Mine Health and Safety Act 2004 (NSW)
An Act to secure the health, safety and welfare of persons in connection with certain mines; to repeal the Mines Inspection Act 1901; to amend certain Acts; and for other purposes.
This Act is the Mine Health and Safety Act 2004.
This Act commences on a day or days to be appointed by proclamation.
In this Act:
(a) to do work at or about a mine, or
(b) for the treatment of any product of a mine.
(a) in relation to land subject to a mining title granted under the Mining Act 1992—the person who holds the title, or
(b) in relation to land subject to a mining licence granted under the Offshore Minerals Act 1999—the person who holds the licence, or
(c) in relation to any other land—the person with the right to extract minerals or quarry product from the land.
(a) the mine holder, if the mine holder nominated himself, herself or itself as the operator of the mine under section 22 and that nomination is not rejected, or
(b) the person nominated by the mine holder as the operator of the mine, and not rejected by the Chief Inspector, under section 22, or
(c) the person declared by the Chief Inspector to be the operator under section 23, or
(d) the person prescribed by, or determined in accordance with, the regulations to be the operator of the mine.
(a) any land, building or part of any building, and
(b) any vehicle, vessel or aircraft, and
(c) any installation on land, on the bed of any waters or floating on any waters, and
(d) any tent or moveable structure.
(a) this Act, or
(b) the Mines Inspection Act 1901, or
(c) the Coal Mine Health and Safety Act 2002, or
(d) the Coal Mines Regulation Act 1982, or
(d1) the Work Health and Safety Act 2011, or
(e) the Occupational Health and Safety Act 2000, or
(f) the Occupational Health and Safety Act 1983.
(a) the crushing, grinding, cutting, classifying, reducing, smelting, concentrating, precipitating or separating of any material that has been extracted from land for the purpose of recovering minerals or quarry product, or
(b) any other process, or part of a process, for recovering minerals or quarry product from material that has been extracted from land.
Notes included in this Act do not form part of this Act.
For the purposes of this Act, a person is at work at a mine throughout the time when the person is at the mine, but not otherwise.
For the purposes of this Act,
(a) the manner of conducting an undertaking, or
(b) the plant or substances used for the purposes of an undertaking, or
(c) the condition of premises (or any part of premises) used for the purposes of an undertaking.
This Act applies to the following places of work (which are called
(a) any place where the extraction of material from land for the purpose of recovering minerals or quarry product is carried out,
(b) any place where the treatment of any such extracted material, or the treatment of minerals or quarry product, is carried out, if that place is at or near the place from which the material, minerals or quarry product were extracted,
(c) any place where the storage or treatment of waste resulting from:
(i) the extraction of material from land for the purpose of recovering minerals or quarry product, or
(ii) the treatment of minerals or quarry product,
is carried out, if that place is at or near the place from which the material, minerals or quarry product were extracted,
(d) any place where recycling operations are carried out, if that place is at or near the place from which material was extracted from land for the purpose of recovering quarry product to be used in the recycling operations,
(e) any place where the manufacturing of ready-mix concrete or bitumen hot mix is carried out, if that place is:
(i) at or near a place from which material was extracted from land for the purpose of recovering quarry product, and
(ii) under the control of the same person or entity that has control of the place referred to in subparagraph (i),
(f) any place where mining exploration is carried out,
Note— See subsection (6).
(g) any place where the treatment of zircon, rutile, ilmenite, monazite and associated minerals is carried out,
(h) any place where offshore exploration or mining activities within the meaning of the Offshore Minerals Act 1999 are carried out,
(i) any place where operations associated with the care, security or maintenance of a place referred to in paragraph (a)–(h), (j) or (k) are carried out during any time when activities or operations at that place are suspended,
(j) any place where operations associated with the decommissioning or abandonment of a place referred to in paragraph (a)–(i) are carried out,
(k) any place where an activity or operation referred to in paragraph (a)–(j) is or has been carried out, and that is being rehabilitated.
Any building, structure, pit, shaft, drive, level, incline, decline, excavation or work that is:
(a) at a place referred to in subsection (1) (a)–(h), and
(b) in the course of construction, and
(c) intended to be part of a mine,
is taken to be part of the
This Act also applies to the following places, whether or not they are places of work:
(a) an abandoned mine (other than an abandoned mine used for the storage, treatment or disposal of waste that is not connected with an activity or operation referred to in subsection (1) (a)–(h)),
(b) any place described in subsection (1) (a)–(k) during any time when activities or operations at that place are suspended,
(c) any place on which drilling operations (within the meaning of section 68) are carried out,
(d) any land (that is not otherwise a mine within the meaning of subsection (1)) on which activities or uses take place that are the subject of, or required to be the subject of, a permit under Division 3 of Part 6.
For the purposes of this section, the
(a) any activity that is ancillary to, or connected with, extracting material for such a purpose, and
(b) such other activities as may be prescribed by the regulations,
but does not include any activity or class of activity that is excluded from the operation of this subsection by the regulations.
For the purposes of this section (but subject to the regulations), a place (the
(a) the relevant place is operating on an ongoing basis, and
(b) the relevant place (or any part of it) is within 10 kilometres of the nearest boundary of the place.
In subsection (1) (f),
(a) (Repealed)
(b) offshore exploration or mining activities within the meaning of the Offshore Minerals Act 1999, or
(c) any activity or class of activity that is excluded from this definition by the regulations.
This Act does not apply to:
(a) any mine or place that is of a class prescribed by the regulations or in circumstances or during time periods prescribed by the regulations, or
(b) any mine or place specified by the Minister in a notice published in the Gazette.
The Minister is to notify any other Minister administering the Work Health and Safety Act 2011 if any notice under subsection (1) (b) is published in the Gazette. However, failure to notify any such other Minister does not affect the validity of the notice published in the Gazette.
If any question arises, otherwise than in proceedings before a court, as to whether a mine or other place is a mine or place to which this Act applies, the question is to be referred to the Minister.
The Minister’s decision on any such question is final and binding on any court in any proceedings arising under this Act or the Work Health and Safety Act 2011.
Subsection (2) does not apply in relation to any such proceedings commenced before the Minister’s decision was made.
The Minister is to notify any other Minister administering the Work Health and Safety Act 2011 if a decision is made by the Minister under this section. However, failure to notify any such other Minister does not affect the validity of the decision.
A decision under this section does not, in itself, operate to impose any liability on a person for anything done or omitted to have been done by the person before the decision was made.
This Act does not apply to a place of work or other place to which the Coal Mine Health and Safety Act 2002 applies, except as provided by Part 9 (Competence standards).
This Act does not apply to a railway or railway operations to which the Rail Safety National Law (NSW) applies.
Subject to the regulations and any notice given by the Minister under section 7 (1) (b), this Act does not apply to:
(a) any place where the extraction or treatment of quarry product is carried out, where those activities are an integral part of any civil engineering work, or
(b) any place where underground work involving the extraction or treatment of quarry product is carried out, where that work is an integral part of any civil engineering work.
In this section,
This Act does not apply to any part of a mine used for the purpose only of manufacturing bricks, tiles, pottery, earthenware pipes, terracotta, chinaware, refractory material or cement.
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.
The objects of this Act are as follows:
(a) to assist in securing the objects of the Work Health and Safety Act 2011 at mines (including the object of securing and promoting the health, safety and welfare of persons at work at mines or related places),
(b) to ensure that the particular hazards associated with mines are identified and that risks arising from those hazards are assessed and eliminated or controlled,
(c) to ensure that effective provisions for emergencies are developed and maintained at mines,
(d) to ensure that managers, supervisors and employees are competent, by ensuring that appropriate health and safety competencies are defined and are implemented in the mining and quarrying industry.
The Work Health and Safety Act 2011 is the main Act that deals with the health, safety and welfare of persons at work. This Part explains how this Act fits in with the Work Health and Safety Act 2011. Basically, this Act creates additional protections, rights and obligations necessary because of the special risks associated with mines. This Part makes it clear that this Act provides for an increase in the standard of protection of persons at work at mines and does not result in less protection than the Work Health and Safety Act 2011 would otherwise provide.
