Cunning vs Smart - Leadership in Work, Health & Safety

Risk! Engineers Talk Governance
Season 7, Episode 7

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis explore organisational Cunning versus Smart and why it matters deeply for health, safety, and governance.

Richard draws on decades of observing large organisations and argues that the people who rise to the top aren't always the most competent, they're often the most cunning. But cunning alone isn't enough. The real sweet spot, what Richard calls wisdom, is the rare combination of intellectual smarts, real-world experience, and strategic savvy.

The conversation turns to boards and the growing concern that professional board members are increasingly disconnected from the industries they govern and they reflect on how this experiential gap is shifting boards toward managing legal liability rather than optimising safety, and what that means for organisations operating under SFAIRP obligations.

They also dig into the tension between institutional knowledge and innovation. Why you need people who've lived and breathed an industry, complemented with fresh eyes willing to challenge the status quo, and how engineering's broader role in building a better society fits into all of it.

And don’t miss Richard’s Kardashians vs Muppets joke at the end and how it relates to the topic.

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 Cunning versus Smart in the Health and Safety space.

(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, please head to the website, www.r2a.com.au.

Gaye Francis (00:34):

Hi, Richard. Welcome to our podcast session.

Richard Robinson (00:38):

It's good to be back again Gaye.

Gaye Francis (00:41):

Today we're going to talk about cunning versus smart, but as it applies in the risk world and especially in relation to work, health and safety.

Richard Robinson (00:53):

Sort of reminds me that I forget which comedian it was, the Australian comedian. We were talking what's the difference between the Muppets and the Kardashians? The Muppets are real.

Gaye Francis (01:04):

Okay. I wasn't expecting a Richard joke at the start of our podcast, but that's okay.

Richard Robinson (01:08):

Oh, sorry. I can't remember the comedian's (name). The guy who used to run Spicks and Specks.

Gaye Francis (01:12):

Adam Hills.

Richard Robinson (01:13):

Yes, that's right.

Gaye Francis (01:14):

Very good. So we're just sort of reflecting on why we think where we are...

Richard Robinson (01:20):

There is a relevance to that joke. I'll come back to it.

Gaye Francis (01:24):

<laughs> Okay. What when I least expect it?

Richard Robinson (01:26):

No, for the subject.

Gaye Francis (01:27):

Okay, cool. So Cunning versus Smart and especially in terms of risk and how we've seen people making decisions or not making decisions as the case may be. And you sort of broke people into three groups. Do you want to give us a quick summary of that?

Richard Robinson (01:46):

Well, this is just my observation about history and watching organisations. And one of the things I noticed is that it didn't always seem to me that it was the smart, competent people that got the top job. It was always the cunning. And what I meant by that was that in large organisations, you see there's a corporate change or some change in their business environment, and then the deck chairs shuffle around. And then the people who tend to survive that process tend to be what I call the cunning. Now, not necessarily the smart or the most competent. And that was always a bit of a frustration to me. And I used to watch all this with some interest trying to figure out what was going on. What I did work out, and because I saw people with great academic ability, for example, who had no cunnng whatsoever and just floundered around completely.

Gaye Francis (02:29):

So were they in the smart category?

Richard Robinson (02:31):

Well, no, it depends what you mean by smart. It's got to be smart and sharp. Whereas with what you really needed in your senior positions, are the people who were both smart and probably had some academic ability, but it depends what you mean by intellectual ability rather than academic ability per se, and had the cunning too. And whenever I found one of those, I found they were the right people to work for.

Gaye Francis (02:51):

Right.

Richard Robinson (02:53):

I remember, I think I told you when I was working for GHD, I was coming back on a flight. I was sitting next to Ben Fink, the managing director, and the Victorian government had gone through some crisis. I couldn't remember what. And he said, "Well, it's going to be a problem this time around. Previous times when crisis happened, they had money. And as soon as an issue happens and the government's got money, they'll start spending. And so what you're going to do is position yourself to find these things.

(03:13):

Now, when I looked at that board and they had Sir Bernard Callanan as Chair, who is the hero of Sparrow Force and all that sort of thing and the highest ranking Catholic in Australia and Ben Fink was from the Fink family who was sort of a Jewish family. And you looked at this organisation of these two people that are running this show and you thought, this is a good place to work for. These are intelligent people. They're cunning. They know what they're doing. And they also have the intellectual smarts to make it happen. And you just suddenly realise why an organisation is successful. When you see that kind of arrangement, you just know it's got to work.

Gaye Francis (03:47):

I think you called that wisdom, didn't you?

Richard Robinson (03:49):

Yeah. And that's what I referred to as the wisdom thing. And when you get a team like that, it's extraordinary. But that doesn't happen very often from what I've seen in business. And we've noticed now people keep talking about boards and how frequently they're changing and the kind of people who are getting on the boards now, that they're making it a career of professional board membership rather than being technically competent in the business that they're becoming a board member for.

Gaye Francis (04:13):

Or sitting back and saying what does this organisation need going forward? And it's not a short term vision.

Richard Robinson (04:22):

Well, particularly when it's a technological organisation, engineering organisation, where you need ... Normally you've got to have been in the business for a while to actually understand, whether it be water or rail or aviation or whatever the technology is, if you don't actually have an experience in that patch, being an outside board member is good to a point, but you need some people that really...

Gaye Francis (04:41):

Have lived and breathed it to be able to ask those hard questions or challenge those questions.

Richard Robinson (04:46):

Well, one of the things that frustrates us, I mean, I think I told you, I won't say which company it was, but I came across a lawyer board member. It was an underground mining organisation. He'd never been underground to have a look at what these people who worked for the organisation actually did. And we've commented a number of times we keep coming across ports and pilotage organisations...

Gaye Francis (05:05):

Haven't been out on the water...

Richard Robinson (05:06):

They've actually never done a job with a marine pilot to find it just what these people are doing. If you go out with a marine pilot at 2:00am in the morning on a stormy night, it's character forming, is it not?

Gaye Francis (05:16):

Yes, yes. I've done it a couple of times in my younger youth and not anymore, not for me.

Richard Robinson (05:22):

Getting off a ship when the sea is heaving one and a half to two meters and you get it wrong, you lose your legs, it's character forming.

Gaye Francis (05:29):

And I think that's probably a good thing. And I remember doing a job for a Board and they introduced that, not to do a pilotage because it wasn't a pilotage organisation, but they actually, for new board members, they actually took them around to some of their sites and they had to almost do like a site induction exercise. So they had this familiarisation with what the business did because just sitting in a boardroom and getting papers about what the organisation does doesn't really give you that appreciation.

Richard Robinson (06:01):

No, unless you're down there talking to them and seeing what they do and slopping around the mud or whatever the guys actually do in the job you don't really understand. And especially if it's 2:00am in the morning. I remember going down in the old yard in Melbourne, Flinder Street yard, which is no longer there, but I turned up at 2:00am to see what these guys are doing and they were completely astonished to see me. What are you doing here?

Gaye Francis (06:24):

I think we often do that as part of our due diligence exercise, don't we? You got to go down and you're really looking for what are all the conditions that the people who are doing the job are faced with.

Richard Robinson (06:36):

I'm not sure we do it as much as we used to.

Gaye Francis (06:38):

We don't do it as much as we used to, but we used to do it. I think that aspect of our work has changed nowadays.

Richard Robinson (06:47):

I think that's correct.

Gaye Francis (06:48):

And we're more a communication exercise of reporting up to the people that can make the decisions about what's being done and a communication tool.

Richard Robinson (06:58):

Well, I think that's correct because what we keep finding is that the organisation knows what the issues are as a whole, but the decision makers don't have a clear comprehension or articulation in a way that they can actually make useful decisions. But this is also to do with the fact that the board members don't have that experience that they used to have. So whereas previously, I mean, if you dealt with a rail organisation, several people on the Board had basically lived and breathed railways for the last 30 years, and it was visceral. They knew what the issues were.

Gaye Francis (07:28):

And then they were sort of supported by the legal representation and the accounting (representation), whereas it appears the boards that we've seen appears the other way that they're heavily leaning towards the legal and accounting.

Richard Robinson (07:39):

The independent directors and therefore they're trying to minimise legal liability rather than optimise safety per se. And part of the reason that's not because they don't necessarily want to make the organisation safe, but they just don't know enough about it.

Gaye Francis (07:53):

Well, we just did a whole podcast on that didn't we around the ignorance is endemic and what information do people have.

Richard Robinson (08:00):

Well, particularly when you see some ... I mean, obviously part of the reason the Chairs tend to influence who gets picked as a board member. One of the things you try and do is pick board members who are going to be agreeable with the Chair's point of view, but if you keep that up, you eventually wind up at a very bad place.

Gaye Francis (08:16):

Yeah. So SFAIRP is really encouraging people to be wise. So have the smarts, but also a cunningness about them that they can communicate what needs to be done going forward.

Richard Robinson (08:29):

But it's more than that because you've got to think up new ideas.

Gaye Francis (08:32):

So that's the innovation aspect.

Richard Robinson (08:34):

It's the innovation part. I mean, if you're just cunning and you don't understand the business, you're not in a position to think up new ideas because you just don't know enough about it. It's one of those weird things, and I can see why it's such a complicated thing, because on the one hand, you've got to have informed people to know what they're doing, but just doing the same thing for 30 years doesn't make you innovative, that's for sure.

Gaye Francis (08:55):

No, that is very true.

Richard Robinson (08:56):

One of the reasons why you get external partnership, because they come up with a different point of view and a different experience.

Gaye Francis (09:01):

So it's a really fine line between getting that balance of stable people who know about the thing and then new people, because it's often the new people that challenge...

Richard Robinson (09:10):

That's correct.

Gaye Francis (09:11):

... the status quo and have that innovation.

Richard Robinson (09:14):

And they'll becoming perhaps from another industry because one of the things we do is pull ideas out of other industries. It's a bit like that CORE (Conference on Railway Excellence), paper you did where you were basically saying, why don't train drivers have PPUs? They're personal pilots units that marine pilots have.

Gaye Francis (09:27):

Which is a situational awareness device.

Richard Robinson (09:30):

And technically there's no reason why they shouldn't. It's just that the railways haven' thought about it.

Gaye Francis (09:34):

Or we have never done it that way before.

Richard Robinson (09:36):

Railways don't like that. I mean, it's just not the way they go about things. We have noticed that the Boards are changing over so fast now that ignorance is becoming endemic in a way that it never used to be. And I suspect that's one of the reasons why we're showing up more often advising Boards. But what we're really doing is taking what the organisation knows and representing it in a way in which that Board, which tends to respond to liability more than safety, it answers it properly.

Gaye Francis (10:05):

Yeah.

Richard Robinson (10:06):

Which is a little bit sad, but that's what we mean by the cunnings are inheriting the world more than the whys, if that makes sense.

Gaye Francis (10:15):

But it is, it's very difficult. And how do you keep that corporate knowledge and ownership with the people that are making long-term decisions.

