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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Mine Health and Safety Bill 2004
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 When a person is at work 6
5 Risks arising from activities at work 6
Part 2 Application of Act
6 Application of Act 7
7 Act does not apply to certain mines or places 9
8 Decision on question of whether this Act applies 10
9 Act does not apply to coal mines 10
10 Act does not apply to railway operations 10
11 Act does not apply to civil engineering works 10
Mine Health and Safety Bill 2004
Contents
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12 Act does not apply to certain other operations 11
13 Act to bind Crown 11
Part 3 Objects of Act
14 Objects of Act 12
Part 4 Application of Occupational Health and Safety Act 2000
15 Act to be read in conjunction with OH&S Act 13
16 Act adds to protection provided by OH&S Act 13
17 OH&S Act prevails 13
18 Compliance with this Act is no defence to prosecution under
OH&S Act 14
19 Relationship between duties under this Act and OH&S Act 14
20 No double jeopardy 14
21 Documents 14
Part 5 Duties relating to health, safety and welfare at mines
Division 1 Duties of mine holders
22 Duty to nominate the operator of a mine 15
23 Chief Inspector may declare person as operator 17
24 Mine holder must give operator health and safety information17
25 Penalty for offence against this Division 17
Division 2 Duties of operators of mines
Subdivision 1 General duty
26 Worker safety 17
Subdivision 2 Mine safety management plans
27 Duty of operator to prepare mine safety management plan 18
28 No work directly related to mining without mine safety
management plan 18
29 Duty of operator to ensure compliance with mine safety
management plan 18
30 Contents of mine safety management plan 18
31 Consultation 19
32 Obligations concerning mine safety management plan 19
33 Access to mine safety management plan 20
34 Former operator must return information 20
Subdivision 3 Management structure
35 Operator must prepare management structure 20
36 Register of persons occupying positions 21
Contents page 2
Mine Health and Safety Bill 2004
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Subdivision 4 Duties regarding contractors
37 Operator to prepare contractor management plan 21
38 Content of contractor management plan 21
39 Operator to ensure contractor's familiarity with systems 21
40 Duties of operator regarding contractors 22
Subdivision 5 Emergency management
41 Meaning of "emergency" 23
42 Operator must prepare emergency plan 23
43 No mining or quarrying without emergency plan 23
44 Contents of emergency plan 23
45 Review and testing 23
Subdivision 6 Keeping of records and reporting
46 Keeping of records by operators 24
47 Reporting by operators 24
Subdivision 7 Penalties
48 Penalty for offence against this Division 24
Subdivision 8 Saving of certain notices and directions
49 Saving of certain notices and directions 24
Division 3 Duties and rights of employees
50 Duties of employees 25
51 Rights of employees 25
52 Unlawful dismissal or other victimisation of employee 26
53 Division applies to employees of contractor 27
Division 4 Duties of persons in management positions
54 Persons in management positions must comply with
mine safety management plan 27
55 Persons in management positions must inform operator
of non-compliance 27
56 Further obligations 28
57 Penalty for offence against this Division 28
Division 5 Duties of supervisors
58 Supervisor must comply with mine safety management plan 28
59 Supervisor must inform operator of non-compliance 28
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Mine Health and Safety Bill 2004
Contents
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60 Further obligations 29
61 Penalty for offence against this Division 29
Division 6 Duties of and in relation to contractors
62 Contractor must comply with operator's mine safety
management plan 29
63 Contractor's safety management plan 30
64 Duties of contractors regarding safe work method statement 31
65 Contractor to ensure work carried out in accordance with
safe work method statement 32
66 Contractor's duties regarding subcontractors 32
67 Penalty for offence against this Division 33
Division 7 Duty to give notice
68 Duty to give notice of drilling operations 33
69 Regulations may require notice to be given 33
70 Penalty for offence against this Division 34
Division 8 General
71 Person may have more than one duty 34
72 Relationship between duties under this Part and regulations 34
73 Multiple contraventions of duties under this Part 34
74 Civil liability not affected by this Part 35
Part 6 Miscellaneous matters concerning mines
Division 1 Mine plans
75 Regulations concerning mine plans 36
Division 2 Hours of work
76 Hours of work and associated working arrangements below
ground 36
77 Chief Inspector may require alteration of hours of work 37
78 Regulations concerning hours of work 37
79 Display of shift roster regimes 37
80 Recording of hours worked 37
81 Penalty for offence against this Division 38
82 Defence 38
Division 3 Tourist and educational activities
83 Definitions 38
84 Tourist activities in mines or use of mines for educational
purposes not allowed without a permit 38
85 Issue of tourist and educational permits 39
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Mine Health and Safety Bill 2004
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86 Revocation or variation of permits 40
87 Minister and certain other persons not liable in certain
circumstances 41
Part 7 Notification of incidents
Division 1 Notification of certain incidents
88 Notification of certain incidents and other matters 42
89 Non-disturbance of plant involved in notifiable incidents
(and of surrounding area) 42
90 Records of notifications 43
91 Penalty for offence against this Division 43
Division 2 Health and safety
92 Records of medical and first aid treatment 44
93 Offence relating to reporting of health or safety matters 44
94 Penalty for offence against this Division 44
Division 3 Inquiries
95 Boards of Inquiry 44
96 Witnesses and evidence at special inquiries 46
97 Report by Board of Inquiry 47
98 No appeal against exercise of functions by Boards of Inquiry 47
99 Penalty for offence against this Division 47
Part 8 Stop work orders
100 Minister may make stop work order 48
101 Prior notification of making of stop work order not required 48
102 Extension of stop work order 49
103 Consultation about modification of proposed detrimental
action 49
104 Stop work order prevails over other instruments 49
105 Costs of enforcing stop work order 49
106 Offence: failure to comply with a stop work order 50
Part 9 Competence standards
Division 1 Key obligations
107 Regulations may specify functions to which this Part applies 52
108 Operator to ensure only competent persons employed
to perform specified functions 52
109 Contractor to ensure only competent persons employed to
perform specified functions 52
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Mine Health and Safety Bill 2004
Contents
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110 Only competent persons to perform specified functions 52
111 Penalty for offence against this Division 52
Division 2 Metalliferous Mines and Extractive Industries
Competence Board
112 Constitution of Metalliferous Mines and Extractive Industries
Competence Board 53
113 Ministerial control of Board 53
114 Membership of Board 53
115 Procedure of Board 53
Division 3 Functions of Board
116 Functions of Board 54
117 Annual report 54
Division 4 Certificates of competence
118 Certificates of competence may be granted 54
119 Regulations concerning competence standards 55
120 Ministerial orders 55
Division 5 Offences
121 Offences: certificates of competence 56
122 Offence of forging or having forged document 57
123 False or misleading statements 57
124 Offences if a person's competence is declared as not
recognised 57
125 Penalty for offence against this Division 57
Part 10 Oversight of mines
Division 1 Outline of this Part
126 Outline of this Part 59
Division 2 Inspections by government officials
Subdivision 1 Appointment of government officials
127 Appointment of government officials 59
128 Qualifications of inspectors 59
129 Appointment of consultants as investigators 60
Subdivision 2 Functions of government officials
130 Functions of Chief Inspector 60
131 Bringing concerns regarding health, safety or welfare to the
attention of operators 60
132 Consideration and investigation of complaints 61
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Mine Health and Safety Bill 2004
Contents
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133 Audit and review of mine safety management plans and
other arrangements 61
134 Additional functions 62
Subdivision 3 Powers of government officials
135 Powers of entry at any time 62
136 Power to cross land 62
137 Power to require plan 63
Division 3 Inspections on behalf of work force
Subdivision 1 Site check inspectors
138 Site check inspectors 63
139 Trigger for election 63
140 Conduct of election of site check inspectors 64
141 Term of office 64
142 Vacation of office of site check inspector 65
143 Notification of election 65
144 Functions of site check inspectors 66
145 Training of site check inspectors 67
146 Duties of operators in relation to site check inspectors 67
147 Duties of contractors in relation to site check inspectors 68
148 Assistance to site check inspectors 69
149 Reports by site check inspectors 69
Subdivision 2 Inspections on behalf of work force
150 Inspections by site check inspectors 69
151 Site check inspector may be accompanied by operator or
operator's representative 70
152 Site check inspector must not leave work without prior
notice 70
153 Power to cross land 70
Division 4 Offences
154 Offence of failing to comply with requirement of
government official 71
155 Obstruction of site check inspectors in exercise of functions 71
156 Offence of interfering with site check inspector or
government official 71
157 Offence of impersonating a site check inspector or
government official 72
Part 11 Mining industry codes of practice
158 Purpose of industry codes of practice 73
159 Minister may prepare draft codes 73
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Mine Health and Safety Bill 2004
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160 Consultation on draft codes 73
161 Approval of codes by Minister 73
162 Publication, commencement and availability of codes 73
163 Amendment or revocation of codes 74
164 Use of codes 74
Part 12 Regulations
165 Regulations: general power 75
166 Regulations: specific miscellaneous powers 75
167 Regulations may prescribe decisions that are to be
reviewable by Administrative Decisions Tribunal 80
168 Regulations: adapting duties under Part 5 80
169 Regulations concerning application of Part 5 to contractors 81
170 Regulations may adopt other publications 81
171 Regulations may create criminal offences 81
172 Exemptions 81
173 Regulations relating to consultation 81
Part 13 Miscellaneous
Division 1 Enforcement
174 Offences by corporations 83
175 Aiding and abetting etc 83
176 Defence 84
177 Defences to criminal proceedings not affected by this Act 84
Division 2 Information
178 Disclosure of information 84
179 False or misleading statements 85
180 Defence 85
Division 3 Exercise and delegation of functions
181 Chief Inspector subject to Ministerial control 85
182 Delegation of functions by Minister 85
183 Delegation of functions by Chief Inspector 85
184 Delegation of functions by Director-General 86
Contents page 8
Mine Health and Safety Bill 2004
Contents
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Division 4 Service of documents
185 Service of documents 86
186 Supply of documents to operator 87
187 Supply of documents to Chief Inspector 87
Division 5 Fees
188 Fees 87
Division 6 Liability
189 Protection from liability 87
190 No obligation to exercise power 88
Division 7 Repeals and amendments
191 Repeals 88
192 Amendment of Mining Act 1992 No 29 88
193 Amendment of Occupational Health and Safety Act 2000
No 40 88
194 Amendment of Coal Mine Health and Safety Act 2002
No 129 89
195 Amendment of other legislation 89
Division 8 General
196 Savings, transitional and other provisions 89
197 Review of Act 89
Schedule 1 Amendment of Mining Act 1992 90
Schedule 2 Amendment of Occupational Health and Safety
Act 2000 92
Schedule 3 Amendment of Coal Mine Health and Safety
Act 2002 98
Schedule 4 Amendment of other legislation 114
Schedule 5 Savings, transitional and other provisions 117
Contents page 9
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2004
New South Wales
Mine Health and Safety Bill 2004
Act No , 2004
An Act to secure the health, safety and welfare of persons in connection with
certain mines; to repeal the Mines Inspection Act 1901; to amend certain Acts;
and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Mine Health and Safety Bill 2004
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Mine Health and Safety Act 2004.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Definitions
(1) In this Act:
abandoned mine includes a discontinued mine, a closed mine (other
than a suspended mine) and a former mine.
authorised representative has the same meaning as in section 76 of
the Occupational Health and Safety Act 2000.
Board means the Metalliferous Mines and Extractive Industries
Competence Board constituted by section 112.
Board of Inquiry means a Board of Inquiry constituted under
section 95.
certificate of competence means a certificate granted under section
118 that is in force.
Chief Inspector means the person appointed as Chief Inspector
under section 127.
coal includes oil shale and kerosene shale, but does not include peat.
competent means having appropriate experience, knowledge, skills
and capabilities.
contractor, in relation to a mine, means a person who is not an
employee at a mine, who undertakes work at the mine, but does not
include the operator of the mine.
contractor management plan for a mine means a contractor
management plan prepared for the mine under section 37.
Department means the Department of Mineral Resources.
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Mine Health and Safety Bill 2004 Clause 3
Preliminary Part 1
direction includes any instruction, order or requirement authorised
by this Act to be given or made by the Minister or an inspector.
Director-General means the Director-General of the Department.
emergency plan for a mine means an emergency plan prepared for
the mine under section 42.
employee means an individual who works under a contract of
employment or apprenticeship or, subject to the regulations, under
some other arrangement whereby the individual expects to receive
something of value for the individual's work, being a share of, or
payment out of proceeds from the sale of, a mineral recovered or a
payment dependent on the recovery of a mineral.
employer means a person who employs another person under a
contract of employment or apprenticeship or, subject to the
regulations, enters some other arrangement whereby the person
agrees to give another person who is an individual something of
value for the other person's work, being a share of, or payment out
of proceeds from the sale of, a mineral recovered or a payment
dependent on the recovery of a mineral.
evidence of competence means a certificate of competence or other
evidence of competence specified by the regulations.
exercise a function includes perform a duty.
function includes a power, duty and authority.
government official means a person appointed under section 127 or
129.
inspector means a person appointed as an inspector under
section 127.
investigator means a person appointed as an investigator under
section 127 or 129.
involved union means a Federal or State industrial organisation of
employees of which a person employed to engage in work at a mine
is a member, where that person is qualified to be such a member by
virtue of the work that the person performs in the person's
employment at the mine.
machinery means any device or item of plant, whether fixed or
mobile (however powered), that is used:
(a) to do work at or about a mine, or
(b) for the treatment of any product of a mine.
Page 3
Clause 3 Mine Health and Safety Bill 2004
Part 1 Preliminary
management structure for a mine means the management structure
prepared for the mine under section 35.
mine--see section 6.
mine holder means:
(a) in relation to land subject to a mine holding that is
registered--the person in whose name the mine holding is
registered in the register of mine holdings kept by the
Director-General under section 163A of the Mining Act 1992,
or
(b) in relation to land not subject to a mine holding but otherwise
subject to a mining title granted under the Mining Act 1992 or
a mining licence granted under the Offshore Minerals Act
1999--the person who holds the title or licence, or
(c) in relation to land where there is no requirement for grant of a
mining title under the Mining Act 1992--the person with the
right to extract minerals or quarry product from the land.
mine holding means a mine holding registered in accordance with
section 163A of the Mining Act 1992.
mine safety management plan for a mine means a mine safety
management plan prepared for the mine under section 27.
mine safety officer means a person appointed as a mine safety
officer under section 127.
mineral means any substance that is for the time being a mineral
within the meaning of the Mining Act 1992 or the Offshore Minerals
Act 1999, but does not include coal.
mining industry code of practice means a mining industry code of
practice under Part 11.
operator of a mine means:
(a) the mine holder, if the mine holder nominated himself, herself
or itself as the operator of the mine under section 22 and that
nomination is not rejected, or
(b) the person nominated by the mine holder as the operator of the
mine, and not rejected by the Chief Inspector, under section
22, or
(c) the person declared by the Chief Inspector to be the operator
under section 23, or
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Mine Health and Safety Bill 2004 Clause 3
Preliminary Part 1
(d) the person prescribed by, or determined in accordance with,
the regulations to be the operator of the mine.
place of work means premises where persons work.
plant includes any machinery, equipment (including scaffolding),
appliance, implement or tool and any component or fitting of, or
accessory to, any machinery, equipment, appliance, implement or
tool.
premises includes any place and in particular includes:
(a) any land, building or part of any building, and
(b) any vehicle, vessel or aircraft, and
(c) any installation on land, on the bed of any waters or floating
on any waters, and
(d) any tent or moveable structure.
previous offender, in relation to the maximum penalty for an
offence, means a person who has, at any time before being
sentenced for that offence, been convicted of any other offence of
any kind against:
(a) this Act, or
(b) the Mines Inspection Act 1901, or
(c) the Coal Mine Health and Safety Act 2002, or
(d) the Coal Mines Regulation Act 1982, or
(e) the Occupational Health and Safety Act 2000, or
(f) the Occupational Health and Safety Act 1983.
quarry product means conglomerate, sandstone, shale, basalt,
andesite, trachyte, porphyry or other rock, or sand, clay, shale,
gravel or peat, that is extracted or treated (or is intended to be
extracted or treated) for commercial or industrial purposes, but does
not include coal.
recycling operation means the sorting, grading and preparation of
recycled concrete, recycled brick, recycled bitumen, recycled stone
or recycled rock to be blended with any quarry product.
risks--see section 5.
site check inspector, in relation to a mine, means a person elected
under section 138 as a site check inspector for the mine.
stop work order means an order under section 100.
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Clause 4 Mine Health and Safety Bill 2004
Part 1 Preliminary
supervisor means a person nominated as a supervisor in the
management structure for a mine.
treatment means:
(a) the crushing, grinding, cutting, classifying, reducing,
smelting, concentrating, precipitating or separating of any
material that has been extracted from land for the purpose of
recovering minerals or quarry product, or
(b) any other process, or part of a process, for recovering minerals
or quarry product from material that has been extracted from
land.
underground mine means a mine in which persons are employed
below ground when the mine is being worked.
vehicle includes any mechanically driven machine capable of
moving under its own power.
(2) Notes included in this Act do not form part of this Act.
4 When a person is at work
For the purposes of this Act, a person is at work at a mine throughout
the time when the person is at the mine, but not otherwise.
5 Risks arising from activities at work
For the purposes of this Act, risks arising out of the activities of
persons at work include risks attributable to:
(a) the manner of conducting an undertaking, or
(b) the plant or substances used for the purposes of an
undertaking, or
(c) the condition of premises (or any part of premises) used for
the purposes of an undertaking.
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Mine Health and Safety Bill 2004 Clause 6
Application of Act Part 2
Part 2 Application of Act
6 Application of Act
(1) This Act applies to the following places of work (which are called
mines in this Act):
(a) any place within a mine holding,
(b) any place (not within a mine holding) where the extraction of
material from land for the purpose of recovering minerals or
quarry product is carried out,
(c) any place where the treatment of any such extracted material,
or the treatment of minerals or quarry product, is carried out,
if that place is:
(i) near the mine holding, or
(ii) at or near the place (not within a mine holding),
from which the material, minerals or quarry product were
extracted,
(d) any place where the storage or treatment of waste resulting
from:
(i) the extraction of material from land for the purpose of
recovering minerals or quarry product, or
(ii) the treatment of minerals or quarry product,
is carried out, if that place is near the mine holding, or is at or
near the place (not within a mine holding), from which the
material, minerals or quarry product were extracted,
(e) any place where recycling operations are carried out, if that
place is at or near the place (not within a mine holding) from
which material was extracted from land for the purpose of
recovering quarry product to be used in the recycling
operations,
(f) any place where the manufacturing of ready-mix concrete or
bitumen hot mix is carried out, if that place is:
(i) at or near a place (not within a mine holding) from
which material was extracted from land for the purpose
of recovering quarry product, and
(ii) under the control of the same person or entity that has
control of the place referred to in subparagraph (i),
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Clause 6 Mine Health and Safety Bill 2004
Part 2 Application of Act
(g) any place (not within a mine holding) where mining
exploration is carried out,
Note. See subsection (6).
(h) any place (not within a mine holding) where the treatment of
zircon, rutile, ilmenite, monazite and associated minerals is
carried out,
(i) any place where offshore exploration or mining activities
within the meaning of the Offshore Minerals Act 1999 are
carried out,
(j) any place where operations associated with the care, security
or maintenance of a place referred to in paragraph (b)-(i), (k)
or (l) are carried out during any time when activities or
operations at that place are suspended,
(k) any place where operations associated with the
decommissioning or abandonment of a place referred to in
paragraph (b)-(j) are carried out,
(l) any place that has ceased to be within a mine holding, or
where an activity or operation referred to in paragraph (b)-(k)
is or has been carried out, and that is being rehabilitated.
(2) Any building, structure, pit, shaft, drive, level, incline, decline,
excavation or work that is:
(a) at a place referred to in subsection (1) (b)-(i), and
(b) in the course of construction, and
(c) intended to be part of a mine,
is taken to be part of the mine constituted by that place.
(3) This Act also applies to the following places, whether or not they are
places of work:
(a) an abandoned mine (other than an abandoned mine used for
the storage, treatment or disposal of waste that is not
connected with an activity or operation referred to in
subsection (1) (b)-(i)),
(b) any place described in subsection (1) (b)-(l) during any time
when activities or operations at that place are suspended,
(c) any place on which drilling operations (within the meaning of
section 68) are carried out,
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Mine Health and Safety Bill 2004 Clause 7
Application of Act Part 2
(d) any land (that is not otherwise a mine within the meaning of
subsection (1)) on which activities or uses take place that are
the subject of, or required to be the subject of, a permit under
Division 3 of Part 6.
(4) For the purposes of this section, the extraction of material from land
for the purpose of recovering minerals or quarry product includes:
(a) any activity that is ancillary to, or connected with, extracting
material for such a purpose, and
(b) such other activities as may be prescribed by the regulations,
but does not include any activity or class of activity that is excluded
from the operation of this subsection by the regulations.