This Act is to be read in conjunction with the Work Health and Safety Act 2011.
If a provision of the Work Health and Safety Act 2011 or the regulations under that Act applies to mines or other places to which this Act applies, that provision continues to apply, and must be observed, in addition to this Act or the regulations under this Act.
For example, Part 2 of the Work Health and Safety Act 2011 imposes duties relating to health, safety and welfare at mines. So does Part 5 of this Act. The provisions of this Act apply in addition to those of the WHS Act and do not remove any WHS protections, rights or obligations.
Without limiting subsection (1) or any other provision of this Act, the failure by an operator to comply with a provision of this Act or the regulations does not affect any liability of any other person under this Act or the regulations or under the Work Health and Safety Act 2011 or the regulations under that Act.
The provisions of the Work Health and Safety Act 2011 and the regulations under that Act prevail, to the extent of any inconsistency, over the provisions of this Act and the regulations under this Act.
For example, if a provision of this Act deals with a certain matter and a provision of the Work Health and Safety Act 2011 deals with the same matter and it is not possible to comply with both provisions, then a person must comply with the Work Health and Safety Act 2011 and not with this Act. If provisions of both Acts deal with the same matter but it is possible to comply with both provisions, then a person must comply with both Acts.
This section is subject to section 104.
Compliance with this Act or the regulations, or with any requirement imposed under this Act or the regulations, is not in itself a defence in any proceedings for an offence against the Work Health and Safety Act 2011 or the regulations under that Act.
Evidence of a relevant contravention of this Act or the regulations is admissible in any proceedings for an offence against the Work Health and Safety Act 2011 or the regulations under that Act.
Where an act or omission constitutes an offence:
(a) under this Act or the regulations, and
(b) under the Work Health and Safety Act 2011 or the regulations under that Act,
the offender is not liable to be punished twice in relation to the offence.
(Repealed)
Part 2 of the Work Health and Safety Act 2011 imposes duties relating to health, safety and welfare at work. Those duties apply to work at mines.
This Part imposes extra duties.
A mine holder must not undertake any work directly related to mining, or allow any other person to undertake any work directly related to mining, at a mine unless the mine holder has nominated one person who is the employer with the day to day control of the mine as the operator of the mine.
A nomination must be made in writing to the Chief Inspector.
A mine holder may nominate himself, herself or itself as the operator of a mine.
If there is more than one separate and distinct mine at a place, the mine holder may nominate the person who is the employer with the day to day control of each such mine, individually or collectively.
A nomination under this section must be in the form prescribed by the regulations.
The Chief Inspector may require a mine holder to provide further information concerning a nomination.
The Chief Inspector must tell the mine holder who made the nomination if the nomination has been rejected. This must be done within 28 days of receiving the nomination or within any further time specified by the Chief Inspector when the Chief Inspector requests further information under subsection (6).
The Chief Inspector may reject a nomination under this section:
(a) if the Chief Inspector believes that the nominated operator is not the employer with the day to day control of the mine, or
(b) in such circumstances as may be prescribed by the regulations.
If a nomination is rejected it is taken, on and from the time the rejection is notified to the operator, not to have been made.
If an operator whose nomination has not been rejected under this section ceases to be the employer with the day to day control of the mine, the mine holder must not undertake any mining, or allow any other person to undertake any mining, at the mine unless the mine holder has nominated another operator of the mine. This section applies to a further nomination in the same way as it applies to an initial nomination.
This section does not require a mine holder to nominate an operator if a previous mine holder nominated an operator other than himself, herself or itself and that nomination was not rejected.
The regulations may specify that work is or is not
The regulations may provide for the circumstances in which a person is taken to cease to be the employer with the day to day control of a mine for the purposes of this section.
Subject to the regulations, the fact that an operator was not, when nominated as the operator under this section, the employer with the day to day control of the mine concerned does not affect the operator’s obligations under this Act.
Subject to the regulations, the fact that an operator has ceased to be the employer with the day to day control of the mine does not affect the operator’s obligations under this Act.
If it appears to the Chief Inspector that there is no operator of a mine or no mine holder exists in relation to a mine or class of mine, the Chief Inspector may declare, by notice in writing, that a specified person, or a person who is a member of a specified class of persons, is the operator of the mine or class of mines.
Any such notice may specify the time from which the declaration takes effect.
If a mine holder nominates a person other than the mine holder as the operator of a mine, the mine holder must provide the person nominated with all information available to the mine holder that may reasonably be relevant to the development and implementation of a mine safety management plan for the mine.
The regulations may prescribe the information that must be provided under this section.
A mine holder who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision.
Maximum penalty: 250 penalty units.
The operator of a mine must ensure that all persons working at the mine (including managers and supervisors) have the necessary skills, competence and resources to undertake their work safely and to ensure the safety of others.
The operator of a mine must prepare a statement, in accordance with this Act and the regulations, stating how the health and safety of the persons who work at the mine, or who are directly affected by the mine, will be protected. This is a
For the purposes of this section, a person may be directly affected by a mine even if the person is not inside the mine.
The regulations may specify which persons or classes of persons are directly affected by a mine for the purposes of this Subdivision.
This section does not require an operator to prepare a mine safety management plan for a mine if:
(a) a previous operator of the mine prepared a plan that complies with this Act and the regulations, and
(b) the plan is adopted by the subsequent operator.
The operator of a mine must ensure that work directly related to mining is not carried out by any person at the mine unless a mine safety management plan that complies with this Act and the regulations has been implemented for the mine.
The regulations may specify that work is or is not
The operator of a mine must ensure that work at the mine is carried out in compliance with the mine safety management plan for the mine. This includes work undertaken by contractors who undertake work at the mine.
A mine safety management plan for a mine must include summaries of, or references to:
(a) any regulations under this Act that apply to the mine, and
(b) any systems, policies, programs, plans and procedures developed and implemented under this Act or the regulations in relation to the mine, and
(c) any codes, standards or guidelines that apply to the mine.
A mine safety management plan for a mine must provide:
(a) the basis for the identification of hazards, and of the assessment of risks arising from those hazards, by the operator of the mine, and
(b) for the development of controls for those risks, and
(c) for the reliable implementation of those controls.
A mine safety management plan must include:
(a) the document that sets out the management structure required under Subdivision 3, and
(b) the contractor management plan required under Subdivision 4, and
(c) the emergency plan required under Subdivision 5, and
(d) any other matter required by the regulations.
The persons who work at the mine must be consulted, in the manner required by the regulations, during the preparation of the mine safety management plan and before its amendment.
The operator of a mine must:
(a) communicate the mine safety management plan, or a summary of the plan, to the persons working at the mine, and
(b) regularly review the mine safety management plan, including a process of consultation with those persons, and
(c) ensure that no contractor starts work at the mine without having been provided with a copy of, or with access to, the mine safety management plan for places of work relevant to the contractor.
An up-to-date copy of the mine safety management plan for a mine must be kept at the mine by the operator of the mine and must be made available for inspection by:
(a) a government official, or
(b) a site check inspector for the mine, or
(c) an authorised representative who is entitled to exercise functions in relation to the mine, or
(d) any person who works at the mine.
The operator of a mine must immediately supply the Chief Inspector with an up-to-date copy of the mine safety management plan for the mine if the Chief Inspector requests a copy.
Section 178 protects information obtained in connection with the administration or execution of this Act by preventing its disclosure except in limited circumstances.
If a person ceases to be the operator of a mine, that person must take all reasonable steps to return to the current mine holder any information provided to the person under section 24 (1) or otherwise obtained by the person in the course of exercising the functions of an operator that are prescribed by the regulations, whether or not updated by the operator. That information must be returned as soon as practicable after the person ceases to be the operator.
As part of the mine safety management plan for a mine, the operator of the mine must prepare a document that sets out the management structure of the mine.
The management structure must:
(a) nominate persons within the structure by position and must outline their areas of responsibility and accountability, and
(b) include competent persons with appropriate engineering competence, and
(c) include competent persons to perform the functions of supervisors of the mine.
An operator must take all reasonable steps to maintain the management structure. This includes having others acting in, and the timely filling of, vacant positions in the structure.
