By Andrew Tobin, Partner and Troy Wild
Queensland's Department of Natural Resources and Mines has recently announced that it will not adopt the Model Work Health and Safety legislation for Queensland's mining sector "for the sake of administrative harmonisation". Instead, it wants to retain Queensland's current health and safety mining laws and complement those laws with provisions of the National Mine Safety Framework (NMSF) that improve safety and consistency.
Here, partner Andrew Tobin and solicitor Troy Wild outline the three options the Department of Natural Resources and Mines is considering to implement new mine safety legislation, and explains why the Department does not plan to adopt the national Model Work Health and Safety legislation.
- The Department of Natural Resources and Mines has released a discussion paper seeking stakeholder feedback, which outlines three options being considered to implement new mine safety legislation in the State.
- The first option, which is the Department's preferred option, is to retain the current Queensland legislation (the Coal Mining Safety and Health Act 1999 and the Mining and Quarrying Safety and Health Act 1999) for the coal and metalliferous sectors, and add NMSF provisions that improve safety and consistency.
- The second option is to have one single Act for the coal and metalliferous sectors, including any NMSF provisions that improve safety and consistency.
- The third option is to develop mine safety legislation primarily based on the Model Work Health and Safety legislation, plus any NMSF provisions that improve safety and consistency.
- The Department has called for feedback on its proposals outlined in the consultation paper by Monday 23 July 2012.
Existing Queensland legislation
The Department has announced that it is committed to the NMSF process and achieving greater consistency with other states in mine safety and health legislation. As such, "maintaining the status quo is not considered to be an option". The Department, however, has made it clear that any new legislation:
- must result in a clear improvement in safety outcomes, or at the very least no reduction in safety standards in Queensland; and
- must not impose any additional costs on either government or industry.
Queensland's current mine safety and health legislation, comprising the Coal Mining Safety and Health Act 1999 and the Mining and Quarrying Safety and Health Act 1999, was developed following a number of tragic mining disasters, with the 1994 Moura mining disaster which killed 11 men being the most influential.
Recommendations from the Moura Inquiry included the implementation of safety and health management systems based on detailed risk/hazard analysis. Queensland's current legislation is based on a risk management model requiring problems to be anticipated and controlled before they arise, with all those who might affect the safety and health of others at a mine required to achieve and maintain an acceptable level of risk.
Queensland's framework superior to the Model Work Health and Safety legislation
According to the discussion paper, features of Queensland's framework that are superior to the Model Work Health and Safety legislation's framework are:
- Focus on a systems approach: The risk-based safety and health management system includes specifically identified principal hazard management systems for each mining operation. Queensland's legislation combines the risk management and system requirements with an overall acceptable level of risk framework that is, according to the Department, clearer and more proactive than the Model Work Health and Safety legislation's "as far as reasonably practicable" framework.
- Vertical control of all activities on site: Queensland's legislation focuses on the importance of a single integrated safety and health management system for each mine, meaning that contractors who work periodically at a mine must follow a single system required of all workers at the mine, which is developed and implemented by the site senior executive. The Department maintains that this vertical control system is an important distinction from the Model Work Health and Safety legislation's person conducting a business or undertaking (PCBU) concept, which introduces a horizontal structure where multiple PCBU's may be in operation at the one site.
- Acceptable level of risk (a proactive approach): Queensland's legislation is based on a risk management model, integrated around the concept of an acceptable level of risk, which applies to all duty holders at a mine. According to the Department, risk management is not as clear or systematic under the Model Work Health and Safety legislation because it is subject to the "weighing up" of factors at a particular time under the legal concept of "as far as reasonably practicable".
- Cooperation requirements: Following the Moura Inquiry, the ideal of working jointly at a high level is emphasised in the current Queensland legislation. The Department proposes to maintain cooperation requirements in the new legislation.
- Workers' duties: Queensland's legislation has a duties section that places obligations on people at a worksite generally, including requiring all people to ensure, to the extent of the responsibilities and duties allocated, that the work activities under that person's control, supervision and leadership are conducted in a way that does not expose the person, or someone else, to an unacceptable level of risk. In contrast, under the Model Work Health and Safety legislation, there is a notional or extended idea of the PCBU through the "officer" concept, requiring the officer to exercise due diligence to ensure the PCBU complies.
- Site senior executive duties: In Queensland, operators must (regardless of size and business structure) appoint a site senior executive to each site to take individual responsibility and be accountable to manage the organisation's safety and health obligations. The Department proposes to retain this requirement in the new legislation.
While the Department prefers to retain the current Queensland mining legislation, with the inclusion of NMSF provisions that improve safety and consistency, it proposes to adopt the agreed non-core provisions, which support the Model Work Health and Safety legislation framework by providing additional mine safety regulation to the major mining states of Queensland, Western Australia and NSW. In addition, the Department will consider adopting the Model Work Health and Safety legislation's higher financial penalties and prison terms.
Implementation target date
The Department proposes to introduce legislation into Parliament in the last quarter of 2012, with the aim of implementing the new legislation by 31 December 2012.
Before finalising the new legislation, the Department will release a Regulatory Assessment Statement for public comment if the regulatory impact is regarded as significant.
Implementation of new legislation will involve a period of transition, to be decided in consultation with stakeholders, to allow industry time to comply with the new framework.
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