Precaution v Precaution
One of the more interesting philosophical issues to emerge in the early 21st century is the relationship, as determined by our courts, between the precautionary principle as implemented in environmental legislation, and the precautionary approach as articulated in the harmonised Work Health and Safety (WHS) legislation.It is interesting because the intellectual source of these ideas appears entirely different, yet the judicial operationalisation of both approaches appears to align.The environmental precautionary principle is generally recognised as coming from Germany’s democratic socialist movement in the 1930s and gained acceptance through the German Green movement in the '70s and '80s as a formal articulation of the German principle of vorsorge-prinzip, that is, quite literally, precaution-principle. In Australia, Parliaments adopted the formulation derived from the Rio convention in the '80s as expressed by the Intergovernmental Agreement on the Environment (1992) between the Commonwealth and the States. That is:"Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.In the application of the precautionary principle, public and private decisions should be guided by:(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and(ii) an assessment of the risk-weighted consequences of various options."The precautionary approach in the model WHS legislation appears to be derived as a defence against negligence in the common law. The common law (commencing in the 12th century with King Henry II) is now established from case law as modified progressively by the judiciary over the next 800 years and, in particular with regard to negligence, by the English law lord Lord Atkin in 1932. He favoured the adoption of a manifestation of the ethic of reciprocity or the golden rule of most major philosophies and religions, expressed in the Christian tradition, as: love your neighbour as yourself meaning do unto others as you would have done unto you.In The precautionary principle, the coast and Temwood Holdings, published in the Environmental and Planning Law Journal 2014, Justice Stephen Estcourt summarises the attempts by the judiciary in Australia to operationalise the environmental precautionary principle over the last 20 years and describes the way various decisions depend on earlier decisions and the way in which aspects of possibly unrelated decisions can be ‘borrowed’ (for want of a better term) from other judgments. For example, he observes that Osborn J in Environment East Gippsland vs VicForests (2010) notes the Shirt calculus. Wyong Shire Council v Shirt (1980) considers the liability of the Council for a water skiing accident, which at first glance would not appear to have any obvious connection to an environmental forestry matter. The issue was a question as to on which side of a sign saying ‘deep water,’ the water was actually deep.What the judges appear to be doing is extracting what are perceived relevant principles from other decisions. This has been conceptually noted by others. In their book Understanding the Model Work Health and Safety Act, Barry Sherriff and Michael Tooma quote a decision from the NSW Land and Environment Court to establish what due diligence means in the model Work Health and Safety legislation. Their point is that, whilst due diligence has been defined in the model WHS Act, the definition closely mirrors the current definition of due diligence in case law. That is, existing environmental case law may serve as a guide to this interpretation for WHS legislation.From the perspective of due diligence engineers trying to reverse engineer the decisions of the Courts, all this is actually quite refreshing. Deconstructing the precautionary principle back to established common law protocols to establish due diligence facilitates a robust pre-event alignment of the laws of nature with the laws of man.
This article first appeared on Sourceable.
Should Vic Parliament Cool the Planet to Protect Melbourne?
One of the more interesting philosophical issues arising from the introduction of the model WHS legislation is the question of whether the precautionary principle incorporated in environmental legislation is congruent with the precautionary approach of the model WHS legislation.The environmental precautionary principle is typically articulated as follows:
"If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation."
Due diligence is normally recognised as a defence for breach of that legislation.The words in Australian legislation are derived from the 1992 Rio Declaration. This formulation is usually recognised as being ultimately derived from the 1980s German environmental policy. The origin of the principle is generally ascribed to the German notion of Vorsorgeprinzip, literally, the principle of foresight and planning.The WHS legislation also adopts a precautionary approach. It basically requires that all possible practicable precautions for a particular safety issue be identified, and then those that are considered reasonable in the circumstances are to be adopted. In a very real sense, it develops the principle of reciprocity as articulated by Lord Atkin in Donoghue vs Stevenson following the Christian articulation, quote:
"The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question 'Who is my neighbour?' receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."
