ARGUMENTS IN FAVOUR OF AAS AND WHY THEY ARE UNCONVINCING

"That AAS will help a defendant deal with unjustified litigation"

This just does not make sense. If the document can be used by a defendant to demonstrate that they have behaved responsibly, it can be used by the plaintiff to demonstrate that they haven't. It all depends on whether the defendant can be shown to have complied. But that's just it, we don't want to comply. If a person is doing something they know is responsible, they shouldn't have to fear ending up in court having an arbitrary set of rules being used to 'prove' that they have not been responsible. It would be good if this document could demonstrate that any person who has behaved responsibly was indeed responsible. The problem is that it won't. It will throw in a wild card because few responsible walkers will take arbitrary and inappropriate measures simply because they are in the document.

Consider also the case of Howell v State Rail Authority of NSW. It seems that the High Court held that the defendant's failure to take a particular course of action would be considered to have been harmful despite advice to the contrary. The reason being that the defendant had expressed the importance of the omitted procedure in its internal guidelines. This was taken as proof that the omission was harmful. Consult a lawyer if you want a definitive interpretation.

"The AAS will save court costs"

So following on from above, the AAS is going to mean at best that a patently inappropriate document will appear, fool no-one and be followed by the usual expert witnesses. At worst, it will have some authority and support one side or the other. The less fortunate side will get in the usual expert witnesses to discredit the document and the other will have to respond. So, at worst it will be like having one more expert witness, one which we will serve one side or the other, but we don't know which.

We should acknowledge that we do not bring professional expertise to this particular matter, but as long as we are just responding to a layman's argument in favour of the AAS, we'll go with our own judgement and you should be happy to go with yours. The glaring absence of expert opinion on this and other matters is something we deal with later in this article.

"That AAS will improve safety in the bush"

Unlikely. There are ample reference materials readily available on all these subjects. They have been published over decades by people who have put years of work into them. They are variously brief and punchy or expansive and discursive. Most of all they are rarely arbitrary and that is what makes them so effective. In fact, they differ. They differ in small ways because there is no one true way of doing things. They differ, without being wrong. Readers have to work out the details themselves. This is a strength. There is so much available that the AAS won't add anything, (UNLESS they have some prospect of becoming MORE than just another advisory document - see "But the AAS is not a set of regulations"). Besides, most bushwalking is not dangerous. We don't have statistics, but you can make a guess at them yourself.

Earlier, we wrote that we all make compromises between safety and practicality and you can already hear the response that this kind of compromise is all that AAS asks. Our view is that we have a comfortable compromise already.

"That opponents of AAS are against safety"

No, we want safety, but we can see a balance between striving for bomb-proof safety in a basically safe world. and the creating impediments to activity.

More than that, let's not lose sight of the fact that these are supposed to be adventure activities. If there is no risk left, they become at best, illusions‑of‑adventure activities. There are lots of provisos to put on that point of course. We don't want recreational activities imposing a massive impost on the public purse through search and rescue. And we certainly don't want leaders of any kind tricking their companions about the level of risk they are taking on. But we should not lose sight of the fact that some people want to take on low level risk. Of course we don't advocate that they should be permitted to take on risk under cover of an insured organisation whose insurer has a different view of what they are up to. To this degree, if a club wants insurance, its members might have to comply to some code. But it should only be one that reflects an approach to risk that will limit risk to a level acceptable to the insurer and without redundancy.

"But the AAS is not a code of conduct"

No-one seems to know what they are, but the way they are turning out is that they are an industry code of conduct. That's an observation, not a definition or a point of principle.

"But the AAS is not a set of regulations"

Not yet. But most industry codes of conduct become regulations. In fact, they become conditions of Parks Victoria licenses as soon as each document is published . And the Department of Education and Training requires schools to follow them. This policy applies in advance of the documents' existence ie, schools are directed to comply as soon as the AAS documents come into existence, presumably without regard to quality.

