Today’s correspondent is asking questions about heavy vehicle exemptions and their application to the NSW RFS.  

They say (emphasis and question numbers added):

[Section] 356(2) [of the Heavy Vehicle National Law (NSW) says] ‘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’.

Question 1: What would be considered as “reasonably believes” ie what would the court likely use to test this statement?

[Section] 356(3) [says] ‘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’.

Question 2: If the driver of the vehicle was to be in breach of internal fatigue policy, does this mean the exemption under 356 no longer applies?  Ie the exemption allows the driver of the vehicle to drive without filling out a work diary (recording work/rest hours) and in contravention of work/rest ours regulations provided they meet 356 (1), (2) & (3)?

Question 3: Further, should a member of the service roster on, direct or otherwise engage a driver or crew to work in contravention with the exemption, including working outside the exemptions ie driver states they are tired, or working outside organisational fatigue policy, does this make the person directing the work liable under CoR [Chain of Responsibility] legislation?

I’ll deal with these in turn.

Question 1.

The reference to ‘Division 2’ is Chapter 6, part 6.4 ‘Requirements About Record Keeping’, Division 2 ‘Work Diary Requirements’. Accordingly, the driver of a heavy vehicle does not have to keep a work diary if the provision of s 356 apply.

The test in s 356(2) is a ‘objective/subjective’ test.  

It is subjective because the question of whether someone believes something or not is about them. So, the first issue to be considered is did the driver actually believe that ‘noncompliance does not present an unreasonable danger to other road users’.  Non-compliance is non-compliance with the need to keep a work diary.  It’s hard to see how failure to complete a diary poses a risk to other road users but that is the question to be asked.

The objective part of the test is that the believe must be a ‘reasonable’ belief.  The first question to consider is did the driver have reasons to believe that ‘noncompliance does not present an unreasonable danger to other road users’.  If they had no reasons, that is if they really didn’t think about why they held that belief then they will fail that test.

In Wyong Shire Council v Shirt [1980] HCA 12, the High Court set out the test to be applied when deciding whether there was a ‘reasonable’ response to a risk. Whilst not directly applicable here it may give some guidance on the relevant thought processes required. Mason CJ said (at [14]) that what is required is:

… a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

Or, in this case, the belief would be held by a reasonable person. I’m not sure I can see the risk posed by not keeping a diary as opposed to driving whilst tired but that is the test. 

Question 2

Section 356(3) is setting up an alternative.  Either the driver 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’ or they comply with Division 2 and the need to keep a work diary. Failure to comply with the fatigue guidelines issued by the agency means ‘the exemption under 356 no longer applies’. 

Question 3

The exemption from the Chain of Responsibility (CoR) is found in s 26I. That section says

A person who is an officer, member or member of staff of an emergency service is exempt from section 26C, but only–

(a) in so far as the offending relates to speed or fatigue; and

(b) in relation to the driving of a heavy vehicle–in the course of undertaking work for an emergency service.

Section 26C says:

(1) Each party in the chain of responsibility for a heavy vehicle must ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to the vehicle. 

(2) Without limiting subsection (1), each party must, so far as is reasonably practicable– 

(a) eliminate public risks and, to the extent it is not reasonably practicable to eliminate public risks, minimise the public risks; and 

(b) ensure the party’s conduct does not directly or indirectly cause or encourage– 

(i) the driver of the heavy vehicle to contravene this Law; or 

(ii) the driver of the heavy vehicle to exceed a speed limit applying to the driver; or 

(iii) another person, including another party in the chain of responsibility, to contravene this Law. 

This is a ‘general duty’ provision backed up by criminal penalties (ss 26F to 26H). 

It’s a difficult clause to apply.  First s 26I is only limited to speed and fatigue.  A person must not ‘directly or indirectly cause or encourage …  the driver of the heavy vehicle to exceed a speed limit applying to the driver’ but that begs the question of what is the speed limit applying to the driver?  

