‘Reasonably practicable’ should be defined in the model Act.
How should reasonably practicable be defined?
We will deal with definitions in our second report. We consider, however, that understanding what is meant by reasonably practicable and how it will be applied is important to any discussion on the content and operation of the duties of care. We accordingly deal with this definition in this report.
Reasonably practicable is currently defined or explained in a number of jurisdictions.119 The definitions are generally consistent, with some containing more matters to be considered than others. The definitions are consistent with the long settled interpretation by courts, in Australia and elsewhere.120
The provision of the Vic Act relating to reasonably practicable121 was often referred to in submissions (including those of governments) and consultations as either a preferred approach or a basis for a definition of reasonably practicable.
We recommend that a definition or section explaining the application of reasonably practicable be modelled on the Victorian provision. We consider that, with some modification, it most closely conforms to what would be suitable for the model Act.
We consider that the current definitions could be enhanced for easier understanding of the required process. Case law makes it clear that determining what is reasonably practicable requires a process of weighing up or balancing the various elements.122 This is not clear from current definitions, which state that “regard should be had” to those elements.
We provide the following wording as an example definition of reasonably practicable:
