Delaying Decisions to Avoid SFAIRP

Risk! Engineers Talk Governance
Season 7, Episode 5

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis discuss Delaying Decisions to avoid SFAIRP (So Far As Is Reasonably Practicable).

Their conversation covers:

• if lack of a decision is the result of ignorance and poor governance rather than deliberate strategy

• how the elimination option often gets tested far too late in the design process

• why briefing board members and their legal counsel on WHS legislation obligations is often what finally moves the needle

• the example the case of the Port of Auckland's Chief Executive serve as a reminder that commercial priorities don't shield senior decision makers from criminal consequences

• if you're going to delay or decline a safety decision, you must document your reasoning thoroughly, revisit it regularly as circumstances change, and understand that sitting on a decision is itself a courageous choice.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers, Richard Robinson and Gaye Francis discuss delaying decisions to avoid SFARP.

(00:13):

We hope you enjoyed the chat. If you do, please support our work by giving us a rating and subscribing on your favourite 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 (00:33):

Hi Richard. Welcome to another podcast podcast episode.

Richard Robinson (00:37):

Good to be here, Gaye.

(00:38):

We were just commenting that you keep saying, "What are we going to talk about today?" And we pointed out that whenever we start one of these (podcasts), we never seem to run out.

Gaye Francis (00:49):

No, that's true. We always do have interesting chats. Well, I think they're interesting. Today's really a question that we're going to try and answer and discuss. We get often asked during our courses and also during the (live) forum about decision makers taking very, very long time to make a decision. And so SFAIRP then becomes, or an option becomes not reasonable because so much time has lapsed.

Richard Robinson (01:19):

Particularly, the elimination option or a preventative option becomes non-viable because you're so far into the design process that you can't go backwards. Or they've already committed initial construction and so forth. And remember we came across that chemical plant, they were doing a fast track because that was the thing to do. And they built the control room lunchroom next door to one of the key-

Gaye Francis (01:42):

Processing. ...

Richard Robinson (01:43):

Plants. And if that processing plant went wrong, it would take out the control room. And so they then had to knock it down and build it somewhere else. But that was an oil company, I think. And resources when you're in a hurry doesn't seem to be the same problem as other people.

Gaye Francis (01:57):

They probably got their money back for that one. So yeah, the concept that decisions are being delayed, so they don't demonstrate SFAIRP. And I think one of the key one is actually looking at for that elimination option. Elimination options are often tested quite late in the design phase.

Richard Robinson (02:18):

That's correct. But I think the question you are asking is, is this just accidental or is this actually a deliberate policy of some people? I mean, I generally have a theory that stupidity theories take precedence over conspiracy theories. And so for that reason, I tend to think, well, they've had this process that either they've used before or done before or they've just launched into it without thinking too hard about what it is they're trying to achieve. And we come across that a lot.

Gaye Francis (02:43):

Yes.

Richard Robinson (02:44):

Some quite big projects, often dealing with councils, perhaps. We've had some experience there where they haven't really thought through what this thing is supposed to achieve in terms of the critical success outcomes in a way that all the key players understand.

Gaye Francis (02:56):

Yeah, all the key stakeholders on the board.

Richard Robinson (02:57):

And one particular parties politically pushed it probably from their own silo's point of view. And from their silo's point of view probably makes a lot of sense. But if you don't take it from a holistic viewpoint, you can actually waste an awful lot of community resources for no great value.

Gaye Francis (03:10):

Yeah. So that's your ignorance, not deliberate, but then if you don't have that governance process in place that decisions go through and get punted up to the right level and then they're delayed.

Richard Robinson (03:29):

Well, it's also the Orwellian thing. That was the point I was sort of making, that ignorance is sort of knowledge and that if you sort of launch into something, you don't really know what's going on, you can push the system to a place that somebody who's pulling the strings would like it to be, and yet it doesn't really suit the community. But that's a really kind of Macchiavellan way to think about things or a Soviet way, perhaps.

Gaye Francis (03:52):

Yeah, maybe. And that's not what we've typically seen. I think some things for organisations just get put in the too hard basket.

Richard Robinson (04:01):

Well, some people have a focus on good intentions in their particular patch and just can't see anything else.

Gaye Francis (04:06):

But we have seen decisions being delayed for years, not just months. And we then do come along and are asked to resolve them. And I always say, I definitely need my fairy wings and my fairy wand for this particular one when they've gone along on for that amount of time. But what we have found with those sort of decisions is the safety decision often breaks through a lot of that stuff and taking the due diligence process and the governance top down process often cuts through a lot of the things that a decision can be made.

Richard Robinson (04:43):

Well, it's the safety imperative actually forces it because the criminal consequences are certainly focused on the senior decision makers, although I've got to ... And those who understand the significance of it are on the ball.

Gaye Francis (04:56):

Correct. But what we're finding is a lot of those decision makers don't understand the implications of some of the WHS legislation.

Richard Robinson (05:04):

And that's where we've found that if we brief whoever's the board or whatever they're talking about, their legal counsel and their legal counsel often they haven't thought about it that well either, which is a bit of a surprise to us because I mean, obviously we get beaten up by lawyers fairly regularly in different places, but they're saying, look, the SFAIRP is real, it's got to be done. Remember the first one we did was in Queensland with the tunnel and we were doing a SIL rating and it was the lawyer for the ventilation company insisted that we had to come back and do it the SFAIRP way rather than the old target levels of risk wave.

Gaye Francis (05:42):

Because the legislation had come into effect.

Richard Robinson (05:44):

And that was 2012 and the legislation passed 2011 commenced the first January 2012. So we got hit with this pretty hard, but we've been finding lately that, and only some board members are fully aware of this. And it isn't until the lawyer turns up to confirm that what we technical people are saying is legit, that that imperative is reasserted.

Gaye Francis (06:05):

And then they're looking at it from a liability management viewpoint. But if it gets the decision across the line, I guess that's what it is. But we are finding that that safety lens often doesn't come across in much of the work that's being done. And I think even if you go back to the example that we've used about Taupo and about the Black Star from the Pilots Federation for that incident, it was only when we started looking at all of the different users in that airspace and these were the controls that could be put in place that it actually cut through and that had been going on doing risk assessments for seven years.

Richard Robinson (06:42):

Yes. And endlessly, at great expense to all the players. And then, well, obviously the judicial process that was kicking in before you turned up.

Gaye Francis (06:49):

Yeah. And so I think by coming in with that safety lens and that due diligence lens, it sometimes stops organisations making or delaying decisions because on a purely commercial basis. And we always say to our clients: Oh, but that's expensive, but how expensive is it? And it's often very hard to get them to articulate the actual quantum of what expensive is when they're looking at a solution.

Richard Robinson (07:18):

Well, it's interesting because you might recall that the Chief Executive of the Port of...

Gaye Francis (07:24):

Auckland.

Richard Robinson (07:25):

Auckland got clobbered in the New Zealandi courts. And I've got to say, the NZ courts have been hammering the SFAIRP business particularly vigorously, and their legislation only commenced in 2015. But anybody who's in the port business in New Zealand is very much aware of the consequences of not acting when you know the issues are there, because that's what he got done for. It wasn't that any particular failure that it was a sequence, that is to say the commercial aspects...

Gaye Francis (07:55):

Were overriding or taking over some of the safety.

Richard Robinson (08:01):

It was a failure to address the safety aspect. And I mean, at the time, I assume the shareholders were particularly quite delighted with what he was doing, but the courts were particularly not delighted with the safety results.

Gaye Francis (08:15):

So I think delaying decisions in our viewpoint would be...

Richard Robinson (08:22):

Courageous.

Gaye Francis (08:23):

Richard likes the word courageous. And if you are going to delay or not do something, we always say it's much more important to document why you're not going to do it and have robust justification around that.

Richard Robinson (08:37):

Correct.

Gaye Francis (08:39):

The problem with that sort of stuff is the goalposts often change. So you've got to go and revisit these ideas. So delaying a decision for seven and eight years, you might say it's not SFAIRP at the moment for these particular reasons. And yes, it then moves on, but you have to have that argument upfront. I think you're putting yourself in a very difficult position if you're just saying, we're not going to address it and we're not going to make a decision around that.

Richard Robinson (09:06):

Well, one of the advantages in doing the way we do it with the threat barrier diagrams and things like that is you do put down all the possibilities, including things that might be emerging. You can recognise it's not current at the moment, like the ship's divers work we're doing with ... I mean, sending down an ROV, remotely operated vehicle, you have look under the ship before you send a diver down is obviously a very good idea because in a heavy sea...

Gaye Francis (09:27):

 You're not putting someone at risk.

Richard Robinson (09:30):

And going under a hull of a ship in a heavy sea is a particularly dangerous activity for a diver to do.

Gaye Francis (09:35):

I think that's sort of in two parts, isn't it? That's giving you your situational awareness and that becomes with knowledge a safety thing.

Richard Robinson (09:41):

With the ROVs you're getting these little nippers out there and they can probably untangle the propeller that previously a diver had to do.

Gaye Francis (09:47):

Possibly, possibly. So the reasonableness of some of those solutions is changing on balance potentially.

Richard Robinson (09:54):

Do you see what those drones in Ukraine are doing now and how many people they've rescued? You couldn't send somebody to save a soldier, but they can put them on a wheel drone and just drive them out.

Gaye Francis (10:06):

So I guess from an engineering viewpoint, because I think the complaints that we've had or the questions that we've had in our forum and online in the courses is that engineering decisions are made here, but they often have to be punted up to an executive level to make the decision. And that's where the decisions aren't being made. But is it enough for the engineers to say, we've made these recommendations on these basis, and then it's with the people that make the decisions, I guess.

Richard Robinson (10:36):

We're about to do that next week, if I recall correctly, with regards to the movement of large ships under a bridge that have previously fallen down.

Gaye Francis (10:43):

We are. We're going to test those arguments again to make sure that we're still SFAIRP. And I think that's that regular revisiting of the particular issues.

Richard Robinson (10:53):

And the elimination option is obviously practicable, but expensive. So the decision will be punted up again for review and the world keeps changing. What was previously expensive can sometimes have changed in cost. Other times, particularly the modern area, it's probably gone up.

Gaye Francis (11:10):

I think we just have to be careful that not all decisions can purely be based on cost either. We always say it's on the scale, so it's the reasonableness. So it's the difficulty and inconvenience of doing it, the cost and also the utility of conduct, what other things go missing because you adopt those course of action. So when we're doing it that balance, I think you got to keep it ... Often the commercial imperative drives it, but then I think you got to ... And that's the whole discussion of this particular podcast season is around the moral imperative versus that commercial reality and the context in which organisations have to do business.

