Season 6 Wrap: SFAIRP Complexities

Risk! Engineers Talk Governance
Season 6, Episode 10

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis wrap up Season 6 and the theme of SFAIRP complexities.

Key season highlights they revisit:

• Three essential components of SFAIRP: "As Far", "As Is", and “Reasonably Practicable”,

• Confusion around hierarchy of controls, 

• Contradictions between WHS Legislation (OHS Act in Victoria) and planning and safety law.

Two Types of Regulators

Risk! Engineers Talk Governance Podcast
Season 6, Episode 9

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis discuss the two types of Regulators.

They outline two fundamentally different regulatory philosophies: regulators who view prosecutions as a measure of success versus those who see them as a measure of failure.

The discussion examines how the "so far as is reasonably practicable" (SFAIRP) framework has shifted the burden of proof, making it harder for some regulators to secure convictions and created new challenges for organisations trying to demonstrate compliance. 

Richard and Gaye analyse recent high-profile cases, including the Auckland Port Authority CEO conviction and the Hazelwood fire prosecution, highlighting how transparency of process, not just outcomes, has become central to regulatory scrutiny.

They also discuss the complications arising from overlapping legislation across Australian jurisdictions, the tension between organisations' stated commitment to safety and their legal defence strategies, and how New Zealand appears to be leading the way in prosecuting senior executives. 

Breaking SFAIRP down to three parts: So Far (SF). As Is (AI). Reasonably Practicable (RP)

Risk! Engineers Talk Governance
Season 6, Episode 8

In this episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis break down the concept of SFAIRP "So Far As Is Reasonably Practicable" into three key parts: "So Far", "As Is", and "Reasonably Practicable".

This was one of their key take-aways from their recent Live Forum where lawyer Joseph Coleiro articulated the following:

• "So Far" refers to the notion of doing as much as possible to address a risk, rather than just meeting a target level of risk.

• "As Is" refers to the information and circumstances available at the time a decision is made, rather than considering hindsight.

• "Reasonably Practicable" is defined in legislation, considering the likelihood and degree of harm, what is known about the risk, the availability and suitability of controls, and the cost associated with implementing those controls.

The discussion details a legal case where an organisation was prosecuted for failing to implement various risk controls, demonstrating that negligence often arises from unimplemented, insufficient, or failed precautions.

Overall, the key is to break down SFAIRP into these three distinct elements and to not leave out any part, especially when it is fully defined in the Legislation or Act.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robertson and Gaye Francis discuss the concept of breaking SFAIRP into three parts: So far. As is. Reasonably practicable.

(00:18):

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

Gaye Francis (00:35):

Good morning Richard. Welcome to a podcast session.

Richard Robinson (00:38):

Good morning, Gaye. It's strange to be recording a podcast online in remote locations. We don't do this very often.

Gaye Francis (00:43):

I was just going to say... Yes, today's podcast looks a little bit different. So we will see how it goes from here. So today we're going to talk about breaking SFAIRP down, and this really comes from probably the key insight that we got from our live forum that we had recently from Joseph Coleiro, the lawyer who we invited to the session. And I think for me that was one of the key takeaways from that session. And he broke SFAIRP down into three bits: SF So Far, and then As Is, AI, and then Reasonably Practicable, RP. And we're just going to go through each of those elements today and see if we can explain that in a little bit more detail.

Richard Robinson (01:32):

So you'd like me to explain that?

Gaye Francis (01:33):

Do you want to start And I'll add as I go along.

Richard Robinson (01:37):

Well, in Joe's presentation he made the point that "So Far" does that mean as low or any other term that you might choose to use? And the real question is, and the example we normally sort of give, if you're flying at 30,000 feet and something goes wrong and you're possibly going to fall out of the sky, it doesn't really help too much if the pilot comes and said, yes, we actually achieved our target level of risk and safety. (And) we do realise there was more we could have done on the way down, but we didn't do it because we didn't think it was necessary, because we couldn't afford it, for example. Or some other sort of decision. The idea is you're supposed to actually do "so far" -- as much as you can.

Gaye Francis (02:18):

He sort of used the words that you drill down as far as you can go.

Richard Robinson (02:21):

Yeah, that's right. "As Is", well that is at the time that you make the decision. And part of the reason why we're particularly interested in that... I've got to give a course in Latrobe Valley to one of the power stations down there. So I thought I'd go and look up that. I don't know if everyone remembers, there was a fire in the open cut pit down there and they were prosecuted under the OHS Act in Victoria and the So Far As Is Reasonably Practicable. And when I was just looking up the prosecution from the Victorian WorkCover authority alleges under the relevant section of that Act that So Far As Was Reasonably Practicable, meaning at the time the decision was made. So before the event, it is So Far As Is Reasonably Practicable. And after the event it was So Far As Was Reasonably Practicable, meaning the is part is actually quite important. And you and I both commented that a lot of people leave the "I" out when they actually just sort of put the proposition up, where in fact once the lawyers start using the term, it's actually quite important.

Gaye Francis (03:22):

I think that was one of the key things also that came out of the event. There was some discussion that courts use hindsight to decide what was reasonably practicable in the stages, but that "is", "As Is", really says that hindsight is not considered. It is what the information that you have at the time and the decision you made at the time what was reasonably practicable then.

Richard Robinson (03:45):

Yeah, that's right. And that's popped up a number of times because what's always puzzling to us, you see from the point of view of being an expert witness after the event, the thing's gone wrong, so you're trying to dream up what could have been done if it had been done "was reasonable" and then the court looks at what the experts said and then tries to determine whether those things that were thought up by the experts with the advantage of hindsight were reasonable without that hindsight that they ought to have been thought about prior to the event. I still find it very difficult to believe that post-event doesn't have some influence on the decision making of the court, but I'm not obviously in the position to comment on that particularly.

