Road Safety Amendment (Fatigue Management) Act 2008
i
Road Safety Amendment (Fatigue Management)
Act 2008
No. 56 of 2008
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2—AMENDMENT OF ROAD LEGISLATION FURTHER
AMENDMENT ACT 2007 3
3 Definitions 3
4 Definitions for fatigue management 3
5 Duties on loading managers 5
6 Offences 6
7 Removal of reference to the Fatigue Authorities Panel 6
8 BFM hours—two-up drivers 6
9 Duty on employers, prime contractors, operators and schedulers
to ensure driver compliance 7
10 Drivers working under AFM accreditation 7
11 New section 191QA inserted 8
191QA Offences for breaching limits set out in AFM
accreditation or AFM outer limits 8
12 Driver must carry work diary 11
13 Information that driver must record in work diary 11
14 How driver must record information in work diary 12
15 Destroyed, lost or malfunctioning work diaries 12
16 Information that record keeper must record 14
17 Making entries in someone else's work diary prohibited 16
18 Tampering with electronic work diaries prohibited 16
19 Granting BFM accreditation 17
20 BFM accreditation certificate and period of certification 17
21 Obligations of operator under BFM accreditation 18
22 Operator must advise of change or end of accreditation 18
23 New section 191ZOA inserted 18
191ZOA Driver must carry BFM accreditation details 18
24 Application for AFM accreditation 20
25 Granting AFM accreditation 20
26 Driver must carry AFM accreditation details 20
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ii
27 Obligations of operator under AFM accreditation 22
28 New sections 191ZXA and 191ZXB inserted 22
191ZXA How electronic work diary to be operated 22
191ZXB Admissibility of documents produced by an
electronic work diary 23
29 Operator must advise of change or end of accreditation 23
30 Work diary exemption 24
31 Grounds for cancellation—without application 24
32 Return of accreditation certificate or exemption 24
33 Replacement of lost etc. accreditation certificates and
exemptions 24
34 Offence to falsely represent that accreditation held 25
35 Requiring driver to stop working if impaired by fatigue 25
36 What constitutes reasonable steps 26
37 Proceedings for offences 26
38 Division 8 heading amended 26
39 Australian Transport Council may approve standards 26
191ZZZA Australian Transport Council may approve
standards and other matters 27
40 Section 191ZZZB repealed 28
41 Decisions that may be considered and reviewed 28
42 New section 191ZZZE inserted 28
191ZZZE Duty on officers to annotate driver's work diary 28
43 Schedule 3 amended 29
44 Schedule 4 amended 37
PART 3—AMENDMENT OF ROAD SAFETY ACT 1986 43
45 Section 77A amended 43
46 Section 213 amended 43
PART 4—REPEAL OF ACT 44
47 Repeal of Act 44
═══════════════
ENDNOTES 45
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1
Road Safety Amendment (Fatigue
Management) Act 2008 †
No. 56 of 2008
[Assented to 23 September 2008]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
The purpose of this Act is to amend the Road
Legislation Further Amendment Act 2007 and
Road Safety Act 1986—
(a) to reflect changes to the Fatigue
Management Scheme; and
Victoria
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Part 1—Preliminary
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
2
(b) to provide for oversight of the Scheme by the
Australian Transport Council; and
(c) to make other miscellaneous amendments.
2 Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
__________________
s. 2
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PART 2—AMENDMENT OF ROAD LEGISLATION
FURTHER AMENDMENT ACT 2007
3 Definitions
(1) In section 3(b) of the Road Legislation Further
Amendment Act 2007, for subparagraph (i) of
the proposed definition of consignee substitute—
"(i) with that person's authority, is named or
otherwise identified as the intended
consignee of the goods in the transport
documentation for the consignment; or".
(2) In section 3(c) of the Road Legislation Further
Amendment Act 2007, in paragraph (d) of the
proposed definition of consignor, after "held and
that is" insert "usually".
4 Definitions for fatigue management
(1) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section 191A,
in the definition of AFM standards and business
rules, for "specified by the Fatigue Authorities
Panel" substitute "approved by the Australian
Transport Council".
(2) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section 191A,
in the definition of approved sleeper berth—
(a) in paragraph (a) of that definition, for
"standard for sleeper berths that is specified
by the Fatigue Authorities Panel" substitute
"prescribed standard for sleeper berths"; and
(b) in paragraph (b) of that definition, for
"specified by the Fatigue Authorities Panel"
substitute "approved by the Australian
Transport Council".
s. 3
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(3) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section 191A,
insert the following definition—
"Australian Transport Council means the council
of Commonwealth, New Zealand, State and
Territory Ministers established on 11 June
1993 and known as the Australian Transport
Council, but constituted so that it consists of
only one Minister representing each of the
Commonwealth, the States and the
Territories when dealing with matters with
which this Part is concerned;".
(4) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section 191A,
in the definition of BFM standards and business
rules, for "specified by the Fatigue Authorities
Panel" substitute "approved by the Australian
Transport Council".
(5) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section 191A,
for the definition of Fatigue Authorities Panel
substitute—
"Fatigue Authorities Panel means the panel
established by the Fatigue Authorities Panel
Rules made by the National Transport
Commission and approved by the Australian
Transport Council on 11 July 2008;".
(6) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section 191A,
in paragraph (c) of the definition of unloader, for
"road;" substitute "road; or".
s. 4
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(7) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section 191A,
in the definition of unloader, after paragraph (c)
insert—
"(d) a person who supervises, manages or
controls an activity set out in paragraph (a),
(b) or (c);".