Richard Robinson (10:24):

Well, it's slightly more than that too, because one of the strange things that happened, if people keep talking about stakeholders, that there's the shareholders, but boards are basically taught these days that their shareholders are everything and that the people who work there are just functionaries to make it happen. And part of that's just comes down to money and when it only comes down to money and no other values and no sense of duty. I think you've got a problem. And if you look at the world at the moment, it does seem to be coming down to money, not a sense of duty.

(10:55):

Well, I told you, when I was around the Victoria Division of Engineers Australia, there's a plaque on the wall. Obviously, a lot of the Chairs that came out of there were all from the Second World War era & vintage, but I didn't even know who the guy was. I still don't know who that guy was. All I just said, there's a bust of him and it just said he served. Didn't say anything else. And so it was a question of doing the right thing by your organisation and your society as a whole, rather than just saying we're here for the money.

Gaye Francis (11:22):

That's probably, and I think that's where the importance of engineering comes in because if we all sit back, engineering makes a better society and I think sometimes we forget that.

Richard Robinson (11:35):

Well, the commercial people try to make you forget it, that's for sure. <laughs>

Gaye Francis (11:39):

Let's trying to end on a positive, Richard. But it is, you have to work in the constraints of that. And I think we've talked before, money isn't everything. You do need it to be able to do things, but I think you've got to keep that bigger picture in mind.

Richard Robinson (11:55):

But that's correct. But see, what's happened, we've commented on this before, what's happened with engineers generally is they've been pushed downwards and put into their boxes, if it were. And as that fourth year engineering student at RMIT remarked to me when I was lecturing there, you might all be born creative, but you can be trained out of it. So you've got to make sure that you keep that creative bug up.

Gaye Francis (12:14):

Creative and the innovation going.

Richard Robinson (12:16):

And that's the wise part. You keep looking for new things.

Gaye Francis (12:20):

And you do that by surrounding yourself with people and keep being more informed.

Richard Robinson (12:24):

Yeah, but it's like our frustration with the way the IT world's going. I sort of commented that one other time that I was getting frustrated that our laptop was being turned into a giant iPhone. Well, I just noticed the most recent Mac release, they've taken an iPhone chip and put into their most recent Mac laptop. That's what they've actually done. And then I was noticing that Windows world is seriously complaining. And what they've actually done is where we used to run the system ourselves and we're responsible. We keep trying to do that and we're resisting it, but what the IT people are doing is they're saying, no, we run everything out here in the cloud and you guys are just an appendage, just a phone attached.

Gaye Francis (12:59):

So they're giving you what you think you need.

Richard Robinson (13:01):

They're giving you what they think you want and where you're getting crankier and crankier about it, aren't we?

Gaye Francis (13:08):

So does that put us in the cunning, the smart or the wise category?

Richard Robinson (13:12):

We're aspiring to the wise. Let's put it that way. <laughs>

Gaye Francis (13:14):

Let's do that. Alright. On that note, thanks for joining us today, Richard, and we'll see you next time.

(13:21):

Actually, Richard, we did not finish because I don't know that you finished off your joke that you started about the difference between the Kardashians and the Muppets and how it relates to our podcast.

Richard Robinson (13:31):

Well, I tried to point out the Kardashians have been fairly cunning, but they weren't actually wise. And the question then becomes, which is wiser, a muppet or a Kardashian and obviously the Muppets.

Gaye Francis (13:41):

<laughs> Okay.

Richard Robinson (13:41):

Which tells you a bit about how we've gone as a society, doesn't it?

Gaye Francis (13:44):

It does. It certainly does. So on that note, I think we have finished now. So thank you again. We'll see you next time.

Richard Robinson (13:51):

Thanks Gaye.

Formal Safety Assessments

Risk! Engineers Talk Governance
Season 6, Episode 7

In this episode, Risk! Engineers Talk Governance, due diligence engineers, Richard Robinson and Gaye Francis, discuss Formal Safety Assessments. 

Key highlights include:

• A Formal Safety Assessment (FSA) is meant to provide a logical and reasoned argument that can withstand legal scrutiny.

• Formal Safety Assessments should identify the critical issues of concern, the current controls in place, and the further practical controls that could be considered, as well as the reasoning for implementing or not implementing those further controls. 

• Many FSAs lack this logical reasoning and instead just list risks and general controls, without clearly connecting them to the specific hazards. 

• Threat barrier diagrams can help provide a logical structure by clearly showing the issues of concern, the controls, and the consequences. 

• Formal Safety Assessments should be concise and focused, not hundreds of pages long, as the key is to present a clear, robust argument. 

• Formal Safety Assessments should also be regularly reviewed and updated to reflect changing context and availability of new controls, rather than just being recycled from previous versions.

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 formal safety assessments.

(00:12):

We hope you enjoy the 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, you can head to the website www.r2a.com.au.

Gaye Francis (00:29):

Hello Richard.

Richard Robinson (00:30):

Welcome back Gaye.

Gaye Francis (00:32):

Welcome to another podcast session. We're going to talk today about formal safety assessments and what they are and what they mean. I think this is sometimes the bane of our consulting work that we do.

Richard Robinson (00:46):

This certainly is.

Gaye Francis (00:47):

And I guess articulating what we think that a formal safety assessment is may help others when they're putting it together to think through some of these elements.

Richard Robinson (01:01):

Yeah, because they pop up in different places and a lot of people don't call it that, but some legislation, for example, the ESMS (Electricity Safety Management Schemes) in Victoria, called up formal safety assessments, and you might recall...

Gaye Francis (01:10):

So that's the electrical industry.

Richard Robinson (01:12):

Well, you might recall that when we did the functional safety assessment of the trains, that was a formal safety assessment too. So it pops up in a number of places and we do rather find that people, let's just say there's a difference of opinion what constitutes a formal safety assessment. It's an aspect of a safety case, but it's meant to be the core aspect. Now, I dunno how you wanted to actually do this, but I was going to explain what formal actually means by jumping back to a bit of 19th century philosophy.

Gaye Francis (01:38):

You can do that, Richard. You don't get many opportunities.

Richard Robinson (01:40):

In the 19th century, the philosophers used to break philosophy to three parts. They had formal philosophy, natural philosophy, and moral philosophy. Formal philosophy is what these days we call reason or well, it's reason, logic, I guess. Natural philosophy, that was to do with what we these days call science. What we in R2A tend to call the laws of nature to try and distinguish it from the legal concept of natural law. But it's how the world, the natural material x space/universe actually operates. So gravity of 9.8 meters per second square, and other things that Gaye perhaps doesn't wish to recall. And then there's moral philosophy, which is the way the world is supposed to be. And that's normally split into two parts practically. And when we looked at, we've been looking at the way -- we sponsored David Howarth, the professor of public policy from Cambridge -- it's the lawyers who spell out socially how it should be, and the engineers tend to spell out technically in terms of managing the laws of nature how it's supposed to be. Now, if you don't have this understanding of what the formal actually means, just the logical and reasoned argument, which you would think would be self-evident, but you review a lot of formal safety assessments, and they're not logical and reasoned, are they?

Gaye Francis (02:55):

No. And they can be not so concise either.

Richard Robinson (02:59):

Yes. So did you want to summarise that?

Gaye Francis (03:02):

I think when we are looking for that formal safety assessment, that logical and reasoned argument, we want to have those core, credible, critical issues of concern. So in safety terms, it's the things that can kill and maim, which we've always said. What are the current controls in place? And if we go down the SFAIRP option, which is what the WHS legislation/OHS legislation requires, what are the further controls that could be put in place? And then what is your reasoning for doing or not doing those particular further practical precautions?

Richard Robinson (03:37):

And that's the reasoning part.

Gaye Francis (03:38):

And that's the reasoning part. So often when we get an assessment, a Formal Safety Assessment or FSA, often it's almost just their "Risk Register". So it's got what the issue is, what some of the mechanisms are, and then a whole lot of, well...

Richard Robinson (03:56):

They tend to just characterise it by risk, not looking at criticality, which just drives us crackers. The logical argument sort of says, how bad can it be? Not what is the risk, simultaneous appreciation of likelihood and consequence. That'll be totally misleading in safety terms.

Gaye Francis (04:11):

And then they list a whole lot of what they say are controls. But when you actually look through the controls, many of them are procedures, policies...

Richard Robinson (04:22):

Not actually what you're going to do to actually stop this particular nasty thing from actually occurring.

Gaye Francis (04:27):

Correct.

Richard Robinson (04:28):

And then they haven't therefore logically connected the quality system to make sure that particular control is sustained. And sometimes they do because they talk about it as a critical control to deal with a critical hazard and then they're heading in the right place.

Gaye Francis (04:40):

Correct. And I think that's why we favour the use of the threat barrier diagrams, isn't it? You can spell out what your issue of concern is. The barriers or controls are easy to see in a document or in a diagram, and then you've got the consequences at the end. And so then if you list those quality control elements at the bottom, then you've got that logical reasoned argument.

Richard Robinson (05:03):

Well, you can spell out what the current controls are, what the further possible controls are and where they would act in terms of the hierarchy of control that a court will find logical not what our regulators are doing. And we've been writing separately about that to the <inaudible> and we'll see if that has any effect. But then it's actually a reasoned logical argument. I suppose it always mystifies us because you've probably noticed that when we write a report, what surprises most people is it's brevity. Well, possibly its pithiness is perhaps a more accurate statement.

Gaye Francis (05:34):

Concise. Can we use concise?

Richard Robinson (05:36):

Yeah, we can use concise. But normally dealing with a particular issue does not require scads and scads of paper. If you've got scads and scads of paper, you're probably confused and missing the point. And the one thing you can't do is use it to a target level of risk and safety, which again, somebody putting a formal safety case argument together or a formal safety assessment using a target level of risk and safety -- you're kidding yourself, it means you really haven't thought it through.

Gaye Francis (06:02):

Yeah. It's really that being able to present a clearly thought through argument, isn't it? And you're right, it doesn't need to be long. We get these safety cases that are hundreds of pages long and the bulk of it is almost summarised in 10 to 20 pages.

Richard Robinson (06:19):

Or even less. I mean, remember what you're trying to do. Because if that bad thing happens, it will be subject to legal scrutiny. So it's got to make sense to a court. And that court won't be trained in the laws of nature. It'll almost certainly only be trained in the laws of man. And so that mean that argument has to survive that kind of scrutiny. And it's that robustness of the court process. I mean, I can have a lot of opinions about the court process. And we were talking before about the law is much too important just to be left up to lawyers, which I have to say we keep hitting that point and the lawyers keep making that point to us. But if the lawyers don't understand the laws of nature and really are just relying on the experts, technical experts, to explain the laws of nature, that really does mean that there's a bit of a gap in the way in which human beings and our society actually make decisions.

Gaye Francis (07:11):

I think also coming back to the formal safety assessment is you really want to see what controls they're testing for or precautions.

