Leading Practice Mining Acts Review Mines and Works Inspection Act …assets.yoursay.sa.gov.au/production/2016/11/16/00/59/18... · 2016. 11. 16. · 2013 establish a regulatory framework

www.minerals.statedevelopment.sa.gov.au

DISCUSSION PAPER 1November 2016

Ensuring future community benefits through a more efficient and transparent regulatory framework in the mineral resources sector.

Leading Practice Mining Acts ReviewMines and Works Inspection Act 1920 and Regulations

Rock drilling in Wallaroo Mine c. 1915

Department of State DevelopmentDepartment of State Development

Resources and EnergyDepartment of State Development Level 7, 101 Grenfell Street, Adelaide GPO Box 320, Adelaide SA 5001 Phone +61 8 8463 3000 Email [email protected] www.minerals.statedevelopment.sa.gov.au

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Preferred way to cite this publication. Department of State Development 2016. Leading Practice Mining Acts Review Mines and Works Inspection Act 1920 and Regulations; Discussion paper 1. Department of State Development, South Australia, Adelaide.

Department of State Development

15/11/2016–204845

November 2016 n Department of State Development 1

DISCUSSION PAPER 1 n Leading Practice Mining Acts Review Mines and Works Inspection Act 1920 and Regulations

FOREWORD

For more than 175 years, our mineral resources industry has made an immense contribution to the economic and social development of South Australia.

The benefits of mining support us in our daily lives: the construction materials used to build our homes and highways; the steel in our cars, trains and power poles; the fertiliser used by our farmers to grow their crops; and the copper needed for our phones and homes. The mining sector is a major generator of jobs in our regions, an important employer for Aboriginal communities, and it drives an equipment, processing, and supply services sector that leverages activity into new opportunities in the global supply chain markets.

South Australia must maintain a commitment to leading practice regulation of the mineral resources sector, so that we can continue to attract and retain mining operators who are leaders in sustainable development, and who are committed to building strong long-term relationships with landowners and communities.

As part of this commitment, the Minister for Mineral Resources and Energy in September launched the Leading Practice Mining Acts Review of the Mining Act 1971, the Mines and Works Inspection Act 1920 and the Opal Mining Act 1995.

In support of this important review, a series of Discussion Papers have been published for consideration by all stakeholders. This first Discussion Paper considers the role of the Mines Works and Inspection Act and the

Mines and Works Inspection Regulations 2013, and its interaction with other legislation.

In the almost 100 years since the Act was passed, environmental assessment of mining operations and occupational health and safety regulation have significantly evolved, and the functions of this Act have largely been replaced by more modern legislation, offering far greater protections.

The purpose of this Paper is to initiate a discussion about the objectives and processes of the Act and Regulations so that we can identify ways of updating and streamlining regulatory processes, without compromising on their effectiveness and efficiency.

We urge all stakeholders to participate in this important review – a review that will ensure our State remains one of the world’s leading-practice, competitive and sustainable mining jurisdictions.

I encourage you to read this Discussion Paper, and the other papers to follow throughout November 2016, and I look forward to hearing your views.

Dr Edward Tyne Executive Director Mineral Resources Department of State Development

2 Department of State Development n November 2016




CONTENTS

FOREWORD .......................................................................................................................................... 1

CONTENTS ............................................................................................................................................ 3

1. INTRODUCTION ............................................................................................................................. 51.1 Object of the review of the Mines and Works Inspection Act ....................................51.2 Review process ........................................................................................................................................51.3 How do I get involved? .......................................................................................................................61.4 Written submissions and important dates .............................................................................6

2. HISTORY AND SCOPE OF THE MINES AND WORKS INSPECTION ACT AND REGULATIONS ................................................................................................72.1 General background .............................................................................................................................72.2 Content of the Mines and Works Inspection Act ...............................................................92.3 Content of the Mines and Works Inspection Regulations ......................................... 10

