacement diary. A maximum penalty of $6,000 applies. The record keeper remains liable even if another person has been engaged for the task of complying with the provision but that person will also be liable to the same penalty as the record keeper.

Subsections (4) and (5) deal with defences to prosecutions for the offences created by the section.

313—What record keeper must do if electronic work diary not in working order or malfunctioning

Section 313 states what a record keeper must do if an electronic diary is reported out of order or malfunctioning. In these circumstances, the record keeper must rectify the problem, replace the electronic diary or direct the driver to use a written diary and may need to provide the driver with a printout of relevant information. A maximum penalty of $6,000 applies.

Under subsection (3), the record keeper remains liable even if another person has been engaged for the task of complying with the provision but that person will also be liable to the same penalty as the record keeper. Subsection (4) provides that subsection (3) does not apply, however, where the other person has been engaged only to repair the electronic diary or bring it into working order.

Subsections (5) and (6) deal with defences to prosecutions for the offences created by the section.

Subdivision 5—Use of electronic work diaries

314—How electronic work diary must be used

Section 314 provides that a driver using an electronic work diary must comply with legal conditions and manufacturer's specifications relating to the diary. A maximum penalty of $3,000 applies. A record keeper must ensure that the driver using such a diary complies with those conditions or specifications. A maximum penalty of $6,000 applies.

Subsection (4) provides a defence to a prosecution for breach of the duties imposed by the section on drivers and record keepers.

Subdivision 6—Extended liability

315—Liability of employer etc for driver's contravention of particular requirements of this Division

Section 315 states that liability is imposed on employers, prime contractors, operators and schedulers where drivers contravene obligations imposed on them by Divisions 1, 2, 3 or 4. The same penalties apply to them as apply to the drivers. Subsection (3) provides that a mistake of fact defence does not apply. However, a person charged has the benefit of the reasonable steps defence.

Subsection (4) 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 3—Records relating to drivers

Subdivision 1—Preliminary

316—Application of Division 3

Section 316 states that this Division 3 applies to each record keeper for the driver of a fatigue-regulated heavy vehicle.

317—Who is a driver's record keeper

Section 317 specifies who a driver's record keeper is. The record keeper is the operator where the driver operates under a BFM or AFM accreditation or a work and rest hours exemption (permit) granted in combination with such an accreditation and, in other cases, is the employer or the self-employed driver.

Subdivision 2—Record keeping obligations relating to drivers engaging in 100km work under standard hours

318—Application of Subdivision 2

Section 318 states that Subdivision 2 applies where a driver of a fatigue-regulated heavy vehicle engages only in 100km work under standard hours.

319—Records record keeper must have

Section 319 states that the record keeper must record the information specified in subsection (1) within the 'prescribed period' referred in subsection (5). A maximum penalty of $6,000 applies.

The record keeper remains liable even if another person has been engaged for the task of complying with the provision but that person will also be liable to the same penalty as the record keeper.

Subsections (3) and (4) deal with defences available in a prosecution.

Subdivision 3—Record keeping obligations relating to drivers engaging in 100+km work under standard hours or operating under BFM hours, AFM hours or exemption hours

320—Application of Subdivision 3

Section 320 states that Subdivision 3 applies to drivers engaging in 100+km work or operating under BFM or AFM hours or exemption hours.

321—Records record keeper must have

Section 321 states the record keeper's obligations to record information and to keep documents. A maximum penalty of $6,000 applies. The record keeper must record additional information where the driver is operating under BFM hours or AFM hours. A maximum penalty of $6,000 applies.

The record keeper remains liable even if another person has been engaged for the task of complying with the provision but that person will also be liable to the same penalty as the record keeper.

Subsections (4) and (5) deal with defences available in a prosecution.

Subsection (6) provides that the section does not apply where certain exemptions are in place.

322—General requirements about driver giving information to record keeper

Section 322 prescribes general requirements about a driver giving information to a record keeper. It states that where a driver is required to record information in a work diary and the driver must provide information to the record keeper within 21 days after the driving. A maximum penalty of $3,000 applies. The record keeper must ensure that the driver complies with this obligation. A maximum penalty of $3,000 applies.

The record keeper remains liable even if another person has been engaged for the task of complying with the provision but that person will also be liable to the same penalty as the record keeper.

Subsections (6) and (7) deal with defences available in a prosecution.

323—Requirements about driver giving information to record keeper if driver changes record keeper

Section 323 deals with the situation where a driver changes record keepers and provides obligations on the driver and the new record keeper, together with penalties and defences, similar to those provided by section 322 for drivers, record keepers and those engaged by them.

324—Record keeper must give printouts of information from electronic work diary

Section 324 deals with the situation where a driver stops using an electronic diary. In such a case, the driver's record keeper must immediately provide a printout of the information in the electronic diary. A maximum penalty of $3,000 applies.

The record keeper remains liable even if another person has been engaged for the task of complying with the provision but that person will also be liable to the same penalty as the record keeper.

Subsections (4) and (5) deal with defences available in a prosecution.

Division 4—Provisions about false representations relating to work records

325—False or misleading entries

Section 325 deals with false or misleading entries in a work record. A maximum penalty of $10,000 applies for making such an entry where the person making it knows or reasonably ought to know that it was false or misleading.

326—Keeping 2 work diaries simultaneously prohibited

Section 326 imposes a prohibition against a driver keeping 2 work diaries simultaneously. Maximum penalties of $10,000 apply.

327—Possession of purported work records etc prohibited

Section 327 prohibits drivers and record keepers from possessing things purporting to be work records which the driver or record keeper, as the case may be, knows not to be work records. A maximum penalty of $10,000 applies.

328—False representation about work records prohibited

Section 328 states that a person must not falsely represent that a work record was made by the person. A maximum penalty of $10,000 applies.

Division 5—Interfering with work records

Subdivision 1—Work records generally

329—Defacing or changing work records etc prohibited

Section 329 states that a person must not deface or alter a work record which he or she knows, or reasonably ought to know, to be correct. A maximum penalty of $10,000 applies for noncompliance.

330—Making entries in someone else's work records prohibited

Section 330 prohibits the making of entries in a work record by persons unless the person is nominated by the other person to make the entry to do so or the person is an authorised officer. A maximum penalty of $10,000 applies for noncompliance.

331—Destruction of particular work records prohibited

Section 331 prohibits the destruction of work records required to be kept under this Part within the period during which they are required to be kept. A maximum penalty of $10,000 applies for noncompliance.

332—Offence to remove pages from written work diary

Section 332 states that it is an offence to remove pages from a written work diary unless legally required to do so. A maximum penalty of $10,000 applies for noncompliance.

Subdivision 2—Approved electronic recording systems

333—Application of Subdivision 2

Section 333 states that Subdivision 2 applies to an approved electronic recording system comprising the whole or part of an electronic work diary.

334—Meaning of tamper

Section 334 defines 'tamper' with an approved electronic recording system. It includes conduct that may interfere with the functioning of the system and is not limited to physical contact with a system's hardware.

335—Person must not tamper with approved electronic recording system

Section 335 makes it an offence for a person to tamper with an approved electronic recording system. Subsection (2) states that a person does not tamper with an approved electronic recording system merely by repairing a system that is malfunctioning or has malfunctioned, or conduct associated with maintaining an approved electronic recording system, or an authorised officer when exercising functions under this Law. A maximum penalty of $10,000 applies for noncompliance.

Subsections (3), (4) and (5) deal with defences that are available to the person charged.

336—Person using approved electronic recording system must not permit tampering with it

Section 336 states that a person using an approved electronic recording system must not permit another person to tamper with it. A maximum penalty of $10,000 applies for noncompliance. Subsection (1) provides examples of persons who use an approved electronic recording system.

Subsections (2) and (3) deal with defences that are available to the person charged.

337—Intelligent access reporting entity must not permit tampering with approved electronic recording system

Section 337 provides that where an electronic recording system comprises, in whole or in part, an approved intelligent transport system, an intelligent transport reporting entity must not permit another person to tamper with the system. A maximum penalty of $10,000 applies for noncompliance.

Subsections (3) and (4) deal with defences available to a person charged.

Division 6—Obtaining written work diary

338—Form of written work diary

Section 338 prescribes the requirements for a written work diary issued by the Regulator.

339—Application for written work diary

Section 339 states that a driver of a fatigue-regulated heavy vehicle must apply to the Regulator for a written work diary and specifies the procedures to be followed, including those applicable to situations where the request for a diary is to replace one previously issued.

340—Issue of written work diary

Section 340 states that the Regulator must issue a written work diary where the driver follows the procedures specified in this and the preceding section and pays the prescribed fee.

Subsections (2) and (3) deal with information required or permitted to be noted by the Regulator at the time of issue.

Division 7—Requirements about records record keeper must make or keep

Note—

In the Heavy Vehicle National Law set out in the Schedule to the Heavy Vehicle National Law Act 2012 of Queensland, this Division is numbered Division 6A.

341—Period for which, and way in which, records must be kept

Section 341 specifies the period for which and the way in which records must be kept under Chapter 6. Subsection (4), clarifies that a driver who is also their own record keeper must ensure the record or a copy of the record is kept at the driver's record location in a way that ensures it is readily available to an authorised officer at the record location by the end of the 21-day period after the day the record is made.

Division 8—Approval of electronic recording systems

Note—

In the Heavy Vehicle National Law set out in the Schedule to the Heavy Vehicle National Law Act 2012 of Queensland, this Division is numbered Division 7.

Subdivision 1—Approval of electronic recording systems

342—Application for approval of electronic recording system

Section 342 states that a person must apply, in the approved form, to the Regulator for approval of an electronic recording system.

343—Deciding application for approval

Section 343 states that, as soon as is practicable after receiving an application, the Regulator must grant, either conditionally or unconditionally, approval or refuse it.

Subsection (2) limits the authority of the Regulator to approve a system by reference to such considerations as suitability, availability of a mechanism to alert drivers to malfunctions, accuracy, resistance to alteration of the information recorded and capability to reproduce that information.

Subsection (3) requires the Regulator to have regard to approved guidelines (defined in section 5 as guidelines approved by responsible Ministers under section 653) for granting approvals.

344—Steps after decision to grant approval

Section 344 deals with the procedures to be followed by the Regulator after granting an approval, including the provision of evidence of the approval.

345—Steps after decision to refuse application

Section 345 states that if the Regulator refuses an application for approval, section 345 requires an information notice to be given to the applicant.

346—Effect of approval

Section 346 provides that an approval extends to any system identical with the one approved.

Subdivision 2—Provisions about electronic work diary labels

347—Placing electronic work diary label on device

Section 347 states that a label evidencing the approval (an electronic work diary label) may be placed on an approved electronic recording system but it is an offence to place such a label or any other label on a system that is not approved. Maximum penalties of $10,000 apply for noncompliance.

348—Particular label indicates device is an approved electronic recording system

Section 348 provides that the label is evidence of the approval of the electronic recording system.

349—Effect of electronic work diary label on device

Section 349 states that a person is entitled to rely on the label as indicating that the device to which it is attached has been approved unless the person knows or reasonably ought to know that the contrary is the case.

350—Prohibition on using device as electronic work diary if it is not, and is not a part of, an approved electronic recording system

Section 350 states that a person must not use as an electronic work diary a device that has attached to it, an electronic work diary label if the person knows or reasonably ought to know that the device is not approved.

Subdivision 3—Amendment or cancellation of approval

351—Amendment or cancellation of approval on application

Section 351 provides that the holder of an approval for an electronic recording system may apply to the Regulator for its amendment or cancellation. The Regulator may require further information under subsection (3) but subsection (4) requires the Regulator to decide the application as soon as practicable after receiving it.

Subsections (5) and (6) require the Regulator to provide information to the applicant as to how the application has been determined.

352—Amendment or cancellation of approval on Regulator's initiative

Section 352 states the grounds for amending or cancelling an electronic recording system approval. If the Regulator decides that there is ground for an amendment or cancellation, subsections (2) and (3) require that information be provided to the holder of the approval with opportunity to make representations, which the Regulator is bound to consider before making a decision.

Once a decision has been made, the Regulator must provide the holder with information about it. Subsection (5) provides that the amendment or cancellation takes effect when that information is given or at a later time stated in the information notice.

353—Minor amendment of approval

Section 353 provides the Regulator to make amendments of a minor nature to an electronic recording system approval so as to deal with formal or clerical matters or amendments which do not adversely affect the holder's interests.

354—Requirements if approval amended

Section 354 provides that where the Regulator considers that an amendment that has been made to the conditions of an approval will or is likely to significantly affect the way in which the electronic recording system is to be used, the Regulator may give the holder a written direction to notify the amendment to each person to whom the holder has supplied the electronic recording system. It is an offence not to comply with such a direction. A maximum penalty of $6,000 applies. If the person receiving the direction has supplied the electronic recording system to others, that person must, in turn, notify those others. A maximum penalty of $6,000 applies. Subsection (6) provides that nothing in the section prevents the Regulator from publishing details of the amendment more widely.

355—Requirements if approval cancelled

Section 355 states that if the Regulator notifies the holder of an approval that the approval of the electronic recording system has been cancelled, the holder must remove any electronic work diary label relating to the approval. A maximum penalty of $6,000 applies to a contravention.

Where the Regulator cancels an approval of an electronic recording system, the Regulator may give the holder a written direction to notify the cancellation to each person to whom the holder has supplied the electronic recording system and to require the removal of any electronic work diary label still in the person's possession. It is an offence not to comply with such a direction. A maximum penalty of $6,000 applies.

If the person receiving the direction has supplied the electronic recording system to others, that person must, in turn, notify those others, imposing on them a similar requirement to remove any electronic work diary label still in their possession. A maximum penalty of $6,000 applies for noncompliance.

Subsection (7) provides that nothing in the section prevents the Regulator from publishing details of the cancellation more widely.

Division 9—Exemptions from work diary requirements

Note—

In the Heavy Vehicle National Law set out in the Schedule to the Heavy Vehicle National Law Act 2012 of Queensland, this Division is numbered Division 8.

Subdivision 1—Exemption for emergency services

356—Emergency services exemption

Section 356 contains an exemption from Division 2 (which relates to work diary requirements) for 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).

Subdivision 2—Exemptions by Commonwealth Gazette notice

357—Regulator's power to exempt particular drivers from work diary requirements

Section 357 empowers the Regulator to publish a notice in the Commonwealth Gazette to exempt, for a period up to 3 years, drivers carrying out a class of work from certain electronic work diary requirements which would otherwise apply.

358—Restriction on grant of work diary exemption (notice)

Section 358 states the restrictions on the Regulator in relation to the publication of a notice under section 357. The Regulator must be satisfied of certain matters specified in the section, including safety and the unreasonableness of requiring compliance with the requirements which would otherwise apply, and must have regard to guidelines approved by the responsible Ministers under section 653.

359—Conditions of work diary exemption (notice)

Section 359 states that a notice granting an exemption from work diary requirements may be subject to conditions.

360—Period for which work diary exemption (notice) applies

Section 360 states that a notice granting an exemption from work and rest hours is in force when the notice is published or a later date specified in the notice.

361—Requirements about Commonwealth Gazette notice

Section 361 contains requirements for a notice granting an exemption from work diary requirements.

362—Amendment or cancellation of work diary exemption (notice)

Section 362 provides for the amendment of cancellation of a notice granting an exemption from work diary requirements.

Subdivision 3—Exemptions by permit

363—Regulator's power to exempt driver of fatigue-regulated heavy vehicle from work diary requirement

Section 363 empowers the Regulator to exempt a driver of fatigue-regulated heavy vehicles from work diary requirements that would otherwise apply to the driver.

364—Application for work diary exemption (permit)

Section 364 provides that a driver or employer may apply for an exemption permit in the approved form. It specifies other requirements for an application.

365—Restriction on grant of work diary exemption (permit)

Section 365 imposes restrictions on the Regulator to the grant of a permit under section 363. The Regulator must be satisfied that the driver's English literacy would impede his making the necessary entries and that a nominee can do so. The Regulator must also have regard to guidelines approved by the responsible Ministers under section 653.

366—Conditions of work diary exemption (permit)

Section 366 provides that a permit granting an exemption from work diary requirements may be subject to conditions.

367—Period for which work diary exemption (permit) applies

Section 367 states the period during which a permit granting an exemption from work diary requirements is in force.

368—Permit for work diary exemption (permit) etc

Section 368 states the contents of and, in some cases, information which must accompany a work diary exemption permit.

369—Refusal of application for work diary exemption (permit)

Section 369 states that if the Regulator refuses a permit, section 339 requires an information notice to be provided to the applicant.

370—Amendment or cancellation of work diary exemption (permit) on application

Section 370 deals with the amendment or cancellation of a work diary exemption (permit).

371—Amendment or cancellation of work diary exemption (permit) on Regulator's initiative

Section 371 deals with the grounds for amending or cancelling a work diary exemption (permit) and the procedure to be followed, including opportunity for and consideration of written representations.

372—Minor amendment of work diary exemption (permit)

Section 372 contains a provision for the Regulator to make amendments of a minor nature to a work diary exemption (permit), so as to deal with formal or clerical matters or amendments which do not adversely affect the holder's interests.

373—Return of permit

Section 373 states that where a work diary exemption (permit) is amended or cancelled, the Regulator may require its return. It is an offence not to comply with the request and a maximum penalty of $6,000 applies. The Regulator may issue a replacement permit where a permit has been amended.

374—Replacement of defaced etc permit

Section 374 states that where a permit is defaced, destroyed, lost or stolen, the holder must apply to the Regulator for a replacement. A maximum penalty of $4,000 applies for a contravention of this requirement. Section 344 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—Operating under work diary exemption

375—Contravening conditions of work diary exemption

Section 375 states that it is an offence not to comply with a condition of an exemption from work diary requirements. A maximum penalty of $6,000 applies.

376—Keeping relevant document while operating under work diary exemption (notice)

Section 376 provides that where a work diary exemption (notice) requires a driver to keep a document, it is an offence not to do so. A maximum penalty of $3,000 applies. Liability is extended to the driver's employers and others. A person to whom liability is so extended may rely on the defence of the taking of reasonable steps but does not have the benefit of the mistake of fact defence for the offence.

377—Keeping copy of permit while operating under work diary exemption (permit)

Section 377 states that a driver of a fatigue-regulated heavy vehicle operating under a work diary exemption (permit) must keep a copy of the permit in the driver's possession. A maximum penalty of $3,000 applies.

Division 10—Exemptions from fatigue record keeping requirements of Division 3

Note—

In the Heavy Vehicle National Law set out in the Schedule to the Heavy Vehicle National Law Act 2012 of Queensland, this Division is numbered Division 8A.

Subdivision 1—Exemptions by Commonwealth Gazette notice

378—Regulator's power to exempt record keepers from fatigue record keeping requirements

Section 378 creates a power on the part of the Regulator to exempt record keepers for drivers of fatigue-regulated heavy vehicles carrying out a class of work from any or all of the fatigue record keeping requirements contained in Division 3 of Chapter 6 Part 4 of the Act for a period of not more than 3 years, through the use of a fatigue record keeping exemption (notice). In exercising the power the Regulator must have regard to any approved guidelines.

379—Conditions of fatigue record keeping exemption (notice)

Section 379 empowers the Regulator to impose a range of conditions on a notice issued under section 378, including but not limited to any conditions prescribed in the national regulations.

380—Period for which fatigue record keeping exemption (notice) applies

Section 380 establishes the period for which a fatigue record keeping exemption (notice) applies, being the time when the Commonwealth Gazette notice for the exemption is published, or such later period as stated in that gazette notice.

381—Requirements about Commonwealth Gazette notice

Section 381 sets out the minimum requirements a gazette notice issued for a fatigue record keeping exemption (notice) must contain and imposes an obligation on the Regulator to publish a copy of the Commonwealth Gazette notice on the Regulator's website.

382—Amendment or cancellation of fatigue record keeping exemption (notice)

Section 382 empowers the Regulator to amend or cancel a fatigue record keeping exemption (notice). The section establishes the grounds on which the notice may be amended or cancelled and specifies the procedure to be followed where the power is intended to be exercised. This procedure imposes public notice requirements and obliges the Regulator to consider representations by affected persons.

Subdivision 2—Exemptions by permit

383—Regulator's power to exempt record keepers from fatigue record keeping requirements

Section 383 empowers the Regulator to exempt a record keeper for one or more drivers of a fatigue-regulated heavy vehicle from any or all of the fatigue record keeping requirements contained in of Division 3 of Chapter 6 Part 4 of the Act for a period of not more than 3 years through a fatigue record keeping exemption (permit).

384—Application for fatigue record keeping exemption (permit)

Section 384 establishes the procedures to be followed in the making of an application for a fatigue record keeping exemption (permit).

385—Conditions of fatigue record keeping exemption (permit)

Section 385 empowers the Regulator to impose a range of conditions on a permit applied for under section 384, including but not limited to any conditions prescribed in the national regulations.

386—Period for which fatigue record keeping exemption (permit) applies

Section 386 stipulates the period for which fatigue record keeping exemption (permit) applies, being the period nominated in the permit itself.

387—Permit for fatigue record keeping exemption (permit) etc

Section 387 requires the Regulator to provide a copy of a record keeping exemption (permit) to the applicant. Where conditions have been imposed on the permit, or it has been granted for less than the period sought by the applicant, the Regulator must also provide an information notice for the decision. This section also stipulates the information the Regulator is required to include in the permit.

388—Refusal of application for fatigue record keeping exemption (permit)

Section 388 requires the Regulator to give the applicant an information notice where the Regulator has decided to refuse an application for a fatigue record keeping exemption (permit).

389—Amendment or cancellation of fatigue record keeping exemption (permit) on application by permit holder

Section 389 enables the holder of a fatigue record keeping exemption (permit) to apply to the Regulator for an amendment or cancellation of the exemption. The section outlines the procedure the applicant must follow in seeking the power to be exercised for their benefit, and the procedures to be followed by the Regulator in granting the application or refusing to grant the application.

390—Amendment or cancellation of fatigue record keeping exemption (permit) on Regulator's initiative

Section 390 empowers the Regulator to amend or cancel a fatigue record keeping exemption (permit) on its own initiative. The section sets out the grounds upon which the power may be exercised as well as the procedures to be followed where the Regulator considers a ground exists to amend or cancel the permit. These procedures include a requirement on the part of the Regulator to notify the holder of the proposed action and invite representations as to why the action should not be taken.

391—Minor amendment of fatigue record keeping exemption (permit)

Section 391 allows the Regulator to make a minor amendment of a fatigue record keeping exemption (permit) for formal or clerical reasons or other reasons that do not adversely affect the holder's interests on the giving of notice to the holder.

392—Return of permit

Section 392 provides that where a person's fatigue record keeping exemption (permit) is amended or cancelled, the Regulator may, by notice given to the person, require the person to return the person's permit for the exemption to the Regulator.

393—Replacement of defaced etc permit

Section 393 requires the holder of a fatigue record keeping exemption (permit) that is defaced, destroyed, lost or stolen to apply to the Regulator for a replacement permit as soon as reasonably practicable after becoming aware of the matter.

Subdivision 3—Exemptions by national regulations

394—Exemptions from provisions of Division 3

Section 394 creates a head of power to make regulations for the exemption of record keepers for drivers of fatigue-regulated heavy vehicles from the requirement to comply with all or stated provisions of Division 3. There is currently no such capacity to allow for 'enduring' exemptions to be prescribed in regulations but it is likely there will be a need for these in future and they already may found in jurisdictional laws (for example, regulation 115E of the Road Transport (General) Regulation 2005 (NSW) that exempt motor hire, repair etc. companies who drive vehicles locally from record keeping).

Subdivision 4—Other provisions

395—Contravening condition of fatigue record keeping exemption

Section 395 creates an offence for a person who contravenes a condition of a fatigue record keeping exemption.

Division 11—Requirements about odometers

Note—

In the Heavy Vehicle National Law set out in the Schedule to the Heavy Vehicle National Law Act 2012 of Queensland, this Division is numbered Division 9.

396—Owner must maintain odometer

Section 396 states that an owner of a fatigue-regulated heavy vehicle must maintain its odometer in accordance with the national regulations. A maximum penalty of $6,000 applies. Subsections (2) and (3) deal with defences to a prosecution.

397—Driver must report malfunctioning odometer

Section 397 states that a driver who suspects an odometer to have malfunctioned must within 2 business days inform each owner of the fatigue-regulated heavy vehicle, his or her employer and the operator. A maximum penalty of $3,000 applies.

