Engineering Consultants Engineering Consultants

Witness Box Whiteboards?

Engineers tend to think problems through as visual concepts, particularly as a concept sketch or design. This is reflected by a lawyer trained CEO of a water authority:

Now that you mention it, I have noticed that if I get between the whiteboard and my engineers they do tend to go mute.

That is, for an engineer a picture really is worth a 1,000 words. Well, at least a picture with some numbers on it.The courts, on the other hand, use words exclusively. It can be something of an art form to read a judgment to establish the key decision point. And when an engineer is in a witness box trying to explain to two barristers and a judge (who have not done a science based subject for many years) a complex technological matter, it is small wonder that uncertainty arises in the collective mind of the court.It would be most desirable to ensure the efficiency of the rule of law to include a whiteboard in the witness box when an engineer is on the stand.

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Due Diligence Due Diligence

Review of Victoria's Electricity and Gas Network Safety Framework

On 19 January 2017, the Minister for Energy, Environment and Climate Change announced an independent review of Victoria’s Electricity Network Safety Framework, to be chaired by Dr Paul Grimes. On 5 May 2017, the Minister announced an expansion to the review's terms of reference to include Victoria’s gas network safety framework.It has been more than a decade since the current safety framework has been in place and it is timely to review the existing arrangements to ensure they adequately reflect the needs of the community in an increasingly complex environment.The review will include extensive consultation with industry and the community to inform the development of a final report and recommendations.Consistent with the expanded terms of reference, the Review of Victoria’s Electricity and Gas Network Safety Framework examines the safety framework applicable to the electricity and gas networks in Victoria and assesses its effectiveness in achieving desired safety outcomes. It will review the design and adequacy of the safety regulatory obligations, incentives and other arrangements governing the safety of Victoria’s electricity and gas networks.The existing Secretariat established within the Department of Environment, Land, Water and Planning to support the independent reviewer, Dr Paul Grimes, has been additionally resourced.Submissions for the Issues Paper on the review of Victoria’s electricity network safety framework closed on Friday 28 April. Along with the following organisations, R2A welcomed the opportunity to respond to the independent review.

Our response focuses on the following particular aspects of the review:

  • The objectives of the safety framework in Victoria and an assessment of its effectiveness in achieving safety outcomes.
  • The design and adequacy of the safety regulatory obligations (including safety cases and the Electricity Safety Management Scheme), incentives and other arrangements governing energy network businesses and any opportunities for improvement.

R2A’s overall perception is that electrical networks in Australia and New Zealand operate in an evolving and interesting regulatory space with overlapping financial, safety and security of supply issues. There is also a plethora of sometimes contradictory standards. Wending a path that simultaneously satisfies all of the competing issues is complex and fraught with methodological superstition. This undoubtedly creates substantial unnecessary expense and waste.From the viewpoint of an effective safety framework, the key issues we believe are causing the greatest angst at the moment are as follows:

  1. Competition v Cooperation PolicyThe mantra of competition policy is being considered in isolation from the rest of the competing requirements for the safe (and reliable) delivery of electrical energy. This includes both security of supply and safety generally, and especially in Victoria major bushfires started by the electricity network. For example, high reliability requires redundancy whereas commercial efficiency is typically achieved by running without headroom. The current manifestation of economic competition policy does not deal effectively with disaster scenarios (where cooperation is essential) especially for low likelihood, high consequence events, such as black or ash bushfire days which occur about once every 25 years in Victoria.
  2. Risk Management Standard v Occupational Health and Safety LegislationThe obligations of Victoria’s Occupational Health and Safety (OHS) legislation conflict with the Risk Management Standard (ISO31000) which most corporates and governments mandate. This is creating very serious confusion, particularly with the understanding of economic regulators.The risk management standard tries to manage ‘risk’ to ‘acceptable’ levels, whereas the 2004 Victorian OHS Act (and now model WHS legislation) ensures that everyone is entitled to the same minimum level of protection (but not necessarily the same level of risk).
  3. Network Standards with Internal ContradictionsStandards with internal contradictions like AS 5577:2013 – Electrical network safety management systems and the EG(0) Power System Earthing Guide create enormous tensions. Specifically, they advocate using target risk criteria such as ALARP, below which risks are deemed ‘tolerable’ and do not require further action, a position in conflict with the health and safety legislation passed by all Australian parliaments and decisions of the High Court of Australia.

These key points are expanded in the body of the submission together with a possible way forward. See the full response here.

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Due Diligence Due Diligence

The Law and Engineering

The notion of engineering due diligence has expanded into Australian society, gradually displacing pure risk management as the ultimate aim of engineering decision-making. Numerous national and state-based laws have moved from mandating risk assessments to imposing specific duties to exercise due diligence, in health and safety, environmental protection and other areas.However, some standards and other non-mandated guidelines, regardless of legislated and common law precaution-based (SFAIRP) requirements and judgments (the laws of man), still promulgate approaches requiring the ‘scientific’ (ALARP) measurement and comparison of risk. This is presumably done with the view that risk can be examined and dissected as part of the laws of nature. Engineering and legal practitioners find themselves caught between these competing paradigms.An egalitarian society like Australia desires to ensure fairness amongst its citizens. One outcome of this view is that no one should be inequitably exposed to risk, and certainly not for the benefit of others. Being a free society, an individual can choose to be ‘riskier’, but this should be a matter of personal choice, not economic necessity.Risk equity can be demonstrated in two key ways. One is a scientific exercise that sets and complies with a maximum level of risk to which any person may be exposed. This requires detailed modelling of potential event sequences and comparison to a predetermined maximum acceptable level of risk.The second provides a minimum level of precaution (i.e. protection from risk) for all persons exposed to the undesired outcomes. This minimum level is generally demonstrated in recognised good practice, i.e. precautions considered reasonable by virtue of their implementation in similar situations.Pre-event, both methods conceptually provide for equal risk outcomes. However, post-event, only the minimum precaution equity approach can be tested objectively – either the precaution was in place or it was not. The maximum risk level equity approach is problematic to justify on a number of levels.The courts, reflecting Australia’s societal desire for fairness, established the precautionary approach in the common law duty of care. Post-event, the courts test whether all reasonable steps were taken to avoid damage to people. This long-established approach considers both precautionary risk equity and financial efficiency in determining what precautions, for any particular event, were reasonable.Unlike the courts, engineers and lawyers don’t have the benefit of hindsight in determining what is reasonable. Decisions must be made, with business, safety, societal and environmental implications, to address any number of potential events. These often include complex issues with valid but irresolvable competing stakeholder points of view.Due diligence engineering expands the courts’ ‘equal minimum level of precaution’ principle to a pre-event precaution-based decision-making philosophy incorporating the requirements of both science (the laws of nature) and society (the laws of man). This philosophy allows engineers and lawyers to together cut the Gordian knot that has developed when decision-making at the complex interface of physical and social infrastructure.

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