3. CHALLENGES WITH THE CURRENT OPERATION OF THE MINES AND WORKS INSPECTION ACT AND REGULATIONS ..............................................................................113.1 The interaction between the Act and other legislation regulating mining activities, and duplication of processes ............................................................... 113.2 The limited practical scope of application of the Act: General............................... 123.3 The limited practical scope of application of the Act: Work health and safety .................................................................................................................... 133.4 The outdated regulatory model, environmental penalty scheme promoted under the Act ................................................................................................................ 143.5 The unclear operation of the Mines and Works Inspection Act and other legislation for mines only covered by the Act (e.g. mines not subject to the Mining Act) .......................................................................... 163.6 Reference to the Mines and Works Inspection Act (or the Chief Inspector of Mines) in other legislation and leases ........................................................ 163.7 Unclear definition of terms and concepts in the Act ................................................... 17



4. MATTERS FOR CONSIDERATION IN THE REVIEW ..............................................................184.1 Mine worker health and safety ................................................................................................... 184.2 Health and safety of the general public affected by mining operations ....................................................................................................................... 184.3 Environmental matters .................................................................................................................... 194.4 Administration issues ........................................................................................................................ 19

5. OPTIONS .........................................................................................................................................20

APPENDIXES ......................................................................................................................................21Appendix A: Mines and Works Inspection Act 1920Appendix B: Mines and Works Inspection Regulations 2013Appendix C: Options paper — Review of mine manager competency legislation



INTRODUCTION

1.1 Object of the review of the Mines and Works Inspection Act

The Mines and Works Inspection Act 1920 and the Mines and Works Inspection Regulations 2013 establish a regulatory framework for mines and mining operations in South Australia.

The Act is very old legislation that implements a prescriptive regulatory framework that mandates specific requirements for mining operators. The framework is principally directed toward the protection of property and amenity, the prevention of nuisance, and the health and safety of mine workers and community members who may be affected by mining operations. A lot of these matters are now dealt with in more detail in more modern legislation. This is outlined in further detail in section 3 of this Discussion Paper.

This Review aims to identify the overlaps and gaps in regulatory processes between the Act and other relevant legislation, in order to assess opportunities to modernise regulatory processes for mining operations and remove any unnecessary duplication in a way that doesn’t compromise effectiveness and efficiency.

The Department is of the view that the Review should also include a comprehensive review of the processes incorporated in the Regulations, particularly in relation to the:

� appointment of mine managers, and their certification; and

� mine and mining operations plans and programs.

1.2 Review process

The Department is seeking your views via an open and transparent consultation process so that we can develop relevant, practical, and evidence-based legislative and policy changes for consideration by Parliament.

It is critical that the needs of the community and industry and landowners are heard and well considered to ensure any policy outcomes are fair and balanced.

To ensure that this happens, the Department is also undertaking targeted engagement with key stakeholders from the resources sector, the community, and state and local governments throughout the Review.

1



1.3 How do I get involved?

The Department invites all stakeholders to make written submissions on the Discussion Paper during the consultation period so that we can develop a fair and balanced legislative framework that meets community and industry needs and expectations.

A copy of the Discussion Paper, and information on the progress of the Review, can be found at YourSAy website: www.yoursay.sa.gov.au or http://minerals.statedevelopment.sa.gov.au/mining/leading_practice_mining_acts_review

If you would like to make a submission, please read the material set out here and address the specific matters canvassed in Section 4: Matters for Consideration and Section 5: Options in your submission. The Department also welcomes your thoughts on any matters not outlined in those Sections. In the interests of transparency, submissions may be published online as part of the Review process. Please advise if you wish for your submission to remain confidential.

If you have any queries in respect of the process, or matters outside the scope of the Discussion Paper, they can be forwarded to the Review Team at any time.