5 Duties on loading managers
In section 20 of the Road Legislation Further
Amendment Act 2007, for proposed section
191I(2) substitute—
"(2) The loading manager must take all
reasonable steps to ensure that the driver is
able to take rest while waiting for the vehicle
to be loaded or unloaded if the loading
manager, or a person acting under the
loading manager's supervision or control—
(a) has advised the driver, either directly or
indirectly, of when the loading or
unloading of the vehicle is to start, and
the loading manager or person becomes
aware that the loading or unloading
will, or is likely to, start more than
30 minutes late; or
(b) has advised the driver, either directly or
indirectly, of when the loading or
unloading of the vehicle is to finish,
and the loading manager or person
becomes aware that the loading or
unloading will, or is likely to, finish
more than 30 minutes late; or
(c) is unable to advise the driver of when
the loading or unloading of the vehicle
is to start; or
s. 5
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(d) is unable to advise the driver of when
the loading or unloading of the vehicle
is to finish.
Penalty: the penalty for a substantial risk
offence.
Example
Providing a system of notifying the driver when the
driver's vehicle can be loaded or unloaded that does
not require the driver to be awake.".
6 Offences
In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed sections
191L(6), 191M(6), 191N(6), 191O(6), 191P(6),
191Q(6), 191R(6), 191W(7), 191Y(13) and
191ZG(5), for "against" substitute "under".
7 Removal of reference to the Fatigue Authorities
Panel
(1) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed sections
191W(2), 191ZI(2)(b), 191ZK(1) and
191ZR(2)(c), for "specified by the Fatigue
Authorities Panel" substitute "approved by the
Australian Transport Council".
(2) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191ZT(1), for "prescribed form" substitute
"form approved by the Australian Transport
Council".
8 BFM hours—two-up drivers
In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191P(1), omit "of a fatigue regulated heavy
vehicle".
s. 6
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9 Duty on employers, prime contractors, operators
and schedulers to ensure driver compliance
In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191X(2), for "this section" substitute
"subsection (1)".
10 Drivers working under AFM accreditation
(1) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191Q(2) insert—
"(2A) In any period mentioned in Column 1 in
Schedule 4A, the driver—
(a) must not work for more than the
maximum work time specified in
Column 2 of that Schedule for that
period; and
(b) must have at least the minimum rest
time specified in Column 3 of that
Schedule for that period.".
(2) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191Q(3), after "(2)" insert "or (2A)".
(3) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed
section 191Q(4)—
(a) after "(2)" insert ", (2A)"; and
(b) for "subsection (7), (8), (9), or (10)"
substitute "section 191QA(1), (2), (3)
or (4)".
(4) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191Q(5), for "this section" substitute
"subsection (4)".
s. 9
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(5) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section 191Q,
subsections (7), (8), (9) and (10) are repealed.
11 New section 191QA inserted
(1) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191Q insert—
"191QA Offences for breaching limits set out in
AFM accreditation or AFM outer limits
(1) A contravention of section 191Q(2) or (3) is
a minor risk offence if—
(a) the driver's work time—
(i) in any period of less than 7 days,
exceeds the maximum time
specified in the AFM accreditation
certificate by 45 minutes or less;
or
(ii) in any period of 7 days or more,
exceeds the maximum time
specified in the AFM accreditation
certificate by 1½ hours or less; or
(b) in any period of less than 7 days, the
driver has a rest time that is not more
than 45 minutes less than the minimum
time specified in the AFM accreditation
certificate.
(2) A contravention of section 191Q(2), (2A)
or (3) is a substantial risk offence if—
(a) the driver's work time—
(i) in any period of less than 7 days,
exceeds the maximum time
specified in the AFM accreditation
certificate by more than
s. 11
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45 minutes but not more than
75 minutes; or
(ii) in any period of less than 7 days,
exceeds the AFM outer limits by
15 minutes or less; or
(iii) in any period of 7 days or more,
exceeds the maximum time
specified in the AFM accreditation
certificate by more than 1½ hours
but not more than 2½ hours; or
(iv) in any period of 7 days or more,
exceeds the AFM outer limits by
30 minutes or less; or
(b) in any period of less than 7 days, the
driver has a rest time that—
(i) is less than the minimum time
specified in the AFM accreditation
certificate by more than
45 minutes but not more than
75 minutes; or
(ii) is less than the minimum AFM
outer limits by 15 minutes or less.
(3) A contravention of section 191Q(2), (2A)
or (3) is a severe risk offence if—
(a) the driver's work time—
(i) in any period of less than 7 days,
exceeds the maximum time
specified in the AFM accreditation
certificate by more than
75 minutes but not more than
90 minutes; or
(ii) in any period of less than 7 days,
exceeds the AFM outer limits by
more than 15 minutes but not
more than 30 minutes; or
s. 11
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(iii) in any period of 7 days or more,
exceeds the maximum time
specified in the AFM accreditation
certificate by more than 2½ hours
but not more than 3 hours; or
(iv) in any period of 7 days or more,
exceeds the AFM outer limits by
more than 30 minutes but not
more than 1 hour; or
(b) in any period of less than 7 days, the
driver has a rest time that—
(i) is less than the minimum time
specified in the AFM accreditation
certificate by more than
75 minutes but not more than
90 minutes; or
(ii) is less than the minimum AFM
outer limits by more than
15 minutes but not more than
30 minutes.