Richard Robinson (11:51):

I agree that's what we say, but it was Justice Mason's decision in Wyingshire Council versus Shirt.

Gaye Francis (11:58):

Yes.

Richard Robinson (11:59):

Yeah.

Gaye Francis (12:00):

Okay. He's going to pick on me at the very end of the episode, but that's all right. <laughs>

Richard Robinson (12:06):

No, I'm just pointing out that we didn't dream that idea up. We adapted it.

Gaye Francis (12:10):

Yes. We use that as a decision making process, but often the decision is commercially focused when there's a whole lot of other things that should have been taken into account.

Richard Robinson (12:20):

But that's why having the lawyer with you who endorses that position from the high court of Australia means that you actually get an answer from a senior decision maker who previously they were just say, oh, let's go with the money.

Gaye Francis (12:31):

And that comes down to what we've talked about in other places, silos and being driven by other things. But I think from a moral imperative, the SFAIRP option or this delaying SFAIRP options, (are) very courageous and you just hope that something doesn't happen in that time.

Richard Robinson (12:53):

Yeah. And if you're a punter, you're probably right, which is the scary thing.

Gaye Francis (12:57):

It is very scary. All right. Thank you for joining me today, Richard, and we'll see you next time.

Richard Robinson (13:03):

Thanks, Gaye.

Could vs Should in Workplace Safety

Risk! Engineers Talk Governance Podcast
Season 6, Episode 5

In this episode, Risk! Engineers Talk Governance, due diligence engineers & R2A Co-Director’s Richard Robinson and Gaye Francis discuss Could vs Should in Workplace Safety. (Thanks Nick for your email, case reference and questions.)

They explore the critical distinction between what "could" have been done versus what "should" have been done in workplace safety, sparked by the SKM Services case against Magistrates Courts of Victoria, and discuss how experts often use hindsight to determine what could have prevented an incident, whereas courts must assess what was reasonably practicable with the knowledge available at the time.

Key take-aways include:

• The danger of hindsight bias in safety assessments

• Why documenting decisions not to implement controls is crucial

• The importance of collaborative risk assessment workshops over single-person sign-offs

• How due diligence protects both engineers and directors from liability

• Why safety decisions must be regularly reviewed as technology and circumstances change

Richard and Gaye reiterate that while you can't always be right, you can always be diligent—and proper documentation of your decision-making process at the time is your best defence if something goes wrong.

Article reference for SKM Services Pty Ltd v Magistrates' Court of Victoria & Anor [2019] VSC-460: https://www.claytonutz.com/insights/2019/august/court-clarifies-the-meaning-of-reasonable-practicability-in-ohs-after-finding-a-magistrate-has-misstated-the-test

 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 Could versus Should, which comes from a listener's feedback, and we thank Nick for your thoughtful email.

(00:17):

We hope you enjoy the chat. If you do, we'd love you to give us a rating and also don't forget to 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 (00:39):

Good to see you back again. Gaye.

Gaye Francis (00:41):

Yes, we just titled this one Could Versus Should, and we have been asked Could versus Should what? But we'll hopefully come to that as the podcast continues. And it really comes out of an email and submission that was sent to R2A by Nick. So thanks Nick. And he pointed us in the direction of a case that came out, which was SKM Services Proprietary Limited versus Magistrate's Court of Victoria and Anor. And it's a determination relating to reasonably practical and there was a lot of discourse around or discussion around the words could versus should. And he's actually pointed us to an article by Clayton Utz, and we'll put that on the bottom of this podcast as well, which has a really interesting discussion about a court making a decision of what could have been done versus what should have been done.

Richard Robinson (01:40):

Well, it was a magistrate's court and it got overturned on appeal. That's the point. And that distinction and the drawing out of that distinction was pulled out. Now we found it interesting because we obviously to give these sort of briefings and it's been based on a lot of legal input that we've been given. And it's probably fair to say as engineers we just sort of hold up the mirror and say the words, but sometimes not necessarily understanding exactly why the lawyers are telling us that way. And this particular one pops up because, and this is just the way we normally say it in our courses when talking about common law action in particular. You see something bad's happened and what happens is that all the experts pop up after the event. And with the advantage of hindsight, the experts say what could have been done if it had been done would it've stopped it going wrong. And as we point out, being an expert with the advantage of hindsight, is not that hard.

Gaye Francis (02:26):

No. You can usually figure out what should have been done

Richard Robinson (02:28):

Pretty obvious after the event, what could have been done, right? The court then determines the trial judge or jury then determines whether what the experts dreamed up after the event with the advantage of hindsight were reasonable in view of what was known at the time the decision is made. Because the court's not meant to use hindsight. It's meant to say, well, in view of what you knew at this time, what was reasonable for you at that time? And so this is where this test of reasonable practicability all comes in. Now, the magistrate's basically being criticised because the experts came up with what could have been done and possibly went too far in saying what could have been done with the knowledge of hindsight, should have been done in foresight, in effect.

Gaye Francis (03:11):

With the information that was known at the time.

Richard Robinson (03:14):

Well, that's the point. The appeal was all about saying, but we couldn't have known that with the knowledge we had at the time. And so the question of what should have been in place as opposed to post-event what could have been in place causes the confusion. And when you have a magistrate being overturned, I mean, we're engineers, okay? We don't spend our life in court. We just bob up every now and then and help.

Gaye Francis (03:37):

For some of these cases.

Richard Robinson (03:38):

And we always make the point that if you're an organisation, I mean our preferred modus operandi for any consulting work we do, which sort of nonplus is quite a few people to say, well, here's what we believe the process ought to be. So what we want you to do is to get your lawyers to agree in advance that this is the right way to do it. You might recall we did the hazard and risk analysis for the EIS for Western Sydney Airport. We weren't going to touch the job till the Australian government solicitor agreed with our approach.

Gaye Francis (04:08):

So it comes back to that due diligence and governor's approach, doesn't it? And I always say to our clients, I think it's more important to document why you're not going to do something as to why you are going to do something. And that leads to that reasonably practical sort of argument at the time. This is the knowledge we had, these are the constraints we were working in. These are the controls that are available at the time. And these are why we're going to do these ones and not these ones.

Richard Robinson (04:35):

And that's why we always make the point that at the end of your workshop session, and that's why you can't go doing risk assessments and isolation by one person just signing off on a target level risk or something. It's got to be a workshop group where you have assembled the best available knowledge you can in the room. You've gone through a structured process to work out what the issues of concern are and what the possible controls could be. And then in the circumstances you work out what should be.

Gaye Francis (05:05):

So you're really putting together your pre-court argument if anything happens to go wrong.

Richard Robinson (05:13):

Yeah. That's what due diligence is about. Because due diligence is not an engineering concept, it's the legal concept and that's the whole point. But the really important thing is that designers have to do this now, and if the designers get it right, then your directors by-the-by who are generally happy with the outcome, but are protected as well from this criminal manslaughter business, which obviously absolutely the liability aspect. Which I mean if you talk to an engineer, that's the secondary aspect. But if you're a director, perhaps not.

Gaye Francis (05:40):

Probably your primary aspect.

Richard Robinson (05:42):

And that was the other point we made to those young engineers. Any design that you do or any work that you do, you do it in such a way that you positively demonstrate due diligence, you're worth your weight in gold to your organisation, and those directors are really pleased to see you. It's really getting right.

Gaye Francis (06:00):

So we say this as well a number of times, you can't always be right, but you can always be diligent. So it was an interesting discussion and that being highlighted in this particular paper that was sent through to us about that could and should, the differentiation between the two.

Richard Robinson (06:18):

And the fact that the engineers have a hard time, well, obviously magistrates get it wrong too, and they've done a lot more legal training than we have.

Gaye Francis (06:25):

True. But if you go down the due diligence approach that we suggest you do and you do document why you are not going to do something at the time.

Richard Robinson (06:33):

And you wave goodbye to your lawyers when you're finished, it's a worthwhile thing because if the lawyer gets it, and we sort of say this, lawyers don't like signing off on things, but if the lawyer sits back and looks relaxed with what you've done...

Gaye Francis (06:45):

They're usually comfortable.

Richard Robinson (06:46):

They're comfortable they can explain it in court if they need to after the event and you've been diligent. Whereas if your lawyers sits forward and looks anxious, and that will probably be the case, we've got a single designer just signing off.

(06:57):

As we've said in the past, we're a bit wary of the registration of engineers. I mean Engineers Australia and so forth wants it from the point of view of enhancing the reputation of engineers, this, that, and the other thing. But when we look at it, it does seem to have the overtones of this makes it easy to get an engineer -- it's a blame thing, if the engineer is willing to sign off at it. And you might recall that job, which perhaps I won't talk about, where we got hauled in when there's a fight between the insurer and the client, and the lawyers turned up, and two sets of fire design engineers turn up. And we sort of went through the due diligence obligation, the WHS Act, and both parties have to understand their duties and all the rest of it. And the lawyers agreed that was right, and therefore the design concept was put forward, which the engineers could sign off on. Otherwise the engineers were required to sign off on the whole decision making process, which they simply weren't in a position to do. Remember one of those engineers said: It's a good thing you guys turned up, we were going to walk.

Gaye Francis (07:52):

Yeah. So back to all of that stuff, it's a governance process, isn't it? So making sure all the key stakeholders that are involved that it's a collective decision is made for the benefit of safety or all parties.

Richard Robinson (08:06):

Disproportionality for the benefit of safety.

Gaye Francis (08:09):

I will just say though, that should and could, one, I think you have to be careful that it's not just a decision made now, especially if additional controls seem to be not reasonable at the time. Those controls need to continue to be tested as time goes on.

Richard Robinson (08:26):

Yes. Particularly if ones sort of was on the cusp.

Gaye Francis (08:29):

Yep.

Richard Robinson (08:29):

And you said, well, it's not reasonable now, but given another couple of years, particularly where technology's going, it may well be.

Gaye Francis (08:35):

So you have to keep testing those decisions or so far as reasonably practicable decisions and document. But we would recommend documenting why you're not going to do something would help with that should and could argument.

Richard Robinson (08:50):

Yep.

Gaye Francis (08:51):

All right. Thanks for joining us today, Richard, and we'll see you next time.

Richard Robinson (08:55):

Always a pleasure, Gaye. And yes, you should listen to one of your podcasts.

Gaye Francis (08:59):

<laughs> I promise. One day.

Why Standards are not the Solution

Risk! Engineers Talk Governance Podcast
Season 5, Episode 5

In this episode, Richard Robinson and Gaye Francis discuss why Standards are not diligent solutions for your governance obligations.  

