2017 saw a range of safety law developments across Queensland, Western Australia and NSW, many of which will continue into 2018.
Queensland
Industrial Manslaughter
In October 2017, the Queensland Parliament amended the Work Health and Safety Act 2011 (Qld) to add new industrial manslaughter offences. The crime of industrial manslaughter applies to a “person conducting a business or undertaking” (PCBU), which includes a corporation, and to all “senior officers” of PCBUs. For corporate PCBUs, a senior officer is defined broadly (more broadly than an "officer" under the Qld WHS Act) as an individual who is concerned with, or who takes part in, the corporation’s management.
Industrial manslaughter occurs where the PCBU or a senior officer is negligent in causing the death of a worker. The maximum penalty is $10 million for a body corporate and 20 years’ imprisonment for a senior officer. While industrial manslaughter does not currently apply in the mining industry, the offence is expected to be inserted into Queensland mining safety laws in 2018, following consultation with industry. The offence may also be incorporated into the harmonised WHS laws in the other mining States, and applied to the mining industry in those States, depending on the outcome of Safe Work Australia’s review of the model WHS laws later this year.
While there have been no similar changes in NSW, investigations have been carried out into mining incidents where specific questions have been asked about directors and what they have done to satisfy their due diligence duties under the Work Health and Safety Act 2011 (NSW).
Section 27 of the NSW WHS Act and the Qld WHS Act requires an officer of a PCBU to exercise due diligence to ensure that the PCBU complies with its duties under the relevant Act. There are also obligations on the officers of body corporates in WA. Additionally, both the NSW WHS Act and the Qld WHS Act contain a very significant offence regarding reckless conduct (including by corporations and officers) that exposes an individual to a risk of death or serious injury or illness. This reckless conduct offence has a maximum penalty of $3 million for a body corporate and 5 years’ imprisonment for officers.
In all of the mining States it is essential for officers to stay alert and to review their due diligence systems because the regulators may ask to see them during their incident investigations.
Proposed Changes to Queensland's Mining Safety Laws
In September 2017, the Mines Legislation (Resources Safety) Amendment Bill 2017 was introduced into the Queensland Parliament. The Bill proposed to make significant amendments to the Coal Mining Safety and Health Act 1999 (Qld) and the Mining and Quarrying Safety and Health Act 1999 (Qld) (Acts). While the Bill subsequently lapsed as a result of the calling of the Queensland State Election in late 2017, with the return of the Queensland Labor Government there is every chance it will be re-introduced to the Queensland Parliament in 2018.
The Bill included these proposed amendments to the Acts:
- An increase in the maximum penalties under the Acts:
- from $1,261,500 to $3,784,500 for a corporation
- from $252,300 or 3 years’ imprisonment for an individual (including officers) to $756,900 and 3 years’ imprisonment for officers, and $378,450 and 3 years’ imprisonment for other individuals.
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- A new civil penalty regime that would apply to corporations only. The maximum civil penalty notice that could be imposed would be $126,150. A civil penalty notice could be issued even where a prosecution for an offence for the same breach has failed. Civil penalty notices would be issued by the chief executive of the Queensland Department of Natural Resources and Mines. There would be an opportunity to make a written submission before a civil penalty notice is finalised and limited rights of appeal would exist.
- Power for the chief executive of the Department of Natural Resources and Mines to suspend a person’s certificate of competency or a site senior executive’s qualification if the person has contravened a safety and health obligation or committed an offence against a corresponding law.
- An expansion of the safety and health obligations on contractors, service providers, manufacturers, importers and suppliers. It is also proposed that there would be additional detail inserted in the Acts regarding the process that must be followed when incorporating a contractor’s or a service provider’s safety system into the single safety and health management system for the mine.
- A new "officers’" duty would be inserted, consistent with the obligation to proactively exercise due diligence already contained in the WHS Act. The definition of “officer” used in the WHS Act (which refers to the Corporations Act 2001 (Cth)) would be used.
- The imposition of additional requirements about the competency and appointment of ventilation officers for underground mines, who is responsible in their absence and what the ventilation officer is responsible for.
Western Australia
In October 2017 the WA Government introduced legislation to amend the Mines Safety and Inspection Act 1994 (WA) and Occupational Safety and Health Act 1984 (WA) to substantially increase the penalties for offences in line with harmonised WHS legislation that applies elsewhere in Australia (other than Victoria), plus inflation. The WA Parliament was prorogued before the legislation passed through the Legislative Council. The Bills will need to be re-introduced to Parliament. The proposed legislation is summarised in our Safety Matters Alert.
The WA Government has also established a Ministerial Advisory Panel that is currently preparing a Work Health and Safety Bill to cover both general industries and resources (mining, petroleum and pipelines). This Bill is to be based on the model WHS Act with relevant industry regulations. The Government does not expect to introduce a Bill to Parliament until mid-2019. The model WHS Act contains some significant differences to the current WA laws, including obligations of due diligence for officers.
New South Wales
The NSW Department of Planning and Environment (Resources Regulator), in consultation with the Mine Safety Advisory Council and industry participants, has over the past 18 months been rolling out an Incident Prevention Strategy (IPS). The IPS follows recommendations from the Mine Safety Advisory Council Fatality Review and the NSW Government’s Quality Regulatory Services Initiative.
Under the IPS, the Resources Regulator has commenced conducting:
- a targeted assessment program (known as TAP) under which inspectors attend at a mine site and assess how effective an operation is when it comes to controlling a targeted critical risk (described as a proactive approach); and
- a targeted intervention program (known as TIP) under which inspectors will focus on the effectiveness of a mine’s controls for critical risks based on, for example, a series of events or a single significant incident such as a fatality, or a change in operational risk profile (described as a responsive approach).
The IPS generally involve three inspectors attending a mine site for three days and covering three disciplines (mining, electrical and mechanical).
A stated purpose of the IPS is to promote the open and transparent sharing of information throughout the industry and to improve hazard identification and risk management. The Resources Regulator also says that the IPS does not mean any change to its enforcement policy and that the Regulator "... will take enforcement action where necessary and appropriate".
It is important that proper protocols are put in place for personnel who may be required to answer questions, or produce documents or information, so that their (and the company’s) legal position is protected. This is important because the Resources Regulator’s IPS document does not rule out using information it obtains for enforcement purposes.
Authors: Trent Sebbens, Partner; Marie-Claire Foley, Partner; Brett Elgar, Counsel; and Cindy Lam, Graduate.