Richard Robinson (07:19):

What further controls they're testing for.

Gaye Francis (07:21):

And that's often the element that is missing in the FSA that we have seen.

Richard Robinson (07:26):

Correct. And that's the thing the courts will test for.

Gaye Francis (07:28):

So especially when it goes to a regulator or it's part of a bigger safety case, they're asking to see: we understand that you've got these controls in place.

Richard Robinson (07:37):

Typically the ones that are Standards, most of them, they've complied with the regulation.

Gaye Francis (07:43):

Yes.

Richard Robinson (07:43):

But the question was: Have you tried to do more than just the regulation or standard? And that's the bit they're not testing for properly.

Gaye Francis (07:51):

And it's okay not to do some of those things, but you've got to have an argument as to why you haven't done it. And that's where you would expect to see it would be in the FSA, Formal Safety Assessment.

Richard Robinson (08:00):

The one that always puzzles us, I suppose, is the REFCL (Rapid Earth Fault Current Limiter), the ground fault neutralises for the high voltage, 22 KV circuits in South East Australia and so forth. And the only jurisdiction that has actually adopted it is so far is Victoria. And the reason is because the AEER, the Australian Energy Economic Regulator, basically said, no, you can't do it, we won't let you have the money to do it.

Gaye Francis (08:22):

Well, it won't be funded through the regulator. Now they could decide that in some locations they really do need to do it for bushfire.

Richard Robinson (08:29):

Well, that's correct, but they won't get extra funding for that purpose. That will be their decision, so therefore their loss of profit to achieve that outcome.

Gaye Francis (08:38):

But as a board, they could make that decision, but they need to document that that's the reason that they're not going to do it. And they have considered it in all of their circumstances because all of this is contextual, remember? So everyone's FSA is not the same thing.

Richard Robinson (08:54):

Well, even Victoria, I mean the reference got put into the high bushfire prone areas, but that means somebody decided which was high and which was low bushfire. And that's not actually a binary distinction. That's obviously a graded thing. And therefore you'd probably find the fact that you can have an argument in some areas where that's exactly correct, and that would depend on the actual circuit layout and all sorts of things.

Gaye Francis (09:15):

But then there were other organisations that said, we've only got a small high bushfire consequence area, we're going to underground ours. Because that was better for them or that was their reasoned logical argument going forward.

Richard Robinson (09:29):

Well, particularly they got an isolated high bushfire consequence area, just undergrounding. You might just say, well enough, we'll just underground those ones and not worry about the REFCL. That's correct.

Gaye Francis (09:36):

And I think that feeds into some of the questions we're being asked around these formal safety assessment is what is the context? And I think that context is changing. So this is not just put on your shelf, do it once, put it on the shelf and forget about it. This is something that you've got to keep revisiting and whether it's on milestone occasions or when things change or whether it's on an annual or every couple of years basis. But these things have to keep evolving and we're certainly not seeing that in some of the formal safety assessments that come through to us.

Richard Robinson (10:06):

Yeah, it's usually the previous one recycled,

Gaye Francis (10:08):

Correct? Correct. And can we update it accordingly?

Richard Robinson (10:12):

Yep.

Gaye Francis (10:13):

So just be careful of formal safety assessments. For us, it's that logical reasoned argument.

Richard Robinson (10:18):

That would survive post-event legal scrutiny.

Gaye Francis (10:21):

And I think the key element that we see missing is that consideration of what the further practical controls are or possible controls are, and the argument as to why you are or aren't going to do something. I always say that I think it's more important to document why you're not going to do something compared to why you are going to do something, and then say when you're going to revisit that, because technology becomes more available, more robust, more reliable.

Richard Robinson (10:47):

Yep.

Gaye Francis (10:48):

So thanks for joining us, Richard. Hope everyone found that interesting.

Richard Robinson (10:51):

Thanks Gaye.

Being Relevant, Reasoned & Concise for your Due Diligence Argument

Risk! Engineers Talk Governance
Season 5, Episode 7

In this episode, Richard Robinson and Gaye Francis discuss why effective due diligence arguments need to be relevant, reasoned, and concise. 

They share their frustrations with overly complex safety documentation that fails to deliver clear, defensible arguments, and explain why safety cases should be brief yet comprehensive enough to stand up to legal scrutiny. 

Drawing from their extensive experience as expert witnesses and consultants, they offer practical advice on creating effective safety documentation that not only satisfies the courts and makes sense to lawyers and Boards, but actually improves safety outcomes at optimal cost.

The episode starts with them explaining (following a question from their producer) how safety approaches shifted from target-based risk assessments to the SFAIRP (So Far As Is Reasonably Practicable) principles with the OHS Act in Victoria, and why it was necessary.

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 why your due diligence argument needs to be relevant, reasoned and concise.

(00:16):

We hope you enjoy the chat. If you do, please give us a rating and subscribe on your favourite podcast platform. And 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 (00:35):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:37):

Hi Gaye.

Gaye Francis (00:39):

We were just talking around topics of what we're going to talk about for this particular podcast and how we come up with the topics that we're going to do. And we're talking to our producer Megan, and she actually asked us, well what was there before the WHS legislation and the OHS legislation before SFAIRP came in. And we were having a conversation that R2A has always based their business on the SFAIRP principles in line with the Common Law. But before the SFAIRP provisions came in with the WHS legislation, there was a requirement to do risk assessment.

Richard Robinson (01:15):

Yeah, that's right. Using target levels of risk and safety. That's actually the way the legislation of most jurisdictions actually called it up. And that's why it got confusing because Victoria went SFAIRP in 2004. And you might recall we used to quantify risk assessment in a major hazard facilities and whilst the legislation basically required it to be done, that wasn't a problem.

Gaye Francis (01:34):

No, you had to do it.

Richard Robinson (01:35):

You had to do it if you wanted license to trade. But then the common law actually demanded that you use the SFAIRP approach. And there was the elevation of SFAIRP from the common law into statute law that made the change. And you'll recall one of the reasons why we became due diligence engineers quite specifically was because we sort of had to say to the major hazard regulator in Victoria, the WHS or the OHS Act in Victoria has commenced, we cannot keep doing target levels of risk and safety. We actually cannot do it. It's why we changed our name to due diligence engineers because that was the only choice you had. And what was interesting about that was remember the Victorian legislation of itself does not call up due diligence. It just demands that all reasonable practical controls are in place.

Gaye Francis (02:18):

So the two principles have been existing in or coexisting in society. Sometimes you need to do something, the target level of risk approach to get your license to trade, but it's never met your common law requirement duties.

Richard Robinson (02:32):

Correct

Gaye Francis (02:34):

And so now by changing to the WHS legislation that has changed that principle. And I think one of the key ones was in Victoria, why it did go to the SFAIRP approach was people were saying, well, we've done a risk assessment and it says that the risk is low so we don't have to put those controls in place.

Richard Robinson (02:51):

Correct.

Gaye Francis (02:52):

And something awful would happen. And the first question was asked was, well, why wasn't that control in place, which is just recommended good practise. And the comments that were coming back was, oh, we did a risk assessment and it was low so we didn't do anything.

Richard Robinson (03:05):

Well, that's quite literally. I mean in a practice, this came from machine guard because somebody's lost their arm on a press and the workplace inspector turned up and took one look at the press and said this is X, Y, Z press and recognise good practice would have this form of machine guarding (so) why isn't it there? And the answer came back, under the legislation we're required to do a risk assessment. We did the risk assessment, the risk was so low we didn't need to put the guard on it. Now the way that often happened was rather simple fact that they didn't use the machine very often, so the exposure was low, but if somebody was actually using, and if they got it wrong, they just lost their arm.

Gaye Francis (03:39):

And I think that's why we favoured the due diligence approach very, very early on because the questions that we were being asked about were high consequence, low likelihood events.

Richard Robinson (03:50):

After the event. And that's what the coroner and the regulators kept asking Why wasn't recognised good practice on this press? Why wasn't it done this way? And the answer was, well, risk assessments don't work.

Gaye Francis (04:04):

So that's sort of a bit of an introduction of why it's changed.

(04:07):

But the topic of this podcast, we want to call it Relevant, Reasoned and Concise. It comes from two aspects. It comes from an expert witness aspect, which Richard's going to talk about in a minute. But it also comes from we are seeing so much work being done around the hazard and risk space to develop a safety case or an argument for a project as to why they think everything's in place and the sheer volume of work that is being done, it doesn't appear productive and it still doesn't give them a reasoned, concise or defensible case a lot of the time.

Richard Robinson (04:48):

Correct. And that's what you need. That's what I don't get. See, there seems to be some belief somehow I've never understood this, that the courts and the parliament legislation stands aside from what engineers do. And I'm sorry guys, that's just not the way it is. You must do everything within the context of the courts, the parliaments and the legislation because that's what our system is. If you don't do it that way, you're just aggregating the entire point of an open free democratic society. And I don't think engineers believe it. I think they're all in favour of it, but they just don't seem to think about it very often.

Gaye Francis (05:22):

So the value that people are getting out of doing all of this work, it just doesn't appear to be there for the amount of work that's being done as well as the cost associated with developing something. It's stupendous.

Richard Robinson (05:36):

It's utterly stupendous and we just watch people spinning the wheels for no useful outcome. It just drives us completely crackers. And you sort of recall, we're doing some work for government now fairly urgently where perhaps we won't talk about what that is, but what seems to be a surprise to the people we work with, the speed with which we come to the heart of the matter and provide recommendations to fix it seems to take people aback.

Gaye Francis (06:02):

Yes. It's been commented on.

Richard Robinson (06:05):

By different parties.

Gaye Francis (06:07):

Correct.

Richard Robinson (06:08):

It's been rather odd.

Gaye Francis (06:10):

But by doing the due diligence approach, you're really putting a line in the sand and you're saying, okay, these are the issues that we have to deal with, safety issues that we have to deal with. These are our options, control options and precautions that are on the table. What are reasonable in the circumstances? It doesn't get much harder than that.

Richard Robinson (06:28):

Well, I think this is where it flows onto the expert witness stuff. You see, it's always been crystal clear to me. And when you're doing an expert witness case, the lawyers tend to brief you and say, read this case, this might be relevant. Read this case. It might be relevant. And one of the lines they always give you is what does an expert witness need to do to get it right. Okay. And there's been a number of judgements by different cases, McKeeter versus Sproule is one that we often use. And there's a more recent one which I've just been made aware of, which Judge Kifford in Gold Coast Council versus motorsport facility, I think it was. In that last one, there were a couple of engineers who were experts and the judge was sort of saying, I have no doubt you guys are qualified and know what you're talking about, but you didn't give me an argument I could work with. And this is part of the point about all this sort of stuff. Any argument that you put forward has to be relevant, reasoned, and concise. I think the proper term for that is cogent for those who care about the language.

