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SLI 2008 No. 152 Regulations as made
These Regulations improve road safety and compliance with road safety laws by imposing responsibility in relation to speeding by heavy vehicles on those whose business activities influence the conduct of the drivers of those vehicles.
Administered by: Infrastructure and Regional Development
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s12 item 44
Made 17 Jul 2008
Registered 22 Jul 2008
Tabled HR 26 Aug 2008
Tabled Senate 26 Aug 2008

National Transport Commission (Model Act on Heavy Vehicle Speeding Compliance) Regulations 20081

Select Legislative Instrument 2008 No. 152

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the National Transport Commission Act 2003.

Dated 17 July 2008

P. M. JEFFERY

Governor-General

By His Excellency’s Command

ANTHONY ALBANESE


Contents

                        1     Name of Regulations                                                        2

                        2     Commencement                                                              2

                        3     Model legislation                                                              2

Schedule 1       Text of the Model Act on Heavy Vehicle Speeding Compliance          

1              Name of Regulations

                These Regulations are the National Transport Commission (Model Act on Heavy Vehicle Speeding Compliance) Regulations 2008.

2              Commencement

                These Regulations commence on the day after they are registered.

3              Model legislation 

                For section 7 of the National Transport Commission Act 2003 (the NTC Act), Schedule 1 sets out model legislation.

Note 1   The model legislation does not have the force of law (see paragraph 7 (2) (a) of the NTC Act).

Note 2   These Regulations are not subject to disallowance — see the Legislative Instruments Act 2003, subsection 44 (2) (table, item 44) and the Legislative Instruments Regulations 2004, regulation 8 and Schedule 2 item 7.

Note 3   These Regulations are not subject to sunsetting — see the Legislative Instruments Act 2003, subsection 54 (2) (table, item 51) and the Legislative Instruments Regulations 2004, regulation 9 and Schedule 3 item 4.


Schedule 1        Text of the Model Act on Heavy Vehicle Speeding Compliance

Contents

Part 1                    Preliminary matters

Division 1                Introductory matters

                       1.     Name                                                                             8

                       2.     Approval                                                                          8

                       3.     Purpose and outline                                                         9

Division 2                Interpretative provisions

                       4.     Definitions                                                                     10

                       5.     Examples                                                                      12

                       6.     Notes                                                                            12

                       7.     Gender                                                                          12

                       8.     This Act to be read with Compliance and Enforcement Act 12

                       9.     Relationship of this Act to other laws                               13

                      10.     Crown to be bound                                                         14

                      11.     Intention irrelevant in determining causation                      14

                      12.     Cause includes “contribute to causing" and "encourage"    15

                      13.     Objective reasonableness test to be used in determining causation     15

Part 2                    Specific Duties and Offences

Division 1                Duties on employers, prime contractors and operators

                      14.     Who is an employer ?                                                     16

                      15.     Who is a prime contractor ?                                            16

                      16.     Who is an operator ?                                                      16

                      17.     Duty concerning business practices                                17

                      18.     Duty to ensure offences are not committed                       19

Division 2                Duties on schedulers

                      19.     Who is a scheduler ?                                                     22

                      20.     Duty concerning driver’s schedule                                    22

Division 3                Duties on loading managers

                      21.     Who is a loading manager ?                                            24

                      22.     Duty on loading managers                                              25

Division 4                Duties on certain consignors and consignees

                      23.     Consignors to whom this Division applies                         26

                      24.     Consignees to whom this Division applies                        26

                      25.     Duties on consignors and consignees                              26

Division 5                Certain requests, contracts etc prohibited

                      26.     Certain requests etc prohibited                                        28

                      27.     Certain contracts etc prohibited                                       29

                      28.     Who are the parties in the chain of responsibility ?            29

Part 3                    Compliance and enforcement provisions

Division 1                Reasonable steps

                      29.     One method of taking reasonable steps                           30

                      30.     Additional matters concerning taking reasonable steps      31

Division 2                Evidential matters

                      31.     Deciding what a person ought reasonably to have known   33

                      32.     Commission of speeding offence is irrelevant to Part 2 prosecutions    33

Division 3                Enforcement powers

                      33.     General enforcement powers                                           34

Division 4                Penalties

                      34.     Penalties                                                                       34

                      35.     Provisions relating to first offences and second or subsequent offences            35

Part 4                    Regulations

                      36.     Regulations                                                                   36

 


Schedule 1     Text of the Model Act on Heavy Vehicle Speeding Compliance

The following provisions are intended to provide the basis for nationally consistent transport laws on the topics with which they deal.  They do not, of themselves, have any legal effect.

