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The resources industry in Queensland will see significant changes as of 20 May 2020, particularly in relation to safety and health, as a result of Parliament passing the Mineral and Energy Resources and Other Legislation Amendment Bill 2020 (the Bill).

Industrial manslaughter

Arguably the greatest impact of this legislation is the introduction of industrial manslaughter offences in the Coal Mining Safety and Health Act 1999 (CMSHA), the Mining and Quarrying Safety and Health Act 1999 (MQSHA), the Explosives Act 1999 (EA) and the Petroleum and Gas (Production and Safety) Act 2004 (PGPSA).

The resources industry was exempt from the addition of industrial manslaughter laws when the offence was included in the Work Health and Safety Act 2011 in 2017.  This amendment creates consistency in how deaths of workers on all Queensland worksites are treated, with the intention of aligning the Government’s commitment to ensuring the safety and health of all workers across all industries. 

The maximum penalties for industrial manslaughter, in which a workplace fatality is caused by the criminal negligence of senior management, are 20 years imprisonment for an individual and a fine of up to $13.3 million for a corporation. 

Industrial manslaughter is an indictable offence and the usual criminal procedural requirements apply and prosecutions for this offence will proceed in the same manner as those under the Criminal Code Act 1999 (Qld) The defence of mistake of fact under section 23 of the Criminal Code does not apply, which means the defence is unavailable for industrial manslaughter. 

Employers in the resources sector should take note of the definitions included in the various Acts:

employer

A person who employs or otherwise engages a worker (for example in mine, operating plant).

executive officer

A person who is concerned with or takes part in the corporation’s management, whether the person is a director or the person’s position is given the name of executive officer.

senior officer

a) if a corporation: an executive officer

b) otherwise: the holder of an executive position who makes or takes part in making substantial decisions affecting all of a substantial part of the employer’s functions

 

The offence of industrial manslaughter only applies to a fatality in which the accused meets one of the definitions.

Industrial manslaughter

  • an employer / senior officer commits an offence if a worker dies in the course of carrying out work, or is injured in the course of carrying out work and later dies
  • the employer’s / senior officer’s conduct causes the death of the worker, and
  • the employer / senior officer is negligent about causing the death of the of the worker by the conduct.

Other changes to note

Statutory office holders

Particular to the CMSHA, only persons who are employees of a coal mine operator may be appointed as certain statutory office holders. The rational of this amendment is to enable statutory office holders to make safety complaints, raise safety issues or assist officials in relation to safety issues without fear of reprisal or impact on their appointment.   

Clarification of costs orders

The uncertainty of costs for litigation in the Industrial Magistrates Court has been addressed.  The CMSHA and the MQSHA have been amended to so that costs orders for representation may be made for criminal proceedings in that jurisdiction.

Commentary

The amendments attracted a great deal of commentary from the time the Bill was introduced in early 2020.  Given the importance of the resources sector to Queensland, as a major employer and most significant source of revenue for the State, any amendments to the relevant legislation will be scrutinised. 

Regardless of whether one is for or against these amendments, the aim of strengthening the safety culture in the resources sector can only be viewed as a positive goal.

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