Megan (Producer) (00:02):
Hi & welcome to Risk! Engineers Talk Governance. My name's Megan and I work behind the scenes on the podcast, but also with hosts Richard Robinson and Gaye Francis on their businesses. R2A Due Diligence Engineers and also Apto PPE Women's and Maternity Workwear.Please enjoy this first episode of season one of the podcast, Richard and Gaye talk about SFAIRP and the difference between it and ALARP.If you enjoy the episode, please subscribe so you don't miss future episodes. Also, help us out and give us a rating if you do enjoy it so we can help other people find the podcast on this topic.The podcast is available on all podcast platforms. Please enjoy this episode and if you have any questions or any ideas or feedback, please let us know. Enjoy.
Gaye Francis (01:23):
I'm Gaye Francis, and with me today is Richard Robinson. We are both directors at R2A and today's topic is ALARP versus SFAIRP. I feel like we've talked about this a number of times, Richard, but welcome.
Richard Robinson (01:30):
And we've talked about for ever Gaye and welcome. And welcome Megan, who is our producer sitting in the sun over there and quite enjoying herself.
Gaye Francis (01:31):
On a beautiful Melbourne Autumn day. So I guess, where do we start for ALARP versus SFAIRP? There's so many conversations and people that say that there's no difference between the two.
Richard Robinson (01:43):
Well, interesting enough, and probably this might be the way to introduce it... I was giving a briefing on behalf of Rio Tinto for that national tailings dam conference, and they had a, he'd have to have been a criminal lawyer, giving advice. And one of the things he pointed out, because all the engineers were carefully saying, well, look, we're not lawyers - we don't interpret the legislation. But one of the things this lawyer pointed out was that so far as reasonably practical (SFAIRP) isn't defined in the WHS legislation, but reasonably practicable is. And we've been thinking about this for some time because obviously the legislation says you should eliminate hazards so far as reasonably practicable. And if you can't eliminate, (you) should reduce them so far as reasonably practice, which is the SFAIRP part. But if the legislation doesn't define SFAIRP, can you actually use the term?Now what we sort of realised was there's another aspect to the Act and the Act actually goes to some trouble
(02:34):
...and the precursor tool is the Victorian OHS Act 2004 has it in there even though we haven't adopted WHS legislation in Victoria. But this element is a particular clause or section that says you must achieve the highest level of precaution as is reasonably practicable.So whilst it doesn't define SFAIRP, it does define reasonably practical. And then another portion of the Act says you've gotta achieve the highest level that you can and that's what the SFAIRP principle's all about.So far as we can tell, the Act actually does (define SFAIRP), and I'd be particularly interested to see if there's any lawyers out there who could actually have an opinion about this because I think this is actually really quite important.
Gaye Francis (03:18):
So it really sets out what the intent of the legislation is and what the principle of SFAIRP is, rather than putting in the black letter of the law sort of stuff.
Richard Robinson (03:19):
Yes, that's correct. And the way legislation works, if you do get a case, the first thing the lawyers do is say go through the legislation and say what did the legislators intend? What did the parliaments intend when they put that clause in? And you're not always (or) all together clear. And when you listen to the lawyers and the judgements and so forth, they're basically interpreting the words from parliament. Now, again, it's a bit hard to know what parliament actually intended, but we've always assumed that it came from the common law. That's what Michael Toma says in his books, which we're willing to go with. And he's, uh, something of the guru in WHS legislation. And if it's coming from the common law, then it's coming from Lord Atkin, the Brisbane born English law lord from 1932 and Donahue versus Stevenson.
Gaye Francis (04:02):
Which is all about due diligence.
Richard Robinson (05:01):
It's all about due diligence and it was all about the principal reciprocity.I think I mentioned to you, I just found fairly recently an article by a Canadian law professor, which was a bit of a surprise to me cause I forget why I was tracking through looking for something, because I'd come to the view that Atkin was actually talking about the parable of Good Samaritan when he asked the question and who, in law, is your neighbour?And I didn't realise this, but the, well, certainly the high court judges or the House of Lords in the UK when they're doing a judgment, they actually write notes out, in case, I guess, one of them gets sick and another judge has to take over for some reason they've got this case study of what they've done and how they've done it and what they've discovered, and all these sorts of things. And this Canadian law professor's going through Atkins notes about this particular case. And he is absolutely crystal clear. He was given the reading on the Parable of the Good Samaritan. And quite literally that was why he concluded in the formulation of his neighbor principal.
