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New South Wales
Coal Mine Health and Safety Bill 2002
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Certain things are part of a coal operation 7
5 When an employee is at work 7
6 Risks arising from activities at work 7
7 Notes 7
Part 2 Application of Act
8 Application of Act 8
9 Act to bind Crown 8
Part 3 Objects of Act
10 Objects of Act 9
Coal Mine Health and Safety Bill 2002
Contents
Page
Part 4 Application of Occupational Health and Safety
Act 2000
11 Act to be read as part of OH&S Act 10
12 Act adds to protection provided by the OH&S Act 10
13 OH&S Act prevails 10
14 Compliance with this Act is no defence to prosecution
under OH&S Act 11
15 Relationship between duties under this Act and OH&S Act 11
16 No double jeopardy 11
Part 5 Duties relating to health, safety and welfare at
coal operations
Division 1 Duties of colliery holders
17 Duty to nominate the operator of a coal operation 12
18 Colliery holder must give operator health and safety
information 13
19 Penalty for offence against this Division 14
Division 2 Duties of operators of coal operations
Subdivision 1 Health and safety management systems
20 Duty of operator to prepare health and safety management
system 14
21 No mining without health and safety management system 14
22 Duty of operator to ensure compliance with health and
safety management system 15
23 Contents of health and safety management system 15
24 Consultation 16
25 Information to be supplied to Chief Inspector and industry
check inspector 16
26 Chief Inspector may object 16
27 Industry check inspector may object 17
28 Health and safety management system must be reviewed 17
29 Amendment of health and safety management system 18
30 Access to health and safety management system 19
31 Former operator must return information 19
Subdivision 2 Major hazard management plans
32 Regulations may prescribe "major hazard" 19
33 Minister may require other major hazards to be identified 19
34 Minister may declare operation is subject to risk of major
hazard 20
35 Duty to prepare one or more major hazard management
plans 20
Contents page 2
Coal Mine Health and Safety Bill 2002
Contents
Page
36 Contents of major hazard management plans 20
Subdivision 3 Management structure
37 Operator must prepare management structure 20
38 Register of persons occupying positions 21
Subdivision 4 Duties regarding contractors
39 Operator to prepare contractor management plan 22
40 Content of contractor management plan 22
41 Operator to ensure contractor's familiarity with systems 22
42 Duties of operator regarding contractors 22
43 Contractor must be given copy of health and safety
management system 24
Subdivision 5 Emergency management systems
44 Meaning of "emergency" 24
45 Operator must prepare emergency management system 24
46 No mining without emergency management system 24
47 Contents of emergency management system 24
48 Consultation 25
49 Information to be supplied to Chief Inspector and industry
check inspector 25
50 Copy to be made available 26
51 Competence and training of personnel 26
52 Review 26
Subdivision 6 High risk activities
53 Meaning of "high risk activity" 27
54 Requirement to notify high risk activities 27
Subdivision 7 Keeping of records and reporting
55 Keeping of records by operators 27
56 Reporting by operators 27
Subdivision 8 Penalties
57 Penalty for offence against this Division 28
Subdivision 9 Saving of certain notices and directions
58 Saving of certain notices and directions 28
Contents page 3
Coal Mine Health and Safety Bill 2002
Contents
Page
Division 3 Duties and rights of employees
59 Duties of employees 28
60 Rights of employees 29
61 Employees cannot be unlawfully dismissed or victimised 29
62 Division applies to employees of contractor 30
Division 4 Duties of those in management positions
63 Duties of manager of mining engineering 31
64 Duties of manager of electrical engineering 31
65 Duties of manager of mechanical engineering 31
66 Those in management positions must comply with health
and safety management system 32
67 Those in management positions must inform operator of
non-compliance 32
68 Penalty for offence against this Division 32
Division 5 Duties of supervisors
69 Supervisor must comply with health and safety
management system 32
70 Supervisor must inform operator of non-compliance 32
71 Penalty for offence against this Division 33
Division 6 Duties of contractors
72 Contractor must comply with operator's health and safety
management system 33
73 Duties of contractors regarding safe work method statement 33
74 Contractor to ensure work carried out in accordance with
safe work method statement 34
75 Contractor must prepare and implement OH&S management
plan 34
76 Contractor's duties regarding subcontractors 35
77 Penalty for offence against this Division 36
Division 7 Duties of exploration holders and others to
give notice
78 Duty to give notice of drilling operations 37
79 Other duties to give notice 37
80 Penalty for offence against this Division 37
Division 8 General
81 Person may have more than one duty 38
82 Relationship between duties under this Part and regulations 38
83 Alternative verdicts 38
84 Multiple contraventions of general duties under this Part 38
85 Civil liability not affected by this Part 39
Contents page 4
Coal Mine Health and Safety Bill 2002
Contents
Page
Part 6 Safety of coal operations
Division 1 Methods or systems of working mines
86 Barriers and protective pillars 40
87 Minister may give directions regarding barriers and pillars 40
88 Minister may direct carrying out of works 41
89 Minister may grant approval to mine barrier or pillar 41
90 Penalty for offence against this Division 42
Division 2 Closing of shafts and outlets in abandoned
mines
91 Application of this Division 42
92 Closing of shafts and outlets 42
93 Chief Inspector may require further work 43
94 Obstruction of operator of mine 43
95 Certain unenclosed shafts or outlets to be public nuisances 43
96 Owners of land on which abandoned mines are situated
may be required to close shafts and outlets 44
97 Penalty for offence against this Division 45
Division 3 Control of emplacement areas
98 Definitions 45
99 Minister may direct occupier of land to make emplacement
area safe 46
100 Establishment of emplacement areas 46
101 Discontinuance of use of emplacement areas 46
102 Construction and use of emplacement areas 47
103 Date of effect of decisions and notices 47
104 Penalty for offence against this Division 48
Division 4 Tourist and educational activities
105 Definitions 48
106 Tourist activities in former mines or use of former mines for
educational purposes not allowed without a permit 48
107 Issue of tourist and educational permits 49
108 Revocation or variation of permits 49
109 Penalty for offence against this Division 49
Part 7 Notification of incidents
Division 1 Notification of certain incidents
110 Notification of certain incidents and other matters 51
111 Non-disturbance of plant involved in notifiable incidents
(and of surrounding area) 52
112 Penalty for offence against this Division 53
Contents page 5
Coal Mine Health and Safety Bill 2002
Contents
Page
Division 2 Inquiries
113 Boards of Inquiry 53
114 Witnesses and evidence at special inquiries 54
115 Report by Board of Inquiry 55
116 No appeal against exercise of functions by Boards of Inquiry 55
117 Penalty for offence against this Division 56
Part 8 Stop work orders
118 Minister may make stop work order 57
119 Prior notification of making of stop work order not required 57
120 Extension of stop work order 58
121 Consultation about modification of proposed detrimental
action 58
122 Stop work order prevails over other instruments 58
123 Costs of enforcing stop work order 58
124 Offence: failure to comply with a stop work order 59
Part 9 Competence standards
Division 1 Key obligations
125 Regulations may specify functions to which this Part applies 61
126 Operator to ensure only competent people employed to
perform specified functions 61
127 Contractor to ensure only competent people employed to
perform specified functions 61
128 Only competent people to perform specified functions 61
129 Penalty for offence against this Division 61
Division 2 Coal Competence Board
130 Constitution of Coal Competence Board 62
131 Ministerial control of Board 62
132 Membership of Board 62
133 Procedure of Board 62
Division 3 Functions of Board
134 Functions of Board 63
135 Annual report 63
Division 4 Certificates of competence
136 Certificates of competence may be granted 63
137 Regulations concerning competence standards 64
138 Ministerial orders 64
Contents page 6
Coal Mine Health and Safety Bill 2002
Contents
Page
Division 5 Offences
139 Offences: certificates of competence 65
140 Offence of forging or having forged document 66
141 False or misleading statements 66
142 Offences if a person's competence is declared as not
recognised 66
143 Penalty for offence against this Division 66
Part 10 Oversight of coal operations
Division 1 Outline of this Part
144 Outline of this Part 68
Division 2 Inspections by government officials
Subdivision 1 Appointment of government officials
145 Appointment of government officials 68
146 Qualifications of inspectors 69
147 Appointment of consultants as investigators 69
148 Absence of Chief Inspector 69
Subdivision 2 Functions of government officials
149 Functions of Chief Inspector 69
150 Bringing concerns regarding health, safety or welfare to
the attention of operators 70
151 Consideration and investigation of complaints 70
152 Audit and review of health and safety management systems 70
153 Additional functions 71
Subdivision 3 Powers of government officials
154 Inspection powers 71
155 Powers of entry at any time 71
156 Power to require plan 72
Division 3 Inspections on behalf of work force
Subdivision 1 Site check inspectors
157 Site check inspectors 72
158 Trigger for election 72
159 Conduct of election of site check inspectors 72
160 Term of office 73
161 Disqualification of site check inspectors 74
162 Vacation of office of site check inspector 74
163 Notification of election 75
Contents page 7
Coal Mine Health and Safety Bill 2002
Contents
Page
164 Functions of site check inspectors 76
165 Training of site check inspectors 76
166 Rights of site check inspectors 76
167 Duties of operators in relation to site check inspectors 77
168 Duties of contractors in relation to site check inspectors 78
169 Assistance to site check inspectors 79
170 Reports by site check inspectors 79
171 Reporting of dangers 79
Subdivision 2 Electrical check inspectors
172 Electrical check inspectors 80
Subdivision 3 Industry check inspectors
173 Appointment of industry check inspectors 81
174 Functions of industry check inspectors 81
175 Powers of industry check inspectors to suspend operations 82
176 Industry check inspector may delegate functions to site
check inspector 83
177 Care to be taken 83
178 Identification of industry check inspectors 83
Subdivision 4 Inspections on behalf of work force
179 Inspections by check inspectors 84
180 Check inspector may be accompanied by operator's
representative 84
181 Check inspector must not leave work without prior notice 84
Division 4 Offences
182 Offence of failing to comply with requirement of
government official 85
183 Offence of interfering with check inspector or
government official 85
184 Offence of impersonating a check inspector or
government official 85
Part 11 Coal mining industry codes of practice
185 Purpose of industry codes of practice 86
186 Minister may prepare draft codes 86
187 Consultation on draft codes 86
188 Approval of codes by Minister 86
189 Publication, commencement and availability of codes 86
190 Amendment or revocation of codes 87
191 Use of codes 87
Contents page 8
Coal Mine Health and Safety Bill 2002
Contents
Page
Part 12 Regulations
192 Regulations: general power 88
193 Regulations: specific miscellaneous powers 88
194 Regulations regarding classification of underground mines 95
195 Regulations may require verification by statutory declaration 95
196 Regulations may prescribe decisions that are to be
reviewable by Administrative Decisions Tribunal 95
197 Regulations: adapting duties under Part 5 95
198 Regulations concerning application of Part 5 to contractors 96
199 Regulations may adopt other publications 96
200 Regulations may create criminal offences 96
201 Regulations may exempt from obligations under the
regulations 96
202 Regulations relating to consultation 96
Part 13 Miscellaneous
Division 1 Enforcement
203 Offences by corporations 97
204 Aiding or abetting the commission of offences 97
205 Defence 98
206 Defences to criminal proceedings not affected by this Act 98
Division 2 Information
207 Disclosure of information 98
208 False or misleading statements 99
209 Defence 99
Division 3 Exercise and delegation of functions
210 Chief Inspector subject to Ministerial control 99
211 Minister may exercise function of Chief Inspector 99
212 Delegation of functions by the Minister 99
213 Delegation of functions by Chief Inspector 100
214 Delegation of functions by Director-General 100
Division 4 Service of documents
215 Service of documents 100
216 Supply of documents to an operator 101
217 Supply of documents to Chief Inspector 101
218 Supply of documents to an industry check inspector 101
Division 5 Fees
219 Fees 101
Contents page 9
Coal Mine Health and Safety Bill 2002
Contents
Page
Division 6 General
220 Protection from liability 102
221 No obligation to exercise power 102
Part 14 Repeals and amendments
222 Repeals 103
223 Amendment of Occupational Health and Safety Act 2000
No 40 103
224 Amendment of other Acts 103
225 Savings, transitional and other provisions 103
226 Review of Act 103
Schedules
1 Amendment of Occupational Health and Safety Act 2000 104
2 Amendment of other Acts 107
3 Savings, transitional and other provisions 115
Contents page 10
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, , 2002
New South Wales
Coal Mine Health and Safety Bill 2002
Act No , 2002
An Act to secure the health, safety and welfare of persons in connection with
coal operations; to repeal the Coal Mines Regulation Act 1982; 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 Coal Mine Health and Safety Bill 2002
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Coal Mine Health and Safety Act 2002.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Definitions
In this Act:
Board means the Coal Competence Board constituted by section
130.
Board of Inquiry means a Board of Inquiry constituted under
section 113.
certificate of competence means a certificate granted under section
136 that is in force.
check inspector means a site check inspector, an electrical check
inspector or an industry check inspector.
Chief Inspector means the person appointed as Chief Inspector
under section 145.
coal includes oil shale and kerosene shale, but does not include peat.
coal exploration site means a place where drilling from the surface
is undertaken for the purpose of discovering or proving the presence
of coal.
coal mining industry code of practice means a coal mining industry
code of practice under Part 11.
coal operation means a place at which coal is mined that is a place
of work to which this Act applies and includes the places that are
taken to be part of a coal operation under section 4.
Note. This Act applies to all places of work that are within a colliery holding, a
coal exploration site or the subject of a licence to mine coal under the Offshore
Minerals Act 1999.
Page 2
Coal Mine Health and Safety Bill 2002 Clause 3
Preliminary Part 1
coal preparation plant means land, buildings and works that are, or
may be, used for or in connection with:
(a) the treatment of coal to improve it as a marketable product,
and
(b) the dispatch of the coal after it has been so treated.
colliery holder means a person who has the right to mine for coal or
to carry out coal mining purposes on any colliery holding.
colliery holding means a colliery holding registered in accordance
with section 163 of the Mining Act 1992.
competent means having appropriate experience, knowledge, skills
and capabilities.
contractor, in relation to a coal operation, means a person who is not
an employee employed to work at a coal operation, who undertakes
work at the coal operation, but does not include the operator of the
coal operation.
contractor management plan for a coal operation means a
contractor management plan prepared for the coal operation under
section 39.
Department means the Department of Mineral Resources.
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.
drift means a roadway driven in stone or alluvial matter, but does
not include a shaft.
electrical check inspector for a coal operation means a person
elected under section 172 as an electrical check inspector for the
coal operation.
emergency management system for a coal operation means an
emergency management system prepared for the coal operation
under section 45.
employee means an individual who works under a contract of
employment or apprenticeship.
employer means a person who employs persons under contracts of
employment or apprenticeship.
evidence of competence means a certificate of competence or other
evidence of competence acceptable to the Minister.
Page 3
Clause 3 Coal Mine Health and Safety Bill 2002
Part 1 Preliminary
exercise a function includes perform a duty.
exploration holder means a person registered as the holder of:
(a) an authority granted under the Mining Act 1992, or
(b) a licence granted under the Offshore Minerals Act 1999.
function includes power, duty and authority.
government official means a person appointed under section 145.
health and safety management system for a coal operation means a
health and safety management system prepared for the coal
operation under section 20.
industry check inspector means a person appointed under section
173.
inflammable gas means methane, carbon monoxide or hydrogen.
inspector means a person appointed as an inspector under section
145.
investigator means a person appointed as an investigator under
section 145 or 147.
involved union means a Federal or State industrial organisation of
employees of which a person employed to engage in work at a coal
operation is a member, where that person is qualified to be such a
member by virtue of the work that the person performs in his or her
employment at the coal operation.
major hazard management plan for a coal operation means a major
hazard management plan prepared for the coal operation under
section 35.
management structure for a coal operation means the management
structure prepared for the coal operation under section 37.
manager of electrical engineering for a coal operation means the
person nominated as the manager of electrical engineering for the
coal operation in the management structure for the coal operation.
manager of mechanical engineering for a coal operation means the
person nominated as the manager of mechanical engineering for the
coal operation in the management structure for the coal operation.
manager of mining engineering for a coal operation means the
person nominated as the manager of mining engineering for the coal
operation in the management structure for the coal operation.
