AT directors at risk?

Patrick Reynolds is deputy chair of the City Centre Advisory Panel

With Auckland Transport racing towards risky speed increases at the behest of the previous Minister of Transport's Speed Rule, all eyes are on the consequences. These include an increase in risk for everyone on Auckland's transport network, and a legal risk for those implementing the changes.

Let's start by noting that it is extremely unusual for a Minister to actively change a law, regulation, or as in this case, a rule*, to explicitly and knowingly reduce the safety of the public. But here we are.

*= Note: a rule is not a law, but a subset of a law, a type of secondary legislation, able to be changed without an Act of Parliament.

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Risk and governance

The good news is that we have multiple levels of public sector responsibility, and for good reason. When it comes to the management of roads and streets across Aotearoa, there's a vital decision-making level of people tasked with expert governance. This level consists of the boards of directors of the two dedicated transport agencies, NZTA and Auckland Transport, plus – outside of Auckland – the governing bodies of local councils. These are the "road-controlling authorities".

As as an ex-director of both AT and NZTA, I have been extremely troubled by the incautious haste (as I see it) with which AT has rushed to apply the Speed Rule, without any reference to their wider responsibility to prevent public harm to the best of their ability.

By doing this, they they appear to be assuming they can abrogate any responsibility for the consequences of these changes.

My concern is specifically around the risk AT's directors maybe placing themselves in by assuming they are relieved of directorial responsibility and consequence by claiming they are "just following orders" (yes, I know, a redolent phrase, but here we are).

I am not a lawyer, but as a director this situation seems to get to the very heart of governance, and urgently calls for wisdom and caution of the highest degree.

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Who's liable for what?

Directors are bound by the threat of liability for good reason: it concentrates the mind.

The whole purpose of governance is to have a place where difficult decisions can be made, particularly where there are conflicting pressures. Directors seek and take specialist advice, but the responsibility for weighing that technical advice in the full context of the real world rests on their shoulders. That's what boards are for.

And for people in governance positions, there is no more pressing real life issue than the possible harm and even death of members of the public. The seriousness of this responsibility is not lessened because there are already deaths and serious injuries occurring in the land transport system. It is terrible that we are somewhat inured to this, but it is also irrelevant in a case where directors are knowingly adding to that harm.

In any case, this situation – the effects of a widespread and indiscriminate application of this Speed Rule, especially when other approaches have been demonstrated to be possible by other road controlling authorities – is different from merely accepting the current situation.

Here, we have a board – Auckland Transport's board, to be specific – that is choosing to actively make changes that they have been advised will put more people in more harm. That case is convincingly made by the fact that harms were reduced as a direct outcome of the earlier lowered speeds.

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Is there another way forward?

I have voiced these concerns directly to key parties. This is not a simple situation, and here I've only scraped the surface of what's at stake.

Surely there is some way the board members can reconcile the demands of the new speed rule with their wider responsibilities to reduce public harm?

Let's be clear: it is extremely unusual for a road-controlling authority to take an action that is to knowingly increase likely deaths and serious injury without some other countervailing action to mitigate or remove that likelihood.

Yesterday, I received a letter that does a much fuller job of unpacking AT's response to the previous Minister of Transport's speed rule change, the legal risks involved, and potential solutions.

In it, Tim Adriaansen, Senior Transport Advisor, outlines the contradictory pressures on directors caused by the bizarrely prescriptive speed rule change, and proposes a way forward. Specifically, he recommends that they delay each speed increase unless and until the streets in question are engineered, where possible, to safely accommodate the higher speed.

Of course that will take time and budget (from where?), but it would allow AT to avoid putting the public and themselves at immediate risk without directly failing to comply with the unrealistic time-frame in the rule by simply - and prudently - delaying its implementation in order to meet directors ongoing responsibilities to public safety.

The letter was sent to AT Board chair and CEO, copied Councillors, then subsequently shared with advocates and the media. Below is the executive summary, and here is a link to whole letter. It is very good, and it should immediately and helpfully concentrate the minds of those in current governance.

Additionally here is a useful summary of the whole situation by Chun Sing Goh on LinkedIn.

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Executive Summary [of full Letter to AT Board]

Auckland Transport's position appears to be that the organisation is required to follow changes to the Setting of Speeds rule. However, there is a risk that this conflicts with obligations under the Local Government (Auckland Council) Act 2009 (LGA), Land Transport Management Act 2003 (LTMA), and Health and Safety at Work Act 2015 (HSWA).

To comply with all of its legal obligations, Auckland Transport is required to minimise exposure to speed limit changes and to mitigate the impacts of any changes by implementing suitable engineering controls (such as protected bicycle lanes and raised or controlled pedestrian crossings) on streets where the speed limit is to be set in a way which would otherwise be unsafe.

This is because, while Auckland Transport may have limited control over implementation of the setting of speeds rule, Auckland Transport does control and is responsible for the management, road layout and engineering of local roads in the Auckland region.