Drafting note This Bill has been drafted on the understanding that it will be made in each jurisdiction in conjunction with the equivalent of the C & E Act.

Part 1                 Preliminary matters

Division 1              Introductory matters

1.             Name

                This is the Model Act on Heavy Vehicle Speeding Compliance.

2.             Approval

                This Act was approved by the Australian Transport Council on 21 December 2007.

3.             Purpose and outline

         (1)   The main purpose of this Act is to improve road safety and compliance with road safety laws by imposing responsibility in relation to speeding by heavy vehicles on those whose business activities influence the conduct of the drivers of those vehicles.

         (2)   In outline, this Act –

                (a)    requires those who are most directly responsible for the operation of a heavy vehicle to take reasonable steps to ensure that their activities do not cause the driver to exceed speed limits; and

               (b)    requires anyone who schedules the activities of a heavy vehicle, or its driver, to take reasonable steps to ensure that the schedule of the vehicle and the driver does not cause the driver to exceed speed limits; and

                (c)    requires heavy vehicle loading managers to take reasonable steps to ensure that the loading or unloading arrangements for a vehicle do not cause the driver of the vehicle to exceed speed limits; and

               (d)    requires certain people who consign goods for transport by heavy vehicle, or who receive such goods, to take reasonable steps to ensure that the terms of consignment of those goods do not cause heavy vehicle drivers to exceed speed limits; and

                (e)    forbids anyone from asking a heavy vehicle driver to exceed speed limits and from entering into any agreement that causes a heavy vehicle driver to exceed speed limits.

Note   This Act does not impose any obligations on employed drivers.  Drivers of heavy vehicles are required to obey speed limits imposed under the Australian Road Rules, or as a condition of a permit or exemption that applies to a vehicle.  Penalties on drivers for failing to comply with speed limits include demerit points, licence suspension, cancellation or disqualification, and fines.

Division 2    Interpretative provisions

4.             Definitions

                In this Act –

C & E Act means <insert name of the jurisdiction legislation implementing the model legislation set out in Schedule 1 of the National Transport Commission (Road Transport Legislation – Compliance and Enforcement Bill) Regulations 2006 of the Commonwealth>;

consignee has the same meaning as it has in the C & E Act;

consignor has the same meaning as it has in the C & E Act;

court imposed penalty – see section 34(1);

driver means the driver of a heavy vehicle and includes an employed driver and a self-employed driver;

Note   Driver is defined in the C & E Act.

employed driver means a driver who is employed by someone else to drive a heavy vehicle;

employer – see section 14;

heavy vehicle has the same meaning as it has in the C & E Act;

Note  Under the C & E Act, a heavy vehicle is basically any motor vehicle or trailer that has a gross vehicle mass of more than 4.5 tonnes.

infringement notice penalty – see section 34(2);

operator – see section 16;

parties in the chain of responsibility – see section 28;

people includes a person who is a body corporate or a body politic;

prime contractor – see section 15;

road law [local variations]

scheduler – see section 19;

self-employed driver means a driver who is not an employed driver;

speed limit includes –

                (a)    a sign-posted speed limit;

               (b)    a speed limit specified by legislation;

                (c)    a speed limit that applies to a particular vehicle;

               (d)    a prohibition on travelling between 2 places in less than a specified time.

Drafting note Several of the substantive definitions referred to in this section are exactly the same as in the C & E Act, while others are somewhat modified.  In the case of definitions that are the same, implementing jurisdictions may prefer to reference the definitions directly in the C & E Act.

5.             Examples

         (1)   Examples are part of this Act.