During an emergency, the management structure of a mine may be suspended and a different management structure may be put into place for the duration of the emergency.
The operator of a mine must keep a register at the site of the mine containing the names of persons occupying positions in the management structure of the mine.
The register must cover both current occupants of positions and occupants for the previous 5 years (including any period before the commencement of this section).
The register is to be made available for inspection on request by a government official, a site check inspector or by any person who works at the mine.
As part of the mine safety management plan for a mine, the operator of a mine at which contractors are proposed to be used must prepare a contractor management plan stating how the risks arising from the use of contractors at the mine will be managed.
A contractor management plan for a mine must make provision for the matters prescribed by the regulations.
The operator of a mine at which any contractor proposes to work must ensure, before that work commences, that consultation occurs with the contractor so that:
(a) the contractor is familiar with the relevant parts of the mine safety management plan for that mine, and
(b) the contractor’s arrangements for safety management are consistent with the mine safety management plan for that mine.
An operator of a mine must ensure:
(a) that every contractor who works at the mine is directed to comply with the requirements of this Act and the regulations and the Work Health and Safety Act 2011 and the regulations under that Act, and
(b) that the activities of the contractor are monitored to the extent necessary to determine whether or not the contractor is complying with the operator’s mine safety management plan or with the contractor’s safety management plan (if it has been accepted under section 63) and with the requirements of this Act and the regulations and the Work Health and Safety Act 2011 and the regulations under that Act, and
(c) that, if the contractor is not so complying, the contractor is directed to take action immediately to comply with the safety management plan or the requirements of this Act and the regulations and the Work Health and Safety Act 2011 and the regulations under that Act, and
(d) that if a risk to the health or safety of a person arises because of such non-compliance, the contractor is directed to stop work immediately and to not resume work until those requirements are complied with, unless an immediate cessation of work is likely to increase the risk to health and safety, in which event the contractor must be directed to stop work as soon as it is safe to do so, and
(e) that the contractor and the contractor’s employees receive induction training with respect to work safety and health as specified in the mine safety management plan for the mine, and
(f) that the contractor is provided with details of any relevant changes made to the mine safety management plan for the mine.
A failure by an operator to give a direction, or to ensure that a direction is given, under this section does not affect any liability of the contractor under this Act or the regulations or under the Work Health and Safety Act 2011 or the regulations under that Act.
For the purposes of this Subdivision, an
The operator of a mine must ensure that an emergency plan that complies with this Subdivision is prepared for the mine.
The operator of a mine must ensure that work is not carried out at the mine unless an emergency plan that complies with this Subdivision is implemented for the mine.
An emergency plan must contain an up-to-date plan of the mine and any other plan required by the regulations.
An emergency plan must adequately address emergency evacuation and any other matter prescribed by the regulations.
The operator of a mine must ensure that the emergency plan for the mine is reviewed and tested:
(a) as soon as practicable after any emergency has occurred at the mine, and
(b) whenever the mine safety management plan for the mine is reviewed.
The persons who work at the mine must be consulted, in the manner prescribed by the regulations, during the review.
A review under this section is only required to consider the relevant parts of the emergency plan.
The operator of a mine must keep the records concerning health and safety that are required by this Act or the regulations, in the manner required by the regulations and for at least the time required by the regulations.
The operator of a mine must make the reports concerning health and safety that are required by the regulations, in the manner required by the regulations.
An operator or former operator of a mine who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)—7,500 penalty units, or
(b) in the case of a corporation (not being a previous offender)—5,000 penalty units, or
(c) in the case of an individual (being a previous offender)—750 penalty units or imprisonment for 2 years, or both, or
(d) in the case of an individual (not being a previous offender)—500 penalty units.
If a notice or direction is given under this Act to a person as the operator of a mine and that person is replaced as operator by another person, any notice or direction is taken to have been given to the new operator.
Nothing in this section affects any liability for an offence committed by a person when the person was the operator of a mine.
An employee who works at any mine:
(a) must comply with the mine safety management plan for the mine, and
(b) must follow the operator’s procedures for emergencies as set out in the emergency plan for the mine, and
(c) must, before commencing work and at frequent intervals during the employee’s work day, carefully examine the working place and any machinery or system intended to be used so as to be satisfied that it is safe, and
(d) must take any actions within the employee’s responsibility to control a danger at the mine, and
(e) if the employee is employed by a contractor, must comply with any safety management plan of the contractor that has been accepted by the operator of the mine in accordance with section 63.
An employee who works at a mine must immediately report to the employee’s immediate supervisor (if any) any situation that the employee believes could present a risk to health and safety and that is not within the employee’s competence to control. If the employee’s supervisor is not immediately available, the employee must instead immediately report the situation to another senior person (if any) at the mine.
Maximum penalty:
(a) in the case of a previous offender—45 penalty units, or
(b) in any other case—30 penalty units.
An employee who works at a mine has the right to remove himself or herself from any location at the mine when circumstances arise that appear to the employee, with reasonable justification, to pose a serious danger to the employee’s own health, safety or welfare.
An employer of any person who works at a mine must not dismiss an employee, injure an employee in his or her employment or alter an employee’s position to his or her detriment because the employee:
(a) participates in a consultation process required by this Act or the regulations, or
(b) exercises rights under this Act or the regulations, or
(c) reports a notifiable incident within the meaning of section 88, or
(d) in connection with a health and safety matter, seeks the assistance of, or reports a matter to, an authorised representative, or
(e) performs functions or complies with duties under this Act or the regulations or assists a government official, or
(f) is, or is standing for election to be, a site check inspector.
In proceedings for an offence against this section, if all the facts constituting the offence other than the reason for the defendant’s action are proved, the onus of proving that the dismissal, injury or alteration was not actuated by the reason alleged in the charge lies on the defendant.
If a person is found guilty by a court of contravening this section, the court may order the person:
(a) to pay the employee a specified sum by way of reimbursement for the salary or wages lost by the employee, and
(b) to reinstate the employee to his or her usual position or a similar position.
Such a person must give effect to an order of the court under subsection (3).
Maximum penalty (subsections (1) and (4)):
(a) in the case of a corporation (being a previous offender)—375 penalty units, or
(b) in the case of a corporation (not being a previous offender)—250 penalty units, or
(c) in the case of an individual (being a previous offender)—225 penalty units, or
(d) in the case of an individual (not being a previous offender)—150 penalty units.
This Division applies to an employee of a contractor who works at a mine, to the extent that it applies to work done by the employee, in the same way as it applies to an employee of an operator.
A person who holds a management position at a mine must comply with the mine safety management plan for the mine.
A person who holds a management position at a mine and is an employee of a contractor must comply with any safety management plan of the contractor that has been accepted by the operator of the mine in accordance with section 63.
A person who holds a management position at a mine must inform the operator of the mine if the person is aware that the conduct of the mine does not conform with this Act or the regulations or the Work Health and Safety Act 2011 or the regulations under that Act.
A failure by a person to inform the operator under this section does not affect any liability of the operator under this Act or the regulations or under the Work Health and Safety Act 2011 or the regulations under that Act.
A person who holds a management position at a mine:
(a) must ensure that the workplace and work methods for which the person is responsible are safe, and
(b) must ensure that hazards at the workplace for which the person is responsible are identified and that associated risks are controlled, and
(c) must ensure that safety information concerning the workplace for which the person is responsible is communicated to relevant persons, particularly other supervisors at the change of a shift, and
(d) must have regard to appropriate risk management standards at the workplace for which the person is responsible, and
(e) must implement risk management practices in areas that the person controls.
A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a previous offender—75 penalty units, or
(b) in any other case—50 penalty units.
A supervisor at a mine must comply with the mine safety management plan for the mine.
A supervisor at a mine who is an employee of a contractor must comply with any safety management plan of the contractor that has been accepted by the operator of the mine in accordance with section 63.
A supervisor at a mine must inform the operator of the mine if the supervisor is aware that the conduct of the mine does not conform with this Act or the regulations or the Work Health and Safety Act 2011 or the regulations under that Act.
