Today’s correspondent asks for my:
… view on the requirements of the Heavy Vehicle National Law (NSW) as applied to emergency services.
An emergency service operates a Heavy Rigid Truck with a GVM of 26.5T, making it a fatigue-regulated heavy vehicle within section 7 of the Act. The service operating the vehicle has provided advice to staff and volunteers that they are not required to maintain a logbook in accordance with the HVNL by virtue of a number of exemptions. They have provided a letter on a service letterhead addressed to whom it may concern stating they are exempt and reproducing the exemptions they believe apply but the letter is undated and unsigned.
Anecdotally, other ESO’s operating similar trucks have advised that whilst they share the view an exemption applies, that they have been challenged by RMS Heavy Vehicle Inspectors who claim the exemption only applies when responding to or returning from an emergency and instructed the ESO’s to carry and use logbooks for all non-emergency related transport. Their drivers do so not due to any policy but to avoid confrontation with RMS.
Q1. Are Emergency Services exempt from the requirements to comply with record keeping obligations of chapter 6 of the HVNL?
Q2. Are there any conditions on that exemption that restrict its applicability to attending emergencies?
Q3. Is the letter provided by the ESO sufficient for a member to rely upon as “Mistake of fact” if prosecuted in the event the advice is incorrect?
The Heavy Vehicle National Law (NSW) s265, states:
265 Exemptions for emergency services [NSW]
(1) A person who is an officer, member or member of staff of an emergency service is exempt from the provisions of this Chapter, but only in relation to the driving of a fatigue-regulated heavy vehicle in the course of undertaking work for an emergency service.
(2) An emergency service is any of the following—
(a) the NSW State Emergency Service established under the State Emergency Service Act 1989 of New South Wales;
(b) Fire and Rescue NSW and any permanent fire brigade or retained fire brigade within the meaning of the Fire and Rescue NSW Act 1989 of New South Wales;
(c) the NSW Rural Fire Service established by the Rural Fires Act 1997 of New South Wales;
(d) the Ambulance Service of NSW within the meaning of the Health Services Act 1997 of New South Wales;
(e) the NSW Police Force established by the Police Act 1990 of New South Wales;
(f) New South Wales Volunteer Rescue Association Inc;
(g) a government agency of another jurisdiction, or a body authorised under the law of another jurisdiction, that has corresponding functions to the bodies referred to in any of the above paragraphs.
(3) The exemption provided by this section is in addition to, and does not limit the effect of, the exemption provided by section 265A.
Section 265A says:
265A Exemptions in Relation to Emergencies [NSW]
(1) A person who is attending an emergency and who is undertaking activities with respect to the control of the emergency in the course of his or her employment or usual business activities is exempt from compliance with this Part in relation to the driving of a fatigue-regulated heavy vehicle to and from the emergency so long as subsection (2) is complied with.
(2) Any record that would be required to be made under this Chapter if the exemption under subsection (1) were not available–
(a) must be made as soon as practicable after the journey from the emergency is completed; and
(b) must include a record of the following–
(i) the time, date, location and nature of the emergency;
(ii) if the person was asked by another person to attend the emergency, the name and contact details of that other person.
(3) In this section,
“emergency” means an event (or an anticipated event) that–
(a) endangers, or may endanger, life, property or the environment; or
(b) has disrupted, or may disrupt, communications, energy, water supply or sewerage services; or
(c) is declared to be an emergency or disaster by–
(i) the Commonwealth or a State or Territory; or
(ii) a Commonwealth, State or Territory authority responsible for managing responses to emergencies or disasters.
The term ‘work’ is defined in s 221. It means
(a) drive a fatigue-regulated heavy vehicle; or
(b) instruct another person to drive, or supervise another person driving, a fatigue-regulated heavy vehicle; or
(c) perform another task relating to the use of a fatigue-regulated heavy vehicle, including, for example–
(i) load things onto, or unload things from, the heavy vehicle; and
(ii) inspect, service or repair the heavy vehicle; and
(iii) inspect or attend to a load on the heavy vehicle; and
(iv) if the heavy vehicle is a bus, attend to passengers on the bus; and
(v) clean or refuel the heavy vehicle; and
(vi) perform marketing tasks in relation to the use of the vehicle; and
(vii) help another person to perform, or supervise another person performing, a task mentioned in any of subparagraphs (i) to (vi); and
(viii) record information or complete a document, as required under this Law, a corresponding fatigue law or otherwise, in relation to the use of the vehicle; or
(d) occupy the driver’s seat of a fatigue-regulated heavy vehicle while its engine is running.
There is nothing in the definition of ‘work’ and therefore ‘work for an emergency service’ that would limit the exemption to driving to, from or as part of the response to an emergency.
