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CLAUSE NOTES
WORKPLACE HEALTH AND SAFETY
AMENDMENT (MINE SAFETY) BILL 2010
Section 1 Short title
This is a formal provision specifying the title of the
proposed Act as the Workplace Health and Safety
Amendment (Mine Safety) Act 2010.
The Act amends the Workplace Health and Safety Act
1995, by inserting a new Part to provide for
additional provisions to apply specifically to mine
safety. A small number of other amendments to
existing provisions of that Act, such as s.3
Interpretation, are made for the purposes of, arising
from or to ensure consistency with, the new Part.
Section 2 Commencement
This is a formal provision specifying the
commencement date of the Act, on a day to be
proclaimed.
It is intended that the amendment Act will come into
effect on the same day as regulations drafted to
support its provisions. Proposed regulations have
been drafted although not yet finalised. If possible, it
is proposed that the new legislation (Act and
regulations) will come into effect early in 2011.
Section 3 Principal Act
The Workplace Health and Safety Act 1995 is referred
to as the Principal Act throughout the Bill [and these
1
Clause Notes].
Section 4 Section 3 amended (Interpretation)
This clause of the Bill amends section 3
(Interpretation) of the Principal Act, primarily by
adding a small number of new definitions (to allow
for concepts in the new provisions).
The Bill inserts the following terms in the appropriate
alphabetical order:
(a) "atomic substance" which has the same meaning
as in the Mineral Resources Development Act 1995.
The term "atomic substance" is necessary for later
use in the definition of "mineral". The definition
refers to the meaning in the Mineral Resources
Development Act 1995 which is:
"(a) uranium; and
(b) thorium; and
(c) any other substance declared to be an atomic
substance under section 199";
(b) "dangerous substance location" which has the
same meaning as in the Dangerous Substances (Safe
Handling) Act 2005.
This term is used in proposed new section 32ZB to
deal with the situation where a mine is also a
"dangerous substance location" covered by the
Dangerous Substances (Safe Handling) Act 2005. The
definition in this Bill must therefore be aligned with
that Act.
2
Section 47(1) of the Dangerous Substances (Safe
Handling) Act 2005 states:
"(1) A place is a dangerous substances location
("DSL") if dangerous goods or combustible liquids
are, or are likely to be, handled at the place in a
greater than prescribed quantity.
(c) "fossick" which means to search for minerals for a
purpose other than for commercial gain to a depth of
2 metres by
(a) digging by hand; or
(b) using hand held instruments.
The term "fossick" is required as an exclusion to the
definition of "mining operation".
The definition has been drawn from the definition of
"fossick" in the Mineral Resources Development Act
1995.
"geothermal substance" which has the same
meaning as in the Mineral Resources Development Act
1995.
The term "geothermal substance" is used in the Bill
in the definition of mineral. Its meaning in the Mineral
Resources Development Act 1995. is:
"a substance occurring naturally or introduced
underground which is heated by the natural
processes of the earth to a temperature in excess
of 40° Celsius".
(d) "hours worked" which means hours worked
calculated in accordance with section 32D.
3
The concept of "hours worked" per month at a mine
is used to differentiate the application of some
provisions. The means for calculating it is specified in
the section in proposed new section 32D.
(e) "major hazard facility" which has the same
meaning as in the Dangerous Substances (Safe
Handling) Act 2005.
A definition of "major hazard facility" is included for
use of the term in a proposed new section 32ZB
which covers a situation where a mine is also a
"major hazard facility" under the Dangerous
Substances (Safe Handling) Act 2005. The definition in
this Bill must therefore be aligned with that Act.
Section 29(1) of the Dangerous Substances (Safe
Handling) Act 2005 states:
"A major hazard facility ("MHF") is a facility that
the Secretary classifies as a major hazard facility
under this Division".
"mine" which includes any place at, in, on or under
which mining operations are carried out.
This replaces the current definition of a "mine"
which, in part, refers to "any place at, in, on or under
which any operations or work are carried out on an area
of land which is subject to a mining lease in force under
Part 4 of the Mineral Resources Development Act 1995".
The change is proposed because a definition based on
work activity rather than on the presence or absence
of certain mineral rights over the land is more
consistent with the work-related focus of the
Principal Act. The new definition will also remove
some existing anomalies, for example a place where
4
mineral exploration is undertaken is a mine if it is
subject to a mining lease, but not otherwise.
Three definitions, "mine", "mineral" and "mining
operations" between them determine the scope of
the mine safety provisions which apply in relation to
a mine and/or mining operations and/or specified
persons at a mine, according to the context.
"mine holder" which means the holder of a mining
lease, sublease or mineral tenement relevant to the
mining operations, or if there is no such lease or
tenement, then the person for whose benefit the
mining operations are carried out.
The definition of "mine holder" takes account of the
fact that in some circumstances mining operations
may not be carried out on land subject to a relevant
mining lease or tenement.
By capturing mineral lease and tenement holders the
Bill covers part of a recommendations (regarding
coverage of mine safety legislation) made by Coroner
Donald Jones in his 2008 report into three deaths
which occurred in two accidents at Renison Tin Mine
in 2001 and 2003.
"mine operator" which means the entity or
individual appointed as, or taken to be, a mine
operator under section 32E.
Coverage of mine operators implements another
part of Coroner Jones' recommendations regarding
coverage of the new legislation. The mine operator
is the primary duty holder at a workplace under the
proposed provisions.
5
"mineral" which means a mineral within the
meaning of section 3AA.
The definition of mineral is needed in the definition
of "mining operations" in section 3AAB. The scope
or application of the mine safety provisions will be
influenced by the substance mined (in addition to the
definition of mining operations discussed earlier).
The substance mined is captured by the definition of
"mineral".
"mine worker" which means a worker who
performs mining operations at a mine.
Later provisions focus on workers and mine workers
rather than employees because of the varied nature
of the work arrangements in the industry.
"mining operations" which means mining
operations within the meaning of section 3AAB.
(f) "possible major hazard facility" which has the
same meaning as in the Dangerous Substances (Safe
Handling) Act 2005.
A definition of "possible major hazard facility" is
included for use of the term in a proposed new
section 32ZB which covers a situation where a mine
is also a "possible major hazard facility" under the
Dangerous Substances (Safe Handling) Act 2005. The
definition in this Bill must therefore be aligned with
that Act.
Section 29(2) of the Dangerous Substances (Safe
Handling) Act 2005 states:
"A possible major hazard facility ("PMHF") is either
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of the following:
(a) a facility where a dangerous substance is
handled in a greater than prescribed quantity;
(b) a facility that its occupier intends to use
for the handling of a dangerous substance in
a greater than prescribed quantity."
Section 5 Sections 3AA and 3AAB inserted
After section 3 of the Principal Act, the following
sections are inserted in Part 1.
Note that section numbers in section 5 of these
clause notes refer to new section numbers to be
inserted in the Principal Act.
Section Minerals
3AA
This section provides a detailed definition of mineral,
which is needed for the definition of "mining
operations" which in turn provides for much of the
scope for the proposed mine safety provisions.
Neither the common everyday meaning nor the
geological meaning would suffice because the former
lacks clarity about inclusions and exclusions and the
latter excludes many substances intended to be
included.
A specific definition of mineral is required to remove
doubt about what is covered.
Mineral is defined in this section as including::
o an inorganic substance;
o an atomic substance;
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o a geothermal substance;
o coal;
o oil;
o petroleum;
o gas;
o sand, rock, crushed stone, gravel or clay
produced or excavated for commercial
purposes;
o matter forming part of the crust of
o the earth
and excluding
o the subsoil; or
o the layer of soil sustaining vegetation; or
o water (except where it is a geothermal
substance)
The definition is similar to, but not exactly the same
as in the Mineral Resources Development Act 1995.