Gaye Francis (04:23):

That's true. And then "Reasonably Practicable" is sort of what's written in the legislation under Section 18. And so that has five elements: The likelihood of the hazard or the risk concerned occurring. The degree of harm that might result from that hazard or risk. What the person concerned, knows or ought reasonably to know about the hazard or the risk. The ways of eliminating or minimising the risk, the availability and suitability of ways to eliminate or minimise the risk. And after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of doing that. But again, cost comes down to that grossly disproportionate tests that it goes by, it's not just: Oh it's expensive so we're not going to do it. You've actually got to consider it grossly disproportionate.

Richard Robinson (05:14):

Well it was interesting, as I said, I was just looking at this case because they actually were prosecuted for 14 charges originally and they got, I think, successfully the case was won on five charges. Perhaps I might just read them out because it's kind of interesting to sort see what they're actually talking about. I suppose the other point just to note is that when they were prosecuted, it was done not for two parts under Section 21 that an employer must So Far As Reasonably Practicable provide maintain employees of the employer with a working environment that is safe and without risks to health. But then Section 23, the Victorian Act also says an employee must ensure so Far As Reasonably Practicable the persons other than employees of the employer not exposed. So it was not only the people who work there, it was the community as a whole. And I think that's part of the reasons why the prosecution was taken and that they were prosecuted under two pieces of legislation, both the OHS Act and the environmental legislation and it was trial by jury and they were successfully...

Gaye Francis (06:20):

Convicted

Richard Robinson (06:22):

For five points. I'll just go through them: Failing to perform an adequate risk assessment as to the possibility of fire from an external source. Failing to have adequate reticulated water supply. Failing to slash vegetation on the face of the northern batters. Failing to begin wetting down on the northern batters on the really hot day. And failing to maintain staffing on the mine of sufficient numbers and expertise to supress fires in a hurry. Yeah, well sure, I suppose.

Gaye Francis (06:50):

I think one of the interesting things about that is, and we say this in our courses, negligence arises because of unimplemented, insufficient or failed precautions or controls and three of those were failed controls.

Richard Robinson (07:05):

Yeah, that's right.

Gaye Francis (07:07):

So they were things that they should have been doing that they weren't doing well enough to protect them on the day of the fire. And I think that's really interesting that that's what they've gone down for.

Richard Robinson (07:19):

Well other thing was that the judge lists a whole lot of previous decisions made in different cases and sort of says quotes, relevant things and I just going through the matter curiosity and just the way one or the other judges when they were expressing the way in which you meant to go about this stuff. Hence in determining the gravity or seriousness of the defence, as in such a case, the gravity or seriousness of a breach is to be measured by reference to the potential consequences of the breach. Which is rather interesting isn't it? Because remember how we always do it, so what's the credible worst case? And then we went backwards from there.

Gaye Francis (07:51):

It's consequence basis. It doesn't actually consider the likelihood.

Richard Robinson (07:56):

In the first instance. That's our perception of it. And that's the way we've always done it. And that's what we had interpreted from our experience as expert witnesses, that it's really the extent of the consequences that what you need to assess in the first instance and then you do the likelihood versus the balance, the significance, the risk versus the effort required to reduce it, sort of comes second.

Gaye Francis (08:18):

When you're weighing up what the controls that you could put in place. So that's helping you with your reasonableness part, isn't it?

Richard Robinson (08:24):

Correct. And that's just what I was just reading, I thought well that's interesting because I mean we find it for the most part we get given cases to review and as I said, I'm giving this course at Latrobe Valley in a couple of weeks and I thought I better go and have a look to see what actually happened there because I suspect everyone down there probably knows all about it and having an opinion or review or some insight into it might be really rather useful.

Gaye Francis (08:49):

But I also think that it played on and it sort of crystallised and supported what Joe was saying during the forum that SFAIRP is broken into those three elements that we talked about: "So Far" -- as far as you can absolutely go. And it's not the same as all of those other definitions that we talked about.

Richard Robinson (09:12):

Yes.

Gaye Francis (09:12):

"As Is" -- at the time. And then "Reasonably Practicable" -- is as defined in the Work Health and Safety legislation or OHS legislation in Victoria. So if you break it into those three, as we sort of said earlier in this podcast, leaving there "Is" out or the "I" out has implications because it's sort of saying, well, it's not at the time that the decision was made. Now our understanding is that most people think that that's inferred or the intent is remains in there of is. But it's often left out.

Richard Robinson (09:56):

Well the defense leave the I out when they talk about SFAIRP. And one of the things that mystified me a bit was that the environmental legislation of Victoria has been modified to adopt what we had, I think we've said it before, the SFAIRP principle, but in that particular Act it leaves the "I" out. It just has SFARP - So Far As Reasonably Practicable, not As Is Reasonably Practicable. And this is part of our experience with lawyers. One word makes a difference.

Gaye Francis (10:21):

Yes. So if you don't think it's significant then you just have to be careful of this and you don't want to be the test case to see whether leaving the "Is" out of your terminology has implications.

Richard Robinson (10:38):

Well I think the other point too is the important thing is if the Act says SFAIRP (with) "AI" then use "AI". If it doesn't say then possibly leave it out because I dunno, I think it's going to be a matter for another podcast. But one of the things that also popped up in our live forum was that one of the things that seems to happen is sometimes people delay decisions about something until it's so late. So what's SFAIRP early in the process can't get up. And that's a difficult one and I haven't thought that one through how you meant to address that one. I think that's definitely another podcast.

Gaye Francis (11:16):

No, absolutely right then and that's tricky. But I think that was the other key that came out of the forum, wasn't it? The legislation. And this is what we say to our clients, if the legislation uses So Far As Is Reasonably Practicable, SFAIRP, then make sure that that's what your policies and procedures and company "how to" manuals actually address and use.

Richard Robinson (11:42):

And that's why you've got to be wary of the Risk Management Standard, for just that reason.

Gaye Francis (11:46):

So these (advice) that says some of these terminologies are interchangeable, we would just say be careful when you do that because our understanding is that they're not interchangeable.