Subsection (3) provides that the driver does not commit an offence if another driver has provided the necessary information.

398—What owner must do if odometer malfunctioning

Section 398 provides that an owner must have the odometer examined and brought into working order as soon as practicable after being informed of its malfunction. A maximum penalty of $6,000 applies. Subsections (3) and (4) deal with defences that are available to a person charged with an offence under this section.

399—What employer or operator must do if odometer malfunctioning

Section 399 states that an employer or operator who has been informed of a malfunctioning odometer must neither drive nor permit to be driven the fatigue-related heavy vehicle until the owner has complied with section 398. A maximum penalty of $6,000 applies. Subsections (3) and (4) deal with defences that are available to a person charged with an offence under this section.

Chapter 7—Intelligent access

Part 1—Preliminary

400—Main purposes of Chapter 7

Section 400 describes the main purposes of Chapter 7 as being to ensure the integrity of systems used for compliance with intelligent access conditions and to provide for appropriate collection, keeping and handling of intelligent access information. Sections 402 and 403 respectively define the terms 'intelligence access conditions' and 'intelligent access information'. Subsections (2) and (3) indicate how these purposes are achieved in the Law.

Intelligent access describes a concept by which electronic or technological means are used to monitor whether vehicles or drivers are complying with conditions affecting their use of roads. The concept offers advantages to both participating road users and enforcement personnel because of the streamlined alternative it presents to conventional enforcement. This Chapter provides for the monitoring of intelligent access vehicles (as defined in section 403) and the means of ensuring that the systems needed to effect the monitoring are accurate and secure.

401—What the Intelligent Access Program is

Section 401 introduces the concept of the 'Intelligent Access Program' and explains its purpose. The term has been historically applied to the regulatory activities incorporated in Chapter 7 and is well understood by users in industry and government. The retention of this concept allows for the clearer differentiation between regulatory telematics required as condition of access and non-regulatory systems used for other purposes.

402—Application of Chapter 7

Section 402 provides that Chapter 7 applies if the Regulator has imposed specified conditions, called 'intelligent access conditions' on a mass or dimension exemption or if the use of a heavy vehicle under an HML authority is subject to specified conditions. The term 'mass or dimension exemption' is defined in section 5 and refers to an exemption from a mass or dimension requirement granted by the Regulator under a mass or dimension exemption (notice) under section 117 or a mass or dimension exemption (permit) under section 122. An HML authority relates to an authorisation to operate at higher mass limits than would otherwise apply to the vehicle.

Intelligent access conditions require monitoring of such matters as the areas or roads on which a vehicle travels, the mass of the vehicle when so travelling, the time of travel or the speed at which the vehicle is travelling. The monitoring is undertaken by an intelligent access service provider (as defined in section 403) by means of an intelligent transport system.

The term 'intelligent transport system' is defined in section 5. It relates to a system using electronic or other technology, which may be installed on a vehicle, road or other place to monitor, generate, record, store, display, analyse, transmit or report information about heavy vehicles, drivers, operators or others involved in road transport using a heavy vehicle.

403—Definitions for Chapter 7

Section 403 defines terms used in Chapter 7.

Part 2—Duties and obligations of operators of intelligent access vehicles

404—Offence to give false or misleading information to intelligent access service provider

Section 404 deals with offences in relation to false or misleading information given to an intelligent access service provider by an operator. An intelligent access vehicle, as defined in section 403, is essentially one subject to intelligent access conditions. The vehicle's operator enters into an intelligent access agreement (as defined in section 403) with an intelligent access service provider to monitor compliance with those conditions. The provider is certified for the purpose by Transport Certification Australia Ltd (called TCA in the Law), which is a public company established for the purpose and with a membership comprising relevant Commonwealth, State and Territory agencies.

Subsection (1) makes it an offence for the operator of an intelligent access vehicle to give to an intelligent access service provider with whom the operator has entered into an intelligent access agreement (as defined in section 403) for the vehicle information relevant to the operation of that vehicle which the operator knows or ought reasonably to know is false or misleading. A maximum penalty of $10,000 applies. However, no offence is committed if the operator gives the information in writing and, when giving the information, informs the service provider as best able how the information is false or misleading and, if reasonably possible, gives the correct information in writing.

Subsection (4) deals with the situation where the operator of a heavy vehicle intends to enter into an intelligent access agreement with a service provider. It is an offence for the operator to give to the provider information that the operator knows or ought reasonably to know is false or misleading and intends that the service provider will enter into the agreement in reliance on that information. A maximum penalty of $10,000 applies. However, no offence is committed if the operator gives the information in writing and, when giving the information, informs the service provider as best able how the information is false or misleading and, if reasonably possible, gives the correct information in writing.

Subsection (6) deals with what may be stated in a charge for an offence against either subsection (1) or (4).

405—Advising vehicle driver of collection of information by intelligent access service provider

Section 405 requires the operator of an intelligent access vehicle to take all reasonable steps to give the driver of the vehicle specified information about the collection of information by an intelligent access service provider before the vehicle begins a journey. A maximum penalty of $6,000 applies for noncompliance.

Subsections (2) and (3) deal with how the operator can comply with the requirement.

406—Reporting system malfunctions to Regulator

Section 406 states that an operator of an intelligent access vehicle who becomes aware that a part of an approved intelligent transport system fitted to the vehicle is malfunctioning or has malfunctioned, must report the matter to the Regulator as soon as is practicable. A maximum penalty of $6,000 applies for noncompliance.

The operator is required to keep for a period of at least 4 years written records of such reports, containing specified particulars. A maximum penalty of $6,000 applies for noncompliance.

407—Advising driver of driver's obligations about reporting system malfunctions

Section 407 requires the operator of an intelligent access vehicle to take all reasonable steps to advise the driver, before the vehicle begins a journey, of the driver's obligation under section 408 (relating to reporting malfunctioning of the intelligent access system to the operator) and how the driver can discharge that obligation. Subsections (2) and (3) deal with how the operator can comply with the requirement.

Part 3—Obligations of drivers of intelligent access vehicles

408—Reporting system malfunctions to operator

Section 408 states that the driver of an intelligent access vehicle who becomes aware that a part of an approved intelligent transport system fitted to the vehicle is malfunctioning or has malfunctioned, must report the matter to the vehicle's operator as soon as is practicable. A maximum penalty of $6,000 applies for noncompliance.

The driver is required to keep for a period of at least 4 years written records of such reports, containing specified particulars. A maximum penalty of $6,000 applies for noncompliance.

However, subsection (3) provides that it is not an offence for the driver to fail to report if another driver has reported the malfunction.

Part 4—Powers, duties and obligations of intelligent access service providers

409—Powers to collect and hold intelligent access information

Section 409 authorises an intelligent access service provider to collect and hold information for the purposes of relevant monitoring of an intelligent access vehicle.

410—Collecting intelligent access information

Section 410 imposes on the intelligent access service provider an obligation to take all reasonable steps to ensure that information collected is appropriate, is not excessive, and is accurate, complete and up to date. A maximum penalty of $6,000 applies for noncompliance.

A further obligation is imposed under subsection (2) to take all reasonable steps to ensure that the collection of information does not intrude to an unreasonable extent on the personal privacy of an individual to whom it relates. A maximum penalty of $6,000 applies for noncompliance.

411—Keeping records of intelligent access information collected

Section 411 requires the intelligent access service provider to keep records of the intelligent access information collected in such a way as to allow the records to be conveniently and properly audited by an intelligent access auditor. A maximum penalty of $6,000 applies for noncompliance.

An intelligent access auditor is defined in section 5 as a person engaged by TCA for auditing activities conducted by intelligent access service providers.

412—Protecting intelligent access information

Section 412 imposes obligations on an intelligent access service provider to protect intelligent access information. It states that a provider must take all reasonable steps to protect the information collected from unauthorised access, unauthorised use, misuse, loss, modification or unauthorised disclosure. A maximum penalty of $6,000 applies for noncompliance.

413—Making individuals aware of personal information held

Section 413 states that an intelligent access service provider must make a document setting out its policies as to how it manages personal information publicly available. A maximum penalty of $6,000 applies for noncompliance.

Under subsection (2), the provider must also, if requested by an individual about whom the provider holds personal information, provide specified information to the individual within 28 days after receiving the request if the provider can reasonably do so. A maximum penalty of $6,000 applies for noncompliance.

However, subsection (3) clarifies that the provider is not required to inform the individual of any reports made by the provider to the Regulator under sections 422 or 423 of relevant contraventions or of tampering or suspected tampering with an approved intelligent transport system.

414—Giving individuals access to their personal information

Section 414 imposes an obligation on an intelligent access service provider who holds personal information about an individual to give the individual access to that information upon request, as soon as practicable and without cost. A maximum penalty of $6,000 applies for noncompliance.

Note that personal information is defined in section 5 to mean information or an opinion, including such information forming part of a database (whether true or not and whether recorded in a material form or not) about an individual whose identity is apparent or can reasonably be found out from the information or opinion. However, for it to be personal information under Chapter 7 it must be such personal information that is intelligent access information or otherwise collected for the purposes of Chapter 7, as set out in the definition in section 403.

Subsection (2) clarifies that the intelligent access service provider is not required to give the individual access to any reports made by the provider to the Regulator under sections 422 or 423 of relevant contraventions or of tampering or suspected tampering with an approved intelligent transport system.

415—Correcting errors etc

Section 415 deals with the making of changes to personal information held about an individual upon request by that individual.

Subsection (2) imposes an obligation on the intelligent access service provider to make the requested change if the provider is satisfied that it is appropriate to do so to ensure the accuracy, completeness and currency of the information. A maximum penalty of $6,000 applies for noncompliance.

If the provider is not satisfied as to the appropriateness of the requested change, it may refuse the request. In that case, it must notify the individual of its reasons for refusing and of the individual's right to request the provider to attach to or include with the information the individual's request for a change to the information or a record of it. If the individual makes that request, the provider must do so. A maximum penalty of $6,000 applies for not notifying the individual or not complying with the individual's request to attach the individual's request for a change to the information or a record of it.

416—General restriction on use and disclosure of intelligent access information

Section 416 creates an offence for an intelligent access service provider to use or disclose intelligent access information other than as required or authorised under this Law or another law. A maximum penalty of $6,000 applies.

As well as protection of an individual's personal information, this section also seeks to protect information generated, recorded, stored, displayed, analysed, transmitted or reported by an approved intelligent transport system which is commercially sensitive or which relates to an individual's or an operator's business affairs from improper disclosure.

417—Giving intelligent access auditor access to records

Section 417 requires an intelligent access service provider to give an intelligent access auditor access to the records kept for the purposes of this Chapter. A maximum penalty of $6,000 applies for noncompliance.

418—Powers to use and disclose intelligent access information

Section 418 specifies how an intelligent access service provider may use and disclose intelligent access information.

Subsection (1) authorises the service provider to use the information collected for monitoring the relevant monitoring matters for an intelligent access vehicle. The term 'relevant monitoring matters' is defined in section 403 and relates to monitoring of a relevant vehicle's compliance with intelligent access conditions (as defined in section 402).

Subsection (2) authorises the service provider to disclose the information to the Regulator for compliance purposes. The term 'compliance purposes' is defined in section 5 to mean monitoring purposes or investigation purposes (both of which are also defined in section 5).

Subsection (3) authorises the service provider to disclose intelligent access information to—

an authorised officer, other than a police officer, for law enforcement purposes (a defined term in section 5) if so authorised by a warrant issued under this Law; or

an authorised officer who is a police officer, for law enforcement purposes if so authorised by a warrant issued under this Law or another law.

Subsection (4) defines the circumstances in which an authorised officer or a police officer to whom a disclosure has been made under this section may further use or disclose the information. Those circumstances include law enforcement purposes, or a purpose otherwise authorised under this Law or any other law.

Subject to subsection (6), subsection (5) authorises the service provider to disclose the information to an operator, where that information is about the operator.

Subsection (6) provides that the provider is not required to disclose to operators information relating to noncompliance reports. A 'noncompliance report' is defined in section 403 as a report made by an approved intelligent transport system that reports a relevant contravention for an intelligent access vehicle and/or apparent tampering with or malfunctioning of the system.

Subsection (7) authorises disclosure to other parties of information about an operator if the operator gives written consent and the information does not identify or enable the identification of an individual other than the operator.

Subsection (8) authorises the use and disclosure of personal information about an individual if the individual gives written consent.

The whole of section 418 is, by reason of subsection (9), subject to section 424. That section expressly restricts the disclosure of information about tampering or suspected tampering with an approved intelligent transport system to any entity, other than disclosure to the Regulator.

419—Keeping record of use or disclosure of intelligent access information

Section 419 imposes obligations on an intelligent access service provider who uses or discloses intelligent access information to make a record of the use or disclosure within 7 days. The record must contain the information specified in subsection (2) and must be in a form to enable it to be readily accessible by an intelligent access auditor at the place where it is kept. A maximum penalty of $6,000 applies for noncompliance. Under subsection (3) the record must be retained for at least 2 years, and a maximum penalty of $6,000 applies for noncompliance.

420—Keeping noncompliance report etc

Section 420 states that where an intelligent access system generates a noncompliance report (as defined in section 403), the intelligent access service provider is required to retain a copy of the report and the information relied on to make the report for at least 4 years. A maximum penalty of $6,000 applies for noncompliance.

421—Destroying intelligent access information etc

Section 421 imposes obligations on the intelligent access service provider to destroy specified information, except in the case of a noncompliance report and supporting information that the provider is required to keep under section 419. The provider must take all reasonable steps to destroy intelligent access information within 1 year of its collection. In addition, the provider must take all reasonable steps to destroy a record of the provider's use or disclosure of intelligent access information made under section 419 within 1 year after the expiry of the time that the record is required be kept. A maximum penalty of $6,000 applies for noncompliance.

422—Reporting relevant contraventions to Regulator

Section 422 provides that an intelligent access service provider must give the Regulator a report in the approved form within 7 days of knowing of a relevant contravention for an intelligent access vehicle. The term 'approved form' is defined in section 5 to mean a form approved by the Regulator under section 735. The term 'relevant contravention' is defined in section 403. A maximum penalty of $6,000 applies for noncompliance. Subsection (3) deems the access service provider to know of a relevant contravention if it has been detected by the provider's monitoring equipment.

423—Reporting tampering or suspected tampering with approved intelligent transport system to Regulator

Section 423 imposes obligations on an intelligent access service provider who knows or has reasonable grounds to suspect tampering with an intelligent transport system to report the matter to the Regulator within 7 days and in the approved form (defined in section 5 to mean a form approved by the Regulator under section 671). A maximum penalty of $6,000 applies for noncompliance.

Subsection (2) requires an intelligent access service provider to notify TCA of its knowledge or suspicion that a back-office intelligent transport system (a defined term) has been tampered with. A maximum penalty of $6,000 applies for noncompliance.

Subsection (3) clarifies that a provider is not taken to know or have reasonable grounds to suspect tampering merely because the provider has accessed a report made by the system indicating that apparent tampering has been detected electronically or has analysed information generated by the system. This provision recognises that the provider will usually need to check and analyse such reports because there could be malfunctions or other innocent causes to account for what the system has detected or generated.

424—Restriction on disclosing information about tampering or suspected tampering with approved intelligent transport system

Section 424 restricts an intelligent access service provider who knows of or has reasonable grounds to suspect tampering with an approved intelligent transport system disclosing that knowledge or suspicion or information from which that knowledge or suspicion could be reasonably inferred. Disclosure of such matters can only be made to the Regulator or TCA, unless such disclosure is authorised under another law. A maximum penalty of $6,000 applies for noncompliance.

As with section 423(3), subsection (2) clarifies that a provider is not taken to know or have reasonable grounds to suspect tampering merely because the provider has accessed a report made by the system indicating that apparent tampering has been detected electronically or has analysed information generated by the system.

Subsection (3) prohibits a provider who has reported to the Regulator under section 423(1) of apparent or suspected tampering from disclosing that the report has been made or information from it could be reasonably inferred that the report has been made. Disclosure of such matters can only be made to the Regulator, unless such disclosure is authorised under another law. A maximum penalty of $6,000 applies for noncompliance.

Subsection (4) prohibits a provider who has reported to TCA under section 423(2) of apparent or suspected tampering from disclosing that the report has been made or information from it could be reasonably inferred that the report has been made. Disclosure of such matters can only be made to the Regulator or TCA, unless such disclosure is authorised under another law. A maximum penalty of $6,000 applies for noncompliance.

Part 5—Functions, powers, duties and obligations of TCA

425—Functions of TCA

Section 425 sets out the functions of TCA as approving intelligent transport systems, certifying service providers, and auditing the activities of those certified. The section also enables TCA to engage individuals, consultants and contractors to assist it in the performance of its audit functions and makes it clear that TCA's functions include cancelling the approval of intelligent transport systems for use by intelligent access service providers and approving and cancelling the certification of intelligent access service providers.

Subsection (2) clarifies that an approval, certification or engagement under subsection (1) may be given or made unconditionally or subject to stated conditions imposed or varied from time to time.

426—Powers to collect and hold intelligent access information

Section 426 authorises TCA to collect and hold intelligent access information for discharging its functions and for law enforcement purposes.

427—Collecting intelligent access information

Section 427 requires TCA to take all reasonable steps to ensure that the information it collects is necessary, is not excessive, and is accurate, complete and up to date.

It must also take all reasonable steps to ensure that the collection of information does not intrude to an unreasonable extent on the personal privacy of an individual to whom the information relates.

428—Protecting intelligent access information collected

Section 428 requires TCA to take all reasonable steps to protect the information collected from unauthorised access, unauthorised use, misuse, loss, modification or unauthorised disclosure.

429—Making individuals aware of personal information held

Section 429 states that TCA must make a document setting out its policies as to how it manages personal information publicly available.

Under subsection (2), TCA must also, if requested by an individual about whom it holds personal information, provide specified information to the individual within 28 days after receiving the request if it can reasonably do so.

However, subsection (3) clarifies that TCA is not required to inform the individual of any reports made under the following sections:

422–being a report by an intelligent access service provider to the Regulator relating to relevant contraventions for an intelligent access vehicle;

423–being a report by an intelligent access service provider to the Regulator relating to tampering or suspected tampering with an approved intelligent transport system;

438–being a report by TCA to the Regulator relating to tampering or suspected tampering with, or malfunction or suspected malfunction of, an approved intelligent transport system;

451–being a report by an intelligent access auditor to TCA relating to contraventions by an intelligent access service provider; and

452–being a report by an intelligent access auditor to the Regulator or TCA relating to tampering or suspected tampering with an approved intelligent transport system.

430—Giving individuals access to their personal information

Section 430 states that upon request by an individual in relation to whom TCA holds personal information, TCA must give the individual access to the information without cost or undue delay.

Note that personal information is defined in section 5 to mean information or an opinion, including such information forming part of a database (whether true or not and whether recorded in a material form or not) about an individual whose identity is apparent or can reasonably be found out from the information or opinion. However, for it to be personal information under Chapter 7 it must be such personal information that is intelligent access information or otherwise collected for the purposes of Chapter 7, as set out in the definition in section 403.

However, subsection (3) clarifies that TCA is not required to inform the individual of any reports made under the following sections:

422–being a report by an intelligent access service provider to the Regulator relating to relevant contraventions for an intelligent access vehicle;

423–being a report by an intelligent access service provider to the Regulator relating to tampering or suspected tampering with an approved intelligent transport system;

438–being a report by TCA to the Regulator relating to tampering or suspected tampering with, or malfunction or suspected malfunction of, an approved intelligent transport system;

451–being a report by an intelligent access auditor to TCA relating to contraventions by an intelligent access service provider; and

452–being a report by an intelligent access auditor to the Regulator or TCA relating to tampering or suspected tampering with an approved intelligent transport system.

431—Correcting errors etc

Section 431 deals with the making of changes to personal information held about an individual upon request by that individual.

Subsection (2) imposes an obligation on TCA to make the requested change if satisfied that it is appropriate to do so to ensure the accuracy, completeness or currency of the information.

Subsections (3) and (4) state that, if TCA is not satisfied as to the appropriateness of the requested change, it may refuse the request. In that case, it must notify the individual of its reasons for refusing and of the individual's right to request TCA to attach to or include with the information the individual's request for a change to the information or a record of it. If the individual makes that request, TCA must do so.

432—General restriction on use and disclosure of intelligent access information

Section 432 creates an offence for TCA to use or disclose intelligent access information other than as required or authorised under this Law or another law. A maximum penalty of $6,000 applies.

As well as protection of an individual's personal information, this section also seeks to protect information generated, recorded, stored, displayed, analysed, transmitted or reported by an approved intelligent transport system which is commercially sensitive or which relates to an individual's or an operator's business affairs from improper disclosure.

433—Powers to use and disclose intelligent access information

Section 433 specifies how TCA may use and disclose intelligent access information.

Subsection (1) authorises TCA to use or disclose the information for the discharge of its functions (set out in section 425) or for law enforcement purposes. The term 'law enforcement purposes' is defined in section 403 and refers to the investigation or prosecution of an offence against an Australian road law (defined in section 5 to mean this Law or another law of a State or Territory that regulates the use of vehicles on roads).

Subsection (2) authorises TCA to disclose the information to the Regulator, if satisfied the information is relevant to the Regulator's functions under this Law. The Regulator's functions are set out in section 659.

Subsection (3) authorises TCA to disclose the information to an intelligent access auditor, if satisfied the information is relevant to an intelligent access audit being conducted.

Subsection (4) authorises TCA to disclose the information to the operator of an intelligent access vehicle, where that information is about the operator.

Subsection (5) authorises disclosure to other parties of information about an operator if the operator gives written consent and the information does not identify or enable the identification of an individual other than the operator.

Under subsection (6), TCA may use or disclose information for research purposes if no personal information is involved.

Subsection (7) authorises the use and disclosure of personal information about an individual if the individual gives written consent.

The whole of section 433 is, by reason of subsection (8), subject to section 439. That section expressly restricts the disclosure of information about tampering or suspected tampering with an approved intelligent transport system to any entity, other than disclosure to the Regulator.

434—Restriction about intelligent access information that may be used or disclosed

Section 434 states that TCA must not use or disclose certain information unless it is reasonably satisfied that the information is accurate, complete and up to date.

435—Keeping record of use or disclosure of intelligent access information

Section 435 imposes obligations on TCA, if it uses or discloses intelligent access information, to make a record of the use or disclosure within 7 days. The record must contain the information specified in subsection (2) and must be in a form to enable it to be readily accessible by an authorised officer at the place where it is kept. Under subsection (3) the record must be retained for at least 2 years.

436—Keeping noncompliance reports

Section 436 provides that where TCA receives a noncompliance report, it is required to retain the report for at least 4 years. The term 'noncompliance report' is defined in section 403 to mean a report made by an approved intelligent transport system of a relevant contravention for an intelligent access vehicle and/or apparent tampering with, or malfunctioning of, the system.

437—Destroying intelligent access information or removing personal information from it

Section 437 imposes obligations on TCA to destroy intelligent access information collected by it or to remove personal information from it, except in the case of a noncompliance report that TCA is required to keep under section 436.

Subsection (1) requires TCA to take all reasonable steps to destroy information collected 1 year after collection unless the information is required for law enforcement purposes. If it is required for law enforcement purposes, the obligation to take all reasonable steps to destroy the information applies as soon as practicable after it ceases to be required for those purposes.

Under subsection (2), TCA will be taken to have complied with subsection (1) if it permanently removes from that information anything by which an individual can be identified.

438—Reporting tampering or suspected tampering with, or malfunction or suspected malfunction of, approved intelligent transport system to Regulator

Section 438 states that if TCA knows of or has reasonable grounds to suspect tampering with or malfunctioning of an intelligent transport system fitted to a vehicle, it must report the matter to the Regulator within 7 days. Subsection (2) clarifies that TCA is not taken to know or have reasonable grounds to suspect tampering or malfunctioning merely because it has accessed a report made by the system indicating that apparent tampering or malfunctioning has been detected electronically or because it has analysed information generated by the system. This provision recognises that TCA will usually need to check and analyse such reports because there could be innocent causes to account for what the system has detected or generated.