The definition is inclusive and it is unlikely that the
specific list misses anything commonly or technically
thought of as a mineral.
Section In brief, mining operations are defined in this
3AAB provision as including:
o exploration for minerals involving manual
(1) & disturbance of the ground;
(2) o the extraction or excavation of minerals, or
mineral containing material, from the ground;
o preparation and processing, extraction,
excavation and handling of specified material
and waste, construction operations and
maintenance and removal of plant and buildings
and the decommissioning, rehabilitation,
maintenance or repair of a place where
specified operations occurred, where the
activities mentioned are undertaken on the
8
same site, adjacent to, or as part of, a
continuous process of extraction.
Mining operations do not include fossicking or
activities associated with the production on private
land of rock, crushed stone, gravel, sand or clay for
the private, non-commercial use of the owner.
Subsection 3AAB(1)(e) allows the Director of
Industry Safety, having regard to the nature of the
work, risks or hazards involved, to declare any other
activity or operation as a mining operation. This is
intended to allow for future coverage of emerging
new activities (e.g. carbon sequestration) and/or non-
mining activities (not covered by the proposed
definitions) that use processes that are virtually
identical to processes utilised in mining (for example
tunnelling and dredging where the purpose is for, say,
construction rather than mineral extraction).
The flexibility provided by subsection 3AAB(1)(e) will
also allow any necessary additions, should they be
needed, to more closely align coverage with
proposed future national approaches to mine safety.
Early progress on proposals for nationally consistent
mine safety legislation was taken into account, as far
as possible, in the development of the definition of
mining operations.
(3) A declaration under subsection (1)(e) is not a
statutory rule for the purposes of the Rules Publication
Act 1953.
By stating this provision, the Bill makes it clear that
the requirements of the Rules Publication Act 1953 do
not apply to such a declaration made by the Director
9
under subsection (1)(e).
Section 6 Section 13 amended (Duties of self-employed
persons)
This clause makes a small technical amendment to
existing section 13 of the Principal Act. Section 13
deals with a self-employed person, which is defined in
existing section 3 in part as "a natural person...".
Given that a natural person cannot be a body
corporate, the penalty stated in section 13 to be a
penalty for a body corporate can never apply. This
provision deletes the penalty (in full) from section 13
and inserts a penalty of a fine not exceeding 500
penalty units, which is the penalty currently specified
in section 13 as applying to a natural person.
Section 7 Part 5A inserted
After section 32 of the Act, Part 5A is inserted.
Note that section numbers in Part 5A refer to new
numbers to be inserted in the Principal Act.
Part 5A MINE SAFETY
Division 1 Interpretation
Section Objects
32A
This section states the purpose of Part 5A in broad
terms. The object is stated as "to assist in securing the
health and safety of mine workers, and other people
exposed to risks to their health or safety arising from
mining operations, through the implementation of
additional health and safety measures specific to mines
and mining operations". This is consistent with the
legislative purpose recommended by Coroner Jones.
10
It sets the scene for the provisions that come later
and, if the situation arises, may aid in the
interpretation of the provisions.
Section Interpretation of Part
32B
This section provides a definition of "commencement
day" as the day the amendment Act commences.
The term is used in a number of provisions inserted
to deal with transition to the new requirements.
Section Concurrent duties
32C
Proposed new Part 5A of the Act places new duties
on existing and new duty holders. As with existing
Part 3 of the Act, the duties are intended to be
overlapping and are intended to apply regardless of
whether another person has the same duty under
Part 5 or Part 3. This provision makes it clear that
the duties apply concurrently. It means a person
cannot avoid the discharge of their obligations on the
basis that someone else had the duty.
This provision also requires holders of the same
duties under this Part or Part 3 to cooperate in
performing their duties.
Section Calculation of Hours worked
32D
There are a small number of provisions in the Act
that apply differentially to small mines than to
medium and large mines. This ensures that the
requirements are not overly complex for small mines
that have less complex operations.
The number of hours worked per month at the mine
has been used as a measure of size and complexity.
11
Although it is not perfectly correlated with risk,
there needs to be some means of determining a cut-
off point where some provisions will not be required
or will be modified. This measure is relatively simple
to apply.
The number of hours worked at a mine in a month is
the average of the hours worked per month over the
previous 6 months during which work has been
carried out at the mine. This is a moving average and
is a retrospective measure which can be easily
verified. The measure covers everyone working at
the mine, whatever their capacity.
If a mine has not been operating for six months of
the previous 12 months, then a prospective measure
is used based on a reasonable expectation of the of
the number of hours to be worked for the
forthcoming month.
Division 2 Mine operators
32E Appointment of mine operator
The provisions of this section establish a regime
where a competent person is appointed to operate
the mine safely.
(1) The mine holder is required to appoint a mine
operator to carry out mining operations. This
reflects the usual arrangements where an individual
or entity having the right to mine, determines who,
or what entity, shall operate the mine. This person
or entity does not have to be different to the mine
holder, and this is made clear in the next subsection.
Appointment of a mine operator is consistent with
12
the recommendations of Coroner Jones. The formal
requirement enables later provisions of this section,
such as notification, to flow from this requirement.
The requirement to appoint an operator before
mining commences ensures that the process starts
off correctly, right from the beginning.
The penalty (not exceeding - 500 penalty units for a
body corporate and 100 penalty units for a natural
person) reflects that this duty is more than just a
process matter and is a foundation provision from
which other duties follow.
(2) A mine holder may appoint himself, herself or itself
(e.g. if the mine holder is a company), as the operator
of a mine. Alternatively he or she may appoint
another party, referred to in the Bill as a "person
conducting a business or undertaking" to operate the
mine. This ensures that the duties of the operator of
a mine are not passed on to an employee. "A person
conducting a business or undertaking" can be an
individual or a body corporate.
If an individual or entity other than the mine holder is
appointed as the mine operator, the mine holder
must authorise that individual or entity to have
management or control of the mine, at least to the
extent necessary to discharge the mine operator's
duties. This is recognises that the mine operator's
functions cannot be properly carried out if the
operator does not have the appropriate level of
control.
(3) This subsection requires that where the mine
operator and the mine holder are different, the mine
holder must make the appointment in writing, with
13
the signed agreement of the proposed mine operator
and must include the date of effect of the
appointment.
This requirement makes it perfectly clear who (or
what entity) the operator is; when the appointment
starts; and ensures that the proposed operator
knows and acknowledges the appointment. This
requirements help provide clarity about responsibility
for the operation of a mine.
(4) The mine holder must exercise due diligence in
selecting an operator with the capacity and resources
to ensure the work can be carried out safely.
This holds the mine holder responsible for the choice
of mine operator selected. Selecting a mine operator
without any enquiry into the capacity of the
proposed operator to carry out the work safely is
inadequate to ensure health and safety. This
provision is intended to act as a disincentive to doing
so.
The penalty (not exceeding - 500 penalty units for a
body corporate and 100 penalty units for a natural
person) is set at the same level as subsection (1) in
recognition that choosing the right operator for the
job goes hand in hand with the requirement to
appoint an operator.
(5) This is an administrative provision requiring
notification, to the Chief Inspector of Mines, of the
name, contact details and start date of the
appointment. Such provisions enable the mining
inspectorate to know who or what entity is in charge
of operations at the mine, and how to make contact.
The keeping of such details by Workplace Standards
14
Tasmania was a recommendation of Coroner Jones.
The penalty (not exceeding - 100 penalty units for a
body corporate and 20 penalty units for a natural
person) is higher than usual for an administrative type
provision under the Principal Act. This reflects the
importance of the reporting requirement to the mine
safety regime established by the Bill.
(6) This subsection sets a time within which the
notification of the mine operator must be made, i.e.
within 14 days after:
o the appointment; or
o the commencement day.
