NSW Laws in Australia - Assignment Example

Name Course Instructor Date Part A Introduction According to the mining legislation in Western New South Wales, the mining companies are licensed under certain regulatory conditions, which the companies are expected to comply with. For instance, the regulation under Mining Act 1992 and POEO Act 1997 require the companies to ensure protection of the environment as a priority during mining process (POEO Act 1997 section 64 subsection 1 and Mining Act 1992 Section 378 clause D). This includes dumping of the wastes from the company which should be done through a proper mechanism to ensure the environment is not affected (POEO Act 1997 section 147 subsection 1) Moreover, employees at the companies have to be ensured of their security as provided under Work Health and Safety Act 2011. The safety of the workers has to include the compliance of the company with the stated regulation under EPL which ensures that the companies face the necessary penalties in such cases as failure to comply with the legislation (Work Health and Safety Act 2011 section 5) Regarding the offences committed by companies in mining, the legislation provides a gap whereby the companies get access to defense. Under WHS Act 2011, the law provides for the companies to defend individuals under the offences. Such situations include the occurrence of an event facilitated by causes beyond the individuals’ control like natural disasters and also chances that the companies comply with the set regulations to the later prior to the occurrence of incidences. In addition, occurrence of incidents in companies require notification of relevant authorities fast enough maybe vin telephone in order to enable fast action to reduce casualties and damage to the properties (POEO Act 1997 section 153 subsections 1 & 2). This retrospect paper seeks to discuss mining legislation in Western NSW about notification, offences and defense of incidences in companies during mining with respect to an incident at Giant Gold Mine in 2016. Question 1 Giant gold mines management is charged with the responsibility to notify relevant authorities in cases where incidences occur. As it is required by the legislation on mining by NSW, the employee is responsible for conducting the notification (POEO Act 1997 section 147). Just like Ben Smith notified Peter Johns of the impending danger from the crack, it is the duty of management to notify the relevant authorities in order to try and prevent the incidence as much as possible. Since the management failed to take action in time due to financial constraints, the incidence that occurred has to be notified to the authorities under mining legislation (POEO Act 1997 section 193) The required information during notification include: The location, nature and time of incidence-this, according to section 150 does not imply that the company will use it as defense but it is a duty of the company to conduct the notification The circumstances or conditions in which the incident occurred- this information covers the causes leading to the incident in which case, giant gold mines was aware since Ben Smith had reported. The circumstances in this case are the heavy rains which are presumed to have led to the flooding and also negligence of the company to respond to the situation when it was reported while under manageable condition. The action that was taken to contain the situation- according to Section 150 of the Mining Act, it is required that the proposed action for dealing with the incidence prior to its occurrence be notified if any was taken. In this case, giant gold mines took no action to counter the incidence from taking place besides being made aware of the impending situation beforehand. Besides the information indicated under section 150 as the required notification information, the results of the incidence have to be notified to Work Cover since the incidence has involved dangerous occurrence and possible death of Ben through drowning. WHS Act of 2011 in NSW requires that as a means to incident management, the regulator is notified immediately either by phone or writing like emails (WHS Act 2011, section 155) This allows the company to avoid penalties resulting from failure to conduct immediate notification that amount to $10,000 and $50,000 fines for individuals and corporations respectively. Question 2 As provided under section 155 of WHS Act 2011, the regulator is in the position to obtain information concerning occurrence of incidences. In a case like the giant gold mines, the regulator has powers to ask the people concerned to produce information that the person is knowledgeable about in writing with the person’s signature included (WHS Act 2011 section 155) For instance, since Peter Johns was informed of the crack in the wall, the regulator is allowed to request for information from him including documents necessary. In the same manner, the regulator, as indicated in WHS Act 2011 section 155, can request Peter Johns or any other employee to provide evidence orally and in writing about the incidence. Under this act section 155 subsection 1, 2 (a) and (b) permit the regulator to require any person believed to have the required information and is in a position to provide the documents and evidence about an incidence (WHS Act 2011 section 155 subsection 1, & 2 clause (a and b)). This includes asking Peter to provide written and signed document containing the information he has concerning the incident, that is, prior to its occurrence and should be provided within the specified time. Contravention of the act, as indicated in WHS Act 2011 section 155 subsection 4 allows the regulator to enforce subsection 2 (c). Under the subsection 2 (c), the regulator has the power to require Peter Johns to appear before the person the regulator may appoint on a specific day specified by the regulator in a notice and at a particular time and place (WHS Act 2011 section 155 subsection 4). This appearance is in order for Peter to or any of the employees or employers to give evidence either orally or via writing and documents about the incident. According to Section 171 under WHS Act 2011, it is provided that the regulator and the person the regulator may choose as inspector have specific entry powers which allows them to get answers to question and document production by the respondents (WHS Act 2011 section 171) Under this subdivision 4, the regulator is allowed to require Peter Johns since he is the manager at the mine to inform of the person with custody and access to specific documents that are required by