New Zealand's Health & Safety Amendment Bill - Leading the Way

Risk! Engineers Talk Governance Podcast
Season 7, Episode 4

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis discuss New Zealand's Health and Safety at Work Amendment Bill and explore why New Zealand is leading the in workplace health and safety.

They break down the key changes in the amendment, including a sharper focus on critical risk and what this means for both large organisations and small PCBUs. 

The conversation touches on the real-world prosecutions that appear to have motivated the reform, including the White Island volcanic eruption and the conviction of the former CEO of the Port of Auckland.

Richard and Gaye also reflect on how many organisations are getting too consumed by lower-level compliance activity while the critical risks get deprioritised or ignored entirely.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers, Richard Robinson and Gaye Francis discuss the latest amendments to the New Zealand Health and Safety Act and how they're leading the way.

(00:16):

We hope you enjoyed the chat. If you do, please support our work by giving us a rating and subscribing on your favorite podcast platform. And if you'd like more information on R2A, our newsletter and resources, or have any feedback or topic ideas, head to the website www.r2a.com.au.

Gaye Francis (00:36):

Hi Richard. Welcome to our podcast session.

Richard Robinson (00:38):

Good morning, Gaye. Good to be back.

Gaye Francis (00:40):

It is good to be back. It's been a crazy couple of weeks.

Richard Robinson (00:44):

I keep reading that as you get older, you're meant to get happier.

Gaye Francis (00:48):

Okay.

Richard Robinson (00:49):

I'm supposed to be ecstatic at my stage of life.

Gaye Francis (00:51):

I was going to make that joke. I thought I'd better not. <laughs>

(00:55):

Today's topic, we're going to talk about the Health and Safety at Work Amendment Bill out of New Zealand and some interesting developments that it's recommending and looking like implementing, but they're really leading the way in this health and safety space at the moment. So I think, as you always do, can you give us a brief summary of what the amendment bill looks like? And then we'll discuss maybe some of the implications of it.

Richard Robinson (01:24):

I better just explain the reason why we came across this because we're doing some work in New Zealand and we're briefing relevant legal counsel. And so we're just sort of checking what the status of various things were because we're fairly familiar with it all. Having done quite a lot of work in different places in New Zealand. But we came across this and we found this particularly interesting because we had noticed the Kiwis have been particularly active in prosecuting people and successfully prosecuting them. In particular, you might recall the volcanic eruption.

Gaye Francis (01:51):

White Island.

Richard Robinson (01:52):

23 people got killed. In the end, seven companies got convicted.

Gaye Francis (01:56):

Correct. The individuals walked away, but the companies were convicted.

Richard Robinson (02:00):

But the one that sort of motivated everybody was in 2024, the former CEO of the Port of Auckland got convicted for a heavy lift crane dropped something on someone and killed someone. And their former CEO got convicted. And that was despite the fact that that CEO, from all the readings I'd done, was actually pretty strong on safety and tried to get a lot of things done. Now, we're not entirely sure. I'm sort of though we're listening to the NZ Parliament to work out why they've decided to introduce this amendment. But what we thought we'd do is go through what we understood to be the key bits of it. It's obviously available online, although it does note that, and we printed this off about a week or so ago (early March 2026), and it does say it will be replaced in March. So I guess this thing's ongoing fairly fast.

(02:44):

But basically it does a number of things. The overall objective, as they sort of point out, is to make the thing more efficient because I think what they've noticed is there've been a lot of wheel spinning and an awful lot of people spending an awful lot of time on lesser matters that they shouldn't be doing. And so when you're sort of looking at the summary of this thing.

(03:01):

Now there's a clarification of regulators as the first point. It's their CAA, Civil Aviation Authority, and who we've had a bit of dealing with.

Gaye Francis (03:08):

Yes, we have.

Richard Robinson (03:09):

And their maritime regulator, whom we've had a little bit of dealing with. Their roles are more precisely defined.

Gaye Francis (03:15):

Ok.

Richard Robinson (03:16):

And much crisper. But then the next and most important thing is they say is focus on critical risk, which is something we've hammered.

Gaye Francis (03:23):

For a very long time.

Richard Robinson (03:24):

Very long time. And they define critical risk. I mean, there's a whole lot of definitions at the back about amusement rides and things like that and crane movements in particular, which presumably...

Gaye Francis (03:35):

Will be an output from the Auckland incident.

Richard Robinson (03:37):

I did notice that WorkSafe Australia has just got a call for action on-

Gaye Francis (03:42):

Crane movements.

Richard Robinson (03:43):

At ports.

Gaye Francis (03:43):

Right.

Richard Robinson (03:44):

So it's a popular subject. But the other definition of critical risk is basically, I mean, they've got better words to cover it, but it's kill or maim. If it can lead to a death, then you're meant to have it under control. That sort of led onto a little supplementary point is that they also then say that they define a small PCBU and a small PCBU is 20 people or less.

Gaye Francis (04:11):

Right.

Richard Robinson (04:11):

Small PCBUs only have to focus on the critical ones.

Gaye Francis (04:15):

Okay. So any issues that can kill a maim, the small PCBU has to just do that. For larger organisations, they have to prioritise the critical ones, but still have processes, governance processes in place to manage the other.

Richard Robinson (04:29):

Yes, but it's not an offense to failure to prioritise because presumably you're going to still do them all.

Gaye Francis (04:34):

Yes.

Richard Robinson (04:35):

Although our frustration is that people get lost in the detail and after a while, just ignore the big rare one, which is the one they really want you to focus on.

Gaye Francis (04:43):

And I think the question still comes up, especially in the consulting work that we do. It's really that question of credibility. When something is so rare, we often get the pushback of, do we really have to worry about this because it's so rare that it's not going to happen. So that likelihood argument still creeps in even when they're determining critical.

Richard Robinson (05:08):

Oh, well, this amendment's quite clear, if it can kill or maim and it's possible, then you've got to do something about it as far as I can tell. It does say that they clarify overlaps with the legislation, which wasn't totally clear to me. What they're saying is that the Work Health and Safety Act is not meant to be a backstop to public health.

Gaye Francis (05:32):

Okay.

Richard Robinson (05:33):

But that doesn't mean ... I mean, for example, one of the examples they sort of give is if in order to get to a recreational area, somebody has to walk over private land like farmland or something like that. The mere factor walking over the farmland doesn't create a liability for the farmer. But obviously if the farmer runs the poor character over with a tractor, that's the consequence of work. So you still have to consider those sorts of things. So they're being very clear about what you're trying to do there.

(05:57):

The other thing they do is they clarify the duty of a director. In our work health and safety legislation, it says, demonstrated due diligence includes these six points." Remember, between the penultimate and the final they changed one word. Although all the lawyers keep telling us, if it's not in the Act, then including something else would be hard to do, but we're not lawyers, so you can check that one. But when they define it, they actually then define it and I'll sort of go (through).

Gaye Francis (06:28):

This is in the (NZ) amendment bill.

Richard Robinson (06:30):

This is in the amendment bill.

Gaye Francis (06:31):

Yes.

Richard Robinson (06:31):

They basically say that ... Well, there's two parts. The first part was that I'm not quite sure why they thought necessary to do this, but if you had a duty as a worker and an officer, your duty of an officer took precedence.

Gaye Francis (06:44):

That seems logical.

Richard Robinson (06:46):

One would've thought so, but I guess if it's not clearly stated...

Gaye Francis (06:49):

It can be argued.

Richard Robinson (06:51):

And then in the section on due diligence, they now say due diligence means taking reasonable steps to understand the nature and operations of the PCBU, the hazard and risk associated with operations and work health and safety matters as it generally applies to that business. And then in terms of controlling these things to ensure that the PCBU has available to use and uses appropriate resources and processes, has appropriate process for receiving considering information, has and implements process for complying with any duty and part C is your favourite observation to verify the provision of these resources and processes.

Gaye Francis (07:28):

I think that's a really interesting one because we often get asked the question about doing these things and what controls go in place, but then what's the quality assurance around it to make sure what you say you're going to do, (a), is actually done, but also is maintained to a level that ensures that effectiveness of that control. And I think when we talk to boards and things like that, they sort of, "Oh, it's done and dusted," and you move on to the next thing because they've got a long list of things to do, but they've got to keep asking the question, "Are all of these things remaining in place?" And that comes down to that governance process that you've got. And all of these things are interlinked. And they're still being done in silos, I feel, in organisations.

Richard Robinson (08:17):

I think you're right. And it always fascinates us. You see a lot of risk registers and a failed control is a line in a risk register rather the quality thing. Although I do think, I mean, this is the case, and I suspect that's why it's in the Act. If you've got a control and somebody's dead because the control failed, all hell breaks loose.

Gaye Francis (08:36):

It has to.

Richard Robinson (08:37):

And that's why I think they're specifically listed in the legislation. What they tend to do is put in things, something bad happens, and then what they tend to do is put in what they felt ought to have been in place to make sure that they ought not to have happened.

Gaye Francis (08:51):

Yeah, right.

Richard Robinson (08:51):

But that's why it's a sort of moral philosophy thing. And it's a bit strange because you're trying to make a moral imperative. I mean, I think when you talk to anybody about it, it's self evident. The failed control's got to ... Somebody's got to suffer.

