Mines Safety and Inspection Amendment Act 2004 (WA)

Western Australia

Mines Safety and Inspection Amendment Act

2004

Western Australia

Mines Safety and Inspection Amendment Act

2004

CONTENTS

Part 1 — Preliminary

1.	Short title	2
2.	Commencement	2
3.	The Act amended	3
Part 2 — Amendments relating to

general occupational safety and

health duties

4.	Section 3 amended	4
5.	Part 2 Division 2 heading inserted	4
Division 2 — General duties
6.	Section 9 amended	4
7.	Section 11A inserted	4

11A.

Duty of manager to inform person who

makes a report under section 11

8.	Section 12 amended	5
9.	Sections 12B and 12C inserted	6

12B.

Duties placed on corporation to which

section 15A, 15B or 15C applies

12C.

Breaches of section 12B

10.	Part 2 Divisions 3 and 4 inserted	7
Division 3 — Certain workplace situations to be

treated as employment

15A.	Contract work arrangements	7
15B.	Labour arrangements in general	9
15C.	Labour hire arrangements	11

Mines Safety and Inspection Amendment Act 2004

Contents

Division 4 — Other duties

15D.

Duty of employer in respect of certain

residential accommodation

15E.

Breaches of section 15D

15F.

Notification of hazard to the principal

employer and manager

11.

Section 20A inserted

20A.

Extended meaning of “employer” and

“employee”

12.	Section 21 amended	16
13.	Section 104 amended	16
Part 3 — Amendments relating to

offences and penalties

14.	Section 4 amended	17
15.	Sections 4A and 4B inserted	17

4A.	Penalty levels defined	17
4B.	Meaning of “first offence” and “subsequent
offence”	19

16.	Section 15 repealed	20
17.	Part 2 Division 1 inserted	20
Division 1 — Preliminary

8A.	General and particular duties	20
8B.	Meaning of gross negligence in relation to
certain breaches of this Part	20

18.	Section 9 amended	21
19.	Section 9A inserted	21

9A.

Breaches of section 9(1)

20.	Section 10 amended	22
21.	Section 10A inserted	22

10A.

Breaches of section 10(1) or (3)

22.	Section 12 amended	23
23.	Section 12A inserted	23

12A.

Breaches of section 12

24.	Section 13 amended	24
25.	Section 13A inserted	25

13A.

Breaches of section 13

26.	Section 14 amended	26
27.	Section 15 inserted	26

15.

Breaches of section 14

28.	Part 9 Division 1 heading inserted	27
Division 1 — General provisions
29.	Section 94 replaced	27

94.

General penalty

Mines Safety and Inspection Amendment Act 2004

Contents

30.	Section 95 amended	27
31.	Section 97 replaced and transitional provision	28

97.

Time limit for prosecutions

32.	Section 98 amended	28
33.	Section 99 amended	30
34.	Section 99A inserted	30

99A.

Vicarious responsibility for offences

involving gross negligence

35.	Section 100 amended	31
36.	Section 100A inserted	32

100A.

Responsibility of officers of corporation for

offences involving gross negligence

37.

Section 101A inserted

101A.

No double jeopardy

38.	Part 9 Division 2 inserted	33
Division 2 — Undertaking by offender in lieu of

payment of fine

101B.	Terms used in this Division	33
101C.	Court may allow offender to make election	34
101D.	Making of election	35
101E.	Failure to enter into undertaking	36
101F.	Time for payment of fines	36
101G.	Nature and terms of undertaking	36
101H.	What may be included in undertaking	37
101I.	Effect of undertaking	39
101J.	Failure to comply with undertaking	39
101K.	Amendment of undertaking	39
101L.	Undertaking may be published	39

39.	Section 104 amended	40
Part 4 — Amendments relating to

mine management

40.	Section 32 amended	42
41.	Section 32A inserted	43

32A.

Change of principal employer or of

particulars provided

42.

Section 33A inserted

33A.

Registered manager may make

appointments on behalf of principal

employer

43.	Section 34 amended	45
44.	Section 36 amended	46
45.	Section 38 amended	47
46.	Section 38A inserted	47

Mines Safety and Inspection Amendment Act 2004

Contents

38A.

Periods of duty and related matters to be

shown in record book

47.	Section 39 amended	49
48.	Section 40 amended	49
Part 5 — Amendments relating to

safety and health representatives

and committees

49.	Section 4 amended	50
50.	Section 21 amended	50
51.	Section 25 amended	50
52.	Section 53 amended	51
53.	Section 54 amended	51
54.	Section 55 amended	51
55.	Sections 55A, 55B and 55C inserted	52

55A.	Election scheme may be established	53
55B.	What may be included in a scheme	53
55C.	Appointment of further delegates may be
required	55

56.	Section 56 amended	55
57.	Saving provision for existing safety and health
representatives	58
58.	Section 57 amended	58
59.	Section 59 amended	58
60.	Section 60 amended	59
61.	Section 62 amended	60
62.	Section 62A inserted	61

62A.

Interpretation

63.	Section 63 amended	62
64.	Sections 64, 65, 66 and 67 replaced by sections 64
to 67F	63

64.	Employees to appoint representatives	63
65.	Obligation of employer to establish a
safety and health committee	63
66.	Request for establishment of safety and
health committee	64
67.	Referral of question to State mining
engineer	64
67A.	Employer may establish a safety and
health committee	65
67B.	How safety and health committee to be
constituted	65
67C.	State mining engineer may make
determination in certain cases	66

Mines Safety and Inspection Amendment Act 2004

Contents

67D.

Functions of committee may cover more

than one mine

67E.

Amendment of agreement and abolition of

committee

67F.

Review of State mining engineer’s

decision

65. Savings and transitional provisions for existing

safety and health committees

66.

Section 68 replaced

68.	Procedure of safety and health

committees

67.

Sections 68A, 68B, 68C and 68D inserted

68A.

Discrimination against safety and health

representative in relation to employment

68B.

Discrimination against safety and health representative in relation to contract for services

68C.

Claim may be referred to the Tribunal

68D.

Remedies that may be granted

68.	Section 69 amended	75
69.	Section 70 amended	76
70.	Section 72 amended	77
71.	Section 77 amended	77
72.	Section 104 amended	78
Part 6 — Amendments to provide for

improvement notices,

prohibition notices and

provisional improvement notices

73.	Section 4 amended	79
74.	Section 22 repealed	79
75.	Section 23 amended	79
76.	Sections 30 and 31 replaced by Divisions 3 and 4	80
Division 3 — Improvement notices and

prohibition notices

Subdivision 1 — Improvement notices

30.	Issue of improvement notice	80
31.	Contents of improvement notice	81
31A.	Failure to comply with improvement notice	81
31AA.	Notification of compliance	82

Subdivision 2 — Prohibition notices in respect of

mines

31AB.

Grounds for prohibition notice

Mines Safety and Inspection Amendment Act 2004

Contents

31AC.

Issue of prohibition notice for hazard

arising from breach of Act

31AD.

Issue of prohibition notice for other

hazards

31AE.

Prohibition of mining operations

31AF.

Contents of prohibition notice under this

Subdivision

31AG.

Failure to comply with prohibition notice

Subdivision 3 — Prohibition notices in relation to

occupation of residential premises by

employee

31AH.	Issue of prohibition notice	86
31AI.	Contents of prohibition notice under this
Subdivision	87
31AJ.	Failure to comply with prohibition notice	87

Subdivision 4 — Display of improvement notices and

prohibition notices

31AK.	Improvement notices	88
31AL.	Prohibition notices in respect of mines	88
31AM.	Prohibition notices in respect of residential
premises	88
31AN.	Offence to remove displayed notice	88
31AO.	Modifications of notice to be displayed	89
31AP.	Failure to comply with provision of this
Subdivision	89

Subdivision 5 — General duty of principal employer

and manager in respect of notices

31AQ.	General duty, improvement notices	89
31AR.	General duty, prohibition notices	90
31AS.	Other provisions relating to general duty	90

Subdivision 6 — Entry of notices and related matters

in mine record book

31AT.	Improvement and prohibition notices	91
31AU.	Referrals for review	91
31AV.	Decisions on review	92
31AW.	Permissions for continuation of work	92
31AX.	Failure to comply with provision of this
Subdivision	92

Subdivision 7 — Review of improvement notices and

prohibition notices

31AY.	Notice may be referred for review	92
31AZ.	Review by State mining engineer	93
31B.	Effect of notice pending review by State
mining engineer	94
31BA.	Decision may be referred to Tribunal	95
31BB.	Determination by Tribunal	96
31BC.	Effect of notice pending review by Tribunal	97

Mines Safety and Inspection Amendment Act 2004

Contents

Subdivision 8 — General

31BD.	Notices may include directions	98
31BE.	Further power of State mining engineer to
cancel notice	98

Division 4 — Issue of provisional improvement

notices by safety and health representative

31BF.	Definition	99
31BG.	Issue of provisional improvement notices	100
31BH.	Consultation required before issue	101
31BI.	Contents of notice	102
31BJ.	Provisional improvement notices may
include directions	102
31BK.	Display of provisional improvement
notices	103
31BL.	Failure to comply with notice	104
31BM.	General duty of principal employer and
manager in respect of provisional
improvement notice	104
31BN.	Review of notice by an inspector	105
31BO.	Entries in mines record book	106

77. Transitional provision for directions given before

commencement

107

78.

Section 71 amended

107

79.

Section 89 amended

107

Part 7 — Amendments to provide for

the Occupational Safety and

Health Tribunal to determine

certain matters

Division 1 — Amendments to the Mines Safety

and Inspection Act 1994

80.	Section 4 amended	108
81.	Section 96A amended	108
82.	Part 9 Division 3 heading inserted	108
Division 3 — Jurisdiction of Occupational Safety and

Health Tribunal

83.

Section 102 replaced and transitional provisions

109

102. Determination of certain matters and

appeals by Tribunal

109

84. Various references to a safety and health

magistrate amended

111

85.

Section 52 amended and transitional provision

111

85A.

Section 76 amended

112

Mines Safety and Inspection Amendment Act 2004

Contents

86.	Section 86 amended and transitional provision	112
Division 2 — Amendments to the *Industrial*

Relations Act 1979

87.	The Industrial Relations Act 1979 amended	112
Part 8 — Miscellaneous amendments
88.	Section 4 amended	114
89.	Section 6A inserted	116

6A.

Application of this Act to a workplace

under the Occupational Safety and Health

Act 1984

116

90.	Section 21 amended	118
91.	Section 102A inserted	119

102A.

Visitors to comply with directions

119

92.	Section 104 amended	121
93.	Section 110 amended	121
94.	Occupational Safety and Health Act 1984 amended	122

Western Australia

Mines Safety and Inspection Amendment

Act 2004

No. 68 of 2004

An Act to amend the Mines Safety and Inspection Act 1994 and to make consequential amendments to the Industrial Relations Act 1979 and the Occupational Safety and Health Act 1984.

[Assented to 8 December 2004]

The Parliament of Western Australia enacts as follows:

Mines Safety and Inspection Amendment Act 2004

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1. Short title

This Act may be cited as the Mines Safety and Inspection

Amendment Act 2004.

2. Commencement

(1)	This Act, other than —

(a)	Part 7 Division 2; and
(b)

section 88(4), comes into operation on a day fixed by proclamation.

