Victorian Numbered Acts Victorian Numbered ActsAfter section 273 of the Principal Act insert —
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In this Part—
"corresponding law" means—
(a) a law in force in another State or a Territory of the Commonwealth that corresponds to this Part; or
(b) a law of another State or a Territory of the Commonwealth that is prescribed by the regulations to be a corresponding law to this Part;
"driver" means the driver of a heavy vehicle and includes an employed driver and a self-employed driver;
"employed driver" means a driver who is employed by someone else to drive a heavy vehicle;
"employer" means a person who employs someone else to drive a heavy vehicle under a contract of employment, apprenticeship or training;
Example
A labour hire company.
"loading manager" means—
(a) a person who manages, or is responsible for the operation of, premises at which usually on a business day at least 5 heavy vehicles—
(i) are loaded with goods for transport; or
(ii) 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 premises referred to in paragraph (a);
Example
A company that runs a distribution centre or a site manager for a distribution centre.
"party in the chain of responsibility", in relation to a heavy vehicle, means any one of the following persons—
(a) the employer of the driver of the vehicle;
(b) the prime contractor of the driver of the vehicle;
(c) the operator of the vehicle;
(d) each scheduler of goods or passengers for transport by the vehicle, and each scheduler of the driver of the vehicle;
(e) each loading manager of goods for transport by the vehicle;
(f) each consignor of goods for transport by the vehicle to whom Division 4 applies;
(g) each consignee of goods for transport by the vehicle to whom Division 4 applies;
"prime contractor "means a person who engages someone else to drive a heavy vehicle under a contract for services;
Example
A logistics business that engages a subcontractor to transport goods.
"rest time", for a driver, has the same meaning as in Part 10A;
"scheduler" means a person who—
(a) schedules a driver's work time or rest time; or
(b) schedules the transport of passengers or goods, by heavy vehicle, by road;
"speed limit" includes—
(a) a sign-posted speed limit that applies to a driver of a heavy vehicle for a length of road where the driver is driving the vehicle; or
(b) a speed limit specified by legislation that applies to a driver of a heavy vehicle for a length of road where the driver is driving the vehicle; or
(c) a speed limit that applies to a driver of a particular heavy vehicle for a length of road where the driver of the vehicle is driving the vehicle; or
(d) a prohibition on travelling between two places in less than a specified time that applies to a driver of a heavy vehicle for a length of road where the driver is driving the vehicle;
"work time", for a driver, has the same meaning as in Part 10A, with the modification that a reference to "fatigue regulated heavy vehicle" is to be taken to be a reference to "heavy vehicle".
(1) The Acts Interpretation Act 1901 of the Commonwealth applies to the interpretation of this Part.
(2) This section does not prevent the Interpretation of Legislation Act 1984 from applying to this Part to the extent it can do so consistently with the application of the Acts Interpretation Act 1901 of the Commonwealth.
(1) A person who is—
(a) an employer or prime contractor of a driver of a heavy vehicle; or
(b) an operator of a heavy vehicle in which a driver is to make a journey for the operator—
must take all reasonable steps to ensure the person's business practices will not cause the driver, while driving the heavy vehicle, to exceed a speed limit.
Penalty: For a first offence 250 penalty units, in the case of a corporation, or 50 penalty units, in any other case;
For a subsequent offence 500 penalty units, in the case of a corporation, or 100 penalty units, in any other case.
Examples
• 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 285 sets out some of the factors a court may consider in determining whether a person has taken all reasonable steps. Section 284 sets out a method by which an employer, prime contractor and operator can take all reasonable steps for the purposes of this subsection.
(2) An employer must not cause a driver to drive a heavy vehicle unless—
(a) the employer has complied with subsection (1); and
(b) the employer, after making reasonable inquiries, is satisfied the scheduler has complied with section 278.
Penalty: For a first offence 100 penalty units, in the case of a corporation, or 20 penalty units, in any other case;
For a subsequent offence, 250 penalty units, in the case of a corporation, or 50 penalty units, in any other case.
(3) A prime contractor or operator must not cause a driver to drive a heavy vehicle unless—
(a) the prime contractor or operator has complied with subsection (1); and
(b) the prime contractor or operator, after making reasonable inquiries, is satisfied the scheduler has complied with section 278.
