Re: [SystemSafety] Another unbelievable failure (file system overflow)

From: Matthew Squair < >
Date: Mon, 8 Jun 2015 15:07:11 +1000


Yes, I believe there are fundamental differences. In part these arise because the Act also needs to navigate state rights in a federal system and in part there's a distinct philosophical difference in approach, where the Australian way is to be more prescriptive about what constitutes 'reasonably practical'.

As I read the UK legislation and COPs the Australian approach is much more prescriptive in terms of a defined process when compared to the UK. For example the regulations of the Australian WHS act define the process you need to follow, including a legal definition of a hierarchy of controls, which under the UK system falls into the codes of practice. So to the extent that the act and regulations prescribe you don't have leeway in demonstrating compliance through alternative processes. That means under the act that failing to follow the process (even if no accident occurs) is an statutory offence. There are problems with that approach, of course.

There are other elements that are different, for example the act introduces an offence called 'recklessness' that has a high penalty attached. That's where it can be shown that the duty holder knew about the hazard and did nothing when there remained reasonable and practical things that could be done. This is a problem for any decision based on risk, because the risk assessment provides the evidence of foreknowledge.

As background the Model Act was an attempt to harmonise the different state jurisdictions approaches (we're a federal system). As it was also a harmonisation instrument (in my opinion) the authors deliberately included a lot of 'due process' material to ensure that the states actually reviewed and agreed it in the act itself. Each state would then sign the model act into law in their jurisdiction and we end up with a harmonised federal approach. The joys of federalism I guess...

Matthew Squair

> On 7 Jun 2015, at 12:11 am, Martyn Thomas <martyn_at_xxxxxx >
> Is this fundamentally different from the Approved Codes of Practice that
> HSE publishes?
>
> "The Approved Code of Practice (ACOP) has special legal status and gives
> practical advice for all those involved in construction work. If you
> follow the advice in the ACOP you will be doing enough to comply with
> the law in respect of those specific matters on which it gives advice. "
>
> The benefit, of course, of goal-based regulation (such as the UK HSWA
> 1974) supplemented by ACOPs is that it does not inhibit innovation. If
> you devise a better way of carrying out an activity, you are not
> prevented from using it (as you may be under prescriptive regulation).
>
> Martyn
>
>
>
>> On 06/06/2015 02:41, Matthew Squair wrote:
>> I think that defining a due process in the legislation as the Act does
>> is something of a first, and I'm pretty sure it's going to have lots
>> of unintended consequences. Interesting days ahead.
>
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systemsafety_at_xxxxxx Received on Mon Jun 08 2015 - 07:07:26 CEST

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