Since the Coal Act came into force there has been one fatality in the Queensland coal industry. A contract employee was fatally injured at Blackwater mine in April 2002 by crush injuries from the jib of a truck rear mounted crane.

The case went to the coroner but no prosecutions were launched. The outcome of the inquiry was a change to work practices and crane design.

“We are still not convinced that just because fatalities have been limited to one since the Act was introduced means it is working. It just means we have been a bit lucky,” said CFMEU district union inspector Greg Dalliston.

The Mining Safety and Health Advisory Council announced the Coal Act was under review this year.

Whilst the Queensland coal industry has suffered one fatality since 2001, since the introduction of the Queensland Mining and Quarrying Health and Safety Act (MQHSA) there have been six deaths in the state’s mining industry. Three prosecutions have been completed and two are pending.

In all three completed prosecutions the defendants have entered pleas of guilty. Consequently, as there is yet to be a defended prosecution, the sentencing boundaries are unknown. Few prosecutions under the act have also meant the sentencing range is uncertain.

With few precedents, businesses facing prosecution have limited places to look for guidance. In a paper by Abbott Tout Solicitors Amanda Karpeles and Monica Flynn they draw comparisons with Workplace Health and Safety Act (WHSA) prosecutions. Similar penalties and far greater number of prosecutions mean WHSA is a good starting place for guidance.

“Under the Act, a maximum penalty includes the potential for a prison term. Whilst these provisions have not yet been used, there is little comfort for directors or senior site executives. The new ceilings are not truly reflected in increased penalties at this time,” said the Karpeles/Flynn paper.

Recent decisions for prosecutions arising from the WHSA have been from $37,500 to $40,000. One case indicated the general range of penalties was between 8% and 25% of the maximum penalty.

“Is it reasonable to expect these principals to apply under MQHSA? If the WHSA general penalty range was followed then we could expect penalties of $24,000-$75,000 for those prosecuted under the new mining legislation.”

Initial prosecutions under MQHSA have produced relatively minor fines. The maximum was $25,000 to the company and $2,500 to each of the directors, after the death of a seven year old boy at the Mount Hay Tourist Mine in July 2002.

In the past 12 months two colonial inquiries have been conducted into mining related deaths.

Potential penalties under the MQHSA include a maximum fine of $300,000 for a company if the contravention of its obligation causes death or grievous bodily harm. A director or senior site executive can be held liable for a breach and be sentenced to a maximum of two years imprisonment.

“Queensland is fortunate. The state is yet to see penalties like those in New South Wales. Its Workplace Health and Safety Act imposes a maximum penalty or $825,000 for a breach which results in serious injury or death.”

In Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd 2001 a fine of $91,000 was imposed. It was noted the offence was a serious one and there was a general need for deterrence.

“Certainly in the principals of sentencing there is a need for general deterrence. There should always be a transparent benefit for those who do enter an early plea. The MQHSA offers non delegable responsibilities and there are limited defences available for those who fall foul of their obligations.”

Karpeles and Flynn questioned whether it is likely similarities to the WHSA will emerge, or whether prosecutors will push for higher penalties.

“While it is anticipated that penalties are comparable to the WHS Act 1995, it is also anticipated that in this new ear of accountability that there will be a sharp upward movement.

“It has not yet reached the same dimensions in Queensland as those in NSW. Application of sentencing principals will prevent this from happening for the time being.”