New safety regulator for Qld Resources Industry given green light

Introduction

The Resources Safety and Health Act 2020 (Qld) was enacted on 19 March 2020. The Act sees the introduction of a new independent regulatory authority focused on the safety and health of resources workers in Queensland.

The Bill (which became the Act) was introduced on 4 September 2019 in response to recommendations made by the Coal Workers’ Pneumoconiosis Select Committee (Committee). The Committee was established in 2016 in response to the re-identification of Coal Workers’ Pneumoconiosis (CWP) in Queensland in 2015 (CWP is a type of fibrotic lung disease, caused by the inhalation of coal mine dust).¹ The Committee was tasked with analysing the legislative and regulatory arrangements of government and industry that had resulted in the re-identification of CWP cases, as well as creating solutions to combat the failures in the current system.

The Committee made a finding that “[t]here has been a catastrophic failure of the regulatory system that was intended to preserve and protect the health of coal miners.” A total of 68 recommendations were made including a recommendation that “[a]n improved regulatory system, including a properly independent regulator and fully functional health scheme, is clearly needed. Elements of the current system work and should be maintained, but substantial structural change is necessary.”²

New independent regulator

In response to the Committee recommendation, the Act establishes a new statutory body called Resources Safety and Health Queensland (RSHQ) to regulate safety and health in the resources sector. RSHQ is set to be fully independent from the Department of Natural Resources, Mines and Energy, which will retain responsibility for facilitating and growing the resources sector. RSHQ is expected to commence operation on 1 July 2020.

RSHQ’s main function will be to administer the Resources Safety Acts, consisting of:

• 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 comprise inspectorates for coal mines, mineral mines and quarries, explosives and petroleum gas. RSHQ will also include the Safety in Mines Testing and Research Station and the Coal Mine Workers’ Health Scheme.

A chief executive officer (CEO) will also be appointed to oversee the governance of RSHQ. An interesting development is that the Act passed with the inclusion of an amendment, requiring that the CEO possess a professional qualification relevant to the resources industry, as well as professional experience in the resources sector, in order to understand the complex nature of the sector.³

A new independent Commissioner for Resources Safety and Health is also established by the Act. The Commissioner’s responsibilities include advising the Minister about safety and health matters and monitoring, reviewing and reporting on the performance of RSHQ’s functions.⁴

The CEO and Commission roles are yet to be appointed and will be an interesting update to watch out for. The appointment to the position of CEO will be crucial to understanding the future of the new Regulatory Authority, particularly in light of the mandatory industry experience and qualifications required.

Workplace Health and Safety (WHS) Prosecutor

The Act provides for the existing WHS Prosecutor to be utilised to prosecute safety and health offences under the Resources Safety Acts.

‘Serious offences’ can only be prosecuted by the WHS Prosecutor, while other offences may be prosecuted by the WHS Prosecutor or the CEO of RSHQ. A ‘serious offence’ is an offence causing death (including multiple deaths), grievous bodily harm, bodily harm, or involving exposure to a substance that is likely to cause death or grievous bodily harm.

Unlike the Work Health and Safety Act 2011 (Qld) (WHS Act), which is primarily a risk-based scheme with no regard had to the actual eventuation of harm, the Resources Safety regime determines the seriousness of the contravention based on the actual outcome of an incident or the likelihood of harm occurring (not risk of harm alone).

The Act also provides the ability for third parties to request for the Prosecutor to start a prosecution, where one has not already occurred. This is consistent with the process available to people under section 231 of the WHS Act. The third party making the request must reasonably believe that a serious offence has been committed. A written request cannot be made before 6 months from when the act or omission occurred, or more than 12 months after.

The Minister for Natural Resources, Mines and Energy, Honourable Dr Anthony Lynham believes that the Act “…delivers on the government’s commitment to a regulatory framework that strengthens worker trust, ensures independence and transparency, and achieves increased accountability and oversight of regulatory performance.”⁵

Further industry reforms and impacts expected

The Act represents the progression of one of a range of reforms announced by the Queensland Government in respect of mine health and safety, including the proposed extension of industrial manslaughter laws to the sector. Whilst it is not currently possible to predict the impacts of this new regime, operators in the industry should expect an increase in enforcement activities once RSHQ becomes operative, particularly in light of the brief and objectives implemented by the Government in this legislation.

As these developments unfold, we will continue to keep you updated. Should you have any questions, please contact the authors.