         (2)   An example of the operation of a provision of this Act –

                (a)    is not exhaustive; and

               (b)    may extend the meaning of the provision; and

                (c)    does not limit the meaning of the provision, unless the contrary intention appears.

6.             Notes

         (1)   Notes that are at the foot of a provision are part of this Act.

         (2)   Marginal notes, footnotes at the bottom of a page and endnotes are not part of this Act.

7.             Gender

                If the context permits, in this Act a reference to “she or he”, “he or she”, “her or him” or “him or her” is to be read as including a reference to “it”, and a reference to “her or his” or “his or her” is to be read as including a reference to “its”.

Drafting note The interpretation legislation of some jurisdictions may already make provision for examples, notes and gender references consistent with sections 5, 6 and 7.

8.             This Act to be read with Compliance and Enforcement Act

         (1)   This Act is to be read as one with the C & E Act.

         (2)   For the purposes of the C & E Act, this Act is to be taken to be a road law.

         (3)   Any provision of the C & E Act that is relevant to complying with or enforcing a road law or that Act applies in relation to this Act unless the provision is only able to be applied in relation to a breach of a mass, dimension or load restraint requirement under that Act.

Example

Section 185 of the C & E Act makes void any term of a contract or agreement that purports to exclude, limit or modify the operation of that Act. This provision is able to be applied in relation to breaches other than breaches of a mass, dimension or load restraint requirement and therefore under this subsection it also applies in relation to this Act.

         (4)   The regulations may make further provision about the application of provisions of the C & E Act to this Act.

9.             Relationship of this Act to other laws

         (1)   Nothing in this Act abrogates –

                (a)    the <insert name of the jurisdiction's primary occupational health and safety legislation> or any regulations made under that Act;

               (b)    any other law or legal instrument that is specified by the regulations for the purposes of this sub-section.

Drafting note Paragraph (b) is intended to enable a jurisdiction to ensure the primacy of any law or legal instrument that it believes may be abrogated in some way by this Act.

Examples of another law or legal instrument

·   another law relating to worker safety

·   an industrial award that provides for worker safety in relation to journeys.

         (2)   Nothing in this Act abrogates a provision of any other law or legal instrument to the extent that the law or legal instrument is not inconsistent with this Act.

         (3)   Evidence of a relevant contravention of this Act or the regulations made under this Act is admissible in any proceedings for an offence against the <insert name of the jurisdiction's primary occupational health and safety legislation> or any regulations made under that Act.

         (4)   Compliance with this Act or the regulations made under this Act, or with any requirement imposed under this Act or those regulations, is not, in itself, evidence that a person has complied with the <insert name of the jurisdiction's primary occupational health and safety legislation> or any regulations made under that Act or with a common law duty of care.

10.           Crown to be bound

                This Act binds the Crown, not only in right of <this jurisdiction>, but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

Division 3              Causation

11.           Intention irrelevant in determining causation

                For the purposes of this Act, a person can cause something to happen even though she or he had no intention of causing that thing to happen.

12.           Cause includes “contribute to causing” and “encourage

                For the purposes of this Act, a reference to causing a thing is to be read as including a reference to contributing to causing the thing, and to encouraging the thing.

13.    Objective reasonableness test to be used in determining causation

         (1)   In this section:

duty holder means a person on whom a duty is imposed by Part 2 to take reasonable steps to ensure that a thing will not cause a speeding offence;

speeding offence means an occurrence in which the driver of a vehicle drives the vehicle in excess of any speed limit that applies to the vehicle.

         (2)   This section applies if an act of, or a failure to act by, a duty holder causes a speeding offence to occur.

         (3)   If it is likely that a reasonable person would have foreseen that the act, or failure to act, would be reasonably likely to cause the occurrence of the speeding offence, for the purposes of this Act there is created a rebuttable presumption that the duty holder caused the occurrence of the speeding offence.

Part 2        Specific Duties and Offences

Division 1    Duties on employers, prime contractors and operators

14.           Who is an employer?

                An employer is a person who engages someone else to drive a heavy vehicle under a contract of employment, apprenticeship or training.

Example of an employer

A labour hire company.