Page 4
Coal Mine Health and Safety Bill 2002 Clause 3
Preliminary Part 1
methane includes ethane, propane and similar hydrocarbon gases.
mine:
(a) when used as a noun, means any coal operation within which
coal is disturbed in its natural place of formation, and
(b) when used as a verb, means disturb, remove, cart, carry, crush
or otherwise deal with coal or stone for the purpose of
obtaining coal for profit or improving coal, but does not
include:
(i) to explore for coal by drilling from the surface, or
(ii) to blend coal where this is done elsewhere than within
a colliery holding.
mine safety officer means a person appointed as a mine safety
officer under section 145.
open cut mine means a mine in which persons are not employed
underground when the mine is being worked.
operator:
(a) in relation to a coal operation that is a place within a colliery
holding, means:
(i) the colliery holder, if the colliery holder nominated
himself, herself or itself as the operator of the coal
operation under section 17, or
(ii) the person nominated by the colliery holder as the
operator of the coal operation, and accepted by the
Chief Inspector, under section 17, or
(iii) the colliery holder, if the colliery holder has not
nominated someone under section 17 or any
nomination has been rejected, or
(b) in relation to any other coal operation, means the person with
the day to day management of the coal operation.
outlet, in relation to a mine, means a means of access to or exit from
the mine for persons, materials, coal or stone.
place of work means premises where people 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.
Page 5
Clause 3 Coal Mine Health and Safety Bill 2002
Part 1 Preliminary
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 Coal Mines Regulation Act 1982, or
(c) the Occupational Health and Safety Act 2000, or
(d) the Occupational Health and Safety Act 1983.
risks--see section 6.
roadway means any passageway in a mine formed by the removal
of coal or stone and through which is passed or is proposed to be
passed coal, stone, persons, materials or ventilation.
safe work method statement for a coal operation means a safe work
method statement prepared under section 73.
shaft includes a staple shaft.
site check inspector, in relation to a coal operation, means a person
elected under section 157 as a site check inspector for the coal
operation.
stone includes rock, clay, shale, soil and sand, but does not include
coal.
stop work order means an order under section 118.
subcontractor means a contractor who has been contracted by a
person other than the coal operator.
supervisor means a person nominated as a supervisor in the
management structure for a coal operation.
underground mine means a mine in which persons are employed
underground when the mine is being worked.
vehicle includes any mechanically driven machine capable of
moving under its own power.
Page 6
Coal Mine Health and Safety Bill 2002 Clause 4
Preliminary Part 1
4 Certain things are part of a coal operation
For the purposes of this Act, any building, structure, pit, shaft, drive,
level, drift, excavation or work within a colliery holding:
(a) that is in the course of construction and that is intended to be
part of a coal operation, or
(b) that is a part of a coal operation and that is in the course of
being abandoned, or
(c) that is a part of a coal operation the operations at or in which
are in the course of being discontinued,
is taken to be part of a coal operation.
5 When an employee is at work
For the purposes of this Act, an employee is at work at a coal
operation throughout the time when the employee is at the coal
operation, but not otherwise.
6 Risks arising from activities at work
For the purposes of this Act, risks arising out of the activities of
people 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.
7 Notes
Notes included in this Act do not form part of this Act.
Page 7
Clause 8 Coal Mine Health and Safety Bill 2002
Part 2 Application of Act
Part 2 Application of Act
8 Application of Act
(1) This Act applies to all places of work that are:
(a) within a colliery holding, or
(b) a coal exploration site, or
(c) the subject of a licence to mine coal under the Offshore
Minerals Act 1999.
(2) Part 6 also applies to abandoned mines, emplacement areas and
former mines.
9 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 8
Coal Mine Health and Safety Bill 2002 Clause 10
Objects of Act Part 3
Part 3 Objects of Act
10 Objects of Act
The objects of this Act are:
(a) to assist in securing the objects of the Occupational Health
and Safety Act 2000 in relation to coal operations (including
the object of securing and promoting the health, safety and
welfare of people at work at coal operations or related places),
and
(b) to put in place special provisions necessary for the control of
particular risks arising from the mining of or exploration for
coal, and
(c) to ensure that effective provisions for emergencies are
developed and maintained at coal operations and related
places.
Page 9
Clause 11 Coal Mine Health and Safety Bill 2002
Part 4 Application of Occupational Health and Safety Act 2000
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 people at work, including people at work at a coal
operation. This Part explains how this Act fits in with the Occupational Health
and Safety Act 2000. Basically, this Act creates additional protections, rights
and obligations necessary because of the special risks associated with coal
operations. It should be read as if it were part of the Occupational Health and
Safety Act 2000. This Part makes it clear that this Act provides for an increase
in the standard of protection of people at work at coal operations and never
results in lesser protection than the Occupational Health and Safety Act 2000
would otherwise provide.
11 Act to be read as part of OH&S Act
This Act and the regulations made under this Act are to be read and
interpreted as if they formed part of the Occupational Health and
Safety Act 2000.
12 Act adds to protection provided by the OH&S Act
If a provision of the Occupational Health and Safety Act 2000 or the
regulations made under that Act applies to coal operations, that
provision continues to apply, and must be observed, in addition to
this Act or the regulations made 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 coal operations. 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.
13 OH&S Act prevails
(1) If a provision of this Act or the regulations made under this Act is
inconsistent with a provision of the Occupational Health and Safety
Act 2000 or the regulations made under that Act, the Occupational
Health and Safety Act 2000 or the regulations made under it prevail
to the extent of the inconsistency.
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 and not with this Act.
If provisions of both Acts deal with the same matter but it is possible to comply
with both provisions, then a person must comply with both Acts.
(2) This section is subject to section 122.
Page 10
Coal Mine Health and Safety Bill 2002 Clause 14
Application of Occupational Health and Safety Act 2000 Part 4
14 Compliance with this Act is no defence to prosecution under OH&S
Act
Compliance with this Act or the regulations made under this Act, 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 made
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 made under this Act.
15 Relationship between duties under this Act and OH&S Act
Evidence of a relevant contravention of this Act or the regulations
made under this Act is admissible in any proceedings for an offence
against the Occupational Health and Safety Act 2000 or the
regulations made under that Act.
16 No double jeopardy
Where an act or omission constitutes an offence:
(a) under this Act or the regulations made under this Act, and
(b) under the Occupational Health and Safety Act 2000 or the
regulations made under that Act,
the offender is not liable to be punished twice in respect of the
offence.
Page 11
Clause 17 Coal Mine Health and Safety Bill 2002
Part 5 Duties relating to health, safety and welfare at coal operations
Part 5 Duties relating to health, safety and welfare
at coal operations
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 coal operations.
This Part imposes extra duties.
Division 1 Duties of colliery holders
Note.
Section 8 of the Occupational Health and Safety Act 2000 imposes duties on
employers. If a colliery holder nominates himself, herself or itself as the operator
of the coal operation, the colliery holder has the duties in that section as the
employer of its employees and has duties in relation to other people who work
at the coal operation.
Section 10 of the Occupational Health and Safety Act 2000 imposes duties on
a person who has control of premises used by people as a place of work. If a
colliery holder nominates a person other than himself, herself or itself as the
operator of the coal operation, the colliery holder is, for the purpose of that Act,
a person who has control of the premises constituted by the coal operation and
so has duties under that section.
This Division imposes some extra duties on colliery holders.
17 Duty to nominate the operator of a coal operation
(1) A colliery holder must not undertake any mining, or allow any other
person to undertake any mining, at a coal operation within the
colliery holding unless the colliery holder has nominated one person
who is the employer with the day to day control of the coal operation
as the operator of the coal operation.
Note. Because of the definition of mine (as a verb), this obligation applies to
coal mines and preparation plants but not coal exploration sites.
(2) A nomination must be made in writing to the Chief Inspector.
(3) A colliery holder may nominate himself, herself or itself as the
operator of a coal operation in the colliery holding.
(4) If there is more than one separate and distinct coal operation within
a colliery holding, the colliery holder may nominate the person who
is the employer with the day to day control of each coal operation
within the colliery holding.
(5) A nomination under this section must be in the form prescribed by
the regulations.
Page 12
Coal Mine Health and Safety Bill 2002 Clause 18
Duties relating to health, safety and welfare at coal operations Part 5
(6) The Chief Inspector must tell the colliery holder who made the
nomination if the nomination has been rejected. This must be done
within 28 days of receiving the nomination.
(7) 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 coal
operation, or
(b) if more than one nominated operator is nominated and the
Chief Inspector believes:
(i) that allowing the number of persons nominated to be
operators would be detrimental to the safety of one or
more coal operations, or
(ii) that the different parts of the colliery holding nominated
under subsection (4) are not sufficiently distinct to
warrant the appointment of separate operators, or
(c) in circumstances prescribed by the regulations.
(8) If a nomination is rejected it is taken not to have been made.
(9) If an operator whose nomination has not been rejected under this
section ceases to be, or proposes to cease to be, the operator of the
coal operation, the colliery holder must not undertake any mining,
or allow any other person to undertake any mining, at the coal
operation unless the colliery holder has nominated another operator
of the coal operation. This section applies to a further nomination in
the same way as it applies to an initial nomination.
(10) This section does not require a colliery holder to nominate an
operator if a previous colliery holder of the colliery holding
nominated an operator other than himself, herself or itself and that
nomination was accepted.
18 Colliery holder must give operator health and safety information
(1) If a colliery holder nominates a person other than himself, herself or
itself as the operator of a coal operation, the colliery holder must
provide the person nominated with all information available to the
colliery holder that may reasonably be relevant to the development
and implementation of a health and safety management system for
the coal operation (including any major hazard management plans
that form part of that system).
(2) The regulations may prescribe the information that must be
provided under this section.
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Clause 19 Coal Mine Health and Safety Bill 2002
Part 5 Duties relating to health, safety and welfare at coal operations
19 Penalty for offence against this Division
A colliery 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 coal operations
Note.
Section 8 (1) of the Occupational Health and Safety Act 2000 imposes duties on
employers in relation to their employees. The operator of a coal operation has
those duties in relation to its employees. This Division imposes some extra
duties on operators, including in relation to other people who work at the coal
operation.
Subdivision 1 Health and safety management systems
20 Duty of operator to prepare health and safety management system
(1) The operator of a coal operation at which mining is carried out must
prepare a statement in accordance with this Act and the regulations,
stating how the health and safety of the people who work at the coal
operation, or who are directly affected by the coal operation, will be
protected. This is a health and safety management system.
(2) For the purposes of this section, a person may be directly affected
by a coal operation even if the person is not inside the coal
operation.
(3) The regulations may specify which people are directly affected by a
coal operation for the purposes of this Subdivision.
(4) This section does not require an operator to prepare a health and
safety management system for a coal operation if a previous
operator of the coal operation prepared a system that complies with
this Act and the regulations.
21 No mining without health and safety management system
The operator of a coal operation must ensure that mining is not
carried out by any person at the coal operation unless a health and
safety management system that complies with this Act and the
regulations is implemented for the coal operation.
Note. Because of the definition of mine (as a verb), this Subdivision applies to
coal mines and preparation plants but not coal exploration sites.
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22 Duty of operator to ensure compliance with health and safety
management system
The operator of a coal operation must ensure that mining at the coal
operation is carried out in compliance with the health and safety
management system for the coal operation. This includes activities
undertaken by contractors who undertake work at the coal
operation.
23 Contents of health and safety management system
(1) The purpose of a health and safety management system must be to
provide the primary means by which an operator ensures the health,
safety and welfare of employees and others at a coal operation and
of people directly affected by a coal operation, including people
who are not at the coal operation.
(2) A health and safety management system for a coal operation 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 coal operation, and
(b) for the development of controls for those risks, and
(c) for the reliable implementation of those controls.
(3) A health and safety management system must include:
(a) system elements (which must include, but are not limited to,
health and safety policy, risk management, training and
competence, information control and system evaluation), and
(b) any major hazard management plans required for the coal
operation under Subdivision 2, and
(c) the management structure of the coal operation required under
Subdivision 3, and
(d) any contractor management plan required for the coal
operation under Subdivision 4, and
(e) any other matter prescribed by the regulations.
(4) The regulations may require a health and safety management system
to be consistent with any management system standard specified in
the regulations.
(5) The regulations may specify matters that do not need to be included
in a health and safety management system.
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Clause 24 Coal Mine Health and Safety Bill 2002
Part 5 Duties relating to health, safety and welfare at coal operations
24 Consultation
The people who work at the coal operation must be consulted, in the
manner required by the regulations, during the preparation of the
health and safety management system and before its amendment.
25 Information to be supplied to Chief Inspector and industry check
inspector
(1) Information relating to the health and safety management system for
a coal operation must be supplied by the operator of the coal
operation to the Chief Inspector and an industry check inspector.
(2) The regulations may specify:
(a) the form and content of information to be supplied, which
may include, but is not limited to, the elements of the health
and safety management system to be supplied, and
(b) whether any summary of the health and safety management
system is to be supplied and, if so, what summary.
26 Chief Inspector may object
(1) The Chief Inspector may object to a health and safety management
system if he or she forms the view:
(a) that the health and safety management system does not
comply with the requirements of this Act or the regulations, or
(b) that there was insufficient or inadequate consultation in the
preparation of the health and safety management system, or
(c) that the health and safety management system is insufficient
to protect the health and safety of those who work at the coal
operation or those affected by the coal operation.
(2) If the Chief Inspector has an objection to a health and safety
management system for a coal operation, the Chief Inspector must
notify the operator of the coal operation in writing of the objection.
The health and safety management system must not be implemented
until the objection has been resolved.
(3) If the Chief Inspector notifies an operator of an objection, the
operator must revise the health and safety management system,
taking into account any matters raised in the objection, and submit
it to the Chief Inspector within the time prescribed by the
regulations.
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(4) If the Chief Inspector has not notified the operator of an objection
within 21 days after receiving information concerning the system, or
within any other period prescribed by the regulations, the operator
may implement a health and safety management system. The system
may not be implemented before that period ends.
27 Industry check inspector may object
(1) An industry check inspector may raise objections with the Chief
Inspector regarding the content of a health and safety management
system.
(2) The Chief Inspector must have regard to any objection raised under
this section.
(3) Nothing in this section prevents an industry check inspector from
raising matters concerning the content of a health and safety
management system for a coal operation directly with the operator
of the coal operation.
28 Health and safety management system must be reviewed
(1) The operator of a coal operation at which mining is carried out must
regularly review the health and safety management system for the
coal operation, including any major hazard management plans, the
management structure and any contractor management plan. That
review must occur at least once every 3 years.
(2) In addition to that regular review, an operator must immediately
review the health and safety management system:
(a) as at 12 months after the commencement of mining at the coal
operation, or
(b) if there is a fatality at or arising directly from the coal
operation, or
(c) if there is a dangerous incident at the coal operation that could
reasonably have been expected to result in a fatality, or
(d) if there is a significant change in operations that may affect
health and safety, or
(e) if required to do so by the Chief Inspector in writing, or
(f) if required to do so by the regulations.
(3) A review under subsection (2) is required to consider only the
relevant parts of the health and safety management system.
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Clause 29 Coal Mine Health and Safety Bill 2002
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(4) The people who work at the coal operation must be consulted, in the
manner prescribed by the regulations, as part of the review.
(5) A review must be completed within 6 months after it is required by
this section.
29 Amendment of health and safety management system
(1) If a health and safety management system for a coal operation is
amended after it is in operation, information concerning the
amended system must, if the regulations require it, be sent by the
operator of the coal operation to the Chief Inspector and an industry
check inspector before the proposed commencement of the
amendment.
(2) Sections 23, 24 and 25 apply to an amendment to a health and safety
management system in the same way as they apply to a health and
safety management system.
(3) If the Chief Inspector is of the view:
(a) that the amended health and safety management system does
not comply with the requirements of this Act or the
regulations, or
(b) that there was insufficient or inadequate consultation
concerning the amendment of the health and safety
management system, or
(c) that the amended health and safety management system is
insufficient to protect the health and safety of those at the coal
operation or those affected by the coal operation,
the Chief Inspector may object to the amended health and safety
management system.
(4) If the Chief Inspector notifies an operator of an objection, the
operator must either withdraw or revise the amendment to the health
and safety management system, taking into account any matters
raised in the objection, and submit it to the Chief Inspector within
the time prescribed by the regulations.
(5) The operator may implement the amended health and safety
management system immediately after informing the Chief
Inspector of the amendment, unless the amendment is of a kind that
the regulations provide cannot be implemented during a prescribed
period after informing the Chief Inspector.
