would probably still have formed the view that a contravention of the Australian Standards had occurred and issued the notice. The Tribunal has come to this view based on the importance that Mr Mason attached to the Acrow manual and to the Standards. Putting to one side the statutory issues, this view was open to Mr Mason on the evidence and the Tribunal does not find that it was an unreasonable position for him to have adopted. One concern the Tribunal has for the purpose of section 191(1) is with Mr assumption that a non-compliance with the Australian Standards or the Acrow manual necessarily gives rise to a risk to health and safety within the meaning of regulation 225(4). In the Tribunal’s view this is a non sequitur for the reason that a contravention may be minor and may be more than compensated by other safety features. Section 191(1) required Mr to form a reasonable belief that a contravention had occurred. To form that view he had to focus on one or more potential contraventions of the Act or Regulations and be satisfied that they had in fact occurred. He specifically focused on the one potential contravention, namely that of regulation 225(4); without specifically having indicated whether the non-compliances in question represented a risk to health and safety for the purposes of regulation 225(4). The respondent argued that Mr should be taken to have formed a negative view on the health and safety risk for the purposes of regulation 225(4) in that the risk to health and safety followed axiomatically from a non-compliance with the Acrow manual or from the Australian Standards. If Mr Mason did in fact think in this way, then his view was not a reasonable one. The Tribunal is however prepared to accept that Mr Mason formed his belief that there was a risk to health and safety to workers on the site as the result of seeing an incomplete scaffold and the obvious absence of bracing in several parts of the scaffold structure. It is not sufficient that there be just any level of risk to health and safety at all. Such would be the case for the most perfectly and complying structure. The Tribunal pressed the parties on the issue of the degree of risk
would probably still have formed the view that a contravention of the Australian Standards had occurred and issued the notice. The Tribunal has come to this view based on the importance that Mr Mason attached to the Acrow manual and to the Standards. Putting to one side the statutory issues, this view was open to Mr Mason on the evidence and the Tribunal does not find that it was an unreasonable position for him to have adopted. One concern the Tribunal has for the purpose of section 191(1) is with Mr assumption that a non-compliance with the Australian Standards or the Acrow manual necessarily gives rise to a risk to health and safety within the meaning of regulation 225(4). In the Tribunal’s view this is a non sequitur for the reason that a contravention may be minor and may be more than compensated by other safety features. Section 191(1) required Mr to form a reasonable belief that a contravention had occurred. To form that view he had to focus on one or more potential contraventions of the Act or Regulations and be satisfied that they had in fact occurred. He specifically focused on the one potential contravention, namely that of regulation 225(4); without specifically having indicated whether the non-compliances in question represented a risk to health and safety for the purposes of regulation 225(4). The respondent argued that Mr should be taken to have formed a negative view on the health and safety risk for the purposes of regulation 225(4) in that the risk to health and safety followed axiomatically from a non-compliance with the Acrow manual or from the Australian Standards. If Mr Mason did in fact think in this way, then his view was not a reasonable one. The Tribunal is however prepared to accept that Mr Mason formed his belief that there was a risk to health and safety to workers on the site as the result of seeing an incomplete scaffold and the obvious absence of bracing in several parts of the scaffold structure. It is not sufficient that there be just any level of risk to health and safety at all. Such would be the case for the most perfectly and complying structure. The Tribunal pressed the parties on the issue of the degree of risk
ROVERA-SCAFFOLDING-ACT-PTY-LTD-v-DIRECTOR-GENERAL-OF-THE-CHIEF-MINISTER,-TREASURY-And-ECONOMIC-DEVELOPMENT-DIRECTORATE-Administrative-Review-2016-ACAT-127.docx