30 July, 2015
Key issues
- The Work Health and Safety (Resources) Bill (WHS(R) Bill) has been released in draft for public comment.
- It is proposed that the WHS(R) Bill will consolidate health and safety legislation for mining, petroleum and major hazard facilities.
- The draft is based on the ‘Model’ WHS legislation.
- The draft introduces some amendments to the Model that have the potential to expand the powers of the Department of Mines and Petroleum (DMP).
- The Government’s responses to the Parliamentary Inquiry into fly-in-fly-out work practices and mental health may impact on the content of the WHS(R) Bill.
- The timing for the introduction of the WHS(R) Bill remains unclear, but the DMP has indicated it is aiming for the legislation to commence on 1 January 2017. It also remains unclear if the WHS(R) Bill will progress through parliament together with the proposed new safety legislation for ‘general’ industry.
Proposed new safety legislation for the resources sector
The various options put forward by the WA DMP to consolidate mining, petroleum and major hazard facility safety legislation in WA have previously been the subject of a consultation process.This discussion has now progressed, with the DMP releasing for public comment a draft Bill that reflects its preferred position of a single Act to regulate the health and safety of persons at mining, petroleum and major hazard facility operations.
The ‘indicative structure’ of the WHS(R) Bill is based largely on the Model Work Health and Safety legislation that has been adopted in all jurisdictions with the exception of Victoria and Western Australia.
Last year, a draft Bill to regulate health and safety in ‘general’ industry in WA was also released for comment. However, it remains unclear if this legislation will be adopted and, if so, what changes may be made to the draft.
Notwithstanding this uncertainty, it is useful to explore the key changes that the WHS(R) Bill will implement.
What changes?
If introduced, the biggest change is that there will be one Act covering mining, petroleum and personal safety at major hazard facilities. This will replace:
- the Mines Safety and Inspection Act 1994 (WA),
- schedule 1 to the Petroleum Pipelines Act 1969 (WA),
- Schedule 5 to the Petroleum (Submerged Lands) Act 1982 (WA),
- Schedule 1 to the Petroleum and Geothermal Energy Resources Act 1967 (WA), and
- the Dangerous Goods (Major Hazard Facilities) Regulations 2007 (WA).
The potential simplification achieved by this is to be welcomed. However, as with all legislation the ‘devil is in the detail’. A lot is left unsaid in the draft WHS(R) Bill and the detailed provisions will be left for the Regulations which have not yet been released for public comment.
In addition to the simplification caused by the introduction of a single Act, other benefits are likely to include:
- the proposed legislation being less prescriptive when compared to the legislation it replaces;
- an alignment between the WHS(R) Bill and WHS legislation in other State (although, unfortunately not between the WHS(R) Bill and schedule 3 to the OPGGS Act which regulates health and safety at offshore facilities in Commonwealth waters),
- a reduction in the time that the DMP has to commence prosecution proceedings from 3 years to 2 years, and
- a ‘tidy up’ of jurisdictional issues which arise from when petroleum operations straddle onshore coastal waters and major hazard facilities.
- Some of the key issues to consider in the Bill are:
- whether it is clear on the risk management approaches used in the petroleum sector – the safety case regime – and the mining sector – the safety management system;
- the treatment of accommodation and whether duties are appropriately dealt with, especially in the context of the findings of the FIFO inquiry which made a number of recommendation on duties to workers using accommodation camps;
- the nature of the incidents that must be notified to the regulator and the way in which these incidents must be notified – noting that there are proposed expansions to these requirements when compared to the Model WHS legislation;
- additional powers of the DMP which include the ability to enter a wider range of premises and for an operator to provide assistance to an inspector to access a remote facility; and
- information publication provisions including the ability for a regulator to publicise information concerning its investigations under the Act.
There are also a number of features that are ‘common’ to the Model WHS Act and the proposed safety legislation for ‘general’ industry, but which will be new for the resources industry in WA. A key one being a personal proactive duty on ‘officers’ (as that term is defined in the Corporations Act) to exercise ‘due diligence’ to ensure that the business of which they are an officer complies with its obligations under the WHS(R) legislation.
Key takeaway
The key takeaway is that it is by no means a ‘done deal’ that WA will gain new safety legislation for the resources sector. However, now is the opportunity to have input into the debate on what that legislation looks like. The public comment period on the WHS(R) Bill is open until 14 August 2015.
For further information, please contact:
Anthony Longland, Partner, Herbert Smith Freehills
anthony.longland@hsf.com
