Preventing Criminal Manslaughter ~ Understanding & Implementing SFAIRP (Live Forum Preview)

In this special episode of Risk! Engineers Talk Governance, due diligence engineers Richard Robinson and Gaye Francis preview their upcoming live forum event on "Preventing Criminal Manslaughter - Understanding & Implementing SFAIRP (So Far As Reasonably Practicable)". 

The event will feature presentations from a lawyer, Joseph Coleiro, and an architect, Dr. Frank Stoks, along with the hosts Richard Robinson and Gaye Francis, with the focus on exploring the legal obligations and practical challenges around the concept of SFAIRP, which is a key requirement in health and safety legislation.

Topics to be discussed include the relationship between the laws of nature and the laws of man, the complexities of health and safety laws, and the balance between safety requirements and other project considerations like cost and usability.

The forum aims to foster a thought-provoking discussion and debate on these issues, drawing on our diverse expertise. Questions will also be taken from the audience.

Tickets for the Live Forum on 22 October 2025 are available for both in person (Melbourne) and online via https://www.eventbrite.com.au/e/preventing-criminal-manslaughter-understanding-implementing-sfairp-tickets-1653602251849 

For further information on Richard and Gaye’s consulting work with R2A, head to https://www.r2a.com.au, where you’ll also find their booklets (store) and a sign-up for their quarterly newsletter to keep informed of their latest news and events.

Gaye is also founder of women’s safety workwear company Apto PPE if you’d like to check out the garments at https://www.aptoppe.com.au. 

Transcript

Megan (Producer) (00:00):

Welcome to Risk! Engineers Talk Governance. In this special episode, due diligence engine!ers Richard Robinson and Gaye Francis preview their upcoming Live Forum: Preventing Criminal Manslaughter - Understanding & Implementing SFAIRP.

(00:19):

You can join Richard and Gaye with special guests lawyer Joseph Coleiro and architect Dr. Frank Stoks on Tuesday the 22nd of October, 9:00 AM to 12:15pm. Tickets are available for the event in Melbourne, or you can join us online and you can find the link for tickets in the description below.

Gaye Francis (00:42):

Hi Richard, welcome to a special podcast session today.

Richard Robinson (00:46):

Hi Gaye. Apparently you've moved out of your house to repair it, but that's nice.

Gaye Francis (00:50):

Yes, it's been a very stressful weekend, but I've got my work hat on now, so all good.

(00:54):

So today's podcast, we're going to talk about our upcoming live forum event and it's "Preventing Criminal Manslaughter -- Understanding and Implementing SFAIRP". And so what we want to do for our audience today was give them a little bit of an overview of what to expect at the forum and go from there. So I think you were going to run through a quick briefing on the program and then we'll talk through some of the issues we hope to come up in the discussion.

Richard Robinson (01:28):

Yeah, well thanks Gaye. And basically we've got Joe Coleiro who's a lawyer and legal counsel. For those who might have heard us talk about him before, he was the legal counsel for the Defense Aviation Safety Authority, where they defined what SFAIRP was. And we've got Dr. Frank Stoks, who's one of our associates from New Zealand, who has a particular interest in the design and the way in which things on the foreshore, because he was acting as an expert witness for a young fellow that got killed or drowned in Wellington Harbor. And he's been through the legal process in New Zealand and he had a number of insights that he wanted to express about all that.

(02:00):

This sort of flows on from the continuing argument/debate we have over the SFAIRP & ALARP business, which we find has gone to a strange place.

Gaye Francis (02:09):

And the broader concepts of target levels of risk and safety in general.

Richard Robinson (02:14):

But it (will be) actually sort of an integration of these three points of view. Now obviously if you've been listener to our podcast, you've probably got a pretty good idea of what we think about it all. But part of the reason for having the other two there is to actually make it clear that this is actually a more complicated matter than it looks.

(02:29):

Now, just to put into perspective, Gaye will be running the show as she usually does <laughs> and introducing us all and therefore there'll be Gaye's points at the end of it summarising the results, the takeaways. And in order it was going to be me outlining the relationship between the laws of man and the laws of nature. And there's a number of ways that could be expressed that I think I've probably expressed them in previous podcasts. But the essential point is that if you are a designer designing things, you have eliminate hazards so far as reasonably practicable. If you can't eliminate, you've got to reduce them so far as reasonably practical. And that's the physical, natural material timespace universe.

(03:08):

And I could expand that a number of different ways, which you've probably heard me do before. And you have to do that because you're not allowed to change the world, like build a building and create a fire hazard or fail to put up a handrail and stop some young fellow drowning in a harbor. You have to do that in a way which is not negligent. That means you weren't reckless and you looked at all the problems that could occur and satisfy the laws of man and the laws of man have got particularly tough with all his criminal manslaughter provisions saying this is the way the world ought to be physically -- that's what the designers are supposed to do; that's what engineers and architects do. And you've got to do that in a way which satisfies the laws of man, which is what our courts and parliaments do. And this SFAIRP business is in everybody's legislation and it's basically a categorical imperative to use Kants meaning of the word.

Gaye Francis (03:55):

I think in that legal context we've also talked about in other podcasts is the complexities and the interactions between the WHS/OHS legislation with other types of legislation as well. So the complexity around the legal context of health and safety issues is becoming quite... there's a lot of things feeding into it.