The second requirement is included to enable the
mines inspectorate to obtain the details for existing
mines.
The penalty (not exceeding - 100 penalty units for a
body corporate and 20 penalty units for a natural
person) is aligned with other penalties for offences of
this nature in the Bill.
(7) This provision follows from subsection (6) by
requiring the mine holder to notify of any change to
the mine operator's details, or termination of the
appointment, within 14 days of such an event.
It has the same penalty as the previous provision, not
exceeding - 100 penalty units for a body corporate
and 20 penalty units for a natural person.
(8) This subsection provides that unless a mine holder
appoints a mine operator in accordance with this
section, the mine holder is taken to be the mine
operator.
15
This provides a default position that applies in the
event that the mine holder fails to appoint a mine
operator. Without this provision there would be no-
one responsible for complying with the duties of the
mine operator, or liable for a breach of the
operator's responsibilities. This subsection prevents
a gap in the legislation that could otherwise arise by a
mine operator failing to make the appointment.
Such a default provision was recommended by
Coroner Jones.
(9) The previous provisions are couched in terms of
appointing an operator for each mine. However, it is
recognised that not all mines operate in the same
manner. Although it is usually desirable to have one
operator only for a mine, there may be
circumstances where there are good reasons to
appoint more than one operator at a single mine.
This provision allows the Chief Inspector of Mines to
approve in writing, and with or without conditions,
an arrangement under which more than one entity or
individual has responsibility for various mining
operations at a mine.
Coroner Jones recommended the recording of
responsibilities of each mine operator and the parts
of the mine for which they are responsible, in cases
where more than operator is responsible for
different parts of a mine, or has different
responsibilities. This provision allows the Chief
Inspector of Mines to impose such conditions if
approval is given for more than one operator at a
mine.
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(10) The primary concern with the appointment of more
than one mine operator is that safety may be
compromised by inadequate communication or
coordination between the separate parties, or that
workers (or the operators) are not clear who is in
charge of what activities. These concerns are
addressed by ensuring that before the Chief
Inspector of Mines gives an approval under the above
subsection, the mine holder must provide a clear
statement of the respective responsibilities of each
party at the mine; and the Chief Inspector must be
satisfied that the proposed arrangement will enable
sufficient coordination and control of the work; and
will not diminish occupational health and safety at the
mine.
(11) This provision only applies when the mine holder and
the mine operator are different.
Subsection (a) applies only where a mine holder has
any control or capacity to control the resources
available to the mine operator.
The provision requires the mine holder to, so far as
is reasonably practicable, ensure that adequate
resources are available to the mine operator to
ensure that the mining operations can be carried out
safely. This places a positive duty on the mine holder
to ensure such resources are available if the operator
is in a position to exercise such control.
Subsection (b) is a more general requirement
requiring the mine holder, so far as is reasonably
practicable, to pass on adequate information and
relevant plans to the mine operator. Again this is
drafted as a positive duty, and is intended to trigger
the mine holder to consider what information and
17
documents he, she or it holds that would be relevant
to the safe operation of the mine and hence should
be passed on.
The penalty (not exceeding - 500 penalty units for a
body corporate and 100 penalty units for a natural
person) reflects that this is a substantive provision
that may potentially influence the capacity of the
mine operator to run the mine safely.
32F Duties of mine operators
(1) The mine operator, as the individual or entity that
has day to day control of mining operations at the
mine, is the primary duty holder under the proposed
new mine safety provisions, consistent with a
recommendation of Coroner Jones.
A mine operator must, so far as is reasonably
practicable, ensure:
o the health and safety of mine workers and
other persons at the mine; and
o that persons are not exposed to risks to
their health or safety arising from the mining.
Assigning key broad general duties to the mine
operator aligns with the way in which mines are
operated in practice.
The mine operator may or may not be an employer
at the mine, depending on how the workforce is
engaged. Therefore earlier provisions of this Bill
ensure there is always a mine operator if mining
operations are carried out at the mine. This
removes existing potential gaps in the legislation that
may arise when a mine operator is not an employer.
The approach in this Bill is also more targeted to the
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way in which mines are operated. Only the mine
operator undertakes the overall coordination and
control at the mine. Other employers at the mine
may have duties to their employees, however they
have to fulfil them in the context that they have to
work to the mine operator's broad directions.
The penalty (not exceeding - 1500 penalty units for a
body corporate and 500 penalty units for a natural
person) is set at the same level as the generally duty
placed on other, similar, primary duty holders (such
as an employer) under the Principal Act.
(2) Without limiting the general duties in the previous
subsection, the provisions of the Bill spell out in
more detail further duties of the mine operator.
These contain provisions similar to the general duties
of employers and add further provisions that are
more specific to the circumstances at a mine. A mine
operator must, so far as is reasonably practicable:
o provide and maintain a working environment in
which workers are safe from injury and risk to
their health; and
o provide and maintain systems of work at the
mine that are safe and do not expose workers
to risks to their health; and
o provide any information, instruction, training
and supervision reasonably necessary to ensure
that each mine worker is safe from injury and
risks to health; and
o ensure that all persons working at the mine
have the necessary skills, competence and
resources to undertake their work safely and to
ensure the safety of others; and
o implement and maintain effective consultation
arrangements in relation to mining operations,
to ensure that workers are consulted in
19
relation to matters affecting their health and
safety arising from activities at the mine; and
o ensure that any premises, plant, equipment,
materials and substances at the mine are safe
and do not expose workers to risks to their
health.
Given that these provisions detail specific
requirements of the general duties of the mine
operator, they attract the same penalty as the
previous subsection: not exceeding - 1 500 penalty
units for a body corporate and 500 penalty units for a
natural person
(3) This provision provides that in determining the
training required to be provided in accordance with
subsection (2)(c), regard must be had to the
functions performed by mine workers and the
capacities in which they are engaged.
This provision has been added in recognition of the
vital role training plays in mine safety, and that to be
effective, training must be appropriate to the work to
be performed.
32G Additional duties of employer at mine
An employer at a mine must, so far as reasonably
practicable:
o comply with the mine operator's health and
safety management system; and
o ensure that employees comply with the with
any health and safety management system at the
mine.
The employer must, as required by the mine
operator, consult with the mine operator and
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facilitate discussions between the employees and the
mine operator on matters affecting the employees'
health and safety.
Employers retain their existing duties elsewhere in
the Principal Act. The additional provisions in the Bill
take into account the overall responsibility the mine
operator has for operations at the mine as a whole,
and provides a link between the operator and any
employers at the mine. The new provisions
recognise the relationship between an employer and
employees, especially with respect to employers
other than the mine operator. The provisions put
the onus on employers to take steps to ensure that
their employees follow the requirements of the mine
operator, and to facilitate consultations with the
mine operator.
The penalty (not exceeding - 750 penalty units for a
body corporate and 250 penalty units for a natural
person) has been set at a significant level, but lower
than those under existing section 9(1) of the Principal
Act, in recognition that the duties of this clause are
not the primary general duties of an employer but
are nevertheless important for mine safety.
Division 3 Site senior officers
32H Appointment of site senior officer
(1)
In recognition that clarity about who is in charge at a
mine is important, this provision requires the
appointment of a site senior officer meeting the
requirements of subsection (3).
Although the mine operator is the primary duty
holder at a mine, in all but some of the smaller mines
21
the mine operator will be a corporate entity rather
than an individual. The appointment of a site senior
officer recognises that in practice there is an
individual that is in charge on behalf of the mine
operator. This provision formalises that
arrangement.
The penalty (not exceeding - 100 penalty units for a
body corporate and 20 penalty units for a natural
person) are lower than those for section 32E(1)
(regarding the appointment of a mine operator) in
recognition that there is a hierarchy of appointments
at a mine and this appointment is lower on the
hierarchy, on the basis that the site senior officer
does not have the same high level responsibilities as a
mine operator.
