Fatigue Driving Laws in Australia - Criminal Defence Lawyers Australia

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Driving whilst fatigued can pose a significant risk of accident. As such, the criminal law in Australia has a number of discrete offences dealing with fatigue whilst driving heavy vehicles as well as reckless, negligent and dangerous driving laws applicable to all drivers.

The following outlines offences related to fatigued driving, noting relevant criminal penalties and possible defences.

Table Of Contents

Fatigue Specific Offences For Heavy Vehicles
Negligent and Reckless Driving Laws
Dangerous Driving Laws
Defences To Fatigue-Related Offences

Fatigue Specific Offences For Heavy Vehicles

The Heavy Vehicle National Law (HVNL) applies to all drivers of ‘fatigue-regulated heavy vehicles’ in the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria.

What is a fatigue-regulated heavy vehicle’? A ‘fatigue-regulated heavy vehicle’ includes any vehicle with a gross vehicle mass exceeding 12 tonnes (such as a truck) as well as buses with a gross vehicle mass exceeding 4.5 tonnes that are designed to carry 12 or more people.

Certain vehicles, such as bulldozers and motorhomes, are exempt from the definition of ‘fatigue-regulated heavy vehicle’ for the purposes of fatigue offences.

Under the HVNL, it is an offence for a driver to operate a fatigue-regulated heavy vehicle while impaired by fatigue. The maximum penalty for this offence is $6,850 and three demerit points.

The HVNL provides specific rules regarding work and rest time to prevent driver fatigue. This includes obligations for drivers and their employers to log work and rest time, as well as to implement fatigue management policies to prevent fatigue including maximum allowable work hours. Rest time does not necessarily mean ‘sleep’ but includes all time not driving a fatigue-regulated heavy vehicle.

Drivers and operators may apply for exemptions to the work/rest hours or record-keeping requirements if it is not feasible for them to comply while maintaining road safety. This application will be considered by the National Heavy Vehicle Regulator, and will only be granted if the proposal does not appear to put drivers on the road at risk.

Negligent and Reckless Driving Laws

Whilst there are no fatigue-specific offences for lighter vehicles in Australia, fatigued driving is covered by criminal offences related to reckless or negligent driving in every State and Territory.

For example, in NSW section 117(1) of the Road Transport Act 2013 (NSW) it is an offence to drive a motor vehicle negligently. The maximum penalties for this offence depend on the consequences of negligent driving:

If the negligent driving causes death, the maximum penalty is 30 penalty units or 18 months imprisonment for a first offence, and 50 penalty units or 2 years imprisonment for a second or subsequent offence.
If the driving causes grievous bodily harm, the penalty is 20 penalty units or 9 months imprisonment for a first offence, and 30 penalty units or 12 months imprisonment for a second or subsequent offence.
In cases where the driving does not result in death or grievous bodily harm, the penalty is limited to 10 penalty units.

Also under the Act, it is an offence for a person to drive furiously, recklessly or at a speed or in a manner dangerous to the public. This offence carries a maximum penalty of 20 penalty units or 9 months imprisonment for a first offence, and 30 penalty units or 12 months’ imprisonment for a second or subsequent offence.

In determining whether an offence has been committed under this section, the court must consider all the circumstances, including the nature, condition, and use of the road, the actual or expected traffic, and any obstructions or hazards such as broken-down vehicles or emergency scenes. “Grievous bodily harm” in this context includes any permanent or serious disfigurement.

Driving whilst fatigued, if it impacts a driver’s ability to control a vehicle safely, will likely be considered negligent or reckless for the purposes of reckless or negligent driving offences throughout Australia.

Dangerous Driving Laws

Fatigue related driving could also amount to serious criminal offences if dangerous driving results in death or grievous bodily harm. Dangerous driving offences are some of the most serious driving-related offences which exist in each State and Territory in Australia.

For example, in NSW section 52A(1) of the Crime Act 1900 (NSW) outlines that it is an offence to drive dangerously occasioning death. The maximum penalty for this offence is 10 years imprisonment. An aggravated offence exists under section 52A(2) of the Act if dangerous driving occurred in circumstances of excessive speed, whilst escaping police pursuit or whilst the driver was impaired by drugs or alcohol. This aggravated offence carries a maximum penalty of 14 years imprisonment.

The Act also outlined an offence under section 52A(3) encompassing dangerous driving occasioning grievous bodily harm. This offence carries a maximum penalty of 7 years imprisonment. An aggravated version of the offence is outlined under section 52A(4) and carries a maximum penalty of 11 years imprisonment.

The Act notes that driving will be considered ‘dangerous’ if a person is speeding dangerously, if the driver’s blood alcohol content is above 0.15 and/or if the person is driving in a dangerous manner. Driving in a ‘dangerous manner’ means that the driver does not have full management and control of the vehicle at the time. If a driver is heavily fatigued, it’s arguable that they do not have sufficient control of the vehicle and are therefore driving ‘dangerously’.

Defences To Fatigue-Related Offences

The defences available to a fatigue-related driving offence will depend greatly on the individual circumstances of offending.

A defence lawyer could argue that certain elements of the offence you have been charged with cannot be proved by the prosecution, for example:

You were not the driver at the time of the accident;
You were not fatigued at the time of driving;
You did not drive recklessly, negligently or dangerously; or
You did not cause the death or grievous bodily harm alleged.

A further defence potentially exists where a driver took reasonable steps to prevent fatigue, including getting sufficient rest and not working excessively, prior to the accident. This could also arise where an unknown medical condition, which could not be anticipated, led to excessive fatigue behind the wheel.

Finally, the formal defence of ‘necessity’ or ‘sudden and extraordinary emergency’ may apply where a person drove fatigued in order to avoid some immediate harm from occurring either to themselves or others. For example, if a fatigued person drove in order to get a family member experiencing a heart attack to the hospital.

By Jarryd Bartle.

Published on 23/12/2024