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.

Safety & Planning Law Complications

Risk! Engineers Talk Governance Podcast
Season 6, Episode 4

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

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

Safe Work Australia's Best Practice Review of Model WHS Act & Regulations

Risk! Engineers Talk Governance
Season 6, Episode 3

In this episode, Risk! Engineers Talk Governance, due diligence engineers & R2A Co-Director’s Richard Robinson and Gaye Francis discuss Safe Work Australia's review of the model Work Health and Safety (WHS) Act & Regulations, and R2A’s submission response.  

Key points include:

• Contradictions between the WHS legislation, regulations, and common law requirements, particularly for designers and engineers. 

• Concerns around the hierarchy of controls and how they are interpreted by regulators.

• Inconsistencies in how the WHS legislation is implemented across different jurisdictions.

• Misalignment between WHS legislation and planning laws, creating challenges in integrating safety considerations early in the design process.

The discussion highlights the need for greater clarity and consistency in the legal framework governing workplace health and safety, to ensure effective implementation, especially for designers and engineers.

Submissions closed 3 November 2025.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss Safe Work Australia's best practice review of the Model Work Health and Safety (WHS) Act and Regulations and outline their submission response.

(00:20):

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

(00:38):

Tickets are also still available for our live forum in person and online on 21st of October, 2025. You can find the link in this episode's description.

Gaye Francis (00:50):

Good morning, Richard. Welcome to our podcast session.

Richard Robinson (00:53):

Good morning, Gaye. Welcome back.

Gaye Francis (00:54):

Thank you. It's been two weeks of school holidays, so it's nice to be back.

Richard Robinson (01:01):

I'll mention this to your kids the next time I see them.

Gaye Francis (01:04):

True, true. Straight into it today. What we're going to talk about today is Safe Work Australia has a discussion paper out titled Best Practice Review of the Model Work Health and Safety Laws - Discussion Paper dated September, 2025. And they're asking for submissions till the 3rd of November (2025). And of course, R2A can't help itself, but we need to respond to these sort of things.

Richard Robinson (01:28):

Particularly since there are some glaring contradictions and in so far as we can tell from the point of view of designers, Section 22 of the WHS legislation or section 28 if you happen to be in Victoria, which requires the SFAIRP application. And there has been quite really categorical contradictions, which we've never quite understood. And one would hope that Safe Work would be willing to have a crack at the legal framework to try and fix these things.

Gaye Francis (01:54):

I was just going to say that the key questions for this sort of best practice achieves the object of the Model WHS Act section three within this context, how do we maintain best practice in response to the changing nature of work and emerging risks? And how can harmonisation of WHS laws be strengthened and maintained across jurisdictions into the future? And I think getting that consistency across a whole lot of things, and we've sort of got three key points and we might go through them. We'll go through 'em today.

(02:22):

It's really that the Act versus the Regulation and the Code of Practice.

Richard Robinson (02:28):

Correct.

Gaye Francis (02:28):

And there's a contradiction there, and we'll go through that in a little bit more detail. I think there's a huge mess around the hierarchy controls of what's in the legislation compared to the common law and then what the regulators are promoting.

Richard Robinson (02:42):

Correct.

Gaye Francis (02:43):

And I guess we've come from it from a practical viewpoint of a practical implementation of the WHS legislation, especially for designers and engineers. And that sort of leads on to what you were saying before about the designer section, Section 8.

Richard Robinson (02:59):

Well, the other one is the basic non-alignment of planning law with WHS legislation, which has got us confused as engineers. And then as far as I can tell, the lawyers aren't clear on it either.

Gaye Francis (03:19):

So I think you've given the introduction of the contradictions for the designers and the requirements of designers. And so I guess the next one is the contradiction of the Act and the Code of Practice in particular.

Richard Robinson (03:37):

This is one which keeps emerging. The Code of Practice follows pretty much the Risk Management Standard. So I'm just going to look at the little diagram that the most recent one puts out. And it says Identify hazards, assess risk, control risks, and review risk controls. And that pretty much follows the Risk Management Standard, which so far as we can tell, doesn't follow the process that you need to in order to survive Common Law scrutiny and presumably statutory.

Gaye Francis (04:00):

And when we say assess the risk, we are talking about consequence and likelihood, aren't we?

Richard Robinson (04:04):

Correct. By risk assessment? So you can have high consequence, low likelihood to be low risk still.

Gaye Francis (04:09):

Yes.

Richard Robinson (04:10):

Despite the fact that something really nasty. So it's high consequence, low likelihood could still occur. Now the way we always do it, and we've tested it for so many lawyers, it really sort of got to the point that you, yeah...

Gaye Francis (04:24):

We're not quite bored with it, but it is going down that path.

Richard Robinson (04:28):

But our recommendation is you follow what we understand to be the Common Law approach, and that is you identify the credible critical ones, the ones that can kill the maim, then you identify the further possible precautions that could be put in place, and then you work out what's reasonable in the circumstances based on what you know, which then is supposed to be an objective test. And then you have a QA system to make sure that what you've agreed is sustained. Now that actually contradicts the Risk Management Standard approach very thoroughly.

Gaye Francis (04:55):

And some of the commentary that goes with that, it's sort of for known hazards. If there's known solutions, you just put those in place. But what we're saying is the SFAIRP principle actually asks you to look at all of the controls that could be put in place.

Richard Robinson (05:09):

Correct. For the critical ones.

Gaye Francis (05:10):

For the critical ones, and then determine what are reasonable in the circumstances. So that might be more or different to the ones that are already in place.

Richard Robinson (05:18):

And it may well be different to what's in a Standard.

Gaye Francis (05:21):

Yes. So you just have to be careful there that you're not just doing what everyone else does or what's common practice. It may not be relevant in the circumstances.

Richard Robinson (05:33):

Correct. And it will be the judiciary that decides what's relevant in the circumstances. I mean, the way it actually works, I mean something bad happens, somebody gets killed or maimed, it goes to court, or the expert pop up after the event, and say, with the advantage of hindsight, what could have been done, which isn't that hard. And then the court decides in all the circumstances whether the ideas dreamed up by the experts were sensible in view of what was known at the time the decision was made.

Gaye Francis (05:59):

That is, were they reasonable?

Richard Robinson (06:01):

Yep.

Gaye Francis (06:03):

So yes, that's probably the first one and we are putting that in our letter. The next one for me, and this is the one that probably annoys me the most, is the hierarchy controls and the different commentary that's going around about those, and especially from regulators. So we've covered this many times. The WHS legislation has a hierarchy of two. You must eliminate first, and if you can't eliminate, you can reduce it, so far as reasonably practicable. When you go to court, it's divided into three categories. Elimination, prevention, you stop the thing from happening and then mitigations, which stops the escalation of the consequences or reduces the consequences.

Richard Robinson (06:44):

And the example you usually give us is of the rail road crossings level crossing. So obviously if you want to eliminate, you can grade separate at great expense or you can put up boom barriers, which will stop the incident from happening at all. And if that fails, you go with crashworthiness, all of which happen to be engineering controls, and which engineering only pops up typically as one out of six controls that most regulators put up.

Gaye Francis (07:07):

And that's probably the other area is that how regulators do it. And we've seen 'em everything from three to four to seven sort of categories.

Richard Robinson (07:19):

Well, different jurisdictions have different things, but the most popular one seems to still be six with eliminate being the top and then another five. But Victoria's down to four I think. And sometimes you're seeing Queensland, they've got both six and three. It's very confusing if you're a designer as to which one you're supposed to use.

Gaye Francis (07:35):

And they've also grouped some of them together. So isolation, engineering and substitution.

Richard Robinson (07:41):

Well, that's how they shrink it down. What's interesting from our point of view is they're getting closer and closer to what we understand to be the way the courts go about it. But for some reason...

Gaye Francis (07:50):

The terminology is not the same though. And I think that's where it's confusing. So I think to harmonise the WHS legislation, if the regulators could get on board of what an agreed...

Richard Robinson (08:01):

It would be really helpful the regulators would talk to Safe Work Australia, I think.

Gaye Francis (08:04):

Yes. And streamline that process. I think that would take a lot of confusion out for engineers. And the third one is probably Richard's favourite part at the moment, is the planning legislation.

Richard Robinson (08:16):

Wouldn't call it favourite!

Gaye Francis (08:19):

Or the area that's causing the most difficulty and confusion is the planning laws and WHS legislation.

Richard Robinson (08:26):

Yeah. Because what seems to be happening is that planning law basically has a life of its own, unless there's some forced connection between WHS legislation seems to be ignored. I mean, probably the one that hit us the hardest, and that I've got to say practically was when we did the hazard and risk analysis for Western Sydney Airport because we didn't start the job until we got the Australian government solicitor to agree that the owner and operator at the airport had to comply with the WHS legislation. But then when the planning process went through, we sort of got told, well, you don't have to follow the legislation for the EIS. And that's really weird because most of the core hazards are set up right at the start of the planning process.

Gaye Francis (09:01):

Well set up, but also able to be dealt with at the most, at the easiest part on a pen and paper and a planning stage than it is once it's been implemented.

Richard Robinson (09:12):

Yeah, no, I think we've already spoken about it, so I don't propose to go into it here, but the only time when we've found a good connection between the two is when the planning law has a requirement that advice needs to be received from the relevant regulator, for example, major hazards, in which case the planning system actually does take cognizance of the obligations. But then it's more the obligations.

Gaye Francis (09:34):

Only if it's brought up though.

Richard Robinson (09:36):

That's correct. It has to be forced into the system somehow. And in that sense, in Victoria, the VCAT one we're talking about, the council had to actually ask the opinion of the WorkSafe Victoria with regards to a major hazard facility. WorkSafe Victoria presented an opinion, therefore that opinion then had to be thought about.

Gaye Francis (09:54):

Yeah. And I am sure there's other legislation that would have conflicting requirements as well, but that's the one that we've sort of come across.

Richard Robinson (10:05):

Yeah, they're the three sort of biggest that we've come across, which obviously we're going to advise. And for those of you who are contemplating coming to our October (2025) event with regards to SFAIRP, these sort of questions will pop up there possibly depending on what people ask.

Gaye Francis (10:24):

Yeah. And the discussion will sort of be around these things. So I think as we said before in our podcast, we're not actually sure what the event will turn out like and what discussions will be had.

Richard Robinson (10:35):

We're pretty sure it's the questions that are going to be the best part.

Gaye Francis (10:38):

The discussion part will be the best part. And I think some of these things that we've been talking about, there's no one answer to do it, but there's ways and people think about these things differently. And I think that's the important part that these difficult conversations are being had.

Richard Robinson (10:54):

Well, it is essentially, if you look talking the larger thing, I mean the WHS legislation was attempting to get societal alignment from problems that arose since Federation, big step forward. But it went to the highest level, the parliamentary level. And even Victoria still has to put in the adopted it, even though we have the SFAIRP business, we don't have the due diligence business, but we've certainly got all the obligations and designers that's pretty much the same. But then the next level down in effect is what we're actually talking about. And that harmonisation hasn't happened properly yet, which is what Safe Work is actually asking for.

Gaye Francis (11:27):

And I think if anyone was interested in going through that discussion paper, it's actually a good read and they've sort of put the differences between the different jurisdictions. So even though you've got a model WHS Act.

Richard Robinson (11:39):

You haven't got the regulators harmonising themselves yet.

Gaye Francis (11:41):

So there's some harmonisations and there's been a number of tweaks to the legislation that makes each jurisdiction that just that little bit different from each other. So they're sort of saying, is there some consistency that can be thought through?

Richard Robinson (11:56):

We don't know what motivated this particular best practice request. We have some suspicious that the points we're making may be relevant.

Gaye Francis (12:05):

Yes. So I hope you found today's podcast interesting. Thanks for joining us, as always, Richard, and we'll see you next time.

Richard Robinson (12:12):

Thanks Gaye.

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.

Engineering for Communities & Season 5 Wrap

Risk! Engineers Talk Governance
Season 5, Episode 10

In this final episode of Season 5, Richard Robinson and Gaye Francis conclude their theme of difficult conversations engineers need to have as well as discuss Engineering for Communities. 

They explore how engineering should focus on improving rather than maintaining the status quo, and the concerning trend of engineers being sidelined in critical decision-making processes.

The discussion includes:

• How councils and planning decisions have become "de-engineered"

• The importance of due diligence beyond just health and safety - extending to environmental protection and project management

• Why engineers seem to have "vacated the field" in many areas, leaving non-technical decision-makers to handle complex problems

• The need for validation, verification, and challenging assumptions rather than blindly applying Standards

• How proper due diligence can demonstrate governance and protect communities, workers, and the environment

• Due diligence is an ongoing process requiring continuous thinking and adaptation as technology and circumstances change. 

The also discuss their confusion how anyone could they're a designers and not demonstrate due diligence irrespective of what the WHS/OHS legislation says and that they’re setting themselves up for a fall.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this final episode of Season 5, due diligence engineers, Richard Robinson and Gaye Francis wrap up the theme of difficult conversations engineers need to have, as well as discuss engineering for communities.

(00:19):

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

(00:26):

If you'd like to keep in touch with R2A's work and events, please head to the website www.r2a.com.au and sign up to our quarterly newsletter.

(00:37):

Thanks for all the wonderful support and feedback this season and look out for Season 6, as well as an in-person event.

Gaye Francis (00:46):

Hi Richard. Welcome to our final podcast session for Season 5, the wrap up.

Richard Robinson (00:52):

Season 5!

Gaye Francis (00:53):

Season 5.

Richard Robinson (00:54):

It's hard to believe Gaye.

Gaye Francis (00:54):

It is. It is, but it's very exciting. It's been quite an interesting season this season because we themed it difficult discussions that engineers need to have, and we've covered risk management and negligence, our new booklet. The difficult conversations that engineers need to have. Catastrophic project blowouts, which is also one of our booklets, but also we've seen that in government projects in particular and how big projects are not meeting the requirements on time, on budget and specification. Insurance criteria. One that got a lot of feedback was standards are not the solution, so that was an interesting podcast. Target levels of risk and safety always gets the the thought leadership conversations happening. Relevant, reasoned and concise, especially around expert witness type cases. How things are done in silos. And then due diligence revisited.

(01:53):

So today we thought we'd try and bring all of those topics together in a bit of a mismatch, but bring them all together and talk about in the context of engineering for communities and the philosophy of engineering is about change and not maintaining the status quo. So that comes down to one of...

Richard Robinson (02:11):

Meaning things improve.

Gaye Francis (02:13):

And meaning things improve, correct!

Richard Robinson (02:14):

And don't decline. <laughs>

Gaye Francis (02:18):

And that it requires engineers and the people in those sort of positions to think about things and not just apply standards like we've talked about previously, to get that improvement in our communities.

Richard Robinson (02:33):

Yes. Well, you're actually addressing a somewhat larger subject when you talk about engineering for communities, and what I think you're saying is that in practice in community, a lot of the core decisions that have been going on around the place have de-engineered. One of our frustrations and that's what the previous podcast (S5E9) was about, that due diligence is not just about health and safety.

Gaye Francis (02:52):

Correct.

Richard Robinson (02:53):

It's about protecting the environment. It's about not having projects blow out when you're trying to get something done. And it is also about making sure that existing plants and processes do the best they can with what you've got. Because sometimes you simply aren't going to be able to replace all these things in a hurry. So ageing, thermal power stations, yeah, we'd like to keep them going until we're sorted out whatever else we're going to do. Australia's getting, well, I think we're getting better at it... we are making it happen because we have to.

Gaye Francis (03:22):

And due diligence is one of the processes that you use to demonstrate that that's being done

Richard Robinson (03:28):

Correct. Now, from the point of view of engineering and societies, I mean one of our frustrations we've noticed, for example, in planning decisions with councils - councils are basically de engineered. I mean, they've got all these planners making decisions about, and they like target levels of risk and safety because it means you can make a quick decision when they having to think things through. Although as we have demonstrated we have a current case, even actually demonstrating what the level of risk is, is somewhat messy, let's put it that way.

Gaye Francis (03:57):

Difficult thing to justify.

Richard Robinson (04:00):

And uncertain. And then when you try to work out the quantum of human effort, that should be put into a place to deal with something that's messy. That's a little bit scrappy too. So when you're trying to put the two things together, that's why it's hard and people have to think about these things. Now if you don't have the engineers around, and certainly in planning decisions, engineers seem to have basically left the fields as far as I can tell. Same things happened with building surveying. The engineers for the most part, apart from doing particular studies on bush fires or soil conditions or whatever the aspect is...

Gaye Francis (04:34):

They're a single input into the process.

Richard Robinson (04:36):

A series of single inputs the way it's going. But the collective overview of what's important to the thing seems to have gone missing and how many projects do we keep seeing blowing out? It's a little bit frustrating to us to be invited to a large project late in the day and then trying to as politely as we can point out that, yeah, it would've been better if you thought about this upfront.

Gaye Francis (04:58):

Yeah. Because what you can put in place, the controls that you can put in place and precautions you can put in place when a project is well on its way after practical completion, even some might say, is very, very limited compared to what could have been done in a safety and design process.

Richard Robinson (05:15):

And you would recall we have some Cabinet in confidence projects that we facilitated their demise and we're not allowed to talk about in case the tenderers find out.

Gaye Francis (05:24):

Correct.

Richard Robinson (05:24):

And sue the government.

Gaye Francis (05:26):

But that would have been a lot less hurt than if it had a gone ahead.

Richard Robinson (05:29):

Much less hurt, but let's not go into that. So the whole thing to us has become rather odd and we don't quite understand why the engineers have, in a sense vacated the field. And more to the point, the senior decision makers haven't grasped that in an advanced technological society, pushing the engineers away is going to cause excessive pain for the senior decision makers.