(5) For the purposes of this section (but subject to the regulations), a
place (the relevant place) is taken to be near a mine holding or other
place if:
(a) the relevant place is operating on an ongoing basis, and
(b) the relevant place (or any part of it) is within 10 kilometres of
the nearest boundary of the mine holding or other place.
(6) In subsection (1) (g), mining exploration means the carrying out of
works on, or the removal of samples from, land for the purpose of
testing the mineral or quarry product bearing qualities of the land,
but does not include:
(a) drilling operations within the meaning of section 68, or
(b) offshore exploration or mining activities within the meaning
of the Offshore Minerals Act 1999, or
(c) any activity or class of activity that is excluded from this
definition by the regulations.
7 Act does not apply to certain mines or places
(1) This Act does not apply to:
(a) any mine or place that is of a class prescribed by the
regulations or in circumstances or during time periods
prescribed by the regulations, or
(b) any mine or place specified by the Minister in a notice
published in the Gazette.
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Clause 8 Mine Health and Safety Bill 2004
Part 2 Application of Act
(2) The Minister is to notify any other Minister administering the
Occupational Health and Safety Act 2000 if any notice under
subsection (1) (b) is published in the Gazette. However, failure to
notify any such other Minister does not affect the validity of the
notice published in the Gazette.
8 Decision on question of whether this Act applies
(1) If any question arises, otherwise than in proceedings before a court,
as to whether a mine or other place is a mine or place to which this
Act applies, the question is to be referred to the Minister.
(2) The Minister's decision on any such question is final and binding on
any court in any proceedings arising under this Act or the
Occupational Health and Safety Act 2000.
(3) Subsection (2) does not apply in relation to any such proceedings
commenced before the Minister's decision was made.
(4) The Minister is to notify any other Minister administering the
Occupational Health and Safety Act 2000 if a decision is made by
the Minister under this section. However, failure to notify any such
other Minister does not affect the validity of the decision.
(5) A decision under this section does not, in itself, operate to impose
any liability on a person for anything done or omitted to have been
done by the person before the decision was made.
9 Act does not apply to coal mines
This Act does not apply to a place of work or other place to which
the Coal Mine Health and Safety Act 2002 applies.
10 Act does not apply to railway operations
This Act does not apply to a railway operation to which the Rail
Safety Act 2002 applies.
11 Act does not apply to civil engineering works
(1) Subject to the regulations and any notice given by the Minister
under section 7 (1) (b), this Act does not apply to:
(a) any place where the extraction or treatment of quarry product
is carried out, where those activities are an integral part of any
civil engineering work, or
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Mine Health and Safety Bill 2004 Clause 12
Application of Act Part 2
(b) any place where underground work involving the extraction
or treatment of quarry product is carried out, where that work
is an integral part of any civil engineering work.
(2) In this section, civil engineering work means the construction,
structural alteration, repair, maintenance and demolition of, for
example, airports, docks, harbours, inland waterways, dams, river
and avalanche and sea defence works, roads and highways,
railways, bridges and tunnels, viaducts and works related to the
provision of services such as communications, drainage, sewerage,
water and energy supplies.
12 Act does not apply to certain other operations
This Act does not apply to any part of a mine used for the purpose
only of manufacturing bricks, tiles, pottery, earthenware pipes,
terracotta, chinaware, refractory material or cement.
13 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far
as the legislative power of Parliament permits, the Crown in all its
other capacities.
Page 11
Clause 14 Mine Health and Safety Bill 2004
Part 3 Objects of Act
Part 3 Objects of Act
14 Objects of Act
The objects of this Act are as follows:
(a) to assist in securing the objects of the Occupational Health
and Safety Act 2000 at mines (including the object of securing
and promoting the health, safety and welfare of persons at
work at mines or related places),
(b) to ensure that the particular hazards associated with mines are
identified and that risks arising from those hazards are
assessed and eliminated or controlled,
(c) to ensure that effective provisions for emergencies are
developed and maintained at mines,
(d) to ensure that managers, supervisors and employees are
competent, by ensuring that appropriate health and safety
competencies are defined and are implemented in the mining
and quarrying industry.
Page 12
Mine Health and Safety Bill 2004 Clause 15
Application of Occupational Health and Safety Act 2000 Part 4
Part 4 Application of Occupational Health and
Safety Act 2000
Note.
The Occupational Health and Safety Act 2000 is the main Act that deals with the
health, safety and welfare of persons at work, including persons at work at a
mine. This Part explains how this Act fits in with the Occupational Health and
Safety Act 2000. Generally, this Act creates additional protections, rights and
obligations necessary because of the special risks associated with mines. This
Part makes it clear that this Act provides for an increase in the standard of
protection of persons at work at mines and does not result in less protection
than the Occupational Health and Safety Act 2000 would otherwise provide.
15 Act to be read in conjunction with OH&S Act
This Act is to be read in conjunction with the Occupational Health
and Safety Act 2000.
16 Act adds to protection provided by OH&S Act
(1) If a provision of the Occupational Health and Safety Act 2000 or the
regulations under that Act applies to mines or other places to which
this Act applies, that provision continues to apply, and must be
observed, in addition to this Act or the regulations under this Act.
Note. For example, Part 2 of the Occupational Health and Safety Act 2000
imposes duties relating to health, safety and welfare at mines. So does Part 5
of this Act. The provisions of this Act apply in addition to those of the OH&S Act
and do not remove any OH&S protections, rights or obligations.
(2) Without limiting subsection (1) or any other provision of this Act,
the failure by an operator to comply with a provision of this Act or
the regulations does not affect any liability of an employer or other
person under this Act or the regulations or under the Occupational
Health and Safety Act 2000 or the regulations under that Act.
17 OH&S Act prevails
(1) The provisions of the Occupational Health and Safety Act 2000 and
the regulations under that Act prevail, to the extent of any
inconsistency, over the provisions of both this Act and the
regulations under this Act.
Note. For example, if a provision of this Act deals with a certain matter and a
provision of the Occupational Health and Safety Act 2000 deals with the same
matter and it is impossible to comply with both provisions, then a person must
comply with the Occupational Health and Safety Act 2000. If provisions of both
Acts deal with the same matter and it is possible to comply with both provisions,
then a person must comply with both Acts.
(2) This section is subject to section 104.
Page 13
Clause 18 Mine Health and Safety Bill 2004
Part 4 Application of Occupational Health and Safety Act 2000
18 Compliance with this Act is no defence to prosecution under OH&S
Act
Compliance with this Act or the regulations, or with any
requirement imposed under this Act or the regulations, is not in
itself a defence in any proceedings for an offence against the
Occupational Health and Safety Act 2000 or the regulations under
that Act.
Note. For example, a person may be guilty of an offence under the
Occupational Health and Safety Act 2000 in respect of any act or omission that
is expressly required or permitted to be done or omitted by or under this Act or
the regulations under this Act.
19 Relationship between duties under this Act and OH&S Act
Evidence of a relevant contravention of this Act or the regulations
is admissible in any proceedings for an offence against the
Occupational Health and Safety Act 2000 or the regulations under
that Act.
20 No double jeopardy
Where an act or omission constitutes an offence:
(a) under this Act or the regulations, and
(b) under the Occupational Health and Safety Act 2000 or the
regulations under that Act,
the offender is not liable to be punished twice in respect of the
offence.
21 Documents
To avoid doubt, any documents or plans that by virtue of this Act or
the regulations are required to be kept at a mine are taken to be
documents that directly affect the occupational health and safety of
employees within the meaning of section 81 of the Occupational
Health and Safety Act 2000.
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Mine Health and Safety Bill 2004 Clause 22
Duties relating to health, safety and welfare at mines Part 5
Part 5 Duties relating to health, safety and welfare
at mines
Note.
Part 2 of the Occupational Health and Safety Act 2000 imposes duties relating
to health, safety and welfare at work on employers and others. Those duties
apply to work at mines.
This Part imposes extra duties.
Division 1 Duties of mine holders
Note.
Section 8 of the Occupational Health and Safety Act 2000 imposes duties on
employers. If a mine holder nominates himself, herself or itself as the operator
of the mine, the mine holder has the duties in that section as the employer of its
employees and has duties in relation to other persons who work at the mine.
Section 10 of the Occupational Health and Safety Act 2000 imposes duties on
a person who has control of premises used by persons as a place of work. If a
mine holder nominates a person other than himself, herself or itself as the
operator of the mine, the mine holder is, for the purpose of that Act, a person
who has control of the premises constituted by the mine and so has duties under
that section.
This Division imposes extra duties on mine holders.
22 Duty to nominate the operator of a mine
(1) A mine holder must not undertake any work directly related to
mining, or allow any other person to undertake any work directly
related to mining, at a mine unless the mine holder has nominated
one person who is the employer with the day to day control of the
mine as the operator of the mine.
(2) A nomination must be made in writing to the Chief Inspector.
(3) A mine holder may nominate himself, herself or itself as the
operator of a mine.
(4) If there is more than one separate and distinct mine at a place, the
mine holder may nominate the person who is the employer with the
day to day control of each such mine, individually or collectively.
(5) A nomination under this section must be in the form prescribed by
the regulations.
(6) The Chief Inspector may require a mine holder to provide further
information concerning a nomination.
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Clause 22 Mine Health and Safety Bill 2004
Part 5 Duties relating to health, safety and welfare at mines
(7) The Chief Inspector must tell the mine holder who made the
nomination if the nomination has been rejected. This must be done
within 28 days of receiving the nomination or within any further
time specified by the Chief Inspector when the Chief Inspector
requests further information under subsection (6).
(8) The Chief Inspector may reject a nomination under this section:
(a) if the Chief Inspector believes that the nominated operator is
not the employer with the day to day control of the mine, or
(b) in such circumstances as may be prescribed by the
regulations.
(9) If a nomination is rejected it is taken, on and from the time the
rejection is notified to the operator, not to have been made.
(10) If an operator whose nomination has not been rejected under this
section ceases to be the employer with the day to day control of the
mine, the mine holder must not undertake any mining, or allow any
other person to undertake any mining, at the mine unless the mine
holder has nominated another operator of the mine. This section
applies to a further nomination in the same way as it applies to an
initial nomination.
(11) This section does not require a mine holder to nominate an operator
if a previous mine holder of the mine holding nominated an operator
other than himself, herself or itself and that nomination was not
rejected.
(12) The regulations may specify that work is or is not directly related to
mining for the purposes of this section.
(13) The regulations may provide for the circumstances in which a
person is taken to cease to be the employer with the day to day
control of a mine for the purposes of this section.
(14) Subject to the regulations, the fact that an operator was not, when
nominated as the operator under this section, the employer with the
day to day control of the mine concerned does not affect the
operator's obligations under this Act.
(15) Subject to the regulations, the fact that an operator has ceased to be
the employer with the day to day control of the mine does not affect
the operator's obligations under this Act.
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Mine Health and Safety Bill 2004 Clause 23
Duties relating to health, safety and welfare at mines Part 5
23 Chief Inspector may declare person as operator
(1) If it appears to the Chief Inspector that there is no operator of a mine
or no mine holder exists in relation to a mine or class of mine, the
Chief Inspector may declare, by notice in writing, that a specified
person, or a person who is a member of a specified class of persons,
is the operator of the mine or class of mines.
(2) Any such notice may specify the time from which the declaration
takes effect.
24 Mine holder must give operator health and safety information
(1) If a mine holder nominates a person other than the mine holder as
the operator of a mine, the mine holder must provide the person
nominated with all information available to the mine holder that
may reasonably be relevant to the development and implementation
of a mine safety management plan for the mine.
(2) The regulations may prescribe the information that must be
provided under this section.
25 Penalty for offence against this Division
A mine holder who contravenes, whether by act or omission, a
provision of this Division is guilty of an offence against that
provision.
Maximum penalty: 250 penalty units.
Division 2 Duties of operators of mines
Note.
Section 8 (1) of the Occupational Health and Safety Act 2000 imposes a duty
on employers in relation to their employees. The operator of a mine has that
duty in relation to its employees. This Division imposes extra duties on
operators, including in relation to other persons who work at the mine.
Subdivision 1 General duty
26 Worker safety
The operator of a mine must ensure that all persons working at the
mine (including managers and supervisors) have the necessary
skills, competence and resources to undertake their work safely and
to ensure the safety of others.
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Clause 27 Mine Health and Safety Bill 2004
Part 5 Duties relating to health, safety and welfare at mines
Subdivision 2 Mine safety management plans
27 Duty of operator to prepare mine safety management plan
(1) The operator of a mine must prepare a statement, in accordance with
this Act and the regulations, stating how the health and safety of the
persons who work at the mine, or who are directly affected by the
mine, will be protected. This is a mine safety management plan.
(2) For the purposes of this section, a person may be directly affected
by a mine even if the person is not inside the mine.
(3) The regulations may specify which persons or classes of persons are
directly affected by a mine for the purposes of this Subdivision.
(4) This section does not require an operator to prepare a mine safety
management plan for a mine if:
(a) a previous operator of the mine prepared a plan that complies
with this Act and the regulations, and
(b) the plan is adopted by the subsequent operator.
28 No work directly related to mining without mine safety management
plan
(1) The operator of a mine must ensure that work directly related to
mining is not carried out by any person at the mine unless a mine
safety management plan that complies with this Act and the
regulations has been implemented for the mine.
(2) The regulations may specify that work is or is not directly related to
mining for the purposes of this section.
29 Duty of operator to ensure compliance with mine safety
management plan
The operator of a mine must ensure that work at the mine is carried
out in compliance with the mine safety management plan for the
mine. This includes work undertaken by contractors who undertake
work at the mine.
30 Contents of mine safety management plan
(1) A mine safety management plan for a mine must include summaries
of, or references to:
(a) any regulations under this Act that apply to the mine, and
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Mine Health and Safety Bill 2004 Clause 31
Duties relating to health, safety and welfare at mines Part 5
(b) any systems, policies, programs, plans and procedures
developed and implemented under this Act or the regulations
in relation to the mine, and
(c) any codes, standards or guidelines that apply to the mine.
(2) A mine safety management plan for a mine must provide:
(a) the basis for the identification of hazards, and of the
assessment of risks arising from those hazards, by the
operator of the mine, and
(b) for the development of controls for those risks, and
(c) for the reliable implementation of those controls.
(3) A mine safety management plan must include:
(a) the document that sets out the management structure required
under Subdivision 3, and
(b) the contractor management plan required under
Subdivision 4, and
(c) the emergency plan required under Subdivision 5, and
(d) any other matter required by the regulations.
31 Consultation
The persons who work at the mine must be consulted, in the manner
required by the regulations, during the preparation of the mine
safety management plan and before its amendment.
32 Obligations concerning mine safety management plan
The operator of a mine must:
(a) communicate the mine safety management plan, or a
summary of the plan, to the persons working at the mine, and
(b) regularly review the mine safety management plan, including
a process of consultation with those persons, and
(c) ensure that no contractor starts work at the mine without
having been provided with a copy of, or with access to, the
mine safety management plan for places of work relevant to
the contractor.
Page 19
Clause 33 Mine Health and Safety Bill 2004
Part 5 Duties relating to health, safety and welfare at mines
33 Access to mine safety management plan
(1) An up-to-date copy of the mine safety management plan for a mine
must be kept at the mine by the operator of the mine and must be
made available for inspection by:
(a) a government official, or
(b) a site check inspector for the mine, or
(c) an authorised representative who is entitled to exercise
functions in relation to the mine, or
(d) any person who works at the mine.
(2) The operator of a mine must immediately supply the Chief Inspector
with an up-to-date copy of the mine safety management plan for the
mine if the Chief Inspector requests a copy.
Note. Section 178 protects information obtained in connection with the
administration or execution of this Act by preventing its disclosure except in
limited circumstances.
34 Former operator must return information
If a person ceases to be the operator of a mine, that person must take
all reasonable steps to return to the current mine holder any
information provided to the person under section 24 (1) or otherwise
obtained by the person in the course of exercising the functions of
an operator that are prescribed by the regulations, whether or not
updated by the operator. That information must be returned as soon
as practicable after the person ceases to be the operator.
Subdivision 3 Management structure
35 Operator must prepare management structure
(1) As part of the mine safety management plan for a mine, the operator
of the mine must prepare a document that sets out the management
structure of the mine.
(2) The management structure must:
(a) nominate persons within the structure by position and must
outline their areas of responsibility and accountability, and
(b) include competent persons with appropriate engineering
competence, and
(c) include competent persons to perform the functions of
supervisors of the mine.
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Mine Health and Safety Bill 2004 Clause 36
Duties relating to health, safety and welfare at mines Part 5
(3) An operator must take all reasonable steps to maintain the
management structure. This includes having others acting in, and
the timely filling of, vacant positions in the structure.
(4) During an emergency, the management structure of a mine may be
suspended and a different management structure may be put into
place for the duration of the emergency.
36 Register of persons occupying positions
(1) The operator of a mine must keep a register at the site of the mine
containing the names of persons occupying positions in the
management structure of the mine.
(2) The register must cover both current occupants of positions and
occupants for the previous 5 years (including any period before the
commencement of this section).
(3) The register is to be made available for inspection on request by a
government official, a site check inspector or by any person who
works at the mine.
Subdivision 4 Duties regarding contractors
37 Operator to prepare contractor management plan
As part of the mine safety management plan for a mine, the operator
of a mine at which contractors are proposed to be used must prepare
a contractor management plan stating how the risks arising from the
use of contractors at the mine will be managed.
38 Content of contractor management plan
A contractor management plan for a mine must make provision for
the matters prescribed by the regulations.
39 Operator to ensure contractor's familiarity with systems
The operator of a mine at which any contractor proposes to work
must ensure, before that work commences, that consultation occurs
with the contractor so that:
(a) the contractor is familiar with the relevant parts of the mine
safety management plan for that mine, and
(b) the contractor's arrangements for safety management are
consistent with the mine safety management plan for that
mine.
Page 21
Clause 40 Mine Health and Safety Bill 2004
Part 5 Duties relating to health, safety and welfare at mines
40 Duties of operator regarding contractors
(1) An operator of a mine must ensure:
(a) that every contractor who works at the mine is directed to
comply with the requirements of this Act and the regulations
and the Occupational Health and Safety Act 2000 and the
regulations under that Act, and
(b) that the activities of the contractor are monitored to the extent
necessary to determine whether or not the contractor is
complying with the operator's mine safety management plan
or with the contractor's safety management plan (if it has been
accepted under section 63) and with the requirements of this
Act and the regulations and the Occupational Health and
Safety Act 2000 and the regulations under that Act, and
(c) that, if the contractor is not so complying, the contractor is
directed to take action immediately to comply with the safety
management plan or the requirements of this Act and the
regulations and the Occupational Health and Safety Act 2000
and the regulations under that Act, and
(d) that if a risk to the health or safety of a person arises because
of such non-compliance, the contractor is directed to stop
work immediately and to not resume work until those
requirements are complied with, unless an immediate
cessation of work is likely to increase the risk to health and
safety, in which event the contractor must be directed to stop
work as soon as it is safe to do so, and
(e) that the contractor and the contractor's employees receive
induction training with respect to occupational safety and
health as specified in the mine safety management plan for the
mine, and
(f) that the contractor is provided with details of any relevant
changes made to the mine safety management plan for the
mine.
(2) A failure by an operator to give a direction, or to ensure that a
direction is given, under this section does not affect any liability of
the contractor under this Act or the regulations or under the
Occupational Health and Safety Act 2000 or the regulations under
that Act.
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Mine Health and Safety Bill 2004 Clause 41
Duties relating to health, safety and welfare at mines Part 5
Subdivision 5 Emergency management
41 Meaning of "emergency"
For the purposes of this Subdivision, an emergency exists at a mine
when a situation is not controlled by the mine safety management
plan for the mine and there is a threat to the life or physical well-
being of persons at or outside the mine.
42 Operator must prepare emergency plan
The operator of a mine must ensure that an emergency plan that
complies with this Subdivision is prepared for the mine.
43 No mining or quarrying without emergency plan
The operator of a mine must ensure that work is not carried out at
the mine unless an emergency plan that complies with this
Subdivision is implemented for the mine.
44 Contents of emergency plan
(1) An emergency plan must contain an up-to-date plan of the mine and
any other plan required by the regulations.
(2) An emergency plan must adequately address emergency evacuation
and any other matter prescribed by the regulations.
45 Review and testing
(1) The operator of a mine must ensure that the emergency plan for the
mine is reviewed and tested:
(a) as soon as practicable after any emergency has occurred at the
mine, and
(b) whenever the mine safety management plan for the mine is
reviewed.
(2) The persons who work at the mine must be consulted, in the manner
prescribed by the regulations, during the review.
(3) A review under this section is only required to consider the relevant
parts of the emergency plan.