Gaye Francis (09:06):

But I think there's two interesting parts to that because when we go and talk to boards sometimes, it's sort of like, are they getting the right information about the critical issues? And then I think the second step is what are the critical controls in place to manage those issues and what's your quality assurance process and procedure around that to ensure that they're being sustained? So even though the board might not have a detailed understanding of those, they have to have the tools and be able to ask the questions to make sure that that happens. So it's that verification step of both the critical issues, the controls, and what makes us confident that they're being sustained and implemented properly.

Richard Robinson (09:49):

Yep. The last thing of significance, I think from the point of view if anybody's interested in these things, is really strengthening approved codes of practice. And they're basically saying that certain approved codes of practice, if you have implemented that code of practice, you have demonstrated due diligence.

Gaye Francis (10:06):

So that's for critical risks as well?

Richard Robinson (10:08):

Yeah. Well, I think the argument was, I mean, they've got a couple of examples here, but they're looking at obviously creating more of these approved ones to try and ... It's particularly for the smaller PCBUs. I can see how it's very, very hard for a small PCBU.

Gaye Francis (10:24):

To start from scratch. Absolutely. We've talked about the roles of standards and codes of practice and things like that. They're still lagging indicators. And in a world where technology is changing so fast, I think that could also be a little bit ... tricky.

Richard Robinson (10:42):

I think it's going to be a few test cases before they resolve that one, because if an approved code of practice has an obvious control or misses an obvious control that ought to been in place, for the life of me can't see, because the legislation still takes priorities. But again, if the legislation says-

Gaye Francis (10:57):

You rely on that code. I better guess this is our go back line, isn't it? You'd have to check that one with your lawyers.

Richard Robinson (11:04):

Every time.

Gaye Francis (11:06):

But we would probably just caution that as a black and white rule because codes of practice and standards are lagging indicators and often don't have the latest up-to-date thinking of what potential controls could be.

Richard Robinson (11:24):

That's correct. And the technology, the way the technology is changing out here...

Gaye Francis (11:28):

So fast.

Richard Robinson (11:29):

I mean, we're getting completely frustrated with Apple and Microsoft. This business is becoming an appendage to an AI in some form rather than having our own computing platform. It's just driving us crackers, but that's a common problem for everyone.

Gaye Francis (11:43):

So the New Zealanders really appear to be leading the way in this particular area.

Richard Robinson (11:49):

And we were reflecting on why might that be the case.

(11:52):

And you see, the Kiwis are a little different because they've got their Acts & Compensation commission, which is no fault. And that means something bad happens, then they've tried to patch the place up without blaming somebody particularly for it. Whereas we in Australia have always been pretty keen on common law actions, right? Now, our WHS legislation is basically a statutory statement of the common law duty of care. And obviously, I assume that if you're politicians and things like that or parliamentarian, you've seen a lot of people get hurt, and the common law didn't seem to be sufficient. You then elevate that to statute law to try and make those provisions or that philosophical and ethical understanding-

Gaye Francis (12:29):

More robust, I guess.

Richard Robinson (12:31):

Now, the Kiwis attended all their workplace relation ministers council and kept an eye on what we Australians are up to, left it for a couple of years, but then implemented their legislation in 2015. And I've got a funny suspicion, but having implemented it, some bad things happened and immediately started prosecuting.

Gaye Francis (12:48):

Successfully prosecuting as well.

Richard Robinson (12:51):

Successful prosecuting and convicting people. And they looked at that and said, hmm, we weren't expecting that robust a result. I mean, I think that's saying that if an Act exists and a prosecutor says, well, as far as I can tell, if I prosecute and I have a successful prosecution, I believe that's the duty of the prosecutor, the public prosecutor in those circumstances. So if it's a parliament you're not happy with that, then you've got to sort of tweak the Act to make it more precise so that you only prosecute the ones you want to prosecute, you don't prosecute people, which in a way that isn't helpful to society as a whole, because they're trying to stop that.

Gaye Francis (13:27):

The one they have been successful in is the White Island, I mean, they have been kill or maim incidents.

Richard Robinson (13:32):

Oh, that's certainly the case, but they're trying to work out, they sort of backed off from prosecuting individuals, but they still prosecuted the businesses.

Gaye Francis (13:40):

Organisations. I think it's also, there's probably been industry complaints or frustrations, I guess, that so much effort is put into the WHS space, work health and safety space, and you often don't see the results of it. You're putting all of this effort in...

Richard Robinson (14:01):

It's not being efficient.

Gaye Francis (14:04):

It's not being efficient. And you're right, you're getting lost in the detail and spinning the wheels for things that don't necessarily give you the biggest bang for buck.

Richard Robinson (14:13):

Bureaucratic administrative structures that are causing mayhem for the people to actually get on and do things.

Gaye Francis (14:17):

So this sort of one gives the tool. Well, it gives two things, I think. It gives people a tool to get on with the job, but it also gives those credible, critical issues that are often discounted by the likelihood so much that no one ever gets on with it. Even by, they don't even get to the stage of looking at what controls should be put in place.

Richard Robinson (14:38):

It gets too hard.

Gaye Francis (14:39):

It gets put in the too hard basket. And I think the little bit that we've read on the Auckland CEO was, yes, he was doing things around health and safety and hadn't quite got to this particular issue, although he knew about it.

Richard Robinson (14:54):

He knew about it, but I don't think he'd got on with it fast enough.

Gaye Francis (14:57):

So often, and that's what I was sort of trying to say. Some of these lesser things are taking so much time and spinning the wheels so much that you don't get onto those things that need to be prioritised and focused on, even though their potential, well, they could be rare.

Richard Robinson (15:13):

Yeah, that's right. But I think the other thing that's sort of puzzling me a little bit, I mean, they're trying to clarify and regulators and things like that, but in the end, the point is that stop bad things happening, and in the end, the duty is to demonstrate SFAIRP, that hasn't changed.

Gaye Francis (15:27):

Yes.

Richard Robinson (15:27):

And the question of who's going to prosecute whom after the event and in what court and what jurisdiction. At one level it doesn't matter. It's all about control. It's not about ownership.

Gaye Francis (15:36):

And controlling before the fact.

Richard Robinson (15:38):

Correct. And I think that's why there's some other confusions going on still around the place, which regrettably, I suspect it will take a court case to determine.

Gaye Francis (15:46):

Yeah. So interesting space at the moment in New Zealand. It'll be interesting to see if Australia goes down that path as well.

Richard Robinson (15:54):

Well, the way it seems to work, the four big jurisdictions have to get together and the lesser jurisdictions will follow along, but that's a complicated process.

Gaye Francis (16:02):

It is. It is and not one to solve today.

Richard Robinson (16:04):

No.

Gaye Francis (16:04):

So thanks for joining us today, Richard, and we'll see you next time.

Richard Robinson (16:08):

Thanks, Gaye.

Safety & Planning Law Complications

Risk! Engineers Talk Governance Podcast
Season 6, Episode 4

In this episode, Risk! Engineers Talk Governance, due diligence engineers & R2A Co-Director’s Richard Robinson and Gaye Francis discuss the complications of Safety Legislation & Planning Law.  

Drawing on their extensive experience across multiple Australian jurisdictions—including Victoria, New South Wales, Queensland, and federal government projects—Richard and Gaye discuss the challenges engineers and designers face when navigating competing legislative requirements. They examine why Work Health and Safety (WHS) legislation doesn't always take precedence in planning decisions, despite common assumptions, and how this creates significant complications for professionals trying to ensure safe outcomes.

Insurance Criteria: Its history, relevance, and the Highly Protected Risk (HPR) engineering process

Risk! Engineers Talk Governance
Season 5, Episode 4

In this episode, Richard Robinson and Gaye Francis discuss Insurance Criteria and its history and modern relevance, particularly focusing on the Highly Protected Risk (HPR) engineering process.

Richard shares his experience training with Factory Mutual in the US and explains how the HPR approach originated in the 1840s with Zacharia Allen, a cotton mill owner who re-engineered his facility to minimise fire risks. When his insurance company refused to offer discounts for these improvements, Allen created a mutual pool with other safety-conscious factory owners, establishing an engineering-based approach to insurance rather than a purely financial one.

The conversation explores key concepts like Normal Loss Expectancy versus Maximum Foreseeable Loss, highlights common design flaws in Australian Standards, and emphasises that engineers must think beyond merely following standards to truly understand what they're trying to protect. The episode concludes with takeaways about designing for specific needs rather than blindly applying Standards.

This conversation follows the R2A text Engineering Due Diligence (Concepts, Applications, Tools & Techniques) that can be purchased online.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss Insurance Criteria: its history, relevance today, and the highly protected risk process.

(00:18):

We hope you enjoy their chat. If you do, please give us a rating and subscribe on your favourite podcast platform. If you'd like more information on R2A's work or have any feedback or topic ideas, please head to the website www.r2a.com.au.

Gaye Francis (00:36):

Hi Richard, welcome to a podcast session.

Richard Robinson (00:38):

Hello Gaye. It's good to be back again.

Gaye Francis (00:40):

Back again. That's right. Today we're going to talk about one of the chapters in our larger book (text), the Engineering Due Diligence book, and we're going to talk about Chapter 5, Criteria and in particular 5.5, which is the Insurance Criteria and the history of it, which you're going to talk about in a moment, but also how it's relevant today. And we are particularly going to talk about the Highly Protected Risk engineering (HPR) process that's there. So over to you Richard. Give us a blast on the history.

