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Mining and oil and gas safety prosecutions set to rise in the West

Submitted By Firm: Corrs Chambers Westgarth

Contact(s): John Tuck

Author(s):

Simon Billing (Partner) & David Paton (Senior Associate)

Date Published: 2/27/2014

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Energy and resources safety in Western Australia has always had its own specific regulatory regime and specialist regulator, currently the Department of Mines and Petroleum (DMP).

As its name suggests, the DMP (and more particularly its Resources Safety Division) is responsible for enforcing workplace safety for both mines and also petroleum operations. This includes onshore oil and gas operations, pipelines and oil and gas operations within State waters.

The Department also regulates the storage and transportation of dangerous goods.

Regardless of the specific nature of the resource activity (be it mining, oil and gas operations or pipelines), employers, operators, and principals have essentially the same duty: to ensure, so far as is reasonably practicable, that workers and others within the workplace are not exposed to hazards.

A failure to satisfy this duty can result in criminal charges being laid, and if convicted, fines and, in some cases, imprisonment.

Criminal charges can be brought against not only the company or companies responsible for the employees, or in control of the workplace, but also to the officers and managers of those companies.

Similarly, a failure to comply with regulatory requirements governing the storage and transportation of dangerous goods, which by its nature is relevant to the energy and resources industry, also exposes the company and individual officers and managers to criminal liability.

In July 2011, the DMP established a specialist Investigations Branch which has been staffed by professional investigators with extensive investigation experience. Since then the Branch has conducted or reviewed all investigations into serious and potentially serious accidents within Resource Safety’s three operational Branches (Mines Safety, Petroleum Safety and Dangerous Goods).

Investigations have been better resourced and more focus given to gathering evidence that will lead to prosecutions under the laws.

All accidents that have occurred since mid-2011 have been investigated or reviewed by the Investigations Branch. This means that decisions will soon be taken as to whether prosecutions in relation to these investigations will be launched. .

It usually takes two to three years to determine whether criminal charges will be pursued. Given this timing, it seems likely the energy and resources industries will see a far greater rate of prosecutions commenced in 2014 than before.

This is particularly so in relation to mines safety which has a 3 year prescribed limitation period for the DMP to commence proceedings.

Energy and resources businesses that have experienced a serious workplace safety incident since mid-2011 should now be preparing themselves to respond in an informed way if the prosecutor knocks on their door next year. Some simple preparatory steps might include:

  • Checking that the internal investigation file is easily accessible and in a logical and useable form;
  • Identifying if recommended actions to improve safety systems and practices have been closed out, how and when;
  • Identifying whether employees involved at the time are still available to discuss the incident and how they can be contacted; and
  • Ensuring that there is a clear understanding between the company HSE and legal functions as to how the matter will be handled.

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