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30 Access to health and safety management system
(1) An up-to-date copy of the health and safety management system for
a coal operation must be kept at the on-site office of the coal
operation by the operator of the coal operation and must be made
available for inspection by:
(a) a government official, or
(b) a check inspector who is entitled to exercise functions in
relation to the coal operation, or
(c) any person who works at the coal operation.
(2) The operator of a coal operation must immediately supply the Chief
Inspector with an up-to-date copy of the health and safety
management system for the coal operation if the Chief Inspector
requests a copy.
31 Former operator must return information
If a person ceases to be the operator of a coal operation, that person
must return to the colliery holder any information provided to the
person under section 18 or otherwise obtained by the person in the
course of exercising the functions of an operator 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 2 Major hazard management plans
32 Regulations may prescribe "major hazard"
The regulations may prescribe a hazard to people (whether or not
they are at work) as a major hazard to which this Subdivision
applies.
33 Minister may require other major hazards to be identified
(1) The Minister may declare by notice published in the Gazette that the
operator of a coal operation, or the operators of a class of coal
operations, must undertake a specified process or processes to
identify any major hazard that affects the coal operation.
(2) A major hazard so identified is a major hazard to which this
Subdivision applies.
(3) An operator of a coal operation must not fail to comply with a
requirement imposed by a declaration under this section.
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Clause 34 Coal Mine Health and Safety Bill 2002
Part 5 Duties relating to health, safety and welfare at coal operations
34 Minister may declare operation is subject to risk of major hazard
The Minister may declare by notice in the Gazette that a coal
operation, or a class of coal operations, is subject to a risk from
mining from a major hazard to which this Subdivision applies.
35 Duty to prepare one or more major hazard management plans
(1) If a risk from mining at a coal operation arises from a major hazard
to which this Subdivision applies, the operator must establish and
maintain a major hazard management plan for each such major
hazard as a part of the health and safety management system for the
coal operation.
(2) In addition, an operator must establish a major hazard management
plan for each major hazard identified by the operator in the
operator's assessment of risks arising from the coal operation
carried out in the preparation or implementation of the health and
safety management system for the coal operation.
(3) A separate major hazard management plan must be prepared for
each major hazard.
36 Contents of major hazard management plans
(1) A major hazard management plan must state how the health and
safety of the people who work at or are affected by the coal
operation will be protected from the major hazard.
(2) A major hazard management plan must also make provision for the
matters prescribed by the regulations.
(3) A major hazard management plan may refer to or incorporate, with
or without modification, a document prepared or published by a
body specified in the plan, as in force at a particular time or from
time to time.
Subdivision 3 Management structure
37 Operator must prepare management structure
(1) As part of the health and safety management system for a coal
operation, the operator of the coal operation must prepare a
document that sets out the management structure of the coal
operation.
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(2) The management structure must nominate people within the
structure by position and must outline their areas of responsibility
and accountability.
(3) The management structure for a coal operation that is a mine must
include a competent person to perform the functions of the manager
of mining engineering.
(4) The management structure must include competent people with
appropriate mining, electrical and mechanical engineering
competence.
(5) The management structure for an underground mine must include
competent people to perform the functions of the manager of
electrical engineering and the manager of mechanical engineering.
(6) The management structure for a coal operation must include
competent people to perform the functions of supervisors of the
operation.
(7) 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.
(8) During an emergency, the management structure of a coal operation
may be suspended and a different management structure may be put
into place for the duration of the emergency.
38 Register of persons occupying positions
(1) The operator of a coal operation must keep a register at the on-site
office of the coal operation containing the names of people
occupying positions in the management structure for the operation.
(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, an industry check inspector, a site check
inspector or by any person who works at the coal operation.
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Clause 39 Coal Mine Health and Safety Bill 2002
Part 5 Duties relating to health, safety and welfare at coal operations
Subdivision 4 Duties regarding contractors
39 Operator to prepare contractor management plan
As part of the health and safety management system for a coal
operation, the operator of a coal operation 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 coal
operation will be managed.
40 Content of contractor management plan
A contractor management plan for a coal operation must make
provision for the matters prescribed by the regulations.
41 Operator to ensure contractor's familiarity with systems
The operator of a coal operation 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 health
and safety management system and the contractor
management plan for the coal operation, and
(b) the contractor's arrangements for health and safety
management are consistent with the health and safety
management system for the coal operation.
42 Duties of operator regarding contractors
(1) The operator of a coal operation must ensure that each contractor
who proposes to work at the coal operation provides the operator, or
a person designated by the operator, with:
(a) a written safe work method statement for the work to be
carried out by the contractor, and
(b) if section 75 applies to the contractor, a site-specific
occupational health and safety management plan.
These must be provided before the contractor commences work at
the coal operation.
(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
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(c) identify the safety and health risks, and
(d) describe the control measures that will be applied to the work
activities, and
(e) make provision for the matters required by the regulations.
(3) An operator must ensure:
(a) that a contractor is directed to comply with:
(i) the safe work method statement that the contractor has
provided, and
(ii) the requirements of this Act and the regulations, of the
Occupational Health and Safety Act 2000 and of the
regulations made under that Act, and
(b) that the activities of a contractor are monitored to the extent
necessary to determine whether or not the contractor is
complying with:
(i) the safe work method statement that the contractor has
provided, and
(ii) the requirements of this Act and the regulations, of the
Occupational Health and Safety Act 2000 and of the
regulations made under that Act, and
(c) if the contractor is not so complying, that the contractor is
directed to take action immediately to comply with the safe
work method statement or the requirements of this Act and the
regulations, of the Occupational Health and Safety Act 2000
and of the regulations made under that Act, and
(d) that if a risk to the health or safety of a person arises because
of the non-compliance, the contractor is directed to stop work
immediately and not to resume work until the safe work
method statement or those requirements, or both, are
complied with, unless an immediate cessation of work is
likely to increase the risk to health or safety, in which event
the contractor must be directed to stop work as soon as it is
safe to do so.
(4) 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 made
under that Act.
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Clause 43 Coal Mine Health and Safety Bill 2002
Part 5 Duties relating to health, safety and welfare at coal operations
43 Contractor must be given copy of health and safety management
system
The operator of a coal operation must ensure that a contractor does
not commence work at the coal operation unless the contractor has
been provided with a copy of the parts of the operator's health and
safety management system for the place of work that are relevant to
the contractor.
Subdivision 5 Emergency management systems
44 Meaning of "emergency"
For the purposes of this Subdivision, an emergency exists at a coal
operation when a situation is not envisaged or controlled by a health
and safety management system for the coal operation and there is a
threat to the life or physical well-being of people at or outside the
coal operation.
45 Operator must prepare emergency management system
The operator of a coal operation must ensure that an emergency
management system that complies with this Subdivision is prepared
for the coal operation.
46 No mining without emergency management system
The operator of a coal operation must ensure that mining is not
carried out at the coal operation unless an emergency management
system that complies with this Subdivision is implemented for the
coal operation.
Note. Because of the definition of mine (as a verb), this Subdivision applies to
coal mines and preparation plants but not coal exploration sites.
47 Contents of emergency management system
(1) An emergency management system must contain an up-to-date plan
of the coal operation and any other plan required by the regulations.
(2) An emergency management system must adequately address, but is
not limited to addressing, the following matters:
(a) the identification of the nature of risks at a coal operation that
could result in an emergency if control measures fail,
(b) the description of the measures to be taken to prevent or limit
the harmful consequences of incidents associated with each of
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the identified risks, including measures to identify the
location of people who may be at risk,
(c) the identification of the equipment, facilities and
communication systems necessary to control or limit the
consequences of those incidents and the arrangements for
ensuring that they are readily available,
(d) the description of the procedures necessary to control or limit
these incidents and the competence required by people to
undertake the procedures in an emergency setting,
(e) the identification of the control structure that is to apply in the
event of an emergency and the means by which that structure
is to be communicated throughout the operation,
(f) the identification of key personnel and resources (both
internal and external) available to be called on in the case of
an emergency,
(g) the identification of the procedures for testing the
effectiveness of the system and ensuring that all necessary
equipment, facilities, systems, procedures and training are
maintained,
(h) any other matter prescribed by the regulations.
48 Consultation
The people who work at the coal operation must be consulted, in the
manner prescribed by the regulations, during the preparation of the
emergency management system and before its amendment.
49 Information to be supplied to Chief Inspector and industry check
inspector
(1) Information relating to the emergency management system for a
coal operation must be supplied by the operator of the coal operation
to the Chief Inspector and an industry check inspector before the
emergency management system is implemented.
(2) The regulations may specify:
(a) the form and content of information to be supplied, which
may include, but is not limited to, the elements of the
emergency management system to be supplied, and
(b) whether any summary of the emergency management system
is to be supplied and, if so, what summary.
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Clause 50 Coal Mine Health and Safety Bill 2002
Part 5 Duties relating to health, safety and welfare at coal operations
(3) If an emergency management system for a coal operation is
amended after it is in operation, information concerning the
amended system must, if the regulations require it, be sent by the
operator of the coal operation to the Chief Inspector and an industry
check inspector. That information must be sent before the
amendment to the emergency management system is implemented.
50 Copy to be made available
(1) An up-to-date copy of the emergency management system for a coal
operation must be kept at the on-site office of the coal operation by
the operator of the coal operation and must be made available for
inspection by:
(a) a government official, or
(b) a check inspector who is entitled to exercise functions in
relation to the coal operation, or
(c) any person who works at the coal operation.
(2) The operator of a coal operation must immediately supply the Chief
Inspector with an up-to-date copy of the emergency management
system for the coal operation if the Chief Inspector requests a copy.
51 Competence and training of personnel
The operator of a coal operation must ensure that the people
required to perform duties as part of the emergency management
system for the coal operation are competent to carry out those duties
and are given appropriate training.
52 Review
(1) The operator of a coal operation must ensure that the emergency
management system for the coal operation is reviewed:
(a) as soon as practicable after any emergency has occurred at the
coal operation, and
(b) whenever the health and safety management system for the
coal operation is reviewed.
(2) The people who work at the coal operation must be consulted, in the
manner prescribed by the regulations, during the review.
(3) A review under this section is required only to consider the relevant
parts of the emergency management system.
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Subdivision 6 High risk activities
53 Meaning of "high risk activity"
(1) The regulations may prescribe an activity as a high risk activity to
which this Subdivision applies.
(2) The regulations may provide that an activity being carried out at the
time that it is prescribed as a high risk activity can continue without
being subject to this Subdivision.
54 Requirement to notify high risk activities
(1) The operator of a coal operation must ensure that a high risk activity
to which this Subdivision applies is not carried out at or in relation
to the coal operation unless, before the activity is commenced:
(a) the operator has given notice of the activity to the Chief
Inspector, an industry check inspector and the site check
inspector for the coal operation, and
(b) the waiting period prescribed by the regulations for the
activity has elapsed.
(2) Notice under this section must be given in the form prescribed by
the regulations and must be accompanied by any information
required by the regulations.
(3) Notice is taken to have been given when it is received by both the
Chief Inspector and an industry check inspector.
Subdivision 7 Keeping of records and reporting
55 Keeping of records by operators
The operator of a coal operation must keep the records concerning
health and safety that are required by the regulations, in the manner
required by the regulations and for at least the time required by the
regulations.
56 Reporting by operators
The operator of a coal operation must make the reports concerning
health and safety that are required by the regulations, in the manner
required by the regulations.
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Clause 57 Coal Mine Health and Safety Bill 2002
Part 5 Duties relating to health, safety and welfare at coal operations
Subdivision 8 Penalties
57 Penalty for offence against this Division
An operator or former operator of a coal operation 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 9 Saving of certain notices and directions
58 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 coal operation 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 an operator of a coal operation.
Division 3 Duties and rights of employees
Note.
Sections 20 and 25 of the Occupational Health and Safety Act 2000 impose
duties on employees. This Division imposes some extra duties and confers a
right on employees.
59 Duties of employees
(1) An employee who works at any coal operation must:
(a) comply with the health and safety management system for the
coal operation, and
(b) follow the operator's procedures for emergencies as set out in
the emergency management system for the coal operation.
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(2) An employee who works at a coal operation must inform the
operator of any circumstances that the employee considers may lead
to a loss of control of a major hazard.
(3) An employee who works at a coal operation must immediately
report to his or her immediate supervisor 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 to another senior person at the coal
operation.
Maximum penalty:
(a) in the case of a previous offender--45 penalty units, or
(b) in any other case--30 penalty units.
60 Rights of employees
An employee who works at a coal operation has the right to remove
himself or herself from any location at the coal operation when
circumstances arise that appear to the employee, with reasonable
justification, to pose a serious danger to his or her own health, safety
or welfare.
61 Employees cannot be unlawfully dismissed or victimised
(1) An employer of any person who works at a coal operation must not
dismiss an employee, injure an employee in his or her employment
or alter an employee's position to his or her detriment for any one or
more of the following reasons, or for reasons including any one or
more of the following reasons:
(a) the employee participates in a consultation process required
by this Act or the regulations,
(b) the employee exercises rights under this Act or the
regulations,
(c) the employee performs functions or complies with duties
under this Act or the regulations or assists a government
official,
(d) the employee is a 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
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Clause 62 Coal Mine Health and Safety Bill 2002
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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 both, or
(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 coal operation 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.
62 Division applies to employees of contractor
This Division applies to an employee of a contractor who works at
a coal operation, 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 those 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 the Act or the regulations, 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.
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63 Duties of manager of mining engineering
(1) The manager of mining engineering for a coal operation must advise
the operator of health and safety standards and practices in the
manager's discipline.
(2) The manager of mining engineering for a coal operation must bring
any significant deviation from those standards and practices, and
any risks to health and safety that he or she becomes aware of, to the
attention of the operator.
(3) A failure by the manager of mining engineering to bring such a
deviation to the operator's attention 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 made
under that Act.
64 Duties of manager of electrical engineering
(1) The manager of electrical engineering for a coal operation must
advise the operator of health and safety standards and practices in
the manager's discipline.
(2) The manager of electrical engineering for a coal operation must
bring any significant deviation from those standards and practices,
and any risks to health and safety that he or she becomes aware of,
to the attention of the operator.
(3) A failure by the manager of electrical engineering to bring such a
deviation to the operator's attention 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 made
under that Act.
65 Duties of manager of mechanical engineering
(1) The manager of mechanical engineering for a coal operation must
advise the operator of health and safety standards and practices in
the manager's discipline.
(2) The manager of mechanical engineering for a coal operation must
bring any significant deviation from those standards and practices,
and any risks to health and safety that he or she becomes aware of,
to the attention of the operator.
(3) A failure by the manager of mechanical engineering to bring such a
deviation to the operator's attention does not affect any liability of
the operator under this Act or the regulations or under the
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Clause 66 Coal Mine Health and Safety Bill 2002
Part 5 Duties relating to health, safety and welfare at coal operations
Occupational Health and Safety Act 2000 or the regulations made
under that Act.
66 Those in management positions must comply with health and safety
management system
A person who holds a management position at a coal operation must
comply with the health and safety management system for the coal
operation.
67 Those in management positions must inform operator of non-
compliance
(1) A person who holds a management position at a coal operation must
inform the operator of the coal operation if he or she is aware that
the conduct of the coal operation does not conform with the
Occupational Health and Safety Act 2000 or the regulations made
under that Act or with this Act or the regulations made under this
Act.
(2) A failure by a person to inform the operator under this section does
not affect any liability of the operator under the Occupational
Health and Safety Act 2000 or the regulations made under that Act
or under this Act or the regulations made under this Act.
68 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
69 Supervisor must comply with health and safety management system
A supervisor at a coal operation must comply with the health and
safety management system for the coal operation.
70 Supervisor must inform operator of non-compliance
(1) A supervisor at a coal operation must inform the operator of the coal
operation if he or she is aware that the conduct of the coal operation
does not conform with the Occupational Health and Safety Act 2000
or this Act or the regulations under either Act.
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Coal Mine Health and Safety Bill 2002 Clause 71
Duties relating to health, safety and welfare at coal operations Part 5
(2) A failure by a supervisor to inform the operator under this section
does not affect any liability of the operator under the Occupational
Health and Safety Act 2000 or this Act or the regulations under
either Act.
71 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 contractors
Note.
A contractor who works at a coal operation 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 coal operations.
72 Contractor must comply with operator's health and safety
management system
A contractor who works at a coal operation must comply with the
health and safety management system of the operator for the coal
operation to the extent that it applies to work done by the contractor.
73 Duties of contractors regarding safe work method statement
(1) A contractor must not commence work at a coal operation 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 risks, and
(c) has provided a copy of that statement to a person designated
by the operator of the coal operation.