(07:34):

And if it's not reasoned, clean and precise and it's muddy and scruffy and the court is spending extra time trying to understand what's being said, you're not helping the court, you're not helping your client, you're not helping anybody. And the idea that being muddy in court is going to be a successful approach to getting a useful outcome for either your client or the court or society generally. It just doesn't make any sense at all. And the whole point of a safety case is it needs to be relevant, reasoned and concise.

Gaye Francis (08:06):

And presented in a transparent (way).

Richard Robinson (08:08):

And one of the reasons we always say, if you're putting a safety case together, it's not a bad idea to have a lawyer review it because if it doesn't make sense to the lawyer, it's probably not going to make sense to the courts and probably not much sense to your board either for that matter. And guess what your board would like? A safety case that would survive post-event legal scrutiny. If nothing else, to prevent liability to said board members. And we simply don't get why the engineers aren't willing to actually consider what the lawyers require as a necessary argument. It's something we just sort of, it's...

Gaye Francis (08:40):

A little bit frustrating.

Richard Robinson (08:42):

Well, they just use a standard and say, it complies with the standard, we're good. And you're going.... No.

Gaye Francis (08:46):

And I think coming back to that, if you have that at the heart of the matter that your documents that you have to produce have to be relevant, reasoned and concise, you come up with a pretty pifthy document. It's not a big document in the end.

Richard Robinson (09:04):

Ten pages is a long report for us.

Gaye Francis (09:06):

It is a long report. <laughs> But the content is very good though, Richard.

Richard Robinson (09:12):

Concise, even.

Gaye Francis (09:13):

And I think that's the difference, isn't it? I've been reviewing some safety cases for a number of organisations and you get hundreds of pages and you had to refer to different documents within this, and I got lost really, really quickly.

Richard Robinson (09:31):

And you know the business! Can you imagine if you give it, this is all technical stuff and you can imagine going to court and trying to get the barristers and the lawyers up to speed on all this technical, I mean the laws of nature. I said just talking what's a kilogram? What's a mole? The court doesn't know what you're talking about. Then you start talking about KPA and they're sort of what does that mean?

Gaye Francis (09:58):

So for us, a really good safety case is in the tens of pages compared to it's nowhere near a hundred pages. So I think that's probably our biggest tip at the moment. Make sure all the safety stuff that you're doing is relevant, reasoned and concise. And if you can do that, you'll cut through a lot of the wheel spinning that seems to be happening.

Richard Robinson (10:22):

And your senior decision makers can sign off it, your lawyer will understand, and if it's necessary, and we hope it never is, but the courts will get it too.

Gaye Francis (10:31):

But I also think more importantly, and the reason for doing all of this stuff is you can make your place safer. You can address all of the safety concerns that are in there. And if you've got a quality assurance system on top of that safety case to say how you're going to make sure that those controls remain robust, then you do get a jump in safety improvement.

Richard Robinson (10:53):

Correct. And you will do it in an innovative way that's cost effective and all this sort of upside, downside risk stuff they talk about, you'll effectively be doing that because you'll be doing it at best cost.

Gaye Francis (11:04):

Yes. So it's the optimum, isn't it? So we hope you found that one interesting today. That's one of our difficulties that we have in sometimes reviewing some of our work.

Richard Robinson (11:16):

Yes, that may be true, but it's also true that the people who are coming to us now, like regulators and well all sorts of regulators saying, yes, we agree, we're really trying to get the engineers up to speed and they seem to be resisting us in some places.

Gaye Francis (11:30):

Correct. So thank you for joining me today, Richard, and we'll see you next time.

Richard Robinson (11:35):

Thanks, Gaye.

Obligations for Engineers under WHS/OHS legislation

Risk! Engineers Talk Governance
Season 4, Episode 7

In this episode, Richard Robinson and Gaye Francis discuss the obligations for engineers under the WHS legislation (OHS Act in Victoria) and understanding the importance of their role if things go wrong.

They discuss the fact that Work Health and Safety (WHS) legislation is the overarching legislation in Australia that must guide engineering design and decision-making, and their surprise at this lack of awareness and how many still (wrongly) use Standards as a design basis.

They emphasise that engineers are central to upholding WHS requirements, as they are the designers responsible when things go wrong and that the engineering design process needs to be a top-down, holistic approach that considers all relevant stakeholders and objectives, not a bottom-up siloed approach. 

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss the obligations for engineers under the WHS legislation, which is the OHS Act in Victoria, and understanding the importance of their role.

(00:21):

We hope you enjoy their chat. If you do, please give us a rating and subscribe on your favorite 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 (00:40):

Good morning, Richard, and welcome to another podcast session.

Richard Robinson (00:43):

Good morning, Gaye.

Gaye Francis (00:44):

We just had a discussion about what we're actually going to talk about today and we thought we've done some interesting courses and you've been involved in some discussion groups the last couple of weeks and there's been some really interesting topics and I guess themes and observations that we've made during these. So what we thought we'd talk today about is just some of those things and how they're all sort of being integrated together, or not integrated together as the case may be.

(01:11):

So the first one was we gave a chartered assessors course last week for Engineering Education Australia. So these are the people that go around and assess members to become chartered status. And there's obviously a requirement in that that they need to know about risk. We were very kindly given the praise that they were just given a master class in risk management and in risk over a three hour period. So that was rather nice. And then Richard, you gave a discussion? Were you involved in a discussion group or a round table?

Richard Robinson (01:43):

Well, no, there was this fellow doing a PhD and he was trying to work out what the integration and what the practical integration between security and fire was. I mean, the classic case is the fire doors in a nightclub being locked to keep people out, but when the fire occurs, people can't get out, and that sort of thing. And it was an interesting discussion because the fellow doing PhD was Richard Kathagh and he had me as a fire engineer, long-term member of Society of Fire Protection Engineers, and a fellow called Damien Rogers who was a security guy, ex-military fellow. So from (R2A's) point of view, very much like Bob Browning. And one of the sort of diagrams he came up with that he had, he said, because we sort of observed that both the security and the fire protection was sort of increasingly going into silos, which is something that we thought has always been an error and which we never did and have always said they were an integrated thing.

(02:33):

And one of the little diagrams that Richard was testing on us was three circles. One was sort of security, one was fire and then one was design. And both Damien and I both instantly felt, because at the end we were sort of having a discussion, we, Damien and I were looking saying, well, we pretty seriously agree about all this, don't we? And then what were basically saying, well, what you need to do was push security and the fire and the design circles together and where they overlapped, you had to write in WHS. And so far as I could tell, the fact that we were quite so vehement about it, I mean I think the matter had been raised previously because Richard had been talking to other people trying to work out what was going on. But the fact that Damian and I said the overarching legislation is WHS. And if you're on the fire business, you need to know about WHS. And if you're on the security business, you need to know about WHS. And we both agreed that if things had gone into silos and people weren't coming top down, they were coming bottom up within their silo. Now if you want to have confusion in the design process, come bottom up within your silos and you will achieve a magnificent confusion.

Gaye Francis (03:33):

That sort of position was almost supported in the chartered assessors course that we did last week when they sort of said, there's actually not many candidates that understand that the WHS legislation is the overarching legislation for engineers.

Richard Robinson (03:47):

Well, yes, because it hammers design. It's got all these duties and designers have their own little category, their own level of responsibility. Now they've got a design so it's fit for purpose and without risk and you've got to test it to confirm that it's good and you've got to provide the right information to the user. And that is just focused exclusively at designers. And what do engineers do? They design!

Gaye Francis (04:09):

They do, and we have covered this in a number of our other podcasts, so we won't go on too much about it today, but I thought that was really interesting that they didn't think that they had this responsibility even if you didn't have the title of a designer, engineering design...

Richard Robinson (04:23):

Correct.

Gaye Francis (04:24):

You still had the obligations under the WHS legislation and that was the overarching legislation that should be pushing everything. And the feedback from the assessors was there was a lack of understanding amongst engineers and young engineers going for chartered status, that that was the case.

Richard Robinson (04:41):

But it also flowed on too, because we were just talking about it before the session. I mean we keep doing this expert witness things and what we observe is the only expert witness there are engineers. I have not seen, it's very rare. Sometimes you've got a town planner, but even then when it comes to technical stuff, it's the engineers doing it.

Gaye Francis (04:57):

I was going to say, town planners typically don't give technical advice.

Richard Robinson (05:03):

Advice.

Gaye Francis (05:05):

That's correct. They're mainly giving planning legislation or a planning guideline advice. And it's all about a compliance audit rather than dealing with the laws of nature.

Richard Robinson (05:16):

Correct.

Gaye Francis (05:17):

And so the engineers have to understand that they're central and important to this. And I dunno that we've been making ourselves that important.

Richard Robinson (05:24):

Well, it's like that, I mean, well before your time, but Ralph Nader's little thing unsafe at any speed with the Ford Pinter, remember when people crashed in to the back of that, the petrol tank blew up and burnt the occupants of the car. And Ford had made the decision based on a cost benefit analysis that it wasn't worth doing anything about because there were so few accidents and killing these people in these fireballs was not seen to be particularly relevant. Well, the courts pretty quickly, the American courts pretty quickly disabuse them of that theory! And if you just think for a moment about the Chris Maxwell QCs review of the 2004 OHS Act in Victoria, which kinda kicked all this WHS legislation off in Australia, he had two things. He said, to the extent you have control, you have the duty and the engineers during design sure have the control. And the other thing was everybody's entitled to an equal level of protection. You can't go around saying and say, just because it's cost effective, we've going to leave these people at risk. You just can't do it. And Nader went on to say, he said, it's all very fine to sort of blame the engineers for letting this happen. But he said, you can't get rid of the engineers. They are central to this process. They're unavoidable. The engineers have to be there.

Gaye Francis (06:25):

They have to be involved in the fix. So yes, they've been part of the problem to start with, but they're there as part of the fix as well.

Richard Robinson (06:31):

Well, except they probably listened to the finance people rather than actually sticking to their guns. And as we've commented before, the only way out of that hole for the engineers is to get the lawyers involved.

Gaye Francis (06:41):

And put that up. So I think there's been a couple of observations there. There's been the siloing of things that you sort of experienced in the security and fire.

Richard Robinson (06:52):

It's a bit more than that though. I remember Frank Stocks, our New Zealand associate, has just been calling up talking about the expert witness he's doing with regards to somebody who got killed on the foreshore in Auckland Harbor. Now for years he's been giving advice to the council. Councils want to have an open foreshore, so you get the view and you don't have barriers that are unattractive. On the other hand, having an open foreshore means that people can fall over the edge. Now there's a balance here and Frank's observation, which is what came out of that discussion with the balance between the two for that PhD candidate, the only way to solve it so far as he could tell was if you want to make a place safe, but you also want to keep all the amenity, you can't just do it in isolation. You've got to get the parties in the room who actually talk through the issues. Because it's not that you're going to do necessarily one or the other, it's that it's on the balance you've got to get it right. And the only way to do it with all the domain experts working together.