(2)

Different days may be fixed under subsection (1) for different

provisions.

(3)

Part 7 Division 2 comes into operation —

(a)	on the day on which section 70 of the Occupational Safety and Health Legislation Amendment and Repeal Act 2004 comes into operation and immediately after that coming into operation; or
(b)	if on that day Part 7 Division 1 of this Act has not yet come into operation, on the day on which that Division comes into operation.

(4)	Section 88(4) comes into operation —

(a)	on the day on which section 115 of the Occupational Safety and Health Legislation Amendment and Repeal Act 2004 comes into operation; or
(b)	if on that day section 88(1) of this Act has not yet come into operation, on the day on which that subsection comes into operation.

Mines Safety and Inspection Amendment Act 2004

Preliminary

Part 1

s. 3

3. The Act amended

The amendments in this Act, except those in sections 87 and 94,

are to the Mines Safety and Inspection Act 1994*.

[* Reprinted as at 17 March 2000.

For subsequent amendments see Western Australian

Legislation Information Tables for 2003, Table 1, p. 250.]

Mines Safety and Inspection Amendment Act 2004

Part 2

Amendments relating to general occupational safety and

health duties

s. 4

Part 2 — Amendments relating to general occupational

safety and health duties

4. Section 3 amended

(1)

Section 3 is amended by inserting before “The objects” the

subsection designation “(1)”.

(2)

At the end of section 3 the following subsection is inserted —

“

(2)	In subsection (1) —
“employer” and “employee” include a person taken to

be an employer and an employee respectively by

operation of section 15A, 15B or 15C.

”.

5. Part 2 Division 2 heading inserted

After section 8B the following heading is inserted —

“

Division 2 — General duties

”.

6. Section 9 amended

Section 9(3) and (4) are repealed.

7. Section 11A inserted

After section 11 the following section is inserted —

“

11A.

Duty of manager to inform person who makes a

report under section 11

(1)	Where a report is made under section 11(1)(a) or (b) or (3) in relation to a mine, the manager of the mine must, within a reasonable time after the report is received by him or her —

(a)	investigate the occurrence, situation, injury or harm that was reported;

Mines Safety and Inspection Amendment Act 2004

Amendments relating to general occupational safety and

Part 2

health duties

s. 8

(b)	determine the action, if any, that the manager intends to take in respect of the matter; and
(c)	notify the person who made the report of the determination so made.

(2)	A manager who contravenes subsection (1) commits an offence.

”.

8. Section 12 amended

Section 12(1) is repealed and the following subsections are

inserted instead —

“

(1)

A self-employed person working at a mine must take

reasonable care to ensure his or her own safety and

health at work.

(2)

An employer or self-employed person at a mine must, so far as is practicable, ensure that the safety or health of a person, not being (in the case of an employer) an employee of the employer, is not adversely affected

wholly or in part as a result of —

(a)	work that has been or is being undertaken by —

(i) the employer or any employee of the employer; or

(ii) the self-employed person;

(b)	any hazard that arises from or is increased by —

(i) the work referred to in paragraph (a); or

(ii) the system of work that has been or is being operated by the employer or the self-employed person.

”.

Mines Safety and Inspection Amendment Act 2004

Part 2

Amendments relating to general occupational safety and

health duties

s. 9

9. Sections 12B and 12C inserted

After section 12A the following sections are inserted —

“

12B.

Duties placed on corporation to which section 15A,

15B or 15C applies

(1)

If section 15A, 15B or 15C makes any other provision

of this Act apply to a corporation as if it were the

employer of a particular person, this section and

section 12C apply to the corporation at such times as

the other provision is made to apply.

(2)

A corporation to which this section applies that carries

on operations at a mine must, so far as is practicable,

ensure that the safety or health of a person is not

adversely affected wholly or in part as a result of —

(a)	work that has been or is being undertaken by —

(i) the corporation; or

(ii) a person carrying out work under the direction of the corporation;

(b)	any hazard that arises from or is increased by —

(i) the work referred to in paragraph (a); or

(ii) the system of work that has been or is being operated by the corporation.

12C.

Breaches of section 12B

(1)	If a corporation contravenes section 12B(2) in circumstances of gross negligence, the corporation commits an offence and is liable to a level 4 penalty.

(2) If —

(a) a corporation —

(i) contravenes section 12B(2); and

Mines Safety and Inspection Amendment Act 2004

Amendments relating to general occupational safety and

Part 2

health duties

s. 10

(ii) by the contravention causes the death of, or serious harm to, a person;

and

subsection (1) does not apply,

the corporation commits an offence and is liable to a

level 3 penalty.

(b)

(3) If —

(a)	a corporation contravenes section 12B(2); and
(b)	neither subsection (1) nor subsection (2) applies,

the corporation commits an offence and is liable to a

level 2 penalty.

(4)	A corporation charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

”.

10. Part 2 Divisions 3 and 4 inserted

After section 15 the following Divisions are inserted in

Part 2 —

“

Division 3 — Certain workplace situations to be treated

as employment

15A.

Contract work arrangements

(1)	This section applies where a person (the “principal”) in the course of mining operations engages a contractor (the “contractor”) to carry out work for the principal.

Mines Safety and Inspection Amendment Act 2004

Part 2

Amendments relating to general occupational safety and

health duties

s. 10

(2)	Where this section applies, section 9 has effect —

(a)	as if the principal were the employer of —

(i) the contractor; and

(ii) any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned,

in relation to matters over which the principal

has the capacity to exercise control; and

(b) as if —

(i) the contractor; and

(ii) any person referred to in paragraph (a)(ii),

were employees of the principal in relation to

matters over which the principal has the

capacity to exercise control.

(3)	Where this section applies, the further duties referred to in subsection (4) apply —

(a)	as if the principal were the employer of —

(i) the contractor; and

(ii) any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned;

and

(b) as if —

(i) the contractor; and

(ii) any person referred to in paragraph (a)(ii),

were employees of the principal.

(4)	The further duties mentioned in subsection (3) are —

(a)	the duties of an employee under section 10; and

Mines Safety and Inspection Amendment Act 2004

Amendments relating to general occupational safety and

Part 2

health duties

s. 10

(b)	the duties of an employer under section 15D(2).

(5)	An agreement or arrangement is void for the purposes of this section if it purports to give control to —

(a) a contractor; or

(b)	a person referred to in subsection (2)(a)(ii),

of any matter that —

(c)	comes within section 9 or 15D(2); and
(d)	is a matter over which the principal has the capacity to exercise control,

but this subsection does not prevent the making of a

written agreement as mentioned in section 15D(3).

(6)

A purported waiver by a contractor of a right that arises

directly or indirectly under this section is void.

(7)

Nothing in this section derogates from —

(a)	the duties of the principal to the contractor; or
(b)	the duties of the contractor to any person employed or engaged by the contractor.

15B.

Labour arrangements in general

(1)	This section applies where —

(a)	a person (the “worker”) for remuneration carries out work for another person (the “person mentioned in subsection (1)(a)”) in the course of mining operations;
(b)	that person has the power of direction and control in respect of the work in a similar manner to the power of an employer under a

contract of employment;

Mines Safety and Inspection Amendment Act 2004

Part 2

Amendments relating to general occupational safety and

health duties

s. 10

(c)	there is no contract of employment between the worker and that person; and
(d)	neither section 15A nor section 15C applies.

(2)	Where this section applies, section 9 has effect as if —

(a)	the person mentioned in subsection (1)(a) were the employer of the worker; and
(b)

the worker were the employee of that person, in relation to any matter that —

(c)	comes within section 9; and
(d)	is a matter over which that person has the capacity to exercise control.

(3)	Where this section applies, section 10 has effect as if —

(a)	the person mentioned in subsection (1)(a) were the employer of the worker; and
(b)	the worker were the employee of that person.

(4)	An agreement or arrangement is void for the purposes of this section to the extent that it purports to give control to the worker of any matter that —

(a)	comes within section 9; and
(b)	is a matter over which the person mentioned in subsection (1)(a) has the capacity to exercise control.

(5)

This section applies despite anything to the contrary in, or any inconsistent provision of, an agreement, whether made orally or in writing.

(6)

A purported waiver by a worker of a right that arises

directly or indirectly under this section is void.

Mines Safety and Inspection Amendment Act 2004

Amendments relating to general occupational safety and

Part 2

health duties

s. 10

15C.

Labour hire arrangements

(1)	In this section —
“agent” —

(a)	means a person who carries on a business of providing workers to carry out work for clients of the person; and
(b)	includes a group training organisation as defined in section 7(1) of the Industrial Relations Act 1979;

“worker” includes an employee or a contractor.

(2)

This section applies where, under a labour hire

arrangement, work is carried out for remuneration by a

worker for a client of an agent (the “client”) in the

course of mining operations carried on by the client.

(3)

A labour hire arrangement exists where —

(a)	an agent has for remuneration agreed with the client to provide a worker to carry out work for the client;
(b)	there is no contract of employment between the worker and the client in relation to the work;
(c)	there is an agreement (which may be a contract of employment) between the worker and the agent as to the carrying out of work including in respect of remuneration and other entitlements; and
(d)	that agreement applies to the carrying out of the work by the worker for the client.

(4)	Where this section applies, section 9 has effect as if —

(a)	each of the agent and the client were the employer of the worker; and
(b)	the worker were an employee of each of the agent and the client,

Mines Safety and Inspection Amendment Act 2004

Part 2

Amendments relating to general occupational safety and

health duties

s. 10

in relation to any matter that —

(c)	comes within section 9; and

(d) as regards —

(i) the agent, is a matter over which the agent has the capacity to exercise control; or

(ii) the client, is a matter over which the client has the capacity to exercise control.

(5)	Where this section applies, section 10 has effect as if —

(a)	each of the agent and the client were the employer of the worker; and
(b)	the worker were an employee of each of the agent and the client.

(6)

This section applies despite anything to the contrary in, or any inconsistent provision of, an agreement, whether made orally or in writing.

(7)

A purported waiver by a worker of a right that arises

directly or indirectly under this section is void.

Division 4 — Other duties

15D.

Duty of employer in respect of certain residential

accommodation

(1)	In this section —
“residential premises” —

(a)	means residential premises that are situated outside —

(i)

a townsite within the meaning in Administration Act 1997; and

Mines Safety and Inspection Amendment Act 2004

Amendments relating to general occupational safety and

Part 2

health duties

s. 10

(ii) the metropolitan region as defined in section 6 of the Metropolitan Region Town Planning Scheme Act 1959;

and

(b)	includes land and outbuildings that are intended to be used in connection with the occupation of the premises; but
(c)	does not include any premises that come within paragraph (k) of the definition of “mining operations” in section 4(1).

(2) Where —

(a)	an employee who is employed in mining operations occupies residential premises that are owned by or under the control of the employee’s employer; and
(b)	the occupancy is necessary for the purposes of the employment because other accommodation is not reasonably available in the area

concerned,

the employer must, so far as is practicable, maintain the

premises so that the employee occupying the premises

is not exposed to hazards at the premises.

(3)	Subsection (2) does not apply if the occupancy is pursuant to a written agreement containing terms that might reasonably be expected to apply to a letting of the residential premises to a tenant.