Richard Robinson (01:14):

Right, Gaye, I wasn't too sure about that! Basically I'm just going to give a brief shot on what this HPR business is because I once upon a time trained with Factory Mutual a very long time ago in the US and actually I found it a bit more interesting than I was possibly anticipating because at that stage and being a fire engineer or anything like that was new and novel and nobody had a clue what it was. But from my point of view, basically derived from the Factory Mutual highly protected risk engineering approach. Now, the best way to actually explain it is just to explain how they started because once you understand the history of them, you get the drift. They are actually quite different to Lloyd's London, which took the wholly financial view of risk. Whereas Factory Mutual took the engineering view of risk and it basically started like this:

(01:57):

In the 1840s there was a bloke called Zacharia Allen and he owned a cotton mill. And yes, you can smile at me Gaye and that's nice. Anyway, when you rip the cotton seeds out of the cotton balls, you get a lot of friction, the highly combustible medium. So these things used to burst into flame. And the cotton gins are wooden, the factories are wooden, so what tended to happen was cotton mills burnt down a lot. And this fellow called Zacharia Allen didn't like this. So what he decided to do was to build a better cotton mill. And the way he did that is that he fire isolated the cotton gins from the rest of the structure. He actually gave his people equipment with which to put out fires and taught 'em how to do it, like a fire hose. And with massive wooden construction, you don't actually get a fire that burns the place to the ground. If you put the fire out, you just get a slightly charred timber and it works fine.

(02:46):

Having done all that, he then fronted up to his underwriter and said, look what a good thing I've done, give me a discount. And the underwriter said, buzz off the good pay for the bad, which is probably something you've heard in fairly recent times around the place. And so he said, if that's the way you feel about it, what I'm going to do is find other cotton mill owners or industrial owners who've re-engineered their facility to minimise losses and then we're going to pay what we're paying you, our existing underwriter into a mutual pool. And at the end of the insurance period, three, five years or whatever it is, we'll pay back to ourselves in profits what we didn't pay out on losses.

(03:23):

Now, as a concept, this is pretty simple, but it means you've got an engineered view of insurance, not a financial view of insurance. If you were The Lloyd's of London and which I have to say most of the Western world continues to sort of flow through a wholly financial view of insurance. It's just a matter of working out the odds. You can assure a burning building if you want to, as long as you've got the odds right. Whereas with Factory Mutual, they said: No, if you haven't engineered it properly in the first place, we won't insure you.

Gaye Francis (03:52):

They're very, very early days of safety in design.

Richard Robinson (03:54):

In effect. And that's the point. The Factory Mutual approach, it was always about control. It was never about levels of risk per se. That doesn't mean to say they didn't have reinsurance and all the other things that they do. Now, the other way they worked this out was because they still have an insurance view on life is that they then emphasised this business, the difference between, well, the way they defined it was normal loss expectancy, which is what the worst case loss should be if everything worked the way it's supposed to. In this day and age, that chiefly means automatic sprinkler protection. And then they defined the worst case, which is the maximum foreseeable loss, which was typically determined by blank firewalls or separation. And that would be the worst loss that could occur on site. So if you're a Factory Mutual engineer going to a site, you had to work out both these two things and obviously look at firewalls was the thing that could usually cause you the greatest grief.

(04:49):

Now in Australia, this is causing an awful lot of problems because we don't quite understand this. And from a financial law design viewpoint, it's pretty straightforward. I mean, if you've got a building that's worth a hundred dollars and it burns down once a year, well your annual loss expectancy is a hundred dollars per year. If you build a duplicate facility a hundred meters away and it can burn down without touching the other one, well that's $100 burning down once a year and that's $100 burning down once a year. That's $200 loss expectancy. But if you put the two buildings beside each other and don't have 'em separated, each one will take the other one down. When it burns down, you'll lose the lot twice a year, which means your lost expectancy is doubled.

Gaye Francis (05:30):

$400 potentially.

Richard Robinson (05:32):

And you can see why underwriters and people like that really want to work out what the maximum credible foreseeable loss is because that's what they really need to buy insurance and reinsure for. Now, as a design concept, this is pretty straightforward, but the trick is, and if you want to build the two facilities adjacent to each other, which from a cost point of view and land acquisition, all the rest of it becomes essential. You then have to put a firewall between them such that that firewall has the same effect as a hundred meter separation. And this depends what you're trying to protect. And Australian Standards and building codes don't really think this through very well for several reasons. First of all, they don't think about the load so much. They sort of go for a standard four hour firewall to something like that. Now standard four hour firewalls designed for a standard fire, whatever the hell that is, and there's a standard fire curve with a certain shape that you're meant to apply to a wall to see how it retains itself.

(06:24):

Not so relevant anymore because we don't do it much and we don't do much print anymore, but roll paper on end and when they print big rolls of paper or make rolls of paper, they just stack it up on top of each other on end. If one of those goes off, you can't put enough water on it to put it out. You cannot do it with sprinkler protection. You cannot do with fire hoses. You have to wait until it burns out. But that means your firewall has to be a 48 hour firewall, which you can design and build...

Gaye Francis (06:51):

But it's going to look very different to a four hour firewall.

Richard Robinson (06:54):

The other thing where Australians get it wrong because they tend to say that you can have a tired four hour firewall, which means you can have steel structures connected and a brick wall between it. Now this doesn't work too well. You've got to decide it so that when the site's burning down as the steel collapses, it turns into ropes and so it creates great tension. So you've got to design each side of the building to be able to resist that collapse forces on the building as it collapses, which is not an easy thing to do because you've got a dynamic fire on different loads and things like that. And the other thing which we get wrong is that way we design our automated sprinkler systems, we run the six and eight inch water pipes through the top of the wall. Now I can tell you the one piece of steel that's going to have its full strength is the one that's got cold flowing water running through it. That's one of the reasons why steel sprinkler pipe works well for sprinkler protection because once the sprinklers activated, that steel stays really cool and it retains its full strength. That means when your roof on one side collapses, it just brings the sprinkler pumping down and that rips the wall down. And the best part is that then takes out your sprinkler system on the other side of the wall.

Gaye Francis (07:59):

So you're saying all your controls go, your firewall, your sprinklers and everything.

Richard Robinson (08:03):

Correct. They sometimes wonder why Factory Mutual gives their insurance, reinsurance losses are pounding and the reason is because Australian Standards got it wrong and they didn't think it through. And then people keep designing to standards without actually thinking through functionally what it is that that firewall is trying to do. And it's meant to withstand burnout of whatever's on the other side of it. So if it's pig iron underwater, which is a Factory Mutual line, you still have automatic sprinkler protection with Factory Mutual even if you've got pig iron underwater, you still have automatic sprinkler protection provided, but that means the firewall possibly doesn't need to be as robust as some other occupancies that you might conceive.

Gaye Francis (08:46):

So it goes back to understanding what the issue of concern is.

Richard Robinson (08:50):

Correct. Now what's really strange about this is, I mean, Factory Mutual in Australia is based out of Melbourne, and that's the reason why the Risk Engineering Society, it started as a loss control section of the management branch of the Victoria Division of Engineers Australia. And it very nearly didn't join Engineers Australia. It was a very close vote. But that's the reason why it started in Victoria. What was interesting, one of my then business partners, Derek Viner coined the term risk engineering because he took it off the Factory Mutual kind of approach to highly protected risk engineering, and that idea just flashed around the planet in a way that the rest of us were slightly astonished, which was quite impressive.

(09:31):

But the other point I wanted to really make, which I think is sort of interesting from my point of view because I hadn't thought of it like this. One of the Factory Mutual's arguments in life is that you can't take somebody who's learned about Standards and then reteach them to become a Highly Protected Risk Engineer because they've acquired the bad habits. This is very much like the Catholic church. You've got to get 'em early, train 'em young, and then you'll keep them for life. Well, apparently you've got to take young graduate engineers, teach 'em the Factory Mutual approach and they'll keep it going for life. Which I suppose is my condition.

Gaye Francis (10:04):

That's probably right. And then I've been trained by you.

Richard Robinson (10:09):

That's one of the things because I had this fascinating conversation. Again, the Americans are very egalitarian, all this sort of stuff. You're at the research center in Norwood, Massachusetts, and they're running the courses. You get dragged there I think three times in the year that you're in America and you get trained there. And I was having lunch with one of the, just sitting there and one of the senior guys, I mean one of the very senior guys, one of the Vice Presidents of Factory Mutual turned up, and sat next to me and said: Who are you and why are you here? And I said, I'm an Australian having a good time. Thank you for asking. Because Australians, I was trying to explain to these Americans that we got a holiday for a horse race in Melbourne, they would not believe me. They actually would not believe me.

(10:54):

Anyway, I was talking to this fellow here and I said, look, all the stuff that you guys are teaching is great and it's really good stuff, but I said, you import people from all over the planet here. I mean, I was sharing flat with the span and then a Frenchman and the retention rate of we young engineers isn't high. This is a huge investment you people are putting into characters like us. And he said, yeah, that's right. That's what he said. And I said, why do you do it? He said, because you leave us and do good works and other places and Factory Mutual prospers.

