An Act to amend the Coal Mine Health and Safety Act 2002 in relation to the application of that Act and other matters; to amend the Mining Act 1992 to provide for the registration of mines rather than colliery holdings; and for other purposes.
1 Name of Act
This Act is the Coal Mine Health and Safety Amendment Act 2010.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
Schedule 1 Amendment of Coal Mine Health and Safety Act 2002 No 129
[1] Section 3 Definitions
Omit the definition of abandoned coal operation. Insert instead:abandoned mine includes a discontinued mine, a closed mine (other than a suspended mine) and a former mine.
[2] Section 3
Insert in alphabetical order:coal exploration means the carrying out of works on, or the removal of samples from, land for the purpose of testing the coal- bearing qualities of the land, but does not include any activity or class of activity that is excluded from this definition by the regulations.emplacement area means:(a) any pile, heap, hole, excavation or place in which, or on which, reject (whether in a solid state or in a solution or suspension) is piled, heaped, dumped, accumulated, deposited or placed, andbut does not include an accumulation or deposit of reject situated underground.(b) any wall or other structure that retains or confines reject, whether or not that wall or structure is itself composed of reject,land includes land covered by water.reject means any carbonaceous material, whether it is mixed with or attached to stone or not, that is left after the treatment of coal in a coal preparation plant or that is not dealt with as coal by the occupier of a mine.
[3] Section 3, definition of “coal exploration site”
Omit the definition. Insert instead:coal exploration site means a place where coal exploration is carried out and includes a place that is being rehabilitated after coal exploration has been carried out.
[4] Section 3, definition of “coal operation”
Omit the definition. Insert instead:coal operation:(a) means a place at which coal is mined that is a place of work to which this Act applies, and(b) includes any other places of work to which this Act applies that are prescribed by the regulations for the purposes of this definition.
[5] Section 3, definition of “colliery holder”
Omit the definition. Insert instead:colliery holder means:(a) in relation to land subject to an authority for coal granted under the Mining Act 1992—the person who holds the authority, or(b) in relation to land subject to a licence for coal granted under the Offshore Minerals Act 1999—the person who holds the licence, or(c) in relation to any other land—the person having the beneficial ownership of the mine.
[6] Section 3, definition of “colliery holding”
Omit the definition. Insert instead:colliery holding has the same meaning as it has in the Mining Act 1992.
[7] Section 3, definition of “Department”
Omit the definition. Insert instead:Department means the Department of Industry and Investment.
[8] Section 3, definition of “mine”
Omit the definition. Insert instead:mine—see section 3A.
[9] Section 3A
Insert after section 3:3A Meaning of “mine”(1) In this Act:mine:(a) when used as a noun, means any of the following:(i) any place where the extraction of material from land for the purpose of recovering coal is carried out,(ii) any coal preparation plant at or near the place from which the material or coal was extracted,(iii) any place where the storage or treatment of waste resulting from:(A) the extraction of material from land for the purpose of recovering coal, oris carried out, if that place is at or near the place from which the material or coal was extracted,(B) the treatment of the coal or the material referred to in sub-subparagraph (A) for the purpose of recovering or improving coal,(iv) any place where coal exploration is carried out,(v) any place where offshore mining activities (within the meaning of the Offshore Minerals Act 1999) for coal are carried out,(vi) any place where operations associated with the care, security or maintenance of a place referred to in this definition are carried out during any time when activities or operations at that place are suspended,(vii) any place where operations associated with the decommissioning or abandonment of a place referred to in this definition are carried out,(viii) any place where an activity or operation referred to in this definition is or has been carried out and that is being rehabilitated, and(b) when used as a verb, means disturb, remove, cart, carry, crush or otherwise deal with coal or stone for the purpose of obtaining coal for profit or improving coal, or carry out such other activities as may be prescribed by the regulations, but does not include:(i) to explore for coal by drilling from the surface, or(ii) to blend coal where this is done elsewhere than at a mine.(2) For the purposes of this section, any building, structure, pit, shaft, drive, level, incline, decline, excavation or work that is at a place referred to in the definition of mine in subsection (1), and that is in the course of construction and intended to be part of a mine, is taken to be part of the mine constituted by that place.(3) For the purposes of this section, the extraction of material from land for the purpose of recovering coal includes the following:(a) any activity that is ancillary to, or connected with, extracting material for such a purpose, including, but not limited to:(i) storage of fuel, explosives, explosive precursors, machinery, timber or plant, and(ii) construction, maintenance and use of any drill hole or shaft for:(A) the drainage of gas, or(B) the drainage or conveyance of water, or(C) ventilation, or(D) the conveyance of electricity, or(E) communications, or(F) emergency access to underground workings, and(iii) the storage, treatment and transport of water (including the management of runoff from areas disturbed by activities directly connected with mining),(b) the transportation, stockpiling or depositing of overburden, coal or waste material,but does not include any activity or class of activity that is excluded from the operation of this subsection by the regulations.