Richard Robinson (11:59):

That was the advice that Joseph Coleiro explained to us. He said if the legislation says it a certain way, then that's the way and to which you will be tested. Which so far as they can tell is precisely what happened with that bushfire risk matter.

Gaye Francis (12:13):

So I think that's all we really want to say on that, but that was one of the key takeaways. Break SFAIRP into the three categories, three parts. So Far, drill down as far as you can go. As Is, what you know at the time. And, Reasonably Practicable as defined in the legislation under Section 18.

Richard Robinson (12:34):

And that's why I think our recommendation that you run SFAIRP workshops is so important because, and who's in the room when you make that decision, because that's testing what you know at the time -- those three elements.

Gaye Francis (12:47):

Especially the "As Is".

Richard Robinson (12:49):

Especially the As Is part, which is not something I think we previously thought of.

Gaye Francis (12:53):

No.

Richard Robinson (12:53):

I think we understood it, but I don't know we'd ever focused on it in any particular way.

Gaye Francis (12:56):

I don't think we'd articulated it in the same way. So that was a very helpful articulation. So we hope our audience has also found that articulation useful and we look forward to seeing you next time. Thanks Richard.

Richard Robinson (13:08):

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.

Organisational Safety Culture (Revisited)

Risk! Engineers Talk Governance
Season 6, Episode 6

In this episode, Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis revisit the topic of Organisational Safety Culture.

They review the work of Professor Patrick Hudson, who identified five levels of safety culture, from pathological (who cares as long as we're not caught) to generative (safety is how we do business around here).

Richard and Gaye observe that many organisations tend to be more reactive, focusing on implementing controls after incidents occur, rather than striving for a generative safety culture. They note that the transition from a bureaucratic, rule-based approach to a proactive, thinking-based approach is challenging, and caution the use of AI, which can lead to a lack of critical thinking.

They end with how organisations should aspire to a generative safety culture, even though it may be an aspirational goal, and highlight the need for clear commitment to safety at all levels of the organisation, rather than just from Board level.

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 revisit the topic of safety culture.

(00:12):

We hope you enjoy the chat. If you do, we'd love you to give us a rating. And also don't forget to subscribe on your favourite podcast platform. If you'd like more information on R2A's work or have any feedback or topic ideas, please head to the website www.r2a.com.au.

Gaye Francis (00:32):

Welcome Richard to another podcast session.

Richard Robinson (00:34):

Hello Gaye. Good to be back.

Gaye Francis (00:37):

Good to be back. Today we're going to revisit safety culture. I think we did a podcast very early on (Season 2 Ep 4 & 8) about safety culture and the uprise of James Reason and things like that. But we've just been doing a little bit of research and I guess it comes around some of the observations that we've had that organisations are tending to be a bit more reactive to incidents. And yes, if that incident happens, they're very good at then putting in controls and precautions in place to make sure that that doesn't happen again. But they're not sort of aiming for what we would call that generative safety culture in their organisation. And so you've been doing a little bit of research and a bit of reading, and we've come up with a professor, isn't he?

Richard Robinson (01:25):

Yep. Well, he was, he's emeritus, he's retired.

Gaye Francis (01:28):

Okay. Professor Patrick Hudson.

Richard Robinson (01:31):

Yeah, the trick here, he's been around for a while. The thing I didn't actually quite appreciate was we normally use the James Reason model, and the James reason model has three levels, bureaucratic...

Gaye Francis (01:42):

Pathological first, down the bottom -- shoot the messenger.

Richard Robinson (01:46):

Yep. Bureaucratic -- listen to messengers if they happen to arrive alive. And then generative -- training more people to bring bad news to your attention. And everybody aspires to generative. Now, what I didn't actually quite appreciate because for some reason I've always given the credit to James Reason, was this Patrick Hudson fellow was actually the project manager for Tripod Delta where all this stuff came from. And I must say I've always been a little bit surprised just how much kudos James Reason got out of that Tripod Delta thing -- that was the Piper Alpha (oil rig) incident in the North Sea. But this fellow actually had five levels rather than the three levels. In an overall sense, I don't think we particularly care one way or the other, but he actually had a couple of levels which did actually make us twitch just a little bit. Perhaps you might just read them.

Gaye Francis (02:32):

So I need my glasses for this. Pathological, who cares as long as we're not caught. Reactive, safety is important, we do a lot every time we have an incident. Calculative, we have systems in place to manage all hazards. Proactive, we work on the problems that we still find. Generative safety is how we do business around here. And he's sort of got two arrows around two arrows heading up the page of that. And it's increasingly informed and increasing trust, which I think are two really important attributes that are required in a safety culture.

Richard Robinson (03:09):

Well, I think what we sort of regarded with this is that we're aware that somebody gets the fright of their lives and they're previously smug and happy, which have been the pathological viewpoint. And then what they tend to do is leap to Standards. And if you believe the professor from Brisbane University, the fellow, Sidney Decker, he's the one who says (we've) now got so many rules, nobody knows what all the rules are. Now if you go from pathological to the next level and then go to that calculative one, you're sort of going with the Standards, but you're creating more and more rules. And we keep seeing that. We keep people just creating more and more and more rules and truly the people who've got to implement them really don't know what's going on. So they haven't actually taught the philosophy and they haven't actually gone to the right ideas.

Gaye Francis (03:54):

Which is that sort of that bureaucratic level in James Reason terms.

Richard Robinson (03:57):

Yeah. Most of our clients come to us they're generally at the bureaucratic or slightly better than they're looking for better. They're actually searching for better, which is what he calls is proactive. And I agree with that. It is an interesting thing whether generative is actually aspirational. It's bit like zero harm. I don't think anyone actually believes if you're a large organisation, zero harm's going to be the case. But you would like everybody to try and strive for that. The example I usually give is the police commissioner who's trying to go for zero child molestation. Well, we hope that's the objective, but do you think the police commissioner's got the resources to make that happen?

Gaye Francis (04:32):

To be able to do that.

Richard Robinson (04:33):

So we certainly aspire to that. I think the plan is if you aspire to generative, then in his terms you're more likely to be past bureaucratic and being proactive.