15E.

Breaches of section 15D

(1)	If an employer contravenes section 15D(2) in circumstances of gross negligence, the employer commits an offence and is liable to a level 4 penalty.

Mines Safety and Inspection Amendment Act 2004

Part 2

Amendments relating to general occupational safety and

health duties

s. 10

(2) If —

(a) an employer —

(i) contravenes section 15D(2); and

(ii) by the contravention causes the death of, or serious harm to, an employee occupying premises as mentioned in that section;

and

subsection (1) does not apply,

the employer commits an offence and is liable to a

level 3 penalty.

(b)

(3) If —

(a)	an employer contravenes section 15D(2); and
(b)	neither subsection (1) nor subsection (2) applies,

the employer commits an offence and is liable to a

level 2 penalty.

(4)

In proceedings against a person for an offence under

subsection (1) or (2) it is a defence if the person proves

that the death or serious harm, as the case may be,

would not have occurred if the employee had taken

reasonable care to ensure the employee’s own safety

and health at the premises concerned.

(5)

An employer charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

Mines Safety and Inspection Amendment Act 2004

Amendments relating to general occupational safety and

Part 2

health duties

s. 10

15F.

Notification of hazard to the principal employer and

manager

(1)	In this section —
“mine” includes the means of access to and egress

from a mine.

(2) If —

(a)	the employer of any employee; or
(b)

a self-employed person carrying out work, at a mine becomes of the opinion that —

(c)	a situation exists at the mine that could constitute a hazard to any person;
(d)	the hazard is one that the principal employer at, and the manager of, the mine have a duty to remedy under section 13; and
(e)	the situation has not come to the attention of either of those persons,

the employer or self-employed person must, so far as it

is reasonably practicable to do so, give notice of the

situation to either the principal employer or the

manager.

(3)

A notice under subsection (2) must be given as soon as

is reasonably practicable after the employer or

self-employed person becomes of the opinion

mentioned in that subsection.

(4)

An employer or self-employed person who fails to

comply with subsection (2) commits an offence.

”.

Mines Safety and Inspection Amendment Act 2004

Part 2

Amendments relating to general occupational safety and

health duties

s. 11

11. Section 20A inserted

After the heading to Part 3 Division 2 the following section is

inserted —

“

20A.	Extended meaning of “employer” and “employee”
In this Division —
“employer” and “employee” include a person taken to

be an employer and an employee respectively by

operation of section 15A, 15B or 15C.

”.

12. Section 21 amended

Section 21(6) is repealed and the following subsection is

inserted instead —

“

(6)	For the purposes of this section a mine is to be taken to include —

(a)	a workplace that relates to but is not a mine or part of a mine; and
(b)	premises that an employer at the mine is or was

in relation to a particular mine, residential section 15D(2).

”.

13. Section 104 amended

After section 104(1) the following subsection is inserted —

“

(1a)	In subsection (1)(c), (z), (zc) and (zk) —
“employer” and “employee” include a person taken to

be an employer and an employee respectively by

operation of section 15A, 15B or 15C, and

“employed” has a corresponding meaning.

”.

Mines Safety and Inspection Amendment Act 2004

Amendments relating to offences and penalties	Part 3
s. 14

Part 3 — Amendments relating to offences

and penalties

14. Section 4 amended

Section 4(4) is amended by deleting “9(8), 10(5), 12(3), 13(3)

and 14(6)” and inserting instead —

“

8B(2), 9A(2), 10A(2), 12A(2), 12C(2), 13A(2), 15(2),

15E(2), 99A(2)(a)(iv) and 100A(2)(a)(iii)

”.

15. Sections 4A and 4B inserted

After section 4 the following sections are inserted —

“

4A.

Penalty levels defined

(1)	Where a person is liable to a level one penalty for an offence against this Act the person is liable —

(a)	if the offence was committed by the person as an employee —

(i) for a first offence, to a fine of $5 000; and

(ii) for a subsequent offence, to a fine of $6 250;

(b)	if paragraph (a) does not apply —

(i) in the case of an individual —

(I)

for a first offence, to a fine of

$25 000; and

(II)

for a subsequent offence, to a

fine of $31 250;

Mines Safety and Inspection Amendment Act 2004

Part 3	Amendments relating to offences and penalties
s. 15

(ii) in the case of a corporation —

(I)

for a first offence, to a fine of

$50 000; and

(II)

for a subsequent offence, to a

fine of $62 500.

(2)	Where a person is liable to a level 2 penalty for an offence against this Act the person is liable —

(a)	in the case of an individual —

(i) for a first offence, to a fine of $100 000; and

(ii) for a subsequent offence, to a fine of $125 000;

(b)	in the case of a corporation —

(i) for a first offence, to a fine of $200 000; and

(ii) for a subsequent offence, to a fine of $250 000.

(3)	Where a person is liable to a level 3 penalty for an offence against this Act the person is liable —

(a)	in the case of an individual —

(i) for a first offence, to a fine of $200 000; and

(ii) for a subsequent offence, to a fine of $250 000;

(b)	in the case of a corporation —

(i) for a first offence, to a fine of $400 000; and

(ii) for a subsequent offence, to a fine of $500 000.

Mines Safety and Inspection Amendment Act 2004

Amendments relating to offences and penalties	Part 3
s. 15

(4)	Where a person is liable to a level 4 penalty for an offence against this Act the person is liable —

(a)	in the case of an individual —

(i) for a first offence, to a fine of $250 000 and imprisonment for 2 years; and

(ii) for a subsequent offence, to a fine of $312 500 and imprisonment for 2 years;

(b)	in the case of a corporation —

(i) for a first offence, to a fine of $500 000; and

(ii) for a subsequent offence, to a fine of $625 000.

4B.

Meaning of “first offence” and “subsequent

offence”

(1)	In this section —
“relevant day” means the day on which section 15 of

the Mines Safety and Inspection Amendment

Act 2004 comes into operation.

(2)	For the purposes of this Act —

(a)	an offence is a first offence committed by a person if, at the time when the offence is committed, the person has not previously been convicted of any offence against this Act committed on or after the relevant day; and
(b)	an offence is a subsequent offence committed by a person if, at the time when the offence is committed, the person has previously been convicted of one or more offences against this Act committed on or after the relevant day.

”.

Mines Safety and Inspection Amendment Act 2004

Part 3	Amendments relating to offences and penalties
s. 16

16. Section 15 repealed

Section 15 is repealed.

17. Part 2 Division 1 inserted

After the heading to Part 2 the following Division is inserted —

“

Division 1 — Preliminary

8A.

General and particular duties

(1)	A duty imposed on a person under this Part —

(a)	does not affect the application of any other more specific duty imposed on that person under this Act; and
(b)	applies despite any other more specific duty imposed on that person under this Act.

(2)	Subsection (1) has effect subject to section 101A.

8B.

Meaning of gross negligence in relation to certain

breaches of this Part

(1)

This section applies to a contravention of section 9(1), 10(1) or (3), 12(1) or (2), 12B(2), 13, 14(1), (2), (3) or (4) or 15D(2).

(2)

For the purposes of this Part, a contravention of a

provision mentioned in subsection (1) is committed in

circumstances of gross negligence if —

(a) the offender —

(i) knew that the contravention would be likely to cause the death of, or serious harm to, a person to whom a duty is

owed under that provision; but

(ii) acted or failed to act in disregard of that likelihood;

Mines Safety and Inspection Amendment Act 2004

Amendments relating to offences and penalties	Part 3
s. 18

and

(b)	the contravention did in fact cause the death of, or serious harm to, such a person.

”.

18. Section 9 amended

Section 9(7), (8) and (9) are repealed.

19. Section 9A inserted

After section 9 the following section is inserted —

“

9A.

Breaches of section 9(1)

(1)	If an employer contravenes section 9(1) in circumstances of gross negligence, the employer commits an offence and is liable to a level 4 penalty.

(2) If —

(a) an employer —

(i) contravenes section 9(1); and

(ii) by the contravention causes the death of, or serious harm to, an employee;

and

subsection (1) does not apply,

the employer commits an offence and is liable to a

level 3 penalty.

(b)

(3) If —

(a)	an employer contravenes section 9(1); and
(b)	neither subsection (1) nor subsection (2) applies,

the employer commits an offence and is liable to a

level 2 penalty.

Mines Safety and Inspection Amendment Act 2004

Part 3	Amendments relating to offences and penalties
s. 20

(4)	An employer charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

”.

20. Section 10 amended

Section 10(4), (5) and (6) are repealed.

21. Section 10A inserted

After section 10 the following section is inserted —

“

10A.

Breaches of section 10(1) or (3)

(1)	If an employee contravenes section 10(1) or (3) in circumstances of gross negligence, the employee commits an offence and is liable —

(a)	for a first offence, to a fine of $25 000; and
(b)	for a subsequent offence, to a fine of $31 250.

(2) If —

(a) an employee —

(i) contravenes section 10(1) or (3); and

(ii) by the contravention causes the death of, or serious harm to, a person;

and

subsection (1) does not apply, the employee commits an offence and is liable —

(b)

(c)	for a first offence, to a fine of $20 000; and
(d)	for a subsequent offence, to a fine of $25 000.

Mines Safety and Inspection Amendment Act 2004

Amendments relating to offences and penalties	Part 3
s. 22

(3) If —

(a)	an employee contravenes section 10(1) or (3); and
(b)	neither subsection (1) nor subsection (2) applies,

the employee commits an offence and is liable —

(c)	for a first offence, to a fine of $10 000; and
(d)	for a subsequent offence, to a fine of $12 500.

(4)	An employee charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

”.

22. Section 12 amended

Section 12(2), (3) and (4) are repealed.

23. Section 12A inserted

After section 12 the following section is inserted —

“

12A.

Breaches of section 12

(1)	If an employer or a self-employed person contravenes section 12(1) or (2) in circumstances of gross negligence, the employer or the self-employed person commits an offence and is liable to a level 4 penalty.

(2) If —

(a)	an employer or self-employed person —

(i) contravenes section 12(1) or (2); and

Mines Safety and Inspection Amendment Act 2004

Part 3	Amendments relating to offences and penalties
s. 24

(ii) by the contravention causes the death of, or serious harm to, a person;

and

subsection (1) does not apply,

the employer or self-employed person commits an

offence and is liable to a level 3 penalty.

(b)

(3) If —

(a)	an employer or self-employed person contravenes section 12(1) or (2); and
(b)	neither subsection (1) nor subsection (2) applies,

the employer or self-employed person commits an

offence and is liable to a level 2 penalty.

(4)	An employer or self-employed person charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

”.

24. Section 13 amended

Section 13 is amended as follows:

(a)	in subsection (1) by deleting the subsection designation;
(b)	by repealing subsections (2), (3) and (4).

Mines Safety and Inspection Amendment Act 2004

Amendments relating to offences and penalties	Part 3
s. 25

25. Section 13A inserted

After section 13 the following section is inserted —

“

13A.

Breaches of section 13

(1)	If a person contravenes section 13 in circumstances of gross negligence, the person commits an offence and is liable to a level 4 penalty.

(2) If —

(a) a person —

(i) contravenes section 13; and

(ii) by the contravention causes the death of, or serious harm to, a person —

(I)

who is at; or

(II)

who is using the means of

access to or egress from,

the workplace;

and

subsection (1) does not apply,

the person commits an offence and is liable to a level 3

penalty.

