By Andrew Tobin (Partner), Damon King (Associate)
In recent times, the safety law reform agenda has been dominated by the national harmonisation of the OHS laws which apply generally across most industries. One could be forgiven for wondering what has happened to the implementation of the National Mine Safety Framework.
In this article, HopgoodGanim partner Andrew Tobin and associate Damon King outline recent developments in the mine safety law reform process, and how it is being shaped by the harmonisation of national OHS laws.
The National Mine Safety Framework is a collaborative federal and state government initiative established nearly 10 years ago to achieve a nationally-consistent OHS regime for the mining industry.
A steering group of representatives from industry groups, trade unions and various levels of government published an implementation report in October 2008, which recommended, among other things, the development of a recommended legislative framework for the various state governments to adopt, including recommendations for drafting instructions and example clauses.
The implementation report was updated in June 2009 after it was agreed that the steering group should collaborate with Safe Work Australia to implement the outcome of the national review into model OHS laws, so that the Framework could be aligned with the model OHS laws. A set of drafting instructions was endorsed in May 2010 under the Framework process, to be used by Safe Work Australia in the development of the core mining regulations intended to operate in conjunction with the model OHS laws.
Core and non-core mine safety laws
There have historically been three approaches to the regulation of mining safety in each of the state jurisdictions:
- Industry-specific OHS legislation and regulations, such as in Queensland and Western Australia.
- General OHS legislation with complementary industry specific OHS legislation, such as in NSW.
- General OHS legislation and regulations which contain mine specific provisions, such as those in Victoria, South Australia, Tasmania, ACT and the Northern Territory.
Even with participation in the national OHS laws harmonisation process, those jurisdictions with mining industry-specific legislation intend to retain their present laws for high risk mining activities, such as laws regulating underground coal mining.
As part of the collaborative agreement between the steering group and Safe Work Australia, a working group of representatives from Queensland, NSW and Western Australia was tasked with developing non-core drafting instructions to achieve as much consistency as possible between the existing industry specific laws and the model OHS laws. The drafting instructions for these hybrid laws were finalised and endorsed in August 2011, but have not been publicly released for comment.
The non-core model regulations developed from these drafting instructions will be particularly important to the final outcome of the Framework process and the national harmonisation of OHS laws, given that the jurisdictions with industry-specific legislation account for 95 percent of national mining activity.
The jurisdictions without industry-specific legislation are expected to implement the model core regulations, which have already been finalised and released (available to download from http://www.safeworkaustralia.gov.au/Pages/default.aspx). It is unclear when this might happen in each jurisdiction, as legislation adopting the model OHS laws in their entirety (including the regulations) has not yet been passed, even though the laws were scheduled to come into effect from 1 January 2012.
Existing safety reforms relevant to the mining industry
A key element of the Framework, according to the implementation report, will be a requirement for those "persons conducting a mine business or undertaking" to adopt a safety and health management system to identify, mitigate and monitor hazards to safety. Not surprisingly, the steering group has said that for this approach to work in practice, effective consultation at the workplace level to identify and respond to hazards will be needed, as well as a genuine commitment at the managerial level to address safety issues.
The model core mine specific regulations and codes of practice released in the second half of 2011 appear to be a rather rushed attempt to implement the approach endorsed in the Framework, and have been the source of strident criticism by industry groups and trade unions alike. Following the public consultation process, Safe Work Australia seems to have taken this criticism on board, and has gone back to the drawing board to revise all of the mining specific codes of practice and other general codes of practice of importance to safety in the mining industry - for example, the Model Code of Practice on Preventing and Managing Fatigue in the Workplace.
Watch this space
The pace of reform to mine safety laws has previously been slow and laborious, although we have seen some frenzied and arguably ill considered regulatory activity in the past year with the development of the model core regulations and codes of practice.
2012 should see a range of important developments to the model codes of practice that Safe Work Australia is currently revising. We expect to see the non-core mine safety regulations finalised and published this year, as they are anticipated to come into effect from 1 January 2013.
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