15.           Who is a prime contractor?

                A prime contractor is a person who engages someone else to drive a heavy vehicle under a contract for services.

Example of a prime contractor

A logistics business that engages a subcontractor to transport goods.

16.           Who is an operator?

         (1)   An operator of a heavy vehicle is a person who is responsible for controlling or directing the operations of –

                (a)    in the case of a vehicle (including a vehicle in a combination) – the vehicle; or

               (b)    in the case of a combination – the towing vehicle in the combination.

         (2)   A person is not an operator merely because she or he –

                (a)    owns a vehicle or combination; or

               (b)    drives a vehicle or combination; or

                (c)    maintains, or arranges for the maintenance of, a vehicle or combination; or

               (d)    arranges for the registration of a vehicle.

17.           Duty concerning business practices

         (1)   This section applies to –

                (a)    the employer of an employed driver of a vehicle; and

               (b)    the prime contractor of a self-employed driver of a vehicle; and

                (c)    the operator of a heavy vehicle if the driver of the vehicle is to make a journey in the vehicle for the operator.

         (2)   The employer, prime contractor and operator each must take all reasonable steps to ensure that her or his business practices will not cause the driver to exceed any speed limit that applies to the vehicle.

Court imposed penalty:     $5 000 for a first offence;

$10 000 for a second or subsequent offence.

Examples of some reasonable steps that can be taken

·      regular consultation with other parties in the chain of responsibility, unions and industry associations to address compliance issues

·      reviewing driving, work and trip records

·      a program to report and monitor (for instance, by GPS tracking) incidents of speeding, and related risks and hazards

·      training and information for drivers, staff and parties in the chain of responsibility about speeding

·      regular maintenance of vehicle components that relate to complying with speed limits (for instance, speedometer, engine management system and speed limiters).

Note   Section 30 sets out some of the factors a court may consider in determining whether a person has taken all reasonable steps.  Section 29 sets out one method by which an employer, prime contractor and operator can take all reasonable steps for the purposes of this subsection.

         (3)   In subsection (2), business practices means the practices of the employer, prime contractor or operator in running her or his business, and includes –

                (a)    the operating policies and procedures of the business; and

               (b)    the human resource and contract management arrangements of the business; and

                (c)    arrangements for managing safety.

         (4)   The employer must not cause the driver to drive the vehicle unless –

                (a)    the employer has complied with subsection (2); and

               (b)    the employer, after making reasonable inquiries, is satisfied that the scheduler has complied with section 20.

Court imposed penalty:     $2 000 for a first offence;

$5 000 for a second or subsequent offence.

Infringement notice penalty: $600.

         (5)   The prime contractor and operator each must not cause the driver to drive the vehicle unless –

                (a)    the prime contractor or operator, as the case may be, has complied with subsection (2); and

               (b)    the prime contractor or operator, after making reasonable inquiries, is satisfied that the scheduler has complied with section 20.

Court imposed penalty:     $2 000 for a first offence;

$5 000 for a second or subsequent offence.

Infringement notice penalty:  $600.

         (6)   An offence against subsection (2), (4) or (5) is an offence of absolute liability.

18.           Duty to ensure offences are not committed

         (1)   In this section –

speeding offence means an occurrence in which the driver of a vehicle drives the vehicle in excess of any speed limit that applies to the vehicle.

         (2)   This section applies to –

                (a)    the employer of an employed driver of a vehicle; and

               (b)    the prime contractor of a self-employed driver of a vehicle; and

                (c)    the operator of a heavy vehicle if the driver of the vehicle is to make a journey in the vehicle for the operator.

         (3)   A person to whom this section applies commits an offence if, at any time that a driver of a vehicle, or a vehicle, is subject to the person's control, the driver commits a speeding offence while driving the vehicle.

For a level 1 offence:

Court imposed penalty:     $1 000.

Infringement notice penalty:  $300.

For a level 2 offence:

Court imposed penalty:     $2 000 for a first offence;

$5 000 for a second or subsequent offence

Infringement notice penalty:  $600.

