Understanding how Australian pipeline and major hazard facility regulators conceptualise ‘reasonably practicable’

Abstract

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 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.