The Act and Regulation are interpreted, just as are the Standards.
Lawyers in safety know that precedent, case law and previous rulings give substance to the meaning of the Act, Regulation and Standards. Studying a safety diploma is not a law degree. Swaggering about in safety as an advisor, claiming some legal expertise and knowledge is delusional. This message is clear from our book and video series Risky Conversations, The Law, Social Psychology and Risk:
Let’s have a look at 4 examples of the subjectivity of the Law and Regulation and how they are interpreted:
Inductions
ALARP
Due Diligence and
Zero
Inductions
The Act and Regulation only require organisations to conduct an Induction. No detail of what such an induction should entail is prescribed. I have been on site on Tier One mining companies with 5-day inductions with over 1000 Powerpoint slides that are a complete and utter waste of time. No human can comprehend any of this. Such is the ignorance about bounded rationality and comprehension by the safety industry. The same applies to the mythology of Usability Mapping (https://safetyrisk.net/paperwork-and-usability-in-tackling-risk/).
I have also been on sites where a walkaround is considered sufficient.
There is no such thing as an expected Induction design. Most inductions I have experienced are not designed by Educators, involve no strategy of learning and focus entirely on a ‘data dump’ as if such ‘covers our obligations’ (covers our arse). It doesn’t.
Indeed, most of these inductions I have seen are counter-productive and create legal liability should something go wrong (https://vimeo.com/163499152).
ALARP
ALARP is intentionally non-prescriptive. It is not described in the ACT or Regulation what one must do in order to get risk to ‘as low as reasonably practicable’. It’s subjective, it is interpreted. One thing is for sure, this concept in the Act and Regulation does NOT expect the total elimination of risk! (https://vimeo.com/162637292). The language and expectation of ALARP is minimisation.
Some organisations assemble paperwork on everything with thousands of pages and hundreds of risk assessments and incomprehensible hazard registers and, others just cover off the essential 18 high risk tasks.
The truth is, Safety concocts mythologies according to its culture (which some demand we not talk about) and most of it is not necessary. Indeed, most of what Safety thinks is ‘required’, is not necessary according to legal expertise.
Due Diligence
The most common expression regarding Due Diligence in the Act and Regulation is qualified by the word ‘appropriate’. Anything that is deemed ‘appropriate’ leaves the judgement and subjectivity of interpretation up to the organisation. The word ‘appropriate’ is applied to three of the six components of Due Diligence as described in the Regulation. We have discussed this many times before: https://vimeo.com/162493843
Whenever Greg Smith and I conduct our 2-day Due Diligence Program (https://cllr.com.au/product/due-diligence-workshop-unit-13-elearning/) people are shocked about their misconceptions of the law (https://safetyrisk.net/proving-safety-a-book-review/). They are shocked about the amount of time and effort they put into their interpretation of safety, when none of it is ‘required’. They are also surprised about the subjectivity of the law and the courts. The reality is, all law is interpreted by the court. Safety people are not lawyers or experts in safety law.
If you want to engage Greg Smith and Dr Long for the 2-day Due Diligence Program you can make contact here: robertlong2@mac.com
The Due Diligence program describes the real nature of the law and risk, and provides practical and positive alternatives for what is currently being trusted yet doesn’t provide legal assurance.
The Program is practical and positive, providing constructive alternatives to what is currently trusted but doesn’t work.
People who attend receive a free copy of Greg and Dr Long’s latest books.
Zero
There is no expectation or demand in the Act or Regulation for the total elimination of risk or for the total elimination of injury/harm. This mythology of zero has been concocted by Safety and is not real. It is a delusion (https://www.humandymensions.com/product/zero-the-great-safety-delusion/). The law and regulation does not expect perfection of organisations and leaders.
The demand for counting injury rates and defining safety by the absence of injury is what Safety has made up. This all can be traced back to the nonsense of Heinrich, who made up injury rate pyramids and dominoes from his fictional imagination (https://safetyrisk.net/deconstructing-the-myth-of-heinrich/). Anyone with any expertise in History and Mythology knows that this book belongs in the Fiction section of a library. One doesn’t get expertise in Historiography and Mythology by studying Chemical Engineering. BTW is you want a copy of this 1931 fairy tale email me for a copy (robertlong2@mac.com).
The language of zero appears nowhere in any document that deals with the law in safety. Indeed, the use of such language in any organisational documentation creates legal liability that a court will hold to you (https://vimeo.com/163499152 ), should something go wrong.
Interpretation
We learn from Ricoeur (https://safetyrisk.net/understanding-ricoeur-and-risk/) that all things are interpreted according to one’s worldview. If one’s worldview is Behaviourist or Positivist, this is how one interprets the law. Most of what is regurgitated throughout safety in journals, conferences and magazines comes from these worldviews.
Just because one view is normalised in safety doesn’t mean this is the view of the courts or legal counsel. One is most unlikely to find a legal view that is Deontological as is common in safety in the court system. One is more likely to find the courts with a Rawlsian view (https://iep.utm.edu/rawls/) of risk and law.
There is no such thing as an independent or neutral interpretation of the law and regulation regarding safety. This is why in SPoR we use the work of Ricouer to help us understand hermeneutics and own our ethical orientation.
Owning one’s interpretation-worldview and, being transparent about that view, is essential if one is going to be ethical in safety. One thing is for sure, the safety industry rarely discloses its agenda or Methodology, it rarely is transparent about its worldview and ideology indeed, it has great distain for any study of philosophy. This is one of its cultural characteristics and is as easy as going to the AIHS BoK and seeking out any statement of philosophy, its not there, even in the Chapter on non-Ethics.
If you are interested in being positive and transparent about one’s philosophy of safety, this is assisted by the Workshop on Due Diligence.
PhD., MEd., MOH., BEd., BTh., Dip T., Dip Min., Cert IV TAA, MRMIA
Rob is the founder of Human Dymensions and has extensive experience, qualifications and expertise across a range of sectors including government, education, corporate, industry and community sectors over 30 years. Rob has worked at all levels of the education and training sector including serving on various post graduate executive, post graduate supervision, post graduate course design and implementation programs.
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