Penalty: For a first offence 100 penalty units, in the case of a corporation, or 20 penalty units, in any other case;
For a subsequent offence, 250 penalty units, in the case of a corporation, or 50 penalty units, in any other case.
(4) A person charged with an offence under subsection (1), (2) or (3) does not have the benefit of the mistake of fact defence.
Note
Section 287 sets out how subsection (4) operates.
(5) In this section—
"business practices", in relation to an employer, prime contractor or operator, means the practices of the employer, prime contractor or operator in running the 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.
(1) In this section—
level 1 prohibited conduct means—
(a) the commission of an offence of a type specified in Column 1 of item 1 of the Table (whether the speed limit is exceeded by less than 15 km per hour or by 15 km per hour or more); or
(b) the commission of an offence of a type specified in Column 1 of item 2 of the Table (by exceeding the speed limit by less than 15 km per hour);
level 2 prohibited conduct means—
(a) the commission of an offence of a type specified in Column 1 of item 2 of the Table (by exceeding the speed limit by 15 km per hour or more); or
(b) the commission of an offence of a type specified in Column 1 of item 3 of the Table (by exceeding the speed limit by less than 15 km per hour);
(c) the commission of an offence of a type specified in Column 1 of item 4 of the Table (by exceeding the speed limit by less than 15 km per hour);
level 3 prohibited conduct means—
(a) the commission of an offence of a type specified in Column 1 of item 3 of the Table (by exceeding the speed limit by 15 km per hour or more); or
(b) the commission of an offence of a type specified in Column 1 of item 4 of the Table (by exceeding the speed limit by 15 km per hour or more);
"Table" means the Table at the end of this section.
(2) If—
(a) a driver of a heavy vehicle commits level 1 prohibited conduct; and
(b) the vehicle, or the driver of the vehicle, at the time the prohibited conduct is committed, is subject to the control of an employer, prime contractor or operator—
the employer, prime contractor or operator is guilty of an offence and liable to a penalty of 50 penalty units, in the case of a corporation or 10 penalty units, in any other case.
(3) If—
(a) a driver of a heavy vehicle commits level 2 prohibited conduct; and
(b) the vehicle, or the driver of the vehicle, at the time the prohibited conduct is committed, is subject to the control of an employer, prime contractor or operator—
the employer, prime contractor or operator is guilty of an offence and liable to a penalty of—
(c) for a first offence, 100 penalty units, in the case of a corporation, or 20 penalty units, in any other case;
(d) for a subsequent offence under this section, 250 penalty units, in the case of a corporation, or 50 penalty units, in any other case.
(4) If—
(a) a driver of a heavy vehicle commits level 3 prohibited conduct; and
(b) the vehicle, or the driver of the vehicle, at the time the prohibited conduct is committed, is subject to the control of an employer, prime contractor or operator—
the employer, prime contractor or operator is guilty of an offence and liable to a penalty of—
(c) for a first offence, 250 penalty units, in the case of a corporation, or 50 penalty units, in any other case;
(d) for a subsequent offence under this section, 500 penalty units, in the case of a corporation, or 100 penalty units, in any other case.
(5) A person does not commit an offence under subsection (2), (3) or (4) if the person controls a vehicle that is one of a group of vehicles that is being towed, but the person does not control—
(a) the driver; or
(b) the vehicle that is towing the group of vehicles.
(6) A person charged with an offence under this section does not have the benefit of the mistake of fact defence.
Note
Section 287 sets out how subsection (6) operates.
(7) It is a defence to a charge for an offence under this section if—
(a) the person charged with the offence did not know and could not reasonably be expected to know of the conduct of the driver; and
(b) either—
(i) the person charged took all reasonable steps to prevent the driver's conduct; or
(ii) there were no steps the person charged could reasonably be expected to have taken to prevent the driver's conduct.