1.4 Written submissions and important dates

Comments and submissions on this Discussion Paper will be accepted up until 5:00 pm on 21 December 2016 (except where an extension applies). All written submissions should be marked to the attention of the Executive Director, Mineral Resources Division and lodged via [email protected] or delivered to:

DELIVERY ADDRESS Department of State Development Level 7,101 Grenfell Street ADELAIDE SA 5001

POSTAL ADDRESS Department of State Development GPO Box 320 ADELAIDE SA 5001

If you require further time in order to make a submission, or have any queries in relation to the Review, you can contact the Review Team on 08 8463 3317 or via e-mail at [email protected]

http://minerals.statedevelopment.sa.gov.au/mining/leading_practice_mining_acts_review

http://minerals.statedevelopment.sa.gov.au/mining/leading_practice_mining_acts_review

mailto:[email protected]

mailto:[email protected]



2.1 General background

The long title of the Mines and Works Inspection Act (Appendix A) indicates that the purpose of the Act is to provide for the “regulation and inspection of mines and works, and for other purposes.” The Act is mainly directed toward protecting property and amenity and preventing nuisance, as well as protecting the health and safety of mine workers and the general public who may be affected by mining operations. A copy of the Mines and Works Inspection Regulations made under the Act is at Appendix B.

The Act was originally passed in 1920 and has been amended a number of times.

As you can see from the front cover of this paper, mining operations undertaken before the passing of this Act were quite dangerous and fairly unregulated. Fast forward 100 years, and there have now been significant amendments to our mining and health and safety legislation, that aims to ensure worker and community safety.

One important amendment occurred on the passing of the Occupational Health Safety and Welfare Act 1986. The 1986 Act removed occupational health and safety provisions from the Act, and placed them into the Occupational Health Safety and Welfare Regulations. The Occupational Health Safety and Welfare Act has since been replaced by the Work Health and Safety Act 2012 (as part of the South Australian Government’s commitment to the national harmonisation of work health and safety laws). Despite these amendments, the Mines and Works Inspection Act still includes some unique provisions that relate to the health and safety of mine workers. Please refer to section 4.1 of the attached options paper for further discussion of this matter.

The general mandate of the Act to protect property and amenity and prevent nuisance is a dated and narrow view of environmental management and does not reflect the breadth of issues now covered by modern mining regulatory regimes. While some amendments to the Act and Regulations have broadened the scope of the framework over time, key terms such as ‘environment,’ ‘nuisance’, ‘amenity’1 and ‘property’ remain either undefined, or inadequately defined.

1 Amenity of an area or place includes any quality or condition of the area or place that conduces to its biological, physical or cultural values.

HISTORY AND SCOPE OF THE MINES AND WORKS INSPECTION ACT AND REGULATIONS

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Breadth of application

Section 5 of the Act states that it applies to “every mine under whatsoever tenure held and wheresoever situated within the State”. A mine is defined as “any place in, on, or under which any mining operation has been or is being carried on, and includes works”.2 Mining or a Mining operation is defined as “(a) any operation carried on in the course of searching for or recovering any mineral; or (b) any operation carried on at any works; or (c) any operation declared by proclamation under this section to be a mining operation”.

There are no proclamations declaring any exemptions from the definition of ‘mining operation’, so the Act applies to all mines and works (as defined) in South Australia, including:

� tenements and private mines under the Mining Act 1971;

� opal mines under the Opal Mining Act 1995;

� tenements under the Offshore Mining Act 2000 (as this covers mines within the 3 nautical mile limit of South Australia’s territorial limits);

� local government borrow pits;3

� the Olympic Dam mine;

� the Leigh Creek Coal mine;

� various tunnel works; and

� the Whyalla Steel Works.

Practically, this means that almost all mining operations in South Australia are concurrently regulated under the Act and the Mining Act, which can cause unnecessary confusion for a mine operator if inconsistent obligations arise under both Acts about the same actions.

The principal tools available to regulators under the Act are the powers to:

� undertake inspections and make orders;

� approve and enforce plans and programs for mining and rehabilitation (see Regulations);

� certify mine managers (see Regulations); and

� approve various administrative matters e.g. commencement of mining and rehabilitation.

More detailed information on the operation of the Act is set out in the following sections.

2 Works means any battery, crushing plant, ore concentrating works, cyanide or chlorination works, leaching plant, smelting or metal refining works, pellet plant, salt works, pre-mix concrete works, or road-base plant situated on or adjacent to the place at which a mining operation is carried on. The regulations may declare anything to not be works or anything to be works.