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Clause 74 Coal Mine Health and Safety Bill 2002
Part 5 Duties relating to health, safety and welfare at coal operations
(2) A contractor:
(a) must maintain and keep up-to-date the contractor's safe work
method statement for a place of work, and
(b) must provide a person designated by the operator with any
changes made to the safe work method statement.
Note. The requirements for a safe work method statement are set out in
section 42.
74 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 coal operation is carried out
in accordance with the safe work method statement prepared by the
contractor in relation to that coal operation.
(2) If a risk to the health or safety of a person arises because of non-
compliance with the statement, a 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 health and safety management
system for a coal operation and the safe work method statement of
a contractor, the health and safety management system prevails.
75 Contractor must prepare and implement OH&S management plan
(1) This section applies to contractors of a class prescribed by the
regulations.
(2) A contractor must ensure that, before commencing work at a coal
operation, a site-specific occupational health and safety
management plan is prepared for that coal operation.
(3) A contractor must ensure that the occupational health and safety
management plan includes:
(a) a statement of responsibilities, listing the names, positions
and responsibilities of all people who will have specified
responsibilities at the coal operation for occupational health
and safety in relation to the contractor's work, and
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Coal Mine Health and Safety Bill 2002 Clause 76
Duties relating to health, safety and welfare at coal operations Part 5
(b) details of the arrangements for managing occupational health
and safety incidents, including the means of informing the
coal operator in a timely fashion, and
(c) any work specific safety rules and details of the arrangements
for ensuring that all persons involved in the work are
informed of the rules, and
(d) safe work method statements for all work activities assessed
as having safety or health risks, and
(e) any other matters required by the regulations.
(4) A contractor must supply a copy of the occupational health and
safety management plan to the operator of the coal operation prior
to work commencing at the coal operation.
(5) If requested, a contractor must supply a copy of the occupational
health and safety management plan to a government official or a
check inspector as soon as practicable after the request. Such a
request may be made before or after work commences.
(6) A contractor must ensure that a copy of the occupational health and
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 coal operator, a government official
or a check inspector.
(7) A contractor must ensure that work carried out by the contractor at
the coal operation is carried out in compliance with the occupational
health and safety management plan for the coal operation.
(8) If there is a conflict between the health and safety management
system for a coal operation and the occupational health and safety
management plan of a contractor, the health and safety management
system prevails.
76 Contractor's duties regarding subcontractors
(1) A contractor who works at a coal operation must ensure that any
subcontractor of the contractor provides the operator of the coal
operation, or a person nominated by the operator, with:
(a) a written safe work method statement for the work to be
carried out by the subcontractor, and
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Clause 77 Coal Mine Health and Safety Bill 2002
Part 5 Duties relating to health, safety and welfare at coal operations
(b) if section 75 applies to the subcontractor, a site-specific
occupational health and safety management plan.
These must be provided before the subcontractor commences work
at the coal operation.
(2) A contractor who works at a coal operation must ensure that any
subcontractor of the contractor complies with the health and safety
management system of the operator of the coal operation.
(3) A contractor to whom section 75 applies must ensure that a copy of
any parts of the contractor's occupational health and safety
management plan that are relevant to a subcontractor contracted by
the contractor or employee employed by the contractor are provided
to the subcontractor or employee before the subcontractor or
employee commences work at the place of work concerned.
(4) A contractor to whom section 75 applies must ensure that, if any
change is made to the occupational health and safety management
plan during the course of work, a copy of any part of the plan 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.
(5) 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.
77 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.
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Coal Mine Health and Safety Bill 2002 Clause 78
Duties relating to health, safety and welfare at coal operations Part 5
Division 7 Duties of exploration holders and others to give
notice
78 Duty to give notice of drilling operations
(1) An exploration holder must not commence drilling operations
unless the prospecting holder has given the Chief Inspector at least
7 days' written notice of the operations.
(2) That notice must contain the details required by the regulations.
(3) In this section, drilling operation means any drilling operation
carried out in the course of searching for coal, and includes the
preparation and restoration of drill sites.
79 Other duties to give notice
(1) The regulations may require a person, or a person of a specified
class, to give notice to the Chief Inspector of the commencement or
discontinuation of operations or activities at a coal operation 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.
80 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.
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Clause 81 Coal Mine Health and Safety Bill 2002
Part 5 Duties relating to health, safety and welfare at coal operations
Division 8 General
81 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.
82 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 197 or 198.
Note. See Part 11 for provisions relating to the use of approved coal mining
industry codes of practice in proceedings for offences against this Part.
83 Alternative verdicts
If in proceedings against a person for an offence against a provision
of this Part the court is not satisfied that the person contravened that
provision but is satisfied that the act or omission concerned
constituted a contravention of another provision of this Part or of
section 8 or 9 of the Occupational Health and Safety Act 2000, the
court may convict the person of an offence against that other
provision or section.
84 Multiple contraventions of general 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 only may be imposed in respect of more than one
contravention of any such provision that is charged as a single
offence.
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Coal Mine Health and Safety Bill 2002 Clause 85
Duties relating to health, safety and welfare at coal operations Part 5
85 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 a breach
of duty imposed by the regulations is actionable (including any
regulation that adapts a provision of this Part).
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Clause 86 Coal Mine Health and Safety Bill 2002
Part 6 Safety of coal operations
Part 6 Safety of coal operations
Division 1 Methods or systems of working mines
86 Barriers and protective pillars
(1) The operator of a coal operation that is a mine must not mine or
cause to be mined any seam of coal in the mine without leaving a
barrier of the specified width:
(a) against the external boundaries of the colliery holding in
which the mine is situated, and
(b) against any outcrop of the seam, and
(c) between any underground workings and any open cut
working situated within the colliery holding in which the
mine is situated.
(2) For the purposes of subsection (1), the specified width is 20 metres
or any other distance that the Minister may specify in a direction
given to the operator of the coal operation.
(3) In giving a direction under subsection (2), the Minister:
(a) may fix the width of a barrier in respect of any seam or portion
of a seam within a mine and specified in the direction or in
respect of all the seams within a mine or all seams within a
mine other than those so specified, and
(b) must so fix the width of a barrier in respect of any seam so that
a barrier of not less than 40 metres must be maintained
between workings of adjacent mines.
(4) A person must not fail to comply with a direction under this section.
87 Minister may give directions regarding barriers and pillars
(1) The Minister may direct the operator of a coal operation:
(a) to leave in any mine that forms part of the coal operation a
barrier of the width that is specified in the direction against
the mean high water mark of tidal waters, and
(b) to leave in the mine that forms part of the coal operation a
protective pillar of the dimensions that are specified in the
direction against surface improvements or features, whether
natural or artificial, including mine workings, whether
discontinued or otherwise.
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Coal Mine Health and Safety Bill 2002 Clause 88
Safety of coal operations Part 6
(2) In giving a direction under subsection (1), the Minister:
(a) may fix the width of a barrier in respect of any seam or portion
of a seam within a mine and specified in the direction or in
respect of all the seams within a mine or all seams within a
mine other than those so specified, and
(b) must so fix the width of a barrier in respect of any seam so that
a barrier of not less than 40 metres must be maintained
between workings of any mine adjoining the mine.
(3) An operator must not fail to comply with a direction given to the
operator under this section.
88 Minister may direct carrying out of works
(1) If any workings in a mine encroach on any barrier or protective
pillar required to be provided pursuant to:
(a) this Division, or
(b) any conditions contained in any lease granted under the
Mining Act 1992 or any licence granted under the Offshore
Minerals Act 1999,
the Minister may, if of the opinion that it is necessary to do so in
order to ensure the safety of people working in the mine or in any
mine adjoining the mine, direct the operator to carry out any works
that the Minister thinks fit within the time specified in the direction.
(2) An operator must not fail to comply with a direction given to the
operator under this section.
(3) This section applies whether the lease or licence is granted before or
after the commencement of this section.
89 Minister may grant approval to mine barrier or pillar
(1) The Minister may grant approval, subject to any conditions that the
Minister considers necessary, to the operator of a coal operation to
mine any barrier or protective pillar provided pursuant to this
Division.
(2) An operator must not fail to comply with a condition of an approval
given to the operator under this section.
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Clause 90 Coal Mine Health and Safety Bill 2002
Part 6 Safety of coal operations
90 Penalty for offence against this Division
An operator of a coal operation 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)--
3,750 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
2,500 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 2 Closing of shafts and outlets in abandoned mines
91 Application of this Division
If there is no operator for a coal operation within a colliery holding,
the obligations imposed on an operator by this Division are imposed
on the colliery holder or the person on whose application the
relevant land was last registered as, or recorded as part of, a colliery
holding.
92 Closing of shafts and outlets
(1) The operator of a mine must:
(a) cause every shaft or outlet at a mine, when it ceases to be used,
to be securely fenced off as soon as practicable and to be fully
sealed or filled in a manner approved by the Chief Inspector,
or provided with an enclosure, barrier, plug or seal approved
by the Chief Inspector, within 30 days after the mine ceases to
be used, and
(b) cause the seal, fill, enclosure, barrier or plug to be properly
maintained, and
(c) before abandoning the mine, cause every shaft or outlet at the
mine to be fully sealed or filled in a manner approved by the
Chief Inspector, or provided with an enclosure, barrier, plug
or seal approved by the Chief Inspector.
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Coal Mine Health and Safety Bill 2002 Clause 93
Safety of coal operations Part 6
(2) If the operator of a mine is not the occupier of the land on which
work is required to be carried out under subsection (1), the operator
of the mine must give reasonable notice to the occupier of the land
before causing the work to be carried out.
93 Chief Inspector may require further work
(1) The Chief Inspector may, by notice in writing, require an operator
or former operator of a mine that has ceased to be used before or
after it is abandoned, to carry out work to ensure that:
(a) a shaft or outlet at that mine is fully sealed or filled, or
(b) a shaft or outlet at that mine is provided with an enclosure,
barrier, plug or seal approved by the Chief Inspector, or
(c) any existing seal, fill, enclosure, barrier or plug at that mine
remains effective.
(2) A person to whom a notice has been given under this section must
comply with the notice within the time specified by the notice.
(3) If the former operator of a mine is not the occupier of the land on
which work is required to be carried out under subsection (1), the
former operator of the mine must give reasonable notice to the
occupier of the land before causing the work to be carried out.
94 Obstruction of operator of mine
An occupier of land or other person must not wilfully obstruct the
operator of a mine or any other person in doing any act required to
be done by or under section 92 (1) or 93 (1).
95 Certain unenclosed shafts or outlets to be public nuisances
Any shaft or outlet of a mine that is not fully sealed or filled in a
manner approved by the Chief Inspector, or provided with an
approved enclosure, barrier, plug or seal, as required by section 92
(1) or 93 (1) and that:
(a) is within 50 metres of any highway, road, footpath or place of
public resort, or
(b) is in open or unenclosed land,
is taken to be a public nuisance for the purposes of section 125 of
the Local Government Act 1993.
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Clause 96 Coal Mine Health and Safety Bill 2002
Part 6 Safety of coal operations
96 Owners of land on which abandoned mines are situated may be
required to close shafts and outlets
(1) The Minister may cause to be served on the owner of land on which
is situated any shaft or outlet of an abandoned mine that is not fully
sealed or filled in a manner approved by the Chief Inspector, or
provided with an approved enclosure, barrier, plug or seal, a
direction requiring the owner:
(a) to fully seal or fill the shaft or outlet in a manner approved by
the Chief Inspector, or
(b) to provide the shaft or outlet with an enclosure, barrier, plug
or seal approved by the Chief Inspector,
within the period specified in the direction.
(2) A person to whom a direction is given under subsection (1) must
comply with the direction.
(3) If a person to whom a direction is given under subsection (1) does
not comply with the direction within the period specified in the
direction, the Minister may cause the work specified in the direction
to be carried out.
(4) Any costs or expenses incurred by or on behalf of the Minister under
subsection (3) in carrying out any work specified in a direction
given under subsection (1) is a debt due to the Crown by the person
to whom the direction was given.
(5) In any proceedings instituted for the recovery from a person of a
debt due by that person to the Crown under subsection (4), a
certificate of the Minister that a specified amount is the amount of
the debt so due is evidence of that fact.
(6) A debt due by any person to the Crown under subsection (4) is
recoverable despite the fact that that person is convicted of an
offence under subsection (2).
(7) A person to whom a direction is given under subsection (1), or any
person authorised by the Minister for the purposes of subsection (3),
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 or with subsection (3), as the case may require.
(8) This section does not apply to the owner of land on which is
situated:
(a) a mine abandoned before 26 March 1984, or
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Coal Mine Health and Safety Bill 2002 Clause 97
Safety of coal operations Part 6
(b) a mine the subject of a mining lease granted under the Mining
Act 1992 in respect of coal.
97 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)--
3,750 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
2,500 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 Control of emplacement areas
98 Definitions
(1) In this Division:
emplacement area means:
(a) any pile, heap, hole, excavation or place in which or on which
reject (whether in a solid state or in a solution or suspension)
is piled, heaped, dumped, accumulated, deposited or placed,
and
(b) any wall or other structure that retains or confines reject,
whether or not that wall or structure is itself composed of
reject,
but does not include an accumulation or deposit of reject situated
underground.
occupier of an emplacement area means the occupier of any land on
which the emplacement area is situated, whether the emplacement
area is in use or not.
reject means any carbonaceous material, whether it is mixed with or
attached to stone or not, that is left after the treatment of coal in a
coal preparation plant or that is not dealt with as coal by the occupier
of a mine.
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Clause 99 Coal Mine Health and Safety Bill 2002
Part 6 Safety of coal operations
(2) For the purposes of this Division, an emplacement area:
(a) is taken to be in use if its use has not been discontinued, and
(b) is taken to be kept secure if:
(i) it is not unstable, and
(ii) it is not on fire, and
(iii) no noxious water is escaping from it.
99 Minister may direct occupier of land to make emplacement area safe
(1) The Minister may direct an occupier of land on which there is an
emplacement area or, where there is no occupier, the land owner, to
make the emplacement area safe.
(2) An occupier or land owner must comply with a direction under this
section.
100 Establishment of emplacement areas
(1) A person must not establish any emplacement area except with the
approval of the Minister and in the manner and subject to any
conditions that the Minister may determine.
(2) The Minister's approval under subsection (1) may be granted
without limit as to time or may be for a specified period.
(3) A person applying for the Minister's approval under this section
must furnish any information, documents and plans relevant to the
approval that the Minister may require.
101 Discontinuance of use of emplacement areas
(1) A person who has established an emplacement area pursuant to an
approval granted under section 100 must not discontinue use of that
emplacement area without the Minister's approval.
(2) Despite subsection (1), the Chief Inspector may grant approval to
discontinue use of an emplacement area established pursuant to an
approval granted under section 100 for a period not exceeding 6
months subject to any conditions that the Chief Inspector may
determine.
(3) A person must not recommence using an emplacement area that the
person has ceased using by virtue of an approval granted under
subsection (2) without the consent of the Chief Inspector.
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Coal Mine Health and Safety Bill 2002 Clause 102
Safety of coal operations Part 6
102 Construction and use of emplacement areas
(1) This section applies to emplacement areas whether established
before or after 26 March 1984.
(2) An occupier must ensure that an emplacement area:
(a) is constructed, or the construction of the emplacement area is
continued, as the case may be, in accordance with sound
engineering practice, and
(b) is compatible with the environment, and
(c) is kept secure.
(3) The occupier of an emplacement area must take any steps that may
be necessary to ensure that the occupier is at all times in possession
of all information relevant to the performance of the occupier's
duties under this section.
(4) The Chief Inspector may, by notice served on the occupier of an
emplacement area, require the occupier, whether the emplacement
area is in use or not, to carry out any tests relating to the safety and
security of the emplacement area that the Chief Inspector may
specify in the notice.
(5) The occupier of an emplacement area must furnish to the Chief
Inspector the results of any tests carried out in compliance with
subsection (4).
(6) The Chief Inspector may, by notice served on the occupier of an
emplacement area that is in use, require the occupier to furnish plans
of the emplacement area and plans of future dumping operations.
103 Date of effect of decisions and notices
If there is a right of appeal or objection against a decision or notice
under this Division, the decision or notice takes effect:
(a) where no appeal or objection is lodged within the period
prescribed by the regulations--from the expiration of that
period, or
(b) where an appeal or objection is lodged and the decision or
notice is not revoked--from the date of the final decision
made on that appeal or objection,
and, if varied or amended on appeal or objection, takes effect as
varied or amended.
