Environmental Protection now SFAIRP

July 19, 2021

A while back, R2A had a blog entitled Precaution v Precaution wherein we wondered how the precautionary principle (derived from the 1992 Rio Convention) enunciated in the then Environmental Protection Act in Victoria compared to the SFAIRP approach of OHS/WHS legislation.

Well, we have the answer! In Victoria at any rate.

From 1 July 2021, SFAIRP is paramount. It is formally included in the Environmental Protection Act 2017. Victorians now have a duty to positively demonstrate due diligence for both safety and the environment.

Similar to the WHS/OHS Acts, Section 6 of the revised act states:

(1) A duty imposed on a person under this Act to minimise, so far as reasonably practicable, risks of harm to human health and the environment requires the person -

(a) to eliminate risks of harm to human health and the environment so far as reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks of harm to human health and the environment, to reduce those risks so far as reasonably practicable.

Section 18 describes the hierarchy of waste control:

Waste should be managed in accordance with the following order of preference, so far as reasonably practicable -

  • avoidance;
  • reuse;
  • recycling;
  • recovery of energy;
  • containment;
  • waste disposal.

Strangely, Section 20 retains the Rio Convention approach:

If there exist threats of serious or irreversible harm to human health or the environment, lack of full scientific certainty should not be used as a reason for postponing measures to prevent or minimise those threats.

Section 25 summarises a General Environmental Duty (GED):

A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.

In attempting to explain the significance of all this, it’s probably important to understand that this is actually a lawyers’ articulation of a principle of moral philosophyinitially inserted into the common law by the Brisbane born English law lord, Lord Atkin (Donoghue v Stevenson (1932), and which has subsequently flowed into Australian statute law:

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.

Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

This is just the principle of reciprocity: do unto others as you would have done unto you.

With that understanding, much of the legal palaver becomes quite obvious.

In dam safety terms, for example, it asks the question:

 “If you lived downstream of a large dam, how would you expect the dam to be designed and managed in order to be safe?”

Even though the dam meets recognised good practice for design, operation and maintenance, if more could be done to make the dam safer at reasonable cost, ought that not be done?

After all, if the dam failed, and there was a simple cost-effective precaution that could have prevented the disaster, shouldn’t it have been done? And oughtn’t people who have lost loved ones be cranky with those who failed to do those reasonable things?

This is probably where this new SFAIRP approach has the greatest impact. It is no longer acceptable to say that you complied with an Australian or other standard.

Standards are just the starting point. You must do more if you reasonably can, a matter which will be forensically tested post-event.

Indeed, if you use a standard as the design tool, without testing if more can reasonably be done, you are probably already in breach of the legislation.

As Paul Wentworth, a partner in Minter Ellison put it in 2011:

… in the performance of any design, reliance on an Australian Standard does not relieve an engineer from a duty to exercise his or her skill and expertise.

If you would like to discuss how this may affect your organisation's obligations or due diligence in general, contact us for a chat.
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