Page 23
Clause 46 Mine Health and Safety Bill 2004
Part 5 Duties relating to health, safety and welfare at mines
Subdivision 6 Keeping of records and reporting
46 Keeping of records by operators
The operator of a mine must keep the records concerning health and
safety that are required by this Act or the regulations, in the manner
required by the regulations and for at least the time required by the
regulations.
47 Reporting by operators
The operator of a mine must make the reports concerning health and
safety that are required by the regulations, in the manner required by
the regulations.
Subdivision 7 Penalties
48 Penalty for offence against this Division
An operator or former operator of a mine who contravenes, whether
by act or omission, a provision of this Division is guilty of an
offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)--
7,500 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
5,000 penalty units, or
(c) in the case of an individual (being a previous offender)--
750 penalty units or imprisonment for 2 years, or both, or
(d) in the case of an individual (not being a previous offender)--
500 penalty units.
Subdivision 8 Saving of certain notices and directions
49 Saving of certain notices and directions
(1) If a notice or direction is given under this Act to a person as the
operator of a mine and that person is replaced as operator by another
person, any notice or direction is taken to have been given to the
new operator.
(2) Nothing in this section affects any liability for an offence committed
by a person when the person was the operator of a mine.
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Mine Health and Safety Bill 2004 Clause 50
Duties relating to health, safety and welfare at mines Part 5
Division 3 Duties and rights of employees
Note.
Sections 20, 21, 24 and 25 of the Occupational Health and Safety Act 2000
impose duties on employees. This Division imposes extra duties and confers a
right on employees.
50 Duties of employees
(1) An employee who works at any mine:
(a) must comply with the mine safety management plan for the
mine, and
(b) must follow the operator's procedures for emergencies as set
out in the emergency plan for the mine, and
(c) must, before commencing work and at frequent intervals
during the employee's work day, carefully examine the
working place and any machinery or system intended to be
used so as to be satisfied that it is safe, and
(d) must take any actions within the employee's responsibility to
control a danger at the mine, and
(e) if the employee is employed by a contractor, must comply
with any safety management plan of the contractor that has
been accepted by the operator of the mine in accordance with
section 63.
(2) An employee who works at a mine must immediately report to the
employee's immediate supervisor (if any) any situation that the
employee believes could present a risk to health and safety and that
is not within the employee's competence to control. If the
employee's supervisor is not immediately available, the employee
must instead immediately report the situation to another senior
person (if any) at the mine.
Maximum penalty:
(a) in the case of a previous offender--45 penalty units, or
(b) in any other case--30 penalty units.
51 Rights of employees
An employee who works at a mine has the right to remove himself
or herself from any location at the mine when circumstances arise
that appear to the employee, with reasonable justification, to pose a
serious danger to the employee's own health, safety or welfare.
Page 25
Clause 52 Mine Health and Safety Bill 2004
Part 5 Duties relating to health, safety and welfare at mines
52 Unlawful dismissal or other victimisation of employee
(1) An employer of any person who works at a mine must not dismiss
an employee, injure an employee in his or her employment or alter
an employee's position to his or her detriment because the
employee:
(a) participates in a consultation process required by this Act or
the regulations, or
(b) exercises rights under this Act or the regulations, or
(c) reports a notifiable incident within the meaning of section 88,
or
(d) in connection with a health and safety matter, seeks the
assistance of, or reports a matter to, an authorised
representative, or
(e) performs functions or complies with duties under this Act or
the regulations or assists a government official, or
(f) is, or is standing for election to be, a site check inspector.
(2) In proceedings for an offence against this section, if all the facts
constituting the offence other than the reason for the defendant's
action are proved, the onus of proving that the dismissal, injury or
alteration was not actuated by the reason alleged in the charge lies
on the defendant.
(3) If a person is found guilty by a court of contravening this section,
the court may order the person:
(a) to pay the employee a specified sum by way of reimbursement
for the salary or wages lost by the employee, and
(b) to reinstate the employee to his or her usual position or a
similar position.
(4) Such a person must give effect to an order of the court under
subsection (3).
Maximum penalty (subsections (1) and (4)):
(a) in the case of a corporation (being a previous offender)--
375 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
250 penalty units, or
(c) in the case of an individual (being a previous offender)--
225 penalty units, or
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Mine Health and Safety Bill 2004 Clause 53
Duties relating to health, safety and welfare at mines Part 5
(d) in the case of an individual (not being a previous offender)--
150 penalty units.
Note. An employer of any person who works at a mine has a duty under section
23 of the Occupational Health and Safety Act 2000 not to unlawfully dismiss or
victimise employees. This section imposes an additional duty.
53 Division applies to employees of contractor
This Division applies to an employee of a contractor who works at
a mine, to the extent that it applies to work done by the employee,
in the same way as it applies to an employee of an operator.
Division 4 Duties of persons in management positions
Note.
Section 26 of the Occupational Health and Safety Act 2000 imposes duties on
those in management positions because it provides that where a corporation
contravenes a provision of that Act or the regulations under that Act, then each
director and each person concerned in the management of the corporation is
taken to have contravened the same provision unless they can establish a
defence. This Division imposes additional duties on those in management
positions.
54 Persons in management positions must comply with mine safety
management plan
(1) A person who holds a management position at a mine must comply
with the mine safety management plan for the mine.
(2) A person who holds a management position at a mine and is an
employee of a contractor must comply with any safety management
plan of the contractor that has been accepted by the operator of the
mine in accordance with section 63.
55 Persons in management positions must inform operator of non-
compliance
(1) A person who holds a management position at a mine must inform
the operator of the mine if the person is aware that the conduct of the
mine does not conform with this Act or the regulations or the
Occupational Health and Safety Act 2000 or the regulations under
that Act.
(2) A failure by a person to inform the operator under this section does
not affect any liability of the operator under this Act or the
regulations or under the Occupational Health and Safety Act 2000
or the regulations under that Act.
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Clause 56 Mine Health and Safety Bill 2004
Part 5 Duties relating to health, safety and welfare at mines
56 Further obligations
A person who holds a management position at a mine:
(a) must ensure that the workplace and work methods for which
the person is responsible are safe, and
(b) must ensure that hazards at the workplace for which the
person is responsible are identified and that associated risks
are controlled, and
(c) must ensure that safety information concerning the workplace
for which the person is responsible is communicated to
relevant persons, particularly other supervisors at the change
of a shift, and
(d) must have regard to appropriate risk management standards at
the workplace for which the person is responsible, and
(e) must implement risk management practices in areas that the
person controls.
57 Penalty for offence against this Division
A person who contravenes, whether by act or omission, a provision
of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a previous offender--75 penalty units, or
(b) in any other case--50 penalty units.
Division 5 Duties of supervisors
58 Supervisor must comply with mine safety management plan
(1) A supervisor at a mine must comply with the mine safety
management plan for the mine.
(2) A supervisor at a mine who is an employee of a contractor must
comply with any safety management plan of the contractor that has
been accepted by the operator of the mine in accordance with
section 63.
59 Supervisor must inform operator of non-compliance
(1) A supervisor at a mine must inform the operator of the mine if the
supervisor is aware that the conduct of the mine does not conform
with this Act or the regulations or the Occupational Health and
Safety Act 2000 or the regulations under that Act.
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Mine Health and Safety Bill 2004 Clause 60
Duties relating to health, safety and welfare at mines Part 5
(2) A failure by a supervisor to inform the operator under this section
does not affect any liability of the operator under this Act or the
regulations or under the Occupational Health and Safety Act 2000
or the regulations under that Act.
60 Further obligations
A supervisor at a mine:
(a) must ensure that safety information concerning that part or
aspect of the workplace for which the supervisor is
responsible is communicated to relevant persons, particularly
other supervisors at the change of a shift, and
(b) must have regard to appropriate risk management standards,
and
(c) must implement risk management practices in that part or
aspect of the workplace for which the supervisor is
responsible.
61 Penalty for offence against this Division
A person who contravenes, whether by act or omission, a provision
of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a previous offender--75 penalty units, or
(b) in any other case--50 penalty units.
Division 6 Duties of and in relation to contractors
Note.
A contractor who works at a mine will have obligations as an employer under
section 8 of the Occupational Health and Safety Act 2000 or as a self-employed
person under section 9 of that Act. This Division imposes extra duties on
contractors in relation to mines.
62 Contractor must comply with operator's mine safety management
plan
Except as provided by section 63, a contractor who works at a mine
must comply with the mine safety management plan of the operator
for the mine to the extent that it applies to work done by the
contractor.
Page 29
Clause 63 Mine Health and Safety Bill 2004
Part 5 Duties relating to health, safety and welfare at mines
63 Contractor's safety management plan
(1) A contractor who works at a mine may prepare a safety management
plan that includes an assessment of risks associated with the work to
be carried out by the contractor at the mine.
(2) Any such safety management plan must address occupational health
and safety issues and must include (but is not limited to) details of
the following:
(a) the work process,
(b) the equipment to be used in the work process,
(c) the standards or codes to be complied with,
(d) the records to be kept of the process,
(e) the competencies of the personnel doing the work,
(f) safe work method statements for all work activities assessed
as having risks,
(g) any other matter prescribed by the regulations.
(3) A contractor may provide the safety management plan of the
contractor to the operator of a mine at which the contractor proposes
to work for the operator's acceptance.
(4) The operator of a mine must not accept the safety management plan
of a contractor, or any proposed amendment to the plan, unless:
(a) in the opinion of the operator, the plan is compatible with, and
contains an equivalent standard of risk assessment and
provides for an equivalent standard of safety to, the mine
safety management plan for the mine, and
(b) the plan is otherwise acceptable to the operator.
(5) If the safety management plan of a contractor is accepted by the
operator of a mine, the contractor must maintain and keep the safety
management plan up-to-date and must submit to the operator any
proposed amendment to the plan for the operator's acceptance.
(6) A contractor who has prepared and had accepted a safety
management plan must make the plan available for inspection on
request by any authorised representative or by any site check
inspector.
(7) A contractor, employee of a contractor or subcontractor of the
contractor who works at a mine must comply with the contractor's
safety management plan, if that plan has been accepted by the
operator in accordance with this section.
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Mine Health and Safety Bill 2004 Clause 64
Duties relating to health, safety and welfare at mines Part 5
(8) Despite sections 50, 54, 58, 62 and 66, a contractor, employee of a
contractor or subcontractor who works at a mine in compliance with
the contractor's safety management plan accepted by the operator
under this section only needs to comply with the mine safety
management plan of the operator to the extent that they are required
to do so by the contractor's safety management plan.
(9) A contractor must ensure that a copy of the contractor's safety
management plan is available for inspection during the course of
work:
(a) by any person working at the place of work concerned and by
any person about to commence work at that place, and
(b) by a representative of the operator, a government official, a
site check inspector or an authorised representative.
64 Duties of contractors regarding safe work method statement
(1) A contractor must not undertake work at a mine unless the
contractor:
(a) has undertaken an assessment of the risks associated with the
work to be carried out by the contractor, and
(b) has prepared a written safe work method statement that
includes a copy of the assessment of those risks, and
(c) has provided a copy of that statement to a person designated
by the operator of the mine.
(2) A safe work method statement must:
(a) describe how work is to be carried out, and
(b) identify the work activities assessed as having safety and
health risks, and
(c) identify those safety and health risks, and
(d) describe the control measures that will be applied to the work
activities, and
(e) make provision for any matters that may be required by the
regulations.
(3) A contractor:
(a) must maintain and keep up-to-date the contractor's safe work
method statement, and
(b) must provide a person designated by the operator with any
changes made to the safe work method statement.
Page 31
Clause 65 Mine Health and Safety Bill 2004
Part 5 Duties relating to health, safety and welfare at mines
65 Contractor to ensure work carried out in accordance with safe work
method statement
(1) A contractor must ensure that all work carried out by the contractor,
or by an employee of the contractor, at a mine is carried out in
accordance with the safe work method statement prepared by the
contractor in relation to that mine.
(2) If a risk to the health or safety of a person arises because of non-
compliance with the statement, the contractor must ensure that work
is stopped immediately and does not resume until the statement is
complied with.
(3) However, if the immediate cessation of work is likely to increase the
risk to health or safety, the contractor is not required to stop the
work immediately but must stop the work as soon as it is safe to do
so.
(4) If there is a conflict between the mine safety management plan for a
mine and the safe work method statement of a contractor, the mine
safety management plan prevails.
66 Contractor's duties regarding subcontractors
(1) A contractor who works at a mine must ensure that any
subcontractor of the contractor provides the operator of the mine, or
a person nominated by the operator, with a written safe work
method statement, for the work to be carried out by the
subcontractor, before the subcontractor commences work at the
mine.
(2) A contractor who works at a mine must ensure that any
subcontractor of the contractor complies with the mine safety
management plan of the operator of the mine.
(3) A contractor must ensure that, if any change is made to the safe
work method statement during the course of work, a copy of any
part of the statement that has been changed and that is relevant to a
subcontractor or employee of the contractor is provided to the
subcontractor or employee as soon as practicable after the change is
made.
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Mine Health and Safety Bill 2004 Clause 67
Duties relating to health, safety and welfare at mines Part 5
67 Penalty for offence against this Division
A person who contravenes, whether by act or omission, a provision
of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)--
7,500 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
5,000 penalty units, or
(c) in the case of an individual (being a previous offender)--
750 penalty units or imprisonment for 2 years, or both, or
(d) in the case of an individual (not being a previous offender)--
500 penalty units.
Division 7 Duty to give notice
68 Duty to give notice of drilling operations
(1) A person must not commence drilling operations unless the person
has given the Chief Inspector at least 7 days' written notice of the
operations.
(2) If notice has been given of drilling operations on particular land, no
further notice is required if other related drilling operations are later
commenced on that land.
(3) That notice must contain the details required by the regulations.
(4) In this section, drilling operation means any drilling operation, not
within a mine holding, carried out from the surface in the course of
searching for minerals or quarry products, and includes the
preparation and restoration of drill sites.
69 Regulations may require notice to be given
(1) The regulations may require a person, or persons of a specified
class, to give notice to the Chief Inspector of the commencement or
discontinuation of operations or activities at a mine that are
prescribed by the regulations.
(2) The regulations may prescribe the amount of notice to be given and
the details that are required to be contained in the notice.
(3) A person who is required to give notice must comply with the
regulations made under this section.
Page 33
Clause 70 Mine Health and Safety Bill 2004
Part 5 Duties relating to health, safety and welfare at mines
70 Penalty for offence against this Division
A person who contravenes, whether by act or omission, a provision
of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)--
750 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
500 penalty units, or
(c) in the case of an individual (being a previous offender)--
375 penalty units or imprisonment for 2 years, or both, or
(d) in the case of an individual (not being a previous offender)--
250 penalty units.
Division 8 General
71 Person may have more than one duty
A person on whom a duty is imposed under this Part may be subject
to more than one duty under this Part.
72 Relationship between duties under this Part and regulations
(1) Compliance with the regulations is not in itself a defence in any
proceedings for an offence against this Part.
(2) However, a relevant contravention of the regulations is admissible
in evidence in any proceedings for an offence against this Part.
(3) This section is subject to any regulations under section 168 or 169.
Note. See Part 11 for provisions relating to the use of approved mining industry
codes of practice in proceedings for offences against this Act.
73 Multiple contraventions of duties under this Part
(1) More than one contravention of a provision of this Part by a person
that arise out of the same factual circumstances may be charged as
a single offence or as separate offences.
(2) This section does not authorise contraventions of 2 or more of those
provisions to be charged as a single offence.
(3) A single penalty may only be imposed in respect of more than one
contravention of any such provision that is charged as a single
offence.
Page 34
Mine Health and Safety Bill 2004 Clause 74
Duties relating to health, safety and welfare at mines Part 5
74 Civil liability not affected by this Part
(1) Nothing in this Part is to be construed:
(a) as conferring a right of action in any civil proceedings in
respect of any contravention, whether by act or omission, of
any provision of this Part, or
(b) as conferring a defence to an action in any civil proceedings
or as otherwise affecting a right of action in any civil
proceedings.
(2) Subsection (1) does not affect the extent (if any) to which the breach
of a duty imposed by the regulations is actionable (including any
regulation that adapts a provision of this Part).
Page 35
Clause 75 Mine Health and Safety Bill 2004
Part 6 Miscellaneous matters concerning mines
Part 6 Miscellaneous matters concerning mines
Division 1 Mine plans
75 Regulations concerning mine plans
(1) The regulations may impose requirements concerning the
preparation of plans in relation to the workings of a mine.
(2) Without limiting what the regulations may make provision for, they
may make provision for any of the following:
(a) the persons who must prepare plans,
(b) the contents of plans,
(c) the revision of plans,
(d) access to plans,
(e) the inspection of plans by government officials.
Division 2 Hours of work
76 Hours of work and associated working arrangements below ground
(1) Except in cases of emergency, a person other than an operator or a
person acting in the management of the mine is not to be employed
underground in a mine for more than 8 consecutive hours at any
time or for more than 48 hours in a period of 7 consecutive days.
(2) Except in cases of emergency, each person employed underground
in a mine is to have at least one full day of 24 consecutive hours off
work in each period of 7 consecutive days.
(3) The regulations may prescribe circumstances where some or all of
the requirements of subsections (1) and (2) do not apply.
(4) Except in cases of emergency or in the circumstances prescribed by
the regulations, a person other than an operator or a person acting in
the management of a mine must not be employed at the mine for
more than 8 consecutive hours at any time:
(a) in a shaft, except in a cage, or
(b) in any situation in which there is a danger of falling down a
shaft, such as at work in close proximity to an unguarded
shaft.
(5) In this section, shaft does not include a pit except in circumstances
in which the regulations provide that it is to include a pit.
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Mine Health and Safety Bill 2004 Clause 77
Miscellaneous matters concerning mines Part 6
77 Chief Inspector may require alteration of hours of work
(1) The Chief Inspector may, subject to section 76 and the regulations,
direct the operator of a mine to limit working hours or to alter
associated working arrangements at the mine if the Chief Inspector
is of the opinion that existing hours of work or associated working
arrangements are likely to adversely affect the health or safety of
employees of the operator or any other person.
(2) A direction under this section may be given in respect of a particular
class of employees or in respect of a particular class of work, or may
be given generally.
(3) The operator of a mine must comply with a direction under this
section.
(4) This section does not affect any other powers of the Chief Inspector
under this Act.
78 Regulations concerning hours of work
(1) The regulations may make provision concerning the hours of work
of persons working at mines.
(2) A person other than an operator or a person acting in the
management of the mine is not to be employed in a mine in
contravention of the limitation on hours of work specified in the
regulations for the purposes of this section.
(3) Subsection (2) does not apply in the case of an emergency.
79 Display of shift roster regimes
The operator of a mine at which persons are employed underground
must keep prominently displayed, in a place that is easily accessible
to the employees, details of shift roster regimes at the mine.
80 Recording of hours worked
(1) The operator of a mine must keep records of the hours worked
underground by each employee at the mine (whether an employee
of the operator or any other person) and must make the records
available to a government official on request.
(2) The regulations may make provision for or with respect to the
keeping of records under this section.
Page 37
Clause 81 Mine Health and Safety Bill 2004
Part 6 Miscellaneous matters concerning mines
81 Penalty for offence against this Division
A person who contravenes, whether by act or omission, a provision
of this Division, or who permits any person to contravene or fail to
comply with any provision of this Division, is guilty of an offence
against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)--
375 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
250 penalty units, or
(c) in the case of an individual (being a previous offender)--
225 penalty units or imprisonment for 2 years, or both, or
(d) in the case of an individual (not being a previous offender)--
150 penalty units.
82 Defence
A person is not guilty of an offence against this Division for a
contravention of a requirement relating to the time for which
persons were employed underground if the person proves that there
were special circumstances to render the contravention necessary
for the safe and proper working of the mine and that the
contravention did not create an increased risk of injury to the
persons so employed in the mine.
Division 3 Tourist and educational activities
83 Definitions
In this Division:
mine includes an abandoned mine or part of a mine.
permit means a permit that has been issued under section 85 and that
has not been revoked under section 86.
84 Tourist activities in mines or use of mines for educational purposes
not allowed without a permit
A person must not conduct tourist activities in or about a mine or use
a mine principally for educational purposes unless:
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Mine Health and Safety Bill 2004 Clause 85
Miscellaneous matters concerning mines Part 6
(a) the tourist activities are, or the use of the mine principally for
educational purposes is, authorised by a permit issued to that
person, and
(b) the person complies with the conditions (if any) to which the
permit is subject.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)--
750 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
500 penalty units, or
(c) in the case of an individual (being a previous offender)--
375 penalty units, or
(d) in the case of an individual (not being a previous offender)--
250 penalty units.