The dark side of the golden rule, as Immanuel Kant noted, is its lack of universality. In his view, it could be manipulated by whom you consider to be your neighbour. Queen Victoria for example, apparently considered neighbours to mean other royalty. The notion of HRH (his or her royal highness) makes it clear that everyone else is HCL (his or her common lowness). It becomes us and them rather than we.Presently, it’s not altogether clear whom our politicians regard as neighbours. At least for Australian citizens, we are all equal before Australian law, irrespective of race, religion and other such factors. So a fellow Australian citizen is at least a neighbour. Security based electoral populism may erode this although so far our courts have remained resolute in this regard. Victorians probably regard current and future Victorians as neighbours. But what about current and future New South Welshmen?Interestingly, in describing what constitutes a due diligence defence under the WHS act, Barry Sherriff and Michael Tooma favourably quote a case from the Land and Environment Court in NSW, suggesting that due diligence as a defence under WHS law parallels due diligence as a defence under environmental legislation.Does this mean that the two precautionary approaches, despite having quite divergent developmental paths, have converged? Tentatively, the answer seems to be ‘yes’. The common element appears to be the concern with uncertainty stemming from the potential limitations of scientific knowledge to describe comprehensively and predict accurately threats to human safety and the environment.So what does this mean? In committing all these apparently convergent principles in legislation, Australian parliaments have been passing legislation to enshrine the precautionary principle as their raison d'être.Consider global warming, which might be natural or man made or a combination of both. As described in an earlier article, a runaway scenario that melts the Greenland ice cap would raise sea levels by seven metres. This would be tough on Melbourne and see many suburbs underwater. We Victorians seem to have the capability to cool the planet to prevent such an outcome. At $10 billion to $20 billion, we can probably afford it judging by a $5 billion desalination plant from which we are yet to take water.If the Victorian Parliament is serious about implementing the legislation it has enacted, then should the Parliament move to cool the planet to protect Melbourne?
This article first appeared on Sourceable.
Mixed Messages from Governments on Poles and Wires
According to the Australian Energy Regulator (AER), unexpected events that lead to substantial overspend by owners of poles and wires is capped to 30 per cent.
The rest can be transferred through to the consumer. That is, it does not have to be budgeted for.
Quoting the AER:
"Where an unexpected event leads to an overspend of the capex amount approved in this determination as part of total revenue, a service provider will be only required to bear 30% of this cost if the expenditure is found to be prudent and efficient. For these reasons, in the event that the approved total revenue underestimates the total capex required, we do not consider that this should lead to undue safety or reliability issues."
This has the immediate effect of making poles and wires a valuable saleable asset as the full cost of risk associated with large, rare events like the 2009 Black Saturday bushfires in Victoria does not need to be included in the valuation. For example, the recent, cumulative $1 billion payout in Victoria has relatively little effect on the profit outcomes for the owner. It also means that the commercial incentive to test for further reasonably practicable precautions to address such events is greatly reduced.
This is inconsistent with accepted probity and governance principles. Ordinarily, all persons (natural or otherwise) are required to be responsible and accountable for their own negligence. At least this is the policy position adopted by responsible organisations like Engineers Australia. Their position requires members to practice within their area of competence and have appropriate professional indemnity insurances to protect their clients. The point is that owners and operators should be accountable for negligence, which the commercial imperative desires to abrogate.
In the case of the Black Saturday bush fires for example, this governance failure has been practically addressed by our customary backstop, the legal system, in the form of the common law claims made by affected parties, and the outcomes of the Bushfire Royal Commission and the flow on work by the Powerline Bushfire Safety Taskforce and the continuing Powerline Bushfire Safety Program.
Particularly, the use of Rapid Earth Fault Current Limiting (REFCL) devices (aka Petersen coils or Ground Fault Neutralisers) on 22-kilovolt lines has been demonstrated to have very significant ability to prevent bushfire starts from single phase grounding faults, faults which the Royal Commission found to be responsible for a significant number of the devastating black Saturday fires. A program to install these in rural Victoria at a preliminary cost of around $500 million appears inevitable, but under the current regulatory regime this cost will be (mostly) passed to the consumer. It is a sad reflection that it takes the death of 173 people to get the worth of such precautions tested and established as being reasonable.
Our Parliaments have seemingly addressed this in a convoluted manner by implementing the model Work Health and Safety laws in all jurisdictions (presently excepting Victoria and Western Australia). This makes officers (directors et al) personally liable for systemic organisational safety recklessness (cases where the officers knew or made or let hazardous occurrences happen) providing for up to five years jail and $600,000 in personal fines. In Queensland, it’s also a criminal matter. There have not been any test cases to date so the effectiveness of this legislation has not been evaluated.