They explore why following Standards can be problematic, outlining key issues: 

1. Using Standards out of context;

2. There’s no explanation for rationales;

3. They don’t cover all things; and

4. They are often lagging indicators.

They share a number of examples within SIL, AS1940 and AS61508 that demonstrate the issues if you do blindly follow the Standard. 

The episode concludes with their answer to an often asked question: If you don't design to Standards, how do Engineers design? 

The text they mention is Engineering Due Diligence (Concepts, Applications, Tools & Techniques) that can be purchased online.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss that Standards are not the solution.

(00:13):

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.

(00:32):

And we do apologise for any background noise. We've done our best to remove it in the editing process. Thank you.

Gaye Francis (00:41):

Hi Richard. Welcome to another podcast session.

Richard Robinson (00:44):

Hello Gaye. It's good to be here.

Gaye Francis (00:46):

Just before we start, we've just noticed a bit of construction noise outside, so we apologise for that if it comes through in the background. We just had an observation last week that there was some noise coming through some of our podcasts. We are in an office space that's shared and sometimes we get some background noise from the corridor and outside. So apologies in advance for this particular session.

Richard Robinson (01:11):

For those of you who care about these things, we actually do try to minimise this because we're using a Rode podcaster too. And these are PodMics which are dynamic mics, which are obviously close field proximity devices to deliberately use to avoid background noise. But nevertheless, if there's enough noise out there, it will come through.

Gaye Francis (01:28):

So that was just a little bit of introduction, but today's session we're going to talk about Standards are not the solution. Now, we've talked about this probably a number of times in different podcasts throughout our seasons in different ways, but we're trying to bring some of this together because we're still finding that it's a big problem in industry. And some of the issues that we're asked to solve is because people rely purely on Standards.

Richard Robinson (01:55):

And we don't get it because I mean there's two fundamental problems here, well maybe three depending on how you look at it. But the first one is that people use Standards out of context, and that one I think is the one that mystifies us the most. And we'll give some examples of that. But I might just articulate those three. The first one's out of context. The second one is the Standard doesn't explain why that decision was made in the Standard. I mean, I keep coming across Standards to say the separation distance should be this. Well, was that based on tests or some conceptual design?

Gaye Francis (02:28):

Or a random number?

Richard Robinson (02:30):

Or random number? I mean, one of the ones I think I might've told you, I was coming back from a fire conference with Ted Ramsey from CSIRO, I forget why, but we're in the car together driving back and we were talking about standards and standard tests and things like that. And he was explaining this as one of the more delightful ones where the Americans devised this test for smoke development and basically they had this little chimney stack, which if you happen to measure with various Heinz cans on top of each other and you've got a small sample that you put on the bottom of this chimney stack, and then you put a sort of defined heat source underneath it, and you saw where this created certain amount of smoke coming out of the stack. She said there was one particular substance that burst in such violent flame that it belched out the front and didn't go out the stack at all. So we got a zero smoke rating even though it was clearly highly combustible, which is just absurd!

Gaye Francis (03:16):

It exploded, but no smoke! It's all right. It was just was an explosion, no smoke.

Richard Robinson (03:21):

Just another point. I've had my first experience with Covid in the last couple of weeks, so I've got a cup of hot water here, and if I suddenly start coughing or being a bit croaky, that's the reason why.

(03:33):

Yeah, so, I had three reasons and I forgotten what the third one is! <laughing> Oh, I know what it was. It was the fact that Standards don't cover all things anyway because we've had this experience a number of times. But going back to the first one.

Gaye Francis (03:48):

I'm going to add one more in there. I also think that they're lag indicators and there often five to 10 years behind what industry is actually doing, potentially.

Richard Robinson (03:59):

Well, it's like AS1940, they'd only updated it in 2017 based on Bunsfield. It took them, I don't know, 10 years. I think Bunsfield was 2005. And in 2017 is a fair amount of time to actually get your act together!

Gaye Francis (04:13):

And you would be hoping that some of the lessons learned from Bunsfield and the controls that you could put in place to prevent a Bunsfield would've been happening within that time before the Standard was updated.

Richard Robinson (04:23):

Yes. Well, there's the other point though. AS1940 is the standard, I used to spend an awful lot of time with working on. We used to use finite element models to try and work out the fire exposure and work out how much cooling or what had to be sprayed on tanks and tank farms and things like that. But one of the other options that the Standard suggests if you want to protect something is just put it behind in a chamber, sort of reinforced concrete walls so that any exposure fire would be prevented from exit causing troubles. But I've got to say the whole point of AS1940 as far as I've ever been able to tell is that it was located in an industrial area in tank farms so that if one of these things did happen, it was well away from any residences. To go and apply AS1940 adjacent to residential areas is not something that, as far as I know, AS1940 ever contemplated, but it doesn't say that anywhere. I guess that's one of the frustrations we have with standards. The context of the standard isn't actually properly articulated. And if you dunno the context, you dunno whether the Standard's relevant or not.

Gaye Francis (05:24):

And which they apply, isn't it? The situations in which they apply. Just makes it impossible. And I think the engineering environment that we are living in at the moment, those situations are changing.

Richard Robinson (05:40):

So fast!

Gaye Francis (05:41):

There's not a single environment that you apply all of these standards. There's all these nuances between the engineering solutions and the engineering challenges that we're seeing. And that environment and context seems to be changing.

Richard Robinson (05:55):

Well, one of the ones we were talking about, for various reasons we've got sort of sucked into high pressure gas mains. And one of the reasons why this topic has come back to the fore is because people keep building high-rise apartments next to roads that have high pressure gas mains in them. And obviously you can have a fireball. It's rare because somebody most likely a guy with a backhoe digger has to dig a hole and then punch into the high pressure pipe. Now it comes at supersonic speed, so it'll shriek. It's almost certainly going to find an emission source, so it's going to be really probably quite sad for the backhoe driver who digs the hole. But it also means you've going to go a very high, it's possible, it's not ever going to be likely because these things are well controlled and so forth.

Gaye Francis (06:37):

Credible, we use the word credible. It's credible that this could happen.

Richard Robinson (06:40):

Correct. And it does happen. I mean they did it in Sydney City a while back. They punched a hole. And you might recall we had a problem with when they were building the casino here, they managed to punch the offtake from the Sydney, at least the Dandenong to Melbourne high pressure gas main, which created some excitement. But one of the things, there's no Standard to it. It's the question is, well, when you're designing a residential building and you realise there can be a fireball out the front, what do you design the balcony and the windows to be? Because clearly if it's all glass and you happen to be on the balcony when this thing happens because you're curious about who's digging a hole in the road or something you are going to be in serious trouble. The heat is so great, so fast that it can kill you. I don't know if you remember those studies you did in on behalf of the, what was the Office of Gas Safety in Collins Street a long time ago ago where we used finite element models and working out the fatality rate for an ordinary commercial load building with glass windows.

(07:42):

Anyway, so one of the things we said was, well, you obviously don't want a combustible balcony, you don't want a transparent balcony. You've got to have a balcony that would actually act as a shadow so that if a firewall errupts, you can just drop to the ground, which is your natural tendency and have some shielding. And moreover, you don't want a fully glass window facing out there. You want to have a certain percentage that's blank wall so that you can crawl to the side and get to a safe location. And we have no knowledge and we've never seen any Standard which tells us what that ought to be. And our design solution was let's go with 50% glass and 50% non-combustible construction.

Gaye Francis (08:19):

So basically it gave somebody a chance in the rare event that there was this fire ball.

Richard Robinson (08:26):

But that leads on to the third point, which drives me crackers. We said that we don't know what the ratio should be. It's just an inspired guess on our part. So anybody can have an argument about that if they so wish. But when you look at a lot of these Standards, they don't tell you where these design criteria come from. They don't tell you why the separation distance should be 15 meters between tanks. Why is that? I've never seen it described anywhere. It's one of my frustrations with the SIL Standard in particular. Safety Integrity Levels. They have these numbers going from minus one, minus two, minus three, minus four for low demand and then it goes to minus five, minus six, minus seven, minus eight for high demand or continuous control. Where did these numbers come from? Is there a scientific breakpoint as to why this should be the case? And so far as I know, and we've been to lots of SIL conferences and talk about these things, no there's not. Some expert group just decided let's go with order of magnitude changes here.

Gaye Francis (09:20):

They all also seem to have been in place for a very long period of time. So you wonder what the context was going back to that first point in which they were thought up in the first place and have circumstances changed enough that they're still relevant at all?

Richard Robinson (09:34):

Well, remember we had that really peculiar thing we were doing with the transmission lines of Tasmania. We were trying to work out how transmission line heights were determined. Apparently it was all decided in New South Wales. And when we asked New South Wales to sort of explain themselves, well nobody could and we couldn't work out whether that's because they didn't know or because those who decided weren't with us anymore, which I suspect is probably the latter. But we don't know. And in the end, the only way we could work it out so far as we can tell it all comes back to Roman Horseman because every time we actually went and had a look at the design criteria, bridge heights so far as we can tell, have always been established by people gathering along on a horse and not bashing their head as they go under the bridge. And Roman Horsemen worked that stuff out a long time ago. And so that's just an historical height that was sitting there. And so if you look at a conductor that's going over a roadway and then you add the flashover distance that you'd get if a high voltage lightning strike hits it, which is 500 kilovolts and you add that flashover distance to that bridge height, you actually get the height that's in the Standard! <laughter> Now, whether that's the case, we don't know, and if anybody cares to look it up, you'll find it all described in our (Engineering Due Diligence) text, one of those more interesting things that popped up. But if you ask an electrical engineer about or transmission engineer, why are conductors at this height? The answer seems to be, well we''ve always done it that way.

Gaye Francis (10:58):

And the Standard says so.

Richard Robinson (10:59):

<laughs> Now obviously, I mean AS61508 makes the remark that if you've been doing it for long enough and it seems to work, that's actually a reason to keep a Standard. But it's worthwhile explaining and I think all standards should do it. Why they believe whatever it is they think is necessary and a good thing why it should be that way. I get very annoyed with fire standards and separation added between buildings and things like that because you sort of see it as one meter or three metres or five metres. Is that because somebody has thought it's a nice round number, it used to be three feet, so when you updated it, why wouldn't you make it a metre?

(11:39):

But is that a design reason? Does that explain what the load is? I mean, I think I've sort of explained to you that if you're building a firewall in Australia, they tend to just accept a four hour standard firewall, which is designed to resist a four hour standard fire. Now there is no such thing as a four hour standard fire! And if for example, you have a roll paper on end, you can't put it out, you have to assume burnout, which means the firewall has to be a massive independent, freestanding structure.