Gaye Francis (11:29):

Right.

Richard Robinson (11:29):

I always thought, wow, the Americans always mystify me because they're so good in some places and other places, it just doesn't quite make sense. I told her that cartoon, they used to gave me the flip over the desk calendar and the generous sort of some Christian religious homily, and then you get to tax time and it says, next they're getting shot and missed, nothing's quite as satisfying as an income tax return. I thought only in America.

Gaye Francis (12:00):

I don't want to compare those two.

Richard Robinson (12:02):

I don't have a basis for comparison either. I do agree that tax returns are satisfying. But the point that what I was trying to say was that Factory Mutual was control focused and that's how they started and that's what they were trying to do, and they weren't relying on just the financial numbers, which the Lloyd's approach actually did.

Gaye Francis (12:21):

I think that's one of the key takeaways from this, but also that you can't just design to Standards.

Richard Robinson (12:29):

Correct.

Gaye Francis (12:30):

You actually have to...

Richard Robinson (12:31):

To think through what it is you're trying to achieve. And if you fail to do that nonsense arises and how much nonsense have we seen from Australians designing to Standards in recent times.

Gaye Francis (12:40):

And the Standards often don't apply or can't be applied to the actual situation that they find themselves?

Richard Robinson (12:50):

Well, just to, again, I don't want to bore people with Fire Standards and things like that, but in the US the Factory Mutual Sprinkler Standard is NFPA 13, which is the National Fire Code Sprinkler standard because it's an engineered standard. If they have a problem, something burnt down somewhere, they rack that material up, put it in their research lab and find out what sprinkler density actually is required. AS 2118, which is the Australian Sprinkler Standard, it might've changed a bit, but it started off from the Fire Officers Committee of the UK, i.e. the insurance committee, and it was a retrospective standard in the sense that if underwriters had a bad experience, they then increased the design density of the sprinklers.

Gaye Francis (13:30):

But it wasn't tested.

Richard Robinson (13:31):

It wasn't an Engineered Standard. It's just something that followed through. And that flows through to the way in which we design things. Remember how I said the firewalls and the sprinkler pipe takes it down? Well, again, it's got to do with scale, and the reason for this America just industrialised it. If Australia compared to America there for a while, we just are less than one state. We're little, right? We might be the 10th largest economy on the planet, but San Francisco and California, I think is the second largest economy out right now, isn't it?

Gaye Francis (14:06):

Not sure.

Richard Robinson (14:06):

Anyway, the point I make is that what they do is they put the water pipes around the outside of the plant so that even if the walls collapse, you can't lose your fire protection water. And it's just a different design process. But that depends on the size of your factory. If you're only building a small one, I'd stick to a Australian Standards. If I'm building a big one, I'd definitely go with North American Standards.

Gaye Francis (14:27):

Yeah, I think Standards might be a whole other podcast and the discussion that engineers have to have around Standards.

Richard Robinson (14:34):

Well, the funniest one though, and again, I was working at Factory Mutual at the time. I had a problem with the Fire Main, this was in Melbourne. They had a problem with the Fire Main and they were digging holes to try and find it and couldn't find it, and people were getting cranky and what's going on here. What had happened was the plant had been designed in Canada and had been installed in Melbourne. The pipe had been installed to be below the permafrost level. That's why it was so far underground.

Gaye Francis (15:05):

<laughs> Which it didn't need to be the case in Melbourne.

Richard Robinson (15:07):

It would've been lot simpler if it'd been a little bit closer to the surface.

Gaye Francis (15:10):

It does get cold, but not quite permafrost cold.

(15:14):

So a couple of takeaways. Look at what you're designing for. Have that understanding of maybe what's happened in the past doesn't necessarily represent what happens in the future. And be careful of Standards. But I think we might cover Standards in another podcast Richard.

Richard Robinson (15:32):

I'm sure that's going to be the case.

Gaye Francis (15:35):

<laughs> Well, thank you for joining us today and thanks for listening everyone. Bye.

Richard Robinson (15:39):

Bye.

Laws of Man vs Laws of Nature in the Due Diligence Context

Risk! Engineers Talk Governance
Season 4, Episode 4

In this episode, Richard Robinson and Gaye Francis discuss the differences between the "laws of man" and the "laws of nature" in the context of due diligence engineering. 

Drawing on their experiences as Expert Witnesses in the Australian and NZ judicial systems, the conversation covers the following key points:

• A brief history of Common Law.

• The adversarial system in common law, where lawyers argue different sides of a case before a judge or jury, differs from the inquisitorial system in civil law jurisdictions.

• The principle of "innocent until proven guilty" is a logical consequence of the adversarial system, rather than a fundamental legal principle.

• The Scottish legal system has a third verdict of "not proven" in addition to "guilty" and "not guilty", which the speakers suggest is a more pragmatic approach.

• Expert witnesses in court proceedings have a duty to the court rather than the party who hired them, which can lead to challenges when presenting evidence.

• Engineers need to manage the laws of nature first and then satisfy the laws of man in the courts.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss the difference between the laws of man and the laws of nature.

(00:14):

We hope you enjoy their chat. If you do, please give us a rating and subscribe on your favourite podcast platform. If you have any feedback or topic ideas, we'd love to hear from you. Email us admin@r2a.com.au.

Gaye Francis (00:33):

Good morning, Richard. Welcome back to another podcast session.

Richard Robinson (00:36):

Good to be here, Gaye.

Gaye Francis (00:38):

Today we're going to talk about the law and the differences in the laws of man, but we also have to relate it back to the laws of nature, which is really where the due diligence aspect comes from, especially for our type of work.

Richard Robinson (00:54):

That's right. In order to be safe or efficient or however you want to define it, due diligence means you've got to manage the laws of nature in a way that satisfies the laws of man. And the triggers, of course, the laws of man actually does vary a little bit from place to place, which can be quite confusing. Now, R2A does spend a fair bit of its time within the legal system. It's not something we actually choose to do so much as we get invited to do. So, for example, I spent some time at an expert witness case, the Supreme Court of Sydney with a fellow called John Agius Special Counsel. The judge hadn't read my expert opinion, so I had two hours just talking to him about various things, picking his brains as you do. And for example, that R2A sponsored the professor Law of Public Policy out from Cambridge in 2018. I think it was. Because he had a book out "Law As Engineering", and he was comparing what the lawyers do with what engineers do. And there are some significant parallels between the management of laws of nature and the way in which the laws of man goes about things and does things.

(01:52):

So what I thought might just be worth going through and making a few remarks about all this from the point of view of how engineers interpret what we've being told. Quite a lot of this is important in the sense that a lot of the principles the lawyers actually enunciate is a logical consequence of how things are done and how they've gone about it. For example, and I think we talked about this before, the way in which the adversarial system arose in the English common law system, it was King Henry II, they'd had a civil war. The king tried to extend the power of the king with these feudal lords who'd been on one side of the fight or the other before he became or ascended the throne.

(02:25):

And so he appointed his own Lord judges and those Lord judges took the book of common law and went through each of the fiefdoms acting as the judge instead of the previous Lord. And that means that English Law Lord had to have the same power and stature as the Duke or whoever was in charge of a particular fiefdom. And what they did was if they found the law that was common, nine out of 10 fiefdoms, then that was the common law which they applied in the 10th. Now, this has a number of direct consequences and you can pretty easily see that if you're a judge that just turned up from London on a circuit you'd never been to this place before, and some people having a dispute about something, how do you work it all out?

(03:02):

There's a couple of things you do. First of all, you are in charge of the law. Nobody else gets to decide the law. You might've noticed we were sitting in a VCAT tribunal just recently. The lawyers were having the discussion, we will decide the law, and our side was just a young couple and us. But when it came to laws of nature, that's when we came to the fore and how they were going to be managed. Now that's the first thing, the system, they hold onto that.

(03:27):

The next thing is that you do get this adversarial system because you turn up at a place you've ever been before. How does a judge come to a view about what ought to be done? And the answer is, well, the court has a court appointed representatives, barristers or lawyers, who put forward the case in a way in which the judge can understand and then they start to stash it out. And then legal arguments ensues. But it's meant to be reporting on what actually happened, the events in some constructive way. But that means those representatives have to become officers of the court. And when we're an expert witness, our first duty is to the court, not to the person who's paying us, which obviously breaks all the codes of ethics of consulting engineers. But that's the way it's done. I mean, I think it only eever happened to me once. The way it's supposed to happen is that when the other side discovers who the expert witnesses, they say, oh good, we won't have to hire ours. We'll rely on them. Doesn't happen very often, but it's very nice when it does.

Gaye Francis (04:27):

So you're working for the court and you're giving the information to the court to make an informed decision.

Richard Robinson (04:31):

That's correct. Now it's done on an adversarial basis. Now, this is where it sort of gets kind of curious because I don't know if you've ever watched Rumpole (tv show) and Leo McKern and all those sort of interesting cases, but he always had this thing about the golden threat: Innocent until proven guilty. Now innocent until proven guilty, it's not actually a principle in itself. It's just the logical consequence of having an adversarial system. Because when you go to court, the only way you can have a trial is if you plead not guilty or innocent, right? Because if you plead guilty, the trial's over apart from the penalty. So it has to be that way.