(2) If the mine operator is an individual, i.e. a natural
person, then he or she may appoint himself or herself
as the site senior officer. This is expected to be
relevant only to those smaller mines where
operations do not warrant the appointment or
establishment of a corporate entity as the mine
operator.
(3) The concept of a site senior officer being the
individual in charge and the "go to person" who
makes decisions on safety (and operations generally)
requires that only a natural person can be a site
senior officer.
There is also a requirement that the site senior
officer have the qualifications referred to in section
32K. This is a reflection of the importance of the
role.
(4) Some very small mines are operated and worked by a
22
single individual and it would be meaningless to
appoint a site senior officer. It would also involve
unnecessary paperwork. Therefore, where mine
operator is a natural person who does not employ
any other mine workers, he or she is not required to
appoint a site senior officer.
(5) This section applies where the appointed site senior
officer is not the mine operator. It sets up the
requirements to ensure that relevant parties,
including the person appointed and the Chief
Inspector of Mines, knows about the appointment.
The mine operator must:
o give written advice of the appointment to the
person appointed;
o give notice of the appointment, as far as
reasonably practicable to everyone employed
or engaged at the mine, and
o notify the Chief Inspector of Mines in writing of
the name and experience and qualifications as
soon as practicable after the appointment or
any change in the appointment is made.
The penalty (not exceeding - 100 penalty units for a
body corporate and 20 penalty units for a natural
person) has been set at a significant level for an
administrative type of provision because of the
importance of the notifications for clarity of
responsibilities at a mine.
(6) This provision details the notification requirements
where the mine operator [is a natural person and]
appoints himself or herself as the site senior officer.
As mentioned earlier this can be expected to be
applicable to some small mines only.
23
In these circumstances the mine operator must give
notice, as far as reasonably practicable, to everyone
employed or engaged at the workplace and to
provide written notification as soon as practicable
after the appointment or change to appointment to
the Chief Inspector of Mines with details of relevant
experience and qualifications.
Given that this clause can only apply to an individual,
the penalty of a fine not exceeding 20 penalty units is
equivalent to the penalty for an individual under the
previous provision.
(7) If the mine operator is an employer, there is a
current requirement under section 10 of the
Principal Act to appoint a person to be a responsible
officer at the workplace. It would be confusing to
have a site senior officer and a responsible person as
two separate individuals at a mine, and such
circumstances may potentially lead to communication
and coordination problems.
This provision therefore requires the responsible
officer to be the same person as the site senior
officer.
This will help ensure clarity and consistency of
responsibility and decision making.
32I Senior site officer to maintain presence at
mine
Given the key role played by the site senior officer, a
suitable level of attendance at the mine is important.
This provision requires the mine operator to ensure
the site senior officer maintains a presence at the
24
mine commensurate with the nature, size and
complexity of the mine and mining operations and
the associated risks, taking into account any relevant
guidance material published by the Chief Inspector of
Mines.
The amount of time required to be spent at the mine
by the site senior officer will vary according to the
operations and risks at the mine and will vary from
mine to mine, and may also vary from time to time at
the same mine. Any prescriptive requirements in this
regard would be too inflexible to take all
circumstances into account. Therefore it is
proposed that the legislative requirement be general
with more detail to be provided in guidance material.
The penalty (not exceeding - 100 penalty units for a
body corporate and 20 penalty units for a natural
person) has been set at the same level as a failure to
appoint a site senior officer, because they are of a
similar nature and importance.
32J Additional requirements where site senior
officer not mine operator
(1) This provision applies where the site senior officer is
not the mine operator. It is relevant to later
subsections that cover the decision making authority
of the site senior officer.
Such a provision is not necessary where the site
senior officer and the mine operator are the same
individual, being one and the same, the site senior
officer would have the same decision making power
as the mine operator.
(2) Unless otherwise approved by the Chief Inspector of
25
Mines, the mine operator must ensure that the site
senior officer at the mine is the most senior officer
(in terms of level of authority to direct operations at
the mine) employed or engaged by the operator at
the mine.
This ensures that the site senior officer is truly the
decision maker on site. If he or she is not, his or her
decisions could potentially be overturned, or another
officer may make a different decision that may lead to
confusion. The thrust of the changes introduced by
the Bill is that there should be clarity in decision
making and responsibility to reduce the potential for
confusion and miscommunication, which in turn have
the potential to compromise safety.
In recognition that the circumstances of each mine
are different, the provision allows some flexibility by
allowing the Chief Inspector of Mines to approve
other arrangements with or without conditions. This
will enable the Chief Inspector of Mines to satisfy him
or herself that any proposed arrangements are
suitable for the circumstances concerned before
granting such approval (or alternatively the Chief
Inspector of Mines may refuse any such request).
The penalty (not exceeding - 250 penalty units for a
body corporate and 50 penalty units for a natural
person) has been set at a significant level for this sort
of breach because of the importance of ensuring that
a site senior officer has sufficient authority, and also
takes into account that the failure to ensure the
appointee has the appropriate authority affects the
capacity of that individual to fulfil his or her duties
under the Act.
(3) The mine operator must ensure that the site senior
26
officer has responsibility for mining operations and
health and safety at the mine and
o is based in Tasmania at times when the mine is
operational; and
o has sufficient authority and control over the
mining operations to close or suspend
operations at the mine or in parts of the mine
that may expose employees to an unreasonable
risk to their health or safety.
This provision deals with two major concerns
regarding current arrangements for mine safety. At
present the relevant provisions relate to responsible
officer. The mines inspectorate has encountered
situations where a mine operator nominates a
responsible officer who is located overseas, which
was not the intent of the requirements. The more
stringent requirements for a site senior officer will
mean that the site senior officer must be based in
Tasmania and requirements at subsection (3)(a)
regarding presence at the site are intended to
address this concern.
The second concern is whether a responsible officer
(under current arrangements) can close a mine, or
part of it, for safety reasons. In introducing the new
arrangements for a site senior officer, this point is
covered by requiring the mine operator to give the
site senior officer such powers. This addresses a
recommendation of Coroner Jones in this regard.
The penalty (not exceeding - 250 penalty units for a
body corporate and 50 penalty units for a natural
person) has been set at the same level as those under
the previous section. In particular failure to give a
site senior officer the power to close the mine for
safety is regarded as being a particular instance of
27
failing to give sufficient authority to the site senior
officer, therefore the proposed penalties are the
same.
(4) This provision requires the mine operator to ensure
that the site senior officer at the mine has input
into
o the development, implementation, maintenance,
monitoring and review of the health and safety
management system at the mine, at the
appropriate stages in the life cycle of the system
at the mine; and
o the development, implementation, and
maintenance of risk management systems at the
mine; and
o the development, implementation and
maintenance, at the appropriate times, of the
management structure for the mine.
Under the new arrangements the site senior will be a
key person on site. Given this importance and the
requirements for the site senior officer's presence on
site, and required qualifications, the site senior is in a
position to provide valuable input into the health and
safety management system for the mine, risk
management systems and the management structure
at the mine. Making it a requirement on the mine
operator to ensure the site senior officer has input
into these things ensures they are not developed in
isolation and without the advice of the key person
"on the ground".
This should ensure that large companies who develop
a whole of company approach to health and safety
and risk management systems are required to take
the local conditions into account in the system
applicable in each mine.
28
The penalty (not exceeding - 500 penalty units for a
body corporate and 100 penalty units for a natural
person) reflects the consideration that failure to
allow the site senior officer to have input into these
matters seriously impacts on the capacity of the mine
operator to consider all relevant factors in relation
to the health and safety management system, risk
management systems and the management structure
for the mine.