(b)

(3) If —

(a)	a person contravenes section 13; and
(b)	neither subsection (1) nor subsection (2) applies,

the person commits an offence and is liable to a level 2

penalty.

(4)	A person charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or

Mines Safety and Inspection Amendment Act 2004

Part 3

Amendments relating to offences and penalties

s. 26

(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

”.

26. Section 14 amended

Section 14(5), (6) and (7) are repealed.

27. Section 15 inserted

After section 14 the following section is inserted —

“

15. Breaches of section 14

(1)	If a person contravenes section 14(1), (2), (3) or (4) in circumstances of gross negligence, the person commits an offence and is liable to a level 4 penalty.

(2) If —

(a) a person —

(i) contravenes section 14(1), (2), (3) or (4); and

(ii)

by the contravention causes the death a duty is owed under that subsection;

and

subsection (1) does not apply,

the person commits an offence and is liable to a level 3

penalty.

(b)

(3) If —

(a)	a person contravenes section 14(1), (2), (3) or (4); and

Mines Safety and Inspection Amendment Act 2004

Amendments relating to offences and penalties	Part 3
s. 28

(b)	neither subsection (1) nor subsection (2) applies,

the person commits an offence and is liable to a level 2

penalty.

(4)	A person charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

”.

28. Part 9 Division 1 heading inserted

After the heading to Part 9 the following heading is inserted —

“

Division 1 — General provisions

”.

29. Section 94 replaced

Section 94 is repealed and the following section is inserted

instead —

“

94. General penalty

If a person commits an offence against this Act for

which a penalty is not otherwise provided, the person is

liable to a level one penalty.

”.

30. Section 95 amended

Section 95(2) is amended by deleting “and is liable to a fine not

exceeding $1 000 in the case of a corporation and $200 in the

Mines Safety and Inspection Amendment Act 2004

Part 3	Amendments relating to offences and penalties
s. 31

case of an individual for every day on which the offence is so

continued.” and inserting instead —

“

and is liable to a fine not exceeding —

(a)	$200, where the offence is committed by a person as an employee;
(b)	$1 000, where the offence is committed by an individual and paragraph (a) does not apply; and
(c)	$2 000, where the offence is committed by a corporation,

for every day on which the offence is so continued.

”.

31. Section 97 replaced and transitional provision

(1)	Section 97 is repealed and the following section is inserted instead —

“

97. Time limit for prosecutions

Proceedings for an offence against this Act must be

commenced within 3 years after the offence was

committed.

”.

(2)	Section 97 of the Mines Safety and Inspection Act 1994 as in force immediately before the commencement of subsection (1) applies to an offence against that Act committed before that commencement as if subsection (1) had not been enacted.

32. Section 98 amended

(1)	Section 98(1)(b) is amended by deleting “of persons”.

Mines Safety and Inspection Amendment Act 2004

Amendments relating to offences and penalties	Part 3
s. 32

(2)	After section 98(1)(b) the following paragraphs are inserted —

“

(ba)

a particular person was an employer of a

particular person or particular persons at a

mine;

(bb)

a particular person was a principal or a

contractor, within the meaning given by

section 15A(1), at a mine;

(bc) “ an inspector or ”.

a particular person was, at a mine, a principal,

within the meaning given by section 15A(1), in

relation to a particular contractor or particular

contractors within the meaning so given;

”.

(3)

Section 98(2)(b) is amended by inserting after “the authority

of ” —

(4)

After section 98(3) the following subsection is inserted —

“

(4)	In proceedings for an offence against this Act, production of a copy of —

(a) a code of practice;

(b) an Australian Standard; or

purporting to be certified by the State mining engineer to be a true copy as at any date or during any period is, without proof of the signature of the State mining

engineer, sufficient evidence of the contents of the

code of practice or Standard as at that date or during

that period.

”.

Mines Safety and Inspection Amendment Act 2004

Part 3	Amendments relating to offences and penalties
s. 33

33. Section 99 amended

Section 99(1) is amended by inserting after “under this Act” —

“ , other than an offence to which section 99A applies, ”.

34. Section 99A inserted

After section 99 the following section is inserted —

“

99A.

Vicarious responsibility for offences involving gross

negligence

(1)	In this section —
“manager” has the meaning given by section 99(2);
“superior officer”, except as otherwise provided,

means an employer, manager or supervisor or a

person purporting to act in that capacity.

(2)	Where a person commits an offence under section 9A(1), 10A(1), 12A(1) or 15(1), the following provisions apply —

(a)	a superior officer in relation to the person also commits that offence if it is proved that —

(i) the superior officer, being an employer or manager or a person purporting to act in that capacity, knowingly permitted or employed the person to commit the offence;

(ii) the offence was attributable to any neglect on the part of the superior officer; or

(iii) the superior officer consented to or connived in the acts or omissions to which section 8B(2)(a)(ii) applied that

were proved against the person, in circumstances where the superior officer —

Mines Safety and Inspection Amendment Act 2004

Amendments relating to offences and penalties	Part 3
s. 35

(iv) knew that the contravention would be likely to cause the death of, or serious harm to, a person to whom a duty was owed; but

(v) acted or failed to act as mentioned in subparagraph (i), (ii) or (iii) in disregard of that likelihood;

(b)	if paragraph (a) does not apply, a superior officer in relation to the person commits an offence under section 9A(2), 10A(2), 12A(2) or 15(2), as the case may require, if it is proved that —

(i) the superior officer, being an employer or manager or a person purporting to act in that capacity, knowingly permitted or employed the person to commit the offence; or

(ii) the offence of the person —

(I)

occurred with the consent or

connivance of the superior

officer; or

(II)

was attributable to any neglect

on the part of the superior

officer.

”.

35. Section 100 amended

(1)	Section 100(1) is amended by inserting after “under this Act” —
“ , other than an offence to which section 100A applies, ”.
(2)	Section 100(2) is amended by deleting “subsection (1) applies” and inserting instead —
“ subsection (1) and section 100A apply ”.

Mines Safety and Inspection Amendment Act 2004

Part 3	Amendments relating to offences and penalties
s. 36

(3)	After section 100(2) the following subsection is inserted —

“

(3)	A person convicted of an offence by virtue of this section is liable to the penalty to which an individual who is convicted of that offence is liable.

”.

36. Section 100A inserted

After section 100 the following section is inserted —

“

100A.

Responsibility of officers of corporation for offences

involving gross negligence

(1)	In this section —
“officer” means a director, manager, secretary or other

officer of a corporation or a person purporting to

act in that capacity.

(2)	Where a corporation commits an offence under section 9A(1), 12A(1), 12C(1), 13A(1) or 15E(1) the following provisions apply —

(a)	an officer also commits that offence if it is proved that —

(i) the offence was attributable to any neglect on the part of the officer; or

(ii)	the acts or omissions to which

the officer consented to or connived in proved against the corporation,

in circumstances where the officer —

(iii) knew that the contravention would be likely to cause the death of, or serious harm to, a person to whom a duty was owed; but

Mines Safety and Inspection Amendment Act 2004

Amendments relating to offences and penalties	Part 3
s. 37

(iv) acted or failed to act as mentioned in subparagraph (i) or (ii) in disregard of that likelihood;

(b)

if paragraph (a) does not apply, an officer commits an offence under section 9A(2), 12A(2), 12C(2), 13A(2) or 15E(2), as the case

may require, if it is proved that the offence of

the corporation —

(i) occurred with the consent or connivance of the officer; or

(ii) was attributable to any neglect on the part of the officer.

(3)	A person convicted of an offence by virtue of this section is liable to the penalty to which an individual who is convicted of that offence is liable.

”.

37. Section 101A inserted

After section 101 the following section is inserted —

“

101A.

No double jeopardy

A person is not liable to be punished twice under this

Act in respect of any act or omission.

”.

38. Part 9 Division 2 inserted

After section 101A the following Division is inserted —

“

Division 2 — Undertaking by offender in lieu of

payment of fine

101B.	Terms used in this Division
In this Division —

Mines Safety and Inspection Amendment Act 2004

Part 3	Amendments relating to offences and penalties
s. 38
“convicted” means found guilty of an offence, whether

after a plea of guilty or otherwise;

“court” means a safety and health magistrate

exercising jurisdiction under section 96A;

“relevant offence” means an offence against —

(a)	section 21(5), 29(4), 55(7), 60(8), 61(2), 65(2), 66(3) or 70(4);
(b)	any provision of Part 3 Division 3; or
(c)	the regulations.

101C.

Court may allow offender to make election

(1) Where —

(a)	a person (the “offender”) is convicted of one or more relevant offences; and
(b)	the court has fined the offender,

the court may, subject to subsection (2), make an order

allowing the offender to elect either —

(c)	to pay the fine or fines; or
(d)	with the State mining engineer under

as an alternative, to enter into an undertaking the court.

(2)	A court is not to make an order under this section unless the court is satisfied that —

(a)	the breach of the relevant offence did not result in physical harm to any person;
(b)	the offender wishes an order to be made and the prosecutor does not oppose that being done;
(c)	the offender and the State mining engineer are likely to reach agreement on the provisions of the proposed undertaking within the time that the court proposes to specify under

subsection (1)(d); and

Mines Safety and Inspection Amendment Act 2004

Amendments relating to offences and penalties	Part 3
s. 38

(d)	the cost to the offender of complying with the proposed undertaking will be substantially equivalent to the amount of the fine or fines imposed.

(3)	After the court has fined the offender, the court may adjourn the proceedings to allow —

(a)	the offender time to consider whether the offender wishes an order to be made; and
(b)	the prosecutor time to consider whether to oppose that being done,

as mentioned in subsection (2)(b).

(4)	Nothing in this Division limits the powers of a court under the Sentencing Act 1995.

101D.

Making of election

(1)	An election is made, pursuant to an order under section 101C(1), by the offender —

(a)	lodging an election in writing with the court in which the order was made; and
(b)	serving a copy of the election on the State mining engineer,

not later than 28 days after the day on which the order

was made.

(2) If —

(a)	an order is made under section 101C(1); but
(b)	the offender fails to make an election in accordance with subsection (1),

the offender is taken, at the expiry of the period

mentioned in subsection (1), to have elected to pay the

fine or fines.

Mines Safety and Inspection Amendment Act 2004

Part 3	Amendments relating to offences and penalties
s. 38

101E.

Failure to enter into undertaking

An election under section 101D to enter into an

undertaking lapses if the undertaking is for any reason

not entered into before the time allowed under

section 101C(1)(d).

101F.

Time for payment of fines

(1)

The liability of the offender to pay the fine or fines in

connection with which an order is made under

section 101C(1) is suspended by the making of the

order.

(2)

If the offender elects to pay the fine or fines, for the

purposes of section 32 of the Fines, Penalties and

Infringement Notices Enforcement Act 1994 the fine

or fines are taken to have been imposed on the day on

which the election is made.

(3)

If the offender is taken by section 101D(2) to have

elected to pay the fine or fines, for the purposes of the

section referred to in subsection (2) the fine or fines are

taken to have been imposed at the time mentioned in

section 101D(2).

