Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW)

Work Health and Safety (Mines and Petroleum Sites) Act 2013 No 54 An Act to secure the health and safety of persons who work at mines and petroleum sites; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Work Health and Safety (Mines and Petroleum Sites) Act 2013. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are as follows— (a) to assist in securing the objects of the Work Health and Safety Act 2011 at mines and petroleum sites, including the object of securing and promoting the health and safety of persons at work at mines, petroleum sites or related places, (b) to protect workers at mines and petroleum sites and other persons against harm to their health and safety through the elimination or minimisation of risks arising from work or from specific types of substances or plant, (c) to ensure that effective provisions for emergencies are developed and maintained at mines and petroleum sites, (d) to establish a scheme for ensuring that persons exercising certain functions at mines and petroleum sites are competent to do so, (e) to establish the Mine Safety Advisory Council, (f) to provide for worker safety and health representatives in coal mines, (g) to facilitate interstate regulatory co-operation, (h) to establish Boards of Inquiry, (i) to provide for enforcement powers that are in addition to those in the Work Health and Safety Act 2011. 4 Relationship with WHS Act (1) This Act is to be construed with and as if it formed part of the WHS Act, and the regulations under this Act are to be construed with and as if they formed part of the WHS Regulations. (2) Accordingly (and without limiting subsection (1)), the following principles apply, unless the context or subject-matter otherwise indicates or requires— (a) words and expressions used in this Act or the regulations under this Act have the same meaning as in the WHS Act or the WHS Regulations, (b) a reference in the WHS Act or the WHS Regulations to the WHS Act (including by use of the expression "this Act" or "the Act") includes a reference to the Work Health and Safety (Mines and Petroleum Sites) Act 2013, (c) a reference in the WHS Regulations to those regulations (including by use of the expression "this Regulation") includes a reference to the regulations under the Work Health and Safety (Mines and Petroleum Sites) Act 2013, (d) the WHS Act applies to and in respect of regulations under this Act as if they were regulations under the WHS Act (which will require that a reference in the WHS Act to "the regulations" includes a reference to the regulations under the Work Health and Safety (Mines and Petroleum Sites) Act 2013). Note— For example, section 191 of the WHS Act permits an inspector to issue an improvement notice in respect of a suspected contravention of the WHS Act. With the expanded meaning of "this Act" under subsection (2) above, a suspected breach of this Act (that is, the Work Health and Safety (Mines and Petroleum Sites) Act 2013) is also a matter in respect of which an improvement notice can be issued under the WHS Act. 5 Definitions (1) In this Act— Board means the Mining and Petroleum Competence Board constituted under Division 2 of Part 8. coal includes oil shale and kerosene shale, but does not include peat. coal mine means a mine where mining operations are carried out with respect to coal. Department means the Department of Regional NSW. function includes a power, authority or duty, and exercise a function includes perform a duty. government official—see section 18. local site in relation to mining activities or petroleum activities means— (a) the site at which those activities are carried out, or (b) a site that adjoins, or is in the vicinity of, the site at which those activities are carried out. mine—see section 6. mine holder of a mine (other than a tourist mine) means— (a) the person who is conducting a business or undertaking with control over a right or entitlement to carry out mining operations at the mine, or (b) if there is no such person, the person conducting the business or undertaking that is carrying out mining operations at the mine. mine holder of a tourist mine means the person who is conducting the business or undertaking of the tourist mine. mine operator—see section 7A. Mine Safety Advisory Council means the Mine Safety Advisory Council established under Division 1 of Part 8. mineral means the following, but does not include water— (a) a naturally occurring element or inorganic compound, (b) coal, lignite or peat, (c) rock, stone, gravel or sand. mineral exploration site means a place where activities are carried out for the purpose of exploring for minerals by mechanical means that disturb the ground. mineral extraction site means a place where activities are carried out for the purpose of extracting minerals from the ground or injecting minerals into the ground. mining activities and mining operations—see section 7. Minister means the Minister administering this Act. petroleum means— (a) any naturally occurring hydrocarbon, whether in a gaseous, liquid or solid state, or (b) any naturally occurring mixture of hydrocarbons, whether in a gaseous, liquid or solid state, or (c) any naturally occurring mixture of one or more hydrocarbons, whether in a gaseous, liquid or solid state, and one or more of the following, that is to say, hydrogen sulphide, nitrogen, helium, carbon dioxide and water, and includes any substance referred to in paragraph (a), (b) or (c) that has been returned to a natural reservoir, but does not include a mineral. petroleum activities and petroleum operations—see section 7B. petroleum exploration site means a place where activities are carried out for the purpose of exploring for petroleum by mechanical means that disturb the ground. petroleum extraction site means a place where activities are carried out for the purpose of extracting