Controversial mining industrial legislation has received bipartisan support in the Queensland Parliament today despite growing debate across the industry that the laws may not improve safety in mines.
The new laws created a criminal offence where gross negligence or recklessness contributes to the death of a mineworker.
The laws will crystallise provisions that were formally available under existing mining safety and health legislation that provided for the prosecution of criminal conduct in respect of accidents.
Under the new laws passed, the Mineral and Energy Resources and Other Legislation Amendment Bill 2020 will now provide for a potential jail sentence of 20 years if a mine executive is found guilty of recklessness or gross negligence and a current fine of up to $13.3 million for a corporation.
The hotly debated legislation saw the Queensland Law Society President Luke Murphy oppose the introduction of industrial manslaughter legislation on the basis of the onus of proof. The Queensland Law Society argued in a submission to a committee examining the legislation that “aspects of prosecution should require the same provisions of proof as required under criminal law.”
Mines Minister, Dr Anthony Lynham told Parliament that “where negligence is an element of a criminal offence, such as the industrial manslaughter offence, the standard of proof is the criminal standard of beyond a reasonable doubt and not the civil standard of on the balance of probabilities. Criminal negligence requires recklessness or gross negligence. This is a much higher standard than civil negligence.”
AMSJ understands that gross negligence and recklessness are problematic definitions under Australian law and courts regularly grapple with specific definitions. The terms mean so much more than just failure to exercise proper care and attention. They imply that the person being prosecuted knew of the risks and hazards that existed and subsequently deliberately and recklessly disregarded the safety and reasonable treatment of others that resulted in the death of a worker. Gross negligence must be determined by the context of the case.
In essence, while the legislation sounds like it has teeth, prosecutors have traditionally found it extremely difficult to prove beyond a reasonable doubt that a person was recklessness or displayed ‘gross negligence.’
Ultimately, there are very few examples of successful industrial manslaughter prosecutions in Australia despite the laws existing in various forms throughout Australia.
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The Queensland Government and Mining Union are lauding the new laws a victory. Dr Anthony Lynham said establishing industrial manslaughter as an offence in mines and quarries was another key reform by the Palaszczuk Government to protect the state’s 50,000 mine and quarry workers.
“This offence sends a clear message to employers and senior officers that the safety and health of their workers is paramount. In the past two years, we’ve had eight workers die, and a gas explosion in an underground coal mine has put five miners in hospital. It’s not acceptable. Safety on a mine site is everybody’s responsibility. Dr Lynham said.
CFMEU Mining and Energy Queensland President Stephen Smyth today said a string of serious incidents in the mining sector over recent years showed that stronger penalties were needed to ensure mine operators provided a safe working environment for their employees.
“Where mineworkers die due to negligence, there should be consequences. These laws aren’t just about punishing the guilty. They’re about making people accountable for safety on their watch. Mine safety is a multi-dimensional issue and there is no silver bullet, but accountability for individuals in positions of authority is absolutely critical”, he said.
“The CFMEU has advocated strongly to extend industrial manslaughter laws to the mining industry, while the employers have fought hard against them. It is a great achievement to have new laws in place to value and protect the safety of Queensland mineworkers.”
The new laws introduced today also require statutory positions in mines to be employed by mining companies, rather than employed as contractors.
Mr Smyth said “The critical roles of Deputy and Open Cut Examiner must be directly employed and focus on safety, rather than production. This is an important element of the new laws and we are pleased it was retained despite intense industry opposition but disappointed it won’t be enforced for 18 months.”
But the new laws requiring direct employment of statutory officials may be short lived after questions were raised in Parliament regarding the consultation process used by Government and the Committee that examined the law.
Queensland Resources Council (QRC) Chief Ian MacFarlane has written to the Parliamentary Speaker notifying him that there had been a serious breach of fundamental legislative principles associated with the new law. Macfarlane said “The QRC has for some time been concerned about the lack of genuine consultation on regulatory changes that will significantly affect the resources industry. Too frequently there has been no proper regulatory assessment of policy proposals that impose a regulatory burden on industry.”
Macfarlane reportedly also drew the Queensland Speaker’s attention to clause 7.2.12 of the Queensland Legislators handbook which requires the parliament to consider the abrogation of individual rights and liberties and justify restrictions on a person’s ordinary activities.
Shadow Minister for Queensland Mines Dale Last told Parliament “The LNP strongly believe that it is not the government’s role to tell workers who they must work for.”
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