Gaye Francis (05:03):
So the intent was clear.
Richard Robinson (05:38):
The intent was clear and the way he said it was clear.How did he put it? "The rule that you ought to love your neighbor becomes a law, you must not injure your neighbor". And the lawyers' question, "who is my neighbor?", that's the lawyers' question that's asked in the 2000 year old question. These lawyers have always been with us. You know, we're not gonna escape them in our lifetime. The lawyers' question, who's my neighbor receives a restricted reply. And the restricted reply is along the lines that you must take reasonable care to affect anybody you know, knowingly or unknowingly, that you should have thought about. And that's what the Parable of Good Samaritan's actually about. So it's just a principle that shows up everywhere.
Gaye Francis (05:43):
So we've gone sort of a little bit off tangent just a little bit, but that's not unlike us, Richard!So if we go back to SFAIRP versus ALARP, there is clearly a difference. And they're defined by different people.
Richard Robinson (05:59):
Well, Andrew Hopkins from ANU, he basically goes on about it to some length too. Uh, I didn't realize he's now an emeritus professor and according Ravi Nijjer, he's actually in high demand overseas at speaking engagements making the same point that there's no nothing in law, the ALARP principle just doesn't exist. And your duty's to achieve the highest level you reasonably can.
Gaye Francis (06:23):
So ALARPs been used in the risk business for a long time now, 30 years plus. And it really just talks about the hazard doesn't it; the level of hazard, the level of risk.
Richard Robinson (06:35):
And...
Gaye Francis (06:37):
Is it acceptable or tolerable; it's measurable in some way. And as we've said many, many times, it's a human construct of what people think the likelihood of those things are.
Richard Robinson (06:51):
Well, I think it goes a bit further. I think what they were trying to do, and I've gotta say a hidden history, I was probably guilty of this too, but what they were trying to do was make it a scientific concept, you know, the laws of nature so that there was something you could physically measure. But has been pointed out by lots of people, one of my former partners, Derek Viner, pointed it out too. You send two risk experts out there to go and assess the risk associated with a circumstance or situation. If it was truly a scientific concept, they'd all come up with the same answer.
Gaye Francis (07:17):
They do not.
Richard Robinson (07:19):
They never do. Unless you use an identical process, in which case you've just done the same thing twice. And everybody would know that because when you're sitting around a risk workshop doing risk assessments, nobody agrees.
Gaye Francis (07:49):
No, it's very, very hard to get consensus from the group. Everyone has a different perspective on what that is, especially when you're talking about what the likelihood is. So, I mean, for us, the SFAIRP principle is all about the precaution, the level of controls, the level of precautions and mitigations that are in place. So it's all about what needs to be done to manage the particular hazard rather than the level of risk.
Richard Robinson (07:52):
Correct. And the legislation's quite clear. You've gotta achieve the highest level of control you can.
Gaye Francis (07:59):
So for us, there is a clear difference. And I think some of the confusion comes out in that people are trying to define ALARP and define SFAIRP in a way that sort of matches their processes.
Richard Robinson (08:14):
Well, frustration of all this all came around because of the tolerability risk study by was it to Frank Layfield, I think it was, in the UK. And he tried to make risk into a scientific concept, and that was because he was listening to scientists, rather than talking to engineers, I think.Because the engineers always tried to meld the two. The scientists look at the laws of nature. The lawyers look at the laws of man. But the people who live in the sandwich in the middle are always the engineers. And I, for some reason, haven't quite understood, that engineers don't quite understand that they're the meat in the sandwich.
Gaye Francis (08:48):
They've gotta make it all work.
Richard Robinson (08:49):
We've gotta make it all work. And the problem with being an engineer is you're attached to the laws of nature.I mean, if you just talk about a financial problem, you can always argue about it in court after the event, whether you were reasonable or not. Because you haven't killed or maimed anybody. You might have damaged them commercially, but it wasn't a death matter. Whereas when you're dealing with a structure or a fire that failed to be controlled or something like that, people die. So you've gotta manage the laws of nature and get it right. Nobody's gonna forgive you for it if you get it wrong.I mean one of the things that really put me off, I think I just mentioned to you, I was, for some reason looking up the Registration of Engineers in Victoria and the person who signs off on the Code of Ethics and the interpretation of the Code of Ethics that they were opposing on registered engineers in Victoria.
