The Mines Safety and Inspection Amendment Act 2008,
assented to on 16 April 2008, has introduced some structural
changes to the Mines Safety Inspection Act 1994 (WA)
(Act). This includes expanding the scope of
the Occupational Health and Safety Tribunal
(Tribunal), removing any doubt about the civil
liability of elected safety and health representatives
(SHR) when performing their duties, and
responding to the increased exploration push in Western
Australia by clarifying the role and appointment of an
"exploration manager" under the Act.
The powers of the Tribunal have been expanded so that
"reviewable decisions" under the Act now include
those made by the State Mining Engineer, or their delegate
under the Mines Safety Inspection Regulations 1996
On receipt of a notice of a decision made by the State
Mining Engineer, the "principal employer" has 14 days
to request a review of the decision by the Tribunal. The
"principal employer" is bound to follow the original
decision made by the State Mining Engineer until the Tribunal
has delivered its decision (s102AA(6)).
SHRs are now immune from civil prosecution in the
performance of any of their duties under the Act, particularly
in relation to the issuing of Provisional Improvement Notices
(PINs) under Part 3, Division 4 of the Act. It
appears that the low numbers of PINS issued since they were
introduced into the Act has been partly attributed to
uncertainty about the SHRs' liability when issuing or
choosing not to issue a PIN.
"Exploration manager" is now a defined term under
the Act. Any appointment of an "exploration manager"
must now be notified in writing by the "principal
employer" to the senior inspector for the region
prior to any exploration operations being
performed on a tenement. Notwithstanding this change, the
"registered manager" may fulfil the exploration
manager's duties for exploration operations where the
operations are on tenements adjacent to existing mining
operations. Under the Act, it is no longer the owner of the
adjacent tenement, but the "principal employer" of
the adjacent tenement, that permits this appointment.
Where only exploration operations are being carried out on
the tenements and no "registered manager" is required
i.e. under the exclusion provided by s33(7) of the Act, the
"principal employer" must notify the senior inspector
of the region in writing of the appointed "exploration
manager" (s47(2)(a)) and the person responsible for the
management of exploration activity on the tenements who need
not be the '"exploration manager" (s47(2)(b))
e.g. a consulting field geologist, and the location, scope and
nature of the exploration operations (s47(3)).
The definition of "principal employer" has been
expanded to now include the person who has 'overall
control and supervision of the exploration operations at the
mine and the 'exploration manager'. The
"exploration manager" and others who may have the
requisite control over exploration activities on the tenements
become accountable for the principal employer's duties
under the Act e.g. s13 Duty of Care requirements. This is
despite the "exploration manager"' not being
appointed as the registered manager.
Finally, aesthetic drafting changes have been made to the
general penalty provisions for minor offences which have now
been included in the general penalty provisions of the Act.
These changes have been brought in as interim measures, as
the Act is currently undergoing a further review by
Commissioner Kenner who is taking into consideration the
objectives of the National Mines Safety Framework. As it
happens, this review is running parallel to the Federal
Government's push to "harmonise" safety
across Australia. The harmonisation process is in full swing
with the three person panel appointed (including Commissioner
Mayman from Western Australia) already undertaking
consultations throughout Australia on how best to harmonise the
plethora of State based safety laws.
A discussion paper on harmonisation is expected to be made
public by the end of May 2008 after which a consultation phase
will be entered into. For those in mining operations, it is
likely that a safety case regime (not dissimilar to that
applying in the oil and gas industry) will be part of the
We will keep you abreast of changes as they happen.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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