Gaye Francis (12:10):

It's going to burn for more than four hours.

Richard Robinson (12:12):

It's going to burn for more than four hours. So this idea that you have Standards that make sense and people haven't been testing the standards, and it's one of the frustrations we have because Engineers Australia keeps encouraging engineers to put their intellectual property into Standards. And I think I've talked about this one before, but none of the American Engineering Societies are dumb enough to do this. If you create the Society of Fire Protection Engineers handbook, it's your intellectual property and you sell it and you hang onto it, and they do give reasons for it. Remember we did that a long time ago we did that US fires that it's when you really found out you were allergic to chemicals, as a Chemical Engineer.

Gaye Francis (12:48):

I do.

Richard Robinson (12:50):

And we were lucky because one of our then young engineers about as young as you at the time was reading the Society of Fire Protection Handbook and realized that if you have electrostatic sparking in a high HDPE, high oxygen container, you can get ignition. The thing itself was meant to be always wet. It's one of the reasons why the HAZOP didn't work because they were actually commissioning it and it never occurred to 'em that it wouldn't be wet. So they never considered that configuration and HAZOPs have these weaknesses that we could go into, but that's actually one of the problems that we've had. Now it's just one of those extraordinary things. We were very lucky that we had a very bright engineer who was reading this book and why she was doing that, I still don't understand.

Gaye Francis (13:35):

Well, I guess the question people ask us, Richard, if you don't design to Standards, how do you design? If standards aren't the solution, which the engineering profession seem to be promoting, that that is the solution. Well, what do we do?

Richard Robinson (13:50):

You've got to figure it out from first principles. You look at the design options, you work out which design option's, right? Then you get the Standard out and check it to make sure you haven't done something daft.

Gaye Francis (13:59):

So it is, it's setting up what the context is. Where is this thing going to be designed? Where is it going to operate? What are the conditions?

Richard Robinson (14:07):

It requires you to think and thinking is hard.

Gaye Francis (14:10):

It is hard. It is hard.

Richard Robinson (14:12):

It is really hard. I don't know why people don't understand that thinking is hard. That's why you get the kudos for having theoretically gone to university. And if you have been thinking hard for eight or 12 hours, you are exhausted. At least that's been my experience.

Gaye Francis (14:29):

<laughs> That's another subject. So what we would say is have a look at your context, have a look at your problem that you're trying to solve, but also the environment in which it's going to live, the people it's exposing, because some of those vulnerabilities need to be thought about harder and there may be different solutions for those particular things.

Richard Robinson (14:51):

Yes. Well obviously we have some more experiences more recently with network design solutions and things like that. And it's particularly frustrating when you realise that the people who are responsible for this have not been thinking through what the further possible options are and not made it transparent, at any rate.

Gaye Francis (15:07):

I also think that Standards are lagging indicators. They're not always up with, they may be what represents current good practice, but that might be 5, 10, 15 years old.

Richard Robinson (15:19):

Well that's like AS1940 and Bunsfield. Bunsfield, I think it was 2005 and the Standard wasn't updated 2017 and the introduction says this is why we did it. To take into account Bunsfield. That's a long time.

Gaye Francis (15:31):

That's a long time. So you ought to remember that Standards are lagging indicators. It's the absolute minimum that you start with, but we would say that you actually go back and check against it rather than starting with the Standard and designing from there.

Richard Robinson (15:44):

Correct. And I think I'm going to be explaining this in the court in the very near future and we'll see how that goes.

Gaye Francis (15:51):

Which I'm sure will be the discussion of another podcast in coming weeks.

Richard Robinson (15:55):

Indeed.

Gaye Francis (15:56):

So thank you for joining us today. We hope you found it interesting. As you can see, it is one of our frustrations and I think a frustration around the engineering profession as well as a whole. So thanks for joining us and we hope to see you next time.

Richard Robinson (16:11):

Thanks Gaye.

Due Diligence Essentials for Engineers - R2A's New Booklet

Risk! Engineers Talk Governance
Season 4, Episode 5

In this episode, Richard Robinson and Gaye Francis discuss their new booklet titled Due Diligence Essentials for Engineers. 

They talk about the need for the booklet being that Engineers are becoming more involved in the governance process in providing information to boards, directors and senior people. Engineers are ones aware of the critical things that can go wrong and what boards need to know about for their due diligence obligations under the WHS/OHS legislation.

Other areas of discussion include:

• Whilst most engineers aren't directors and, therefore, don't have the due diligence obligations as spelt out by the WHS legislation, the legislation is specific about duties of designers.

• Engineers can not rely on Standards or Codes of Practice to absolve themselves of liability.

• When should engineers elevate issues to higher levels of decision-makers, and the importance of transparency in their decision-making process.

• Engineers can't be right all the time, but can be diligent. And with Registration of Engineers, due diligence provides a tool to be able to say they’ve done everything that is reasonable in the circumstances to make whatever they’re working on safe.

Purchase the book via our online store.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss their new booklet Due Diligence Essentials for Engineers.

(00:15):

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 to be notified when the booklet is launched, please subscribe to the R2A newsletter. The details can be found in this episode's description or head to www.r2a.com.au.

Gaye Francis (00:38):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:40):

Hi Gaye. Good to be here again.

Gaye Francis (00:43):

Today we're going to talk about our new booklet that we're currently working on "Due Diligence Essentials for Engineers". I guess in the past we've always focused at that director level where the WHS/OHS legislations, in particular, are aimed.

Richard Robinson (00:59):

Yeah, that's right. And that was partly because, in a sense, we were aimed at directors and in fact, the reason why we wrote the little book "Criminal Manslaughter - How Not To Do It" was because getting directors to read a large book (text: Engineering Due Diligence) was an unlikely process.

Gaye Francis (01:11):

That's very true. But I guess in the last little bit we've seen that engineers are becoming more involved in that governance process and providing the information to the directors and the senior people to be able to make those decisions.

Richard Robinson (01:26):

Well, that's simply because the engineers are the ones aware of the critical things can go wrong and just how bad it could be. And they're the ones that they boards need to know about from their due diligence obligations on the WHS/OHS legislation. But as we pointed out, and this is partly what we've been doing it for Engineers Australia because they asked us to sort of follow through on a couple of things, is that whilst most engineers aren't actually directors, so they don't have the due diligence obligations as spelt out by the WHS legislation, the legislation is quite specific about duties of designers. And I'm not entirely sure what engineers do a lot of the time, but much of the time or perhaps most of the time they ought to be designing.

(02:02):

In that regard. I just got a couple of quotes. I've just got the one, I just pulled it out of one of their presentations. It's the duty holder stamp from the Queensland version. Although so far as I know the words are virtually identical everywhere. It's not that I've gone around and compared them all and it is consistent with the Victorian OHS Act, which came in 2004, even though most of the other acts sort of commenced from the Model Act of 2011/12.

(02:25):

But I'll just spell it out: That the duty holder, designers of plant structures or substances, Section 22. A PCBU, that's the person conducting the business, undertaking the legal entity, who is a designer for a plant structural substance that is to be used or could reasonably expect it to be used at a workplace must ensure that all workplace activity relating to the plant structure or substance, including its handling construction, storage, dismantling and disposal, is designed to be without risks to health and safety.

(02:53):

And then the designer has got a duty to test with all those things without risks to health and safety. And then the designer also has a duty to provide the information to the users of whatever they've designed, again to ensure that it is safe to use without risks to health and safety.

(03:10):

So this is a pretty onerous duty and it presumably just applies to the engineers in particular, even though I don't actually see the engineers talking that much about it. Although you and I know that we've actually hammered engineers. You might recall the first time the WHS Act came in in Queensland, it came in the 1st of January, 2012, and we were reviewing doing a SIL study on a ventilation system for a tunnel. And we sort of told the engineers on, I think in November/December, you could do it the old way using target levels of risk and safety before the Act commenced. But if you hadn't decided by the 1st of January and signed off on it, the lawyers would have us all back here in the new year doing it all again. And the engineer said, that can't be right.

Gaye Francis (03:51):

I think we were back in the middle of February, weren't we? <laughs>

Richard Robinson (03:55):

It was quite peculiar because the lawyers said so and it was the duty of designers.

(04:01):

The other points which we need to make, which we actually make in all our presentations, and we're actually doing Expert Witness matter in Queensland, which we better not say too much about because of the confidentiality agreements and so forth. But one of the real problems is that the people against the complaints being made, the engineers, have been using Standards as a design tool and WHS legislation is pretty clear about this. But rather than me sort of saying, and I'll just quote some lawyers in this regard.

(04:34):

Now, the first one is from a fellow called Paul Wentworth, a partner at Minter Ellison, he's commenting on AS7000, which is the high voltage distribution network standard for conductors and so forth. And he's commenting on this just after the Model Act comes in and he says (this is 2011).

(04:52):

"Engineers should remember that in the eyes of the court, in the absence of any legislative or contractual requirement, an Australian Standard amounts only to an expert opinion about usual or recommended practice. In the performance of any design reliance on an Australian standard does not relieve an engineer from a duty to exercise his or her skill and expertise. If you can do better than the Standard and it's reasonable to do so. The legislation mandates that you must."

Gaye Francis (05:18):

And I think we've covered that in a number of podcasts, that Standards are lagging indicators, not lead indicators.

Richard Robinson (05:25):

Well the next one is from Baker & McKenzie from 2009. So this is when it's all being put together. And this is the world's largest law firm at the time - I don't know if they still are - from the Melbourne office. "Engineers cannot avoid liability in negligence or for trade practices at contravention by simply relying on a current or published Standard or Code" That was published in the Engineers Australia magazine.

(05:47):

Now this is kind of odd because we just keep coming across Engineers saying: We've done it to the Standard, it's fine. No it's not. I mean I keep giving that example, the bane of electrical regulators - the home handyman getting the roof space filling with wires and doing themselves in. Well the technology's been moving along, fabulously. Power over ethernet LEDs can run a 25 watt lumineer these days. They're building them into industry. I dunno if you've been in some of these fancy hotels now you push the button, there's a click inside the box and it's actually switching it remotely. That'll be an LED being powered over ethernet meaning it's 48 volts or less extra low voltage wiring. It's very hard to electrocute yourself on 48 volts. I mean, it's possible if you sort of do some weird things, but just touching it wouldn't never do it to you. That's the same voltage that Telstra used to provide to ring phones around the place. So there's 48 volts everywhere with the Telstra network.