Page 47
Clause 104 Coal Mine Health and Safety Bill 2002
Part 6 Safety of coal operations
104 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)--
3,750 penalty units, or
(b) in the case of a corporation (not being a previous offender)--
2,500 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 4 Tourist and educational activities
105 Definitions
In this Part:
former mine includes an abandoned mine.
occupier, in relation to an abandoned mine, means the occupier of
the land on which the abandoned mine is situated.
permit means a permit that has been issued under section 107 and
that has not been revoked under section 108.
106 Tourist activities in former mines or use of former mines for
educational purposes not allowed without a permit
The occupier of a former mine (not subject to a mining lease) must
not allow tourist activities to be conducted in or about the mine or
allow the mine to be used 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
or any previous occupier of the mine, and
(b) the occupier complies with the conditions (if any) to which
the permit is subject.
Page 48
Coal Mine Health and Safety Bill 2002 Clause 107
Safety of coal operations Part 6
107 Issue of tourist and educational permits
(1) The Minister may, on application being made to the Minister in
writing, issue a permit to the occupier of a former mine that:
(a) authorises tourist activities to be conducted in or about the
former mine, or
(b) authorises the former mine to be used principally for
educational purposes,
subject to any conditions that the Minister may specify in the permit.
(2) An application for a permit is to be accompanied by the fee
determined by the Minister under section 219.
(3) A permit must not be issued under this section in respect of a former
mine unless the Minister is satisfied that all necessary precautions
will be taken to protect the health or safety of persons entering the
former mine.
108 Revocation or variation of permits
(1) The Minister may:
(a) revoke a permit where a condition to which the permit is
subject is breached or where the Minister is satisfied that
persons cannot enter the former mine to which the permit
relates without risk to their safety or health, or
(b) 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 former mine to which
the permit relates.
(3) A variation may be made under subsection (1) (b) by way of
addition, amendment or deletion of conditions.
109 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
Page 49
Clause 109 Coal Mine Health and Safety Bill 2002
Part 6 Safety of coal operations
(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 50
Coal Mine Health and Safety Bill 2002 Clause 110
Notification of incidents Part 7
Part 7 Notification of incidents
Division 1 Notification of certain incidents
110 Notification of certain incidents and other matters
(1) The operator of a coal operation must give the Chief Inspector and
an industry check inspector notice in accordance with this section of
any of the following incidents (notifiable incidents):
(a) any incident at the coal operation that has resulted in a person
being killed,
(b) any other incident at the coal operation 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
coal operation that the regulations declare to be an incident or
matter that is required to be notified.
(2) An exploration holder must give the Chief Inspector and an industry
check inspector notice in accordance with this section of any of the
following incidents (notifiable incidents):
(a) any incident at the exploration site that has resulted in a
person being killed,
(b) any other incident at the exploration site 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
exploration site that the regulations declare to be an incident
or matter that is required to be notified.
(3) 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.
(4) Any notice must, in the case of a notifiable incident referred to in
subsection (1) (a) or (b) or (2) (a) or (b), also be given:
(a) immediately the operator or exploration holder becomes
aware of the incident, and
(b) by the quickest available means.
Page 51
Clause 111 Coal Mine Health and Safety Bill 2002
Part 7 Notification of incidents
This subsection does not apply if the operator or exploration holder
is aware that another person has given the required notice of the
incident.
(5) 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.
111 Non-disturbance of plant involved in notifiable incidents (and of
surrounding area)
(1) This section applies if a notifiable incident referred to in section 110
(1) (a) or (b) or (2) (a) or (b) has occurred at a coal operation or
exploration site.
(2) The operator of a coal operation and an exploration holder must take
measures to ensure that:
(a) plant at that coal operation or exploration site is not used,
moved or interfered with after it has been involved in a
notifiable incident, and
(b) the area and environment at that coal operation or exploration
site 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 or exploration holder 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 an inspector or with the
permission of both an inspector and an industry check
inspector, 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 110 or only
in any other period prescribed by the regulations.
Page 52
Coal Mine Health and Safety Bill 2002 Clause 112
Notification of incidents Part 7
112 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 2 Inquiries
113 Boards of Inquiry
(1) This section applies if it appears to the Minister that an investigation
of any of the following is necessary:
(a) any event or dangerous occurrence causing death or serious
injury at a coal operation and its causes and circumstances,
(b) any dangerous occurrence at a coal operation and its causes
and circumstances,
(c) any practice at a coal operation that, in the opinion of the
Minister, adversely affects or is likely to adversely affect the
safety or health of persons employed at the coal operation,
(d) any matter relating to the safety, health, conduct or discipline
of persons at or in relation to a coal operation.
(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.
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Clause 114 Coal Mine Health and Safety Bill 2002
Part 7 Notification of incidents
(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.
(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.
114 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.
Page 54
Coal Mine Health and Safety Bill 2002 Clause 115
Notification of incidents Part 7
(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
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.
115 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 coal operation or a matter relating to
the safety, health, conduct or discipline of persons in a coal
operation.
(2) The Minister may, if the Minister thinks fit, publish the report at the
time and in the manner determined by the Minister.
116 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.
Page 55
Clause 117 Coal Mine Health and Safety Bill 2002
Part 7 Notification of incidents
117 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 56
Coal Mine Health and Safety Bill 2002 Clause 118
Stop work orders Part 8
Part 8 Stop work orders
118 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 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) the Occupational Health and Safety Act 2000 or the
regulations made under that Act, or
(b) this Act or the regulations made under this Act,
the Minister may order that the action is to cease or is not to be
carried out 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 date on which:
(a) if the order relates to a colliery holding--a copy is provided
to the colliery holder, or
(b) if the order relates to a coal operation--a copy is provided to
the operator of the coal operation, or
(c) if the order relates to coal mine workings the subject of a
licence to mine coal under the Offshore Minerals Act 1999--
a copy is provided to the licensee, or
(d) if the order relates to a coal exploration site--a copy is
provided to the most senior person at the coal exploration site,
or
(e) a copy of the order is affixed in a conspicuous place in the coal
operation, or
(f) the person carrying out or about to carry out the action the
subject of the order is notified 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.
119 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.
Page 57
Clause 120 Coal Mine Health and Safety Bill 2002
Part 8 Stop work orders
120 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 date referred to in
section 118 (2).
121 Consultation about modification of proposed detrimental action
After the Minister makes a stop work order, the Director-General
must immediately consult with the person 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
118.
122 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.
123 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.
(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 on whom the
stop work order was imposed.
Page 58
Coal Mine Health and Safety Bill 2002 Clause 124
Stop work orders Part 8
(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 124.
(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 124 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 124 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 to whom notice of the order
was given under section 118 (2).
124 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
(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
Page 59
Clause 124 Coal Mine Health and Safety Bill 2002
Part 8 Stop work orders
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.
Page 60
Coal Mine Health and Safety Bill 2002 Clause 125
Competence standards Part 9
Part 9 Competence standards
Division 1 Key obligations
125 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 Minister to determine,
what will be sufficient evidence of competence to perform a
function to which this Part applies (specified evidence of
competence).
126 Operator to ensure only competent people employed to perform
specified functions
(1) The operator of a coal operation must not employ a person at the
coal operation to perform a specified function unless the person
holds specified evidence of competence to perform that function.
(2) The operator of a coal operation must ensure that no other person at
the coal operation performs a specified function unless the person
holds specified evidence of competence to perform that function.
127 Contractor to ensure only competent people employed to perform
specified functions
A contractor must not employ a person at a coal operation to
perform a specified function unless the person holds specified
evidence of competence to perform that function.
128 Only competent people to perform specified functions
A person at a coal operation must not perform a specified function
unless the person holds specified evidence of competence to
perform that function.
129 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.
Page 61
Clause 130 Coal Mine Health and Safety Bill 2002
Part 9 Competence standards
Division 2 Coal Competence Board
130 Constitution of Coal Competence Board
(1) There is constituted by this Act a body corporate with the corporate
name of the Coal Competence Board.
(2) The Coal Competence Board represents the Crown.
131 Ministerial control of Board
The Board is subject to the control and direction of the Minister.
132 Membership of Board
(1) The Board is made up of the following people appointed by the
Minister:
(a) the Chairperson of the Board (who is not to be an officer of
the Department), 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 or people
performing functions at coal operations, 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.
133 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.
Page 62
Coal Mine Health and Safety Bill 2002 Clause 134
Competence standards Part 9
Division 3 Functions of Board
134 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
people performing functions at coal operations that may
impact on health and safety,
(b) to undertake initial and ongoing assessments of the
competence of people performing functions at coal
operations,
(c) to advise the Minister on matters related to the competence
required of people to perform functions at coal operations,
(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.
135 Annual report
The Board must, at any time or within any period that the Minister
may direct, make an annual report of its proceedings during the
preceding year to the Minister.
Division 4 Certificates of competence
136 Certificates of competence may be granted
The Minister may, in accordance with the regulations and any
orders made under section 138, grant a certificate of competence to
perform a specified function. That certificate may be granted
unconditionally or subject to conditions.
Page 63
Clause 137 Coal Mine Health and Safety Bill 2002
Part 9 Competence standards
137 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 people,
including the conduct of examinations,
(c) the granting and replacement of certificates of competence,
(d) the maintenance of competence by those to whom a certificate
of competence has been granted,
(e) the suspension or cancellation of certificates of competence,
including suspension or cancellation by reason of
incompetence or negligence,
(f) the imposition of conditions on certificates of competence,
(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.
138 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,
Page 64
Coal Mine Health and Safety Bill 2002 Clause 139
Competence standards Part 9
(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 of 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
139 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.
Page 65
Clause 140 Coal Mine Health and Safety Bill 2002
Part 9 Competence standards
140 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.
141 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 coal operation to perform functions for
which a certificate of competence is required.
142 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.
143 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
Page 66
Coal Mine Health and Safety Bill 2002 Clause 143
Competence standards Part 9
(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 67
Clause 144 Coal Mine Health and Safety Bill 2002
Part 10 Oversight of coal operations
Part 10 Oversight of coal operations
Division 1 Outline of this Part
144 Outline of this Part
(1) This Part provides for the appointment, functions and powers of the
following people, who are called government officials in this Act:
(a) the Chief Inspector,
(b) inspectors,
(c) mine safety officers,
(d) investigators.
(2) This Part also provides for the election or appointment of the
following people, who are called check inspectors in this Act, to
carry out inspections as representatives of the workforce at coal
operations:
(a) site check inspectors,
(b) electrical check inspectors,
(c) industry check inspectors.
Division 2 Inspections by government officials
Subdivision 1 Appointment of government officials
145 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.
(3) An person appointed under this section is to be issued with an
identification card under section 48 of the Occupational Health and
Safety Act 2000.
Page 68
Coal Mine Health and Safety Bill 2002 Clause 146
Oversight of coal operations Part 10
146 Qualifications of inspectors
A person may be appointed as an inspector only if the Minister
considers that the person has:
(a) a professional engineering qualification relevant to coal
mining operations from an Australian university or any
equivalent qualification, and
(b) appropriate competencies, and adequate experience, in coal
mining operations, to effectively perform the functions of an
inspector.
147 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.
148 Absence of Chief Inspector
If the Chief Inspector is absent from duty, or on duty but outside the
State, the Minister may appoint an inspector to exercise the
functions of the Chief Inspector.
Subdivision 2 Functions of government officials
149 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
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(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.
150 Bringing concerns regarding health, safety or welfare to the
attention of operators
(1) This section applies if:
(a) a government official exercises any of the powers conferred
on him or her under this Part at or in connection with a coal
operation or other workplace to which this Act applies, and
(b) as a result of the exercise of those powers, he or she obtains
any information or becomes aware of any practice at a coal
operation that may, in his or her opinion, be relevant to the
continued safe operation of a coal operation or the health,
safety or welfare at work of the people who work at a coal
operation.
(2) In that case, the government official must, as soon as possible, so
advise the most senior person in the management structure of the
coal operation who is at work.
151 Consideration and investigation of complaints
(1) A government official must consider any complaint made to the
government official by an industry check inspector or by a site
check inspector for a coal operation, being a complaint concerning
the health, safety or welfare at work of the people who work at the
coal operation.
(2) A government official may investigate any such complaint if he or
she considers it appropriate to do so.
(3) A government official must report to the industry check inspector or
site check inspector who made a complaint to the government
official concerning the results of the official's consideration or
investigation of the complaint.
(4) Nothing in this section prevents an industry check inspector or site
check inspector from raising matters directly with the operator of a
coal operation.
152 Audit and review of health and safety management systems
(1) A government official may at any time audit and review the health
and safety management system for a coal operation.
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(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.
153 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 people at work at
coal operations,
(b) to make reports on incidents or other matters at coal
operations and to make recommendations for further action
based on those reports.
Subdivision 3 Powers of government officials
154 Inspection powers
(1) A government official has those powers that an inspector has under
Part 5 of the Occupational Health and Safety Act 2000 so as to make
any examination and inquiry that may be necessary:
(a) to ascertain whether this Act and the regulations, or the
Occupational Health and Safety Act 2000 and the regulations
under it, have been complied with, or
(b) to ascertain whether there is at a coal operation any matter or
thing that affects or is likely to affect the health or safety of
people who work at the coal operation, or
(c) to ascertain the causes and circumstances of any event or
other occurrence at a coal operation, or
(d) to investigate any complaint made to the government official
by an industry check inspector or a site check inspector.
(2) For the purposes of the application of Part 5 of the Occupational
Health and Safety Act 2000 to powers under this Act, a reference in
that Part to an inspector is taken to be a reference to a government
official.
155 Powers of entry at any time
Despite Part 5 of the Occupational Health and Safety Act 2000, a
government official may enter any coal operation at any time.
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156 Power to require plan
(1) A government official may require the operator of a coal operation
to provide the government official with a plan of the coal operation
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
Subdivision 1 Site check inspectors
157 Site check inspectors
(1) For the purpose of enabling inspections to be carried out at a coal
operation on behalf of the people at work at the coal operation, an
individual may be elected as a site check inspector for the coal
operation.
(2) More than one person may be elected as a site check inspector if the
operator agrees or the Chief Inspector directs.
158 Trigger for election
An election of a site check inspector for a coal operation must be
held if one or more positions are vacant and:
(a) a person employed in or about the coal operation requests in
writing that an election be held, or
(b) the Chief Inspector directs that an election be held.
159 Conduct of election of site check inspectors
(1) An election for a site check inspector for a coal operation may be
conducted:
(a) if there is only one involved union in relation to the coal
operation--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
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(c) if there is no involved union in relation to the coal operation
or agreement under paragraph (b) cannot be reached--by a
person authorised by the Chief Inspector to conduct elections
under this section.
(2) A person employed in or about the coal operation may be a
candidate in the election if and only if:
(a) the person is not disqualified under section 161, and
(b) the person is employed at the coal operation and has at least 3
years' experience working at the coal operation or at a coal
operation of the same type or has the other practical
experience required by the regulations.
(3) However, a person with less than 3 years' experience may be a
candidate for election if the Chief Inspector determines that the 3-
year requirement is impractical in a particular case.
(4) Subject to the regulations, all individuals employed in or about the
coal operation are entitled to vote in the election.
(5) Where there is only one candidate for the election, that person is
taken to have been elected.
(6) Where a person is elected as the site check inspector for a coal
operation, 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, the
industry check inspector and the operator of the coal operation.
(7) As soon as practicable after being so informed, the operator of the
coal operation must cause a notice that the person so elected is the
site check inspector for the coal operation to be displayed in a
prominent place at the coal operation, that will allow all of the
persons working in or about the coal operation to be notified of the
election.
Maximum penalty: 10 penalty units.
160 Term of office
Subject to sections 161 and 162, a site check inspector for a coal
operation holds office for 2 years after the date on which he or she
was elected but is eligible to be elected for further terms of office.
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161 Disqualification of site check inspectors
(1) An application for the disqualification of a site check inspector for
a coal operation may be made to the Chief Inspector by the operator
of a coal operation, by all the individuals employed in or about a
coal operation or by an involved union in relation to the coal
operation, on one or both of the following grounds:
(a) that action taken by the site check inspector in the exercise or
purported exercise of a power under this Act was taken:
(i) with the intention of causing harm to the operator of the
coal operation or to an undertaking of the operator, or
(ii) unreasonably, capriciously or otherwise than for the
purpose for which the power was conferred on the site
check inspector,
(b) that the site check inspector has intentionally used, or
disclosed to another person, for a purpose that is not
connected with the exercise of a power of a site check
inspector, information acquired from the operator of a coal
operation.