A failure by a supervisor to inform the operator under this section does not affect any liability of the operator under this Act or the regulations or under the Work Health and Safety Act 2011 or the regulations under that Act.
A supervisor at a mine:
(a) must ensure that safety information concerning that part or aspect of the workplace for which the supervisor is responsible is communicated to relevant persons, particularly other supervisors at the change of a shift, and
(b) must have regard to appropriate risk management standards, and
(c) must implement risk management practices in that part or aspect of the workplace for which the supervisor is responsible.
A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a previous offender—75 penalty units, or
(b) in any other case—50 penalty units.
Except as provided by section 63, a contractor who works at a mine must comply with the mine safety management plan of the operator for the mine to the extent that it applies to work done by the contractor.
A contractor who works at a mine may prepare a safety management plan that includes an assessment of risks associated with the work to be carried out by the contractor at the mine.
Any such safety management plan must address work health and safety issues and must include (but is not limited to) details of the following:
(a) the work process,
(b) the equipment to be used in the work process,
(c) the standards or codes to be complied with,
(d) the records to be kept of the process,
(e) the competencies of the personnel doing the work,
(f) safe work method statements for all work activities assessed as having risks,
(g) any other matter prescribed by the regulations.
A contractor may provide the safety management plan of the contractor to the operator of a mine at which the contractor proposes to work for the operator’s acceptance.
The operator of a mine must not accept the safety management plan of a contractor, or any proposed amendment to the plan, unless:
(a) in the opinion of the operator, the plan is compatible with, and contains an equivalent standard of risk assessment and provides for an equivalent standard of safety to, the mine safety management plan for the mine, and
(b) the plan is otherwise acceptable to the operator.
If the safety management plan of a contractor is accepted by the operator of a mine, the contractor must maintain and keep the safety management plan up-to-date and must submit to the operator any proposed amendment to the plan for the operator’s acceptance.
A contractor who has prepared and had accepted a safety management plan must make the plan available for inspection on request by any authorised representative or by any site check inspector.
A contractor, employee of a contractor or subcontractor of the contractor who works at a mine must comply with the contractor’s safety management plan, if that plan has been accepted by the operator in accordance with this section.
Despite sections 50, 54, 58, 62 and 66, a contractor, employee of a contractor or subcontractor who works at a mine in compliance with the contractor’s safety management plan accepted by the operator under this section only needs to comply with the mine safety management plan of the operator to the extent that they are required to do so by the contractor’s safety management plan.
A contractor must ensure that a copy of the contractor’s safety management plan is available for inspection during the course of work:
(a) by any person working at the place of work concerned and by any person about to commence work at that place, and
(b) by a representative of the operator, a government official, a site check inspector or an authorised representative.
A contractor must not undertake work at a mine unless the contractor:
(a) has undertaken an assessment of the risks associated with the work to be carried out by the contractor, and
(b) has prepared a written safe work method statement that includes a copy of the assessment of those risks, and
(c) has provided a copy of that statement to a person designated by the operator of the mine.
A safe work method statement must:
(a) describe how work is to be carried out, and
(b) identify the work activities assessed as having safety and health risks, and
(c) identify those safety and health risks, and
(d) describe the control measures that will be applied to the work activities, and
(e) make provision for any matters that may be required by the regulations.
A contractor:
(a) must maintain and keep up-to-date the contractor’s safe work method statement, and
(b) must provide a person designated by the operator with any changes made to the safe work method statement.
A contractor must ensure that all work carried out by the contractor, or by an employee of the contractor, at a mine is carried out in accordance with the safe work method statement prepared by the contractor in relation to that mine.
If a risk to the health or safety of a person arises because of non-compliance with the statement, the contractor must ensure that work is stopped immediately and does not resume until the statement is complied with.
However, if the immediate cessation of work is likely to increase the risk to health or safety, the contractor is not required to stop the work immediately but must stop the work as soon as it is safe to do so.
If there is a conflict between the mine safety management plan for a mine and the safe work method statement of a contractor, the mine safety management plan prevails.
A contractor who works at a mine must ensure that any subcontractor of the contractor provides the operator of the mine, or a person nominated by the operator, with a written safe work method statement, for the work to be carried out by the subcontractor, before the subcontractor commences work at the mine.
A contractor who works at a mine must ensure that any subcontractor of the contractor complies with the mine safety management plan of the operator of the mine.
A contractor must ensure that, if any change is made to the safe work method statement during the course of work, a copy of any part of the statement that has been changed and that is relevant to a subcontractor or employee of the contractor is provided to the subcontractor or employee as soon as practicable after the change is made.
A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)—7,500 penalty units, or
(b) in the case of a corporation (not being a previous offender)—5,000 penalty units, or
(c) in the case of an individual (being a previous offender)—750 penalty units or imprisonment for 2 years, or both, or
(d) in the case of an individual (not being a previous offender)—500 penalty units.
A person must not commence drilling operations unless the person has given the Chief Inspector at least 7 days’ written notice of the operations.
If notice has been given of drilling operations on particular land, no further notice is required if other related drilling operations are later commenced on that land.
That notice must contain the details required by the regulations.
In this section,
The regulations may require a person, or persons of a specified class, to give notice to the Chief Inspector of the commencement or discontinuation of operations or activities at a mine that are prescribed by the regulations.
The regulations may prescribe the amount of notice to be given and the details that are required to be contained in the notice.
A person who is required to give notice must comply with the regulations made under this section.
A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)—750 penalty units, or
(b) in the case of a corporation (not being a previous offender)—500 penalty units, or
(c) in the case of an individual (being a previous offender)—375 penalty units or imprisonment for 2 years, or both, or
(d) in the case of an individual (not being a previous offender)—250 penalty units.
A person on whom a duty is imposed under this Part may be subject to more than one duty under this Part.
Compliance with the regulations is not in itself a defence in any proceedings for an offence against this Part.
However, a relevant contravention of the regulations is admissible in evidence in any proceedings for an offence against this Part.
This section is subject to any regulations under section 168 or 169.
See Part 11 for provisions relating to the use of approved mining industry codes of practice in proceedings for offences against this Act.
More than one contravention of a provision of this Part by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.
This section does not authorise contraventions of 2 or more of those provisions to be charged as a single offence.
A single penalty may only be imposed in respect of more than one contravention of any such provision that is charged as a single offence.
Nothing in this Part is to be construed:
(a) as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of this Part, or
(b) as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings.
Subsection (1) does not affect the extent (if any) to which the breach of a duty imposed by the regulations is actionable (including any regulation that adapts a provision of this Part).
The regulations may impose requirements concerning the preparation of plans in relation to the workings of a mine.
Without limiting what the regulations may make provision for, they may make provision for any of the following:
(a) the persons who must prepare plans,
(b) the contents of plans,
(c) the revision of plans,
(d) access to plans,
(e) the inspection of plans by government officials.
Except in cases of emergency, a person other than an operator or a person acting in the management of the mine is not to be employed underground in a mine for more than 8 consecutive hours at any time or for more than 48 hours in a period of 7 consecutive days.
Except in cases of emergency, each person employed underground in a mine is to have at least one full day of 24 consecutive hours off work in each period of 7 consecutive days.
The regulations may prescribe circumstances where some or all of the requirements of subsections (1) and (2) do not apply.
Except in cases of emergency or in the circumstances prescribed by the regulations, a person other than an operator or a person acting in the management of a mine must not be employed at the mine for more than 8 consecutive hours at any time:
(a) in a shaft, except in a cage, or
(b) in any situation in which there is a danger of falling down a shaft, such as at work in close proximity to an unguarded shaft.
In this section,
The Chief Inspector may, subject to section 76 and the regulations, direct the operator of a mine to limit working hours or to alter associated working arrangements at the mine if the Chief Inspector is of the opinion that existing hours of work or associated working arrangements are likely to adversely affect the health or safety of employees of the operator or any other person.
A direction under this section may be given in respect of a particular class of employees or in respect of a particular class of work, or may be given generally.
The operator of a mine must comply with a direction under this section.
This section does not affect any other powers of the Chief Inspector under this Act.
The regulations may make provision concerning the hours of work of persons working at mines.