(06:47):

Now the problem they've got is AS7000 came out, it's been updated, it doesn't talk about any of this sort of thing that you could put extra low voltage wiring in the roof space and make it completely safe and put all the 240 volts in the wall. And the problem with that is duty to design. If you haven't followed the criteria and a new house is built after all this technology is available and it's not an AS 3000 and you didn't consider the possibility and explain why it was or was not reasonable to put extra low voltage wiring in the roof space and somebody dies, the engineer will be out for a Criminal Manslaughter charge. That's what the legislation says.

Gaye Francis (07:20):

And I think that's one of the purposes of putting this "Due Diligence Essentials" booklet together for engineers. I think the engineers are finding themselves in the middle of the corporate soup. They're dealing with the senior decision makers and the directors. They're dealing with the people that are actually doing the jobs.

Richard Robinson (07:36):

Well the other matter we just did in Queensland, which we better not talk about either. Remember the underwriter and the committee and the lawyers are present and there's a problem with what's got to be done and the two sets of fire engineers can't sign off. And we just turned up with the provisions of the WHS legislation and used it to cut the gordian knot.

Gaye Francis (07:57):

And we've said this on a number of occasions as well. Engineers can't be right all the time, but you can be diligent. So it doesn't say that bad things aren't going to happen. But what we hope with this booklet is it gives the engineers the context in which they find themselves. And I think some of the liabilities that are starting to come to engineers, especially around registration of engineers, potentially, and the due diligence really gives them a tool to be able to say hand on heart stuff: I've done everything that I can that is reasonable in the circumstances to make whatever I'm working on safe.

Richard Robinson (08:32):

Correct.

Gaye Francis (08:33):

So in our booklet, we're sort of going through that combination of the legal context and the way where the engineers find themselves in the environment that they have to work in, but also the tools and techniques that they can use to apply to the different circumstances. And I think as part of this (podcast's) season, we're sort of going through some of the different applications. Due diligence can be applied to any industry, any problem.

Richard Robinson (09:00):

Well, correct, it's a design issue as we keep pointing out. Post event, it's a retrospective design review, it's not a retrospective risk assessment.

Gaye Francis (09:06):

So it doesn't matter whether it's industry based, doesn't matter whether it's a safety and integrity level or a project issue or a safety issue. Due diligence can be applied to all of these things.

Richard Robinson (09:17):

Well, the other problem I've got too, and this is the case, the engineers have to know when to elevate the problem to the next level. If you don't have the resources, I mean sometimes the design engineers, it's within their apparent resources to make it happen. And the legislation's in two parts. First is you obviously can't be pinged if you don't have control. And then to the extent that you do have control, you've done everything you can. Now from the point of view of a design engineer, they might have the resources all have control of the funds to actually make whatever it is they think that needs to happen happen. But they need to elevate that in a way that the senior decision makers, the people who do have the duty to demonstrate due diligence and the criminal manslaughter aspects of that, get it right. And we tend to see a lot of engineers hanging on to the decision making in a way that is quite inappropriate.

Gaye Francis (10:02):

So it's all about that transparency of arguments, isn't it?

Richard Robinson (10:06):

Correct.

Gaye Francis (10:07):

So yeah, being able to elevate it to the right person. And it might even have to go outside the organisation. Like a lot of the government projects that we see in the infrastructure projects, there's so many stakeholders involved that often even the tenderer or the person building the infrastructure doesn't necessarily have the means to determine whether it's reasonably practicable or not.

Richard Robinson (10:29):

I don't want to drag you back into history, but you may recall we have in confidence work where we killed of a major infrastructure project in Victoria and we're still not allowed to speak about it until, what is it, 30 years is up, for the simple reason that if the prime tenderer's find out how much money they spent for something which wasn't possible, the government will not be forgiven.

Gaye Francis (10:49):

I don't know where to go after that comment, Richard!

(10:55):

The booklet that's coming out and we're hoping it'll come out in Spring this year, will be that in between book between our really detailed "Engineering Due Diligence" text and the "Criminal Manslaughter" booklet aimed the directors.

Richard Robinson (11:10):

And that's why it's "Due Diligence Essentials for Engineers" because it's not obviously aimed at the senior decision maker. It's aimed at the engineers who are doing the design process and have to provide the right information the way in which the senior decision maker can actually make a proper defensible decision.

Gaye Francis (11:25):

So it has to be in the context in which they find themselves. And I think sometimes engineers believe that stuff's not applicable to me or doesn't apply to me, and then they just go about doing their things.

Richard Robinson (11:37):

Well, as you said, we're just about to do that expert witness matter in Queensland. And I'm afraid we're probably going to give the engineers involved a particularly hard time because they simply designed to the standard and to the HIPAP guidelines, neither of which will survive the scrutiny under the WHS legislation since it's going to before a judge would probably be held up, we suspect.

Gaye Francis (12:01):

I think some of it, and we talked about this in other podcast sessions, is the confusion of where the WHS and OHS legislation actually sits in relation to other legislation. Like we're talking about planning legislation and other types of legislation. But I mean our experience has been the WHS legislation sits above all of those things and it's the leading legislation and if you take that sort of thinking of how they deal with it, then all the other legislation just sort of falls away.

Richard Robinson (12:33):

You might recall before we started the hazard risk analysis for the Western Sydney Airport for the EOS, we made very sure that the Australian government solicitor agreed with our understanding and that's written up on the first page of that report saying; when the airport, the accredited airport operator and an aircraft and everything else has to be done consistent with the WHS legislation. There's a whole lot other aviation safety legislation has to comply with too. But the overarching one is the WHS legislation. And we don't quite understand why this comprehension, because it's not as though we don't keep talking about it endlessly!

Gaye Francis (13:10):

(Why) it isn't widely known in industry?

Richard Robinson (13:13):

No. Well, we'll see how we go with the next expert witness job in Brisbane. That'll be really quite interesting.

Gaye Francis (13:21):

Alright, so I think we might leave it there today. So watch out for our new "Due Diligence Essentials for Engineers" booklet and we hope you can join us next time. Have a great day.

Richard Robinson (13:32):

Thanks Gaye.

Art & Engineering: How being a great artist relates to the engineer's roles

Risk! Engineers Talk Governance Podcast
Season 3, Episode 5

In this episode, Richard Robinson and Gaye Francis discuss the relationship between art and engineering. 

They draw parallels between the roles of artists and engineers, highlighting the importance of composition, execution, and management in both fields. They outline the different types of engineers, such as creators, managers/consultants, and specialists, and the need for all three types in successful engineering organisations. Richard emphasises the importance of recognising and focusing on one's strengths in order to have a satisfying and successful career.  

Their conversation also touches on the challenges of small businesses, the role of innovation, and the limitations of relying solely on standards in engineering.

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 art and engineering and how being a good artist can relate to the different roles of engineers.

(00:16):

We hope you enjoy what we found are very entertaining chat. If so, give us a rating to help spread the word and subscribe to our channel on your favourite platform. Email us admin@r2a.com.au if you have any feedback or topic ideas.

Gaye Francis (00:36):

Hi Richard and welcome to another podcast session.

Richard Robinson (00:39):

Yes, good to see you again, Gaye.

Gaye Francis (00:41):

Good to see you too. Today we're going to talk about one of your topics, philosophy, a philosophical topic, art and engineering, and the links that art has to engineering and the way that we, I guess, manage or deliver engineering projects.

Richard Robinson (01:03):

Not perhaps the way I would've said it, but let's go with that for the start.

Gaye Francis (01:06):

<laughs> Alright.

Richard Robinson (01:08):

Now, for those who are particularly interested in this, I'm basically pinching most of the ideas from this book, "What is Art All About?" by Desiderius Orban, who, I think it was Hungarian who came to Australia, Sydney, when he was about 60yo, and he must have written this book when he was about 90yo, I think. So the moral of all that is you shouldn't give up until you're dead, and then you should reconsider.

Gaye Francis (01:29):

<laughs> So you might get your book done on philosophy and engineering yet, Richard.

Richard Robinson (01:32):

Yeah, it's possible!

(01:35):

Anyway, one of the points he makes, he's trying to explain why it's hard to be a good artist, and the comparison he makes is to music. So if you think about music, like the Melbourne Symphony Orchestra (MSO) and so forth, if you want a good performance, you've got to have a good composition, i.e. there's got to be a composer, you need a sound conductor who's got to make the whole of she-bang run, and then you've got to have a whole lot of specialist musicians who are all very good at what they do. And if all those three things come together, you get a good result. Now that actually parallels engineering.

(02:04):

This is a discussion I've had with the young engineers pretty regularly because when you're trying to decide how your career goes, you've got to decide which one of these three you can be, because nobody doubts you can be a good composer, nobody doubts you can be a good conductor and nobody doubts you can be a good specialist (musician), like the first violinist for the MSO.

Gaye Francis (02:19):

And I can say he has had that discussion with me many years ago.

Richard Robinson (02:22):

And you have promptly forgotten. So I often wonder whether it was worth the trouble.

Gaye Francis (02:26):

<laughs>

Richard Robinson (02:26):

But anyway...

(02:28):

Now the point about this is when you're a young engineer, you have to decide which one of these things you are. Are you the creator or the designer, the people who love creating new things? Or are you the organiser, the manager, the consulting engineer? Or are you the specialist who becomes super specialised in a particular area of design?

(02:47):

And if you attend a conference or something like that, if you're at a technical conference, you can see all the specialist engineers appearing. But if you want to be a manager, you go and have a look at all the engineers that are attending and doing MBAs, for example, and you get a pretty good idea of what's going on there. But the real entrepreneurs, the ones who really create new designs, they're actually a pretty small group.

(03:09):

Now, the trick that he's making about being a good artist is that in order to be an excellent artist, you have to be excellent at all three. You have to be good at composition, because if you don't have a good idea you won't produce anything worthwhile. You have to be an excellent painter or whatever your art form is because if you can't do it properly, then you won't execute the composition well, that's the specialist part. And you have to able to put it all together, which is the management part. And that's why it's so rare you just can't do it all. I mean, there's lots of excellent painters out there, but it's like a photograph -- it's not actually anything that everyone gets really excited about. Whereas the ones that people get really excited about are the ones where it's actually expresses an idea that you just can't, previously (express); a photograph doesn't cut it, basically.

Gaye Francis (03:55):

And I think we have that conversation in successful businesses as well in organisations, don't we? You have to have all of those three components that have to come together, work really, really well together, to be a successful business.

Richard Robinson (04:09):

That's correct. And the trick is very few of us are all three. We've got elements of each amongst ourselves. Gaye can confirm that my organisational skills are sometimes not as good as they could be.

