Rail Safety National Law Pressures & the SFAIRP Approach

In this episode of Risk! Engineers Talk Governance, due diligence engineers 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.

If you’d like to meet Richard & Gaye live, tickets are available (in Melbourne & online) for their Live Forum on 21 October 2025 “Preventing Criminal Manslaughter – Understanding & Implementing SFAIRP” can be found 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 Australian women’s safety workwear company Apto PPE https://www.aptoppe.com.au.

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.