The adoption of the model WHS legislation in Australasia is now practically complete with the passing of the act by the Western Australian parliament. Whilst yet to be proclaimed, the WA version includes criminal manslaughter provisions with a maximum penalty of 20 years for individuals.
Victoria is now formally the only state not to have adopted the model WHS Act, although this is practically inconsequential, as the due diligence concept to demonstrate SFAIRP (so far as is reasonably practicable) is embodied in the 2004 OHS Act, and the criminal manslaughter provisions of same commenced on the 1st of July this year.
New Zealand adopted the model WHS legislation in the form of the Health and Safety at Work Act 2015. Judging by the number of commissions R2A has had in NZ in 2020, it has come as a bit of a surprise to many, particularly to those using the hazard-based approach of target levels of risk and safety such as ALARP (as low as reasonably practicable), that these have been completed superseded by the new legislation and cannot demonstrate safety due diligence.
New Zealand has not presently adopted the criminal manslaughter provisions being introduced into Australia, but it did include the significant penalties for recklessness (knew or made or let it happen) with up to 5 years jail for individuals.
In all Australasian jurisdictions, regulators appear prosecutorially active with a number of cases presently under investigation and before the courts. For example, the White Island volcano incident in New Zealand which killed 22. Ten parties and 3 individuals have been charged.
Perhaps what has surprised many in NZ is the observation by NZ Worksafe, that for critical (kill or maim) hazards like volcanic eruptions, it only has to be reasonably foreseeable, not actually have happened before. That is, the fact that the hazard has not occurred before is not sufficient to warrant not thinking about it any further.
That is, our parliamentarians and judges seem to have decided that due diligence is universal in its application and creates a moral justification for action. This also means the converse, that failure to act demands sanction against the failed decision maker, which is being increasingly tested in our courts.
Like you, we have been devastated by the recent bushfire events in Victoria, NSW and Queensland. We hope you have been able to stay safe and have not been directly affected. Richard and I have been reflecting on bushfires in history and if there are any key take away messages from a due diligence perspective.
Richard’s involvement with bushfire risk reviews commenced in the 1980s following the Ash Wednesday fires in Victoria. As part of a research project, Richard completed a threat and vulnerability assessment to see if there were any precautions that were missing from (then) current practices.
The outcome was that there were significant risk reduction benefits associated with improved town planning. This required the placement of huge fire breaks, such as golf courses and potato fields to the north and west of the town.
From the CFA website:
A change in wind direction is one of the most dangerous influences on fire behaviour. Many people who die in bushfires get caught during or after a wind change.
In Victoria, hot, dry winds typically come from the north and northwest and are often followed by a southwest wind change. In this situation the side of the fire can quickly become a much larger fire front.
Richard was then a member of the Powerline Bushfire Safety Taskforce that followed the Black Saturday fires in 2009.
My involvement continues on the Powerline Bushfire Safety Committee.
One of the key findings of the Black Saturday Royal Commission was that the majority of the fires were started by electrical assets and significantly contributed to the huge number of fatalities.
I am very proud to be involved in the roll out of REFCLs (Rapid Earth Fault Current Limiter) in Victoria, and their contribution to improving bushfire safety. Data from a total fire ban day in November 2019, revealed that REFCLs on the electrical network are working to reduce the number of fire starts from electrical assets.
Although bushfires of this magnitude were a new occurrence for NSW in 2019/20, there are many learnings from past Victorian fires that can be applied.
And, it is interesting to compare the community’s response to cyclones in the north of Australia to community responses in bushfire prone areas.
Buildings in cyclone prone areas are subject to more stringent building codes and during cyclone warning periods. It’s typically practice for people living in those areas to go home and prepare their house. All loose items of furniture are removed or tied down, shutters are closed, and communities are generally shutdown.
The same does not occur for bushfires prone areas.
As due diligence engineers we ask the question is there anything more that can be done?