439—Restriction on disclosing information about tampering or suspected tampering with approved intelligent transport system

Section 439 restricts TCA, if it knows of or has reasonable grounds to suspect tampering with an approved intelligent transport system, from disclosing that knowledge or suspicion or information from which that knowledge or suspicion could be reasonably inferred. Disclosure of such matters can only be made to the Regulator, unless such disclosure is authorised under another law.

As with subsection 438(2), subsection (2) clarifies that TCA is not taken to know or have reasonable grounds to suspect tampering merely because it has accessed a report made by the system indicating that apparent tampering has been detected electronically or has analysed information generated by the system.

Subsection (3) prohibits TCA, if it has reported to the Regulator under section 438 of apparent or suspected tampering from disclosing that the report has been made or information from it could be reasonably inferred that the report has been made. Disclosure of such matters can only be made to the Regulator, unless such disclosure is authorised under another law.

Part 6—Powers, duties and obligations of intelligent access auditors

440—Powers to collect and hold intelligent access information

Section 440 sets out that an intelligent access auditor is authorised to collect and hold intelligent access information for conducting an intelligent access audit. An intelligent access auditor is defined in section 5 as a person engaged by TCA for auditing activities conducted by intelligent access service providers. An intelligent access audit is defined in section 403.

441—Collecting intelligent access information

Section 441 imposes on an intelligent access auditor an obligation to take all reasonable steps to ensure that the information it collects is necessary, is not excessive, and is accurate, complete and up to date . A maximum penalty of $6,000 applies for noncompliance.

A further obligation is imposed under subsection (2) to take all reasonable steps to ensure that the collection of information does not intrude to any unreasonable extent on the personal privacy of an individual to whom it relates. A maximum penalty of $6,000 applies for noncompliance.

442—Protecting intelligent access information collected

Section 442 states that an intelligent access auditor must also take all reasonable steps to protect the information collected from unauthorised access, unauthorised use, misuse, loss, modification or unauthorised disclosure. A maximum penalty of $6,000 applies for noncompliance.

443—Making individuals aware of personal information held

Section 443 provides, in subsection (1) that an intelligent access auditor must, if it is reasonably practicable to do so, within 28 days of a request by an individual about whom the auditor holds personal information, give specified information to that individual. A maximum penalty of $6,000 applies for noncompliance.

Subsection (2) clarifies that nothing in subsection (1) requires the auditor to inform the individual of any reports made under the following sections:

422–being a report by an intelligent access service provider to the Regulator relating to relevant contraventions for an intelligent access vehicle;

423–being a report by an intelligent access service provider to the Regulator relating to tampering or suspected tampering with an approved intelligent transport system;

438–being a report by TCA to the Regulator relating to tampering or suspected tampering with, or malfunction or suspected malfunction of, an approved intelligent transport system;

451–being a report by an intelligent access auditor to TCA relating to contraventions by an intelligent access service provider;

452–being a report by an intelligent access auditor to the Regulator or TCA relating to tampering or suspected tampering with an approved intelligent transport system.

444—Giving individuals access to their personal information

Section 444 imposes an obligation on an intelligent access auditor who holds personal information about an individual to give the individual access to that information upon request, without cost or undue delay. A maximum penalty of $6,000 applies for noncompliance.

Subsection (2) clarifies that nothing in subsection (1) requires the auditor to give the individual access to any reports made under the following sections:

422–being a report by an intelligent access service provider to the Regulator relating to relevant contraventions for an intelligent access vehicle;

423–being a report by an intelligent access service provider to the Regulator relating to tampering or suspected tampering with an approved intelligent transport system;

438–being a report by TCA to the Regulator relating to tampering or suspected tampering with, or malfunction or suspected malfunction of, an approved intelligent transport system;

451–being a report by an intelligent access auditor to TCA relating to contraventions by an intelligent access service provider;

452–being a report by an intelligent access auditor to the Regulator or TCA relating to tampering or suspected tampering with an approved intelligent transport system.

445—Correcting errors etc

Section 445 deals with the making of changes to personal information held about an individual upon request by that individual.

Subsection (2) imposes an obligation on the intelligent access auditor to make the requested change if the auditor is satisfied that it is appropriate to do so to ensure the accuracy, completeness and currency of the information. A maximum penalty of $6,000 applies for noncompliance.

If the auditor is not satisfied as to the appropriateness of the requested change, it may refuse the request. In that case, it must notify the individual of its reasons for refusing and of the individual's right to request the auditor to attach to or include with the information the individual's request for a change to the information or a record of it. If the individual makes that request, the auditor must do so. A maximum penalty of $6,000 applies for not notifying the individual or not complying with the individual's request to attach the individual's request for a change to the information or a record of it.

446—General restriction on use and disclosure of intelligent access information

Section 446 creates an offence for an intelligent access auditor to use or disclose intelligent access information other than as required or authorised under this Law or another law. A maximum penalty of $6,000 applies.

As well as protection of an individual's personal information, this section also seeks to protect information generated, recorded, stored, displayed, analysed, transmitted or reported by an approved intelligent transport system which is commercially sensitive or which relates to an individual's or an operator's business affairs from improper disclosure.

447—Powers to use and disclose intelligent access information

Section 447 specifies how an intelligent access auditor may use and disclose intelligent access information.

Subsection (1) states that an auditor may use and disclose the information collected for the following purposes:

conducting an intelligent access audit (as defined in section 403);

reporting to TCA relevant contraventions by an intelligent access vehicle, tampering or suspected tampering with an approved transport system by an operator or by an intelligent access service provider, and a failure by an intelligent access service provider to comply with the provider's obligations under this Chapter.

Subsection (2) authorises the auditor to disclose the information to the Regulator, if satisfied the information is relevant to the Regulator's functions under this Law. The Regulator's functions are set out in section 659.

Subsection (3) authorises the auditor to disclose the information to TCA, if satisfied the information is relevant to TCA's functions under this Chapter. TCA's functions are set out in section 425.

Subsection (4) authorises the auditor to disclose the information to the operator of an intelligent access vehicle, where that information is about the operator.

Subsection (5) authorises the use and disclosure of personal information about an individual if the individual gives written consent.

The whole of section 447 is, by reason of subsection (6), subject to section 453. That section expressly restricts the disclosure of information about tampering or suspected tampering with an approved intelligent transport system to any entity, other than disclosure to the Regulator.

448—Restriction about intelligent access information that may be used or disclosed

Section 448 provides that an auditor must not use or disclose information unless it is reasonably satisfied that the information is accurate, complete and up to date. A maximum penalty of $6,000 applies for noncompliance.

449—Keeping record of use or disclosure of intelligent access information

Section 449 imposes obligations on an intelligent access auditor who uses or discloses intelligent access information to make a record of the use or disclosure within 7 days. The record must contain the information specified in subsection 401(2) and must be in a form to enable it to be readily accessible by an authorised officer at the place where it is kept. A maximum penalty of $6,000 applies for noncompliance. Under subsection 401(3) the record must be retained for at least 2 years, and a maximum penalty of $6,000 applies for noncompliance.

450—Destroying intelligent access information or removing personal information from it

Section 450 states that an intelligent access auditor is required to take all reasonable steps to destroy information held by the auditor if it is no longer required for an intelligent access audit. A maximum penalty of $6,000 applies for noncompliance.

Under subsection (2), an auditor will be taken to have complied with the requirement if the auditor permanently removes anything by which an individual can be identified from the information.

451—Reporting contraventions by intelligent access service providers to TCA

Section 451 requires an auditor who knows or has reasonable grounds to suspect that an intelligent access service provider has contravened an obligation under this Chapter to, as soon as practicable, report the matter to TCA. A maximum penalty of $6,000 applies for noncompliance.

452—Reporting tampering or suspected tampering with approved intelligent transport system to Regulator or TCA

Section 452 imposes an obligation on an auditor knows or has reasonable grounds to suspect tampering with an intelligent transport system to, as soon as practicable, report the matter to the Regulator (where an operator is known or suspected) or to TCA (where an intelligent access service provider is known or suspected). A maximum penalty of $6,000 applies for noncompliance.

453—Restriction on disclosing information about tampering or suspected tampering with approved intelligent transport system

Section 453 restricts an intelligent access auditor who knows of or has reasonable grounds to suspect tampering with an approved intelligent transport system disclosing that knowledge or suspicion or information from which that knowledge or suspicion could be reasonably inferred. Disclosure of such matters can only be made to the Regulator or TCA, unless such disclosure is authorised under another law. A maximum penalty of $6,000 applies for noncompliance.

Subsection (2) prohibits an auditor who has reported to the Regulator or TCA under section 452 of apparent or suspected tampering from disclosing that the report has been made or information from it could be reasonably inferred that the report has been made. Disclosure of such matters can only be made to the Regulator or TCA, unless such disclosure is authorised under another law. A maximum penalty of $6,000 applies for noncompliance.

Part 7—Other provisions

454—Offence to tamper with approved intelligent transport system

Section 454 creates an offence, in subsection (1) to tamper with an intelligent transport system with the intention of causing it to fail to generate, record, store, display, analyse, transmit or report intelligent access information or to fail to do so correctly. A penalty of $10,000 applies.

Subsection (2) creates an offence to engage in the same conduct when the person is negligent or reckless rather than intentional in that conduct. A maximum penalty of $8,000 applies.

Subsection (3) provides an extended definition of fail for the purposes of this section.

455—Regulator may issue intelligent access identifiers

Section 455 empowers the Regulator to issue a distinguishing number (which may consist of numbers or letters or a combination of both) for an intelligent access vehicle to identify it as such a vehicle. This is called an intelligent access identifier. An entity that knows the identifier and is able to associate it with a particular individual must treat it as personal information for the purposes of this Chapter or a law relating to privacy.

Chapter 8—Accreditation

Part 1—Preliminary

456—Purpose of Chapter 8

Section 456 states that the purpose of accreditation under this Law is to allow operators of heavy vehicles who implement management systems that achieve the objectives of particular aspects of this Law to be subject to alternative requirements under this Law in relation to those aspects.

457—Definitions for Chapter 8

Section 457 provides definitions for terms used in Chapter 8.

Part 2—Grant of heavy vehicle accreditation

458—Regulator's power to grant heavy vehicle accreditation

Section 458 empowers the Regulator to grant an operator of a heavy vehicle the following types of accreditation for a period of not more than 3 years:

maintenance management accreditation, exempting the vehicle from the requirement to be inspected before registration of the vehicle may be renewed under this Law;

mass management accreditation, allowing the vehicle to operate at concessional mass limits or higher mass limits;

BFM accreditation, allowing drivers of the vehicle to operate under BFM hours (which are defined in section 253);

AFM accreditation, allowing drivers of the vehicle to operate under AFM hours (which are defined in section 257).

459—Application for heavy vehicle accreditation

Section 459 prescribes formal requirements for making an application for heavy vehicle accreditation.

Subsection (2) deals with the form of the application and what must accompany it. This includes a statement that the applicant has a relevant management system (defined in section 457 to be one relevant to the type of accreditation sought) for ensuring compliance with the relevant standards and business rules (defined in section 457 to be those relevant to the type of accreditation sought, which are approved by the responsible Ministers under section 654) and a statement from an approved auditor (being a person defined in section 457 to be an auditor of a class approved by the responsible Ministers under section 654) that the applicant's management system will ensure compliance with those standards and business rules.

Subsection (3) requires the application to be accompanied by a declaration specifying various matters relevant to whether the applicant or an associate of the applicant has been convicted of specified offences and whether the applicant or an associate of the applicant has had their accreditation amended, suspended or cancelled. The term 'associate' is defined in section 5 so as to include a number of individuals and corporations having a personal, employment or business relationship with the applicant.

Subsection (4) clarifies that the declaration does not need to include information about an amended, suspended or cancelled accreditation that occurred because of a conviction that the operator is not required to declare.

Subsection (5) empowers the Regulator to require additional information or verify information by statutory declaration.

460—Obtaining criminal history information about applicant

Section 460 provides for the obtaining of criminal history information about an application for heavy vehicle accreditation. The Regulator may, by notice, request an applicant for written consent to obtain the applicant's prescribed criminal history (defined in subsection (6) as information about any conviction of the applicant within the previous 5 years of an offence against this Law or a previous corresponding law, as defined in section 5, or an offence involving fraud or dishonesty punishable by imprisonment of 6 months or more). If the consent is not forthcoming or is withdrawn, the application is taken to have been withdrawn. If the written consent is given, the Regulator may request a written report from a police commissioner and such request may include specified particulars. The police commissioner must give the requested report to the Regulator.

461—Restriction on grant of heavy vehicle accreditation

Section 461 limits the Regulator's power to grant a heavy vehicle accreditation.

Under subsection (1) the Regulator may only grant the accreditation if satisfied as to the applicant's systems for operating under the accreditation, ability to comply with the Law and suitability for accreditation. Where the application is for AFM accreditation, the Regulator must also be satisfied that the applicant's AFM fatigue management system and the maximum work times and minimum rest times that are to apply would safely manage the risk of driver fatigue if complied with, that the applicant and drivers operating under the accreditation are likely to consistently and effectively follow the driver fatigue management practices, and the drivers are likely to comply with the maximum work and minimum rest times.

Subsection (2) deals with further matters that the Regulator must be satisfied of or have regard to in setting the maximum work times and minimum rest times that are to apply to drivers operating under AFM accreditation.

Subsection (3) makes it clear that, for an AFM accreditation, the Regulator may set maximum work and minimum rest times different from those sought by the applicant.

Subsection (4)(a) specifies matters the Regulator may consider in deciding an application and subsection (4)(b) requires the Regulator to have regard to the approved guidelines (defined in section 5 as guidelines approved by responsible Ministers under section 653) for granting heavy vehicle accreditations under this Law.

462—Conditions of heavy vehicle accreditation

Section 462 states that a heavy vehicle accreditation is subject to the condition that the applicant must comply with the relevant standards and business rules (approved by the responsible Ministers) and may be subject to such other conditions as the Regulator may impose.

463—Period for which heavy vehicle accreditation applies

Section 463 provides that the heavy vehicle accreditation may be for such period as is stated in the accreditation certificate (issued by the Regulator under section 464), which may be less than the period the applicant sought.

464—Accreditation certificate for heavy vehicle accreditation etc

Section 464 states that if a heavy vehicle accreditation is granted, the Regulator must give the applicant an accreditation certificate containing the information set out in subsection (2). Where the accreditation is subject to conditions not sought by the applicant, granted for a period less than the period the applicant sought, or for AFM accreditation sets maximum work and minimum rest times different from those sought by the applicant, the Regulator must also give the applicant an information notice. 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.

465—Refusal of application for heavy vehicle accreditation

Section 465 states that if the Regulator refuses an application, an information notice must be given 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.

466—Accreditation labels for maintenance management accreditation and mass management accreditation

Section 466 deals with maintenance management accreditation and mass management accreditation. It states that the Regulator must issue an accreditation label for each vehicle currently operating under the relevant accreditation. The requirement of a label for a participating vehicle is an important aid to enforcement because it enables ready recognition of the vehicles that are covered by the relevant accreditation. It also offers significant advantage to operators and drivers in that those vehicles that have an accreditation label attached should not be subjected to the delays associated with maintenance and mass checks that might otherwise occur.

Part 3—Operating under heavy vehicle accreditation

467—Compliance with conditions of BFM accreditation or AFM accreditation

Section 467 requires the holder of a BFM accreditation or AFM accreditation to comply with the conditions of the accreditation. A maximum penalty of $6,000 applies.

468—Driver must carry accreditation details

Section 468 imposes obligations in relation to the driver carrying accreditation details.

Subsection (1) requires the driver of a vehicle operating under a heavy vehicle accreditation to keep in the driver's possession a copy of the accreditation certificate and a document signed by the operator stating that the driver is operating under the accreditation, has been inducted into the operator's relevant management system and meets the requirements applying to drivers under the accreditation (if any). In the case of a driver operating under AFM accreditation, this also includes a document stating the AFM hours (defined in section 257) applying under the accreditation. A maximum penalty of $3,000 applies.

Subsection (3) provides that if an offence against subsection (1) is committed involving the driver, the operator commits an offence, to which a like penalty applies.

Extending liability for the driver's noncompliance to the operator is to encourage those who obtain accreditation benefits to ensure that the accreditation documentation is with the vehicle at all times. This will assist compliance, by ensuring drivers are aware of the accreditation conditions and enabling authorised officers to readily ascertain whether a driver or a vehicle are operating under a relevant accreditation and the conditions applying to the accreditation.

When an operator 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, the operator does have the benefit of the reasonable steps defence. That defence is set out in Divisions 1 and 2 of Chapter 10 Part 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.

Subsections (6) specifies certain matters that are irrelevant in a proceeding and matters that constitute evidence in a proceeding against the operator. 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 the operator;

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;

evidence of the details in an infringement notice issued for the offence is evidence 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.

469—Driver must return particular documents if stops operating under accreditation etc

Section 469 states that where a driver stops operating under a heavy vehicle accreditation or ceases to meet its requirements, the driver must return to the operator, as soon as reasonably practicable, the documentation which the operator provided under section 468(1). A maximum penalty of $4,000 applies.

470—General requirements applying to operator with heavy vehicle accreditation

Section 470 imposes obligations on an operator who holds a heavy vehicle accreditation.

Subsection (1) requires the operator to ensure that each driver who operates under the accreditation has been inducted into the operator's relevant management system and meets at all times the requirements of the accreditation applying to drivers. A maximum penalty of $6,000 applies.

Where the accreditation is an AFM accreditation, subsection (3) also requires the operator to ensure that each driver is informed of the AFM hours (defined in section 257) applying under the accreditation. A maximum penalty of $6,000 applies.

Subsection (4) requires an operator who is the holder of:

AFM or BFM accreditation to keep a list of the drivers operating under the accreditation; and

mass management accreditation or maintenance management accreditation to keep a current list of heavy vehicles to which the operator's accreditation relates.

A maximum penalty of $6,000 applies.

Subsection (5) requires the accreditation certificate to be kept while the accreditation is current and the other documents for at least 3 years after their creation. A maximum penalty of $6,000 applies.

Subsection (6) requires that a document must be kept in a way that ensures it is readily accessible by an authorised officer at the place where it is kept, and reasonably capable of being understood by the authorised officer, and capable of being used as evidence. A maximum penalty of $3,000 applies.

If required under subsection (7) by the Regulator by notice to do so, an operator must provide the Regulator with a copy of the list referred to in subsection (4)(b) or (c), together with details of any change to the list, unless the operator has a reasonable excuse. A maximum penalty of $3,000 applies.

Subsection (9) clarifies that the obligations under subsections (4) to (6) do not apply to an accreditation certificate where it is already in the Regulator's possession (unless the Regulator has returned it or given the operator a replacement accreditation certificate) or where it has been defaced, destroyed, lost or stolen (unless the Regulator has given the operator a replacement accreditation certificate).

471—Operator must give notice of amendment, suspension or ending of heavy vehicle accreditation

Section 471 applies where a heavy vehicle accreditation is amended or suspended or is no longer held by an operator.

Subsection (2) requires the operator, as soon as practicable, to notify affected drivers and schedulers. A maximum penalty of $6,000 applies.

A driver who is given such a notice must, as soon as is reasonably practicable, return to the operator any document relevant to the notice given to the driver for the purposes of section 468(1). A maximum penalty of $4,000 applies. Section 468(1) relates to a copy of the accreditation certificate and a document signed by the operator stating that the driver is operating under the accreditation, has been inducted into the operator's relevant management system and meets the requirements applying to drivers under the accreditation (if any). In the case of a driver operating under AFM accreditation, this also includes a document stating the AFM hours (defined in section 257) applying under the accreditation.

Part 4—Amendment or cancellation of heavy vehicle accreditation

472—Amendment or cancellation of heavy vehicle accreditation on application

Section 472 authorises applications to the Regulator for amendment or cancellation of a heavy vehicle accreditation. It includes what must be in an application, when an application must be decided, provisions dealing with the replacement of an accreditation certificate affected by amendment to the accreditation and information to be provided to an applicant about the Regulator's decision.

473—Amendment, suspension or cancellation of heavy vehicle accreditation on Regulator's initiative

Section 473 deals with the amendment, suspension or cancellation of a heavy vehicle accreditation on the Regulator's initiative. Subsection (1) specifies the grounds for the Regulator to amend, suspend or cancel the accreditation. Subsections (2) to (5) deal with the procedures to be followed, including notification requirements and giving the holder an opportunity to make written representations.

474—Immediate suspension of heavy vehicle accreditation

Section 474 empowers the Regulator to immediately suspend a heavy vehicle accreditation where it considers that a ground exists to suspend or cancel an accreditation and believes that it is necessary to immediately suspend the accreditation to prevent or minimise serious harm to public safety (which is defined in section 5).

475—Minor amendment of heavy vehicle accreditation

Section 475 allows minor amendments of a formal or clerical nature or that do not adversely affect the holder's interest. The Regulator must notify the holder of such amendments.

Part 5—Other provisions about heavy vehicle accreditations

476—Return of accreditation certificate

Section 476 states that where the Regulator, by notice, requires a holder of a heavy vehicle accreditation to return an accreditation certificate following amendment, suspension or cancellation of the accreditation, the holder must comply. A maximum penalty of $6,000 applies.

If the accreditation is amended, subsection (3) requires the Regulator to issue a replacement accreditation certificate. Annexure subsection (4) allows the Regulator to retain an accreditation certificate for the duration of a suspension but requires that it, or a replacement certificate if the accreditation has also been amended, be issued as soon as practicable thereafter.

477—Replacement of defaced etc accreditation certificate

Section 477 provides that where an accreditation certificate has been defaced, destroyed, lost or stolen, the holder must apply to the Regulator as soon as reasonably practicable after becoming aware of the matter, for a replacement accreditation certificate. A maximum penalty of $4,000 applies. The Regulator must issue a replacement certificate as soon as practicable, unless the Regulator is not satisfied that the original has been defaced, destroyed, lost or stolen. In that case, the Regulator must give the holder an information notice. 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.

478—Offences relating to auditors

Section 478 creates various offences relating to approved auditors, each of which has a maximum penalty of $10,000. An approved auditor is defined in section 457 to be an auditor of a class approved by the responsible Ministers under section 654.

Subsection (1) provides that a person must not falsely represent that the person is an approved auditor.

Subsection (2) prohibits a person from falsely representing that the person is an auditor of a particular approved class. For example, an auditor approved for the purposes of mass management accreditation is prohibited from representing the person was approved for the purpose of AFM accreditation, when no such approval is held.

Subsection (3) provides that an approved auditor must not falsely represent that the person has audited an operator's relevant management system. Under subsection 459(2), an application for heavy vehicle accreditation must be accompanied by a statement from an approved auditor that the auditor considers the applicant's relevant management system (defined in section 457 to be one relevant to the type of accreditation sought) will ensure compliance with the relevant standards and business rules (defined in section 457 to be those relevant to the type of accreditation sought, which are approved by the responsible Ministers under section 654).

Subsection (4) provides that a person must not falsely represent the opinion of an approved auditor as to an operator's relevant management system.

Subsection (5) inserts a new definition of approved class, to support subsection (2).

Chapter 9—Enforcement

Part 1—General matters about authorised officers

Division 1—Functions

479—Functions of authorised officers

Section 479 sets out the functions of authorised officers to monitor, investigate and enforce compliance with the Law, to monitor or investigate whether an occasion has arisen for the exercise of powers and to facilitate the exercise of powers under the Law.

Division 2—Appointment

480—Application of Division 2

Section 480 clarifies that Division 2 does not apply to an authorised officer who is a police officer. The appointment, qualifications, conditions of appointment, term of office and resignation of police officers is covered by other laws.

481—Appointment and qualifications

Section 481 authorises the Regulator to appoint authorised officers from specified classes of individuals, provided that the Regulator is satisfied that they have the necessary expertise or experience.

482—Appointment conditions and limit on powers

Section 482 empowers an authorised officer's appointment to be subject to conditions (which may restrict the officer's powers) set out in the instrument of appointment, a notice signed by the Regulator given to the officer or the regulations.

483—When office ends

Section 483 provides that an officer's appointment ends if the term for which the appointment was made expires, a condition imposed on the appointment has the effect of ending it or the officer's resignation takes effect under section 484.

484—Resignation

Section 484 specifies that an authorised officer may resign by giving a signed notice to the Regulator. However, subsection (2) clarifies that, where the holding of the office of authorised officer is a condition of the officer holding another office, the person cannot resign as an authorised officer without also resigning the other office. If, for example, a person was appointed as an authorised officer because of his or her duties as a specified class of employee of a statutory body, it would not be competent for the person to resign only as an authorised officer without also resigning as an employee of that specified class.