A person other than an operator or a person acting in the management of the mine is not to be employed in a mine in contravention of the limitation on hours of work specified in the regulations for the purposes of this section.
Subsection (2) does not apply in the case of an emergency.
The operator of a mine at which persons are employed underground must keep prominently displayed, in a place that is easily accessible to the employees, details of shift roster regimes at the mine.
The operator of a mine must keep records of the hours worked underground by each employee at the mine (whether an employee of the operator or any other person) and must make the records available to a government official on request.
The regulations may make provision for or with respect to the keeping of records under this section.
A person who contravenes, whether by act or omission, a provision of this Division, or who permits any person to contravene or fail to comply with any provision of this Division, is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)—375 penalty units, or
(b) in the case of a corporation (not being a previous offender)—250 penalty units, or
(c) in the case of an individual (being a previous offender)—225 penalty units or imprisonment for 2 years, or both, or
(d) in the case of an individual (not being a previous offender)—150 penalty units.
A person is not guilty of an offence against this Division for a contravention of a requirement relating to the time for which persons were employed underground if the person proves that there were special circumstances to render the contravention necessary for the safe and proper working of the mine and that the contravention did not create an increased risk of injury to the persons so employed in the mine.
In this Division:
A person must not conduct tourist activities in or about a mine or use a mine principally for educational purposes unless:
(a) the tourist activities are, or the use of the mine principally for educational purposes is, authorised by a permit issued to that person, and
(b) the person complies with the conditions (if any) to which the permit is subject.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)—750 penalty units, or
(b) in the case of a corporation (not being a previous offender)— 500 penalty units, or
(c) in the case of an individual (being a previous offender)—375 penalty units, or
(d) in the case of an individual (not being a previous offender)—250 penalty units.
Any of the following persons may apply for a permit in relation to a mine:
(a) in relation to a mine that is located on land subject to a mining lease (other than a mining lease in respect of coal), or to a mineral claim, under the Mining Act 1992, the holder of which owns the land—the mining lease or mineral claim holder or another person with that holder’s consent,
(b) in relation to a mine that is located on land subject to a mining lease (other than a mining lease in respect of coal), or to a mineral claim, under the Mining Act 1992, the holder of which does not own the land—the mining lease or mineral claim holder with the land owner’s consent, or another person with the consent of the mining lease or mineral claim holder and the land owner,
(c) in relation to a mine that is not located on land subject to a mining lease or mineral claim under the Mining Act 1992—the owner of the land on which the mine is located or another person with the land owner’s consent.
The Minister may, on application being made to the Minister in writing, issue a permit that:
(a) authorises tourist activities to be conducted in or about the mine, or
(b) authorises the mine to be used principally for educational purposes,
or both, subject to any conditions that the Minister may specify in the permit and any conditions that may be prescribed by the regulations.
An application for a permit is to be in the form approved by the Minister and must be accompanied by any particulars or documents specified in that form or prescribed by the regulations (or both).
The Minister may require an applicant for a permit to furnish additional information within a time specified by the Minister and may refuse to issue a permit if such information is not furnished in that time.
An application for a permit is to be accompanied by the fee determined by the Minister under section 188.
In determining an application, the Minister may consult with any persons, government agencies or other bodies that the Minister considers appropriate.
A permit must not be issued under this section in respect of a mine unless the Minister is satisfied that all necessary precautions will be taken by the applicant to protect the health and safety of persons entering the mine.
The Minister:
(a) may revoke a permit if a condition to which the permit is subject is breached or if the Minister is satisfied that persons cannot enter the mine to which the permit relates:
(i) without risk to their safety or health that is higher than that which is reasonably acceptable for tourist or educational activities, or
(ii) without risk to their health or safety that is not properly managed by the holder of the permit, and
(b) may from time to time attach conditions or additional conditions to a permit or vary the conditions to which a permit is subject.
A revocation of a permit, a variation of conditions to which a permit is subject or the attachment of conditions or additional conditions to a permit does not take effect until notice of the revocation, variation or attachment is served on the occupier of the mine to which the permit relates. However, if the Minister forms the view that an emergency exists, the Minister is not required to give notice and the revocation or variation or attachment of conditions takes effect immediately.
A variation may be made under subsection (1) (b) by way of addition, amendment or deletion of conditions.
The regulations may provide that a permit is taken to be automatically revoked during any period of non-compliance with specified conditions or conditions of a specified class.
This section applies if:
(a) the Minister has issued a permit in relation to a mine to a person, and
(b) that person, or any other person, suffers any injury or incurs any loss as a result of any person entering the mine pursuant to the permit.
The Crown, the Minister and any officer of the Department are not liable for any loss arising out of any injury or loss suffered or incurred by any person who enters the mine area pursuant to the permit.
The operator of a mine must give the Chief Inspector notice in accordance with this section of any of the following incidents (
(a) any incident at the mine that has resulted in a person being killed,
(b) any other incident at the mine of a kind prescribed by the regulations for the purposes of this paragraph,
(c) any incident or other matter occurring at or in relation to the mine that the regulations declare to be an incident or matter that is required to be notified.
Any notice under this section must be given:
(a) as soon as practicable (but not later than 7 days) after the operator becomes aware of the notifiable incident, and
(b) in writing and, if a form has been prescribed by the regulations, in that form.
Any notice must, in the case of a notifiable incident referred to in subsection (1) (a) or (b), also be given:
(a) immediately the operator becomes aware of the incident, and
(b) by the quickest available means.
This subsection does not apply if the operator is aware that another person has given the required notice of the incident.
The regulations may vary the obligations under this section with respect to the person required to give notice and the time and manner in which the notice is to be given.
This section applies if a notifiable incident referred to in section 88 (1) (a) or (b) has occurred at a mine.
The operator of a mine must take measures to ensure that:
(a) plant at that mine is not used, moved or interfered with after it has been involved in a notifiable incident, and
(b) the area and environment at that mine that is connected with the notifiable incident is not disturbed.
If the regulations prescribe measures that satisfy the requirements of this section, the operator is taken to have satisfied those requirements if the operator has taken the measures so prescribed.
This section does not prevent any action:
(a) to help or remove a trapped or injured person or to remove a body, or
(b) to avoid injury to a person or damage to property, or
(c) for the purposes of any police investigation, or
(d) in accordance with a direction of a government official or with the permission of a government official, or
(e) in any other circumstances that may be prescribed by the regulations.
The requirements of this section in relation to any particular occurrence apply only for the period ending 24 hours after notification of the incident in accordance with section 88 or only during any other period prescribed by the regulations.
The operator of a mine must keep records at the mine of every notification given under this Division.
Those records must be kept for at least 5 years.
A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)—750 penalty units, or
(b) in the case of a corporation (not being a previous offender)— 500 penalty units, or
(c) in the case of an individual (being a previous offender)—375 penalty units, or
(d) in the case of an individual (not being a previous offender)—250 penalty units.
The operator of a mine must keep records at the mine of every occasion on which medical or first aid treatment is provided by or on behalf of the operator to a person employed at the mine.
Those records must be kept for at least 5 years.
The operator of a mine must not provide, directly or indirectly, any financial benefit or financial incentive to a person for the purpose of discouraging that person from reporting a health or safety matter to the person’s supervisor, a site check inspector, an authorised representative, a government official or the Department.
In proceedings for an offence against this section, if all the facts constituting the offence other than the reason for the defendant’s action are proved, the onus of proving that the provision of a financial benefit or financial incentive was not actuated for the reason of discouraging the reporting of a health or safety matter lies on the defendant.
A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)—750 penalty units, or
(b) in the case of a corporation (not being a previous offender)— 500 penalty units, or
(c) in the case of an individual (being a previous offender)—375 penalty units, or
(d) in the case of an individual (not being a previous offender)—250 penalty units.
This section applies if it appears to the Minister that an investigation of any of the following is necessary:
(a) any event causing death or serious injury at a mine and its causes and circumstances,
(b) any dangerous occurrence at a mine and its causes and circumstances,
(c) any practice at a mine that, in the opinion of the Minister, adversely affects or is likely to adversely affect the safety or health of persons employed at the mine,
(d) any matter relating to the safety, health, conduct or discipline of persons at or in relation to a mine.