3 The Act may also apply to Department of Planning, Transport and Infrastructure borrow pits.



2.2 Content of the Mines and Works Inspection Act

The major areas covered by the Mines and Works Inspection Act include:

� Appointment and powers of Inspectors of Mines (including a Chief Inspector) and Authorised Officers and related matters. Inspectors of Mines and Authorised Officers:

� May enter any mine site at any time without notice to inspect (without unnecessarily impeding operations) and ascertain whether the Act is being complied with (in regard to the health and safety of workers or general public and the protection of property, creation of nuisance and effects on amenity of the area).

� May order that the use of any machinery or practice considered unsafe to mine workers or the general public (or which creates a nuisance, property damage or impairs the amenity of the area) cease until any defects are remedied.

� Must maintain confidentiality of information on trade processes or finances obtained in the course of their duties. There are also provisions to protect Inspectors, and prohibitions on them being obstructed in the course of their duty.

� A process to consider appeals against orders or directions through the Mines and Works Appeal Board (Note: this Board fell into disuse, and does not currently operate).

� Miner’s inspectors can be appointed by the miners employed at a mine. These inspectors have power to inspect the mine, machinery and workings if any miners consider them unsafe (Note: This voluntary system is not known to be currently used within the State).

� Power to make regulations, including in respect of the:

� Health and safety of mine workers and general public, and to preserve or prevent nuisance or damage to any property or amenity from mining operations.

� Appointment of agents and mine managers.

� Plans and sections of mines.

� Offences and penalties, including for obstructing or refusing to assist an inspector and for employing a person under the age of 18 years without written consent of the Minister.



2.3 Content of the Mines and Works Inspection Regulations

The major issues dealt with by the Regulations include:

� Appointment and accreditation of mine managers

� Mine managers must be appointed where 10 or more employees work at a mine in a 24 hour period.

� First and second class certificates for underground and quarry operations and permits.

� The Chief Inspector of Mines must be advised of appointments.

� The Chief Inspector manages the certification and permitting processes, conducted examinations, and cancelled or suspended certificates and permits (since the Board of Examiners was abolished in 2014).

� The criteria for the granting of certificates and permits, and relevant fees, are outlined in the Regulations.

� Mining plans and programs

� Mining plans and programs may be requested and approved by the Chief Inspector. They are to consist of accurate maps, plans or sections of the mine (and its immediate area) and contain development programs that show the:

� method of operation and order or stages to be adopted in extracting minerals;

− provisions to prevent nuisances and pollution of drainage water; and

− stages for screening and progressive rehabilitation of worked out areas, dams, dumps etc. that conforms to revegetation plans and will restore the general amenity of the area.

� Various duties of owners

� Owners must minimise interference with amenity, must not remove vegetation, create unnecessary nuisance from noise or dust or degrade water sources or bodies, and must conserve top soil and protect the environment from damage.

� Owners must facilitate inspections and provide suitable equipment.

� The Chief Inspector of Mines

� The Chief Inspector of Mines must approve the commencement of mining work, can grant exemptions, and can require an owner to ensure rehabilitation is done within two years of the end of mining.

� There are various offence and penalty provisions that deal with failures to comply with the Regulations.



3.1 The interaction between the Act and other legislation regulating mining activities, and duplication of processes

The Mining Act, the Offshore Minerals Act, and the Opal Mining Act regulate specific activity on specific classes of mines, and operate in tandem with the Act. Other Acts, such as the Work Health and Safety Act, the Environment Protection Act 1993 and the Development Act 1993 regulate some activities on mine sites, as part of those broader regulatory regimes.

These overlaps (and sometimes duplication of obligations) created by the overlapping operation of the Act and other legislation create uncertainty for operators and the regulator. Some examples of these overlaps and duplication include:

� The Work Health and Safety Act provides a system of inspections, inspectors, plans and programs to regulate the health, safety and welfare of workers (including mine workers) in South Australia. These systems operate in parallel with (but are more comprehensive than) systems under the Act, except that the Work Health and Safety Act does not cover the:

� appointment and certification of mine managers; and

� employment of persons under 18 years of age underground.