Gaye Francis (07:46):

But that means you're looking at a solution that looks at all of those issues together.

Richard Robinson (07:51):

In a holistic top down way.

Gaye Francis (07:53):

Correct. So you're saying based on the balance of significance of the risk versus the effort required to reduce it, can we achieve safe outcomes? Can we achieve city amenity? Can we achieve safety?

Richard Robinson (08:05):

Well, you might recall this is the advice we're just giving to the Hobart. Well, for Tasport at the Hobart City Council, gave the same reason.

Gaye Francis (08:11):

Yes. They have an open foreshore as well. And so they have to get together with the council and all of the stakeholders involved in that and have a look at what you can do when there's a working port in the center of a town basically.

Richard Robinson (08:24):

And they want to keep it an open point because otherwise the Sydney to Hobart (Yacht Race) is not quite as exciting as everybody can have when you all just cluster around the docks.

Gaye Francis (08:33):

That's true. They do put additional measures in place when they've got those sort of things there.

Richard Robinson (08:37):

Yeah, I know. But that's the point. It's appropriate to the circumstances.

Gaye Francis (08:43):

So I guess what we're saying is the engineering design process has almost gone to a bottom up process.

Richard Robinson (08:50):

Correct.

Gaye Francis (08:51):

Instead of a top down process. And we've always said, you've got to get those high level objectives in mind first, what you can do and then come top down.

Richard Robinson (09:01):

It's a design options analysis. What are we trying to achieve? And in the circumstance, what are the options that are available to us and in the circumstances, which is the best and most appropriate, the diligent decision-making process. I don't fully understand why that's been missed, particularly when you talk about chartered engineer status because the whole point of chartered engineer status, I mean they sort of supplanted the old corporate membership, but the idea was you demonstrated capability and you were just formally advising somebody that you'd got there.

Gaye Francis (09:31):

You almost got the skillset available.

Richard Robinson (09:34):

Yeah, that's correct.

Gaye Francis (09:36):

I think when I was coming through the ranks and you're going for chartered status, they were sort of saying 10 years plus experience. And I think now they're sort of aiming at that three to eight years experience. So there's a lot of experience that can be gained in that time. And I guess it depends on what sort of jobs you do and all of that sort of thing. But I don't think the value of engineers is being recognised.

Richard Robinson (10:05):

Well, I think in many ways, I mean, we look at some of the post-grad courses that we've been delivering, and you're sort of look at some of the candidates you've got. I mean, the ones that are brilliant are absolutely brilliant, and they can do the job as well as we can. But then we've observed this, and I sort of did my back in last week and I was talking to the physio and he was talking about the students that he has to deal with. He said, look, the brilliant ones are still brilliant. That hasn't changed. So I said, one of the problems we've got now though is with the system, and that's the way we've set it up, is that when a candidate's not so good, the difficulty you have in failing them, the amount of paperwork required to fail somebody now is so much more than the paperwork of saying somebody is brilliant. It's easy to let them through. And well, as we do as part-time lecturers, you don't want to fail anybody.

Gaye Francis (10:49):

No. So you give 'em as much help as you can, but some of them just don't get over the line. And then it's sort of like, oh, they've sort of achieved what we need to. We'll give them a bare pass.

Richard Robinson (10:59):

Correct. Because it's easier to do that and you rely on the system to fix it up a bit later. Now, whether that's actually achieved or not, we're not in a position to comment, but unless somebody just fails to submit or something like that, the capacity to fail people has become very difficult.

Gaye Francis (11:14):

Well, that's with everything isn't now. I've got two young kids and telling them that they're not good at something is not the right thing to do anymore. <laughs> And there's some things that they're not so good at.

(11:27):

How do we wrap this up from there? I guess it was just an interesting conversation. I think there was some common themes throughout those two things that we did last week that things are being done in silos. The importance of the WHS legislation and how it hangs everything together, combines everything together, I don't think was well understood.

Richard Robinson (11:51):

It's not understood. Actually, there's not even an awareness that it could be so.

Gaye Francis (11:57):

That's true, probably, that there's not even an awareness around it. So I don't know how you elevate it. I mean, this is what we do for a living.

Richard Robinson (12:05):

It's like I gave the paper to that fire engineer conference back in middle of the last decade, the Society of Fire Protection when it was in Sydney. I explained the fire engineering design brief and if the fire engineers in Australia was inconsistent with the WHS legislation. I think only two or three people got it. So as far as I know, the old process is still going and that has all sorts of consequences for designers.

Gaye Francis (12:26):

I think one of the interesting comments, and this a little bit on the side, there was an ex regulator at one of the courses last week.

Richard Robinson (12:33):

There was a lawyer there too. Keep going.

Gaye Francis (12:35):

He didn't put his hand up until the end. But the regulator was saying that it does call up standards and things like that sometimes.

Richard Robinson (12:43):

You mean the WHS regulator?

Gaye Francis (12:44):

Yes. But there's a requirement under the WHS legislation that is not well understood, but people are still complying with Standards and things like that to get their license to trade.

Richard Robinson (12:57):

Correct.

Gaye Francis (12:57):

So there's almost two processes that are competing.

Richard Robinson (13:01):

Well, people are still using Standards as a design basis. Which for an engineer absolutely makes no sense. I mean, I was obviously making past remarks how Engineers Australia is encouraging engineers to give their IP free to Standards Australia, which makes no sense whatsoever. None of the American societies do it - if you want some advice, you're going to buy it.

Gaye Francis (13:27):

So I guess engineers have to understand their obligations under the WHS legislation and it's essential to all the work that engineers do.

Richard Robinson (13:36):

Correct.

Gaye Francis (13:37):

It has to be done top down.

Richard Robinson (13:38):

Correct.

Gaye Francis (13:39):

And we have to not do it in silos. It has to be an integrated process and approach to it that considers all of the things that need to be considered.

Richard Robinson (13:48):

The engineers are absolutely essential to this. They cannot abdicate, they can't walk away. They are the designers when it all goes wrong. And they will be the ones in court.

Gaye Francis (13:58):

I guess engineers understanding how important they are is the first thing. And then yeah, and understanding the requirements on WHS legislation. So thanks for joining us today, and we hope to see you next time.

Richard Robinson (14:11):

Thanks.

Risk Appetite versus Zero Harm & the Confusion at Board levels

Risk! Engineers Talk Governance Podcast
Season 3, Episode 7

In this podcast episode, Richard Robinson and Gaye Francis discuss the concept of risk appetite versus zero harm and the confusion it creates at board levels because they're trying to put all of their risk issues into a single statement.

They discuss how a risk appetite is about balancing risk and reward, whereas zero harm is about nothing bad happening, and this gets uncomfortable when applying risk appetite to human safety. 

They outline the commonly applied risk paradigms and how a synthesis of risk appetite in commercial and safety practice does occur in project due diligence.

Access the episode’s full transcript below.

Episode’s transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss risk appetite versus zero harm. We hope you enjoy the episode. If you do, please give us a rating. Also, don't forget to subscribe on your favourite podcast platform. If you have any feedback or topic ideas, email via admin@r2a.com au.

Gaye Francis (00:31):

Hi Richard. Welcome back to another podcast session.

Richard Robinson (00:34):

Hello Gaye. Here we are again.

Gaye Francis (00:35):

We are. Today we're going to talk about probably something that I find one of the most interesting topics in our business, and that's risk appetite versus zero harm and the concepts of the two, and the confusion that it's creating at board levels because they're trying to put all of their risk issues into a single statement. And it sort of comes up as that risk appetite statement, doesn't it, at a board level. The easiest way probably to explain it is to maybe go through the three different risk paradigms that we see most commonly used, and then have a discussion around that and why the confusion exists.

Richard Robinson (01:16):

Yeah, because obviously just for the point of the confusion, if you say risk appetite, you've got to balance risk and reward on the one hand, whereas zero harm says nothing bad's going to happen. But when you start applying risk appetite to human safety, you sort of get an unpleasant feeling about the whole thing. And that's where the boards are getting this confusion.

(01:32):

Now, we've noticed this tension over the years in all sorts of places, and the way we normally explain it's to sort of go through these three paradigms or ways of thinking about risk. And we suspect there's more than these around in the risk business. We keep saying it's a multidimensional space, but these are the three. Now, when you talk about risk appetite, you're basically saying, look, we've got a certain course of action and it's got pluses and minuses, and if you've got multiple courses of action, you pick the one with the greatest pluses and the least minuses. That'd be a sensible thing to do. And in order to determine what that is, you start talking about risk appetite. And that's the way the commercial people talk about it because they're always talking about upside, downside risk, that that's the way they think.

(02:11):

When you start talking about zero harm, that's the safety people and the safety people are saying, we don't want bad things to happen! From a safety viewpoint, we just want to eliminate them. And we've had this conversation about if the police commissioner says our objectives to sort of stop all child molestation in this city, whilst most of us recognise that, that's probably aspirational, we certainly expect a police commissioner to have that general view on life and to do everything they can to try and achieve that zero harm outcome.

Gaye Francis (02:42):

Yes, he doesn't have a risk appetite for that.

Richard Robinson (02:45):

Does have a risk appetite for child abuse. And the idea that you're going to offset community resources, you're going to do everything you can, but your objective is zero harm. The two make an awful lot of good philosophical sense when you consider one in commercial practice and you present a one in safety practice.

(03:02):

The place where it's you get a synthesis, and we've sort of talked about this a number of times, is project due diligence, which is basically the essence of our text. Because if you have a hundred projects that your business is contemplating, you just systematically work through those looking at the upside and downside risk associated with each project. And if you can afford to do the top 10, you pick the ones with the greatest upside risk profile and the least downside risk profile just from a sensible commercial viewpoint. The trick is, of course, that when you actually start doing any particular project, you want the thing to go smoothly without any hitches or glitches. And that means you are basically saying you're promising the upside risk position. And you're saying from that upside risk position, you want a zero harm outcome. It'll be delivered on time, to budget, nobody gets hurt and all the other good things.

Gaye Francis (03:50):

It'll deliver what it's supposed to deliver.

Richard Robinson (03:53):

So from our point of view, that's when the two actually synthesize. But the rest of the time there's still this underlying confusion.

Gaye Francis (04:02):

And trying to put it into a single statement or a risk appetite statement at a board level for an organization trying to include all of those different elements. It doesn't quite make sense.

Richard Robinson (04:13):

And I've never quite understood it because I mean, historically, a lot of organisations used to split their commercial decisions and commercial risk management away from their safety decision and their safety risk management. And whilst I understand that the two overlap, to a point. I mean, one of the points of the WHS legislation, it basically doesn't say go and work out cost benefit for controls. It basically says, work out what can be done, and before you start thinking about costs, work out the possible practical control before you start thinking about costs and then consider the cost, secondly.

Gaye Francis (04:48):

Well, I mean the WHS legislation's really asking, why wouldn't you do something rather than creeping up on it and saying why you would do something.

