2.1 WHS law for mines in Australia

Each state and territory in Australia is responsible for the management of WHS, and WHS in mining is covered by a range of legislation. Except for Queensland and Western Australia, the general WHS legislation applies to mining and is supplemented by special mining legislation or additional regulations. For example, the Work Health and Safety (Mines) Act 2013 and Regulations 2014 in New South Wales are subordinate to the mainstream WHS Act. In Queensland and Western Australia, the mining WHS legislation applies to mine sites. This does not mean that other legislation may not apply (such as that covering equipment design and supply). Table 2.1 summarises the legislative coverage in Australia.

Table 2.1: WHS legislation in Australia

LEGISLATION NSW Qld Vic. SA NT TAS. WA
WHS    
Mining        
Dangerous goods  
Other Electrical Equipment Health   Radiation Radiation Radiation

The legislation is not uniform between the states, although there is considerable similarity in the more prescriptive regulations. For example, the New South Wales legislation is similar to the Queensland legislation in terms of major (principal) hazard management. Principal hazards are those that have the potential to cause multiple fatalities.

The Queensland mining legislation is overtly focused on WHS management with an emphasis on safety management systems and risk management. In the mainstream WHS legislation, safety management systems are usually only required for major hazardous facilities or mines. Even in those situations, the focus of the management system is on the prevention of catastrophic events.

In Western Australia, where there is only one mining safety act and associated regulations covering both metalliferous and coal mining, the largely prescriptive content of the legislation reflects the period in which it was drafted—1995.

There have been significant moves towards the harmonisation of WHS laws in Australia in recent years. In 2008, the Council of Australian Governments (COAG) formally committed to harmonising WHS legislation through the Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety. Following an extensive national review into the structure and content of model WHS laws, Safe Work Australia took carriage of the development of a national model Act, Regulation and codes of practice.

The model WHS Bill and Regulations came into operation in five jurisdictions on 1 January 2012. Those jurisdictions are the Commonwealth, NSW, Queensland (not mining), the ACT and the Northern Territory. Legislation in South Australia and Tasmania took effect on 1 January 2013. In the remaining jurisdictions, Victoria and Western Australia, there has been no further progress towards adopting the national model legislation.

A similar process was introduced for mining health and safety legislation through the National Mine Safety Framework (NMSF). The NMSF was an initiative of the Ministerial Council on Mineral and Petroleum Resources and aimed for a nationally consistent occupational health and safety regime in the mining industry. The goal of the NMSF was to achieve both consistency and improved safety outcomes through appropriate regulatory frameworks. In November 2005, the ministerial council established a tripartite steering group (comprising state, Northern Territory and Australian Government officials, five industry associations, two trade unions and the Australian Council of Trade Unions) to guide the development of the framework. The steering group finalised its development of seven strategies in an updated report produced in 2009:

  • Strategy 1—A nationally consistent legislative framework
  • Strategy 2—Competency support
  • Strategy 3—Compliance support
  • Strategy 4—A nationally coordinated protocol on enforcement
  • Strategy 5—Consistent and reliable data collection and analysis
  • Strategy 6—Effective consultation mechanisms
  • Strategy 7—A collaborative approach to research.

For a range of reasons, these strategies are still works in progress.

2.1.1 Duty of care

Under the transition to modern WHS legislation, regulators have largely removed explicit or prescriptive regulation and require companies and workers to exercise a ‘Duty of Care’, which means that:

  • Employers are required to provide and maintain a working environment where, as far as is practicable, employees are not exposed to hazards.
  • All employees have a general duty of care to ensure their own safety and health at work. They also have a general duty of care towards others, to ensure that their actions or inaction do not put others’ safety or health at risk.
  • Self-employed people must ensure, so far as is practicable, that no-one will be adversely affected by any of the work done at the mine, or hazards that may arise from it (DMP 2011)

Duty-of-care provisions of Acts and Regulations are built up under common law, which has developed over time as a result of decisions taken in courts of law. Prescriptive regulations are built up under statute law.

The duty of care is shared between employer and employee. However, primary responsibility rests with the employer, as they largely have control over the working conditions. The duty owed by the employer may be higher to an employee who is inexperienced than to one who has experience, reflecting this level of control. Similarly, a high duty of care exists in hazardous environments.

The employer has a duty of care to employees and others to provide:

  • reasonably competent staff
  • sufficient workers to carry out work safely
  • safe places of work
  • proper equipment
  • safe systems of work.

Duty of care encourages the management of WHS rather than compliance with regulations. The differences between common law and statute law are as follows:

  • Under statute law, each element of noncompliance must be proven beyond reasonable doubt.
  • Under common law, each element of failing the duty of care is assessed on the balance of probabilities.
  • Under statute law, the burden of proof lies with the prosecution.
  • Under common law, the burden of innocence lies with the plaintif.

2.1.2 Acceptable level of risk

The second key principle is the management of WHS to an acceptable level of risk. The Queensland Coal Mining Safety and Health Act 1999 (section 30) states:

How is an acceptable level of risk achieved

  1. To achieve an acceptable level of risk, this Act requires that management and operating systems must be put in place for each coal mine.
  2. This Act provides that the systems must incorporate risk management elements and practices appropriate for each coal mine to—
    1. identify, analyse, and assess risk; and
    2. avoid or remove unacceptable risk; and
    3. monitor levels of risk and the adverse consequences of retained residual risk; and
    4. investigate and analyse the causes of serious accidents and high potential incidents with a view to preventing their recurrence; and
    5. review the effectiveness of risk control measures, and take appropriate corrective and preventive action; and
    6. mitigate the potential adverse effects arising from residual risk.
  3. Also, the way an acceptable level of risk of injury or illness may be achieved may be prescribed under a regulation.

Similar definitions are used in legislation covering other jurisdictions. There is no absolute definition of ‘acceptable’ risk. It is something that must be decided for each site and activity.

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