� The Mining Act, Offshore Mining Act, and Opal Mining Act provide systems of inspections and inspectors (or authorised officers) and systems of plans and programs to regulate environmental issues for the classes of mine covered by each Act. The standards set in these Acts generally parallel and are more comprehensive than the standards set in the Act. For example, while the Act applies a set of universal standards to mines, it does not properly address any of the particular circumstances and risks associated with different classes of mines operating in the different environments of South Australia e.g. offshore, opal, metaliferous, quarrying.

� Both the Act and the Mining Act provide penalties for failure to rehabilitate mine sites. However, the Mining Act also provides an additional financial incentive through rehabilitation bonds. The Opal Mining Act makes similar provision for rehabilitation bonds on mines outside of precious stones fields. In addition, both the Act and Mining Act provide for the protection of the health and safety of the general public affected by mining activities, while the Offshore Mining Act and Opal Mining Act do not.

CHALLENGES WITH THE CURRENT OPERATION OF THE MINES AND WORKS INSPECTION ACT AND REGULATIONS

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� The Environment Protection Act provides for the protection of the environment through processes aimed at applying principles of ecologically sustainable development. Certain mining activities undertaken under both the Mining Act and the Roxby Downs (Indenture Ratification Act) 1982 are exempt from the provisions of the Environment Protection Act, unless they are prescribed activities of environmental significance. However, the definition of such prescribed activities is so broad that the Environment Protection Act effectively regulates most mining activities and works. In addition to this, mining activities are covered by the general environmental duty within the Environment Protection Act. Further,

� given the impact that damage to the environment can have on human beings, the Environment Protection Act defines environmental harm in terms of the “…actual or potential harm to the health and safety of human beings”. Accordingly, the Environment Protection Act deals with the issue of health and safety of the general public; and

� authorised officers can be appointed under the Environment Protection Act with wide ranging powers to inspect premises, make orders and so forth.

The relationship between the various pieces of legislation regulating mining activities in South Australia is quite complex, and there appears to be some duplication e.g. with respect to requirements for plans and programmes, and the powers of inspectors and authorised officers in the various acts.

The Department is of the view that there may be some scope for a revision of the overall legislative scheme, so that any overlaps and gaps that create uncertainty for regulators, the industry and the community (as to correct or preferable regulatory process) are removed.

3.2 The limited practical scope of application of the Act: General

In most cases day-to-day compliance inspections of mining operations in South Australia are undertaken by authorised officers appointed under the Mining Act or the Opal Mining Act (because officers appointed under those Acts have broader and more comprehensive regulatory powers). It is important to note that, in practice, authorised officers appointed under the Mining Act are usually also appointed as inspectors under the Act.

The lack of power available to inspectors appointed under the Act makes it difficult to encourage or drive appropriate industry behaviour, and so the Act is only used, in practice, to regulate sites that cannot easily be regulated under those other Acts (such as indentured sites and borrow pits for roadbuilding).



However, to use borrow pits as an example, the application of the Act to those sites is either limited, or uncertain, because of various other legislation or obligations (e.g. Local Government Act 1999, Highways Act 1926, and standard practices in respect of Department of Planning, Transport and Infrastructure’s borrow pits). So, there is some clear need for clarity in any reform of the Act.

In spite of this, there are matters that are exclusively regulated under the Act and Regulations that should be retained, namely:

� The statutory appointment of competent mine managers at all mine sites.

� The Chief Inspector of Mines’ approval of the commencement of mining operations, and powers relating to post-closure mine rehabilitation.

� The regulation of the Leigh Creek and Olympic Dam mines, and other operations subject to conditions or legislation mandating compliance with the Act.

3.3 The limited practical scope of application of the Act: Work health and safety

Provisions of the Act that seek to protect the health and safety of mine workers and the general public should encourage best practice behaviour, and should be consistent with other work health and safety obligations imposed on the operator.

Worker health and safety provisions in the Act empower inspectors to enter mine sites and observe health and safety issues, in accordance with any codes of practice and other relevant frameworks adopted under the Regulations. However, the successive amendments to these regulatory regimes (e.g. by the passing of the Occupational Health Safety and Welfare Act, the Work Health and Safety Act and the Work Health and Safety Regulations), have meant that mines in South Australia are now subject to a comprehensive, nationally harmonised, work health and safety regime.