Richard Robinson (04:57):

Correct. And you can see how the two ideas sort of dance around each other so far as we can tell. And when we make the remark that risk is this sort of complex space and you can cut it through in different ways. My actual guess is that probably what you need to do if it's a commercial matter, is cut it through the commercial risk assessment tools and if it's a safety risk matter, cut it through with a safety risk tools, which has a zero harm philosophy lurking in the background. And if it's project risk, well then you probably will be doing both.

Gaye Francis (05:27):

Yeah. I think the environmental factors, environmental organisations are getting more to the zero harm model. That's sort of the tendency. Victoria has changed their legislation to be so SFAIRP.

Richard Robinson (05:43):

But all the other legislative zones use the RIO principle, where there's serious environmental harm, you should do everything to postpone and prevent environmental degradation. I can't remember the exact words of the RIO convention off the cuff now, but it actually has the same general philosophy. You sort of say, if this is really bad, you've got to do everything you can to make sure it doesn't go wrong, and you figure out what can be done first and then you work out the costs second.

Gaye Francis (06:09):

So I guess there's two courses of actions that boards or organisations can do. They can do the one that you just said and separate out the commercial issues from the safety issues, or you could have just an overall risk position statement that included all of those things. But I think the key thing, and the thing that we sort of try to educate boards on is that there are those different ways of thinking about things, and you will get different insight depending on which risk paradigm you apply at the time.

Richard Robinson (06:35):

Well, you always favour the risk position statement that does give the board a unified proposition without committing themselves. I guess it's nuanced, but nuances are sometimes necessary.

Gaye Francis (06:49):

So that's quite interesting. Any final comments? I think it was just one of those topics that we've seen boards struggle with a little bit and this insight, and I think the project (due diligence) was sort of the one that brought those two concepts together.

Richard Robinson (07:05):

Well, I think it's more than that though, because you see, the way we run the project (due diligence) was remember, you basically have the promised upside risk position and you do everything you can to make sure that nothing goes wrong. That is actually the safety position. And I've got to say that our experiences, when we've done project due diligence reviews for about $10 million to about $3 billion Australian dollars worth, none of them ever gone over time of budget, have they?

Gaye Francis (07:27):

No. I think the other key thing to that, and they've probably done the commercial thing really well, or the upside downside risk position well, is they've been very good at articulating what the benefits are of the project.

Richard Robinson (07:39):

 Correct.

Gaye Francis (07:39):

So the upside position or that risk appetite position is well known, and then you're doing that downside or zero harm study from that position. Where it starts to get really difficult for projects is when they're unable to clearly articulate what the key benefits of the project are.

Richard Robinson (08:00):

Yeah, I'd have to agree with that.

Gaye Francis (08:01):

What you're trying to achieve.

Richard Robinson (08:03):

One of the things we always have difficulty with the project due diligence is getting, you might recall a couple of projects we were asked to look at, and if they couldn't articulate what they're set out to achieve, then it's virtually impossible to risk manage it because the goal posts keep changing.

Gaye Francis (08:21):

And that comes at a number of levels. I mean, that comes at your stakeholder engagement, and all of the stakeholders have to agree to what those critical success outcomes or what that end prize is for the project. If you've got different stakeholders wanting different outcomes for your project, that risk appetite certainly changes from different people's perspective.

Richard Robinson (08:43):

And that's where the difficulties arise.

Gaye Francis (08:45):

Okay. So I think this is probably an issue that'll continue with organisations.

Richard Robinson (08:52):

It's not going away. Not from what we're seeing.

Gaye Francis (08:54):

But I think if you can clearly see the difference between the ways that people look at things or the ways that you can cut through the risk issues, then that gives you that little bit of extra insight. So thanks for the chat today, Richard, and we'll see you next time.

Richard Robinson (09:09):

Thanks Gaye.

Has WHS Legislation & Risk Management Standards stopped people thinking?

Risk! Engineers Talk Governance Podcast
Season 2, Episode 7

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis discuss whether the WHS legislation and Risk Management Standards have hindered critical thinking in organisations. 

They observe that some organisations have become stagnant and resistant to change, relying on third-party consultants to handle risk management instead of actively engaging in the process themselves. They emphasise that risk management should be a line management function and that organisations need to adopt processes and procedures rather than simply outsourcing them. 

They also discuss the importance of curiosity in risk management and the need for organisations to embrace a variety of tools and techniques to gain different insights into risk issues. They caution against relying solely on single processes and techniques, as they may not capture all potential risks, particularly rare critical ones. 

Read the full transcript below.

Episode transcript

Megan Barrow (00:03):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss whether the WHS legislation and risk management standards have stopped people thinking. We hope you enjoy their chat. If you do, please give us a rating. Also, don't forget to subscribe on your favorite podcast platform, and if you have any feedback or topic ideas, get in touch via admin@r2a.com.au.

Gaye Francis (00:43):

Hi Richard. Welcome to another podcast session. Today we're going to talk about has the WHS and risk management standard stopped people thinking?

Richard Robinson (00:55):

Yes, and that is a big subject and it's one which has actually puzzled us greatly because we've been watching a lot of organisations go into a form of stasis, which apparently is a word which Gaye doesn't use very often, but by stasis I mean they've actually got a fixed process and they're not going to change it even though there's evidence to say they possibly should.

Gaye Francis (01:16):

Or it's not being as useful as it could be in giving the results that they needed to deliver.

Richard Robinson (01:21):

And we've wondered why this might be the case. And we've noticed with a couple of large organisations that what seems to have happened is that this whole risk area has become so important to senior management that they've basically said, well, look, this is all too hard for us, so what we're going to do is employ people, put a process in place and it'll all happen and we won't have to think about it anymore.

Gaye Francis (01:40):

But when you say employ people, you mean third parties as in consultants or advisors that give the advice and then walk away?

Richard Robinson (01:46):

Well, they actually try to, yes. And they walk away. And our observational, the whole point of the WHS legislation and environmental legislation and company law is to say, no, you can't walk away if you are the decision maker, if you are the mind of the corporation, you have to actually be responsible. And this whole thrust of legislation the last 10 years has been hammering that point harder and harder and harder.

Gaye Francis (02:07):

And I think we've covered it in another podcast, is that risk management is a line management function.

Richard Robinson (02:14):

It's always been that.

Gaye Francis (02:15):

And that's where the reliability.

Richard Robinson (02:17):

That was that point I failed to mention in another session because I do remember going to an AREMA (American Railway Engineering and Maintenance-of-Way Association) conference, it must've been the late 1990s, and I was listening to all these insurance people and they'd expanded themselves into risk management because that's how that sort of area came from where the risk management came from. My question was, when are you going to drop the insurance term and just make it risk management and make risk management the line management function? If you've ever asked a question at a large conference and the speakers have just looked back at you, the panel, and it's been a stony silence, that was the one that was the stony silence.

Gaye Francis (02:50):

Right. So you didn't get a response?

Richard Robinson (02:52):

I did not get a response!

Gaye Francis (02:56):

Now you've lost my train of thought. Okay. So yeah, it's a line management function and the organisation has to adopt the processes. And the one thing that we have seen fail is that you can get third parties to put in processes and procedures to do things, but unless the organisation adopts it, then it's useless.

Richard Robinson (03:21):

Yeah. It's got to be something people want to embrace in the first place. We're seeing people just try to force people to do things and that doesn't work. They've got to want to do it. And the other thing we've noticed with the risk management standard is people just push the risk management standard approach. And remember, we sort of hammered this point before, the point is that all reasonable practical precautions - ALL - so you've got to go through all the different ways ideas can be found. I mean, the legislation, for example, tries to do the generative thing saying, you must talk to people, you must consult widely. But that doesn't mean to say you can't have technical process where you've got technical experts looking at the core issues and things like that. And indeed, senior management should know about some of these things and should think about these things. Our frustration with senior execs not knowing the hazards, I mean, I shouldn't pick on lawyers, but I do remember meeting a lawyer of a very large underground mining company back in the 2000s; he'd never been underground, he'd never seen the dangers and the risks that the people who generated the wealth that were supporting them were actually involved in. And I never quite understood that. I mean, we have the same thing with marine pilots. You've got marine pilot boards who've never been out on a pilotage to see what the marine pilot's actually doing.

Gaye Francis (04:28):

And I think that's one of the key things, isn't it? They should know about those things and if you're a member of the board, you have a responsibility to inform yourself to do that and make sure you're getting the right information from your senior executive to make sure you can make informed decisions.

(04:45):

But just going back to the tools and techniques, and I think that's one of the ways that R2A is different and we often come unstuck when a client comes to us and asks for something that this is the way we want things done. And even though it doesn't quite make sense to us. So there's a whole lot of different tools and techniques. As you said, there's generative techniques; there's the technical hazops, and fmeas; there's threatened vulnerability studies. And I always say at the end of Richard's courses, which we do through Engineering Education Australia, is be aware there's a whole lot of tools and techniques out there. They will all provide insight for you.

Richard Robinson (05:20):

And none of them are wrong.

Gaye Francis (05:21):

None of them are wrong, but they do provide different insight. You need to be aware of the pros and cons and you got to pick the tool that works best to solve the problem. And I think some organisations are getting unstuck or becoming unstuck because they have a process that you do for risk management.

Richard Robinson (05:39):

Often the risk management standard.

Gaye Francis (05:41):

Which is the way to do all risk management tasks and it's not providing the value for money, it's not providing the insight that they need to make their organisation safe.

Richard Robinson (05:52):

It's worse than that. They're spinning the wheels at great costs than expense to the organisation. And what's probably worse is that the really competent people who are actually trying to think this stuff through it causes a blockage and stops those competent people from actually making substantive and useful change.

Gaye Francis (06:07):

So yeah, I think some of those processes have stopped people thinking, haven't they?

Richard Robinson (06:12):

Yep. I mean, one of the things people ask me at different times, what makes a competent risk person and the answer I usually give them is very Rudyard Kipling answer: insatiable curiosity. Again, Gaye always looked at me strange when I say that because that's from my point of view, it's one of your underlying characteristics. It's the kind of person... They're doing something, and we've hired lots of engineers over time, so you and I have watched different engineers doing things in different ways, for example, and some of them get so focused inside the thing that they don't sort of become aware of what's happening around them. Whereas the one that looks up and sees other things happening and wonders, well, I'm doing this, sure, but that's happening over there and that's not quite consistent with what's going over there. Should I have a way of aligning this? And that's what I mean by a satiable curiosity. It's that nosiness. After watching your program of life, I've got a funny feeling that may be genetic as your daughters have the similar traits, but that curiosity is something, and not all people have it. I haven't quite understood this one. It's almost like a childlike nosiness.

Gaye Francis (07:19):

It's an ability to question, isn't it? And not being afraid potentially of the consequences that come that way, speaking up, but also being aware of the bigger picture.

Richard Robinson (07:30):

But an organisation that can let people like that prosper is a complex organisation.

Gaye Francis (07:35):

Yes.