(4) If —

(a)	the offender elects to enter into an undertaking; but
(b)

the election lapses under section 101E,

for the purposes of the section referred to in

subsection (2) the fine or fines are taken to have been

imposed on the day specified under section 101C(1)(d).

101G.

Nature and terms of undertaking

(1)	An undertaking for the purposes of this Division is a document by which the offender gives undertakings to the State mining engineer that the offender will —

(a)	take the action specified in the undertaking;

Mines Safety and Inspection Amendment Act 2004

Amendments relating to offences and penalties	Part 3
s. 38

(b)	bear the costs and expenses of doing so; and
(c)	complete all of the required action before a day specified in the document.

(2)

The action required to be taken by the offender is to

come within the provisions described in

section 101H(2) or (3).

(3)

The provisions of the undertaking are to be such as are

agreed between the State mining engineer and the

offender.

(4)

The State mining engineer is to furnish a copy of an

undertaking, and of any amendment made under

section 101K, to the court concerned.

101H.

What may be included in undertaking

(1)	In this section —
“specified” means specified in the undertaking;
“specified mine” includes a specified class of mine.
(2)	An undertaking is to provide for the offender to do one or more of the following —

(a)	to take specified steps for the improvement of occupational safety and health —

(i) at or in respect of —

(I)

any specified mine; or

(II)

any specified part or parts of

any specified mine;

(ii) in connection with the business or operations of the offender;

(b)	to take specified steps to publicise details of —

(i) any specified offence; (ii) its consequences;

Mines Safety and Inspection Amendment Act 2004

Part 3	Amendments relating to offences and penalties
s. 38

(iii) the amount of the fine or fines imposed and the fact that the undertaking has been entered into under this Division; or

(iv) any other related matter;

(c)	to remedy any consequence of a specified offence, so far as it is practicable to do so, but not in a way that is excluded by subsection (4);
(d)	to carry out a specified project or activity for the improvement of occupational safety and health —

(i) in the community;

(ii) in a particular section of the community; or

(iii) in connection with a particular kind of activity in the State.

(3)	The State mining engineer may require that an undertaking contain any incidental or supplementary provision that the State mining engineer considers necessary or expedient to achieve its purpose, including provision for —

(a)	the reporting of matters; and

(b) providing proof of compliance,

to the State mining engineer.

(4)	An undertaking cannot provide for the offender to take any action —

(a)	that the offender has a duty to take in order to comply with any provision of this Act; or
(b)	for the taking of which an improvement notice or a prohibition notice could be issued under Part 3 Division 3.

Mines Safety and Inspection Amendment Act 2004

Amendments relating to offences and penalties	Part 3
s. 38

101I.

Effect of undertaking

The liability of the offender to pay the fine or fines in

connection with which the undertaking is given —

(a)	is suspended by the giving of the undertaking; and
(b)	is cancelled by the full discharge of the offender’s obligations under the undertaking.

101J.

Failure to comply with undertaking

(1)	An offender commits an offence if the offender fails to fully discharge the obligations under an undertaking before the day specified in the undertaking in accordance with section 101G(1)(c).
(2)	A court that convicts an offender of an offence against subsection (1) must order that the fine or fines to which the undertaking relates be paid in addition to any
penalty imposed for the offence against subsection (1).
(3)	For the purposes of section 32 of the Fines, Penalties and Infringement Notices Enforcement Act 1994, the fine or fines to which an order under subsection (2)
applies are taken to be imposed on the day on which that order is made.

101K.	Amendment of undertaking
An undertaking may be amended by an instrument in writing signed by the offender and the State mining engineer.
101L.	Undertaking may be published
The State mining engineer may cause an undertaking to be published in any manner the State mining engineer thinks fit including —

(a)	by publication in a newspaper; or

Mines Safety and Inspection Amendment Act 2004

Part 3

Amendments relating to offences and penalties

s. 39

(b)	by posting a copy of the undertaking on an internet website maintained by the department.

”.

39. Section 104 amended

Section 104(4) is repealed and the following subsections are

inserted instead —

“

(4)	Regulations made under this Act may provide that contravention of a regulation constitutes an offence and provide for penalties not exceeding —

(a)	in the case of an offence committed by a person as an employee —

(i) for a first offence, a fine of $5 000; and

(ii) for a subsequent offence, a fine of $6 250;

(b)	in the case of an offence committed by an individual where paragraph (a) does not apply —

(i) for a first offence, a fine of $25 000; and

(ii) for a subsequent offence, a fine of $31 250;

(c)	in the case of an offence committed by a corporation —

(i) for a first offence, a fine of $50 000; and

(ii) for a subsequent offence, a fine of $62 500,

and if the offence is a continuing one a further penalty

not exceeding —

(d)	$200, in the case of an offence committed by a person as an employee;

Mines Safety and Inspection Amendment Act 2004

Amendments relating to offences and penalties	Part 3
s. 39

(e)	$1 000, in the case of an offence committed by an individual where paragraph (d) does not apply; and
(f)	$2 000, in the case of an offence committed by a corporation,

for each day or part of a day during which the offence continues after notice of the offence has been given by or on behalf of an inspector to the offender.

(4a)	In subsection (4)(a) and (d) —
“employee” includes a person who is taken to be an

employee by operation of section 15A, 15B or 15C

to the extent that a regulation applies to such a

person.

”.

Mines Safety and Inspection Amendment Act 2004

Part 4

Amendments relating to mine management

Part 4 — Amendments relating to mine management

40. Section 32 amended

(1)	After section 32(1) the following subsections are inserted —

“

(1a)

If mining operations begin at a mine and subsection (1)

has not been complied with, an offence against

subsection (1) is committed by the person who the

State mining engineer determines to have been the

principal employer at the mine when the mining

operations began.

(1b)

In proceedings against a person under subsection (1a) it

is a defence if the person proves that there were no

reasonable grounds for the State mining engineer’s

determination that the person was the principal

employer at the mine when the mining operations

began.

”.

(2)	Section 32(4) is amended as follows:

(a)	by inserting after “mining operations are” —

“ to be ”;

(b)	by inserting after “provided in writing” —

“ , before mining operations begin, ”.

(3)	After section 32(4) the following subsections are inserted —

“

(5)

If mining operations begin at a mine and subsection (4)

has not been complied with, each person who is a

member of the syndicate or other association of

persons concerned commits an offence.

(6)

Where a duty arises under subsection (1) or (4) to

provide to the district inspector the name and address

of a partnership, syndicate or other association of

Mines Safety and Inspection Amendment Act 2004

Amendments relating to mine management	Part 4
s. 41

persons (an “association”) there is also a duty to

provide the name and address of each member of the

association.

”.

41. Section 32A inserted

After section 32 the following section is inserted —

“

32A.

Change of principal employer or of particulars

provided

(1)	If there is a change in the identity of the principal employer at a mine, the new principal employer must, not later than 7 days after the change occurs, provide to the district inspector for the region where the mine is situated particulars of —

(a)	the name and address of —

(i) the new principal employer; or

(ii)	partnership, syndicate or other

each person who is a member of the the new principal employer,

as the case may be; and

(b)	the day on which the change occurred.

(2)	If there is a change to the name or address of a principal employer at a mine, the principal employer must, not later than 7 days after the change occurs, provide particulars of the change to the district inspector for the region where the mine is situated.

(3) If —

(a)	the principal employer at a mine, or the person who under section 32(4) has assumed the duties of the principal employer at a mine, is a

Mines Safety and Inspection Amendment Act 2004

Part 4	Amendments relating to mine management
s. 42

partnership, syndicate or other association of

persons (the “association”); and

(b)	there is a change —

(i) in the membership of the association; or

(ii) to the name or address of any member of the association,

the principal employer must, not later than 7 days after the change occurs, provide particulars of the change to the district inspector for the region where the mine is

situated.

(4)	A principal employer who contravenes subsection (1), (2) or (3) commits an offence.

”.

42. Section 33A inserted

After section 33 the following section is inserted —

“

33A.

Registered manager may make appointments on

behalf of principal employer

(1)	It is sufficient compliance with a provision of section 34(1) or (2), 35(1), 36(1) or (2), 37(1), 38(1), (2) or (3) or 39(2) (a “relevant provision”) that requires the principal employer in relation to a mine —

(a)	to make a particular managerial appointment for the mine; or
(b)	to inform the district inspector for the region in which the mine is situated concerning the appointment,

if the appointment is made, or the information is given,

on behalf of the principal employer by the registered

manager in accordance with authority given by the

principal employer to do so.

Mines Safety and Inspection Amendment Act 2004

Amendments relating to mine management	Part 4
s. 43

(2)	It is open to the registered manager of a mine in exercising a power to appoint —

(a)	an underground manager; or

(b) a quarry manager,

for the mine under section 35 or 37, to appoint himself

or herself to that position.

(3)	If the registered manager —

(a) makes an appointment; or

(b)	gives information to a district inspector,

for the purposes of a relevant provision the registered manager is conclusively presumed to do so under and in accordance with authority given by the principal

employer.

(4)	Nothing in this section affects the obligation of the principal employer to comply with a relevant provision.

”.

43. Section 34 amended

(1)	Section 34(3) is amended as follows:

(a)	by inserting after “If the registered manager” —

“ or an alternate registered manager ”;

(b)	by inserting after “, the registered manager” —

“ or the alternate registered manager ”;

(c)	by deleting “registered manager’s deputy” and inserting instead —

“

deputy of the registered manager or the alternate

registered manager

”.

Mines Safety and Inspection Amendment Act 2004

Part 4	Amendments relating to mine management
s. 44

(2)	Section 34(4), (5) and (6) are repealed and the following subsections are inserted instead —

“

(4) Each —

(a) alternate registered manager; and

deputy appointed under subsection (3),

is deemed to be the registered manager, and has the

powers, functions and duties of a registered manager

under this Act, during any period of duty of the

alternate or deputy.

(b)

(5)	The appointment of —

(a)	a deputy or alternate of a registered manager; or
(b)	a deputy of an alternate registered manager,

does not relieve the registered manager, or the alternate registered manager, from responsibility for the exercise and performance of powers, functions and duties under this Act except during a period of duty mentioned in

subsection (4).

”.

44. Section 36 amended

(1)	Section 36(4) is repealed.
(2)	Section 36(5) is amended by deleting “, (3) or (4)” and inserting instead —
“ or (3) ”.
(3)	Section 36(7) is repealed.
(4)	Section 36(8) is amended as follows:

(a)	by deleting “to be subject to the duties imposed on underground managers” and inserting instead —

Mines Safety and Inspection Amendment Act 2004

Amendments relating to mine management	Part 4
s. 45

“

has the powers, functions and duties of an underground

manager

”;

(b)	by deleting “of powers” and inserting instead —

“ and performance of powers, functions ”.

45. Section 38 amended

(1)	Section 38(4) is repealed.
(2)	Section 38(5) is amended by deleting “, (3) or (4)” and inserting instead —
“ or (3) ”.
(3)	Section 38(7) is repealed.
(4)	Section 38(8) is amended as follows:

(a)	by deleting “to be subject to the duties imposed on quarry managers by” and inserting instead —

“

has the powers, functions and duties of a quarry

manager under

”;

(b)	by deleting “of powers” and inserting instead —

“ and performance of powers, functions ”.

46. Section 38A inserted

After section 38 the following section is inserted —

“

38A.

