The Situation: Following the deaths of eight miners at Queensland coal mines in the past two years, the Queensland Labor government has been under mounting pressure from the Construction, Forestry, Maritime, Mining and Energy Union (Australia's mining union) to introduce legislation to penalise unsafe practices in all mines.
The Result: The Queensland government has passed legislation introducing a new industrial manslaughter offence. Resource company executives and senior officers face a maximum of 20 years in jail for negligence in workers' deaths in the course of carrying out work at mines. Resource companies could receive fines of up to A$13.3 million for each death.
Looking Ahead: This new legislation precludes the use of defences normally afforded by section 23 of the Queensland Criminal Code for unforeseeable and unintentional acts. The removal of this defence may result in a greater number of successful prosecutions under safety legislation.
On 20 May 2020, the Queensland government passed the Mineral and Energy Resources and Other Legislation Amendment Act 2020 (Qld) ("Act"). The operation of the Act will commence on a date to be fixed by proclamation of the Queensland Governor-General.
The Act amends a number of acts, including the Coal Mining Safety and Health Act 1999 (Qld) ("CMSH Act") and the Mining and Quarrying Safety and Health Act 1999 (Qld) (together the "Resources Acts") and the Mineral Resources Act 1989 ("MRA Act") to give effect to three main principal policy objectives:
- safety and health―to strengthen the safety culture in the resources sector through the introduction of industrial manslaughter offence provisions and requiring that persons appointed to critical safety statutory roles for coal mining operations must be an employee of the coal mine operator;
- financial assurance―to implement legislative changes that support mine rehabilitation and financial assurance reforms that mitigate the financial risk to the State and improve rehabilitation outcomes for Queensland; and
- regulatory efficiency―to improve the administration and effectiveness of the regulatory framework applying for resource projects.
Safety and Health
The Act introduces the offence of industrial manslaughter into the Resources Acts. The offence will penalise the criminal negligence of resource companies and their executive and senior officers if negligence causes a workplace fatality.
The new industrial manslaughter rules apply to workers at all mines (including coal mines).
If a worker dies (either in the course of carrying out such work, or where death occurs after an injury received in the course of carrying out such work), then, if the resource company, its senior executives or its senior officers:
- engage in conduct that substantially contributes to that death; and
- are negligent in causing the death,
they will be guilty of industrial manslaughter.
The maximum penalty for an individual is 20 years' imprisonment and for a corporation is A$13.3 million.
The Act was passed with bipartisan support, but has not escaped criticism from industry.
The amendments introduced by the Act align the safety rules and penalties that apply to the resources sector with those that apply generally to workplaces in Queensland; however, the reach of this new offence goes significantly further by extending individual responsibility beyond just company executives.
The peak industry body, the Queensland Resources Council ("QRC"), took particular issue with the broad definition of 'senior officer'.
Employees holding statutory responsibilities the Resources Acts could potentially be exposed to the industrial manslaughter offence where they are not executives and therefore have limited capacity to control the company's financial and/or operating policies. These statutory officeholders are not traditionally seen as 'representing' the company. There is no equivalent concept of a statutory officeholder under Queensland's general workplace safety legislation.
A number of industry submissions on the Act (including by the QRC) argued against the exclusion of section 23 of the Queensland Criminal Code from the operation of the industrial manslaughter offence. This section provides a defence to criminal negligence for unforeseeable and unintentional acts (i.e., accidents). This defence is also excluded in the equivalent offence in the general workplace safety legislation. In the absence of this defence, the industrial manslaughter offence becomes one of strict liability. A harsh outcome given the maximum penalty of 20 years' imprisonment. Additionally, there is no 'due diligence' defence available where reasonable precautions were taken (although such actions could mitigate any penalty).
The Act also amends the CMSH Act to require that only persons who are employees of a coal mine operator may be appointed as statutory officers under the CMSH Act. It is quite common in the coal industry for a contractor or service provider, or an employee of a contractor or service provider, to act in these statutory roles. This amendment purports to ensure that statutory officeholders can make safety complaints, raise safety issues, or give help to an official in relation to a safety issue without fear of reprisal or impact on their employment. Industry commentary on this change suggests it will create considerable administrative burden on resource companies, potentially drive away experienced safety experts from the industry and fail to achieve the stated goal of a better safety culture.
The Act also amends Queensland's mine rehabilitation framework set out in the MRA Act.
In Queensland, mining companies are required to pay financial assurance (similar to environmental bonds), in the form of a security deposit held by the administering authority to ensure that mines comply with the rehabilitation conditions of their environmental authorities ("EA").
The amendments seek to strengthen the government's position in relation to changes in control of EA holding companies.
The Act gives effect to the Queensland Government Consultation Report: Abandoned Mines and Associated Risks by amendment to the financial assurance framework as follows:
- increasing scrutiny around the financial capability of a resource authority holder when there is a change in ownership ('change of control');
- increasing oversight of resource sites that enter care and maintenance by requiring significant mineral mining lease holders to submit plans on their proposed activities ('care and maintenance'); and
- broadening the government's authorised person powers for remediating an abandoned mine and abandoned operating plant sites to make them safe, durable, secure and enable productive land uses ('abandoned mines and abandoned operating plants').
The Act also introduces disqualification criteria against which applicants, transferees and associates of applicants and transferees may be assessed. The disqualification criteria are intended to increase the government's ability to conduct risk/default assessments on applicants.
Regulatory Efficiency of the Application Process for Resource Projects
The final major amendments made by the Act relate to the Queensland government's 2017 election commitment to improve the efficiency and timeliness of the resource authority approval process. The Act introduces the following mechanisms:
- creating a dispute resolution framework for overlapping tenure applications or activities;
- consolidating the conferencing provisions throughout the resource acts in the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld);
- allowing Petroleum Act 1923 (Qld) tenures to be amalgamated at the time they transition into the Petroleum and Gas (Production and Safety) Act 2004 (Qld);
- allowing petroleum leases to be counted for relinquishment requirements;
- requiring security to be paid prior to the grant of a mining lease;
- creating an explicit head of power for the Minister to decide 'excluded land' for exploration permits and mineral development licences under the Mineral Resources Act 1989 (Qld);
- allowing certain documents to be served electronically rather than in hard copy; and
- clarifying when a royalty return is not required to be provided with an application to transfer or surrender a mining claim or mining lease.
Three Key Takeaways
- The offence of industrial manslaughter has been introduced into the resources sector in Queensland.
- Resource company executives and senior officers should be aware that they face significant personal liability if their conduct substantially contributes to the death of a resources worker.
- Companies and individuals will not be able to rely on the defence of unintentional or unforeseen acts to escape liability. Further, there is no prescribed 'reasonable precautions' or 'due diligence' defence available.
Originally published 28 May, 2020
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