(4) A contravention of section 191Q(2), (2A)
or (3) is a critical risk offence if—
(a) the driver's work time—
(i) in any period of less than 7 days,
exceeds the maximum time
specified in the AFM accreditation
certificate by more than
90 minutes; or
(ii) in any period of less than 7 days,
exceeds the AFM outer limits by
more than 30 minutes; or
s. 11
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(iii) in any period of 7 days or more,
exceeds the maximum time
specified in the AFM accreditation
certificate by more than 3 hours;
or
(iv) in any period of 7 days or more,
exceeds the AFM outer limits by
more than 1 hour; or
(b) in any period of less than 7 days, the
driver has a rest time that—
(i) is less than the minimum time
specified in the AFM accreditation
certificate by more than
90 minutes; or
(ii) is less than the minimum AFM
outer limits by more than
30 minutes.".
12 Driver must carry work diary
In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191S(2) insert—
"(3) Subsection (2) does not apply if a driver is
recording information in a supplementary
record in accordance with section 191V.".
13 Information that driver must record in work diary
(1) In section 20 of the Road Legislation Further
Amendment Act 2007, for proposed section
191T(3)(f)(iii) substitute—
"(iii) except in the case of a shared electronic
work diary, the security or other identifying
number of the other driver's work diary and
the name of the participating jurisdiction that
issued that diary.".
s. 12
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(2) In section 20 of the Road Legislation Further
Amendment Act 2007, omit proposed section
191T(3)(f)(iv).
(3) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191T(5), insert—
"(6) A two-up driver must, at the request of the
other two-up driver, provide the other driver
with any details the other driver needs to be
able to comply with subsection (3)(f).
Penalty: 20 penalty units.".
14 How driver must record information in work diary
In section 20 of the Road Legislation Further
Amendment Act 2007, for proposed section
191U(1)(c) substitute—
"(c) if the driver changes from one work/rest
hours option to another work/rest hours
option during a day, any information for that
day that relates to the period after the change
occurs must be recorded on a separate daily
sheet;".
15 Destroyed, lost or malfunctioning work diaries
(1) In section 20 of the Road Legislation Further
Amendment Act 2007, for proposed sections
191V(1) and (2) substitute—
"(1) This section applies if a driver's work diary
has become filled up, destroyed, lost or
stolen or, in the case of an electronic work
diary, is malfunctioning.
(2) As soon as practicable, and within 2 business
days after the driver becomes aware that the
work diary has become filled up, destroyed,
lost, stolen, or is malfunctioning, the driver
must—
s. 14
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(a) give the Corporation written notice of
that happening, in the prescribed form;
or
(b) apply for a replacement work diary.
Penalty: 40 penalty units.".
(2) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191V(2) insert—
"(2A) During any period in which the driver is
unable to use the work diary, any
information that is required to be recorded
under section 191T must be recorded in a
supplementary record.
(2B) If a driver keeps a supplementary record
under this section, the driver must keep the
supplementary record in the relevant fatigue
regulated heavy vehicle for 28 days.
(2C) Subsection (2A) ceases to apply when the
first of the following events occurs—
(a) the driver is issued with a replacement
work diary;
(b) in the case of a malfunctioning
electronic work diary—the electronic
work diary is brought into working
order;
(c) the expiry of 7 business days after the
day on which the period in which the
driver is unable to use the work diary
started.".
(3) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191V(3) insert—
s. 15
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"(3A) If a driver gives a work diary to the
Corporation under subsection (3),the
Corporation must—
(a) cancel any unused daily sheets in the
diary; and
(b) return the diary to the driver.".
(4) In section 20 of the Road Legislation Further
Amendment Act 2007, for proposed section
191V(7), substitute—
"(7) A person charged with an offence under this
section does not have the benefit of the
mistake of fact defence.
(8) However, a person charged with an offence
under subsection (5) or (6) has the benefit of
the reasonable steps defence.".
16 Information that record keeper must record
(1) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191Y(1)(a), after "record" insert "as soon as
practicable after receiving it, information about".
(2) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191Y(2) insert—
"(2A) A record keeper may engage the services of
another person to carry out some or all of the
record keeper's functions as a record keeper
under this Act.
(2B) If an engagement under subsection (2A)
occurs—
(a) the record keeper remains liable for all
obligations imposed on the record
keeper under this Act; and
s. 16
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(b) the other person is also liable under this
Act, in respect of any obligation
imposed on the record keeper as a
record keeper that is covered by the
terms of the engagement as if the other
person were the record keeper.".
(3) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191Y(7) insert—
"(7A) A driver does not have to comply with
subsection (7) for a specific day if the driver
uses an electronic work diary and if the
information recorded in that diary for that
day has been transferred from the diary to
the record keeper within 21 days after that
day.".
(4) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191Y(8) insert—
"(8A) A record keeper does not have to comply
with subsection (8) for a specific day if the
driver uses an electronic work diary and if
the information recorded in that diary for that
day has been transferred from the diary to
the record keeper within 21 days after that
day.
(8B) If a driver uses an electronic work diary, the
record keeper must ensure that the
information recorded in the diary on a
specific day is transferred, or otherwise
given, to the record keeper within 21 days
after that day.
Penalty: 60 penalty units.".
s. 16
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17 Making entries in someone else's work diary
prohibited
In section 20 of the Road Legislation Further
Amendment Act 2007, for proposed section
191ZE(2)(c) substitute—
"(c) a person who enters any of the information
required by section 191T(3)(f) in the person's
fellow two-up driver's work record, or who
signs that work record.".
18 Tampering with electronic work diaries prohibited
(1) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191ZG(4) insert—
"(4A) A person charged with an offence under this
section does not have the benefit of the
mistake of fact defence.".