If this section applies, the Minister may constitute a person as a Board of Inquiry to conduct a special inquiry into the event, occurrence, practice or matter.
A Board of Inquiry may, at a special inquiry conducted by it, take evidence on oath or affirmation and, for that purpose, the person constituting the Board:
(a) may require a person appearing at the inquiry to give evidence, to take an oath or to make an affirmation in a form approved by the person presiding, and
(b) may administer an oath to, or take an affirmation from, a person appearing at the inquiry.
In conducting a special inquiry, a Board of Inquiry:
(a) is not bound to act in a formal manner, and
(b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers appropriate.
If the Board of Inquiry agrees, an agent (including an Australian legal practitioner) may represent a person or body at the special inquiry.
A Board of Inquiry, when conducting, and making a determination in respect of, a special inquiry is to sit with an assessor or 2 or more assessors appointed by the Minister for the purposes of the inquiry.
An assessor sitting with a Board of Inquiry has the power to advise the Board of Inquiry but not to adjudicate on any matter before the Board of Inquiry.
A Board of Inquiry has the right to consult, either collectively or individually, and either in public or in private, with assessors sitting with it.
A Board of Inquiry conducting a special inquiry may be assisted by an Australian legal practitioner appointed by the Minister for the purposes of the inquiry.
A Board of Inquiry is to determine its own procedure, except as provided by this Act.
A Board of Inquiry may summon a person to appear at a special inquiry conducted by the Board to give evidence and to produce any documents that are specified in the summons.
A Board of Inquiry may require a person appearing at a special inquiry to produce a document.
A person served with a summons to appear at a special inquiry and to give evidence must not, without reasonable excuse, fail to attend as required by the summons.
A person appearing at a special inquiry to give evidence must not, without reasonable excuse:
(a) when required to be sworn or affirmed—fail to comply with the requirement, or
(b) fail to produce a document that the person is required to produce under this section.
A person attending as a witness before a Board of Inquiry is to be paid expenses of the amount or at the rate approved by the Minister for the purposes of this section.
A Board of Inquiry may require a person appearing at a special inquiry to answer questions.
A person appearing at a special inquiry must answer any such questions.
A person is not excused from a requirement under this section to answer a question on the ground that the answer might incriminate the person or make the person liable to a penalty.
However, any answer given by a natural person in compliance with a requirement under this section is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this section) if the person objected at the time to answering the question on the ground that it might incriminate the person or the person was not warned on that occasion that the person may object to answering the question on the ground that it might incriminate the person.
Further information obtained as a result of an answer given under this section is not inadmissible on the ground that the answer had to be given or that the answer might incriminate the person.
A Board of Inquiry must, within the period required by the Minister, prepare a report as to:
(a) the causes of the event or dangerous occurrence, if the special inquiry concerns an event or dangerous occurrence, or
(b) its findings in relation to the practice or matter, if the inquiry concerns a practice at a mine or a matter relating to the safety, health, conduct or discipline of persons in a mine.
The Minister may, if the Minister thinks fit, publish the report at the time and in the manner determined by the Minister.
No appeal lies from any decision or determination of a Board of Inquiry on a special inquiry.
A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)—750 penalty units, or
(b) in the case of a corporation (not being a previous offender)— 500 penalty units, or
(c) in the case of an individual (being a previous offender)—375 penalty units, or
(d) in the case of an individual (not being a previous offender)—250 penalty units.
If the Minister is of the opinion that any action is being, or is about to be, carried out by any person at a place of work to which this Act applies that involves, or is likely to result in, a serious breach of a provision of:
(a) this Act or the regulations, or
(b) the Work Health and Safety Act 2011 or the regulations under that Act,
the Minister may order that the person is to cease or is not to carry out the action and that no action, other than any action that may be specified in the order, is to be carried out in or in the vicinity of the place, or a specified part of the place, within a period not exceeding 28 days after the day of the order.
An order takes effect on and from the time at which:
(a) a copy of the order is provided to the operator of the mine by the Minister, or
(b) a copy of the order is affixed in a conspicuous place in the mine by the Minister, or
(c) the person carrying out or about to carry out the action the subject of the order is notified by the Minister that the order has been made,
whichever is the sooner.
In this Part, a reference to action being, or about to be, carried out includes a reference to action that should be, but is not being, carried out and the Minister may make an order, in accordance with this Part, that any such action is to be carried out.
The regulations may modify this Part in relation to its application to a stop work order that specifies actions that must be carried out.
Without limiting the Minister’s delegation powers under section 182, the Minister may, by instrument in writing, delegate to any or all government officials the functions of giving notice or providing or affixing copies of an order under this section.
The Minister is not required, before making a stop work order, to notify any person who may be affected by the order.
The Minister may extend a stop work order for any further period or periods, of no more than 28 days each, that the Minister thinks fit.
An order extending a stop work order takes effect in the same way as the original order, that is, on and from the time referred to in section 100 (2).
After the Minister makes a stop work order, the Director-General must immediately consult with the person carrying out or proposing to carry out the action the subject of the order to determine whether any modification of the action may be sufficient to avoid a serious breach of a provision of any Act or regulation referred to in section 100 (1).
A non-disturbance notice, improvement notice or prohibition notice issued under the Work Health and Safety Act 2011 that requires or permits work or an activity the subject of a stop work order in force under this Part to be significantly affected is inoperative to the extent of any inconsistency with the stop work order.
An approval, notice, order or other instrument made or issued by or under any other Act that requires or permits work the subject of a stop work order in force under this Part to be significantly affected is inoperative to the extent of any inconsistency with the stop work order.
This section has effect whether the approval, notice, order or other instrument concerned was made or issued before or after the making of the stop work order.
If a person on whom a stop work order is imposed does not comply with the order, within the period specified in the order, the Minister may cause work to be carried out for the purpose of stopping the work specified in the order or otherwise giving effect to the order.
Any costs or expenses incurred by or on behalf of the Minister under this section are a debt due to the Crown by the person who was carrying out or proposing to carry out the action to which the order relates.
In any proceedings instituted for the recovery from a person of a debt due by that person to the Crown under this section, a certificate of the Minister that a specified amount is the amount of the debt so due is evidence of that fact.
A debt due by any person to the Crown under this section is recoverable whether or not the person is convicted of an offence under section 106.
A person on whom a stop work order is imposed, or any person directed by the Minister to take action for the purposes of subsection (1), may, upon giving reasonable notice to the occupier of the land, enter on or remain on any land for the purpose of complying with the direction of the Minister or with the stop work order, as the case may require.
A court that convicts a person of an offence under section 106 may, on the application of the prosecutor, order the person to pay to the Crown the amount that the court is satisfied the Crown is entitled to recover from the person under this section in respect of the failure to which the offence relates. Any amount paid by a person under such an order is taken to have been recovered from the person under subsection (2) and is to be dealt with accordingly.
For the purposes of subsection (6), a court that makes a finding that a person is guilty of an offence under section 106 without proceeding to a conviction is taken to have convicted the person of the offence.
For the purposes of this section, a stop work order is taken to have been imposed on the person or persons carrying out the action, or proposing to carry out the action, to which the order relates.