Gaye Francis (04:43):

Yep. I agree. And I think generative is one of those ones that it's almost always changing. The goalposts are always changing for generative. As new technology becomes available, more information becomes available so that generative is always moving that little bit further out.

Richard Robinson (04:59):

Well, one of the things that's bothering us is the rise of AI and everybody sort of... we've noticed a lot of people just adopting AI and stopped thinking, and I have a nasty feeling a lot of people are going to try and use AI for safety purposes. And the one thing I don't think you can do is stop thinking. Thinking's hard. And I've got this bad feeling too, that, well, you are about to mark some assignments, I have no idea whether you're going to get a lot of AI coverage in there.

Gaye Francis (05:25):

See how we go. Well, maybe that's one of the extra lines that has to go up through your page, increasingly informed, increasing trust. But it's increased thinking. Isn't it? Almost required to reach that generative and proactive stage.

Richard Robinson (05:39):

Well, I'm not saying AI can't give you certain insights, but I'm pretty sure the courts are against it. If you're an expert, you better not be relying on AI because we've heard some stories about a lawyer who relied on AI and it just turned out to be complete rubbish because remember, all the AI do is scraping the network or the internet and it's to see what the internet collectively thinks. Well, I've got to say human collective thinking can sometimes be an error as I think we have noticed. And the reason for being an expert is that you're actually something different to what the collective actually believes.

Gaye Francis (06:09):

And you have to really believe what you're saying.

Richard Robinson (06:11):

Not so much to believe. You've got to have a reason to argue for that position. I mean, that's why Kant (philosopher) is so hard to read because it's critique of pure reason. It's hard work, particularly the way Germans sometimes think. But there's some good understanding there. I mean, I've been through the fact of time and space are most likely human constructs and used to sort of recoil.

Gaye Francis (06:34):

Yeah. Some days it hit you that first thing in the morning when you get into work, and that's a bit too much.

Richard Robinson (06:38):

I've got grandchildren, you can see the grandchild bash themselves working out hand, face, don't hit, not good.

Gaye Francis (06:44):

Unless it's your brother or sister.

Richard Robinson (06:45):

Yep. Well, in this case you just poke them at the sharp object if you can.

Gaye Francis (06:49):

Anyway, we've definitely got off topic. So we just think that this safety culture, the concept of safety culture, it's always been there in organisations. It's not talked about as much now than it was in the early 2000s. And we are seeing organisations from our experience moved back down to that bureaucratic reactive sort of stage. And that drive for generative and proactive isn't as forthcoming.

Richard Robinson (07:23):

Well, it's got a lot to do. I mean, from our point of view, I mean it's used of target levels of risk and safety. That to us is the classic bureaucratic position because oh, I've satisfied the criteria, I'm good.

Gaye Francis (07:34):

Done and dusted

Richard Robinson (07:35):

As we've described, if you're at 30,000 feet and it's all going wrong and the Captain says, "oh, we satisfied our criteria, even though we could have done more and we wouldn't be crashing if we had", I don't think that's what people want to hear.

Gaye Francis (07:46):

No, no. You would definitely like your airlines to be proactive tending towards generative.

Richard Robinson (07:52):

And that's why people like to have pilots at the front of the aircraft. The aircraft could land itself now. It's probably more reliable than the pilot, but we do like the pilot to be first at the scene of the accident.

Gaye Francis (08:02):

That's a pretty morbid message. But yes, that that's what it is. So we're just saying there's a lot of information out there. We would encourage organisations to go down that proactive to generative approach because I think you do get better safety outcomes.

Richard Robinson (08:20):

But we wouldn't suggest that you rely on that exclusively. I think that's part of what I have difficulty with some of these psychological models. The belief is if the psychological model is right, everything else flows. I haven't quite worked out that having a proper state of mind means that you are diligent. I don't think those things are necessarily congruent.

Gaye Francis (08:36):

I think what it does give you is though, if everybody understands the culture of an organisation and everybody's contributing to it, it's that thought process that goes through it. But as we've said many, many times, the risk business and due diligence business in the technical organisation, it has many, many facets. And you can slice it and dice it a number of ways to get that insight. But it's one of those elements that does contribute to the overall safety of an organisation.

Richard Robinson (09:04):

But it'd be nice to get everybody to agree that zero harm is a good target.

Gaye Francis (09:07):

Absolutely. Rather than just the Board on a piece of paper.

Richard Robinson (09:10):

Correct. And that wouldn't be what our experience has been. To go for a target level of risk of safety is not a zero harm prospect.

Gaye Francis (09:19):

No, no. And it doesn't help when you have to report your days since injuries, last injury and your LTIs and things like that.

Richard Robinson (09:28):

Yep.

Gaye Francis (09:30):

I think that's about it on this one, Richard. So we might wrap it up. As we said, safety culture is an element that should be thought through from an organisational viewpoint. And there's many authors out there that write about it and characterise it in different ways, and it's just interesting to read some of that.

Richard Robinson (09:48):

Yep.

Gaye Francis (09:48):

So thanks for joining us.

Richard Robinson (09:50):

Thanks.

Could vs Should in Workplace Safety

Risk! Engineers Talk Governance Podcast
Season 6, Episode 5

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

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

Key take-aways include:

• The danger of hindsight bias in safety assessments

• Why documenting decisions not to implement controls is crucial

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

• How due diligence protects both engineers and directors from liability

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

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

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

 Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss Could versus Should, which comes from a listener's feedback, and we thank Nick for your thoughtful email.

(00:17):

We hope you enjoy the chat. If you do, we'd love you to give us a rating and also don't forget to subscribe on your favourite podcast platform. If you'd like more information on R2A's work or have any feedback or topic ideas, please head to the website www.r2a.com.au.

Gaye Francis (00:36):

Hi Richard, welcome to a podcast session.

Richard Robinson (00:39):

Good to see you back again. Gaye.