The focus should always be on precautions rather than mitigations and we should certainly learn from past experiences.
In light of these recent events, we have revisited our Safety Due Diligence White Paper and Powerline Bushfire Safety Taskforce Case Study. We hope you find them interesting and insightful.
A very popular pastime of Australian parliaments is to pass legislation and regulation on the basis that, once it becomes the law, everyone will comply and it will, therefore, be effective.
A concomitant result is that many boards and their legal advisers conduct compliance audits to confirm that these legal obligations have been met and, having done so, declare that they are ethically robust, safe and societally responsible.
This is a flawed philosophy at many levels.
Conceptually, the philosophy of compliance suggests that the more laws and regulations the better, even if the cost to demonstrate compliance continues to increase.
It is simply not possible for our parliaments and regulators to predict in advance all the possible existing concerns, let alone the circumstances of possible future problems.The objective should be to understand the purpose of something and to meet that need. Compliance is a secondary aspect.For a simple example: Pool fencing is designed to prevent children drowning, not to satisfy a building surveyor, although this may be necessary to satisfy society that it has been done properly.
It is seldom about promoting the best that we-can-do.The behaviour of the financial sector, the sex scandals in religious orders and the mistreatment in aged care are cases in point. From a societal viewpoint, the horrendous matters reported in the various Royal Commissions simply ought not to have happened.But, will increased legislation and regulation prevent such dreadful things from re-occurring in the future? Or is there a better way?
The Code of Ethics of Engineers Australia has always emphasised that the interest of society comes before sectional interests.
These basic understandings, as articulated, for example, by the managing director of a major Australian Consulting Engineering firm to a young engineer in the 1970s, include:
A simple rule. Often overlooked. Having a building certifiers paid for by the developer easily leads to lazy certification. A better approach would be to have the (future) owners pay for the certification. The possibility of a conflict of interest would be functionally reduced by design.
A lot or rules and regulations can be written about this. But if a professional adviser does not understand that a hidden commission is morally indefensible, there is a problem that no amount of regulation can fix. It may not be illegal to pay a spotter’s fee, but it’s certainly morally suspect.
Don’t provide advice or opinions without adequate knowledge. Does this really need legislation and regulation?
That is, recognise that you can’t always be right. Amongst other things, advisers need professional indemnity insurance, in part, to remedy honest mistakes.
That is, don’t take credit for what others have achieved.
There is nothing new or novel about these basic understandings. But rather than legislating and regulating with a list of things not-to-do, it may be better to re-design the commercial environment so that virtuous behaviour is rewarded.
Certainly, the old ACEA (Association of Consulting Engineers, Australia) used to do this. ACEA required that member firms were controlled by directors who were bound by the Engineers’ Code of Ethics.
This meant that in the event of a decision between the best interests of the consulting firm and the client’s, the client’s interests normally held sway.
In my article Why Risk changed to Due Diligence & Why it’s become so Important, I briefly described the principle of; do unto others, otherwise known as the Principle of Reciprocity, and how Governments in Australia have incorporated the concept in legislation in the form of due diligence. With this in mind, it’s important to consider the unintended consequences of due diligence.
Due diligence in safety legislation requires that risks be eliminated, so far as is reasonably practical, or if they can't be eliminated, reduced so far as is reasonably practical.
The bane of electrical regulators in Australia is the home handyman working in a roof space and fiddling with the 240V conductors. Death is a regular result. The fatalities arising from the home insulation Royal Commission also spring to mind.
Most of us have been replacing dichroic downlights in our existing houses with energy efficient 12V LEDs. And although it may be unreasonable to retrospectively replace the 240V wiring in the roof space with extra low voltage (ELV) conductors for existing structures, it is obviously quite achievable for new dwellings. And if all the wiring in the roof is 12 or 24 V (and all the 240V 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. In fact, the most likely thing to happen next is that all lights will get smart and be provided with power over Ethernet (PoE) (up to 48V).
