Part 3.4 Proceedings for offences for mass, loading and dimension requirements

Division 1 Liability of registered operators and owners

80   Liability of registered operators and owners

(cf model provisions, s 150, Roads Act, s 235)

(1)  This section applies to an applicable road law offence where the offence is expressed to be committed by an operator of a vehicle or combination (whether or not any other person can also commit the offence).

(2)  If an offence to which this section applies is committed:

(a)  with respect to a vehicle not forming part of a combination at the relevant time—the registered operator or owner of the vehicle is taken to have committed the offence and is punishable accordingly, or

(b)  with respect to a whole combination or with respect to the towing vehicle of a combination—the registered operator or owner of the towing vehicle of the combination is taken to have committed the offence and is punishable accordingly, or

(c)  with respect to a trailer forming part of a combination at the relevant time—the registered operator or owner of the towing vehicle and the registered operator or owner (if any) of the trailer are each taken to have committed the offence and are punishable accordingly.

(3)  The registered operator or owner has the benefit of the reasonable steps defence for an offence under this section, but only if the reasonable steps defence is available to a principal offender for an offence of the kind committed by the principal offender.

(4)  Subsection (2) does not apply if, during the period prescribed by the regulations and in the manner prescribed by the regulations, the registered operator or owner gives the Authority a statutory declaration containing prescribed information, including the name and address of the operator of the vehicle or combination at the time of the offence.

(5)  This section does not affect the liability of the principal offender.

(6)  In this section:

owner does not include a lessor of a vehicle or combination.

81   Complicity and common purpose (aiding and abetting)

(cf model provisions, s 151)

(1)  A person who aids, abets, counsels or procures the commission of an applicable road law offence by another person is taken to have committed that offence and is punishable accordingly.

(2)  For the person to be guilty:

(a)  the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person, and

(b)  the offence must have been committed by the other person.

(3)  For the person to be guilty, the person must have intended that:

(a)  his or her conduct would aid, abet, counsel or procure the commission of any offence of the type the other person committed, or

(b)  his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence that the other person in fact committed.

(4)  Subsection (3) has effect subject to subsection (8).

(5)  A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:

(a)  terminated his or her involvement, and

(b)  took reasonable steps to prevent the commission of the offence.

(6)  This section does not affect the liability of the principal offender.

(7)  A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty.

(8)  Any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of that offence.

(9)  In this section:

special liability provision means:

(a)  a provision that provides that it is no defence that the defendant had a mistaken but reasonable belief as to the facts that constituted the offence, or

(b)  a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew a particular thing, or

(c)  a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed a particular thing.

82   Causing or permitting

(cf model provisions, s 152)

(1)  A person who causes or permits another person to commit an applicable road law offence is taken to have committed that offence and is punishable accordingly.

(2)  This section does not affect the liability of the person who actually committed the offence.

(3)  This section does not apply in relation to directions given by authorised officers or police officers under applicable road laws.

83   Coercing, inducing or offering incentive

(cf model provisions, s 153)

(1)  A person who urges another person to commit an applicable road law offence is guilty of an offence.

Maximum penalty: 100 penalty units (in the case of an individual) or 500 penalty units (in the case of a corporation).

(2)  Without limiting the above, a person urges another person to commit an applicable road law offence if the person threatens, intimidates, coerces, induces or offers an incentive to the other person to commit the applicable road law offence.

(3)  This section does not affect the liability of the person who actually committed the applicable road law offence.

Division 2 Defences

84   Sudden or extraordinary emergency

(cf model provisions, s 154)

(1)  It is a defence to a prosecution for an applicable road law offence if the defendant carried out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.

(2)  This section applies if and only if the person carrying out the conduct reasonably believed that:

(a)  circumstances of sudden or extraordinary emergency exist, and

(b)  committing the offence is the only reasonable way to deal with the emergency, and

(c)  the conduct is a reasonable response to the emergency.

85   Lawful authority

(cf model provisions, s 155)

It is a defence to a prosecution for an applicable road law offence if the defendant establishes that the conduct constituting the offence is authorised or excused by or under a law.

86   Other defences

(cf model provisions, s 156)

Nothing in this Act affects defences available under other laws of this jurisdiction.

Note. An example of such a defence is the defence of duress.

Division 3 Reasonable steps defence

87   Reasonable steps defence for mass requirements: drivers, operators and owners

(cf Roads Act 1993, s 235)

(1)  If a provision of this Act, or a regulation made under this Act, states that a person has the benefit of the reasonable steps defence for an offence relating to a mass requirement, it is a defence to a prosecution for an offence alleged to have been committed by a person as the driver, owner or operator of a vehicle or combination if the defendant establishes that the defendant:

(a)  did not know, and could not reasonably be expected to have known, of the contravention, and

(b)  had taken all reasonable steps to prevent the contravention.