(05:08):

Now that compares itself to the Inquisitorial European, Napoleonic Roman law system where it's inquisitorial. Now if you apply that principle in an inquisitorial system, what are you going to do? Talk to the entire population to find out who's potentially guilty. The only way you could do it in Inquisitorial system is to assume that a certain pool of people are guilty and then keep asking questions until you've figured out which one probably did it.

Gaye Francis (05:32):

So you're proving that the others are innocent

Richard Robinson (05:34):

In effect, yes, but they're the consequences of the different process. It's not a special principle in itself.

(05:41):

If you choose to have an adversarial system, you must be innocent until proven guilty or you can't have the argument. Conversely, if you have an inquisitorial system, you must assume that which the guilty pool are and then prove each of them innocent.

(05:55):

Now that leads onto Scot's law, and I do admire the Scots in this one. I once did a course in Scotland. They were doing London leads in Glasgow a long time ago. And so I turned up in Scotland to give a course. And I didn't realise Scot's law was quite so different. You see in the adversarial system it's guilty or not guilty. The Scots aren't quite as trusting as that. They have a different opinion. They have three outcomes. You can be proven innocent, you can be proven guilty, or the charges can be not proven. Now, I think if you get taken to court and it can be shown beyond reasonable doubt it had nothing to do with you, that's an important finding. If the charge is not proving the Scots reserve the right to give it another bash at a later date if new evidence arises. It seems to me the Scots have a very pragmatic view of the law, which is superior to the English adversarial system. Guilty and not guilty that we...

Gaye Francis (06:53):

Have here in Australia as well.

Richard Robinson (06:54):

Yeah. Now, I'm all in favour of being given the benefit of the doubt and the idea that basically you've got to be proven guilty beyond reasonable doubt before you'd be put away for a long time and all those sorts of things. So you get the benefit of the doubt. But I think the Scots have got a much better understanding of what the possible outcomes actually are. And I would've thought if we were talking about law reform commissions in Australia, consideration to adopting the Scottish model would be something we should think about.

Gaye Francis (07:21):

Well, we've talked in a number of other podcasts as well and it's, it's not a justice system per se, it's a governance system that will go through the process. It'll be due process.

Richard Robinson (07:34):

Correct.

Gaye Francis (07:35):

And so that sort of feeds into that guilty not guilty...

Richard Robinson (07:38):

They do promise justice. They promise due process. Engineers' Australia's quote: What is a fact? Is it what actually happened between sensible and smart? Most emphatically? Not at best. It's only what the trial court, the trial judge or jury thinks happened. But the trial court, the judge or jury may be hopelessly incorrect, but that doesn't matter legally speaking. I used to think I was in contempt of court for that until I found that happy quote from Engineers' Australia. I assume they have good lawyers.

Gaye Francis (08:05):

So I think that's one of the interesting things, isn't it? You go on, and that would be our experience in some of the court cases that we've been involved in. You have very clever lawyers and some of the things that are presented are very focused in and targeted in a particular direction.

Richard Robinson (08:26):

Well, I better not talk about the case in particular, but I remember doing one in a county court, I think it was... There was a six person jury panel when I turned up to do my piece, which was a genuine surprise to me, and I couldn't figure out why until I sort of got in there in the afternoon. A different jurisdiction do things in different ways. In Victoria expert witnesses don't get invited till they're needed. Whereas when I was sitting around the Supreme Court in New South Wales, you get to listen to the whole proceedings, you know exactly what's going and just how rotten the other opposing barrister may or may not be. But in this instance here I was a bit nonplus because it wasn't a big matter and I was surprised to find a jury panel. Anyway, what I did was I pulled up my report to talk to it because in the past what I've discovered is your barrister and, quotation mark, sort of says, who are you and why might you be an expert? And all these different questions they ask you. And then they make you, what the expression is, read your report into evidence. And they'd take you through your report to make the key points and things like that. Now, I pulled my report out to get ready to talk to it in the witness box and the opposing barrister said: He's going to read from his report. I said, what?

(09:34):

And then I got kicked out, the jury got kicked out, and the two barristers were going hammer and tongs before the magistrate. A little while later we get called back in and I think I worked out what happened. You see in my report I had a series of photographs showing what had happened and I'd gone through the four tests of causation. And I said, based on this, my expectation, if this matter goes to court, then I would think that the plaintiff will win the case and the defendant will lose it.

Gaye Francis (09:59):

So you put a finding in there.

Richard Robinson (10:01):

I put a finding in there. Now as I sort of discovered there is a rule that an expert witness is not allowed to lead a jury to a conclusion. And that was a conclusion.

(10:14):

Now if it was just trial by a judge, which is what I was expecting. Whether or not I've drawn a conclusion or not, the judge gives no cognizance of that. They'll listen to my argument and think whether the argument's reasonable to circumstance and therefore the finding should go one way or the other. But when there's a jury involved, I'm not allowed to do that. So that meant the barrister on my side should have told me to take that out just in case trial by jury happened. But having left it in, if you did have trial by jury, that could not be led in evidence. So the reason why I came to that conclusion was because my photographs were allowed to be submitted to the jury when we all came back inside and the barrister asked me all the core questions that were in my report, but my report was never entered into evidence.

Gaye Francis (10:57):

But didn't ask you that final question. What are your thoughts on: What would happen if?

Richard Robinson (11:02):

Well, that's correct because that was not appropriate in front of a jury.

Gaye Francis (11:05):

Yep.

Richard Robinson (11:05):

But that means the entire legal system was set up and my report wasn't helpful to the defense, let's put it that way. So the opposing barrister thought they'd do something clever and panel the jury, get rid of my report, which didn't seem to work too well for them. But anyway, that cost an awful lot more money, consumed the time resource of a whole lot of our citizens. But that was the process.

Gaye Francis (11:25):

Yeah. So I guess just in wrapping up this podcast, there are different ways that the law can be interpreted and different ways.

Richard Robinson (11:37):

Jurisdictions.

Gaye Francis (11:40):

Thank you! So you just have to be mindful of that. But always in our work that we do, you're always managing the laws of nature first.

Richard Robinson (11:48):

Yep.

Gaye Francis (11:49):

Then in a way that satisfies the laws of man.

Richard Robinson (11:51):

Correct.

Gaye Francis (11:52):

So credible, critical issues, make sure all reasonable practical controls are in place.

Richard Robinson (11:58):

Indeed.

Gaye Francis (11:59):

Thanks for joining us again, Richard, and we'll see everyone next time.

Control & Reasonableness in WHS/OHS Legislation

Risk! Engineers Talk Governance
Season 3, Episode 4

In this episode, Richard Robinson and Gaye Francis discuss control and reasonableness in WHS/PHS legislation. 

They explain that the WHS/OHS legislation is a statutory statement of the common law duty of care and a defence against negligence, and that there’s two primary controls for negligence defence: no power defence (lack of control) and doing every reasonably practicable thing to address the matter. The aspect of control is built into the reasonableness decision in the legislation. 

The episode also covers:

• the importance of not getting caught up in arguments about responsibility and instead taking collective responsibility for addressing hazards. 

• Lord Atkin's question "Who is my neighbour?" and how the legal ruling relates to design process and retrospective design review. 

• the benefits of the due diligence approach in bringing key stakeholders together to collectively address safety issues. 

 The Criminal Manslaughter booklet mentioned can be purchase via our online store.

Read the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss Control and Reasonableness in WHS legislation (Occupational Health and Safety in Victoria). We hope you enjoy the episode. If you do, please give us a rating and also subscribe on your favourite podcast platform. If you have any feedback or topic ideas, get in touch via admin@r2a.com au.

Gaye Francis (00:34):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:37):

Hi Gaye. We're back again.

Gaye Francis (00:38):

We are back again. Today we're going to talk about control and reasonableness in WHS/OHS legislation. And this follows on from some recent reading you've done.

Richard Robinson (00:52):

Well indeed, although it wasn't that recent because we've stuck it in the update of our "Criminal Manslaughter - How Not To Do It" booklet.

Gaye Francis (01:00):

Recent, last couple of months, let's go with that.

Richard Robinson (01:04):

But this flows from the fact that as we've commented a number of times, the WHS legislation is actually a statutory statement of the common law duty of care and as a defense against negligence. Now negligence, and again, we're just responding to what lawyers tell us, in terms of a defense against negligence, there's normally two primary controls. The first is no power defense that you didn't have control of the situation. So basically you can't be held accountable for something over which you do not have control. And the second defense was then in all the circumstances, you'd done every reasonable practical thing to deal with this matter.

(01:39):

Now, I used to wonder in the WHS legislation, they'd never talked about control. It just talked about...

Gaye Francis (01:47):

Reasonableness.

Richard Robinson (01:47):

It had to eliminate hazards so far as reasonably practicable. And if you couldn't eliminate, you've got to reduce them so far as reasonably practicable. And it wasn't until I was re-reading a book by Sherrif and Tooma. Sherrif was one of the lawyers who helped draft the legislation and Michael Tooma is sort of the guru from Sydney on this sort of thing. Just for the record, the book is "Understanding the Model Work Health and Safety Act, and this is on page 19. And the point they make is that they did consider when they were drafting the WHS legislation where they should actually have a section about control and to the extent you had control. And what they basically decided was that from the point of view of determining what's reasonable, that the aspect of control is an aspect of that reasonableness decision.

