The transport authority in NSW raises a tragic case which it says highlights the need for change to national chain of responsibility law
Drive a truck while fatigued and kill someone, and you will go to jail for a decade.
Push your staff to drive while fatigued, and they kill someone, and you’ll be fined less than $90,000.
If you’re an off-road party in the chain of responsibility and you break the law, you’re likely to get off altogether.
Such differing treatment for drivers, operators and trucking customers has come to light as Australia’s transport ministers consider changes to the chain of responsibility (COR).
COR was one of the items on the agenda at their meeting in Sydney on May 22.
One of the hardest hitting submissions to the National Transport Commission review of COR law for the ministers comes from Transport for NSW, which takes in that state’s heavy vehicle regulator, Roads and Maritime Services (RMS).
The submission includes a case study involving a small Sydney company called South Penrith Sand and Soil, which ran a small fleet of truck and dogs (and no longer exists).
In 2010, one of its drivers collided with four cyclists riding in the breakdown lane of the M4 motorway near Penrith in Sydney. One of the cyclists was killed.
The driver was sentenced to 10 years in jail with a non-parole period of seven years, after pleading guilty to manslaughter and dangerous driving causing grievous bodily harm. The court found his driving ability had been impaired by a combination of cannabis toxicity and fatigue.
“The investigation into the [M4] incident found that the directors and scheduler of the company had actively managed work schedules in a way that resulted in drivers driving while affected by fatigue,” the Transport for NSW submission says.
“The investigation also found that the company was paying drivers for working in excess of the standard working hours and concealing this by paying them out of petty cash.
“The investigation by RMS found that the directors and the scheduler of the company would routinely contact the driver by phone to harangue him if the vehicle was stopped.
“The driver … had worked several consecutive 21 hour days in the two weeks leading up to the crash and had not had an adequate recovery break.”
However instead of being able to charge the company with a single serious offence, the heavy vehicle law currently is far more complex than that.
“RMS was obliged to charge a series of individual offences in order to do adequately deal with the seriousness of the conduct” says the submission.
“Given the technical nature of the prescriptive requirements, and the requirement for the Courts to take an approach that resolves any doubt in favour of the accused, the 72 offences alleged against the company, scheduler and directors have been reduced by half.
“Even so the court did not view such a large number of charges favourably. The company, two directors and it scheduler were fined a total of $88,750.”
In its submission, Transport for NSW calls for a complete re-write of the current COR law.
Among a long list of points TFNSW says:
- “The current legislative approach significantly restricts the circumstances in which a party in the chain, other than a driver or an operator, can be prosecuted”
- A court is unlikely to impose a penalty near the maximum where there is no “incident”
- “The potential cost impact (of breaking the law) is relatively low-risk compared with the commercial gains of overlooking HVNL (Heavy Vehicle National Law) obligations”
- Shortcomings in investigative powers significantly impact the ability to enforce the COR laws
- The paper criticises distribution centres that prioritise local drivers being paid hourly, at the expense of long-haul drivers paid on kilometre rate.
For more on chain of responsibility, read ATN‘s June issue by subscribing here.