Gaye Francis (05:57):

And make those decisions harder and making informed decisions even harder.

Richard Robinson (06:03):

I'm not sure. I don't quite understand how they've done it? It's not as though, I mean we've talked about this before, but in Australia, as long as the sun's shining, I mean all the places on the planet where there's a lot of sun. I mean, you have your Finnish friends.

Gaye Francis (06:18):

I do.

Richard Robinson (06:18):

And they like nuclear reactors because in winter it's very cold and very dark.

Gaye Francis (06:24):

Not much sunshine.

Richard Robinson (06:24):

Not much sunshine. Whereas we have lots of it, and it's now cheaper to build solar power stations cheaper, faster, and quicker than nuclear plants. How long did it take the Finns to get the next Olkiluoto station going?

Gaye Francis (06:38):

I think the last one took up to 15 years because they weren't going to switch it on until they were completely confident that it was "safe".

Richard Robinson (06:47):

Which we in our society tend to say, oh, we better turn it on because we've got an election coming up or something like that.

Gaye Francis (06:54):

That's a bit cynical, Richard. But yes.

Richard Robinson (06:57):

Not after our experiences on the Geelong Freeway, but perhaps we shouldn't go there either. <laughs>

Gaye Francis (07:04):

So I think as was saying, due diligence is one of those processes that we've always said is used to demonstrate and as a defense against negligence, but it can be applied across the field, not just in health and safety. It can be applied in environment and projects and SIL reviews (safety integrity level) reviews and a whole lot of things. But one of the other important things I think that goes with the due diligence aspect is that validation and verification, and it's the ability to test and challenge and question, which is not necessarily being done. And that comes down to that questioning of things and thinking things through, but also not just applying the Standard as a minimum requirement and not thinking of the context in which the particular problem that needs to be solved in.

Richard Robinson (07:52):

Correct. And not avoiding a problem if you can in the first instance. I mean, we are continually astonished that people coming up with ideas and the solution of not doing it that way at all and doing it a better way for some reason just doesn't seem to be considered. We don't get that.

Gaye Francis (08:12):

And I think we've used this in our course many, many times just because everybody else is doing it that way, is not a defense against negligence.

Richard Robinson (08:18):

Correct. And the lawyers have been crystal clear about that forever.

Gaye Francis (08:21):

Yeah. Yeah. So think these things through what has always been done isn't necessarily the way to go about it. You've got to be diligent. And we are just talking and people are absolutely correct that there's no requirements in legislation and in the WHS Act, that is a requirement for engineers to be diligent or demonstrate due diligence. But as an engineer and a business owner, I'd like my engineers to be diligent.

Richard Robinson (08:57):

Certainly.

Gaye Francis (08:57):

And to be able to think these things through from scratch and understand the context in which they're applying it.

Richard Robinson (09:08):

A designer who doesn't demonstrate due diligence is just kidding themselves. I don't understand how somebody could even possibly say they're designers and they don't have to demonstrate due diligence irrespective what the legislation says. You would just be setting yourself up for a fall every time.

Gaye Francis (09:24):

So I think engineers are important people in our society and we're required to have good communities.

Richard Robinson (09:30):

Actually, their importance is actually demonstrated because whenever there's a court case, it's always the engineers.

Gaye Francis (09:35):

That come up and solve it or present the evidence.

Richard Robinson (09:38):

Yeah, it's not the town planner, it's the engineers. It's not the building surveyor, it's the engineers. Whenever there's a hard problem, it's the engineers that appear. And I don't quite understand why if you just look at the court process, if that's what happens, why do all these other parties who can't be a part of the solution per se, why are they making the decisions? That's the bit I don't get.

Gaye Francis (10:05):

I think it's also interesting, and another observation that we've probably had is that many of the health and safety people and advisors in organisations don't have that technical expertise.

Richard Robinson (10:16):

So they couldn't tell you how to avoid it in the first place, not the design party.

Gaye Francis (10:20):

So many of the solutions that are put forward by these people and these parties are often in the admin, the procedural sort of areas. So you've down the hierarchy of control before you even start.

Richard Robinson (10:32):

And do they attempt in the first instance, which is what they ought to be doing, to consult with those people who could perhaps eliminate the problem? I don't think they do. I think they just put forward the suggestion and more importantly, actually impose a rule on people without actually testing what the larger solutions ought to be.

Gaye Francis (10:51):

So I think there's two things that we've sort of seen, and much of the work that we do could probably be put into two categories. It's those people that want to improve safety in the organisation by demonstrating due diligence.

Richard Robinson (11:04):

Or project management

Gaye Francis (11:05):

Or project management

Richard Robinson (11:06):

Or environmental management.

Gaye Francis (11:07):

Yes, thank you. And then by doing that process, the due diligence process, you're also demonstrating a governance process that you've been through a governance process and it's sort of hand on heart stuff again, isn't it? We've done everything reasonably we can to protect our community, our workers, the people who our work exposes, what else can we do? Or we've got all reasonable practical controls in place to manage this big project or this environmental issue, whatever it is.

Richard Robinson (11:43):

And that's what that CFA chief said. Remember he said, I've been a volunteer chief for 10 years and I know that I'm going to lose somebody if I keep doing this job.

Gaye Francis (11:50):

In a bushfire.

Richard Robinson (11:51):

In a bushfire, but what I need to be able to do is put my hand on my heart and say, it wouldn't have mattered if it was my son or daughter fighting the fire. The same thing would've happened and we'd done everything reasonably practicable, but we could in the circumstances, and this is Australia and we burn.

Gaye Francis (12:06):

Yeah. And so I think due diligence is one of those processes that can do that. It is a process that requires people to think things through.

Richard Robinson (12:16):

Correct.

Gaye Francis (12:17):

Look at the context in which your situation is and look at all the controls, not just do the status quo, maintain the status quo. Technology's changing all the time. The controls are changing all the time, and what's reasonable in the circumstances can change year to year. And so it's not something that's done once put on the shelf and forgotten about. It's something that has to be thought about continuously.

(12:44):

So I think that's sort of a wrap to Season 5. We hope you've found it interesting and the difficult discussions that engineers need to have.

(12:58):

Richard and I are still looking at doing an in-person event in mid-late 2025, and especially around this sort of difficult discussions that engineers need to have because the interesting part is the different opinions of people and how it works within organisations. So we're looking at setting up a due diligence seminar, as I said, in mid 2025. And if you are interested, sign up to our newsletter to keep informed on how that's coming along and further details as they're released.

(13:30):

So thank you again for joining me on for Season 5, Richard. And we will be back for Season 6 later in the year. Thank you.

Richard Robinson (13:40):

Thank you.

Engineering Due Diligence: The confusion between Risk, Assurance & Diligence

Risk! Engineers Talk Governance
Season 5, Episode 9

In this episode, Richard Robinson and Gaye Francis revisit the fundamentals of engineering due diligence in response to listener feedback about the confusion between risk, assurance and diligence.

The discussion covers how R2A became specialised in due diligence engineering through their expert witness work, where they learned that due diligence serves as a defense against negligence with two key components: having reasonable control in place and taking all reasonable steps to protect against foreseeable harm.

Richard explains their decision to move away from quantified risk assessments using target risk levels, as this cannot adequately demonstrate due diligence. Instead, R2A advocates for a top-down approach that identifies critical issues, evaluates available controls, and determines what's reasonable in the circumstances.

They clarify that while due diligence obligations are explicitly stated for corporate officers in workplace safety legislation, all professional engineers have an implied duty to demonstrate due diligence as part of their professional responsibilities, and emphasise that simply following regulator approval doesn't guarantee protection from negligence claims. Engineers must take a holistic approach rather than relying solely on Standards or regulatory compliance.

The books they mention are:

• For Directors: Criminal Manslaughter, How Not To Do It

• For Engineers: Risk Management & Negligence; Due diligence Essentials for Engineers

 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 due diligence. And this is thanks to an email from Chris who wrote that they've been listening to the podcast to better understand risk due diligence, Rail Safety National Law, and duties of engineers, and that it's hard to rationalise the relationship and hierarchy of Rail Safety National Law versus (e.g.) Victoria's OHS Act, what is and isn't required to be diligent, and the relationship of risk assurance and diligence.

(00:40):

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

Gaye Francis (00:58):

Hi Richard, welcome to a podcast session.

Richard Robinson (01:01):

Good to be here again, Gaye.

Gaye Francis (01:04):

Today we're going to revisit due diligence and part of it's based that we've recently had an enquiry about an observation that there's some confusion and differing views out and about around the risk space, around risk and assurance and diligence and what it actually means. And I thought what we'd do today, we've covered due diligence on a number of our podcasts, but if we go back today and have a look how we actually started in the engineering due diligence space and why we did it and how we apply due diligence in the engineering work that we do, that might be a useful conversation. So I'll get you to give an intro into how we became due diligence engineers.

Richard Robinson (01:50):

I can do that. I must firstly observe. It was surprised to me to see that you'd never actually listened to one of our podcasts. I recommend you do that. Gaye.

Gaye Francis (01:58):

Oh, well, we're only in Season 5 Richard. I'll get around to it.

Richard Robinson (02:01):

Excellent. Now, anyway, the reason why we became due diligence engineers, and as far as I know you were around during the entire process, was that we were doing this as response to expert witness matters before the courts. Now we're engineers, not lawyers. So what happened was that every time you do an expert witness case, the lawyers tell you to read various things, and they directed our attention to various relevant cases, particularly Wyong Shire Council vs Shirt, where Chief Justice Harry Gibbs talking about the balance of the significance of the risk versus the effort required to reduce it. But what became patently clear to us about all of this was that due diligence has always been a defense against negligence. And there were two parts against the defense against negligence. The first part was the no power defense, that you could only be responsible for matters over which you had control. And the second part was that in the circumstances as a reasonable human being, you would do all reasonable things to protect against foreseeable bad things that might happen to other people around you or the people, your clients and so forth. And so due diligence was articulated quite clearly to us as a defense against negligence.

(03:08):

Now, the world moved on, and in 2004, Maxwell QC reviewed the OHS Act in Victoria, and he put in place that you had to eliminate hazards so far as reasonably practical and if you couldn't eliminate, you had to reduce them so far as reasonably practicable. But the Victorian Act doesn't talk about due diligence anywhere. But nevertheless, we were cognisant of what the Act was talking about. And we were doing at the time, quantified risk assessments where you target levels of risk and safety around major hazard facilities. And I've got to say it's a prosperous area of activity to be in.

Gaye Francis (03:41):

It is.

Richard Robinson (03:42):

But when you looked at that and you looked at what due diligence as a defense against negligence was which engineers had to apply. I mean, you have to pay PI insurance if you're an engineer, and that's mandated under Registration of Engineers, under the Code of Ethics of Engineers Australia, if you don't happen to be a Registered Engineer, you have to do these things. And we basically had to say to the major hazard's regulator of Victoria and all other jurisdictions, and this includes quantified risk assessment in railways, which we had to walk away from, quantified risk assessment in the aviation sector, which we had to walk away from, we said, you cannot demonstrate due diligence by using target levels of risk and safety because there's two parts to it. Apart from the difficulty of actually knowing what the number is for high consequence, low likely things, which is a rabbit hole, which I'm about to test in a court case in the very near future in Brisbane. The other one is, the other side of the equation is what's reasonable in the human effort. Because designating human effort, you can't quantify that unless you're just going to put dollars to it or something and that doesn't work when you talk about life safety.

(04:46):

So we have to say to the major hazards regulator of Victoria and all the other places, we're not going to do it anymore. And why aren't we going to do it anymore? Because we've given up on using target levels of risk, and what your duty is as an engineer and your common law duty is to demonstrate due diligence.

Gaye Francis (05:04):

To show that all reasonable, practicable precautions are in place.

Richard Robinson (05:08):

Now at this point, you could have knocked us over with a feather when Julia Gillard turned up and then started promoting the WHS legislation, taking the SFAIRP approach from Victoria, because remember, she was Victorian, well at least for the purposes of, she went back to South Australia, but for the purpose of this, she was a Victorian. And then she became Workplace Relations Minister, the Chair as Deputy Prime Minister and so forth. And she obviously put her heart and soul in, and she basically tucked due diligence into the WHS legislation, but quite correctly as some people say, and as far as I know, we've always been quite crystal clear on this, that due diligence obligation in a statutory sense applied to the officers of the corporation, the business, the PCPU has to demonstrate that that all reasonable controls are in place. Anybody who works there, you've got to demonstrate all controls are in place.

Gaye Francis (05:58):

Reasonable care

Richard Robinson (05:59):

But the due diligence obligation, and remember due diligence only includes, it doesn't mean the six items in the WHS Act. And I spent a lot of time with Barry Sheriff giving presentations on behalf of Engineers Australia all over Australia, talking about all this because he would talk about what's required. Then I'd say, well, here's what you have to do to demonstrate due diligence with regards to how an organisation would show that all reasonable practicable controls are in place. Now, at this point, seemed being pretty clear to me, the due diligence provisions of the WHS legislation, the onus on directors came from the common law due diligence as a defense against negligence. And I haven't had any lawyer ever disagree with that understanding. That it came from the common law and due diligence as defense against negligence in the common law. Now, that means from a practical viewpoint, all engineers anyway have to demonstrate due diligence...

Gaye Francis (06:52):

Even though it's not explicitly said in the legislation.

Richard Robinson (06:56):

Yeah, because you've got to demonstrate it anyway.

Gaye Francis (06:59):

As a professional engineer.

Richard Robinson (07:00):

As a professional engineer, if that's what you hold yourself out to be. And then as the Chief of the Navy goes to some trouble to say in his documentation, anybody who works in that organisation had better help the officers demonstrate the officer's due diligence. And how do you do that? You demonstrate that all reasonable practicable controls are in place. To say that the engineers don't have that duty, I just find bizarre.

Gaye Francis (07:26):

Yeah, it's sort of inferred in a way, isn't it? And that's how you go about your business as an engineer. How do we show that we're not being negligent or we use due diligence as the demonstration and the process to do that?

Richard Robinson (07:38):

Don't use risk assessments except as the second part. You work out what the core issues are. Because remember, we always came top down. And that's the other thing that R2A always does. We always say, you must come top down working on what the credible critical issues are, and then you work out what the options are. And then you're saying, in the circumstances, the balance, what's reasonable? Because that's the only way you can practically do it.

Gaye Francis (08:01):

Yeah. So we want to do that completeness check like we talked about, what all the controls are that can be put in place and what is reasonable in the circumstances.

Richard Robinson (08:09):

And if you want to be a worthwhile engineer and value to the organisation, particularly if you're a young engineer, starting your career, and this is something we say all the time when we're training young engineers. If you can show that whatever decision you are making has been diligent in a way that will satisfy your managing director and your board, you are worth your weight in gold. And if you are unable to do that, then you are not going to be a very successful engineer, not in this day and age.

Gaye Francis (08:39):

And helps inform decisions to be made.

Richard Robinson (08:41):

Correct.

Gaye Francis (08:42):

So by doing it throughout the organisation and people are right, they come and ask, and there's questions that some of the legislation or some of the regulations and hierarchy control, for example, there's some mismatch between...

Richard Robinson (08:57):

The regulators are muddled.

Gaye Francis (08:58):

And there is some confusion out there and what the requirements are. But as we said, we've always used due diligence as a defense against negligence and the hierarchy controls as the court sees it. So those three: elimination, prevention and mitigation.

Richard Robinson (09:14):

But it actually goes on. Remember some people, and I've seen this written a number of places. Well, if the regulator says It's okay, we're good. No! If it goes badly wrong and the public prosecutor wants to have a go at you, the fact almost all regulators and all that I've ever read, as long as they're acting in good faith, they can't be prosecuted for negligence. But the company can still go down.

Gaye Francis (09:39):

Even though they've followed the rules of the regulator.

Richard Robinson (09:41):

Even though they follow what the regulator said. Unless your legislation for your regulator specifically says that acceptance by the regulator has satisfied all your obligations, and most regulators try to avoid that!

Gaye Francis (09:56):

I was going to say they're more clever than that to say that in full on statement like that.

Richard Robinson (10:01):

Well, that's not quite right because the Victorian major hazards regulator, they have to accept it. But that's not what all jurisdictions say in all the regulatory regimes. You want to be very cautious and have a think about exactly what it is your regulator can and cannot accept.

Gaye Francis (10:19):

Comes back down to that question that we've talked about on a number of occasions and the topic we've talked about on a number of occasions, that you have to think these things through for the circumstances that you find yourself in and the organisation, in the whole of context that you're in. It's not just all of the silos, that you've got to put all of that together and have a holistic approach on this.

Richard Robinson (10:40):

And relying on a Standard as your core defense, you've got to think it through and then you test against the standard to make sure you haven't overlooked anything.

Gaye Francis (10:49):

True. True. Which we covered in our podcast very, very recently.

Richard Robinson (10:54):

Indeed.

Gaye Francis (10:55):

So what we want to talk about today was that there is some confusion out there. There's differing views.

Richard Robinson (11:03):

I suppose it's actually relevant from our point of view, our book "Criminal Manslaughter, How Not To Do It", that's aimed at directors.

Gaye Francis (11:09):

Correct.

Richard Robinson (11:10):

And our latest publication, which was...

Gaye Francis (11:13):

"Risk Management and Negligence, A Guide for Engineers"

Richard Robinson (11:18):

Due Diligence Essentials for Engineers. Because one of the points we make in here, I think it's Section 22, basically points out that designers have a particular duty...

Gaye Francis (11:27):

Under the WHS legislation.

Richard Robinson (11:28):

Correct. And that duty is to eliminate hazards so far as reasonably practicable. And how do you go about demonstrating so far as reasonably practicable that you've achieved those design obligations? Anybody who says you don't have to do due diligence to achieve that, I think is courageous.

