The placement of the qualifier of reasonably practicable, within the duty or within a defence, is relevant to the issue of who bears the onus of proving or disproving that the standard has been met. The question of onus is an important one that is considered later in our report.
In the submissions and during consultation, a number of points were made which we find persuasive for including reasonably practicable as a qualifier in the duty of care.
First, whether the qualifier is in the duty or in a defence, it is an effective limiter of the duty of care. However, it is more transparent for the qualifier to be contained within the duty of care than elsewhere. This is significant as the qualifier provides for the reasonableness of the duty and the ability of the duty holder to comply with it. Placing the qualifier elsewhere than in the duty may lead to a perception that the duty is not limited and is unfair and unachievable. That may deter a duty holder from taking steps for compliance.
Second, the duty must be realistic and capable of being complied with. The standard of reasonably practicable is a high one, requiring the duty holder to consider all of the circumstances and take measures that are commensurate to the likelihood and seriousness of the harm which may result from the relevant activities, and relieved only by consideration of what is not possible or what is clearly unreasonable in the circumstances. A duty holder must clearly understand that this standard must be met. Having the qualifier in the duty makes this clear, while not having the qualifier in the duty may not.
Third, decisions to pursue a prosecution and impose a penalty will be more readily justified where there is a failure to meet a standard that is set out in the duty.
The maintenance of the qualifier of reasonably practicable in duties of care has also been supported in a number of recent reviews of legislation.116
A concern was expressed in some submissions and during consultation, that including the qualifier in the duty of care ‘waters down’ the duty from a requirement to ensure health and safety, which should be unqualified. Its place in a defence was accepted.
We consider, however, that this view, while consistent with the objectives of OHS regulation, does not give sufficient weight to the actual operation of the law. The defence of reasonably practicable, however expressed, is a qualifier of the duty. There is, as we note, a separate question of who should bear the burden of proving that it was met (this is discussed later in our report).
Our view is consistent with the findings of the European Court of Justice that the inclusion of the qualifier is not inconsistent with the requirement to ensure health and safety. We also note that this position is consistent with Article 4, Clause 2 of the ILO Convention 155.
We are required by the terms of reference to observe the direction of COAG that in developing harmonised OHS legislation there be no reduction or compromise in standards for legitimate safety concerns. While there has been significant statistical performance improvement in NSW and Qld, where the qualifier is not included in the duties of care, we are not persuaded that this demonstrates that such reduction in death and serious injury is attributable to the absence of the qualifier in the duty of care. It could conversely be argued that the jurisdictions other than NSW and Qld have enjoyed greater improvement in death and injury rates and therefore that the inclusion of the qualifier in the duty is advantageous for the protection of health and safety. The standardised statistics are, in our view, not reliable for reaching conclusions about the effect of particular legislative provisions.
We do not consider that the inclusion of the qualifier in the duties of care will result in a reduction or compromise of safety standards.
Having the qualifier of reasonably practicable in the duties of care also has the advantage of providing information and education, assisting the duty holder to understand what is required to comply with the duty of care.
For these reasons, we recommend that the expression ‘reasonably practicable’ be a qualifier referred to in each duty of care, other than the duties for officers, workers and others, for which we propose (in the following chapters) other standards tailored to those classes of duty holders.
In making this recommendation we note that this does not necessarily determine the issue of whether the prosecution must prove a failure of the duty holder to meet the standard, or whether the duty holder must prove the standard has been met. This recommendation is therefore linked to, but not dependent upon, acceptance of our recommendation on the issue of onus of proof. That is dealt with in Chapter 13 relating to offences.
