MINES LEGISLATION AMENDMENT (MINES SAFETY) BILL
Bill introduced and read a first time.
(Port Stephens - Minister for Mineral Resources, and Minister for Fisheries) [8.59 p.m.]: I move:
That this bill be now read a second time.
The Carr Labor Government and I, as the responsible Minister, have a strong commitment to improving safety and health in the mines of this State. The mining industry in New South Wales is a major employer and export earner. Our safety standards are world class, but as recent events have shown, constant vigilance and improvement are still needed. The legislative framework for mining safety is contained specifically in two statutes, namely, the Coal Mines Regulation Act 1982 and the Mines Inspection Act 1901.
In the last session Parliament passed a series of amendments to the Mines Inspection Act, which put it in complete conformity with the International Labour Organisation’s convention on safety and health in mines. Those amendments also incorporated changes recommended by the Government’s mine safety review. Not long after I announced the mine safety review four men were killed at Gretley colliery, near Newcastle, when their mining machine broke into the flooded workings of an old coalmine that had been abandoned more than 80 years earlier.
I promptly ordered a judicial inquiry into the causes and circumstances of that accident. Judge Staunton, who headed the inquiry, handed down a 750-page report on 7 July. The report of the Gretley inquiry made 43 recommendations. At the time of its release I made a public commitment to implement each recommendation. A number of the recommendations concern amendments to the Coal Mines Regulation Act. Fortunately, many of the changes could be made quickly and could be included in the Government’s legislative program for this session of Parliament.
Consultation has taken place with industry and unions, many of whom took a close interest in the Gretley inquiry and the mine safety review. Other changes recommended by the inquiry are being looked at by a special task force, convened by the Department of Mineral Resources and comprised of both industry and union representatives. The Gretley judicial inquiry was the first such inquiry into a coalmining disaster since 1979, and the first inquiry conducted under the current Act. As such, the experience of Gretley has led me to propose some amendments to the provisions dealing with the formal investigation of occurrences at mines, to provide some cost-effective alternatives and to remedy some unforeseen shortcomings in existing provisions of the Coal Mines Regulation Act.
Dealing first with the changes arising from the Gretley recommendations, amendments will be made to section 60 of the Coal Mines Regulation Act to make it clear that persons who are being interviewed by an inspector of coalmines are obliged to provide their answers straight away, not after an interval of 24 hours. A mistaken view had arisen in the industry that inspectors did not have the right to have their questions answered immediately. Judge Staunton criticised that view and recommended that the legislation be changed so as to make the true position clear. However, a person who genuinely cannot answer a question immediately can be given time to check facts so as to ensure that the answer, when given, is complete and accurate.
The amendments allow an inspector to give the interviewee sufficient time to come back with the answer. However, in the interests of timely investigation and reporting, the amendment provides that the interval cannot exceed 24 hours. At present, accidents and dangerous occurrences at coalmines are investigated by the district inspector, who also has other roles in the administration of the Act. These include various approvals and consents required by the Act and the regulations under it. Sometimes those roles may be seen to conflict. For that reason, the Gretley inquiry recommended that there should be an autonomous investigations unit.
It is intended that the unit conduct investigations of fatalities and other serious occurrences, especially where an earlier approval or other action by the district inspector or other departmental personnel may have borne some relationship to the event under investigation. The mine safety review also advocated a special investigation group, with independence and special expertise, within the Department of Mineral Resources. The amendments to both Acts create a statutory office of investigator, giving such persons the relevant powers of inspectors. These will include power to enter premises, inspect documents, interview people and compel answers in the same way that an inspector presently can.
Offences relating to the obstruction of inspectors and the giving of false answers will be extended to aid the role of investigators as well. The investigations unit will be answerable to the Director-General of the Department of Mineral Resources, in the interests of keeping it independent of the present inspectorate and at the same time ensuring that it is properly accountable. The functions of the investigators are set out in new section 93C. Most importantly, an investigator will investigate all future fatalities in mines. This will ensure a uniform approach to all such incidents and provide the Department of Mineral Resources with essential information with which to determine whether there have been breaches of the mine safety legislation or the Occupational Health and Safety Act.
The investigations unit will therefore have an important role to play in the department’s new enforcement policy, which has been developed in the wake of the Gretley findings. The amendments allow the Director-General to give the unit a pro-active role, as well as one of response to particular incidents. It can look into issues relating to safety and health across all mines, into occurrences that presently are not prescribed as reportable, into the conduct or discipline of people in mines, and into the practices at mines which have safety and health implications or which might otherwise be relevant to the operation of the principal legislation.
Independent expert consultants can also be appointed temporarily as investigators to assist the unit or to conduct special investigations on the department’s behalf. When members of the unit conduct an investigation at a mine, the normal government inspectors and union-elected check inspectors continue to carry out their respective functions, with the exception that the Government inspector cannot interfere with the unit’s investigation. In turn, the unit will not interfere with the regular inspector’s monitoring of safety within the mine.