From an engineering perspective, the exclusion of the cost implications of big rare events from the valuation of assets means irrational decisions with regards to the safe operation will inevitably occur and that the community will periodically suffer as a result.
This article first appeared on Sourceable.
Implications of the Model WHS Legislation
The consequences of the model WHS (Work Health and Safety) legislation on electrical safety are quite startling, but they have not yet been realised.The legislation requires that risks to health and safety should be eliminated, so far as is reasonably practicable. Section 17 Management of risks of the model act [1] states:A duty imposed on a person to ensure health and safety requires the person:
- to eliminate risks to health and safety, so far as is reasonably practicable; and
- if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
That is, if it is reasonably practicable to eliminate a hazard, then it should be done.The bane of electrical regulators is the home handyman working in a roof space and fiddling with the 240-volt conductors. Death is a regular result. The fatalities arising from the home insulation Royal Commission also spring to mind. As reported in the Sydney Morning Herald [2] last year, the management consultant hired to prepare a risk assessment for the Rudd government’s home insulation program says she had no idea that installers could die. She also told the inquiry she wasn’t aware of safety issues surrounding the use of foil, a product linked to three of the deaths.Many of us have been replacing our lights in our houses with energy efficient 12-volt LEDs. Whilst it may be unreasonable to retrospectively replace the 240-volt wiring in the roof space with extra low voltage (ELV) conductors for existing structures, it is obviously quite achievable for new dwellings. If all the wiring in the roof is 12 or 24 volts (and all the 240-volt wiring is in the walls) then the possibility of being electrocuted in a roof space is pretty much eliminated, which is the purpose of the legislation.The penalties for recklessness (knew or made or let it happen) under the model legislation are extraordinary, up to five years jail and $600,000. In some jurisdictions (for example, Queensland) it is also a crime [3].So in the event of a death that would have been prevented with ELV wiring in a dwelling constructed after the commencement of the model WHS act in a particular jurisdiction, the relevant public prosecutor presumably has a duty to prosecute any person, including the officers of a PCBU (person conducting a business or undertaking) that facilitated the fatal 240-volt installation. This would be expected to include officers of firms of builders, consulting engineers, electricians, architects and building surveyors at the very least.
This article first appeared on Sourceable.
[1] See Model Bill 23/6/2011 accessed 21/01/15 at: http://www.safeworkaustralia.gov.au/sites/SWA/about/Publications/Documents/598/Model_Work_Health_and_Safety_Bill_23_June_2011.pdf[2] See: http://www.smh.com.au/federal-politics/political-news/we-didnt-expect-death-home-insulation-probe-told-20140407-zqru8.html Accessed 20jan15[3] See Qld Electrical Safety Act 2002. Section 40B. Reckless Conduct – Category 1 (3) A category 1 offence is a crime. The Queensland parliament modified the Qld Electrical Safety act to enable its provisions to be the same as the Qld WHS act.
Engineers Australia Safety Case Guidelines Due to Be Released
The Engineers Australia Safety Case Guideline (3rd Edition) is presently being reviewed by Engineers Australia legal counsel.
It is expected to be released by the Risk Engineering Society through Engineers Australia Media in early 2014.
This third edition of the Safety Case Guideline considers how a safety case argument can be used as a tool to positively demonstrate safety due diligence consistent with the model Work Health and Safety (WHS) legislation (Work Safe Australia 2011) and the Rail Safety National law amongst others, and to provide general information concerning the concepts and applications of risk theory to safety case arguments.
The Guideline adopts a precautionary approach to demonstrating safety due diligence, meaning that safety risk should be eliminated or reduced so far as is reasonably practicable (SFAIRP) rather than reducing risk to as low as is reasonably practicable (ALARP) as encouraged by numerous Australian and international standards and regularly used by many Australian engineers. The Guideline emphasises that attempting to equate SFAIRP and ALARP is naively courageous and will not survive post-event judicial scrutiny.