(2)  If the relevant contravention resulted from the fact that the mass of the vehicle or part of the vehicle (together with the mass of any load on the vehicle or part of the vehicle) exceeded any limit prescribed by the regulations, then the court is not entitled to be satisfied that the defendant took all reasonable steps to prevent the contravention unless it is satisfied that the defendant took all reasonable steps to cause the mass of the load carried on the vehicle to be ascertained at the start of the journey during which the contravention occurred.

(3)  The court is not entitled to be satisfied that the defendant took all reasonable steps to cause the mass of a load to be ascertained unless it is satisfied that:

(a)  the load had been weighed, or

(b)  the defendant, or the driver of the vehicle, was in possession of sufficient and reliable evidence from which that weight was calculated.

(4)  Subsections (2) and (3) do not apply if the defendant satisfies the court that at all material times that the defendant did not, either personally or through any agent or employee, have custody or control of the vehicle concerned.

(5)  If the defendant is a corporation, then, in order to satisfy the court that the corporation did not know and could not reasonably be expected to have known of the relevant contravention, the corporation must satisfy the court that:

(a)  no director of the corporation, and

(b)  no person having management functions in the corporation in relation to activities in connection with which the contravention occurred,

      knew of the contravention or could reasonably be expected to have known of it.

88   Reasonable steps defence for other mass, dimension and load restraint requirements

(cf model provisions, s 89)

(1) Application
This section does not apply to an offence relating to a mass requirement if the defendant is the driver, operator or owner of the vehicle concerned.

(2) Defence
If a provision of this Act, or a regulation made under this Act, states that a person has the benefit of the reasonable steps defence for an offence, it is a defence to a prosecution for an offence to which this section applies if the defendant establishes that:

(a)  the defendant did not know, and could not reasonably be expected to have known, of the contravention concerned, and

(b)  either:

(i)  the defendant had taken all reasonable steps to prevent the contravention, or

(ii)  there were no steps that the defendant could reasonably be expected to have taken to prevent the contravention.

(3) Matters that court may have regard to
Without limiting the above, in determining whether things done or omitted to be done by the defendant constitute reasonable steps, a court may have regard to:

(a)  the circumstances of the alleged offence, including (where relevant) the risk category to which the breach concerned belongs, and

(b)  without limiting paragraph (a), the measures available and measures taken for any or all of the following:

(i)  to accurately and safely weigh or measure the vehicle or combination or its load or to safely restrain the load in or on the vehicle or combination,

(ii)  to provide and obtain sufficient and reliable evidence from which the weight or measurement of the vehicle or combination or its load might be calculated,

(iii)  to manage, reduce or eliminate a potential breach arising from the location of the vehicle or combination, or from the location of the load in or on the vehicle or combination, or from the location of goods in the load,

(iv)  to manage, reduce or eliminate a potential breach arising from weather and climatic conditions, or from potential weather and climatic conditions, affecting or potentially affecting the weight or measurement of the load,

(v)  to exercise supervision or control over others involved in activities leading to the breach, and

(c)  the measures available and measures taken for any or all of the following:

(i)  to include compliance assurance conditions in relevant commercial arrangements with other responsible persons,

(ii)  to provide information, instruction, training and supervision to employees to enable compliance with relevant laws,

(iii)  to maintain equipment and work systems to enable compliance with relevant laws,

(iv)  to address and remedy similar compliance problems that may have occurred in the past, and

(d)  whether the defendant had, either personally or through an agent or employee, custody or control of the vehicle or combination, or of its load, or of any of the goods included or to be included in the load, and

(e)  the personal expertise and experience that the defendant had or ought to have had or that an agent or employee of the defendant had or ought to have had.

89   Reasonable steps defence—reliance on container weight declaration

(cf model provisions, s 90)

(1)  This section applies where the owner, operator or driver of a vehicle or combination is prosecuted for an offence involving a breach of a mass requirement and is seeking to establish the reasonable steps defence in relation to the offence.

(2)  To the extent that the weight of a freight container together with its contents is relevant to the offence, the defendant may rely on the weight stated in the relevant container weight declaration, unless it is established that the defendant knew or ought reasonably to have known that:

(a)  the stated weight was lower than the actual weight, or

(b)  the distributed weight of the container and its contents, together with:

(i)  the mass or location of any other load, or

(ii)  the mass of the vehicle or combination or any part of it,

      would cause one or more breaches of mass requirements.