(2) If, on an application under subsection (1), the Chief Inspector is
satisfied that the site check inspector has acted in a manner referred
to in subsection (1) (a) or (b), the Chief Inspector may, after having
regard to:
(a) the harm (if any) that was caused to the operator of the coal
operation or to an undertaking of the operator as a result of the
action of the site check inspector, and
(b) the past record of the site check inspector in exercising the
powers of a site check inspector, and
(c) the effect (if any) on the public interest of the action of the
Chief Inspector, and
(d) any other matters that the Chief Inspector thinks relevant,
disqualify the site check inspector, for a specified period not
exceeding 5 years, from being a site check inspector for any coal
operation.
162 Vacation of office of site check inspector
(1) A person ceases to be the site check inspector for a coal operation if:
(a) the person resigns as the site check inspector, or
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(b) the person ceases to be employed in or about the coal
operation, or
(c) the person's term of office expires without the person having
been elected to be the site check inspector for the coal
operation for a further term, or
(d) the person is disqualified under section 161.
(2) A person may resign as the site check inspector for a coal operation:
(a) if the person was last elected as the site check inspector in an
election conducted by an involved union in relation to the coal
operation--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 coal operation.
(3) If a person has resigned as the site check inspector for a coal
operation:
(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 coal operation,
must notify the persons employed at or about the coal operation,
and, in a case to which subsection (2) (a) applies, the operator of the
coal operation, of the resignation.
(4) If a person has ceased to be the site check inspector for a coal
operation because of subsection (1) (b), the person must notify the
following persons in writing that the person has ceased to be the site
check inspector for that coal operation:
(a) the persons employed at or about the coal operation,
(b) the operator of the coal operation,
(c) if the person was last elected as the site check inspector in an
election conducted by an involved union in relation to the coal
operation--the involved union, in relation to the coal
operation, that nominated the person as a candidate in the
election.
163 Notification of election
A person elected as a site check inspector for a coal operation must:
(a) notify the operator of the coal operation of the person's
election, and
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Clause 164 Coal Mine Health and Safety Bill 2002
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(b) give to the operator the person's address and telephone
number (including any mobile telephone number).
Maximum penalty: 5 penalty units.
164 Functions of site check inspectors
The functions of a site check inspector for a coal operation are as
follows:
(a) to keep under review the measures taken to ensure the health,
safety and welfare of people at the coal operation, including
procedures to control risks,
(b) to investigate any matter that may be a risk to health and
safety at the coal operation,
(c) to request an investigation by an inspector if a health, safety
or welfare matter is not resolved after attempts to do so,
(d) to inspect a coal operation to assess the level of risk to which
employees are exposed,
(e) to inspect documents and plans relating to health, safety and
welfare that are required to be kept at the coal operation by
this Act or the regulations or by the Occupational Health and
Safety Act 2000 or the regulations made under that Act,
(f) any other functions prescribed by the regulations.
165 Training of site check inspectors
(1) A site check inspector for a coal operation 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 coal operation must permit the site check inspector
for the coal operation to take any time off work, without loss of
remuneration or other entitlements, that is necessary to undertake
the training.
166 Rights of site check inspectors
(1) A site check inspector:
(a) has the right to be present when an inspector makes a formal
report to the operator concerning a health, safety or welfare
matter at the coal operation, and
(b) has the right to accompany an employee, at the request of the
employee, during any interview with the operator or a
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contractor about a health, safety or welfare matter at the coal
operation, and
(c) has the right to observe any formal in-house investigation of
an event or other occurrence at the coal operation that must be
notified to the Chief Inspector, and
(d) has the right to require assistance and access to facilities that
are reasonably necessary for the exercise of his or her
functions.
(2) A person must not obstruct a site check inspector in the exercise of
any right conferred on the inspector by this Act.
Maximum penalty: 100 penalty units.
167 Duties of operators in relation to site check inspectors
The operator of a coal operation must:
(a) on being requested to do so by a site check inspector for the
coal operation, consult with the site check inspector on the
implementation of changes at the coal operation, being
changes that may affect the health or safety of persons at work
at the coal operation, and
(b) permit the site check inspector to make any inspection of the
coal operation that the site check inspector is entitled to make
under this Act, and to accompany an investigator during any
investigation at the coal operation by the investigator, and
(c) if there is no occupational health and safety committee
(established under the Occupational Health and Safety Act
2000) in respect of the operator's employees at the coal
operation--on being requested to do so by the site check
inspector, consult with the site check inspector concerning the
development, implementation and review of measures to
ensure the health or safety of persons at work at the coal
operation, and
(d) permit the site check inspector to be present at any interview
at which the site check inspector is entitled to be present under
this Act, and
(e) provide the site check inspector with access to any
information to which the site check inspector is entitled to
obtain access in accordance with this Act and to which access
has been requested, and
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(f) provide the site check inspector with reasonable time, during
normal working hours, to exercise the functions of the site
check inspector without loss of remuneration or other
entitlements, and
(g) provide the 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.
168 Duties of contractors in relation to site check inspectors
A contractor carrying out work at a coal operation must:
(a) on being requested to do so by a site check inspector for the
coal operation, consult with the site check inspector on the
implementation of changes at any coal operation 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 the site check inspector to make any inspection of the
coal operation that the site check inspector is entitled to make
under this Act, and to accompany an investigator during any
investigation at the coal operation by the investigator, and
(c) if there is no occupational health and safety committee
(established under the Occupational Health and Safety Act
2000) in respect of the contractor's employees at the coal
operation--upon being requested to do so by the site check
inspector, consult with the 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 the site check inspector to be present at any interview
at which the site check inspector is entitled to be present under
this Act, and
(e) provide the site check inspector with access to any
information to which the site check inspector is entitled to
obtain access in accordance with this Act and to which access
has been requested, and
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(f) if the 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 the site
check inspector, without loss of remuneration or other
entitlements.
Maximum penalty: 100 penalty units.
169 Assistance to site check inspectors
The operator of a coal operation and all other people at the coal
operation must afford every facility and assistance to a site check
inspector for the purposes of an inspection of the coal operation by
the site check inspector.
Maximum penalty: 100 penalty units.
170 Reports by site check inspectors
(1) A site check inspector for a coal operation must, within 7 days after
making an inspection of the coal operation or of any part of the coal
operation, send to the operator of the coal operation a report of the
results of the inspection.
Maximum penalty: 5 penalty units.
(2) A report under subsection (1) in respect of a coal operation or a part
of a coal operation must be kept at the coal operation by the operator
of the coal operation for at least 12 months after it is made.
Maximum penalty: 100 penalty units.
171 Reporting of dangers
(1) A report of the finding, during any inspection by a site check
inspector for a coal operation, of:
(a) noxious or inflammable gas, or
(b) the existence of self-heating by coal or other material, or
(c) any other condition from which danger to the coal operation
or to the safety or health of persons employed at the coal
operation may be apprehended,
must be recorded by the site check inspector in a book or other form
of records (to be kept at the coal operation by the operator for that
purpose) on the day of the inspection and before the site check
inspector leaves the coal operation following the inspection.
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Clause 172 Coal Mine Health and Safety Bill 2002
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(2) If any report recorded under subsection (1) in respect of a coal
operation states the existence, or suspected existence, of any danger,
the operator must immediately inform the Chief Inspector of the
contents of the report and cause a copy of the report to be sent to the
Chief Inspector.
(3) The regulations may prescribe how the Chief Inspector is required
to be informed under this section and what must be reported to the
Chief Inspector.
Subdivision 2 Electrical check inspectors
172 Electrical check inspectors
(1) For the purpose of enabling inspections to be carried out on
electrical equipment at a coal operation on behalf of the people at
the coal operation, a person may be elected as the electrical check
inspector for the coal operation.
(2) One electrical check inspector may be elected for each coal
operation.
(3) A person elected under this section must be:
(a) the holder of the evidence of competence prescribed by the
regulations, or
(b) an electrical tradesperson with at least 5 years' experience in
coal mines in New South Wales.
(4) Subdivision 1 applies to the election of electrical check inspectors
in the same way as it applies to site check inspectors. However, an
electrical check inspector need not work at the coal operation for
which he or she is elected and the same person may be elected as an
electrical check inspector for 2 or more coal operations.
(5) Subdivision 1 applies to the functions of electrical check inspectors
in the same way as it applies to site check inspectors, except that the
functions of electrical check inspectors are limited to electrical
equipment and issues and risks arising from its use.
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Subdivision 3 Industry check inspectors
Note.
A person cannot be appointed as an industry check inspector unless the person
is also an authorised representative under the Occupational Health And Safety
Act 2000 (see section 173 of this Act). Division 3 of Part 5 of the OH&S Act sets
out the powers of entry and the other inspection powers of authorised
representatives. This Division gives industry check inspectors additional
powers.
173 Appointment of industry check inspectors
(1) The Minister must appoint a person as an industry check inspector
if the person:
(a) is nominated by the Construction, Forestry, Mining and
Energy Union (Mining and Energy Division), and
(b) is an authorised representative within the meaning of section
76 of the Occupational Health and Safety Act 2000, and
(c) has the qualifications prescribed by the regulations.
(2) However, the Minister is not required to appoint a person if there are
already 4 people appointed as industry check inspectors.
(3) If a person ceases to comply with subsection (1), that person's
appointment as industry check inspector is revoked.
(4) An appointment under this section must be made in writing.
174 Functions of industry check inspectors
The functions of an industry check inspector are:
(a) to review the content and functioning of the health and safety
management system required under this Act or the
regulations, and
(b) to investigate any complaint from an employee at a coal
operation regarding health or safety, and
(c) to participate in investigations of events, occurrences or
notifiable incidents, and
(d) to assist in the training of site check inspectors, and
(e) any other functions prescribed by the regulations.
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Clause 175 Coal Mine Health and Safety Bill 2002
Part 10 Oversight of coal operations
175 Powers of industry check inspectors to suspend operations
(1) This section applies if an industry check inspector is of the opinion
that:
(a) there has been a failure to comply with a provision of the
Occupational Health and Safety Act 2000, this Act, the
regulations under either of those Acts or any applicable health
and safety management system, and
(b) because of that failure there is a danger to the safety or health
of persons at work at a place at the coal operation.
(2) If this section applies, the industry check inspector may serve on the
operator of the coal operation a notice:
(a) stating that the industry check inspector is of the opinion
referred to in subsection (1), and
(b) giving particulars of the industry check inspector's reasons
for being of that opinion, and
(c) giving particulars of the action which, in the industry check
inspector's opinion, should be taken to remove the danger.
(3) That notice may direct that any operations being carried on at the
place be suspended.
(4) The notice must, if a form has been prescribed by the regulations for
the purposes of this section, be in that form.
(5) An operator who is given a direction must immediately:
(a) comply with the direction, and
(b) advise an inspector of the giving of the direction.
(6) A direction ceases to have effect:
(a) on attendance by an inspector and an assessment of matters to
which the direction relates, or
(b) on withdrawal, by instrument in writing, of the direction by
the industry check inspector by whom it was given.
(7) An operator who fails to comply with a direction given to the person
is guilty of an offence.
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)--375
penalty units, or
(d) in the case of an individual (not being a previous offender)--
250 penalty units.
(8) Despite a direction being given to an operator, the operator may
cause work to be carried out in the place to which the direction
relates for the purpose of preventing or mitigating danger.
176 Industry check inspector may delegate functions to site check
inspector
(1) An industry check inspector may delegate his or her functions under
section 175 to a site check inspector.
(2) A delegation must be in writing and must be sent to the site check
inspector, the operator of the relevant coal operation and the Chief
Inspector.
(3) A site check inspector may only exercise delegated power under this
section if:
(a) the site check inspector has received any required training
prescribed by the regulations, and
(b) the industry check inspector is not available or it is not
practicable for him or her to attend at short notice.
177 Care to be taken
In the exercise of a function under this Division, an industry check
inspector must do as little damage as possible.
178 Identification of industry check inspectors
(1) Every industry check inspector is to be issued with an identification
card by the Minister.
(2) The identification card must:
(a) state that it is issued under this Act, and
(b) give the name of the person to whom it is issued, and
(c) state the date (if any) on which it expires, and
(d) bear the signature of the Minister or an officer approved by
the Minister for the purposes of this paragraph.
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Clause 179 Coal Mine Health and Safety Bill 2002
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Subdivision 4 Inspections on behalf of work force
179 Inspections by check inspectors
A check inspector for a coal operation may:
(a) at any time go into and inspect the shafts, roadways, working
places, old workings and machinery and equipment at the coal
operation, and
(b) inspect any documents or plans that by virtue of the
Occupational Health and Safety Act 2000 or the regulations
made under that Act, or by virtue of this Act or the regulations
made under this Act, are required to be kept at the office of the
coal operation, and
(c) when there is at the coal operation an event or other
occurrence (being an event or occurrence for which notice is
required by or under this Act to be given), 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 coal operation and any
machinery, apparatus or other thing at the coal
operation, or
(ii) test the atmosphere at the place where the event or other
occurrence happened.
180 Check inspector may be accompanied by operator's representative
For the purposes of an inspection of a coal operation under section
179, a check inspector may be accompanied by the operator or a
representative of the operator, if the operator thinks fit.
181 Check inspector must not leave work without prior notice
A check inspector employed at a coal operation must not leave his
or her place of work for the purpose of exercising functions as a
check inspector under this Subdivision unless the check inspector
gives reasonable notice to the operator of the coal operation 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.
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Coal Mine Health and Safety Bill 2002 Clause 182
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Division 4 Offences
182 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.
183 Offence of interfering with check inspector or government official
A person must not, without reasonable excuse, wilfully interfere
with a check inspector or a government official in exercising his or
her 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
(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.
184 Offence of impersonating a check inspector or government official
A person must not impersonate, or falsely represent that the person
is, a check inspector or a government official.
Maximum penalty: 100 penalty units.
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Clause 185 Coal Mine Health and Safety Bill 2002
Part 11 Coal mining industry codes of practice
Part 11 Coal mining industry codes of practice
185 Purpose of industry codes of practice
The purpose of a coal 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 5 of the Occupational Health
and Safety Act 2000 with respect to occupational health, safety and
welfare at coal operations.
186 Minister may prepare draft codes
(1) The Minister may prepare, or cause to be prepared, draft coal
mining industry codes of practice.
(2) A draft coal 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.
187 Consultation on draft codes
The Minister is to arrange for any organisations or people that the
Minister may think appropriate to be consulted about a draft coal
mining industry code of practice.
188 Approval of codes by Minister
The Minister may approve a coal mining industry code of practice.
189 Publication, commencement and availability of codes
(1) An approved coal 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 coal mining industry code of
practice,
(b) if an approved coal mining industry code of practice has been
amended, a copy of the code as so amended,
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(c) if an approved coal 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.
190 Amendment or revocation of codes
An approved coal 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
industry codes of practice.
191 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 made under that Act:
(a) an approved coal 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 coal mining
industry code of practice.
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Part 12 Regulations
192 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).