For a level 3 offence:

Court imposed penalty:     $5 000 for a first offence;

$10 000 for a second or subsequent offence

Note   Subsection (5) sets out how the relevant level of the offence is to be determined.

         (4)   Despite subsection (3), a person is not liable under that subsection if the vehicle was a combination, and neither the driver nor the towing vehicle was subject to the person's control. 

         (5)   The levels of offence referred to in subsection (3) are to be determined using the following table –

 

Speed limit at the place where the speeding offence occurred

Type of heavy vehicle

Penalty level

Recorded speed of <15 km/h

Recorded speed of =15 km/h

50-60 km/h

All

Level 1

Level 1

70-80 km/h

All

Level 1

Level 2

90 km/h

Road trains (where speed limited to 90 km/h)

Level 2

Level 3

90 km/h

Non-road trains

Level 1

Level 2

100 km/h

Non-road train heavy combinations

Level 2

Level 3

>100 km/h

Non-combination heavy vehicles

Level 2

Level 3

         (6)   It is a defence to a charge under this section if the person charged establishes that –

                (a)    she or he did not know, and could not reasonably be expected to have known, of the conduct that constituted the offence; and

               (b)    either –

                          (i)    she or he took all reasonable steps to prevent that conduct from occurring; or

                         (ii)    there were no steps that she or he could reasonably have been expected to have taken to prevent that conduct from occurring.

         (7)   For the purposes of this section –

                (a)    it is irrelevant whether the driver has been, or will be, charged with the speeding offence, or has been, or will be, convicted of the speeding offence; and

               (b)    evidence that the driver has been convicted of the speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the charge that resulted in the conviction; and

                (c)    evidence that the driver has paid the infringement penalty sought by an infringement notice for a speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the infringement notice.

         (8)   An offence against subsection (2) is an offence of absolute liability.

Division 2              Duties on schedulers

19.           Who is a scheduler ?

                A scheduler is a person –

                (a)    who schedules a driver’s work or rest time; or

               (b)    who schedules the transport of passengers or goods by road.

20.           Duty concerning driver’s schedule

         (1)   This section applies to the scheduler of a heavy vehicle, or of a driver of a heavy vehicle.

         (2)   The scheduler must take all reasonable steps to ensure that a driver’s schedule for driving the vehicle will not cause the driver to exceed any speed limit that applies to the vehicle.

Court imposed penalty:     $5 000 for a first offence;

$10 000 for a second or subsequent offence.

Examples of some reasonable steps that can be taken

·      consulting drivers about their schedules and work requirements

·      taking account of the average speed that can be lawfully traveled on scheduled routes

·      allowing for traffic conditions or other delays in schedules

·      contingency planning in relation to schedules.

Note   Section 30 sets out some of the factors a court may consider in determining whether a person has taken all reasonable steps.  Section 29 sets out one method by which a scheduler can take all reasonable steps for the purposes of this subsection.

         (3)   The scheduler must not cause the driver to drive the vehicle unless –

                (a)    the scheduler has complied with subsection (2); and

               (b)    the driver’s schedule for driving the vehicle allows –

                          (i)    for compliance with all speed limits applying to the vehicle; and

                         (ii)    for the driver to take all required rest breaks (in accordance with all laws regulating the work and rest hours of the driver); and

                         (iii)    for traffic conditions and other delays that could reasonably be expected.

Examples of traffic conditions and other delays that could reasonably be expected

·      the actual average speed able to be travelled lawfully and safely by the driver on the route in question

·      known traffic conditions such as road works or traffic congestion on the route in question

·      delays caused by loading, unloading or queuing.

Court imposed penalty:     $2 000 for a first offence;

$5 000 for a second or subsequent offence.

Infringement notice penalty:  $600.

         (4)   An offence against subsection (2) or (3) is an offence of absolute liability.

Division 3              Duties on loading managers

21.           Who is a loading manager?

                A loading manager is –

                (a)    a person who manages, or who is responsible for the operation of, a premises at which usually on a business day at least 5 heavy vehicles are loaded with goods for transport, or have goods that the vehicles have transported unloaded; or

               (b)    a person who directly or indirectly supervises, manages or controls the loading or unloading of heavy vehicles at such a premises.