Richard Robinson (07:36):

And I think that's where one of the things that our society is doing and this formalisation of risk management, particularly with the WHS legislation and the ISO 31000, I'm not sure in many ways it's actually doing, it's achieving the success people think it should. I mean, we spent a fair part of our life overturning Australian Standards because the difficulty we've got is that it's not an Australian Standard that's right. The standard isn't recognised good practice. It's the worthwhile ideas contained in the Standard. And very often there's a lot of good ideas and a lot of Standards, but not all the ideas and all standards are worthwhile.

Gaye Francis (08:12):

But you have to think with that. And I think a couple of courses that we've done recently with some transport organisations is you have to solve it from first principles first, come up with the best solution and then you go and check against the Standard. Whereas some of the engineers were saying, oh, but we just designed to the Standard. And the chief engineer was sort of saying, no, no, no, no. What are we trying to solve? What is the best solution that we can get.

Richard Robinson (08:37):

In order to achieve the outcomes that we want? And then we check back against the Standard. That's that quote I always give from that 1939 Chairman of Victoria Division of Engineers Australia: "Standards have two purposes to prevent fools from their folly and rogues from their roguery". Because you're meant to work at from first principles how it's supposed to be, and then you test back against the Standard, make sure you haven't stuffed something up. And likewise, if somebody, a contractor's done the work and it's wrong, the simplest way to hang the poor sod is to generally say you haven't complied with the Standard, you're toast. But I've seldom found a Standard that applies in all circumstances, in all ways. That's not the case, not a technical standard.

Gaye Francis (09:14):

And they're also lagging indicators as well. They're often five and 10 years old. And technology is improving at pace at the moment. And what was reasonable, what may not have been reasonable five years ago certainly should be considered again now. And with the technology that's available and the ideas that are available.

Richard Robinson (09:37):

Well, that's like underground mining in the shipping business where you're watching the changes. I mean, the first time I went underground, which was a long time ago now, but people are still talking nostalgically about air leak miners. That's where some guys have got a jackhammer basically supported on the leg hammering away, and they dug the rock out and then they put the chargers in, they lit it themselves, and then they came back and mucked it out themselves and did the whole thing by themselves. These were all lean people. There was never a plump air leak miner that I've ever seen. When I turned up, pretty much that was all gone and people were driving vehicles underground with giant machines doing various things.

Gaye Francis (10:18):

And now it's all remote control from above the surface.

Richard Robinson (10:22):

They're on Perth airport, just drive it remotely.

Gaye Francis (10:24):

Which is quite incredible.

Richard Robinson (10:26):

And that happened in about 30 years ago, I think.

Gaye Francis (10:28):

Yeah, it doesn't take long at all. I think one of the other things that is potentially happening is that the corporate memory is failing safety. So by having these really structured processes, it's stopping people talking within the organisation across different departments and projects across an organisation of all the studies that have been done. Some of the work and the questions that we've been asked recently; Richard and I've been in business for 25 years or a bit more together is: "Oh, we didn't know you did that study for us". And they've been done for different parts of the organisation and it's really a technique or a methodology that would help solve the current problem that they're coming to talk to us about and they don't know. So it's really interesting that the corporate memory in safety doesn't seem to be being shared and propagated throughout the organisation.

Richard Robinson (11:25):

Well, it's certainly more than that because R2A's modus operandi has always been: We'll train you to get it done and then you keep doing it. And that obviously works for a while until that person or people or that team moves on. So it's probably about a five year cycle the way it's going, because people don't seem to be lasting. It is not a career in the way in which things used to be these days.

Gaye Francis (11:48):

No. People are moving on from jobs and the turnover's quite high - two to five years.

Richard Robinson (11:53):

Correct. In fact, we still keep coming across people. Now, remember we did some lecturing at different universities at different times and 10 years later there's guys just looking at us going, ah, I remember you.

Gaye Francis (12:06):

So yes, we are the exception, Richard, we're still working together after that long.

Richard Robinson (12:11):

It's curious. Anyway.

Gaye Francis (12:13):

So all of these things is sort of making safety and the subject of risk management, I guess, in organisations, the management of safety, more complex and harder.

Richard Robinson (12:27):

Well, the one that I've noticed particularly is this Monte Carlo simulation for project risk. And people are signing off on that. And yet our experience has been, and you just commented at the recent risk conference you went to, you gave a paper at, what, eight weeks ago now or something? Not long ago. The ones that bite you is the big rare ones that you didn't think about. And that wasn't in your probability distribution. And that's why the big projects are failing.

Gaye Francis (12:50):

People aren't using a whole lot of techniques.

Richard Robinson (12:53):

We're not saying don't do Monte Carlos, by the way, because that'll tell you the most likely projects outcome, which is well worth knowing.

Gaye Francis (12:59):

But I think you need to do more than one. I think what we're finding now is one risk technique is not sufficient to find all of the risk issues just because they're such a merit of them.

Richard Robinson (13:12):

And hazops, for example, is not the only way to do it in the chemical industry. It never has been.

Gaye Francis (13:19):

So what we would suggest to you is, I guess that there's a whole lot of tools and techniques out there. They provide different insight into different risk issues. But if your organisation's doing only a single or using a single process and technique, then you're probably missing, particularly, the rare critical items.

Richard Robinson (13:41):

And when you're trying to address all issues of concern and demonstrate that all reasonable practicable precautions in place, you need to think generally more widely than most people we see are currently doing.

Gaye Francis (13:56):

I think we might leave it there. We could talk about this topic for quite a while and we might go into some depth on some of these topics a little bit further.

Richard Robinson (14:04):

It's not exactly a chat on Chatham Rules thing too. We might say something we shouldn't say.

Gaye Francis (14:10):

We do have that issue sometimes. So thanks for joining us again. Hope you found this episode interesting and we hope you can join us next time.

Richard Robinson (14:18):

Thanks, Gaye. Bye.

Rail Safety National Law - The confusion between it and the WHS Legislation/OHS Act

Risk! Engineers Talk Governance
Episode 7, Season 1

In this episode of Risk! Engineers Talk Governance, due diligence engineers Gaye Francis and Richard Robinson discuss the Rail National Safety law and the confusion with how it stands in relation to WHS legislation, and why if you satisfy the requirements of the WHS legislation, you have, in turn, satisfied the requirements of the Rail Safety National law. 

Access the full CORE conference paper.

Contact us for information on our Rail Safety workshop.

Transcript

Megan (Producer) (00:02):

In this latest episode of Risk! Engineers Talk Governance, due diligence engineers Gaye Francis and Richard Robertson talk about the Rail Safety National Law. This follows Gaye's recent conference paper presentation at CORE, the Conference of Rail Excellence recently held in Melbourne. We hope you enjoy the episode, if you do, please subscribe across your favourite podcast platform, give us a rating and also check out the other episodes. Enjoy.

Gaye Francis (00:37):

Hi Richard. Welcome back for another podcast session.

Richard Robinson (00:40):

Brisk, isn't it?

Gaye Francis (00:41):

It is very brisk today! Today we thought we'd talk about Rail Safety National Law, and this follows on from two things. We currently give a Rail Safety National Law and OHS legislation workshop through Engineering Education Australia. And I also gave paper recently at the CORE conference, Conference on Rail Excellence. And there was a lot of interest in that and SFAIRP. So what we'll do today is we'll outline what the legislation actually is, what it means, and how you go about satisfying that legislation. So it's almost a promo for the course and the paper which we will attach at the end of the session as well. So you (Richard) can do the formal part.

Richard Robinson (01:30):

And you'll just chip in as usual.

Gaye Francis (01:31):

That's the one!

Richard Robinson (01:32):

I got that plan.

(01:34):

Well, first thing is just to understand what the Rail Safety National Law is. Now, just from a philosophical viewpoint, it was explained to us by a bunch of lawyers. There are two basic ways to have harmonised legislation and we need this process because Australia's basically a federation; basically each state is its own little country. Like Victoria had its own Navy for a while. And when we federated, they gave up the minimum powers necessary to create the federation. And that's one of the reasons why we have high court, because we had state Supreme Courts, because they were the High Court in each of the little nations -- 'cause we had our own ambassadors to London, and all the rest of it. And when we federated, in order to put our Superior Court in, we called it the High Court, rather than stopping the term Supreme Court and changing it all around. One of the things we were supposed to sort out was rail safety or rail harmonisation. The legislation sort of says we're gonna have standard gauge and we could go through a little brief history of how we got to the different gauges if anybody's got a passing interest, as explained to me by a Queensland rail engineer a while back.

Gaye Francis (02:34):

But I guess what we're saying is that has yet to be achieved.

Richard Robinson (02:38):

But you see, if we wanted to harmonise rail safety, and literally last time I looked, if you're driving a train from Sydney to Melbourne, for example, and once you cross the border, what means "go" in one state, apparently means "stop" in the other state, which has always mystified me a bit and we haven't resolved that one yet. So kudos to train drivers, I think is the first point!

(03:00):

Now, if you want to get around this problem of harmonisation, you have to have an inter government agreement. And that means like GST, all the states, and all the ministers from the states of the Commonwealth all have to agree and sign to take it forward. And in terms of actually harmonising legislation, there are two core ways you can do it.

(03:20):

You can do it like the model WHS legislation where somebody creates a model WHS Act and everybody says: Yep, we'll adopt that model act and we'll make little additions or ammendments to it to suit ourselves, which is what's actually happened. Or you can do it the way they did the Rail Safety National Law, which is one parliament passes legislation and then all the other parliaments say: Yes, that's our legislation subject to these modifications.

(03:43):

Now in the case of Victoria, for example, the Rail Safety National Act that went through South Australia, which is the one everyone agreed to adopt, that was 191 pages. And the Victoria modifications is 160 pages, which tells you something about the way in which this implementation has been done.

Gaye Francis (04:00):

So there's a lot of confusion 'cause you almost gotta read both lots, both the South Australian Act and then the (Victorian) modifications to get a full understanding of what the law is in that particular state.

Richard Robinson (04:12):

Yes. And it gets really quite confusing. I mean even with the model harmonized WHS legislation, you know, they have Section 18 and then they put numbers after it when they insert their own thing. You know, so for example, in the Commonwealth Act, there's an expression in there that with regards to Department of Defense and nothing in this Act shall interfere with the defense of the realm, basically. Meaning that if we're at war then the WHS legislation, well and preparation for these things, which is what the Defense Department is, it has a certain weight on the scales, which other civilian operations wouldn't have.

(04:50):

Now, the whole point of the Rail Safety National Law was it was meant to implement the core concepts under the model WHS legislation as it applies to railways.

