The majority of submissions support a test for reasonably practicable to clarify the obligations of duty holders and aid consistency in application and interpretation of the standard of care required under the primary duties. This was also the view of ACCI, the Business Council of Australia (BCA) and the AiG in their submissions.104 The preferred basis for a test for reasonably practicable is the approach in the Vic Act. However, some submissions, such as that tendered by Unions NSW105, oppose any test or definition of reasonably practicable, preferring instead to rely on case law.
There are different views as to how reasonably practicable should be incorporated into the model Act. Some support the qualification of the primary duties in terms of reasonably practicable, arguing that without the qualifier, a primary duty is unlimited and unachievable. Other submissions support providing for consideration of reasonably practicable only as a component of a defence.106
Submissions are divided on whether or not risk management principles should be incorporated into the definition of reasonably practicable. Arguments for the integration of reasonably practicable with risk management processes include that such an approach would facilitate compliance with the general duties107, where the test of reasonably practicable relies on foreseeability of potential risks, best addressed by a risk management approach.108
Those against the incorporation of risk management into reasonably practicable distinguish between the nature and uses of each concept. For example, the Law Council of Australia observe that:109
“The concept of ‘reasonably practicable’ relates to the appropriateness of particular safety measures, whereas ‘risk management’ relates to the particular steps that should be taken to identify, assess and eliminate risks. A ‘risk management’ process may identify a particular risk and/or possible solution, however, that solution may not be ‘reasonably practicable’ for any number or reasons (availability, suitability, cost, etc).”
On this basis, the Law Council of Australia does not support principles of risk management being incorporated into the test of ‘reasonably practicable’.
There is a clear desire for examples based on case law (where possible), to aid interpretation and assess compliance. This is seen to be best placed in guidance materials or codes of practice. ACCI and AiG supported inclusion of examples in interpretive documents.110 Submissions recommend specific advice on balancing risk and cost, i.e. where costs are exceedingly disproportionate to the likelihood.
There are various views regarding the inclusion of control as an element of reasonably practicable. Submissions supporting the explicit inclusion of control argue that it is an essential consideration in determining who is a duty holder, the nature of the duty, the extent of the duty and the defences, especially in situations where multiple duty holders are involved.
Those against the inclusion of a control test argue:
Control is used in different contexts in legislation (e.g. control of people, work, places etc). Defining control may add confusion to what is meant in these different contexts and could also narrow its interpretation, which may weaken the general duties;
Defining control could focus people on trying to eliminate their control to avoid liability; and
Control is best determined by the courts with regard to the unique aspects of each case.
There are varying views on the delegation of control. Some stakeholders clearly oppose the delegation of control. Others argue that control should be able to be delegated in limited circumstances, including where, for example:
a particular expertise or skill is relied on;
the duty holder does not hold a required licence or accreditation for the particular task; and
contractors who are not under the direct supervision of a principal.
Should the duties of care be qualified and, if so, how?
None of the submissions and recent reviews rejects the ongoing validity of the Robens model. Some observe that it should be brought up to date to meet changed and changing circumstances, whilst others suggest that elements of the Robens model no longer apply.
A key element of the Robens model is that duties of care must be broad and outcome focused, to apply to the variety of circumstances in which work is done. This recognises that detailed prescriptive requirements may not achieve widespread health and safety protection, as they may not be relevant or possible in many circumstances.
If duties of care are not subject to a qualifier, the duty holder would be guilty of an offence if the outcome (elimination of risk to health or safety) is not achieved, regardless of the efforts that the duty holder took to achieve that outcome. While the protection of health and safety is pre-eminent, we agree, on the grounds of fairness and practicability, with the approach that is taken in all Robens-based OHS laws of qualifying the duties of care.111
The defence provisions in NSW112 and in Qld113 place a qualifier on the duties of care. Submissions from a number of stakeholders, including peak organisations, suggested that the approach to the duties of care in the NSW Act should be adopted, but accept that there would continue to be a qualifier contained in the defence provisions, rather than in the duties of care. Other submissions expressly proposed or accepted that the duties of care should be subject to a qualifier.
The standard of ‘reasonably practicable’ has been generally accepted for many decades as an appropriate qualifier of the duties of care in all Australian jurisdictions other than Qld (which has a similar qualifier of ‘taking reasonable precautions’). This qualifier is well known and has been consistently defined and interpreted by the courts.114
The submissions and comments made during consultation and in learned articles, support this qualifier as appropriate for inclusion in the model Act.115
We recommend that the duties of care continue to be subject to a qualifier and we consider that the standard of reasonably practicable is an appropriate qualifier.
How should reasonably practicable be used to qualify the duties of care?