the regulator. Similarly, the mentioned person will be required to produce the documents they have custody and access to within a specific period of time while providing answers to questions asked by the person chosen by the regulator as the inspector (WHS Act 2011 section 171 subdivision 4). Besides the regulator having the powers to access the documents as indicated, subsection 1 (b) require that the regulator should have written notice before accessing the documents at the company (WHS Act 2011 section 171 subsection 1 clause (b)). In the case of giant gold mine, the circumstances are exceptional and since the urgency of the matter falls under section 171 subsection 2, the regulator is allowed to access the documents immediately considering Ben drowned and his body is missing (WHS Act 2011 section 171 subsection 2). Therefore, it is necessary for all the procedures to be conducted in haste and provide time for salvaging of the body if possible. Subsection 3 of section 171 allows the regulator with the inspector to conduct the interviews which are indicated under subsection 1 (c) in private if they deem it necessary. As a matter of fact, Peter Johns is also allowed to request the regulator to conduct the interview in private due to the volatility of the matter (WHS Act 2011 section 171 subsection 3). Therefore, the regulator has the options to grant consent to the private interview. Question 3 According to POEO Act 1997 under Environment Protection Offences, the Giant Gold Mine committed willful and negligent conduct offence. This Act under Tier 2 subsections 120 to 142, covers the pollution offences of water, air, noise and land. In the case of giant gold mine, the crack that was created possibly by rain, later led to the collapse of the wall (POEO Act 1997 section 118 subsections 120 to 142). Under this act, the company is charged with negligence in a manner that the company manager in charge of the site, Peter Johns, failed to take action when the crack in the wall was reported first. Moreover, the collapse of the wall led to the dirty water flowing into the Macquarie river which is likely to cause water pollution. The water overflowing to the neighboring paddocks is a probable cause of land pollution besides the adverse effects to the animals present on the farm if any (POEO Act 1997 section 118). In reference to Work Health and Safety Act 2011, under Section 167, it is provided that the failure of an individual or a corporation to maintain operating equipment is an offence under the mining legislation (WHS Act 2011 section 167). The manager in charge of the Giant Gold Mine, Peter Johns, failed to consider repairing the cracks in the walls of the dam which is an equipment under mining, even after Ben Smith reporting in advance before water started seeping through the crack. This failure led to the collapse of the wall finally and led to pollution of both land and water. Apart from the pollution, the negligence also led to the probable death of an employee for the company, Ben Smith (WHS Act 2011 section 28). Subsections 147 to 153 under the POEO Act 1997 terms it an offence for individuals or corporations who fail to notify the probable occurrence of an incident (POEO Act 1997 section 167). The failure to comply with this section is likely to earn the individual and corporation a maximum penalty of $500k and $2 million respectively. Giant gold mine, under the management of Peter Johns is charged with this offence in that after Ben Smith reporting of the crack in the wall, the manager took no action in notifying relevant authorities and ultimately taking the necessary steps to counter the incidence. WHS Act 2011 provides several categories of offences under mining. The first category involves reckless conduct by an employee or employer to expose another individual to a risk like serious injury or death (WHS Act 2011 section 19). As indicate in the report about giant gold mine, it is evident that Peter Johns, the manager of the company exposed Ben Smith to risky circumstance which led to his probable death. The second category of offence is where a one individual having a duty to fulfil fails to perform the duty, which exposes another person to risk of serious injury or death (WHS Mines Act 2011 section 6). In the case with giant gold mine, it is evident that the company committed an offence when Peter Johns, who has the duty of ensuring working conditions of all workers are secure fails to pay for repair of the crack in the dam’s wall and instead asks Ben Smith to keep checking the wall which places him in a risky situation and leads to his death during the collapse of the wall. Question 4 The mining legislation in NSW as indicted in POEO Act 1997 provides that the individuals or corporation have statutory defense’s under certain circumstances. One of the defense’s Giant Gold Mine has in this situation is provided under section 118 which indicates that in cases where the occurrence of the incidence was facilitated by causes beyond the control of the person (POEO Act1997 section 118). Peter Johns had no ability to control the situation because the dam had been built to withstand certain pressure and therefore the rains added unprecedented pressure to the wall leading to the cracking and ultimately the collapse. Since the causes are natural, it goes beyond control of Peter Johns. Under section 121 of POEO Act 1997, defense in regard of water pollution is provided. As indicated in the section, if the corporation complies with the set regulations set by EPL about water pollution, then the defense is in order. The giant gold mine is said to have set up two dams that are used for the storage of dirty water and one for clean water (POEO Act 1997 Section 121). Besides, the company does not release the dirty water after washing the gold into river Macquarie. This indicates that the company confers with the regulations included in EPL in section 122. Similarly, land pollution resulting from the collapse of the wall does not void the defense for giant gold mine because the company had set up a dam that collected the dirt materials outside the mining void to prevent land pollution. This defense confers with the regulations in section 142 by complying with the EPL regulations on land pollution (POEO Act 1997 section 122) Conclusion To sum up, Western NSW legislation on mining provide for the safety of the workers. In the same manner, the mining laws ensures that the environment is protected against pollution by the companies during mining (POEO Act 1997 section 3). As it is realized from the case of Giant Gold