Protocols will be drawn up and agreed with the mining union to ensure that the union’s district check inspectors are kept abreast of investigations and given opportunities to liaise closely with the investigators during the course of investigations. Judge Staunton’s report noted that there was nothing explicit in the Act that required the inspector to make any kind of report on the investigation of that event. The amendments take this recommendation forward and incorporate it into a new system for conducting preliminary investigations and providing interim reports. The director-general of the department will nominate an officer or officers to receive each preliminary report and to forward on specified categories that need a decision as to whether further investigation is merited, and if so, by whom - be it the district inspector, another inspector or members of the investigations unit.
One of the practical problems that arose from the aftermath of the Gretley tragedy was the question of what was to be done about the shafts of the old, abandoned mine that caused the flooding. Judge Staunton recommended that section 121 of the Coal Mines Regulation Act be amended to provide
that complete backfilling of mine entrances may be required when the mine is being abandoned. Section 121 presently refers to actions such as fencing off entries and closing them with barriers, plugs or seals. Complete backfilling provides a further safe option in appropriate circumstances.
The Gretley inquiry was conducted by a body known as the Court of Coal Mines Regulation. This is constituted by a judge of the District Court, and usually assisted by lay experts known as assessors. These people are drawn from the industry, so that the court can have the benefit of advisers with appropriate qualifications and experience. The last judicial inquiry into a coalmining disaster was held in respect of the Appin explosion in 1979, under the previous Coal Mines Regulation Act 1912. Judge Goran, who sat on that inquiry with assessors, acknowledged in his report how useful the assessors had been.
Unfortunately, the provisions in the 1912 Act were not completely carried through to the present 1982 Act, with the result that Judge Staunton was unable to appoint assessors to help him in the Gretley inquiry. That shortcoming is to be corrected with an appropriate amendment to section 151 of the Act. Judge Staunton, with his wide experience of major public inquiries, made a further recommendation regarding the protection of witnesses who testified against the interests of their employers.
That is a sensible recommendation, given that the inquiry had the same powers as coalmine inspectors, and, as such, could compel answers to questions under section 60 of the Act, even if those answers were capable of incriminating others. I have developed that concept further to insert a new section 168A to the Act. This section will extend witness protection to anyone who co-operates with inspectors, the investigation unit, a court holding a judicial inquiry or others, to whom I will refer shortly.
Any employer who dismisses an employee or disadvantages someone in their employment because that person has co-operated with the authorities will be guilty of an offence. The maximum penalty will range from $4,400 to $11,000. There will be an affirmative defence available to employers who can demonstrate that the dismissal or disadvantage was justified for reasons other than the co-operation with the authorities. When implementing the Gretley recommendations, it was noticed that some of the reforms could usefully be extended beyond the coalmining sector to metalliferous mines and quarries. For that reason, the Mines Inspection Act is to be amended as well. In particular, the formation of the investigations unit, the procedures connected with preliminary investigation and reporting, the powers of inspectors and investigators, and the investigative functions of union check inspectors will be mirrored in the Mines Inspection Act. So will provisions for offences connected with frustrating the work of inspectors, investigators and others.
The special reporting and judicial inquiry provisions of the Coal Mines Regulation Act were invoked for the first time in the life of the Act as a result of the tragedy at Gretley. The resulting close analysis of those sections revealed other issues which it is worthwhile to attend to at this time. The scope of special reports to the Minister under section 94 of the Coal Mines Regulation Act is very limited. At present it is only possible for a Minister to direct a report into an accident causing death or serious bodily injury, or a so-called dangerous occurrence. This expression, along with serious bodily injury, is closely defined in regulations, thus narrowing the range of issues that can be reported on.
Furthermore, the Minister can seek such a report only from an inspector of coalmines. If the Minister is concerned about mining practices which might be adverse to the health and safety of workers, there is presently no alternative, in terms of a formal investigation, but to institute a judicial inquiry. Amendments to section 94 will firstly broaden the range of matters covered. Apart from prescribed types of accident and dangerous occurrence, the range will include anything relating to the safety, health, conduct or discipline of persons in mines, any relevant practice at a mine, or any occurrence that is not of a prescribed kind. Again, this power can be used pro-actively.
The broadening of section 94 underscores the modern attitude to safety at work, exemplified by the Occupational Health and Safety Act. In seeking special reports, the Minister of the day will be able to direct persons other than inspectors to provide them.Thus members of the new investigations unit, or mine safety officers, may be directed. It will also be possible to request a special report from someone other than a departmental employee, for example, a private sector expert on the management of gas outbursts. In such a case that person will be given appropriate powers of investigation while the material for the report is being gathered.
