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  • R2A Due Diligence Engineers: Criminal manslaughter and how not to do it

    Nadine Cranenburgh



    Gaye Francis and Richard Robinson are the directors of R2A Due Diligence Engineers. Their next course on Criminal Manslaughter will be on 11 Nov 2021. For more resources see the R2A website.

    Could you explain what criminal manslaughter means?

    It is different to recklessness (which Queensland and ACT originally had in their legislation). Recklessness means that someone knew about conditions which made, or let a death happen. This was at play in the 2016 Dreamworld fatal accident. Dreamworld management knew that the rafts could flip when the water level was low. They relied on the operator to keep the water levels up when there were other precautions that could have been in place. This is partly what prompted the introduction of criminal manslaughter provisions in Queensland.

    Criminal manslaughter is based not just on what managers did know to prevent a fatal accident, but also what they should have known. This could pose problems for big organisations which have responsibilities spread over different departments if safety issues aren’t well communicated and resolved.

    For design engineers, this introduces an increased onus to put in place stringent safety measures which take into account all foreseeable circumstances. This could be at odds with developers’ preferences for the least expensive safety controls.

    So far, only Victoria, Queensland and WA have included criminal manslaughter provisions in their OHS and WHS legislation, although the recommendation is that all jurisdictions should follow suit. In these states, it carries up to a 20-plus year jail term for an individual. It’s worth noting that crimes are uninsurable.

    What do company directors need to know to prepare for the introduction of criminal manslaughter into OHS and WHS legislation?

    Criminal manslaughter provisions will make due diligence a statutory duty. Practically, this means demonstrating that hazards have been eliminated or reduced so far as is reasonably practicable.

    While directors may not be on the ground when a fatal incident happens, criminal manslaughter legislation means that they could be convicted anyway. One way that organisations can prepare is by ensuring their directors understand the reasonable technical and practical considerations needed to prevent fatalities.

    For example, boards could include more technical directors, and all directors should go on-site to familiarise themselves with working conditions for operators and maintainers. If they don’t go and have a look, they can’t understand the hazards employees are exposed to. Boards need to have the technical savvy to ask the right questions to demonstrate due diligence. We often use the line: ‘You can’t always be right, but you can always be diligent.’

    Governance processes are also important. The current OHS and WHS legislation requires consultation. This consultation will need to be across the whole organisation – from on-ground staff to executives. Everyone in the organisation needs to have a common understanding of the issues of concern, the key safety controls, and how the organisation will make sure these controls stay robust.

    How do the criminal manslaughter provisions in OHS and WHS legislation require engineers and organisations to move from hazard-based risk management to a precautionary approach?

    A hazard-based approach uses the principle of reducing risks to a target level (as low as reasonably practicable (ALARP)). This could be summarised by asking the question: ‘is the consequence bad enough that we have to do anything else?’

    For example, imagine a town below a dam. The dam was operated and maintained with recognised good practice, but it still broke and people died. In the investigation, it turned out that there was something the dam operator could have done in addition to all recognised good practice that would have stopped the dam breaking. Wouldn’t it be reasonable for the operator to do that to save lives? In due diligence, the target isn’t material, if more can reasonably be done, you do it.

    One action that could have been taken was using a monitoring technology from another industry. For example, the Australian-developed GroundProbe is used to monitor open-cut mine faces. If the mine face starts to move at all, an alarm goes off and everyone responds appropriately. We’ve recommended this technology for rockfalls in railway cuttings. This could be quite cost effective for certain kinds of dam, so why isn’t it used to monitor dam walls? The answer is probably that dam operators don’t know about the technology.

    How will your course help engineers and organisations prepare for the introduction of criminal manslaughter provisions?

    The course points out that the goal posts are always changing for reducing risk so far as is reasonably practicable (SFAIRP). You’re always asking: ‘what else can we do?’ What is reasonable often changes as time goes on and technology advances.

    For example, in the last 20 years, mining equipment operators have gone from being underground, to remote operation on the surface with fail-safes, then driving vehicles remotely from a centre nowhere near the site, eliminating fly-in, fly-out hazards as well.

    We outline safety due diligence theory and what’s behind it, then the difference between hazard-based (ALARP) and precautionary (SFAIRP) risk management.

    Most importantly, we walk participants through the safety due diligence process that we’ve found to work for a number of organisations:

    • Have a completeness check to make sure you’ve identified all of the safety issues of concern
    • Identify all the practical precautions
    • Determine which precautions are reasonable in the circumstances
    • Establish a quality control system to make sure the controls you put in place stay robust.
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    HI. I did this course yesterday  great course 

    The book titled "Criminal manslaughter and how not to do it: a practical guide for directors" was referenced. How can I get a copy of this text?

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