Chapter heading 1

RECOMMENDATION 4

‘Reasonably practicable' should be used to qualify the duties of care, by inclusion of that expression in each duty of care, except for the duties of officers, workers and other persons for whom different qualifiers are proposed.

Should reasonably practicable be defined?

1. 
   The majority of submissions support the inclusion of definition of reasonably practicable in the model Act, however the main focus of many of the stakeholders was on whether or not the duties of care should be qualified, whether reasonably practicable should be the qualifier and whether it should appear in the duties of care or in a defence.
   
2. 
   The submissions commenting on this issue discussed:
   

• 
  whether it is necessary to define reasonably practicable, given the courts have made clear what it means and how it is to be applied; and
  
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  whether information regarding reasonably practicable would be required in the model Act or could be instead provided in guidance material.
  

46. 
    Overall, the weight of opinion expressed in the submissions favoured reasonably practicable being defined in the model Act. This position is also supported by some jurisdictions that do not currently define the term¹¹⁷ and in reviews of legislation under which the term is not currently defined.¹¹⁸
    
47. 
    We are persuaded by the view expressed that defining reasonably practicable in the model Act would provide guidance to duty holders on how to fulfil their duties of care. Inclusion of a definition was generally supported by those who represent or are duty holders. While the case law is consistent and helpful, it is not easily accessible to duty holders. The model Act should be primarily designed for the advancement of health and safety in the workplace and this would be assisted by including guidance to duty holders in a definition of reasonably practicable.
    
48. 
    Providing guidance on how to apply reasonably practicable by defining the term in the model Act may assist in achieving compliance. It may also reduce the force of any excuse by a duty holder that uncertainty as to the standard caused a breach of the duty.
    
49. 
    We recommend that reasonably practicable be defined in the model Act.