Gaye Francis (11:47):

Well, maybe on that note, we would just say, think about what you need to do. And as I said, we've always used due diligence as a defense against negligence in the work that we do. And we would recommend...

Richard Robinson (12:03):

Continuing that way, do not change it. <laughs>

Gaye Francis (12:07):

Thanks for joining us today, Richard, and we will see you next time. Thanks everyone.

Richard Robinson (12:10):

Thanks Gaye.

How organisational silos impact due diligence across safety, projects & compliance

Risk! Engineers Talk Governance
Season 5, Episode 8

In this episode, Richard Robinson and Gaye Francis tackle the growing problem of organisational silos and their impact on due diligence and explore how siloed thinking undermines efforts across various domains—from safety, projects and regulatory compliance.

Drawing from decades of industry experience, Richard traces the evolution of risk engineering. They then discuss the need for integrating expertise across the entire organisation to achieve genuinely diligent solutions that satisfy all stakeholders.

Through real-world examples including waterfront safety designs in New Zealand and the Space Shuttle Challenger disaster, they demonstrate how breaking down silos leads to better outcomes. 

They also emphasise that while the R2A due diligence process isn't "rocket science," it requires structured thinking and inclusive facilitation to bring disparate perspectives together.

This episode refers to their previous discussion about being "relevant, reasoned and concise" (S5 Ep7), offering practical insights on how organisations can overcome the silo mentality to demonstrate due diligence across all operations.

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 silos, the due diligence difficulties and how they deal with siloed competing interests.

(00:17):

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

Gaye Francis (00:35):

Hi Richard.

Richard Robinson (00:37):

Hello Gaye. Back again.

Gaye Francis (00:38):

We are back again. Today we're going to talk about silos and the difficulty that we've seen with silos over the last little while.

Richard Robinson (00:49):

And how we deal with silos.

Gaye Francis (00:50):

And how we deal with silos. I think they've been separating out more recently into different categories, and I guess that it's very difficult to come to a due diligence solution or answer when everybody's doing things in silos.

Richard Robinson (01:09):

I think that's correct, and I think that's one of the reasons why on our last podcast (S5 Ep7) we were talking about that we need to be relevant, reasoned and concise. But when you're split into silos, everybody tries to make a justifed course of action from their own silo, you suddenly have all these competing interests and whatever you get when you consolidate it is usually a mess and rather scrappy.

Gaye Francis (01:31):

And I guess we can just say that we've seen this in a whole lot of applications. It's not just in safety, it's in projects, it's in SIL ratings, it's in a whole lot of things.

Richard Robinson (01:40):

Well, again it flows on from some of the other discussions we've had about the way in which the history of these things actually was created. I mean, now I'm actually going past and talking about how long I've been in this business, but the Risk Engineering Society of Engineers Australia originally started as the loss control section of the management branch of the Victorian division of Engineers Australia by a whole bunch of ex Factory Mutual engineers, of which I was one of them. Factory Mutual's based in Melbourne, that's why there was a collection of them in this location. Right.

(02:10):

Actually, it was actually rather close actually, the vote, because I do remember the vote as to whether or not it should be part of Engineers Australia because there's actually an argument to say that it shouldn't be. And as I said, it started as the loss control section, which in a sense was perhaps more allied to the insurance industry than to engineers per se. But then one of my former business partners, Derek Viner, dreamed up the idea of calling the risk engineers following on from Factory Mutual HPR, highly protected risk engineering, as a concept. And that was something that just flashed around the planet in a most extraordinary speed. Everybody became risk engineers all over the planet. It was something that I was completely astonished about. But anyway, that's what sort of happened.

(02:51):

But anyway, time went on and then rather than risk being a generic thing, which is what we were trying to do and from a Common Law viewpoint and from the point of view of what we then just thought was where the WHS legislation was going; this overarching thing dealing with the subject of risk. You might recall, we tried to convince the Risk Engineering Society to change its name to the Due Diligence Society, which hasn't been a success.

Gaye Francis (03:15):

No, we were unsuccessful in that attempt.

Richard Robinson (03:19):

But then the Fire Engineering Society of Engineers Australia appeared and it sort of hired off that part of what we had considered to be an integrated aspect of risk to somewhere else. It certainly confused perhaps some Factory Mutual type HPR engineers because fires and explosions is what Factory Mutual was focused on. I mean, the whole point of BLEVE is Boiling Liquid Expanding Vaporcloud Explosions, that was the term dreamed up by Factory Mutual researchers in the 1950s & 1960s I recall, because that's what I got fed in the 1970s, the late seventies. So yes, I have been around for a long time.

(03:53):

What got us completely stumped and this subdivision into silos of activity that's been preceding at pace because just think of Registration of Engineers and the fire engineers that are in their own little group. And yet as we've sort of been explaining, if you just look at that in isolation, you get completely confused. And Frank Stocks, our New Zealand associate, he's just been doing expert witness matter for some fellow who went over the edge at one of the harbors and drowned. And he'd been giving advice to various councils on this sort of thing. He's an architect actually, but he has a PhD in accepted crime prevention through environmental design. And his point has been, and that's where he's just been given this expert witness stuff and the coroner New Zealand and the provisions of the WSHA in their case apply, that to do and just make a decision on a silo, it doesn't make sense. You've got to have all the parties there.

(04:44):

For example, one of the things that Kiwis (NZ) really do like is their waterfronts and it's part of their social environment, and they don't want to have great fences areas stopping people falling over the edge. And yet obviously there's a danger there, particularly with kids. And Frank was sort of saying, well, what you've got to do is get all the relevant experts together, the people who want to make sure the access is maintained to the waterfront and so forth. So, where there's a bar, you can have a glass wall there with a glass top on it, proper plain glass, so it's not going to shatter and so people can have a drink and look at the water and admire things, and in another place you might do other treatments. And yes, the risk levels might change in one way, but what you need is an integrated solution that satisfies all the competing interests in a way that demonstrates due diligence and you won't be getting a constant level of risk all over the place because that's just not the nature of the thing. But you will have demonstrated due diligence all over the place, which is what the purpose is.

Gaye Francis (05:35):

But you won't get that solution if you keep thinking about it in silos.

Richard Robinson (05:39):

No. And using target levels of risk and safety, for example, you will be completely confused.

Gaye Francis (05:44):

So the key is to get the due diligence argument, you really need to bring those silos together. And we've seen it a lot in projects as well. Often somebody's got an idea and management do it, but they haven't talked to necessarily the operations or the maintenance staff of how it's going to be done. And so things are promised and done in isolation without considering all of the key parties and then trying to bring it back together is quite difficult.

Richard Robinson (06:12):

Well, and that's actually what we wind up doing. If you sort say what's a due engineer do? Well, in a way, you're making sure that the silos get back together again. So the decision that's made and the way it's presented is diligent for the whole organisation and all the players, including anybody who's actually exposed to the risk itself. I mean, one of the reasons why we're not RPEQ or RPV, the registrant being a registered engineer in Queensland or Victoria, is because what we do does not require it. We've talked about this a number of cases like RPEQ. And it's like the example we gave of the one our previous recently was about the fire engineers and things like that. We're setting up the argument of the WHS legislation as to why something needs to be done. And then that design is implemented and signed off by the relevant design engineer.

Gaye Francis (07:00):

With the support of all of the key stakeholders and all of the different silos.

Richard Robinson (07:04):

Which means the fire engineers are grateful for the answer, but there's no point in us being registered because what are we, there's no such registration for due diligence engineers.

Gaye Francis (07:14):

No, no. Well, we always said that a large part of our job is that facilitation process and communication process and bringing due process to things so that those arguments can be had in a constructive manner.

Richard Robinson (07:30):

And the way we do it, I mean, I guess it sort of puzzles me. It's not as though we do anything, which is astounding in the sense of the process. You go and talk to all the other parties, pick the core ideas, put it together in sort of some simplified form, and then run a workshop and test it with everybody. This is not rocket science.

Gaye Francis (07:49):

It's not rocket science, but you have to have a considered way of thinking about things and a structured process to go through.

Richard Robinson (07:57):

I tell a lie there. actually. The reason why one of the space shuttle blew up was because the O-rings got wrong. And if they'd actually done what we'd said... The problem was they had two O-rings, but they'd never launched when it was cold, and they didn't really know how the O-rings would perform. And the only reason why they had to have the O-rings is because they had to spread the manufacturing out across America, and if they'd manufactured it close to where the rockets were, they would've manufactured a single integrated without the need to join the bits together and have the O-rings. So not only did they fail to eliminate the hazard, they also then said, we've never had an O-ring fail. We've got two, so we've got backup. But the engineers were saying, you've never launched when it was this cold (and) we don't know what the performance of the O-rings will be in that condition. So yes, due diligence would've addressed it, and to very great extent the Americans set themselves up for the fall by the silos that they'd been creating.

Gaye Francis (08:53):

I also think you just set up potentially another podcast about quality assurance and the ability to test challenge and question.

Richard Robinson (09:02):

Yeah, probably.

Gaye Francis (09:05):

Just going back to that silo thing, we have seen a lot of organisations break out into silos and try and solve the issue of concern within those silos.

Richard Robinson (09:17):

But the reason why it drives this crackers, it's a bit like the safety function, break it out and putting a safety specialist over there and not recognise that risk management's a line management function, it just sets you up for a fall.

Gaye Francis (09:27):

Yeah, well, it should almost be all business as usual stuff, isn't it integrated into the whole of business. But what we say is that the due diligence process and demonstrating SFAIRP does get you over that silo and people having their own views on things in their own silos - it (all) has to be integrated.

Richard Robinson (09:47):

Yep.

Gaye Francis (09:49):

So we hope you found that interesting. Thank you for joining us today, Richard, and we will see you next time.

Richard Robinson (09:54):

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.

Target Levels of Risk & Safety: SFAIRP vs ALARP Revisited

Risk! Engineers Talk Governance
Season 5, Episode 6

In this episode, Richard Robinson and Gaye Francis revisit the distinction between SFAIRP (So Far As Is Reasonably Practicable) and Target Levels of Risk and Safety.  

They explain how target levels of risk continue to be problematic in engineering despite being legally unsupportable under WHS/OHS legislation and share examples of regulators and engineers still using outdated approaches and discuss why this confusion persists, pointing to issues with Standards and educational institutions that continue teaching these methods.

They clarify that SFAIRP asks "Are all reasonable practical precautions in place?" while target based approaches rely solely on calculated risk levels. Through real-world examples including expert witness cases and engineering consultations, they demonstrate how the SFAIRP approach leads to better safety outcomes and alignment between stakeholders and warn engineers and organisations still using target levels of risk for safety issues. 

This conversation follows their original discussion in Season 1 Episode 1: SFAIRP vs ALARP.

While the table they refer to is available in their Criminal Manslaughter – How Not To Do It booklet.

Richard and Gaye also run public and in-house workshops on 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 revisit the topic of target levels of risk and safety.

(00:13):

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

Gaye Francis (00:33):

Hi Richard, welcome to our podcast session today.

Richard Robinson (00:37):

Good day Gaye. I'm glad I'm over. I can tell you that

Gaye Francis (00:39):

I'm glad you're over Covid. You're thinking a bit better now. So that's always a good thing.

(00:44):

Today we're actually going to revisit one of our topics that we've talked about in the first season (Season 1 Ep 1) I think it was, and it was around SFAIRP and ALARP. So this one's titled Target Levels of Risk Revisited. And I guess the reason for revisiting it, it's that it's had over 200 listens on the podcast for the previous one, but we are finding more and more that target levels of risk and safety are still causing problems and still being called up and still being used and even more so I think now than they have in the last five years.

Richard Robinson (01:23):

But the consequences of this is that all these other parties are turning up to talk to us, to actually ask us to do more to overcome it. And by that I mean for example, we just had a regulator from New South Wales where a lot of the stuff seems to be based sort of wanting us to actually come and give a paper or presentation to their regulator, their conference, about why you ought not to be using the hazard and risk-based approach within SIL allocation processes, which is something we've talked about at a great length. And then we had also another visitor from another state regulator and they want us to act as the peer reviewer for the registration of fire engineers. And in particular they want us to make sure that everybody understands as a fire engineer that it's all being driven by the provisions of the WHS/OHS legislation, which a law fire engineers still don't seem to grasp and still want to keep using target levels of risk and safety. And then more than that, we then had an engineer from Western Australia pop up and I'm really literally talking about the last three weeks I suppose.

Gaye Francis (02:24):

Correct.

Richard Robinson (02:26):

Basicly explaining how EG-0 which uses target levels of risk and safety, it's completely unsupportable and which, so far as his concern had been overturned in the state in which he lives, has suddenly made a reappearance. And we're sort of saying this is peculiar because the serious players saying don't do it. And yet for reasons that we don't understand, it keeps coming back.

Gaye Francis (02:49):

I think it goes down to, and another topic that we'll probably talk about in this season, is that silo work and people doing things in silos and not understanding the overall context and the high level context as you said, that the WHS and OHS legislation really runs anything to do with safety.

Richard Robinson (03:08):

Correct. And it drives it. I mean we don't get it because I mean we live in a democratic society run with the rule of law and our parliaments actually do decide, and there was this contest of ideas, and they did adopt the WHS legislation with criminal manslaughter provision I might point out, as well as the peculiar duties on designers and the Section 22. And it basically hammers it forever. We just don't simply understand why engineers in particular don't seem to grasp this point.

Gaye Francis (03:37):

It's probably worth just giving a brief overview of what we mean by SFAIRP and target levels of risk and safety and the difference between the two.

Richard Robinson (03:46):

Well, we've been observing that ALARP is mutating into SFAIRP that the bit that's not mutating properly is the target levels of risk and safety. And this notion that risk assessments of themselves will provide you with an answer and describe why you don't have to do any more and that's just patently incorrect.

Gaye Francis (04:03):

So for us, the basis or the difference between the two are the SFAIRP principle says: Are all reasonable practical precautions in place? And the target level of risk and safety says that a calculation has been done based on consequence and likelihood and then that's as low as it can be. So that's sort of the two ideas that we think that there is a difference. And as you said, the principles around ALARP have been mutating into different things and they're sort of now asking the question, well even if the risk target is this much, can we do anything more?

Richard Robinson (04:43):

Yes.

Gaye Francis (04:47):

But really we're talking about SFAIRP and target levels of risk and safety.

Richard Robinson (04:52):

And I think we've basically decided we're going to stop talking about ALARP per se and just don't keep talking about target is risk and safety, because that's the path that fails. And that's the path that the risk management standard keeps encouraging. And I guess that's why we think people keep adopting it. I actually think an awful lot of this has got to do with Standards Australia, which we've already sort of talked about, and the fact that for reasons that we don't understand, Standards Australia haven't been picking up their game. It's got a lot to do with the fact, and again, one of these engineers asked about EG-0 that's endorsed by ENA, the Energy Networks Australia organisation, no liability seems to be being assigned back to the authority that's endorsing these things.

Gaye Francis (05:33):

Okay.

Richard Robinson (05:34):

Now I dunno legally whether that's actually the case because it was the question I was being asked and I'm not law enough to answer that one. But it does seem to me that if the reason why that people are still using target levels of risk and safety is because either Standards Australia either inadvertently or deliberately let it happen or in the case of Energy Networks Australia, they deliberately let EG-0 continue in the way that it's been going. We simply don't get it. I mean I can distinctly remember this is sort of one of these weird things that I was giving briefing to one of the boards, I better not say which one, but one of the distribution boards about the limitation of target levels of risk and safety and why he couldn't use EG-0, and when I stepped out the back, the fellow who drafted EG-0 was actually running a course on the subject. What I was doing was briefing the board with the support of the legal counsel for that organisation and yet the engineers were being taught at the back to go and use target levels of risk and safety at the same time. Now you sort of look at that and say, how is that possible?

Gaye Francis (06:32):

And you wonder why engineers are confused.

Richard Robinson (06:34):

Correct. Because they're being taught it.

Gaye Francis (06:36):

Yep.

Richard Robinson (06:37):

I remember I told you I was one of the defense engineers, I was busily explaining the difference between the two, and this bright young female engineer was looking at me said: I only finished university last year and they were teaching the risk management standard and target levels of risk and safety. I sort of went, yeah, it's a bit hard when the whole system or part of the system continues to teach it like it's a science when it simply doesn't pass the test.

Gaye Francis (07:01):

I think when the WHS legislation came in, we were in a conference or in a meeting and regulators give advice and so unless it's called up by legislation they can't be held accountable. Was that the way it was with standards as well? Because you said because the liability is not going back to the people that are putting out the standards, I guess their guidances, aren't they? And then you've got to really sit back and have a look at it and see whether it's relevant and applicable to what you're doing.

Richard Robinson (07:33):

But that was part of the point about the... Remember that quote from that lawyer from Minter Ellison about regarding AS 7000 and he's pointing out, now unless the standard's called up by statute of regulation, which they're pretty much not anymore, it only amounts to expert advice, but an engineer still has to exercise his or her skill and expertise irrespective of what the standard says. And what that was all about. I mean, I sort of explained this before with standards have two purposes: Preventing fools from their follie and rogues from their roguery because what you're supposed to do is figure out how it ought to be and then you go, and that's a design issue that's got nothing to do with target levels of risk and safety. You're saying right in the circumstance for this particular problem, what's the best solution?

(08:16):

You might recall again for the electrical company I was talking about, we were doing that review on the sub-station, which was next to the train lines and we were trying to figure out, because when you get earth return current, you've got obviously rail tracks going next to it you've got the ability to transfer high voltages and currents over a long distance when you've got steel rail tracks nearby is actually quite relatively easy even though it's an unlikely thing. And in the end, after we went through the process and this was following the provisions of the WHS Act, well in that case, the same SFAIRP principle as it was contained in their revised Electrical Safety Act, they basically sold the site and moved far enough away that the earth return currents couldn't affect, or the railways couldn't be part...