What all this means is that, in the event of an electrocution in a roof space, the designer of domestic dwellings that did not install ELV lighting in houses built since the commencement of the WHS legislation will, most likely be considered reckless in terms of the legislation since the elimination option is obviously reasonably practicable.
Does the Parliament of Victoria have a duty of care to Melbournians? Not just current, but future ones? The High Court of Australia has been clear that future generations (yet unborn) can be considered neighbours for the purposes of having a duty of care.
If that's the case, when it comes to global warming (whether it's real or not is an interesting question but it's certainly credible) if the Greenland ice sheet melts, which is arguably what will happen if temperatures increase by two or three degrees, the sea level in Port Phillip Bay will rise about seven meters.
Seven meters in a low-lying city like Melbourne would be significant. You could forget Flinders Street Station as your meeting point.
Due diligence is all about options analysis for credible (foreseeable) hazards and I can tell you of at least three, just from a preliminary internet search.
The Victorian desalination plant cost over $5B and ultimately $18B or so all up during the 27 year lifetime of the plant. It was built to deal with the credible, critical threat of Melbourne running out of water if a 10 year drought persisted.
All this means that the Government of Victoria has the resources to implement at least one of the options described above. And following its own legislation, it seems the government has committed itself to seriously considering if it should cool the planet to protect the citizens of Melbourne against flooding due to the credible possibility of global warming.
These examples, along with many more, along with the tools we use to engineer due diligence, are detailed in our Due Diligence Engineering textbook that’s available to purchase here.
If you’d like our assistance with any upcoming due diligence, contact us for a friendly chat.
But to start, I need to go back to 1996. The R2A team and I were conducting risk reviews on large scale engineering projects, such as double deck suburban trains and traction interlocking in NSW, and why the power lines in Tasmania didn't need to comply with CB1 & AS7000, and why the risk management standard didn't work in these situations.
And, what we kept finding was that as engineers we talked about high consequence, low likelihood (rare) events, and then we’d argue the case with the financial people over the cost of precautions we suggested should be in place, we’d always lose the argument.
However, when lawyers were standing with us saying, 'what the engineers are saying makes sense - it's a good idea', then the ‘force’ was with us and what we as engineers suggested was done.
As a result, in the 2000s we started flipping the process around and would lead with the legal argument first and then support this with the engineering argument. And every time we did that, we won.
Since we made this fundamental change in service and became more involved in delivering high level work, that is, due diligence, it has also become part of the Australian governance framework.
Due diligence has become endemic in Australian legislation. In corporations’ law; directors must demonstrate diligence to ensure, for example, that a business pays its bills when they fall due. It's in WHS Legislation. It's in Environmental Legislation. Due diligence is now required to demonstrate good corporate governance.
And what I mean by that is that there’s a swirl of ideas that run around our parliaments. Our politicians pick the ideas they think are good ones. One of these was the notion of due diligence that was picked up from the judicial, case (common) law system.
There’s an interesting legal case on the topic going back to 1932: Donoghue vs Stevenson; the Snail in the Bottle. When making his decision, the Brisbane-born English law lord, Lord Aitken said that the principle to adopt is; do unto others as you would have done unto you.
The do unto others principle (the principle of reciprocity) was nothing new; it’s been a part of major philosophies and religions for over 2000 years.
Our parliamentarians took the do unto others idea and incorporated it into Acts, Regulations and Codes of Practice as the notion of Due Diligence.
That is, due diligence has become endemic in Australian legislation and in case law, to the point that it has become, in the philosopher Immanuel Kant’s terms, a categorical imperative. That is, our parliamentarians and judges seem to have decided that due diligence is universal in its application and creates a moral justification for action. This also means the converse, that failure to act demands sanction against the failed decision maker. I discuss this further along with two examples in the article What are the Unintended Consequences of Due Diligence.
If you’d like to discuss we can help you make diligent decisions that are safe, effective and compliant, we’d love to hear from you. Contact us today.
