Report: APP CMHS Project 4

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3.1. Effect of Formulation of Legislation

The mine safety legislative reforms of Queensland and New South Wales since 2000 have involved a substantial shift away from detailed prescriptive standards towards a goal setting and process based approach. The introduction of a risk based approach and the mandatory requirement to develop and implement safety management systems and hazard management plans are particularly important and drive the industry to use of best practice approaches in risk management.

These legislative requirements go beyond the framework of general industry OHS legislation in terms of shifting away from imposing duties on individual mine managers and other statutory duty holders. The legislation has moved towards greater responsibility for the Operator (company owner’s representative) and the Site Senior Executive (most senior company officer at site).

Australian legislative requirements in general, have supported the implementation by companies of a risk based approach; however, the coal mining industry in Queensland and New South Wales has been driven harder by legislation, particularly in underground mining due to the hazards encountered. Some aspects of the legislation covering these critical hazards remain prescriptive.

A review of legal cases and legislative frameworks and practices suggests that a ‘best practice’ approach to meeting legal obligations for risk management requires attention to the following broad principles:

  • Proper diligence must be exercised at all levels in an organisation to identify hazards that exist or could conceivably exist to cause harm or damage.

  • Mine owner/management oversight must demonstrate commitment to systematically managing risk; provide adequate level of resources including information, instruction, training and competency development and supervision.

  • A site that can demonstrate the effectiveness of site systems and capabilities in adequately managing risks may be required to meet objectives for specified risks while being exempted from meeting specific controls measures relating to those risks.

  • Hazard identification must be robust, appropriate and timely in relation to the site and in relation to tasks, or any type of unwanted energy release. Hazards must be distinguishable and give rise to clear risk assessments through good consultative processes.

  • Responses to risk assessments may involve:

  • tolerating the risk

  • accepting a level of risk while constraining it to an acceptable level or actively taking advantage and regarding the uncertainty of the opportunity to gain an acceptable benefit

  • transferring the risk by adopting a different approach that gives rise to an acceptable level of (lower) risk

  • terminating the activity giving rise to the risk

  • Regulations (or legislation, which might also call up a code of practice) might prescribe the hierarchy of risk.

  • Regulations might call up an approved code or a recognised standard such as MDG 1010, AS 4360 and more recently ISO 31000, as well as specific codes for key risks.

  • The detail and level of effort involved in assessing the likelihood and consequence of a hazard becoming a real threat should be commensurate with the level of exposure to the hazard and the complexity of the site, task or mining practice, and take account of data or information from the site, from across industry or from an authoritative source.

  • The risk management approach determined from the risk assessment process must be:

  • reasonably practicable

  • consistent with and confirm company and site commitment to the systematic management of risk even though the taking of action in relation to those risks may be prioritised.

  • Risk management must involve making informed decisions and plans or procedures and must involve management oversight and supervision.

  • Risk management activities must involve:

  • monitoring of:

    • the hazard

    • relevant triggers or mechanisms of failure for the hazard

    • respective control measures, and

  • must also involve

    • making adjustments to plans or procedures

    • verifying the effectiveness of the precautions taken.

  • Risk management must exploit consultative opportunities to effect occupational safety and health improvements to site and company systems, involving reviews of risk management objectives, strategies and approaches. A range of people who are closely associated with the risk must be consulted.

In summary, risk management is the current basis of Australian mining law, and as such, a site’s risk management approach has potential legal implications.

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