(2) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191ZG(5) insert—
"(5A) Despite subsection (4A), if a person (other
than a driver or a driver's record keeper) is
charged with an offence under subsection (1)
and the alleged offence involves tampering
with any electronic signal that is sent to, or
from, an electronic work diary, it is a
defence to a charge for the offence if the
person proves that the person was not aware,
and could not reasonably be expected to have
been aware, that the activity that constituted
the alleged tampering would interfere with
the electronic signal.".
s. 17
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(3) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191ZG(6) in the definition of tamper—
(a) in paragraph (b), for "diary." substitute
"diary; or"; and
(b) after paragraph (b) insert—
"(c) results, or may result, in inaccurate data
being recorded by the diary; or
(d) otherwise interferes with any electronic
signal that is sent to, or from, the work
diary and that conduct has any of the
effects listed in this subsection.".
19 Granting BFM accreditation
In section 20 of the Road Legislation Further
Amendment Act 2007, for proposed section
191ZJ(4) substitute—
"(4) In granting BFM accreditation to the
operator of a fatigue regulated heavy vehicle,
the Corporation must have regard to—
(a) any relevant advice given to it by the
Fatigue Authorities Panel; and
(b) any guidelines in relation to BFM
accreditation issued by the Fatigue
Authorities Panel and published in the
Commonwealth Government Gazette.".
20 BFM accreditation certificate and period of
certification
In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191ZK(2)(a), after "accreditation" insert
"certificate".
s. 19
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21 Obligations of operator under BFM accreditation
In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191ZN(2) insert—
"(3) If required to do so in writing by the
Corporation, the operator must give to the
Corporation, in the form and within the time
specified by the Corporation—
(a) a copy of the list of drivers kept under
subsection (2)(a); and
(b) details of any changes to that list.
Penalty: 20 penalty units.".
22 Operator must advise of change or end of
accreditation
In section 20 of the Road Legislation Further
Amendment Act 2007, at the end of proposed
section 191ZO insert—
"(2) If a driver is informed under subsection (1)
that an operator's BFM accreditation has
changed or ceased, the driver must
immediately return to the operator any
document given to the driver for the
purposes of section 191ZOA.
Penalty: 20 penalty units.".
23 New section 191ZOA inserted
In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191ZO insert—
"191ZOA Driver must carry BFM accreditation
details
(1) At all times while working under an
operator's BFM accreditation, a driver must
have in the driver's possession—
s. 21
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(a) a copy of the operator's accreditation
certificate; and
(b) a document signed by the operator
stating that the driver is working under
the operator's accreditation, and stating
that the driver has been inducted into
the operator's BFM system and meets
the requirements relating to drivers
under the accreditation.
Penalty: 20 penalty units.
Notes
1 A driver is already required to record the driver's
operator's BFM accreditation number under
section 191T(2)(e).
2 An inspector may direct a driver to produce a
record required to be kept by the driver—see
section 132.
(2) An operator must ensure that each driver
driving under the operator's BFM
accreditation does not contravene
subsection (1).
Penalty: 20 penalty units.
(3) A driver must immediately return to an
operator any document given to the driver by
the operator for the purposes of subsection
(1)(a) or (1)(b) if the driver—
(a) ceases to work under the operator's
BFM accreditation; or
(b) ceases to meet the requirements relating
to drivers under that accreditation.
Penalty: 20 penalty units.".
s. 23
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24 Application for AFM accreditation
In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191ZR(2)(b), for "fatigue management"
substitute "AFM".
25 Granting AFM accreditation
(1) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191ZS(2), after "operator of a" insert "fatigue".
(2) In section 20 of the Road Legislation Further
Amendment Act 2007, for proposed section
191ZS(4) substitute—
"(4) In granting AFM accreditation to the
operator of a fatigue regulated heavy vehicle,
the Corporation must have regard to—
(a) any relevant advice given to it by the
Fatigue Authorities Panel; and
(b) any guidelines in relation to AFM
accreditation issued by the Fatigue
Authorities Panel and published in the
Commonwealth Government Gazette.".
26 Driver must carry AFM accreditation details
(1) In section 20 of the Road Legislation Further
Amendment Act 2007, for proposed section
191ZW(1) substitute—
"(1) At all times while working under an
operator's AFM accreditation, a driver must
have in the driver's possession—
(a) a copy of the operator's accreditation
certificate; and
s. 24
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(b) a document signed by the operator
stating that the driver is working under
the operator's accreditation, and stating
that the driver has been inducted into
the operator's AFM system and meets
the requirements relating to drivers
under the accreditation; and
(c) a document that sets out the AFM hours
allowed under the accreditation.
Penalty: 20 penalty units.
Example
A record of the AFM hours allowed under the
accreditation stored in the driver's electronic work
diary.
Notes
1 A driver is already required to record the driver's
operator's AFM accreditation number under
section 191T(2)(e).
2 An inspector may direct a driver to produce a
record required to be kept by the driver—see
section 132. ".
(2) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191ZW(2) insert—
"(3) A driver must immediately return to an
operator any document given to the driver by
the operator for the purposes of subsection
(1)(a) or (1)(b) if the driver—
(a) ceases to work under the operator's
AFM accreditation; or
(b) ceases to meet the requirements relating
to drivers under that accreditation.
Penalty: 20 penalty units.".
s. 26
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22
27 Obligations of operator under AFM accreditation
In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191ZX(2) insert—
"(3) If required to do so in writing by the
Corporation, the operator must give to the
Corporation, in the form and within the time
specified by the Corporation—
(a) a copy of the list of drivers kept by the
operator under subsection (2)(a); and
(b) details of any changes to that list.