Should speed limits be raised in locations without suitable engineering designed to match those limits, then the action taken by Auckland Transport to increase speed limits would demonstrably reduce road user safety, and would not comply with the LGA or LTMA purpose to ‘contribute to a safe land transport system’. The only way to both increase speed limits and contribute to a safe transport system is to implement risk mitigation measures through physical engineering and street layout changes in locations where speeds are increasing, or to eliminate traffic altogether.

Under the LGA, Directors must not breach the Act or cause a breach, or agree to any breach by Auckland Transport, of the Act. Directors appointed to Auckland Transport must, when acting as a director, exercise the care, diligence, and skill that a reasonable person would exercise in the same circumstances, taking into account the nature of the action and the position of the director and the nature of the responsibilities undertaken by him or her.

Raising speed limits, without taking mitigating steps to reduce the risks associated with increased vehicle speeds, does not and cannot reasonably be considered to contribute to a safe land transport system.

Therefore, if Auckland Transport concludes that it is required to raise speed limits on Auckland streets, then Auckland Transport is also (and simultaneously) required to deliver the necessary infrastructure to support safe use of those streets at higher speed limits, or to implement speed mitigating infrastructure.

Minimum safe infrastructure standards are detailed in Auckland Transport’s own Transport Design Manual and accompanying engineering codes, supported by two Safety Business reviews which underpin the organisation’s Vision Zero road safety policy. Some of these are detailed below, but in summary and as a starting point, the following engineering elements are explicitly required to meet Auckland Transport’s own “minimum standards of compliance”:

● Protected or buffered cycleways on all roads with vehicle operating speeds of 40km/h or greater

● Raised table or signal-controlled pedestrian crossings in busy pedestrian areas (such as commercial centres or near public transport stops) where vehicle operating speeds exceed 30km/h

It should be reiterated that these are minimum standards of safety developed by Auckland Transport’s Design and Standards team and endorsed by the Auckland Transport Board of Directors.

Raising speed limits on roads which fail to meet minimum safe engineering standards does not and cannot be considered to meet a Director’s requirement to “exercise the care, diligence, and skill that a reasonable person would exercise”.

A reasonable person would ask “does this road meet the minimum design standards necessary to safely support the proposed vehicle operating speeds?” If directors cannot confidently answer this question, then speed limit increases should not take place. To answer this question adequately, a road safety audit must be completed on all roads where speed limits are to be changed, evaluating motor vehicle traffic speeds and volumes, and considering pedestrian movements in the area.

Finding sufficient funding and gaining public approval for implementation of the required mitigating infrastructure changes will be a challenge for Auckland Transport, but should be considered a consequence of changes to the Setting of Speeds Rule, and thus beyond the organisation's control (i.e. the same approach as Auckland Transport appears to have taken to implementation of the Setting of Speeds Rule). No speed changes should take place unless Auckland Transport is ready and able to deliver accompanying safe infrastructure, as to do so would not only put the Auckland public at very real risk of harm, but also places your organisation – and you personally – at considerable consequential legal risk.

If Auckland Transport is unable to secure sufficient funding to implement speed limit increases safely, then Auckland Transport should not proceed with speed limit increases until such time as funding becomes available.

Under New Zealand law, an Act (such as the LGA) typically takes precedence over a rule (such as the Setting of Speeds Rule) where conflict occurs between the two.

Therefore, Auckland Transport is only required to follow the Setting of Speeds Rule if it is also able to contribute towards a safe transport system in the public interest, and if Directors are confident that they are exercising the care, diligence, and skill that a reasonable person would exercise.

Acting as Chief Executive and Directors, you carry legal responsibilities for the outcomes of decisions made by you and your organisation. Should speed limits be raised in a way that knowingly increases risk, without also and at the same time implementing suitable mitigating actions to protect the public from that risk (which appears to be the case with Auckland Transport’s current approach), you may be personally liable under the Crimes Act (1961) or Health and Safety at Work Act (2015). For example, reckless conduct in respect of duty which exposes someone to a risk of death or serious injury, can result in penalties for individuals of a fine of up to $600,000, or up to 5 years in prison, or both.

According to information published as part of Auckland Transport’s Safe Speeds programme, an increase in collision impact speed from 30km/h to 50km/h increases the risk of death to road users outside of a vehicle by approximately 700%.

If Auckland Transport proceeds with speed limit increases without suitable risk mitigation, you as directors will knowingly, recklessly, and in breach of your duties, expose people to a risk of death or serious injury.

This letter should not be considered legal advice, which must be sought independently.

However, it should be noted that the wider Auckland community is watching very closely to how Auckland Transport responds to this situation. Should loss of life or serious injury occur as a result of Auckland Transport’s decision making – which is statistically likely considering the level of risk involved with motor vehicles and speed limit increases – then it can be expected that full accountability will be sought from those decision makers who allowed for such tragedy to occur.

To protect the wider public, the interests of Auckland Transport, and yourselves from professional misconduct and legal liability, I recommend an immediate pause on implementation of speed limit increases until these issues can be fully resolved. Further recommended actions are detailed at the end of this letter.

The full letter can be read here.