Side issue: Note that every AAS contains a definition of the activity. Most of us would initially be comfortable with that. Superficially it seems sensible. But wait! It's not sensible at all if these are only 'voluntary guidelines' (to use yet another definition that is in the documents). In regard to bushwalking in particular, thinking up a definition was problematic at every stage. This is because every reader knows what is meant by the term, and the 'standards' were written with that meaning in mind. But try capturing that meaning in a form of words - impossible. So, ironically, we all know what the document is meant to apply to if there is no definition. But put any definition in and it creates havoc.

The reason you have a definition in a legal document - which is really where we all picked up the idea that there has to be one - is so that there can be as little doubt as possible whether it applies or not, and you might often sacrifice common sense around the edges in order to achieve this.

VicWalk asked for the definition to be removed in order to make the applicability clearer and to prevent it capturing innocent bystanders, so to speak. There should be no harm in this if there is truly no intention to use AA ‑ Bushwalking in any sense as a legal document - if the AAS is to remain truly voluntary. If it's voluntary, then if you think they apply and you want to follow them, you do. If you don't think they should apply, that's it. That's a voluntary guideline! But the request was refused without explanation.

"But the AAS is a set of Standards"

Whatever it is, is it not a set of standards. It can't be no-one would want them to be because that would be unworkable. We won't try to justify this judgment. A few minutes reading will confirm. Opinion? Guidelines? Maybe. Not standards.

"AAS will just reflect existing legal obligations."

The AAS process has proved to be deeply flawed in establishing this standard. For many months the ORC (representing SRV) insisted doggedly that the 'final draft' expressed this legal standard of care and so could not be made less onerous. After six months, thankfully it gave in to VicWalk's pressure and released Draft 4. Draft 4 is vastly less onerous than the 'final draft'.

So was the ORC wrong all along about the legal standard of care? Or is it about to publish a document that gives profoundly irresponsible guidance, just to satisfy VicWalk? Almost certainly the former. Yet this was not a simple oversight or misjudgement. This was a position established over six months of drafting and held doggedly for another six months after that.

"It is going to happen anyway, whether you like it or not, so you might as well go along with it"

Some, possibly many, organisations have given in to this argument. It is certainly the easy option in the short term. The history of human society is punctuated with horrors that could only have occurred because there were people who accepted this line. This won't be one of those history making horrors of course, but that's no reason to give in to that kind of argument.

But while we are on this topic, let's think about the people who have previously ignored this advice, people who can't accept reality: Kate Baillieu, who just wouldn't accept that Point Nepean would be subdivided; Bob Brown, who couldn't understand why the the Franklin had to be dammed; Winston Churchill, Oskar Schindler, Douglas Macarthur, Hose Ramos Horta, Xanana Gusmoa, Charles DeGaulle, Joan of Arc, etcetc etc etc, etcetc etcetc…

"If you want any say at all, you will have to work within the system."

This is more the kind of argument we get from our own. But if we're being made to feel this way, this is not community consultation. This is coercion. Anyway, which system? Just the ORC's home-made system of coercion. Nothing sacred. We're not talking the very underpinning of civilisation here. If we work within this system, we are tinkering at best. It is the system we need to fix.

"The AAS will never get into regulation"

It already is a condition of Parks Victoria licensing for commercial operators in parks.

In relation to the prospect of these misconceptions (our term) making their way into regulation in relation to the rest of us, the ORC has advanced two arguments:
Over our dead bodies. We're told they won't let it happen. Great. So we have to rely on a set of policy documents, the full meaning of which is apparent only in consultation with current officers of the ORC. What kind of policy is that?
It would never happen because the public would not stand for it. Well we are some of many members of the public not standing for the AAS. That doesn't seem to be working so far. Really this response is an appeal to leave the problem to someone else at a later date. This is not a socially responsible stance. But why don't the ORC or SRV who have control of the project now take simple measures to anticipate that, instead of suggesting that we will be protected from the AAS by our own outrage at a later date?

"You [the outdoor sports community] should show leadership and set an example."