Gaye Francis (02:31):

Or test. Yeah.

Richard Robinson (02:32):

Or test. And so they built it into it. Now as we commented, I think in our last podcast or one of the other ones we've done, what happens a lot for example is that when you've got a split control, people sort of say: Well, it's your job to do it, and, no it's your job to do it, and then nothing gets done. And you have this extended argument between the parties and eventually somebody's got to say: Well, enough's enough. You've all got responsibilities, you've got to get on with it. And ultimately, obviously it's the PCBU that has to pull the plug and say, enough guys, you've actually got, we actually have to do things. You just can't sit on a problem while you argue whose responsibility it is. And that was one of Barry Sherrif's core remarks when he first drafted the OHS Act in Victoria in 2004, or his report that led to that, was that you just can't keep arguing about it. You've got to get on with it.

Gaye Francis (03:21):

So bringing the issue of who has control into what can be done when you're deciding what the reasonableness of those controls are.

Richard Robinson (03:30):

Now, what really depressed me about all this was just how ancient this problem actually is. You see, I was re-reading something about Lord Atkin, the Brisbane born British Law Lord, well actually he called himself Welsh, Welsh Law Lord, and Donahue versus Stevenson. If anyone's particularly interested, there's a university professor from Saskatchewan (Canada), law professor who was writing up (that) when they get assigned a case, the judges write out notes and so forth. And they do that because if one of them gets sick and another judge has to take over, they get the assistance of all the previous notes. Anyway, in this Atkins actually explaining where he gets his famous quote: The rule that you are to love your neighbor becomes in law, you must not injure your neighbour, and the lawyer's question, Who is my neighbour? receives a restricted reply.

(04:19):

The answer is: You must take reasonable care to avoid acts or omissions which might injure your neighbour. Who then in law is your neighbour? The answer seems to be those persons so closely and directly affected by the act, they ought reasonably to have them in contemplation as being so affected when I turn in my mind the acts or omissions, which are called into question.

(04:36):

I'm glad you're enjoying this Gaye.

Gaye Francis (04:38):

Good job! Without even any prompts, I'm impressed.

Richard Robinson (04:42):

Anyway, the point I'm trying to make though, what I found particularly interesting is that the way Lord Atkin actually describes it, that's the quote from the parable of the Good Samaritan, that the lawyer's question: Who is my neighbour? That's actually the introduction to the parable the Good Samaritan. So this is a 2,000 year old question that the lawyers are asking. And the way he actually expresses it is actually as this design philosophy which we've been talking about, you've got to take into account your acts or omissions, which are called into question, meaning after the event when it's all gone horribly wrong and your acts or omissions are being tested to see whether you had or hadn't done what you ought to have done, that's actually the design review process. So he's taking a 2,000 year old lawyer's question and converting it to a design process. And that was 1932, so it's 2,000 years ago to 1932. And it looks like we managed to get this into the Australian parliaments in the form of the WHS legislation in, well, for the most part 2010. So I guess that's a good result. It just seemed like a very long time to me.

Gaye Francis (05:46):

So what we're sort of saying is that they've always looked at it in that way, haven't they? In that what could have happened and what have you failed to do and should have done? Was it reasonable to do so?

Richard Robinson (05:58):

So you've just articulated the basis of moral philosophy, how it ought to have been, and that's basically what it's all about. So I think we've been through this one before, but there's three broad areas of philosophy. Formal philosophy, which is logic, natural philosophy, which is science and moral philosophy, how things ought to be. And that's why the lawyers and the engineers abruptly align because if you just look at any sort of design process, the engineers are designing before the event, and then the lawyers conduct a retrospective design review after the event. And that also explains if anybody's wondering about it, why engineers seem to pick on each other a lot in court. Because basically if you are doing a retrospective design review, who are you going to hire as an expert witness to analyse what an engineer is previously designed?

Gaye Francis (06:41):

Another engineer is all you can do.

Richard Robinson (06:42):

Another engineer is all you can do. You can't do it any other way. So that's what has to happen. I remember talking to one of the people that we've been associated with and asked what you're doing. He said I seem to be mostly just doing expert witness stuff, chiefly against other fire engineers. And I don't whether that's a career move that you want to do, but these things happen.

Gaye Francis (07:01):

I think just touching on that point, that the WHS legislation was trying to move away from (it being) a single person's responsible for making all the decisions. And we've touched on this in a number of other podcasts, and I think one of the benefits of the due diligence approach is that it brings all of the key stakeholders into the same room to talk these issues through. So it's almost a collective responsibility rather than a single person having to take all of that responsibility for the design.

Richard Robinson (07:32):

Which actually drags them through another sort of 2,000 year cycle. If you care about these things. Well, because you remember in the way in which human beings make decisions? The first one's you ask an expert all on the one person, we actually swapped it around because normally we used to say there was the adversarial citizen system next, and then it was inquisitorial last. But in practice, the way the history of the legal system was, the first one was sort of one person deciding, in effect, arbitrarily. That's what an expert does. And then you had an inquisitor, which then asked a whole lot of people to decide who was responsible. It seems I've got... my new in-laws, one of them is a German judge. But obviously they're trained chiefly as criminologists because they have to go around and ask people to find out things. So it's a different, that's what the inquisitor process has to do.

Gaye Francis (08:23):

And then they come to a decision by themselves.

Richard Robinson (08:26):

Well, they can get some advice, but yes, but after having asked everybody. When you get to the last approach, you get a mob of people deciding together. That's what trial by jury is. And in a sense, that's what we've just done the last couple of times we had the best available knowledge in the room. We've gone to a structured process to pick their brains and then basically held up a mirror saying, this is what you said people, is this what you meant? The line: say what you mean, mean what you say.

Gaye Francis (08:55):

We've covered this as well in a number of podcasts. The two final questions that we ask in a workshop situation: Are there any other issues that aren't on the table that we need to discuss? And further, are there any other good ideas that anybody wants to put on the table that we should consider and that sort of sign off of the collective group? As you said, we've got the best available knowledge in the room. We've taken you through a structured process. We've tried our very, very best to get it right and we have been diligent.

Richard Robinson (09:21):

We've been diligent. We can still be wrong, but we've been diligent.

Gaye Francis (09:23):

We've been diligent. That's correct.

Richard Robinson (09:28):

I didn't have any last remarks. I think it's your turn to finish up!

Gaye Francis (09:30):

You don't have any last remarks this time! <laughs>

(09:33):

So I hope you enjoyed today's podcast based on some of the comments, from Tooma. So thank you for joining us and we hope to see you next time.

Richard Robinson (09:45):

Thanks, Gaye.

Safety Culture Change Agents | The role of engineers in change & safety

Risk! Engineers Talk Governance
Season 2, Episode 4

In this episode Richard and Gaye discuss their work as change agents for safety culture. They reflect on feedback after a recent presentation at the Australasian Marine Pilots Institute (AMPI) Conference, and how they reflected their importance in reminding industry of how to review safety.

They discuss that engineering is about driving change to improve safety, and that's what they at R2A do. Engineers are not supposed to do the same thing again and again and just focus on Standards. That you need to design for what you need to do and then you check against the standard to make sure you haven't missed anything. 

They also touch on Apto PPE, Gaye’s women’s and maternity PPE range (available online in our store).

Read full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to this episode of Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis talk about their work in due diligence engineering and how they are change agents for safety culture. We hope you enjoy the episode. Please give us some feedback and if you have any topics you'd like us to talk about, please drop us a line. Also, make sure that you subscribe on your favourite podcast platform and that you give us a rating. Enjoy the episode.

Gaye Francis (00:40):

Hi Richard. Welcome back for another podcast episode.

Richard Robinson (00:44):

Good to be here Gaye. Always entertaining!

Gaye Francis (00:46):

Always entertaining, always have a bit of a laugh! Today we're going to talk about safety culture change agents. And I guess just a little bit of an introduction for our listeners is Richard recently gave a presentation at an AMPI conference, which is the Australasian Marine Pilots Institute Conference, in Perth and we've had a good relationship with AMPI for a number of years now, probably over 15 coming up 20 years. And after Richard's presentation, he said: "I feel like a broken record. I've said the same thing over and over for a number of years. Are we actually still adding value?" And he asked this question, only Richard can to a number of people that he met at the AMPI conference. And one of the interesting feedback, and he shared it with me when he came back, was that they saw R2A as change agents. So they were trying to get a change in safety culture within their, either, organisation or profession in the industry. And the way that Richard explains it, and R2A explains it, gave them that way to be able to do it. So it was really interesting because I said to him "Well, are they all new people that haven't heard you speak before? So it's still interesting. Or are they still on the journey?" And the feedback was that partly there are new people coming into the maritime industry...

Richard Robinson (02:11):

Well particularly the overseas ones because the overseas contingent we had Finnish, Norwegian, French, English, the marine pilotage American Canadian, the actual pilotage around the planet was all there. And the thing they kept saying, all the innovation, all the changes coming from Australia, we want be here. And then, I think I told you, I showed you that picture of all the (women). The new president's female and the president of AMPI's female and all the female marine pilots. There was a cluster, I think we put the picture in our recent blog or something, I forget what it was. But anyway, it was really quite impressive. That was really the best session (females in marine pilotage). I was hanging around listening to that one, thinking these are remarkable people. They really were.