petroleum from the ground or injecting petroleum into the ground. petroleum site means a workplace at which petroleum operations are carried out and includes any fixtures, fittings, plant or structures at the workplace that are used or were formerly used for petroleum operations. petroleum site holder of a petroleum site is— (a) the person who is conducting a business or undertaking with control over a petroleum title that permits petroleum operations to be carried out at the petroleum site, or (b) if there is no such person, the person who is conducting the business or undertaking carrying out petroleum operations at the petroleum site. petroleum site operator—see section 7C. petroleum title has the same meaning as in the Petroleum (Onshore) Act 1991. provisional improvement notice means a provisional improvement notice issued under Division 7 of Part 5 of the WHS Act. regulator means the Secretary of the Department. safety and health representative means an industry safety and health representative, site safety and health representative or electrical safety and health representative under Part 5. stop work order has the same meaning as it has in section 51. tourist mine—see section 6 (2). WHS Act means the Work Health and Safety Act 2011. WHS laws means this Act, the regulations, the WHS Act and the WHS Regulations. WHS Regulations means regulations under the Work Health and Safety Act 2011. (2) To avoid doubt, a reference in this Act to— (a) a person conducting a business or undertaking at a mine includes a reference to the mine operator or mine holder of the mine, or (b) a person conducting a business or undertaking at a petroleum site includes a reference to the petroleum site operator or petroleum site holder of the petroleum site. (3) The regulator is to be known as the NSW Resources Regulator. 6 Meaning of "mine" (1) In this Act, a mine is a place that is a workplace at which mining operations are carried out and it includes any fixtures, fittings, plant or structures at the place that are used or were formerly used for mining operations. (2) In this Act, a tourist mine means a mine— (a) at which no mining operations are carried out other than educational activities or tourist activities carried out in connection with former mining activities at the mine, and (b) at which there is a hazard prescribed by the regulations that was present at the mine when former mining activities were carried out. 7 Meaning of "mining operations" and "mining activities" (1) In this Act, mining operations means the following— (a) activities (referred to in this Act as mining activities) carried out for the purpose of— (i) extracting minerals from the ground, or (ii) injecting minerals into the ground, but only where the primary purpose of the injection is to inject a mineral into the ground or to return a mineral to the ground, or (iii) exploring for minerals, (b) activities (including the handling, preparing, processing or storing of extracted materials) carried out in connection with mining activities at a local site, (c) activities associated with constructing a site where a mining activity (or an activity referred to in paragraph (b)) is, or is to be, carried out, (d) activities associated with decommissioning, making safe or closure of a mineral extraction site or a mineral exploration site, (e) educational activities or tourist activities carried out in connection with— (i) mining activities at a local site, or (ii) former mining activities at the site at which those activities were carried out, (f) activities prescribed by the regulations, (g) an activity specified by the Minister, by order published in the Gazette, that is carried on at a place identified in the order. (2) The regulations may declare an activity not to be mining operations for the purposes of this Act. (3) The regulations may create exceptions to or otherwise limit the operation of this section. 7A Meaning of "mine operator" (1) In this Act— mine operator of a mine means— (a) the mine holder, or (b) if the mine holder has appointed, in accordance with the regulations, another person to be the mine operator, that other person. (2) The regulations may provide for the appointment of more than one mine operator for a mine (so that there are different mine operators for different parts of a mine) and for that purpose— (a) a reference in this Act or the regulations to the mine operator of a mine includes a reference to the mine operator of part of a mine, and (b) the functions of a mine operator of a mine are, in the case of a mine operator of part of a mine, functions in respect of that part of the mine. (3) The regulations may provide for the appointment of one person as the mine operator for more than one mine. In such a case all of the relevant mines are, for the purposes of this Act, to be treated as one mine. 7B Meaning of "petroleum operations" and "petroleum activities" (1) In this Act, petroleum operations means the following— (a) activities (referred to in this Act as petroleum activities) carried out for the purpose of— (i) extracting petroleum from the ground, or (ii) injecting petroleum into the ground, but only where the primary purpose of the injection is to inject petroleum into the ground or to return petroleum to the ground, or (iii) exploring for petroleum, (b) activities (including the handling, preparing, processing or storing of extracted materials) carried out in connection with petroleum activities at a local site, (c) activities associated with constructing a site where a petroleum activity (or an activity referred to in paragraph (b)) is, or is to be, carried out, (d) activities associated with decommissioning, making safe or closure of a petroleum extraction site or a petroleum exploration site, (e) educational activities or tourist activities carried out in connection with petroleum activities at a local site, (f) activities prescribed by the regulations, (g) an activity specified by the Minister, by order published in the Gazette, that is carried on at a place identified in the order. (2) The regulations may declare an activity not to be petroleum operations for the purposes of this Act. (3) The regulations may create exceptions to or otherwise limit the operation of this section. 