85 Issue of tourist and educational permits
(1) Any of the following persons may apply for a permit in relation to a
mine:
(a) in relation to a mine that is located on land subject to a mining
lease (other than a mining lease in respect of coal), or to a
mineral claim, under the Mining Act 1992, the holder of which
owns the land--the mining lease or mineral claim holder or
another person with that holder's consent,
(b) in relation to a mine that is located on land subject to a mining
lease (other than a mining lease in respect of coal), or to a
mineral claim, under the Mining Act 1992, the holder of which
does not own the land--the mining lease or mineral claim
holder with the land owner's consent, or another person with
the consent of the mining lease or mineral claim holder and
the land owner,
(c) in relation to a mine that is not located on land subject to a
mining lease or mineral claim under the Mining Act 1992--
the owner of the land on which the mine is located or another
person with the land owner's consent.
(2) The Minister may, on application being made to the Minister in
writing, issue a permit that:
(a) authorises tourist activities to be conducted in or about the
mine, or
Page 39
Clause 86 Mine Health and Safety Bill 2004
Part 6 Miscellaneous matters concerning mines
(b) authorises the mine to be used principally for educational
purposes,
or both, subject to any conditions that the Minister may specify in
the permit and any conditions that may be prescribed by the
regulations.
(3) An application for a permit is to be in the form approved by the
Minister and must be accompanied by any particulars or documents
specified in that form.
(4) The Minister may require an applicant for a permit to furnish
additional information within a time specified by the Minister and
may refuse to issue a permit if such information is not furnished in
that time.
(5) An application for a permit is to be accompanied by the fee
determined by the Minister under section 188.
(6) In determining an application, the Minister may consult with any
persons, government agencies or other bodies that the Minister
considers appropriate.
(7) A permit must not be issued under this section in respect of a mine
unless the Minister is satisfied that all necessary precautions will be
taken by the applicant to protect the health and safety of persons
entering the mine.
86 Revocation or variation of permits
(1) The Minister:
(a) may revoke a permit if a condition to which the permit is
subject is breached or if the Minister is satisfied that persons
cannot enter the mine to which the permit relates:
(i) without risk to their safety or health that is higher than
that which is reasonably acceptable for tourist or
educational activities, or
(ii) without risk to their health or safety that is not properly
managed by the holder of the permit, and
(b) may from time to time attach conditions or additional
conditions to a permit or vary the conditions to which a permit
is subject.
(2) A revocation of a permit, a variation of conditions to which a permit
is subject or the attachment of conditions or additional conditions to
a permit does not take effect until notice of the revocation, variation
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Mine Health and Safety Bill 2004 Clause 87
Miscellaneous matters concerning mines Part 6
or attachment is served on the occupier of the mine to which the
permit relates. However, if the Minister forms the view that an
emergency exists, the Minister is not required to give notice and the
revocation or variation or attachment of conditions takes effect
immediately.
(3) A variation may be made under subsection (1) (b) by way of
addition, amendment or deletion of conditions.
(4) The regulations may provide that a permit is taken to be
automatically revoked during any period of non-compliance with
specified conditions or conditions of a specified class.
87 Minister and certain other persons not liable in certain
circumstances
(1) This section applies if:
(a) the Minister has issued a permit in relation to a mine to a
person, and
(b) that person, or any other person, suffers any injury or incurs
any loss as a result of any person entering the mine pursuant
to the permit.
(2) The Crown, the Minister and any officer of the Department are not
liable for any loss arising out of any injury or loss suffered or
incurred by any person who enters the mine area pursuant to the
permit.
Page 41
Clause 88 Mine Health and Safety Bill 2004
Part 7 Notification of incidents
Part 7 Notification of incidents
Division 1 Notification of certain incidents
88 Notification of certain incidents and other matters
(1) The operator of a mine must give the Chief Inspector notice in
accordance with this section of any of the following incidents
(notifiable incidents):
(a) any incident at the mine that has resulted in a person being
killed,
(b) any other incident at the mine of a kind prescribed by the
regulations for the purposes of this paragraph,
(c) any incident or other matter occurring at or in relation to the
mine that the regulations declare to be an incident or matter
that is required to be notified.
(2) Any notice under this section must be given:
(a) as soon as practicable (but not later than 7 days) after the
operator becomes aware of the notifiable incident, and
(b) in writing and, if a form has been prescribed by the
regulations, in that form.
(3) Any notice must, in the case of a notifiable incident referred to in
subsection (1) (a) or (b), also be given:
(a) immediately the operator becomes aware of the incident, and
(b) by the quickest available means.
This subsection does not apply if the operator is aware that another
person has given the required notice of the incident.
(4) The regulations may vary the obligations under this section with
respect to the person required to give notice and the time and
manner in which the notice is to be given.
89 Non-disturbance of plant involved in notifiable incidents (and of
surrounding area)
(1) This section applies if a notifiable incident referred to in
section 88 (1) (a) or (b) has occurred at a mine.
(2) The operator of a mine must take measures to ensure that:
(a) plant at that mine is not used, moved or interfered with after
it has been involved in a notifiable incident, and
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Mine Health and Safety Bill 2004 Clause 90
Notification of incidents Part 7
(b) the area and environment at that mine that is connected with
the notifiable incident is not disturbed.
(3) If the regulations prescribe measures that satisfy the requirements of
this section, the operator is taken to have satisfied those
requirements if the operator has taken the measures so prescribed.
(4) This section does not prevent any action:
(a) to help or remove a trapped or injured person or to remove a
body, or
(b) to avoid injury to a person or damage to property, or
(c) for the purposes of any police investigation, or
(d) in accordance with a direction of a government official or
with the permission of a government official, or
(e) in any other circumstances that may be prescribed by the
regulations.
(5) The requirements of this section in relation to any particular
occurrence apply only for the period ending 24 hours after
notification of the incident in accordance with section 88 or only
during any other period prescribed by the regulations.
90 Records of notifications
(1) The operator of a mine must keep records at the mine of every
notification given under this Division.
(2) Those records must be kept for at least 5 years.
91 Penalty for offence against this Division
A person who contravenes, whether by act or omission, a provision
of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)--
750 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
500 penalty units, or
(c) in the case of an individual (being a previous offender)--
375 penalty units, or
(d) in the case of an individual (not being a previous offender)--
250 penalty units.
Page 43
Clause 92 Mine Health and Safety Bill 2004
Part 7 Notification of incidents
Division 2 Health and safety
92 Records of medical and first aid treatment
(1) The operator of a mine must keep records at the mine of every
occasion on which medical or first aid treatment is provided by or
on behalf of the operator to a person employed at the mine.
(2) Those records must be kept for at least 5 years.
93 Offence relating to reporting of health or safety matters
(1) The operator of a mine must not provide, directly or indirectly, any
financial benefit or financial incentive to a person for the purpose of
discouraging that person from reporting a health or safety matter to
the person's supervisor, a site check inspector, an authorised
representative, a government official or the Department.
(2) In proceedings for an offence against this section, if all the facts
constituting the offence other than the reason for the defendant's
action are proved, the onus of proving that the provision of a
financial benefit or financial incentive was not actuated for the
reason of discouraging the reporting of a health or safety matter lies
on the defendant.
94 Penalty for offence against this Division
A person who contravenes, whether by act or omission, a provision
of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)--
750 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
500 penalty units, or
(c) in the case of an individual (being a previous offender)--
375 penalty units, or
(d) in the case of an individual (not being a previous offender)--
250 penalty units.
Division 3 Inquiries
95 Boards of Inquiry
(1) This section applies if it appears to the Minister that an investigation
of any of the following is necessary:
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Mine Health and Safety Bill 2004 Clause 95
Notification of incidents Part 7
(a) any event causing death or serious injury at a mine and its
causes and circumstances,
(b) any dangerous occurrence at a mine and its causes and
circumstances,
(c) any practice at a mine that, in the opinion of the Minister,
adversely affects or is likely to adversely affect the safety or
health of persons employed at the mine,
(d) any matter relating to the safety, health, conduct or discipline
of persons at or in relation to a mine.
(2) If this section applies, the Minister may constitute a person as a
Board of Inquiry to conduct a special inquiry into the event,
occurrence, practice or matter.
(3) A Board of Inquiry may, at a special inquiry conducted by it, take
evidence on oath or affirmation and, for that purpose, the person
constituting the Board:
(a) may require a person appearing at the inquiry to give
evidence, to take an oath or to make an affirmation in a form
approved by the person presiding, and
(b) may administer an oath to, or take an affirmation from, a
person appearing at the inquiry.
(4) In conducting a special inquiry, a Board of Inquiry:
(a) is not bound to act in a formal manner, and
(b) is not bound by the rules of evidence and may inform itself on
any matter in any way that it considers appropriate.
(5) If the Board of Inquiry agrees, an agent (including a legal
practitioner) may represent a person or body at the special inquiry.
(6) A Board of Inquiry, when conducting, and making a determination
in respect of, a special inquiry is to sit with an assessor or 2 or more
assessors appointed by the Minister for the purposes of the inquiry.
(7) An assessor sitting with a Board of Inquiry has the power to advise
the Board of Inquiry but not to adjudicate on any matter before the
Board of Inquiry.
(8) A Board of Inquiry has the right to consult, either collectively or
individually, and either in public or in private, with assessors sitting
with it.
Page 45
Clause 96 Mine Health and Safety Bill 2004
Part 7 Notification of incidents
(9) A Board of Inquiry conducting a special inquiry may be assisted by
a legal practitioner appointed by the Minister for the purposes of the
inquiry.
(10) A Board of Inquiry is to determine its own procedure, except as
provided by this Act.
96 Witnesses and evidence at special inquiries
(1) A Board of Inquiry may summon a person to appear at a special
inquiry conducted by the Board to give evidence and to produce any
documents that are specified in the summons.
(2) A Board of Inquiry may require a person appearing at a special
inquiry to produce a document.
(3) A person served with a summons to appear at a special inquiry and
to give evidence must not, without reasonable excuse, fail to attend
as required by the summons.
(4) A person appearing at a special inquiry to give evidence must not,
without reasonable excuse:
(a) when required to be sworn or affirmed--fail to comply with
the requirement, or
(b) fail to produce a document that the person is required to
produce under this section.
(5) A person attending as a witness before a Board of Inquiry is to be
paid expenses of the amount or at the rate approved by the Minister
for the purposes of this section.
(6) A Board of Inquiry may require a person appearing at a special
inquiry to answer questions.
(7) A person appearing at a special inquiry must answer any such
questions.
(8) A person is not excused from a requirement under this section to
answer a question on the ground that the answer might incriminate
the person or make the person liable to a penalty.
(9) However, any answer given by a natural person in compliance with
a requirement under this section is not admissible in evidence
against the person in criminal proceedings (except proceedings for
an offence under this section) if the person objected at the time to
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Mine Health and Safety Bill 2004 Clause 97
Notification of incidents Part 7
answering the question on the ground that it might incriminate the
person or the person was not warned on that occasion that the person
may object to answering the question on the ground that it might
incriminate the person.
(10) Further information obtained as a result of an answer given under
this section is not inadmissible on the ground that the answer had to
be given or that the answer might incriminate the person.
97 Report by Board of Inquiry
(1) A Board of Inquiry must, within the period required by the Minister,
prepare a report as to:
(a) the causes of the event or dangerous occurrence, if the special
inquiry concerns an event or dangerous occurrence, or
(b) its findings in relation to the practice or matter, if the inquiry
concerns a practice at a mine or a matter relating to the safety,
health, conduct or discipline of persons in a mine.
(2) The Minister may, if the Minister thinks fit, publish the report at the
time and in the manner determined by the Minister.
98 No appeal against exercise of functions by Boards of Inquiry
No appeal lies from any decision or determination of a Board of
Inquiry on a special inquiry.
99 Penalty for offence against this Division
A person who contravenes, whether by act or omission, a provision
of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)--
750 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
500 penalty units, or
(c) in the case of an individual (being a previous offender)--
375 penalty units, or
(d) in the case of an individual (not being a previous offender)--
250 penalty units.
Page 47
Clause 100 Mine Health and Safety Bill 2004
Part 8 Stop work orders
Part 8 Stop work orders
100 Minister may make stop work order
(1) If the Minister is of the opinion that any action is being, or is about
to be, carried out by any person at a place of work to which this Act
applies that involves, or is likely to result in, a serious breach of a
provision of:
(a) this Act or the regulations, or
(b) the Occupational Health and Safety Act 2000 or the
regulations under that Act,
the Minister may order that the person is to cease or is not to carry
out the action and that no action, other than any action that may be
specified in the order, is to be carried out in or in the vicinity of the
place, or a specified part of the place, within a period not exceeding
28 days after the day of the order.
(2) An order takes effect on and from the time at which:
(a) a copy of the order is provided to the operator of the mine by
the Minister, or
(b) a copy of the order is affixed in a conspicuous place in the
mine by the Minister, or
(c) the person carrying out or about to carry out the action the
subject of the order is notified by the Minister that the order
has been made,
whichever is the sooner.
(3) In this Part, a reference to action being, or about to be, carried out
includes a reference to action that should be, but is not being, carried
out and the Minister may make an order, in accordance with this
Part, that any such action is to be carried out.
(4) The regulations may modify this Part in relation to its application to
a stop work order that specifies actions that must be carried out.
(5) Without limiting the Minister's delegation powers under
section 182, the Minister may, by instrument in writing, delegate to
any or all government officials the functions of giving notice or
providing or affixing copies of an order under this section.
101 Prior notification of making of stop work order not required
The Minister is not required, before making a stop work order, to
notify any person who may be affected by the order.
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Mine Health and Safety Bill 2004 Clause 102
Stop work orders Part 8
102 Extension of stop work order
(1) The Minister may extend a stop work order for any further period or
periods, of no more than 28 days each, that the Minister thinks fit.
(2) An order extending a stop work order takes effect in the same way
as the original order, that is, on and from the time referred to in
section 100 (2).
103 Consultation about modification of proposed detrimental action
After the Minister makes a stop work order, the Director-General
must immediately consult with the person carrying out or proposing
to carry out the action the subject of the order to determine whether
any modification of the action may be sufficient to avoid a serious
breach of a provision of any Act or regulation referred to in
section 100 (1).
104 Stop work order prevails over other instruments
(1) An investigation notice, improvement notice or prohibition notice
issued under the Occupational Health and Safety Act 2000 that
requires or permits work or an activity the subject of a stop work
order in force under this Part to be significantly affected is
inoperative to the extent of any inconsistency with the stop work
order.
(2) An approval, notice, order or other instrument made or issued by or
under any other Act that requires or permits work the subject of a
stop work order in force under this Part to be significantly affected
is inoperative to the extent of any inconsistency with the stop work
order.
(3) This section has effect whether the approval, notice, order or other
instrument concerned was made or issued before or after the making
of the stop work order.
105 Costs of enforcing stop work order
(1) If a person on whom a stop work order is imposed does not comply
with the order, within the period specified in the order, the Minister
may cause work to be carried out for the purpose of stopping the
work specified in the order or otherwise giving effect to the order.
(2) Any costs or expenses incurred by or on behalf of the Minister under
this section are a debt due to the Crown by the person who was
carrying out or proposing to carry out the action to which the order
relates.
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Clause 106 Mine Health and Safety Bill 2004
Part 8 Stop work orders
(3) In any proceedings instituted for the recovery from a person of a
debt due by that person to the Crown under this section, a certificate
of the Minister that a specified amount is the amount of the debt so
due is evidence of that fact.
(4) A debt due by any person to the Crown under this section is
recoverable whether or not the person is convicted of an offence
under section 106.
(5) A person on whom a stop work order is imposed, or any person
directed by the Minister to take action for the purposes of subsection
(1), may, upon giving reasonable notice to the occupier of the land,
enter on or remain on any land for the purpose of complying with
the direction of the Minister or with the stop work order, as the case
may require.
(6) A court that convicts a person of an offence under section 106 may,
on the application of the prosecutor, order the person to pay to the
Crown the amount that the court is satisfied the Crown is entitled to
recover from the person under this section in respect of the failure
to which the offence relates. Any amount paid by a person under
such an order is taken to have been recovered from the person under
subsection (2) and is to be dealt with accordingly.
(7) For the purposes of subsection (6), a court that makes a finding that
a person is guilty of an offence under section 106 without
proceeding to a conviction is taken to have convicted the person of
the offence.
(8) For the purposes of this section, a stop work order is taken to have
been imposed on the person or persons carrying out the action, or
proposing to carry out the action, to which the order relates.
106 Offence: failure to comply with a stop work order
A person who, without reasonable excuse, fails to comply with a
requirement imposed by a stop work order is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)--
1,500 penalty units and in the case of a continuing offence, a
further penalty not exceeding 750 penalty units for each day
the offence continues, or
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Mine Health and Safety Bill 2004 Clause 106
Stop work orders Part 8
(b) in the case of a corporation (not being a previous offender)--
1,000 penalty units and in the case of a continuing offence, a
further penalty not exceeding 500 penalty units for each day
the offence continues, or
(c) in the case of an individual not acting in the capacity of an
employee (being a previous offender)--750 penalty units and
in the case of a continuing offence, a further penalty not
exceeding 375 penalty units for each day the offence
continues, or
(d) in the case of an individual not acting in the capacity of an
employee (not being a previous offender)--500 penalty units
and in the case of a continuing offence, a further penalty not
exceeding 250 penalty units for each day the offence
continues, or
(e) in the case of an individual acting in the capacity of an
employee (being a previous offender)--45 penalty units and
in the case of a continuing offence, a further penalty not
exceeding 20 penalty units for each day the offence continues,
or
(f) in the case of an individual acting in the capacity of an
employee (not being a previous offender)--30 penalty units
and in the case of a continuing offence, a further penalty not
exceeding 15 penalty units for each day the offence continues.
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Clause 107 Mine Health and Safety Bill 2004
Part 9 Competence standards
Part 9 Competence standards
Division 1 Key obligations
107 Regulations may specify functions to which this Part applies
(1) The regulations may specify a function as one to which this Part
applies (a specified function).
(2) The regulations may specify, or authorise the Board to determine,
what will be sufficient evidence of competence to perform a
function to which this Part applies (specified evidence of
competence).
108 Operator to ensure only competent persons employed to perform
specified functions
(1) The operator of a mine must not employ a person at the mine to
perform a specified function unless the person holds specified
evidence of competence to perform that function.
(2) The operator of a mine must ensure that no person at the mine
performs a specified function unless the person holds specified
evidence of competence to perform that function.
109 Contractor to ensure only competent persons employed to perform
specified functions
A contractor must not employ a person at a mine to perform a
specified function unless the person holds specified evidence of
competence to perform that function.
110 Only competent persons to perform specified functions
A person at a mine must not perform a specified function unless the
person holds specified evidence of competence to perform that
function.
111 Penalty for offence against this Division
A person who contravenes, whether by act or omission, a provision
of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation--250 penalty units, or
(b) in the case of an individual--25 penalty units.
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Mine Health and Safety Bill 2004 Clause 112
Competence standards Part 9
Division 2 Metalliferous Mines and Extractive Industries
Competence Board
112 Constitution of Metalliferous Mines and Extractive Industries
Competence Board
(1) There is constituted by this Act a body corporate with the corporate
name of the Metalliferous Mines and Extractive Industries
Competence Board.
(2) The Board represents the Crown.
113 Ministerial control of Board
The Board is subject to the control and direction of the Minister.
114 Membership of Board
(1) The Board is made up of the following persons appointed by the
Minister:
(a) the Chairperson of the Board, and
(b) 2 employer representatives selected from a panel of 4
submitted to the Minister by a body or bodies representing
employers, and
(c) 2 employee representatives selected from a panel of 4
submitted to the Minister by a body or bodies representing
employees, and
(d) between 2 and 4 persons who have expertise in the
development and assessment of competence of persons
performing functions at mines, and
(e) 2 officers of the Department.
(2) The regulations may make provision for or with respect to the
submission of representatives under this section and the
appointment of members of the Board.
115 Procedure of Board
(1) The regulations may make provision for or with respect to the
procedure of the Board.
(2) The Board may make rules about the procedure of the Board that are
not inconsistent with this Act or the regulations. Those rules are
subject to any direction of the Minister.
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Clause 116 Mine Health and Safety Bill 2004
Part 9 Competence standards
Division 3 Functions of Board
116 Functions of Board
(1) The Board has the functions conferred or imposed on it by or under
this Act.
(2) Without limiting subsection (1), the functions of the Board include
the following:
(a) to oversee the development of competence standards for
persons performing functions at mines that may impact on
health and safety,
(b) to undertake initial and ongoing assessments of the
competence of persons performing functions at mines,
(c) to advise the Minister on matters related to the competence
required of persons to perform functions at mines,
(d) any other functions that the Minister may confer on the Board
from time to time.
(3) Without limiting subsection (2), the Board may do any or all of the
following for the purpose of carrying out its functions:
(a) engage consultants,
(b) develop competence standards or cause competence
standards to be developed,
(c) assess a person's competence, cause a person's competence to
be assessed or accept an assessment of a person's
competence.