(c) such other activities as may be prescribed by the regulations,(4) For the purposes of this section (but subject to the regulations), a place (the relevant place) is taken to be near a place if:(a) the relevant place is operating on an ongoing basis, and(b) the relevant place (or any part of it) is within 10 kilometres of the nearest boundary of the place, and(c) the relevant place is under the same or related management as the place.
[10] Section 4 Certain things are part of a coal operation
Omit the section.
[11] Part 2
Omit the Part. Insert instead:Part 2 Application of Act8 Application of Act(1) This Act applies to all places of work that are mines.(2) This Act also applies to any of the following places, whether or not it is a place of work:(a) an abandoned mine (other than an abandoned mine used for the storage, treatment or disposal of waste that is not connected with an activity or operation referred to in paragraph (a) (i)–(v) of the definition of mine in section 3A (1)),(b) any place that would otherwise be a mine if relevant activities or operations are carried out, during any time when those activities or operations at that place are suspended,(c) any place at which drilling operations (within the meaning of section 78) are carried out,(d) any land (that is not otherwise a mine within the meaning of section 3A) on which activities or uses take place that are the subject of, or required to be the subject of, a permit issued under Division 4 of Part 6,(e) any emplacement area.8A Act does not apply to certain mines or places(1) This Act does not apply to:(a) any mine or place that is of a class prescribed by the regulations or in circumstances or during time periods prescribed by the regulations, or(b) any specified mine or place, specified by the Minister in a notice published in the Gazette.(2) The Minister is to notify any other Minister administering the Work Health and Safety Act 2011 if any notice under subsection (1) (b) is published in the Gazette. However, failure to notify any such other Minister does not affect the validity of the notice.8B Decisions on jurisdictional questions(1) The Minister may make a determination as to whether a particular place is or is not a place to which this Act applies. The determination may be of general application or be limited as to time or circumstances.(2) The Minister’s determination is conclusive for the purposes of deciding a jurisdictional question (including a jurisdictional question arising in court proceedings).(3) A jurisdictional question is a question as to whether functions of a government official under this Act or of an inspector under the Work Health and Safety Act 2011 were or can be validly exercised or a question as to whether proceedings for an offence under this Act or the Work Health and Safety Act 2011 were or can be validly instituted.(4) A determination under this section applies in respect of functions exercised or purportedly exercised before or after the determination was made but not so as to affect court proceedings commenced before the determination was made.(5) A determination under this section does not operate to result in a person committing an offence that the person would not have committed had the determination not been made.(6) A certificate of the Minister certifying as to a determination made by the Minister under this section is evidence of the Minister’s determination and the date of the determination.(7) The Minister is to notify any other Minister administering the Work Health and Safety Act 2011 of any determination made by the Minister under this section (but a failure to notify the other Minister does not affect the validity of the determination).8C Act does not apply to railway operations or roads(1) This Act does not apply to a railway or railway operations to which the Rail Safety Act 2008 applies.(2) This Act does not apply to public roads (within the meaning of the Roads Act 1993).8D Act does not apply to civil engineering works(1) Subject to the regulations and any notice given by the Minister under section 8A (1) (b), this Act does not apply to:(a) any place where the extraction of coal is carried out, if those activities are an integral part of any civil engineering work, or(b) any place where underground work involving the extraction or treatment of coal is carried out, where that work is an integral part of any civil engineering work.(2) In this section:civil engineering work means the construction, structural alteration, repair, maintenance and demolition of, for example, airports, docks, harbours, inland waterways, dams, river and avalanche and sea defence works, roads and highways, railways, bridges and tunnels, viaducts and works related to the provision of services such as communications, drainage, sewerage, water and energy supplies.8E Act does not apply to powerlinesThis Act does not apply to electricity infrastructure that is owned by a network operator or retail supplier (within the meaning of the Electricity Supply Act 1995).9 Act to bind CrownThis Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
[12] Part 5, Division 7, heading
Omit “exploration holders”. Insert instead “colliery holders”.