7C Meaning of "petroleum site operator" (1) In this Act— petroleum site operator of a petroleum site means— (a) the petroleum site holder, or (b) if the petroleum site holder has appointed, in accordance with the regulations, another person to be the petroleum site operator, that other person. (2) The regulations may provide for the appointment of more than one petroleum site operator for a petroleum site (so that there are different petroleum site operators for different parts of a petroleum site) and for that purpose— (a) a reference in this Act or the regulations to the petroleum site operator of a petroleum site includes a reference to the petroleum site operator of part of a petroleum site, and (b) the functions of a petroleum site operator of a petroleum site are, in the case of a petroleum site operator of part of a petroleum site, functions in respect of that part of the petroleum site. (3) The regulations may provide for the appointment of one person as the petroleum site operator for more than one petroleum site. In such a case all of the relevant petroleum sites are, for the purposes of this Act, to be treated as one petroleum site. 8 Geothermal energy This Act applies to and in respect of geothermal energy as if geothermal energy were petroleum. Note— This means exploration for geothermal energy and the extraction of geothermal energy are petroleum operations. 9 Examples and notes (1) An example at the foot of a provision forms part of this Act. (2) A note at the foot of a provision forms part of this Act. Part 2 Application of Act 10 Places to which Act does or does not apply (1) This Act applies to all workplaces that are mines or petroleum sites. (2) This Act does not apply to— (a) any mine, petroleum site or place that is of a class prescribed by the regulations or in circumstances or during time periods prescribed by the regulations, or (b) any mine, petroleum site or place specified by the Minister in a notice published in the Gazette, or (c) a petroleum site in the adjacent area in respect of the State within the meaning of Part 10 of the Interpretation Act 1987. (3) The Minister is to notify the Minister administering the WHS Act if any notice under subsection (2) (b) is published in the Gazette. However, failure to notify that other Minister does not affect the validity of the notice. 11 Activities to which Act does or does not apply (1) The following activities are not mining operations or petroleum operations for the purposes of this Act— (a) an activity carried out in relation to the extraction of minerals or petroleum on private land for the private and non-commercial use of the owner of the land, (b) fossicking, (c) any activity where the extraction of minerals or petroleum is incidental to the activity, Example— Civil works such as tunnelling to create a road. (d) railway operations to which the Rail Safety National Law (NSW) applies, (e) any activity on a public road or classified road within the meaning of the Roads Act 1993, (f) the construction, commissioning, operation or decommissioning of the distribution system or transmission system owned or controlled by a network operator under the Electricity Supply Act 1995, (g) any activity to which the Civil Aviation Act 1988 of the Commonwealth, the Air Services Act 1995 of the Commonwealth or the Transport Safety Investigation Act 2003 of the Commonwealth (in so far as it applies to aircraft) applies, (h) an activity carried out in relation to the extraction of geothermal energy from a source that has a temperature of less than 70 degrees Celsius or that is situated less than one kilometre below the surface of the earth, (i) any activity prescribed by the regulations. (2) The regulations may create exceptions to or otherwise limit the operation of this section. 12 Decisions on jurisdictional questions (1) The Minister may make a determination as to whether a particular place is or is not a place to which this Act applies. The determination may be of general application or be limited as to time or circumstances. (2) The Minister's determination is conclusive for the purposes of deciding a jurisdictional question (including a jurisdictional question arising in court proceedings). (3) A jurisdictional question is a question as to whether functions of a government official under this Act or of an inspector under the WHS Act were or can be validly exercised or a question as to whether proceedings for an offence under this Act or the WHS Act were or can be validly instituted. (4) A determination under this section applies in respect of functions exercised or purportedly exercised before or after the determination was made but not so as to affect court proceedings commenced before the determination was made. (5) A determination under this section does not operate to result in a person committing an offence that the person would not have committed had the determination not been made. (6) A certificate of the Minister certifying as to a determination made by the Minister under this section is evidence of the Minister's determination and the date of the determination. (7) The Minister is to notify the Minister administering the WHS Act of any determination made by the Minister under this section (but a failure to notify the other Minister does not affect the validity of the determination). (8) As soon as practicable after making a determination, the Minister is to take reasonable steps to ensure that a copy of the determination— (a) is served on each person conducting a business or undertaking at the place to which the determination relates, or (b) is posted in a prominent position at the place, or (c) is published in the Gazette. 