Ho, Phillip
Description
Transmission gas pipelines and major hazard facilities (MHF) have
a high potential to cause significant harm and are required to be
regulated by the safety case regime. The safety case regime
requires operators to submit a case, or argument to the regulator
demonstrating that all risks on site have been reduced to as low
as is reasonably practicable. Determining when risks have been
reduced to as low as is reasonably practicable involves weighing,
on the one...[Show more] hand, the likelihood of the risk, the degree of harm,
and what is known or ought to be known about the risk. This is
weighed against the availability and suitability of the measures,
what is known or ought to be known about removing or mitigating
the hazard, and the cost of eliminating the risk. Defining what
is ‘reasonably practicable’ is difficult due to the ongoing
evolution of risk knowledge and the changing risk profile.
The novelty of the thesis is presenting regulators’
perspectives of how they conceptualise reasonably practicable.
The regulators’ understanding of reasonable practicability is
compared to the courts’ interpretation as well as the
interpretive guidelines’ interpretation.
Twenty-five interviews with regulators were conducted across
Australian MHF and pipeline jurisdictions. Comparative analysis
of legislation and vignettes were also used as sources of data.
Vignettes are scenarios where the regulator was presented with
previously approved safety cases. They were asked to describe
what they were looking for in the safety case, why they approved
it, and to explain how the safety case demonstrated that risks
have been reduced so far as is reasonably practicable. There were
four significant findings from the research:
1) A comparative analysis between the pipeline legislation and
the ‘Model Work Health and Safety’ legislation reveals that
the pipeline legislation, in general, is deficient in key areas
including the general duty of care obligations, worker
consultation and safety case requirements.
2) The legislation is the major influence of how both pipeline
and MHF regulators conceptualise reasonable practicability. Most
pipeline legislation mandate operators to comply with the
Australian pipeline standard (AS 2885). Thus, the pipeline
regulators rely only on AS 2885 to guide decisions regarding
reasonable practicability.
The MHF regulators rely on the operators’ safety case to
determine whether the operator reduced risks to as low as is
reasonably practicable. This is attributed to the requirements of
the legislation, the complexity of the plant, and the
regulators’ fear of liability if they provide advice on safety
measures which may not be required.
3) I examine whether compliance with safety cases legally
establish that risks have been reduced so far as is reasonably
practicable. I demonstrate that the current methods used in
safety cases to demonstrate risks have been reduced so far as is
reasonably practicable fail to address all of the codified
principles of reasonable practicability. These methods include
quantitative risk assessment, layer of protection analysis, risk
matrices, cost benefit analysis, and goal structuring notation.
These tools focus on a combination of the likelihood of the risk,
the degree of harm, and the cost of eliminating the risk. These
tools do not prompt the operator or regulator to examine the
‘state of knowledge’ of what is reasonably practicable to
address to the risk, and what is known or ought to be known about
the risk. As such, these tools do not completely demonstrate the
legal requirements of demonstrating that risks are required to be
reduced so far as is reasonably practicable.
4) The determination of reasonable practicability is not
contingent on compliance with regulations or standards. It is
revealed through a series of court cases that compliance with
standards or regulations does not, without more, demonstrate that
risks have been reduced so far as is reasonably practicable. This
is explicitly stated within the interpretive guidelines of
reasonable practicability.
This thesis demonstrates that Australian MHF and pipeline
regulators’ conceptualisation of reasonable practicability is
inconsistent with the law. The regulators’ determination of
reasonable practicability relies on compliance with standards or
on the safety case submitted. These approaches do not
definitively address all of the codified principles of reasonable
practicability, in particular, the state of knowledge
requirements.
The thesis provides a number of significant proposals to improve
regulator practices as well as suggestions for legislative
reform.
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