(09:31):
The first point it says it is know the law. And then it goes on to speak about the Wrongs Act. Now I learned about the Wrongs Act 30 years ago when I was doing some expert witness thing. And a lawyer mentioned it to me, I didn't know anything about it. Anyway, it contains a thing called the Occupiers Liability Act, which shows the duty of care you have towards somebody who comes into your premises like a shopping center or something like that. And it's the common law duty of care. And it actually lists the principles that defined in pretty much the WHS legislation what constitutes reasonable practicability. It lists consequence, likelihood, and all these other factors. You know, it's a degree which you've got control and so forth.Now I've always quoted the Occupiers Liability Act and the consolidated version of the Wrongs Act.
(10:11):
In all the cases you would recall that I've done this. And you used to look at me and say, "Why is Richard including that?" And the answer was because the lawyers told me to. Um, and yet this lawyer is saying the first principal, the Code of Ethics is know the law. You can already see that somebody who spent a fair bit of time fiddling around with getting advice from lawyers. The legal opinion you're getting varies quite substantially. How on earth are the engineers meant to know about all this legal stuff? And yet that's the first duty as a registered engineer in Victoria. That is a stupendous. Let alone all the technical standards and things like that, that you have to consider.
Gaye Francis (10:47):
I think they're trying to make it so complicated with that sort of stuff. I mean, for us, SFAIRP is a governance principle in that it wants everybody that has the ability to control the hazard to work together to get the highest level of protection. I, for me, it's just some of the legislation and the standards and all of that stuff around it, which we will cover in another podcast, I'm sure...
(11:13):
They're trying to make it so complex. But if you look at it from a top-down governance viewpoint, it's about getting all of the parties in the room, all of the key stakeholders in the room that has the ability to control this hazard to agree on what the highest level of precaution is. It's not allocating blame somewhere that it's a single person's responsibility. It's everybody's responsibility.
Richard Robinson (11:37):
Well, it actually knocks the issue of a confident person around a bit, which has been a particular popular thing to put in legislation because if you need the collective wisdom rather than just one person signing off, how do you do it? And as that Professor Sidney Dekker points out from Brisbane University, he's an airline pilot turned psychologist, there are so many rules out there now and that's one of the problems with standards. I mean, there's so many, so much stuff out there. It is not possible one person to know at all anymore. It just isn't possible. And the problem with that is if you're coming bottom up and you're expected to know it all, well you can't. And that's the same thing with that first question, the regulator on the Code of Ethics Victoria or Code of Practice for registration of engineers; it is not possible for an engineer to know all the law that this, obviously lawyer, was speaking to.
Gaye Francis (12:25):
So I mean, from our viewpoint, there is a difference between ALARP and SFAIRP. ALARP is hazard focus and if you've seen any of our presentations we go through that in quite a bit of detail of why that's the case. And the SFAIRP principle is really about looking at the controls that can be put in place to make sure that the hazards are managed appropriately.
Richard Robinson (12:46):
It's all about the controls. And that was the other point. Remember how we demonstrate that we like single-line line threat barrier diagrams as a way to construct an argument that'll go from the workers and the people actually doing things, to the board and all the lawyers, and everybody else in between that gets hold of things. But one of the things we do with our threat barrier diagrams now is we put in precautions that are the responsibility of others in a different color so that you can see that the sequence of control is going through the hierarchy. The hierarchy in the legislation is eliminate and then reduce. And the hierarchy in the common law is eliminate, prevent and then mitigate. And most of the regulators are completely confused cause they've got four or more, generally up to six, which just leaves everybody in a state of confusion.
Gaye Francis (13:31):
It does.
(13:35):
So that brings us to the end of our podcast for today. If you'd like any more information about ALARP versus SFAIRP, we do cover it in our Criminal Manslaughter booklet, which is available on our website (www.r2a.com.au). Thank you for joining us and we hope you can join us next time.
Richard Robinson (13:53):
Thanks Gaye. Thanks Megan.