[13] Section 78 Duty to give notice of drilling operations
Omit “An exploration holder” from section 78 (1).Insert instead “A colliery holder”.
[14] Section 78 (1)
Omit “the exploration holder”. Insert instead “the colliery holder”.
[15] Section 98 Definitions
Omit the definitions of emplacement area and reject from section 98 (1).
[16] Section 105 Definitions
Omit the definition of mine. Insert instead:mine includes an abandoned mine or part of a mine.
[17] Section 110
Omit the section. Insert instead:110 Notification of certain incidents and other matters(1) The operator of a coal operation must ensure that the Chief Inspector and an industry check inspector are given notice in accordance with this section of any of the following incidents (notifiable incidents):(a) any incident at the coal operation that has resulted in a person being killed,(b) any other incident at the coal operation of a kind prescribed by the regulations for the purposes of this paragraph,(c) any incident or other matter occurring at, or in relation to, the coal operation that the regulations declare to be an incident or matter that is required to be notified.(2) The colliery holder for a mine must ensure that the Chief Inspector and an industry check inspector are given notice in accordance with this section of any of the following incidents (notifiable incidents):(a) any incident at the mine that has resulted in a person being killed,(b) any other incident at the mine of a kind prescribed by the regulations for the purposes of this paragraph,(c) any incident or other matter occurring at, or in relation to, the mine that the regulations declare to be an incident or matter that is required to be notified.(3) Any notice under this section must be given:(a) as soon as practicable (but not later than 7 days) after each person required to give notice becomes aware of the notifiable incident, and(b) in writing and, if a form has been prescribed by the regulations, in that form.(4) Any notice must, in the case of a notifiable incident referred to in subsection (1) (a) or (b) or (2) (a) or (b), also be given:(a) immediately after the person required to give the notice becomes aware of the incident, and(b) by the quickest available means.This subsection does not apply if the person required to give the notice is aware that another person has given the required notice of the incident.(5) The regulations may vary the obligations under this section with respect to the person required to give the notice and the time and manner in which notice is to be given.
[18] Section 118 Minister to make stop work orders
Omit section 118 (2). Insert instead:(2) An order takes effect on and from the time at which:(a) if the order relates to a mine—a copy is provided to the colliery holder for the relevant colliery holding by the Minister, or(b) if the order relates to a coal operation—a copy is provided to the operator of the coal operation by the Minister, orwhichever is the sooner.(c) the person carrying out, or about to carry out, the action the subject of the order is notified by the Minister that the order has been made,
[19] Section 145 Appointment of government officials
Omit section 145 (2). Insert instead:(2) An instrument appointing a person under this section may limit the functions that the person has as a government official or under the Work Health and Safety Act 2011.
[20] Section 151 Consideration and investigation of complaints
Omit “coal operation” from section 151 (1), wherever occurring.Insert instead “mine”.
[21] Section 151 (4)
Insert “or the colliery holder for the mine” after “coal operation”.