The start of 2019 has seen much media attention to various incidents resulting from, arguably, negligent decision making.
One such incident was the recent high-rise apartment building fire in Melbourne that resulted in hundreds of residents evacuated.
The fire is believed to have started due to a discarded cigarette on a balcony and quickly spread five storeys. The Melbourne Fire Brigade said it was due to the building’s non-combustible cladding exterior that allowed the fire to spread upwards. The spokesperson also stated the cladding should not have been permitted as buildings higher than three storeys required a non-combustible exterior.
Yet, the Victorian Building Authority did inspect and approve the building.
Similar combustible cladding material was also responsible for another Melbourne based (Docklands) apartment building fire in 2014 and for the devastating Grenfell Tower fire in London in 2017 that killed 72 people with another 70 injured.
This cladding material (and similar) is wide-spread across high-rise buildings across Australia. Following the Docklands’ building fire, a Victorian Cladding Task Force was established to investigate and address the use of non-compliant building materials on Victorian buildings.
Is considering Worse Case Scenario versus Risk appropriate?
In a television interview discussing the most recent incident, a spokesperson representing Owners’ Corporations stated owners needed to look at worse case scenarios versus risk. He followed the statement with “no one actually died”.
While we agree risk doesn’t work for high consequence, low likelihood events, responsible persons need to demonstrate due diligence for the management of credible critical issues.
The full suite of precautions needs to be looked at for a due diligence argument following the hierarchy of controls.
The fact that no one died in either of the Melbourne fires can be attributed to Australia’s mandatory requirement of sprinklers in high rise buildings. This means the fires didn’t penetrate the building. However, the elimination of cladding still needs to be tested from a due diligence perspective consistent with the requirements of Victoria’s OHS legislation.
What happens now?
The big question, beyond that of safety, is whether the onus to fix the problem and remove / replace the cladding is now on owners at their cost or will the legal system find construction companies liable due to not demonstrating due diligence as part of a safety in design process?
Residents of the Docklands’ high-rise building decided to take the builder, surveyor, architect, fire engineers and other consultants to the Victorian Civil and Administrative Tribunal (VCAT) after being told they were liable for the flammable cladding.
Defence for the builder centred around evidence of how prevalent the cladding is within Australian high-rise buildings.
The architect’s defence was they simply designed the building.
The surveyor passed the blame onto the Owners’ Corporation for lack of inspections of balconies (where the fire started, like the most recent fire, with a discarded cigarette).
Last week (at the time of writing), the apartment owners were awarded damages for replacement of the cladding, property damages from the fire and an increase in insurance premiums due to risk of future incidents. In turn, the architect, fire engineer and building surveyor have been ordered to reimburse the builder most of the costs.
Findings by the judge included the architect not resolving issues in design that allowed extensive use of the cladding, a failure of “due care” by the building surveyor in its issue of building permit, and failure of fire engineer to warn the builder the proposed cladding did not comply with Australian building standards.
Three percent of costs were attributed to the resident who started the fire.
Does this ruling set precedence?
Whilst other Owners’ Corporations may see this ruling as an opportunity (or back up) to resolve their non-compliant cladding issues, the Judge stated they should not see it as setting any precedent.
"Many of my findings have been informed by the particular contracts between the parties in this case and by events occurring in the course of the Lacrosse project that may or may not be duplicated in other building projects," said Judge Woodward.
If you'd like to discuss how conducting due diligence from an engineering perspective helps make diligent decisions that are effective, safe and compliant, contact us for a chat.
In October and November (2018), I presented due diligence concepts at four conferences: The Chemeca Conference in Queenstown, the ISPO (International Standard for maritime Pilot Organizations) conference in Brisbane, the Australian Airports Association conference in Brisbane (with Phil Shaw of Avisure) and the NZ Maritime Pilots conference in Wellington.