193 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 people
at coal operations,
(b) critical controls for major hazards at coal operations,
(c) controls for risks of lesser consequence at coal operations,
(d) the records that must be kept and the reports that must be
made by an operator of a coal operation to the Chief Inspector
concerning the health and safety performance of the coal
operation,
(e) the matters in a health and safety management system,
(f) the matters in a major hazard management plan,
(g) the matters in an emergency management system,
(h) the matters in a safe work method statement,
(i) the equipment, facilities and communication systems that
must be provided in relation to an emergency management
system,
(j) the training that must be provided in relation to an emergency
management system,
(k) regulating or prohibiting:
(i) the design, manufacture, supply or use of any plant at or
in relation to a coal operation, and
(ii) the design, manufacture, supply, storage, transport or
use of any substance at or in relation to a coal operation,
and
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(iii) the carrying on of any process or the carrying out of any
activity at or in relation to a coal operation,
(l) requiring people to identify hazards to the health and safety of
people, and to assess risks, arising from work at or in relation
to a coal operation (including risks arising from the place of
work or from any plant or substance for use at work),
(m) designating the people (whether employers, self-employed
people, contractors or other people) who are to be responsible
for compliance with the obligations imposed by the
regulations,
(n) the register of persons occupying positions,
(o) prohibiting, absolutely or conditionally, the carrying out of
specified activities or classes of activities at or in relation to a
coal operation,
(p) requiring a person, before commencing to carry out work of a
particular kind at a place of work at or in relation to a coal
operation, to give the Minister or other people notice of the
proposed work in accordance with the regulations,
(q) requiring people at a coal operation, in any circumstances
involving a risk to their health, to undergo a biological,
hearing or other test,
(r) requiring people at a coal operation to not eat, drink or smoke
in any circumstances involving an increased risk to their
health,
(s) measures for detecting and investigating cases in which the
health of people has been affected, including medical
examinations, the making of biological, hearing or other tests
and the notification of absences from work,
(t) prohibiting, absolutely or conditionally, the use of specified
materials or classes or types of material at or in relation to a
coal operation,
(u) prohibiting, absolutely or conditionally, the use of specified
equipment or classes or types of equipment at or in relation to
coal operations,
(v) the design, construction, installation, maintenance, use,
testing, repair, adjustment, alteration and examination of
plant used at or in relation to coal operations,
(w) the design, use, construction and maintenance of buildings
and structures at coal operations,
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Clause 193 Coal Mine Health and Safety Bill 2002
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(x) the design, use, construction and maintenance of equipment
used in connection with shafts and roadways in coal
operations,
(y) prohibiting the installation at a coal operation of plant not
constructed so as to comply with the regulations,
(z) the construction, design, material and strength of foundations
to which any machinery or apparatus at a coal operation is or
is to be anchored,
(aa) the provision of security measures at a coal operation to
prevent access to shafts, drifts and surface buildings when
unattended,
(ab) the provision of blast doors or other devices capable of
assisting in the sealing off of coal operations,
(ac) inspections or monitoring for the presence of noxious or
inflammable gas, spontaneous combustion or heating or for
the absence of oxygen, including provisions for or with
respect to the installation in coal operations or the supply to
people employed in coal operations of devices, systems or
equipment for the detection, monitoring or testing of
inflammable or noxious gases or for detecting or monitoring
the absence of oxygen,
(ad) the support of the roof and sides of working places and
roadways in coal operations and the withdrawal of that
support,
(ae) the maintenance and inspection of shafts and roadways at coal
operations,
(af) working practices employed at a coal operation,
(ag) the circumstances in which consultation must be undertaken
by an operator of a coal operation or by a contractor,
(ah) the mode of consultation by the operator of a coal operator or
by a contractor,
(ai) prohibiting the working of a coal operation affected by dust or
prescribing the conditions under which any such coal
operations must be worked,
(aj) requiring the use in a coal operation of prescribed apparatus
in relation to dust,
(ak) requiring steps to be taken and working practices to be
adopted to minimise dust in a coal operation,
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Coal Mine Health and Safety Bill 2002 Clause 193
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(al) preventing the accumulation in a coal operation of potentially
explosive dust,
(am) the prevention, detection and combating of fires at, and
spontaneous heatings occurring in, a coal operation including
provisions for or with respect to:
(i) the establishment and maintenance at a coal operation
of any arrangement that may be necessary for the
prevention, detection and combating of fires and
spontaneous heatings and the training of any person
within that arrangement, and
(ii) the provision and maintenance at a coal operation of
suitable and sufficient apparatus for the prevention,
detection and combating of fires and spontaneous
heatings,
(an) the design, installation, operation and maintenance of
methane drainage systems in a coal operation and the
treatment, storage and disposal of methane,
(ao) 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
(ii) near any place or strata that is likely to contain a
dangerous accumulation of gas or water or material that
flows when wet,
(ap) the control of the supply, storage and use of blasting
materials, blasting devices and inflammable materials at a
coal operation,
(aq) requiring the surveying, and the preparation of plans, of
barriers and protective pillars in a coal operation and
prescribing the time in which any such surveys or plans must
be made or prepared,
(ar) the waiver, remission or refund of fees charged under the Act
or the regulations and the interest payable for late payment of
such fees,
(as) the registration of any plant, material or thing before it may be
used in, installed in or taken into a coal operation or connected
to, or used with, any other plant, material or thing used or
installed in a coal operation,
(at) the generation, storage, transformation, transmission and use
of electricity at a coal operation,
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Clause 193 Coal Mine Health and Safety Bill 2002
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(au) the circumstances in which the supply of electricity into the
underground parts of a coal operation or part of a coal
operation or any apparatus in a coal operation must be cut off
and the type, nature and design of apparatus to be used to cut
off the supply of electricity,
(av) requiring the installation in coal operations of any electrical
apparatus that may be prescribed and the type, nature and
design of any such apparatus,
(aw) the circumstances in which the supply of electricity must not
be connected to the underground parts of a coal operation or
part of a coal operation and the type, nature and design of any
apparatus to be used to prevent the supply of electricity being
connected,
(ax) requiring communication systems to be provided in a coal
operation,
(ay) the supply and maintenance of first aid equipment, facilities
and locations at a coal operation,
(az) the employment at a coal operation of people trained to
administer first aid to people injured,
(ba) the conveyance of people injured within a coal operation from
the coal operation to their homes or hospital,
(bb) the provision, location, care and maintenance of sanitary
conveniences at a coal operation,
(bc) the control of rats, mice, other vermin and insects in or about
coal operations,
(bd) the provision, design, location, care and maintenance of bath
and change houses at a coal operation,
(be) the supply of drinking water at a coal operation,
(bf) the provision of facilities for the taking of meals both on the
surface and underground at a coal operation,
(bg) the supply and maintenance of safety equipment for the use of
people employed at a coal operation,
(bh) the transport of people and materials in a coal operation,
(bi) requiring people employed in a coal operation who carry out
prescribed functions that may affect the safety or health of
other people to hold any evidence of competence that may be
prescribed,
(bj) the ventilation of coal operations,
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(bk) the environmental working conditions in a coal operation,
(bl) the control of the temperature and humidity in a coal
operation,
(bm) lighting in or about coal operations,
(bn) prohibiting the taking into coal operations of items that may
affect the safety of people at coal operations,
(bo) searching people, before entry into coal operations, for items
referred to in paragraph (bn) and the confiscation and disposal
of any such items found,
(bp) the fencing, enclosing or sealing of abandoned or
discontinued coal operations or parts of coal operations,
(bq) requiring the provision of information, and the means of
information provision, at a coal operation and prescribing:
(i) the number, design, construction, size and location of
those means of information provision,
(ii) the matters that must be displayed or provided, and
(iii) the class or classes of persons to whom information is
to be provided,
(br) prescribing the type, size, content and location of signs and
notices to be displayed at a coal operation,
(bs) the preparation, maintenance, keeping and preservation of
plans, sections and drawings of coal operations (including
abandoned coal operations) and of workings in or about coal
operations and of related documents, including provisions for
or with respect to the preparation of those plans, sections and
drawings by the Director-General and the recovery of the cost
of their preparation, maintenance, keeping and preservation,
(bt) surveys of coal operations (including abandoned coal
operations),
(bu) the furnishing or production of copies of plans, sections and
drawings of coal operations (including abandoned coal
operations) and the furnishing of information relevant to the
preparation of those plans, sections or drawings to the
Director-General, to inspectors and to other people,
(bv) the supply of, or the furnishing of information from, copies of
plans, sections or drawings filed with the Director-General to
people,
(bw) prescribing, in respect of emplacement areas, engineering,
environmental and safety standards and practices to be
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Clause 193 Coal Mine Health and Safety Bill 2002
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adopted in constructing and using emplacement areas and
steps to be taken to keep emplacement areas secure,
(bx) the provision, retention, maintenance and inspection of
records at a coal operation,
(by) the obligations of land owners and land occupiers at or in the
vicinity of coal operations or abandoned or former coal
operations,
(bz) regulating the number and class of people who may be
employed at a coal operation or part of a coal operation,
(ca) the functions of the Chief Inspector,
(cb) 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
people in the course of an inspection,
(cc) the functions of industry check inspectors, site check
inspectors and electrical check inspectors, including
provisions for or with respect to the production of
identification cards by such people,
(cd) the regulation of coal preparation plants,
(ce) the analysis of any substance,
(cf) the fees chargeable or payable for doing any act or providing
any service in connection with this Act or the regulations,
(cg) forms for the purposes of this Act or the regulations,
(ch) the manner of serving notices under this Act or the
regulations,
(ci) the review of actions and determinations of an inspector or
other person,
(cj) any information to be provided to any person by an inspector
or other person exercising functions under this Act,
(ck) the people, or class of people, entitled to vote at an election
under this Act,
(cl) the manner in which an election under this Act must be held,
(cm) the fitness for work of those who work at coal operations,
(cn) working time arrangements of those who work at coal
operations,
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(co) the consumption of alcohol or other drugs by those who work
at coal operations,
(cp) the content and operation of a management structure for a coal
operation,
(cq) supervision of those who work at coal operations,
(cr) disclosure of financial interests by government officials,
(cs) the dimensions of roadways and pillars in coal operations that
are underground mines.
194 Regulations regarding classification of underground mines
Regulations may provide for the classification of underground
mines by reference to the quantity of inflammable gas found in the
coal operations.
195 Regulations may require verification by statutory declaration
A regulation may require an application under this Act to be verified
by a statutory declaration.
196 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 of a
class prescribed by the regulations that is made under this Act or 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.
197 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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Clause 198 Coal Mine Health and Safety Bill 2002
Part 12 Regulations
198 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 coal operation.
199 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.
200 Regulations may create criminal offences
The regulations may create offences punishable by a penalty not
exceeding 250 penalty units.
201 Regulations may exempt from obligations under the regulations
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.
202 Regulations relating to consultation
(1) If a provision of this Act requires consultation to be carried out with
people who work at a coal operation, in the manner required by the
regulations, the regulations may specify the circumstances where it
is sufficient for the occupational health and safety committee for the
coal operation (established under the Occupational Health and
Safety Act 2000) or the site check inspector for the coal operation to
be consulted about the matter rather than the people who work at the
coal operation.
(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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Coal Mine Health and Safety Bill 2002 Clause 203
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.
203 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.
204 Aiding or abetting the commission of offences
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.
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Clause 205 Coal Mine Health and Safety Bill 2002
Part 13 Miscellaneous
205 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.
206 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
207 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 Act
(or any other Act), or
(c) for the purposes of any legal proceedings arising out of this
Act (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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Coal Mine Health and Safety Bill 2002 Clause 208
Miscellaneous Part 13
208 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.
209 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, the information or the 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
210 Chief Inspector subject to Ministerial control
The Chief Inspector is, in the exercise of his or her functions, subject
to Ministerial control and direction.
211 Minister may exercise function of Chief Inspector
The Minister may, at his or her discretion, exercise a function
conferred on the Chief Inspector by this Act or the regulations.
212 Delegation of functions by the 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.
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Clause 213 Coal Mine Health and Safety Bill 2002
Part 13 Miscellaneous
213 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).
214 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
215 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
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Coal Mine Health and Safety Bill 2002 Clause 216
Miscellaneous Part 13
(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.
216 Supply of documents to an operator
If this Act or the regulations requires something to be sent or given
to the operator of a coal operation it is enough 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 on-site office of
the coal operation or at the premises at which the relevant part of the
work of the coal operation is carried out.
217 Supply of documents to Chief Inspector
If this Act or the regulations requires something to be sent or given
to the Chief Inspector, it is enough 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.
218 Supply of documents to an industry check inspector
If this Act or the regulations requires something to be sent or given
to an industry check inspector, it is enough that it is sent or given to
a district office, or the national office, of the Construction, Forestry,
Mining and Energy Union (Mining and Energy Division).
Division 5 Fees
219 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, and
(f) for any other purpose in connection with this Act authorised
by the regulations.
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Clause 220 Coal Mine Health and Safety Bill 2002
Part 13 Miscellaneous
(2) Any determination made under this section is subject to the
regulations.
Division 6 General
220 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 or any other Act,
subject such person personally to any action, liability, claim or
demand.
(2) In this section, protected person means 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 electrical check inspector,
(g) an industry check inspector,
(h) an inspector,
(i) a mine safety officer,
(j) an investigator,
(k) a person who constitutes a Board of Inquiry,
(l) an assessor sitting with a Board of Inquiry.
221 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, electrical check inspector or
industry check inspector.
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Coal Mine Health and Safety Bill 2002 Clause 222
Repeals and amendments Part 14
Part 14 Repeals and amendments
222 Repeals
The following are repealed:
(a) the Coal Mines Regulation Act 1982,
(b) the Coal Mines (General) Regulation 1999,
(c) the Coal Mines (Investigation) Regulation 1999,
(d) the Coal Mines (Open Cut) Regulation 1999,
(e) the Coal Mines (Underground) Regulation 1999,
(f) the Courts of Coal Mines Regulation Rules 1991.
223 Amendment of Occupational Health and Safety Act 2000 No 40
The Occupational Health and Safety Act 2000 is amended as set out
in Schedule 1.
224 Amendment of other Acts
Each Act specified in Schedule 2 is amended as set out in that
Schedule.
225 Savings, transitional and other provisions
Schedule 3 has effect.
226 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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Coal Mine Health and Safety Bill 2002
Schedule 1 Amendment of Occupational Health and Safety Act 2000
Schedule 1 Amendment of Occupational Health and
Safety Act 2000
(Section 223)
[1] Section 4 Definitions
Omit paragraph (a) of the definition of associated occupational health
and safety legislation.
[2] Section 4
Insert in alphabetical order:
coal workplace means a place to which the Coal Mine Health
and Safety Act 2002 applies.
[3] Section 4
Omit the definition of mine. Insert instead:
mine has the same meaning as in the Mines Inspection
Act 1901.
[4] Section 5 Application of Act
Insert "or coal workplaces" after "mines" in Note 1 to the section.
[5] Section 17 Establishment of OHS committees, election of OHS
representatives and other agreed arrangements
Insert after section 17 (5):
(6) In relation to a coal workplace:
(a) a site check inspector (within the meaning of the Coal
Mine Health and Safety Act 2002) and an electrical
check inspector for a coal workplace, must be members
of any OHS committee for the coal workplace, and
(b) subsection (2) does not apply.
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.
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Coal Mine Health and Safety Bill 2002
Amendment of Occupational Health and Safety Act 2000 Schedule 1
[6] Section 30 Alternative verdicts
Insert at the end of the section:
(2) If in proceedings for an offence against a provision of section
8 or 9 the court is not satisfied that the person contravened that
provision but is satisfied that the act or omission concerned
constituted a contravention of a provision of Part 5 of the Coal
Mine Health and Safety Act 2002, the court may convict the
person of an offence against that other provision.
[7] Section 47 Appointment of inspectors (otherwise than in
connection with mines or coal workplaces)
Insert "or a coal workplace" after "mine" in section 47 (2).
[8] Section 47A Appointment of inspectors in connection with mines
Omit "the Coal Mines Regulation Act 1982 or" from section 47A (1).
[9] Section 47B
Insert after section 47A:
47B Appointment of inspectors in connection with coal workplaces
A person appointed as a government official under the Coal
Mine Health and Safety Act 2002 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 coal workplace, but
may exercise functions under Division 2 in relation to
premises other than a coal workplace for the purpose of
investigating any matter under this Act in relation to a coal
workplace.
[10] Section 48 Identification of inspectors
Omit "Coal Mines Regulation Act 1982" from section 48 (3).
Insert instead "Coal Mine Health and Safety Act 2002".
[11] Sections 77 and 81
Insert "or the Coal Mine Health and Safety Act 2002" after "legislation"
wherever occurring.
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Coal Mine Health and Safety Bill 2002
Schedule 1 Amendment of Occupational Health and Safety Act 2000
[12] Sections 86 (5) and 87 (6)
Insert "or a coal workplace" after "mine" wherever occurring.
[13] Part 7 Criminal and other proceedings
Insert before Division 1:
Division 1A Application of this Part
104A Application of this Part
(1) This Part applies to proceedings in connection with this Act
or the regulations.
(2) This Part extends to proceedings in connection with the Coal
Mine Health and Safety Act 2002 and the regulations under
that Act.
(3) Accordingly, for the purposes of proceedings referred to in
subsection (2):
(a) a reference in this Part to this Act or the regulations
includes a reference to that Act or those regulations, and
(b) a reference in this Part to WorkCover is a reference to
the Department of Mineral Resources, and
(c) a reference in this Part to the General Manager of
WorkCover is a reference to the Director-General of the
Department of Mineral Resources, and
(d) a reference in section 109 (b) of this Act to a certificate,
licence or permit issued under a provision of the
regulations is a reference to a certificate of competence
issued under the Coal Mine Health and Safety Act 2002.
(4) The regulations may make provision modifying the
application of this Part to proceedings in connection with the
Coal Mine Health and Safety Act 2002 and the regulations
under that Act.