Examples of a loading manager

A company that runs, or a site manager for, a distribution centre.

Example of calculation of vehicle numbers

At a premises on a usual business day, 3 heavy vehicles are loaded with goods, and 3 other heavy vehicles have goods that have been transported to the premises unloaded.  The manager of the premises is a loading manager because at least 5 vehicles are usually loaded or unloaded at the premises on a business day.

22.           Duty on loading managers

         (1)   A loading manager must take all reasonable steps to ensure that the arrangements for loading and unloading heavy vehicles at the premises in respect of which she or he is the loading manager will not cause the driver of a vehicle to exceed any speed limit that applies to the vehicle.

Court imposed penalty:     $5 000 for a first offence;

$10 000 for a second or subsequent offence.

Examples of some reasonable steps that can be taken

·      reviewing loading and unloading times and delays at loading and unloading places

·      identifying potential loading and unloading bottlenecks in consultation with drivers and other parties in the chain of responsibility

·      ensuring that timeslots for loading or unloading can be relied upon.

Note   Section 30 sets out some of the factors a court may consider in determining whether a person has taken all reasonable steps.  Section 29 sets out one method by which a loading manager can take all reasonable steps for the purposes of this subsection.

         (2)   An offence against subsection (1) is an offence of absolute liability.

Division 4              Duties on certain consignors and consignees

23.           Consignors to whom this Division applies

                This Division only applies to a consignor who engages a particular operator of a vehicle or combination, either directly or indirectly or through an agent or other intermediary, to transport goods on her or his behalf by road for commercial purposes.

24.           Consignees to whom this Division applies

                This Division only applies to a consignee –

                (a)    who, with his or her authority, has been named or otherwise identified in the relevant transport documentation as the intended consignee of goods that are transported by road by a particular operator of a heavy vehicle or combination; and

               (b)    who knows, or who ought reasonably to have known, that the goods were to be transported by road.

25.           Duties on consignors and consignees

         (1)   A consignor or consignee to whom this Division applies each must take all reasonable steps to ensure that the terms of consignment (e.g. delivery times) will not cause the driver of the vehicle that is to transport the goods to exceed any speed limit that applies to the vehicle.

Court imposed penalty:     $5 000 for a first offence;

$10 000 for a second or subsequent offence.

Examples of some reasonable steps that can be taken

·      ensuring contractual arrangements and documentation relating to the consignment and delivery of goods enable speeding compliance

·      contingency planning in relation to consignments and delivery times

·      regular consultation with other parties in the chain of responsibility, unions and industry associations to address compliance issues.

Note   Section 30 sets out some of the factors a court may consider in determining whether a person has taken all reasonable steps.  Section 29 sets out one method by which a consignor or consignee can take all reasonable steps for the purposes of this subsection.

         (2)   The consignor and consignee each must also take all reasonable steps to ensure that the terms of consignment (e.g. delivery times) will not cause the employer of an employed driver, the prime contractor of a self-employed driver or the operator of the heavy vehicle to cause the driver to exceed any speed limit that applies to the vehicle.

Court imposed penalty:     $5 000 for a first offence;

$10 000 for a second or subsequent offence.

Note   See the examples and note under subsection (1).

         (3)   A consignor or consignee to whom this Division applies each must not make a demand that affects, or that may affect, a time in a schedule for the transport of the consigned goods unless she or he –

                (a)    has complied with subsections (1) and (2); and

               (b)    is satisfied, after making reasonable inquiries, that the making of the demand will not cause a person to fail to comply with section 20 (“Duty concerning driver’s schedule:”).

Court imposed penalty:     $2 000 for a first offence;

$5 000 for a second or subsequent offence.

Infringement notice penalty:  $600.

         (4)   An offence against subsection (1), (2) or (3) is an offence of absolute liability.

Division 5              Certain requests, contracts etc prohibited

26.           Certain requests etc prohibited

                A person must not ask, direct or require (directly or indirectly) a driver or a party in the chain of responsibility to do something that the person knows, or reasonably ought to know, would have the effect of causing the driver to exceed any speed limit while driving a heavy vehicle.