Gaye Francis (00:41):

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

Richard Robinson (01:40):

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

Gaye Francis (02:26):

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

Richard Robinson (02:28):

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

Gaye Francis (03:11):

With the information that was known at the time.

Richard Robinson (03:14):

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

Gaye Francis (03:37):

For some of these cases.

Richard Robinson (03:38):

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

Gaye Francis (04:08):

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

Richard Robinson (04:35):

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

Gaye Francis (05:05):

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

Richard Robinson (05:13):

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

Gaye Francis (05:40):

Probably your primary aspect.

Richard Robinson (05:42):

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

Gaye Francis (06:00):

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

Richard Robinson (06:18):

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

Gaye Francis (06:25):

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

Richard Robinson (06:33):

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

Gaye Francis (06:45):

They're usually comfortable.

Richard Robinson (06:46):

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

(06:57):

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

Gaye Francis (07:52):

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

Richard Robinson (08:06):

Disproportionality for the benefit of safety.

Gaye Francis (08:09):

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

Richard Robinson (08:26):

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

Gaye Francis (08:29):

Yep.

Richard Robinson (08:29):

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

Gaye Francis (08:35):

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

Richard Robinson (08:50):

Yep.

Gaye Francis (08:51):

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

Richard Robinson (08:55):

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

Gaye Francis (08:59):

<laughs> I promise. One day.

Rail Safety National Law Pressures & the SFAIRP Approach

Risk! Engineers Talk Governance Podcast
Season 6, Episode 2

In this episode, Risk! Engineers Talk Governance, due diligence engineers & R2A Co-Director’s Richard Robinson and Gaye Francis answer a listener’s question on the Pressures of Rail Safety National Law and the SFAIRP Approach.

They explain how WHS/OHS legislation takes precedence over the Rail Safety National Law, clarify the "no double jeopardy" principle, and discuss how Australia's federal system led to harmonised rail safety legislation.

Their discussion also covers:

• The SFAIRP (So Far As Is Reasonably Practicable) approach and what it means for operators

• How regulators assess safety cases as a "license-to-trade" rather than sign-off approval

• Why documenting decisions—especially what you've chosen not to do—is crucial

• The importance of living documents and regularly revisiting safety governance

• Aligning legal, design, and commercial pressures through proper due diligence

They finish by stating that while the regulatory landscape is complex, the due diligence process itself is straightforward: maintain robust governance, engage the right stakeholders, document your reasoning, and keep processes current as circumstances change.

Richard and Gaye present workshops (public and in-house) on Rail Safety. Get in touch if you’d like to learn more.

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 answer a question they received on the topic of Rail Safety Pressures and the SFAIRP Approach.

(00:15):

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.

(00:32):

Also, there's tickets available to meet them live in Melbourne or online. Details are in the podcast description.

Gaye Francis (00:41):

Hi Richard. Welcome to another session of our podcast.

Richard Robinson (00:43):

Good to be back again.

Gaye Francis (00:46):

Today we're going to address one of the questions that we got in our Q and A with R2A, and I'm just going to read the question out. As we've said in our introductory podcast, a lot of discussion and questions were generated from our previous podcast session, Season 5. So this one came through:

(01:07):

"I've been listening to your podcast in pursuit of better understanding risk due diligence, rail safety national law, and duties of engineers. Some topics are hard to rationalise. For example, the relationship and hierarchy of rail safety national law versus, for example, the Victorian OHS Act. Also, what is and isn't required when it comes to due diligence."

(01:27):

So that's a pretty open-ended question there that we've got. And there's a number of points that can be covered.

Richard Robinson (01:34):

Well, first of all, we better actually sort of go through the hierarchy question of the legislation, and the OHS Act and the WHS legislation always takes priority. And the Rail Safety National Law is basically a subset. And the Act is quite clear that if there's a conflict between the two, then the WHS/OHS legislation will take or be superior - take precedence.

(01:54):

However, there is no double jeopardy. You can only go down once. And chiefly the Rail Safety National Law... And this is one of these interesting things, the way in which they've gone about this. Because we're a federation, we had to harmonise legislation. I mean, when we federated, the states only gave up the minimum powers to achieve the constitution. So we had appointed the new high court, we gave up defense to a federal body. We gave up custom exercise to a federal body, but everything else, oh, and we went to standardised railway lines too, which we'll been working on for the next a hundred years. But anything else, you have to have an inter-government agreement. And so the rail safety national law was one of those attempts to get into government agreement, the same way we did GST and the Model OHS/WHS legislation.

(02:38):

Now, there's two ways of getting harmonised legislation. You either have a model act, which everybody says, we'll adopt the Model Act by each parliament plus the edits. Or you say one parliament passes the Act, and then everybody adopts that Act as passed by that parliament with edits. And that's the way we did it for Rail Safety National Law. So the South Australian parliament passed the legislation and everybody then has an application Act where they adopt that legislation with edits. In the case of Victoria, those edits equal the size of the South Australian legislation, which is a little bit sad, but that's another matter.

Gaye Francis (03:11):

Whereas some of the other states just changed the name of South Australia to their own states.

Richard Robinson (03:16):

More or less. Yes. Now what the rail safety legislation basically does is adopt the SFAIRP approach. And apart from saying that the WHS legislation, OHS Act, are superior, but there's no double jeopardy. But then our regulators went and did a deal with each other, both the safety regulators and the rail regulators, they got a heads of agreements, so ONSRA (Office of the National Rail Safety Regulator) which is set up by the Rail Safety Act.

Gaye Francis (03:45):

National Law

Richard Robinson (03:47):

Basically has the heads of agreements with all the safety regulators, and they explained that it's all about efficiency. And so presumably if something bad happens, they're going to decide who's going to prosecute.

(03:59):

The next thing that pops up because of SFAIRP, which I don't think we've talked about particularly, which is actually really rather important. You see once upon a time, and that's why a lot of people would like it to go back to being.