12A Exercise of functions by regulators and other officials (1) An official may exercise any function of the official in relation to any workplace regardless of whether the workplace is a mine, a petroleum site or any other workplace. (2) The functions of an official include— (a) in relation to the mining and petroleum regulator, the functions of the WHS regulator, and (b) in relation to the WHS regulator, the functions of the mining and petroleum regulator, and (c) in relation to a government official, the functions of an inspector, and (d) in relation to an inspector, the functions of a government official. (3) Any requirement in the WHS laws that an official produce an identity card in relation to the exercise of a function is satisfied if the official produces an identity card issued (or taken to be issued) to the official under any provision of the WHS laws. (4) In this section— inspector means an inspector appointed under section 156 of the WHS Act. mining and petroleum regulator means the regulator within the meaning of this Act. official means the WHS regulator, the mining and petroleum regulator, a government official or an inspector. WHS regulator means SafeWork NSW as referred to in clause 1 of Schedule 2 to the WHS Act. Note— Clause 1 of Schedule 2 to the WHS Act provides that (for the purposes of the WHS laws) a reference to the regulator in relation to a mine or petroleum site (or a workplace at which activities under the Petroleum (Offshore) Act 1982 are carried out) means the mining and petroleum regulator and a reference to the regulator in relation to any other workplace means the WHS regulator. However, that clause does not limit this section which permits either regulator to exercise any function of either regulator in relation to any workplace. 13 Act binds the Crown (1) This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities. (2) The Crown is liable for an offence against this Act. Part 3 Incident notification 14 What is a "notifiable incident" In this Act, notifiable incident means— (a) the death of a person, or (b) a serious injury or illness of a person that is prescribed by the regulations, or (c) a dangerous incident prescribed by the regulations. 15 Duty to notify of notifiable incidents (1) A mine operator of a mine must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of any business or undertaking at the mine has occurred. Maximum penalty— (a) in the case of an individual—100 penalty units, or (b) in the case of a body corporate—500 penalty units. (1A) A petroleum site operator of a petroleum site must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of any business or undertaking at the petroleum site has occurred. Maximum penalty— (a) in the case of an individual—100 penalty units, or (b) in the case of a body corporate—500 penalty units. (2) A person conducting a business or undertaking at a mine or petroleum site must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking at the mine or petroleum site has occurred. Maximum penalty— (a) in the case of an individual—100 penalty units, or (b) in the case of a body corporate—500 penalty units. (3) Notice under this section must be given in accordance with this section and by the fastest possible means. (4) The notice must be given— (a) by telephone, or (b) in writing. Example— The written notice can be given by facsimile, email or other electronic means. (5) A person giving notice by telephone must— (a) give the details of the incident requested by the regulator, and (b) give a written notice of the incident within 48 hours of giving the notice by telephone. (6) A written notice must be in a form, or contain the details, approved by the regulator. 16 Notifiable incident at coal mine (1) A person who is required to ensure that the regulator is notified of a notifiable incident at a coal mine to which Part 5 applies must also ensure that an industry safety and health representative is given notice of the incident in accordance with this section. Maximum penalty— (a) in the case of an individual—100 penalty units, or (b) in the case of a body corporate—500 penalty units. (2) Notice is to be given in the same manner and form as notice is given to the regulator and is to contain the same details as those required by the regulator in respect of telephone notice or written notice, as the case may be. 17 Duty to preserve incident sites (1) When a notifiable incident has occurred at a mine or petroleum site each of the following persons must ensure, so far as is reasonably practicable, that the incident site is not disturbed until an inspector arrives at the incident site or any earlier time that a government official directs— (a) any person who is required to ensure that the regulator is notified of the notifiable incident, (b) each person with management or control of the incident site. Maximum penalty— (a) in the case of an individual—100 penalty units, or (b) in the case of a body corporate—500 penalty units. (2) (Repealed) (3) Subsection (1) does not prevent any action— (a) to assist an injured person, or (b) to remove a deceased person, or (c) that is essential to make the incident site safe or to minimise the risk of a further notifiable incident, or (d) that is associated with a police investigation, or (e) for which an inspector or the regulator has given permission. (4) A government official must not direct an earlier time under subsection (1) in the case of a notifiable incident at a coal mine to which Part 5 applies unless the government official has consulted with an industry safety and health representative. (5) In this section— incident site means the workplace (or part of the workplace) at which the notifiable incident occurred and includes any plant, substance, structure or thing associated with