Gaye Francis (08:56):

So they couldn't put enough controls in place or precautions in place to allow it or determine it to be SFAIRP.

Richard Robinson (09:03):

Well you had to eliminate if you could. And the short answer was we could sell the site and buy the another one down the road and it was the cheapest way to fix it.

Gaye Francis (09:09):

So that comes back to my line, doesn't it? The difference between the two is target levels of risk and safety asks: Is this bad enough that we need to do something about it? Whereas SFAIRP is saying, here's a good idea, why wouldn't we do it?

Richard Robinson (09:21):

Correct. And the target of risk and safety is basically pathological in James Reason's terms, "here's a good idea", that is the objective of the legislation. The highest level of control as is reasonably practicable.

Gaye Francis (09:35):

And I think though, the key reason we keep pushing the SFAIRP principles is that we do give expert witnesses. Richard's doing an expert witness case at the moment and the opponent's argument is around target levels of risk and safety that it's really so low that we don't have to worry about it and where there's good ideas that can be put in place and so the court is going to test it.

Richard Robinson (10:04):

Well, it's going to be absolutely fascinating because one of the other things. You know we've got that little table (Criminal Manslaughter Booklet p24) and we when we run the course, we sort (show) the advantages and disadvantages between the two approaches and the solution-based approach, which is looking at here's a good idea, everybody comes together to look for it. Whereas when you do the hazard and the risk stuff, it devolves into detail. Everybody gets lost. And I can tell you the lawyers and the barristers are very lost in a whole lot of technical. Part of the problem is when you're going from what's the molecular weight of something and most times that's expressed in grams per mole, but a lot of people want to express it in kilograms per kilo mole. Well at this point, I'm not sure the court's basically with us in the discussion!

Gaye Francis (10:51):

And the numbers have been changing as well depending on what the circumstances that you're going to base your calculation on. So for us, we've always said that the WHS legislation/OHS legislation requires SFAIRP. ALARP as a term is still being used, but it has mutated into something that it wasn't. But R2A are really against and you can't use target levels of risk and safety to deal with safety issues.

Richard Robinson (11:22):

Correct. And I suppose just sort of a final point, I mean you may recall last year we did that review in that tall building and we had two sets of lawyers, one for the underwriter, one for the body corporate, and there were two sets of fire engineers and a lot of damage that occurred and what the underwriter's willing to pay for and what the body corporate thought should be the case, they were heading towards a court case.

(11:49):

And the last chance I think was when they got the couple of due diligence engineers and we ran a workshop and we explained the provisions of the WHS legislation and the lawyers looked at each other and said, yes, that's right. And then the fire engineers whom they've advised us afterwards, were getting ready to walk because they weren't going to sign off on the solutions that were being suggested, I think by the other party there were two sets. Once the WHS legislature was evoked, everybody aligned and the fire engineers said, thank goodness for that, we can sign off on the solution that's resulting.

Gaye Francis (12:25):

It was working towards a solution that everybody agreed to, wasn't it?

Richard Robinson (12:29):

And that's just hammering the point. There's no such thing legally, so far as we know as a risk assessment, it's a risk design assessment and that's where people seem to get it wrong. And I do not understand why that part, you would've thought the engineers would've thought design. That's us.

Gaye Francis (12:45):

It's a lot easier to do as well.

Richard Robinson (12:48):

The other options are just appalling. And I've just watched as this case, it was meant to be finished a few weeks ago and it got deferred. So more risk assessment work could be done. And I don't think it's going to help the court at all, but I'll find out soon.

Gaye Francis (13:02):

You will find out in a week's time.

(13:05):

So we just wanted to revisit that subject today, target levels of risk and safety and the SFAIRP principle, try and explain the difference between the two, and hopefully just give you a bit of a heads up that if some of your standards are still using target levels of risk and safety, be really careful, especially around safety issues.

(13:24):

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

Richard Robinson (13:28):

Indeed.

Why Standards are not the Solution

Risk! Engineers Talk Governance Podcast
Season 5, Episode 5

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

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

1. Using Standards out of context;

2. There’s no explanation for rationales;

3. They don’t cover all things; and

4. They are often lagging indicators.

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

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

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

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

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

(00:13):

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

(00:32):

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

Gaye Francis (00:41):

Hi Richard. Welcome to another podcast session.

Richard Robinson (00:44):

Hello Gaye. It's good to be here.

Gaye Francis (00:46):

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

Richard Robinson (01:11):

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

Gaye Francis (01:28):

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

Richard Robinson (01:55):

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

Gaye Francis (02:28):

Or a random number?

Richard Robinson (02:30):

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

Gaye Francis (03:16):

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

Richard Robinson (03:21):

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

(03:33):

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

Gaye Francis (03:48):

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

Richard Robinson (03:59):

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

Gaye Francis (04:13):

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

Richard Robinson (04:23):

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

Gaye Francis (05:24):

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

Richard Robinson (05:40):

So fast!

Gaye Francis (05:41):

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

Richard Robinson (05:55):

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

Gaye Francis (06:37):

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

Richard Robinson (06:40):

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

(07:42):

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

Gaye Francis (08:19):

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

Richard Robinson (08:26):

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

Gaye Francis (09:20):

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

Richard Robinson (09:34):

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

Gaye Francis (10:58):

And the Standard says so.

Richard Robinson (10:59):

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

(11:39):

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

Gaye Francis (12:10):

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

Richard Robinson (12:12):

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

Gaye Francis (12:48):

I do.

Richard Robinson (12:50):

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

Gaye Francis (13:35):

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

Richard Robinson (13:50):

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

Gaye Francis (13:59):

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

Richard Robinson (14:07):

It requires you to think and thinking is hard.

Gaye Francis (14:10):

It is hard. It is hard.

Richard Robinson (14:12):

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

Gaye Francis (14:29):

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

Richard Robinson (14:51):

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

Gaye Francis (15:07):

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

Richard Robinson (15:19):

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

Gaye Francis (15:31):

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

Richard Robinson (15:44):

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

Gaye Francis (15:51):

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

Richard Robinson (15:55):

Indeed.

Gaye Francis (15:56):

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

Richard Robinson (16:11):

Thanks Gaye.

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

Risk! Engineers Talk Governance
Season 5, Episode 4

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

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

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

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

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:00):

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

(00:18):

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

Gaye Francis (00:36):

Hi Richard, welcome to a podcast session.

Richard Robinson (00:38):

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

Gaye Francis (00:40):

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

Richard Robinson (01:14):

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

(01:57):

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

(02:46):

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

(03:23):

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

Gaye Francis (03:52):

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

Richard Robinson (03:54):

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

(04:49):

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

Gaye Francis (05:30):

$400 potentially.

Richard Robinson (05:32):

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

(06:24):

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

Gaye Francis (06:51):

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

Richard Robinson (06:54):

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

Gaye Francis (07:59):

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

Richard Robinson (08:03):

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

Gaye Francis (08:46):

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

Richard Robinson (08:50):

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

(09:31):

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

Gaye Francis (10:04):

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

Richard Robinson (10:09):

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

(10:54):

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

Gaye Francis (11:29):

Right.

Richard Robinson (11:29):

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

Gaye Francis (12:00):

I don't want to compare those two.

Richard Robinson (12:02):

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

Gaye Francis (12:21):

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

Richard Robinson (12:29):

Correct.

Gaye Francis (12:30):

You actually have to...

Richard Robinson (12:31):

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

Gaye Francis (12:40):

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

Richard Robinson (12:50):

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

Gaye Francis (13:30):

But it wasn't tested.

Richard Robinson (13:31):

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

Gaye Francis (14:06):

Not sure.

Richard Robinson (14:06):

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

Gaye Francis (14:27):

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

Richard Robinson (14:34):

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

Gaye Francis (15:05):

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

Richard Robinson (15:07):

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

Gaye Francis (15:10):

It does get cold, but not quite permafrost cold.

(15:14):

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

Richard Robinson (15:32):

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

Gaye Francis (15:35):

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

Richard Robinson (15:39):

Bye.

How to Prevent Catastrophic Project Blowouts: Project Due Diligence

Risk! Engineers Talk Governance
Season 5, Episode 3

In this episode, Richard Robinson and Gaye Francis discuss How to Prevent Catastrophic Project Blowouts and R2A’s project governance and due diligence approach.

They discuss the three key considerations when undertaking project due diligence and preventing project blowouts as:

1. Ensure your scope is right, have identified your critical success outcomes are and all key stakeholders understand what the prize is and agree.

2. Undertake a completeness check of threats. Project due diligence is not a risk assessment, it’s about controls, and putting in controls to protect against threats. 

3. Review the project on a regular basis and at key milestones. If there are any scope changes being proposed, you need to question what it will actually do to your project and where it’s at now. Redefine the project scope, as appropriate, but ensure changes are communicated transparently and clearly.

This discussion follows R2A’s booklet: How To Prevent Catastrophic Project Blowouts (A Practical Guide for Directors).

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: How to prevent catastrophic project blowouts.

(00:14):

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

Gaye Francis (00:32):

Hello Richard, welcome to another podcast session.

Richard Robinson (00:35):

Good morning Gaye. Interesting trip in today!

Gaye Francis (00:37):

It 's been a difficult start to the morning, but we are here now and ready to do a podcast. So today we're going to talk about preventing catastrophic project blowouts and it's a bit timely in that we've just updated our little booklet for 2025 and that's now available.

Richard Robinson (00:57):

And you might notice one of my favourite chapters is in it.

Gaye Francis (00:59):

What's your favourite chapter?

Richard Robinson (01:01):

Eeke, Irk and Oops!

Gaye Francis (01:03):

You can tell Richard went about naming some of these chapters, can't you?

Richard Robinson (01:07):

Yes. But see, I explained this to you a long time ago and one of the first things that happened when you arrived at R2A if I recall correctly, and you said there's a fourth term. I was explaining how these are three critical terms in risk. And you said the fourth term is Grrrr. And I said, what does that mean? You said, it arises when you're a younger female working with an older male.

Gaye Francis (01:30):

It probably still exists today even though we've aged a little bit. So we've gone out off on a tangent already in the first two minutes of the podcast, but that's alright. So for ending catastrophic project blowouts, and it was also timely in that there was a recent article in Create at the end of February and it was called...

Richard Robinson (01:49):

Create Magazine from Engineers Australia.

Gaye Francis (01:51):

Correct. Big budget blowouts costing billions each year. And it was basically an interview and a chat with the national chair of the CROSS Engineering Society and it sort of covered projects like Inland Rail, Snowy Hydro, the Northeast Link, Paradise Dam, Project Energy Connect, and then the Northeast Link. And I think one of the interesting things that it said was they're typically not technical issues that slow a project down or stop a project down. And when they were talking about budget blowouts, they were talking in terms of cost, time and also scope, which was an interesting one. But they were saying that the engineers aren't so good at communicating such things as the environmentals approvals and legislation and land acquisition issues and they're typically the issues that can blow projects out.

(02:48):

So it was really interesting. I think one of the interesting things that he said was typically projects don't go wrong, they start wrong. And I think some of our stuff that we would observe in the project due diligence stuff that we do, and I think the governance process and the due diligence process at R2A applies to projects probably extends that cost engineering idea further because he's sort of talking about typically the most likely type of blowouts and things that can go wrong in projects and starting with other projects. But we're saying what are those catastrophic issues regardless of how likely they are, that can stop a project.

Richard Robinson (03:32):

And the key thing was to make sure you understand what it is you're actually doing. I mean one of the points we make is that our approach to all this is a very military intelligence approach because we learned, I got this with Bob Browning all those years ago and he got it off MI6, I think it was when he was on exchange to the UK. But the point was you need to clearly understand what is you're trying to achieve as setting out to achieve. And if you don't get that right, it will come unstuck. And I say it's the military intelligence technique because one of the things that you try to do if you're about to go on a military mission on which your life depends and if you get it wrong, things are going to go badly. You need to really spell out what success looks like and how you're going to get there. And then you make sure that anything that threatens those outcomes are dealt with them, we call them vulnerabilities, but that means we're looking at control. And one of the more interesting articles that popped up, I dunno quite why I came across it, but I was doing a search for some work we were doing. Oh it was we were doing course last week wasn't it?

Gaye Francis (04:25):

Last week for defense?

Richard Robinson (04:26):

For defense. And I came across an article by, it was an RMIT researcher and aI New Zealand army personnel person. And they were reviewing 10 years of the implication of WHS legislation on defense in Australia. And they said, this is sort of the first study this has been done. It's been around now for about 10 years from defense's viewpoint because it commenced in 2012. And they were asking the question, well what's the impact? And the last sentence, literally the last sentence in the whole article just says that the WHS legislation, the difference it's made, it's not about the level of risk, it's all about the level of control. And that's the final conclusion.

(05:08):

And that's our point because our frustration with all this stuff is particularly to do with the Rsk Management Standard. And I suppose I could mention a current court case I've got, but people still doing risk assessments, working out target levels of risk and safety when the legislation, it's just flowing from that very human thing. It's not the level of risk that counts. It's always been the level of control. And that's the same thing, whether it's projects or safety.

Gaye Francis (05:31):

And I think that's the difficult conversation that people have to have. Isn't it often the project comes unstuck because the aim or the objectives of the project aren't articulated that all the stakeholders agree that that's what they're working towards.

Richard Robinson (05:47):

Correct. I mean we make the remark about we watch defense in some of their gate procurement processes. If you don't keep an eye on what the overall outcome is, I mean they go through this gate and there's a two year team that's got to get through the next gate. Well for them that's their critical success outcomes. But if that team there isn't looking to what the final outcome is supposed to be, then they set all the other teams in the following gates up for the fall.

Gaye Francis (06:12):

So I think the idea of scope creep is a little bit of a funny one, because you've actually got to go back and say, alright, if we change that in our project, how does that affect our critical success outcomes? And it's not just time and budget, it's actually is it actually delivering what we want it to deliver? And do all the stakeholders agree to that?

Richard Robinson (06:33):

Yes. And one of the problems you've got is times change and if it's a long project, people's perceptions change and what's important, what it was trying to achieve can change too. I mean one of the funny things last week we got asked about Agile and I had a quick look at that. I mean I've come across it before, but all the different techniques that pop like PRINCE2 and all the other ones that different people say, this is the way to do it, if you don't do it this way, it's a failure. Whereas I think we would say it is better off to think through what you're trying to achieve rather than just rely on a (one technique).

Gaye Francis (07:02):

Previous experience on other projects, I think would be our suggestion to think it through. And then, I mean, don't lose all the lessons learned and everything, but don't use it as the basis for going forward. Use it as insight to reflect on the project that you are doing.

Richard Robinson (07:17):

But you've got to make sure you understand what it's you're trying to achieve. And if you don't, it will come and haunt you.

Gaye Francis (07:23):

We've actually walked away from projects because they couldn't articulate what they were trying to achieve.

Richard Robinson (07:27):

Well, you might remember that large desal project in Victoria and the project manager wanted to do it our way and because they wouldn't do it our way he walked.

Gaye Francis (07:35):

I think one of the other difficult things that there's a lot of pressure on projects at the moment and they're saying that there's big project blowouts and things like that, but many of these projects were scoped and started and estimated before Covid-19 and during Covid. And I think times have really changed. There's a big difference in the costs associated with projects in today's dollars compared to what they were five years ago.

Richard Robinson (08:02):

Yeah, it's been 10% per year roughly from what I can see. You watch the CPI figures and things like that and what's happening in procurement and so forth. Although I was listening to somebody saying, and one of the problems is just not having the people to do things at the moment, getting anybody even give you a quote or a tender is getting problematic, but somebody did say that that's all starting to slow down a bit and there might be more bodies available to do things in the future.

Gaye Francis (08:26):

So maybe there'll be an improvement in some of those?

Richard Robinson (08:31):

Maybe. I don't know. The world is a very strange place at the moment. If anybody's watching politics.

Gaye Francis (08:38):

It's also for us, we often see that look typically projects do some sort of risk management or due diligence with their projects, what we...

Richard Robinson (08:47):

They always do. Whether it's successful or not, that's the next question.

Gaye Francis (08:50):

Yep. I think the other thing is that we often see missing is there's gaps in it. There's not a completeness check of ideas. And a lot of the work that we do, I think that's one of our key criticisms of the risk processes or due diligence work that people undertake or organisations and projects undertake is you don't have that sense of completeness. It's sort of a brain dump of issues in no particular order. And I would agree with the Chair of the CROSS Engineering Society in that I think typically it's not technical issues.

Richard Robinson (09:26):

For a known technical issue, they seldom failed. It's the unknown one or unspecified one that nobody quite understood was there or chose not to understand.

Gaye Francis (09:36):

And so there's some planning associated with that. But if you go through a project due diligence viewpoint and you list the threats by project life cycles starting at the very, very top where you've got procurement and planning and approvals processes. One of the things that the inland rail was getting a bit of a bad rap about was basically it's a rail project, but it's going through three different jurisdictions, which means that there's three different approval processes and they didn't allow sufficient time. And I don't know whether they were actually one approval before you could get the next approval or whether you could go and get 'em concurrently.

Richard Robinson (10:19):

You might remember the Tugan bypass Queensland said New South Wales goes under a federal airport. And we had 40 people in the room, remember, because it was all becoming a bit unstuck. But it did come down to who has the biggest, well, I'm not quite sure, but it seemed to me that the Queensland's were paying for it, but New South Wales had the greatest impact, which seemed a bit unfair to me.

Gaye Francis (10:40):

I think that was because from emergency services viewpoint, they were the one that would respond to any incident under the tunnel. So that's that discussion around which we've had many times around stakeholders, key stakeholders and interested parties who actually live and dies by the (decisions). So by going through all of this stuff, it's not just the technical issues. If your project's only considering the technical issues, you will come unstuck.