Rule 306 of the Road Rules 2014 (NSW) says that those rules do not apply to the driver of an emergency vehicle which includes a truck being driven by a member of a fire service including the RFS.  To the extent that the driver is a member of the RFS then the speed limits in the Rules do not apply to that driver, so the officer is not encouraging the driver to exceed a speed limit ‘applying’ to that driver.  

If the driver is driving a heavy vehicle at the direction of the RFS without being a member in which case the exemption in rule 306 does not apply. It is worth noting a significant difference here between NSW and Victoria; NSW requires the driver to be ‘a member of a fire or rescue service operated by a NSW Government agency’ (Road Rules 2014(NSW) Dictionary, definition of ‘emergency worker’).  Victoria requires that the vehicle is ‘a vehicle operated by or on behalf of and under the control of … the Country Fire Authority …’ (Road Safety Road Rules 2017 (Vic), Dictionary, definition of ‘emergency vehicle’).  A vehicle that is being driven by a contractor at the direction of the CFA would fall within the Victorian definition but not the NSW definition if providing similar support to the RFS; see What is a vehicle that is ‘operated by or on behalf of and under the control’ of Ambulance Victoria? (July 21, 2017)). If a NSW driver does not fall within the exemption set out in s 306, then the officer who encourages them to exceed the speed limit to respond to an emergency may not be in breach of s 26C of the Heavy Vehicle National Law but with no exemption from the speed limit, the driver would still be liable for prosecution for speeding.  That would also be true if the speed limit where in another law such as the Heavy Vehicle National Law. Without an exemption (and I can find no exemption but there is an exemption from the need to have a speed limiter – see National Heavy Vehicle Standards (Emergency Services Speed Limiting) Exemption Notice 2026 (No.1) (9 June 2026)) the driver can still be prosecuted for speeding even if the RFS officer is exempt from prosecution for breach of s 26C of the Heavy Vehicle National Law. 

As for the fatigue provisions, the exemption from s 26C would allow an officer to for example request a driver to drive in circumstances that would otherwise be in breach of the CoR legislation.  The effect of s 26C is that the ‘officer, member or member of staff’ is exempt from those criminal provisions, but that does not exempt the RFS (or more accurately, the state of NSW) to take ‘reasonable care’ to protect their operators and other vulnerable persons. When considering what is ‘reasonable care’ one has to consider all the circumstances including the nature of the emergency, so one might keep the driver of a water tanker driving for more hours than he or she would drive when there is no emergency; but there is still a duty to consider and manage the risks (and see the quote from Wyong Shire, above).  

It would appear that asking the driver to work when he or she reports that they are tired or that what they are being asked to do is outside the ‘guidelines regarding the management of fatigue issued by or on behalf of the emergency service’ would not expose the officer to prosecution but it may expose the state to liability in negligence should there be any adverse consequences.  It may also be that the State would be in breach of the Heavy Vehicle National Law even if the individual officer is not. 

Officers and members should also not s 26E(1). That section says:

A person must not ask, direct or require (directly or indirectly) the driver of a heavy vehicle or a party in the chain of responsibility to do or not do something the person knows, or ought reasonably to know, would have the effect of causing the driver–

(a) to exceed a speed limit applying to the driver; or

(b) to drive a fatigue-regulated heavy vehicle while impaired by fatigue; or

(c) to drive a fatigue-regulated heavy vehicle while in breach of the driver’s work and rest hours option; or

(d) to drive a fatigue-regulated heavy vehicle in breach of another law in order to avoid driving while impaired by fatigue or while in breach of the driver’s work and rest hours option.

: Maximum penalty–$10000.

The exemption from the Chain of Responsibility in s 26I does not extend to an alleged breach of s 26E.

The driver may be exempt from the normal ‘work and rest hours’ (Heavy Vehicle National Law ss 265 and 265A) so asking a person to drive in accordance with those exemptions is not a breach of this section as the driver, whilst enjoying an exemption, is not in breach of their ‘work and rest hours option’. 

Asking a driver to continue when the driver has indicated that they are fatigued and in particular if they say they are fatigued to the extent that to continue would ‘present an unreasonable danger to other road users’ would appear to be a breach of s 26E(1)(b) for which there is no exemption.

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