[14] Section 133 Application of Act to mines and coal workplaces:
references to WorkCover
Omit "Coal Mines Regulation Act 1982".
Insert instead "Coal Mine Health and Safety Act 2002".
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Coal Mine Health and Safety Bill 2002
Amendment of other Acts Schedule 2
Schedule 2 Amendment of other Acts
(Section 224)
2.1 Coal and Oil Shale Mine Workers (Superannuation) Act 1941
No 45
Section 1 Name of Act, commencement and construction
Omit "Coal Mines Regulation Act 1982" from section 1 (5).
Insert instead "Coal Mine Health and Safety Act 2002".
2.2 Coal Industry Act 2001 No 107
[1] Section 10 General functions
Omit "Chief Inspector of coal mines appointed under section 7 of the Coal
Mines Regulation Act 1982" from section 10 (1) (d).
Insert instead "Chief Inspector appointed under the Coal Mine Health and
Safety Act 2002".
[2] Section 10 (1) (i)
Omit the paragraph. Insert instead:
(i) approving training schemes required for a health and
safety management system under the Coal Mine Health
and Safety Act 2002,
[3] Section 45 Certain events occurring at a mine rescue station to be
notified to the Chief Inspector
Omit "of coal mines" from section 45 (2) (a).
Insert instead "appointed under the Coal Mine Health and Safety
Act 2002".
[4] Section 45 (4) (a)
Omit "(within the meaning of section 85 of the Coal Mines Regulation
Act 1982)".
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Coal Mine Health and Safety Bill 2002
Schedule 2 Amendment of other Acts
[5] Section 45 (5)
Insert after section 45 (4):
(5) In this section, serious bodily injury means:
(a) a fracture of the skull, jaw, spine, pelvis, arm,
shoulder-blade, collar-bone, forearm, thigh, leg,
knee-cap, ankle or ribs, or
(b) a dislocation of the shoulder, elbow, hip, knee or spine,
or
(c) an amputation of the hand or foot or of a substantial part
of the hand or foot, or
(d) the serious impairment or loss of sight of an eye, or
(e) an internal haemorrhage receiving hospital treatment,
or
(f) burns receiving treatment from a registered medical
practitioner, or
(g) an injury involving injection of hydraulic fluid, or
(h) asphyxia.
2.3 Coroners Act 1980 No 27
[1] Schedule 1 Special provisions--inquests concerning deaths or
suspected deaths in mines
Omit "Coal Mines Regulation Act 1982" where firstly and thirdly
occurring.
Insert instead "Coal Mine Health and Safety Act 2002".
[2] Schedule 1, clause 1 (definition of "mine")
Omit "any mine to which the Coal Mines Regulation Act 1982 applies".
Insert instead "any place of work to which the Coal Mine Health and
Safety Act 2002 applies".
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Coal Mine Health and Safety Bill 2002
Amendment of other Acts Schedule 2
2.4 Criminal Appeal Act 1912 No 16
[1] Section 2 Definitions
Omit ", section 52 of the Land and Environment Court Act 1979 or section
153 of the Coal Mines Regulation Act 1982" from paragraph (h) of the
definition of sentence in section 2 (1).
Insert instead "or section 52 of the Land and Environment Court
Act 1979".
[2] Section 5C Appeal against quashing of indictment
Omit "or a Court of Coal Mines Regulation in its summary jurisdiction, in
any proceedings to which the Crown was a party, has quashed any
application made under section 4 (1) of the Supreme Court (Summary
Jurisdiction) Act 1967, as applied by section 152 (3) of the Coal Mines
Regulation Act 1982, or any charge specified in such an application,".
2.5 Dams Safety Act 1978 No 96
[1] Section 16 Entry, inspection, testing etc
Omit "Coal Mines Regulation Act 1982" from section 16 (5) (a).
Insert instead "Coal Mine Health and Safety Act 2002".
[2] Section 16 (5) (a) (i) and (ii)
Omit "of Coal Mines" wherever occurring.
[3] Section 18 Giving of notices to ensure safety of prescribed dams
Omit "Coal Mines Regulation Act 1982 or an open cut working within the
meaning of that Act" from section 18 (3) (b) (i).
Insert instead "Coal Mine Health and Safety Act 2002".
2.6 Dangerous Goods Act 1975 No 68
Sections 5 (3) and 41 (2)
Omit "Coal Mines Regulation Act 1982" wherever occurring.
Insert instead "Coal Mine Health and Safety Act 2002".
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Coal Mine Health and Safety Bill 2002
Schedule 2 Amendment of other Acts
2.7 Defamation Act 1974 No 18
Section 17G and clause 2 (19A) of Schedule 2
Omit "Coal Mines Regulation Act 1982" wherever occurring.
Insert instead "Coal Mine Health and Safety Act 2002".
2.8 Electricity Safety Act 1945 (1946 No 13)
Section 4 Definitions
Omit "in or about a mine within the meaning of the Coal Mines Regulation
Act 1982" from paragraph (d) of the definition of electrical installation in
section 4 (1).
Insert instead "at a place of work to which the Coal Mine Health and
Safety Act 2002 applies".
2.9 Industrial Relations Act 1996 No 17
[1] Section 197A Appeals against acquittals in proceedings for
offences against occupational health and safety legislation
Omit section 197A (10). Insert instead:
(10) In this section, occupational health and safety legislation
means:
(a) the Occupational Health and Safety Act 1983 and the
regulations made under that Act, and
(b) the Occupational Health and Safety Act 2000 and the
regulations made under that Act, and
(c) the Coal Mines Regulation Act 1982 and the regulations
made under that Act, and
(d) the Coal Mine Health and Safety Act 2002 and the
regulations made under that Act, and
(e) the associated occupational health and safety
legislation, within the meaning of the Occupational
Health and Safety Act 2000.
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Coal Mine Health and Safety Bill 2002
Amendment of other Acts Schedule 2
[2] Schedule 4 Savings, transitional and other provisions
Insert after clause 44:
Part 9 Provisions consequent on enactment of
other Acts
45 Provision consequent on enactment of Coal Mine Health and
Safety Act 2002
In relation to a decision in proceedings for an offence under
the Occupational Health and Safety Act 1983 or the
regulations under that Act:
(a) section 197A of this Act does not apply to a decision
made before the commencement of Schedule 2.9 to the
Coal Mine Health and Safety Act 2002 (which
substituted section 197A (10)), and
(b) section 197A extends to proceedings commenced
before the commencement of Schedule 2.9 to the Coal
Mine Health and Safety Act 2002.
2.10 Mine Subsidence Compensation Act 1961 No 22
[1] Section 5 Appointment and constitution of the Board
Omit "Minerals and Energy" from section 5 (2) (a).
Insert instead "Mineral Resources".
[2] Section 5 (2) (b)
Omit section 5 (2) (b). Insert instead:
(b) a person nominated by the Minister who the Minister is
satisfied has appropriate expertise in coal mine
operations,
[3] Section 6 Body corporate
Omit "Coal Mines Regulation Act 1982" from section 6 (5).
Insert instead "Coal Mine Health and Safety Act 2002".
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Coal Mine Health and Safety Bill 2002
Schedule 2 Amendment of other Acts
[4] Section 11 Contributions to be paid by colliery proprietors to Fund
Omit "Coal Mines Regulation Act 1982" wherever occurring in section 11
(1B) (a) (iii) and (6).
Insert instead "Mining Act 1992".
2.11 Mines Inspection Act 1901 No 75
Section 48C Issue of permits
Omit "section 148 (Issue of tourist and educational permits) of the Coal
Mines Regulation Act 1982" from section 48C (1A).
Insert instead "section 107 (Issue of tourist and educational permits) of the
Coal Mine Health and Safety Act 2002".
2.12 Mining Act 1992 No 29
[1] Sections 21, 40 and 61
Omit "chief inspector of coal mines" wherever occurring.
Insert instead "Chief Inspector appointed under the Coal Mine Health and
Safety Act 2002".
[2] Section 163 Colliery holdings
Omit "may" from section 163 (3).
Insert instead "must".
[3] Dictionary
Omit the definition of chief inspector of coal mines.
2.13 Offshore Minerals Act 1999 No 42
Sections 123, 183, 259 and 308
Omit "Coal Mines Regulation Act 1982" wherever occurring in the note
to each section.
Insert instead "Coal Mine Health and Safety Act 2002".
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Coal Mine Health and Safety Bill 2002
Amendment of other Acts Schedule 2
2.14 Petroleum (Onshore) Act 1991 No 84
Section 113 Officers
Omit "section 7 of the Coal Mines Regulation Act 1982" from section 113
(1).
Insert instead "the Coal Mine Health and Safety Act 2002".
2.15 Rail Safety Act 1993 No 50
Section 8 Railways to which Act applies
Omit "Coal Mines Regulation Act 1982" from section 8 (2) (a).
Insert instead "Coal Mine Health and Safety Act 2002".
2.16 Surveying Act 2002 No 83
Sections 3 (1), 13 (4) (f), 27 (2) (f) and 36 (3)
Omit "Coal Mines Regulation Act 1982" wherever occurring.
Insert instead "Coal Mine Health and Safety Act 2002".
2.17 Surveyors Act 1929 No 3
Section 25 Saving
Omit "Coal Mines Regulation Act 1982".
Insert instead "Coal Mine Health and Safety Act 2002".
2.18 Workers Compensation Act 1987 No 70
Sections 4 and 52A (9) and Part 18 of Schedule 6
Omit "in or about a mine to which the Coal Mines Regulation Act 1982
applies" wherever occurring.
Insert instead "at a place of work to which the Coal Mine Health and
Safety Act 2002 applies".
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Coal Mine Health and Safety Bill 2002
Schedule 2 Amendment of other Acts
2.19 Workers' Compensation (Dust Diseases) Act 1942 No 14
[1] Sections 3 (1) (definition of "worker") and 8 (2) (a)
Omit "in or about a mine to which the Coal Mines Regulation Act 1982
applies" wherever occurring.
Insert instead "at a place of work to which the Coal Mine Health and
Safety Act 2002 applies".
[2] Section 6 Constitution of Fund
Omit "owner" from section 6 (9). Insert instead "operator".
[3] Section 6 (9)
Omit "mine to which the Coal Mines Regulation Act 1912 applies".
Insert instead "place of work to which the Coal Mine Health and Safety
Act 2002 applies".
[4] Section 10 Regulations
Omit "mines to which the Coal Mines Regulation Act 1912 applies" from
section 10 (2) (b2).
Insert instead "places of work to which the Coal Mine Health and Safety
Act 2002 applies".
2.20 Workplace Injury Management and Workers Compensation
Act 1998 No 86
Section 4 Definitions
Omit "in or about a mine to which the Coal Mines Regulation Act 1982
applies" from paragraph (c) of the definition of injury in section 4 (1).
Insert instead "at a place of work to which the Coal Mine Health and
Safety Act 2002 applies".
Page 114
Coal Mine Health and Safety Bill 2002
Savings, transitional and other provisions Schedule 3
Schedule 3 Savings, transitional and other provisions
(Section 225)
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
Division 1 Interpretation
2 Definitions
In this Part:
former Act means the Coal Mines Regulation Act 1982.
former Board means the Coal Mining Qualifications Board
established by the former Act.
Division 2 Dissolution of Courts of Coal Mines Regulation
3 Dissolution of Courts of Coal Mines Regulation
Any Court of Coal Mines Regulation is dissolved.
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Coal Mine Health and Safety Bill 2002
Schedule 3 Savings, transitional and other provisions
4 Court may continue hearing part heard matter
Despite clause 3, if a Court of Coal Mines Regulation constituted
under the former Act was, immediately before the repeal of the
former Act, hearing a matter that had not been finally determined,
the Court is to continue to be constituted and to hear the matter as if
the former Act had not been repealed until that matter is finally
determined.
Division 3 Dissolution of former Board
5 Dissolution of former Board
The former Board is dissolved.
6 Members of former Board
(1) A person who, immediately before the repeal of the former Act, held
office as a member of the former Board:
(a) ceases to hold office as such on that repeal, and
(b) is eligible (if otherwise qualified) to be appointed as a
member of the Board constituted under this Act.
(2) A person who ceases to hold office as a member of the former Board
because of the operation of this Act is not entitled to be paid any
remuneration or compensation because of ceasing to hold that
office.
Division 4 Phasing-in of plans and systems
7 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 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.
Division 5 Certificates, directions, approvals and
instruments under former Act
8 Certificates of competency saved
On and from the repeal of the former Act, a certificate of
competency granted under section 19 of the former Act in relation
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Coal Mine Health and Safety Bill 2002
Savings, transitional and other provisions Schedule 3
to a position is taken to have been granted under section 136 of this
Act in relation to the functions ordinarily required to be exercised
by the holder of that position.
9 Saving of prohibitions, restrictions, requirements or directions
under section 63 or 63A of former Act
A prohibition, restriction, requirement or direction in force or in
effect under section 63 or 63A of the former Act immediately before
the repeal of the former Act, or a court order requiring a person to
comply with such a prohibition, restriction, requirement or
direction, continues to have effect as if section 63 or 63A had not
been repealed but ceases to have effect if revoked by the Chief
Inspector.
10 Saving of approvals under section 126 of former Act
An approval under section 126 of the former Act that was in force
immediately before the repeal of the former Act is taken to be an
approval under section 100 of this Act.
11 Saving of approvals under section 138 of former Act
Subject to the regulations, an approval under section 138 of the
former Act that was in force immediately before the repeal of the
former Act continues in force as if section 138 and the regulations
made under that section had not been repealed. A failure to comply
with the conditions of an approval is an offence against Division 2
of Part 6 of this Act.
12 Saving of directions under section 139 of former Act
A direction made under section 139 (2) or (3) of the former Act that
was in force immediately before the repeal of the former Act is
taken to be a direction under section 86 or 87 of this Act,
respectively.
13 Saving of approvals under section 139 of former Act
An approval under section 139 (6) of the former Act that was in
force immediately before the repeal of the former Act is taken to be
an approval under section 89 of this Act.
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Coal Mine Health and Safety Bill 2002
Schedule 3 Savings, transitional and other provisions
14 Saving of notifications under section 143 of former Act
A notification given under section 143 of the former Act in relation
to a drilling operation is taken to be notice given under section 78 of
this Act.
15 Saving of tourist and educational permits
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 under section 107 of this Act.
16 Saving of instruments creating exemptions
An instrument made under section 174 (5) of the former Act and in
force immediately before the repeal of the former Act that
disapplied any provision of the regulations made under the former
Act is taken to be a regulation made under section 201 of this Act
creating an exemption from the corresponding provisions of the
regulations made under this Act but ceases to have effect if revoked
by the Chief Inspector.
Division 6 Holders of positions in management structure
17 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 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 coal
operation under this Act.
Division 7 References
18 References to former Act
On and from the commencement of this clause, a reference in any
other 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.
19 References to Chief Inspector of coal mines
On and from the commencement of this clause, a reference in any
other Act, in any instrument made under another Act, or in any
document of any kind, to the Chief Inspector of coal mines
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Coal Mine Health and Safety Bill 2002
Savings, transitional and other provisions Schedule 3
appointed under the former Act is to be read as a reference to the
Chief Inspector within the meaning of this Act.
Division 8 Notification of events
20 Place of accident or occurrence not to be disturbed
Section 90 of the former Act continues to apply for 3 days after the
repeal of the former Act as if it had not been repealed.
21 Notification of certain events and other matters
Part 7 extends to an event that occurred in the 2 days before the
commencement of the Part.
Division 9 Boards of Inquiry
22 Boards of Inquiry continue
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 94B of the former Act continues to apply to such
a special inquiry as if it had not been repealed.
Division 10 Office holders
23 District check inspectors
A person who held office under the former Act as a district check
inspector immediately before the repeal of the former Act is taken
to have been appointed as an industry check inspector under this
Act.
24 Local check inspectors
A person who held office under the former Act as a check inspector
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 coal operation that includes that mine. His or her term of office
is taken to have commenced when he or she was elected.
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Coal Mine Health and Safety Bill 2002
Schedule 3 Savings, transitional and other provisions
25 Electrical check inspectors
A person who held office under the former Act as an electrical check
inspector for a mine immediately before the repeal of the former Act
is taken to have been appointed as an electrical check inspector
under this Act for the coal operation that includes the mine. His or
her term of office is taken to have commenced when he or she was
elected.
Division 11 Miscellaneous
26 Operation of Part
The operation of this Part is subject to the regulations.
Page 120
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