Division 3—Identity cards

485—Application of Division 3

Section 485 clarifies that Division 3 does not apply to an authorised officer who is a police officer. Police officers are governed by other laws regulating the issue of, production or display of and return of identity cards.

486—Issue of identity card

Section 486 requires the Regulator to issue an identity card to each authorised officer. Subsection (2) deals with the information to be shown on the card. The requirements include a recent photo of the officer and an identifying number. The officer's name does not have to be included, although this will sometimes be evident from the signature, which does need to be included. Subsection (3) allows for a single identity card to be issued for this Law and other purposes.

487—Production or display of identity card

Section 487 states that an authorised officer must produce or display the authority card when exercising a power in a person's presence or, if that is not practicable, as soon as reasonably practicable thereafter.

However, subsection (3) makes it clear that the mere entry into specified places does not necessitate the production or display of the card. Those are:

a place entered under subsection 495(1)(b) for monitoring purposes, being a place that is open for carrying on a business, otherwise open for entry or required to be open for inspection; or

a place entered under subsection 497(1)(b) for investigation purposes, being a public place when it is open to the public; or

a place entered under subsection 497(1)(d) for investigation purposes, being a place that is open for carrying on a business, otherwise open for entry or required to be open for inspection.

488—Return of identity card

Section 488 requires a person to return his or her identity card to the Regulator within 21 days of ceasing to hold office as an authorised officer, unless the person has a reasonable excuse. A maximum penalty of $3,000 applies.

Division 4—Miscellaneous provisions

489—References to exercise of powers

Section 489 states that where a provision in Chapter 9 refers to the exercise of a power by an authorised officer, and does not refer to a specific power, the reference extends to any power exercised under the Chapter or under a warrant, to the extent the powers are relevant.

490—Reference to document includes reference to reproduction from electronic document

Section 490 specifies that a reference to documents in Chapter 9 includes an image or writing produced from and electronic document and not yet produced but capable of being produced from an electronic document.

491—Use of force against persons

Section 491 clarifies that the National Law does not authorise the use of force against any person by an authorised officer, or a person assisting them or acting under their direction in the exercise or purported exercise of a function under the National Law.

This restriction extends to warrants issued under the national Law. An exception is allowed where the application Act for a jurisdiction authorises the use of force against a person by a police officer. This exception is necessary to ensure the existing powers of police officers are not inadvertently constrained as a consequence of enactment of the National Law.

492—Use of force against property

Section 492 clarifies the circumstances in which an authorised officer may use force against property in the exercise of a function under the Law.

The use of force is authorised under various sections of the National Law. For example, in section 498(6) an authorised officer may use force that is reasonably necessary for gaining entry to places mentioned in section 498(2)(c), where the officer reasonably believes there may be evidence at the place of an offence against the National Law that may be concealed or destroyed unless the place is immediately entered and searched. Section 492 provides for this and other sections where the use of force against property is authorised, it is a condition of that use that the use of force is authorised under the application Act. This approach reflects the divergent and irreconcilable law and policy governing this issue in the states and territories.

The restriction does not extend to police officers, who may use force in the circumstances provided in the National Law (and in any other law of the jurisdiction) without further legislative reference.

Subsection (4) provides that the application Act of a jurisdiction may include additional circumstances in which an authorised officer, whether or not a police officer, may use force against property in the exercise or purported exercise of a function under this Chapter. This response is demanded by the conflicting policies applying to these matters in the states and territories.

493—Exercise of functions in relation to light vehicles

Section 493 makes it clear the powers provided under this Chapter are exercisable in relation to light vehicles only where the light vehicle is a pilot vehicle or escort vehicle, or where the exercise is necessary to determine whether the vehicle is a heavy vehicle.

Part 2—Powers in relation to places

Division 1—Preliminary

494—Definitions for Chapter 9 Part 2

Section 494 provides definitions of the terms 'place of business' and 'relevant place'.

A place of business is the place of a responsible person for a heavy vehicle (as defined in section 5) from which business is carried on, a place occupied in connection with the business or the registered office of the corporation if the person is a body corporate.

A relevant place is a place of business (as defined in this section), the relevant garage address of a heavy vehicle, the driver's base (as defined in section 5) or a place where records required to kept under this Law or a heavy vehicle accreditation (as defined in section 5) are located or are required to be located under this Law or a heavy vehicle accreditation. However, it does not include a place used predominantly for residential purposes.

Subsection (2) has the effect, in combination with subsection (1), that the various provisions of the Act that authorise entry of an authorised officer to relevant places to exercise powers, may extend to premises where temporary or casual sleeping or other accommodation is provided there for drivers of heavy vehicles.

Division 2—Entry of relevant places for monitoring purposes

495—Power to enter relevant place

Section 495 enables an authorised officer to enter a relevant place (as defined in section 494) for monitoring purposes. That term is defined in section 5 to mean finding out whether the Law is being complied with.

The officer may enter with the occupier's consent given in accordance with Division 4 (which makes further provision for entry by consent), provided that the officer complies with section 503, which outlines what an officer must tell a person when seeking consent. Subsection (2) provides that, if the power of entry was by consent, it is subject to any conditions attached to that consent. Further, the consent may be withdrawn, at which point the power ceases.

An officer may also enter a relevant place which is open for business, otherwise open for entry or required by the Law to be open for inspection. Subsection (3) specifies that, if such a place is unattended, the officer requires consent or a warrant to enter, unless the officer reasonably believes the place is attended. An authorised officer who enters a place under the belief that it is attended, must leave immediately upon determining that it is unattended.

An officer may not use force to gain entry, but may open unlocked doors, panels and things at a place to gain entry.

496—General powers after entering relevant place

Section 496 states that, having entered a relevant place under this Division, an authorised officer may, for monitoring purposes (as defined in section 5), do the things set out in this section. These include power to inspect the place, a vehicle at the place or a relevant document (as defined in this section) at the place, to copy or take an extract from such a document or from a relevant device (as defined in this section) at the place, including using a photocopier at the place free of charge, and exercising powers in relation to a heavy vehicle at the place which the officer by exercise under section 520 (which makes further provision for the inspection of heavy vehicles for monitoring purposes).

The officer may take onto the place and use any persons, equipment, materials, vehicles or other things to assist the officer.

The officer may open unlocked doors, panels or things and move (but not take away) unlocked or unsealed things.

Subsection (1)(d) recognises that an officer may need to take away something containing a relevant electronic document (as defined in this section) in order to produce an image or writing from that document where it is not practicable to do this at the place which has been entered. In that event, subsection (4) provides that the image or writing must then be produced and the thing returned as soon as practicable.

Where entry is under consent, the officer's powers are subject to the consent conditions.

The officer may not use force to exercise a power under this section.

Division 3—Entry of places for investigation purposes

497—General power to enter places

Section 497 deals with entry into places for investigation purposes. The term 'investigation purposes' is defined in section 5 to mean investigating a contravention or suspected contravention of the Law.

The places that may be entered are wider than those provided by section 495, dealing with power to enter for monitoring purposes. In addition to those places, an authorised officer may enter a public place when it is open to the public, entry is under warrant and, where there is an occupier at the place, section 510 (dealing with procedures for entry under warrant if there is an occupier at the place) has been complied with, and where entry is authorised under section 498 or section 499 (which deal respectively with entry if evidence is reasonably suspected to be at the place and entry where there has been death, injury or property damage).

Subsection (2) clarifies that the requisite belief that triggers the investigation powers in this section can be formed during, after or independently of the monitoring of premises under Division 2 (Entry of relevant places for monitoring purposes).

As with section 495(2), subsection (3) provides that, if the power of entry was by consent, it is subject to any conditions attached to that consent. Further, the consent may be withdrawn, at which point the power ceases.

Subsection (4) provides that, where entry is by warrant, force may be used if reasonably necessary and the entry is subject to the terms of the warrant. If there is no warrant, subsection (8) makes it clear that force cannot be used.

Subsection (5) specifies that an officer may not, without consent or a warrant, enter a relevant place which is open for business, otherwise open for entry or required by the Law to be open for inspection where such a place is unattended, unless the officer reasonably believes the place is attended. Also, an authorised officer may not enter such a place, or part of a place, used predominantly for residential purposes.

Subsection (6) provides that an authorised officer who enters a place under the belief that it is attended, must leave immediately upon determining that it is unattended.

The officer may open unlocked doors, panels or things to gain entry.

498—Power to enter a place if evidence suspected to be at the place

Section 498 enables an authorised officer to enter a specified place in the circumstances where the officer reasonably believes that either a heavy vehicle is or has been at a place or transport documentation or journey documentation is at the place and that there may be evidence there of an offence against the Law which may be concealed or destroyed unless the place is immediately entered and searched. The terms 'transport documentation' and 'journey documentation' are defined in section 5 and cover a variety of documents directly or indirectly associated with the transport task.

Where those circumstances exist, subsection (2) provides that the authorised officer may enter the place if it is open for business, is otherwise open for entry or is required to be open for inspection under the Law.

However, subsection (3) denies the power of entry if the place is unattended (unless the officer reasonably believes the place is unattended) or if it is a place or part of a place used predominantly for residential purposes.

Subsection (4) provides that an authorised officer who enters a place under the belief that it is attended, must leave immediately upon determining that it is unattended.

The officer may open unlocked doors, panels or things to gain entry.

An officer may not use force, except if it is reasonably necessary to gain entry to a place that is required by the Law to be open for inspection. Force may not be used against a person.

499—Power to enter particular places if incident involving death, injury or damage

Section 499 sets out specified circumstances when an authorised officer may enter a place without the occupier's consent or a warrant.

Subsection (1) provides that the officer must reasonably believe that all of the following apply—

(a) an incident involving the death of, or injury to, a person or damage to property involves or may have involved a heavy vehicle;

(b) the incident may have involved an offence against this Law;

(c) there is a connection of a kind described in subsection (2) between the place and the heavy vehicle (dealing with the garage address of the vehicle or a vehicle in a combination, the vehicle being located or having been located at the place within the past 72 hours, or the place being otherwise directly or indirectly connected with the vehicle or any part of its equipment or load);

(d) there may be at the place evidence of the offence against this Law that may be concealed or destroyed if the place is not immediately entered and searched.

Subsection (3) restricts the power to enter a place under this section in relation to an incident that involves the death, or injury to, to an authorised officer who is a police officer.

Subsection (4) denies the power of entry if premises are unattended (unless the officer reasonably believes the place is unattended) or if it is a place or part of a place used predominantly for residential purposes.

Subsection (5) provides that an authorised officer who enters a place under the belief that it is attended, must leave immediately upon determining that it is unattended.

The officer may open unlocked doors, panels or things to gain entry.

The officer may not use force under this provision. If force is required, other powers or a warrant must be relied on.

500—General powers after entering a place

Section 500 sets out the powers that an authorised officer may exercise after having entered a place for investigation powers (as defined in section 5). It applies in respect of all the places entered under subsection (1), except for a public place.

The powers are broader than the powers that may be exercised under section 496 when a place is entered for monitoring purposes. They include the power to search the place or a vehicle at the place, to inspect, examine or film any part of the place or anything at the place, to take a thing or sample for examination, to place identifying marks, and to take extracts or make copies or access and download information from a device or other thing at the place. For a heavy vehicle at the place, they include all the powers an officer may exercise under Chapter 9 Part 3 (which set out an extensive range of powers in relation to heavy vehicles).

The officer may take onto the place and use any persons, equipment, materials, vehicles or other things to assist the officer.

The officer may open unlocked doors, panels or things and move (but not take away) unlocked or unsealed things. Force may only be used if the officer has entered under a warrant but only to the extent that it is reasonably necessary.

Subsections (3) and (4) deal with the situation where a thing or sample is taken for examination. They include requirements for a receipt to be given or to be left where it is not practicable to give a receipt.

Subsection (5) allows the use of photocopying equipment at the place free of charge in order to copy a document at the place.

Subsections (6) and (7) deal with the situation where a document or thing containing an electronic document has been taken from the place for copying the document or for producing an image or writing from the electronic document. They require the return of those things as soon as practicable after they have been removed.

Subsection (8) specifies that where entry is under consent, the officer's powers are subject to the consent conditions and where entry is under warrant, the officer's powers are subject to the terms of the warrant.

Subsection (9) clarifies that the requisite belief that triggers the investigation powers in this section can be formed during or after or independently of the monitoring of premises under Division 2 (Entry of relevant places for monitoring purposes).

Subsection (10) clarifies that this section does not include a power to search a person.

Division 4—Procedure for entry by consent

501—Application of Division 4

Section 501 states that Division 4 applies where an authorised officer seeks consent to enter a place under section 495(1)(a) or section 497(1)(a), dealing respectively with entry for monitoring purposes and entry for investigation purposes.

502—Incidental entry to ask for access

Section 502 allows for incidental entry, without consent or a warrant, to enable the authorised officer to contact the occupier for the purpose of seeking consent.

503—Matters authorised officer must tell occupier

Section 503 requires that before asking for the consent, the authorised officer must explain why entry is desired, the powers intended to be exercised and the fact that consent may be refused or given subject to conditions and can be withdrawn at any time.

504—Consent acknowledgement

Section 504 sets out requirements for a consent acknowledgment to be signed by an occupant. It includes what the acknowledgement must contain and giving a copy of the signed acknowledgment to the occupier immediately or as soon as practicable.

Subsection (5) ensures that noncompliance by an authorised officer with the requirements in subsection (2) does not automatically invalidate the exercise of the powers (and by extension compromise any compliance action undertaken as a result of the exercise of the powers). To do otherwise may allow a defendant to establish a defence based on the officer's failure to accurately stipulate the power, when the power was available and otherwise legitimately exercised. To prevent injustice, subsections (5)(b) and (6) have been incorporated. Subsection (5) applies where the acknowledgement states some but not all the powers exercised or intended to be exercised to achieve the purpose of the entry and allows the court to determine the validity in any subsequent proceedings.

Subsection (6) provides that, if a question arises in a proceeding about whether the occupier consented and a consent acknowledgement is not produced, the party relying on the consent will need to prove the occupier consented.

505—Procedure for entry with consent

Section 505 establishes the requirements for an authorised officer intending to ask the occupier for consent to enter a place under this Division (otherwise than under section 502). Before asking for consent, an authorised officer other than a police officer, or who is a police officer not in uniform, must produce documentary evidence establishing the officer's appointment under the Act or as a police officer.

Division 5—Entry under warrant

506—Application for warrant

Section 506 provides for an authorised officer to apply to an authorised warrant official (defined in section 5 to mean an entity declared as such an official for the purposes of the Law) for a warrant for a place.

507—Issue of warrant

Section 507 empowers an authorised warrant official to issue a warrant, but only if satisfied there are reasonable grounds for suspecting that there is (or will in the next 72 hours be) at the place something that may constitute evidence of an offence against the Law. Subsection (2) sets out what must appear in the warrant.

508—Application by electronic communication and duplicate warrant

Section 508 provides for applications for warrants and their issue by electronic communication, rather than the procedures under sections 506 and 507, where the matter is urgent or there are other special circumstances, such as the officer's remote location, that make it necessary and appropriate.

509—Defect in relation to a warrant

Section 509 preserves a warrant from invalidity by reason of insubstantial defects in it or the procedures attending its application or issue.

510—Procedure for entry

Section 510 sets out the procedures to be followed by an authorised officer when entering under a warrant. An officer must do or make a reasonable attempt to identify himself or herself, give a copy of the warrant to a person at the place, tell the person that the officer is permitted by the warrant to enter the place and give the person opportunity to allow immediate entry without the use of force.

However, subsection (3) provides that these things do not have to be done where the officer reasonably believes that entry to the place is required to ensure that the execution of the warrant is not frustrated.

Part 3—Powers in relation to heavy vehicles

Division 1—Preliminary

511—Application of Chapter 9 Part 3

Section 511 specifies that Chapter 9 Part 3 applies to a heavy vehicle on a road, in or at a public place, in or at a place owned or occupied by a road authority or by another public authority or in or at a place to which entry is gained by an authorised officer under Chapter 9 Part 2 (which deals with entry to specified places for monitoring or investigation purposes). Unless the contrary is stated in Chapter 9 Part 3, it has no application to heavy vehicles in other places, such as private land which is not entered by consent or by a warrant under Chapter 9 Part 2.

512—Persons who are drivers for this Part

Section 512 extends the definition of driver (defined in section 5), for the purposes of Chapter 9 Part 3, so as to include a person in, or in the vicinity of, the vehicle whom an authorised officer who is present at the scene reasonably believes is the vehicle's driver.

Division 2—Stopping, not moving or not interfering with heavy vehicle etc

513—Direction to stop heavy vehicle to enable exercise of other powers

Section 513 empowers an authorised officer to direct the driver of a heavy vehicle to stop the vehicle so that the officer may exercise a power under this Law, such as a power to enter and inspect under section 520 or to enter and search under section 521.

It sets out how a direction may be given (orally or in any other way, such as a sign or electronic or other signal) and that the direction can be to stop immediately or at a place indicated.

It is an offence to not comply with the direction without a reasonable excuse. A maximum penalty of $6,000 applies.

Section 513 also sets out identification requirements for the officer to follow when directing the vehicle to stop and once the vehicle has stopped.

514—Direction not to move or interfere with heavy vehicle etc to enable exercise of other powers

Section 514 empowers an authorised officer to direct the driver of a heavy vehicle or any other person not to move the vehicle or to interfere with the vehicle or its equipment or load, so that the officer may exercise a power under this Law.

It sets out how a direction may be given (orally or in any other way, such as a sign or electronic or other signal).

It is an offence to not comply with the direction without a reasonable excuse. A maximum penalty of $6,000 applies.

Division 3—Moving heavy vehicle

515—Definition for Division 3

Section 515 defines the concept of a vehicle being unattended for the purposes of Division 3. It means that there is no-one in or near the vehicle who appears to be the driver. However, it is also extended to include cases where, although a person is in or near the vehicle who appears to be driver, that person is unwilling or not qualified (as defined in section 5) or not fit (as defined in section 5) or not authorised by the operator of the vehicle to drive it or has been directed to leave the vehicle by an authorised officer under section 524.

516—Direction to move heavy vehicle to enable exercise of other powers

Section 516 empowers an authorised officer to direct the driver or operator of a heavy vehicle to move the vehicle or have it moved to a stated reasonable place not more than 30 km away or some other place on its forward journey, so that the officer may exercise a power under this Law.

It sets out how a direction may be given (orally or in any other way, such as a sign or electronic or other signal).

It is an offence to not comply with the direction without a reasonable excuse. A maximum penalty of $6,000 applies.

Subsection (4) provides an example of a reasonable excuse for not complying with a direction. It would be a defence for the person to prove it was not possible to move the vehicle because it was broken down for a physical reason beyond the person's control and the breakdown could not readily be rectified to enable the direction to be complied within in a reasonable time. However, subsection (4) does not limit what might be a reasonable excuse for not complying with a direction.

517—Direction to move heavy vehicle if causing harm etc

Section 517 deals with the situation where an authorised officer reasonably believes that a stationary heavy vehicle is causing or creating a risk of serious harm to public safety (defined in section 5), the environment or road infrastructure (defined in section 5) or is obstructing or is likely to obstruct traffic. The officer may direct the driver or operator to move the vehicle or have it moved or to do or have something else done in order to avoid the harm or obstruction.

It sets out how a direction may be given (orally or in any other way, such as a sign or electronic or other signal for the driver and by electronic communication for the operator).

It is an offence to not comply with the direction without a reasonable excuse. A maximum penalty of $6,000 applies.

Subsection (5) provides an example of a reasonable excuse for not complying with a direction. It would be a defence for the person to prove it was not possible to move the vehicle because it was broken down for a physical reason beyond the person's control and the breakdown could not readily be rectified to enable the direction to be complied within in a reasonable time. However, subsection (5) does not limit what might be a reasonable excuse for not complying with a direction.

518—Moving unattended heavy vehicle on road to exercise another power

Section 518 provides that where an authorised officer reasonably believes that a vehicle is unattended (as defined in section 515) and that it is reasonably necessary for a vehicle to be moved in order for the officer to exercise a power that he or she intends to exercise under the Law, the officer may move the vehicle or authorise somebody else to do so. However, neither the officer nor the other person may move the vehicle if not qualified (as defined in section 5) or not fit (as defined in section 5) to drive it.

The officer or assistant may open unlocked doors and panels and things in the vehicle and may use such force as is reasonably necessary but may not use force against a person.

519—Moving unattended heavy vehicle on road if causing harm etc

Section 519 deals with the situation where an authorised officer reasonably believes that an unattended heavy vehicle is causing or creating an imminent risk of serious harm to public safety (defined in section 5), the environment or road infrastructure (defined in section 5) or is obstructing or is likely to obstruct traffic. The officer may move or authorise somebody else to move the vehicle in order to avoid the harm or obstruction. The officer may do this even if the officer or other person is not qualified (defined in section 5) to drive it, if the officer reasonably believe that nobody else in the vicinity is more capable of driving it and fit and willing to drive it.

The officer or assistant may use such force as is reasonably necessary other than force against a person.

Division 4—Inspecting and searching heavy vehicles

520—Power to enter and inspect heavy vehicles for monitoring purposes

Section 520 empowers an authorised officer to enter and inspect a heavy vehicle for monitoring purposes. That term is defined in section 5 to mean finding out whether the Law is being complied with. The types of things an officer may do include inspecting, examining or filming any part of the vehicle and its equipment or load, inspecting a relevant document (as defined in this section) in the vehicle, copying or taking an extract from such a document or from an electronic relevant document (as defined in this section).

The officer may open unlocked doors, panels or things in or on the vehicle and may move (but not take away) unlocked or unsealed things.

The officer may not use force to exercise a power under this section.

Subsection (2)(f) recognises that an officer may need to take an extract of relevant information (as defined in this section) from a device or other thing in the vehicle in order to produce an image or writing from that document. In that event, subsection (5) provides that the image or writing must be produced and the thing returned to the vehicle as soon as practicable.

521—Power to enter and search heavy vehicle involved, or suspected to be involved, in an offence etc

Section 521 empowers an authorised officer to enter and search a heavy vehicle, using force or help, for investigation purposes. The term 'investigation purposes' is defined in section 5 to mean investigating a contravention or suspected contravention of the Law.

The officer may use this power if he or she reasonably believes that a vehicle is being or has been used to commit an offence against the Law or that the vehicle or something in it may provide evidence of such an offence or that the vehicle has been or may have been involved in an incident involving death, injury or property damage. However, the section does not authorise an authorised officer to exercise a power in relation to an incident that involves the death of, or injury to, a person unless the authorised officer is a police officer.

The powers that the officer may exercise are broader than the powers specified under section 520 when a vehicle is entered for monitoring purposes. They include the power to search, inspect, examine or film any part of the vehicle and its goods, to search for a document, device or other thing in the vehicle and to take a copy of an extract from a document, device or other thing in the vehicle.

The officer may take into or onto the vehicle any persons, equipment or materials to assist the officer.

Subsection (3) recognises that an officer may need to take a document in the vehicle somewhere else to copy it or to take a thing containing an electronic document from the vehicle to produce an image or writing from that document. In that event, subsections (4) and (5) provide that document may be copied and returned and the image or writing must be produced and the thing returned to the vehicle as soon as practicable.

Subsection (6) clarifies that the section does not authorise an authorised officer to exercise a power under this section in relation to an incident that involves the death of, or injury to, a person unless the authorised officer is a police officer.

Subsection (7) clarifies that the power to search under this section does not include a power to search a person.

522—Power to order presentation of heavy vehicles for inspection

Section 522 establishes the power for an authorised officer to order the presentation of a heavy vehicle for inspection. The exercise of the power is limited to circumstances where the officer believes the vehicle has within the previous 30 days been defective, is of a kind used by a driver other than in compliance with the Act, or does not comply with the law. The power is exercisable by the service of a statutory notice on the person in charge of the heavy vehicle, its registered operator, or its owner. The section makes provision for a person to request a change in the place or time of inspection. Failure by the recipient to produce or allow a heavy vehicle to be inspected as required under this section constitutes an offence and is a ground for suspending the registration of the vehicle.

