Background
On 30 September 2005 the Road Transport (General) Act 2005 (NSW) (“the Act”) commenced.
The Act introduced “chain of responsibility” requirements in the transport industry. Its effect was to broaden the responsibility for safety compliance across the entire transport industry. Where once drivers and operators were pursued roadside, the Act extended the Roads and Traffic Authority’s investigative powers to investigate along the entire supply chain, including consignors, packers, loaders and consignees – as well as drivers and operators.
Categories of Breach
The Act introduced categories for breaches of mass requirements being:
(a) minor risk – being less than the permissible mass plus an additional 5% – i.e.: 105%);
(b) substantial risk – between 105% and less than 120% of the maximum permissible mass, rounded up to the nearest 0.1 tonne; and
(c) severe risk – being 120% or more of the maximum permissible mass.
Available Penalties
In respect of overloading offences the Act prescribes significant maximum penalties which are compounded if the offender is a body corporate or the offence is a ‘subsequent’ offence.
The seriousness of mass breaches is reflected in the maximum penalties available for overloading prescribed at the Table to Division 4 of the Act:
| Offence | Maximum Court-imposed penalty on individual for first offence | Maximum court-imposed penalty on individual for subsequent offence | Maximum court-imposed penalty on body corporate for first offence | Maximum court-imposed penalty on body corporate for subsequent offence |
| Minor risk breach of mass requirement | $1,100.00 | $2,200.00 | $5,500.00 | $11,000.00 |
| Substantial risk breach of mass requirement | $2,200.00 | $4,400.00 | $11,000.00 | $22,000.00 |
| Severe risk breach of mass requirement | $5,500.00Plus $550.00 for every addition 1% over 120% overload | $11,000.00Plus $1,100.00 for every additional 1% over 120% overload | $27,500.00Plus $2,750.00 for every addition 1% over 120% overload | $55,000.00Plus $5,500.00 for every additional 1% over 120% overload |
Demerit Points
Despite the severity of those maximum Court-imposed penalties, none of the overloading offences currently attracts any demerit points.
“Reasonable Steps” Defence
The Act provides the benefit of a “reasonable steps defence” to a prosecution for a breach of mass, dimension and load restraint requirements if the defendant establishes that:
“(a) the defendant did not know, and could not reasonably be expected to have known, of the contravention concerned, and
(b) either:
(i) the defendant had taken all reasonable steps to prevent the contravention, or
(ii) there were no steps that the defendant could reasonably be expected to have taken to prevent the contravention.” (section 88).
The availability of the reasonable steps defence places the onus squarely on all road freight users to ensure that they have undertaken all reasonable steps to prevent a breach occurring.
Regrettably, the Act does not define further what constitutes “all reasonable steps” and no exhaustive or prescriptive list has been provided to date by either the legislators or the Courts.
Notwithstanding, such reasonable steps may include:
(a) developing an industry code of practice;
(b) use of accreditation schemes;
(c) reviewing your business practices;
(d) changing your commercial arrangements; or
(e) adopting a risk management approach.
In this respect, the National Transport Commission has published a users guide (“Protecting Yourself Under the Chain of Responsibility”) to assist road freight users: (http://www.ntc.gov.au/filemedia/bulletins/PROTYourselfunderCORJuly2006.pdf).
The RTA has also published a table of the effects of the chain of responsibility requirements on each sector of the industry: (http://www.rta.nsw.gov.au/heavyvehicles/downloads/ce_roles_table.pdf).
Again, that guide and table contain suggestions only and are not exhaustive.
Sentencing
In sentencing for breaches of mass, dimension or load restraint requirements and determining a sanction, the Court is required to take into consideration certain matters required by section 60 of the Act.
For “severe risk breaches” those matters that the Court is to take into consideration are:
(1) an appreciable risk of harm to public safety or the environment;
(2) a serious risk of accelerated road wear
(3) a serious risk of harm to road infrastructure;
(4) a serious risk of increased traffic congestion;
(5) a serious risk of diminished public amenity; and
(6) a serious risk of unfair commercial advantage.
Those matters that the Court is to take into consideration will be compounded by the number of journeys undertaken, the distance the vehicles travelled and the benefit or financial gain to the operator to transport the load.
In addition, when imposing penalty the Court would also have regard to the actual percentage overload of the vehicles and the range within which that offence fell (in the case of a “severe” offence for example, whether the offence is at the ‘lower end’ of that category (20%) or the ‘high end’ of that category).