Gaye Francis (04:21):

And mine are probably better. And so we do complement each other there, Richard.

Richard Robinson (04:25):

And between the two of us, we cover all the gaps. And that's the point.

(04:28):

Now, if you're designing a business, I mean one of the points I've made, if you've ever go into business for yourself and go into a partnership, one of the things I recommend you do early is have a (financial) loss! Because it's all very fine having partners when you're making money, but the first time you make a loss and you've got to share the loss, that's when you find out who your real partners are.

Gaye Francis (04:47):

I think one of the interesting things in this is that you can be a leader in each of those categories. And you don't have to be everything to everybody to be seen as successful. And I think there's a lot of conversations, and especially in the engineering field, that there's a real push to get people to leaders and what does that mean? But I think they're being pushed in that managerial, that middle row, that they're leaders in the management area. But we have so many technical specialists out there that are leaders within their fields as well. But they maybe don't get the recognition. But if we don't have them, then the engineering organisation is nothing.

Richard Robinson (05:31):

Correct. Well, the point is you've got to have all three. And the trick is, and this is just from a personal viewpoint, and this is something you have to discover the hard way, you've got to decide which of these skills or combination of these skills you actually have. Because if you keep trying to do one of these things that you do not possess, it's going to hurt a lot and you can want it, but if you truly don't have it, it's not going to happen.

Gaye Francis (05:53):

It has to come naturally, doesn't it?

Richard Robinson (05:55):

Whereas if you actually pick your strength and effect and work on that, life tends to be a lot more satisfying. And career success seems to be a lot more assured so far as I can tell. But that's just a personal assessment based on my experience of life. You perhaps have others.

Gaye Francis (06:10):

No, it is much easier to do things that you're good at than challenge things that you're not so good at. I think from a small business viewpoint, the entrepreneurial stuff that we sort of not struggle with but is probably the hardest component of small business.

Richard Robinson (06:25):

Correct. But that's the reason why people go into business in the first place.

Gaye Francis (06:29):

And so I think in the last 18 months in particular, we've really tried to concentrate on the thought leadership stuff. What makes us that little bit different from the other organisations that are out there. And once we don't have any new ideas, the big guys just come and swallow us up.

Richard Robinson (06:46):

That's correct. Well, innovation doesn't come from large organisations, usually. It comes from the small guys who are trying to do things.

Gaye Francis (06:52):

And so sometimes we need those really sticky problems or those really difficult problems that you're pulling your hair out at the time. But to come up with that innovation, to come up with those new ideas and then they get refined as time goes on. But that's one of the interesting things of small business.

Richard Robinson (07:10):

I think you're just saying that creativity usually arises when you're under stress.

Gaye Francis (07:14):

<laughs> Well, as an engineer, creativity probably isn't my strongest point, but you know!

Richard Robinson (07:20):

Well, it actually flows in a lot of places though. Because one of the things we've got cranky (about), particularly with Standards Australia, and the way engineering has sort of turned up in the last 20 or 30 years, is that people have started doing design by standards. Now, I don't mean unkind, but innovation does not come through standards. If you want something interesting or different to occur, standards is not the place to do it. And it drives us crackers because in all our due diligence courses, we quote all these lawyers who are saying, the fact that you've complied with the standard does not excuse an engineer from applying their skill and expertise to whatever problem they're looking at.

Gaye Francis (07:55):

To solve the problem.

Richard Robinson (07:56):

And I've always preferred, and I think I've mentioned it before, the 1937 Chairman of Victoria Division's point about standards: Prevent fools from the folly and rogues from their rogoeury. Well, you're supposed to figure out how it ought to be, and then you check back against the standard to make sure you haven't done something daft, that's "fools from their folly". And if you're trying to hang a contractor, well, the easiest way to do it is say you haven't complied with the standard and your toast, but that's not helpful. I mean, it's just something you've got to do sometimes.

Gaye Francis (08:20):

I think there's a slow shift going towards some of the chief engineers that we've been talking to and working with. They're really expecting their engineers to solve the problem first and then go back and check against the standard. And that's what they're trying to encourage. There's a lot of organisations that are just doing the minimum and that's all we're going to do.

Richard Robinson (08:41):

To the standard. And I'm sorry, but if that's all you're doing as an engineer organisation, I don't think you're really an engineering organisation anymore. You're just following the rules, whatever they are. And you don't need to be an engineer to do that.

Gaye Francis (08:56):

That's true.

(08:57):

So any other little tidbits that you've got that you found insightful as art and engineering?

Richard Robinson (09:07):

Not that I'm aware of. I think I just said it, but thank you for the thought.

Gaye Francis (09:11):

<laughs> Alright, well, I'll wrap this podcast up. That was sort of a little bit more entertaining than I thought it was going to be. But thanks for joining us and we hope to see and hear you next time.

Richard Robinson (09:21):

Thanks, Gaye.

The Journey to WHS Criminalisation: How the Risk Management profession has changed over the last 40 years

Risk! Engineers Talk Governance Podcast
Season 2, Episode 5

In this episode, Richard and Gaye discuss the journey to WHS (Work Health and Safety) criminalisation and the evolution of the risk management profession over the past few decades.  

Richard discusses his working history and experience watching the application of risk management change from the 1980s to 2010s from engineers to psychologists and culture, to the lawyers.

They highlight the increase in prosecutions in the last 18 months under WHS legislation, particularly targeting small and medium-sized organisations, and recent cases, such as the Dreamworld incident and the White Island explosion, with the introduction of criminal manslaughter provisions. 

Overall, Richard and Gaye emphasise the importance of considering all reasonable practical precautions to ensure safety in organisations, rather than solely relying on compliance audits. 

Read the full episode transcript below.

Episode Transcript

Megan (Producer) (00:01):

Hi, welcome to the latest episode of Risk! Engineers Talk Governance. In this episode, due diligence engineers, Richard Robinson and Gaye Francis talk about the journey to WHS criminalisation and more specifically, the journey of the risk management profession over the past few decades.

(00:25):

We hope you enjoy the episode. If you do, please give us a rating. Also, remember to subscribe on your favorite podcast platform, and if you have any feedback, please drop us a line. Enjoy the episode.

Gaye Francis (00:40):

Hi Richard, and welcome to another podcast session. How are you today?

Richard Robinson (00:44):

I'm well, Gaye. It's a very fine day. Pleasant temperature.

Gaye Francis (00:48):

Today we thought we'd talk about the journey to WHS criminalisation and the journey, I guess the risk management standards been on and, or, the risk management profession has been on in the last 30 years. And I guess this came out of, I gave a conference paper late last year, I think it was, and I was the only engineer amongst a whole lot of lawyers. And so we were sort of saying, how do you demonstrate due diligence in accordance with the WHS legislation? But there was a lot of lawyers talking about how to comply with the legislation. And it was interesting that the two different aspects of what the lawyers were saying as in a compliance check against the legislation compared to what we were saying, to keep things safe in your organisation -- this is the due diligence process that you need to go through. And one of the speakers was talking about that, and an observation from us is that there's been a lot more prosecutions under the WHS legislation, probably in the last 18 months to two years.

Richard Robinson (01:55):

Correct

Gaye Francis (01:55):

And that observation was quite confronting that we didn't expect that to happen because it hadn't happened in the past. And the observation was that they were mainly prosecuting small and medium sized organizations rather than large businesses.

Richard Robinson (02:10):

Well they were the successful prosecutions, at any rate.

Gaye Francis (02:13):

That's correct. And one of the lawyers was saying that there was still an observation that there was still quite a number of levels between the executive management in large organisations and what was happening on the ground or its site between those large organisations. So there was still a corporate veil protecting some of the larger organisations against the WHS criminal manslaughter...

Richard Robinson (02:42):

Criminal manslaughter.

Gaye Francis (02:42):

Criminal manslaughter provisions. But I think that's starting to change even in the last little while. That excuse that there is that power distance is no longer an excuse or a reason they won't be prosecuted against.

Richard Robinson (02:58):

Well, I mean, see from an engineering viewpoint, we've always had held the view, the objective is to stop things going wrong in the first place rather than just to stop yourself going to jail. We agree that's a worthwhile thing to do, but the objective is to prove, demonstrate to you're safe first in a way that satisfies your legal obligations, which has always been our proposition. Whereas the lawyers just sort of say, a lot of 'em say, let's just go and do a compliance audit.

Gaye Francis (03:21):

So it's a liability management exercise rather than an improved safety exercise.

Richard Robinson (03:26):

Correct. What was that line that somebody gave us? Remember they gave us a new acronym? I can't remember what it was now in LinkedIn channel, I think it was. Anyway.

(03:38):

Well, one of the consequences of all this that we're talking about, we're trying to reflect on the actual history of this whole risk management business and how we actually got to this thing. And one of the slides in our book I originally pitched from KPMG, basically from the 1990s I think it was, but they had sort of had an observation in the 1980s, in effect, the technologists, the engineers particularly hopped into this risk management business with enthusiasm. That's basically when I showed up. I mean, I was just commenting that one of the first papers I ever gave was "The rise, the future of risk engineering" with Derek Viner back in 1983. And the engineers had seized on this with great enthusiasm. I remember <inaudible> of advanced engineering from Sydney Uni was big on it too. I dunno if you remember then. No, you wouldn't actually.

Gaye Francis (04:17):

No, it's before my time, Richard. I can say.

Richard Robinson (04:20):

Anyway, the engineers were big on this in the 80s and in fact, that's how I got into it and how I sort of got into the business in the first place. And the risk management standards started in that time, which was based on the insurance downside risk management. But then the commercial people turned up in the 90s and said "No, no, no. Well, you technological people. Technological risk is a subset of business commercial risk. And we believe an upside downside risk, not just managing downside. We talk about optimising upside as well. And so all your technological people, you're a subset of business risk" which is what the message KPMG was basically promoting.

Gaye Francis (05:00):

So you could have rewards and you could have opportunities as well as downside risk.

Richard Robinson (05:05):

They're still talking about it now. If you manage your own super fund, they still talk about risks and opportunities, all these financial people.

(05:12):

Anyway, what then happened, which have kind of amused me, was that the psychologists then turned up in the 2000s, said "No, no, no, all you commercial people, this is all a matter of risk culture". I know the APRA review of the National Australia Bank foreign currency trading scandals said that the risk management standards were seen as 'trip wires to be avoided rather than genuine attempts at risk control' and all that sort of thing. And so the aviation psychologist particularly appeared and said "No, no, no". And a number of the regulators turned into aviation. Aviation psychologists became the regulator, different industries. And it was the psychologists.