(8) In any proceeding for an offence under this section—
(a) it is irrelevant whether the driver has been, or will be, charged with the offence, or has been, or will be, found guilty of the offence; and
(b) evidence that the driver has been found guilty of the offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the charge that resulted in the finding of guilt; and
(c) evidence that the driver has paid the infringement penalty payable under an infringement notice for an offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the infringement notice.
|
Item number |
Column 1
|
Column 2 Type of heavy vehicle |
|---|---|---|
|
1 |
An offence of driving a vehicle of a type specified in Column 2 of this item at a speed in excess of a speed limit that is 60 km per hour or less. |
All |
|
2 |
An offence of driving a vehicle of a type specified in Column 2 of this item at a speed in excess of a speed limit that is more than 60 km per hour but less than 100 km per hour. |
All (except road trains that are speed limited to less than 100 km per hour) |
|
Item number |
Column 1
|
Column 2 Type of heavy vehicle |
|
3 |
An offence of driving a vehicle of a type specified in Column 2 of this item at a speed in excess of a speed limit that is more than 60 km per hour but less than 100 km per hour. |
Road trains that are speed limited to less than 100 km per hour |
|
4 |
An offence of driving a vehicle of a type specified in Column 2 of this item at a speed in excess of a speed limit that is 100 km per hour or more. |
All |
(1) A person who is a scheduler must take all reasonable steps to ensure a driver's schedule for driving a heavy vehicle will not cause the driver to exceed a speed limit.
Penalty: For a first offence, 250 penalty units, in the case of a corporation, or 50 penalty units, in any other case;
For a subsequent offence, 500 penalty units, in the case of a corporation, or 100 penalty units, in any other case.
Examples
• Consulting drivers about their schedules and work requirements.
• Taking account of the average speed that can be lawfully travelled on scheduled routes.
• Allowing for traffic conditions or other delays in schedules.
• Contingency planning in relation to schedules.
Note
Section 285 sets out some of the factors a court may consider in determining whether a person has taken all reasonable steps. Section 284 sets out a method by which a scheduler can take all reasonable steps for the purposes of this subsection.
(2) A person who is the scheduler of a heavy vehicle or of the driver of a heavy vehicle must—
(a) comply with subsection (1); and
(b) cause the schedule for driving to be such that it allows for—
(i) compliance with all speed limits applying to the driver of the vehicle; and
(ii) the driver to take all required rest breaks (in accordance with all laws regulating the work and rest times of the driver); and
(iii) traffic conditions and other delays that could reasonably be expected.
Examples
• 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.
Penalty: For a first offence, 100 penalty units, in the case of a corporation, or 20 penalty units, in any other case;
For a subsequent offence, 250 penalty units, in the case of a corporation, or 50 penalty units, in any other case.
(3) A person charged with an offence under subsection (1) or (2) does not have the benefit of the mistake of fact defence.
Note
Section 287 sets out how subsection (3) operates.
(1) A loading manager must take all reasonable steps to ensure the arrangements for loading and unloading heavy vehicles at the premises at which he or she is the loading manager will not cause the driver of a heavy vehicle to exceed a speed limit.
Penalty: For a first offence, 250 penalty units, in the case of a corporation, or 50 penalty units, in any other case;
For a subsequent offence, 500 penalty units, in the case of a corporation, or 100 penalty units, in any other case.
Examples
• 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 timeslots for loading or unloading can be relied upon.
Note
Section 285 sets out some of the factors a court may consider in determining whether a person has taken all reasonable steps. Section 284 sets out a method by which a loading manager can take all reasonable steps for the purposes of this subsection.
(2) A person charged with an offence under subsection (1) does not have the benefit of the mistake of fact defence.
Note
Section 287 sets out how subsection (2) operates.
In this Division—
"consignee" means a person who—
(a) with the person's authority, is 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; and
(b) knows, or who ought reasonably to have known, the goods were to be transported by road.
"consignor" means a person who engages a particular operator of a heavy vehicle, either directly or indirectly or through an agent or other intermediary, to transport goods on the person's behalf by road for commercial purposes;
(1) A person who is a consignor or consignee must take all reasonable steps to ensure the terms of consignment, including the delivery time, will not cause the driver of a heavy vehicle that is to transport the consigned goods to exceed a speed limit.
Penalty: For a first offence, 250 penalty units, in the case of a corporation, or 50 penalty units, in any other case;
For a subsequent offence, 500 penalty units, in the case of a corporation, or 100 penalty units, in any other case.
