Australia: Queensland mine safety developments: significant new Bill - response to CWP Committee report - and remade regulations

WHO SHOULD READ THIS

  • Mining industry stakeholders (including officers of obligation holders, contractors, service providers, manufacturers, designers of plant, importers and suppliers of plant or substances); coal port, coal transport and coal fired power station stakeholders.

THINGS YOU NEED TO KNOW

  • Significant changes to Queensland mining safety and health laws have been either introduced or revived following the tabling of the Mines Legislation (Resources Safety) Amendment Bill 2017.
  • ?The Queensland Government's recent response to the Coal Workers' Pneumoconiosis Select Committee's final report suggests that not all of the Committee's recommendations may be implemented.
  • In addition, the safety and health regulations for both the coal mining and mining and quarrying industries have been remade.

WHAT YOU NEED TO DO

  • Mining industry stakeholders need to understand and remain informed about the proposed changes so that, if the changes are made, steps to ensure ongoing compliance can be implemented.
  • Future action regarding the response to the CWP Committee will, in part, depend on further investigations being conducted and therefore it is uncertain as to when it will be known whether all of the recommendations will be implemented.
  • Regarding the remade regulations, references to the previous regulations in existing materials must be updated and, going forward, the remade regulations must be referred to.

Recent developments

September has been a busy month for reforms to safety laws in the Queensland resources sector. New legislation has been introduced which, if implemented, will significantly change the existing health and safety laws for mining operations. The Queensland Government has also provided its response to the final report from the Coal Workers' Pneumoconiosis Select Committee (CWP Committee) and the existing mining health and safety regulations have been remade.

Proposed changes to current resources safety laws

As noted in our 13 September 2013 Focus article, changes to implement harmonisation of Queensland's mining industry work health and safety laws were being strongly considered at that time, following the release of a Regulatory Impact Statement. Submissions were to be provided by 11 November 2013. Despite 246 responses being received, the process has been in hibernation since then. Some of the key proposed changes were recently awakened from hibernation when the Mines Legislation (Resources Safety) Amendment Bill 2017(Bill) was introduced on 7 September 2017. However, the Explanatory Notes confirm that the proposed changes about imposing civil penalties and empowering the chief executive to suspend or cancel statutory certificates or competences were only the subject of 'limited consultation' in August 2017.

15 areas of change are proposed by the Bill to the Coal Mining Safety and Health Act 1999 (Qld) (CMSHA) and the Mining and Quarrying Safety and Health Act 1999 (Qld) (MQSHA), with some of the more significant changes proposed being as follows:

  • Inspectors will be able to effect entry and exercise powers to workplaces that are not necessarily located on a mine site. This proposed amendment appears to address concerns that were raised in the Coronial Inquest into the death of Joshua Leslie Hopkinson, the findings for which were handed down on 19 October 2009. That Inquest, among other things, considered whether the investigation of this death was hampered because of the division of authority between the CMSHA and the then Workplace Health and Safety Act 1995 (Qld), in circumstances where the incident in question concerned a fatality that occurred in an off-site workshop where a nitrogen tensioning cylinder was being refurbished before being returned to the mine where it had been used.

    The Coroner in that matter relevantly recommended that the departments responsible for the administration of the legislation '...are clear as to who is responsible for any investigation and prosecution in relation to any accident relating to coal mining operations which occurs elsewhere than at a coal mine and that any legislative amendment be sought if thought necessary.'

    This proposed change therefore means that inspectors will have much broader entry powers than they currently enjoy and means that service providers to mines, regardless of where they are located, may be called upon to comply with investigation powers exercised by an inspector under the CMSHA or MQSHA. However, this change would not convert a service provider into a duty holder for the purposes of the mining safety laws where they were not previously caught.

  • Again following Coronial Inquest recommendations, there is a proposed amendment that will require designers of plant and manufacturers, importers and suppliers of plant or substances to notify the mines inspectorate and also mine operators where there are any identified hazards or defects with their supplied plant or substances that they become aware of.
  • Additional measures are proposed for contractors that exceed the current requirement to ensure that relevant statutory and safety and health management system (SHMS) requirements are complied with. The current requirement is proposed to be supplemented by requirements that include that no work is undertaken until the Site Senior Executive has been provided with the contractor's SHMS (which may be required to be changed to enable it to be integrated with the single SHMS for the mine) and all workers have been appropriately inducted and trained.
  • Existing penalties that may be imposed for breaches of the CMSHA or MQSHA will be increased to more closely align with those available for breaches of the Work Health and Safety Act 2011 (Qld) (WHSA), including for officers and individuals. The value of a penalty unit under the CMSHA and MQSHA is currently $126.15. The introduction of the proposed new penalties means that for the most serious offence (being a contravention causing multiple deaths), the maximum available penalty for a corporation will be 30,000 penalty units ($3,784,500); for an officer will be 6000 penalty units ($756,900) or three years imprisonment; and for a worker 3000 penalty units ($378,450) or three years imprisonment.
  • Another change linked to WHSA requirements will be to add a new category of duty holder, being each 'officer' of a corporation. Officers will owe a duty of 'due diligence' in the same way that duty is framed for officers of corporations under the WHSA. Relevantly, this duty requires positive steps to be taken by officers to ensure, to an appropriate level, health and safety measures are in place and that there is compliance with statutory health and safety requirements by their company.
  • In another change not supported by industry, there will be an ability for civil penalties of up to 1,000 penalty units ($126,000) to be imposed by the chief executive against mine operator companies or contractor companies for certain matters to be prescribed by regulation. The Minister commented when introducing the Bill that 'These two types of penalties will deter negligent decision-making which potentially results in serious injury or death'.
  • There will be an ability for certificates of competency to be suspended or cancelled following the holder contravening a safety or health obligation under the CMSHA or MQSHA, or where the holder has committed an offence against that legislation or equivalents in other states or territories. This change reflects similar changes introduced in Queensland for licensees in the construction industry.
  • Current exemptions for small opal or gemstone mines (having no more than 10 workers) needing to have a SHMS will cease to apply two years after the changes commence.

