Introduction

A spate of recent fatal trucking accidents in Australia has highlighted the need for risk assessments in freight transport decisions by consignors of dangerous goods. The incidents have led to calls in Australia to ban the long-distance transport of dangerous goods by road. Consignors have a choice as to the mode of transport used when transporting dangerous goods over long distances. Regulators will be increasingly alive to the transport choices consignors make when assessing compliance with their OHS obligations.

Road v Rail Transport - the debate

In the wake of a holiday road toll that has seen more than 70 lives lost across the nation – including three children and two adults in two accidents involving fuel tankers in NSW alone – the Rail Tram and Bus Union (RTBU) has urged State and Territory governments to amend dangerous goods legislation to prohibit the long-distance transport of dangerous goods by road, and require that they be transported by rail.

Dangerous goods are defined by the Australian Dangerous Goods Code (Road and Rail) and include gases, flammable liquids and substances, oxidizing substances and organic peroxides, toxic and infectious substances, corrosive substances and some miscellaneous and environmentally hazardous material.

The NRMA and the Australasian Railway Association (ARA) have expressed strong support for the RTBU's proposal to transfer the transport of dangerous goods to rail.

According to the RTBU, a single train could replace up to 150 rail fuel tankers and the ARA has stated that an inland Brisbane to Melbourne rail line could be built for just $3.5 billion. (The annual total road spend has been calculated as being $10.4 billion.)

The Australian Trucking Association, on the other hand, has criticised the proposal as impractical, claiming that it fails to take account of the obvious need to move fuel from rail lines to petrol stations via roads1.

Political lines have been drawn, with the NSW Opposition party claiming that the "State Government has to end the excuses and start responding to community concerns about increasing truck movements across the state."2 The NSW Premier, on the other hand, has been reported as saying that the proposal is attractive but complicated and required "work at a national level, work with the Federal Government ... [and] with retailers, with motorist groups and with the rail industry"3.

Road v Rail Transport - the facts

The debate around the mode of transport to be used for the long-distance transport of dangerous goods follows a recent NSW Parliamentary Briefing Paper reporting that 89% of freight between Melbourne and Sydney and 76% of freight between Sydney and Brisbane is carried by road.4

The Briefing Paper identified a number of issues which help explain the increase in road transport, including:

  • the significant underinvestment in the rail network, with roads taking 70% of Australia's infrastructure spending (the Federal Government is reported as having spent $58 billion on roads versus $2.2 billion on rail freight in the years 1974-20045)
  • the perception that road transport is more flexible and efficient
  • the priority given to passenger trains on the network and the exclusion of freight from some lines during peak commuter periods and increasingly during the day time.


Others claim that the 2008 abolition of the NSW Government's 'Fuel by Freight Scheme', which provided a 1.2 cent per litre subsidy for fuel companies transporting its goods by rail, has contributed to the increased reliance on road transport. At least one major oil company has attributed its decision to stop transporting fuel from Sydney to regional centres by rail at least in part on the lost subsidy6.

Meanwhile, the Transport Workers Union has released the results of a survey it commissioned in late 2009 which suggests that the economic pressures on the long distance transport industry means that the Chain of Responsibility regulation – of which the dangerous goods legislation forms part – is often not complied with. Specifically, the TWU survey reported that approximately 44% of heavy vehicle drivers feel pressured into driving excessive hours or breaking road rules, while around 33% feel pressured into taking illegal loads7.

Transport of dangerous goods - the rules

The existing dangerous goods legislation requires that any person involved in the transportation of dangerous goods – including importers, consignors and consignees, transport operators and persons conducting a business which involves the transport of dangerous goods – are guilty of an offence if they fail to ensure, so far as is practicable, that the goods are transported in a safe manner.

The dangerous goods legislation also prohibits the transport of certain categories of dangerous goods by road or passenger rail (i.e. those classed as too dangerous to transport such as ammonium nitrate, chloric acid and sulphuric anhydride) and makes it an offence to transport any dangerous goods if the party knows or ought to know that a requirement of the legislation has been or will be breached.

Directors and managers may also face personal liability under dangerous goods legislation (which is currently in effect in all States and Territories8) if their company is found to have breached the laws.

The general OHS laws also have application with respect to the transport of dangerous goods.

For example, the obligation on persons conducting a business to take all reasonable steps to ensure that persons (including employees, contractors and their employees, and members of the public) are not exposed to risks to health and safety as a consequence of the conduct of the business.

For persons conducting a business which involves or requires the transport of dangerous goods, this duty requires the person to take all reasonably practicable steps to ensure that those dangerous goods are transported in such a way that does not expose others to health or safety risks. At a minimum, this will involve reviewing the transport methods used and making an informed assessment as to whether a safer means of transport exists and is reasonably practicable to use.

Further, under the model OHS laws approved by the WRMC on 11 December 2009 and due to be implemented nationally by 1 January 2011, corporate directors will have a positive duty to exercise all due diligence to ensure that their company complies with the new laws.

What this means for organisations transporting dangerous goods

The debate over the method of the long-distance transportation of dangerous goods provides a timely reminder of the duties owed by all persons involved in the transport dangerous goods.

The RTBU's proposal also highlights the fact that there are alternatives available to road transport as the primary means of long-distance freight transport. It seems likely that safety regulators will take account of the choice of transport mode made by persons who transport dangerous goods, or commission them for transport, when assessing whether the person's obligations under the dangerous goods and other OHS laws have been complied with.

The safety duties of consignors require them to consider the safest method of transport with which to transport dangerous goods. While rail transport (or other modes of transport) will not always be a viable option, a conscious and informed assessment should be made.

Initial risk assessments should be undertaken to establish this and the hierarchy of controls should be followed to manage risks. To this end, the following questions should be considered:

Substitution Can the transportation method be substituted to a less hazardous method?
Engineering Controls Can additional engineering controls be put in place such as additional restraints or alternative packaging for dangerous goods?
Administrative Controls Can policies and procedures be amended to reduce exposure to the hazard such as transporting goods at different times or by different routes
Personal Protective Equipment Personal protective equipment must be issued to employees with training in its use and its limitations. This can only be relied on as a last resort where all other controls have been exhausted.

Footnotes



1 News.com.au, "Restore rail freight subsidy for petrol, says NSW Opposition"
2 Opposition Leader Barry O'Farrell quoted in News.com.au op. cit.
3 NSW Premier Kristina Keneally quoted in News.com.au op. cit.
4 Holly Park, NSW Parliamentary Library Research Service, "Rail Freight Transport in NSW", Briefing Paper No. 8/09, p.14
5 Barrett S, 'Freight and Metropolitan Transport', Proceedings from ADC Infrastructure 21: From Incrementalism to Transformational Change, October 2008
6 Tracy Bowden (Reporter), "Calls to curb holiday road toll", 7.30 Report, Australian Broadcasting Corporation, broadcast 6 January 2010
7 Peter Mares (Journalist) interviews Tony Sheldon (National Secretary of the TWU), The National Interest, ABC Radio National, published 18 December 2009
8 The Tasmanian Dangerous Goods (Safe Transport) Act 1998 is to be replaced with the Dangerous Goods (Road and Rail Transport) Bill 2009 (currently before parliament) which more closely reflects the model dangerous goods legislation in effect in all other States and Territories.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.