MEROLA 2020 industrial manslaughter and other safety amendments

6 minute read  20.02.2020 Deanna McMaster, Harriet Smith

Queensland's MEROLA 2020 bill will introduce industrial manslaughter offences into the coal, mining and quarrying, explosives and oil and gas safety regimes in Queensland.

 


Key takeouts

  • Industrial manslaughter offences into the coal, mining and quarrying, explosives and oil and gas safety regimes introduced in Queensland.
  • Statutory office holders at coal mines (including site senior executives) required to be employed by the coal mine operator.
  • Clarity of the (previously uncertain) issue of the availability of costs orders in statutory prosecutions.

The Mineral and Energy Resources and Other Legislation Amendment Bill 2020 (Qld) (MEROLA) tabled on 4 February 2020 proposes to introduce industrial manslaughter offences into the Coal Mining Safety and Health Act 1999 (Qld) (CMSHA), Mining and Quarrying Safety and Health Act 1999 (Qld) (MQSHA), Petroleum and Gas (Production and Safety) Act 2004 (Qld) (P&G Act), and Explosives Act 1999 (Qld) (Resources Safety Acts). The other key safety amendments seek to clarify the requirements for the appointment of statutory office holders at coal mines and the availability of costs orders in statutory prosecutions.

MEROLA has been referred to the State Development, Natural Resources and Agricultural Industry Development Committee for review. In light of the number of incidents at mine sites in recent months, as well as the findings of the Brady Review of all fatal accidents at Queensland mines and Quarries from 2000-2019, we expect that the safety-related amendments will pass in some form this year.

There are a range of other proposed amendments in the MEROLA 2020 bill which introduce additional significant structural changes to the operation of resources law in Queensland.

Industrial manslaughter in MEROLA Bill

MEROLA seeks to align the offence provisions under the Resources Safety Acts with the Work Health and Safety Act 2011 (Qld) (WHS Act). The Explanatory Notes state that 'the current offences in [the Resources Safety Acts] are insufficient where actions or omissions involving criminal negligence (recklessness or gross negligence) result in worker fatalities', and accordingly, the offences are intended to 'ensure that there are sufficient penalties' in these circumstances.

At the time of introducing the offences into the WHS Act, the Queensland Government sought to introduce amendments to create similar offences in the Resources Safety Acts simultaneously. However, industry successfully deferred the move in light of the lack of prior industry consultation on the provisions.

Following fatalities at Queensland mines and quarries in the last 12 months, the Department of Natural Resources, Mines and Energy (Department) released a consultation draft proposing to introduce the offence of industrial manslaughter into the Resources Safety Acts in October 2019. MEROLA largely reflects the consultation draft.

The proposed offences are in almost identical terms to the WHS Act. Broadly, the offence is committed where:

  • A worker dies in the course of carrying out work at a mine, coal mine, operating plant or place where gas work is carried out, or is injured and later dies;
  • The employer or senior officer's conduct causes the death of the worker; and
  • The employer or senior officer is criminally negligent about causing the death of the worker by the conduct.
  • The corporate offence may be committed by an 'employer', which is specifically defined in each Act to capture the employing entities of workers at mines and petroleum or gas operating plant.

MEROLA also creates an offence for 'senior officers' as established under the WHS Act. A senior officer is defined as an executive officer of the employer, being 'a person who is concerned with, or takes part in, its management, whether or not the person is a director or the person’s position is given the name of executive officer'. This is capable of a much wider interpretation than the definition of 'officer' in the Corporations Act 2001 (Cth), which is used for most other officer obligations, and in theory, may extend to individuals below the executive level.

The offence is an indictable offence and there is no limitation period for commencing a prosecution. Subject to the passing of the Resources Safety and Health Queensland Bill 2019 (Qld), the decision to prosecute will be made by the WHS Prosecutor.

The proposed penalties extend up to 20 years' imprisonment for an individual and 100,000 penalty units for bodies corporate, which is currently approximately $13.3 million.

Statutory appointments – coal mines only

MEROLA seeks to amend the provisions under the CMSHA which require a coal mine operator or a site senior executive (SSE) to appoint individuals to particular roles at the coal mine. Specifically, the amendments require that the persons who fulfil following positions be employed by the coal mine operator:

  • SSE, as well as any person appointed to fulfil the role of the SSE on a temporary basis;
  • underground mine manager and alternate underground mine managers;
  • persons fulfilling statutory roles prescribed under regulation for surface mines;
  • persons responsible for the control and management of underground activities in the absence of the underground mine manager;
  • ERZ controllers;
  • persons in control of mechanical and electrical engineering activities; and
  • ventilation officers.

These amendments did not form part of the consultation draft and MEROLA does not seek to replicate the changes in the MQSHA or P&G Act. The justification for the amendments outlined in the Explanatory Notes is to 'provide employment security for critical safety statutory officer holders so that they feel that they can raise safety issues and make reports about dangerous conditions without fear of reprisal or impact on their employment'.

The proposed amendments provide for a 12 month transition period following commencement of the MEROLA.

Costs awards

MEROLA clarifies that parties may seek and be awarded the costs of representation in proceedings for an offence under the MQSHA and CMSHA.

These amendments come not long after the decision of the Industrial Court of Queensland in Kilby v Harrison; Saxon Energy Services Australia Pty Ltd v Harrison [2019] ICQ 21. In this decision, O'Connor VP found that section 319(3) of the Industrial Relations Act 1999 (Qld) (which was broadly adopted in 530(6) of the Industrial Relations Act 2016 (Qld)) precluded the Industrial Magistrates Court from making an award of costs for legal representation.

The amending provisions also seek to retrospectively validate costs awards which have been sought by parties to the proceedings on the basis of the provisions under the Justices Act 1886 (Qld) for prosecutions under the MQSHA and CMSHA. A further amendment has been introduced into the P&G Act to validate costs orders made prior to December 2014.

Timing and next steps

Save for the statutory appointment provisions, the safety-specific amendments in MEROLA will not fundamentally alter what is required of businesses to comply with their obligations under the Resources Safety Acts (although the risk profile has increased).

Alongside the likely introduction of the Resources Safety and Health Bill 2019 (Qld), the amendments signal a clear shift in regulatory approach that mirrors the developments in mainstream workplaces.

MEROLA has been referred to the State Development, Natural Resources and Agricultural Industry Development Committee. The committee has invited submissions from any interested party by 9.00am on 27 February 2020 and is due to table its report on 27 March 2020. The full Committee review timeline is set out below:

Submissions close: Thursday 27 February 2020 at 9.00 am

Public briefing: Monday 17 February 2020 at 11:30 am - Public briefing program

Public hearings:
Tuesday 3 March 2020 – Brisbane
Tuesday 3 March 2020 – Moranbah

Report due date: Friday 27 March 2020

How can MinterEllison help

Please contact our team below if you would like to discuss the impact of the MEROLA on your business. We can also assist you if you would like to make or contribute to a submission to the State Development, Natural Resources and Agricultural Industry Development Committee regarding MEROLA.

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https://www.minterellison.com/articles/merola-2020-industrial-manslaughter-and-other-safety-amendments

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