Today’s correspondent asks about the:

… precedence of laws regarding National Heavy Vehicle Work Diary and Record Keeping requirements in Queensland.

The Federal Register of Legislation contains a ‘National Heavy Vehicle Emergency Services Work Diary and Record Keeping Exemption Notice 2023 (No. 2) [https://www.legislation.gov.au/C2023G00112/asmade/text] that is different to the provisions in the Heavy Vehicle National Law Queensland, specifically s265 & s356.

My question is “does the federal Exemption Notice take precedence over the Queensland Act and Law?”

The Australian Constitution s 109

The answer is more complex than one might think. The Australian Constitution, s 109 says that where there is a valid commonwealth law and an inconsistent valid state law, the Commonwealth law applies. The laws are inconsistent if it is impossible to comply with both or where the Commonwealth law clearly intends to ‘cover the field’ so that there is no room for the State law to be applied.  On its face that would suggest that if there is an inconsistency between a federal notice and the Queensland Act, the federal notice must prevail.

But before we can come to that conclusion, we need to understand the nature of the National Heavy Vehicle law. Many ‘national’ laws are not in fact national, they are examples of cooperative federalism where the states and territories all agree to pass the same law to create a national scheme, but the law is actually unique to each state and territory. The Health Practitioner Regulation National Law is such a scheme.  

The legal status of the Heavy Vehicle National Law Act 2012 (Qld)

The website of the National Heavy Vehicle Regulator says:

The HVNL commenced on 10 February 2014 in the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria. Each of them passed a law that either adopts or duplicates the HVNL (with some modifications) as a law of that state or territory…

*The HVNL is the schedule to the Heavy Vehicle National Law Act 2012 (Qld).

This Queensland Act adopts the law set out in the schedule to the Act (s 42B) as a law of the state (s 4). The body of the Act then makes specific provisions for Queensland. The Queensland Parliament can review and disallow national regulations as if those regulations had been made in Queensland. The Queensland Governor can make regulations applicable in Queensland and can modify national regulations as they are to be applied in Queensland.

That the scheme is an example of cooperative federalism, rather than federal or national law is also evident by the Heavy Vehicle National Law Application Act 2013 (Vic) s 4. That Act, rather than setting out the law as it applies in Victoria, adopts the law set out in the Queensland Act as a law of Victoria.

Because the Heavy Vehicle National Law is not a law of the Commonwealth s 109 of the Constitution will be irrelevant.

The national heavy vehicle regulator

The national heavy vehicle regulator is established by s 662. The Regulator is given the power to make exemptions by publishing a notice in the Commonwealth Government Gazette.  Notices published in the Government Gazette are hosted on the Federal Register of Legislation even though the relevant Act is not a federal Act.

The National Heavy Vehicle Emergency Services Work Diary and Record Keeping Exemption Notice 2023 (No.2) was published on 30 January 2023. It is made by the regulator acting under s 357 – Regulator’s power to exempt particular drivers from work diary requirements and s 378 – Regulator’s power to exempt record keepers from fatigue record keeping requirements by the regulator.

The notice says:

7.             Application – class of work, participating jurisdictions, and eligible persons

1)             This Notice applies to the driver and the driver’s record keeper of a fatigue regulated heavy vehicle that is being used to perform an emergency management activity for, or under the direction of, an emergency service.

2)             This Notice applies in all participating jurisdictions.

3)             A driver to whom this Notice applies in an eligible driver.

4)             A record keeper to whom this Notice applies is an eligible record keeper.

8.             Exemption – work diary requirements

1)             Pursuant to section 2(1) of this Notice, an eligible driver is exempt from complying with subdivisions 1 to 5 of Division 2 of Part 6.4 of the HVNL.

2)             The exemption in 1) only applies to the extent that an eligible driver complies with the work record management system of the emergency service for which the relevant work is being performed.

9.             Exemption – record keeper requirements

1)             Pursuant to section 2(2) of this Notice, an eligible record keeper is exempt from complying with Division 3 of Part 6.4 of the HVNL.

2)             The exemption in 1) only applies to the extent that an eligible record keeper complies with the work record management system of the emergency service for which the relevant work is being performed.

The exemption under the National Law

Section 356 of the Heavy Vehicle National Law says:

Emergency services exemption

(1)            A person who is acting for an emergency service and who has time-critical duties on the way to, or during, an emergency is exempted in the course of carrying out the duties from compliance with Division 2 [of Part 6.4, Work Diary Requirements].

(2)            A person who is acting for an emergency service and who is returning from attending an emergency is exempted from compliance with Division 2 if the person reasonably believes the noncompliance does not present an unreasonable danger to other road users.

