July 051 LIABILITY ISSUES FOR COAL MINE SURVEYORS Australian Institute of Mine Surveyors Seminar Catherine Bolger Association of Professional Engineers, Scientists and Managers, Australia

July 052 Sources of Liability Include: NSW Occupational Health & Safety Act 2000 NSW (“OH&S Act NSW”) and associated regulations Coal Mines Regulation Act 1982 NSW (“CMRA”) and associated regulations (soon to be replaced by the Coal Mine Health & Safety Act 2002)

July 053 Sources of Liability Include: QLD Coal Mining Safety & Health Act QLD 1999 and associated regulations

July 054 The Gretley Case Prosecuted under NSW Occupational Health & Safety Act 2000 (OH&S Act) Summons issued against individuals in 2000 Decision handed down in 2004 Mine Managers & Surveyor found guilty of offences under the OH&S Act Penalty handed down in 2005 of $30,000 against Surveyor Under Appeal.

July 055 Why was Gretley Groundbreaking? First prosecution in Coal Mining Industry using OH&S Act not Coal Mining specific legislation First test of scope of “concerned in the management of the corporation” to staff Highlighted deeming provisions Highlighted weakness of available defences for staff Will test validity of appeals provisions & capacity of criminal court to determine criminal penalties

July 056 What did Gretley Consider? S26” Offences by corporations - liability of directors and managers: (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision; or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. “

July 057 What did Gretley Consider? The Scope of s26 of the OH&S Act In considering the meaning of the phrase “concerned in the management of the corporation” Justice Staunton commented:

July 058 What did Gretley Consider? “What would appear to be a common and understandable factor in all the authorities to which I was taken was the person’s decision making powers and/or authority going directly to the management of the corporation. That decision making role or authority on behalf of the corporation may involve advice given to management encompassing a participation in its decision making processes and the execution of those decisions going beyond the mere carrying out of directions as an employee. That decision making role or authority and the responsibilities inherent in them must be such as to affect the corporation as a whole or a substantial part of the corporation. In saying that, it does not mean that the person must be at the highest levels of management. The structure and size of the corporation is relevant as is the role of the person within the corporation relevant to his/her decision making powers on behalf of the corporation.”

July 059 Other Authorities Since Morrison v Powercoal Pty Ltd and Anor [2004] NSWIRComm 297 on 18 November 2004 (“the Powercoal decision”) In the Powercoal decision the Full Bench did not provide a summarised view or set of criteria which may assist in determining if a particular manager is subject to s26, and stated:

July 0510 Other Authorities Since “ There are no authorities directly in point as to the scope of what is encompassed by the term “persons concerned in the management of the corporation” as that phrase is used in the Occupational Health and Safety Act and in interpreting the phrase it is necessary to have regard to the normal rules governing statutory construction, which would include an examination of the context in which the expression is used and the objects of the Act. It is permissible, however, as an aid to interpretation, to have regard to how the phrase or similar working has been construed in other statutory contexts.” at 171

July 0511 Other Authorities Since In the Powercoal case, the court reviewed another case: Griggs v Australian Securities Commission [1999] SASC 405, which considered the term “concerned in the management of”: “Management of a company may take place at many levels. It is reasonably clear from the section that management is not confined to matters performed by the directors or a managing director of a company, nor is it limited to the formulation of policy and direction of the company. As Ormiston J pointed out in Bracht at 829, there must be the exercise of some decision making powers. The question is how far down the management line does the definition extend.” Bleby J at 41.

July 0512 Other Authorities Since That definition does not require that management be exclusively vested in one person. Different persons may undertake different aspect of management. “That involvement must be more than passing, and certainly not of a kind where merely clerical or administrative acts are performed. It requires activities involving some responsibility, but not necessarily of an ultimate kind whereby control is exercised. Advice given to management, participation in its decision-making processes, and execution of its decisions going beyond the mere carrying out of directions as an employee, would suffice.” Ormiston J in Bracht at

13 APESMA Action Since Gretley Successfully lobbied NSW Government to change s26 deeming provisions when there is a workplace fatality, to create a new offence of ‘Reckless conduct causing death at a workplace by person with OHS duties’. Key Improvements: –The onus of proof is on the prosecutor, –Appeal Rights to Criminal Court –Must be “reckless” conduct. –Criminal Standard of proof But greater penalties.

14 APESMA Action Since Gretley New Provision states: “A person: (a) whose conduct causes the death of another person at any place of work, and (b) who owes a duty under Part 2 with respect to the health or safety of that person when engaging in that conduct, and (c) who is reckless as to the danger of death or serious injury to any person to whom that duty is owed that arises from that conduct, is guilty of any offence. “

July 0515 How is Gretley Relevant to QLD? There is a similar provision at s262 of the Coal Mining Safety & Health Act QLD 1999 and prosecutions could be bought under this provision. The scope of “Executive Officer” at S 262 could potentially extend to Surveyors, depending on the facts of the case.

July 0516 Definition of Executive Officer “Executive Officer” of a corporation means a person who is - (a) a member of the governing body of the corporation; or (b) concerned with, or takes part in, the corporations management, whatever the person’s position is called and whether or not the person is a director of the corporation.”

July 0517 S262 Coal Mining Safety & Health Act QLD 1999 “ Executive officers must ensure corporation complies with Act (1) The executive officers of a corporation must ensure that the corporation complies with this Act. (2) If a corporation commits an offence against a provision of this Act, each of the corporation’s executive officers also commits an offence, namely, the offence of failing to ensure that the corporation complies with this provision. Maximum penalty for ss2 - the penalty for the contravention of the provision by an individual.

July 0518 S262 Coal Mining Safety & Health Act QLD 1999 (3) Evidence that the corporation has been convicted of an offence against a provision of this Act is evidence that each of the executive officers committed the offence of failing to ensure that the corporation complies with the provision. (4) However, it is an defence for an executive officer to prove: (a) if the officer was in a position to influence the conduct of the corporation in relation to the offence - the officer exercised reasonable diligence to ensure the corporation complied with the provision; or (b) the officer was not in a position to influence the conduct of the corporation in relation to the offence. “

July 0519 Liability - Is there a Magic Answer? Assuming you take all reasonable steps but an incident happens what could be your liability? IT IS NOT CLEAR. This is an emerging area of law Each prosecution is giving some guidance but each case turns on its facts We can get legal advice to minimise risk, but the Acts are interpreted by the judiciary, not the lawyers giving advice.

July 0520 Liability - What can you do? Surveyors should lobby for changes to the Acts Qld surveyors should look at the recent NSW changes. Surveyors should be actively involved in reviewing the Act and Regulations, and each decision as it is decided. Surveyors should consider legal advice on Standards etc.

July 0521 Disclaimer This is not legal advice !