My correspondent then makes my task easier by giving the answer. They say:
My personal view is that the exemption [in s 265] applies based on the following.
- The exemption applies to the whole of Chapter 6 Vehicle Operations-Driver Fatigue, including work and rest time, record keeping and work diaries
- Undertaking work for an emergency service is not limited it to the response to or return from an emergency response,
- Section 265 as applied in NSW is inserted only within NSW. The national model legislation version of 265 is replicated in the NSW version at 265A.
- Section 265A restricts the definition to attending to and undertaking activities with respect to control of an emergency but differs in the definition of whom it applies to by referencing a person as opposed to an officer, member or member of staff, implying it could apply to a contractor operating under direction of an emergency service.
- Section 265 subsection (3) specifically recognises that the emergency service exemption is in addition to (implying the greater exemption scope is specifically for officers, members and members of staff) and does not limit the effect of 265A (implying 265A is not restricted to officer, member or member of staff).
- The legislation places considerable focus on the definition of work and uses particularly precise language when defining specific activities within work to avoid ambiguity.
- If it were intended for section 265 to be constrained to the response to or return from an emergency, NSW legislators would have not included the NSW specific 265 and used the model law replicated at 265A instead.
I have not confirmed that ‘Section 265 as applied in NSW is inserted only within NSW. The national model legislation version of 265 is replicated in the NSW version at 265A’ but assuming that is indeed the case then I agree with my correspondent’s analysis.
An exemption under s 265A extends beyond members of the emergency services and can include contractors but it only applies during the response to the emergency. The exemption under r 256 applies to members of the emergency services when operating a ‘fatigue related heavy vehicle’ as part of their work for the emergency services. There is nothing in s 265 or 221 that would limit that exemption to circumstances where the driver is driving to, from or as part of the response to an emergency.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
How does this apply to NSW vehicles crossing the border into ACT, QLD and/or Vic? I note that the HVNL site states that “In some cases, drivers may also need to comply with certain aspects of the HVNL before they cross the border (eg. work diary requirements)”. Since reading your blog this morning, I have not been able to find such a reference to exemptions in those states and Territory in the same manner as in Heavy Vehicle (Adoption of National Law) Act 2013 No 42.
This topic is getting beyond my comfort zone. There must be two approaches – one is that each states’ laws only operate in their jurisdiction and if a NSW emergency service is travelling interstate they would need to comply with the fatigue management rules and would only be exempt if responding to an emergency (assuming my correspondent is correct and that what is s 265A in NSW is the rule in other states).
The alternative approach is that there is meant to be a national law and given NSW emergency services are exempt in NSW for a national rule they must also be exempt in other states (in the same way vehicles registered in one state don’t need to meet standards in another etc). In support of that view, s 16 of the NSW Act which says “It is the intention of the Parliament of this jurisdiction that the operation of this Law is, as far as possible, to include operation in relation to the following– (a) things situated in or outside the territorial limits of this jurisdiction…” And we know that state laws have interstate operation (https://australianemergencylaw.com/2022/04/18/interstate-deployment-2/). The NSW Act only exempts NSW emergency services (I would suggest that the provision exempting equivalent agencies only applies in NSW) but recognising that the exemption for NSW emergency services is part of the national law does not impinge on interstate sovereignty. Finally I note that under the Health Practitioner Regulation National Law holds that ‘a Diploma of Paramedical Science issued by the Ambulance Service of New South Wales’ is an accepted qualification for registration as a paramedic and that is true in eery state and territory. The difference there is this is actually spelled out in each jurisdiction’s legislation.
All things considered I think the exemption granted to the NSW emergency services applies in all states and territories but one really needs to talk to an expert in the national road rule schemes and that is not me.
I received this comment and further information via email:
“I came across your comments on the above subject as CFA Vic are working through some issue related to this subject.
I can give you my version why I think the previous RMS heavy Vehicle officers (Effective from 1 Aug 2022 now employed by the National Heavy Vehicle Regulator) weren’t applying the NSW Fatigue Emergency Services exemption provided by the NSW Heavy Vehicle National Law.
The National Heavy Vehicle Regulator has the Heavy Vehicle National Law legislation on their website so if you link to that you will get the legislation approved by the Queensland parliament that is supposed to be mirrored by each participating jurisdiction
Also refer https://www.nhvr.gov.au/news/2022/08/01/heavy-vehicle-national-law-guide-for-legal-practitioners
NSW has added an outright Fatigue Exemption for Emergency Services in their HVNL so if referencing the HVNL vis the NHVR website you are not picking up the variations made by the participating states.
You should advise the NHVR so they can train their officers in the exemption given.”