20 November, 2018
The Mines Legislation (Resources Safety) Amendment Act 2018 (Qld) amends Queensland's mine safety legislation to introduce a number of significant reforms that will impact businesses in the mining and quarrying industries.
What you need to know
On 31 October 2018, the Queensland Parliament passed the Mines Legislation (Resources Safety) Amendment Act 2018 (Qld), introducing important reforms, including up to a 3-fold increase in maximum penalties for offences under the Coal Mining Safety and Health Act 1999 (Qld) and the Mining and Quarrying Safety and Health Act 1999 (Qld) (Acts).
The changes will see a significant increase in the maximum penalties under the Acts.
Corporations may also be exposed to new civil penalties for contraventions of a civil penalty obligation under the Acts.
The chief executive of the Queensland Department of Natural Resources, Mines and Energy will be conferred a power to suspend or cancel a certificate of competency or a senior site executive notice.
There will be increased requirements on a mine's safety health management system.
The changes also impose more onerous obligations on contractors and service providers at mines.
There is a new positive duty on officers of a corporation to exercise due diligence to ensure the corporation complies with its obligation under the Acts.
What you need to do
You will need to understand the amendments introduced by the Mines Legislation (Resources Safety) Amendment Act 2018 as they apply to your business, and take steps to ensure ongoing compliance.
In particular, officers of a corporation will need to be aware that they must exercise due diligence to ensure that they are satisfied that the company is meeting its obligations under the mine safety laws.
Background
On 31 October 2018, the Mines Legislation (Resources Safety) Amendment Act 2018 was passed by the Queensland Parliament, which will introduce important amendments to the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act) and the Mining and Quarrying Safety and Health Act 1999 (Qld) (MQSH Act) (together, the Acts). The amendments will take effect on assent from the Governor, except for some amendments to the CMSH Act about requirements for ventilation officers which we discuss further below.
With the main objective of ensuring mining safety and health legislation remains "effective and contemporary" to protect mine and quarry workers from harm, the amendments address 15 matters. The key reforms include:
- up to a 3-fold increase in the maximum penalties under the Acts following a successful prosecution;
- a new civil penalty regime that would allow the chief executive of the Queensland Department of Natural Resources, Mines and Energy (DNRME) to impose civil penalties on certain corporations without having to commence a prosecution;
- new powers for the chief executive of the DNRME to suspend or cancel certificates of competency and senior site executive notices;
- additional entry powers for inspectors of mines;
- new obligations on officers of corporations;
- new site senior executive (SSE) and ventilation officer competencies; and
- more onerous obligations on contractors and service providers at mines.
New maximum penalties for prosecutions
The maximum penalties under the Acts following a successful prosecution will increase:
- from $1,305,500 to $3,916,500 for a corporation;
- from $261,100 or 3 years' imprisonment to $783,300 or 3 years' imprisonment for officers; and
- from $261,100 or 3 years' imprisonment to $391,650 or 3 years' imprisonment for other individuals.
The penalty regime under the Acts will continue to be different to that under the Work Health and Safety Act 2011 (Qld) (WHS Act).
For example, the current maximum penalties under the WHS Act (other than for industrial manslaughter) are $3 million for a corporation, $600,000 or 5 years' imprisonment for officers, and $300,000 or 5 years' imprisonment for other individuals. However, those maximum penalties are expected to increase following the review of the model WHS Act that is currently taking place.
A further difference is that under the Acts, imprisonment is a possibility under each category of offence. Under the WHS Act, imprisonment is only a possibility for industrial manslaughter or an offence involving recklessness.
New civil penalty regime for operators and contractors
The amendments will introduce a new regime for the chief executive of the DNRME to issue civil penalty notices against certain corporations. The regime will apply to a corporation which is a coal mine operator under the CMSH Act, an operator under the MQSH Act or a contractor. As discussed later, currently there is no definition of the term "contractor" contained in the Acts.
The maximum civil penalty notice that could be imposed on a corporation is $130,550.
The new civil penalty regime would allow the DNRME to impose civil penalties, without commencing court proceedings, if either the corporation or a representative of the corporation contravenes a "civil penalty obligation" under the Acts. The new schedule 7A of the Coal Mining Safety and Health Regulation 2017(Qld) and schedule 5A of the Mining and Quarrying Safety and Health Regulation 2017 (Qld) set out the civil penalty obligations, which generally cover matters such as the obligations to develop a safety and health management system (SHMS), most incident notification obligations and, in relation to the CMSH Act, obligations in relation to respirable dust levels.
The effect will be that the DNRME would conduct the investigation into the alleged contravention, decide whether a contravention had in fact occurred, and if so, then decide what penalty to impose.
It will be interesting to see whether the DNRME uses this power in substitution for its existing practice of holding compliance meetings.
It is important to note that:
- a corporation could be liable for a civil penalty even where it has not breached any of its own obligations under the Acts. All that will be required is that an officer, employee or agent of the corporation (such as a site senior executive or ventilation officer) has breached their own obligation and that obligation is also identified as a civil penalty provision;
- a civil penalty may be imposed by way of a penalty notice, without any hearing. However, there would be an opportunity for a corporation to make a written submission about a "proposed penalty notice" before the civil penalty notice is finalised. Corporations may be given as little as 14 days to prepare their written submission, including all supporting evidence;
- there will be a limited right of appeal to the Industrial Magistrates Court after a penalty notice has been imposed. While the appeal would be by way of a rehearing, the Industrial Court must not take into account information that was not available to the chief executive in making the decision to impose the civil penalty;
- a civil penalty notice could be issued even where a prosecution for an offence for the same breach has failed. This will provide a fall-back mechanism for the DNRME to pursue corporations should they successfully defend themselves against a prosecution for an offence in court;
- further, a prosecution for an offence against the Acts can occur even where a civil penalty has already been imposed for the same breach.