117 Annual report
The Board must, at any time or within any period that the Minister
may direct, make an annual report of its activities during the
preceding year to the Minister.
Division 4 Certificates of competence
118 Certificates of competence may be granted
The Minister may, in accordance with the regulations and any
orders made under section 120, grant a certificate of competence to
perform a specified function. That certificate may be granted
unconditionally or subject to conditions.
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Mine Health and Safety Bill 2004 Clause 119
Competence standards Part 9
119 Regulations concerning competence standards
The regulations may make provision for or with respect to any or all
of the following:
(a) the development of competence standards,
(b) the assessment of the competence standards of persons,
including the conduct of examinations,
(c) the granting and replacement of certificates of competence,
(d) the imposition of conditions on certificates of competence,
(e) the maintenance of competence by those to whom a certificate
of competence has been granted,
(f) the suspension or cancellation of certificates of competence,
including suspension or cancellation by reason of
incompetence or negligence,
(g) the restoration of certificates of competence that have been
suspended or cancelled,
(h) the circumstances in which a certificate of competence
granted by an authority outside New South Wales will be
accepted as being sufficient qualification for the grant of a
certificate of competence under this Act and the
circumstances in which it will not be accepted,
(i) the range of specified functions that the holder of specified
evidence of competence is allowed to perform without
breaching this Part,
(j) the keeping of a register of certificates of competence,
(k) the appointment and functions of examiners,
(l) the charging of fees for any service provided by the Minister,
the Board or any other person in relation to this Part.
120 Ministerial orders
(1) The Minister may make orders, not inconsistent with this Act or the
regulations, for or with respect to any or all of the following:
(a) the qualifications to be held by a person in order for the grant
to the person of a certificate of competence to be
recommended,
(b) the experience that a person applying for a certificate of
competence must have in order for the grant to the person of
a certificate of competence to be recommended,
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Clause 121 Mine Health and Safety Bill 2004
Part 9 Competence standards
(c) the age that a person must have attained before the person
may be granted a certificate of competence,
(d) the course of instruction to be undertaken by an applicant for
a certificate of competence,
(e) the nature and type of examinations to be undertaken by an
applicant for a certificate of competence and the manner of
their conduct,
(f) the circumstances in which the Board may grant to an
applicant for a certificate of competence an exemption from
complying with the rules in respect of the undertaking of
examinations, the holding of qualifications, the possession of
experience and the attendance at courses of instruction,
(g) the matters to be included in an application for a certificate of
competence,
(h) the declaration by the Minister that a person's competence is
not recognised,
(i) any other matters that may be prescribed by the regulations.
(2) The Board may make recommendations to the Minister concerning
the making, amendment or revocation of orders under this section.
(3) An order must be published in the Gazette. An order takes effect on
the date on which it is published in the Gazette or on any later date
specified in the order.
(4) Sections 42-45 of the Interpretation Act 1987 apply to an order
made under this section in the same way as they apply to statutory
rules within the meaning of that Act.
Division 5 Offences
121 Offences: certificates of competence
A person must not, with intent to deceive:
(a) use a certificate of competence granted under this Act, or
(b) lend to another person a certificate of competence granted
under this Act, or
(c) allow to be used by another person a certificate of competence
granted under this Act.
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Mine Health and Safety Bill 2004 Clause 122
Competence standards Part 9
122 Offence of forging or having forged document
A person must not:
(a) make a document so closely resembling a certificate of
competence granted under this Act as to be calculated to
deceive, or
(b) have in the person's possession a document so closely
resembling a certificate of competence granted under this Act
as to be calculated to deceive.
123 False or misleading statements
A person must not make a statement that the person knows to be
false or misleading in a material particular or recklessly make a
statement that is false or misleading in a material particular, or
produce, furnish, send or otherwise make use of a document that is
false or misleading in a material particular for the purposes of
obtaining for himself, herself or another person:
(a) the grant of any certificate of competence or the issue of a
duplicate certificate of competence or the restoration of any
such certificate, or
(b) employment at a mine to perform functions for which a
certificate of competence is required.
124 Offences if a person's competence is declared as not recognised
(1) A person whose competence has been declared by the Minister, in
accordance with the regulations, as not recognised is guilty of an
offence if the person continues to perform functions for which that
competence was required.
(2) An operator who requires or permits functions to be performed by a
person whose competence is declared as not recognised is guilty of
an offence.
125 Penalty for offence against this Division
A person who contravenes, whether by act or omission, a provision
of this Division is guilty of an offence against that provision.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)--
750 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
500 penalty units, or
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Clause 125 Mine Health and Safety Bill 2004
Part 9 Competence standards
(c) in the case of an individual (being a previous offender)--
375 penalty units, or
(d) in the case of an individual (not being a previous offender)--
250 penalty units.
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Mine Health and Safety Bill 2004 Clause 126
Oversight of mines Part 10
Part 10 Oversight of mines
Division 1 Outline of this Part
126 Outline of this Part
(1) This Part provides for the appointment, functions and powers of the
following persons as government officials:
(a) the Chief Inspector,
(b) inspectors,
(c) mine safety officers,
(d) investigators.
(2) This Part also provides for the election or appointment of site check
inspectors to carry out inspections as representatives of the
workforce at mines.
Division 2 Inspections by government officials
Subdivision 1 Appointment of government officials
127 Appointment of government officials
(1) The Minister may appoint a person employed under Chapter 2 of the
Public Sector Employment and Management Act 2002 as:
(a) the Chief Inspector, or
(b) an inspector, or
(c) a mine safety officer, or
(d) an investigator.
(2) An instrument appointing a person under this section may limit the
functions that the person has as a government official.
(3) A person appointed under this section is to be issued with an
identification card under section 48 of the Occupational Health and
Safety Act 2000.
128 Qualifications of inspectors
A person must not be appointed as an inspector unless the Minister
considers that the person:
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Clause 129 Mine Health and Safety Bill 2004
Part 10 Oversight of mines
(a) has a professional engineering qualification relevant to
mining or quarrying operations from an Australian university
or any equivalent qualification, and
(b) has appropriate competencies, and adequate experience, in
mining or quarrying operations to effectively perform the
functions of an inspector.
129 Appointment of consultants as investigators
(1) The Minister may appoint a consultant:
(a) as an investigator for the purposes of carrying out
investigations under this Act, or
(b) to assist an investigator in carrying out such investigations.
(2) A consultant appointed under this section has, while exercising the
functions for which the consultant was appointed, the same
functions as an investigator has under this Act and the regulations,
and the provisions of this Act and the regulations apply in respect of
the consultant in the same way as they apply in respect of an
inspector and anything done by an inspector.
Subdivision 2 Functions of government officials
130 Functions of Chief Inspector
(1) The functions of the Chief Inspector are:
(a) the oversight of the operations of inspectors and mine safety
officers, and
(b) reviewing appeals from notices issued by inspectors and mine
safety officers, and
(c) the other functions that are conferred on the Chief Inspector
by this Act or the regulations, and
(d) any other function conferred by the Minister from time to
time.
(2) For the purposes of this Act, the Chief Inspector is an inspector.
131 Bringing concerns regarding health, safety or welfare to the
attention of operators
If a government official:
(a) exercises any of the powers conferred on the official at or in
connection with a mine, and
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Mine Health and Safety Bill 2004 Clause 132
Oversight of mines Part 10
(b) as a result of the exercise of those powers, obtains any
information or becomes aware of any practice at a mine that
may, in the official's opinion, be relevant to the continued
safe operation of a mine or the health, safety or welfare at
work of the persons who work at a mine,
the government official must, as soon as possible, advise the most
senior person in the management structure of the mine who is
currently at work that the official has obtained any such information
or has become aware of any such practice.
132 Consideration and investigation of complaints
(1) A government official must consider any complaint made to the
government official by a site check inspector for a mine, being a
complaint concerning the health, safety or welfare at work of the
persons who work at the mine.
(2) A government official may investigate any such complaint if the
official considers it appropriate to do so.
(3) A government official must report to the site check inspector, who
made the complaint to the government official, concerning the
results of the official's consideration or investigation of the
complaint.
(4) Nothing in this section prevents a site check inspector from raising
matters directly with the operator of a mine.
133 Audit and review of mine safety management plans and other
arrangements
(1) A government official may at any time audit and review:
(a) the mine safety management plan for a mine, and
(b) the emergency plan for the mine, and
(c) any other arrangements for the mine required by this Act or
the regulations.
(2) Such an audit and review may occur periodically, after the
occurrence of an event prescribed by the regulations or at any other
time that the government official thinks is appropriate.
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Part 10 Oversight of mines
134 Additional functions
A government official has the following additional functions:
(a) in the case of a government official other than the Chief
Inspector, to provide advice to the Chief Inspector on matters
relating to the health, safety and welfare of persons at work at
mines,
(b) to make reports on incidents or other matters at mines and to
make recommendations for further action based on those
reports.
Subdivision 3 Powers of government officials
Note.
Section 47A of the Occupational Health and Safety Act 2000 provides that a
person appointed as a government official under this Act is taken to have been
appointed as an inspector for the purposes of the OH&S Act and has the powers
of an inspector under that Act in relation to mining workplaces.
135 Powers of entry at any time
Despite Part 5 of the Occupational Health and Safety Act 2000, a
government official may enter any place to which this Act applies at
any time.
Note. Section 6 specifies the places to which this Act applies.
136 Power to cross land
(1) A government official may enter any land (including any land that
includes residential premises) at any time if entering that land is the
only way that the government official can gain entry to a place of
work to which this Act applies for the purpose of exercising
functions under this Act or the Occupational Health and Safety
Act 2000.
(2) A government official may enter only by any means or route
approved by the occupier of the land and must exercise all due care
in entering, being on and leaving the land.
(3) However, subsection (2) does not apply:
(a) in the case of an emergency, or
(b) where the government official has made reasonable efforts to
locate the occupier of the land and has been unable to do so, or
(c) if the occupier of the land unreasonably fails to approve a
means or route to cross the land, or
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Mine Health and Safety Bill 2004 Clause 137
Oversight of mines Part 10
(d) if the occupier of the land approves an unreasonable means or
route to cross the land.
137 Power to require plan
(1) A government official may require the operator of a mine to provide
the government official with a plan of the mine marked with
information that the government official considers necessary for an
investigation or inquiry that the government official is making.
(2) An operator must not fail to comply with a requirement made under
this section.
Maximum penalty: 100 penalty units.
Division 3 Inspections on behalf of work force
Notes.
Section 13 of the Occupational Health and Safety Act 2000, and the regulations
under that Act, require an employer to consult employees about occupational
health and safety matters.
This Division makes provision for the election or appointment of certain persons
to carry out inspections and perform other functions on behalf of persons who
work at a mine. Section 17 (7) of the Occupational Health and Safety Act 2000
provides that a site check inspector under this Act must be a member of any
OHS committee for the mine.
Subdivision 1 Site check inspectors
138 Site check inspectors
(1) For the purpose of enabling inspections to be carried out at a mine,
on behalf of the persons at work at the mine, an individual may be
elected as a site check inspector for the mine.
(2) More than one person may be elected as a site check inspector if the
operator agrees or the Chief Inspector so directs.
139 Trigger for election
An election of a site check inspector for a mine must be held if one
or more positions are vacant and:
(a) a person employed in or about the mine requests in writing
that an election be held, or
(b) the Chief Inspector directs that an election be held.
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Clause 140 Mine Health and Safety Bill 2004
Part 10 Oversight of mines
140 Conduct of election of site check inspectors
(1) An election for a site check inspector for a mine may be conducted:
(a) if there is only one involved union in relation to the mine--by
that involved union, or
(b) if there is more than one involved union and all the involved
unions are in agreement that a specified one of those unions
should conduct the election--by that specified union, or
(c) if there is no involved union in relation to the mine or
agreement cannot be reached under paragraph (b)--by a
person authorised by the Chief Inspector to conduct elections
under this section.
(2) A person may be a candidate in the election if and only if the person
is employed at the mine.
(3) Subject to the regulations, all individuals employed in or about the
mine are entitled to vote in the election.
(4) Where there is only one candidate for the election, that person is
taken to have been elected.
(5) The election must be conducted in a manner that is consistent with
recognised democratic principles.
(6) Where a person is elected as a site check inspector for a mine, the
involved union or other person authorised under subsection (1) to
conduct the election must, as soon as practicable after the person has
been so elected, inform the Chief Inspector and the operator of the
mine.
(7) As soon as practicable after being so informed, the operator of the
mine must cause a notice, that the person so elected is a site check
inspector for the mine, to be displayed in a prominent place at the
mine, that will allow all of the persons working in or about the mine
to be notified of the election.
Maximum penalty: 10 penalty units.
141 Term of office
Subject to section 142, a site check inspector for a mine holds office
for 2 years after the date on which the site check inspector was
elected but is eligible to be elected for further terms of office.
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Mine Health and Safety Bill 2004 Clause 142
Oversight of mines Part 10
142 Vacation of office of site check inspector
(1) A person ceases to be a site check inspector for a mine if:
(a) the person resigns as a site check inspector, or
(b) the person ceases to be employed in or about the mine, or
(c) the person's term of office expires without the person having
been elected to be a site check inspector for the mine for a
further term.
(2) A person may resign as a site check inspector for a mine:
(a) if the person was last elected as a site check inspector in an
election conducted by an involved union in relation to the
mine--by notice in writing delivered to the involved union
that nominated the person as a candidate in the election, or
(b) in any case--by notice in writing delivered to the operator of
the mine.
(3) If a person has resigned as a site check inspector for a mine:
(a) if subsection (2) (a) applies--the involved union to which the
notice of resignation was delivered, or
(b) in any other case--the operator of the mine,
must notify the persons employed at or about the mine, and, in a case
to which subsection (2) (a) applies, the operator of the mine, of the
resignation.
(4) If a person has ceased to be a site check inspector for a mine because
of subsection (1) (b), the person must notify the following persons
in writing that the person has ceased to be a site check inspector for
that mine:
(a) the persons employed at or about the mine,
(b) the operator of the mine,
(c) if the person was last elected as a site check inspector in an
election conducted by an involved union in relation to the
mine--the involved union that nominated the person as a
candidate in the election.
143 Notification of election
A person elected as a site check inspector for a mine must:
(a) notify the operator of the mine of the person's election, and
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Clause 144 Mine Health and Safety Bill 2004
Part 10 Oversight of mines
(b) give to the operator the person's address and telephone
number (including any mobile telephone number).
Maximum penalty: 5 penalty units.
144 Functions of site check inspectors
The functions of a site check inspector for a mine are as follows:
(a) to keep under review the measures taken to ensure the health,
safety and welfare of persons at the mine, including
procedures to control risks,
(b) to investigate any matter that may be a risk to health and
safety at the mine,
(c) to attempt to resolve such matters but, if unable to do so, to
request an investigation into those matters by an inspector for
that purpose,
(d) to make a request to accompany an inspector on an inspection
at the mine under section 69 of the Occupational Health and
Safety Act 2000 and to accompany the inspector if the request
is granted,
(e) to be an observer during the presentation of any formal report
made by a government official to the operator of a mine, or to
a contractor who does work at a mine, about an occupational
health and safety matter related to work at the mine,
(f) at the request of an employee at the mine, to accompany the
employee during any interview or discussion with an
employer or the operator of the mine about any occupational
health and safety issue,
(g) to be an observer during any formal in-house investigation of
a notifiable incident within the meaning of Division 1 of
Part 7,
(h) to assist in the development of arrangements for recording
workplace hazards and accidents and to promote improved
workplace health and safety,
(i) to make recommendations on the training of employees in
relation to health and safety,
(j) to participate in consultation that the operator, or any
contractor who does work at the mine, is required to
undertake with a site check inspector under this Act or the
regulations,
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Mine Health and Safety Bill 2004 Clause 145
Oversight of mines Part 10
(k) to inspect the mine to assess the level of risk to which
employees are exposed, including inspecting documents and
plans relating to health, safety and welfare that are required to
be kept at the mine by this Act or the regulations or by the
Occupational Health and Safety Act 2000 or the regulations
under that Act,
(l) any other functions prescribed by the regulations.
145 Training of site check inspectors
(1) A site check inspector for a mine must undertake a course of training
relating to occupational health and safety that is accredited by the
Minister for the purposes of this section.
(2) The operator of a mine must permit a site check inspector for the
mine to take any time off work, without loss of remuneration or
other entitlements, that is necessary to undertake the training.
146 Duties of operators in relation to site check inspectors
The operator of a mine must:
(a) on being requested to do so by a site check inspector for the
mine, consult with a site check inspector on the
implementation of any changes at the mine that may affect the
health or safety of persons at work at the mine, and
(b) permit a site check inspector to make any inspection of the
mine that a site check inspector is entitled to make under this
Act and to accompany an investigator during any
investigation at the mine by the investigator, and
(c) if there is no OHS committee under the Occupational Health
and Safety Act 2000 in respect of the operator's employees at
the mine--on being requested to do so by a site check
inspector, consult with a site check inspector concerning the
development, implementation and review of measures to
ensure the health or safety of persons at work at the mine, and
(d) permit a site check inspector to be present at any interview at
which a site check inspector is entitled to be present under this
Act, and
(e) provide a site check inspector with access to any information
to which a site check inspector is entitled to have access in
accordance with this Act and to which access has been
requested, and
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(f) provide a site check inspector with reasonable time, during
normal working hours, to exercise the functions of a site
check inspector without loss of remuneration or other
entitlements, and
(g) provide a site check inspector with access to any facilities that
are:
(i) prescribed for the purposes of this paragraph, or
(ii) necessary for the purposes of exercising the powers of
a site check inspector.
Maximum penalty: 100 penalty units.
Note. An operator also has duties as an employer under the Occupational
Health and Safety Act 2000. They include duties under that Act (and the
regulations under that Act) to consult with employees.
147 Duties of contractors in relation to site check inspectors
A contractor carrying out work at a mine must:
(a) on being requested to do so by a site check inspector for the
mine, consult with a site check inspector on the
implementation of changes at any mine at which employees
of the contractor perform work for the contractor, being
changes that may affect the health or safety at work of the
employees, and
(b) permit a site check inspector to make any inspection of the
mine that a site check inspector is entitled to make under this
Act, and to accompany an investigator during any
investigation at the mine by the investigator, and
(c) if there is no OHS committee (established under the
Occupational Health and Safety Act 2000) in respect of the
contractor's employees at the mine--on being requested to do
so by a site check inspector, consult with a site check
inspector concerning the development, implementation and
review of measures to ensure the health or safety at work of
those employees, and
(d) permit a site check inspector to be present at any interview at
which a site check inspector is entitled to be present under this
Act, and
(e) provide a site check inspector with access to any information
to which a site check inspector is entitled to have access in
accordance with this Act and to which access has been
requested, and
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Oversight of mines Part 10
(f) if a site check inspector is an employee of the contractor,
provide the site check inspector with reasonable time, during
normal working hours, to exercise the functions of a site
check inspector, without loss of remuneration or other
entitlements.
Maximum penalty: 100 penalty units.
Note. A contractor also has duties as an employer under the Occupational
Health and Safety Act 2000. They include duties under that Act (and the
regulations under that Act) to consult with employees.
148 Assistance to site check inspectors
The operator of a mine and all other persons at the mine must afford
every facility and assistance to a site check inspector for the
purposes of an inspection of the mine by a site check inspector.
Maximum penalty: 100 penalty units.
149 Reports by site check inspectors
(1) After making an inspection at a mine, a site check inspector must
report any perceived hazard to the operator of the mine.
Maximum penalty: 20 penalty units.
(2) On receipt of a report from a site check inspector, the operator must:
(a) send a copy of the report to a government official within
24 hours after receiving it, and
(b) take measures to resolve the matter including the taking of
any necessary corrective action.
Maximum penalty: 20 penalty units.
(3) A government official who receives a copy of a report must
investigate the report at the earliest practicable time.
Subdivision 2 Inspections on behalf of work force
150 Inspections by site check inspectors
A site check inspector for a mine may:
(a) at any time enter and inspect working places, machinery and
equipment at the mine and the shafts, roadways, working
places, old workings and machinery and equipment at the
mine, and
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(b) inspect any documents or plans that are required to be kept at
the mine by this Act or the regulations or by the Occupational
Health and Safety Act 2000 or the regulations under that Act,
and
(c) when there is at the mine an event or other occurrence (being
an event or occurrence for which notice is required to be given
by or under this Act) inspect the place where the event or
other occurrence happened and, so far as is necessary for the
purpose of ascertaining its cause:
(i) inspect any other part of the mine and any machinery,
apparatus or other thing at the mine, or
(ii) test the atmosphere at the place where the event or other
occurrence happened.
151 Site check inspector may be accompanied by operator or operator's
representative
For the purposes of an inspection of a mine under section 150, a site
check inspector may be accompanied by the operator, or a
representative of the operator, if the operator thinks fit.