(04:11):

If your regulator said what you were doing was okay, you had sign off. Under the SFAIRP deal, that doesn't happen. SFAIRP says it's an objective test, which you have to sort out and your regulator's more concerned about the process that you've undertaken rather than necessarily the final result. Now, obviously they're unhappy with the final result, they're going to start asking you to prove why it's reasonable in the circumstances, but it's still your call in that sense. You want your regulator to be there with you, but if you go wrong and you go down in court, even if the regulator's embarrassed, it's no skin off their nose, per se.

Gaye Francis (04:49):

So the regulator's no longer taking any responsibility. So if you deliver your safety case, for example, to the regulator, they're almost just an interested party that's had a review of it and giving you some feedback.

Richard Robinson (05:05):

We see nothing wrong with what you propose.

Gaye Francis (05:08):

The classical lawyer question when you ask them: Is what I've done okay?

Richard Robinson (05:12):

That's correct. Yeah. So it's become really rather complicated. And I have to say, I don't fully understand because remember in some jurisdictions, they've kept their Electrical Safety Act. Like Queensland, for example, retained their Electrical Safety Act when they introduced the Work, Health and Safety legislation. And they basically say that when you're dealing of electrical matters, you've still got to do SFAIRP and so forth. But that falls under the Electrical Safety Act. And so now you've got this sort of competing hierarchy. Like Marine Safety National Law is another one where the WHS legislation has moved into the Marine Safety National Law, but that's obviously in a different domain again.

(05:47):

And so you've got all these sort of interesting legislative frameworks. Although so far as we can tell, and again, this becomes a very legal question because as we have commented in other places, planning law for example, doesn't seem to really respond to the WHS Act, whereas we were under the impression from what we're being told by various legal counsel, WHS is a governance document, and it's meant to take precedence.

Gaye Francis (06:13):

And I think it depends on which court you're in, doesn't it, as we said. But I think the planning one, we might leave to another podcast.

Richard Robinson (06:20):

And treat it very delicately too.

Gaye Francis (06:22):

Very, very careful discussion. I guess what the regulators are using it for is if they're not signing off or approving the safety cases, but they're almost using it as a license-to-trade as a competency type of exercise.

Richard Robinson (06:37):

I think that's probably right.

Gaye Francis (06:39):

So we've had that discussion before about your safety case argument and the relationship with the regulator is almost a license-to-trade approval process.

Richard Robinson (06:51):

Yes. You've demonstrated in the governance sense that you're competent to do the business. Whether they're actually making individual decisions properly, not their call, unless you've obviously got something patently daft. But when you're talking about... You will have already met the Standard, that's not the argument. The question is how much better than the Standard was reasonable in the circumstances.

Gaye Francis (07:12):

I think the regulator also has a role because they are getting all of those safety cases in and having a look through. You can get an idea of where the industry is as a whole, and they're sort of benchmarking across the industry of what organisations are doing.

Richard Robinson (07:27):

Well it's a bit like the (Victorian) Powerline Bushfire Safety Taskforce with which we were both members and you followed up on the (Committee). I mean, that introduced new controls, which therefore became recognised good practice, at least in Victoria and all the other jurisdictions then sort of started looking and going, Ooh, should we be doing that? And there's reasons why they may not. For example, if you're further north, you get more humidity, so you just don't get the dry condition you get in South East Australia. But yeah, you've got to think it through and you've got to have your arguments.

Gaye Francis (07:58):

And I think that leads onto that last bit of that question: What is and isn't required when it comes to diligence. I think the diligence or the due diligence approach is really the governance approach and the process that you go through to come up with the argument and your position of where you are in terms of safety.

Richard Robinson (08:14):

Well, but that's what those lawyers were telling when they first introduced the WHS legislation. It was a governance act, and it was intended that if you weren't able to comply with this Act, it intended you shouldn't be in business. That's what we were told was the stated purpose of legislation. And I don't think we've seen anything to change that position, have we?

Gaye Francis (08:33):

No, no, I agree. And as we've said before, it's about the control. It's what you can do in the situation. What is reasonably practicable that you can do. I always tell our clients that it's more important to document why you're not going to do something, that you've considered a particular course of action and you're not going to do it and these are the reasons why. But it's something that you've got to continue to revisit, and it's about having the governance processes in place. Make sure you've got the right stakeholders that you're engaging with, make sure you've got a process, a robust process that you undertake and make sure it's documented. But don't do it and put it on the shelf for 10 years.

Richard Robinson (09:12):

Correct.

Gaye Francis (09:12):

Because the goalposts change. And so you've got to make this is a living document. This is a living process that has to be revisited on a regular occasion or when circumstances change.

Richard Robinson (09:25):

That's right. And that's one of the reasons why you re-do your safety case and how often do you do it? Obviously, it depends on how rapidly things change in your environment, but if new technologies emerge, then you should be considering them.

Gaye Francis (09:35):

Yeah. So I think what we tried to capture today was one of the questions that we had from our listeners, and we appreciate any of those. So if you've got any questions, please shoot them through. But it's not simple. There are SFAIRP pressures coming from all different ways. There's different legislation. The rail safety and the WHS or OHS legislation aligns pretty well, but there's other legislation that it's not as coupled as that.

Richard Robinson (10:03):

Correct.

Gaye Francis (10:04):

There's your different stakeholders involved and you're getting pressures from commercial pressures, regulatory pressures, environmental pressures. So there's a whole...

Richard Robinson (10:12):

Legal liability pressures. I mean, one of the things we always point out is you really need your lawyers and your designers to align. If they're not aligning then for the life of (us) we don't understand how you demonstrated due diligence in a way that would satisfy your directors' obligations under these Acts.

Gaye Francis (10:29):

So again, cooperative process rather than competitive process, but the due diligence process and governance process that we sort of undertake will get you out of that hole.

Richard Robinson (10:42):

And it's not actually that complicated. It's the other thing. Maybe we do it so often, but to us it's actually relatively straightforward. Where you get stuck is if you start following a Standard which is "do it this way" and you just miss the process. It does require thinking.

Gaye Francis (10:57):

It does require thinking. Absolutely. And that clear thinking, not just thinking.

