Making safety law work
The spike in casualties over summer cause questioning of the rules
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?
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.
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: firstname.lastname@example.org