Richard Robinson (11:04):

And people are still trying to apply the Risk Management Standard. Just again, because I'm in this Expert Witness thing, you're talking about unlikely things and one of the thing is experts are not omniscient. They can't be. So they can't say when you're talking about rare, big, bad things, they of themselves can't say what all those things are and how they might manifest. But you can go about it another way. But if you try to risk assess it and you're trying to say, I've identified them all, it is all about the control. It's not about the risk assessment. That doesn't help at that point because you cumulatively, you can't work out from a calculation viewpoint what that might be.

Gaye Francis (11:45):

So the three key things that we would say for project due diligence and preventing catastrophic project blowout is make sure you've got your scope right and you've identified what your critical success outcomes are.

Richard Robinson (11:55):

And you've communicated to everybody. So everybody understands what the prize is.

Gaye Francis (11:58):

And everyone agrees! That's always a bonus. I think you happen to have a completeness check of threats because you can typically manage... You can't manage the surprises. Projects can typically manage things that can go wrong. And then, as you said, it's a controls review to say, well, these are the controls you can put in place to protect against these sort of threats.

Richard Robinson (12:24):

And things that pop up if you've got the control there can be dealt with. But when there's no control, it's just a surprise.

Gaye Francis (12:32):

And I guess that takes us down to our last point. It's not do you due diligence review or your risk assessment and then pop it on the shelf for the entire remainder of the project. You've actually got to review these things on regular basis and the key times to do that are project milestones or if there's one of those scope changes being proposed, you really got to pull that out and say, well, what does that scope changer actually do to our project and where we are. Now, you can redefine it, that's fine, but you have to take everybody on the journey and it has to be transparent and clear.

Richard Robinson (13:06):

And that's what I understood the Agile process was trying to do.

Gaye Francis (13:09):

A change management process? Ok. So again, we're not saying that any of these things are wrong or anything like that.

Richard Robinson (13:18):

Hey, hang on a minute, we've in crucifying, the risk management standard. And I will point out that...

Gaye Francis (13:22):

In isolation.

Richard Robinson (13:23):

But I will point out that article I read, it was commenting that the Engineer's Australia Safety Guideline actually said the Risk Management Standard was an error and that the defense had been agreeing with that.

Gaye Francis (13:34):

For safety terms.

Richard Robinson (13:35):

For safety terms, correct.

Gaye Francis (13:37):

Correct. So understand what your different processes and tools do and then yeah, use 'em as guidance rather than the answer, I would say.

Richard Robinson (13:48):

Yep.

Gaye Francis (13:48):

Thank you for joining us today and we hope that our chat has prevented a catastrophic project blowout for your particular project. Thanks, Richard.

Richard Robinson (14:00):

Thanks Gaye. Always interesting.

Gaye Francis (14:01):

Bye.

Difficult Conversations Engineers need to have about Risk

Risk! Engineers Talk Governance
Season 5, Episode 2

In this episode, Richard Robinson and Gaye Francis this season’s theme of "Difficult Conversations Engineers Need to Have About Risk". 

Key discussion points include:

• Risk is multidimensional. 

• Risk covers a big domain that has lead to confusion.

• There are three different types of risk, but R2A’s focus is typically on safety risk and project risk – downside risk.

• Commercial industry like to focus on upside, downside risk (risk and reward, risk appetite and innovation), but Engineers should focus on downside risk.

• Innovation and Risk Management is good but not at the expense of zero harm and the WHS/OHS legislation.

• Often innovation is the solution to the problem but cannot compromise safety.

• Innovation cannot be encouraged as the focus of Risk Management.

• Safety risk shouldn’t been seen as an obstruction; safety is non-negotiable.

• Don't just choose one technique because if you do, and particularly if you ignore the WHS legislation requirements, you're going to set yourself up for a pretty serious fall. 

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 theme of this season: Difficult Conversations Engineers Need to Have About Risk.

(00:18):

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, please head to our website www.r2a.com.au.

Gaye Francis (00:38):

Hi Richard.

Richard Robinson (00:39):

Hi Gaye.

Gaye Francis (00:40):

Welcome to another podcast session.

Richard Robinson (00:42):

It's good to be here.

Gaye Francis (00:43):

Excellent, excellent. We're going to touch on the theme of this series, which is the difficult discussions that engineers need to have concerning the issue of risk, or the subject of risk. And we have covered this sort of stuff in some of our earlier podcasts, but I think it's worth going back to that risk is multidimensional.

Richard Robinson (01:04):

That's right. There's no one way to cut to the risk, whatever it is. It's a multidimensional thing. And depending on which technique or idea you use, you'll get different insight. And one of the problems with the word risk, we just cover such a big domain, now everyone's confused. Which leads on to your little frustration just recently with a journo.

Gaye Francis (01:21):

It does. So R2a was asked to provide some input into an article on risk management for Create (Engineers Australia magazine). And so we gave them the stuff that we usually do and sort of pointed out that there were three different types of risk, but our focus is typically on safety risk and project risk.

Richard Robinson (01:41):

And that's just actually downside risk. Which is there's no prospect of gain as opposed to what commercial people like to do, which is the upside, downside risk. Risk and reward is usually the way that's formulated. And which gives rise to the risk appetite statements, which we've mentioned earlier.

Gaye Francis (01:57):

And after that, and the article was drafted, it came back from the editorial that they wanted to be more of a focus on getting past risk adverse responses to enable innovative change. And I found this really interesting and a little bit disappointing, I guess, from an engineering viewpoint because that's typically not what engineers do in their day-to-day business. For me, that's more about an entrepreneurialship -- looking at what ideas you can do and innovation and overcoming some of the risk issues. So risk in that sense is a by-product.

Richard Robinson (02:33):

Yeah, that's right. So the risk reward profile. I mean, we're just talking about it just before the session to try to explain what we're talking about here, but it's a bit like, well, the example I gave, if you're building a bridge, you don't put the site officers under the bridge despite the belief of the engineers the bridge will not fall down during construction, which is what happened in Westgate and crushed the people in the huts below. And also the engineers were on the bridge that went down with it. They didn't believe it was going to fall, and all the calculations and all the evidence you would've asked them said, no, the bridge is going to stay up. But you just avoid avoidable risk if you can. Versus the situation with cars, driving cars around. Everybody knows that driving cars, relatively speaking, is quite a dangerous thing to do, but the benefits we get from driving cars is so great that we all decide that we're going to keep doing it.

Gaye Francis (03:18):

Hopefully by abiding all the rules.

Richard Robinson (03:21):

Well, yes. And as new innovations come in, for example, self-drive cars, I mean, the whole thing was if you drink and drive, you're a bloody idiot. Well, once the car will take you home... you don't worry about it. It's not a problem!

(03:31):

So innovation is good. So it depends what you're trying to achieve. So we're not against the innovation and risk management, but part of our problem is we keep coming across people who keep talking about risk solely as this upside risk and reward thing without realising the zero harm, which is basically what most engineers do most of the time, I have to say, it's got to be safe. And safe doesn't mean free from all risks. Safe means that the balance, the value you get from it, outweighs the disbenefits.

Gaye Francis (04:01):

That's correct. And I think by encouraging that risk appetite model and being risk adverse, or not getting responses back that are not risk adverse, it's sort of missing that aspect. And it was sort of evident when we did the course for Engineers Australia chartered assessors and their view on things was only between 1% and 3% of engineers interviewed as part of chartered status and risk is a component of that, understood that the WHS or Work Health and Safety legislation was actually relevant to their job.

Richard Robinson (04:45):

Because as we were just sort of commenting, I mean people keep talking about risk assessments. What the legislation demands is risk design assessments and that you've been diligent in the design options. It doesn't mean free from all risk. It just means in the circumstances you've demonstrated diligently that every reasonable practical control is in place.

Gaye Francis (05:03):

So I think the innovation comes in, first of all, you've got to understand what your problem is, and often the innovation is in the solution to that problem.

Richard Robinson (05:11):

Correct.

Gaye Francis (05:12):

And so there's this balance then to work it up about, well, what are the benefits that you get? But you can't do it if safety is compromised.

Richard Robinson (05:23):

Correct.

Gaye Francis (05:23):

If it's prohibitively dangerous, that solution or innovation cannot be implemented.

Richard Robinson (05:28):

That's correct. Until you figure out away around that prohibitively dangerous aspect, which may well require innovation in itself. I mean it's like necessity is the heart of innovation and things like that. I mean, it's a bit like watching the Ukrainians fighting a war. They have been innovated because they had no choice. And if you talk about risk assessments and things like that, innovation, overcoming the problems, well, they've got a lot of problems and then...

Gaye Francis (05:53):

They're trying to work out which are the best options to go for.

Richard Robinson (05:55):

And they're working on the same option with regard to the US politics at the moment, which has got enormously complicated.

Gaye Francis (06:00):

Just bringing it back to an engineering example. And you've seen innovation over time. You think about 30 years ago, 50 years ago, in underground mining, somebody had to go out underground, let off the charge when they were pretty close.

Richard Robinson (06:17):

They'd drill holes, charge the holes, fire the holes, muck it out and do it all again. The Air League miner. Never saw a plump air league miner in my life.

Gaye Francis (06:25):

And then technology progressed that the charges could be filled and everything and then let off above the site. And now it's all done remotely, is my understanding. At an operation center remote from the mine location. That's technology that's overcome some of these safety issues.

Richard Robinson (06:48):

It's like the personal pilotage unit for marine pilots, which trains could consider. It's like the low voltage power ethernet and LED lightings and roof spaces, which we've talked about. These are all innovations which will save lives. They're good ways to do things and, I imagine, are faster, cheaper, and more economic too.

Gaye Francis (07:10):

So it's not that R2A and Richard and I are saying don't do some of this innovation stuff, but you can't encourage this as the only way to do risk management.

Richard Robinson (07:22):

Correct.

Gaye Francis (07:23):

I think some of the discussions that Engineers Australia, and even in the title of their conference for 2025: Turning Risk into Opportunities. Now, you can't turn all risk into opportunities if you understand all the different risk types.

Richard Robinson (07:40):

But that doesn't mean to say when you look at it, you won't consider all the options and test, which in the circumstances makes the most sense. And I think that's where we get a bit frustrated, is that by making an all opportunity and in effect saying that anybody sort of into safety risk is just an obstruction that doesn't make sense. It just doesn't make sense. You have to consider all those aspects.

Gaye Francis (08:01):

It's a non-negotiable, safety. And we see it being pushed down, pushed down, pushed down. And sometimes some of the solutions that are put in place are to the detriment, safety detriment, of other people.

Richard Robinson (08:15):

Correct. And well, that's the court case I'm actually involved at the moment, which we perhaps won't talk too much about, but the question of the neighbourly exposure to the hazards, it's good for the business, but not necessarily good for everybody else.

Gaye Francis (08:29):

So when you're considering safety, not only do you have to consider your own workers, but you have to consider the other people that are affected by it. And I think that's where Richard and I come from the majority of the time.

Richard Robinson (08:44):

Yep. Well, we could go back and redescribe this again, I guess, but I think the key point is it's this multidimensional thing. Don't just choose one technique because if you do, and particularly ignore the WHS legislation requirements, you're going to set yourself up for a pretty serious fall.

Gaye Francis (09:00):

Or other people up for a fall as well. So yeah, don't not consider the innovation and the benefits of risk and opportunity, but forefront should be safety and the consideration of that.

(09:17):

So thanks for joining us today, short and sweet today, but thank you. And I feel better now. Thanks, Richard.

Richard Robinson (09:23):

A pleasure Gaye.

Risk Management & Negligence - Due Diligence Essentials for Engineers

Risk! engineers Talk Governance
Season 5, Episode 1

In this first episode of Season 5, Richard Robinson and Gaye Francis provide an overview of their new booklet Risk Management and Negligence - Due Diligence Essentials for Engineers. 

They discuss the importance of engineers to understand their responsibilities around risk management and due diligence, and the need to communicate this effectively to senior decision-makers. 

The booklet covers:

• You can’t always be right but you can be diligent

• What it means to be an engineer today

• The risk management swamp

• Methods to drain the swamp

• Due diligence domains

They also discuss this season’s theme of difficult conversations engineers need to have and their plans for an in-person event to further discuss this topic.

You can purchase this and all other books from our online store.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this first episode of Season 5, due diligence engineers, Richard Robinson and Gaye Francis provide an overview of their new booklet, "Risk Management and Negligence - Due Diligence Essentials For Engineers".

(00:20):

This and all books they mentioned are available on the R2A website via their online store (www.r2a.com.au/store). The direct link is in the podcast description.

(00:30):

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 (00:42):

Hi Richard, welcome to a new season of R2A podcasts.

Richard Robinson (00:47):

Yes, and considering how many people and how fast they respond to our podcasts, welcome again, Gaye.

Gaye Francis (00:52):

Season five. (This season) we're going to do a little bit differently, aren't we? We're going to talk about, or hopefully talk about some things that some of the difficult discussions around risk and due diligence. Discussions that we think people need to have but aren't necessarily happening. But in this first session today, we're just going to talk about... We've had a very busy January and we have updated all of our textbooks and our booklets and also written a new booklet, which is very, very exciting. And this one in particular is aimed at engineers.

Richard Robinson (01:26):

That's correct. And what we thought we might do is just take you through the generic contents of it, just so you understand the points we're trying to make. And then touch on a couple of the things whilst we do it, because to sum up all this, we kind of get the feeling there's become a disconnect between engineers who seem to be increasingly working in silos and the senior decision makers, the directors, and the responsibilities that they have. And we are sort of doing some other work for other regulators and things like that. And that's become particularly apparent and some of the things that we were doing.

Gaye Francis (01:55):

I think it's also shown that we thought that everybody was on track and not on the same wavelength and the same page with these things, but there seems to be a step back or gone backwards a little bit in some of the management of safety and how it's communicated throughout organisations.

Richard Robinson (02:15):

Well, that's right. I mean, part of that was sort of because we were giving a course to Engineers Australia internally on engineers becoming chartered members.

Gaye Francis (02:24):

For the assessors.

Richard Robinson (02:25):

For the assessors. And one of the things that they expressed surprise about was how few engineers actually were aware of significance of the WHS legislation and why it was so important that engineers get it right. And from the point of view of their organisation why it was essential that everybody understood. I mean, we find it strange because due diligence for directors being able to pay your bills when they fall due is absolutely everything all directors focus on when you have to sign your ASIC reports every year to say that that's the case. And so all directors are particularly focused on it. And that same responsibility now applies to directors with regards to health and safety, which we think is entirely irrational.

Gaye Francis (03:03):

And so you would've expected that message to be propagated down.

Richard Robinson (03:06):

Through organisation, but that's not what seems to be happening.

Gaye Francis (03:09):

Correct.

Richard Robinson (03:10):

And we find that very confusing and that's one of the reasons why we felt this new book that was so important.

Gaye Francis (03:14):

I also think that there's a lot of emphasis put on a lot of organisations. We've talked about this in our other podcast as well as they have a health and safety department or our OHS department, and really they're only internal advisors. They are not responsible. As we said many, many times, safety is the responsibility of line management.

Richard Robinson (03:33):

And risk management is a line management function. And that has always been the case. That has never not been the case. I think that's something that's always mystified me as everyone keeps passing it out to somebody else

Gaye Francis (03:43):

And saying, by having this dedicated department to that, they're going to manage all of it. Now really all that they're doing is facilitating some of the processes that happen when some of those due diligence processes.

Richard Robinson (03:55):

And the line manager still has to make the decision or the directors depending on what the substance of the decision is.

Gaye Francis (04:00):

Correct, correct.

(04:01):

We thought we'd go through the contents (of the new booklet) anyway.

Richard Robinson (04:04):

Well, are you able to summarise the names of all these books now? Because I've forgotten? Well, not forgotten, but it'll come back to me when you've described it to me.

Gaye Francis (04:13):

I love being Richard's corporate memory sometimes. But anyway, the test! No change to the name of our big R2A text, which is based on everything. So it's "Engineering Due Diligence Concepts - Application, Tools and Techniques". Our Criminal Manslaughter one has remained unchanged, "Criminal Manslaughter - How Not To Do It (A practical guide for directors)". We did change the Project Governance booklet to "How to Prevent Catastrophic Showstoppers for Projects". And that was really about changing the language a little bit to say it's really those black swan events that we're trying to do those high consequence, low likelihood ones.

Richard Robinson (04:57):

And that's aimed at directors too.

Gaye Francis (04:58):

That's correct. That's aimed at directors. And then our last one...

Richard Robinson (05:03):

Which we spoke about last year (Season 4, Episode 5).

Gaye Francis (05:05):

We did, but it's had a little bit of a tweak and a name change. It's called "Risk Management and Negligence - Due Diligence Essentials for Engineers".

Richard Robinson (05:14):

That's correct. And to just give you the flavour of the contents, because this is part of this frustration we've got that engineers are being pushed into silos and they're not consciously thinking about what they need to do to provide information to the senior decision makers so they can satisfy the senior decision makers, the director's due diligence obligations for health safety and so forth. And we just found this particularly frustrating.

(05:37):

We don't understand why that's happened because we thought one of the consequences WHS legislation generally was that technical directors would appear. And I certainly remember that's a while ago. Now I can remember my youth, the heads of two of the Australian banks were both engineers. The fact that engineers have just been pushed out of all these senior decision making positions and it's all sort of gone to accountants and lawyers still, we simply don't get it when you live in advanced technological society when horrible things can happen.

(06:04):

Anyway, this (book's) now focused at engineers and in a sense, it's trying to get the engineers out of the silo, I suppose, and make sure they're thinking about how their information should be presented to the senior decision makers in a competent way. So Chapter 1 is...