Division 5—Other powers in relation to all heavy vehicles

523—Starting or stopping heavy vehicle engine

Section 523 enables an authorised officer to enter a vehicle and start or stop a vehicle's engine or authorise somebody else to do so to enable the officer to exercise a power under this Law (but not to drive the vehicle). The officer may exercise this power if a power does not comply with a requirement under section 577 to start or stop the engine, or if there is no responsible person for the vehicle (defined in section 5) available or willing to start or stop the engine, or if the officer reasonably believes that there is no-one else in the vicinity who is more capable of starting or stopping the engine and who is fit and willing to do so.

The officer or assistant may use such force as is reasonably necessary other than force against a person.

524—Direction to leave heavy vehicle

Section 524 empowers an authorised officer to direct the driver of a heavy vehicle to vacate the driver's seat, to leave the vehicle or not to occupy the driver's seat or enter the vehicle until permitted by the officer. The officer may also direct anybody accompanying the driver to leave the vehicle or not to enter the vehicle until permitted by the officer.

The officer may exercise this power if:

the driver fails to comply with a direction given under Chapter 9;

the officer reasonably believes that the driver is not qualified (as defined in section 5), fit (as defined in section 5) or authorised by the operator to drive the vehicle so as to comply with the direction;

the authorised officer reasonably believes it would be unsafe to inspect or search a heavy vehicle or any part of it or any part of its equipment or load while the driver occupies the driver's seat or is in the vehicle or another person accompanying the driver is in the vehicle.

A direction may be given orally or in any other way, such as a sign or electronic or other signal.

It is an offence to not comply with the direction without a reasonable excuse. A maximum penalty of $6,000 applies.

When giving the direction, the officer must also give an offence warning unless it is not practicable to do so because of the way the direction is given. The term 'offence warning' is defined in section 5 as a warning that it is an offence not to comply with the direction or requirement, unless the person has a reasonable excuse.

Division 6—Further powers in relation to heavy vehicles concerning heavy vehicle standards

525—Definitions for Division 6

Section 525 defines certain terms used in Division 6.

526—Issue of vehicle defect notice

Section 526 states that if an authorised officer who has inspected a heavy vehicle reasonably believes it to be a defective vehicle and that its use on the road presents a safety risk (defined in section 5), the officer may issue a vehicle defect notice. The term 'defective vehicle' is defined in section 525 to mean a vehicle that contravenes the heavy vehicle standards (defined in section 5) or has a part which is either not functioning or has so deteriorated that it cannot reasonably be relied on to function as intended.

The notice may be a major defect notice or a minor defect notice, the former applying where the safety risk is imminent and serious and the latter applying in the case of other safety risk.

Subsection (3) requires the defect notice to be handed to the driver but, if the driver is not present, it is to be attached to the vehicle.

Where the notice is given to the driver, subsection (4) requires the driver, as soon as practicable, to pass it on to the operator. A maximum penalty of $3,000 applies.

Subsection (5) provides that the operator of a heavy vehicle, that is the subject of a defect notice, may request permission for the vehicle to be used on a road during a period stated in the permission. The request may only be granted where the conditions in subsection (5)(a) to (d) have been met. The permission may be extended under subsection (6) on the same grounds. Subsection (7) stipulates the form of the permission or its extension and empowers the officer to impose reasonable conditions on it.

527—Requirements about vehicle defect notice

Section 527 sets out the contents of a vehicle defect notice, including a statement that the vehicle is a defective heavy vehicle and the details of how it is defective. A major defect notice must include a statement that the vehicle is not to be used on a road other than to move it to a location and in a way stated in the notice. A minor defect notice must include a statement that the vehicle is not to be used on a road after a time stated in the notice unless the defect is rectified.

Subsection (2) empowers an authorised officer to impose conditions the officer considers appropriate for the use of the vehicle on a road on the use of the defective heavy vehicle. The breadth of the conditions that may be imposed is a consequence of the diversity of the particular defect/s that may be involved.

528—Defective vehicle labels

Section 528 states that if a major defect notice is issued, the authorised officer must attach a vehicle defect label to the vehicle. If a minor defect notice is issued, the authorised officer may attach a defective vehicle label to the vehicle. Attaching a defective vehicle label is mandatory for major defect notices but for minor defect notices it is at the discretion of the authorised officer, reflecting existing jurisdictional practice for light and heavy vehicles.

Subsection (3) creates an offence for a person to remove, deface or otherwise interfere with such a label. A maximum penalty of $3,000 applies.

The offence does not apply where the Regulator arranges for the label to be removed following clearance of the notice under section 530(2) or following withdrawal of the notice under subsection 531(4).

529—Using defective heavy vehicles contrary to defect vehicle notice

Section 529 creates an offence for a person to use, or permit to be used, on a road a heavy vehicle in contravention of a vehicle defect notice. A maximum penalty of $3,000 applies.

The inclusion of the phrase 'permit to be used' in section 529 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 not used in breach of a vehicle defect notice.

530—Clearance of vehicle defect notices

Section 530 provides that a vehicle defect notice may be cleared where the Regulator is satisfied that the vehicle is no longer defective or receives from an authorised officer a notice to that effect.

531—Amendment or withdrawal of vehicle defect notices

Section 531 deals with the amendment or withdrawal of a vehicle defect notice. If a major defect notice is withdrawn, the Regulator must arrange for the defective vehicle label to be removed.

If a major defect notice is cleared, the Regulator must arrange for the defective vehicle label to be removed.

Subsection (1) provides that a vehicle defect notice issued in this jurisdiction by an authorised officer who is a police officer may be amended or withdrawn by any authorised officer who is:

a police officer of this jurisdiction;

a police officer of another jurisdiction if the Application Act of this jurisdiction permits this to be done;

a class of authorised officers approved by the Regulator for the purposes of this subsection.

Subsection (2) enables the Regulator to approve a class of authorised officers who may amend or withdraw a vehicle defect notice issued by any other authorised officer who is not a police officer. This is intended to assist in the delivery of services in regional areas, in particular.

Subsections (1) and (2) empower the Regulator and the participating jurisdictions to transparently address potential inconsistencies in the training and capabilities of police officers and other authorised officers in this area.

Division 7—Further powers in relation to heavy vehicles concerning mass, dimension or loading requirements

532—Application of Division 7

Section 532 states that Division 7 applies to all heavy vehicles and not just those subject to directions or requirements given or made under another provision of Chapter 9. The powers in Division 7 assist in the enforcement of the matters regulated under Chapter 4.

533—Powers for minor risk breach of mass, dimension or loading requirement

Section 533 provides that where an authorised officer reasonably believes that a heavy vehicle is subject to a minor risk breach of mass, dimension or loading requirements but not also the subject of a substantial risk breach or severe risk breach, the officer may direct the driver or operator to rectify the stated breaches or to move or cause the vehicle to be moved to a stated place and not thereafter to move it or cause it to be moved until the stated breaches are rectified.

Chapter 4 defines the terms 'dimension requirement', 'loading requirement', 'mass requirement', 'minor risk breach', 'substantial risk breach' and 'severe risk breach'.

Subsection (3) specifies that, if the officer directs the vehicle to be moved to a stated place, it must be a place the officer reasonably believes to be suitable and it must be within a 30 km radius from where the vehicle is located when the direction is given or within a 30 km radius from any point on the vehicle's forward journey.

Subsection (4) provides that an authorised officer may authorise the driver or operator to continue a journey if there has been a minor risk breach of a mass, dimension or loading requirement relating to the vehicle. The section constrains the authorisation to circumstances where the officer has not issued a direction under subsection (2) and reasonably believes the driver or operator is not, or is no longer, subject to a direction for the rectification of the breach.

Subsection (5) requires a direction under subsection (2) to be in writing (and given with or without conditions) but subsection (6) provides for an oral direction if the moving of the vehicle is carried out in the presence or under the supervision of an authorised officer.

It is an offence to not comply with the direction without a reasonable excuse. A maximum penalty of $10,000 applies.

534—Powers for substantial risk breach of mass, dimension or loading requirement

Section 534 specifies that where an authorised officer reasonably believes that a heavy vehicle is subject to a substantial risk breach of mass, dimension or loading requirements but not also the subject of a severe risk breach, the officer must direct the driver or operator not to move the vehicle or cause it to be moved until the stated breaches have been rectified or to move or cause it to be moved to a stated reasonable place and not thereafter to move it or cause it to be moved until the stated breaches are rectified.

Subsection (3) requires the direction to be in writing (and given with or without conditions) but subsection (4) provides for an oral direction if the moving of the vehicle is carried out in the presence or under the supervision of an authorised officer.

It is an offence to not comply with the direction without a reasonable excuse. A maximum penalty of $10,000 applies.

An important distinction between section 533 and section 534 is that, in the former, the officer has a discretion whether or not to give the direction whereas, in the latter, the direction must be given. This is because of the greater seriousness attached to a substantial risk breach and the need to ensure that stated breaches are rectified.

535—Powers for severe risk breach of mass, dimension or loading requirement

Section 535 states that where an authorised officer reasonably believes that a heavy vehicle is subject to a severe risk breach of mass, dimension or loading requirements, the officer must direct the driver or operator not to move the vehicle until the stated breaches are rectified or (if the vehicle poses a risk to public safety, as defined in section 5, or an appreciable risk to the environment, road infrastructure or public amenity, as defined in section 5) to move it or cause it to be moved to the nearest stated safe place (as defined in this section) and not to move it thereafter until the stated breaches have been rectified.

Subsection (3) requires the direction to be in writing (and given with or without conditions) but subsection (4) provides for an oral direction if the moving of the vehicle is carried out in the presence or under the supervision of an authorised officer.

It is an offence to not comply with the direction without a reasonable excuse. A maximum penalty of $10,000 applies.

536—Operation of direction in relation to a combination

Section 536 provides that where a direction is given under this Division, a component vehicle of a combination which does not itself contravene a mass, dimension or loading requirement may be separately driven or moved if it is otherwise lawful for it to be driven or moved and if a condition of the direction does not prevent it.

Division 8—Further powers in relation to fatigue-regulated heavy vehicles

537—Application of Division 8

Section 537 states that Division 8 applies to all fatigue-regulated heavy vehicles and not just those subject to directions or requirements given or made under another provision of Chapter 9. The term 'fatigue-regulated heavy vehicle' is defined in section 7. The powers in Division 8 assist in the enforcement of the matters regulated under Chapter 6.

538—Requiring driver to rest for contravention of maximum work requirement

Section 538 applies where an authorised officer reasonably believes that a driver of a fatigue-regulated heavy vehicle has contravened a maximum work requirement under Chapter 6 and is or may be impaired by fatigue.

Subsection (2) provides that, if the officer reasonably believes the contravention is a critical risk breach or a severe risk breach, the officer must by notice require the driver to immediately rest for a stated period and thereafter to work for a stated shorter time to compensate for the excess period worked.

Subsection (3) provides that, if the officer reasonably believes the contravention is a substantial risk breach or a minor risk breach, the officer may by notice impose the same requirement.

The distinction between subsection (2) and subsection (3) is that, in the former, the officer is under a duty to impose the requirement whereas, in the latter, the officer has a discretion whether or not to impose it. This is because of the greater seriousness attached to a critical risk breach or a severe risk breach and the need to ensure that the driver takes the steps necessary to compensate for the excess period worked.

The terms 'critical risk breach' 'severe risk breach', 'substantial risk breach' and 'minor risk breach' are defined in section 222.

Subsection (4) requires an authorised officer, who has issued a requirement under subsection (2) or (3) for a contravention of a maximum work requirement, to record the details of the requirement in the driver's work diary.

539—Requiring driver to rest for contravention of minimum rest requirement

Section 539 applies where an authorised officer reasonably believes that a driver of a fatigue-regulated heavy vehicle has contravened a minimum rest requirement under Chapter 6 and is or may be impaired by fatigue.

Subsection (2) provides that, if the officer reasonably believes the contravention is a critical risk breach or a severe risk breach, the officer must by notice require the driver to immediately rest for a stated period to compensate for the shortfall in rest and, if the driver has failed to have 1 or more night rest breaks required under a minimum rest requirement, the officer must also direct the driver to take 1 or more night breaks to compensate for the shortfall. The term 'night rest break' is defined in section 5.

Subsection (3) provides that, if the officer reasonably believes the contravention is a substantial risk breach or a minor risk breach, the officer may by notice impose the same requirement. The distinction between subsection (2) and subsection (3) is that, in the former, the officer is under a duty to impose the requirement whereas, in the latter, the officer has a discretion whether or not to impose it. This is because of the greater seriousness attached to a critical risk breach or a severe risk breach and the need to ensure that the driver takes the steps necessary to compensate for the shortfall in rest.

Subsection (4) requires an authorised officer, who has issued a requirement under subsection (2) or (3) for a contravention of a minimum rest requirement, to record the details of the requirement in the driver's work diary.

540—Requiring driver to stop working if impaired by fatigue

Section 540 applies if an authorised officer reasonably believes the driver of a fatigue-regulated heavy vehicle is impaired by fatigue.

The officer may by notice require the driver to immediately stop work and not work again for a stated period. Under subsection (3) this must be a reasonable period having regard to the matters prescribed in the national regulations.

Subsection (4) imposes a requirement on an authorised officer who has issued a requirement under subsection (2)(a) to record the details of the requirement in the driver's work diary.

Where the officer has observed the driver driving in a way the officer believes on reasonable grounds is dangerous, the officer may also by notice require the driver to immediately stop being in control of the vehicle. If such a notice is given, the officer may under subsection (5) authorise somebody else to move the vehicle to a suitable rest place for fatigue-regulated heavy vehicles (as defined in section 5) if that person is qualified and fit to do so.

Subsection (6) authorises the making of regulations to prescribe matters which an officer or a court must or may have regard to in determining whether a driver was impaired by fatigue for the purposes of this section.

541—Requiring driver to stop working if work diary not produced or unreliable

Section 541 empowers an authorised officer by notice to require the driver to immediately stop work and not to work again for a stated period up to 24 hours.

The officer may exercise this power if the officer has asked the driver to produce his or her work diary under section 568 and either the driver has failed to produce the work diary without a reasonable excuse or the driver produces a document the officer reasonably believes is not the work diary the driver is required to keep or the officer reasonably believes that the diary cannot be relied on as an accurate record.

542—Compliance with requirement under this Division

Section 542 creates an offence for a person given a notice under this Division to not comply with the notice, unless the person has a reasonable excuse. A maximum penalty of $10,000 applies.

Subsection (2) empowers an authorised officer who has given a notice under section 538, 539 or 541 to allow deferral of compliance for up to 1 hour if the officer reasonably believes it is necessary to allow the driver to drive to the nearest suitable rest place for fatigue-regulated heavy vehicles (as defined in section 5) and it is reasonably safe to do so or if the officer reasonably believes it is necessary to allow the driver time to attend to or secure the load.

Part 4—Other powers

Division 1—Powers relating to equipment

543—Power to use equipment to access information

Section 543 states that an authorised officer or a person helping the officer may operate equipment at a place or a vehicle entered under Chapter 9 so as to read information held on a storage device such as a disc or tape where it is reasonably believed to be necessary for checking compliance with the Law. However, this can only be done if the person reasonably believes the operation can be carried out without damaging the equipment.

544—Power to use equipment to examine or process a thing

Section 544 provides that an authorised officer or a person helping the officer may operate equipment at a place or a vehicle entered under Chapter 9 to examine or process a thing so as to determine whether it should be seized.

In the case of a heavy vehicle entered under section 521, dealing with the power to enter and search a heavy vehicle for investigation purposes (defined in section 5), the person may operate equipment in the vehicle to examine or process the thing or move it to another place for examination and processing if not practicable to do it where it is found or if the driver gives written consent.

However, these things can only be done if the person reasonably believes the equipment is suitable and the operation can be carried out without damaging the equipment or thing.

Division 2—Seizure and embargo notices

Subdivision 1—Power to seize

545—Seizing evidence at a place that may be entered without consent or warrant

Section 545 states that an authorised officer who enters a place the officer may enter under Chapter 9 without the consent of its occupier and without a warrant may seize a thing at the place if the officer reasonably believes the thing is evidence of an offence against this Law.

546—Seizing evidence at a place that may be entered only with consent or warrant

Section 546 deals with the seizure of things from a place that the authorised officer has entered with the consent of the occupier or under a warrant.

If the officer has entered with the occupier's consent, the officer may seize a thing which he or she reasonably believes is evidence of an offence against the Law and its seizure is consistent with the purpose of entry as explained to the occupier when obtaining consent.

If the officer has entered under a warrant, the officer may seize the evidence for which the warrant was issued.

In addition, the officer may seize anything else at a place entered with the consent of the occupier or under a warrant if the officer reasonably believes the thing is evidence of an offence against the Law and the seizure is necessary to prevent its hiding, loss or destruction or its use to continue or repeat the offence.

547—Seizing evidence in a heavy vehicle entered under section 521

Section 547 authorises seizure from a heavy vehicle entered under section 521 of a thing that the authorised officer reasonably believes is evidence of an offence against the Law. Section 521 deals with the power to enter and search a heavy vehicle for investigation purposes (defined in section 5).

548—Additional seizure power relating to information stored electronically

Section 548 provides that where an authorised officer or a person helping the officer finds at a place or in a heavy vehicle a storage device such as a disc or tape containing which the officer reasonably believes is relevant to deciding whether the Law has been contravened, this section authorises putting the information in documentary form and seizing the document, copying the information to another storage device and seizing that device or seizing the original storage device and any equipment by which its contents can be read if it is not practicable to put it into documentary form or copy it to another storage device and it is reasonably believed that the device and equipment can be seized without damage.

549—Seizing thing or sample taken for examination under section 500

Section 549 deals with the situation where a thing or sample has been taken for examination under subsection 500(1)(c). Section 500 deals with the general powers exercisable by an authorised officer who enters a place (other than a public place) for investigation purposes (as defined in section 5).

If the officer, having examined the thing or sample, reasonably believes it to be evidence of an offence against the Law, he or she may seize it if such seizure would have been authorised by sections 545 to 548 at the time it was taken had the officer formed the reasonable belief at that earlier time.

550—Seizure of property subject to security

Section 550 allows an authorised officer to seize a thing and exercise powers relating to it, even if a third party holds a lien or other security over it. However, the seizure does not affect the security holder's claim against a person other than the officer or a person helping the officer.

551—Seizure of number plates

Section 551 empowers an authorised officer to seize a number plate for a heavy vehicle where the officer reasonably believes any of the matters outlined in subsections (2) and (3). Subsection (4) empowers the officer to retain the number plates for the period necessary to facilitate the investigation of offences against the Law or another applicable law. Subsection (5) creates a head of power for determining an appropriate authority to which the number plates must be returned, and the making of guidelines to similar effect.

552—Restriction on power to seize certain things

Section 552 restricts the seizure of a heavy vehicle, a thing, or a thing of a class, prescribed by the national regulations unless the Application Act of the participating jurisdiction in which the vehicle or thing is located provides that the heavy vehicle or thing can be impounded or seized.

Concerns as to the potential for this power to be used to unjustly deprive an individual of their property is mitigated by Division 3—Forfeiture and transfer.

Subdivision 2—Powers to support seizure

553—Requirement of person in control of thing to be seized

Section 553 empowers an authorised officer, to enable a thing to be seized, to require a person in control of it to take the thing to a stated reasonable place by a stated reasonable time and, if necessary, to remain there with it for a stated reasonable period.

The requirement must be made (or confirmed) in writing or, if not practicable, may be given orally and later confirmed in writing.

A person so required must comply unless there is a reasonable excuse. A maximum penalty of $10,000 applies.

Subdivision 3—Safeguards for seized things or samples

554—Receipt for seized thing or sample

Section 554 sets out procedures to be followed where a thing or sample has been seized under Chapter 9 relating to the giving of a receipt for the item seized. However, this is not required where it is impracticable or unreasonable because of the condition, nature and value of the thing or sample or, in the case of a thing that has been seized other than under section 549, the officer reasonably believes there is nobody apparently in possession of the thing or the thing has been abandoned. Section 549 deals with the subsequent seizure of a thing that was taken for examination by an authorised officer who entered a place (other than a public place) for investigation purposes (as defined in section 5).

555—Access to seized thing

Section 555 states that until a thing that has been seized has been forfeited or returned, its owner must be allowed access to it to inspect it and (for documentation) to copy it unless that is not practicable or reasonable.

556—Return of seized things or samples

Section 556 provides for the return of a thing or sample that has been seized.

An authorised officer must be satisfied that the thing or sample is not or no longer required as evidence of an offence against this Law and that the continued retention of the thing or sample is not necessary to prevent the thing or sample being used to continue, or repeat, an offence against this Law.

An authorised officer must also be satisfied that the thing or sample is not subject to a dispute as to ownership, which would be appropriately resolved by making an application to the relevant tribunal or court for the return of the thing or sample.

The section provides for the seized thing or sample to be returned to the person from whom it was seized, or the owner if that person is not entitled to possess it.

Subsections (3) and (4) provide for application to the relevant tribunal or court for the return of a seized thing or sample, as well as the circumstances in which the relevant tribunal or court may make an order for return. Subsection (5) provides a regulation-making power for procedures to be followed—including notification of the Regulator—when an application is made.

This section does not prevent the return of a thing or sample to its owner if the Regulator considers there is no reason for its continued retention.

Subdivision 4—Embargo notices

557—Power to issue embargo notice

Section 557 states that where something that has been seized cannot readily be removed, an authorised officer may issue an embargo notice prohibiting any dealing with the thing or any part of it without the written consent of the Regulator or an authorised officer. The section sets out procedures relating to the issue of an embargo notice and its contents.

558—Noncompliance with embargo notice

Section 558 creates an offence for a person who knows an embargo notice relates to a thing to do anything the notice prohibits or instruct somebody else to do so. A maximum penalty of $10,000 applies.

In a proceeding for an offence relating to a charge that the defendant moved an embargoed thing or a part of it, it is a defence if the person proves that the embargoed thing or thing was moved to protect or preserve it or that the authorised officer who issued the notice was informed of the move and new location within 48 hours.

Subsection (3) requires a person served with an embargo notice to take all reasonable steps to stop any other person from doing something prohibited by the notice. A maximum penalty of $10,000 applies.

Subsection (4) provides that, despite any other Act or law, a sale, lease, transfer or other dealing with an embargoed thing is void.

559—Power to secure embargoed thing

Section 559 enables an authorised officer to take reasonable action to restrict access to an embargoed thing, including sealing it or the entrance to the place where it is or (for equipment) rendering it inoperable.

The officer may also require a person he or she reasonably believes to be in control of the embargoed thing to take such steps. It is an offence not to comply without a reasonable excuse. A maximum penalty of $10,000 applies.

If access to an embargoed thing is restricted, it is an offence against subsection (4) to tamper with the thing or anything used to restrict access to the thing without an authorised officer's approval or a reasonable excuse. A maximum penalty of $10,000 applies.

If access to a place is restricted, it is an offence to enter that place or to tamper with anything used to restrict access to the place without an authorised officer's approval or a reasonable excuse. A maximum penalty of $10,000 applies.

560—Withdrawal of embargo notice

Section 560 sets out the procedures for withdrawing an embargo notice, together with restrictions on when such a notice may be withdrawn.

Division 3—Forfeiture and transfers

561—Power to forfeit particular things or samples

Section 561 states that where a thing or sample has been taken for examination or a thing has been seized under Chapter 9 the Regulator may declare it to be forfeited to the Regulator if its owner cannot reasonably be found or the thing cannot reasonably be returned.

However, subsection (4) provides that a thing or sample seized by a police officer cannot be forfeited to the Regulator and must be dealt with under the national regulations, except as provided by applicable state or territory legislation.

562—Information notice for forfeiture decision

Section 562 sets out the requirements for giving an information notice if the Regulator decides to forfeit a thing or sample. 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.

563—Forfeited or transferred thing or sample becomes property of the Regulator

Section 563 specifies that a thing or sample become the property of the Regulator if it is forfeited or the owner and Regulator agree in writing to the transfer of ownership.

564—How property may be dealt with

Section 564 states that where a thing or sample becomes the property of the Regulator under section 563, the Regulator may deal with it in the Regulator's discretion, including by destroying it or giving it away.

However, the Regulator may not deal with it in such a way as to prejudice the outcome of a review of the forfeiture decision or an appeal against the decision on review. Chapter 11 deals with reviews and appeals and the decision of the Regulator that a thing or sample is forfeited is a reviewable decision for the purposes of that Chapter.