The expected adoption of the Guideline represents the intellectual tipping point in the technical management of safety risk, at least in Australia, since a guideline or code of practice published by practitioners in their area of competence takes legal precedence over an industry-based standard unless that standard is called-up by statute or regulation. The call-up of a standard in legislation is frowned upon by parliamentary counsel since it derogates the power of parliament to unelected standards committees rather defeating the purpose of a parliamentary democracy. Advice is that under the new safety legislation the hierarchy is now:
In a discussion of the legal status of standards, Minter Ellison partner Paul Wentworth concluded that "Engineers should remember that in the eyes of the courts, in the absence of any legislative or contractual requirement, an Australian Standard amounts only to an expert opinion about usual or recommended practice. Also, that in the performance of any design, reliance on an Australian Standard does not relieve an engineer from the duty to exercise his or her own skill and expertise."
Previously, due diligence meant compliance with the laws of man. The Guideline emphasises that to be safe in reality (meaning an absence of harm), one must first manage the laws of nature rather than the laws of man. Safety due diligence therefore requires a positive demonstration of the alignment of the laws of nature with the laws of man, in that order.
This is quite different to demonstrating due diligence in the finance world. Money isn’t real. That is, it does not exist in a state of nature, for example, it does not grow on trees and therefore the laws of nature don’t directly apply to it. This means that in the financial world, due diligence will probably continue to be considered the same as compliance. Equating due diligence with compliance is an approach many audit committees pursue with regard to safety risk but which is now effectively prohibited by statute law in most Australian jurisdictions.
This article first appeared on Sourceable (no longer available).
Client and Colleagues Event Details 2016
Gaye and I are pleased to host the next R2A client and colleague event on 9th February 2016. We will be launching our updated 10th edition text as well as discussing the one of the first prosecutions under new nationally harmonised Work Heath & Safety Laws.
BRETT MCKIE V MUNIR AL-HASANI & KENOSS CONTRACTORS PTY LTD (IN LIQ):
What does this first Work Health & Safety test case mean for you 2016?
Event Details
Date: Tuesday, 9th of February 2016Time: 3pm-5pmRestaurant: The MillUpstairs 71 Hardware Lane Melbourne 3001 http://www.themillrestaurant.com.au/RSVP by 5th February 2016
Look forward to seeing you there.
Risk Management Standard - AS/NZS ISO 31000
Thoughts on AS/NZS ISO 31000
In Australia, we are currently undergoing a paradigm shift in the way safety risk management is conducted. The new Work Health & Safety Act is replacing the old approach typified by the standard, AS/NZS ISO 31000.
We have heard conversation in the Engineering community that the move away from AS/NZS ISO 31000 doesn’t necessarily it present a better way forward and the standard can in fact demonstrate safety due diligence. R2A does not share this view.
The key issue arises from the use of the notion of target (tolerable or acceptable) levels of risk. The standard is quite specific in the definitions and process explanations:
2.24 risk evaluationprocess of comparing the results of risk analysis (2.21) with risk criteria (2.22) to determine whether the risk (2.1) and/or its magnitude is acceptable or tolerable
5.4.4 risk evaluationRisk evaluation involves comparing the level of risk found during the analysis process with risk criteria established when the context was considered. Based on this comparison, the need for treatment can be considered.
The section on the treatment options is more careful.
5.5.2 Selection of risk treatment optionsSelecting the most appropriate risk treatment option involves balancing the costs and efforts of implementation against the benefits derived, with regard to legal, regulatory, and other requirements such as social responsibility and the protection of the natural environment. Decisions should also take into account risks, which can warrant risk treatment that is not justifiable on economic grounds, e.g. severe (high negative consequence) but rare (low likelihood) risks.
The point of the new due diligence approach is to deal with the severe safety (high negative consequence) but rare events. The standard seems to suggest that this is a supplementary risk management concern, not a primary focus.
Unfortunately by following the standard for safety risk management, businesses may in fact be heading towards a ‘beyond reasonable doubt’ proof of recklessness in the event of a serious injury or death, which potentially creates criminal liabilities for responsible officers under the provisions of the new WHS Act.
R2A has described on a number of occasions how the standard fails. In particular, RES 2010 regarding the use of iso-risk contours for Major Hazards land use safety planning after the Buncefield incident, CORE 2010 regarding rock falls in rail cuttings and the Tunnel Conference in Lyon.
At R2A, we are excited by the paradigm change and believe it is a better way forward. Please drop us a line if you have any questions.