Gaye Francis (06:18):

Be diligent. You can't always be right.

Richard Robinson (06:21):

And that's the point. I think a lot of engineers, I mean we had to do a lot of this expert witness stuff. When something bad happens, the engineers say, oh, it's all my fault. I should have got it right. And we said, no, no, no, no, no, no, no. What you needed to have done was demonstrated diligence. You cannot always be right. That's not possible. You have to be responsible for your own negligence. That's why you buy insurance. And if you're an employed engineer, why your employer buys insurance so that any harm that does happen, you could do the best you can to rectify it, but you can't always be right. You go through a process that demonstrates diligence for the matter that you're dealing with and the organisation has to sign off at it. That's just the way it works. You can't always be right.

Gaye Francis (07:00):

And I think that was one of the things, key takeaways I recently gave presentation mid last year, and one of the directors came up to me and she said, the thing I got out of your presentation was about process. Good governance and process.

Richard Robinson (07:13):

Correct.

Gaye Francis (07:14):

And if you do that, then you will be diligent.

Richard Robinson (07:18):

The core of that chapter is all about design. Get it right. Don't try to fix it afterwards. It's just wasting time, energy, and effort. You really are.

Gaye Francis (07:27):

I think the other key thing out of that is criticality not risk. It's about the critical things. Those high consequence, low likelihood things, which we've talked about in many, many, many of our sessions.

(07:39):

Chapter 2 or second section is: Being an engineer and what does that actually mean these days? There's a whole lot of constraints around you and know what you're good at, but also the environment and the context in which you work will have all of these constraints around you.

Richard Robinson (07:57):

But it's got a lot to do with engineering education again, because engineering education has always been focused on science and applied science. And so you were taught to be competent in how to solve and the gas equation or whatever it is, the issues that you're concerned about and how to design structure and so forth. But they never told you much about the context in which you found yourself. And I have always assumed that one of the purposes once upon a time was it was Corporate Membership. Now it's Chartered Engineer Status. But the reason for imposing that was that merely passing an engineering course and being competent in the science and knowing how to pass the exam didn't actually mean you were competent to design anything. And nor to put it in the context of what would happen if it went wrong and why you have to get it right.

(08:40):

And that's the due diligence part and the legal context part, all that sort of stuff. And most engineers, they learn about that. Well, probably the first two or three years if they've been chucked in the deep end and then they start going, I need to know a bit more about this and what do I have to do to get there? And that's the sort of stuff that we always thought Engineers Australia was going to focus on. But judging from the remarks of the Chartered Assessors, it perhaps hasn't been successful as it ought to have been.

Gaye Francis (09:09):

I think I've shared this story in another podcast, but as a young engineer many, many years ago, one of the things that Richard taught me first was it doesn't matter how technically brilliant or correct you are in your solution, if you don't get your politics right, you'll never get it over the line. And that's that communication aspect and understanding the solution that you're putting forward and the context in which you make that.

Richard Robinson (09:33):

Well, it actually goes a bit further than that because if you do want to prosper and you're in a large technological organisation and you've put forward a technical solution which doesn't satisfy your WHS legislation, you'll come a cropper for the first place. But conversely, if you get it right and you positively demonstrate due diligence in a way that the senior decision makers can rapidly sign off on, you are worth your weight in gold. You solve so much time and organisational frustration, you just simplify things instantly.

Gaye Francis (09:59):

And it results in action being undertaken.

Richard Robinson (10:01):

Correct. And being an engineer if you do this work and nothing happens... I mean the satisfying jobs for us, the ones where we know the result is that people went off and did things.

Gaye Francis (10:12):

Oh, and it made a difference. And you could see that it made a difference in the organisation.

Richard Robinson (10:16):

If it's just a matter of spinning the wheels. We don't want to work for those people again, do we?

Gaye Francis (10:20):

No. And we typically don't.

Richard Robinson (10:22):

We typically don't.

Gaye Francis (10:23):

So Chapter 3: The risk management swamp. You can see that Richard's had a little way with his words here!

Richard Robinson (10:32):

Well, this is the frustration engineers are having from their point of view. I mean, that's Sydney Decker, the psychologist from Queensland Uni, airline pilot turned psychologist. Now here's the line about there are so many safety rules out there that nobody really knows what they are, least of the people doing the job, which is blatantly absurd. So you've actually got to do things in a way which make common sense, that you're going to need to have a philosophy and an understanding and a reason behind it. And let's just try to remember the rules. It's not possible. Know all the rules. Now, it actually isn't possible. You have to understand the principles so that when you go and test for the rules, you realise: Ah, we got it right the first time.

Gaye Francis (11:05):

So that chapter goes through some of the difficulties I guess engineers have with the risk management domain and some of the theories and some of the ideas in that area.

Richard Robinson (11:18):

Particularly the tolerable acceptable risk argument, which has still become very popular with engineers and you can't do it anymore.

Gaye Francis (11:24):

I actually think that it's risen again. It sort of went quiet for a while and I think it's back with a vengeance. But anyway...That might be a whole other podcast.

Richard Robinson (11:34):

We could say too much there without too much trouble.

Gaye Francis (11:36):

And then Chapter 4 has to be: Methods to drain the swamp. So this one just goes through a whole lot of different methods to be able to do that. And I think we always say in our courses, in our books, in our consulting gigs, it's not one size fits all. There's a whole lot of different ways that you can go about doing this, and you've got to pick the one that is right.

Richard Robinson (11:57):

That solves that problem.

Gaye Francis (11:58):

Correct. Due diligence by design. How do you actually go about it?

Richard Robinson (12:04):

Well, that's the point. I mean, in the earlier chapter, being an engineer, we sort of make the point about the alliance of lawyers and engineers, and we've spoken about this number of times, David Howarth, the professor of Law of Public Policy, saying how the lawyers are actually copying the engineers. Because basically what happens with engineers, there is a problem or somebody wants to do something, what are the options and in the circumstances, which is the right option and why is it the right option? That's called doing due diligence. It doesn't matter if it's a commercial decision or it's a design decision, you go through the same process or it's a legal problem. And we don't understand quite why that's somehow gone missing again. Design by standards is usually indefensible because there's something that always goes beyond the standard.

Gaye Francis (12:49):

And I think a lot of organisations, this is the Standard, you design to that. But yeah, it's not getting the answers...

Richard Robinson (12:56):

Doesn't normally demonstrate due diligence.

Gaye Francis (12:58):

Correct. And then our last chapter in the book is: Due diligence domain. So it sort of goes through some safety, project, enterprise, environmental, and that sort of thing. So it's really the application of the due diligence process to a whole lot of different domains and the way that we've seen it work within industry.

(13:19):

So we're looking forward to this season of podcasts and having some of those difficult discussions. We'd really love to hear from you if you've got any big, big picture questions that you'd answered or Richard and I to have a chat about.

Richard Robinson (13:32):

The other thing that we're just a talking about was the idea that we might want to have some kind of, I dunno, it's not a conference? What actually is it?

Gaye Francis (13:40):

Yeah, let's call it a conference or a gathering for now.

Richard Robinson (13:43):

A gathering, yes. That's a term my son uses and I'm never quite sure what it means. But basically we think that the system and the engineers are missing the point to some extent, and we want to concentrate. And that's what you want the season to be about, those points that have been missed. So some of those points might be sore points in some places because we're basically criticising Standards Australia and the fact that Engineers Australia keeps encouraging all their engineers to give all this IP to standards. None of the American societies do that. If you're the Society of Fire Engineers in the USA, which I'm a member, you hang on to your IP. You sell your handbook, you do not give it to a third party free, and you do not volunteer your members' time.

Gaye Francis (14:26):

Yeah.

Richard Robinson (14:27):

Association of Mechanical Engineers don't do it. Civil Engineers. They just don't do it.

Gaye Francis (14:32):

I think there's the discussion about ALARP and SFAIRP, target levels of risk of safety, and the changed meaning of things that it seems to be happening in industry, but the methodology that it's used to show those particular concepts has not changed. So we want to have some of those discussions this year and we are thinking that maybe it's a bit more than a roundtable. It'll be sort of a conference or a one day seminar session and have some invited guests and speakers to that and see whether there's any interest.

(15:09):

So thank you for joining us today for our...

Richard Robinson (15:15):

I hope you enjoyed it too. Yes.

Gaye Francis (15:16):

I hope you enjoyed it too. For our first podcast for Season 5, and we hope you join us next time. Thanks, Richard.

Richard Robinson (15:23):

Thanks Gaye.

Due Diligence as a Governance Process, Dam Safety & the Relevance of Due Diligence (Season 4 Wrap)

Risk! Engineers Talk Governance
Season 4, Episode 10

In the final episode of Season 4, Richard Robinson and Gaye Francis wrap up the key theme of the season of due diligence as a governance process. They also provide another industry example in Dam Safety, and discuss the relevance of WHS/OHS legislation and the state of prosecutions.

Key take-aways include:

•  The due diligence process is a governance process that focuses on high consequence, low likelihood events rather than risk management.

• Dam safety highlights how regulators focus on the worst-case scenario of a dam failure rather than likelihood.

• The due diligence process involves four key tasks: completeness checks, identifying critical issues, determining reasonable controls, and implementing a quality assurance system. 

• WHS/OHS legislations must be integrated across safety decisions. 

• WHS prosecutions seem to be more prevalent in jurisdictions where it’s been in place a while, with regulators more likely to prosecute smaller to medium-sized organisations due to the increased likelihood of winning.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, the last for Season 4, due diligence engineers, Richard Robinson and Gaye Francis chat about the season's overall theme of due diligence as a governance process across industries. They also provide another example in Dam Safety and discuss the relevance of WHS/OHS in legislation and prosecutions.

(00:30):

If you enjoy listening to our podcast, please 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, head to www.r2a.com.au. We'll be back for season five in 2025!

Gaye Francis (00:52):

Hi Richard. Welcome to the wrap up of season four. Forty episodes down, can you believe it?

Richard Robinson (00:58):

It's very hard to believe, Gaye, now that you mentioned it.

Gaye Francis (01:02):

Season four we focused on some industry-based case studies or examples of which we've applied the due diligence process to. And I think one of the outcomes is that the due diligence process is a governance process. It's focused at the...

Richard Robinson (01:23):

High consequence, low likelihood things. That is, not at risk.

Gaye Francis (01:27):

Not at risk.

Richard Robinson (01:28):

And therefore does not follow the risk management standard.

Gaye Francis (01:31):

And when we use the word risk, we mean the appreciation of consequence.

Richard Robinson (01:36):

Simultaneous appreciation of likelihood and consequence.

Gaye Francis (01:38):

Okay. Thank you for finishing my sentences. <laughs> We've been doing a lot of these, haven't we? So I guess the way to bring it all together in this particular episode, and we've got a couple of other observations that we've had over the last few months or so, is maybe to use Dam Safety as an example.

Richard Robinson (01:57):

Indeed.

Gaye Francis (01:58):

And the due diligence process, the four key areas that we look at. The four key tasks are: Completeness check, what are the credible critical issues? What are the controls you can put in place in the circumstances? Which ones are reasonable? And then a QA system to make sure that the ones that you agree to are sustained.

Richard Robinson (02:17):

And the Dam Safety people are pretty clear on this. Dam breaks is the (issue) that motivates them the most. And so they look at the worst case flood that could result from a total dam break. And they don't really care about likelihood. They're just saying, if that happened, how bad could it be?

Gaye Francis (02:30):

And that takes into account a whole lot of different things, doesn't it? And we probably touched on it in the bushfire episode that we did, and it's really about the vulnerability.

Richard Robinson (02:40):

Correct.

Gaye Francis (02:40):

Are there people exposed to the potential flood from this dam?

Richard Robinson (02:44):

And then in that case, what are your options and what's available to you and in the circumstances, what's reasonable? And that's where the mechanisms by which these things could happen become particularly important.

Gaye Francis (02:55):

And ANCOLD (Australian National Committee on Large Dams), I think interestingly, although they still use the term ALARP, I think, which we've had many discussions with the Dam Safety people, but what they have done is they've sort of got a graph, but it's got an upper limit to where it becomes prohibitively dangerous, I guess. But what they've done is they've taken away that lower limit. There's no lower limit to risk.

Richard Robinson (03:16):

Correct. So they actually basically stopped using target levels of risk and safety for the most part. I mean, if you conclude something's prohibitly dangerous, you've got to stop it. Now, precisely how you come to that view is an interesting question. But if you've got any doubts about the dam, basically if you've got doubts about a dam, you pretty much start draining the dam if there is things and people at risk.

Gaye Francis (03:34):

And I think that was one of the questions we had. We had one of the regulators come in and there was a dam above a community and it was higher than the houses.

Richard Robinson (03:42):

The water level was higher than the roof of the houses down immediately below the dam. And the dam safety regulator turned up and was looking at it and looking at what the policemen looking at that saying, how the hell do those houses get there? What planning scheme let that happen?

Gaye Francis (03:56):

Which we have touched on again in this season. Bushfire again, and also major hazard facilities and that planning. So like everything, the due diligence approach, it's not a cookie cutter approach. You can apply a similar process, but it's about actually thinking the things through that are actually relevant to your particular circumstances.

(04:22):

I gave a talk at a Co-op Federation leadership conference or workshop recently in the last month. And they were mainly co-op retail facilities, but they also provided services like crop dusting and water haulage and things like that. So they had a whole range of things that were potential issues for them. But one of the chairs came up to me after the session and said, okay, I get it now. It's all about the process. And documenting the process in a diligent manner to say that we've actually thought through the things that we could be exposed to, the things that we can do, and then making sure that we put those in place.

Richard Robinson (05:06):

Well, we've discussed this many times. It's not about being right, it's about being diligent. And you can always be diligent, but you can't always be right. And that's the point.

Gaye Francis (05:14):

I think one of the other interesting things that has come out of this season, and we did another podcast of it, was the relevance of the WHS and OHS legislation.

Richard Robinson (05:24):

Yeah, it's driving everything. I mean, what I told you, we had, I think we mentioned in a previous podcast, but I had that discussion with a fellow doing a PhD on how security and fire integrated together. And we had a security guy and me and he was talking to both of us, and he asked the question at the end and both the security advisor and I looked at each other and said, it's got to be harmonised and it's all got to go, and it's all driven by the Work Health and Safety legislation. And this researcher was: You both agree on this point? Because we were from completely different backgrounds with completely different understandings. He was an ex-military fellow who'd gone into security. And I was a fire engineer, factory mutual trained HPR (high protective risk) engineer, and we were of one mind. And I think he (researcher) was really genuinely surprised.

Gaye Francis (06:06):

But even when we work with organisations, I don't think they sort of think that the WHS legislation's almost off to the side. Safety is still being thought about in a silo almost.

Richard Robinson (06:17):

So fire is protection. You may recall when we did Q1, perhaps I shouldn't say these things, but the fire engineers were so relieved when the due diligence engineers turned up and started speaking WHS.

Gaye Francis (06:27):

Yeah. So WHS and safety should be business as usual -- should be integrated into all of these aspects. And I think it does allow all of those things to be brought together in an integrated sense.

Richard Robinson (06:40):

Yeah. The other thing which we were going to talk about, which you were particularly going to focus on was what we discovered about prosecutions. Because a lot of WHS prosecutions arer going on, and it does seem that the longer the state has had the legislation in place the more likely they are to prosecute. So Victoria's got about 10 years on every other jurisdiction. We're about double the prosecutions from what I've seen on the various websites. But we sort of discovered this thing following from that conference you attended last year and talking to an ex regulator from Western Australia.

Gaye Francis (07:09):

And the information that came out of that, I guess, was that they're typically prosecuting small to medium sized organisations.

Richard Robinson (07:19):

Because it's more likely to be successful.

Gaye Francis (07:21):

Because more likely to be successful. And there's a couple of reasons for that. The distance between the board members and the senior executive management and the people that are working on the ground is a lot smaller, distance wise in smaller, medium sized organisations. Where it's quite large still in larger organisations. So the notion of the corporate veil is still working.

Richard Robinson (07:45):

The big organisations can hire bigger, better lawyers and presumably more expert witnesses. And it's just harder to get them.

Gaye Francis (07:54):

And we sort of tried this proposition, I guess, at one of our courses quite recently, and, you're right, there was an ex regulator from WA there, and they said, that's exactly what's happening. They said what they're trying to do is they're trying to make examples of organisations and it's easier to prosecute and successfully prosecute.

Richard Robinson (08:17):

And that flows onto the comment we made previously, and it's a source of frustration to us. There are two types of regulators, those who think that the number of successful prosecutions is a measure of success, and those who think the number of successful prosecutions are a measure of failure. And it does seem this decade has turned into the decade of the number of successful prosecutions are a measure of success.

Gaye Francis (08:37):

Which is really interesting. And there may be a couple of other reasons for that. Regulators seem to be having less technical expertise in their organisation.

Richard Robinson (08:45):

I don't think they can get the people. I don't know that that's by choice by the way,

Gaye Francis (08:50):

But that's another observation. And one of the ways that they can do it is by doing that sort of compliance audit.

Richard Robinson (08:58):

Yeah. If it doesn't compliance. We've got you.

Gaye Francis (09:01):

So as a full wrap up of this season, we've talked about a number of industries. We've talked about dam safety today and bush fires, major hazard facilities. We've talked about rail and we've talked in another episode, we talked about electricity industry. So the due diligence process is really, really useful for those high consequence, low likelihood events. And if you look at all the controls that could be put in place and determine what's reasonable in the circumstances, what else can you do? You've been diligent and Richard's line: You can't be right all the time. Which engineers like to be.

Richard Robinson (09:41):

Well, they try to be!

Gaye Francis (09:44):

But you can be diligent. And I think this governance and due diligence approach is asking people to think about the key issues of concern and make sure that they're being managed properly.