The Regulator must give 28 days' notice of its intention to deal with a thing or sample that has become the property of the Regulator to the person from whom the thing or sample was seized; the former owner of the thing or sample; and each person having a registered interest in the thing or sample

If the Regulator sells the thing or sample, the Regulator may return the proceeds of sale to the person who owned it immediately before the forfeiture, after deducting the costs of the sale.

565—Third party protection

Section 565 provides for third party protection in the event that a thing or sample becomes the property of the Regulator. The section provides for applications for an order in relation to the thing or sample to be made to a relevant tribunal or court by the owner or a person with a registered interested in the thing or sample. The section further provides that such applications may be made in relation to the proceeds of a thing or sample already sold or otherwise disposed of.

566—National regulations

Section 566 provides a regulation-making power for the circumstances in which the Regulator must apply to the Registrar of Personal Property Securities to register, amend or cancel an instrument in relation to a sample or thing. The section further provides a regulation-making power for the priority in which the proceeds of disposal of anything under this Division are to be applied.

Division 4—Information-gathering powers

567—Power to require name, address and date of birth

Section 567 deals with the circumstances in which an authorised officer may require a person to state his or her name, date of birth and address (including the person's residential and business address and, for a person temporarily in the jurisdiction, the person's residence in the jurisdiction).

The officer may do so:

if the person is committing, or is found in circumstances to reasonably suspect the person has committed, or there is information to reasonably suspect that the person has committed, an offence against the Law; or

if the person is reasonably suspected to be the driver of a heavy vehicle involved in an incident involving death, injury or damage to property; or

if the person is reasonably suspected to be a responsible person for a heavy vehicle (as defined in section 5) and may be able to help in an investigation of an offence against the Law involving the vehicle.

The officer may require the person to provide verification of the name, date of birth or address if it would be reasonable to expect the person to be in possession of evidence to verify the name or address or otherwise be able to provide the verification.

Failure to comply with either requirement without a reasonable excuse is an offence. A maximum penalty of $3,000 applies.

Subsection (7) provides that, if a person is charged with a failure to state a business address, it is a defence to prove that the person did not have a business address or the person's business address was not directly or indirectly connected with road transport involving heavy vehicles.

Subsection (8) restricts the circumstances in which an authorised officer may impose a requirement under this section so that it does not extend to an incident that involves the death of, or injury to, a person unless the authorised officer is a police officer.

568—Power to require production of document etc required to be in driver's possession

Section 568 empowers an authorised officer to require, for compliance purposes (as defined in section 5), the driver of a heavy vehicle to produce a document, device or thing he or she is required by the Law to keep in the driver's possession while driving. This power arises if the vehicle is stationary on a road, or if it is in or at a place entered under Part 9 or if it has been stopped under section 513 (dealing with a direction to stop the vehicle to enable the exercise of other powers).

The driver must comply with the requirement unless there is a reasonable excuse. The maximum penalty is the same maximum penalty for the offence of failing to keep the document, device or thing in the driver's possession.

Subsection (4) clarifies that it is not a reasonable excuse merely not to have the item in the driver's possession or to refuse on the ground of self-incrimination.

In the case of a document, device or other thing required to be in the driver's possession, the officer may take a copy of or extract from a document, produce an image or writing from an electronic document or take an extract from a device or other thing. The officer must return the item as soon as practicable after inspection or, if a copy, extract or image or writing is produced from it, as soon as practicable thereafter.

Where the officer reasonably believes the document, device or other thing required to be in the driver's possession may provide evidence of an offence against the Law, he or she may seize it.

The officer may require the driver to certify that a copy, extract or image or writing from a document or an entry in a document is a true copy. The driver must comply with the requirement unless there is a reasonable excuse. A maximum penalty of $3,000 applies.

The officer does not have to return a document, where he or she has asked the driver to certify the copy, extract or image or writing of, until the driver complies with the requirement.

569—Power to require production of documents etc generally

Section 569 states that an authorised officer may require a responsible person for a heavy vehicle (as defined in section 5) to produce for inspection a document issued under the Law or document, device or other thing required to be kept under the Law or a heavy vehicle accreditation (as defined in section 5) or other specified documentation in the person's possession or control that relates to the vehicle or the transport task or the person's business practices. The person must comply with the requirement unless there is a reasonable excuse. A maximum penalty of $6,000 applies.

Subsection (4) clarifies that a claim of privilege against self-incrimination is not a reasonable excuse. Note, however, that section 588 limits the use of particular documents or information in civil or criminal proceedings. The effect of that section is that, if a responsible person who is an individual produces for inspection a document under section 569 (other than a document issued to the person under the Law or a document, device or other thing required to be kept by the person under the Law or a heavy vehicle accreditation), the document and any evidence directly or indirectly derived from it is not admissible against the individual, except in a proceeding about the false or misleading nature of the document or anything in the document.

The officer may take a copy of or extract from a document, produce an image or writing from an electronic document or take an extract from a device or other thing. The officer must return the item as soon as practicable after inspection or, if a copy, extract or image or writing is produced from it, as soon as practicable thereafter.

Where the officer reasonably believes the document, device or other thing may provide evidence of an offence against the Law, he or she may seize it.

The officer may require the person responsible for keeping the document to certify that a copy, extract or image or writing from a document or an entry in a document is a true copy. The person must comply with the requirement unless there is a reasonable excuse. A maximum penalty of $3,000 applies.

The officer does not have to return a document, where he or she has asked the person to certify the copy, extract or image or writing of, until the person complies with the requirement.

570—Power to require information about heavy vehicles

Section 570 empowers an authorised officer to, for compliance purposes (as defined in section 5), require a responsible person for a heavy vehicle (as defined in section 5) to provide information about the vehicle, its equipment or load and personal details (as defined in this section) known to the person about any other responsible person for the vehicle.

It is an offence not to comply without a requirement without reasonable excuse. A maximum penalty of $6,000 applies.

Subsection (4) provides that it is a defence for the person not to prove that he or she did not know and could not reasonably be expected to know or to ascertain the information.

Subsection (5) clarifies that it is not a reasonable excuse to claim the privilege against self-incrimination. Note, however, that section 588 limits the use of particular documents or information in civil or criminal proceedings. The effect of that section is that, if a responsible person who is an individual provides information under section 570, the information and any evidence directly or indirectly derived from it is not admissible against the individual, except in a proceeding about the false or misleading nature of the information or anything in the information.

Division 5—Improvement notices

571—Authorised officers to whom Division applies

Section 571 states that the Division applies only where the authorised officer is authorised to issue improvement notices (through written authority from the relevant police commissioner in the case of an authorised officer who is a police officer or if stated in the instrument of appointment in the case of an authorised officer who is not a police officer).

572—Improvement notices

Section 572 provides that where an authorised officer reasonably believes that a person has contravened or is contravening the Law in circumstances that make it likely that the contravention will continue or be repeated, the officer may issue an improvement notice requiring the person to remedy the situation or the matters or activities occasioning it within the period stated in the notice. The provision sets out restrictions on the time period that can be stated and specifies the contents of the notice.

573—Contravention of improvement notice

Section 573 states that the recipient of an improvement notice must comply unless there is a reasonable excuse. A maximum penalty of $10,000 applies.

Subsection (2) provides a defence where the alleged contravention, likely contravention or matters or activities occasioning them was remedied within the time stated in the notice, although in a way different from that stated in the notice.

Subsection (3) clarifies that if a person is given an improvement notice because of a contravention of the Law, the person cannot be proceeded against for that contravention unless the person fails to comply with the improvement notice, without a reasonable excuse, or the improvement notice is revoked under section 575.

574—Amendment of improvement notice

Section 574 sets out the procedures for amending an improvement notice. It also specifies that if the notice was issued by an authorised officer who is a police officer, it can be amended by another such officer and if the notice was issued by an authorised officer who is not a police officer, it can be amended by any authorised officer who is not a police officer.

575—Revocation of an improvement notice

Section 575 deals with the revocation of an improvement notice. It specifies that a notice given by an authorised officer who is a police officer may be revoked by the relevant police commissioner or by a more senior police officer who has the relevant commissioner's authority to issue improvement notices. A notice given by an authorised officer who is not a police officer may be revoked by the Regulator.

576—Clearance certificate

Section 576 states that an approved authorised officer may issue a clearance certificate stating that the requirements of an improvement notice have been satisfied. Subsection (3) defines the term 'approved authorised officer'. In the case of an improvement notice issued by an authorised officer who is a police officer, it means another police officer who has the relevant commissioner's authority to issue improvement notices. In the case of an improvement notice issued by an authorised officer who is not a police officer, it means any authorised officer who is not a police officer.

Division 6—Power to require reasonable help

577—Power to require reasonable help

Section 577 empowers an authorised officer to require reasonable help from an occupier of or a person at a place entered under Chapter 9 or from a driver of a heavy vehicle on a road where a power under Chapter 9 is being exercised.

It is an offence not to comply with the requirement without reasonable excuse. A maximum penalty of $10,000 applies.

Subsection (5) specifies that it is a reasonable excuse for an individual if the assistance required is outside the scope of a individual's business or other activities or if self-incrimination might occur.

However, subsection (6) clarifies that it is not a reasonable excuse to claim the privilege against self-incrimination in relation to a document or information required to be kept or held by the individual under the Law. Note, however, that section 588 limits the use of particular documents or information in civil or criminal proceedings. The effect of that section is that, if an individual gives an officer a document or information in response to a requirement under section 577, the document or information and any evidence directly or indirectly derived from it is not admissible against the individual, except in a proceeding about the false or misleading nature of the document or information or anything in the document or information.

Part 5—Provisions about exercise of powers

Division 1—Damage in exercising powers

578—Duty to minimise inconvenience or damage

Section 578 provides that, in exercising a power under the Law, it is the responsibility of an authorised officer to take all reasonable steps to cause as little inconvenience and damage as possible. However, this does not confer a statutory right to compensation, other than as provided under Division 2. That Division provides for compensation for costs, damage or loss incurred because of the exercise of a power under Chapter 9.

579—Restoring damaged thing

Section 579 states that where an authorised officer, in the course of exercising a power under the Law, or a person assisting the officer damages something, the officer must take all reasonable steps to restore the thing to its condition immediately before the damage. The section only applies where there has been an improper or unreasonable exercise of a power or the use of unauthorised force.

580—Notice of damage

Section 580 sets out the procedures for giving notice of the damage and the contents of the notice, including a statement that a person may have a right to compensation under section 581.

However, the provision does not apply if the officer reasonably believes that the thing has been restored to its condition immediately before the damage, or the damage is trivial, or there is nobody apparently in possession of the thing or it appears to have been abandoned.

The provision also does not apply in relation to any damage resulting from the exercise of powers under the Law where the damage was not caused by an improper or unreasonable exercise of a power or the use of unauthorised force.

Division 2—Compensation

581—Compensation because of exercise of powers

Section 581 states that a person may claim compensation from the Regulator if the person incurs costs, damage or loss because of the exercise, or purported exercise, of a power by or for an authorised officer, under Chapter 9.

However, subsection (2) specifies that this does not apply to costs, damage or loss incurred because of a lawful seizure or forfeiture or because of an exercise, or purported exercise, of a power by or for an authorised officer.

The provision details procedures for claiming compensation and the matters a court must consider in determining whether to make a compensation order.

Subsection (6) authorises the making of national regulations to prescribe other matters the court may or must take into account when considering whether it is just to order compensation.

Division 3—Provision about exercise of particular powers

582—Duty to record particular information in driver's work diary

Section 582 deals with the situation where an authorised officer directs the driver of a fatigue-regulated heavy vehicle to stop the vehicle for compliance purposes (as defined in section 5). If the driver is detained for more than 5 minutes, he or she may request the officer to make a notation in the driver's work diary setting out specified details, including the length of time spent talking to the officer, and the officer must comply.

Part 6—Miscellaneous provisions

Division 1—Powers of Regulator

583—Regulator may exercise powers of authorised officers

Section 583 states that the Regulator may exercise powers conferred on an authorised officer under the Law which do not require the physical presence of an officer. Subsection (1) clarifies that the powers conferred on an authorised officer and exercisable by the Regulator are functions of the Regulator and therefore delegable by the Regulator to its own staff.

Division 2—Other offences relating to authorised officers

584—Obstructing authorised officer

Section 584 creates an offence for a person without reasonable excuse to obstruct an authorised officer or somebody helping an authorised officer or an assistant who is exercising a power under section 518 (dealing with moving an unattended heavy vehicle on a road to enable the exercise of another power), section 519 (dealing with moving an unattended heavy vehicle on a road if it is causing or creating an imminent risk of serious harm to public safety, the environment or road infrastructure), or section 523 (dealing with entering a vehicle and starting or stopping its engine to enable the exercise of another power). A maximum penalty of $10,000 applies.

The term 'obstruct' is defined in subsection (2) so as to include assault, hindrance, resistance and attempts or threats to obstruct.

585—Impersonating authorised officer

Section 585 states that a person must not impersonate an authorised officer. A maximum penalty of $10,000 applies.

Division 3—Other provisions

586—Multiple requirements

Section 586 makes it clear that an authorised officer may give multiple directions or requirements and may give further directions or requirements, whether under the 1 provision or 1 or more other provisions of Chapter 9.

587—Compliance with particular requirements

Section 587 clarifies that a person is not excused from compliance with a requirement imposed by an authorised officer under this Chapter on the ground that compliance might incriminate the person or make the person liable to a penalty. This provision is necessary to nullify an argument by a person who refused to comply with a requirement issued under the Act that the refusal was justified by protections against self incrimination provided under the general law.

588—Evidential immunity for individuals complying with particular requirements

Section 588 applies to a document or information required to be produced or provided under section 569(1)(c) to (f), 570 or 577 (respectively relating to the power to require production of specified documents, the power to require specified information and the power to require reasonable help).

Subsection (2) provides that evidence of or derived from information provided is not admissible in court proceedings against the individual to the extent that it tends to incriminate the individual or expose the individual to a penalty unless the proceedings relate to the false or misleading nature of the information or anything in the information.

Subsection (3) provides that a document produced is not inadmissible in evidence in court proceedings against the individual on the ground that the document might incriminate the individual.

This abrogation of the privilege against self-incrimination is necessary for compliance and enforcement purposes. In the absence of a provision compelling the production of documents and further providing for the use of those documents as evidence, prosecuting breaches of the Act – particularly offences detected during the course of on-road enforcement – would require far greater investigative resources. Public safety is liable to be compromised if prosecution of heavy vehicle offences is more difficult under the Law than existing jurisdictional laws.

589—Effect of withdrawal of consent to enter under this Chapter

Section 589 provides that any evidence obtained (including any evidence seized) up to the time the consent is withdrawn after an authorised officer enters a place with the occupier's consent, is not invalid or inadmissible in proceedings for a contravention of this Law merely because the consent was withdrawn.

Chapter 10—Sanctions and provisions about liability for offences

Part 1—Formal warnings

590—Formal warning

Section 590 states that where an authorised officer is reasonably satisfied of a contravention of the Law (other than a substantial or sever risk breach of a mass, dimension or loading requirement), the authorised officer may give the individual a written warning. When the warning is given to the individual under this section, the person cannot be proceeded against for an offence against this Law constituted by the contravention.

The warning is, however, subject to revocation within 21 days by an approved authorised officer (being a police officer who is an authorised officer and whose Commissioner has authorised them or any other authorised officer, to withdraw warnings), thereby exposing the offender to the possibility of proceedings for the contravention for which the warning was given.

Part 2—Infringement notices

591—Infringement notices

Section 591 establishes a general power for an authorised officer to issue infringement notices for prescribed offences against this Law. The section further provides that procedures to be followed in connection with infringement notices issued for the purposes of this Law as applied in this jurisdiction are to be the procedures prescribed by or under the Infringement Notice Offences Law of this jurisdiction. Subsection (3) allows for the prescription of the offences in the Law for which infringement notices may be issued through the inclusion of the definition prescribed offences.

592—Recording information about infringement penalties

Section 592 authorises the Regulator to keep a record of infringement notices issued and paid. The recorded information may be used for research purposes, for proceedings related to the offence or if the information is relevant in deciding whether the individual is a systematic or persistent offender for the purpose of issuing a supervisory intervention order or prohibition order. Information in a record of an infringement notice issued for the purposes of the Law and kept by the Regulator may also be used in a proceeding for a relevant extended liability offence. Relevant extended liability offences are expressly identified through the Law by provisions authorising the use of details stated in the infringement notice as evidence in the proceedings.

Supervisory intervention orders and prohibition orders are respectively dealt with by Divisions 5 and 6 of Part 3 of this Chapter.

Part 3—Court sanctions

Division 1—General provisions

593—Penalties court may impose

Section 593 states that a court which finds a person guilty of an offence may impose any one or more of the penalties available under this Part for that offence.

594—Matters court must consider when imposing sanction for noncompliance with mass, dimension or loading requirement

Section 594 sets out that in deciding penalty for the contravention of a mass, dimension or loading requirement, a court is to have regard for the magnitude of the risk assigned by the Law (which categorises breaches of its requirements as minor, substantial or severe) to the offence.

The provision explains how the breaches have been determined in terms of the magnitude of risk in relation to such factors as accelerated road wear, unfair commercial advantage, traffic congestion, diminished public amenity and public safety.

595—Court may treat noncompliance with mass, dimension or loading requirement as a different risk category

Section 595 states that where a court is satisfied that there has been a contravention of a mass, dimension or loading requirement, but is not satisfied as to the seriousness of the contravention against the offence categories provided in the Law, the court may treat the breach as being of a lesser categorised risk breach.

Division 2—Provisions about imposing fines

596—Body corporate fines under penalty provision

Section 596 sets out that the maximum penalties specified in the Law, are generally those available to be imposed on individual offenders. Where a body corporate is involved, this provision allows the imposition of a penalty of up to 5 times the amount for an individual.

Division 3—Commercial benefits penalty orders

597—Commercial benefits penalty order

Section 597 provides that a court which finds a individual guilty of an offence may, on application of the prosecution, impose a gross commercial benefits penalty of up to 3 times the actual or anticipated gross commercial benefit (disregarding in the calculations any costs, expenses or liabilities in obtaining that benefit), which the court estimates was or would have been but for intervention by an authorised officer, derived from the conduct giving rise to the offence.

Division 4—Cancelling or suspending registration

598—Power to cancel or suspend vehicle registration

Section 598 states that a court convicting an individual of an offence may cancel or suspend the registration of a heavy vehicle to which the offence relates and to which the individual convicted is the registered operator. In addition, the court may disqualify the person or an associate of the person from applying for registration for a specified time.

The term associate is defined in terms of family, employment, corporate or business relationships in provision 5 of the Law.

Provision is made to protect the rights of individuals who may not be present in court, by granting them opportunity to show cause why the court should not order the suspension or cancellation.

Subsection (5) requires a court to notify the Regulator when a decision has been made to suspend or cancel the registration of a vehicle.

Division 5—Supervisory intervention orders

599—Application of Division 5

Section 599 (Division 5) applies in situations where a court that convicts an individual of an offence against the Law, considers that the individual is or is likely to become a systematic or persistent offender, having regard to the circumstances of present convictions and other convictions of the individual.

600—Court may make supervisory intervention order

Section 600 maintains that in a case to which Division 5 applies, the court, on application of the prosecution or the Regulator, may make a supervisory intervention order requiring the convicted individual to:

do stated things to improve the individual's compliance with the Law (such as appointing or training staff, obtaining expert advice or installing equipment); or

implement stated practices, systems or procedures for monitoring or ensuring compliance; or

give compliance reports to the Regulator and/or the court; or

appoint a person to assist in improving compliance.

A supervisory intervention order may be made for up to 1 year and the convicted person must bear the cost of complying with it.

601—Limitation on making supervisory intervention order

Section 601 provides that the court may make a supervisory intervention order only if satisfied the order is capable of improving the convicted person's ability or willingness to comply with the Law, having regard to the person's record of offences and certain other matters.

602—Supervisory intervention order may suspend other sanctions

Section 602 states that a court may suspend any other order it makes until the supervisory intervention order ends, unless the court is satisfied that there has been substantial failure to comply with the supervisory intervention order.

603—Amendment or revocation of supervisory intervention order

Section 603 specifies that on application by the Regulator or a person to whom a supervisory intervention order applies, the court that made the order may amend or revoke the order if satisfied there has been a change in circumstances warranting the amendment or revocation.

604—Contravention of supervisory intervention order

Section 604 provides that a person to whom a supervisory intervention order applies must comply with the order unless the person has a reasonable excuse. A maximum penalty of $10,000 applies.

605—Effect of supervisory intervention order if prohibition order applies to same person

Section 605 states that if both a supervisory intervention order and a prohibition order (made under Division 6 apply to an individual, the former is ineffective until the prohibition order has ceased to apply.

Division 6—Prohibition orders

606—Application of Division 6

Section 606 applies Division 6 in situations where a court that convicts a person of an offence against the Law, considers that the individual is or is likely to become a systematic or persistent offender, having regard to the circumstances of the present conviction and other convictions of the individual.

607—Court may make prohibition order

Section 607 states that in a case to which Division 5 applies, the court, on application of the prosecution or the Regulator, may make a prohibition order prohibiting the convicted person from having a stated role or responsibility in road transport for up to 1 year. Subsection (2) provides that such a role or responsibility does not extend to holding a driver licence or having a vehicle registered or licensed under an Australian road law.

The term Australian road law is defined in section 5 to mean the Law or another law regulating the use of vehicles on roads.

608—Limitation on making prohibition order

Section 608 provides that a court may only make a prohibition order if satisfied that the convicted person should not continue to have the role or responsibility prohibited by the order and that, in the light of the person's previous offences and certain other matters, a supervisory intervention order would be inappropriate.

609—Amendment or revocation of prohibition order

Section 609 maintains that on application by the Regulator or the person to whom a prohibition order applies, the court that made the order may amend or revoke the order if satisfied there has been a change in circumstances warranting the amendment or revocation.

610—Contravention of prohibition order

Section 610 states that a person to whom a prohibition order applies must comply with the order unless the person has a reasonable excuse. A maximum penalty of $10,000 applies.

Division 7—Compensation orders

611—Court may make compensation order

Section 611 provides that a court that convicts a person of an offence against the Law may make a compensation order requiring the convicted person to pay the road manager an amount awarded by the court in respect of damage to road infrastructure resulting from the offence.

Section 5 defines road manager as a public authority declared by law to be the manager of a particular road for the purposes of the Law. Subsection (3) allows the order to be made in respect of damage which the court is satisfied on the balance of probability was caused or partly caused by the offence. Subsection (4) provides that the order may be made at the point of conviction or later.

612—Assessment of compensation

Section 612 states that a wide discretion is conferred on the court in assessing compensation. Subsection (2) however, sets out some matters, including evidence and other relevant considerations, to which it may have regard.

The evidence which a court may consider in some circumstances includes certificate evidence given by a person on behalf of a public authority which is a road manager. In these circumstances subsection (3) provides that it is to be presumed, unless otherwise proved, that the person who signs the certificate had authority to do so.

613—Use of certificates in assessing compensation

Section 613 sets out further procedures attending the use of and challenges to, certificate evidence for which section 612(2)(c) provides.

Subsection (3) requires a defendant who intends to challenge the accuracy of any measurement, analysis or reading in the certificate submitted by a road authority to assist a court to make a compensation order to state the basis for the claimed inaccuracy and state the measurement, analysis or reading that the defendant considers to be correct.

614—Limits on amount of compensation

Section 614 requires that the compensation not:

exceed the proportion of the loss attributable to the offender or any monetary limit in the court's civil jurisdiction; and

be attributable to death, personal injury, the road manager's loss of income (as might happen where a toll booth was demolished) or loss to property that is not road infrastructure.

615—Costs

Section 615 states that the court has the same power to award costs in relation to proceedings for the making of a compensation order as it has in relation to civil proceedings.

616—Enforcement of compensation order and costs

Section 616 provides that compensation orders and associated costs orders can be enforced in the same way as priers for costs in civil proceedings before the court.

617—Relationship with orders or awards of other courts and tribunals

Section 617 recognises that civil proceedings are sometimes brought to recover damages for loss associated with damage to road infrastructure and provides safeguards both for the road manager and the offender by preventing unjust enrichment arising from multiple proceedings but also preserving the road manager's right to institute civil proceedings.