I beg your pardon? There has been plenty of that up till now. A set of "standards" is going to change that one way or the other. But supporting the AAS, that is, following a flawed process, is not an example of leadership and is not setting high standards. Further, it is one thing to set "high standards" (by which we apparently we mean unnecessarily onerous precautions) but to impose those standards on other people is a curtailment of other people's freedoms.

"You are not stakeholders"

This is a democracy in the Westminster tradition. We are indeed all stakeholders if we believe we have a personal stake. In discussions throughout this process, we have discovered a frighteningly common misunderstanding amongst our friends, in the ORC and presumably in SRV: that a stakeholder in a process of public consultation is someone who is invited. For example, the ORC has made it known that it does not accept VicWalk, the largest peak body representing ski‑tourers in Victoria, as a stakeholder in the AAS – Snow (non-resort). And many people accepted this decision until the absurdity of it was pointed out to them

"It's done. The decision has been made. Why not just accept it?"

Because it's wrong.

"The AAS process has been completed. You should have done something earlier"

As individuals in other forums we have been trying since January 2004. As the group that became Adventure Victoria, we have been trying since June when SRV and ORC made this claim. Strange, because the project has still not been completed.

In any case, all stakeholders have a right to protest against poor public policy, even once it is in place. But we made strenuous efforts to get the publication of the final batch of AAS documents postponed in the hope of getting the process revised in the manner suggested earlier on this site.

We made these representations to the Minister and to SRV in time for publication to be pulled with minimum embarrassment. We made it clear that our intention was to be constructive.

Also, we made SRV and the Minister's office aware of ongoing concerns ahead of publication. So our ongoing urgings are not "after the fact".

We also made it clear that, if SRV was unable to hold publication and to remedy problems with the process and the documents prior to publication, that the matter would still be pursued after publication, both here in Victoria and interstate. It was the view of both the Minister's office and the SRV that it would suit them to consider our concerns after publication. They were also aware that our concerns would be raised with other state ministers. Regrettable all round, but that aspect of the ongoing process was made very clear on both sides, so let's not be embarrassed about it.

"Only the bushwalkers have had any problem with it".

This is so persuasive and yet it is no argument at all.

Firstly, the assertion is false.

But, secondly, imagine that it were true. We see what we see. The surprise is that others don't see or don't care. A surprise. That's all. Not, unheard of.

"It might not be very good but it's better than nothing, which is what we had before."
and
"So what if they aren't right. They aren't compulsory."

That's like Jesus Christ saying, "The concept of the Holy Trinity makes no sense whatsoever, but hey, it's better than nothing. And after all nobody is being forced to believe it. I'll think it through properly when I get back from Easter."  It's not a bad approach to drafting something, but a terrible approach to publishing Government-endorsed quasi-policy. Another way of looking at it is that it's like getting half your clothes on in the morning and saying, "Running late. Best get to work now. Half naked is better than late."

"The ORC management are busy people, making time for this project in an honorary capacity to achieve something for the community."

Answer 1: This argument could scarcely be more irritating. We are busy too and we wish we didn't feel the need to be involved.

Answer 2: If the ORC were just in the business of producing bad pottery or something, we'd just say no thanks and leave it at that. But they are writing public policy (arguably quasi public policy). This affects us all whether we want to 'buy' it or not. It's our business, they've made it our business, and they have to be ready to put in the time if the community wants to have an influence.

Answer 3: The project doesn't need to have anything to do with the ORC. It is SRV's project. If they need to get a professional consultancy to sort it out because the ORC are too busy, so be it. If they need to drop the idea because the ORC is too busy to sort it out, that also is a lesser evil.

"The SRV has no further funding for this project."

Not our problem. Our problem is that the project as it is being implemented is a threat to the community's reasonable freedoms. That's a far greater issue for us. If it requires more funding from SRV, so be it. If funding is a problem, the project should be dropped until it can be done properly.

Footnotes
[1]
Particularly so because of the efforts of the bushwalking community over the last few decades.
[2]As it happens, VicWalk did not contest this because it did not have the volunteer resources left after it had expended them in AAS - Bushwalking.



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