The Queensland Government’s push for changes to mining safety legislation has come under fire from big miners, individuals and a range of leading organisations that will be responsible for applying the proposed changes to the mining and resource sectors. Some organisations have even stated that the changes will weaken safety culture in the industry despite a range of key unions backing the reforms.
The Queensland Mineral and Energy Resources and Other Legislation Amendment Bill 2020 proposed changes to safety & health were aimed at strengthening the safety culture in the resources sector through the introduction of industrial manslaughter and additional provisions including requiring that persons appointed to critical safety statutory roles for coal mining operations must be an employee of the coal mine operator.
Dr Anthony Lynham, Minister for Natural Resources, Mines and Energy introduced the Bill to the Queensland Parliament on the 4th February 2020 as a component of the Queensland Government’s responses to the spate of fatalities across the industry over the last eighteen months.
A Parliamentary Committee tasked to review the new Bill and report back to Parliament by 27th March 2020 will no doubt have its’ hands full as it considers 74 submissions from a range of stakeholders, many of whom opposed a range of sections relating to industrial manslaughter and the requirement for statutory mining safety roles to be employed by coal mine operators.
The most damning submission came from the Queensland Law Society which opposed “the introduction of new criminal offences without cogent evidence to demonstrate their need and evidence that existing laws are not capable of capturing the conduct which is the target of the offence”
In his submission, Queensland Law Society (QLS) President, Luke Murphy highlighted the Queensland Government’s lack of evidence to support the introduction stating “Neither the consultation papers nor the Explanatory Notes provide any evidence to suggest that there have been incidents where deaths have occurred that have been unable to be successfully prosecuted under these existing provisions. If there are these instances, then this information should be provided in the explanatory material.”
The submission from the QLS potentially the most worrying for the Queensland Government move towards industrial manslaughter. The omission of the operation of Section 23 of the Criminal Code by the Bill will fundamentally impact the rights of individuals charged by serious offences.
The QLS highlighted that an accused person under the bill is not able to plead circumstances of accident, involuntariness or acts independently of their will. It says that the bill will “infringe and deny fundamental rights given to those accused of homicide offences which carry an extremely high maximum penalty.”
The QLS argues that the Bill, if passed, should at least be aligned with the provisions in the Criminal Code requiring standards of proof and that the same defences that are available to individuals under the Criminal code be available.
It says “defences should be available consistent with the Criminal Code to account for circumstances of accident, involuntariness, reasonable excuse or acts independent of the will; additional consideration should be given to defences for specific duty holders who have exercised due diligence, given the framing of duties under the Resources Safety Acts”
The Law Society also argues that penalties for individuals should not only be limited to custodial sentences.
Mine managers may walk out if Bill is passed
In preparation of its’ submission, the Mine Manager’s Association conducted an anonymous survey of its members in respect of the Queensland Government’s changes.
One of the questions in the survey found that more than half of the current SSE’s will not continue in the industry if the Bill is passed in its’ current form. Most members of the association did not believe that the proposed legislation will improve the safety outcomes of the industry and reduce the current rate of fatalities.
In its’ submission, the Mine Manager’s Association called the current bill “draconian and reactive legislation” and highlighted to the committee the lack of evidence to support the Bill’s introduction.
“We would assert that if there is a diminution in the safety culture that it has more to do with the declining standards when appointing experienced qualified statutory officials and providing quality training in hazard awareness and risk management. These matters can be directed to employers and legislators rather than the senior management on mine sites” the Mine Manager’s Association said.
Big miners condemn the Queensland Government’s response
Glencore’s submission highlighted that a range of significant serious concerns have been raised with the Queensland Government’s Department of Natural Resources, Mines and Energy over an extended period of time.
Glencore said, “over an extended period of time, both Glencore and other key industry stakeholders have raised serious concerns with the Queensland Government about the scope and operation of the proposed industrial manslaughter offence if it was inserted into the unique legislative framework of the CMSH Act.”
The submission said that concerns have also been raised with the Queensland Government from industry stakeholders about the potential for these reforms to adversely impact health and safety outcomes at Queensland coal mines. Glencore expressed concerns that the Queensland Government’s reforms will result in ”very opposite of what this law reform is purportedly supposed to achieve.”
Idemitsu also expressed its’ concerns regarding defences available in the proposed legislation stating, “It is difficult to comprehend how defences which are available for manslaughter under the Criminal Code (and would apply to a worker) could justifiably be removed in respect of industrial manslaughter under the CMSH Act.”
Anglo American’s submission highlighted that the Bill may weaken mine safety systems across the industry
Anglo American confirmed “Our view is that the unintended consequence of the Bill, if It passes as drafted, would be to weaken mine safety systems and safety performance in the State.”
“The exposure of site statutory positions and other site employees to criminal charges, with limited defences, would be a strong deterrent for the individuals in those positions to take ownership of safety-related decisions including risk assessments. The practical implication of this may be for decisions to be delayed, delegated or avoided by Coal Mine Workers – acting in the opposite way to the Intent of Coal Mining Safety and Health Act 1999 (Old). This is a fundamental issue, which the industry has raised throughout the consultation period, and has not been addressed by the Government.”
Peabody Energy, who has been plagued with a range of mine safety incidents in recent time said that the proposed Bill will weaken safety culture through the reduction in sharing of learnings across industry.
“the sharing of learnings across the industry to ensure that all benefit from safer workplaces. In particular, we are concerned that the legislation will lead to safety learnings across the industry not being shared as findings may be tied up in legal privilege. This is disappointing given the current level of collaboration within the industry often leads to proactive, rather than reactive improvements”Peabody Energy submission on the Mineral and Energy Resources and Other Legislation Amendment Bill 2020
On matters relating to statutory office holder being employed by mining companies, the Peabody Energy submission stated, “We fear that this legislation is counterproductive in that it will discourage highly skilled and competent safety experts from assuming these important roles, therefore posing a threat to the ability of resources operations to operate safely into the future.”