Part 4—Provisions about liability

Division 1—Reasonable steps defence

618—Reasonable steps defence

Section 618 states that many of the offence provisions of the Law exclude the mistake of facts defence (under which a person's belief in a state of facts which, if true, would have avoided liability). The Law however, provides a reasonable steps defence and this provision further explains the reasonable steps defence.

The reasonable steps defence is a defence for a person to show that they did not know and could not reasonably be expected to have known of a contravention of the Law and that they took all reasonable steps to prevent the contravention or could do nothing to prevent the contravention.

Division 2—Matters relating to reasonable steps

619—Application of Division 2

Section 619 specifies that some of the offences the Law provides involve a person having failed to take all reasonable steps to do or avoid an outcome, while other offences provide a reasonable steps defence as outlined in section 618. This provision states that Division 2 applies in both such situations.

620—Matters court may consider for deciding whether person took all reasonable steps—mass, dimension or loading offences

Section 620 states that a court is given a wide discretion in determining whether reasonable steps have been taken in regards to mass, dimension or loading offences. In addition, the provision sets out several factors that may be relevant to a court when determining whether a person took all reasonable steps.

621—Reliance on container weight declaration—offences about mass

Section 621 applies if the operator or owner of a heavy vehicle seeks to rely on the reasonable steps defence in relation to a charge of contravening a mass requirement. The provision excludes from the reasonable steps defence, reliance on a container weight declaration (as defined in section 5) which is known or ought reasonably to have been known, to be inaccurate.

622—Matters court may consider for deciding whether person took all reasonable steps—speeding or fatigue management offences

Section 622 confers a wide discretion on a court in determining reasonable steps in relation to a speeding offence under Chapter 5 or a fatigue management offence under Chapter 6. In addition, the section sets out certain matters which the court may have regard for.

623—When particular persons regarded to have taken all reasonable steps—speeding or fatigue management offences

Section 623 states that some of the provisions in Chapter 5 regarding speeding and in Chapter 6 regarding fatigue, impose extended liability on a party within the chain of responsibility, who would normally have some measure of control over the road transport task. This section explains how the reasonable steps defence may apply to a party within the chain of responsibility if charged.

624—Regulation for section 623

Section 624 authorises the making of regulations about matters dealt with in section 623.

625—Proof of compliance with registered industry code of practice

Section 625 provides that compliance with a registered industry code of practice may sometimes be relevant to a reasonable steps defence. This section sets out procedures to be followed in such a case. Section 706 deals with the registration of industry codes of practice.

Division 3—Other defences

626—Definition for Division 3

Section 626 defines the term deficiency in relation to a heavy vehicle for purposes of Division 3. The term includes for example a vehicle being unsafe, the contravention by a vehicle of a vehicle standard and a deficiency constituted by the absence of a particular thing required to be in, or displayed on, the vehicle.

627—Defence for owner or operator of vehicle if offence committed while vehicle used by unauthorised person

Section 627 provides a defence to an owner or operator of a heavy vehicle where it is proved that the person using the vehicle did so without lawful entitlement.

628—Defence for driver of vehicle subject to a deficiency

Section 628 provides a defence to a driver charged with an offence involving a deficiency of the kind described in section 626. The defence applies where the driver can prove that they did not cause the deficiency, did not know and could not reasonably know or be expected to find out about the deficiency and had no control or responsibility in respect of the deficiency.

629—Defence of compliance with direction

Section 629 provides a defence for a person charged under the Law where the person can establish that the conduct constituting the offence was done in compliance with a direction given by the Regulator, an authorised officer, or a person authorised under a law of a State or Territory.

630—Sudden or extraordinary emergency

Section 630 provides a defence for a person charged under the Law where the person can establish that the conduct constituting the offence occurred in response to circumstances of sudden or extraordinary emergency.

631—Lawful authority

Section 631 provides a defence for a person charged under the Law where the person can establish that the conduct constituting the offence is authorised or excused by or under a law.

Division 4—Other provisions about liability

632—Deciding whether person ought reasonably to have known something

Section 632 states that in determining whether a person ought reasonably to have known something for the purposes of the Law, a court is required, by section 632, to consider relevant factors including the person's abilities, experience, expertise and knowledge.

633—Multiple offenders

Section 633 sets out that where the Law imposes liability on more than 1 person, proceedings against any one of the persons can be taken regardless of whether proceedings against the other person or persons have commenced or concluded, and regardless of the outcome of any such proceedings.

634—Multiple offences

Section 634 protects a person from being punished more than once for the same contravention of this Law or for the same offence.

635—Responsibility for acts or omissions of representative

Section 635 states that in some provisions of the Law, an offence involves both an act or omission and a particular state of mind (such as knowledge or intent) on the part of the alleged offender. In such a case, section 635 provides that where somebody else (such as an employee or agent) was acting on behalf of the alleged offender, it is sufficient to prove the state of mind of that person rather than that of the offender.

636—Liability of executive officers of corporation

Section 636 provides that where a corporation commits an offence (whether or not it has been prosecuted or convicted of the offence), an executive officer may be liable for the same offence. This applies to a range of offences committed by a corporation where it can be established the executive officer knowingly authorised or permitted the conduct constituting the offence. These offences are set out in column 2 of Schedule 4 to the Law.

Subsection (2) establishes a second, alternative, basis for derivative liability where an offence is committed and the executive officer knew or ought reasonably to have known of the conduct constituting the offence or that there was a substantial risk that the offence would be committed. The range of offences for which derivative liability might arise is set out in column 3 of Schedule 4 to the Law.

The executive officer is only liable for the penalty applying to an individual, and not the 5 times greater penalty applying to a corporation under section 596. Subsection (3) provides defences for executives to prove the exercising of reasonable diligence or that they were not in a position to influence the conduct of the corporation. In addition, subsection (7) protects unpaid executives from liability under this provision.

Section 5 defines executive officer as someone who is concerned in or takes part in the corporation's management.

The provision is intended to bring the obligations of executive officers as far as practicable into conformity with the COAG-agreed principles for assessment of directors' liability provisions. It is intended this section forms the subject of a more comprehensive review in future to ensure the adequacy of the approach taken.

Not all offences created under the Law satisfy the requirements of the COAG principles. Accordingly the range of offences set out in Schedule 4 for which derivative liability may arise does not encompass all offences created under the Law.

637—Treatment of unincorporated partnerships

Section 637 subjects each of the individual partners to the same penalty as an individual where their partnership would otherwise be liable similarly to the approach adopted for section 636 and for the same reasons. Accordingly, derivative liability will attach to a partner in an unincorporated partnership only where the partner knew knowingly authorised or permitted the conduct constituting the offence, or ought reasonably to have known of the conduct constituting the offence or that there was a substantial risk that the offence would be committed.

However, whereas executive officers for a corporation are liable only for the offences stipulated in Schedule 4, partners are liable on behalf of the partnership for all offences that would have been otherwise committed by the partnership (which itself has no legal personality and cannot be the subject of enforcement action) to avoid the possibility no person would be liable for an offence on behalf of the partnership.

Subsection (6) provides a defence for a partner who can prove the exercise of reasonable diligence or that they were not in a position to influence the conduct of the partnership.

638—Treatment of other unincorporated bodies

Section 638 makes provision for the liability of those involved in the management of unincorporated bodies similarly to the approach adopted for sections 636 and 637 and for the same reasons. As for partners, the management members for an unincorporated body remain liable for all offences that would have been otherwise committed by the unincorporated body.

639—Liability of registered operator

Section 639 explains that references within the Chapter to the operator of a heavy vehicle, generally means the registered operator. However, special provision is made for cases of vehicles in combinations (where different operators may have responsibility for different vehicles comprising the combination) and for situations where the registered operator is not, at the relevant time, the actual operator of the vehicle.

Chapter 11—Reviews and appeals

Part 1—Preliminary

640—Definitions for Chapter 11

Section 640 provides definitions for terms used in Chapter 11 which include public safety ground, relevant appeal body, relevant jurisdiction, reviewable decision, review application, review decision and reviewer.

Part 2—Internal review

641—Applying for internal review

Section 641 outlines the timeframes and other requirements that apply when a dissatisfied person applies for an internal review. The section provides that the dissatisfied person is entitled to get a statement of reasons for the original decision they are seeking to have reviewed, even if the provision under which the decision was made does not specify that the person must be given at statement of reasons. The section further ensures that if a person is not given an information notice they may ask the Regulator to provide the statement of reasons.

This section also defines 'dissatisfied person' to ensure there is clear identification of persons entitled to seek a review of a reviewable decision.

642—Stay of reviewable decisions made by Regulator or authorised officer

Section 642 allows a person who applied for review of a reviewable decision of the Regulator or an authorised officer to apply to the relevant appeal body for a stay of the decision being reviewed. Reviewable decisions made on the basis of a public safety ground are excluded as it is not appropriate for decisions to amend or cancel an exemption or a mass or dimension authority for public safety reasons to be stayed. The section outlines the timeframes and processes that apply to the application for a stay and makes it clear that the appeal body may stay the reviewable decision to secure the effectiveness of the review and any later appeal.

643—Referral of applications for review of decisions made by road managers

Section 643 requires the Regulator to refer applications for the review of decisions of a road manager to the road manager within 2 business days of receipt.

644—Internal review

Section 644 explains who may decide an internal review of a reviewable decision and how the review is to be conducted.

645—Review decision

Section 645 requires the reviewer to, within the prescribed period as defined in the section, make a review decision to either confirm or amend the reviewable decision or to substitute another decision for the reviewable decision. The section outlines the effect of each type of review decision. The section further requires a road manager that is a reviewer to give the Regulator notice of the review decision and reasons.

646—Notice of review decision

Section 646 requires the Regulator to give the applicant a review notice of the review decision as soon as practicable, or for decisions where the reviewable decision was made by a road manager, within 7 days of the reviewer giving the Regulator the notice of the decision. If the review decision is not the decision sought by the applicant, the review notice must include the reasons for the decision and whether or not an appeal is available and, if so, how to appeal. This section also provides, for review decisions relating to mass and dimension permits, that the review notice provide information to assist in calculating the relevant jurisdiction for any appeal if available. This section also explains that if a reviewer fails to make a review decision in the prescribed time, the reviewable decision is taken to be confirmed.

Part 3—Appeals

647—Appellable decisions

Section 647 allows a person to appeal a review decision of a reviewable decision made by the Regulator or an authorised officer to the relevant appeal body and outlines the timeframes that apply. This section also provides that the filing of an appeal does not affect the review decision unless the review decision is stayed.

648—Stay of review decision

Section 648 allows a person who has lodged an appeal against a review decision of a reviewable decision of the Regulator or an authorised officer to apply to the relevant appeal body for a stay. Reviewable decisions made on the basis of a public safety ground are excluded as it is not appropriate for decisions to amend or cancel an exemption or a mass or dimension authority for public safety reasons to be stayed. The section outlines some timeframes and processes that apply to the application for a stay. The section provides that the appeal body may stay the operation of the review decision to secure the effectiveness of the appeal and may give the stay on conditions and it may be amended or revoked.

649—Powers of relevant appeal body on appeal

Section 649 outlines the powers of the appeal body including that the appeal is to be by way of rehearing and made unaffected by the review decision and on the material before the appeal body and any other evidence it accepts. The section requires the appeal body to either confirm the review decision, set aside the review decision and substitute another decision or return the matter to the person who made the reviewable decision with directions.

650—Effect of decision of relevant appeal body on appeal

Section 650 indicates the effect where the relevant appeal body substitutes a decision for a review decision on appeal.

Chapter 12—Administration

Part 1—Responsible Ministers

651—Policy directions

Section 651 provides for the responsible Ministers as a group to be able to give directions to the Regulator about the policies to be applied by the Regulator. While the Regulator must comply with a direction of the responsible Ministers, the responsible Ministers are not able to direct the Regulator regarding a particular person, heavy vehicle or application or proceeding. This section aims to ensure the Regulator is provided with strategic policy guidance without erosion of the Regulator's independence as a statutory authority entitled to make its own decisions.

652—Referral of matters etc by responsible Minister

Section 652 allows a responsible Minister for a participating jurisdiction to refer matters relevant to the responsible Minister's jurisdiction to the Regulator for action or information. These referrals must be consistent with the directions or guidelines issued by the responsible Ministers as a group and cannot interfere with the independent exercise of the Regulator's functions under the law. The Regulator may also charge a reasonable fee based on the cost of dealing with the referral. Any fee charged by the Regulator when dealing with a request by a responsible Minister is not subject to section 740(2) to (4).

653—Approved guidelines for exemptions, authorisations, permits and other authorities

Section 653 provides the responsible Ministers may approve guidelines about various matters including granting exemptions, authorisations, approvals and accreditations under this Law.

The section provides that guidelines are to be published in the Commonwealth Gazette and made available for inspection without charge at the office of the Regulator and on the Regulator's website.

654—Other approvals

Section 654 lists other matters the responsible Ministers may approve including:

a standard for sleeper berths;

standards and business rules relating to fatigue, maintenance and mass management schemes;

a class of auditors for accreditation schemes.

The section provides the approvals are to be published in the Commonwealth Gazette and made available for inspection without charge at the office of the Regulator and on the Regulator's website.

655—How responsible Ministers exercise functions

Section 655 provides that the responsible Ministers, as a group, decide their procedures including voting requirements for making decisions under the law unless the law otherwise specifies. An example of when the law otherwise specifies a procedure is section 662 which indicates the responsible Ministers' recommendation for appointment of Board members is to be unanimous.

This section also clarifies that changes to the membership of the responsible Ministers do not invalidate prior decisions and that the Commonwealth responsible Minister (as defined in section 5) is not compelled by the law to participate in the exercise of functions by the responsible Ministers. The provision also clarifies that if the Commonwealth responsible Minister does decide not to participate it will not stop the remaining members of the responsible Ministers performing the functions, including making unanimous decisions.

Part 2—National Heavy Vehicle Regulator

Division 1—Establishment, functions and powers

656—Establishment of National Heavy Vehicle Regulator

Section 656 establishes the National Heavy Vehicle Regulator. The section further explains that the application of this Law by one or more State or Territory Parliaments has the effect of creating a single national Regulator that is able to exercise its functions in one or across all participating jurisdictions. 'This Law' and 'participating jurisdiction' are defined in section 5 to ensure that jurisdictions, that do not enact an Act to apply the Heavy Vehicle National Law but instead enact a law that substantially corresponds with the Heavy Vehicle National Law, or enact a law that is prescribed by a national regulation, are still participating jurisdictions with the laws being administered and enforced by the same national Regulator.

657—Status of Regulator

Section 657 provides that the Regulator:

is a body corporate with perpetual succession; and

has a common seal; and

can sue and be sued in its own corporate name.

This section also states that the Regulator represents the State.

658—General powers of Regulator

Section 658 provides for the general powers of the Regulator including its ability to enter contracts, acquire, hold, dispose of and deal with real and personal property and other things necessary or convenient in the performance of its functions. This section also provides that the Regulator may enter into service agreements with participating jurisdictions. Service agreements may be for the jurisdiction to undertake activities for the Regulator to assist the Regulator in performing its functions, with examples including, but not limited to:

provision of customer service facilities by staff in jurisdictions;

provision of enforcement or vehicle inspection services.

Service agreements may also be about the Regulator providing services for a jurisdiction, with examples including, but not limited to:

collection of compulsory third party insurance by arrangement with a jurisdiction or insurance provider;

collection of vehicle registration duty;

collection of other monies;

provision of additional enforcement services.

659—Functions of Regulator

Section 659 provides that the main function of the Regulator is to achieve the object of this law as provided in section 3. The section further describes a range of functions in more detail, but this list of functions is not to be considered limiting.

660—Cooperation with participating jurisdictions and Commonwealth

Section 660 indicates that the Regulator is able to exercise its functions in cooperation with, or with the assistance of, a participating jurisdiction and the Commonwealth including government agencies such as departments or other entities of a participating jurisdiction and the Commonwealth. In particular, jurisdictions and the Commonwealth can share information with the Regulator to use in the exercise of its functions.

661—Delegation

Section 661 provides for the Regulator to be able to delegate its functions to:

the chief executive of an entity or department of a participating jurisdiction or the Commonwealth;

the Regulator's Chief Executive Officer or another member of the Regulator's staff;

a person engaged as a contractor of the Regulator;

Any other person the Regulator considers is appropriately qualified to exercise the function.

'Appropriately qualified' is defined in section 5 and can include qualifications, experience or standing. An example of appropriate standing would include a person's position within a public service department of a participating jurisdiction.

As required under clause 30 of Schedule 1 'Miscellaneous provision relating to interpretation', the Regulator's delegations will be by written instrument and may be limited or issued subject to conditions as the Regulator sees fit. A delegate may be allowed to further sub-delegate the function if permitted to do so through the written instrument of delegation.

This approach to delegation accommodates likely operational arrangements for the Regulator including service agreements with jurisdictions, other arrangements with contractors to provide services for the Regulator, but is flexible enough to accommodate other arrangements for the provision of services to the Regulator into the future.

Division 2—Governing board of Regulator

Subdivision 1—Establishment and functions

662—Establishment of National Heavy Vehicle Regulator Board

Section 662 establishes the governing board for the Regulator. The section further explains that the application of this Law by one or more State or Territory Parliaments has the effect of creating a single national Board that is able to exercise its functions in one or across all participating jurisdictions. 'This Law' and 'participating jurisdiction' are defined in section 5 to ensure that even jurisdictions that do not enact an Act to apply the Heavy Vehicle National Law but instead enact a law that substantially corresponds with the Heavy Vehicle National Law or enact a law that is prescribed by a national regulation are still participating jurisdictions with the same single national Board governing the national Regulator.

663—Membership of Board

Section 663 provides for the appointment of the board members by the Queensland Minister on the unanimous recommendation of the responsible Ministers. The Queensland Minister is defined in section 5 to mean the responsible Minister for Queensland. The Board will consist of 5 members with at least one member having expertise in transportation policy, at least one member having expertise in economics, law, accounting, social policy, or education and training, at least one member will have experience in managing risks to public safety arising from the use of vehicles on roads and at least one other member having expertise in financial management skills, business skills, administrative expertise or another skill considered relevant by the responsible Ministers. This section aims to ensure the responsible Ministers have sufficient guidance and the flexibility to appoint the Board it considers appropriate to govern the Regulator in the exercise of its functions.

The section also provides that the Queensland Minister will, in accordance with the unanimous recommendation of the responsible Ministers, also appoint the Chair and Deputy Chair for the Board from amongst the board members.

664—Functions of Board

Section 664 provides that the affairs of the Regulator are to be controlled by the Board. The Board's functions include, subject to directions of the responsible Ministers, deciding the policies of the Regulator and ensuring the Regulator performs its functions in a proper, efficient and effective way.

Subdivision 2—Members

665—Terms of office of members

Section 665 provides for the term of office for Board members being up to three years as determined in their instrument of appointment. The section allows for members to be reappointed if otherwise qualified.

666—Remuneration

Section 666 provides for the responsible Ministers to determine the remuneration for Board members.

667—Vacancy in office of member

Section 667 provides when the office of a Board member becomes vacant including allowing for the Queensland Minister to remove a Board member from office if the responsible Ministers recommend the removal based on the member engaging in misconduct or where they have failed to or are unable to properly exercise their functions as a Board member. This will allow a Board member to be removed for matters of incapacity, incompetence of misbehaviour. Under section 655 the responsible Ministers will decide their own procedures including voting requirements for decisions to remove a Board member.

668—Board member to give responsible Ministers notice of certain events

Section 668 requires a Board member to give notice to the responsible Ministers of certain events including if they are convicted of an offence or have become bankrupt.

669—Extension of term of office during vacancy in membership

Section 669 provides for an extension in term of office for up to 6 months for a Board member if their term of office has been completed but the member has not yet been reappointed or the vacancy has not otherwise been filled.

670—Members to act in public interest

Section 670 requires Board members to exercise their functions impartially and in the public interest.

671—Disclosure of conflict of interest

Section 671 requires Board members to disclose as soon as possible after they become aware of any direct or indirect pecuniary interests or other interests that may conflict with the exercise of the member's function as a Board member. The nature of the conflict must be recorded in a register of interests kept by the Board. Generally, after disclosure of the conflict of interest, the member must not be present during deliberations or participate in any matter that may be affected by the conflict of interest. However, if the member with the conflict is the Chair of the Board, the responsible Ministers may decide to allow the Chair to continue to participate in matters related to the conflict. Similarly, the section provides for another Board member, the Board may decide to allow a member to participate despite the conflict of interest. If a Board member contravenes this section, any decision of the Board is not invalidated, but the Board must reconsider the prior decision.

Subdivision 3—Meetings

672—General procedure

Section 672 provides for the general procedure for calling and conduct of meetings of the Board to be determined by the Board.

673—Quorum

Section 673 provides a quorum for a meeting of the Board is the majority of its members.

674—Chief executive officer may attend meetings

Section 674 allows the chief executive officer of the Regulator to attend Board meetings and to participate in discussions. However, the chief executive officer is not entitled to vote. Also the chief executive officer must disclose any direct personal interest in matters before the Board and must not be present during consideration of these matters.

675—Presiding member

Section 675 describes who will be the presiding member at a Board meeting and, if the voting is otherwise tied, this section provides for the presiding member to have a second vote to decide the matter.

676—Voting

Section 676 provides that a decision of the Board is a decision of the majority of votes cast at a meeting where there is a quorum present.

677—Minutes

Section 677 provides that the Chairperson or presiding member is to ensure minutes are taken of meetings.

678—First meeting

Section 678 provides for the Chairperson to call the first meeting. Subsequent calling of meetings will be governed by the procedures developed under section 672.

679—Defects in appointment of members

Section 679 provides that a decision of the Board is not invalidated by a defect in a Board member's appointment.

Subdivision 4—Committees

680—Committees

Section 680 allows the Board to establish committees to assist in the exercise of the Board's functions.

Division 3—Chief executive officer

681—Chief executive officer

Section 681 provides for a chief executive officer for the Regulator to be appointed by the Board. The chief executive officer may be appointed for a maximum of 5 years, but may be reappointed. The chief executive officer is considered to be a member of the staff. As a member of staff, the remuneration and conditions of employment are governed by section 684.

682—Functions of chief executive officer

Section 682 provides the chief executive officer is responsible for the day to day management of the Regulator and any other functions conferred by the Board.

683—Delegation by chief executive officer

Section 683 allows the chief executive officer to delegate is functions, other than the power of delegation, to appropriately qualified members of the Regulator staff or chief executives of departments or other entities in participating jurisdictions.

Division 4—Staff

684—Staff

Section 684 provides for the Regulator to employ staff, including the chief executive officer, on terms and conditions decided by the Regulator subject to any relevant industrial award or other agreement that applies to the staff.

685—Staff seconded to Regulator

Section 685 allows staff from participating jurisdictions, the Commonwealth or local governments to be seconded to the Regulator.

686—Consultants and contractors

Section 686 allows the Regulator to engage contractors and consultants.

Part 3—Miscellaneous

Division 1—Finance

687—National Heavy Vehicle Regulator Fund

Section 687 establishes the National Heavy Vehicle Regulator Fund to be administered by the Regulator. The Fund does not form part of the consolidated fund or consolidated account for any participating jurisdiction or the Commonwealth.

688—Payments into Fund

Section 688 provides for the monies that are to be paid into the Fund including:

money appropriated by a Parliament for the purposes of the Fund;

fees, charges, costs and expenses paid to or recovered by the Regulator under the Law;

proceeds of investments of money in the Fund;

subject to any declared trusts, all grants, gifts and donations made to the Regulator;

money directed to be paid into the Fund by this Law or another law of a participating jurisdiction or the Commonwealth;

other money or property received by the Regulator in connection with the exercise of its functions;

money paid to the Regulator for the provision of services under a service agreement to a State or Territory.

Subsection (2) clarifies that, with regards to registration charges, the road user component of the charge is not automatically payable into the Regulator Fund but the regulatory component of registration charges is automatically payable into the Regulator Fund. The regulatory component will be defined by a national regulation.

689—Payments out of Fund

Section 689 provides that the moneys that may be paid out of the Fund include:

costs, expenses, discharging any liabilities incurred in the administration or enforcement of this Law, including payments to States and Territories for the provision of services under a service agreement;

moneys directed to be paid out of the Fund under this Law;

other payments recommended by the Regulator and approved by the responsible Ministers.

Under section 655 the responsible Ministers will decide their own procedures including voting requirements for approval of payments out of the Fund under section 689(c).