the notifiable incident. Part 4 Oversight of mines by government officials Division 1 Appointment of government officials 18 Appointment by regulator (1) In this Act, government official means a person appointed under this section. (2) The regulator may appoint a person as— (a) an inspector, or (b) a mine safety officer, or (c) an investigator. (3) A person is not eligible for appointment under subsection (2) unless the person is— (a) an officer or employee of a public authority, or (b) the holder of a statutory office, or (c) a person who is appointed as an inspector under a corresponding WHS law, or (d) a person who is a member of a prescribed class of persons. (4) The regulator may also appoint a person as a government official if the person is a consultant engaged by a public authority. (5) The regulator may appoint one or more inspectors as chief inspectors. (6) An instrument appointing a person under this section may limit the functions that the person has as a government official under this Act or as an inspector under the WHS Act. (7) A person's appointment under this section ends when the person ceases to be eligible for appointment. (8) A person who is a government official is deemed to be an inspector for the purposes of the WHS Act. Note— Section 47 of the Interpretation Act 1987 provides incidental powers with respect to appointments including providing a power to suspend or revoke any such appointment. 19 Qualifications of inspectors A person may be appointed as an inspector only if the regulator is satisfied that the person has— (a) appropriate knowledge and skills, and adequate experience, in mining operations or petroleum operations to effectively exercise the functions of an inspector, and (b) if qualifications are prescribed by the regulations for the purposes of this section, those qualifications or qualifications that the regulator determines to be equivalent to those qualifications. 20 Accountability of government officials (1) A government official must give written notice to the regulator of all interests, pecuniary or otherwise, that the government official has, or acquires, that conflict or could conflict with the proper exercise of the government official's functions. (2) The regulator must give a direction to a government official not to deal, or to no longer deal, with a matter if the regulator becomes aware that the government official has a potential conflict of interest in relation to a matter and the regulator considers that the government official should not deal, or should no longer deal, with the matter. 21 Identity cards (1) The regulator must give each government official an identity card that states the person's name and the office to which the person has been appointed and includes any other matter prescribed by the regulations. Note— Section 157 of the WHS Act requires a government official to produce his or her identity card on request when exercising compliance powers. (2) If a person to whom an identity card has been issued ceases to be a government official, the person must return the identity card to the regulator as soon as practicable. (3) A copy of the instrument of appointment of a person as a government official under section 18 (4) is taken to be the government official's identity card for the purposes of the WHS laws. Division 2 Functions of government officials 22 Functions of government officials The functions of a government official are any functions conferred on the government official by this Act or the regulations. 23 Notifying mine operator or petroleum site operator of concerns A government official (other than an investigator) must give written notice to a mine operator or petroleum site operator of the following matters if the government official becomes aware of the matter in the exercise of his or her functions at the mine or petroleum site— (a) any matter that the government official considers to be relevant to the continued safe operation of the mine or petroleum site, (b) any matter that the government official considers to be relevant to the health and safety of workers at the mine or petroleum site. 24 Consideration and investigation of complaints (1) The regulator is to ensure that if a complaint is made to the regulator or a government official by a safety and health representative concerning the health and safety of workers at a coal mine— (a) the complaint is considered and, if the regulator considers it necessary, investigated, and (b) the results of that consideration and any investigation are reported back to the safety and health representative. (2) Nothing in this section prevents a safety and health representative from raising matters directly with the mine operator of a mine. 25 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 an individual—60 penalty units, or (b) in the case of a body corporate—360 penalty units. Note— The WHS Act also makes it an offence to hinder, impersonate or threaten a government official. See Division 6 of Part 9, which applies to government officials because they are inspectors under the WHS Act and the functions that they exercise under this Act are compliance powers under the WHS Act. 26 Government officials subject to regulator's direction (1) A government official is subject to the regulator's directions in the exercise of the government official's compliance powers. (2) A direction under subsection (1) may be of a general nature or may relate to a specified matter or specified class of matter. Part 5 Safety and health representatives for coal mines Division 1 Preliminary 27 Part applies only to coal mines (1) This Part applies only to coal mines. (2) This Part does not apply to a coal mine if the only mining operation being carried out at the coal mine is exploring for coal. (3) The regulations may exclude parts of a coal mine from the application of this Part or from specific provisions of this Part. D