Gaye Francis (02:53):

So that was sort of, yes, there were a whole lot of new people there. And the other feedback that there was is that not only are there new people coming into the maritime industry, but it's really easy to slip back to the old way of doing hazard based risk assessment. And so somebody basically said: "No, no, no, we need to keep you around to keep reminding us that there's a better way to do it." And safety culture requires...

Richard Robinson (03:17):

This is partly because the IMO process has got the quantified risk assessment using targeted levels of risk and safety, in other industries known as ALARP, sitting around causing endless grief. I remember that paper we did, the safety case for Sydney Ports with the Captain Philip Holiday who was the previous Harbour Master Southampton and the IMO process using total as risk and safety just killed him. That's one of the reasons I think he was in Australia. And when we did our process with him, I mean it was just a breeze. He was just so pleased. That's why he let us publish with him.

Gaye Francis (03:48):

And I think we talked about it before that it's really about, it's not about the level of risk, it's are all reasonable practicable precautions in place. And that's why the SFAIRP approach works so well for these high consequence, low likelihood events.

(04:03):

So we sort of came back and said, alright, so we are adding value to these sort of industries and they're the change agents. And as consultants we can come in and I guess some of the work that we've done more recently with local council in particular, they wanted to change the way that they were doing their safety assessments within their organisation.

Richard Robinson (04:25):

And presenting the safety. I mean they'd wound up in situations as Sydney Decker makes the point, he's that airline pilot turns professor of psychology at Queensland University, he just points out there's so many rules out there these days that nobody, not even the people doing their job knows what all the damn rules are, which is really kind of weird. And he's absolutely correct. And the paperwork, and again this council was complaining about it, the paperwork they were getting, the people who are doing the job, third parties were writing it for these people to do it. They didn't understand, well, I don't think the people writing it necessarily properly understood what they were writing. And certainly the people receiving it wasn't a position to implement it or effectively or usefully. It was just paperwork everywhere.

Gaye Francis (05:05):

So it was sort of becoming almost a liability management tool, wasn't it. A butt covering exercise that we have all of these processes and procedures and policies in place, but is it actually making it safer for the people on the ground doing the job? And even a comment in one of our recent Engineering Education Australia courses was that: "We feel like as people that are putting these things together, we've got to tell the people that are doing the job about every single little thing. And at best they're getting skimmed over. At worse they're not even being looked at all." And so are we sending these...

Richard Robinson (05:45):

The big bad ones. The rare ones. The big bad rare ones.

Gaye Francis (05:49):

So are we actually sending these people up almost for a fall? We're covering our own... the people that are writing these things are covering their butts, but they're not necessarily making it safe for the people that are doing the job.

Richard Robinson (06:03):

And we've done this a number of times. We've sort of looked at people's risk registers for a particular issue or hazard and the one that can kill and maim them is right down the bottom because it's considered to be so unlikely it's not worth thinking about. Whereas in fact, that's the one you've really got to make sure you've got right.

Gaye Francis (06:16):

So, we've said this on a number of occasions before, your risk register should really have tens of items in it, not hundreds of items. If you've got hundreds of items in your risk register, you've missed the plot.

Richard Robinson (06:28):

And you want to rank it by consequence in the first instance.

(06:32):

Now the point about this is because if you're looking at what R2A does, we just sort of recognised we're change agents in the sense that people get us in to actually change the system and have a different thing. And once we've done our bit, we leave and we tend to only come back if somebody feels things are slipping away again and they need to bring it back. I know, I think somebody described us once as 'hit-and-run' consultants, if I recall correctly. We turned up, did our thing and we didn't try to just keep doing it on their behalf. Because, again, the whole point of the WHS legislation, for example, it's a governance document. That's what we've always been told. And the whole point of this is business risk management is a line management function.

(07:10):

Anybody who thinks differently is kidding themselves. And the whole point of legislation was to put the responsibility to the highest level of decision makers, the people who have control ultimately and everybody else who doesn't have that control, to the extent that you have control, you've got to do what's reasonably practicable. That's a governance framework. And so we sort of find the situation where you've got third parties actually doing it for people; they can be advisors but they can't take responsibility. And somewhere in there, something hasn't been getting... those two things are somehow getting detached.

Gaye Francis (07:40):

So what you really have to do is... We go in and facilitate that change, I guess, for them, and then hand over the results that it's theirs to run with how they see fit and implement.

Richard Robinson (07:53):

This actually is one of these things because I mean just from my point of view of my experience working with Gaye, if she gets bored, life gets really bad. So she doesn't like keep doing the same thing all the time. <laughing>

(08:03):

Now, but that's actually the reason why Apto PPE exists. And I don't know we've spoken about this before, but Gaye and a number of other women in engineering a while back basically decided they were a bit sick of going to a construction site or work site and having to get in male PPE in order to do an inspection. I've got some pictures of Gaye in male PPE, which I've sent to her husband.

Gaye Francis (08:24):

Not really flattering images. But that's all right, we were married by that time. <laughs>

Richard Robinson (08:31):

Yes. Right!

Gaye Francis (08:31):

And you're right, that was one of the reasons that we started Apto PPE. I was a part of Women in Engineering and we did (women's PPE) from a safety perspective: Is it really safe for females to wear male fitting ill-fitting PPE onsite? And so Apto was sort of born from that and we did it from first principles. We designed them for a woman's figure and that they were safe on site. So yes, that's sort of our...

Richard Robinson (09:02):

Well, I didn't get much choice in this. These women were down the back (of office) doing their thing. But what I have observed in all this, if you're a bloke who works with women, it's better having the women cheerful than not. <laughter> And I recommend it that they wear clothes that they feel pretty good in.

Gaye Francis (09:17):

And that fit properly. So yeah, always happy to talk about Apto. But that's probably an introduction to another podcast at a later date. But just going with this change agent, we really have seen a change in safety culture and the way that it has to be dealt with.

Richard Robinson (09:35):

Well, I suppose the other thing is, I didn't want to drag Gaye off to a place she doesn't necessarily want to talk about, but I've mentioned in the past we had David Howarth out here, Professor from Cambridge Law and Public Policy, R2A sponsored him together with the Victorian bar and he had the book out "Law as Engineering". But the point he was making, which is the point I've always made, it's about change, engineering's about change. And that's what he's talking about in "Law as Engineering". He's talking about design exercise to change things and engineering's about change, and that's what we do. And the business that engineering just does the same thing again and again and again. And it's all about standards and standards and standards. We spend our life overstanding standards. People keep saying we're designed to the standards; no you don't. You design for what you need to do and then you check against the standard to make sure you haven't missed anything. And anybody who thinks to the contrary is kidding themselves. Engineering philosophy is about, it's all about the process. That's basically the position. The meanings and the method, results are only consequences. And that's why I suppose we've always had this that we're not going to keep doing the same thing Gaye, we can't bear it!

Gaye Francis (10:35):

We'd both annoy each other, I think, Richard. But that seems to be exactly what you said. You're supposed to design to first principles, first design for what you want to achieve and then you check against the standard. But we've had a number of discussions with some technological organisations that are building infrastructure and rolling stock, at the moment that, no, we just designed to the standard.

Richard Robinson (10:58):

Well, there's a bit of... Some of the Chief Engineers are refuting that profoundly and saying: No, you design for what we need and then you check back against the standard.

Gaye Francis (11:06):

But it was very, very clear that there were two groups of thought in that. And the one that you designed to what you need first was in the minority, but he was very strong.

Richard Robinson (11:17):

But you might notice that was a lot of Europeans. Remember I gave that paper to the tunneling conference about 2016 and I tried to test the difference between the different approaches. And it's really got to do with Inquisitorial versus the Adversarial legal system. The adversarial legal system hammers the point that it's not just enough to do what you think is a good idea. You're trying to test to see if you've overlooked anything at all times. And so far as I could tell, I thought that was the whole point of western critical philosophy, but maybe I'm missing something here.

Gaye Francis (11:46):

Alright, anything else? Last thoughts on safety culture change agents?

Richard Robinson (11:53):

That's what we (R2A) do. So if you want (your safety culture) to stay the same, don't hire us. If you want to be different, we'll help.

Gaye Francis (12:01):

We'll help facilitate the process.

Richard Robinson (12:04):

And also, just make the record, we're not interested in doing it for you. We're interested in getting you to do it for yourself.

Gaye Francis (12:12):

It has to be embedded in your organisation, that's right. And you have to be willing to make that change and notice that there is a change and the difference between the two.

Richard Robinson (12:21):

Correct.

Gaye Francis (12:22):

So we hope you found our podcast today interesting. And we hope you join us next time.

Regulations & Licence to Trade

Risk! Engineers Talk Governance
Episode 4, Season 1

In this episode of Risk! Engineers Talk Governance, due diligence engineers Gaye Francis and Richard Robinson discuss regulations and licence to trade, the difference between the two and some of the confusion and difficulties it's causing for organisations, especially in major hazards.

In their chat, they highlight the need for organisation to have their legislative requirements met and also their license to trade, and that managing and balancing both in an effective and efficient way is a big battle. And, ultimately, it doesn't work long-term to simply satisfy the regulator whilst ignoring the legal (legislation) issues.