A person who, without reasonable excuse, fails to comply with a requirement imposed by a stop work order is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)—1,500 penalty units and in the case of a continuing offence, a further penalty not exceeding 750 penalty units for each day the offence continues, or
(b) in the case of a corporation (not being a previous offender)—1,000 penalty units and in the case of a continuing offence, a further penalty not exceeding 500 penalty units for each day the offence continues, or
(c) in the case of an individual not acting in the capacity of an employee (being a previous offender)—750 penalty units and in the case of a continuing offence, a further penalty not exceeding 375 penalty units for each day the offence continues, or
(d) in the case of an individual not acting in the capacity of an employee (not being a previous offender)—500 penalty units and in the case of a continuing offence, a further penalty not exceeding 250 penalty units for each day the offence continues, or
(ai) the supply of drinking water at a mine,
(aj) the provision of facilities for the taking of meals both on the surface and underground at a mine,
(ak) the supply and maintenance of safety equipment for the use of persons employed at a mine,
(al) the transport of persons and materials in a mine,
(am) requiring persons employed in a mine who carry out prescribed functions that may affect the safety or health of other persons to hold any evidence of competence that may be prescribed,
(an) the ventilation of underground mines,
(ao) the environmental working conditions in a mine,
(ap) the control of the temperature and humidity to which persons may be exposed in a mine,
(aq) lighting in or about mines,
(ar) prohibiting the taking into mines of items that may affect the safety of persons at mines,
(as) searching persons, before entry into mines, for items referred to in paragraph (ar) and the confiscation and disposal of any such items found,
(at) the fencing, enclosing or sealing of abandoned mines or parts of mines by any person (including the owner or occupier of land on which those abandoned mines or parts of mines are located),
(au) requiring the provision of information, and the means of information provision, at a mine and prescribing:
(i) the number, design, construction, size and location of those means of information provision, and
(ii) the matters that must be displayed or provided, and
(iii) the class or classes of persons to whom information is to be provided,
(av) the preparation, maintenance, keeping and preservation of plans, sections, copies or tracings of any original plans and sections, and drawings of mines (including abandoned mines) and of workings in or about mines and of related documents, including provisions for or with respect to the preparation of those plans, sections, copies and drawings by the Director-General and the recovery of the cost of their preparation, maintenance, keeping and preservation,
(aw) surveys of mines (including abandoned mines),
(ax) the furnishing or production of copies of plans, sections and drawings of mines (including abandoned mines) and the furnishing of information relevant to the preparation of those plans, sections and drawings to the Director-General, inspectors and other persons,
(ay) the supply of, or the furnishing of information from, copies of plans, sections or drawings filed with the Director-General to persons,
(az) prescribing, in respect of tailings disposal areas, engineering, environmental and safety standards and practices to be adopted in constructing and using emplacement areas and steps to be taken to keep emplacement areas secure,
(ba) the provision, retention, maintenance and inspection of records at a mine,
(bb) the obligations of land owners and land occupiers at or in the vicinity of mines or abandoned mines,
(bc) the functions of the Chief Inspector,
(bd) the functions of inspectors, investigators or mine safety officers, including provisions for or with respect to the production of identification cards by inspectors, investigators or mine safety officers and the warnings to be administered to persons in the course of an inspection,
(be) the functions of site check inspectors including provisions for or with respect to the production of identification cards by such persons,
(bf) the analysis of any substance,
(bg) the fees chargeable or payable for doing any act or providing any service in connection with this Act or the regulations,
(bh) forms for the purposes of this Act or the regulations,
(bi) the manner of serving notices under this Act or the regulations,
(bj) any information to be provided to any person by an inspector or other person exercising functions under this Act,
(bk) the persons, or class of persons, entitled to vote at an election under this Act,
(bl) the manner in which an election under this Act must be held,
(bm) the fitness for work of persons who work at mines,
(bn) the setting and variation of working time arrangements of persons who work at mines,
(bo) the consumption of alcohol or other drugs by persons who work at mines or who visit mines or abandoned mines under the authority of a permit under Division 3 of Part 6,
(bp) the content and operation of a management structure for a mine,
(bq) supervision of persons who work at mines,
(br) the duties of an operator of a mine in relation to subcontractors,
(bs) periodic performance reports by operators of mines concerning the occurrence of notifiable incidents within the meaning of section 88,
(bt) regulating tourist activities and the use of mines for educational purposes,
(bu) the lodgment of applications under this Act,
(bv) the transfer of any permit and the fees payable in respect of such a transfer,
(bw) the duration of any permit, which may be indefinite or of specified length,
(bx) modifying the requirements of Part 5 so that they apply, with the prescribed modifications, to and in respect of persons who conduct tourist activities in or about a mine, or use a mine for educational purposes, under the authority of a permit issued under Part 6.
The regulations may authorise a person to apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision under this Act or the regulations that is of a class prescribed by the regulations.
The regulations may require any person who applies to the Civil and Administrative Tribunal for an administrative review of a decision under this Act to notify any person of that application.
Despite section 60 of the Administrative Decisions Review Act 1997, the regulations may make provision for the operation and implementation of a decision under administrative review, or pending administrative review, by the Civil and Administrative Tribunal.
The Minister is not to recommend the making of any such regulation unless the Minister certifies that the Minister administering the Civil and Administrative Tribunal Act 2013 has agreed to the provisions concerned.
The regulations may adapt the provisions of Part 5 to meet the circumstances of any specified class of case.
The regulations may specify contractors or classes of contractors:
(a) in relation to whom some or all of Subdivision 4 of Division 2 of Part 5 does not create any duties or creates duties subject to conditions, or
(b) to whom some or all of Division 6 of Part 5 does not apply or applies subject to conditions.
Any regulation made under this section applies only to contractors who do not undertake mining activities as part of the work that they undertake in connection with a mine.
The regulations may apply, adopt or incorporate any publication as in force at a particular time or from time to time.
The regulations may create offences punishable by a penalty not exceeding 250 penalty units.
The regulations may exempt, or provide for the exemption of, persons, or persons of a prescribed class, or any act, matter or thing, or any prescribed class of act, matter or thing, either absolutely or subject to conditions, from any provision of the regulations.
The regulations may exempt an operator, or a class of operators, from the requirement to prepare a mine safety management plan and from requirements relating to that plan under Subdivision 2 of Division 2 of Part 5.
If a provision of this Act requires consultation to be carried out with persons who work at a mine, in the manner required by the regulations, the regulations may specify the circumstances where it is sufficient for the health and safety committee for the mine (established under the Work Health and Safety Act 2011) or a site check inspector for the mine to be consulted about the matter rather than the persons who work at the mine.
This section does not limit the mode of consultation that may be required by the regulations, or the circumstances where consultation may be required.
Section 229A of the Work Health and Safety Act 2011 provides for offences under this Act and the regulations to be prosecuted under that Act.
If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision unless the director or person satisfies the court that:
(a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or
(b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.
A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or has been convicted under the provision.
Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation under this Act or the regulations.
In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a director) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section.
A person:
(a) who aids, abets, counsels or procures, or
(b) who, by act or omission, is in any way directly or indirectly knowingly concerned in or a party to,
the commission of an offence against this Act or the regulations is taken to have committed that offence and is punishable accordingly.
Subsection (1) does not apply to a person who is acting in the ordinary course of the person’s duties as an officer of a Federal or State industrial organisation of employees or employers.
It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that:
(a) it was not reasonably practicable for the person to comply with the provision, or
(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.
It is not a defence to an action in any criminal proceedings that a given course of action was not objected to by the Chief Inspector or the Department, even if this Act gives the Chief Inspector or the Department an opportunity to object to that course of action.
A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made:
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this or any other Act, or
(c) for the purposes of any legal proceedings arising out of this or any other Act or of any report of any such proceedings, or
(d) in accordance with a requirement imposed under the Government Information (Public Access) Act 2009, or
(e) in accordance with a requirement imposed under the Ombudsman Act 1974, or
(f) with the consent of the Minister, or
(g) with other lawful excuse.
Maximum penalty: 20 penalty units.
A person must not, in giving any answer required of the person by a person under this Act, or in complying with a requirement to make a report under this Act, to furnish any returns, statistics or other information or to inform a person of the substance of any instructions, make a statement that the person knows to be false or misleading in a material particular or recklessly make a statement that is false or misleading in a material particular.
Maximum penalty:
(a) in the case of a previous offender—150 penalty units, or
(b) in any other case—100 penalty units.
A person does not commit an offence against this Division by giving any answer, information or a document if the person, when giving the answer, information or document:
(a) tells the other person, to the best of his or her ability, how it is false or misleading, and
(b) gives the correct information, in circumstances where the person has, or can reasonably obtain, the correct information.
The Chief Inspector is, in the exercise of the Chief Inspector’s functions, subject to Ministerial control and direction.
The Minister may, by instrument in writing, delegate to the Director-General any of the functions conferred or imposed on the Minister by or under this Act (other than this power of delegation).