(3)            A person who is acting for an emergency service is exempted from compliance with Division 2 under subsection (1) or (2) only if, at the relevant time, the person complies with any guidelines regarding the management of fatigue issued by or on behalf of the emergency service or an authority responsible for oversight of the emergency service.

(4)            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 supply, 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 or State or Territory authority responsible for managing responses to emergencies or disasters.

Examples of an emergency—

fire, explosion or natural disaster

emergency service means an entity that has a statutory responsibility to respond to an emergency and includes the following—

(a)            an ambulance service;

(b)           a fire brigade, including a volunteer fire brigade;

(c)            a police force or police service;

(d)           a disaster or emergency organisation of the Commonwealth or a State or Territory.

Section 265 is in similar terms and applies to Part 6.3 Duties Relating to Fatigue.

Are the provisions inconsistent?

Section 265 of the National Law is not inconsistent with the Regulator’s notice. Section 265 is an exemption from the requirements relating to work and rest time (ie Part 6.3). The regulator’s notice is an exemption from the need to keep a diary to record the driver’s work and rest times (Part 6.4).  In short one is an exemption from the need to take a rest, the other is an exemption from the need to keep a record about driving and resting. They are not covering the same subject area so there is no inconsistency.

Section 356 is an exemption from the need to keep a work diary. This is the same subject area as the regulator’s notice. Section 356 applies to ‘A person who is acting for an emergency service…’ The regulator’s notice applies to ‘the driver and the driver’s record keeper of a fatigue regulated heavy vehicle that is being used to perform an emergency management activity for, or under the direction of, an emergency service.’

It is unclear what is the intended difference between a person is ‘acting for’ an emergency service and a person who driving a vehicle ‘that is being used to perform an emergency management activity for, or under the direction of, an emergency service’ but there must be a difference otherwise different words would not be used.

I would infer that the difference is in the relationship between the driver and the emergency service.  A member of the Queensland Fire and Emergency Service is driving the appliance ‘for’ QFES as QFES cannot drive it other than through its staff and volunteers.   A contractor eg the driver of a hired water tanker or a chartered bus is performing a task for or under the direction of the service (see What is a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria? (July 21, 2017)).  If that interpretation is correct, then the regulator’s notice applies to a different class of drivers and expands the exemption beyond those who are part of the emergency services.

Section 9 is clearly an expansive provision extending the exemption to the relevant record keeper; an exemption that is not set out in s 356.  That is also consistent with the idea that the notice is extending the exemption outside the emergency services eg to companies that manage heavy vehicle operations and keep records for their drivers.

If there is no difference between driving ‘for’ an emergency service and driving a vehicle ‘that is being used to perform an emergency management activity for, or under the direction of, an emergency service’  then it is not clear what s 8 of the regulator’s notice adds, but it is also not clear that there is an inconsistency. One could argue that s 356(2) which applies to a driver returning from an emergency is wider than the exemption in the regulator’s notice so there could be a question how that applies, but I would expect that anyone would think that a vehicle is still engaged in an emergency management activity until it has returned to its base or has been released, and is now being used for other work.

Further the regulator cannot amend the National Law. The regulator has the power to ‘exempt’ some drivers ‘from work diary requirements’ (s 357) and ‘to exempt record keepers from fatigue record keeping requirements’ (s 378). The regulator does not have the power to restrict the exemptions set out in the Act, in his case in s 356.  Accordingly, if the regulator’s notice is more narrow, or restrictive than s 356, then s 356 must prevail. If on the other hand, the regulator’s notice is (as I argue it is) more expansive and extending the exemption then both provisions can stand.

Conclusion

My reading is that the provisions are not inconsistent. The Act gives an exemption from Part 6.3 of the Act dealing with work and rest breaks.  The National Heavy Vehicle Emergency Services Work Diary and Record Keeping Exemption Notice 2023 (No. 2) has nothing to say about that so there is no inconsistency an s 265 can do the work it is there to do.

Both section 356 and the National Heavy Vehicle Emergency Services Work Diary and Record Keeping Exemption Notice 2023 (No. 2) deal with exemptions from the need to keep work diaries.  What work the Notice has to do is not clear, but I infer it extends the exemption from those working directly as part of the emergency services to the drivers of heavy vehicles, not normally part of the emergency services, but who have been engaged to provide services as part of the emergency management.

The specific question I was asked was “does the federal Exemption Notice take precedence over the Queensland Act and Law?”  The answer to that question is ‘no’ as the regulator’s notice is made under, or is authorised by, the Queensland law and so must be consistent with that law.  The power of the regulator is a power to exempt certain drivers from the provisions of the law, not to change the law.  If the regulator’s notice is more restrictive than the law, the law must prevail. If the notice is more expansive, extending the exemption, then there is no inconsistency and the regulator’s exemption will apply on its terms.

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.