Richard Robinson (09:56):

Well, that was basically what I was retained to give that expert witness advice in the Cuddle Creek fire. And what I was asked basically: Was the process that the defendant undertook reasonable in the circumstances,

Gaye Francis (10:08):

And what else could you do?

Richard Robinson (10:09):

That's basic point.

Gaye Francis (10:11):

We've talked about a lot of other sessions that you're not going to stop all things going wrong.

Richard Robinson (10:17):

You're not going to stop all bushfires, it's not going to happen.

Gaye Francis (10:19):

No, but was there anything else you could do? And I think that's when people get cranky.

Richard Robinson (10:25):

Reasonably can do.

Gaye Francis (10:26):

Reasonably can do. When people get cranky, when there's something that could have been done, if it had been done, would've stopped it going wrong or would've mitigated the consequences in some way.

Richard Robinson (10:37):

Yep.

Gaye Francis (10:38):

So thank you for joining us for season four and we will be back with season five very soon. Thanks everyone. Thanks Richard.

Richard Robinson (10:45):

Thanks everyone. Season five, huh? <laughs>

Bush Fire Risk, Due Diligence & Mitigation Controls

Risk! Engineers Talk Governance
Season 4, Episode 9

In this episode, Richard Robinson and Gaye Francis discuss due diligence for bushfires.

Richard has been involved in advising on bushfire risk and controls since Ash Wednesday in 1984, while both Richard and Gaye as R2A were involved with bushfire assessments post Black Saturday in 2009.  

Their discussion highlights:

• Bushfire season is getting longer, and the ability to prepare for it is getting shorter. Volunteer firefighters are also declining.

• Bushfire best practice for local planning for protection has adopted a vulnerability approach – criticality rather than likelihood.

• From a due diligence viewpoint, we know we cannot stop bushfires. But, what are all the controls that we can put in place?  

• Often it's not the threat of the bushfire itself, but the interaction of a community or people with the bushfire – the vulnerability of peri-urban areas.

• Building codes have been updated to improve bushfire resistance, but challenges remain around prescribed burning and access of remote areas during fires.

• Prepare your property, but be ready to evacuate early on high-risk days, as access can quickly become blocked.

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

Gaye Francis (00:30):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:32):

Good morning, Gaye.

Gaye Francis (00:34):

Today what we thought we'd talk about is bushfire risk, and we're getting into the hot part of the year (in Australia) and bushfire season is fast approaching. Although speaking to CFA (Country Fire Association) number of years ago, they're saying that the bushfire season seems to be getting longer and longer, and the ability to prepare for such bushfire seasons is getting shorter timewise.

Richard Robinson (01:00):

And also some of the CFA chaps I've talked to, getting volunteers is not the way it used to be either.

Gaye Francis (01:04):

No, that's very true. People aren't living in their community as much are they? And helping out.

Richard Robinson (01:10):

Well, I was particularly interested as I commented, I was busy down at my daughter and son-in-law's place mowing and slashing on the weekend because they live in the bush in Gippsland (Victoria) and making sure that their house is clear and all those good things you're supposed to do.

Gaye Francis (01:22):

So helping out.

Richard Robinson (01:24):

Yep.

Gaye Francis (01:25):

What we thought we'd talk about today was the bushfire risk and then the controls that you can put in place to mitigate against those. And I guess our involvement, well, Richard's involvement in particular started very early on after the Ash Wednesday fires in, what'd you say? 83? 1983.

Richard Robinson (01:43):

Thank you. Thank you for reminding me of that.

Gaye Francis (01:44):

And then we've had some other involvement in bushfire assessments over time, particularly the Black Saturday bushfires in 2009. And we were part of the Royal Commission, which we've talked about previously in the electrical distribution podcast that we did.

Richard Robinson (02:01):

Well, the thing that was interesting about that. At the time I was working for GHD with my then business partner who was the principal planner or became a business partner, and I was the senior risk engineer. And we'd written a paper after Ash Wednesday, so it presumably would've been in 84, maybe 85, basically summarising a vulnerability approach to bushfire risk management. And we dug it out and I must say my son looked at the papers. Gee, that's an old format. That was a really old paper, isn't it?

Gaye Francis (02:30):

It's almost typeset rather than computer set, Richard. <laughs>

Richard Robinson (02:35):

Well, the picture's sketched by hand, isn't it?

Gaye Francis (02:38):

It is.

Richard Robinson (02:41):

Anyway, but what I found completely fascinating is that we then downloaded some stuff from bushfire, best practice from CSIRO (Commonwealth Scientific and Industrial Research Organisation) and local planning for bushfire protection from Environment Land, Water and Planning, and they also have adopted the vulnerability approach, which is the very military intelligence approach, which basically is a criticality driven approach. It doesn't ask the question how likely something is because bushfires are basically generational, but you know that they will happen. It's a bit like the Powerline and Bushfire Safety Taskforce work and the REFCLS (Rapid Earth Fault Current Limiters) or ground fault neutralisers, they've apparently worked very well from what your feedback was. And has stopped, the likelihood of bushfire starts from electrical faults on the network. But that doesn't stop bushfires.

Gaye Francis (03:23):

No, because we know that bushfires have started for a whole lot of reasons, often human related.

Richard Robinson (03:29):

Well, I thought the one always amused me was people driving somewhere to go to Eildon or go down to the Gippsland Lakes or something like that, about an hour and a half out of Melbourne, their bearing on their trailer gets so hot that it burst into flame and then they pull over on the side of the road and the bushfire starts. It is a source of frustration to the CFA. I've had this explained to me several times.

Gaye Francis (03:49):

So I guess from a due diligence viewpoint, we know that bushfire starts. So then what are all the controls that you can put in place? And I think one of the interesting things about this is it's really not the threat of the bushfire itself, it's the interaction of a community or people with the bushfire, isn't it? And I think we talked about it in the planning, urban planning, episode where we talked about major hazards. It's that vulnerability and what do you call it, the peri-urban.

Richard Robinson (04:19):

Where is the bush and the people who interact. And I think I mentioned in the previous episode, if you read Luke's Bushfires in Australia from CSIRO, he sort of points out in the 1930's if you're around Melbourne, it was Sandringham sort of places. And then in the 1980's and 90's it was Gembrook and places like that. And in 2010, it was Marysville and Kinglake and places like that where people have been moving into the bush and there was poor access, poor water, all those sorts of things. But a very nice place to live otherwise.

Gaye Francis (04:51):

I've even noticed on the news and talking about people are going out to live in those places, but they're not necessarily "country people". If you've been involved in a bushfire, you move on, you typically don't rebuild, you move on.

Richard Robinson (05:07):

You move back into the suburbs because you don't do it twice.

Gaye Francis (05:12):

So the people that are living in these areas are often newbies. So I've noticed even on the commercial radio and news and TV at the moment, they're doing a lot of educational pieces around that (e.g.) prepare your house -- like you went down to your daughter's on the weekend and made sure everything was cleared around the house and make sure you've got a plan on those days. How are you going to evacuate? So I thought what we'd do is we just go through, I guess your threatened vulnerability assessment. So you were doing due diligence all the way back in those time.

Richard Robinson (05:43):

Well we didn't call it that!

Gaye Francis (05:46):

But it was the right thing.

Richard Robinson (05:48):

But just making sure that all reasonable practical controls were in place. And I think the one that always jumped out, because it was partly because Kevin was a town planner was that the way the bushfires happened, you get a hot northerly and you get the bushfire coming south, and then when they get the wind change, it goes from west to east. So if you're on the downside of that long skinny fire, you're suddenly at risk. So from the point of view of a township in the bush, you don't want developments to the north or the west and golf courses to the west, where the grass keeps mowed and things like, that just gave you a big fire break. Or potato fields or something that's not there at the height of summer.

Gaye Francis (06:20):

Right. And is that carried through, do you think, to most townships now?

Richard Robinson (06:25):

Oh, that's what, when you read these bushfire risks and best practice guides and all these sorts of things, I think it's pretty much doing it. They're ignoring the likelihood side as you've pointed out, and it's all being driven by the vulnerability on a criticality basis.

Gaye Francis (06:41):

So I guess that's part of the protection. We talked about REFCLS potentially as an ignition source control in relation to powerlines.

Richard Robinson (06:51):

And that's likelihood though.

Gaye Francis (06:53):

I guess the golf courses and stuff is part of the prevention, but a lot of work is being done around mitigations, isn't it? The minimisation of the consequences. And I think after Black Saturday, a lot of the building codes put in place bushfire attack level, and there are requirements to then...

Richard Robinson (07:12):

Building control how the house should be resistant. Like you should have a tin roof, desirably, clear your gutters out, fill them with water if you feel like it, and have a non-combustible structure.

Gaye Francis (07:21):

And I think they were trying to stop the fire getting under the house as well. So you had to have it sort of blocked in so there was no distance. So there's been a lot of work done around those things. Bushfires aren't going to go away with climate change.

Richard Robinson (07:36):

Not it south west Australia.

Gaye Francis (07:36):

With climate change they're saying that they're becoming more likely.

Richard Robinson (07:41):

More intense too. But that's part to do with the fact we haven't been doing enough burning off. I mean, it's one of the complications everyone recognises that you should keep fuel loads down, but the window to do the fuel load burning (is difficult) because the fire season is getting longer, there's less time to do that. And you might recall there's been some instances where it was the burning off that got away that's caused the fire, which was obviously somewhat of an embarrassment. So it's actually got complicated and it's not getting any easier. And as we also commented too, that the number of volunteers for the CFA is probably generally declining, and there's some other issues associated with that that they haven't been thought through.

Gaye Francis (08:17):

So the ability to do some of this planning work that they've relied on to minimise the consequences is getting harder and harder to do.

Richard Robinson (08:24):

Remember the CFA was created as a result of 1939 fires. And one of the consequences of that was that small fires tend to get put out, but it's when the big fire happens, there's not enough firefighters to go around and to stop the small fire from becoming a big fire. So that there's sort of an obvious size. And the way we've been doing it, it's like, I think I commented since they've gone days of total fire ban, there's never not been a black ash or red day that wasn't on a total fire ban day. And the ability to call it now and particularly catastrophic days got really, really good. So talking to my daughter, the plan is on a total fire ban day, the kids and my daughter are probably gone. If it's a catastrophic day, everybody's gone.

Gaye Francis (09:07):

And you've got to go early, because we've talked about that in other cases as well as it's the access to some of these places that is really tricky. And the ability for people to get out if they leave it too late almost disappears.

Richard Robinson (09:21):

You can't, because there's trees down everywhere. I mean, the storms of winter, they've got trees down all over the place and you have to do a U-turn and go around the other way.

Gaye Francis (09:29):

So I guess our advice, if you want to call that, prep your house, but if you are given a warning to leave on a bushfire day, I think that's probably...

Richard Robinson (09:41):

And the way they're doing it now, you will get a message on your phone.

Gaye Francis (09:44):

It's very clever, isn't it? They've done a lot of work around that.

Richard Robinson (09:48):

So yeah, from our point of view, I mean, it was a generation ago, I wrote that paper, and so far as we could tell, most of the things in that paper have been done. It's sort of interesting to say all these things at that time, although at another level it's a little bit frustrating.

Gaye Francis (10:02):

I think the important thing is to make sure that we can continue to talk about these things though, because they don't go away.

Richard Robinson (10:09):

No, exactly.

Gaye Francis (10:10):

As you said, the bushfire only comes up every 25 or 30 years, and unless you've been involved, you don't sort of think that it's going to happen to you. But all of these controls remain robust and remain relevant that I think it's really important to keep talking about them.

Richard Robinson (10:30):

Yep.

Gaye Francis (10:30):

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

Richard Robinson (10:36):

Thanks Gaye.

Due Diligence in the Electrical & Power Industry

Risk! Engineers Talk Governance
Season 4, Episode 8

In this episode, Richard Robinson and Gaye Francis discuss due diligence in the electrical and power industry.

They discuss due diligence and risk management considerations in the sector, with examples that focus on renewable energy sources like wind turbines and the potential role of nuclear power in Australia's energy mix. Key points include:

• The need to carefully assess and document the safety and emergency protocols even for foreseeable events like fires.

• The trade-offs involved in designing effective systems which can sometimes introduce new risks.

• The challenges of transitioning to a more distributed, renewable-heavy electrical grid, including the need for reliable baseload power and the shifting seasonal demand patterns in Australia.

• The thorough, "cradle-to-grave" approach taken by Finland in developing nuclear power, which may serve as a model for Australia.

• The difficulty of developing a coherent, long-term national energy policy due to the political complexities involved.

The full episode on Nuclear Power is Episode 9, Season 2 of this podcast.

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 due diligence in the electrical and power industry.

(00:13):

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

Gaye Francis (00:32):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:35):

Morning Gaye. We're quite surprised how many people are listening to our podcasts too, aren't we?

Gaye Francis (00:39):

Pleasantly surprised. Absolutely.

(00:42):

Today we're going to talk about the electricity industry and do one of our industry related podcasts. And I guess the reason for doing it is we have just been appointed on to the Energy Safe Victoria panel to assess safety arguments or safety cases from the different power utilities. And also the timeliness around the discussion around wind turbines and particularly the wind turbine fire that happened down in Portland, I think it was the 30th of June this 2024. So that was sort of our introduction. We've got a couple of other case studies that we can talk through that we've worked on at R2A, just to show you the breadth of the different types of work that we do in the electrical industry. But I guess if we start with the turbine fire, Richard, and go from there.

Richard Robinson (01:35):

Well, I can't actually remember what we we were going to say about it Gaye because I remember we were surprised at the time about it because it did surprise us. I mean obviously these things are foreseeable. There will be turbine fires, there's nothing remarkable about that. And the question that became how it was managed electrically, I presume the think was instantly isolated.

Gaye Francis (01:52):

Correct.

Richard Robinson (01:53):

And then whether or not there was proper fire suppression systems or it was just allowed to burn out. I mean obviously if it happened on a catastrophic (fire warning) day and it was dropping sparks and things around that could be fairly complicated

Gaye Francis (02:03):

Rather than in the middle of winter. My understanding was, and I think that's where the discussion is going in the investigation, should fire protection be put on wind turbines? So they did allow it to just basically burn out, but one of the turbine blades fell off. And as you said, if that was a catastrophic day and all of the grass around it was very, very dry then would that have started a fire? It did start a small grass fire, but the consequences weren't there at the time.

Richard Robinson (02:32):

Well, this sort of flowed onto the fact that I'm still acting as an Expert Witness for the Cuddlee Creek fire in South Australia before the Supreme Court, which is a class action. Now I obviously can't talk too much about it, but I think what was interesting, I wasn't asked by the respective lawyers to what I thought the decision that ought to be made. What I was asked to do was go through the process by which they came to the decision. And I think that's what all this due diligence stuff is about, which is what we hammer: precaution due diligence. You can't always be right. That's one of the points the courts understand. But what you can do is be diligent all the time and diligence means that you thought the thing through and you came to a reasonable basis. So it's a bit like whether or not this thing should have had fire protection systems installed because you can install fixed fire protection systems on remote devices like engines on aircraft, always have extinguishing systems built into them. You can buy different technologies. The Russians, for example, used to use a form of halon on which put out fires particularly well but wasn't very good for people. So you wouldn't want to be around when the system went off where other designs like Halon 1301, they could release it inside a computer room at the concentration that would extinguish a fire, but it wouldn't extinguish the people, which is nice and was good. But it wasn't quite as effective as the other halon stuff that the Russians were using as just extinguishing fires.

Gaye Francis (03:55):

But that comes down to that balance, doesn't it? What is the risk and then what other things does it introduce potentially.

Richard Robinson (04:01):

Correct. And you'll be aware we did that other job, which perhaps I shouldn't speak about, fire protection on vessels, and they had a gaseous extinguishing system, which if it got too hot, converted a number of the products of combustion to hydrogen fluoride, which basically would go through anybody's PPE, including the people trying to put the fire out, which means in effect if the fire got hot enough, you really had to abandon ship anyway.

Gaye Francis (04:24):

Yeah, just let it go.

Richard Robinson (04:25):

And so the fire control system in some ways created a greater hazard than the fire itself, which is obviously problematic and there's something you should really try to avoid.

Gaye Francis (04:34):

So I guess going back to the turbine fire, it's not about necessarily what was or wasn't in place. It's really the process that the operator went through to decide on what their emergency protocols were and what they did have in place. And I always say to our clients, I think sometimes it's even more important to document why you're not going to do something as to why you think it's unreasonable.

Richard Robinson (04:59):

Well, I'm completely certain it would've had thermocouples all over it, so they would've known it was getting hot. And maybe all you do if you think you've got a problem like that is you just turn it to side, feather the blades and just turn it off and isolate it from the network so there's no further power going into it and it can't possibly, you'd expect at that point everything would go inert.

Gaye Francis (05:18):

So before the fire actually started it just gets hot. You think that was an option?

Richard Robinson (05:21):

Well, that's the mechanism. That's part of the question was what's reasonable in the circumstances, how would you know? Anyway. Now that sort of led onto a rather interesting discussion about power networks and I don't know if anybody's aware, but there's sort of an interesting philosophical argument going on Engineers Australia about nuclear power and whether or not nuclear experts should be addressing the question. Now we're kind of... Gaye, because she spent all this time in Finland and the Fins are very keen on nuclear power obviously because they don't have much sun in winter.

Gaye Francis (05:51):

No. And they didn't want to rely on gas from Russia.

Richard Robinson (05:54):

So there are very good reasons for going with nuclear power.

Gaye Francis (05:57):

Correct.

Richard Robinson (05:59):

And the way they go about it is particularly thorough. Now we've talked about this previously, but they don't until they're completely happy to say if they won't turn it on, they're very thorough people.