Mine, the regulation on water pollution provided under POEO Act 1997 is conferred to by the company. This is achieved by setting up dams for collecting dirty water which ensures that the river around the company is not polluted. Moreover, the companies are expected to notify the relevant authorities immediately in case an incident occurs. The notification requirements in such an incident as the collapse of the wall at Giant Gold Mine include information on where and when the incident took place and if there was prior information on the incident (POEO Act 1997 section 45). The regulators under mining legislation as indicated in the case on Giant Gold Mine, have the power to request for information from individuals who are likely to have the necessary information needed as provided under section 150 of the Mining Act (Mining Act 2011 section 150). On the contrary, the management of the company under Peter Johns failed to consider the safety of the employee, Ben Smith, as required by WHS Act 2011 (WHS Act 2011 Section 155). Due to willful neglect of duties by the manager to take immediate action when Ben Smith reported the crack in the wall, it led to Ben’s death during the wall’s collapse. As a matter of fact, the legislation is lenient in specific situations about the offences committed by the company. The defense of the offences is provided under different sections depending on the nature of the occurrence (POEO Act 1997 Section 64 subsection 2) For instance, the occurrence at Giant Gold Mine was facilitated by causes beyond the control of Peter Johns which allows the company defense since they could not control the impending incident. This among other defenses help the companies in mining avoid serving possible penalties. Part B Question five For a project to be approved, it imperative that it goes through the processes outlined in the Mineral Exploration and Development Assessment Process. The table below outlines the key approvals in the process; from exploration to mining. In essence, there are two stages in the process; the exploration and the production stage. The exploration stage requires three key approvals; prospecting license, exploration license and the retention license. The production stage requires a mining lease, a general-purpose lease and a miscellaneous license. A prospecting license gives the holder a go ahead for entering the proposed land; prospecting for minerals and beginning the works needed for the activity. The rights included are congruent to those in an exploration license; only that its scope is smaller in terms of the geographical area it covers. An exploration license allows the holder to go into the specific land and begin exploring for minerals. With regard to the relevant legislative regime, such exploration licenses project to such works related to exploration as removing or extracting samples of relevant substances, excavating, sinking bores and digging pits. The retention license is more like a holding title, applied with respect to an identified mineral resource that is not economically feasible or practical to develop. For instance, when a holder, at the exploration stage finds a resource that is currently uneconomic; but one that would eventually become economically feasible, the tenement holder is granted the retention license. However, if the mineral resource is economically viable but the holder is unable to raise the necessary funds for development, then the retention license cannot be issued. In essence, the rights contained in the retention license authorize further exploration activities, without permitting production or mining activities. A mining lease is significant in undertaking development for resources and producing the commodities that are recovered. The tenement holder is therefore allowed, by this license, to mine or dispose the materials, which have been recovered from the land that is confined to the leasing geographical location. However, there are exceptions relating to the leasing of minerals in the area of lease. For instance, in NSW, it is prohibited to mine iron ore without the approval of the relevant minister. Granting of mining leases is heavily regulated in all jurisdictions. In Australia, the applicant must meet the requirements set out by the relevant minister before a mining lease can be granted. This is done in the short term with respect to the applied land, as opposed to long-term or use of the land in future. In addition, the applications are accompanied by detailed mineralization reports as well as mining proposals and further evidence regarding the applicant’s ability as far as finances and technical domains are concerned. The general-purpose lease serves as a tenure for mining activities’ ancillary purposes. Only a holder to a mining lease can be granted a general-purpose license. The grant allows the holder to undertake activities such as erecting, placing and operating machinery for the purposes of the mining operation. The holder is also allowed, by the license, to treat tailings and minerals recovered from operations in the mine. They however do no grant the holder the right to extract or mine minerals. A miscellaneous license is also among the key approvals required before mining can begin in NSW. It is a form of ancillary tenure, granted with respect to activities related to mining. Such purposes requiring a miscellaneous license in the mining operation include constructing administrative workshops and facilities, construction of and access to, powerlines, pipelines and roads. The license can be issued even on land presently under existing mining tenements, given that there can be co-existence of two mining tenements without having material impacts as far as existing tenement holders are concerned. Similarly, it is possible to issue other mining tenures for land that is subject to a prevailing miscellaneous license. The mining project may also be subject to other environmental laws at territorial, state and federal levels. The holder must therefore comply with the required laws that extend to the commonwealth; they may be required to provide a detailed report of the project impact on the environment for the public to assess and comment on. The holder is also required to provide the security and closure obligations in the mine. The heritage legislation also takes acre of heritage sites so that aboriginal cultures are not affected by mining activities. Additionally, the NSW government heavily regulates employment and workplace safety and health to ensure that the community and the environment are well protected. Read More