Queensland’s New Resources Regulator and Prosecutor

WHO SHOULD READ THIS

• Resources industry stakeholders in coal and metalliferrous mining, quarrying, petroleum and gas and those who deal with explosives in the Queensland resources industry.

THINGS YOU NEED TO KNOW

• A new Bill has been introduced in Queensland to create a new independent resources industry regulator and prosecutor.

WHAT YOU NEED TO DO

• Queensland resources industry stakeholders need to be aware of the new regulatory bodies they will be dealing with in the future for the management of health and safety issues and, in a worst-case scenario, prosecutions.

On 4 September 2019, the Resources Safety and Health Queensland Bill 2019 (Qld) was introduced into the Queensland Legislative Assembly.

Background

The Bill arose out of the 68 key recommendations made by the Coal Workers’ Pneumoconiosis Select Committee that were then considered for implementation by the Project Management Office. One of those recommendations concerned a stated need to ensure the independence of resources, safety and health regulation from other government functions.

The proposed changes will affect operations covered by the:

• Coal Mining Safety and Health Act 1999 (Qld);
• Mining and Quarrying Safety and Health Act 1999 (Qld);  
• Explosives Act 1999 (Qld); and  
• Petroleum and Gas (Production and Safety) Act 2004 (Qld).

The new regulator and Commissioner

If passed in its current form, the Bill will create a new regulator for the State’s safety-related regulatory functions, called Resources Safety and Health Queensland (RSHQ). 

Heading up the new regulator will be the Commissioner for Resources Safety and Health, replacing the current Commissioner for Mine Safety and Health position. RSHQ will include inspectorates for both coal and metalliferous mines, as well as for quarries, explosives, petroleum and gas. RSHQ will also include the Safety in mines testing and research station (Simtars) and responsibility for the Coal Mine Workers’ Health Scheme.

RSHQ is designed to be independent from the Department of Natural Resources, Mines and Energy and otherwise not part of, or subject to, oversight from any other administering department. 

The new Commissioner will however be required to:

• provide advice to the Minister about safety and health matters within the Commissioner’s jurisdiction and has a responsibility to monitor, review and report on the performance of RSHQ’s functions;
• fulfil the roles of the chairperson of the Coal Mining Safety and Health Advisory Committee and the Mining Safety and Health Advisory Committee;
• engage with representatives of the explosives and petroleum and gas sectors about promoting and protecting safety and health; and
• monitor, review and report to the Minister on RSHQ’s performance.

The new prosecutor 

In addition to an independent regulator, the Bill will create an independent Work Health and Safety Prosecutor. The new independent prosecutor for the resources sector will be the same independent prosecutor appointed under the Work Health and Safety Act 2011 (Qld), currently Aaron Guilfoyle.

The prosecutor will be responsible for prosecuting ‘serious offences’ under resources safety legislation. Prosecutorial action for offences that are not ‘serious offences’ will be dealt with by either the Work Health and Safety Prosecutor or the Chief Executive Officer of RSHQ.

The Bill defines a ‘serious offence’ for the coal and metalliferrous mining and quarrying sectors as being where a person who has a safety and health obligation contravenes that obligation in circumstances that cause death, grievous bodily harm, bodily harm, or that involves exposure to a substance which is likely to cause death or grievous bodily harm.

Importantly, the definition of a ‘serious offence’ is not aligned to how offences are categorised under the existing Work Health and Safety Act 2011 (Qld), where the ‘risk’ of death, illness or injury is a relevant consideration. Accordingly, the resources sector health and safely laws continue to rely on the actual outcome of an incident in determining the seriousness of any breach of an obligation.

Similar serious offence provisions apply for petroleum and gas and explosives entities, and other offences may be prescribed as a ‘serious offence’ by regulation.  

Third party requests for prosecution

The Bill includes a process where, if a prosecution has not occurred, any person can make a written request to the prosecutor to start a prosecution. The person making the application must reasonably believe that a serious offence has been committed, and must make the application within the window of time between six and 12 months after the relevant act or omission.

The prosecutor has a three-month period to respond to any such request, and there are then mechanisms where any failure to start a prosecution may involve input from the Director of Public Prosecutions. 

This process means that there will be a mechanism for third parties to seek to place pressure on the independent prosecutor to take action. 

What next

The above provisions will not commence until proclaimed.  We will publish further information about the commencement of the Bill and any changes made.

For further information, please contact our below authors.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.