Examples
• Ensuring contractual arrangements and documentation relating to the consignment and delivery of consigned 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 285 sets out some of the factors a court may consider in determining whether a person has taken all reasonable steps. Section 284 sets out a method by which a consignor or consignee can take all reasonable steps for the purposes of this subsection.
(2) A person who is a consignor or consignee must take all reasonable steps to ensure the terms of the consignment, including the delivery times—
(a) will not cause the employer or the prime contractor of the driver of the heavy vehicle that is to transport the consigned goods to cause the driver to exceed a speed limit; and
(b) will not cause the operator of a heavy vehicle that is to transport the consigned goods to cause the driver to exceed a speed limit.
Penalty: For a first offence, 250 penalty units, in the case of a corporation, or 50 penalty units, in any other case;
For a subsequent offence, 500 penalty units, in the case of a corporation, or 100 penalty units, in any other case.
(3) A person who is a consignor or consignee must not make a demand that affects, or that may affect, a time in a schedule for the transport of the consigned goods by heavy vehicle unless the person—
(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 the scheduler of the driver or of the vehicle to contravene section 278.
Penalty: For a first offence, 100 penalty units, in the case of a corporation, or 20 penalty units, in any other case;
For a subsequent offence, 250 penalty units, in the case of a corporation, or 50 penalty units, in any other case.
(4) A person charged with an offence under subsection (1), (2) or (3) does not have the benefit of the mistake of fact defence.
Note
Section 287 sets out how subsection (4) operates.
A person must not ask, direct or require (directly or indirectly) a driver or a party in the chain of responsibility to do something the person knows, or reasonably ought to know, would have the effect of causing the driver, while driving a heavy vehicle, to exceed a speed limit.
Penalty: 500 penalty units, in the case of a corporation, or 100 penalty units, in any other case.
Note
Section 274 sets out who are the parties in the chain of responsibility.
Example
A requirement that the driver complete a journey in a time 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 the driver is required to take.
(1) A person must not enter into a contract with a driver or with a party in the chain of responsibility if the person knows, or reasonably ought to know, that the contract would have the effect of causing a driver, while driving a heavy vehicle, to exceed a speed limit.
Penalty: 500 penalty units, in the case of a corporation, or 100 penalty units, in any other case.
Note
Section 274 sets out who are the parties in the chain of responsibility.
(2) A person must not enter into a contract with a driver or with a party in the chain of responsibility if the person knows, or reasonably ought to know, that the contract would encourage or provide an incentive for a party in the chain of responsibility to cause a driver, while driving a heavy vehicle, to exceed a speed limit.
Penalty: 500 penalty units, in the case of a corporation, or 100 penalty units, in any other case.
Without limiting the ways in which a person may be regarded as having taken all reasonable steps, for the purposes of this Part, a person must be regarded as having taken all reasonable steps to prevent an act or omission that might cause a driver, while driving a heavy vehicle, to exceed a speed limit, if the person—
(a) has identified and assessed the
aspects of any act or omission of the person, that might cause the driver to
exceed a speed limit; and
s. 53
(b) for each aspect the person has identified and assessed under paragraph (a), has identified and assessed—
(i) the risk that the aspect might cause the driver to exceed a speed limit; and
(ii) if there is a substantial risk that the aspect might cause the driver to exceed a speed limit—the measures the person can reasonably take to eliminate the risk or, if it is not reasonably possible to eliminate the risk, to minimise the risk; and
(c) carried out the identification and assessment referred to in paragraphs (a) and (b)—
(i) at least annually; and
(ii) after anything occurs that may adversely affect the act or omission or that indicates that there may be a problem with the act or omission; and
(d) has taken the measures identified and assessed under paragraph (b)(ii); and
(e) has documented the actions the person has taken under paragraphs (a), (b), (c) and (d), and retains that documentation for at least 3 years .