Penalty: 20 penalty units.".
28 New sections 191ZXA and 191ZXB inserted
In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191ZX insert—
"191ZXA How electronic work diary to be operated
(1) A driver using an electronic work diary must
ensure that the driver operates and maintains
the diary—
(a) in accordance with the manufacturer's
specifications; and
(b) in compliance with any conditions that
apply to the operation of the diary that
the Corporation has imposed in writing.
Penalty: 60 penalty units.
(2) The record keeper of a driver using an
electronic work diary must ensure that the
driver complies with subsection (1).
Penalty: 60 penalty units.
s. 27
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
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23
(3) It is a defence to a charge of failing to
operate or maintain an electronic work diary
in accordance with a particular specification
of the manufacturer if the person charged
proves—
(a) that the specification was not integral to
the effective operation of the diary; or
(b) that the failure to operate or maintain
the diary in accordance with the
specification was in accordance with
industry practice in relation to the
operation or maintenance of a diary of
that type from that manufacturer.
191ZXB Admissibility of documents produced by
an electronic work diary
(1) A document produced by an electronic work
diary is evidence of the matters contained in
the document.
(2) A statement as to the operation of an
electronic work diary made in a document
signed by a person purporting to be involved
with the operation of the diary is evidence of
any fact contained in that statement.".
29 Operator must advise of change or end of
accreditation
In section 20 of the Road Legislation Further
Amendment Act 2007, at the end of proposed
section 191ZY insert—
"(2) If a driver is informed that an operator's
AFM accreditation has changed or ceased,
the driver must immediately return to the
operator any document given to the driver by
the operator for the purposes of section
191ZW(1)(a) or (b).".
s. 29
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
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24
30 Work diary exemption
In section 20 of the Road Legislation Further
Amendment Act 2007, for proposed section
191ZZA(2) substitute—
"(2) An application for a work diary exemption
may be made by a driver or driver's
employer only if the driver is working under
standard hours.".
31 Grounds for cancellation—without application
In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191ZZD(b), after "accreditation" (where second
occurring), insert "or exemption".
32 Return of accreditation certificate or exemption
(1) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191ZZG(1)—
(a) after "accreditation" (where first occurring)
insert "or exemption"; and
(b) after "accreditation certificate" insert
"or exemption".
(2) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191ZZG(2) insert—
"(3) If a person's accreditation certificate or
exemption has been varied, the Corporation
must give the person a replacement
accreditation certificate or exemption.".
33 Replacement of lost etc. accreditation certificates
and exemptions
In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191ZZH(1), after "certificate" (where second
occurring) insert "or exemption".
s. 30
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25
34 Offence to falsely represent that accreditation held
(1) In section 20 of the Road Legislation Further
Amendment Act 2007, for proposed section
191ZZI(2) substitute—
"(2) A person must not possess a document that
falsely purports to be—
(a) an accreditation certificate or
exemption under this Act; or
(b) a copy of an accreditation certificate or
exemption under this Act; or
(c) a document referred to in section
191ZOA(1)(b) or 191ZW(1)(b).
Penalty: 60 penalty units.".
(2) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191ZZI(2) insert—
"(3) A person must not represent that the person
is working under an accreditation or
exemption if that accreditation or exemption
is no longer in force.
Penalty: 100 penalty units.".
35 Requiring driver to stop working if impaired by
fatigue
In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191ZZL(3) insert—
"(3A) If an inspector has required a driver not to
work under subsection (2)(a), the inspector
must record details of the requirement in the
driver's work diary.".
s. 34
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26
36 What constitutes reasonable steps
(1) In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191ZZO(2)(d), for "paragraph (b)(ii)." substitute
"paragraph (b)(ii);".
(2) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191ZZO(2)(d) insert—
"(e) documented the actions the person took
under paragraphs (a), (b), (c) and (d) to
prevent the act or omission that led to the
contravention.".
(3) In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191ZZO(4) insert—
"(5) A person is not required to keep a document
under subsection (2)(e) for longer than
3 years.".
37 Proceedings for offences
In section 20 of the Road Legislation Further
Amendment Act 2007, in proposed section
191ZZV(3)(a), for "law" substitute "obligation".
38 Division 8 heading amended
In section 20 of the Road Legislation Further
Amendment Act 2007, for the proposed heading
to Division 8 of Part 10A, substitute—
"Division 8—Australian Transport Council".
39 Australian Transport Council may approve
standards
In section 20 of the Road Legislation Further
Amendment Act 2007, for proposed section
191ZZZA substitute—
s. 36
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
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27
"191ZZZA Australian Transport Council may
approve standards and other matters
(1) For the purposes of this Act, the Australian
Transport Council may, by notice published
in the Commonwealth Government Gazette,
approve the following—
(a) standards for a driver's sleeper berth for
a bus;
(b) AFM standards and business rules;
(c) BFM standards and business rules;
(d) standards for the maintenance of
odometers fitted to fatigue regulated
heavy vehicles;
(e) types of electronic work diary that may
be used;
(f) classes of auditors who may issue
statements about whether an operator's
AFM system will ensure compliance
with AFM standards and business rules;
(g) classes of auditors who may issue
statements about whether an operator's
BFM system will ensure compliance
with BFM standards and business rules;
(h) the form for AFM accreditation
certificates;
(i) the form for BFM accreditation
certificates;
(j) any other matter that the regulations
prescribe for approval under this
section.