32K Qualifications of site senior officer
The senior officer is require to have appropriate
background, experience and competence for the
functions of site senior officer under the Act, at the
mine concerned, taking into account the level of risk
to health and safety arising from mining operations at
the mine, the size of the mine and the technical
expertise available to the site senior officer at the
mine.
These requirements are sufficiently flexible to allow a
mine operator to appoint a site senior officer
appropriate to the particular mine concerned.
The second part of the qualifications requirement is
to ensure that the site senior officer has any
requirements specified in the regulations, including
qualifications, training, background, experience,
knowledge and understanding.
The latter provisions will allow regulations to
prescribe particular additional requirements for
specified types of mines.
Together these provisions will be able to work
29
together to provide for appropriate requirements
across the diverse range of mines.
32L Duties of site senior officer
(1) The site senior office has an overarching general duty
of care responsibility to ensure, as far as practicable
and in relation to matters over which he or she has
the capacity to control or to influence control, that
the mining operations or the state of the mine do not
adversely affect the health or safety of any person.
The penalty for a breach of this duty is a fine not
exceeding 250 penalty units. This a significant fine for
an individual, but lower than that for breach of a
mine operator's duty for an individual. The lower
penalty recognises that the site senior officer is an
individual that often does not have the same level of
control as the mine operator (except where they are
the same individual). At a medium to large mine, the
site senior officer cannot be expected to have the
same resources and budgetary control as a mine
operator, hence the penalty for a site senior officer is
lower. The penalty is a reflection of the site senior
officer's position in the hierarchy of duties under the
proposed new requirements.
(2) Subsection (2) provides more detailed requirements,
without limiting the site senior officer's general duty
in the previous subsection.
The provisions are detailed and specific, focussing on
matters relevant to safety within the scope of the
role of the site senior officer.
So far as is reasonably practicable, the site senior
30
officer must ensure:
o adequate planning, organisation, leadership and
control of operations to ensure that the
operations do not adversely affect health and
safety;
o the carrying out of critical work at the mine
that requires particular technical competencies;
o adequate and competent supervision and
control of operations on each shift at the mine;
o regular monitoring and assessment of the
working environment, work procedures,
equipment and installations at the mine;
o appropriate inspection of each work area at the
mine including, where necessary, pre-shift
inspections;
o compliance with the mine's health and safety
management system, if any;
o appropriate means, practices and procedures
for communication between
(i) workers; and
(ii) workers and management; and
(iii) shifts; and
o cessation of work, closure and or evacuation, as
appropriate, at all or part of the mine when
there is an imminent and material risk of
serious injury, serious illness or death, until the
risk is eliminated or minimised.
The penalty of a fine not exceeding 250 penalty units
is the same as for the previous subsection for similar
reasons.
(3) This provision requires the site senior officer to
report certain matters to the operator of the mine,
in brief:
o any risks to health or safety at the mine that
have not been eliminated, or adequately
31
managed, reduced or controlled; and
o any significant departures from, or identified
inadequacies in, the mine's health and safety
management system likely to give rise to
increased risk of injury or harm to health; and
o vacancies or inadequacies in the management
structure likely to impact adversely on health or
safety.
These provisions provide a feedback loop from the
site senior officer to the mine operator. By making
this a specific statutory requirement, the mine
operator will be made aware of key matters that will
be required to be addressed. The provisions focus
on matters that the mine operator is responsible for
in his her or its responsibilities, that will likely be
known or identified by the site senior officer by
virtue of his or her position at the mine.
The mandatory communication of specified
inadequacies is also expected minimise blame shifting
to a site senior officer when he or she cannot
exercise control over the matters.
The penalty of a fine not exceeding 250 penalty units
is the same as the penalty for other duties of the site
senior officer.
32M Absence of site senior officer
(1) This provision requires absences of the site senior
officer of a significant period of time in relation to the
complexity of operations at the mine, their size and
level of risk at the mine, to be covered by another
individual.
To ensure that the general requirement above does
32
not lead to unduly lengthy periods without a site
senior officer, the second part requires that absences
of more than seven continuous days during which
mining operations are undertaken at the mine must
to covered with another individual.
Together the provisions mean that action must be
taken where the absence of a site senior officer is, at
the most, longer than seven operational days at a
mine. However higher risk mines may be required to
take action sooner, in accordance with its
circumstances.
The penalty (not exceeding - 250 penalty units for a
body corporate and 50 penalty units for a natural
person) reflects the likely impact on safety of the
absence of the site senior officer when one is
normally present. Failure to meet this requirement
can lead to urgent safety matters being left
unaddressed.
(2) This provision requires notification of the absence of
the site senior officer when the absence is more than
14 days. It is limited to medium to large mines, in
this case expressed as mines where the number of
hours worked is 3000 or more per month (three
thousand hours per month equates to approximately
20 workers, assuming a 38 hour week and 48 week
year for each worker).
The requirement does not apply to a site senior
officer who is the mine operator. Given that such a
mine is operated by an individual (not a corporate
entity) such mines are likely to be small and the
notification process is unlikely to be warranted.
At the medium to large mines to which this
33
notification is likely to apply, there is likely to be
sufficient risk for the mining inspectorate to be aware
of changes at this important senior level.
The provisions require written notification to the
Chief Inspector of Mines, as soon as practicable, of
the absence and the arrangements put or to be put in
place.
The penalty (not exceeding - 100 penalty units for a
body corporate and 20 penalty units for a natural
person) is similar to those of other notification
requirements in the Bill.
23N Guidance material in relation to appropriate
presence and qualifications
This provision supports the earlier provisions dealing
with appropriate presence at a mine by the site
senior officer, by providing for the Chief Inspector of
Mines to publish guidance material on the subject.
Guidance material will enable a range of scenarios to
be discussed, enabling mine operators to assess their
own situation.
Division 4 Health and Safety
32O Employees, workers and self-employed
persons to comply with health and safety
requirements
(1) Existing general duties of care for employees do not
take into account the provisions established for
mines and the Principal Act is therefore silent on
complying with the health and safety management
system and the directions of mine operators or site
senior officers. Similarly there are no relevant
34
requirements for workers.
This provisions ensures that both workers and
employees comply, so far as they are reasonably able,
with:
o any reasonable health and safety direction
issued by the mine operator or site senior
officer; and
o any health and safety management system for
the mine.
The proposed penalty of a fine not exceeding 100
penalty units is aligned with a failure to comply with
the duty comply with a direction of the responsible
officer under section 16 of the Principal Act.
(2) Similarly a self-employed person does not have
current duties specifically in relation to a mine and
the provision requires that he or she, so far as is
reasonably practicable, must comply with:
o any reasonable health and safety direction
issued by the mine operator or site senior
officer; and
o any health and safety management system for
the mine.
The proposed penalty of fine not exceeding 250
penalty units is set on the basis that it needs to be
significant for an individual, but is not of the same
status as a breach of the duty to others under
section 13 of the Principal Act.
32P Contractor to comply with health and safety
requirements
(1) A specific general duty of a contractor at a mine has
been to require that he, she or it ensures, so far as is
35
reasonably practicable, that a person is not exposed
to a risk to his or her health and safety arising from
the mining operations of the contractor.
Coroner Jones identified a need to place duties on
contractors, amongst others.
The penalty (not exceeding - 1500 penalty units for a
body corporate and 500 penalty units for a natural
person) reflects the status of this provision as a
fundamental general duty of a person, other than an
employee, directed towards safety.
(2) More specific duties for contractors have been added
in relation to the health and safety management
system.
A contractor must comply, so far as is reasonably
practicable, with:
o any health and safety management system for
the mine; and
o any reasonable health and safety direction
issued by the mine operator or site senior
officer.
The penalty (not exceeding - 750 penalty units for a
body corporate and 250 penalty units for a natural
person) is lower than for a general duty directed
towards others, but is nevertheless significant
because of the importance of compliance.