With the exception of the appointment and certification of mine managers, the limited protections previously offered by the Act have now been rendered obsolete by these modern and comprehensive work, health and safety regimes.

Part 2 Division 1 and Schedule 1 of the Mines and Works Inspection Regulations regulate the appointment of competent mine and quarry managers through statutory certification requirements. The Department of State Development recently engaged a consultant expert, Mr Bryan Russell (the former Executive Director of SafeWork SA) to undertake a comprehensive review of the legislative requirements for the competency of mine managers



in South Australia, to ascertain whether the current arrangements for regulating the competency of mine managers meet the needs of a modern mining sector in South Australia.

The options paper entitled Review of Mine Manager Competency Legislation produced by Mr Russell in September 2016 is attached as Appendix C, and forms part of this Review. The key matters for consideration and options outlined in the Paper are outlined below in paragraphs 4.1 and 5.

3.4 The outdated regulatory model, environmental penalty scheme promoted under the Act

Modern regulatory practice is centred on objectives and outcomes, and is performance and risk based.4 The principal components of the performance-based regulatory and compliance scheme provided for by the Mining Act and Mining Regulations include:

� A clear focus on requiring an operator to achieve environmental and other outcomes at a site, while not prescribing the particular activities that need to occur to achieve those outcomes. An environmental outcome is a statement of the expected impact on the environment caused by the proposed or current mining activities. Environmental outcomes are not specifically prescribed by the Mining Act; rather they are derived from a risk assessment for the specific mine with appropriate outcomes prescribed through conditions of approval. Example outcomes are:

� Pest Plants and Animals: No new introduction of new declared weed species or pests (including feral animals) or increase in abundance in these species;

� Native Flora and Fauna: No permanent loss of native flora/fauna abundance or diversity within licence areas and adjacent areas caused by mining operations and vegetation clearing;

� Groundwater: The extraction and use of groundwater must not adversely affect third party users and groundwater dependent ecosystems that are reliant on that groundwater system.

4 “Best Practice Regulation: A Guide for Ministerial Councils and National Standard Setting Bodies” Council of Australian Governments (COAG) October 2007.



� Outcomes are enforced by demonstrating compliance with measurable criteria. Criteria are agreed, specific measurable targets or standards relevant to the site.

� A focus on specific project risks rather than “one size fits all” approach, and an onus on the operator to identify and implement measures for addressing those risks.

� Proponents must demonstrate their capability to address the risks, and meet the outcomes.

By way of contrast, the Act reflects a prescriptive regulatory style. For example:

� The Act outlines specific techniques for top soil management, rather than outlining the desired outcomes.

� There is no requirement to discuss objectives, outcomes and risk management in development programmes.

� Owner and manager responsibilities for worker health and safety are limited to remedying specific issues identified by others, e.g. Inspectors of Mines.

The Act also only outlines a far narrower definition of ‘environment’ than that outlined in the Mining Act, and therefore its provisions for protecting property and amenity, and preventing nuisance, are inconsistent with (and less stringent than) modern best practice regulatory frameworks.

Penalties for offences under the Act and Regulations are much less than comparable penalties under other relevant legislation. For example:

� Wilful obstruction of an inspector incurs a fine of up to $1,000 under the Act, while under the Mining Act the fine may be up to $10,000.

� Failing to comply with an order or direction given by an inspector incurs a fine of up to $2,000, while the comparable offence under the Mining Act can incur a fine of up to $250,000.

� Finally, the provisions for development of programs of work in the Regulations do not embody modern regulatory practice. The 2011 amendments to the Mining Act, which introduced Programs for Environment Protection and Rehabilitation, implemented a best-practice regulation framework in the State (particularly in respect of environmental compliance and enforcement provisions) and have superseded the equivalent provisions in the Act.

These discrepancies and issues will be considered as part of the Review.