(2) The Australian Transport Council may, by
written instrument, delegate a power of the
Australian Transport Council under this Act
to the Corporation.
s. 39
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
28
(3) The Corporation may delegate any power
delegated to the Corporation under
subsection (2), other than this power of
delegation, to—
(a) an officer of the Corporation either by
name or by reference to the officer's
office only (and where the reference is
to the office, the holder for the time
being of the office is the delegate); or
(b) an employee in the Department of
Transport either by name or by
reference to the employee's position
only.".
40 Section 191ZZZB repealed
In section 20 of the Road Legislation Further
Amendment Act 2007, omit proposed
section 191ZZZB.
41 Decisions that may be considered and reviewed
In section 20 of the Road Legislation Further
Amendment Act 2007, in Item 2 of the Table at
the foot of proposed section 191ZZZC, for
"191ZU" substitute "191ZT".
42 New section 191ZZZE inserted
In section 20 of the Road Legislation Further
Amendment Act 2007, after proposed section
191ZZZD insert—
"191ZZZE Duty on officers to annotate driver's work
diary
(1) This section applies if an inspector stops a
driver for compliance purposes using a
power conferred on the inspector by this Act.
s. 40
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
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29
(2) If the inspector detains the driver for a period
of 5 minutes or longer, the driver may ask
the inspector to record the following details
in the driver's work diary—
(a) the inspector’s identifying details;
(b) the time, date and place at which the
inspector stopped the driver;
(c) the period of time for which the
inspector has detained the driver.
(3) An inspector must comply with a request
made under subsection (2).
(4) An inspector may comply with subsection
(2)(a) by recording either the inspector's
name or identification number.
(5) If more than one driver has been stopped at a
place, and the drivers are spoken to by an
inspector in the order in which they were
stopped, the calculation of time for the
purposes of subsection (2) only starts once
the inspector begins to speak to the driver for
the purpose for which the driver was
stopped.
(6) In this section, compliance purposes has the
same meaning as in section 110.".
43 Schedule 3 amended
(1) In section 29 of the Road Legislation Further
Amendment Act 2007, in column 1 of Table 1 of
proposed Schedule 3, for "day" (where first
occurring) substitute "days".
(2) In section 29 of the Road Legislation Further
Amendment Act 2007, in column 3 of Table 1 of
proposed Schedule 3, omit "stationary" (where
first, second and third occurring).
s. 43
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Road Safety Amendment (Fatigue Management) Act 2008
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30
(3) In section 29 of the Road Legislation Further
Amendment Act 2007, in column 4 of Table 1 of
proposed Schedule 3, omit "of that" (wherever
occurring).
(4) In section 29 of the Road Legislation Further
Amendment Act 2007, in column 3 of Table 2 of
proposed Schedule 3, omit "stationary" (where
first, second and third occurring).
(5) In section 29 of the Road Legislation Further
Amendment Act 2007, in column 4 of Table 2 of
proposed Schedule 3, omit "of that" (wherever
occurring).
(6) In section 29 of the Road Legislation Further
Amendment Act 2007, for Table 3 of proposed
Schedule 3, substitute—
"TABLE 3
Standard hours—Two-up drivers of a fatigue regulated heavy
vehicle
Item
No.
Column 1
Total
period
Column 2
Maximum
work time
Column 3
Minimum rest
time
Column 4
Offence category
In any
period
of ...
... a driver
must not
work for
more
than ...
... and must
have the rest of
that period off
work, with at
least ...
If in that
period a
driver has …
… the
following
category of
offence is
committed…
1 5½ hrs 5¼ hrs
work time
15 continuous
mins rest time
> 5¼ hrs
work time
minor risk
2 8 hrs 7½ hrs
work time
30 mins rest
time, in blocks
of 15
continuous
mins
> 7½ hrs
work time
minor risk
s. 43
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
31
Item
No.
Column 1
Total
period
Column 2
Maximum
work time
Column 3
Minimum rest
time
Column 4
Offence category
In any
period
of ...
... a driver
must not
work for
more
than ...
... and must
have the rest of
that period off
work, with at
least ...
If in that
period a
driver has …
… the
following
category of
offence is
committed…
3 11 hrs 10 hrs
work time
60 mins rest
time, in
blocks of
15 continuous
mins
≤ 10¾ hrs
work time
minor risk
> 10¾ hrs
work time
substantial
risk
4 24 hrs 12 hrs
work time
≤ 12¾ hrs
work time
minor risk
> 12¾
but not
> 13¼ hrs
work time
substantial
risk
> 13¼ but
not > 13½
hrs work
time
severe risk
> 13½ hrs
work time
critical risk
5 continuous
hrs stationary
rest time, or
5 continuous
hrs rest time in
an approved
sleeper berth
while the
vehicle is
moving
< 5 but
not < 4¼
continuous
hrs of that
rest time
minor risk
s. 43
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Road Safety Amendment (Fatigue Management) Act 2008
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32
Item
No.
Column 1
Total
period
Column 2
Maximum
work time
Column 3
Minimum rest
time
Column 4
Offence category
In any
period
of ...
... a driver
must not
work for
more
than ...
... and must
have the rest of
that period off
work, with at
least ...
If in that
period a
driver has …
… the
following
category of
offence is
committed…
< 4¼ but
not < 3¾
continuous
hrs of that
rest time
substantial
risk
< 3¾ but
not < 3½
continuous
hrs of that
rest time
severe risk
< 3½
continuous
hrs of that
rest time
critical risk
5 52 hrs 10 continuous
hrs stationary
rest time
< 10 but
not < 9¼
continuous
hrs stationary
rest time
minor risk
< 9¼ but
not < 8¾
continuous
hrs stationary
rest time
substantial
risk
< 8¾ but
not < 8½
continuous
hrs stationary
rest time
severe risk
< 8½
continuous
hrs stationary
rest time
critical risk
s. 43
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
33
Item
No.