90   Defence of mistaken and reasonable belief not available for specified offences

In any proceedings for offences under the following provisions, it is no defence that the defendant had a mistaken but reasonable belief as to the facts that constituted the offence:

(a)  section 53 (Liability of consignor),

(b)  section 54 (Liability of packer),

(c)  section 55 (Liability of loader),

(d)  section 56 (Liability of operator),

(e)  section 57 (Liability of driver),

(f)  section 66 (Duty of responsible entity),

(g)  section 67 (Duty of operator),

(h)  section 68 (Duty of driver),

(i)  section 75 (False or misleading transport documentation: liability of consignor, packer, loader, receiver and others),

(j)  section 81 (Complicity and common purpose (aiding and abetting)), but only in so far as it relates to an offence referred to in this section.

Division 4 Other special defences

91   Meaning of “deficiency concerning a vehicle or combination”

(cf model provisions, s 157)

In this Division:

deficiency concerning a vehicle or combination means:

(a)  a deficiency in or of the vehicle or combination or in or of any equipment carried in or on the vehicle or combination, or

(b)  a deficiency constituted by the absence of particular equipment that is required to be carried in or on the vehicle or combination.

92   Special defence for all owners or operators

(cf model provisions, s 158)

(1)  It is a defence to an applicable road law offence alleged to have been committed by a person as an owner or operator of a vehicle or combination if the person establishes that the vehicle or combination was being used at the relevant time by:

(a)  another person not entitled (whether by express or implied authority or otherwise) to use it, other than an employee or agent of the alleged offender, or

(b)  an employee of the alleged offender who was acting at the relevant time outside the scope of the employment, or

(c)  an agent (in any capacity) of the alleged offender who was acting at the relevant time outside the scope of the agency.

(2)  If the offence relates to a breach of an applicable road law in connection with alleged deficiencies concerning the vehicle or combination, the defence is not available unless the alleged offender establishes that:

(a)  the vehicle or combination had not, before it ceased to be under the alleged offender’s control, been driven on a road in Australia in breach of an Australian applicable road law arising in connection with all or any of those alleged deficiencies, and

(b)  one or more material changes, resulting in the alleged breach, had been made after the vehicle or combination had ceased to be under the alleged offender’s control.

93   Special defence for drivers, owners and operators of light vehicles

A driver or an owner or operator of a vehicle or combination (other than a heavy vehicle or heavy combination) prosecuted for an applicable road law offence involving a breach of a mass requirement has the benefit of the reasonable steps defence.

94   Special defence for drivers

(cf model provisions, s 159)

(1)  This section applies to an applicable road law offence involving deficiencies concerning a vehicle or combination.

(2)  It is a defence to an offence to which this section applies alleged to have been committed by a person as driver of the vehicle or combination if the person establishes that the person (whether as driver or otherwise):

(a)  did not cause or contribute to the deficiencies concerning the vehicle or combination and had no responsibility for or control over the maintenance of the vehicle or combination or its equipment at any relevant time, and

(b)  did not know and could not reasonably be expected to have known of the deficiencies, and

(c)  could not reasonably be expected to have sought to ascertain whether there were or were likely to be deficiencies concerning the vehicle or combination.

95   Special defence of compliance with direction

(cf model provisions, s 160)

It is a defence to an applicable road law offence if the person establishes that the conduct constituting the offence was done in compliance with a direction (whether or not a lawful direction) given by:

(a)  an authorised officer, or

(b)  an Australian Authority or a delegate of an Australian Authority.

Division 5 Fines

96   Provisions relating to first offences and second or subsequent offences

(cf model provisions, s 132)

(1) Application of section
This section has effect for the purpose of determining whether an offence is a first offence or a second or subsequent offence for the purposes of determining the maximum penalty for an offence under Part 3.3.

(2) Separate occasion of second or subsequent offence
A person is found guilty of a second or subsequent offence if and only if the occasion in respect of which the second or subsequent offence occurred was different from the occasion in respect of which the first offence for which the person was found guilty occurred.

(3) Order in which offences actually committed is immaterial
It is immaterial in which order the offences were committed.

(4) Risk category is immaterial
In the case of offences relating to mass, dimension or load restraint requirements, it is immaterial whether the breaches concerned are of the same risk category or of different risk categories.

(5) Offence to be treated as first offence in cases of uncertainty
If the court is satisfied that a person is guilty of an offence but is unable to ascertain (from the information available to the court) whether or not the offence is a first offence for which the person was found guilty, the court may impose a penalty for the offence only as if it were a first offence.

(6) Offences under corresponding applicable road laws
In determining whether a person has been found guilty of an offence previously under a provision of an applicable road law, regard is to be had to finding of guilt for offences committed under corresponding provisions of the applicable road laws of other jurisdictions.

(7)  The regulations may make provision for or with respect to determining what are or are not to be treated as corresponding provisions of the applicable road laws of other jurisdictions.