In brief 4 min read
If passed, the Mineral and Energy Resources and Other Legislation Amendment Bill 2020 (Qld) (the Bill), introduced in the Queensland Parliament on 4 February 2020, will create industrial manslaughter offences in the Queensland resources industry. The Bill would also require coal mine operators to ensure that certain statutory positions at a coal mine are only occupied by employees of the coal mine operator.
The new offence will be introduced into the following legislation:
- Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act);
- Mining and Quarrying Safety and Health Act 1999 (Qld) (MQSH Act);
- Explosives Act 1999 (Qld) (Explosives Act); and
- Petroleum and Gas (Production and Safety) Act 2004 (Qld) (PGPS Act).
An employer, or a senior officer, will commit an offence of industrial manslaughter if:
- one of the following events occur:
- the CMSH Act applies and a coal mine worker dies in the course of carrying out work at the coal mine, or is injured in the course of carrying out work at the coal mine and later dies;
- the Explosives Act applies and an employee (who does an act involving explosives) dies in the course of performing an act involving explosives, or is injured in the course of doing an act involving explosives and later dies;
- the MQSH Act applies and a worker dies in the course of carrying out work at the mine, or is injured in the course of carrying out work at the mine and later dies; or
- the PGPS Act applies and a worker dies in the course of carrying out work at the operating plant or the place where the gas work is carried out, or is injured in the course of carrying out work at the operating plant, or the place where the gas work is carried out, and later dies; and
- the employer's (or senior officer's) conduct causes the death of the worker; and
- the employer (or senior officer) is negligent about causing the death of the worker.
The Explanatory Note to the Bill states that the offence is committed where there is 'criminal negligence (recklessness or gross negligence)'.
An employer is defined broadly to include not only a person who employs an employee, but also someone who 'otherwise engages' an employee or other worker (such as a contractor).
A person's conduct will 'cause' the death if it 'substantially contributes' to the death.
The defence of accident (under the Criminal Code) will not apply to the offence.
The offence will carry maximum penalties of up to:
- 20 years' imprisonment for individuals; and
- $13.345 million for corporations.
Who is a senior officer?
A 'senior officer' is an 'executive officer' of a corporation (where the employer is a corporation). An 'executive officer' is defined as:
a person who is concerned with, or takes part in, the corporation's management, whether or not the person is a director or the person's position is given the name of executive officer.
Commencement of proceedings
No limitation period will apply for commencing prosecution proceedings in relation to an offence of industrial manslaughter. Any decision to prosecute will be made by the Work Health and Safety Prosecutor, a statutory role that will be established or otherwise delegated under the Resources Safety and Health Queensland Bill 2019 (Qld) (if passed).
Other significant amendments to the CMHS Act: the requirement that statutory roles be occupied only by employees of the coal mine operator
The Bill also requires the following statutory roles at a coal mine to be occupied only by employees (ie not contractors) of coal mine operators:
- Site Senior Executives (SSE), including anyone appointed to that role during a temporary absence of an SSE;
- Open Cut Examiners (OCE);
- Underground Mine Managers (UMM), any alternate UMM or any persons appointed to be responsible for the control and management of underground activities when the UMM is not in attendance at the mine;
- persons appointed to have control of activities in one or more explosion risk zones in an underground mine;
- persons appointed to have control of mechanical and electrical engineering activities of an underground mine; and
- Ventilation Officers and anyone appointed to that role in the absence of the Ventilation Officer.
The Explanatory Notes to the Bill state that the rationale for this change is to ensure these individuals 'feel that they can raise safety issues and make reports about dangerous conditions without fear of reprisal or impact on their employment'.
These amendments will only take effect 12 months after the date the legislation commences.
The Bill has been referred to the State Development, Natural Resources and Agricultural Industry Development Committee for detailed consideration. The closing date for written submissions is Thursday 27 February 2020 and the Committee is due to table its report on 27 March 2020.
Allens will be publishing a separate note concerning other environmental and commercial implications of the remainder of the Bill.
Please let us know if you would like any assistance in making submissions to the Committee.