Inspector's rights of entry
The mines inspectorate will now be able to enter any place that is, or the inspector reasonably believes, is a workplace (as defined in the WHS Act), including off-mine site workplaces, without permission or a warrant.
Previously, the right of the mines inspector to enter a workplace was limited to workplaces under the control of a person who had an obligation under the Acts and which was open for business or otherwise open for entry.
Public statements
The power of the Minister, chief executive, commissioner or chief inspector to make public statements (and their associated civil immunity) has been expanded to include the making of public statements about investigations about accidents or high potential incidents. Previously this power was limited to "serious accidents". This reinforces the importance for competent, careful, accurate and evidence based DNRME investigations and investigation reports.
SSEs
Site senior executives (SSEs) will need to hold a site senior executive notice (SSE notice) in order to be appointed an SSE for all mines under the CMSH Act and for mines with more than 10 employees under the MQSH Act.
The transitional provisions for the CMSH Act provide that, if an existing SSE holds a notice issued by the board of examiners relating to their competency to perform the duties of a SSE for a mine that is in force when the amendments commence, that notice will be taken to be a SSE notice.
While there is no equivalent deeming provision under the MQSH Act, the requirement that a SSE have a SSE notice will not apply for a one year transitional period under the MQSH Act.
Future SSE notices may be issued by the board of examiners.
Ventilation officers
Under the CMSH Act, the underground mine manager for an underground coal mine will now be required to appoint another person as the ventilation officer.
To be appointed a ventilation officer a person will be required to hold a ventilation officer's certificate of competency.
The underground mine manager may assume the ventilation officer's duties in limited circumstances. This is where a ventilation officer is absent for no longer than 7 days, there is no other person who can assume the ventilation officer's duties during the absence and the manager holders a ventilation officer's certificate of competency.
The amendments to the CMSH Act introduce a three year transitional period in relation to the requirement to hold a ventilation officer's certificate of competency, with the transitional period commencing from a date to be fixed by proclamation. If, when the transitional period ends, a ventilation officer or acting ventilation officer of an underground coal mine does not hold the required certificate of competency, then their appointment ends immediately after the transitional period.
Under the MQSH Act, the underground mine manager for an underground mine may be able to assume the duties and responsibilities of a ventilation officer. The underground mine manager will be taken to have assumed the duties and responsibilities of the ventilation officer during an absence of no longer than 14 days.
New powers to suspend or cancel certificates of competency and SSE notices
The chief executive of the DNRME will have the ability to suspend or cancel a certificate of competency or SSE notice where:
- the holder has contravened a safety and health obligation under the relevant Act;
- the holder has committed a specified offence; or
- for certificate of competency holders, an equivalent certificate of competency that was issued to the holder in another state or territory has been suspended or cancelled.
A holder will have a right to respond by way of a written submission before the chief executive makes their decision to suspend or cancel a certificate of competency or SSE notice. There will also be an ability to appeal a suspension or cancellation decision to the Industrial Magistrates Court.
Further, the board of examiners may have regard to a previous suspension or cancellation of a certificate of competency or SSE notice when deciding whether to grant a certificate to the holder in the future.
Officer due diligence
There will now be a new positive duty on officers to exercise due diligence to ensure the corporation complies with its obligations under the Acts.
An "officer" of a corporation means an officer within the meaning of the Corporations Act 2001 (Cth). Therefore, the officer duty will now reflect the officer duty under the WHS Act. The existing officer duty only deemed officers guilty of an offence under the Acts where the corporation had also committed an offence against the Acts.
SHMS
Changes will be made to the definition of a SHMS for a mine, to reinforce that it is a "single" system and that it must provide for a "comprehensive and integrated system for the management of all aspects of risks to safety and health" in relation to the operation of mines and that it must be in place before coal mining operations start.
Contractors and service providers
The SSE's obligation to develop and implement a single SHMS for "all persons" at a mine now makes express reference to contractors and service providers.
The SSE will now be required to give a contractor and a service provider at the mine information in the SSE's possession about all relevant components of the mine's SHMS required by the contractor or service provider to allow them to identify risks arising in relation to their work at the mine, and to develop their respective safety and health management plans (SHMPs) for integration into the mine's single SHMS.
The management structure for a mine will be required to include the name of the person who is responsible for establishing and implementing a system for managing contractors and service providers at the mine.
The safety and health obligations of contractors and service providers will also be expanded to include obligations to comply with the relevant part of the SHMS, to ensure their work does not adversely affect any person, to ensure no work is undertaken by their workers until they have a compliant SHMP and their workers have been inducted and trained in the relevant hazards and risks of their work.
The amendments do not introduce a definition for "contractor". In the Second Reading Debate, Minister Lynham indicated that the Queensland Government intends to undergo consultation with the industry and unions to develop a definition for the term "contractor".
Upstream duty holders
There will be new obligations on designers, manufacturers, importers and suppliers of plant and substances to notify the chief inspector when they become aware of hazards or defects with supplied plant and substances that may create an unacceptable level of risk to users, and relevant modifications and controls. This complements the obligations on suppliers to notify coal mine operators, contractors or service providers to whom the supplier has supplied the substance of such hazards and defects.
Reportable diseases
The Acts will be amended to allow regulations to be made requiring persons to notify the mines inspectorate when they became aware of an occurrence of a reportable disease under the respective regulations of the Acts.
The explanatory memorandum indicates that this new obligation is contemplated to apply to persons such as medical practitioners.
For further information, please contact:
Vince Rogers, Partner, Ashurst
vince.rogers@ashurst.com