Periods of duty and related matters to be shown in

record book

(1)	The registered manager for a mine and any alternate registered manager for a mine must each maintain a log

Mines Safety and Inspection Amendment Act 2004

Part 4	Amendments relating to mine management
s. 46
in the record book of his or her periods of duty as registered manager for the mine.
Penalty: $5 000.

(2)	Without limiting subsection (1), the log maintained by the registered manager and the log maintained by any alternate registered manager must include, in
accordance with the regulations, particulars of —

(a)	each period during which a person appointed under section 34(3) acted as deputy of the registered manager or the alternate registered manager, as the case may be; and
(b)	the name of the person who so acted during the period.

(3)

The underground manager and any alternate

underground manager must each maintain a log in the

record book of his or her periods of duty as

underground manager for the mine.

Penalty: $5 000.

(4)

Without limiting subsection (3), the log maintained by

the underground manager and the log maintained by

any alternate underground manager must include, in

accordance with the regulations, particulars of —

(a)	each period during which a person appointed under section 36(3) acted as deputy of the underground manager or the alternate underground manager, as the case may be; and
(b)	the name of the person who so acted during the period.

(5)

The quarry manager and any alternate quarry manager

must each maintain a log in the record book of his or

her periods of duty as quarry manager for the mine.

Penalty: $5 000.

Mines Safety and Inspection Amendment Act 2004

Amendments relating to mine management	Part 4
s. 47

(6)	Without limiting subsection (5), the log maintained by the quarry manager and the log maintained by any alternate quarry manager must include, in accordance with the regulations, particulars of —

(a)	each period during which a person appointed under section 38(3) acted as deputy of the quarry manager or the alternate quarry manager, as the case may be; and
(b)	the name of the person who so acted during the period.

”.

47. Section 39 amended

After section 39(1) the following subsection is inserted —

“

(1a)	A notice is sufficiently given to the principal employer at a mine for the purposes of subsection (1) if it is given to the registered manager of the mine.

”.

48. Section 40 amended

Section 40(4) is amended by deleting “a log attached to the record book and kept at the mine.” and inserting instead —

“ the record book in accordance with section 38A. ”.

Mines Safety and Inspection Amendment Act 2004

Part 5

Amendments relating to safety and health representatives and

committees

Part 5 — Amendments relating to safety and health

representatives and committees

49. Section 4 amended

Section 4(1) is amended in the definition of “safety and health

committee” by inserting after “section 65” —

“ or 67A ”.

50. Section 21 amended

After section 21(5) the following subsection is inserted —

“

(5a)	In subsection (5) —
“the safety and health representative of that mine” includes a safety and health representative elected for a group of employees pursuant to a scheme

under section 55A if any member of the group

works at the mine.

”.

51. Section 25 amended

After section 25(1) the following subsection is inserted —

“

(1a)	In subsection (1) —
“the safety and health representative” —

(a)	if there is more than one safety and health representative for the mine, means any such representative who has functions relevant to the matters concerned; and
(b)	includes a safety and health representative elected for a group of employees pursuant to a scheme under section 55A if any member of the group works at the mine.

”.

Mines Safety and Inspection Amendment Act 2004

Amendments relating to safety and health representatives and

Part 5

committees

s. 52

52. Section 53 amended

After section 53(3) the following subsection is inserted —

“

(4)	If a scheme has been established under section 55A, the references in this section to “the mine” and “a mine” include —

(a)	if the scheme applies to more than one mine, each mine to which the scheme applies; and
(b)	if under the scheme a safety and health representative is elected for a group of employees, each mine or part of a mine at

which any member of the group works.

”.

53. Section 54 amended

(1)

Section 54 is amended by inserting before “An employee” the

subsection designation “(1)”.

(2)

At the end of section 54 the following subsection is inserted —

“

(2)	The fact that a notice under subsection (1) requires an election for the mine at which the employee works does not prevent —

(a)	the establishment of a scheme under section 55A that extends beyond that mine; or
(b)	the making of a determination under section 55(4a) for that purpose.

”.

54. Section 55 amended

(1)	Section 55(4) is amended after paragraph (b) by deleting “and” and inserting —

“

(ba)	the matters, areas or kinds of work in respect of which each safety and health representative is

Mines Safety and Inspection Amendment Act 2004

Part 5

Amendments relating to safety and health representatives and

committees

s. 55

to perform functions, so far as those things are

not to be dealt with by provision of a kind

mentioned in section 55B(2) or (3);

(bb)	how a vacancy in an office of safety and health representative that occurs in the circumstances mentioned in section 57(2)(b), (ba), (c) or (d) is to be dealt with; and

”.

(2)	After section 55(4) the following subsection is inserted —

“

(4a)	The employer and the delegate or delegates consulting under subsection (3a) may determine that provision of a kind mentioned in section 55B(2) or (3) should be
made.

”.

(3)	Section 55(5) is repealed and the following subsection is inserted instead —

“

(5)	For the purposes of subsection (4)(c), but without limiting the generality of that provision, the employer and the delegate or delegates consulting under subsection (3a) may determine that —

(a) the Electoral Commissioner; or

(b)	an organisation registered under Part II Division 4 of the Industrial Relations Act 1979,

is to be requested to conduct an election.

”.

55. Sections 55A, 55B and 55C inserted

After section 55 the following sections are inserted —

Mines Safety and Inspection Amendment Act 2004

Amendments relating to safety and health representatives and

Part 5

committees

s. 55

“

55A.

Election scheme may be established

(1)	In this section —
“consulting parties” means the employer and the

delegate or delegates consulting under

section 55(3a), and includes any delegate or

delegates appointed under section 55C.

(2)	If the consulting parties in respect of a mine have made a determination referred to in section 55(4a), a written agreement may be made between the consulting parties establishing a scheme under this section.
(3)	If the consulting parties cannot reach agreement on any matter for the purposes of subsection (2) they may refer the matter to the State mining engineer, who is to
attempt to resolve it to the satisfaction of the consulting parties.
(4)	If the State mining engineer is unable to resolve the matter, he or she is to refer it to the Tribunal for determination.
(5)	If subsection (4) applies, references in this Division to a scheme under this section are references to a scheme consisting of the provisions of —

Amendments to provide for improvement notices, prohibition

Part 6

notices and provisional improvement notices

s. 76

(d)	if that person is not the manager of a mine concerned, to such manager.

31BC.

Effect of notice pending review by Tribunal

(1)	Pending the decision on a reference under section 31BA, irrespective of the decision of the State mining engineer under section 31AZ —

(a)	the operation of an improvement notice is suspended; and
(b)	the operation of a prohibition notice continues, except to the extent that the Tribunal —

(i) permits any work, practice or activity to be carried out or any thing to be done;

(ii) permits any person to be at the mine concerned or at a part of the mine; or

(iii) in the case of a prohibition notice under Subdivision 3, permits any occupation of the premises concerned.

(2)	A permission given by the Tribunal under subsection (1)(b) —

(a)	is to be in writing;
(b)	may be subject to such restrictions and conditions as the Tribunal thinks fit to impose for the safety of —

(i) employees and other persons at a mine; or

(ii) in the case of a prohibition notice under Subdivision 3, any employee occupying the premises concerned;

and

(c)	is to be taken to be of no effect during any period when any such condition or restriction is not being observed according to its tenor.

Mines Safety and Inspection Amendment Act 2004

Part 6

Amendments to provide for improvement notices, prohibition

notices and provisional improvement notices

s. 76

(3)	The Tribunal is to give a copy of any permission given under subsection (1)(b) to the manager of a mine concerned.

Subdivision 8 — General

31BD.

Notices may include directions

(1)

An inspector or assistant inspector who issues an improvement notice or a prohibition notice may include in the notice directions as to the measures to be

taken to remedy any contravention, likely

contravention, hazard, matters or activities to which the

notice relates.

(2)

A direction under subsection (1) may —

(a)	refer to any code of practice; and
(b)	offer the person issued with the notice a choice of ways in which to remedy the contravention, likely contravention, hazard, matters or

activities to which the notice relates.

31BE.

Further power of State mining engineer to cancel

notice

(1)	The State mining engineer may, on his or her own initiative, cancel an improvement notice or a prohibition notice in respect of a mine by giving notice in writing of —

(a) the cancellation; and

(b)	the reasons for the cancellation,

to —

(c)	the person who was issued with the notice;
(d)	the principal employer at a mine if the principal employer is not the person referred to in paragraph (c); and

Mines Safety and Inspection Amendment Act 2004

Amendments to provide for improvement notices, prohibition

Part 6

notices and provisional improvement notices

s. 76

(e)	the manager of the mine if the manager is not the person referred to in paragraph (c).

(2)	The State mining engineer may, on his or her own initiative, cancel a prohibition notice issued under section 31AH by giving notice in writing of —

(a) the cancellation; and

(b)	the reasons for the cancellation,

to the employer and the employee concerned.

(3)	The power conferred by subsection (1) or (2) is not to be exercised in respect of a notice —

(a)	during a period when a referral of the notice is awaiting a determination of the State mining engineer under section 31AZ; or
(b)	after a decision in respect of the notice has been referred to the Tribunal under section 31BA,

but otherwise may be exercised at any time and

whether or not the notice concerned has been affirmed

under section 31AZ(1).

Division 4 — Issue of provisional improvement notices

by safety and health representative

31BF. Definition

In this Division —

“qualified representative” means a safety and health

representative who has completed a course of

training prescribed for the purposes of this

definition.

Mines Safety and Inspection Amendment Act 2004

Part 6

Amendments to provide for improvement notices, prohibition

notices and provisional improvement notices

s. 76

31BG.

Issue of provisional improvement notices

(1)	Subsection (2) applies where a qualified representative —

(a)	is of the opinion that a person —

(i) is contravening any provision of this Act; or

(ii) has contravened any provision of this Act in circumstances that make it likely that the contravention will continue or be repeated;

and

(b)	has undertaken the consultations required by section 31BH.

(2)	The qualified representative may issue to the person a provisional improvement notice requiring the person to remedy —

(a)	the contravention or likely contravention; or
(b)	the matters or activities occasioning the contravention or likely contravention.

(3)	A qualified representative may exercise the power conferred by subsection (2) only —

(a)	in respect of a mine for which the qualified representative was elected; or
(b)	if, pursuant to a scheme under section 55A, the qualified representative was elected for a group of employees, in respect of a mine at which any member of the group works.

(4)	The issue of a provisional improvement notice in respect of a contravention at a mine is to be notified as follows —

(a)	if the manager of the mine is not the person to whom the notice is issued, the qualified

Mines Safety and Inspection Amendment Act 2004

Amendments to provide for improvement notices, prohibition

Part 6

notices and provisional improvement notices

s. 76

representative who issues the notice must, as

soon as is practicable, give a copy of the notice

to the manager;

(b)	the manager must then give a copy of the notice to the principal employer at the mine, if the principal employer is not the person to whom it is issued;
(c)	the manager of a mine must give to the principal employer at the mine a copy of any provisional improvement notice issued to the manager.

(5)	A manager who fails to comply with subsection (4)(b) or (c) commits an offence.

31BH.

Consultation required before issue

(1)	In this section —
“consult” means consult about the matters or activities

to which an intended notice will relate.