[22] Section 153 Additional functions
Omit “coal operations” wherever occurring. Insert instead “mines”.
[23] Section 156A
Insert after section 156:156A Power to require plan from colliery holder(1) A government official may require the colliery holder for a mine to provide the government official with a plan of all or part of the mine marked with information that the government official considers necessary for an investigation or inquiry that the government official is making.(2) A colliery holder must not fail to comply with a requirement made under this section.Maximum penalty: 100 penalty units.
[24] Schedule 3 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
[25] Schedule 3
Insert after clause 26:Part 3 Provision consequent on enactment of Coal Mine Health and Safety Amendment Act 201027 Validation(1) Anything done or omitted to be done in the exercise or purported exercise of a function under this Act, the OH&S Act or the Explosives Act 2003 before the relevant date that would have been validly done if the amending Act had been in force is validated.(2) Without limiting subclause (1):(a) any prosecution commenced for an offence under this Act, or an offence under the OH&S Act, before the relevant date that would have been validly commenced had the amending Act been in force at the time the prosecution commenced is taken to have been validly commenced, and(b) the exercise, or purported exercise, before the relevant date of a function under the OH&S Act by an inspector appointed under section 47 of that Act, or an inspector taken to have been appointed as an inspector under the OH&S Act pursuant to section 47B of that Act, that would have been valid had the amending Act been in force at the time of the exercise is validated, and(c) the exercise, or purported exercise, before the relevant date of a function under this Act by a government official that would have been valid had the amending Act been in force at the time of the exercise is validated, and(d) the exercise, or purported exercise, before the relevant date of a function under the Explosives Act 2003 by a regulatory authority under that Act, or an inspector appointed under that Act, that would have been valid had the amending Act been in force at the time of the exercise is validated, and(e) any penalty notice issued under the OH&S Act before the relevant date that could have been issued under this Act had the amending Act been in force at the time of its issue is validated.(3) In this clause:amending Act means the Coal Mine Health and Safety Amendment Act 2010.OH&S Act means the Occupational Health and Safety Act 2000.relevant date means the date of commencement of Schedule 1 [11] to the amending Act.under, in relation to an Act, includes under the regulations made under the Act.
sch 1: Am 2011 No 67, Sch 4.3 [1]–[3].
Schedule 2 Amendment of Mining Act 1992 No 29
[1] Section 21 Colliery holdings
Omit the section.
[2] Section 40 Colliery holdings
Omit the section.
[3] Section 61 Colliery holdings
Omit the section.
[4] Section 163
Omit the section. Insert instead:163 Registration of mines(1) The Director-General is to keep a register of mines (the register) in written or electronic form.(2) The Director-General is to cause the following particulars to be recorded in the register:(a) the name of each mine at which mining operations are carried out under the authority of a mining lease,(b) in relation to each such mine, details of any mining lease that applies to all or part of the land within the mine,(c) the name of the holder of each such mining lease,(d) in relation to each such mining lease, details of the address for service of the holder of the lease,(e) a list of the minerals authorised to be mined at the mine under the authority of a mining lease,(f) any former names of the mine,(g) any other particulars that are prescribed by the regulations.(3) The holder of a mining lease must notify the Director-General of:(a) the name of each mine at which mining operations are intended to be carried out under the authority of the lease, no later than 30 days after the lease is granted and, in any case, before commencing mining operations under the mining lease, and(b) any change in any of the following particulars in relation to a mine, as soon as practicable after the change:(i) the name of any mine at which mining operations are carried out under the authority of the lease,(ii) the leases or the subleases comprising that mining operation,(iii) the address for service of the holder of the mining lease, and(c) any assignment of the mining lease so that it applies to another mine, as soon as practicable after the assignment.Maximum penalty: 20 penalty units.(4) A notification under this section:(a) must be lodged with the Director-General, and(b) must be in the approved form, and(c) must be accompanied by the particulars prescribed by the regulations, and(d) must be accompanied by the particulars required by the approved form for such a notification, and(e) must be accompanied by the fee prescribed by, or determined in accordance with, the regulations.(5) Within 14 days after a notification is lodged under subsection (4) (or within such longer period as may be prescribed by the regulations), the Director-General must:(a) cause the register to be updated, as soon as practicable, in accordance with the notification, or(b) refuse to update the register on either of the following grounds:(i) the notification does not comply with the requirements of this section or the regulations,(ii) the name proposed for the mine may cause confusion (because, for example, it is the same as or similar to a name that is or was used for another mine, whether registered or not).(6) The register must be kept available at such offices of the Department as may be prescribed by the regulations for inspection by members of the public, free of charge.(7) Section 130 applies to a notification under this section in the same way as it applies to an application referred to in section 130 (1).
