New mine safety legislation is currently being drafted which is intended to replace the existing Mines Safety Inspection Act 1994 (WA), presumably at the same time that new OHS legislation is introduced for general industry. However, it remains unclear what form this legislation will take, and to what extent it will resemble the model legislation.
Western Australia has lined up with New South Wales and Queensland in determining that the model mining regulations prepared by Safe Work Australia, which by their very nature are inherently general, do not adequately provide for their specialist needs and working environments. Western Australia intends to draft further regulations, known as ‘non-core regulations’, to supplement the Safe Work Australia mining regulations.
The complexity of mining legislation in Western Australia, under which the Department of Mines and Petroleum (DMP) enforces statutory obligations in respect of numerous pieces of legislation, each with differing enforcement and penalty schemes, may be contributing to the uncertainty.
In March 2013 the DMP issued a tender for a discussion paper to form the basis of a DMP Penalties Policy ‘that can be used to assess the appropriate structure and level of penalties in the future and to form a basis for future regulatory reform projects.’ The need for the discussion paper suggests that while reform is being carefully considered, the form and content of that legislative program is still to be determined.
Amendments to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGS Act)
Meanwhile, in the offshore oil and gas space, the Commonwealth government has continued its reform agenda in the wake of the Montara disaster.
While the offshore health and safety regime has not adopted the model legislation, on account of its status as a major hazard industry with specialist safety requirements, the health and safety provisions in Schedule 3 of the OPGGS Act are aligned with the harmonised model.
The Offshore Petroleum and Greenhouse Gas Storage (Compliance Measures) Act 2012 gained royal assent on 14 March 2013, including a range of measures in the principal OPGGS Act designed to strengthen the ability of offshore regulator NOPSEMA to secure compliance. The measures include:
- The introduction of a civil penalty regime;
- Increased criminal penalties, including in relation to health and safety breaches;
- Clarified and strengthened powers for NOPSEMA inspectors;
- Provision for information sharing between State and Federal government agencies; and
- The withdrawal of Tasmania from the Joint Authority arrangements.
Unusually, commencement of all the measures save for those relating to the sharing of information and the withdrawal of Tasmania from the Joint Authority arrangements has been delayed, pending the passage of a further, separate piece of legislation: the Regulatory Powers (Standard Provisions) Bill 2012.
In the interim, the Commonwealth government has introduced another amending Bill, the Offshore Petroleum and Greenhouse Gas (Compliance Measures No 2) Bill. This legislation would build on the compliance measures recently enacted, including:
- Infringement notices;
- Adverse publicity orders;
- Environmental prohibition and improvement notices; and
- Continuing penalties for unremedied infringements.
The Bill would also introduce ‘polluter pays’ obligations, provisions for recovering costs from third parties, and minimum insurance requirements for operators.
The Compliance Measures No 2 Bill is also largely subject to the enactment of the Regulatory Powers (Standard Provisions) Bill 2012.