The Minister may, by instrument in writing, delegate to the Board any of the functions conferred or imposed on the Minister under Part 9.
The Chief Inspector may, by instrument in writing, delegate to any inspector any of the functions conferred or imposed on the Chief Inspector by or under this Act (other than this power of delegation).
The Director-General may, by instrument in writing, delegate to an authorised person any function conferred or imposed on the Director-General by or under this Act, including this power of delegation.
The Director-General may subdelegate to any authorised person any function delegated to the Director-General by the Minister if the Director-General is authorised to do so by the Minister.
In this section:
(a) an officer of the Department, or
(b) any other person prescribed by the regulations.
A document that is authorised or required by this Act or the regulations to be served on any person may be served by:
(a) in the case of a natural person:
(i) delivering it to the person personally, or
(ii) sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or
(iii) sending it by facsimile transmission to the facsimile number of the person, or
(b) in the case of a body corporate:
(i) leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or
(ii) sending it by facsimile transmission to the facsimile number of the body corporate.
Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.
If this Act or the regulations require something to be sent or given to the operator of a mine, it is sufficient that it is sent or given to the most senior person identified in the operator’s management structure who is at work or given to a person at the mine or at the premises at which the relevant part of the work of the mine is carried out.
If this Act or the regulations require something to be sent or given to the Chief Inspector, it is sufficient that it is sent or given to a person, or left at a place, specified by the Chief Inspector by order published in the Gazette.
The Minister may determine the fees and charges payable:
(a) by an applicant for a certificate of competence, and
(b) by a candidate for an examination conducted by the Board, and
(c) for any service provided by the Board, and
(d) for the testing of plant or material for registration for the purpose of this Act or the regulations, and
(e) for the issue of any tourist or educational permit under section 85, and
(f) for any other purpose in connection with this Act authorised by the regulations.
Any determination made under this section is subject to the regulations.
A matter or thing done or omitted to be done by a protected person does not, if the matter or thing was done or omitted in good faith for the purpose of executing any provision of this Act or the Work Health and Safety Act 2011, subject such person personally to any action, liability, claim or demand.
In this section,
(a) the Minister,
(b) the Director-General,
(c) the Chief Inspector,
(d) a member of the Board,
(e) a site check inspector,
(f) an inspector,
(g) a mine safety officer,
(h) an investigator,
(i) a person who constitutes a Board of Inquiry,
(j) an assessor sitting with a Board of Inquiry,
(k) a member of staff of the Department.
Nothing in this Act, other than a provision creating an offence, imposes an obligation on a person to exercise any power because the person is a site check inspector.
(Repealed)
Schedule 5 has effect.
The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.
A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
(Repealed)
(Section 196)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
• this Act
• Work Health and Safety Legislation Amendment Act 2011
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
In this Part:
Without limiting clause 1, the regulations may make provision for plans, systems or other arrangements developed under the former Act and in force or having effect immediately before the repeal of the former Act to be acceptable as fulfilling any requirement imposed by or under this Act for the duration of any phasing-in period prescribed by the regulations.
Without limiting clause 3, an occupational safety and health policy prepared for a mine under the Mines Inspection General Rule 2000 as in force immediately before the repeal of the former Act continues to have effect in respect of the mine after that date and until replaced by a mine safety management plan prepared under this Act.
A proclamation under section 1 (2) of the former Act and in force immediately before the repeal of the former Act has effect as if it were a regulation under section 7 (1) (a) of this Act (but may be revoked by any such regulation).
A decision of the Minister under section 76 of the former Act, and in force immediately before the repeal of the former Act, that a mine was not a mine to which the former Act applied has effect as if it were a decision under section 8 of this Act.
Subclause (1) does not prevent a further decision being made under section 8 of this Act as to whether a mine that was the subject of a decision under section 76 of the former Act is, or is not, a mine to which this Act applies.
An agreement under section 29 (2) of the former Act in force immediately before the repeal of the former Act continues to have effect despite the provisions of section 76 of this Act. The agreement cannot be varied but may be terminated by the operator concerned or by the Chief Inspector.
Despite the provisions of section 76 of this Act, an approval under section 29 (4) of the former Act in force immediately before the repeal of the former Act is taken to be an approval authorising employment contrary to the provisions of section 76 of this Act. Such an approval continues to have effect until it expires, or is revoked by the Chief Inspector, whichever occurs sooner.
A direction given by the Chief Inspector under section 30 of the former Act in force immediately before the repeal of the former Act is taken to be a direction given under section 77 of this Act. Such a direction continues to have effect until it expires, or is revoked by the Chief Inspector, whichever occurs sooner.
On and from the repeal of the former Act:
(a) a certificate of competency as a production manager granted under section 7 of the former Act is taken to have been granted under section 118 of this Act in relation to the functions ordinarily required to be exercised by the holder of a position prescribed by the regulations for the purposes of this clause, and
(b) a certificate of competency as shotfirer granted under section 18G of the former Act is taken to have been granted under section 118 of this Act in relation to the functions ordinarily required to be exercised by the holder of a position prescribed by the regulations for the purposes of this clause, and
(c) a certificate of competency as an engine driver relating to winders and hoists granted under section 14 of the former Act is taken to have been granted under section 118 of this Act in relation to the functions ordinarily required to be exercised by the holder of a position prescribed by the regulations for the purposes of this clause.
A permit issued under section 48C of the former Act and in force immediately before the repeal of the former Act is taken to be a permit issued under section 85 of this Act to the person who was the owner (within the meaning of the former Act) of the mine concerned immediately before the commencement of this clause.
Sections 86 (4) and 87 of this Act apply to and in respect of any such permit.
Division 4 of Part 4 of the former Act continues to apply for 3 days after the repeal of the former Act as if it had not been repealed.
Without limiting clause 1, the regulations may make provision for a person who held a position in the management structure of a mine immediately before the repeal of the former Act to be taken to hold a prescribed position in the management structure of a mine under this Act.
Part 7 extends to an event that occurred in the 2 days immediately before the commencement of that Part.
A Board of Inquiry constituted under the former Act and active immediately before the repeal of the former Act continues under this Act as if it were constituted under this Act and may continue any special inquiry under that Act as if the Act had not been repealed. In particular, section 47L of the former Act continues to apply to such a special inquiry as if it had not been repealed.
A person who held office under the former Act as a check inspector or employee representative for a mine immediately before the repeal of the former Act is taken to have been appointed as a site check inspector under this Act for the mine. The person’s appointment as a site check inspector under this Act is taken to have commenced when the person was elected to the office concerned under the former Act.
On and from the commencement of this clause, a reference in any Act other than this Act, in any instrument made under another Act, or in any document of any kind, to the former Act is to be read as a reference to this Act.
The operation of this Part is subject to the regulations.
In this Part:
On the new Board commencement, the former Board is dissolved.
On the dissolution of the former Board, a person who held office as a member of the former Board immediately before its dissolution ceases to hold office as such but is eligible (if otherwise qualified) to be appointed as a member of the new Board.
A person who ceases to hold office as a member of the former Board because of the operation of this clause is not entitled to be paid any remuneration or compensation because of ceasing to hold that office.
For the purpose of facilitating the appointment of members of the new Board to take effect on the new Board commencement, action may be taken under section 114 as amended by the amending Act after the date of assent to that Act and before the new Board commencement.
Anything done by the former Board before the new Board commencement that has any force or effect immediately before the new Board commencement is taken to have been done by the new Board.
This clause extends to but is not limited to the following things done by the former Board:
(a) an assessment of competence,
(b) the conduct of an examination,
(c) the grant, suspension or cancellation of, or the imposition of conditions on, a certificate of competence or exemption,
(d) any approval given or appointment or recommendation made by the former Board.
Any delegation to the former Board by the Minister that is in force under section 182 immediately before the new Board commencement is taken to be a delegation to the new Board.
The first annual report of the new Board under section 117 after the new Board commencement is to include a report of the activities of the former Board during the preceding year.
A reference in section 189 to a member of the Board includes a reference to a member of the former Board in relation to a matter or thing done or omitted to be done before the new Board commencement.
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