690—Investment by Regulator

Section 690 allows the Regulator to make secure, low risk investments of moneys in the Fund.

691—Financial management duties of Regulator

Section 691 requires the Regulator to:

carry out its operations efficiently, effectively and economically;

keep proper books and records for all money it receives;

ensure expenditure from the Fund is for lawful purposes and reasonable value for money is received from money expended from the Fund;

have procedures that afford adequate safeguards for correctness, regularity and proprietary of payments from the Fund, receiving and accounting for payments into the Fund and prevention of fraud and mistake;

prepare financial statements in accordance with Australian Accounting Standards;

facilitate audits of financial statements including any additional audits required by the responsible Ministers.

692—Accounts payable to other entities

Section 692 clarifies that the Regulator can establish accounts for moneys that are payable to other entities, such as money collected by the Regulator on behalf of jurisdictions.

Division 2—Reporting and planning arrangements

693—Annual report

Section 693 provides for the Regulator to prepare an annual report within 3 months of the end of each financial year. The section outlines the matters to be included in the annual report and these may include matters prescribed under national regulations. The performance-reporting requirements for the Regulator are aligned with the standards and indicators outlined in the National Performance Standards. The section also provides for the tabling of the annual report in the Parliaments of each participating jurisdiction and the Commonwealth and that it is to be published on the Regulator's website.

694—Other reports

Section 694 provides that the responsible Ministers may direct the Regulator to provide other reports relating to the exercise of the Regulator's functions.

695—Corporate plans

Section 695 provides for the Regulator to annually provide a 3 year corporate plan to the responsible Ministers for approval. The corporate plan is to include the Regulator's objectives, how the Regulator intends achieving the objectives and the proposed budget of the Regulator. The corporate plan is also to include National Performance Measures, including the standards and indicators for the term of the plan. The section also requires the Regulator to advise the responsible Ministers if it makes a significant amendment to the corporate plan or if an issue arises that would have a significant impact on implementing an objective.

Division 3—Oversight of the Regulator and Board

696—Application of particular Queensland Acts to this Law

Section 696 provides for the application of Queensland's Information Privacy Act 2009, Public Records Act 2002 and Right to Information Act 2009 to guide the procedures and standards appropriate for privacy, recordkeeping and access to information for the Regulator and the Board. National regulations will be used to modify the Queensland Acts to ensure they can operate effectively for this scheme in all participating jurisdictions. In particular, the national regulations will be used to make necessary adjustments to cater for administrative arrangements.

The section ensures that jurisdictional agencies, including the Department of Transport and Main Roads in Queensland, road managers, and police services continue to be required to apply their local oversight laws even where they are performing services for the Regulator under a service agreement or delegation. The modified Queensland oversight laws will apply to the activities of the Regulator regardless of which jurisdiction it operates in. This section makes it clear a national regulation can be used to modify the operation of subsection (5).

Division 4—Provisions relating to persons exercising functions under Law

697—General duties of persons exercising functions under this Law

Section 697 provides that persons exercising functions under the Heavy Vehicle National Law must act honestly and with integrity, in good faith and with a reasonable degree of care, diligence and skill. This section also provides for an offence for a person improperly using their position or information that comes to their knowledge through the exercise of their functions under this Law.

698—Protection from personal liability for persons exercising Regulator's or Board's functions under this Law

Section 698 provides for the protection of personal liability for some of the person's exercising functions under the Law. For 'protected persons' liability instead attaches to the Regulator. 'Protected persons' has been defined to clarify who would be indemnified and who would not. Where the definition of 'protected person' in this section refers to any other person exercising functions under this Law' it relates to functions of the Regulator and not other types of activities that may be mentioned in the law. For example, placing an electronic work diary label under section 347 or a statement by an approved auditor under section 459 may be activities identified in this law but it is not a function under this law.

The section clarifies that not only natural persons who are performing functions for the Regulator (including the Regulator Board) are protected from personal liability. An individual who constitutes a body corporate is also protected and other persons or classes of persons can be included by national regulations.

Chapter 13—General

Part 1—General offences

Division 1—Offence about discrimination or victimisation

699—Discrimination against or victimisation of employees

Section 699 provides protection for employees or prospective employees from being dismissed, discriminated against or victimised because they have helped or provided information to a public authority or a law enforcement agency (both of which terms are defined in section 5) or made a complaint about a contravention or alleged contravention of this Law. Such protection is afforded by the creation of offences by an employer or potential employer for such conduct, with a maximum penalty of $10,000 applying to each offence.

There is a reverse onus of proof for an offence against this section. If all the facts constituting the offence are proved other than the reason for the defendant's action, the defendant must prove that the defendant's action was not for the reason that the employee or prospective employee helped or gave information to a public authority or law enforcement agency or made a complaint.

700—Order for damages or reinstatement

Section 700 establishes that if an employer is convicted of an offence against section 639 the court may impose one or more of a range of orders as well as a penalty for the offence. For example, a court may order the employer to pay damages to or reinstate the employee.

It is an offence for a person against whom an order is made not to comply with the order, with a maximum penalty of $10,000 applying.

Division 2—Offences about false or misleading information

701—False or misleading statements

Section 701 creates offences for a person who knowingly provides false or misleading statements to an official (with a maximum penalty of $10,000 applying) or who recklessly provides false or misleading statements to an official (with a maximum penalty of $8,000 applying).

702—False or misleading documents

Section 702 creates offences for a person who knowingly provides false or misleading documents to an official (with a maximum penalty of $10,000 applying) or who recklessly provides false or misleading documents to an official (with a maximum penalty of $8,000 applying).

703—False or misleading information given by responsible person to another responsible person

Section 703 creates an offence for a responsible person for a heavy vehicle (defined in section 5) to give information to another responsible person for a heavy vehicle that they know or ought reasonably to know is false or misleading. A maximum penalty of $10,000 applies. For example, a person who prepares the schedule for a heavy vehicle must not provide information to the driver of a heavy vehicle about the schedule that they know or reasonably ought to know is false or misleading.

Subsection (2) prohibits the reckless provision of false or misleading information by one responsible person for a heavy vehicle to another. This complements and provides a lower maximum penalty ($8,000) than the knowledge based offence for the giving of false or misleading information in subsection (1).

704—Offence to falsely represent that heavy vehicle authority is held etc

Section 704 creates a range of offences, each with a maximum penalty of $10,000, for falsely representing that a current and properly issued heavy vehicle authority is held. A heavy vehicle authority is a heavy vehicle accreditation or an exemption, authorisation, permit or other authority issued under this law. For example, this section creates an offence for a person to represent that they hold a mass or dimension exemption (permit) to operate a class 1 heavy vehicle or a class 3 heavy vehicle which does not comply with a dimension requirement vehicle and to operate the vehicle accordingly, if no such permit is held.

Part 2—Industry codes of practice

705—Guidelines for industry codes of practice

Section 705 enables the Regulator to make guidelines for industry codes of practice that may be registered under the Law.

706—Registration of industry codes of practice

Section 706 provides that the Regulator may register an industry code of practice prepared in accordance with the guidelines. Subsection (2) requires the Regulator to impose a series of statutory conditions on an industry code of practice at registration. These conditions require regular review, the designation of persons to maintain the code, and an obligation to update the code following changes to the guidelines for the preparation and content of the industry code of practice that is in force. The Regulator may impose further conditions on the registration.

Subsection (7) clarifies that the Regulator incurs no liability for loss or damage suffered by a person because the person relied on a registered industry code of practice.

Part 3—Legal proceedings

Division 1—Proceedings

707—Proceedings for offences

Section 707 provides that a proceeding for an offence against this law is to be by way of a summary proceeding and establishes the maximum period for which a proceeding must start as being the later of 2 years after the commission of the offence or 1 year from when the offence comes to the complainant's knowledge but within 3 years after the commission of the offence.

Division 2—Evidence

708—Proof of appointments unnecessary

Section 708 provides that it is not necessary to prove the appointment of an official or the police commissioner.

709—Proof of signatures unnecessary

Section 709 provides that a signature purported to be the signature of an official or the police commissioner is evidence of the signature.

710—Averments

Section 710 provides that in a proceeding for an offence against this Law, certain statements made in the complaint for the offence are evidence of the matters so stated. Examples of matters that may be stated include that at a stated time or during a stated period a vehicle or combination was a heavy vehicle, or that a person was the registered operator of a heavy vehicle, or that a stated location was or was part of a road or a road-related area.

711—Evidence by certificate by Regulator generally

Section 711 provides that a certificate issued by the Regulator may be used as evidence of the matter so stated in the certificate. Examples of matters that may be stated include that at a stated time or during a stated period a vehicle was or was not registered under this Law, or a stated exemption or authorisation under this Law applied or did not apply to the stated person or stated heavy vehicle.

712—Evidence by certificate by road authority

Section 712 provides that a certificate issued by a road authority may be used as evidence of the matter so stated in the certificate. Examples of matters that may be stated include that at a stated time or during a stated period a vehicle was or was not registered or licensed under a law administered by the road authority or a stated location was or was not part of a road or road-related area.

713—Evidence by certificate by Regulator about matters stated in or worked out from records

Section 713 provides that a certificate issued by the Regulator stating that a matter appears in or has been worked out from a record kept by the Regulator or appears in or has been worked out from a record accessed by the Regulator for the administration or enforcement of this law, is evidence of the matter so stated.

714—Evidence by certificate by authorised officer about instruments

Section 714 provides that a statement made by an authorised officer about the functioning of a weighing device or an intelligent transport system is evidence of the matter so stated.

715—Challenging evidence by certificate

Section 715 requires that a defendant who intends to challenge evidence provided by certificate under section 711, 712, 713 or 714(1) must give notice of their intention to challenge and describes the way in which such notice is to be given.

716—Evidence by record about mass

Section 716 provides that a record made by the operator of a weighbridge or weighing facility about the mass of a heavy vehicle or a component of a heavy vehicle is admissible in a proceeding under this Law and is evidence of the mass of the vehicle or component of the vehicle at the time it was weighed.

717—Manufacturer's statements

Section 717 provides that a manufacturer may make a written statement as to a range of matters relating to:

the mass rating for a heavy vehicle or a component of a heavy vehicle; or

the performance rating for equipment used to restrain a load.

The manufacturer's statement is admissible in a proceeding and is evidence of the matter so stated.

718—Measurement of weight on tyre

Section 718 provides that the maximum load capacity marked or printed on a tyre is evidence of the maximum load capacity for the tyre at cold inflation pressure decided by the manufacturer. It also provides for how mass can be determined if it is impracticable to work out the mass on each tyre in an axle or axle combination.

719—Transport and journey documentation

Section 719 provides that transport documentation and journey documentation are admissible in a proceeding under this Law and provide evidence about certain matters, such as the status of parties to a transaction, the destination of a load, the location of a person, the time and date at which a range of events took place, and the location of anything mentioned in the documentation.

720—Evidence not affected by nature of vehicle

Section 720 provides that evidence obtained in relation to a vehicle is not affected merely because the vehicle is not a heavy vehicle.

721—Certificates of TCA

Section 721 provides that a certificate purporting to be signed by a person on behalf of TCA is evidence of a matter so stated in the certificate. Examples of matters that may be stated include that at a stated time or during a stated period an intelligent transport system was or was not approved, or that a person was or was not an intelligent access service provider.

A person signing a certificate is presumed, unless the contrary is proved, to have been authorised by TCA to sign the certificate on behalf of TCA.

722—Approved intelligent transport system

Section 722 provides that for a range of matters relating to the operation of an approved intelligent transport system there is a presumption that the system was operating properly at the time unless proved otherwise. Examples of matters relating to the operation of the system include the information generated, stored, displayed, recorded, analysed, reported or transmitted by the system are correct.

This section also establishes that in a proceeding where it is established by contrary evidence that particular information was not a correct representation of the information generated by the system, the presumption continues to apply to the remaining information.

A defendant who intends to challenge a matter provided for under this section must give notice of their intention to challenge and describes the way in which such notice is to be given.

723—Evidence as to intelligent access map

Section 723 establishes a series of evidential presumptions to facilitate the admissibility of IAP maps in legal proceedings. Subsection (1) establishes a conclusive presumption that a particular certified map was or was not the intelligent access map as issued by TCA on a stated date or during a stated period. Subsections (2) and (3) establish rebuttable presumptions as to the correctness of the contents of the certified map, and the authority of the signatory respectively.

724—Reports and statements made by approved intelligent transport system

Section 724 provides that a report purporting to be made by an intelligent transport system is presumed to have been properly made and correct and is admissible in a proceeding under this law as evidence of the matters stated in it.

However this does not apply to information that was manually entered into the system by the operator or driver of a heavy vehicle. For example if a driver enters information about the mass of a vehicle into the system, the mass stated in a report generated by the system is not evidence of the mass of the vehicle.

It also states that in a proceeding where it is established by contrary evidence that part of a report was not a correct representation of the information generated by the system, the presumption continues to apply to the remainder of the report.

There is a requirement that a defendant who intends to challenge a matter provided for under this section must give notice of their intention to challenge and describes the way in which such notice is to be given.

725—Documents produced by an approved electronic recording system

Section 725 provides that documents purporting to be made by an approved electronic recording system constituting an electronic work diary or of which an electronic work diary is a part is admissible in a proceeding under this Law and is evidence of a matter stated in it.

726—Statement by person involved with use or maintenance of approved electronic recording system

Section 726 provides that a statement made by a person involved with the use or maintenance of an approved electronic recording system constituting an electronic work diary or of which an electronic work diary is a part about the maintenance of the system is admissible in a proceeding under this Law and is evidence of the matters stated in it.

Part 4—Protected information

727—Definitions for Chapter 13 Part 4

Section 727 provides definitions of certain terms used in this Part of the Law including 'authorised use', 'law enforcement agency' and 'protected information'.

The definition of authorised use provides for the authorisation, disclosure and use of personal information about a person in certain circumstances, including without the person's consent. This could infringe on a person's right to privacy.

Subsection (2) clarifies that it is also an authorised use of protected information disclosed to or otherwise held by a police agency for any purpose or for a particular purpose to disclose the information to another police agency authorised to hold protected information (whether or not for the same purpose).

Subsection (3) clarifies that the authorised disclosure of protected information to an entity includes a reference to the disclosure of the information to a duly authorised employee or agent of the entity.

728—Duty of confidentiality

Section 728 places a duty of confidentiality on a person who is or has been exercising functions under this Law not to disclose protected information to another person. However, the Regulator may disclose information which confirms that a stated person is the registered operator of a stated heavy vehicle or disclosing registration details to the executor or administrator of a person's deceased estate. In addition, disclosure may be made to an entity for an authorised use or to, or with, the consent of the person to whom the information relates.

729—Protected information only to be used for authorised use

Section 729 requires that protected information may only be used for certain purposes and outlines those purposes.

Part 5—National regulations

730—National regulations

Section 730 gives authority to the Governor of the State of Queensland acting with the advice of the Executive Council of Queensland to make regulations under this Law on the unanimous recommendation of the responsible Ministers.

This section prescribes the matters which may be included in the regulations and establishes maximum penalties which may be imposed under the regulations. The maximum penalty for an individual is $4,000 and is $20,000 for a corporation, this is higher than that which is normally included in regulations.

731—National regulations for approved vehicle examiners

Section 731 authorises the making of regulations to establish and manage a scheme for persons performing vehicle examination functions under the Law. Subsection (2) allows for the recognition of existing schemes by which comparable entities are currently managed under State and Territory laws as an interim measure to prevent dislocation during the establishment of the new scheme.

732—National regulations for publication of agreements for services to States or Territories

Section 732 allows for the making of regulations to specify particular matters contained in or relating to agreements with States or Territories to provide services that are to be published on the Regulator's website.

733—Publication of national regulations

Section 733 provides that regulations made under this Law are to be published on the New South Wales legislation website.

It also provides that a regulation commences on a day or days to be specified in the regulation, being not earlier than the date it is published.

734—Scrutiny of national regulations

Section 734 provides a process to allow responsible Ministers to give due consideration to, and advice on, issues raised during jurisdictional parliamentary scrutiny of national regulations with the aim of avoiding possible disallowance.

Subsection (1) requires the responsible Minister for a participating jurisdiction to refer any adverse report about a national regulation from a legislation scrutiny body for that jurisdiction to the responsible Ministers for consideration and advice.

Subsection (2) requires responsible Ministers to prepare advice on the adverse report and provide a report to the relevant responsible Minister about the issues raised.

The process provides an avenue for the responsible Ministers to be advised of issues raised, and to provide advice that may assist a local Minister in maintaining national consistency across the regulatory scheme.

Part 6—Other

735—Approved forms

Section 735 states that the Regulator may approve forms and it requires the Regulator to publish the approval of a form on its website.

736—Penalty at end of provision

Section 736 provides that the maximum penalty for an offence or contravention of a requirement of the Law is the penalty stated at the end of the relevant provision.

737—Increase of penalty amounts

Section 737 allows for the indexation of penalties for offences against the Law. The indexation mechanism is to be set out in regulations and is intended to be derived from generally accepted indexes such as inflation, for example, or the consumer or labour price indexes published by the Australian Bureau of Statistics. The note to subsection (2) recognises that the application of the index may result in no increase at all in a given year.

In addition to the ordinary requirement of a unanimous recommendation required for regulations made under the Law in section 730, a regulation establishing the index referred to in subsection (2) requires responsible Ministers to be satisfied that the method generally accords with increases in relevant inflation indexes or similar indexes.

738—Service of documents

Section 738 sets out the procedure for serving documents required or permitted to be served on a person under this Law.

739—Service by post

Section 739 prescribes the procedure for serving documents required or permitted to be served under this Law by post. It establishes that service is taken to have been effected at the time at which the letter would normally be delivered in the ordinary course of post unless proved otherwise.

740—Fees

Section 740 provides that the regulations may prescribe fees payable for an application under this Law or for the issue of a work diary for the driver of a fatigue-regulated heavy vehicle. It also enables the Regulator to set fees for the provision of a service in connection with the administration of this Law (other than the fees which must be prescribed in the regulations), and establishes that the fees set by the Regulator must be reasonable and not more than the reasonable cost of providing the service.

It is also a requirement for the Regulator to publish the fees it sets in the Commonwealth Gazette and on the Regulator's website.

Subsection (3) provides a head of power for the making of national regulations to provide that stated kinds of fees may be set by the Regulator for inspection services, except so far as those fees are provided for under another law of this jurisdiction.

Subsection (6) allows the Regulator to waive fees in circumstances prescribed by national regulations.

Subsection (7) clarifies that a decision maker can decline to deal with a matter if the fee is not paid.

741—Recovery of amounts payable under Law

Section 741 states that a fee, charge or other amount payable under this Law is a debt due to the Regulator and may be recovered.

742—Contracting out prohibited

Section 742 has the effect of voiding any contract or agreement to the extent to which it is contrary to the Law or purports to change the effect of a provision of the Law or requires the payment or reimbursement of a penalty payable by another person under the Law.

This section does not limit parties from entering into a contract that imposes greater or more onerous obligations than those required by the Law.

743—Other powers not affected

Section 743 provides that this Law does not affect any power a court, tribunal, or official has apart from the Law. This includes a power or obligation under another law to amend, suspend, cancel or otherwise deal with the registration of a heavy vehicle.

Chapter 14—Savings and transitional provisions

Part 1—Interim provisions relating to Ministers and Board

744—Responsible Ministers

Section 744 states that any jurisdiction that has signed the Inter-governmental Agreement on Heavy Vehicle Regulatory Reform may nominate a responsible Minister (as defined in section 5) even though the jurisdiction is not yet a participating jurisdiction (as defined in section 5) for the purposes of relevant provisions of the Law. Those are defined in this section as the provisions relating to the function of responsible Ministers other than section 652. Section 652 allows a responsible Minister for a participating jurisdiction to refer a matter relevant to that jurisdiction to the Regulator for action or to ask the Regulator for information about the exercise of the Regulator's function as applied in that jurisdiction.

Subsection (3) specifies that this applies until the prescribed day for the jurisdiction. This is defined as the earlier of the participation day for the jurisdiction (defined in section 5 as the day it becomes a participating jurisdiction) or 30 June 2014.

The effect of this section is to ensure that responsible Ministers may participate in key decisions of the responsible Ministers as a group during the initial implementation of the scheme, including recommendations about appointment of the Board members and national regulations.

745—Exercise of powers by Board between enactment and commencement

Section 745 provides that if the responsible Ministers rely on section 30 of Schedule 1 to the Law to appoint the members of the Board after enactment but before commencement of section 663 and a provision conferring a function on the Board has not yet commenced, the members may meet and exercise such a function in the same way and subject to the same conditions as if the relevant provision had commenced. Section 30 of Schedule 1 deals with the exercise of specified powers between the enactment of a provision and its commencement.

For example, the Board may appoint the chief executive officer for the Regulator even if section 681 has not yet commenced. This will allow necessary operational matters to be in place for the simultaneous commencement of the Regulator and relevant provisions of the Law.

The section also provides that in exercising functions, Board members are entitled to receive the remuneration and allowances specified under section 666, even if that section has not commenced. However, in determining duration of office, a member's term does not start until section 663 commences. In addition, the exercise of a function does not confer a right or impose a liability on a person before the relevant provision commences.

Part 2—General provisions

746—Application of Part 2

747—Definitions for Part 2

748—General savings and transitional provision

749—Expiry of certain permits, exemptions, notices and authorities

750—Amendment or cancellation of instruments carried over from former legislation

751—Expiry of industry codes of practice

752—Pending matters

753—Preservation of current PBS scheme

754—Preservation of contracts for current PBS scheme

755—National regulations for savings and transitional matters

Chapter 14 Part 2 (sections 746 to 755) provides general savings and transitional arrangements. This Part will work with national regulations and provisions in local application laws (that is the provisions in local laws that apply the National Law) to collectively manage the savings and transitional arrangements. The savings and transitional provisions in Chapter 14 Part 2 ensure or facilitate the following:

As a general principle, from commencement of the National Law in a jurisdiction, matters relating to the administration of heavy vehicles under the National Law will be transferred from the jurisdictional agency to the Regulator, unless excluded. For example, applications for permits which have not yet been decided by the jurisdictional agency will move to the Regulator for finalisation. However, the transitional arrangement will still support a cooperative arrangement between the Regulator and jurisdiction in finalising these matters.

Permits, notices or other exemption instruments in force prior to the commencement day will continue for a period as if they were made under the National Law. Consequently, after the commencement day these matters will be subject to the National Law and may be cancelled as if they were issued under the National Law.

Permits will be saved for up to 3 years from commencement unless they sooner expire or are cancelled.

Notices and similar exemption instruments of a class nature, will continue for a maximum of 5 years from commencement in the jurisdiction unless they sooner expire, are cancelled or are replaced by a new notice or instrument that covers the same matters in a substantially similar way as the previous notice.

Industry Codes of Practice will be preserved for up to 3 years unless they have an earlier review date.

The bulk of the administrative aspects of the PBS scheme and the instruments and decisions made under the scheme prior to the commencement of the Heavy Vehicle National Law will continue until the arrangements introduced by the Heavy Vehicle National Law Amendment Act 2012 are implemented.

As a general principle, matters relating to offences under local laws or decisions already made under local laws (including for example, review and appeals of decisions or prosecutions made under local laws) are not to be automatically transferred to the Regulator.

The savings and transitional scheme is intentionally designed to be flexible enough to provide an effective response for savings and transitional matters across a broad range of matters that may arise through implementation.

Schedule 1—Miscellaneous provisions relating to interpretation

Schedule 1 to the Law 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—see section 10.

Schedule 2—Subject matter for conditions of mass or dimension authorities

Schedule 2 to the Law sets out the types of conditions the Regulator may consider appropriate to impose under a mass or dimension exemption (notice), or a mass or dimension (permit), or a class 2 heavy vehicle authorisation (permit)—see sections 119, 125 and 146.

Schedule 3—Reviewable decisions

Schedule 3 to the sets out the decisions that are reviewable decisions for the purposes of Chapter 11 of the National Law. Part 1 identifies the reviewable decisions of the Regulator, Part 2 identifies the reviewable decisions of an authorised officer, and Part 3 identifies reviewable decisions of a relevant road manager—see section 640.

Schedule 4—Provisions specified for liability of executive officers for offences by corporation

Schedule 4 is inserted to outline the provisions specified for liability of executive officers for offences by corporations—see section 636.

Debate adjourned on motion of Mr Gardner.

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