(2)	Before issuing a provisional improvement notice a qualified representative must —

(a)	consult with the person who is to be issued with the notice; and
(b)	if there is any other safety and health representative for the mine concerned, consult with another representative for that mine so far as it is reasonably practicable to do so.

(3)

The reference in subsection (2) to a safety and health

representative includes a safety and health

representative elected for a group of employees

pursuant to a scheme under section 55A if any member

of the group works at the mine concerned.

(4)

The regulations may make provision requiring a

qualified representative, in specified circumstances, to

Mines Safety and Inspection Amendment Act 2004

Part 6

Amendments to provide for improvement notices, prohibition

notices and provisional improvement notices

s. 76

consult with a person who holds a prescribed office in

the department before issuing a provisional

improvement notice.

31BI.

Contents of notice

(1)	A provisional improvement notice must —

(a)	state the opinion of the qualified representative in terms of section 31BG(1)(a)(i) or (ii), as the case may be;
(b)	state reasonable grounds for that opinion;
(c)	specify the provision of this Act in respect of which the opinion is held;
(d)	state the day before which the person is required to remedy —

(i)	the contravention or likely contravention; or

(ii) the matters or activities occasioning the contravention or likely contravention;

and

A qualified representative may include in a provisional improvement notice directions as to the measures to be taken to remedy —

contain a brief summary of the right to have the section 31BN.

(e)

(2)	The day specified for the purposes of subsection (1)(d) must be more than 7 days after the day on which the notice is issued.

31BJ.

Provisional improvement notices may include

directions

(1)

(a)	any contravention or likely contravention; or

Mines Safety and Inspection Amendment Act 2004

Amendments to provide for improvement notices, prohibition

Part 6

notices and provisional improvement notices

s. 76

(b) matters or activities,

to which the notice relates.

(2)	Any direction under subsection (1) may —

(a)	refer to any code of practice; and
(b)	offer the person issued with the notice a choice of ways in which to effect the remedy.

31BK.

Display of provisional improvement notices

(1)	The manager of a mine who —

(a)	is issued with a provisional improvement notice; or
(b)	is given a copy of a provisional improvement notice under section 31BG(4),

must, as soon as is practicable, cause the notice, or a

copy of it, to be displayed in accordance with the

prescribed requirements.

(2)	A person commits an offence if the person removes a provisional improvement notice displayed under subsection (1) before the requirements of the improvement notice have been satisfied, taking into account any modification made under section 31BN(4).
(3)	Subsection (2) does not apply in respect of a provisional improvement notice that has ceased to have effect.
(4)	If a provisional improvement notice is modified by an inspector under section 31BN(4), the manager must cause a copy of the inspector’s decision to be displayed with, and in the same manner as is required for, the provisional improvement notice.
(5)	A manager who fails to comply with subsection (1) or (4) commits an offence.

Mines Safety and Inspection Amendment Act 2004

Part 6

Amendments to provide for improvement notices, prohibition

notices and provisional improvement notices

s. 76

31BL.

Failure to comply with notice

(1)	If a person —

(a)	is issued with a provisional improvement notice; and
(b)	does not comply with the notice within the time specified in it,

the person commits an offence.

(2)	Subsection (1) does not apply if the right conferred by section 31BN(1) is exercised.

31BM.

General duty of principal employer and manager in

respect of provisional improvement notice

(1)	Subsection (2) applies where —

(a)	a provisional improvement notice is issued in relation to a mine; and
(b)	the person issued with the notice is not the principal employer at, or the manager of, the mine.

(2)	The principal employer and the manager must take all reasonably practicable steps to ensure that the person issued with the notice complies with it.
(3)	Subsection (2) does not apply if the right conferred by section 31BN(1) is exercised.
(4)	The duty imposed by subsection (2) is in addition to any duty that the principal employer or the manager may have under section 32(2) or 43(2)(c).
(5)	A principal employer or manager who fails to comply with subsection (2) commits an offence.
(6)	A principal employer or manager is not precluded by a contract from doing such acts and things as are necessary to comply with subsection (2) and is not

Mines Safety and Inspection Amendment Act 2004

Amendments to provide for improvement notices, prohibition

Part 6

notices and provisional improvement notices

s. 76

liable under any contract to any penalty for doing such

acts and things.

31BN.

Review of notice by an inspector

(1)

A person issued with a provisional improvement notice

in relation to a mine, or the principal employer at, or

manager of, the mine may, in writing delivered or sent

to the department (a “review notice”), require that an

inspector review the notice.

(2)

A review notice —

(a)	may be sent —

(i) by letter addressed to, and posted to a place of business of, the department;

(ii) by transmission to a facsimile number used by the department; or

(iii) by electronic data transmission to an email address used by the department;

and

(b)	must be received by the department not later than the day specified in the provisional improvement notice for the purposes of section 31BI(1)(d).

(3)	The operation of the provisional improvement notice is suspended by the receipt by the department of a review notice in accordance with this section.
(4)	Where a review notice is received by the department in accordance with this section, an inspector must as soon as is practicable —

(a)	attend at the mine; and
(b)	inquire into the circumstances relating to the notice,

and having done so may —

Mines Safety and Inspection Amendment Act 2004

Part 6

Amendments to provide for improvement notices, prohibition

notices and provisional improvement notices

s. 76

(d)	affirm the notice with modifications; or

(e) cancel the notice.

(5)

If an inspector affirms a provisional improvement

notice, with or without modifications, the notice as so

affirmed has effect as if it had been issued by the

inspector under section 30.

(6)

Where an inspector reviews a provisional improvement

notice he or she is to give notice in writing —

(a)	of the result of the review; and
(b)	of any modifications to the notice,

to —

(c)	the person who required an inspector to review the notice; and
(d)	if that person is not the manager of the mine concerned, to such manager.

31BO.

Entries in mines record book

(1)	The manager of a mine who —

(a)	is issued with a provisional improvement notice under section 31BG(2); or
(b)	is given a copy of a provisional improvement notice under section 31BG(4),

must securely affix a copy of the notice to a page in the

record book for the mine.

(2)

The manager of a mine who is given notice under

section 31BN(6) of the result of a review must securely

affix a copy of the notice to a page in the record book

for the mine.

(3)

A manager of a mine who fails to comply with

subsection (1) or (2) commits an offence.

”.

Mines Safety and Inspection Amendment Act 2004

Amendments to provide for improvement notices, prohibition

Part 6

notices and provisional improvement notices

s. 77

77. Transitional provision for directions given before commencement

Sections 22, 23(1)(a)(iv), 30 and 31 of the Mines Safety and

Inspection Act 1994 continue to have effect for the purposes of a

direction under section 22 of that Act given before the

commencement of this Part as if sections 74, 75 and 76 had not

been enacted.

78. Section 71 amended

Section 71(2)(a) is amended by deleting “section 22” and

inserting instead —

“ Part 3 Division 3 ”.

79. Section 89 amended

After section 89(1) the following subsection is inserted —

“

(1a)	Subsection (1)(b) has effect subject to the provisions of —

(a) Part 3 Division 3 Subdivision 6; and (b) section 31BO.

”.

Mines Safety and Inspection Amendment Act 2004

Part 7

Amendments to provide for the Occupational Safety and

Health Tribunal to determine certain matters

Division 1

Amendments to the Mines Safety and Inspection Act 1994

s. 80

Part 7 — Amendments to provide for the Occupational Safety and Health Tribunal to determine

certain matters

Division 1 — Amendments to the Mines Safety and Inspection

Act 1994

80. Section 4 amended

Section 4(1) is amended by inserting after the definition of

“trainee” the following definition —

“

“Tribunal” has the meaning given by section 51G(2)

of the Occupational Safety and Health Act 1984;

”.

81. Section 96A amended

(1)

Section 96A is amended by inserting before “Every proceeding”

the subsection designation “(1)”.

(2)

At the end of section 96A the following subsection is

inserted —

“

(2)	When exercising jurisdiction under subsection (1) a safety and health magistrate constitutes a court of summary jurisdiction.

”.

82. Part 9 Division 3 heading inserted

After section 101L the following heading is inserted —

“

Division 3 — Jurisdiction of Occupational Safety and

Health Tribunal

”.

Mines Safety and Inspection Amendment Act 2004

Amendments to provide for the Occupational Safety and

Part 7

Health Tribunal to determine certain matters

Amendments to the Mines Safety and Inspection Act 1994

Division 1

s. 83

83. Section 102 replaced and transitional provisions

(1)	Section 102 is repealed and the following section is inserted instead —

“

102. Determination of certain matters and appeals by Tribunal

(1)	This section applies where —

(a)	under section 31BA, 55(6), 55A(4), 56(11), 59(1), 62(1), 67F(1), (2) or (3) or 74(2) a matter is referred to the Tribunal;
(b)	under section 68C a claim is referred to the Tribunal; or
(c)	under section 52 or 86 a person appeals to the Tribunal.

(2)	Where this section applies —

(a)	the matter, claim or appeal may be heard and determined; and
(b)	a determination made by the Tribunal on the matter, claim or appeal has effect, and may be —

(i) appealed against; and

(ii) enforced,

as if it were —

(c)	conferred on the Tribunal by Part VIB of the

a matter in respect of which jurisdiction is (“Part VIB”); or

(d)	a determination made for the purposes of Part VIB.

Mines Safety and Inspection Amendment Act 2004

Part 7

Amendments to provide for the Occupational Safety and

Health Tribunal to determine certain matters

Division 1

Amendments to the Mines Safety and Inspection Act 1994

s. 83

(3)	The provisions of — (a) Part VIB; and

(b)	the Industrial Relations Act 1979 applied by that Part,

have effect for the purposes of this section with all

necessary changes.

(4)	In the operation of subsection (3), section 51J(1) of the of the Occupational Safety and Health Act 1984 has effect as if it were expressed to apply where a matter has been referred to the Tribunal for determination under section 55(6), 55A(4), 56(11), 62(1), 67F or 74(2) of this Act.

”.

(2)	A matter referred to a safety and health magistrate under the Mines Safety and Inspection Act 1994 and not finally determined before the commencement of subsection (1) —

(a)	may continue to be dealt with; and
(b)	any order made in such a proceeding may be appealed against and enforced,

as if subsection (1) had not been enacted.

(3)	A determination or decision of a safety and health magistrate made before the commencement of subsection (1) may be the subject of —

(a)	an application for leave to appeal; and
(b)	an appeal for which leave is granted,

under section 54B(2) of the Occupational Safety and Health

Act 1984, as applied by the section repealed by subsection (1),

as if subsection (1) had not been enacted.

Mines Safety and Inspection Amendment Act 2004

Amendments to provide for the Occupational Safety and

Part 7

Health Tribunal to determine certain matters

Amendments to the Mines Safety and Inspection Act 1994

Division 1

s. 84

84. Various references to a safety and health magistrate amended

(1)	Each provision specified in the Table to this subsection is amended by deleting “a safety and health magistrate” and inserting instead —
“ the Tribunal ”.

Table

s. 55(6)	s. 59(4)
s. 56(11)	s. 62
s. 59(1)	s. 74(2)
s. 59(3)

(2)

Each provision specified in the Table to this subsection is

amended by deleting “the safety and health magistrate” and

inserting instead —

“ the Tribunal ”.