Additional changes proposed in the Bill would impact upon:

  • ventilation officer competencies
  • advisory committees and Board of Examiners membership
  • the register to be kept by the board of examiners
  • health surveillance
  • notification of diseases
  • release of information, and
  • continuing professional development.

There is a clear need for industry stakeholders to be aware of these proposed changes and to take appropriate steps to prepare for the prospect of them being introduced. The Bill has been referred to the Infrastructure, Planning and Natural Resources Committee (IPNR Committee) for consideration, such that there remains the prospect of additional changes. A further consideration will be the timing of further debate, noting that a Queensland state election being called might result in the Bill not going beyond the Committee stage.

The response to the CWP Committee Report

In our 29 May 2017 Focus article, we highlighted potential sweeping changes proposed by the final report of the CWP Committee. The Queensland Government in its response has stated 'in principle' support for many of the key recommendations, but with further consultation or investigation required on many recommendations.

A Mine Safety and Health Authority being established, separate from the Department of Natural Resources and Mines, appears to remain a distinct possibility. This could be achieved by locating this within the current Work Health and Safety Queensland portfolio.

There is also support for the intention to expand the Coal Mine Workers' Heath Scheme to cover all workers 'involved in the mining, handling, processing and transportation of coal', so as not to be limited strictly to 'mine' workers. There will be a range of complexities created by such a change and the Queensland Government is awaiting further advice from the CWP Committee's response to their extended terms of reference before responding further on this proposal.

There otherwise appears to be less enthusiasm for proposed changes to the existing Mines Inspectorates (including any proposed relocation to Mackay), advisory committees or to the Safety in Mines Testing and Research Station.

The use of royalties in place of the current safety and health levy is also to be further scrutinised, noting concerns about the ability for the regulator to plan an annual budget based on a volatile funding measure and the disproportionate burden this funding model this would create on metallurgical coal producers, which contribute the most royalties.

Any changes to respirable dust limits is supported by the Government, but provided this is done based on scientific evidence and noting that Safe Work Australia is currently undertaking a review. As such, regulatory changes in this space, including for measures to assist managing exposure through real time dust monitors, will be guided by the outcomes of further reporting.

The suggestion that half of all Mines Inspectorate inspections should be 'unannounced' was not strictly supported, noting that the Government response is that additional unannounced inspections are only supported where this is based on risk analysis. As such, further technical advice and support is being sought.

It therefore remains to be seen exactly what fruit the response to the CWP Committee's report will bear. The next stage will be the report to Parliament by the IPNR Committee following its inquiry into the CWP Committee's exposure draft of the Mine Safety and Health Authority Bill 2017. The IPNR Committee is due to provide its report by 5 October 2017. Otherwise, no further information may be available until the first quarter of 2018, noting that a project management office is to be established to undertake further consultation and produce implementation detail by that time. This of course assumes that any Queensland state election does not otherwise interrupt the process.

The remade regulations

The Coal Mining Safety and Health Regulation 2017 (Qld) and the Mining and Quarrying Safety and Health Regulation 2017 (Qld) replace the Coal Mining Safety and Health Regulation 2001 (Qld) and Mining and Quarrying Safety and Health Regulation 2001 (Qld) respectively.

Subordinate legislation expires 10 years after its making, unless a regulation is made exempting it from expiry. Both of the 2001 regulations were exempted from expiry since 2011 because of the ongoing review of mining safety and health laws. The exemption from expiry ended on 31 August 2017.

Rather than further delay any updates pending the completion of the ongoing review of mining safety and health laws, the regulations have been remade with changes that update references, correct errors, update drafting style and remove redundant transitional provisions.

As such, current references in materials will need to be changed to refer to the 2017 regulations, and the 2017 regulations will need to be consulted for future compliance purposes.

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