152 Site check inspector must not leave work without prior notice
A site check inspector employed at a mine must not leave his or her
place of work for the purpose of exercising functions as a site check
inspector under this Division unless the site check inspector gives
reasonable notice to the operator of the mine of his or her intention
to do so. For this purpose, notice given to a supervisor is taken to
have been given to the operator.
Maximum penalty: 20 penalty units.
153 Power to cross land
(1) A site check inspector or an authorised representative for a mine
may enter any land (including any land that includes residential
premises) at any time if entering that land is the only way that the
site check inspector or the authorised representative can gain entry
to a mine for the purpose of exercising functions under this Act or
the Occupational Health and Safety Act 2000.
(2) A site check inspector or authorised representative may enter only
by any means or route approved by the occupier of the land and must
exercise all due care in entering, being on and leaving the land.
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(3) However, subsection (2) does not apply:
(a) in the case of an emergency, or
(b) where the site check inspector or authorised representative
has made reasonable effort to locate the occupier of the land
and has been unable to do so, or
(c) if the occupier of the land unreasonably fails to approve a
means or route to cross the land, or
(d) if the occupier of the land approves an unreasonable means or
route to cross the land.
Division 4 Offences
154 Offence of failing to comply with requirement of government official
A person must not, without reasonable excuse, refuse or fail to
comply with a requirement made by a government official in
accordance with this Act.
Maximum penalty:
(a) in the case of a previous offender--150 penalty units, or
(b) in any other case--100 penalty units.
155 Obstruction of site check inspectors in exercise of functions
A person must not obstruct a site check inspector in the exercise of
any function conferred on a site check inspector by this or any other
Act.
Maximum penalty: 100 penalty units.
156 Offence of interfering with site check inspector or government
official
A person must not, without reasonable excuse, wilfully interfere
with a site check inspector or a government official in exercising the
inspector's or official's functions under this Act.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)--
750 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
500 penalty units, or
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(c) in the case of an individual (being a previous offender)--
225 penalty units, or
(d) in the case of an individual (not being a previous offender)--
150 penalty units.
157 Offence of impersonating a site check inspector or government
official
A person must not impersonate, or falsely represent that the person
is, a site check inspector or a government official.
Maximum penalty: 100 penalty units.
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Mine Health and Safety Bill 2004 Clause 158
Mining industry codes of practice Part 11
Part 11 Mining industry codes of practice
158 Purpose of industry codes of practice
The purpose of a mining industry code of practice is to provide
practical guidance to operators, employers and others who have
duties under Part 5 of this Act or Part 2 of the Occupational Health
and Safety Act 2000 with respect to occupational health, safety and
welfare at mines.
159 Minister may prepare draft codes
(1) The Minister may prepare, or cause to be prepared, draft mining
industry codes of practice.
(2) A draft mining industry code of practice may refer to or incorporate,
with or without modification, a document prepared or published by
a body specified in the code, as in force at a particular time or from
time to time.
160 Consultation on draft codes
The Minister is to arrange for any organisations or persons, that the
Minister may think appropriate, to be consulted about a draft mining
industry code of practice.
161 Approval of codes by Minister
The Minister may approve a mining industry code of practice.
162 Publication, commencement and availability of codes
(1) An approved mining industry code of practice:
(a) is to be published in the Gazette, and
(b) takes effect on the day on which it is so published or, if a later
day is specified in the code for that purpose, on the later day
so specified.
(2) The following are to be made available for public inspection without
charge at an office of the Department designated by the Director-
General during normal office hours:
(a) a copy of each approved mining industry code of practice,
(b) if an approved mining industry code of practice has been
amended, a copy of the code as so amended,
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(c) if an approved mining industry code of practice refers to or
incorporates any other document prepared or published by a
specified body, a copy of each such document.
163 Amendment or revocation of codes
An approved mining industry code of practice may be amended or
revoked by an instrument prepared, approved and published in
accordance with the relevant procedures of this Part with respect to
mining industry codes of practice.
164 Use of codes
(1) In any proceedings for an offence against this Act or the regulations
or against the Occupational Health and Safety Act 2000 or the
regulations under that Act:
(a) an approved mining industry code of practice that is relevant
to any matter that it is necessary for the prosecution to prove
to establish the commission of the offence by a person is
admissible in evidence in those proceedings, and
(b) the person's failure at any material time to observe the code is
evidence of the matter to be established in those proceedings.
(2) A person is not liable to any civil or criminal proceedings by reason
only that the person has failed to observe an approved mining
industry code of practice.
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Mine Health and Safety Bill 2004 Clause 165
Regulations Part 12
Part 12 Regulations
165 Regulations: general power
(1) The Governor may make regulations, not inconsistent with this Act,
for or with respect to any matter that by this Act is required or
permitted to be prescribed or that is necessary or convenient to be
prescribed for carrying out or giving effect to the objects of this Act.
(2) Any specific power to make regulations under this Act does not
limit the generality of subsection (1).
166 Regulations: specific miscellaneous powers
Regulations may be made for or with respect to any of the following
matters:
(a) the safety, health, welfare, convenience and conduct of
persons at mines,
(b) critical controls for major hazards at mines,
(c) the records that must be kept and the reports that must be
made by an operator of a mine to the Chief Inspector
concerning the health and safety performance of the mine,
(d) the matters in a mine safety management plan,
(e) the matters in an emergency plan,
(f) the matters in a contractor's safety management plan,
(g) regulating or prohibiting:
(i) the design, manufacture, supply or use of any plant at or
in relation to a mine, and
(ii) the design, manufacture, supply, storage, transport or
use of any substance at or in relation to a mine, and
(iii) the carrying on of any process or the carrying out of any
activity at or in relation to a mine,
(h) requiring persons to identify hazards to the health and safety
of persons, and to assess risks arising from work at or in
relation to a mine (including risks arising from the place of
work or from any plant or substance for use at work),
(i) designating the persons (whether employees, employers,
self-employed persons, contractors or other persons) who are
to be responsible for compliance with the obligations imposed
by the regulations,
(j) the registration of persons occupying positions,
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(k) requiring a person, before commencing to carry out work of a
particular kind at a place of work at or in relation to a mine, to
give the Minister or other persons notice of the proposed work
in accordance with the regulations,
(l) requiring persons at a mine, in any circumstances involving a
risk to their health, to undergo a biological, hearing or other
test,
(m) prohibiting persons at a mine eating, drinking or smoking in
any circumstances involving an increased risk to their health,
(n) measures for detecting and investigating cases in which the
health of persons has been, or may have been, affected,
including medical examinations, the making of biological,
hearing or other tests and the notification of absences from
work,
(o) prohibiting, absolutely or conditionally, the use of specified
materials or classes or types of materials at or in relation to
mines,
(p) regulating or prohibiting blasting,
(q) requiring or regulating fire prevention and control,
(r) requiring or regulating strata control,
(s) the design, construction, installation, maintenance, use,
testing, repair, adjustment, alteration and examination of
plant used at or in relation to mines,
(t) the design, use, construction and maintenance of buildings
and structures at mines,
(u) the design, use, construction and maintenance of equipment
used in connection with shafts and roadways in mines,
(v) the provision of security measures at a mine to prevent access
to shafts, declines and surface buildings when unattended,
(w) the circumstances in which consultation must be undertaken
by an operator of a mine or by a contractor,
(x) the mode of consultation by the operator of a mine or by a
contractor,
(y) the requirements to be observed and the precautions to be
taken in mining any location, including:
(i) under the ocean, a river, a lake, an estuary, a reservoir
or an aquifer, and
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Mine Health and Safety Bill 2004 Clause 166
Regulations Part 12
(ii) near any place or strata that is likely to contain a
dangerous accumulation of gas or water or material that
flows when wet,
(z) the control of the supply, storage and use of blasting
materials, blasting devices and inflammable materials at a
mine,
(aa) requiring the surveying, and the preparation of plans, of
barriers and protective pillars in a mine and prescribing the
time in which any such surveys or plans must be made or
prepared,
(ab) the waiver, remission or refund of fees charged under this Act
or the regulations and the interest payable for late payment of
such fees,
(ac) the registration of any plant, material or thing before it may be
used in, installed in or taken into a mine or connected to, or
used with, any other plant, material or thing used or installed
in a mine,
(ad) the generation, storage, transformation, transmission and use
of electricity at a mine,
(ae) requiring communication systems to be provided in a mine,
(af) the supply and maintenance of first aid equipment, facilities
and locations at a mine,
(ag) the employment at a mine of persons trained to administer
first aid to injured persons,
(ah) the conveyance of persons injured within a mine from the
mine to their homes or hospital,
(ai) the supply of drinking water at a mine,
(aj) the provision of facilities for the taking of meals both on the
surface and underground at a mine,
(ak) the supply and maintenance of safety equipment for the use of
persons employed at a mine,
(al) the transport of persons and materials in a mine,
(am) requiring persons employed in a mine who carry out
prescribed functions that may affect the safety or health of
other persons to hold any evidence of competence that may be
prescribed,
(an) the ventilation of underground mines,
(ao) the environmental working conditions in a mine,
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(ap) the control of the temperature and humidity to which persons
may be exposed in a mine,
(aq) lighting in or about mines,
(ar) prohibiting the taking into mines of items that may affect the
safety of persons at mines,
(as) searching persons, before entry into mines, for items referred
to in paragraph (ar) and the confiscation and disposal of any
such items found,
(at) the fencing, enclosing or sealing of abandoned mines or parts
of mines by any person (including the owner or occupier of
land on which those abandoned mines or parts of mines are
located),
(au) requiring the provision of information, and the means of
information provision, at a mine and prescribing:
(i) the number, design, construction, size and location of
those means of information provision, and
(ii) the matters that must be displayed or provided, and
(iii) the class or classes of persons to whom information is
to be provided,
(av) the preparation, maintenance, keeping and preservation of
plans, sections, copies or tracings of any original plans and
sections, and drawings of mines (including abandoned mines)
and of workings in or about mines and of related documents,
including provisions for or with respect to the preparation of
those plans, sections, copies and drawings by the Director-
General and the recovery of the cost of their preparation,
maintenance, keeping and preservation,
(aw) surveys of mines (including abandoned mines),
(ax) the furnishing or production of copies of plans, sections and
drawings of mines (including abandoned mines) and the
furnishing of information relevant to the preparation of those
plans, sections and drawings to the Director-General,
inspectors and other persons,
(ay) the supply of, or the furnishing of information from, copies of
plans, sections or drawings filed with the Director-General to
persons,
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(az) prescribing, in respect of tailings disposal areas, engineering,
environmental and safety standards and practices to be
adopted in constructing and using emplacement areas and
steps to be taken to keep emplacement areas secure,
(ba) the provision, retention, maintenance and inspection of
records at a mine,
(bb) the obligations of land owners and land occupiers at or in the
vicinity of mines or abandoned mines,
(bc) the functions of the Chief Inspector,
(bd) the functions of inspectors, investigators or mine safety
officers, including provisions for or with respect to the
production of identification cards by inspectors, investigators
or mine safety officers and the warnings to be administered to
persons in the course of an inspection,
(be) the functions of site check inspectors including provisions for
or with respect to the production of identification cards by
such persons,
(bf) the analysis of any substance,
(bg) the fees chargeable or payable for doing any act or providing
any service in connection with this Act or the regulations,
(bh) forms for the purposes of this Act or the regulations,
(bi) the manner of serving notices under this Act or the
regulations,
(bj) any information to be provided to any person by an inspector
or other person exercising functions under this Act,
(bk) the persons, or class of persons, entitled to vote at an election
under this Act,
(bl) the manner in which an election under this Act must be held,
(bm) the fitness for work of persons who work at mines,
(bn) the setting and variation of working time arrangements of
persons who work at mines,
(bo) the consumption of alcohol or other drugs by persons who
work at mines or who visit mines or abandoned mines under
the authority of a permit under Division 3 of Part 6,
(bp) the content and operation of a management structure for a
mine,
(bq) supervision of persons who work at mines,
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(br) the duties of an operator of a mine in relation to
subcontractors,
(bs) periodic performance reports by operators of mines
concerning the occurrence of notifiable incidents within the
meaning of section 88,
(bt) regulating tourist activities and the use of mines for
educational purposes,
(bu) the lodgment of applications under this Act,
(bv) the transfer of any permit and the fees payable in respect of
such a transfer,
(bw) the duration of any permit, which may be indefinite or of
specified length,
(bx) modifying Part 6 in relation to permits.
167 Regulations may prescribe decisions that are to be reviewable by
Administrative Decisions Tribunal
(1) The regulations may authorise a person to apply to the
Administrative Decisions Tribunal for a review of a decision under
this Act or the regulations that is of a class prescribed by the
regulations.
(2) The regulations may require any person who applies to the
Administrative Decisions Tribunal for a review of a decision under
this Act to notify any person of that application.
(3) Despite section 60 of the Administrative Decisions Tribunal
Act 1997, the regulations may make provision for the operation and
implementation of a decision under review, or pending review, by
the Administrative Decisions Tribunal.
(4) Any such regulation cannot be made without the concurrence of the
Minister administering the Administrative Decisions Tribunal
Act 1997.
168 Regulations: adapting duties under Part 5
The regulations may adapt the provisions of Part 5 to meet the
circumstances of any specified class of case.
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Mine Health and Safety Bill 2004 Clause 169
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169 Regulations concerning application of Part 5 to contractors
(1) The regulations may specify contractors or classes of contractors:
(a) in relation to whom some or all of Subdivision 4 of Division 2
of Part 5 does not create any duties or creates duties subject to
conditions, or
(b) to whom some or all of Division 6 of Part 5 does not apply or
applies subject to conditions.
(2) Any regulation made under this section applies only to contractors
who do not undertake mining activities as part of the work that they
undertake in connection with a mine.
170 Regulations may adopt other publications
The regulations may apply, adopt or incorporate any publication as
in force at a particular time or from time to time.
171 Regulations may create criminal offences
The regulations may create offences punishable by a penalty not
exceeding 250 penalty units.
172 Exemptions
(1) The regulations may exempt persons, or persons of a prescribed
class, or any act, matter or thing, or any prescribed class of act,
matter or thing, either absolutely or subject to conditions, from any
provision of the regulations.
(2) The regulations may exempt an operator, or a class of operators,
from the requirement to prepare a mine safety management plan and
from requirements relating to that plan under Subdivision 2 of
Division 2 of Part 5.
173 Regulations relating to consultation
(1) If a provision of this Act requires consultation to be carried out with
persons who work at a mine, in the manner required by the
regulations, the regulations may specify the circumstances where it
is sufficient for the OHS committee for the mine (established under
the Occupational Health and Safety Act 2000) or a site check
inspector for the mine to be consulted about the matter rather than
the persons who work at the mine.
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(2) This section does not limit the mode of consultation that may be
required by the regulations, or the circumstances where consultation
may be required.
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Mine Health and Safety Bill 2004 Clause 174
Miscellaneous Part 13
Part 13 Miscellaneous
Division 1 Enforcement
Note.
Section 104A of the Occupational Health and Safety Act 2000 provides for
offences under this Act and the regulations to be prosecuted under that Act.
174 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any
provision of this Act or the regulations, each person who is a
director of the corporation or who is concerned in the management
of the corporation is taken to have contravened the same provision
unless the director or person satisfies the court that:
(a) he or she was not in a position to influence the conduct of the
corporation in relation to its contravention of the provision, or
(b) he or she, being in such a position, used all due diligence to
prevent the contravention by the corporation.
(2) A person may be proceeded against and convicted under a provision
pursuant to subsection (1) whether or not the corporation has been
proceeded against or has been convicted under the provision.
(3) Nothing in this section affects any liability imposed on a corporation
for an offence committed by the corporation under this Act or the
regulations.
(4) In the case of a corporation that is a local council, a member of the
council (in his or her capacity as such a director) is not to be
regarded as a director or person concerned in the management of the
council for the purposes of this section.
175 Aiding and abetting etc
(1) A person:
(a) who aids, abets, counsels or procures, or
(b) who, by act or omission, is in any way directly or indirectly
knowingly concerned in or a party to,
the commission of an offence against this Act or the regulations is
taken to have committed that offence and is punishable accordingly.
(2) Subsection (1) does not apply to a person who is acting in the
ordinary course of the person's duties as an officer of a Federal or
State industrial organisation of employees or employers.
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176 Defence
It is a defence to any proceedings against a person for an offence
against a provision of this Act or the regulations if the person proves
that:
(a) it was not reasonably practicable for the person to comply
with the provision, or
(b) the commission of the offence was due to causes over which
the person had no control and against the happening of which
it was impracticable for the person to make provision.
177 Defences to criminal proceedings not affected by this Act
It is not a defence to an action in any criminal proceedings that a
given course of action was not objected to by the Chief Inspector or
the Department, even if this Act gives the Chief Inspector or the
Department an opportunity to object to that course of action.
Division 2 Information
178 Disclosure of information
A person must not disclose any information obtained in connection
with the administration or execution of this Act unless that
disclosure is made:
(a) with the consent of the person from whom the information
was obtained, or
(b) in connection with the administration or execution of this or
any other Act, or
(c) for the purposes of any legal proceedings arising out of this or
any other Act or of any report of any such proceedings, or
(d) in accordance with the Freedom of Information Act 1989, or
(e) in accordance with a requirement imposed under the
Ombudsman Act 1974, or
(f) with the consent of the Minister, or
(g) with other lawful excuse.
Maximum penalty: 20 penalty units.
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Mine Health and Safety Bill 2004 Clause 179
Miscellaneous Part 13
179 False or misleading statements
A person must not, in giving any answer required of the person by a
person under this Act, or in complying with a requirement to make
a report under this Act, to furnish any returns, statistics or other
information or to inform a person of the substance of any
instructions, make a statement that the person knows to be false or
misleading in a material particular or recklessly make a statement
that is false or misleading in a material particular.
Maximum penalty:
(a) in the case of a previous offender--150 penalty units, or
(b) in any other case--100 penalty units.
180 Defence
A person does not commit an offence against this Division by giving
any answer, information or a document if the person, when giving
the answer, information or document:
(a) tells the other person, to the best of his or her ability, how it is
false or misleading, and
(b) gives the correct information, in circumstances where the
person has, or can reasonably obtain, the correct information.
Division 3 Exercise and delegation of functions
181 Chief Inspector subject to Ministerial control
The Chief Inspector is, in the exercise of the Chief Inspector's
functions, subject to Ministerial control and direction.
182 Delegation of functions by Minister
(1) The Minister may, by instrument in writing, delegate to the
Director-General any of the functions conferred or imposed on the
Minister by or under this Act (other than this power of delegation).
(2) The Minister may, by instrument in writing, delegate to the Board
any of the functions conferred or imposed on the Minister under
Part 9.
183 Delegation of functions by Chief Inspector
The Chief Inspector may, by instrument in writing, delegate to any
inspector any of the functions conferred or imposed on the Chief
Inspector by or under this Act (other than this power of delegation).
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184 Delegation of functions by Director-General
(1) The Director-General may, by instrument in writing, delegate to an
authorised person any function conferred or imposed on the
Director-General by or under this Act, including this power of
delegation.
(2) The Director-General may subdelegate to any authorised person any
function delegated to the Director-General by the Minister if the
Director-General is authorised to do so by the Minister.
(3) In this section:
authorised person means:
(a) an officer of the Department, or
(b) any other person prescribed by the regulations.
Division 4 Service of documents
185 Service of documents
(1) A document that is authorised or required by this Act or the
regulations to be served on any person may be served by:
(a) in the case of a natural person:
(i) delivering it to the person personally, or
(ii) sending it by post to the address specified by the person
for the giving or service of documents or, if no such
address is specified, the residential or business address
of the person last known to the person giving or serving
the document, or
(iii) sending it by facsimile transmission to the facsimile
number of the person, or
(b) in the case of a body corporate:
(i) leaving it with a person apparently of or above the age
of 16 years at, or by sending it by post to, the head
office, a registered office or a principal office of the
body corporate or to an address specified by the body
corporate for the giving or service of documents, or
(ii) sending it by facsimile transmission to the facsimile
number of the body corporate.
(2) Nothing in this section affects the operation of any provision of a
law or of the rules of a court authorising a document to be served on
a person in any other manner.
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Mine Health and Safety Bill 2004 Clause 186
Miscellaneous Part 13
186 Supply of documents to operator
If this Act or the regulations require something to be sent or given
to the operator of a mine, it is sufficient that it is sent or given to the
most senior person identified in the operator's management
structure who is at work or given to a person at the mine or at the
premises at which the relevant part of the work of the mine is carried
out.
187 Supply of documents to Chief Inspector
If this Act or the regulations require something to be sent or given
to the Chief Inspector, it is sufficient that it is sent or given to a
person, or left at a place, specified by the Chief Inspector by order
published in the Gazette.