Court imposed penalty:     $10 000.

Note   Section 28 sets out who are the parties in the chain of responsibility.

Example of a requirement that contravenes this section

A requirement that the driver complete a journey in a time that the person knows or reasonably ought to know cannot be complied with unless the driver commits a speeding offence or does not take all the rest breaks that she or he is required to take.

27.           Certain contracts etc prohibited

         (1)   A person must not enter into a contract or agreement with a driver or with a party in the chain of responsibility that the person knows, or reasonably ought to know, would have the effect of causing the driver or any other driver to exceed any speed limit while driving a heavy vehicle.

Court imposed penalty:     $10 000.

Note   Section 28 sets out who are the parties in the chain of responsibility.

         (2)   A person must not enter into a contract or agreement with a driver or with a party in the chain of responsibility that the person knows, or reasonably ought to know, would encourage or provide an incentive for a party in the chain of responsibility to cause a driver to exceed any speed limit while driving a heavy vehicle.

Court imposed penalty:     $10 000.

28.           Who are the parties in the chain of responsibility?

         (1)   These people are parties in the chain of responsibility in relation to a heavy vehicle –

                (a)    the employer of the driver of the vehicle; and

               (b)    the prime contractor of the driver; and

                (c)    the operator of the vehicle; and

               (d)    each scheduler of goods or passengers for transport by the vehicle, and each scheduler of its driver; and

                (e)    each loading manager of goods for transport by the vehicle; and

                (f)    each consignor of goods for transport by the vehicle to whom Division 4 applies; and

                (g)    each consignee of goods for transport by the vehicle to whom Division 4 applies.

Note   It is the performance of any these functions, whether exclusively or occasionally, that determines whether a person falls within any of these definitions, rather than their job title or contractual description.

         (2)   A person may be a party in the chain of responsibility in more than 1 capacity.

Example 

A person may be an employer, operator and consignor at the same time in relation to a driver and be subject to duties in each of the capacities.

Note   Section 147 of the C & E Act also provides that a person may be liable for a breach in one or more capacities under the chain of responsibility.

Part 3                 Compliance and enforcement provisions

Division 1              Reasonable steps

29.           One method of taking reasonable steps

                Without limiting the ways in which a person may take all reasonable steps for the purposes of this Act, a person is to be regarded as having taken all reasonable steps to ensure that a specified thing will not cause a driver of a vehicle to exceed any speed limit that applies to the vehicle if she or he –

                (a)    identifies and assesses –

                          (i)    what aspects of the specified thing might cause the driver to exceed a speed limit; and

                         (ii)    the risks that those aspects might cause the driver to exceed a speed limit; and

                         (iii)    if there is a substantial risk that an aspect might cause the driver to exceed a speed limit, what she or he can reasonably do to eliminate that risk, or if it is not reasonably possible to eliminate that risk, to minimise that risk; and

               (b)    repeats that identification and assessment –

                          (i)    if anything occurs that may adversely affect, or that indicates that there may be a problem with, the specified thing; and

                         (ii)    in any event, at least annually; and

                (c)    does the things identified under paragraph (a) (ii) as being things that she or he can reasonably do; and

               (b)    documents the actions that she or he has taken under paragraphs (a), (b) and (c), and retains that documentation for at least 3 years.

30.           Additional matters concerning taking reasonable steps

         (1)   A court may have regard to anything that it considers to be relevant when it is deciding whether things that the person did, or did not do, were reasonable steps, including –

                (a)    the nature of the aspect or risk that the person was attempting to, or should have been attempting to, address; and

               (b)    the likelihood of a risk eventuating; and

                (c)    the degree of harm that would result if a risk did eventuate; and

               (d)    if a driver has been speeding the circumstances of the offence (for example, the risk category that the offence belongs to); and

                (e)    the degree to which the person (either personally or through an agent or employee) had the ability to eliminate, prevent or reduce an aspect, or to eliminate a risk or to minimise the likelihood of a risk eventuating; and

                (f)    the experience, expertise and knowledge that the person, or the person’s agent or employee, had or ought reasonably to have had; and

                (g)    the availability and suitability of ways to eliminate, prevent or reduce an aspect, or to eliminate a risk or to minimise the likelihood of a risk eventuating; and

                (h)    the cost of eliminating a risk or minimising the likelihood of a risk eventuating.

