R2A Safety Due Diligence Process
In reality, to be safe means to be free from harm. In court, safe means that, despite something apparently unsafe having happened, due diligence has been demonstrated. In engineering terms this means that to be safe requires managing the law of nature in a way that is consistent with the laws of man and in that order.
At R2A we have developed a set of routinely successful process to positively demonstrate safety due diligence consistent with the requirements of the model Work Health and Safety (WHS) legislation that has commenced in all Australian jurisdictions except, at the time of writing, Western Australia and Victoria.
In reality, to be safe means to be free from harm. In court, safe means that, despite something apparently unsafe having happened, due diligence has been demonstrated. In engineering terms this means that to be safe requires managing the law of nature in a way that is consistent with the laws of man and in that order.At R2A we have developed a set of routinely successful process to positively demonstrate safety due diligence consistent with the requirements of the model Work Health and Safety (WHS) legislation that has commenced in all Australian jurisdictions except, at the time of writing, Western Australia and Victoria.The R2A approach adopts a precautionary common law formulation for the demonstration of due diligence as a defence against negligence namely:
- A completeness argument as to why all credible critical safety issues to all affected parties have been identified
- A argument as to why all practicable precautions for each credible critical issue has been identified.
- An argument as to which practicable precautions are reasonable consistent with decisions of the High Court of Australia, and
- The establishment of a safety quality assurance regime to confirm that all reasonable practicable precautions are maintained on an ongoing basis
This approach does not mean that bad things cant happen. It means (assuming the activity is not prohibitively dangerous such that it should not occur at all) that all reasonable practicable precautions for all foreseeable, critical hazards to all affected parties are in place, based on the balance of the significance of the risk vs the effort required to reduce it. This also means that risks should be eliminated or minimized so far as reasonable practicable.Such a position, based around the test of reasonably practicability arguable at a common law balance (the 50:50 tipping point), should provide superior safety outcomes for all whilst offering the best protection against criminal charges for responsible officers under the provisions of the model WHS Act.Over the years, R2A has tested this Safety Case approach with various legal counsels when consulting for clients. We recommend that readers do so with their own legal counsel before adopting this approach.
Risk and Due Diligence Unit – Swinburne Update
The Introduction to Risk and Due Diligence Unit at Swinburne is going well this year with 17 students with a diverse global representation. An aspect of the course is a tutorial presentation on some aspect of the law in different jurisdictions. Some very interesting presentations have been made.
The student from Switzerland described the direct democracy process. Direct democracy involves a citizen-sponsored amendment to the Constitution. 100,000 voter signatures are required, which if achieved requires a referendum. To pass into law, a double majority in both the national popular vote and a majority of the (26) cantonal popular vote must be in favour of the amendment. The successful amendment must then be implemented by the federal parliament.
The Introduction to Risk and Due Diligence Unit at Swinburne is going well this year with 17 students with a diverse global representation. An aspect of the course is a tutorial presentation on some aspect of the law in different jurisdictions. Some very interesting presentations have been made.
The student from Switzerland described the direct democracy process. Direct democracy involves a citizen-sponsored amendment to the Constitution. 100,000 voter signatures are required, which if achieved requires a referendum. To pass into law, a double majority in both the national popular vote and a majority of the (26) cantonal popular vote must be in favour of the amendment. The successful amendment must then be implemented by the federal parliament.
A recent amendment was to ban golden handshakes for executives, especially for executives departing poorly performing companies. Apparently most politicians and business leaders advised against this amendment as acting against the national interest, but it was nevertheless adopted with the highest voter turnout in recent memory.
Being about half way through the semester now, it seems like everyone, including the Lecturer is learning something new each week!
The course at Swinburne is presented each week at the Hawthorn campus (VIC). We also welcome guests, so if you have an interesting case study or project example that you would like to share with the students, please get in touch.
ALF Literacy Camp – Ballarat
R2A Board Advisor, John Francis recently attended the Aboriginal Literacy and Heritage camp at Ballarat facilitated by the Aboriginal Literacy Foundation (ALF). R2A have a partnership with the ALF and here is John’s account of the dayOn Saturday 2nd March I attended the Aboriginal Literacy and Heritage camp. Students are partnered with an adult for the morning session, which involves helping the students with their literacy skills.I was partnered with a young aboriginal girl approx. 8 years and in grade 2. We were given several tasks to complete and to read. She tackled these with enthusiasm, and at the end of the session was able to recognise words that had been difficult at the start.After lunch, the student’s do some craftwork and then an elder of a local tribe comes to talk to the students about their culture and traditions. This is followed by an activity like horse riding or roller skating etc.I felt chuffed with the amount of progress that had been achieved by the young girl in this brief session. I have undertaken to take part in the next camp in late April or early May to hopefully provide continuity in the partnership.