Richard Robinson (11:04):

I hope that's what I intended, Gaye. <laughs>

Gaye Francis (11:06):

I hope so too. So I think on that note, we might wrap this podcast. So thank you for joining us again, and hope you listen next time.

Richard Robinson (11:15):

Thank you.

SFAIRP Complexity & Pressures for Stakeholders

Risk! Engineers Talk Governance Podcast
Season 6, Episode 1

In this first episode of Season 6, Risk! Engineers Talk Governance, due diligence engineers & R2A Co-Director’s Richard Robinson and Gaye Francis discuss the pressures and complexities different stakeholders are having with SFAIRP.

They follow on from the theme of Season 5, “Difficult Conversations Engineers Need to Have”, how it generated discussions and comments, and determined holding an in-person event with speakers from different perspectives and professional backgrounds - a lawyer, an architect, and two engineer. 

Richard and Gaye highlight the need for a cooperative and collaborative approach among stakeholders, rather than a competitive one, in order to effectively implement SFAIRP. They also examine the challenges that arise when the commercial imperative conflicts with safety considerations, how independent consultants can facilitate these difficult conversations around SFAIRP, and reinforce the importance of all key stakeholders to be involved. 

The Live Forum discussed (“Preventing Criminal Manslaughter – Understanding & Implementing SFAIRP”) was held in October 2025.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Season 6 of Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss the complexity and pressures stakeholders are having with SFAIRP.

(00:16):

We hope you enjoy the chat. If you do, please give us a rating and subscribe on your favourite podcast platform.

(00:23):

If you'd like more information on R2A's work or have any feedback or topic ideas, please head to the website www.r2a.com.au.

(00:33):

You can also find details for the live forum they discuss in the podcast description. (Link: https://www.eventbrite.com.au/e/preventing-criminal-manslaughter-understanding-implementing-sfairp-tickets-1653602251849)

Gaye Francis (00:39):

Hi Richard. Welcome back to Season 6 of our podcast.

Richard Robinson (00:42):

A genuine surprise, I think!

Gaye Francis (00:44):

It is a very genuine surprise, Richard, I think, yes. 54 odd episodes so far.

Richard Robinson (00:51):

And we even upgraded our technology to suit.

Gaye Francis (00:54):

We have! So very excited to be back for season six. And I think we are going to lead on from what we did in season five. In season five, we sort of titled "Difficult discussions that engineers need to have", especially in the safety space and project space. And I think one of the interesting things from the last season was it generated a lot of discussions and interesting comments.

Richard Robinson (01:17):

It did. Which was a surprise to us. A further surprise to us.

Gaye Francis (01:20):

Correct. And we've actually just released our latest newsletter and in that newsletter we've got Q&A with R2A, which might become a regular feature I think. And so what we were thinking this season we would do would be to sort of build on the season five and those difficult conversations that engineers need to have or discussions that engineers need to have and take into account some of those questions and comments.

(01:46):

But it also motivated us, I guess, to hold an in-person event later this year in (22) October (2025). And we were actually having a discussion this morning about what this event was going to be called and what are some of the key things that we're going to talk about in it. So we thought that might be an interesting first podcast for our season six. So we might just go on with that. So do you want to give a little bit of an overview of who we've got coming to the podcast, oh, sorry, to the in-person event, and then we can have a discussion about how we were trying to talk about the stuff that we want to include and then some of the difficulties that engineers, architects, and lawyers are actually having with the idea of SFAIRP.

Richard Robinson (02:30):

Well, yes, and in fact that means we had to have in effect three core speakers with you acting as the facilitator.

Gaye Francis (02:36):

Correct.

Richard Robinson (02:36):

And resulting in your takeaways at the end of it all. But we needed a lawyer. And so we've got Joe Coleiro, who is the former, well, Wing Commander, basically, and wrote the Defense Aviation Safety Policy, which defined SFAIRP in a very precise way, far more precise than I think we've see most lawyers define. We first came across Joe when they invited us over to test our understanding of SFAIRP with his way of writing it up. And if it wasn't inappropriate, I probably would've given him a big hug at the time.

Gaye Francis (03:07):

Probably inappropriate, probably still inappropriate now. But, you know!

Richard Robinson (03:12):

He made some very interesting points because, and I have read this many times before where you just made the point, because in the "Understanding WHS Legislation" by Tooma and Sheriff, they basically make the point that SFAIRP is meant to be objective. Where using target levels as risk and safety is usually a personal thing that somebody has decided: this is the criteria we're going to use. And there's a whole lot of other interesting things flow from that.

(03:36):

The other person we've got is Dr. Frank Stocks who's an associate of ours who's an architect with a PhD in CPTED (Crime Prevention Through Environmental Design) who's busily designing stuff for the Auckland Airport and a few other things. And obviously the NZ legislation's got this SFAIRP in there and he's getting peculiar, frustrated with engineers who have to actually design to this standard and don't seem to really understand the significance of it. And so we felt it was appropriate to get...

Gaye Francis (04:04):

Three different (perspectives).

Richard Robinson (04:05):

And obviously I was going to expand on what David Howarth, the Professor of Law and Public Policy, when he came out to speak to us, when we invited to Melbourne just before COVID, and he sort of explained his understanding of law in a way that works with engineering because his presentation and book was actually "Law as Engineering, that is, Agents of Change". Whereas the lawyers are focused on the social environment and the engineers are focused on the physical environment, but they tend to overlap in the safety space, which is where it gets really complicated, which is what Frank is basically complaining about. And which in the aviation sector, which is what Joe is mostly remarking about, all needs to align. And I think that's something that's got us puzzled. It is not enough to have the engineers say "we got it right. And for the lawyers to say "we've got it right".

Gaye Francis (04:50):

Or the architects or the designers or anybody.

Richard Robinson (04:53):

The designers and the lawyers have to align.