[5] Section 186 Colliery holdings
Omit the section.
[6] Schedule 6 Savings, transitional and other provisions
Insert at the end of clause 1 (1):Coal Mine Health and Safety Amendment Act 2010—but only to the extent that it amends this Act
[7] Schedule 6
Insert at the end of the Schedule with appropriate Part and clause numbering:Part Provisions consequent on enactment of Coal Mine Health and Safety Amendment Act 2010DefinitionIn this Part:amending Act means the Coal Mine Health and Safety Amendment Act 2010.Register of minesThe Director-General may include in the register of mines under section 163:(a) the information on the register of colliery holdings immediately before the substitution of that section by the amending Act, and(b) any other information contained in files of the Department.Transitional provision about register of minesA person is not liable for an offence under section 163 (3) (as substituted by the amending Act) in respect of any act or omission that occurs within 6 months after that substitution.
[8] Dictionary
Omit the definition of colliery holding. Insert instead:colliery holding means land:(a) that is subject to one or more leases authorising the mining of coal, and(b) that is within the boundaries of a mine registered under section 163.
Schedule 3 Amendment of other Acts and instruments
[1] Clause 3 Definitions
Omit the definition of colliery holding from clause 3 (1). Insert instead:colliery holding has the same meaning as it has in the Mining Act 1992.
[2] Clause 9 Persons eligible to make claims for compensation
Insert “(within the meaning of the Coal Mining Act 1973, as in force when the saleable coal was vested in the person)” after “colliery holding” in clause 9 (1) (b).
[3] Clause 18 Calculation of compensation in respect of claims under clause 10 or 11
Insert after clause 18 (4):(5) The substitution of section 163 of the Mining Act 1992 by the Coal Mine Health and Safety Amendment Act 2010 does not affect the operation of this clause.
[1] Clause 3 Definitions
Insert in alphabetical order:colliery holder, in relation to land subject to an authority for coal granted under the Mining Act 1992, means the person who holds the authority.colliery holding has the same meaning as it has in the Mining Act 1992.
[2] Clauses 16 (3) and 22 (3)
Omit “registered holder of” wherever occurring.Insert instead “colliery holder for”.
[1] Clause 5A
Insert after clause 5:5A Certain things are part of coal operationFor the purposes of paragraph (b) of the definition of coal operation in section 3 of the Act, any building, structure, pit, shaft, drive, level, drift, excavation or work within a colliery holding:(a) that is in the course of construction and that is intended to be part of a coal operation, or(b) that is a part of a coal operation and that is in the course of being abandoned, oris prescribed to be part of a coal operation.(c) that is a part of a coal operation the operations at or in which are in the course of being discontinued,
[2] Clause 6
Omit the clause. Insert instead:6 Act does not apply to certain placesThe classes of places specified in Schedule 1 are prescribed for the purposes of section 8A (1) (a) of the Act.Note—The Act does not apply to any place that is specified by the Minister in a notice published in the Gazette under section 8A (1) (b) of the Act.
[3] Schedule 1 Places to which Act does not apply
Omit clause 1.
[4] Schedule 1, clause 2
Omit “abandoned coal operations” wherever occurring.Insert instead “abandoned mines”.