32Q Visitors to comply with health and safety
requirements
In the same way that other persons at a mine have
duties, the Bill proposes that visitors also need to
comply, so far as reasonably able, with the reasonable
36
health and safety directions by the mine operator or
site senior officer, any health and safety management
system for the mine [so far as the provisions are
relevant to the visitor]; and any other health and
safety requirements relevant to him or her.
The penalty of a fine not exceeding 100 penalty units
is set at a significant level for an individual.
32R Management structure to be maintained
(1) The operator of a mine must establish and maintain
an appropriate management structure of competent
persons for the mine which includes having others
acting in, and the timely filling of, vacant positions in
the structure (including the position of site senior
officer at the mine).
An appropriate management structure at a mine
covering the above requirements can be expected to
contribute strongly to improved health and safety
outcomes.
The penalty (not exceeding - 250 penalty units for a
body corporate and 50 penalty units for a natural
person) aligns with other provisions of moderate
importance.
(2) This provision requires the management structure to
include competent persons with appropriate
technical or engineering competence commensurate
with the nature, size and complexity of the mine and
mining operations and the associated risks.
The provision clearly points to the importance of
technical competence while recognising that different
mines will have different requirements in this regard.
37
The provision is flexible, because it requires the mine
operator to decide what expertise is appropriate for
the mine concerned.
(3) This provision provides for the documentation of the
management structure, with nomination of persons
by position, and outlines areas of responsibilities.
Such a requirement is important for clarity of roles
and responsibilities.
It is expected that the documented management
structure would vary in complexity according to the
type of mine. Lower risk small mines would be
expected to require only a simple document.
The penalty for this provision (not exceeding - 250
penalty units for a body corporate and 50 penalty
units for a natural person) is aligned with the
requirement to establish and maintain a management
structure because the requirements go hand in hand.
32S Health and safety management system
(1) A key focus of the Bill and the proposed supporting
regulations is the requirement for a health and safety
management system, which is intended to be the
central means of managing health and safety at a
mine.
This provision requires a mine operator to develop,
implement, maintain and review an auditable,
documented health and safety management system in
accordance with the requirements in the regulations
and commensurate with the nature, size and
complexity of the mine and mining operations, and
the associated risks. This establishes the basic
requirement to have a health and safety management
38
system, with the detail of the requirements for that
system to be in supporting regulations.
It is expected that the health and safety management
system will specify how occupational health and
safety is to be dealt with at the mine, and will
incorporate a risk management approach.
Regulations will require the health and safety
management system for a mine to be supported by
other key documents including major hazard
management plans (dealing with particular major
hazards at the mine).
The implementation of a health and safety
management system for a mine is a well recognised
approach to addressing mine safety at a mine. The
requirement for a health and safety management
system forms a central component of proposals for
future nationally consistent mine safety legislation in
Australia.
The level of detail to be provided in a health and
safety management system will vary according to the
nature, size and complexity of the mine and mining
operations, and the associated risks. Small mines of
lower risk will require less detail than larger, more
complex and higher risk mines.
The penalty (not exceeding - 750 penalty units for a
body corporate and 50 penalty units for a natural
person) reflects the status of this provision as an
important duty but nevertheless not at the same level
as the mine operator's primary general duty for
safety.
(2) This provision describes a health and safety
management system further, as, in part, an auditable,
39
documented system that systematically protects the
health and safety of mine workers and other people
who may be exposed to risks arising from mining
operations.
The system will require a number of component
elements, to be specified in the regulations.
32T Consultation with workers
Consultation with workers who may be exposed to
risk to their health or safety arising from the mining
operations is a key requirement during the
preparation or amendment of any part of the health
and safety management system relevant to their
activities. This duty of a mine operator applies "so
far as is reasonably practicable" in recognition that
there may be times, such as prior to starting mining
operations, when it may not be possible to consult
with relevant workers. Nevertheless the provision
reflects the principal that the people who work with
and may be affected by the risks have much to offer
in consultations on how to address the risks.
The penalty (not exceeding - 100 penalty units for a
body corporate and 20 penalty units for a natural
person) is aligned with other duties of similar
importance, such as the appointment of a site senior
officer.
32U Timing of implementation of health and
safety management system
(1) This provision establishes the transition
arrangements for the application of the new
provisions requiring a health and safety management
system. It therefore only applies only to mine
40
operators at a mine that is in operation on or before
commencement day. Such a mine operator is given a
period of time to implement the health and safety
management system.
At a smaller mine, i.e. where the number of hours
worked is less than 3 000 per month, implementation
is required by 1 January 2012 or such later date as
the Director may specify in a notice published in the
Gazette. (Three thousand hours per month equates
to approximately 20 workers, assuming a 38 hour
week and 48 week year for each worker).
All other mines are required to implement the health
and safety management system by two months after
the commencement date.
Although larger mines require more complex health
and safety management systems, industry
consultation indicates that the larger mines are
better placed to comply with the requirements in this
regard than smaller mines. Many larger mines that
have a health and safety management system that
either comply or could readily be revised to enable
compliance. Given this, this provision allows larger
mines a relatively short time to comply.
Many small mines do not have health and safety
management systems, and some operators may not
be familiar with them. The implementation date of
1 January 2012 puts such mines on notice that such
systems will be required in future. The date
coincides with the proposed introduction of national
model work health and safety legislation, which is
likely to contain mine safety requirements. Allowing
flexibility, through the potential to impose a later
date of effect, enables adjustments to be made if the
41
national model legislation is slightly delayed. There is
also the flexibility to proceed with the proposed
introduction date if national provisions are lengthily
delayed or do not cover mine safety.
At this point in time there is no suggestion that small
mines would be exempted from such requirements
under nationally consistent or harmonised mine
safety laws.
The penalty (not exceeding - 750 penalty units for a
body corporate and 50 penalty units for a natural
person) is set at the same level as a failure to
develop, implement, maintain and review a compliant,
auditable, documented health and safety management
system.
(2) Subject to subsection (1), mining operations must not
be commenced at a mine unless a health and safety
management system that complies with this Act is in
place at the mine.
The penalty (not exceeding - 750 penalty units for a
body corporate and 50 penalty units for a natural
person) is set at the same level as a failure to
develop, implement, maintain and review a compliant,
auditable, documented health and safety management
system.
(3) A declaration under subsection (1)(a) is not a
statutory rule for the purposes of the Rules Publication
Act 1953.
By stating this provision, the Bill makes it clear that
the requirements of the Rules Publication Act 1953 do
not apply to such a declaration made by the Director
under subsection (1)(a).
42
32V Work to be in accordance with health and
safety management system
This provision supports the requirements for a health
and safety management system at a mine by requiring
the mine operator to ensure that work at the mine is
carried out in compliance with the health and safety
management system for the mine (where there is
one, given that there is a phase-in provision). This
includes work undertaken by contractors and their
workers. Specification of contractors and their
workers draws attention to the need to cover such
workers in the system and to require compliance by
these persons.
The penalty (not exceeding - 250 penalty units for a
body corporate and 50 penalty units for a natural
person) has been set at the same level as penalties
dealing with requirements in relation to site senior
officers and management structures.
32W Audit and review of health and safety
management system
(1) This proposed subsection provides for the audit and
review of part or all of the health and safety
management system by an inspector. It also provides
that the review may include any of the elements or
other requirements specified in the regulations.
(2) This provision allows an inspector to request the
mine operator the pertinent documentation at any
time.
(3) This provision further expands on the times such an
audit and review may occur, being periodically, after
43
the occurrence of an event prescribed by the
regulations or at any other time that the inspector
thinks is appropriate.
(4) Subsection 4 makes it clear that an audit and review
is not limited to an audit of the documentation.