The special reporting provisions of the Mines Inspection Act will also be amended to mirror the changes to the Coal Mines Regulation Act. The current arrangements for special or formal
investigation under the Coal Mines Regulation Act are limited to special reports on named subjects and judicial inquiries. Although they have their place, judicial inquiries involve significant time and expense. Sometimes the issue to be considered does not warrant the administrative and financial cost of mounting a full judicial inquiry. There should be a middle way. This bill therefore allows for the constitution of a board of inquiry to conduct a public inquiry into the sorts of issues that might previously have been dealt with by a judicial inquiry.
The board is constituted by a person nominated by the Minister. This gives some flexibility as to who is to be appointed, but of course the person appointed must be suitably competent, qualified and unbiased. The board will also be assisted by assessors appointed by the Minister. It will be able to take testimony on oath, and will be supplemented with appropriate powers like those of departmental inspectors and investigators. The procedure at boards of inquiry is intended to be as informal as possible. A board will not be bound by rules of evidence, and it will have discretion as to whether or not parties may have their legal representative present. It goes without saying, though, that the board will treat people fairly, and observe the principles of natural justice.
These initiatives are intended to cut through the delays inherent in formal legal proceedings and cut the cost, both to government and to parties to the inquiry. They also have the advantage of being less threatening to witnesses, thus encouraging them to speak more frankly. The Minister who calls a board of inquiry into being can stipulate that it must report within a given time. Due to the broad range of issues that can be dealt with by a board of inquiry, the Minister can also give more specific terms of reference. This is intended to speed up the business of the inquiry, and encourage the board to report as quickly as possible. Similar provisions are being introduced into the Mines Inspection Act. That Act presently does not contain any provisions for formal or judicial inquiries.The present provision for judicial inquiries in the Coal Mines Regulation Act will be retained, so that the most important matters can still be investigated by a judge and assessors.
I turn now to a series of amendments recommended by the mine safety review. As well as a separate investigations unit, the review recommended that the mining and coalmines inspectorates be supported by appropriately qualified persons, described as mine safety officers. As their name implies, mine safety officers will be concerned with a broad range of safety issues in mines. The amendments to the Coal Mines Regulation Act and Mines Inspection Act give those officers some statutory roles and functions, including investigative functions and selected powers to support them. It is envisaged that mine safety officers will be able to investigate a variety of occurrences that do not cause death or injury, and which would otherwise take up the time of inspectors.
To that end, the mine safety officers will be given inspectors’ powers to enter mines and relevant workplaces, question persons found there, and obtain relevant documents, samples and other evidence. They will also be able to notify mine officials of matters of concern. However, safety officers will not have powers to stop production at mines, or issue improvement notices: these more serious actions will remain the exclusive province of inspectors. The inclusion of these functions in both Acts will enable mine safety officers to operate in both the coal and non-coal sectors. An investigation into a mining incident will often require the people doing the investigation to visit some place other than a mine. For example, they may have to visit the premises of an equipment manufacturer or supplier.
The current wording of section 60(1) of the Coal Mines Regulation Act only allows an inspector to obtain protected statements from persons found at a mine, or found elsewhere but employed at the mine. This can be an impediment to the inspector getting to the bottom of the matter being investigated. It is therefore proposed that inspectors, and people who have the same relevant powers, be given the power to obtain protected statements from persons employed at some place other than the relevant mine. This is, of course, provided that the power is used in aid of an investigation into a mining incident. This important caveat underscores the separate roles of government mining inspectors and industrial inspectors employed by the WorkCover Authority. It is also intended to translate these amended provisions into the Mines Inspection Act to cover the non-coal sector.
Lastly, the bill contains some consequential amendments to the Defamation Act 1974. That Act presently gives absolute privilege to special reports under section 94 of the Coal Mines Regulation Act. Certain reports under the Mines Inspection Act were also given absolute privilege by amendments passed last session. The further amendments capture the broader range of reports that will be generated by inspectors, investigators, boards of inquiry and mine safety officers under the present amendments. The Gretley inquiry also observed that reports of investigations should be more easily available to the public. Protection from defamation action is thus an
important part of the whole picture. The amendments to the Defamation Act will give the makers of departmental reports an opportunity to report frankly, without fear or favour.
In concluding the formal component of my speech on this important piece of legislation, I believe that this series of reforms is an important part of this Government’s ongoing commitment to the improvement of safety and health in the State’s mines. This Government is totally committed to mine safety. There have been 22 deaths in the mines since this Government has been in office. We cannot afford to have precious positions taken by any vested interest to oppose these changes. The change is vital; it has been identified in the mine safety review; it has been identified by Judge Staunton.
This is not an overhaul of the Mines Inspection Act or the Coal Mines Regulation Act; this is the implementation of those changes that were recommended by His Honour Judge Staunton and Susan Johnston in her inquiry. In the past few days there was concern about what might be in the legislation. The bill reflects the recommendations of both inquiries. I commend the bill to the House and I ask for the full support of every fair-minded person in New South Wales to ensure that the provisions become law at the earliest possible moment.
Debate adjourned on motion by Mr J. H. Turner.