         (2)   Evidence that the person had complied with a registered industry code of practice in relation to the matters that the offence relates to, is evidence that the person had taken reasonable steps.

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

         (3)   However, a person who is charged with an offence may rely on subsection (2) only if she or he serves a notice of intention to do so on the prosecution at least 28 days before the day on which the hearing for the offence is to start.

Division 2              Evidential matters

31.           Deciding what a person ought reasonably to have known

                If, in a prosecution for an offence against this Act, it is relevant to prove that someone ought reasonably to have known something, the issue must be decided having regard to –

                (a)    the person’s abilities, experience, expertise, knowledge, qualifications and training; and

               (b)    the circumstances of the offence; and

                (c)    any other matters specified by the regulations for the purposes of this section.

32.           Commission of speeding offence is irrelevant to Part 2 prosecutions

                In a prosecution under Part 2, it is not necessary to prove that a driver exceeded a speed limit.

Division 3              Enforcement powers

33.    General enforcement powers

         (1)   Nothing in this Act has the effect of preventing or excluding the use of any other powers of enforcement available to an authorised officer or police officer in relation to a road law.

         (2)   A power available to an authorised officer or a police officer under the C & E Act may be applied in relation to an offence under this Act, unless the power is only able to be applied in relation to a breach of a mass, dimension or load restraint requirement under the C & E Act.

         (3)   For the purposes of this Act, the power to inspect a heavy vehicle under section 36 of the C & E Act includes the power to download information from the engine management system and any intelligent transport system fitted to the vehicle.

Division 4              Penalties

34.           Penalties

         (1)   A reference in an offence provision in this Act to a court-imposed penalty is the maximum fine for an individual who is found guilty of the offence by a court.

         (2)   A reference in an offence provision in this Act to an infringement notice penalty is the fine payable for the offence under an infringement notice issued to an individual.

Drafting note Penalty levels proposed in this Act are indicative only.

         (3)   For any offence under this Act, the court-imposed penalty for a body corporate is 5 times the court-imposed penalty for an individual.

Drafting note This provision may not be required in certain jurisdictions that have this provision in Acts of general application.

         (4)   A sanction available under the C & E Act may be applied in relation to an offence under this Act, unless the sanction is only able to be applied in relation to a breach of a mass, dimension or load restraint requirement under the C & E Act.

35.           Provisions relating to first offences and second or subsequent offences

         (1)   This section determines whether, for the purposes of this Act, an offence is –

                (a)    a first offence; or

               (b)    a second or subsequent offence.

         (2)   A person is found guilty of a second or subsequent offence if, and only if, the occasion when the second or subsequent offence occurred –

                (a)    was different from the occasion when the first offence for which the person was found guilty occurred; and

               (b)    was within 3 years, or another period specified by the regulations, of the occasion of the first offence.

         (3)   The order in which the offences were committed is irrelevant.

         (4)   It is also irrelevant whether or not the offences were subject to the same penalties.

         (5)   If the court is satisfied that a person is guilty of an offence but cannot determine (from the information available to the court) whether the offence is a first offence for which the person was found guilty, the court may only impose a penalty for the offence as if it were a first offence.

         (6)   When determining whether a person has previously been found guilty of an offence under this Act, the court must have regard to a finding of guilt for an offence committed under corresponding provisions of a corresponding law.

         (7)   The regulations may make further provision about determining what is, or is not, to be treated as a corresponding provision of a corresponding law.

Part 4                 Regulations

36.           Regulations

         (1)   The <insert appropriate authority> may make regulations for or with respect to any matter –

                (a)    that is required or permitted to be prescribed by this Act; or

               (b)    that is necessary or convenient to be prescribed to give effect to this Act.

         (2)   The regulations may incorporate or adopt by reference, with or without modifications, provisions of other legislation or other documents.

Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.