In brief 5 min read
Queensland Parliament has passed legislation that, when it comes into effect on 1 July 2020, will change the state's regulatory framework for health and safety in the resources industry.
Significantly, these laws are likely to further facilitate the increasing regulatory emphasis on enforcement actions and a further move away from what has been described as the 'light-touch' regulatory approach of advising and assisting duty-holders with compliance in Queensland's resources sector.
- On 17 March 2020, Queensland Parliament passed the Resources Safety and Health Queensland Act 2020 (Qld) (the RSHQ Act). When it comes into effect on 1 July 2020, the RSHQ Act will change the state's regulatory framework for safety and health in the resources industry by establishing a new and independent:
- regulator that will be named Resources Safety and Health Queensland (RSHQ); and
- Commissioner for Resources Safety and Health (the Commissioner).
- The RSHQ Act will also allocate responsibility for the prosecution of 'serious offences' to the existing, independent Office of the Work Health and Safety Prosecutor of Queensland (the WHS Prosecutor).
Industry stakeholders' legal, risk and safety management teams should be made aware of these new regulatory bodies.
The RSHQ Act arose from the recommendations of the independently-led Project Management Office (PMO), which the Queensland Government established to examine, and develop for implementation, the key recommendations of the Coal Workers’ Pneumoconiosis Select Committee.
The RSHQ Act is one of three reform packages for mining safety and health that has been proposed in the past few years. The most recently proposed reforms include the introduction of industrial manslaughter offences (as examined in our previous Insight: Industrial manslaughter laws proposed for Queensland resources sector).
The aim of the RSHQ Act is to establish a revised regulatory regime for resources safety and health in Queensland that:
- engenders worker trust;
- ensures appropriate independence and transparency; and
- enhances independent oversight of the performance of the regulator.
The RSHQ Act will affect resource businesses and other duty-holders that are covered by the following legislation (the Resources Safety Acts), which will be amended:
- Coal Mining Safety and Health Act 1999 (Qld);
- Mining and Quarrying Safety and Health Act 1999 (Qld);
- Explosives Act 1999 (Qld); and
- Petroleum and Gas (Production and Safety) Act 2004 (Qld).
RSHQ will be responsible for administering, monitoring and enforcing compliance with the Resources Safety Acts. Its most notable features include:
- Independence – RSHQ will be an independent statutory body, which ensures that it will not be part of, or subject to, oversight from any government department, such as the Department of Natural Resources Mines and Energy. This operational and administrative independence will assist to ensure that RSHQ's function of protecting workers is separate from, and uninfluenced by, the Government’s functions of growing and facilitating mining and exploration projects, and the resources sector as a whole.
- Functions – Its main functions will be to administer the Resources Safety Acts, and to further their respective purposes (eg protecting and regulating safety and health, and monitoring and enforcing legislative compliance). RSHQ will also administer the Safety in Mines Testing and Research Station and the Coal Mine Workers’ Health Scheme.
- Leadership and structure – RSHQ will be led by a Chief Executive Officer who will be required to hold professional qualifications relevant to, and have experience in, the resources sector. Their role is to ensure RSHQ's effective and efficient administration and performance of its functions, as well as managing the organisational unit that allows it to perform its functions. RSHQ's monitoring and enforcement division will comprise coal mines, mineral mines and quarries, explosives and petroleum, and gas inspectorates.
The RSHQ Act will also establish the role of the Commissioner, which will replace the existing Commissioner for Mine Safety and Health. Some key features of the Commissioner's position and functions are below.
- Independence – The role will be established separately from RSHQ and will perform independent monitoring, review and advisory functions related to resources safety and health.
- Functions – The Commissioner's functions will extend to all resources sectors and include:
- generally advising the Minister on matters relating to resources safety and health;
- specifically monitoring, reviewing and reporting to the Minister on RSHQ’s performance; and
- fulfilling the role of chairperson of both the Coal Mining Safety and Health Advisory Committee and the Mining Safety and Health Advisory Committee.
The PMO and various resources industry stakeholders identified the need for independent prosecutorial decision-making.
Accordingly, the independent WHS Prosecutor will be utilised to prosecute 'serious offences' under the Resources Safety Acts. This is the same independent prosecutor appointed under the Work Health and Safety Act 2011 (Qld) – a statutory position currently held by Aaron Guilfoyle.
The WHS Prosecutor will have sole responsibility for prosecuting 'serious offences', which will be a new category of offence incorporated into the Resources Safety Acts.
A ‘serious offence’ is committed where a person who has a safety and health obligation breaches it in circumstances where the breach:
- causes death or bodily harm, or the breach involves exposure of a person to a substance likely to cause death or grievous bodily harm; or
- amounts to an offence that may be prescribed by a regulation to the respective Resources Safety Act.
Other offences (ie non-serious offences) may be prosecuted by either the WHS Prosecutor or the CEO of RSHQ.
Requests for prosecution
The RSHQ Act will also allow any person to request that the WHS Prosecutor commence a prosecution against another person in the following circumstances:
- the request is made in writing;
- the requesting person 'reasonably considers' that the other person has committed a 'serious offence' under one of the Resources Safety Acts;
- no prosecution has been commenced in relation to that alleged offence; and
- at least six months, but no more than 12 months, has passed from the date the alleged offence was committed.
The WHS Prosecutor then has three months to respond, by outlining the status of any related investigation and the reasons as to why a prosecution has or has not been commenced. If the WHS Prosecutor decides not to commence a prosecution, this may be referred to the Queensland Director of Public Prosecutions for similar consideration.
Legal, risk and safety management teams need to be aware of these regulatory reforms that will commence on 1 July 2020 – especially those individuals who may be tasked with making safety incident notifications to RSHQ or navigating other interactions with RSHQ, or the WHS Prosecutor.
Industry stakeholders should make their officers and workers aware of these newly incoming regulatory bodies as they relate to the management of safety and health matters and legal compliance.
Please let us know if you require any further information about how these reforms may impact your business.