(5) An inspector may do whatever is necessary (within
the scope of his or her powers) to assess the
relevant matters. This might involve an inspection of
parts of the mining operations to ensure that the
provisions of the system as document is reflected by
the practices and procedures at the workplace.
(6) This provision provides for compliance with an
inspector's request under this section.
The penalty (not exceeding - 500 penalty units for a
body corporate and 100 penalty units for a natural
person) is substantial enough to act as an incentive
for compliance with the request.
32X Inadequate health and safety management
System
(1) Having the power to audit and review the health and
safety management system at a mine requires the
inspector to be able to do something about any
identified shortcomings. This provision allows for
the inspector to require the mine operator to amend
the health and safety management system or any of
its components as directed, or to review and revise
the system or any of its components to address the
inadequacy.
The two options for action enable an inspector to
44
tell the operator how to fix the problem, when
known, alternatively have the mine operator
determine how the matter should be fixed. Such
flexibility enables the inspector to take the
circumstances into account. For instance, if the
inspector considers there is only one appropriate
means of addressing the inadequacy it is more
efficient to tell the operator what that means is.
Where there might be a range of means appropriate,
or where the means require consideration of, say,
production issues, or consultation with workers, it is
likely to be more appropriate to require the mine
operator to review and revise the system to address
the inadequacy.
(2) This provision sets out the requirements for a
direction to review or amend the health and safety
management system. The requirements are intended
to provide clarity and transparency and indicate the
basis of the inspector's concerns. A direction must:
o be in writing;
o state why and what is inadequate about the
health and safety management system;
o specify the date by which a reviewed and
revised health and safety management system is
to be implemented; and
o provide for the system to be reassessed by the
inspector prior to the required date for
implementation.
(3) This subsection allows the inspector to specify the
focus of a directed review of the health and safety
management system. This is intended to simplify the
review and revision process, should there be only
part of the health and safety management system that
requires attention.
45
(4) This subsection requires compliance with such a
direction.
The penalty (not exceeding - 500 penalty units for a
body corporate and 100 penalty units for a natural
person) is aligned with the requirement to comply
with an inspector's request under the previous
section.
(5) A direction may be appealed in accordance with the
provisions for appeal in section 41.
Section 41 of the Act deals with appeals. It specifies
matters that may be appealed and provides for appeal
to the Secretary in the first instance, then the
Magistrates Court (Administrative Appeals Division).
(Section 41 will be modified by a later clause in this
Bill to allow appeal against a direction issued under
this section.)
32Y Chief Inspector of Mines may require
independent audit
(1) It is expected that circumstances may arise where
there is a need for a more technical, specialised or
complex audit of the health and safety management
system than could be appropriately undertaken by an
inspector. This proposed subsection therefore
provides that the Chief Inspector of Mines may direct
the mine operator to obtain an independent audit of
the health and safety management system, either in
general or in relation to one or more specific
aspects.
It is intended that there would be a particular reason
for such an audit. This requirement is not intended
to replace an inspector's role with respect to an
46
audit.
The provision therefore states the preconditions for
such a direction, being that the risks arising from the
operation of a mine have the potential to give rise to
the serious injury or death of a person, an
emergency, or a dangerous situation, and the Chief
Inspector of Mines is not satisfied that the health and
safety management system for the mine adequately
manages the risk.
Subsection (9) provides for a mechanism for appeal
against such a direction.
(2) Subsection (2) requires the mine operator to obtain
the audit and provide the outcome to the Chief
Inspector of Mines.
The penalty (not exceeding - 500penalty units for a
body corporate and 100 penalty units for a natural
person) aligns with other penalties regarding the
review and audit of health and safety management
systems.
(3) For clarity and transparency a direction under (1)
must state:
o the reasons for requiring the audit to be carried
out and its objectives; and
o that the person who carries out the audit must
be a person approved by the Chief Inspector of
Mines; and
o the date by which the outcome of the audit is
to be provided to the Chief Inspector of Mines.
(4) This provision provides for the approval of the
independent auditor by the Chief Inspector of mines
47
only if the person or group has the necessary
qualifications or experience to carry out the audit;
and the Chief Inspector of Mines is satisfied that the
person or group is able to provide an independent
audit.
This provision allows for a group to be approved to
undertake the required audit. This recognises that
the appropriate mix of skills may rest in a group of
individuals rather than a single individual.
(5) The mine operator may appoint a bipartite team (see
subsection (10)) to assist in carrying out the audit,
subject to the approval of the Chief Inspector of
Mines. This provision recognizes that that relevant
skills may reside outside the usual providers of such
services. Unions, employer bodies and other mining
companies could equally employ people with suitable
skills. This provision therefore enables a mine
operator to propose a bipartite team for the audit,
including people from industry and unions.
Establishment of such a group is likely to have
benefits that extend beyond the audit itself, such as
the cooperation and trust engendered by such an
approach.
This provision is enabling only. Nothing in the
legislation requires a mine operator to appoint such a
group or the Chief Inspector to approve it if it is not
appropriate to the circumstances. It would require
all parties to agree before such an approach would be
viable.
(6) This provision provides that the Crown is not liable
to pay for, or contribute to, the costs of the
independent audit.
48
(7) A member of a bipartite team incurs no civil liability
arising from anything done or omitted to be done in
good faith in relation to the audit.
This provision has been included to remove a
potential disincentive to participating in a bipartite
audit.
(8) Subsection (7) does not apply to a person who
operates as, or is employed by, an entity whose line
of work includes the provision of consultancy
services for payment in an area relevant to the audit
concerned.
Such persons, or the companies for which they work,
are likely to have their own insurance against civil
liability, because the provision of such audits is a
normal part of their work. Other persons likely to
participate in a bipartite team, however, are not likely
to have such insurance for this type of work, and
require the protection given by subsection (7).
(9) This subsection provides an appeal mechanism
against the Chief Inspector's Direction at (1), under
section 41.
(10) This provision defines a bipartite team as a team of
persons with appropriate expertise of whom:
o at least one is employed by, or is a member of,
a union representing mine workers; and
o at least one is a mine operator from another
mine or is employed
(i) in undertaking, or providing services to,
mining; or
(ii) by a mining industry organisation.
Division 5 Miscellaneous
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32Z Notification of commencements and
suspension of mining operations
(1) In order to know when and where mining operations
are undertaken in Tasmania, this provision requires
the Chief Inspector of Mines to be notified by the
mine operation:
o before mining operations are commenced at
the mine;
o if mining operations are under way at the time
this provision comes into effect, within 14 days
after the date of effect;
o before mining operations are resumed after
their suspension;
o before mining operations are abandoned; and
o before mining operations are suspended.
(2) This provision provides an exception for exploration
to the notification requirements except where the
activity involves drilling (except post hole drilling or
drilling using only hand-held instruments).
This provision reflects the mine inspectorate's
experience that it is important to be notified about
the high hazard activity of drilling.
32ZA Record book to be kept
(1) A record book is currently required at a mine under
existing laws, because of a mine's status as a
designated workplace. It is unlikely that such status
will be required once these provisions come into
place so the requirement to keep a record book has
been included in this Bill.
A mine operator must keep a record book in a form
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approved by the Chief Inspector of Mines to record
the inspections made by inspectors, together with
instructions given by those inspectors, and other
information specified in writing by the Chief
Inspector of Mines.
A record book is not required at a mine where the
only mining operation taking place is exploration.
(2) The mine operator must ensure that the required
record book is made available for inspection by
employees, contractors and self-employed persons at
the mine.
A record book is expected to become an important
means of communication with workers regarding the
activities of inspectors at the mine, an inspector's
identification of any issues, and other matters
required to be recorded by the Chief Inspector.
The penalty (not exceeding - 25 penalty units for a
body corporate and 10 penalty units for a natural
person) reflects the administrative nature of this
provision.