3.5 The unclear operation of the Mines and Works Inspection Act and other legislation for mines only covered by the Act (e.g. mines not subject to the Mining Act)

Some mine sites in South Australia are regulated under the Mines and Works Inspection Act and not regulated under the more general Acts such as the Mining Act, Offshore Mining Act, Opal Mining Act. Where there is a reliance on the Act for regulation, the practical interaction between the Act and other legislation is unclear. For example the:

� Local Government Act 1999: Section 294 gives councils power to mine for council related purposes and for disturbance caused by such borrow pits to be remediated.

� Highways Act 1926: Section 20 gives the Commissioner for Highways power to mine for road building material. But there are no clear consistent processes for rehabilitation.

� Electricity Corporations (Restructuring and Disposal) Act 1999: The Leigh Creek coal mine is leased and operated under this Act. As there are no provisions for the regulation of the site under the Electricity Corporations (Restructuring and Disposal) Act 1999, it is regulated under the Mines and Works Inspection Act.

3.6 Reference to the Mines and Works Inspection Act (or the Chief Inspector of Mines) in other legislation and leases

A number of mining operations within South Australia operate under an indenture agreement. An indenture is an agreement between the State and a company or companies that sets out the rights and obligations of both parties. The indenture is then given the statutory force through a Ratification Act passed by the Parliament. There are two indenture agreements that apply to existing mining operations in South Australia, namely:

� Roxby Downs (Indenture Ratification Act) 1982: This Act regulates the operation of the Olympic Dam mine and sets standards for the protection and management of the environment and compliance, e.g. mining and milling of radioactive ores (Clauses 10 and 11 of the Indenture). This Act is subject to the provisions of the Mines and Works Inspection Act (see the Second Schedule to the Indenture). There is no clear right for mining inspectors to enter and inspect the Olympic Dam mine site except under the Mines and Works Inspection Act.

� Whyalla Steel Works Act 1958: This Act establishes an indenture agreement which enabled the construction of a steel-making plant, and assures supplies of raw materials, and security of tenure of certain lands and mineral and other leases. The indenture imposes obligations on the company under the Mines and Works Inspection Act 1920 and its regulations.



There are numerous other references to the Act (and the role of the Chief Inspector of Mines) in other legislation. Some references provide for exemptions to various controls that would ordinarily be regulated under the Act (e.g. rules regarding use and storage of explosives and from rules for excavation and demolition work). Other references outline other key matters. For example, Section 29 of the Opal Mining Act grants powers to the Chief Inspector of Mines relating to the removal of machinery from a lapsed or cancelled tenement.

Numerous lease conditions included in leases granted under the Mining Act also refer to the Act and the Chief Inspector of Mines. The following is an extract from such a lease condition, and demonstrates that such lease conditions now tend to be out of date:

[the lessee has authority to]

cut and construct races drains dams reservoirs roads and tramways; and… …all other necessary or convenient powers authorities privileges and advantages for all or any of the purposes aforesaid subject to the provisions of the said Act and regulations and the Mines and Works Inspection Act, 1920-1970, and all regulations made thereunder and subject to such rights interest and authorities as may be lawfully subsisting in the said land at the date of this lease except and always reserved out of this lease all substances other than those mentioned in the preceding paragraph (1) in or upon the said land…

The Review of the Act and the role of the Chief Inspector of Mines will include a careful consideration of these references and links.

3.7 Unclear definition of terms and concepts in the Act

Key terms such as ‘environment,’ ‘nuisance’, ‘amenity’5 and ‘property’ remain either undefined, or inadequately defined.

Further, a mine is defined under the Act as “any place in, on, or under which any mining operation has been or is being carried on, and includes works”. The Act therefore covers a wide range of activities such as ore extraction, crushing methodologies and complex chemically based refining techniques. However, the mine manager qualifications are based on a mining engineering qualification rather than the chemical engineering or metallurgical qualifications necessary for managing many types of works.

The Department seeks your view on the potential to update any definitions in the Act.

5 Amenity of an area or place includes any quality or condition of the area or place that conduces to its biological, physical or cultural val-ues.



Based on the above, the Department seeks submissions on the following matters, and any other relevant matters:

4.1 Mine worker health and safety

� Should the Mines and Works Inspection Act continue to regulate mine worker health and safety? Or, should any outstanding issues covered by the Mines and Works Inspection be incorporated into the Work Health and Safety Act and Regulations?