Table

s. 59(3)	s. 62
s. 59(4)

85. Section 52 amended and transitional provision

(1)

Section 52 is amended by deleting “Minister” in each place

where it occurs and inserting instead —

“ Tribunal ”.

(2)

An appeal brought under section 52 of the Mines Safety and

Inspection Act 1994 but not finally determined before the

commencement of subsection (1), may be dealt with and

determined under that section as if subsection (1) had not been

enacted.

Mines Safety and Inspection Amendment Act 2004

Part 7

Amendments to provide for the Occupational Safety and

Health Tribunal to determine certain matters

Division 2

Amendments to the Industrial Relations Act 1979

s. 85A

85A.

Section 76 amended

Section 76 is amended by deleting all words in subsection (1)

before paragraph (a) and inserting instead —

“

Where a person suffers injury in an accident at a mine and is disabled by that accident from performing his or her duties of employment as they were being

performed at the time the accident occurred, the manager must cause notice of the accident to be given —

”.

86. Section 86 amended and transitional provision

(1)

Section 86 is amended by deleting “Minister” in each place

where it occurs and inserting instead —

“ Tribunal ”.

(2)

An appeal brought under section 86 of the Mines Safety and

Inspection Act 1994 but not finally determined before the

commencement of subsection (1), may be dealt with and

determined under that section as if subsection (1) had not been

enacted.

Division 2 — Amendments to the Industrial Relations Act 1979

87. The Industrial Relations Act 1979 amended

(1)

The amendments in this section are to the Industrial Relations

Act 1979*.

[* Reprint 9 as at 18 June 2004.]

Mines Safety and Inspection Amendment Act 2004

Amendments to provide for the Occupational Safety and

Part 7

Health Tribunal to determine certain matters

Amendments to the Industrial Relations Act 1979

Division 2

s. 87

(2)	Section 7(3) is repealed and the following subsection is inserted instead —

“

(3)	A matter or claim that has been referred, or appeal that has been brought, to the Tribunal provided for by section 51G of the Occupational Safety and Health Act 1984 under a provision mentioned in —

(a)	subsection (1) of that section; or
(b)	section 102(1) of the Mines Safety and Inspection Act 1994,

is not an industrial matter.

”.

(3)

Section 8(2a)(b) is amended by inserting after “that Act” —

“ and the Mines Safety and Inspection Act 1994 ”.

(4)

Section 113(1)(d)(ii) is deleted and the following subparagraph

is inserted instead —

“

(ii)

the referral, bringing, hearing and appeals under —

(I)

the Occupational Safety and

Health Act 1984; and

(II)

the Mines Safety and Inspection Act 1994;

”.

Mines Safety and Inspection Amendment Act 2004

Part 8	Miscellaneous amendments
s. 88

Part 8 — Miscellaneous amendments

88. Section 4 amended

(1)	Section 4(1) is amended by inserting in the appropriate alphabetical positions — “

“apprentice” —

(a)	means an apprentice under the Industrial Training Act 1975; or
(b)	if Part 7 of the Vocational Education and Training Act 1996 comes into operation, means a person who, as an employee, has entered into an apprenticeship within the meaning of that term in section 58 of that Act;

“Australian Standard” means a document having that

title published by Standards Australia;

“Australian/New Zealand Standard” means a

document having that title published jointly by —

(a)	Standards Australia; and
(b)	the Standards Council of New Zealand;

“import” means to bring into the State, whether from

outside Australia or otherwise;

“trainee” means a person belonging to a class of

persons defined by the regulations as trainees for

the purposes of this Act;

”.

(2)

Section 4(1) is amended by deleting the definition of

“employee” and inserting instead —

“

“employee” means —

(a)	a person by whom work is done at a mine under a contract of employment; and

Mines Safety and Inspection Amendment Act 2004

Miscellaneous amendments	Part 8
s. 88

(b)	an apprentice or trainee who works at a mine;

”.

(3)

Section 4(1) is amended by deleting the definition of

“employer” and inserting instead —

“

“employer” means —

(a)	a person who employs an employee at a mine under a contract of employment; and
(b)	in relation to an apprentice or trainee, a person who employs the apprentice or trainee at a mine under an apprenticeship or traineeship scheme under the Industrial Training Act 1975;

”.

(4)	Section 4(1) is amended by inserting the following definition in the appropriate alphabetical position — “

“Mining Industry Advisory Committee” means the

committee referred to in section 14A(2) of the

Occupational Safety and Health Act 1984;

”.

(5)	Section 4(1) is amended in the definition of “mining operations” by inserting after paragraph (e) the following paragraph —

“

(ea)	the transport of ore or other mining product that takes place on a road that is not a road as defined in the Road Traffic Act 1974; and

”.

Mines Safety and Inspection Amendment Act 2004

Part 8	Miscellaneous amendments
s. 89

(6)	Section 4(1) is amended by deleting the definition of “self-employed person” and inserting instead — “

“self-employed person” means an individual who

works for gain or reward otherwise than —

(a)	under a contract of employment; or
(b)	as an apprentice or trainee,

whether or not the individual is an employer;

”.

(7)	Section 4(1) is amended by deleting the definition of “supply” and inserting instead — “

“supply”, in relation to any plant or substance,

includes supply and re-supply by way of —

(a)	sale (including by auction), exchange, lease, hire, or hire-purchase, whether as principal or agent;
(b)	the disposal in a manner referred to in paragraph (a) of assets of a business that include any plant or substance; and
(c)	the disposal of all of the shares in a company that owns any plant or substance;

”.

89. Section 6A inserted

After section 6 the following section is inserted —

“

6A.

Application of this Act to a workplace under the

Occupational Safety and Health Act 1984

(1)	In this section —
“specified” means specified in an instrument under

this section;

Mines Safety and Inspection Amendment Act 2004

Miscellaneous amendments	Part 8
s. 89

“workplace” has the meaning given by the

Occupational Safety and Health Act 1984.

(2)	The Minister and the Minister for the time being administering the Occupational Safety and Health Act 1984 may, by instrument in writing, jointly declare that for a specified period —

(a) this Act; or

(b)	any specified provision of this Act,

applies, to the exclusion of any inconsistent provision of the Occupational Safety and Health Act 1984, to or in relation to —

(c)	a specified workplace, or a specified part of a workplace, as if it were a mine or a part of a mine;
(d)	a specified activity as if it were a mining operation; and
(e)	a specified act, matter or thing as if it were an act, matter or thing to which this Act applies.

(3)

The reference in subsection (2) to any inconsistent

provision of the Occupational Safety and Health

Act 1984 does not include any provision of Part II of

that Act.

(4)

An instrument under this section may contain

provisions of a savings or transitional nature in relation

to the application of this Act or the Occupational

Safety and Health Act 1984 to any person, activity,

matter or thing.

(5)

An instrument under this section is subsidiary

legislation for the purposes of the Interpretation

Act 1984.

”.

Mines Safety and Inspection Amendment Act 2004

Part 8	Miscellaneous amendments
s. 90

90. Section 21 amended

(1)	After section 21(1)(c) the following paragraph is inserted —

“

(ca)	provide information to any person for the purpose of facilitating compliance with this Act;

”.

(2)	Section 21(1)(i) is deleted and the following paragraphs are inserted instead —

“

(i) in accordance with subsections (1a) and (1b), interview any person who the district inspector or special inspector (the “inspector”) has reasonable grounds to believe —

(i) is, or was at any time during the preceding 3 years —

(I)	an employee working at a mine; or

(II) an employee occupying

residential premises mentioned

in section 15D(2),

in relation to which the inspector is

inquiring;

(ii) was at such a mine or such residential premises at a time that is relevant to a matter about which the inspector is

inquiring; or

(iii) may otherwise be able to provide information relevant to a matter about which the inspector is inquiring;

(ia)	require the attendance of any person for an interview under paragraph (i);

”.

Mines Safety and Inspection Amendment Act 2004

Miscellaneous amendments	Part 8
s. 91

(3)	After section 21(1) the following subsections are inserted —

“

(1a)	An interview referred to in subsection (1)(i) is to be conducted in private if —

(a)	the inspector considers that to be appropriate; or
(b)

the person to be interviewed so requests,

but this subsection does not limit the operation of

subsection (3).

(1b)	Subsection (1a) may be invoked during an interview by —

(a) the inspector; or

(b) the person being interviewed,

in which case that subsection applies to the remainder

of the interview.

”.

91. Section 102A inserted

After the heading to Part 10 the following section is inserted —

“

102A.

Visitors to comply with directions

(1)	In this section —
“authorised person”, in relation to a mine, means —

(a)	a managerial officer at the mine;
(b)	an employer of any employee at the mine, including a person who is an employer by operation of section 15A, 15B or 15C; and
(c)	any self-employed person carrying out work at the mine;

“conduct” includes a failure to do a particular act or

thing;

Mines Safety and Inspection Amendment Act 2004

Part 8	Miscellaneous amendments
s. 91
“employee” includes a person who is an employee by

operation of section 15A, 15B or 15C;

“managerial officer”, in relation to a mine, means —

(a)	the principal employer at the mine;
(b)	the registered manager and any underground manager or quarry manager at the mine; and
(c)	a person appointed as an alternate or deputy of an officer referred to in paragraph (b).

(2)	Subsection (3) applies if —

(a)	a person (a “visitor”) is at a mine otherwise than in the capacity of —

a managerial officer;

(ii) an employer;

(iii) an employee; or

(iv) a self-employed person;

(i)

and

(b)	an authorised person believes on reasonable grounds that —

(i) any conduct of the visitor at the mine; or

(ii) the presence of the visitor at the mine or a particular part of the mine,

constitutes a hazard to any person.

(3)	The authorised person may direct the visitor —

(a)	to immediately cease engaging in the conduct concerned; or
(b)	to immediately leave the mine and not to return as a visitor to the mine until permitted by the authorised person to do so.

Mines Safety and Inspection Amendment Act 2004

Miscellaneous amendments	Part 8
s. 92

(4)	A person who, without reasonable excuse, fails to comply with a direction given to the person under subsection (3) commits an offence.

”.

92. Section 104 amended

After section 104(1)(c) the following paragraph is inserted —

“

(ca) Section 110 is amended as follows:

without limiting paragraph (c), imposing duties

on persons in relation to —

(i) the identification of hazards at mines;

(ii) the assessment of risks resulting from such hazards; and

(iii) the taking of remedial or other action;

”.

93. Section 110 amended

(a)	in subsection (1) by deleting “the expiration of 5 years from its commencement, and in the course of that” and inserting instead —

“

1 December 2009 and every fifth anniversary of that

day, and in the course of such a

”;

(b)	in subsection (2) by deleting “the review” and inserting instead —

“ such a review ”.

Mines Safety and Inspection Amendment Act 2004

Part 8	Miscellaneous amendments
s. 94

94. Occupational Safety and Health Act 1984 amended

(1)

The amendment in this section is to the Occupational Safety and

Health Act 1984*.

[* Reprinted as at 22 March 1999.

For subsequent amendments see Western Australian

Legislation Information Tables for 2003, Table 1, p. 267.]

(2)	After section 4(1a) the following subsection is inserted —

“

(1b)	This Act has effect subject to any instrument for the time being in force under section 6A of the Mines Safety and Inspection Act 1994.

”.