(05:46):

And then that's what sort of happened next was that it's almost as though the lawyers felt 'we're missing out on this, we've got to get back into this', or something like that, because obviously the 2004 OHS Act came into Victoria, but the WHS legislation commences at the start of the 2010s and number of jurisdictions actually put criminality in for recklessness, knew or made or let it happen. That means you had to be a known problem, which for some reason you failed to manage. And Queensland put that in and a number of others. Anyway, that decade sort of moseyed on and then, particularly, we had the Dreamworld incident where the raft flips and the four young people got killed. And when they tried to prosecute in Queensland the managing director and the chairman, it seems that they didn't know anything about it, the issue. Even though the organisation knew. And so they could have done something about it.

Gaye Francis (06:40):

In the background was that the rafts had actually flipped during a maintenance cycle when they were empty, so they knew when the water levels were low that these rafts could flip. So as an organisation, as you said, they did know about it. But did the chairman and the managing director know?

Richard Robinson (06:57):

Clearly the organisation was negligent and they wanted to press that negligence onto the senior decision makers and they couldn't do it because recklessness said you'd have to have shown that they knew beyond reasonable doubt that the hazard existed. And I doubt that they did. And so the Boland review kicked in and they basically chucked in criminal manslaughter, knew or ought to have known, which has been busily flying around the place since about 2018. And Victoria, for example, adopted in 2020. So you can see in that sense that there's been a sudden rise in

Gaye Francis (07:26):

Prosecutions and

Richard Robinson (07:28):

Well, the legislative framework's been put in place to facilitate it. So what competent regulator wouldn't say: Well, they've gone and given us all the tools, doesn't that mean we're supposed to? And it just sort of roll onto the White Island explosion where they started us by prosecuting 13 parties. You were telling me that (latest information) had popped out somewhere.

Gaye Francis (07:48):

Yeah. They've dropped the charges against the three individuals, but the organisation has been found guilty as a management organisation and sentencing's now not due till sort of early next year, 2024.

Richard Robinson (08:00):

But if you look at the journey like that, you're going from the technologists to the commercial people to this aviation psychologists and culture to the lawyers, sort of reinserting, criminal manslaughter in there. And you sort of wonder why in the 2020s that there's a sudden burst of prosecutions... Probably seems like a reasonable possibility view if you just look at that from a helicopter view of the secrets of events.

Gaye Francis (08:22):

I think we've always had a problem though, Richard, when you set back to it and you say: Hold on, we're trying to make our organisations safer and the tasks that we do safer for the individuals that do it. By breaking 'em up into all of those little silos again, you've got this different insight and I don't know that risk should be separated out as a separate function. It's almost should be business as usual and thought about in all of those different ways. And I do get that they give you different insights. But if you take, and we use the word SFAIRP, and I think we're moving away from using the word SFAIRP because that is creating a language confusion again. Whereas the intent is to make sure that all reasonable practical precautions are in place.

Richard Robinson (09:07):

With the emphasis on ALL. I think that's where some of the lawyers are getting a bit confused out there. You have to demonstrate that all reasonable practical precautions place is not just a matter of reasonable practicability, it's all of them. And if you adopt a process which can miss one that was reasonable and that could have worked and it's identified after the event, that's problematic.

(09:32):

That's the other point I wanted to make goodness just escape me again, which is irritating. But anyway, that's what happens when you get a bit older.

Gaye Francis (09:39):

So I think none of these things are wrong. There is a different focus and there's definitely a liability management exercise; a lot of liability management exercises going on at the moment. But as we said, to make your organisation safe, you've got to consider all of the reasonable practicable precautions that can be put in place. And that requires a whole lot of different processes, not just a compliance audit against the legislation.

Richard Robinson (10:06):

I suppose what I think has puzzled me a bit is that I remember, I think we made this observation before, when we were doing some work for what was in the Office of Gas Safety. We sort of worked out there's two types of regulators, those who think that the number of successful prosecutions are a measure of success. And those who think that the number of successful prosecutions are measure of their failure. We've noticed abrupt decline in the number of who think the successful prosecution are measure their failure. And I'm not quite sure whether that's because they basically said: Tried to do it, that's all too hard and prosecuting is just so much simpler. And it is easier at one level. You just sort of have a few prosecutions say, well, if you don't do it...

Gaye Francis (10:40):

It's black and white isn't it. Whereas you're not trying to help. I think another observation we're trying to, we have seen is, when the legislation first came out was, we thought there may be a lot more technical directors put on Boards who had an understanding of the organisations and the issues that they were exposed to. But that certainly doesn't appear to have been the case. There still seem to be mainly lawyers and accountants on there. And I wonder whether this new view or new move towards, or a recent move towards the liability management tool, that's where the lawyers come into being on Boards. But they still have to have an understanding now that it's knew or ought to have known. They still are required to have an understanding of what the issues that their organisation are exposed to.

Richard Robinson (11:31):

Well, I would've thought so, but we'll see what happens.

Gaye Francis (11:36):

So thank you for joining us today. It's a short and sweet one today, but we just thought that that was an interesting observation, the journey that the risk management subject I guess has gone through in the last 30, 40 years or so. And it'll be interesting to see where it goes next.

(11:55):

Thank you. Have a great day.

Richard Robinson (11:57):

Thanks, Gaye. Bye.

Land Use Planning & Major Hazards

Risk! Engineers Talk Governance
Episode 5, Season 1

In this episode of Risk! Engineers Talk Governance, due diligence engineers Gaye Francis and Richard Robinson discuss land use planning and major hazards. They share some work they’ve been involved with and how design engineered controls are very reliable, and there are precautions and mitigations that responsible parties can put in place to protect themselves against major hazards facilities.

Transcript

Megan (Producer) (00:01):

Welcome to this edition of Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis talk about land use planning and major hazards. We hope you enjoy the episode. If you do, please give us a rating. Also, remember to subscribe on your favourite podcast platform and check out the other episodes.

Gaye Francis (00:30):

Hi Richard, welcome to another podcast session. How are you today?

Richard Robinson (00:35):

It's good to be here.

Gaye Francis (00:37):

Now we are going to talk about today land use planning and major hazards. We've been doing a little bit of work in that space at the moment and some of the confusion around that. So where do you wanna kick off?

Richard Robinson (00:52):

Well, I think it might just be worth explaining R2A's current position and where we got to. Basically in Victoria, the 2004 OHS Act came in and from R2A's viewpoint, that changed the way in which land use planning around major hazards ought to be done. Up until that point, what everybody seemed to be doing was this quantified risk assessment using target levels of risk and safety. In Victoria, that's (1 x 10) - 7 /year for a single fatality. And in New South Wales, that's (1 x 10) - 6 /year for a single fatality. As well as some societal risk curves and things like that. Now, from our point of view at R2A after the Buncefield incident, that's where you had the giant vapor cloud explosion in the UK, which basically decimated the fifth largest oil storage facility.

(01:37):

And it might just be worth briefly explaining what that incident was, just so everybody understands the context of all this. Basically, they overfilled a petrol tank by 300 tons of petrol that splashed out into the bun, and there were a whole lot of reasons why that happened; people missing calculations and overflow, the switches which didn't work and a few other things. But the short answer was that about 10% of it turned into a vapor cloud. So that's 30 tons of vapor floating around looking for a problem. That 30 tons of vapor, up until that point, unconfined vapor cloud explosions weren't really deemed to be credible. What was expected to happen in those instances that you get a deflagration, that is a defined ignition source and the flame front would progress through the cloud, but at subsonic speeds; it wouldn't go supersonic and create a shockwave.

(02:26):

Obviously, if you're in the cloud when this was happening, that would be bad. But the detonation wasn't supposed to happen. Now this was a very odd collection of events. In order for the vapor cloud to hang around, you had to have the right atmospheric conditions. And then according to the Professor of Fire Engineering in Scotland, Dougal Drysdale, they'd pollard the trees. You know how when you try to mix chemicals up, you have to have a really interesting sort of shape of twisty things. And apparently the pollarded trees facilitated the mixing of the vapor. So that actually firmed the perfect stoichiometric mixture. So when it found the ignition source, which apparently was a fire pump, sort of ironically, the thing actually detonated, which was obviously, and you can see by all the factors that I've just articulated, a rare event by the definition.

Gaye Francis (03:16):

It wouldn't expect all of those things to come together in one sequence.

(03:19):

Very unlikely and very unlucky. Right. But the consequence was from R2A's viewpoint - and we kept talking with relevant major hazards and regulators in all states, especially Victoria and New South Wales - And they persisted in using the quantified risk assessment approach using target levels of risk and safety.

(03:37):

Where the likelihood just downgraded all of those incidents to say that it wasn't going to happen.

Richard Robinson (03:43):

Correct. Because it was so rare. They just pulled it back to the ten to the minus seven or the ten to the minus six fatality.

Gaye Francis (03:49):

And tick, we got our license to trade.

Richard Robinson (03:52):

Now the problem with all this is, and this is what Maxwell QC specifically said, now I'm actually summarising a conversation I had with somebody who'd been talking to him and an example he was giving, but he's sort of saying, look, it's like this; somebody lost an arm in a press somewhere and a workplace inspector turns up and said, "how the hell did this happen?", and you know, "This is an XYZ press that should have a guard". And the answer was, and under the old Act in Victoria at least you had to do a risk assessment and you could do a risk assessment using target levels of risk and safety, and you could multiply the likelihood by the consequence, and if it would be in the green zone, you didn't have to do anything.

(04:31):

Now, obviously the consequence didn't change. If you put your arm on the press, you lost it. The likelihood factor is determined by multiplying how often you do it by the probability of the event. And so if you only ever use the press every one or two years...

Gaye Francis (04:48):

The probability's really small; likelihood's really small.

Richard Robinson (04:50):

Yes. But you still lost your arm. <affirmative>. And one of the points about the Common Law and the OHS Act so far as we're concerned took the common law and elevated the statute law. It basically says; everybody's entitled to an equal level of protection. <affirmative>. So if you use that press at all, it doesn't matter if you use it 10 times a day or once a year, you are entitled to an equal level of protection. And that equal level of protection, the minimum, must achieve is recognised good practice.

Gaye Francis (05:15):

Yes.

Richard Robinson (05:16):

And that means it's consequence driven. So what happened to R2A was we kept trying to persuade major hazard regulators to adopt a criticality driven consequence, credible risk consequence approach. And they all kept using...

Gaye Francis (05:32):

Risk.

Richard Robinson (05:32):

Quantified risk assessments. And so R2A had to walk away from it.

