‘Control’ should not be included in the definition of reasonably practicable.
Should reasonably practicable explicitly refer to risk management principles and processes?
The ‘risk management’ process is fundamental to the protection of health and safety. This entails:
identifying hazards;
identifying and assessing the risks associated with the hazards (the degree and likelihood of harm); and
taking steps to eliminate or reduce the risk (the likelihood or degree of harm).
We consider this process should be recognised and reinforced by addressing risk management in a set of principles in the model Act. This will be discussed further in our second report.
Whether or not the model Act should contain requirements for specific risk management processes to be undertaken is also a matter which will be discussed in our second report.
When dealing with the definition of reasonably practicable, consideration must be given to whether or not risk management principles or processes should be specifically included.
Current definitions and case law interpreting reasonably practicable require consideration to be given to the degree and likelihood of harm and the availability and suitability of risk controls. This provides in effect for the application of risk management principles.
Some submissions and comments during consultation proposed that the application of risk management principles should be expressly provided for in the definition of reasonably practicable, rather than merely being implied. Some went further to suggest that specific process requirements should also be included.
We consider that the definition of reasonably practicable should be simple and easy to understand, setting out principles rather than processes. Reasonably practicable should be a standard to be met, rather than a process. If it is appropriate for risk management process requirements to be included in the model Act, they can be provided in separate provisions as specific obligations. This is consistent with the principles in our terms of reference.