The last had the greatest representation of overseas presenters. In particular, Antonio Di Lieto, a senior instructor at CSMART, Carnival Corporation's Cruise ship simulation centre in the Netherlands. He mentioned that:
a recent judgment in Italian courts had reinforced the paramountcy of the due diligence approach but in this instance within the civil law, inquisitorial legal system.
Australian guidance for gas and liquid petroleum pipeline design guidance comes, to a large extent, from Australian Standard 2885. Amongst other things AS2885 Pipelines – Gas and liquid petroleum sets out a method for ensuring these pipelines are designed to be safe.
Like many technical standards, AS2885 provides extensive and detailed instruction on its subject matter. Together, its six sub-titles (AS2885.0 through to AS2885.5) total over 700 pages. AS2885.6:2017 Pipeline Safety Management is currently in draft and will likely increase this number.
In addition, the AS2885 suite refers to dozens of other Australian Standards for specific matters.
In this manner, Standards Australia forms a self-referring ecosystem.
R2A understands that this is done as a matter of policy. There are good technical and business reasons for this approach;
However, this hall of mirrors can lead to initially small issues propagating through the ecosystem.
At this point, it is worth asking what a standard actually is.
In short, a standard is a documented assembly of recognised good practice.
What is recognised good practice?
Measures which are demonstrably reasonable by virtue of others spending their resources on them in similar situations. That is, to address similar risks.
But note: the ideas contained in the standard are the good practice, not the standard itself.
And what are standards for?
Standards have a number of aims. Two of the most important being to:
That is, standards help people predict and manage the future – people such as engineers, designers, builders, and manufacturers.
When helping people not make decisions, standards provide standard requirements, for example for design parameters. These standards have already made decisions so they don’t need to be made again (for example, the material and strength of a pipe necessary for a certain operating pressure). These are one type of standard.
The other type of standard helps people make decisions. They provide standardised decision-making processes for applications, including asset management, risk management, quality assurance and so on.
Such decision-making processes are not exclusive to Australian Standards.
One of the more important of these is the process to demonstrate due diligence in decision-making – that is that all reasonable steps were taken to prevent adverse outcomes.
This process is of particular relevance to engineers, designers, builders, manufacturers etc., as adverse events can often result in safety consequences.
A diligent safety decision-making process involves,:
This addresses the legal obligations of engineers etc. under Australian work health and safety legislation.
Standards fit within this due diligence process as examples of recognised good practice.
They help identify practicable options (the second step) and the help in determining the reasonableness of these measures for the particular issues at hand. Noting the two types of standards above, these measures can be physical or process-based (e.g. decision-making processes).
Each type of standard provides valuable guidance to those referring to it. However the combination of the self-referring standards ecosystem and the two types of standards leads to some perhaps unintended consequences.
Some of these arise in AS2885.
One of the main goals of AS2885 is the safe operation of pipelines containing gas or liquid petroleum; the draft AS2885:2017 presents the standard's latest thinking.
As part of this it sets out the following process.
If the risk is not acceptable, apply more controls until it is and then move on with the project. (See e.g. draft AS2885.6:2017 Appendix B Figures B1 Pipeline Safety Management Process Flowchart and B2 Whole of Life Pipeline Safety Management.)
But compare this to the decision-making process outlined above, the one needed to meet WHS legislation requirements. It is clear that this process has been hijacked at some point – specifically at the point of deciding how safe is safe enough to proceed.
In the WHS-based process, this decision is made when there are no further reasonable control options to implement. In the AS2885 process the decision is made when enough controls are in place that a specified target level of risk is no longer exceeded.
The latter process is problematic when viewed in hindsight. For example, when viewed by a court after a safety incident.
In hindsight the courts (and society) actually don’t care about the level of risk prior to an event, much less whether it met any pre-determined subjective criteria.
They only care whether there were any control options that weren’t in place that reasonably ought to have been.
‘Reasonably’ in this context involves consideration of the magnitude of the risk, and the expense and difficulty of implementing the control options, as well as any competing responsibilities the responsible party may have.
The AS2885 risk sign-off process does not adequately address this. (To read more about the philosophical differences in the due diligence vs. acceptable risk approaches, see here.)
To take an extreme example, a literal reading of the AS2885.6 process implies that it is satisfactory to sign-off on a risk presenting a low but credible chance of a person receiving life-threatening injuries by putting a management plan in place, without testing for any further reasonable precautions.
In this way AS2885 moves away from simply presenting recognised good practice design decisions as part of a diligent decision-making process and, instead, hijacks the decision-making process itself.
In doing so, it mixes recognised good practice design measures (i.e. reasonable decisions already made) with standardised decision-making processes (i.e. the AS31000 risk management approach) in a manner that does not satisfy the requirements of work health and safety legislation. The draft AS2885.6:2017 appears to realise this, noting that “it is not intended that a low or negligible risk rank means that further risk reduction is unnecessary”.
And, of course, people generally don’t behave quite like this when confronted with design safety risks.
If they understand the risk they are facing they usually put precautions in place until they feel comfortable that a credible, critical risk won’t happen on their watch, regardless of that risk’s ‘acceptability’.
That is, they follow the diligent decision-making process (albeit informally).
But, in that case, they are not actually following the standard.
This raises the question:
Is the risk decision-making element of AS2885 recognised good practice?
Our experience suggests it is not, and that while the good practice elements of AS2885 are valuable and must be considered in pipeline design, AS2885’s risk decision-making process should not.
 AS2885.6 Section 5:
“... the risk associated with a threat is deemed ALARP if ... the residual risk is assessed to be Low or Negligible”
Consequences (Section 3 Table F1):
Severe - “Injury or illness requiring hospital treatment”. Major: “One or two fatalities; or several people with life-threatening injuries”. So one person with life-threatening injuries = ‘Severe’?
Likelihood (Section 3 Table 3.2):
“Credible”, but “Not anticipated for this pipeline at this location”,
Risk level (Section 3 Table 3.3):
Required action (Section 3 Table 3.4):
“Determine the management plan for the threat to prevent occurrence and to monitor changes that could affect the classification”.
The first REBoK session, delivered by Warren Black, considered the domain of risk and risk engineering in the context risk management generally. It described the commonly available processes and the way they were used.
Following the initial presentation, Warren was joined by R2A Partner, Richard Robinson and Peter Flanagan to answer participant questions. Richard was asked to (again) explain the difference between ALARP (as low as reasonably practicable) and SFAIRP (so far as is reasonably practicable).
The difference between ALARP and SFAIRP and due diligence is a topic we have written about a number of times over the years. As there continues to be confusion around the topic, we thought it would be useful to link directly to each of our article topics.
Does ALARP equal due diligence, written August 2012
Does ALARP equal due diligence (expanded), written September 2012
Due Diligence and ALARP: Are they the same?, written October 2012
SFAIRP is not equivalent to ALARP, written January 2014
When does SFAIRP equal ALARP, written February 2016
Future REBoK sessions will examine how the risk process may or may not demonstrate due diligence.
Due diligence is a legal concept, not a scientific or engineering one. But it has become the central determinant of how engineering decisions are judged, particularly in hindsight in court.
It is endemic in Australian law including corporations law (eg don’t trade whilst insolvent), safety law (eg WHS obligations) and environmental legislation as well as being a defence against (professional) negligence in the common law.
From a design viewpoint, viable options to be evaluated must satisfy the laws of nature in a way that satisfies the laws of man. As the processes used by the courts to test such options forensically are logical and systematic and readily understood by engineers, it seems curious that they are not more often used, particularly since it is a vital concern of senior decision makers.
Stay tuned for further details about upcoming sessions. And if you are needing clarification around risk, risk engineering and risk management, contact us for a friendly chat.
A recent conversation with a consultant to a large law firm described the current legal trend in Melbourne, notably that rights had become more important than responsibilities. (more…)