Division 5 Fees
188 Fees
(1) The Minister may determine the fees and charges payable:
(a) by an applicant for a certificate of competence, and
(b) by a candidate for an examination conducted by the Board,
and
(c) for any service provided by the Board, and
(d) for the testing of plant or material for registration for the
purpose of this Act or the regulations, and
(e) for the issue of any tourist or educational permit under section
85, and
(f) for any other purpose in connection with this Act authorised
by the regulations.
(2) Any determination made under this section is subject to the
regulations.
Division 6 Liability
189 Protection from liability
(1) A matter or thing done or omitted to be done by a protected person
does not, if the matter or thing was done or omitted in good faith for
the purpose of executing any provision of this Act, subject such
person personally to any action, liability, claim or demand.
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Part 13 Miscellaneous
(2) In this section, protected person means any of the following:
(a) the Minister,
(b) the Director-General,
(c) the Chief Inspector,
(d) a member of the Board,
(e) a site check inspector,
(f) an inspector,
(g) a mine safety officer,
(h) an investigator,
(i) a person who constitutes a Board of Inquiry,
(j) an assessor sitting with a Board of Inquiry.
190 No obligation to exercise power
Nothing in this Act, other than a provision creating an offence,
imposes an obligation on a person to exercise any power because the
person is a site check inspector.
Division 7 Repeals and amendments
191 Repeals
The following are repealed:
(a) the Mines Inspection Act 1901 No 75,
(b) the Mines Inspection Amendment Act of 1904 No 21,
(c) the Mines Inspection Amendment Act 1998 No 69,
(d) the Mines Inspection General Rule 2000,
(e) the Mines Inspection Regulation 1999.
192 Amendment of Mining Act 1992 No 29
The Mining Act 1992 is amended as set out in Schedule 1.
193 Amendment of Occupational Health and Safety Act 2000 No 40
The Occupational Health and Safety Act 2000 is amended as set out
in Schedule 2.
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Miscellaneous Part 13
194 Amendment of Coal Mine Health and Safety Act 2002 No 129
The Coal Mine Health and Safety Act 2002 is amended as set out in
Schedule 3.
195 Amendment of other legislation
The Acts and the regulation specified in Schedule 4 are amended as
set out in that Schedule.
Division 8 General
196 Savings, transitional and other provisions
Schedule 5 has effect.
197 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period
of 5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House
of Parliament within 12 months after the end of the period of
5 years.
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Schedule 1 Amendment of Mining Act 1992
Schedule 1 Amendment of Mining Act 1992
(Section 192)
[1] Section 79 Amendment of mining lease in respect of certain
conditions
Insert ", or within the same colliery holding or mine holding," after
"holder" in section 79 (4).
[2] Section 163 Colliery holdings
Omit section 163 (3) and (4). Insert instead:
(3) The holder of a mining lease to mine for coal must apply to
have the land registered as a colliery holding or recorded on
the register as part of an existing colliery holding before
commencing mining operations under the mining lease.
Maximum penalty: 20 penalty units.
(3A) A person who has a right on any land to carry out mining
purposes in connection with the mining of coal may apply to
have the land registered as a colliery holding or recorded on
the register as part of an existing colliery holding.
(4) A person who has an interest in a colliery holding under
subsection (3) or (3A) may apply to have the registration of
the colliery holding cancelled or amended so as to exclude
land from the colliery holding.
[3] Section 163 (6)
Omit "mine for coal or to".
[4] Section 163 (8)
Omit "subsection (3)". Insert instead "subsection (3A)".
[5] Section 163A
Insert after section 163:
163A Mine holdings
(1) The Director-General is to cause to be kept a register of mine
holdings (referred to in this section as the register) in such
form as may be prescribed by the regulations.
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(2) The Director-General is to cause to be recorded in the register:
(a) such particulars as are necessary to give effect to a
direction given under this section, and
(b) such other particulars as may be prescribed by the
regulations.
(3) A person who has a right (whether under a mining lease or
otherwise) to mine for minerals other than coal or to carry out
mining purposes in connection with minerals other than coal
on any land may apply to have the land registered as a mine
holding or recorded on the register as part of an existing mine
holding.
(4) A person who has an interest in a mine holding under
subsection (3) may apply to have the registration of the mine
holding cancelled or amended so as to exclude land from the
mine holding.
(5) An application under this section:
(a) must be lodged with the Director-General, and
(b) must be accompanied by the particulars prescribed by
the regulations.
(6) The Minister may, by order in writing, direct that specified
land (being land in which a person has, in the Minister's
opinion, a right to mine for minerals other than coal or to carry
out mining purposes in connection with mining for minerals
other than coal) be registered as a mine holding or recorded
on the register as part of an existing mine holding.
(7) The Minister may, by order in writing, direct that the
registration of a mine holding be cancelled or amended so as
to exclude specified land from the mine holding.
(8) A direction may be given under subsection (6) or (7) whether
or not an application has been made under subsection (3) or
(4) in respect of the same land.
(9) The Director-General is to cause copies of any direction under
subsection (6) or (7) to be served on such persons as, in the
Director-General's opinion, have a right to mine minerals
other than coal or to carry out mining purposes in connection
with mining for minerals other than coal in the land or mine
holding to which the instrument relates.
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Schedule 2 Amendment of Occupational Health and Safety Act 2000
Schedule 2 Amendment of Occupational Health and
Safety Act 2000
(Section 193)
[1] Section 4 Definitions
Omit paragraph (c) from the definition of associated occupational health
and safety legislation.
[2] Section 4, definition of "mine"
Omit the definition.
[3] Section 4
Insert in alphabetical order:
mining workplace means a place of work:
(a) that is a mine within the meaning of the Mine Health
and Safety Act 2004, or
(b) at which activities under the Petroleum (Onshore)
Act 1991 or the Petroleum (Submerged Lands)
Act 1982 are carried out.
[4] Section 5 Application of Act
Omit "mines" from Note 1 to the section.
Insert instead "mining workplaces".
[5] Section 17 Establishment of OHS committees, election of OHS
representatives and other agreed arrangements
Insert in appropriate order:
(7) In the case of a place of work that is a mine within the
meaning of the Mine Health and Safety Act 2004, a site check
inspector (within the meaning of that Act) for the mine must
be a member of any OHS committee for that place of work.
Note. The Mine Health and Safety Act 2004 makes provision for the
election or appointment of certain persons to carry out inspections and
perform other functions on behalf of persons who work at mines within
the meaning of that Act.
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[6] Section 47 Appointment of inspectors (otherwise than in
connection with mining workplaces or coal workplaces)
Omit "mine" from section 47 (2) (as inserted by Schedule 4 [2] to the
Mining Legislation Amendment (Health and Safety) Act 2002).
Insert instead "mining workplace".
[7] Section 47A (as inserted by Schedule 4 [4] to the Mining
Legislation Amendment (Health and Safety) Act 2002)
Omit the section. Insert instead:
47A Appointment of inspectors in connection with mining
workplaces
A person appointed as a government official under the Mine
Health and Safety Act 2004 is taken to have been appointed as
an inspector for the purposes of this Act and the regulations.
Such a person is only authorised to exercise functions under
this Act in relation to a mining workplace, but may exercise
functions under Division 2 in relation to premises other than
a mining workplace for the purpose of investigating any
matter under this Act in relation to a mining workplace.
[8] Section 48 Identification of inspectors (as inserted by Schedule 4
[5] to the Mining Legislation Amendment (Health and Safety) Act
2002)
Omit "or 47A" from section 48 (1).
Insert instead ", or taken to have been appointed under section 47A or
47B".
[9] Section 48 (2) (f) (ii)
Omit "appointed under section 47A".
Insert instead "taken to have been appointed under section 47A or 47B".
[10] Section 48 (3)
Insert "or 47B" after "47A".
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[11] Section 48 (3)
Omit "Mines Inspection Act 1901".
Insert instead "Mine Health and Safety Act 2004".
[12] Section 69 Power of employees' representative to accompany
inspector
Insert in appropriate order:
(3) In the case of a place of work that is a mine within the
meaning of the Mine Health and Safety Act 2004, the
representative of the employees referred to in this section
should, to the extent practicable, be a site check inspector
elected under that Act for that mine.
[13] Section 75A
Insert after section 75:
75A Certain actions by inspectors
(1) This section applies if an inspector, in good faith, exercises
functions under any relevant legislation in relation to a place
of work that is not a place of work in relation to which the
inspector has authority.
(2) An inspector must, as soon as practicable after becoming
aware of exercising functions in relation to such a place of
work, either:
(a) notify the appropriate authority in writing of the
functions so exercised, or
(b) if the regulations require the inspector to notify another
specified person--notify that specified person.
(3) An appropriate authority may, by notice in writing, direct an
inspector not to exercise functions in relation to an activity,
work, plant or place if it becomes aware that the inspector is
exercising, or has exercised, such functions in relation to that
activity, work, plant or place and is not authorised to do so.
(4) If an inspector (the relevant inspector) ceases, or is required
to cease, exercising functions because of this section:
(a) the appropriate authority or an appropriate inspector
may continue to exercise any functions commenced by
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the relevant inspector as if the functions had been
exercised by the appropriate authority or the
appropriate inspector, and
(b) the appropriate authority or an appropriate inspector
may continue any relevant investigation and any
subsequent proceedings that the authority or inspector
has power to continue.
(5) For the purposes of the relevant legislation and any
proceedings:
(a) any function previously exercised by the relevant
inspector relating to the activity, work, plant or place
concerned is taken to have been exercised by the
appropriate authority or an appropriate inspector, and
the relevant legislation applies accordingly, and
(b) any notice issued by the relevant inspector relating to
the activity, work, plant or place concerned is taken to
have been issued by the appropriate authority or an
appropriate inspector, and can be enforced or otherwise
dealt with as if the applicable relevant legislation
authorised its issue, and
(c) any evidence collected by the relevant inspector
relating to the activity, work, plant or place concerned
is taken to have been collected by the appropriate
authority or an appropriate inspector for the purposes of
determining its admissibility in subsequent
proceedings.
(6) The regulations may require a person notified under
subsection (2) (b) to give notice of the matters so notified to
the appropriate authority.
(7) In this section:
appropriate authority means:
(a) in relation to a place of work to which this Act applies
that is not a mining workplace or a coal workplace--the
WorkCover Authority, or
(b) in relation to a mining workplace--the Chief Inspector
appointed under the Mine Health and Safety Act 2004,
or, if the regulations specify another person, that
person, or
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(c) in relation to a coal workplace--the Chief Inspector
appointed under the Coal Mine Health and Safety
Act 2002, or, if the regulations Act specify another
person, that person.
appropriate inspector means:
(a) in relation to a place of work to which this Act applies
and that is not a mining workplace or a coal
workplace--an inspector appointed under section 47,
or
(b) in relation to a mining workplace--a person taken to
have been appointed as an inspector under section 47A,
or
(c) in relation to a coal workplace--a person taken to have
been appointed as an inspector under section 47B.
inspector means:
(a) an inspector appointed under section 47, or
(b) a government official appointed under the Mine Health
and Safety Act 2004 who is taken to have been
appointed under this Act by section 47A of this Act, or
(c) a government official appointed under the Coal Mine
Health and Safety Act 2002 who is taken to have been
appointed under this Act by section 47B of this Act.
relevant legislation means any of the following Acts and the
regulations made under those Acts:
(a) this Act,
(b) the Mine Health and Safety Act 2004,
(c) the Coal Mine Health and Safety Act 2002,
(d) the Petroleum (Onshore) Act 1991,
(e) the Petroleum (Submerged Lands) Act 1982.
[14] Sections 77 and 81 (as amended by Schedule 1 [11] to the Coal
Mine Health and Safety Act 2002)
Omit "or the Coal Mine Health and Safety Act 2002" wherever occurring.
Insert instead ", the Coal Mine Health and Safety Act 2002 or the Mine
Health and Safety Act 2004".
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[15] Sections 86 (5), 87 (6), 88 (5) and 133
Omit "mine" wherever occurring. Insert instead "mining workplace".
[16] Section 104A Application of this Part (as inserted by
Schedule 1 [13] to the Coal Mine Health and Safety Act 2002)
Insert after section 104A (2):
(2A) This Part extends to proceedings in connection with the Mine
Health and Safety Act 2004 and the regulations under that
Act.
[17] Section 104A (3)
Insert "or (2A)" after "(2)".
[18] Section 104A (3) (a) and (4)
Omit "that Act" wherever occurring. Insert instead "those Acts".
[19] Section 104A (3) (d)
Insert "or the Mine Health and Safety Act 2004" after "Coal Mine Health
and Safety Act 2002".
[20] Section 104A (4)
Insert "or the Mine Health and Safety Act 2004" after "Coal Mine Health
and Safety Act 2002".
[21] Section 133 Application of Act to mining workplaces and coal
workplaces--references to WorkCover
Omit "Mines Inspection Act 1901".
Insert instead "Mine Health and Safety Act 2004, the Petroleum (Onshore)
Act 1991, the Petroleum (Submerged Lands) Act 1982".
[22] Section 137A Delegation of certain functions (as inserted by
Schedule 4 [9] to the Mining Legislation Amendment (Health and
Safety) Act 2002)
Omit section 137A (1) (a).
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Schedule 3 Amendment of Coal Mine Health and Safety
Act 2002
(Section 194)
[1] Section 3 Definitions
Insert in alphabetical order:
abandoned coal operation includes a discontinued coal
operation, a closed coal operation (other than a suspended
coal operation) and a former coal operation.
[2] Section 3
Omit the definition of coal exploration site. Insert instead:
coal exploration site means:
(a) a place where drilling from the surface is undertaken for
the purpose of discovering or proving the existence of
coal, or
(b) a place where drilling from the surface is undertaken for
a mining purpose in connection with the mining of coal,
or
(c) a place where bulk sampling is done under an
exploration licence or assessment lease granted under
the Mining Act 1992, or
(d) a place being prepared for a use referred to in
paragraph (a)-(c), or
(e) a place formerly used for a purpose referred to in
paragraph (a)-(c) and that is presently being restored.
[3] Section 3, definition of "mine"
Insert "or carry out such other activities as may be prescribed by the
regulations" after "improving coal" in paragraph (b).
[4] Section 3, definition of "operator"
Insert "and that nomination was not rejected" after "section 17" in
paragraph (a) (i).
[5] Section 3, definition of "operator"
Omit "accepted" from paragraph (a) (ii). Insert instead "not rejected".
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[6] Section 3, definition of "operator"
Omit paragraph (a) (iii).
[7] Section 3, definition of "previous offender"
Insert at the end of paragraph (d):
, or
(e) the Mines Inspection Act 1901, or
(f) the Mine Health and Safety Act 2004.
[8] Section 5 When a person is at work
Omit "an employee". Insert instead "a person".
[9] Section 5
Omit "the employee". Insert instead "the person".
[10] Section 8 Application of Act
Omit section 8 (2). Insert instead:
(2) This Act also applies to abandoned coal operations and
emplacement areas.
(3) This Act does not apply to:
(a) any place that is of a class prescribed by the regulations
or in circumstances or during time periods prescribed
by the regulations, or
(b) any place specified by the Minister in a notice
published in the Gazette.
(4) The Minister is to notify any other Minister administering the
Occupational Health and Safety Act 2000 if any notice under
subsection (3) (b) is published in the Gazette. However,
failure to notify that other Minister does not affect the validity
of the notice published in the Gazette.
[11] Part 4 Application of Occupational Health and Safety Act 2000
Omit "It should be read as if it were part of the Occupational Health and
Safety Act 2000." from the note after the heading to the Part.
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[12] Section 11
Omit the section. Insert instead:
11 Act to be read in conjunction with OH&S Act
This Act is to be read in conjunction with the Occupational
Health and Safety Act 2000.
[13] Section 12 Act adds to protection provided by OH&S Act
Insert at the end of the section (after the note):
(2) Without limiting subsection (1) or any other provision of this
Act, the failure by an operator to comply with a provision of
this Act or the regulations does not affect any liability of an
employer or other person under this Act or the regulations or
under the Occupational Health and Safety Act 2000 or the
regulations under that Act.
[14] Section 13 OH&S Act prevails
Omit section 13 (1) (except the note to that subsection). Insert instead:
(1) The provisions of the Occupational Health and Safety
Act 2000 and the regulations under that Act prevail, to the
extent of any inconsistency, over the provisions of both this
Act and the regulations under this Act.
[15] Section 16A
Insert after section 16:
16A Documents
To avoid doubt, any documents or plans that by virtue of this
Act or the regulations are required to be kept at a coal
operation are taken to be documents that directly affect the
occupational health and safety of employees within the
meaning of section 81 of the Occupational Health and Safety
Act 2000.
[16] Section 17 Duty to nominate the operator of a coal operation
Insert after section 17 (5):
(5A) The Chief Inspector may require a colliery holder to provide
further information concerning a nomination.
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[17] Section 17 (6)
Insert "or within any further time specified by the Chief Inspector when
the Chief Inspector requests further information under subsection (5A)"
after "receiving the nomination".
[18] Section 17 (8)
Insert ", on and from the time the rejection is notified to the operator,"
after "taken".
[19] Section 17 (9)
Omit ", or proposes to cease to be, the operator".
Insert instead "the employer with the day to day control".
[20] Section 17 (11)-(13)
Insert after section 17 (10):
(11) The regulations may provide for when a person is taken to
cease to be the employer with the day to day control of a mine
for the purposes of this section.
(12) Subject to the regulations, the fact that an operator was not,
when nominated as the operator under this section, the
employer with the day to day control of the mine concerned
does not affect the operator's obligations under this Act.
(13) Subject to the regulations, the fact that an operator has ceased
to be the employer with the day to day control of the mine
does not affect the operator's obligations under this Act.
[21] Section 20 Duty of operator to prepare health and safety
management system
Omit section 20 (4). Insert instead:
(4) This section does not require an operator to prepare a mine
safety management plan for a mine if:
(a) a previous operator of the mine prepared a plan that
complies with this Act and the regulations, and
(b) the plan is adopted by the subsequent operator.
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[22] Section 44 Meaning of "emergency"
Omit "envisaged or".
[23] Section 54 Requirement to notify high risk activities
Omit section 54 (1) (b). Insert instead:
(b) such waiting period as may be prescribed by the
regulations in relation to the activity has elapsed.
[24] Section 54 (1A)
Insert after section 54 (1):
(1A) The waiting period in relation to a particular high risk activity
may be varied by the Chief Inspector so long as the industry
check inspector who has been notified of the activity is
consulted by the Chief Inspector in relation to the variation.
[25] Section 61 Unlawful dismissal or other victimisation of employee
Omit "for any one or more of the following reasons, or for reasons
including any one or more of the following reasons" from section 61 (1).
Insert instead "because".
[26] Section 78 Duty to give notice of drilling operations
Insert after section 78 (1):
(1A) If notice has been given of drilling operations on particular
land, no further notice is required if other related drilling
operations are later commenced on that land.
[27] Section 78 (3)
Omit the subsection. Insert instead:
(3) In this section:
drilling operation means any drilling operation carried out
from the surface in the course of searching for coal or the
mining of coal and includes:
(a) drilling carried out under the authority of section 81 of
the Mining Act 1992, and
(b) drilling done for mining purposes in connection with
the mining of coal, and
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(c) the preparation of a drill site, and
(d) the restoration of a drill site.
[28] Section 83 Alternative verdicts
Omit the section.
[29] Sections 105-109
Omit sections 105-109. Insert instead:
105 Definitions
In this Division:
mine includes an abandoned coal operation or part of a coal
operation.
permit means a permit that has been issued under section 107
and that has not been revoked under section 108 or taken to
have been revoked under the regulations.
106 Tourist activities in mines or use of mines for educational
purposes not allowed without a permit
A person must not conduct tourist activities in or about a mine
or use a mine principally for educational purposes unless:
(a) the tourist activities are, or the use of the mine
principally for educational purposes is, authorised by a
permit issued to that person, and
(b) the person complies with the conditions (if any) to
which the permit is subject.
Maximum penalty:
(a) in the case of a corporation (being a previous
offender)--750 penalty units, or
(b) in the case of a corporation (not being a previous
offender)--500 penalty units, or
(c) in the case of an individual (being a previous
offender)--375 penalty units, or
(d) in the case of an individual (not being a previous
offender)--250 penalty units.
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107 Issue of tourist and educational permits
(1) Any of the following persons may apply for a permit in
relation to a mine:
(a) if, in the case of a mine that is located on land subject to
a mining lease in respect of coal under the Mining Act
1992, the mining lease holder owns the land--the
mining lease holder or another person with that holder's
consent,
(b) if, in relation to a mine that is located on land subject to
a mining lease in respect of coal under the Mining
Act 1992, the mining lease holder does not own the
land--the mining lease holder with the land owner's
consent or another person with the consent of both the
mining lease holder and the land owner,
(c) in the case of a mine that is not located on land subject
to a mining lease under the Mining Act 1992--the
owner of the land on which the mine is located or
another person with the land owner's consent.