(05:36):

The other point about that though was, and that's why R2A changed ourselves from being risk engineers to due diligence engineers, because that's what you're trying to demonstrate. And the only way to do that was to actually use the criticality driven vulnerability type approach.

(05:52):

Now, why we're interested in this and why the subject came up and Gaye's looking at me slightly strangely, but anyway, the reason why this popped up was that we got this request to have a look in Victoria at a couple of major hazard proposals that were nearby a major hazard facility. And it turns out very recently...

Gaye Francis (06:11):

Some developments.

Richard Robinson (06:12):

...some developments, very recently, that the area that you have to consider for major hazards planning purpose has suddenly increased.

Gaye Francis (06:22):

The contours have changed.

Richard Robinson (06:23):

The contour's changed. And nobody knows quite why this has happened.

Gaye Francis (06:26):

We have a bit of an inkling that they've gone... they're now being driven by the consequences rather than the likelihood.

Richard Robinson (06:33):

We think they're taking the credible worst case consequences. And the way you normally do that, from R2A's viewpoint, you do a zonal vulnerability analysis. You basically say, where's the largest energy storage on the site? Like a gas sphere, for example. And if that dropped as low, what's the credible worst case that could happen? And the consequence for that is, you then say; well, this is the credible worst case consequence from this site. You then look at where you are in proximity to that and design for that accordingly.

Gaye Francis (07:00):

They've still got a little bit of buffer in there because they're still taking a lot of their measurements from their boundaries.

Richard Robinson (07:06):

Correct.

Gaye Francis (07:07):

So there's a little bit of a buffer in there, but yes, they appear to be consequence driven rather than risk driven. The contours.

Richard Robinson (07:13):

We think so. We don't know so, because nobody's saying. <laugh>

Gaye Francis (07:18):

Very hard to get all of this confirmed.

Richard Robinson (07:20):

Absolutely. Cos all you get is a public summary of whatever the safety case with the major hazard regulator and the major hazard site is. And that actually doesn't tell you. And that is particularly frustrating. We at R2A very much support the view of the US Supreme Court Judge Louis Brandeis in his happy little book "Other people's money and how bankers use it" where he spells out; 'sunlight is the best disinfectant, there is no sunlight in here at all'.

Gaye Francis (07:47):

I think one of the... and I guess where we are coming from now... So yes, they've changed to that consequence driven, what appears to be consequence driven contours. What they're still doing though, is they're not applying the full precautionary approach that's been required by the OHS and WHS legislation. They're still concentrating their controls only in the controls of what they have. So they're not looking at the overall controls that could be put in place to deal with a major hazard facility, that all parties, reasonable parties or responsible parties could put in place.

Richard Robinson (08:23):

Correct. Because, you see, it's not the level of risk that's important. It's a level of control. I mean, if you want to be safe and live next door to a major hazard facility, you might be in an underground reinforced concrete bunker with its own air supply, which will be stupendously expensive and the amenity will be terrible.

Gaye Francis (08:40):

Very ugly!

Richard Robinson (08:41):

But you will be safe.

Gaye Francis (08:42):

Yes.

Richard Robinson (08:43):

That's not the issue. It's just a question of designing for what you've got. And what puzzles us is every site has problems. There can be flood,

Gaye Francis (08:51):

Cyclone,

Richard Robinson (08:53):

Lightning, bushfire, overlays. Designing for bushfires as one of the critical ones that people do now. <affirmative> You've gotta take into account. And the worst part about it is, and this is the bit that really bothers us, is that by not actually articulating this properly, they're leaving the people who are currently there potentially exposed. I mean, if you're dealing with explosions, the things you're really fret about. And I mean this is just a standard terrorist modus operandi, is that you put a bomb outside a building and you let it go 'bang' and if the glass isn't properly laminated and things like that, the glass just turned into shrapnel and pails everybody inside the building. And with an explosion, it's not so much the over-pressure that causes the biggest amount of grief.

Gaye Francis (09:32):

It's the shards of glass exploding.

Richard Robinson (09:34):

It's bits of materials that get picked up, tiles and things like that get flung out at high speed. I mean, that's what killed that poor girl Katie Bender in Canberra when they took the hospital down, remember? And they blew it up and the metal shard came flying across the lake and killed her. I mean, you know, you've got a plan for what the credible, critical worst case consequences are.

(09:54):

And so far as we can tell, all these municipalities that have major hazard facilities, they haven't been told what the credible, critical, worst case is. It's just opaque. And so anybody who's living there doesn't really know what they should or should not be designing for. And the council's actually not actually in a position, in terms of building and planning controls, to actually answer that question correctly. And what's probably something I don't think they fully comprehend... Whilst the OHS Act of Victoria and the WHS legislation in all the other jurisdictions, is the enabling legislation for major hazards. And whilst Ministers are exempt from the legislation, they make the rules. And local government elected counselors, I think are too, although I'd have to double check, that's a legal question. That doesn't invalidate the responsibility of the planners, designers, architects, engineers, all the other people from not providing appropriate safe (advice) consistent with their obligations.

(10:53):

And since, Victoria in 2020, Premier Andrews made Criminal Manslaughter, following the rules from the Common Law, admittedly it's gotta be on a beyond reasonable doubt basis. But what disturbs us about this is, we're fairly confident that the major hazards facilities and the major hazards regulator know what these credible worst case consequences are.

Gaye Francis (11:15):

And maybe not sharing the details with the responsible, other parties that really need to know about them.

Richard Robinson (11:21):

Well, yeah. Like the people who are actually at risk, for one! And it's a duty under legislation, you must consult. It's an offense if you do not consult at the front. So there's something really peculiar here that hasn't properly been addressed.

Gaye Francis (11:34):

But I think if all of the responsible parties take that role of what they can do, you're gonna make those developments so much safer than what they currently are. There's so much more that you can do outside of just what the major hazards facilities can do.

Richard Robinson (11:50):

Remember we did that place in Queensland all those years ago now where they had the hospice on the hill overlooking the

Gaye Francis (11:57):

Major hazard

Richard Robinson (11:57):

And they had four major hazard facilities. <affirmative>. And remember we turned up... You see, I do have a certain sympathy for the major hazard facilities because they're kind of cranky because they keep getting all these people building closer and closer to them.

Gaye Francis (12:09):

Yes. They have been there for a very long time.

Richard Robinson (12:11):

And I can see why they're frustrated. In this particular case, the hospice on the hill was there before the major hazard facility. So there's some moral...

Gaye Francis (12:19):

Yep.

Richard Robinson (12:20):

..there. But when we turned up to talk to them, the question we asked them; "Right guys," Cos they're so used to being beaten to a pulp by the community for creating dangers for the community. Right. And we sort of turned up and said, "Look, we gotta live together here. What do we have to do as a site to protect ourselves against the credible worst case consequences that you guys can produce?" And I remember them looking back at us saying, "You're not here to beat us up? You're just here to ask something?"

Gaye Francis (12:45):

"Did you really ask that question?" <laugh>

Richard Robinson (12:47):

"We're really here to find out what we need to do to protect ourselves against you from the credible worst case things you can do. That's in the interest of the major hazards facility and that's in the interest of the,

Gaye Francis (12:56):

the site.

Richard Robinson (12:57):

Tthe site and the people doing things. It's in everybody's interest. Remember we had to go and see the Deputy Premier about that one.

Gaye Francis (13:03):

But what was interesting about that was there were things that could be put in place, to make the facility safe or the site safe, against the major hazards. And it wasn't that complicated and didn't cost a lot more money when they were in the planning and the development stages to put in at a site that already existed.

Richard Robinson (13:23):

Well, I think it actually has a larger social implication too. Because one of the things we suddenly realised dealing with the council, and so forth, there were no engineers around. Council had just been de-engineered. Now this has all been decided by town planners and building surveyors. I don't think they had a clue about what could actually be done. And, I mean, I was trained as a highly protective risk engineer in the US with Factual Mutual all those years ago. I'll perhaps not go into too much history, but the whole point of the Factory Mutual system, it's an engineering underwriting organisation. You can't join the pool unless you have achieved and developed your site and facility to recognised engineered management standards. You simply can't join the pool. So the idea that you can't engineer this sort of stuff, it was just preposterous. It's been being done from Factory Mutual since the 1840s. And the idea that major hazards, regulators and councils aren't fulfilling their duties under our legislated obligations by our parliaments, I just find extraordinary.

Gaye Francis (14:18):

And I think they're, they're really doing themselves a disservice in and in the development stages or in the development of their communities as well because they're really relying on one set of controls that are often after the fact, and not concentrating on a set of precautions that could easily be put in place.

Richard Robinson (14:35):

Following the hierarchy of controls. There's something really peculiar. And the idea that people are actively breaching the legislation and knowingly doing so, well, perhaps, I wouldn't say knowingly, it's inadvertent, but from the way in Victoria passed the legislation, it is not just recklessness anymore - you knew or made or let it happen - it's also ought to have known.

Gaye Francis (15:00):

Yeah. And I think that makes a big difference.

Richard Robinson (15:02):

And, and I'm confident major hazards and the major hazard site, they have studied their site, they know what the credible worst case consequences are. And by spelling these inner and outer safety areas, they're actually ineffectively spelling out what they believe the relative consequence around the site would be. And that should enable appropriate design controls.

Gaye Francis (15:24):

And I think that's the summary of this podcast, isn't it? That major hazards have existed in our communities for a long time. There's some controls that are there, that they put in place. But there's a whole lot of other controls and precautions and mitigations that other parties, responsible parties, can put in place to protect themselves against these facilities.

Richard Robinson (15:44):

Design engineered controls are very reliable, robust controls, not emergency procedures. So if you're dealing with an explosion, I mean explosion of travel at the speed of sound.

Gaye Francis (15:53):

You're not gonna get anyone out in that time.

Richard Robinson (15:54):

It's 340 meters per second. Okay. The inner outer safety area is sort of between 300 to 1,000 meters. This is all going off in three or four seconds.

Gaye Francis (16:05):

But robust building designs and precautions you can put in place and they will be very effective.

Richard Robinson (16:12):

Always.

(16:13):

Otherwise you abrogate the entire basis of an industrial civilisation and 200 years worth of effort and it's quite peculiar.

Gaye Francis (16:21):

Okay. So that's sort of our summary. Don't sterilse a whole lot of land from major hazards facilities, just because you don't think there's other precautions that can be put in place, because there are.

(16:34):

So we hope you found our podcast interesting and we look forward to you joining us next time. Thanks, Richard.

Richard Robinson (16:40):

Thanks Gaye!