Without limiting section 284, in deciding whether the actions of a person constitute all reasonable steps, a court may have regard to anything that it considers relevant including the following—
(a) the actions or failures to act that the person was attempting to, or should have been attempting to address;
(b) the likelihood that harm would eventuate;
(c) the degree of harm that would result from any failure to comply with speed limits;
(d) if a driver has been speeding, the circumstances and nature of the alleged offence;
(e) the degree to which the person (either personally or through an agent or employee) had the ability to eliminate, prevent or reduce any failure to comply with speed limits or to eliminate or minimise a risk of harm eventuating from any failure to comply with speed limits;
(f) the availability and suitability of measures to eliminate failures to comply with speed limits or to eliminate or minimise a risk of harm eventuating from any failure to comply with speed limits;
(g) the costs of acting under paragraphs (e) and (f);
(h) the experience, expertise and
knowledge that the person, or the person's agent or employee had, or ought
reasonably to have had.
s. 53
(1) In any proceeding for an offence against this Part, proof that the person complied with all relevant standards and procedures, including a registered industry code of practice and the spirit of the code, in relation to matters to which the offence relates, is evidence that the person took all reasonable steps to prevent the contravention.
(2) Subsection (1) is not available to a person charged with an offence unless the person has given written notice of the intention to prove the matters referred to in that subsection to the prosecution.
(3) The notice under subsection (2) must be—
(a) signed by the person; and
(b) given at least 28 days before the day fixed for the hearing of the charge.
If a provision of this Part states that a person does not have the benefit of the mistake of fact defence, it is not a defence to a charge for an offence against that provision if, at or before the time of the conduct constituting the offence, the person was under a mistaken but honest and reasonable belief about facts which, had they existed, would have meant the conduct would not have constituted an offence.
In a proceeding for an offence against this Part, if it is relevant to prove that someone ought reasonably to have known something, the court must consider the following when deciding whether the person ought reasonably to have known the thing—
(a) the person's abilities, experience, expertise, knowledge, qualifications and training;
(b) the circumstances of the offence;
(c) any other matters prescribed under the regulations.
In a proceeding for an offence under this Part, other than an offence under section 277, it is not necessary to prove that a driver, while driving a heavy vehicle, exceeded a speed limit.
Nothing in this Part has the effect of preventing or excluding the use of any other powers of enforcement available to an inspector in relation to a relevant law or scheme.
(1) For the purposes of this Part, the penalty applying to a subsequent offence applies if the offence of which the person is found guilty and in respect of which the penalty is to be imposed ("subsequent offence") occurs—
(a) at a different time from another occasion when the person has committed the offence, if the person has been previously found guilty of the offence committed on the other occasion ( first offence ); and
(b) the commission of the subsequent offence was within 3 years, or another period specified by the regulations, of the commission of the first offence.
(2) In determining the penalty that applies under subsection (1)—
(a) the order in which the offences were committed is irrelevant; and
(b) whether or not the offences are subject to the same penalties is irrelevant.
(3) 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.
(4) When determining whether a person has previously been found guilty of an offence under this Part, the court must have regard to a finding of guilt for an offence committed under corresponding provisions of a corresponding law.
(1) If more than one person is liable to be found guilty of an offence in respect of a provision of this Part, proceedings may be taken against any one or more of such persons in relation to the offence.
(2) Proceedings may be taken against any person
liable to be found guilty of an offence in respect of a provision of this
Part—
s. 53
(a) regardless of whether or not proceedings have been commenced against any other person; and
(b) if proceedings have started against any other person, regardless of whether or not those proceedings have finished; and
(c) if proceedings have finished against any other person, regardless of the outcome of those proceedings.
(1) Except where expressly provided in this Part, nothing in this Part affects any power that a court, a tribunal, the Corporation or an authorised officer or member of the police force has apart from this Part.
(2) Without limiting subsection (1), nothing in this Part affects a power or obligation under this Act or another law to vary, suspend, cancel or otherwise deal with any licence or registration.
(1) A term of a contract that purports to exclude, limit or modify the operation of this Part or of any provision of this Part is void to the extent that it would otherwise have that effect.
(2) Subsection (1) does not apply to a term of a contract to the extent that it purports to impose a requirement on a person that is more onerous than the relevant requirement imposed by this Part.
Despite anything to the contrary in section 26(4) of the Magistrates' Court Act 1989 , a proceeding for an offence under this Part may be commenced within 2 years after the commission of the alleged offence.".