There are two options for the use of reasonably practicable as a qualifier of the duties of care.
Option one – Incorporate reasonably practicable as an element of the duty of care (currently, the approach in all Australian jurisdictions, other than NSW and Qld).
Option two – The duty of care is not limited by reference to reasonably practicable, which, as currently in NSW and Qld, only appears as an element of a defence to a breach of the duty (in this way it still limits the otherwise unqualified nature of the duty, as the duty holder is not guilty of a contravention if meeting the standard, or another element of the defence).
Discussion of the options and associated issues
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.
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?
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.
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
whether information regarding reasonably practicable would be required in the model Act or could be instead provided in guidance material.
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
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.
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.
We recommend that reasonably practicable be defined in the model Act.
RECOMMENDATION 5
‘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:
Identifying what is ‘reasonably practicable’
Reasonably practicable means (except in relation to obligations for consultation) that which is, or was, at a particular time reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including:
the likelihood of the hazard or risk eventuating;
the degree of harm that may result if the hazard or risk eventuated;
what the duty holder knows, or a person in their position ought reasonably to know, about:
the hazard, the potential harm and the risk; and
ways of eliminating or reducing the hazard, the harm or the risk ;
the availability and suitability of ways to eliminate or reduce the hazard, the harm or the risk; and
the costs associated with the available ways of eliminating or reducing the hazard, the harm or the risk, including whether the cost is grossly disproportionate to the degree of harm and the risk.
We also recommend that the definition of reasonably practicable be supported by guidance material, explaining the process, to assist an understanding by duty holders and others of the requirements.123
RECOMMENDATION 6
‘Reasonably practicable’ should be defined in the model Act in a way which allows a duty holder to understand what is required to meet the standard.
Note: Our example clause is provided at paragraph 5.55.
RECOMMENDATION 7
The meaning and application of the standard of reasonably practicable should be explained in a code of practice or guidance material.
The issue of ‘control’
An issue of some controversy in submissions and during consultation has been whether or not the level or extent of control able to be exercised by a duty holder over relevant matters should be:
a consideration in determining what is reasonably practicable;
included in the definition of reasonably practicable; and
defined.
The issue of control as an element in duties of care, to determine the duty holder or the scope of the duty, was also the subject of quite divergent views. We consider this issue in Chapter 6 when we discuss the primary duty of care.
Some submissions were concerned that including control as an element of reasonably practicable might limit the scope of the duties of care. We note, however, that the case law provides that control is relevant in determining what is reasonably practicable in the circumstances.124
As noted above, reasonably practicable represents what can reasonably be done in the circumstances. An inability to control relevant matters must necessarily imply that it is either not possible for duty holders to do anything, or it is not reasonable to expect them to do so. It is in this way that control is at least implied as an element in determining what is reasonably practicable.
A view was expressed in submissions that control should not be an element of the duty of care. A concern was that including it might focus the attention of those who might be duty holders on whether the duty of care is placed on them and whether it may be avoided by artificial arrangements. Some of those submissions, however, suggested that control would be appropriately placed as an element of determining what is reasonably practicable, as that would provide a focus on compliance and managing risk.
There has been inconsistency in the interpretation and application by the courts of control as an element of a duty of care. However, there does not appear to have been inconsistency in the approach of the courts to considering the issue of control in determining what was reasonably practicable.
We consider, on balance, that it is not necessary for control to be expressly included in the definition of reasonably practicable and recommend that it not be included. Control is an inherent element in determining what can reasonably be done in the circumstances. Making express reference to control in the definition of reasonably practicable may have lead to a focus on that issue, ahead of other factors noted in the definition.
We recommend previously that the meaning and application of the standard of reasonably practicable be explained in a code of practice or guidance material. The relevance of control to determining what is reasonably practicable should be explained in that material.
RECOMMENDATION 8
‘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.
RECOMMENDATION 9
The principles of risk management should:
be identified in a part of the model Act setting out the fundamental principles applicable to the model Act;
while implied in the definition of reasonably practicable, not be expressly required to be applied as part of the qualifier of reasonably practicable; and
not be expressly required to be applied by the duties of care.
Note: The principles will be dealt with in our second report.