(05:02):

That gets particularly confusing, because when they sort of say: What's the difference? Well, you know, just for example, Section 48: If a provision of the Occupational Health and Safety legislation applies to railway operations, that provision continues to apply and must be observed in addition to this Rail Safety National law. So they're basically saying the WHS Act applies. The Rail Safety National doesn't stand 'instead of', it stands 'as well'. And if the provision of this law is inconsistent with the provision of the Occupational Health and Safety legislation, the provision of the Occupational Health and Safety legislation prevails to the extent of any consistency; which says it's superior to, quite specifically. And compliance with this Rail Safety National law, with any requirement imposed to the law is not of itself a defense of proceedings of an offense against Occupational Health and Safety legislation. And evidence of relevant contravention of this Rail Safety National law is admissible in any proceedings for an offense against the Occupation Safety and Health legislation, which basically means it's superior.

Gaye Francis (06:11):

The health and safety legislation is superior.

Richard Robinson (06:14):

So we find it all a little bit strange because one starts to wonder why on earth you bother having a Rail Safety National in the first place, if all it is going to do is to apply to rail matters as opposed to any other safety obligation. But obviously if two trains run into each other, or a level crossing accident occurs, the provisions of the WHS legislation still apply. So it's curious...

Gaye Francis (06:36):

Our understanding is that the rail regulators then have agreements with the health and safety regulators to prosecute under the OHS and WHS legislation for rail matters. Is that correct?

Richard Robinson (06:48):

Yes, except when you have a complicated matter like the level crossing accident of Wallan Victoria, whereas a New South Wales train running on ARTC tracks. So it's being heard in a Victorian Magistrate's Court.

Gaye Francis (06:58):

Yes, yes.

Richard Robinson (07:00):

Which means it's rather difficult to actually separate out who's gonna be responsible for these things.

(07:06):

But see the other point though, is that in most jurisdictions now, they've actually stuck Criminal Manslaughter provisions in under the WHS legislation. So if they wanted to get you under criminal provisions, they'd have to go under the WHS legislation, not under the Rail Safety National law. Although obviously the five years for recklessness, new or made or let it happens, still applies under the OHS or the...

Gaye Francis (07:29):

the Rail Safety or WHS legislation.

Richard Robinson (07:31):

Or both. The main differences as far as we can tell is that that the Rail Safety National law applies to rail safety work. It obviously creates the regular <inaudible> in Adelaide. And it obviously enables the accreditation of railways, the ARO and all sorts of things. And it promotes safety management systems as applied in the rail business. So that is sort of helpful, because otherwise how would you do that if you didn't have a separate separate Act? But the core duties are identical, and the WHS legislation takes precedence and all the terms and ways that we can see.

(08:11):

Now that sort of leads you on to: What are you actually then going to do? Well, our observation is that if you wanna satisfy your duties under the Rail Safety National law, you've basically gotta satisfy your duties of WHS legislation. There'd be very little point in just satisfying the Rail Safety National law and then being beaten to pulp under the WHS legislation, you would think.

Gaye Francis (08:29):

<affirmative>. So in our terms, we are really saying the SFAIRP approach (so far as reasonably practical) is a modern definition of SFAIRP, and in railway safety terms, it asks the question: If you're affected in any way by a railway network, passenger, driver, at a level crossing or a railway worker, how would you expect that network and rolling stock to be designed and managed in order for it to be considered safe? So we're really applying the SFAIRP process to any of those rail safety matters.

Richard Robinson (09:01):

Well, that's right. The duty (of care) is the same, so that's what you do. I mean there's a few other points we could probably make, but I actually don't know that it actually, you know, it actually comes back to our basic observation that the WHS legislation was a direct spin-off of due diligence as a defense against negligence in the Common law, and they elevated the Statute law and then they continued that elevation through into the Rail Safety National law, so it became far more peculiar and probably effective or focused, I suppose is probably the way to put it, to rail operations. And that's fine. We don't have a philosophical problem with that. But you know, it's a bit like, you know, when we had that incident in Wallan with that level crossing accident there, I mean, which jurisdiction? Well, it happened in Victoria, so it has to be in Victoria, even though, as I said, it's...

Gaye Francis (09:48):

...had different parties involved.

Richard Robinson (09:51):

All different parties. Yeah. So, yeah, it's complicated.

Gaye Francis (09:55):

So I guess that's the difference then between doing a compliance order or a compliance review with, you know, to each letter of the legislation and achieving the requirements of SFAIRP.

Richard Robinson (10:07):

Well, that's always been our point. There's no point in actually... I mean, I keep coming across lawyers who tell Boards that what you need to do is a compliance audit. And it's probably true that if you've done a compliance audit, it probably will be difficult to prove beyond reasonable doubt on a statutory basis, that the Board and the Board members were liable. Will that make their organisation safer?

Gaye Francis (10:30):

Probably not.

Richard Robinson (10:31):

And if you want to be safe, what you've gotta do first of all, is manage things to satisfy the Laws of Nature. Why won't the two trains collide? And then having done that and demonstrated to yourself in engineering or scientific or however terms you wish to think about it: How have you've done that? Functional safety terms, 61508, and so forth. What makes you confident that you've done that in a way which would satisfy post-event legal scrutiny? I mean, you may recall when we did the functional safety assessment on the I IEC 61508 for how two trains would get past each other in New South Wales on a single line track, your (Gaye's) first job, as I recall, was pretty much going through every crossing every time there was a...

Gaye Francis (11:12):

That trains could interact.

Richard Robinson (11:14):

Interact, yeah. Confirming that the watchdog would prevent that interaction from improperly occurring. I don't think it was one of your favourite jobs, but you did it! <laugh>

Gaye Francis (11:25):

And it did take a very long time.

Richard Robinson (11:27):

And I would remind you that in the times that when we were the certifiers and our signature R2A's signatures were sitting on the functional safety assessment in orange of who was then the train controller in New South Wales, there were no rail accidents in that time for any of the mechanisms that we are talking about under the, well, it was TOCS, train order control system, and then it turned to Tmax train management and control system.

Gaye Francis (11:50):

So with any of our rail safety jobs that we do, and in-line with the WHS legislation and the Rail Safety National law, we still always go through our four processes. What's our argument for completeness? Have we got all of key credible critical issues on the table? For all of those, what are the controls that you can put in place.

Richard Robinson (12:11):

The possible practical precautions, those things that can be technically done?

Gaye Francis (12:15):

And this is probably one of the things where railways fall down a little bit. They're very narrow looking in that they're not often looking for new technology and new solutions to apply to railways and the application to railways. But the legislation requires you to look for those further controls.

Richard Robinson (12:33):

Are we allowed to give that example of the GPS system on the trains in New South Wales? You see, without going through the detail of how R2A got involved in this thing, but basically what happened was that they put in this new train control system and it had a whole lot of checks in it and so forth, well, at least it was supposed to have it. And then they had a near miss incident. And apparently it was some redundancy in the software and the processing and all these sort of things. And it turned out that for various reasons, the IT people hadn't quite got the work done. And the near miss occurred, and I wasn't actually at the meeting, but I heard about it afterwards, that, you know, the question was: Well, we had a redundant system here, why didn't it work?

(13:14):

And the answer was from the IT people was: Well, we couldn't get it working, so we just let it go with just the one system. And apparently that was a fairly chill meeting. To cut a long story short, that's where R2A turned up. And the first thing we said: Well, you need a way to independently verify where the trains are. And the obvious thing to do, in this day and age, and this was 20 years ago now, was GPS. And everyone sort of looked at each other and said: Retrospectively and retrofitting GPS on all trains, the freight trains that traveled through New South Wales rural, that'd be hard! That'd be a long (process). How can we do that? Well, we quite literally found out a week later, in order to make the train control system work, you had to have good radio communications with the trains. In order to prevent ghosting between the radio towers i.e. having trains on the same frequency, talking on the same frequency, they have towers on different frequency with different geographic coverage. In order for the train to know which tower and which frequency it was talking to, it had to know where it was. And in order to know where it was, the radio engineers, the communication engineers had put GPS on the train.

Gaye Francis (14:21):

So this control already existed!

Richard Robinson (14:23):

Well, that function already existed. Which was just absurd. Now we only found that a week later.

(14:28):

So the next thing to do is to say: Well, let's do a trial. And the trial was basically whenever the driver pushed a push to talk, the GPS location was in code and sent off to train control. And that meant we could actually formulate a watchdog, which was a safety critical computer platform by the defense people in Adelaide, running a safety critical language called Ada, which was very small piece of software, which gave at least a good overview of what the train and train controllers were actually doing with the train management system. And that was the way in which it was certified. Which you (Gaye) spent a lot of your time sorting out <laugh>.

Gaye Francis (15:02):

And I guess that's the third step, isn't it? Determining what the reasonableness of each of those further controls is. You know, is it reasonable to do?

Richard Robinson (15:10):

Well then the (conference) paper, because we do a lot of work in marine pilotage, all the marine pilots have personal pilotage units these days, which have matured vigorously over the last 30 years. They're all battery controlled. You could quite literally give a driver a marine pilotage personal pilotage unit and the train driver would have a genuine, independent knowledge of where they were and if the communication <inaudible> working properly, what all the environmental factors around the track would be, where all the track gangs are and everything. And because the marine pilotage guys have got so good at, it's looking at, I think, all eight satellite systems now -- Galileo, the Europeans, the American GPS, the Russians, the Indians, the Japanese, the Chinese. There are so many satellite navigation systems and they know to their centimeter where they're, and they also have to put in, you know, G3 and G4 and G5 communications and they're all toughened up and robust to prevent hacking and all sorts of things these days. And to do that for train drivers, probably $3,000 a unit and probably at least $50 million to code all rails train and rail tracks to handle that sort of, where are we and what are we doing here sort of thing.

Gaye Francis (16:24):

But that's one of the other points, isn't it? Technology's become, or has advanced so much in the last 10 and 15 years that what may not have been reasonable 20 years ago may entirely be reasonable now.

Richard Robinson (16:37):

Ubiquitous, I think is the word you're seeking.

Gaye Francis (16:40):

Yes. And then the last step, of course, is to make sure you've got a quality control system to make sure that what you say you're gonna do remains in place and remains robust and effective.

Richard Robinson (16:52):

Yeah. People keep forgetting. I mean, safety means you don't want it to go wrong. But from a legal point of view, liability only rises because of inadequate, insufficient, or failed precautions. It doesn't arise because something's risky per se. That the nonsense. People keep talking about riskiness and I think, they don't what they're talking about. The question is SFAIRP'iness not riskiness,

Gaye Francis (17:12):

I don't know that SFAIRP'iness is actually a word, but...

Richard Robinson (17:16):

SFAIRP isn't a word either, actually <laugh>.

Gaye Francis (17:20):

So I hope you've enjoyed the podcast today. We just wanted to run through that there is some confusion with the Rail Safety National law and its interaction with the WHS legislation. But all the rail organisations that we've talked to said that if you satisfy the requirements of the WHS legislation, you have, in turn, satisfied the requirements of the Rail Safety National law.

(17:44):

So thank you for joining us again. Thanks Richard. And, we'll see you next time.

Richard Robinson (17:50):

Thanks, Gaye.