In particular, the Court will have regard to whether or not there was any system in place to ensure that vehicles complied with mass requirements under the chain of responsibility legislation prior to the vehicle’s departure.
Investigative Powers/Direction to Proceed
Under the chain of responsibility legislation, authorised officers are given significant investigative powers including powers of inspection and search and more particularly, the power to:
“Direct any responsible person to produce:
(a) any records required to be kept by or under any applicable road law; or
(b) any records comprising transport documentation or journey documentation in the person’s possession or under the person’s control; or
(c) any records, or any devices or other things that contain records, in the person’s possession or under the persons control relating to or indicating:
(i) the use, performance or condition of a vehicle or combination; or
(ii) ownership, insurance or registration of a vehicle or combination; or
(iii) any load or equipment carried or intended to be carrier vehicle or combination (including insurance of any such load or equipment); or
(d) any records, or any devices or other things that contain or may contain records, in the person’s possession or under the person’s control demonstrating that a vehicle’s garage address recorded in the relevant register is the vehicle’s actual garage address.”(section 150 of the Act)
A person subject to a direction who fails to produce without reasonable excuse is liable to a maximum penalty of $4,400.00 (in the case of an individual) or $22,000.00 (in the case of a corporation). The onus of proving “reasonable excuse” in such a circumstance lies on the defendant.
Significantly, section 167 of the Act provides self-incrimination is not a “reasonable excuse” for failure to comply with a direction on the ground that complying with the requirement might incriminate the person or make the person liable to a penalty however, there are certain circumstances in which a statement, information or answer is not admissible in evidence against a person in criminal proceedings if an objection is made (see section 167 of the Act).
The practical effect of those extensive investigative powers and in particular, the ability to provide a direction to produce records, devices or other things and the powers of search (section 148) enable the RTA’s authorised officers to identify any number of breaches.
Multiple Proceedings – ‘one offence’
Given the very concept of the chain of responsibility legislation, proceedings may be taken against multiple offenders arising from the ‘one offence’ (section 176) and extending to consigners, packers, loaders, operators and/or drivers whether or not proceedings have been brought against one or all of those other people involved in the offence.
Time for Commencing Proceedings
Significantly, the time limit for commencing any proceedings for certain mass, dimension and load offences under the Act by way of a Court Attendance Notice is “two years after the commission of the alleged offence, or a further period of one year commencing on the day on which the Authority or an authorised officer at first obtained evidence of the commission of the alleged offence…” (section 182) and not the period of 6 months as prescribed by section 179 of the Criminal Procedure Act 1986 which requires the proceedings for a summary offence “must be commenced not later than 6 months from when the offence was alleged to have been committed.” (See also: Roads and Traffic Authority of NSW -v- Sparkes [2007] New South Wales SC667.)
Additional Penalties/Sanctions
Road freight users should also be aware that in addition to the above substantial maximum penalties, additional sanctions for heavy vehicle offences exist and include:
section 107 – commercial benefits penalty order– where the Court may order a person to pay as a fine an amount not exceeding 3 times the amount estimated by the Court to be the gross commercial benefit received or that would have been received as a result of the offence;
section 108 – power to effect vehicle registration – in severe risk breaches of mass, dimension or load requirements the Court may order that the registration of the vehicle involved in the offence and of which the person is the registered operator be cancelled or suspended for a specified period of time. Such order can be immediate;
section 109 – supervisory intervention orders – in the case of a systematic or persistent offender, the Court may order the person involved to do certain things (for no more than 1 year) that the Court considers will improve the person’s compliance with road laws; and
section 111 – prohibition orders – following conviction and upon application of the prosecution, if the Court considers a person to be a systematic or persistent offender against Australian applicable road laws, it may make an order restricting the person from having a specified roll/responsibilities associated with road transport. It is an offence to contravene such an order.
Given the severity of the various penalties and sanctions available, road freight users must ensure that they are discharging their responsibilities under the chain of responsibility legislation to take all reasonable steps to prevent their conduct from causing or contributing to a breach.
If you require any further information please contact our Commercial Lawyer Nicholas Pidcock at the Newcastle Office of Burke Elphick & Mead Lawyers.
Burke Elphick & Mead™ Lawyers are located in Newcastle and are committed to servicing your Family Law, Criminal Law, Commercial Law, Motor Vehicle Law, Compensation and Workplace Law requirements.
The above is a commentary only and is not to be construed or relied upon as legal advice.