Gaye Francis (06:08):

I think the last reactor that was added to the Olkiluoto system was 20 years in the making just to get all of everything right and they were comfortable with the safety of it.

Richard Robinson (06:22):

Well see, what's strange about this is, I mean I'm just reading a couple of things and roughly now, last time I looked at some reports about this, Australia's about 45% renewables at the moment, but in the last year, I think twice the renewables have actually been generating a 100% of power. So the need for base load thermal power stations has declined. Now what's really curious about this is when you look at all this sort of stuff is that once upon a time we used to define what we required for power by the maximum load, which was winter, which is when thermal power stations are at their best when you've got the cold weather for the chillers and obviously heating and burning water to get the energy out of it. Now, thermal power stations are at best around about 30% efficiency just like cars in terms of the energy you get out of the fuel and converting to electricity. They're quite low efficiency. And most of our thermal power stations in Australia are aging badly. But the question is what happens with the renewables? Obviously when the sun's shining and in summer, particularly, we get a lot of surplus power.

(07:20):

And what changed though in Australia was that once upon a time, peak load was winter when we're trying to keep warm and now it's flipped around to air conditioners trying to keep us cool. And so you've got this whole paradigm shift in the way in which you're thinking about how power is generated and how you're trying to consume it. And the entire network was never designed for that kind of distributed generation as opposed to centralised generation. And I have to agree on all the politics of this sort of thing that you're going to need some reliable base load because remember when you're trying to restart, we did the black start restarts in New Zealand, you need, they're relying on hydro. You need a nice...

Gaye Francis (08:01):

Stable and reliable base load to be able to do that.

Richard Robinson (08:04):

Base load and generator and then you can start building the network back once you've blacked out. Now from my point of view, we are just a bunch of engineers discussing this, trying to work out what might be a way forward. But the question of nuclear power otherwise, but having a stable nuclear generator somewhere wouldn't actually, as opposed to building coal fired power stations because building coal fired power station, getting the coal out of the ground is quite a dangerous occupation. There's a horrendous lead time for a thermal power station just like a nuclear reactor. And the Fins, if we adopt the finished method of making nuclear power safe, maybe that's what we ought to do or hire us some Fins.

Gaye Francis (08:43):

They do some cradle to grave stuff, they take it all the way through.

Richard Robinson (08:47):

Well, they actually dispose of their own nuclear waste too.

Gaye Francis (08:49):

They do. Correct.

Richard Robinson (08:50):

Unlike we've failed that test miserably in Australia, haven't we?

Gaye Francis (08:54):

The power plant, my understanding is the power plant doesn't get approved until, as I said, the cradle to grave and the burial of the spent fuel rods has been addressed.

Richard Robinson (09:05):

So they actually competently think it through, which I don't see many other societies actually doing. So there's a whole lot of interesting issues here and you and I, we talk about these things, but we don't have a clear view on the matter (of nuclear in Australia).

Gaye Francis (09:18):

But I think what we've seen is in the power industry, what's required or what we're using it for and how it's being generated is changing. And it's sort of that strategic approach, isn't it, to an industry that you almost got to look that 20 to 30 to 40 years out, what does it look like? And then what do we need to achieve that? Whereas we keep creeping up on it and there's no head room left in the network.

Richard Robinson (09:47):

And one's pretty much gone so far as we can tell.

Gaye Francis (09:49):

Everything's aging. So we're sort of at a stage where things are starting to come crashing down, but we don't have an overall policy or framework to say this is what the best solution is or the optimum solution for either Australia or different parts of Australia, to say: And that's what we're all going to work towards. It's unfortunately very political and political timeframes, which when you're talking about those sort of projects that are five and 10 years out, certainly don't fit the political cycle.

Richard Robinson (10:21):

Well, you've heard my little story about my solar system on my roof, which when I put it on it was a pretty good return for the power I put into the grid, but just as it paid itself off, the inverter died and I had to replace that. Now they give us such little amount of money, the whole thing wasn't worth the trouble, let me put it that way.

Gaye Francis (10:38):

No, you only get the benefit from what you use.

Richard Robinson (10:41):

Well they don't do that anymore. They charge you for what you use and you get a little bit back for what you sell.

Gaye Francis (10:48):

Oh, that's really not a good deal, is it!

Richard Robinson (10:49):

It's not a good deal anymore.

Gaye Francis (10:53):

So it's really that precautionary approach. What do we want it to achieve? And I guess we've talked about it before, I think on one of our podcasts, but Richard and I were the risk management experts on the power line bushfire safety task force. And then I followed on the committee.

Richard Robinson (11:11):

This arose from the Royal Commission into the Black Saturday fires where it killed 173 Victorians.

Gaye Francis (11:19):

And they took on that precautionary approach and put in REFCLS (rapid earth fault current limiters), which...

Richard Robinson (11:26):

Ground fault neutralises for those who don't believe in REFCLS.

Gaye Francis (11:30):

Thank you, my technical brain. So they put those in and our understanding is that they've worked really well and where they've been installed, haven't started a bushfire in those particular areas.

Richard Robinson (11:44):

In the last, what would it be, six or seven years now?

Gaye Francis (11:46):

Six or seven years. Yeah.

Richard Robinson (11:48):

Although there were other problems.

Gaye Francis (11:50):

Yes, there was some hardening of network. And that comes back to that. What do you want your network to be? And it hasn't ever been designed to do those things. So you almost got to put a line in the sand: What do we want it to achieve? What will our current network get us to? And then what do we have to do to achieve the rest?

(12:10):

So that sort of brings us to the end of a very diverse discussion around the electricity industry, not a one size fits all solution for any of this, I don't think. But if you take the philosophy that Richard and I have always had that it's safety in design and designing for optimum outcomes. What do you want to achieve first? What are your options on the table and in the circumstances, which are the best?

Richard Robinson (12:40):

And the political fights we're having aren't helping.

Gaye Francis (12:43):

No.

Richard Robinson (12:44):

They would be on optimum that would work for Australia. And for some reason we seem to be politically unable to actually think it through.

Gaye Francis (12:50):

I think it has to be divided into two things though. It's what's the best technical solution for Australia. And then how do you get it through the politics of it? I mean, we've said this many times as a young engineer, you to always told me, it doesn't matter how technically right you are, you have to be on the political ball as well.

Richard Robinson (13:07):

Yep.

Gaye Francis (13:08):

So thank you for joining us and we hope you'll listen next time. Have a great day.

Richard Robinson (13:13):

Thank you.

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.

Due Diligence in Marine Pilotage

Risk! Engineers Talk Governance
Season 4, Episode 6

In this episode, Richard Robinson and Gaye Francis discuss the application of due diligence in the Marine Pilotage industry. 

They discuss various consulting work they’ve done with Marine Pilots across Australia and New Zealand ports, and summarise the key take-away that the process is no different for pilotage due diligence reviews than any other (industry’s) due diligence review. 

That is, 

• There needs to be an argument as to why all the credible critical issues have been identified. 

• In a port, they typically look at all the user groups and what activities they're doing. 

• Look at all the controls that can be put in place, which are reasonable in the circumstances. 

• Always needs to be a quality assurance system to make sure that what is being put in place are sustained and managed accordingly. 

But, noting, there will be site specific or port specific issues so the controls put in place may be different.

Access the episode’s full transcript below.

Episode transcript

Megan (Producer) (00:01):

Welcome to Risk! Engineers Talk Governance. In this episode, due diligence engineers Richard Robinson and Gaye Francis discuss the application of due diligence within the marine pilotage industry.

(00:16):

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

Gaye Francis (00:34):

Hi Richard, welcome to another podcast session.

Richard Robinson (00:37):

Good morning, Gaye.

Gaye Francis (00:39):

We thought we'd focus on marine pilotage today because during this season, we were going to cover some of the industries that we do some work in. So you're actually giving a presentation next week (October 2024) in New Zealand in Christchurch to the New Zealand Marine Pilots' Association.

Richard Robinson (00:55):

Indeed.

Gaye Francis (00:55):

And we've done this on a number of occasions and for a number of courses both in Australia and New Zealand. So I guess, do you want to sort of have a quick run through your presentation... What you're going to cover in your presentation.

Richard Robinson (01:11):

Well, it hasn't been totally confirmed yet, but I'm following Antonio De Lito, who's an Australian Italian, and I suspect he's going to be talking about the incident of the Joly Nero that took out the control tower in Genoa and certain people got killed. Now that was about six/seven years ago now, I think it is. And as a consequence of all these deaths, and it was a litany of disasters and confusion and things that went wrong between the marine pilot and the ship's engineers and the captain, in part because certain bits of equipment weren't working, i.e. the engine rev counter wasn't working, so the pilot didn't realise quickly enough, they were relying on voice messages between the engine room and the captain as to where the actual state of the engines were. But anyway, the control tower got took out. And strangely enough, the Italian courts adopted this notion of due diligence, which I didn't think was a civil lawy, European-type Roman law, not polyonic law concept, which I thought was a peculiarly common law, English speaking world idea. But they applied it and as a consequence they put the captain away, the chief engineer away, they tried to put the marine pilot away, but he got off on appeal and now they're having a crack at the engineer who put the control tower on the point such that if a ship...

Gaye Francis (02:32):

Did fail in any way...

Richard Robinson (02:34):

It could be taken out. And I don't actually know where that's gone. I'm sure Antonio will give us an update, but I was going to explain the due diligence aspects of that. Now, we've been through this before and for numerous things, and we've explained it with regards to the Lake Illawara and the incident at taking out the Hobart Bridge. And you might recall the Cosco Busan, which hit the Golden Gate Bridge. See, marine pilots have a lot of protections under civil law, but when something bad happens, there's an increasing tendency, we sort of talked about blame culture, which has popped up this decade in particular, when something goes wrong...

Gaye Francis (03:07):

Whose fault was it?

Richard Robinson (03:09):

Yeah, whose fault was it? Well, in that particular instance, despite all the sort of legal protections that the marine pilot in San Francisco had, they put him away under environmental legislation for coating birds with oil. So there's always something can come out and get you, if they want to get you, they'll come and get you these days.

Gaye Francis (03:32):

There's a whole lot of different legislations that apply.

Richard Robinson (03:35):

And it'll be interesting to see. You remember the Boston Bridge got taken out by a ship that went blacked out, and the question was why didn't it have a tug? Because that's the whole point of having tugs. If you know there's something you could take out, you have a tug tied fast the stern so that you can be steered out of the way with the momentum of the ship. So just because when it blacked out, there's nothing that can do. The ship's going to go wherever the ship's pointed or whatever the circumstance, the current and the wind and everything else just pushes you to, that's where you're going to go until you just stall or you drop your anchor and it's going to come to a grinding halt or whatever you've done, but you don't have any choice. And so all this sort of stuff is basically reappearing. And the job is to make sure that for all the credible critical scenarios, you've got measures in place so that really bad things don't happen, such as hitting the Golden Gate Bridge or taking out the bridge in Boston or taking out the control tower in Genoa.

Gaye Francis (04:23):

And I think that's some of the feedback from the marine pilots when we've done jobs for them, is by using the due diligence approach, it actually allows them to get additional resources and the things that they need in place to make the passage safe. Because the things that they are dealing with are high consequence, very, very low likelihood events. And when they were used to do it on a risk basis, it never got over the line.

Richard Robinson (04:44):

Because you discount the high consequence things by the unlikeliness of the event. Well, you might recall when we had those discussion with the world's largest port of Port Hedland.

Gaye Francis (04:52):

Yes.

Richard Robinson (04:52):

And they did the N -1. We're just borrowing an idea that from the electrical industry. The electrical industry basically says that for any network, should a major conductor fail, the system should ignore it - it should just be able to keep going. But we've noticed because of commercial pressures, the headroom is getting tighter and tighter. And I don't think a lot of networks do have N -1 anymore. But when we're talking about that with regards to ships, because we listened to them for about a morning I think, it was marine pilots talking about it, and we just sort of said, hang on a minute, you need an N minus one argument so that if the engine of the ship fails or one of your tote fails, you've still got a way to bring whatever the situation is home safely. And once they did that, they instantly got another tug applied that obviously bolted off to the, well, I suspect the boards of the large mining companies that use that port. And the idea that you could block a channel with a ship which is now Australia's, well, it's the world's largest by tonnage I believe, port.

Gaye Francis (05:46):

Okay.

Richard Robinson (05:48):

What would happen to Australia if you blocked that port, you had to cut the ship up for six months. It just doesn't bear thinking about it.

Gaye Francis (05:54):

And I think that's what it is, it's that the high consequence, as you said, it's the recovery time as well. And being able to block a channel in a port so it can't be used for a long period of time was unacceptable.

Richard Robinson (06:08):

Well you might remember when the Iron Baron hit the Hebe Reef in Bass Strait, the harbor master wouldn't let it be dragged into Devonport just in case it got suck in the channel and just blocked up the ferry service from between Tasmania and Australia. Because if we do that, it becomes impossible for I think one third of all of New Zealand's exports and imports go through by the ferry, by Davenport.

Gaye Francis (06:33):

So again, criticality argument, and that's how it's been applied to marine pilotage. And I think one of the interesting things, and it's being extended to the port scenario now, so pilotage is one aspect of port operations and an important aspect. And so we've done a number of pilotage reviews for a number of ports around Australia.

Richard Robinson (06:54):

You've got to go to think about a marine pilot. The whole point about having marine pilots is for the critical, don't collide or ground a ship. Okay. It's always critical. That's the only reason why the marine pilot's there.

Gaye Francis (07:06):

Well, it's sort of interesting. They're almost the control in a way, aren't they.

Richard Robinson (07:09):

They are.

Gaye Francis (07:10):

So they've got to have the tools available to them to make sure that they're an effective control.

Richard Robinson (07:14):

Correct.

Gaye Francis (07:15):

So some of the controls that we do put in place to make sure that they've got the right information and additional tug services or assistance and that sort of stuff is all the things that they need to do their job effectively.

Richard Robinson (07:28):

Correct.

Gaye Francis (07:29):

What I was going to say though is that sort of idea is now being expanded out into the whole of port scenario. So it's not just being considered for ships being brought in and out, it's actually for the port operations as a whole.

Richard Robinson (07:45):

Are you trying to describe the recent job we did for Tasports, are you?

Gaye Francis (07:49):

Yes. Well we have done it there, but we've done it at other ports as well. But I think one of those integrated approach, and we sort of touched on it in one of our other, previous podcasts is that integrated approach and not looking at some of the activities in silos will give you a different set of precautions than you would if you just did it in silos.

Richard Robinson (08:08):

Well, that was what we did - one of the Tasport's port. They had a whole lot of industry around, and when you looked at the emergency services that those industry had available, and they were more than willing to help and share and provide their emergency services to the port as a whole, then not just for their own purposes. And as long as you had a sort of mutual aid process. But the advantage was that particular port therefore had more resources than most other ports already available to it.

Gaye Francis (08:34):

So by looking at what you could bring in and the controls that you could put in place to address the issues, all of a sudden you've got to a step level improvement in safety that you might not necessarily have got.

Richard Robinson (08:46):

Well, remember there were two Australian subs that turned up in port, Dechaineux and Rankin turned up, and you don't normally see two Australian subs in one place.

Gaye Francis (08:54):

It was pretty exciting, wasn't it?

Richard Robinson (08:55):

We've only got a few of them and only some of them six and only four probably operational at any given time. The rest have always been worked up and fitted out, refitted and things like that. To see two of them in one place at once. It's quite remarkable.

Gaye Francis (09:07):

I'm not sure how to look at the safety due diligence of the port, but considering all the activities that have to be considered.

Richard Robinson (09:16):

That's correct. And remember there was an ill sailor, they had to get off. And the port actually used the collective resources to actually make it a success.

Gaye Francis (09:26):

Okay, you've got to put that bit in, and I had forgotten that little bit. <laughs>

(09:34):

So our process is no different for pilotage due diligence reviews than any other due diligence review that we do. So we need to have an argument as to why all the credible critical issues have been identified. And in a port, we typically look at all the user groups who they're using there and what activities they're doing. So there's an activities table that you do.

Richard Robinson (09:59):

Yeah, it's like the Twilight Regattas in Hobart. There's all these kids and dinghies running around, you better make sure the big ship in an emergency doesn't run over some <people>.

Gaye Francis (10:09):

Yeah. You then got to look at all the controls that you can put in place, which are reasonable in the circumstances. And then, as I said, you're always a quality assurance system to make sure that the things that you are going to put in place are sustained and managed accordingly. But there will be site specific or port specific issues. Like Richard said, the regattas in Hobart were a particular issue. There's more industry in Bell Bay and in Port Headland for example, there's different weather conditions depending on whether you're on the east coast or the west coast of Australia. So there there's different issues and slight variations in each of the ports and the controls that you'll put in place may be different.

Richard Robinson (10:52):

Indeed. Well, you do the best with what you have available to you. And obviously if you can't get there, then you're going to have to do some extra things. But an awful lot of time, and that's certainly, we've talked about tower partners, other things like that. Competent people do competent things. And so if you've got competent people around, they'll be providing services even if you are not aware that that's available to you. Well, in fact, in all the ports we did, we got all the users together. Remember that was the whole point of the exercise. It's hard to do this stuff in isolation and just have a single expert come in and get it right when you've got multiple potential users and multiple potential resources.

Gaye Francis (11:27):

And I think that was the key thing that came out of it, wasn't it? That there were more resources available than was known by any one party.

Richard Robinson (11:35):

Correct.

Gaye Francis (11:36):

That all of a sudden, if you adopted it collectively for the port use overall, then you got that improvement.

(11:46):

I guess that's a summary of what we're going to talk about at the conference next week (October 2024). So good luck with your presentation, Richard, and thank you for joining us.

Richard Robinson (11:58):

Thank you.