Richard Robinson (04:19):

Well, it actually goes a bit further because I mean, the reason why we had Professor David Howarth come out from Cambridge -- the Professor of Law & Public Policy -- he was making the point that's in his little book "Law As Engineering", but he said he could have been entitled Legal by Design. And that the two processes of what the lawyers do and the engineers do align. And this is actually quite important because if you're an engineer, a designer or an architect designer, but somebody who designs in the real world, you have to look at it from the point of view of the legal design process as well. And the Section 22 of the WHS legislation and the OHS Act in Victoria and the WHHA legislation New Zealand is crystal clear on the duty of designers.

Gaye Francis (04:59):

Yes. It now spells it out, doesn't it.

Richard Robinson (05:01):

It does. Now in that regard, the bit that's always caused the most confusion, and this is something we're not absolutely crystal clear on. There's all these people saying that "reasonably practicable" is the same for "As Low As Reasonably Practicable" and for "So Far As Reasonably Practicable.

(05:16):

But what Joe Coleiro is going to be talking about is the fact it's not the "reasonably practicable" part that's the difficult part. It's actually the SFA "so far as" that is the hard part. And that is an objective test. Now, I've read this in other books by other lawyers, Sherriff and Tooma in particular, in understanding WHS legislation, and they talked about an objective test, but I've always wondered exactly what they meant by that.

Gaye Francis (05:41):

Hopefully Joe will explain it to us all in our Forum.

Richard Robinson (05:44):

In detail. But one of the things that Joe did make clear when we talked to him about this was that using a target level of risk and safety, you are saying this is the level of risk I'm willing to accept on your behalf. And that is definitely a subjective test. And that we understood.

Gaye Francis (05:59):

Or the level of risk that you will accept as you're giving it to somebody else,

Richard Robinson (06:03):

How you do an objective test, which is what the SFA is sort of strange, because it has other meanings, but anyway. What "so far as" actually means is quite different. And it actually flows through to the AFAP (As Far As Possible) principle in Victoria for the Electrical Safety Act, and things like that. So this is not a legally clean area.

Gaye Francis (06:23):

No. Open to interpretation potentially.

Richard Robinson (06:27):

And that then flows on to Frank, who obviously is an architect as a designer, and he's given a lot of advice on the foreshore and how to protect people. But you have this interesting conflict between people who don't want to have the foreshore surrounded by fences and have it open and clear from the usability of people enjoying, amenities, and all the rest of it versus the possibility of somebody...

Gaye Francis (06:48):

drowning.

Richard Robinson (06:49):

Correct.

Gaye Francis (06:50):

And we have many of those locations in Australia.

Richard Robinson (06:52):

Very much, and a lot of utilities in Australia have this problem. And we've seen this problem many times, haven't we?

Gaye Francis (06:58):

And I think that's always been the most difficult part, what is the SFAIRP? What is that balance between safety and all of those other things that people want to achieve as part of their project or of their organisation.

Richard Robinson (07:13):

Now I've had, Frank calls me up periodically when he's got an interesting problem and I've had long conversations. One of the most more recent jobs has been helping design the Auckland Airport because he's PhD's in CPTED - Crime Prevention Through Environmental Design. So he's particularly familiar with the complexities and also the contradictions between cost and projects with a fixed price. And yet we've now got this mandated requirement that you must achieve SFAIRP for all designs and this is not working well.

Gaye Francis (07:45):

No. So how do you balance it all?

Richard Robinson (07:47):

Well, you might recall when we did the review or we did the short course for the Assessors for Engineers Australia for CPD, and they sort of said... Well, what was the percentage of engineers who...

Gaye Francis (07:57):

It was tiny. (The pecent of engineers) who actually thought that the WHS legislation/OHS legislation was relevant to them. And it was two and three out of a hundred applicants that have been there. And that was just mind blowing. And then of those couple, the mainly didn't even understand the difference between the two.

Richard Robinson (08:17):

Correct. And that for the people assessing, I mean, yes. Well, I'm having an interesting time with Engineers Australia. I got CPD points to assess, but we won't go into the conversation now. That's a different conversation.

Gaye Francis (08:32):

That's alright. So I think the most important part for our forum is, and as Richard said, you would've heard him and I talk a number of times and what our views are, will be that interaction. So the plan is for the gentleman to give their 15 and 20 minute little blast at the start, break for morning tea and then come back and have this discussion around these things and some of those problems of ISO 31000, are you still using target levels of risk and safety, and how you meet the requirements of the legislative requirements while still achieving a safe environment at a reasonable cost, whatever that is.

Richard Robinson (09:10):

And that's in the context of the planning legislation tends to seem to ignore the implications of the WHS Act, which is something we truly do not understand.

Gaye Francis (09:19):

We've said this on a number of occasions, but we really are talking about those critical rare things, those things that can kill and maime, which is what the legislation is aimed at.

Richard Robinson (09:30):

Correct.

Gaye Francis (09:31):

So the intent is we're hoping to have the interesting conversation afterwards and we will be welcoming questions from the audience both online and in person. The session will be recorded. And yeah, we're hoping for one of these really debating and thought-provoking sessions. Might not come back with all the answers. Hopefully not more questions than answers, but that would be the intent of the session. So we hope you've enjoyed a little preview of what the live forum will be there and hope you can join us at the live forum. Thanks, Richard.

Richard Robinson (10:04):

Thanks Gaye.