Column 1
Total
period
Column 2
Maximum
work time
Column 3
Minimum rest
time
Column 4
Offence category
In any
period
of ...
... a driver
must not
work for
more
than ...
... and must
have the rest of
that period off
work, with at
least ...
If in that
period a
driver has …
… the
following
category of
offence is
committed…
6 7 days
(168 hrs)
60 hrs
work time
>60 hrs but
not >61½ hrs
work time
minor risk
> 61½ but
not > 62½
hrs work
time
substantial
risk
> 62½ but
not > 63 hrs
work time
severe risk
> 63 hrs
work time
critical risk
24 continuous
hrs stationary
rest time, and
< 24 but
not < 23¼
continuous
hrs stationary
rest time
minor risk
< 23¼ but
not < 22¾
continuous
hrs stationary
rest time
substantial
risk
< 22¾ but
not < 22½
continuous
hrs stationary
rest time
severe risk
< 22½
continuous
hrs stationary
rest time
critical risk
s. 43
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
34
Item
No.
Column 1
Total
period
Column 2
Maximum
work time
Column 3
Minimum rest
time
Column 4
Offence category
In any
period
of ...
... a driver
must not
work for
more
than ...
... and must
have the rest of
that period off
work, with at
least ...
If in that
period a
driver has …
… the
following
category of
offence is
committed…
24 hrs
stationary rest
time in blocks
of at least 7
continuous hrs
stationary
< 24 but not
< 23¼ hrs
stationary
rest time in
total
< 7 but
not < 6¼
continuous
hrs stationary
rest time per
block
minor risk
< 23¼ but
not < 22¾
hrs stationary
rest time in
total
< 6¼ but
not < 5¾
continuous
hrs stationary
rest time per
block
substantial
risk
< 22¾ but
not < 22½
hrs stationary
rest time in
total
< 5¾ but
not < 5½
continuous
hrs stationary
rest time per
block
severe risk
s. 43
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
35
Item
No.
Column 1
Total
period
Column 2
Maximum
work time
Column 3
Minimum rest
time
Column 4
Offence category
In any
period
of ...
... a driver
must not
work for
more
than ...
... and must
have the rest of
that period off
work, with at
least ...
If in that
period a
driver has …
… the
following
category of
offence is
committed…
< 22½ hrs
stationary
rest time in
total
< 5½
continuous
hrs stationary
rest time per
block
critical risk
7 14 days
(336 hrs)
120 hrs
work time
>120 but not
>121½ hrs
work time
minor risk
> 121½ but
not > 122½
hrs work
time
substantial
risk
> 122½ but
not > 123 hrs
work time
severe risk
> 123 hrs
work time
critical risk
2 × night rest
breaks, and
< 7 but
not < 6¼
continuous
hrs stationary
rest time per
block
minor risk
< 6¼ but
not < 5¾
continuous
hrs stationary
rest time per
block
substantial
risk
s. 43
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
36
Item
No.
Column 1
Total
period
Column 2
Maximum
work time
Column 3
Minimum rest
time
Column 4
Offence category
In any
period
of ...
... a driver
must not
work for
more
than ...
... and must
have the rest of
that period off
work, with at
least ...
If in that
period a
driver has …
… the
following
category of
offence is
committed…
< 5¾ but
not < 5½
continuous
hrs stationary
rest time per
block
severe risk
< 5½
continuous
hrs stationary
rest time per
block
critical risk
2 x night rest
breaks taken on
consecutive
days
< 7 but
not < 6¼
continuous
hrs stationary
rest time per
block
minor risk
< 6¼ but
not < 5¾
continuous
hrs stationary
rest time per
block
substantial
risk
< 5¾ but
not < 5½
continuous
hrs stationary
rest time per
block
severe risk
s. 43
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
37
Item
No.
Column 1
Total
period
Column 2
Maximum
work time
Column 3
Minimum rest
time
Column 4
Offence category
In any
period
of ...
... a driver
must not
work for
more
than ...
... and must
have the rest of
that period off
work, with at
least ...
If in that
period a
driver has …
… the
following
category of
offence is
committed…
< 5½
continuous
hrs stationary
rest time per
block
critical risk
".
44 Schedule 4 amended
(1) In section 29 of the Road Legislation Further
Amendment Act 2007, in column 4 of Table 1 of
proposed Schedule 4, omit "of that" (wherever
occurring).
(2) In section 29 of the Road Legislation Further
Amendment Act 2007, in Column 3 of Table 1 of
proposed Schedule 4, omit "stationary" (where
first, second and third occurring).
(3) In section 29 of the Road Legislation Further
Amendment Act 2007, in Table 1 of proposed
Schedule 4—
(a) at the end of column 1 omit "6¼ hrs";
(b) at the end of column 2 omit "6 hrs work
time";
(c) at the end of column 3 omit "15 continuous
mins stationary rest time";
(d) at the end of column 4 omit—
">6 hrs work
time
minor risk".
s. 44
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
38
(4) In section 29 of the Road Legislation Further
Amendment Act 2007, for Table 2 of proposed
Schedule 4, substitute—
"TABLE 2
BFM hours—Two-up drivers of a fatigue regulated heavy vehicle
Item
No.
Column 1
Total
period
Column 2
Maximum
work time
Column 3
Minimum rest
time
Column 4
Offence category
In any
period
of ...
