Mak­ing safety law work

The spike in ca­su­al­ties over sum­mer cause ques­tion­ing of the rules

Australian Transport News - - Contents - Ge­off Farnsworth

The spike in heavy ve­hi­cle-re­lated road ca­su­al­ties over sum­mer was of great con­cern to all ob­servers. It is hard to know what the av­er­age un­in­formed ob­server thinks about the road trans­port in­dus­try when con­fronted with the car­nage that filled the me­dia.

How­ever, it is even harder to know what went through the minds of in­formed ob­servers. Chain of re­spon­si­bil­ity (COR) laws have been in place for a decade. But are they work­ing? Are we do­ing the hard and ev­i­denced-based think­ing that is nec­es­sary to con­front the road toll?

We know that the causes of heavy ve­hi­cle ac­ci­dents are com­plex. We also know that we have laws in place to ad­dress most, if not all, of the fac­tors.

Which begs the ques­tion: do we need bet­ter laws and/or are we mak­ing proper use of the laws that we have?

SAFETY LAWS

It would be nice if we didn’t need road safety laws and in­di­vid­u­als (in­clud­ing driv­ers, op­er­a­tors and con­signees/ con­signors) could be re­lied upon to “do the right thing” and op­er­ate safely (af­ter all, no one de­lib­er­ately sets out to cause heavy ve­hi­cle ac­ci­dents).

A prob­lem arises when you im­pose reg­u­la­tions. Peo­ple start to ask “is this le­gal?” rather than “is this safe?” Sadly, they are not al­ways the same thing and what is ‘ le­gal’ can of­ten be the min­i­mum stan­dard, not best in­dus­try prac­tice.

There is, and per­haps al­ways will be, an in­cen­tive in com­merce to ‘cut cor­ners’ by cut­ting ex­penses (in­clud­ing ve­hi­cle main­te­nance) and costs (in­clud­ing safety sys­tems and train­ing) in pur­suit of prof­its. Out­sourc­ing op­er­a­tions to the low­est-cost op­er­a­tor is ef­fec­tively the same thing.

Ex­pe­ri­ence has taught us that we can’t rely on in­di­vid­u­als to get the bal­ance right.

An­other con­sid­er­a­tion in com­plex sup­ply chains is that, if ev­ery­one cuts cor­ners ’ just a bit’, the cu­mu­la­tive ef­fect across the sup­ply chain can be cat­a­strophic: think fa­tigued driv­ers op­er­at­ing poorly main­tained ve­hi­cles on bad roads in pur­suit of un­re­al­is­tic sched­ules – the per­fect storm. And, as the pop­u­la­tion and the size and num­ber of ve­hi­cles on our roads grows, the storm will only con­tinue to get worse.

REG­U­LA­TORY RE­SPONSE

By rea­son of our his­tory, de­mo­graph­ics and ge­og­ra­phy, Aus­tralia is prob­a­bly the First World coun­try most re­liant on heavy ve­hi­cle trans­port. This means that we are op­er­at­ing in largely un­charted in­ter­na­tional ter­ri­tory. It also means that we are able to look at in­no­va­tive reg­u­la­tory so­lu­tions.

One such in­no­va­tive so­lu­tion is COR. On the plus side, it is log­i­cal that all par­ties in the sup­ply chain have a role in pro­mot­ing heavy ve­hi­cle safety. In some ways it’s the op­po­site of the ‘per­fect storm’ in that, if ev­ery­one does a bit to­wards pro­mot­ing safety, the cu­mu­la­tive ef­fects should be greater than the sum of the parts. On the down­side, en­forc­ing com­pli­ance re­mains an is­sue. This was per­haps due to the pre­vi­ous COR model of (semi) strict li­a­bil­ity sub­ject to the “all rea­son­able steps” de­fence but with­out a great deal of guid­ance as to the pos­i­tive steps that should be taken to avoid li­a­bil­ity. The rel­a­tively low penal­ties and in­con­sis­tent en­force­ment across the states meant that the orig­i­nal for­mu­la­tion of COR left room for im­prove­ment.

New COR in­tro­duces a num­ber of sig­nif­i­cant changes, of both the car­rot and stick va­ri­ety, and im­poses a num­ber of proac­tive safety obli­ga­tions on COR par­ties and on the ex­ec­u­tive of­fi­cers of those par­ties. It also sig­nif­i­cantly in­creases penal­ties.

It is also worth men­tion­ing the COR regimes in Western Aus­tralia and the North­ern Ter­ri­tory are, in ef­fect, ‘COR-lite’ (only mass and load se­cur­ing with­out in­clud­ing speed and fa­tigue).

While those in the eastern states con­tinue to press for a uni­form na­tional law, it would be help­ful if they could also demon­strate that the more heav­ily reg­u­lated eastern roads are safer and more pro­duc­tive than those in WA and the NT.

The third model of reg­u­la­tion is a tri­bunal, such as the Road Safety Re­mu­ner­a­tion Tri­bunal (RSRT), that has the power to set freight rates and con­di­tions. The first it­er­a­tion of the RSRT was abol­ished in favour of the Na­tional Heavy Ve­hi­cle Reg­u­la­tor.

It would be un­wise to as­sume that some form of RSRT might not be on the agenda if there is a change of gov­ern­ment, par­tic­u­larly if heavy ve­hi­cle ca­su­al­ties con­tinue un­abated.

IT’S ABOUT EN­FORCE­MENT

While laws are im­por­tant, so is en­force­ment. There is a spec­trum of en­force­ment op­tions avail­able to reg­u­la­tors. At one end of the spec­trum, there is purely re­ac­tionary (or acute) en­force­ment, trig­gered by an in­ci­dent or ca­su­alty. At the other is an on­go­ing se­ries of ran­dom au­dits de­signed to test com­pli­ance – even where there has been no spe­cific in­ci­dent.

Given the thou­sands of com­pa­nies and busi­nesses and in­di­vid­u­als that are in the COR, this would be a her­culean task and re­quire un­sus­tain­ably large bud­gets.

The ideal en­force­ment regime will be some­where in the mid­dle. It will ul­ti­mately be a mat­ter of the re­sources made avail­able to reg­u­la­tor.

Our laws are state of the art and it would be short- chang­ing the com­mu­nity if gov­ern­ments weren’t will­ing to pro­vide the reg­u­la­tors with the re­sources they need.

Ge­off Farnsworth is a part­ner at Hold­ing Redlich T: 02 8083 0416 M: 0419 721 221 E: ge­off.farnsworth@hold­in­gredlich.com

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