Transcript

Megan (Producer) (00:02):

Hi,; welcome to this edition of Risk! Engineers Talk Governance. My name's Megan, and I'm a producer of the podcast. In this episode, due diligence engineers, Richard Robinson and Gaye Francis talk about regulations and licence to trade, the difference between the two and the confusion and difficulty it's causing for organisations, especially those that work in major hazards.

(00:35):

You can listen to the podcast across all major platforms, including Apple, Spotify, and Google. And if you enjoy the episode, we'd love you to give us a rating to help us spread the word.

(00:49):

Enjoy the episode. If you have any feedback, we'd love to hear from you.

Gaye Francis (00:55):

Good morning, Richard, and welcome to another podcast.

Richard Robinson (00:58):

Morning Gaye. We're just rolling on from the previous one, which we've never done before.

Gaye Francis (01:03):

That's all right. We thought we'd talk about regulations and licence to trade and the difference between the two and some of the confusion and the difficulties that it's causing for organisations, especially in the major hazards facilities. And the difference between that. So I guess where do we start?

Richard Robinson (01:26):

Well, I guess I'll explain what the issue is. Particularly this flows from the WHS legislation and particularly since the WHS legislation is the enabling legislation for major hazards and high risk work generally. And an awful lot of regulation has been made around this. Now, the difficulty you have is that the WHS legislation basically has a hierarchy of two in its hierarchical controls. You've gotta eliminate risks to health and safety, and if you can't eliminate them, you've gotta reduce them all so far as reasonably practicable.

(01:55):

But then when you go and look at what the regulators are doing, they're all using this risk-based approach. And particularly, for example, if you consider the hierarchical controls of most jurisdictions, most of 'em have got six (hierarchy controls). They talk about elimination, which is obviously the highest one, but then they usually go through substitution, isolation, engineering, administration, and PPE. I think that's one that's about six.

(02:17):

Now, the difficulty there is that the legislation's clear the hierarchies too. Eliminate or minimise, yeah. When you act as an expert witness, the thing you find out fairly fast in which we've always done and all the barristers and all the expert witness cases before all the Supreme Courts, which we've done these cases before, it's broken into three. You eliminate, you prevent it from happening. And if it does happen, you then reduce the scale of the outcome.

Gaye Francis (02:42):

Which is mitigations.

Richard Robinson (02:44):

Which is mitigation. So there's crash-worthiness in the cars and airbags, whereas for elimination is let's not have have cars and road at all. And prevention would be Elon Musk's self-drive cars because you don't have to rely on people after that. We'll just keep you away from the accident althogether.

Gaye Francis (03:01):

I guess what Richard's trying to say is the engineering aspect of hierarchy controls can work in all of those three. It can eliminate the hazard, can prevent it from happening, and it can mitigate the consequences. So it never quite made sense to us that hierarchy control of six or seven, because engineering could fit into a number of places depending on what you were talking about and what the control was.

Richard Robinson (03:27):

Well, it always did. That was one thing. I've never; it's never made sense to me why engineering was deleted from those other ones. I could never figure out why that happened. But from the point of view of the judiciary, it's only in three categories anyway. Now, the only jurisdiction we're aware of that's sort of got three categories is Queensland. Victoria's got four. Western Australia and New South Wales prefer the six, as does Comcare (Federal Government). Although I have noticed in New South Wales, they've been looking at obviously the Queensland version of three. But even that doesn't quite line up with the...

Gaye Francis (03:59):

Because they've still got substitution isolation engineering in that middle box. That level two. And then they sort of put their admin and their PPE in the lower level of a level three control.

Richard Robinson (04:10):

But the real point about this, and this is from the point of view of being expert witnesses, what this means is that in order to get a license to trade, you've gotta satisfy your regulator. So your regulator says, I want you to do these things, or they ask you to do prepare safety cases in certain ways. So you do all these things. But if you are filing that hierarchy control, that's very likely to be not consistent with the hierarchy control as articulated by the legislation.

Gaye Francis (04:35):

And I think a lot of the regulators are actually specifying in some of those safety cases and in those requirements of boards that the process is actually in line with ISO 31000, the risk management standard. And so not only are the hierarchy controls at odds with the legislation,

Richard Robinson (04:54):

And the common law as interpreted by expert witnesses,

Gaye Francis (04:57):

But also the process is in contradiction. So you've got organisations spending a whole lot of extra time doing something to get a license to trade, which doesn't necessarily meet their legal and their legislative obligations.

Richard Robinson (05:12):

Obligations.

Gaye Francis (05:13):

<laugh>, thank you. I was a bit tongue tied there for a minute. Um, so it's creating a whole lot of extra work for these people for very, very little value.

Richard Robinson (05:23):

But it's more problematic than that. You see if, and particularly in major hazards who've been using the quantified risk assessment approach. We're, we're about to, we're giving some pro bono advice to somebody at Melbourne, for major hazards, and the fact that, I think they, the major hazard regulated Victoria suddenly lifted their game and realised that it's all about consequence and the SFAIRP obligations, because remember, major hazards is enabled by WHS legislation. And so you get this silly situation that it really is bizarre. You're gonna have to spend all this money to get a license to trade, and then you have to do all again in order to make sure you satisfy your legal obligations under the common law and the WHS legislation or in Victoria, the OSH Act.

Gaye Francis (06:05):

And I'm not sure that the board and the senior executive understand that those two processes contradict each other.

Richard Robinson (06:12):

But they only understand when... Remember I told you about that... we were there for that rail operator. He was fretting about locos on Code Red days, diesel locos starting bushfires from the cinders from the stacks. And remember we had the lawyer on one side, the risk manager on the other side, and us from the middle, and we finished our little presentation and the GM looked to his lawyer and said, is what these two just said, right?

(06:38):

And the lawyer said, yes. That's the point at which he told us we were under privilege, and he turned to the risk manager and said: "Fix it".

Gaye Francis (06:46):

So from a top down viewpoint, and as risk advisors, I guess we always tell our clients to make sure that you satisfy your requirements of the legislation first...

Richard Robinson (06:54):

And get your lawyer standing with you once you're doing it.

Gaye Francis (06:57):

...to make sure that they agree with that. And then you do the extra parts, you know, by exception, that's required in the license to trade aspect.

Richard Robinson (07:06):

Correct. And you in that order.

Gaye Francis (07:08):

You do it in that order. And that sort of still brings you workload down, but if you do it the other way around or is two separate processes, you're potentially setting yourself up for a fall because you can come up with two very, very different results.

Richard Robinson (07:21):

Ah, but it's actually worse than that because if you've actually got yourself a risk manager, so-called who's taken responsibility for this thing, and therefore the decision maker, it actually creates a blockage to that understanding to the board. And that's been our experience of briefing the boards.

Gaye Francis (07:35):

Yes. That they don't have an understanding that there's two different requirements.

Richard Robinson (07:39):

You might recall we were just doing it for the very large international miner of which there were two on the planet from an Australian perspective, and we weren't allowed to speak to the board or senior management until the lawyer confirmed that what we were saying was the way to do it.

Gaye Francis (07:53):

Mm-hmm. <affirmative>. So getting in engineers...

Richard Robinson (07:56):

We did 13 briefing sessions, I think, didn't we?

Gaye Francis (07:58):

We did end up doing a lot of briefing sessions for him, so he was obviously happy with what we were saying and happy for his troops to do it.

(08:07):

But coming back to that, you know, I think there is a misunderstanding or a lack of understanding between the two processes and the requirements of that. And engineers, and I guess the risk advisors in organisations have that responsibility to bump it up to the people that can make the decisions. We understand that organisations have to work within their regulatory framework, but it can't contradict the requirements of the legislation either.

Richard Robinson (08:34):

And that happens more often than you might believe. So it's back to the original purpose of this. You need to do two things. You need to satisfy your duties, your governance duties under environmental, corporations law, WHS legislation, the mind of the corporation via the CEO

Gaye Francis (08:55):

And the board

Richard Robinson (08:56):

and whatever the organisation is. And in addition to that, you need to satisfy your regulator in order to get a license to trade. As it's been pointed out in the past, you know, being a board member and being in jail is not a good result.

Gaye Francis (09:12):

No. So we hope you found that chat. Interesting. We've got a few more chats that we will roll out over the next couple of weeks. And if you've got any comments or questions and other ideas, we're happy to hear.

Richard Robinson (09:27):

One of the points we're just having this chat, obviously, and we hadn't particularly planned this because it had been our experience that Gaye and I have these conversations and this office about various points sometimes to Gaye's surprise...

Gaye Francis (09:39):

Some random discussions, yes, do happen to in our office, Richard.

Richard Robinson (09:42):

Yes. But it actually is directed at critical issues that in governance terms that organisations have to live with.

Gaye Francis (09:51):

And you have to deal with both of 'em. You can't just satisfy you know, you need both, don't you? You need to be able have your legislative requirements met, but you also have to have your license to trade. So managing and balancing those two things in an effective and efficient way is a big battle for organisations.

Richard Robinson (10:11):

And I have to say, it's been our experience too, when you're working with clients where they've just been trying to satisfy the regulator, ignoring the legal stuff, it actually doesn't work long term. You just run into a wall.

Gaye Francis (10:21):

Mm-hmm.

Richard Robinson (10:21):

But anyway.

Gaye Francis (10:23):

All right. Thanks for joining us. Have a great afternoon.

Richard Robinson (10:26):

Thank you.