Jurisdiction - Australia
News
Australia – Safety In Numbers: Proposed Changes To Mining Safety Legislation In New South Wales, Queensland And Western Australia.

25 February, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Energy & Project Finance

 

The governments of New South Wales, Queensland and Western Australia maintain that the model work health and safety legislation does not adequately provide for the specialist needs and working environments of their respective mining sectors.


As a consequence, each of these States has taken or is proposing a different approach to amending their mining safety legislation. The Commonwealth, South Australia, Tasmania and the Northern Territory have enacted core mine safety provisions as part of the broader national Work Health and Safety Regulations.

 

New South Wales


In New South Wales, the Work Health and Safety (Mines) Act 2013 (NSW) received assent on 1 July 2013, but will not commence until the Work Health and Safety (Mines) Regulations (NSW) (which are still being drafted) are enacted. The NSW Act will repeal the existing Coal Mine Health and Safety Act 2002 (NSW), Mine Health and Safety Act 2004 (NSW) and regulations made under those Acts. The WHS Mines Act is to be construed as if it formed part of the Work Health and Safety Act 2011 (NSW).


Queensland


The Queensland government released the Queensland’s Mine Safety Framework Consultation Regulatory Impact Statement on 11 September 2013. The Consultation Regulatory Impact Statement proposes various amendments to the existing Coal Mining Safety and Health Act 1999 (Qld) and the Mining and Quarrying Safety and Health Act 1999 (Qld). Submissions closed in mid- November 2013. A Decision Regulatory Impact Statement will be released by the Department in the first half of 2014. Any changes to Queensland mining safety laws are not likely to take effect until the second half of 2014. 

 

Western Australia


The Western Australian government has appointed a Ministerial Advisory Panel to report to the Minister on the progress of safety legislation reforms. The government intends to introduce a Workplace Health and Safety Resources Bill into Parliament in June this year, and to gazette regulations in March 2015, when it proposes that the legislation will become operational.


The WA Bill is intended to replace the existing Mines Safety and Inspection Act 1994 (WA) and to include major hazard facilities. The WA government is likely to adopt most of the model work health and safety legislation, and to remove some of the prescriptive content of the WHS model regulations to codes of practice. However, the specific content of the WA legislation remains unconfirmed.


As a second stage in the reform process, and after industry consultation, the WA government proposes to consolidate resources safety (mining and major hazard facilities) and petroleum safety laws. The intention is to maintain consistency with Commonwealth petroleum safety legislation.


The WA government proposes to issue Regulatory Impact Statements on the proposal of including the petroleum safety provisions in the WHS legislation, on the WHS (Resources) regulations, and finally on the detail of petroleum safety regulations.

 

Comparison Of Proposed Changes To Mining Safety Legislation


In the table below, we summarise the different approaches of each state and some proposed changes.


The table reflects the position under the current WA Act. The specific duties of persons appointed to statutory roles are still to be addressed via regulations.

 

  NSW Qld WA
Executive officers
  • WHS and mining safety laws operate concurrently with WHS Act
  • Officer duties in WHS Act apply

 

Proposal to make changes similar to NSW, eg:

  • Alter executive officer obligations to be consistent with WHS Act
  • Remove existing reverse onus of proof (to show executive officers were reasonably diligent or not in a position of influence)
  • Narrow definition of “officer” to be consistent with WHS Act and Corporations Act

 

  • No reverse onus of proof
  • No definition of “officer” (but likely to be similar to Corporations Act definition)

 

Statutory office holders

 

Specific duties of persons appointed to statutory roles will be dealt with under forthcoming regulations

 

Proposal to expand statutory positions to other roles at a mine so that the range of positions is comparable to NSW Specific duties set out in the Act
Powers of inspectors

 

Government officials under mining safety legislation are deemed to be inspectors under the WHS Act and have all the powers of inspection under the WHS Act

 

Proposal to make changes similar to NSW, eg extend right of entry powers of mine inspectors to match parts of WHS Act, eg power to enter any place reasonably suspected of being a “workplace” (ie broader than just mine sites) Mines inspectors only have the power to enter a mine site
Penalties and enforcement
  • Prosecutions are commenced and penalties imposed under WHS Act (ie maximum for a company – $3m maximum, for an officer – $600,000 or five years imprisonment or both)
  • WHS Mines Act will allow improvement notices, prohibition notices and stop work orders to be issued by a government official/regulator (in an extended way to the WHS Act)
Proposal to make changes similar to NSW, eg:

  • Increase penalties, to be consistent with penalties under WHS Act (eg maximum for a company increases to $3m and for an officer  to $600,000 or five years imprisonment (if recklessness involved))
  • Introduce additional sentencing options (eg adverse publicity orders, project orders and training orders)
Current maximum penalty (first offence):

  • For a company – $500,000
  • For an officer – $250,000 + 2 years imprisonment
  • No alternative sentencing options

The WA government is currently considering penalty levels

Limitation periods Prosecutions to be progressed under the WHS Act rather than the WHS Mines Act. Limitation period under WHS Act applies (2 years after offence first comes to the notice of the regulator, or 1 year after a coronial inquiry or report) Proposal to lengthen imitation period for proceedings for consistency with WHS Acts Under current WA Act the limitation period is 3 years after the offence was committed.

 

Ashurst Logo

 

For further information, please contact:

 

Marie-Claire Foley, Partner, Ashurst
marie-claire.foley@ashurst.com

 

Trent Sebbens, Ashurst

trent.sebbens@ashurst.com

 

Brad Mclean, Ashurst

brad.mclean@ashurst.com

 

Ashurst Energy & Project Finance Practice Profile in Australia

 

Homegrown Energy & Project Finance Law Firms in Australia

 

Comments are closed.