� How should mine manager competency best be regulated in the future? Specifically:

� Is statutory certification the best means of assuring the competency of mine managers?

� Is the number of workers engaged at the mine over a particular period of time a relevant threshold for the requirement to engage a competent mine manager?

� Is a fit and proper person test a reasonable requirement for a mine manager, and should such a test be set in law?

� Should the requirement of experience for a mine manager be included in the legislation, and should specific elements of experience (e.g. 3 years) be prescribed?

� Should an age limit be a prescribed requirement for a mine manager?

� Is a degree or diploma (or equivalent) an appropriate qualification for a mine manager?

� Should legislation specify the type of qualification (e.g. mining engineering) that is required?

� Should an examination on mining law, environment and safety be necessary for certification?

− Should it be the responsibility of the regulator to determine a person’s understanding of mining law and safety?

4.2 Health and safety of the general public affected by mining operations

� Should the Act continue to regulate the health and safety of the general public affected by mining operations?

� Are there any such matters presently covered by the Act and Regulations that might be incorporated into other relevant legislation? How might these matters be effectively managed within other legislation?

MATTERS FOR CONSIDERATION IN THE REVIEW

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4.3 Environmental matters

� Should the Act continue to regulate environmental issues? If so, does it need to be modernised to reflect current best practice?

� Alternatively, are there any environmental issues covered by the Act that could be incorporated into other relevant legislation?

4.4 Administration issues

� Are there any administrative issues, e.g. notification requirements, approvals to commence or cease work, which need to continue to be regulated under the Act? Are there ways these matters could be managed effectively within other legislation?

When considering feedback on these matters, participants are encouraged to consider the appended Options Paper produced by Mr Russell (Appendix C), which forms part of this Review.



A number of possible options have been identified to address the matters above. These include:

A. Retaining the Mines and Works Inspection Act and Regulations to cover all mines (as is currently the case) but upgrading it to reflect the principles outlined in the, more modern, Mining Act and Work Health and Safety Act.

B. Repealing the Mines and Works Inspection Act and Regulations, and incorporating relevant provisions into other appropriate legislation as required (e.g. Mining Act and Work Health and Safety Act).6

If the Act and Regulations are to be repealed, specific options for mine manager competency (as outlined in the attached Options Paper (Appendix C), include:

B1. Relying upon the safety requirements for mine managers to be covered in the Work Health and Safety Regulations.

B2. Amending the Work Health and Safety Regulations to include specific requirements for the competence of mine managers.

B3. Retaining an assessment process and issuing of certificates of competency.

C. Retaining the Mines and Works Inspection Act to regulate mining operations that lie outside the Mining Act, and updating it to reflect modern mining regulation. A number of other amendments to the Act should be considered, including (but not limited to):

� exempting all Mining Act and Opal Mining Act tenements;

� transferring responsibility for safety related issues to the Work Health and Safety Act (and SafeWork SA); and

� exempting local councils and Department of Transport, Infrastructure and Planning mining operations (e.g. borrow pits for road construction) from the Act, subject to suitable provision being made for management and rehabilitation under their respective Acts.

Stakeholders are invited to indicate a preferred option from those listed above, noting that consideration needs to be given to the key drivers for this Review, namely, seeking a regime that is both effective and efficient, whilst maintaining accountability and strong compliance and enforcement practices.

We look forward to hearing from you.

6 The preliminary view of the Department is that Option B is the most preferable, as it will significantly streamline the current regulatory frame-work and reduce duplication, while allowing for the retention of any unique, necessary powers.

OPTIONS5

CONTAC TDELIVERY ADDRESS Department of State Development Level 7,101 Grenfell Street ADELAIDE SA 5001

POSTAL ADDRESS Department of State Development GPO Box 320 ADELAIDE SA 5001

Documents

Leading Practice Mining Acts Review Mines and Works Inspection Act …assets.yoursay.sa.gov.au/production/2016/11/16/00/59/18... · 2016. 11. 16. · 2013 establish a regulatory framework