QRC emphasises lack of consultation by the Queensland Government
The Queensland Resources Council says that its’ members were in extreme shock, confusion and concern as a result of the proposed industrial manslaughter and statutory position holder changes proposed by the Queensland Government. The extensive submission by the QRC indicates that the industry has grave concerns associated with the process for stakeholder engagement associated with introducing the proposed legislation.
While it is apparent that the QRC fundamentally accepted that industrial manslaughter would be introduced into Queensland legislation it is believed that its members were ill-prepared for what the changes would involve.
In early February 2020, the QRC confirmed through a public statement that it had accepted the introduction of industrial manslaughter in the resources sector. However, the QRC appears very concerned the proposed legislation in that it “unintentionally weakens” the mine safety reforms introduced two decades ago following the Moura 2 Mine tragedy that claimed 11 lives on 7 August 1994.
“Neither they, nor the QRC as their representative organisation, had any knowledge of this proposal prior to the introduction of the Bill into Parliament on 4 February 2020” the QRC submission read.
It confirmed “If site-based statutory positions are not excluded from the application of the “senior officer” industrial manslaughter offence, it risks stifling the free exchange of information about serious incidents. Information sharing could be impeded in this way as a result of legally defensive behaviours in the aftermath of an incident, making it harder to identify and share causes and so improve safety outcomes. This is not a consequence that the resources industry wants to bear.”
The QRC said it believes that the Government has not taken a balanced stakeholder approach to the development the legislative provisions highlighting that regulatory impact statements had not considered the impacts of legislation on practical aspects of mining and resources safety. Submission to the Minister has been largely ignored according to the QRC.
“the Minister has ignored the advice of his own Advisory Committees on how an offence of industrial manslaughter could be introduced into the metal mining, quarrying and coal mining legislation.”Queensland Resources Council Submission on the Mineral and Energy Resources and Other Legislation Amendment Bill 2020
Unions Supportive of reforms
Unions in the sector including the Australian Workers Union, Electrical Trades Union, Australian Manufacturing Workers Union and the CFMEU have welcomed the reforms calling them long overdue for the sector.
The AMWU said, “Overall the AMWU is very supportive of the amendments that are proposed in this area and believes the legislation should be passed.” In its’ submission, It clarified its’ long-held position to remove time limitations and allow greater validity in Industrial Manslaughter investigations by allowing time for a complete and thorough investigation of the circumstances of a fatality in this sector.
The Australian Workers Union (AWU) said “While noting our general support for the bill, the AWU submits that the bill should expand
the definition of “worker” to ensure full and complete protection for all workers engaged in mines and quarries.”
In particular, the AWU believes that contactors and labour-hire workers engaged on the lease and under the control of the operator should be included in the definition of worker.
The AWU addressed a range of concerns held across the industry in respect of the protection of workers from retribution following reporting unsafe acts and conditions.
“AWU is of the view that further regulation is required to further improve onsite safety and take even further steps to ensure mine safety. AWU members have in recent time reported their reluctance to raise safety issues due to a fear they might face reprisals for negatively effecting productivity and output. This is particularly the case for casual, labour-hire and other temporary employees
whose insecure employment status and lack of guaranteed ongoing work leave them at greater risk of reprisal.”
“Whether or not workers are at serious risk of repercussion for raising safety issues, it is evident that a very real fear exists amongst the mining and quarrying workforce that raising safety issues will result in an adverse impact on their employment, creating an environment in which hazards and risks can potentially remain unrectified. “
The AWU said that further protections should be implemented to ensure that mineworkers who do raise safety issues do not face any adverse effects on their employment.
The AWU has called for discriminatory, coercive or misleading conduct provisions contained within the Workplace Health and Safety Act to be replicated under Queensland mining safety legislation.
No evidence to support the Queensland mining safety proposed changes
A preliminary review of the literature on safety culture improvement conducted by AMSJ highlighted a lack of evidence used for the development and implementation of Queensland’s mining safety law changes.
It is apparent that there have been no professional surveys undertaken to quantify and understand aspects of the culture of the industry by the Queensland Government. Culture is a complex issue and validation of cultures is a science in itself.
The fundamental assertion that the introduction of industrial manslaughter offences in legislation will strengthen the safety culture in the resources sector appears, at least on the basis of evidence, is a misapprehension held by the Queensland Government and the supporters of the offences.
This is also supported by the Industry’s professional association, AusIMM, who in their submission stated: “it is not aware of any evidence showing an improvement in safety outcomes following the introduction of similar offences in other industries and jurisdictions, and our members have raised significant concerns about the possible perverse impacts of an industrial manslaughter offence on safety culture and regulatory performance.”
Dr Anne Smith, an industry veteran and mother of an injured coal mine worker has called for a holistic inquiry to determine the impacts of major changes in the industry. Dr Smith condemned that lack of inquiry prior to bringing about the legislation stating in here submission “How can new legislation be proposed without an analysis of the culture and psychology of a sector that has undergone so many changes over the last two decades?”
Dr Smith echoed many proposals submitted to the Parliamentary Committee “As the mother of a seriously injured coal mine worker, if I believed for one moment that this proposed legislation would reduce major accidents and deaths in the coal mining sector you would not be hearing from me but I fear it will add an extra burden and stress to those already working in a high-risk industry.”
The committee will table its report to Parliament on 27 March 2020 on the Queensland mining safety changes.
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