32ZB Exemption from safety management system
in respect of major hazardous facilities, &c.
(1) Proposed section 32ZB deals with the potential
overlap of the mine safety requirements with the
Dangerous Substances (Safe Handling Act) 2005. The
former requires a health and safety management
system and the latter requires a safety management
system, in relation to certain places. It is possible
that some mines will be required to comply with
both, and this section provides a means of dealing
with the overlap.
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In short, if a mine operator is required to prepare a
safety management system as a major hazard facility,
a possible major hazard facility or a dangerous
substances location, under the Dangerous Substances
(Safe Handling Act) 2005, and if the operator
considers it likely that the system proposed will
cover all mining operations to a level at least
equivalent to the standard of this act, the mine
operator may request an exemption from the
relevant provisions of this Act.
This allows a mine operator to apply a single safety
management system to the entire mine, subject to
meeting the requirements of both Acts.
(2) This provision enables the Chief Inspector of Mines
to grant a full or partial exemption from the relevant
provisions, with or without conditions, subject to
being satisfied that the equivalent standard will be
delivered.
(3) The Chief Inspector may temporarily exempt the
applicant from compliance until the application is
determined.
(4) This provision enables the Chief Inspector to request
further information.
(5) This provision applies to a possible major hazard
facility, and allows for an application to be made for a
temporary exemption until it is determined whether
or not the applicant is a major hazard facility.
(6) If the applicant is determined to be a major hazard
facility, the applicant may apply for a further
exemption until the safety management system is
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required to be developed and implemented under
the Dangerous Substances (Safe Handling Act) 2005.
32ZC Certain information declared to be guidance
Material
(1) As a means of providing further guidance, and
informing the decision making process at a mine this
provision allows the Chief Inspector of Mines to
declare as guidance material all or specified parts of
any code, standard, rule, specification, provision or
document relating to occupational health or safety,
whether prepared or published by the Department
or any other body or authority.
Such guidance may incorporate by reference any
other such document either as it is in force at the
time the guidance material is approved or as
amended from time to time.
This provision enables guidance to be issued to assist
in the development of a mine's health and safety
management system, without imposing prescriptive
requirements. It provides a means of directing mine
operators to appropriate material, such as relevant
Australian Standards, without mandating the
requirements of the Standard (noting that Australian
Standards undertake extensive cross-referencing that
can become unwieldy and out-dated in a mandated
scheme).
(2) This provision requires a declaration under (1) to
specify the scope of the application of the guidance
material, which may be to all mines or to all mines of
a certain size, type or characteristic.
(3) This is a machinery provision that allows the Chief
53
Inspector of Mines to revoke or amend a declaration
made under subsection (1).
(4) This is a machinery provision requiring a declaration
or the revocation or amendment of a declaration
under section 32ZC to be published in the Gazette
and on the World Wide Web.
(5) This provision makes it clear that the requirements
of the Rules Publication Act 1953 do not apply to a
declaration made under this section.
32ZD Appeals
A person may appeal, in accordance with section 41
of the Principal Act, against any decision made by the
Chief Inspector of Mines under proposed Part 5A.
Clause 10 of the Bill makes the necessary changes to
section 41.
Section 8 Section 35 amended (Chief Inspector of
Mines)
Section 35 of the Principle Act provides for the
appointment and functions of the Chief Inspector of
Mines. Subsection (2) of section 35 states:
"The Chief Inspector of Mines is, subject to the
direction of the Director, responsible for ensuring
that the duties and obligations relating to mines,
and such other classes of related workplaces as are
specified by the Director, imposed by or under this
Act are complied with."
The above approach is inconsistent with the
philosophy that underpins modern occupational
54
health and safety legislation that the responsibility for
addressing occupational health and safety issues rests
with the duty holders at the workplace.
Government's role is to oversee compliance, provide
information, detect non-compliance, and so on.
This provision deletes the text above from
subsection 35(2), replacing it with the following
subsections:
"(2) The Chief Inspector of Mines is, subject to the
direction of the Director, responsible for
(a) the administration of this Act and the
regulations in relation to mines; and
(b) the oversight and direction of
inspectors assigned primarily to mines;
and
(c) any other functions conferred on the
Chief Inspector of Mines by this Act or
the regulations.
(3) The Chief Inspector of Mines may declare any
material relevant to occupational health and
safety at mines to be guidance material for
the purposes of this Act."
Section 9 Section 36 amended (Powers and functions of
inspectors)
This provision expands the inspectors' powers and
functions under the WHS Act to include the
provision of information and advice for the purpose
of facilitating compliance with the Act.
This function is appropriate for all inspectors and is
therefore not limited to inspectors of mines.
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Section 10 Section 41 amended (Right of appeal)
Section 41(1) of the Principal Act deals with the kind
of matters that may be appealed by an aggrieved
person. This clause inserts specific additions for the
purposes of allowing a right to appeal by a person
aggrieved by:
o a direction by an inspector where it is specified
in this Act that the direction is appealable; and
o a decision made by the Chief Inspector of
Mines.
These new appeal rights are required to cover new
activities of inspectors and the Chief Inspector of
Mines provided for in the Bill.
Section 11 Section 44 amended (Protection from liability)
This provision expands section 44 of the Principal
Act, dealing with protection of liability for specific
people, including inspectors, to include the Chief
Inspector of Mines.
The Bill introduces a number of new functions of the
Chief Inspector of Mines that go beyond the
functions of an inspector. In order to avoid doubt as
to whether these new functions are covered by the
protection provided by section 44, these
amendments will make explicit reference to the Chief
Inspector of Mines.
Section 12 Section 47 amended (Notice of serious
accidents and dangerous incidents to be given)
Section 47 of the Act provides for a person having
control or management of a workplace to report
fatalities and certain injuries, illness and incidents to
56
an inspector.
It is intended that regulations supporting the
proposed mine safety provisions will require
additional matters occurring at a mine to be
reported. At present section 47 is too narrow to
allow some of the matters identified for reporting to
be prescribed.
This provision inserts additional text, particularly
"and incident of a kind prescribed for the purposes of
this section occurs" to enable the specific mine safety
reporting requirements to be prescribed in the
regulations. It will also allow additional non-mining-
specific provisions to be prescribed to apply more
generally.
Section 13 Section 57 amended (Regulations)
Section 57 deals with the making of regulations under
the Principal Act. This clause proposes some specific
amendments to section 57 to give effect to the
inclusion of:
o the Chief Inspector of Mines as one of the
persons listed in the subsection as being capable
of being authorised by the regulations to
determine a matter from time to time.
o a provision allowing the regulations to exempt a
person, thing or activity or a class of persons,
things or activities from the operation of this
Act or the regulations or any provision of the
Act or the regulations. (This provision is
included largely to enable any adjustment to the
coverage of the provisions, should it be
necessary to align coverage closer to likely
national arrangements for mine safety.)
o a provision allowing regulations made in respect
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of mines and mining operations to apply to all
mines or to only those mines meeting such
criteria as may be set out in the regulations,
such as size, product, nature of the work or
location above or below ground. (This
provision is intended to provide the flexibility
needed to make requirements specific to a
particular type of mine or to adjust
requirements according to the size of mine.)
Section 14 14. Schedule 1 amended (Regulations)
Schedule 1 to the Principal Act (listing potential
matters for regulations) is amended by inserting after
item 6 the following items:
6A The making of major hazard management plans.
6B The circumstances in which, and the terms on which,
a mine operator may appoint a person or persons
with particular expertise to assist a site senior officer
to perform his or functions or discharge his or her
duties at a mine or part of a mine.
Section 15 15. Repeal of Act
This is a standard repeal provision to remove the
empty shell of the Bill after all its provisions have
come into effect (on the ninetieth day from the day
on which it commences),
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