(2) The Minister may, on application being made to the Minister
in writing, issue a permit that:
(a) authorises tourist activities to be conducted in or about
the mine, or
(b) authorises the mine to be used principally for
educational purposes,
or both, subject to any conditions that the Minister may
specify in the permit and any conditions that may be
prescribed by the regulations.
(3) An application for a permit is to be in the form approved by
the Minister and must be accompanied by any particulars or
documents required by that form.
(4) The Minister may require an applicant for a permit to furnish
additional information within a time specified by the Minister
and may refuse to issue a permit if such information is not
furnished in that time.
(5) An application for a permit is to be accompanied by the fee
determined by the Minister under section 219.
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(6) In determining an application, the Minister may consult with
any persons, government agencies or other bodies that the
Minister considers appropriate.
(7) A permit must not be issued under this section in respect of a
mine unless the Minister is satisfied that all necessary
precautions will be taken by the applicant to protect the health
and safety of persons entering the mine.
108 Revocation or variation of permits
(1) The Minister:
(a) may revoke a permit if a condition to which the permit
is subject is breached or if the Minister is satisfied that
persons cannot enter the mine to which the permit
relates:
(i) without risk to their safety or health that is higher
than that which is reasonably acceptable for
tourist or educational activities, or
(ii) without risk to their health or safety that is not
properly managed by the holder of the permit,
and
(b) may from time to time attach conditions or additional
conditions to a permit or vary the conditions to which a
permit is subject.
(2) A revocation of a permit, a variation of conditions to which a
permit is subject or the attachment of conditions or additional
conditions to a permit does not take effect until notice of the
revocation, variation or attachment is served on the occupier
of the mine to which the permit relates. However, if the
Minister forms the view that an emergency exists, the
Minister is not required to give notice and the revocation or
variation or attachment of conditions takes effect
immediately.
(3) A variation may be made under subsection (1) (b) by way of
addition, amendment or deletion of conditions.
(4) The regulations may provide that a permit is taken to be
automatically revoked during any period of non-compliance
with specified conditions or conditions of a specified class.
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109 Minister and certain other persons not liable in certain
circumstances
(1) This section applies if:
(a) the Minister has issued a permit in relation to a mine to
a person, and
(b) that person, or any other person, suffers any injury or
incurs any loss as a result of any person entering the
mine pursuant to the permit.
(2) The Crown, the Minister and any officer of the Department
are not liable for any loss arising out of any injury or loss
suffered or incurred by any person who enters the mine
pursuant to the permit.
[30] Section 118 Minister to make stop work orders
Omit "that the action is to cease or is not to be carried out" from
section 118 (1).
Insert "that the person who is carrying out or about to carry out the action
is to cease or not to carry out the action".
[31] Section 118 (2)
Omit "date on which". Insert instead "time at which".
[32] Section 118 (2) (a)
Insert "by the Minister" after "holder".
[33] Section 118 (2) (b)
Insert "by the Minister" after "operation" where secondly occurring.
[34] Section 118 (2) (c)
Insert "by the Minister" after "licensee".
[35] Section 118 (2) (d)
Insert "by the Minister" after "the coal exploration site".
[36] Section 118 (2) (e)
Omit the paragraph.
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[37] Section 118 (2) (f)
Insert "by the Minister" after "notified".
[38] Section 118 (4) and (5)
Insert after section 118 (3):
(4) The regulations may modify this Part in relation to its
application to a stop work order that specifies actions that
must be carried out.
(5) Without limiting the Minister's delegation powers under
section 212, the Minister may, by instrument in writing,
delegate to any or all government officials the functions of
giving notice or affixing copies of an order under this section.
[39] Section 120 Extension of stop work order
Omit "date" from section 120 (2). Insert instead "time".
[40] Section 121 Consultation about modification of proposed
detrimental action
Insert "carrying out or" after "person".
[41] Section 123 Costs of enforcing stop work orders
Omit "on whom the stop work order was imposed" from section 123 (2).
Insert instead "who was carrying out or proposing to carry out the action
to which the order relates".
[42] Section 123 (8)
Omit "to whom notice of the order was given under section 118 (2)".
Insert instead "carrying out the action, or proposing to carry out the action,
to which the order relates".
[43] Section 150 Bringing concerns regarding health, safety or welfare
to the attention of operators
Omit "under this Part" from section 150 (1) (a).
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[44] Part 10, Division 2, Subdivision 3
Insert after the heading to the subdivision:
Note. Section 47B of the Occupational Health and Safety Act 2000
provides that a person appointed as a government official under this Act
is taken to have been appointed as an inspector for the purposes of the
OH&S Act and has the powers of an inspector under that Act in relation
to coal workplaces.
[45] Section 154 Inspection powers
Omit the section.
[46] Section 155 Powers of entry at any time
Omit "coal operation".
Insert instead "place to which this Act applies".
[47] Section 161 Disqualification of site check inspectors
Omit "on an" from section 161 (2). Insert instead "after receiving an".
[48] Section 161 (2) (c1)
Insert after section 161 (2) (c):
(c1) the views of the site check inspector, and any involved
union that represents the site check inspector,
concerning the disqualification, and
[49] Section 161 (2) (d)
Insert "to his or her investigation" after "relevant".
[50] Sections 167 (c), 168 (c) and 202 (1)
Omit "occupational health and safety committee" wherever occurring.
Insert instead "OHS committee".
[51] Section 193 Regulations: specific miscellaneous powers
Omit "or discontinued" from section 193 (bp).
[52] Section 193 (by)
Omit "or former".
Page 108
Mine Health and Safety Bill 2004
Amendment of Coal Mine Health and Safety Act 2002 Schedule 3
[53] Section 193 (co)
Insert "or who visit mines or abandoned mines under the authority of a
permit under Division 4 of Part 6" after "operations".
[54] Section 193 (ct)
Insert after section 193 (cs):
(ct) regulating or preventing the provision of any financial
benefit or financial incentive to a person for the purpose
of discouraging that person from reporting a health or
safety matter.
[55] Section 203 Offences by corporations
Insert after section 203 (3):
(4) In the case of a corporation that is a local council, a member
of the council (in his or her capacity as such a director) is not
to be regarded as a director or person concerned in the
management of the council for the purposes of this section.
[56] Section 204 Aiding and abetting etc
Insert at the end of the section:
(2) Subsection (1) does not apply to a person who is acting in the
ordinary course of his or her duties as an officer of a Federal
or State industrial organisation of employees or employers.
[57] Section 211 Minister may exercise function of Chief Inspector
Omit the section.
[58] Section 220 Protection from personal liability
Omit "or any other" from section 220 (1).
[59] Schedule 1 Amendment of Occupational Health and Safety
Act 2000
Insert "of work" after "a place" in the definition of coal workplace (as
proposed to be inserted by Schedule 1 [2]).
Page 109
Mine Health and Safety Bill 2004
Schedule 3 Amendment of Coal Mine Health and Safety Act 2002
[60] Schedule 1 [5]
Omit the item. Insert instead:
[5] Section 17 Establishment of OHS committees, election of OHS
representatives and other agreed arrangements
Insert after section 17 (5):
(6) In the case of a coal workplace, a site check inspector
and the electrical check inspector (within the meaning
of the Coal Mine Health and Safety Act 2002) for that
workplace must be members of any OHS committee for
that workplace.
Note. The Coal Mine Health and Safety Act 2002 makes
provision for the election or appointment of certain people to carry
out inspections and perform other functions on behalf of people
who work at a coal workplace.
[61] Schedule 1 [6]
Omit the item.
[62] Schedule 1 [10A]
Insert after Schedule 1 [10]:
[10A] Section 69 Power of employees' representative to accompany
inspector
Insert at the end of the section:
(2) In the case of a coal workplace, the representative of the
employees referred to in this section should, to the
extent practicable, be a site check inspector elected
under the Coal Mine Health and Safety Act 2002 for
that workplace.
[63] Schedule 1 [14] and [15]
Omit Schedule 1 [14]. Insert instead:
[14] Section 133 Application of Act to mines and coal workplaces--
references to WorkCover
Insert "or a coal workplace" after "mine".
Page 110
Mine Health and Safety Bill 2004
Amendment of Coal Mine Health and Safety Act 2002 Schedule 3
[15] Section 133
Omit "Coal Mines Regulation Act 1982".
Insert instead "Coal Mine Health and Safety Act 2002".
[64] Schedule 2 Amendment of other Acts
Insert "or an open cut working within the meaning of that Act" after
"1982" in Schedule 2.5 [1].
[65] Schedule 2.7 [2]
Insert at the end of Schedule 2.7:
[2] Section 17G (a)
Insert ", the Chief Inspector (within the meaning of that Act)"
after "that Act".
[66] Schedule 2.12 [2]
Omit the item.
[67] Schedule 2.18-2.20
Omit the subschedules. Insert instead:
2.18 Workers Compensation Act 1987 No 70
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
mine means a mine within the meaning of the Coal Mines
Regulation Act 1982 as in force immediately before its repeal
by the Coal Mine Health and Safety Act 2002, but does not
include any place that, in accordance with section 8 (3) of the
Coal Mine Health and Safety Act 2002, is a place to which that
Act does not apply.
[2] Sections 4 and 52A (9) and Part 18 of Schedule 6
Omit "to which the Coal Mines Regulation Act 1982 applies"
wherever occurring.
Page 111
Mine Health and Safety Bill 2004
Schedule 3 Amendment of Coal Mine Health and Safety Act 2002
2.19 Workers' Compensation (Dust Diseases) Act 1942
No 14
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
mine means a mine within the meaning of the Coal Mines
Regulation Act 1982 as in force immediately before its repeal
by the Coal Mine Health and Safety Act 2002, but does not
include any place that, in accordance with section 8 (3) of the
Coal Mine Health and Safety Act 2002, is a place to which that
Act does not apply.
[2] Sections 3 (1) (definition of "worker") and 8 (2) (a)
Omit "to which the Coal Mines Regulation Act 1982 applies"
wherever occurring.
[3] Section 6 Constitution of Fund
Omit "owner" from section 6 (9) wherever occurring.
Insert instead "operator".
[4] Sections 6 (9) and 10 (2) (b)
Omit "to which the Coal Mines Regulation Act 1912 applies"
wherever occurring.
2.20 Workplace Injury Management and Workers
Compensation Act 1998 No 86
[1] Section 4 Definitions
Omit "coal mine to which the Coal Mines Regulation Act 1982
applies" from the definition of coal miner matter in section 4 (1).
Insert instead "mine".
[2] Section 4 (1), definition of "injury"
Omit "to which the Coal Mines Regulation Act 1982 applies" from
paragraph (c).
Page 112
Mine Health and Safety Bill 2004
Amendment of Coal Mine Health and Safety Act 2002 Schedule 3
[3] Section 4 (6)
Insert after section 4 (5):
(6) Certain references to "mines"
A reference to a mine in the definitions of coal miner
matter and injury is a reference to a mine within the
meaning of the Coal Mines Regulation Act 1982 as in
force immediately before its repeal by the Coal Mine
Health and Safety Act 2002, but does not include a
reference to any place that, in accordance with
section 8 (3) of the Coal Mine Health and Safety
Act 2002, is a place to which that Act does not apply.
[68] Schedule 3 Savings, transitional and other provisions
Omit "A direction" from clause 12.
Insert instead "Subject to the regulations, a direction".
[69] Schedule 3, clause 13
Omit "An approval".
Insert instead "Subject to the regulations, an approval".
[70] Schedule 3, clause 15
Omit the clause. Insert instead:
15 Saving of tourist and educational permits
(1) A permit issued under section 148 of the former Act that was
in force immediately before the repeal of the former Act is
taken to be a permit issued under section 107of this Act to the
person who was the owner (within the meaning of the former
Act) of the mine concerned immediately before the
commencement of this clause.
(2) Sections 108 (4) and 109 of this Act apply to and in respect of
any such permit.
Page 113
Mine Health and Safety Bill 2004
Schedule 4 Amendment of other legislation
Schedule 4 Amendment of other legislation
(Section 195)
4.1 Coroners Act 1980 No 27
Schedule 1 Special provisions--inquests concerning deaths or
suspected deaths in mines
Omit "Mines Inspection Act 1901" wherever occurring in clauses 1 and
2 (a).
Insert instead "Mine Health and Safety Act 2004".
4.2 Dams Safety Act 1978 No 96
Section 16 Entry, inspection, testing etc
Omit "of Mines" wherever occurring in section 16 (5) (b) (i) and (ii).
4.3 Dangerous Goods Act 1975 No 68
Sections 5 (3) and 41 (2)
Omit "Mines Inspection Act 1901" wherever occurring.
Insert instead "Mine Health and Safety Act 2004".
4.4 Defamation Act 1974 No 18
[1] Section 17U Reports under the Mine Health and Safety Act 2004
Omit "Mines Inspection Act 1901" wherever occurring.
Insert instead "Mine Health and Safety Act 2004".
[2] Section 17U (a)
Insert ", the Chief Inspector (within the meaning of that Act)" after "that
Act".
[3] Schedule 2 Proceedings of public concern and official and public
documents and records
Omit "Mines Inspection Act 1901" from clause 2 (19B).
Insert instead "Mine Health and Safety Act 2004".
Page 114
Mine Health and Safety Bill 2004
Amendment of other legislation Schedule 4
4.5 Electricity Safety Act 1945 (1946 No 13)
Section 4 Definitions
Omit "Mines Inspection Act 1901" from paragraph (d) of the definition of
Electrical installation in section 4 (1).
Insert instead "Mine Health and Safety Act 2004".
4.6 Industrial Relations Act 1996 No 17
Section 197A Appeals against acquittals in proceedings for
offences against occupational health and safety legislation
Insert after section 197A (10) (d):
(d1) the Mines Inspection Act 1901 and the regulations made
under that Act, and
(d2) the Mine Health and Safety Act 2004 and the
regulations made under that Act, and
4.7 Offshore Minerals Act 1999 No 42
Sections 123, 183, 259 and 308
Omit "Mines Inspection Act 1901" wherever occurring in the note to each
section.
Insert instead "Mine Health and Safety Act 2004".
4.8 Petroleum (Onshore) Act 1991 No 84
[1] Section 113 Officers
Omit "all inspectors of mines appointed under the Mines Inspection Act
1901" from section 113 (1).
Insert instead "all inspectors appointed under the Mine Health and Safety
Act 2004".
[2] Section 128 Work practices
Omit "Mines Inspection Act 1901" from section 128 (1).
Insert instead "Occupational Health and Safety Act 2000".
Page 115
Mine Health and Safety Bill 2004
Schedule 4 Amendment of other legislation
4.9 Radiation Control Act 1990 No 13
[1] Section 5 Application of Act to radioactive ore being mined or
treated
Omit "mine (as defined in section 4 (1) of the Mines Inspection
Act 1901)".
Insert instead "mine as defined in the Mine Health and Safety Act 2004".
[2] Section 38 Consultation and co-operation between Ministers
Omit "Mines Inspection Act 1901" from section 38 (b).
Insert instead "Mine Health and Safety Act 2004".
4.10 Rail Safety Act 2002 No 96
Section 6 Railways to which Act applies
Omit "Mines Inspection Act 1901" from section 6 (2) (a).
Insert instead "Mine Health and Safety Act 2004".
4.11 Surveying Act 2002 No 83
Sections 3 (1) and 13 (4) (f)
Omit "Mines Inspection Act 1901" wherever occurring.
Insert instead "Mine Health and Safety Act 2004".
4.12 Workers Compensation Regulation 2003
Clauses 203 and 213 (1)
Omit "to which the Coal Mines Regulation Act 1982 applies" wherever
occurring.
Page 116
Mine Health and Safety Bill 2004
Savings, transitional and other provisions Schedule 5
Schedule 5 Savings, transitional and other provisions
(Section 196)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect
from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date
that is earlier than the date of its publication in the Gazette, the
provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
Part 2 Provisions consequent on the enactment of
this Act
2 Definition
In this Part:
former Act means the Mines Inspection Act 1901.
3 Phasing-in of plans and systems
Without limiting clause 1, the regulations may make provision for
plans, systems or other arrangements developed under the former
Act and in force or having effect immediately before the repeal of
the former Act to be acceptable as fulfilling any requirement
imposed by or under this Act for the duration of any phasing-in
period prescribed by the regulations.
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Schedule 5 Savings, transitional and other provisions
4 Existing occupational safety and health policies
Without limiting clause 3, an occupational safety and health policy
prepared for a mine under the Mines Inspection General Rule 2000
as in force immediately before the repeal of the former Act
continues to have effect in respect of the mine after that date and
until replaced by a mine safety management plan prepared under
this Act.
5 Existing exemptions in relation to mines
A proclamation under section 1 (2) of the former Act and in force
immediately before the repeal of the former Act has effect as if it
were a regulation under section 7 (1) (a) of this Act (but may be
revoked by any such regulation).
6 Decisions of Minister under section 76 of former Act
(1) A decision of the Minister under section 76 of the former Act, and
in force immediately before the repeal of the former Act, that a mine
was not a mine to which the former Act applied has effect as if it
were a decision under section 8 of this Act.
(2) Subclause (1) does not prevent a further decision being made under
section 8 of this Act as to whether a mine that was the subject of a
decision under section 76 of the former Act is, or is not, a mine to
which this Act applies.
7 Agreement concerning hours of work
An agreement under section 29 (2) of the former Act in force
immediately before the repeal of the former Act continues to have
effect despite the provisions of section 76 of this Act. The
agreement cannot be varied but may be terminated by the operator
concerned or by the Chief Inspector.
8 Approvals concerning hours of work
Despite the provisions of section 76 of this Act, an approval under
section 29 (4) of the former Act in force immediately before the
repeal of the former Act is taken to be an approval authorising
employment contrary to the provisions of section 76 of this Act.
Such an approval continues to have effect until it expires, or is
revoked by the Chief Inspector, whichever occurs sooner.
Page 118
Mine Health and Safety Bill 2004
Savings, transitional and other provisions Schedule 5
9 Requirement of alteration of work hours
A direction given by the Chief Inspector under section 30 of the
former Act in force immediately before the repeal of the former Act
is taken to be a direction given under section 77 of this Act. Such a
direction continues to have effect until it expires, or is revoked by
the Chief Inspector, whichever occurs sooner.
10 Existing certificates of competency
On and from the repeal of the former Act:
(a) a certificate of competency as a production manager granted
under section 7 of the former Act is taken to have been
granted under section 118 of this Act in relation to the
functions ordinarily required to be exercised by the holder of
a position prescribed by the regulations for the purposes of
this clause, and
(b) a certificate of competency as shotfirer granted under section
18G of the former Act is taken to have been granted under
section 118 of this Act in relation to the functions ordinarily
required to be exercised by the holder of a position prescribed
by the regulations for the purposes of this clause, and
(c) a certificate of competency as an engine driver relating to
winders and hoists granted under section 14 of the former Act
is taken to have been granted under section 118 of this Act in
relation to the functions ordinarily required to be exercised by
the holder of a position prescribed by the regulations for the
purposes of this clause.
11 Existing tourist and educational permits
(1) A permit issued under section 48C of the former Act and in force
immediately before the repeal of the former Act is taken to be a
permit issued under section 85 of this Act to the person who was the
owner (within the meaning of the former Act) of the mine concerned
immediately before the commencement of this clause.
(2) Sections 86 (4) and 87 of this Act apply to and in respect of any such
permit.
Page 119
Mine Health and Safety Bill 2004
Schedule 5 Savings, transitional and other provisions
12 Place of accident or occurrence not to be disturbed
Division 4 of Part 4 of the former Act continues to apply for 3 days
after the repeal of the former Act as if it had not been repealed.
13 Holders of positions in management structure
Without limiting clause 1, the regulations may make provision for a
person who held a position in the management structure of a mine
immediately before the repeal of the former Act to be taken to hold
a prescribed position in the management structure of a mine under
this Act.
14 Notification of certain events and other matters
Part 7 extends to an event that occurred in the 2 days immediately
before the commencement of that Part.
15 Continuation of Boards of Inquiry
A Board of Inquiry constituted under the former Act and active
immediately before the repeal of the former Act continues under this
Act as if it were constituted under this Act and may continue any
special inquiry under that Act as if the Act had not been repealed. In
particular, section 47L of the former Act continues to apply to such
a special inquiry as if it had not been repealed.
16 Site check inspectors
A person who held office under the former Act as a check inspector
or employee representative for a mine immediately before the repeal
of the former Act is taken to have been appointed as a site check
inspector under this Act for the mine. The person's appointment as
a site check inspector under this Act is taken to have commenced
when the person was elected to the office concerned under the
former Act.
Page 120
Mine Health and Safety Bill 2004
Savings, transitional and other provisions Schedule 5
17 References to former Act
On and from the commencement of this clause, a reference in any
Act other than this Act, in any instrument made under another Act,
or in any document of any kind, to the former Act is to be read as a
reference to this Act.
18 Operation of Part
The operation of this Part is subject to the regulations.
Page 121
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