... a driver
must not
work for
more
than ...
... and must
have the rest of
that period off
work, with at
least ...
If in that
period a
driver has …
… the
following
category of
offence is
committed…
1 24 hrs 14 hrs
work time
≤ 14¾ hrs
work time
minor risk
> 14¾ but
not > 15¼
hrs work
time
substantial
risk
> 15¼ but
not > 15½
hrs work
time
severe risk
> 15½ hrs
work time
critical risk
2 82 hrs 10 continuous
hrs stationary
rest time
< 10 but not
< 9¼
continuous
hrs stationary
rest time
minor risk
< 9¼ but not
< 8¾
continuous
hrs stationary
rest time
substantial
risk
s. 44
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
39
Item
No.
Column 1
Total
period
Column 2
Maximum
work time
Column 3
Minimum rest
time
Column 4
Offence category
In any
period
of ...
... a driver
must not
work for
more
than ...
... and must
have the rest of
that period off
work, with at
least ...
If in that
period a
driver has …
… the
following
category of
offence is
committed…
< 8¾ but
not < 8½
continuous
hrs stationary
rest time
severe risk
< 8½
continuous
hrs stationary
rest time
critical risk
3 7 days
(168 hrs)
70 hrs
work time
> 70 but not
>71½ hrs
work time
minor risk
> 71½ but
not >72½ hrs
work time
substantial
risk
> 72½ but
not > 73 hrs
work time
severe risk
> 73 hrs
work time
critical risk
24 continuous
hrs stationary
rest time, and
< 24 but
not < 23¼
continuous
hrs stationary
rest time
minor risk
< 23¼ but
not < 22¾
continuous
hrs stationary
rest time
substantial
risk
s. 44
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
40
Item
No.
Column 1
Total
period
Column 2
Maximum
work time
Column 3
Minimum rest
time
Column 4
Offence category
In any
period
of ...
... a driver
must not
work for
more
than ...
... and must
have the rest of
that period off
work, with at
least ...
If in that
period a
driver has …
… the
following
category of
offence is
committed…
< 22¾ but
not < 22½
continuous
hrs stationary
rest time
severe risk
< 22½
continuous
hrs stationary
rest time
critical risk
24 hrs
stationary rest
time in blocks
of at least
7 continuous
hrs
< 24 but not
< 23¼ hrs
stationary
rest time in
total
< 7 but
not < 6¼
continuous
hrs stationary
rest time per
block
minor risk
< 23¼ but
not < 22¾
hrs stationary
rest time in
total
< 6¼ but
not < 5¾
continuous
hrs stationary
rest time per
block
substantial
risk
s. 44
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
41
Item
No.
Column 1
Total
period
Column 2
Maximum
work time
Column 3
Minimum rest
time
Column 4
Offence category
In any
period
of ...
... a driver
must not
work for
more
than ...
... and must
have the rest of
that period off
work, with at
least ...
If in that
period a
driver has …
… the
following
category of
offence is
committed…
< 22¾ but
not < 22½
hrs stationary
rest time in
total
< 5¾ but
not < 5½
continuous
hrs stationary
rest time per
block
severe risk
< 22½ hrs
stationary
rest time in
total
< 5½
continuous
hrs stationary
rest time per
block
critical risk
4 14 days
(336 hrs)
140 hrs
work time
≤ 141½ hrs
work time
minor risk
> 141½ but
not > 142½
hrs work
time
substantial
risk
> 142½ but
not > 143 hrs
work time
severe risk
> 143 hrs
work time
critical risk
s. 44
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Part 2—Amendment of Road Legislation Further Amendment Act 2007
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
42
Item
No.
Column 1
Total
period
Column 2
Maximum
work time
Column 3
Minimum rest
time
Column 4
Offence category
In any
period
of ...
... a driver
must not
work for
more
than ...
... and must
have the rest of
that period off
work, with at
least ...
If in that
period a
driver has …
… the
following
category of
offence is
committed…
4 × 7
continuous hrs
stationary rest
time between
10 p.m. on a
day and 8 a.m.
on the next day,
using the time
zone of the
vehicle's driver
base
< 7 but not <
6¼
continuous
hrs stationary
rest time per
block
minor risk
< 6¼ but
not < 5¾
continuous
hrs stationary
rest time per
block
substantial
risk
< 5¾ but
not < 5½
continuous
hrs stationary
rest time per
block
severe risk
< 5½
continuous
hrs stationary
rest time per
block
critical risk
".
__________________
s. 44
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Part 3—Amendment of Road Safety Act 1986
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
43
PART 3—AMENDMENT OF ROAD SAFETY ACT 1986
45 Section 77A amended
In section 77A of the Road Safety Act 1986, after
"Part 10" insert "or under Part 10A".
46 Section 213 amended
In section 213(2) of the Road Safety Act 1986,
for "relevant" substitute "corresponding".
__________________
s. 45
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Part 4—Repeal of Act
Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
44
PART 4—REPEAL OF ACT
47 Repeal of Act
This Act is repealed on the first anniversary of its
commencement.
═══════════════
s. 47
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Road Safety Amendment (Fatigue Management) Act 2008
No. 56 of 2008
45
ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 31 July 2008
Legislative Council: 21 August 2008
The long title for the Bill for this Act was "A Bill for an Act to amend the
Road Legislation Further Amendment Act 2007 and Road Safety Act
1986 to reflect changes to the Fatigue Management Scheme, to provide
for oversight of the Scheme by the Australian Transport Council and for
other purposes."
Endnotes
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