Overloading legislation a journey into the absurd
IHAVE for some time in this column been railing against the high quantity and low quality of regulations that are pouring out of government buildings with no parliamentary oversight. If citizens can be punished for breaking a law, they are entitled to know with reasonable certainty what it is they can or cannot do. Otherwise the law is void for vagueness.
We have now moved into a new league. We have just witnessed the passing of some regulations which are void for absurdity. In June 2012 new road traffic regulations were published, including regulations aimed at preventing overloaded vehicles from travelling on public roads. The aim is laudable. If you overload a goods vehicle or don’t distribute the load properly over the axles you can get major damage to our roads. Seeing nobody wants to pay for the roads, we had better preserve what we have got.
The Ministry of Transport came up with the idea to put the onus on the consignor and consignee of goods. It will be their responsibility from next year (if anyone takes the regulations seriously) to see that overloading does not take place. Consignor and consignee also have to see that the transportation of goods is “fully insured for damages that can occur as a result of an incident”.
The consignor may not offer goods for transport if the goods are not properly loaded. The regulation does not explain how the consignor can know how the goods will be loaded at the time of offering them for transport except perhaps not giving an operator with a one-ton vehicle a three-ton load. More absurd is the fact that the consignee may not accept the goods if the vehicle is not properly loaded. If the goods arrive on an overloaded vehicle, the consignee must refuse to accept them, turn the vehicle away and let it go back onto the public roads, overloaded, to cause yet more damage.
Similar problems apply to the insurance. Firstly, what does it mean to be “fully insured for damage that can occur as a result of an incident”? A major incident happening when goods are transported can lead to all sorts of claims including substantial claims from third parties whose property or vehicles are damaged or massive claims for environmental damage caused by an overturning vehicle.
Full insurance against all possible losses arising from all possible incidents is too expensive for consignors or operators to bear. Insurers also expect their insured to carry part of the loss so that they have skin in the game and don’t take unnecessary chances.
If the vehicle arrives and it has not been possible to get full insurance, the consignor must not accept the goods. The vehicle must be sent back out onto the roads to carry on a journey to who knows where and still without proper insurance.
It is difficult to understand how absurdities like this can appear in the government gazette.
It has been a principle of our law since Roman times that there can be “no punishment without a law”. That means a rational law that is capable of being obeyed. The laws described above cannot be enforced. But they carry the threat of criminal proceedings and criminal sanctions.
Consignors, carriers and consignees are going to have difficulty deciding what to do with this law. The clear answer is to ignore the absurd laws but nobody wants to be the first to spend money on defending themselves in a criminal court. Let’s hope that some national body representing carriers take steps to have the laws set aside, which should not be too difficult even if authorities try to enforce them. Perhaps the department will do the right thing and withdraw the laws and start again.
Transport ministry needs to craft rational laws that can be obeyed
Patrick Bracher (@PBracher1) is a director at Norton Rose Fulbright.