Gaye Francis (04:57):

And I think that was one of the first discussions that we had about the SFAIRP concept was that it really has to be a cooperative process. It cannot be competitive, it has to be cooperative, and you have to have all of those key stakeholders in the room deciding what we are all going to do.

Richard Robinson (05:13):

And that was the point because the commercial imperative is pretty competitive.

Gaye Francis (05:18):

Absolutely.

Richard Robinson (05:19):

It bacically says we want the profit but the risk and which is what safety risk and environmentalists, those things, you tend to push away from yourself. That is the prudent commercial thing to do. But the whole point of the governance legislation, which is the SFAIRP type legislation for safety legislation and in Victoria is now the environmental legislation is saying, no, you can't do that. It has to be a collective decision, in effect, not just one party saying we've met our criteria.

Gaye Francis (05:49):

I think it goes further than that as well. It says, what can we do? Not who owns the risk. It's not about risk ownership and we've covered that in many other things, but it's about all the controls that you can put in place that are reasonably practicable.

Richard Robinson (06:04):

Well, that was the example because we were talking to Joe about it, the lawyer when he came in, it's like there was flying in an aircraft of 30,000 feet. You're on your way down in an unhappy state and the pilot says it's all good. We achieved that target level risk and safety when more could have been done.

Gaye Francis (06:18):

Yes. I guess as a passenger you're not sitting there thinking, oh, I'm glad the risk's so low that they're not going to do anything else about this while we're flying at 30,000 feet.

(06:31):

The next part of the conversation that it prompted was we were trying to define what SFAIRP means for different people. And as you said, we've got a lawyer, we've got Frank as the architect/designer, then there's us as engineers and due diligence engineers, and what it means for the different parties and stakeholders. And I think that's part of the complexity around it as well. When we talk about SFAIRP in an organisational sense, it's about the governance process that you undergo to demonstrate the due diligence requirements under the legislation. For for the directors, they're using it as a liability management tool.

Richard Robinson (07:08):

Yes.

Gaye Francis (07:09):

And for engineers and designers and architects, they're almost using it as, they're using it as safety and design, and it's all about all reasonable practicable precautions or controls. So you've got the (people), who often don't have all of the resources at their disposal.

Richard Robinson (07:28):

Don't have the final decision over the money usually.

Gaye Francis (07:31):

And so the pressures are being pushed down to the engineers and to designers in the organisation to manage the liability aspects for the directors. But they're often not in a position with all the resources and the components that they need to be able to do that.

Richard Robinson (07:52):

And certainly not the test for the elimination option, which we keep coming across. And the latest commission is about to address, I believe. Perhaps we won't talk about it though.

Gaye Francis (08:01):

But infrastructure projects in general. Yes. Typically don't look at the elimination option. And I think that's some of the interesting discussions that have been happening in our consulting work is, there's an ultimate client and there's a contractor delivering things.

Richard Robinson (08:16):

Yep.

Gaye Francis (08:17):

The contractor says, well, times have moved on. You've got a specification for a scope of work, but there's other things that you could do. What do we do with that information? And they do have to punt it up so the ultimate client can make the decision. But there's this mismatch between...

Richard Robinson (08:34):

The ultimate client probably doesn't want to make said decision either, which is the other difficulty, particularly in times of financial constraint. So unless they're a state cabinet who has no liability for such things, it's a very difficult decision to make.

Gaye Francis (08:47):

And so I think it goes back to that first conversation that we were having that all of those stakeholders need to be in the room to have these conversations. And SFAIRP is about that cooperative approach rather than competitive approach to be able to do that. So I think there's a lot of, SFAIRP pressures, if we want to call it, on the different stakeholders that make this situation, these discussions, very difficult.

Richard Robinson (09:15):

Well, it goes further than that because each one of those different stakeholders and their advisors actually come at it from a different point of view. So that means rather than having the cooperative outcome, you tend to get that competition in some way or another. And remember then that's where it gets really scrappy. I mean obviously you're going for the commercial imperative at one level, but disproportionality in a safety sense says: No, you have to hold that commercial imperative back in favour of safety. And that is not an easy conversation to have in the current day and age.

Gaye Francis (09:44):

No, it's definitely not. Independent consultants sometimes help with that, don't we, to have those conversations.

Richard Robinson (09:52):

We're part of the due diligence process to make sure that what needs to have been done was seen to be done.

Gaye Francis (09:57):

So it's that facilitation of it. And I think that goes then back to the organisational governance process of demonstrating due diligence.

Richard Robinson (10:04):

Well, but see, that's what's happening to us though. I mean, we'd always find from our viewpoint, if you haven't got the lawyers on side when you start the job, it's problematic. To try to get them back up to speed after it's done is sometimes awkward. But it's more than that. It's not as though the jobs we're doing we have full knowledge, technical knowledge of all the options and all the details. It's not possible for independents like us to do that.

Gaye Francis (10:29):

No, and that's why you rely on key stakeholders being identified and being involved in the process. So as we said before, as consultants, we're almost holding up a mirror to the key stakeholders and then...

Richard Robinson (10:42):

But document in a way that all the parties are satisfied with the result.

Gaye Francis (10:46):

Correct. So there's some interesting things that are happening and it's not a simple fix, and I think the complexities are increasing as time goes on.

Richard Robinson (11:02):

Because of the commercial pressures are becoming more severe. And I don't know quite what's happening, but we were sort of commenting it before, but the tendency to say "I" ahead of "we" has been increasing vigorously in the last couple of years.

Gaye Francis (11:16):

In business as in social, I would think as a community we're doing that as well.

Richard Robinson (11:21):

Correct.

Gaye Francis (11:22):

So this season we're going to concentrate on those SFAIRP pressures and the different aspects that go with that. Another one off the top of my head is the competing legislation, but I think that's a whole other podcast about the different requirements of different legislation and standards and what that means for SFAIRP.

(11:40):

But we hope you enjoyed the introduction to season six and join us for our next one as we continue to explore those difficult SFAIRP pressures. Thanks for joining us, Richard.

Richard Robinson (11:54):

Thanks Gaye.