[5] Schedule 1, clause 2 (b)
Omit “abandoned coal operation”. Insert instead “abandoned mine”.
Section 3 Definitions
Insert “(within the meaning of the Coal Mining Act 1973, as in force on that date)” after “colliery holding” in paragraph (b) of the definition of coal to which this Act applies.
3.5
(Repealed)[1] Section 8
Omit the section. Insert instead:8 Decisions on jurisdictional questions(1) The Minister may make a determination as to whether a particular place is or is not a place to which this Act applies. The determination may be of general application or be limited as to time or circumstances.(2) The Minister’s determination is conclusive for the purposes of deciding a jurisdictional question (including a jurisdictional question arising in court proceedings).(3) A jurisdictional question is a question as to whether functions of a person as a government official under this Act or of an inspector under the Work Health and Safety Act 2011 were or can be validly exercised or a question as to whether proceedings for an offence under this Act or the Work Health and Safety Act 2011 were or can be validly instituted.(4) A determination under this section applies in respect of functions exercised or purportedly exercised before or after the determination was made but not so as to affect court proceedings commenced before the determination was made.(5) A determination under this section does not operate to result in a person committing an offence that the person would not have committed had the determination not been made.(6) A certificate of the Minister certifying as to a determination made by the Minister under this section is evidence of the Minister’s determination and the date of the determination.(7) The Minister is to notify any other Minister administering the Work Health and Safety Act 2011 of any determination made by the Minister under this section (but a failure to notify the other Minister does not affect the validity of the determination).
[2] Section 127 Appointment of government officials
Omit section 127 (2). Insert instead:(2) An instrument appointing a person under this section may limit the functions that the person has as a government official or under the Work Health and Safety Act 2011.
[1] Section 4 Definitions
Omit the definition of Colliery holding. Insert instead:Colliery holding has the same meaning as it has in the Mining Act 1992.
[2] Section 4, definition of “Proprietor”
Omit the definition. Insert instead:Proprietor means the lease holder of any lease for coal within a colliery holding and, where there is more than one lease holder, means each lease holder who is jointly and severally liable for the obligations under this Act.
[1] Schedule 1 Amendment of Mining Act 1992
Omit Schedule 1 [108]–[113].
[2] Schedule 1 [224]
Omit “within the same colliery holding” from proposed section 261B (5).Insert instead “worked as a single mine, registered as part of a mine under section 163”.
[3] Schedule 2 Amendment of other Acts and instrument
Omit Schedule 2.1.
Clause 23
Omit the clause. Insert instead:23 Register of minesFor the purposes of section 163 (6) of the Act, the prescribed office is the Maitland office of the Department.
[1] Section 47A Appointment of inspectors in connection with mining workplaces
Insert at the end of the section:(2) The appointment of a person as a government official under the Mine Health and Safety Act 2004 may limit the functions that the person has as an inspector under this Act.
[2] Section 47B Appointment of inspectors in connection with coal workplaces
Insert at the end of the section:(2) The appointment of a person as a government official under the Coal Mine Health and Safety Act 2002 may limit the functions that the person has as an inspector under this Act.
[3] Schedule 3 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
[4] Schedule 3, clause 1 (2A)
Insert after clause 1 (2):(2A) The regulations under subclause (1) may contain provisions of a savings or transitional nature consequent on the enactment of the Coal Mine Health and Safety Amendment Act 2010 only to the extent that it amends this Act or affects the meaning of coal workplace, within the meaning of this Act, in relation to any period before, at or immediately after the commencement of Schedule 1 [11] to the Coal Mine Health and Safety Amendment Act 2010.
Clause 24 Rate of royalty: Mining Act 1992 section 286
Omit clause 24 (3). Insert instead:(3) In this clause:colliery holding has the same meaning as it has in the Mining Act 1992.holding means all land within a colliery holding that includes the land within the mining lease from which the petroleum is extracted.
sch 3: Am 2011 No 27, Sch 4; 2011 No 67, Sch 4.3 [4] [5].