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2008 Ombudsman Report “A Review Of The Queensland Mines Inspectorate”. Findings And Recommendations Bearing On Grosvenor Inquiry Evidence.

2008 Ombudsman Report “A Review of the Queensland Mines Inspectorate”. Findings and Recommendations bearing on Grosvenor Inquiry Evidence.

The only Review of the Queensland Mines Inspectorate since the introduction of the 1999 Coal Mining Safety and Health Act was undertaken by the State Ombudsman under their her Initiative.

In my opinion there is little doubt that many of her Opinions and Recommendations will be repeated as being found in the Grosvenor Inquiry.

It seems that despite the Director-General advising that he accepted 37 of the 43 recommendations and had reservations about the remainder, they are demonstrably still an issue  from evidence presented at the Grosvenor Inquiry

The Decision of Ombudsman David Bevan was driven from allegations in academic papers and media that the QMI may not be adequately fulfilling is compliance roles.

The Ombudsman comes to a total of Eleven (11) Opinions and makes Forty Four (44) Recommendations from his Review.

My searches on line have only found this reference in any official Departmental Publication.

It is the 2008 Annual Mines Department Safety and Health Report tabled in Parliament in March 2009

https://www.parliament.qld.gov.au/Documents/TableOffice/TabledPapers/2009/5309T497.pdf

The only mention of the  Ombudsman Report page 17 of 137 of the Report

  • Commenced the implementation of 44 recommendations raised in the Ombudsman’s Regulation of Mine Safety in Queensland Report: A review of the Queensland Mines Inspectorate, ensuring that compliance activity of the Mines Inspectorate is supported by a robust administrative framework.

 

The Opinions that I have collated fall under 3 broad categories

  1. Problems with recording and terminology of informal compliance activity and the use, format and terminology of mine record entries constitutes unreasonable administrative action within the meaning of s.49(2)(b) of the Ombudsman Act.
  2. There is a reasonable perception that the QMI is subject to inappropriate influence from the mining industry and from officers in the DME responsible for promoting and supporting mining in Queensland. The main reasons for the perception are
  • its compliance practices, especially the preference for informal compliance options, which are not recorded in a way that can be publicly reported on;
  • regional factors, leading to the development of social relationships and reliance on mine operators’ hospitality; and
  • staffing issues, including a high degree of mobility between the QMI and the mining industry.

3. The QMI’s practice of not recording and reporting on a significant part of its informal compliance activity means that it has a limited capacity to defend itself from allegations that it is too close to the mining industry and is not effectively regulating the industry.

For ease I shall deal with these categories in separate posts

I have included parts of the Executive Summary Background and selected Opinions and Recommendations and in some cases DNRME (QMI) response. The Ombudsman full Report is the the link directly below.

I encourage all students of mining safety with sufficient interest to please read the Report.

It is very comprehensive

Ombudsman Inspectorate 08

Under the Ombudsman Act 2001 (Ombudsman Act), I have a dual role to investigate the administrative actions of Queensland public sector agencies and to assist those agencies to improve their decision-making and administrative practice. As part of my administrative improvement role, I have undertaken a series of own initiative investigations into the compliance practices of government regulators. My investigation of the Queensland Mines Inspectorate (QMI) within the Department of Mines and Energy (DME) is the latest such investigation.

While I had not received any complaints about the QMI, media and academic sources in Queensland and elsewhere have alleged in recent years that the QMI may not be adequately fulfilling its compliance roles under the Coal Mining Safety and Health Act 1999 (Coal Act) and the Mining and Quarrying Safety and Health Act 1999 (Mining and Quarrying Act), and that mine safety standards may be falling as a result.

I commenced an investigation on my own initiative3 into these matters. My investigation was conducted informally4 without exercising my coercive powers.5

The principal objects of the investigation were to:

  • identify relevant practices and procedures;
  • determine the extent to which QMI officers are complying with the practices and procedures;
  • determine whether the practices and procedures are adequate;
  • identify and recommend improvements to the practices and procedures; and
  • if applicable, formulate proposals to amend legislation to enhance mine safety regulation.

 

Opinion 6

 The QMI’s failure to record much of its informal compliance activity constitutes unreasonable administrative action within the meaning of s.49(2)(b) of the Ombudsman Act.

Opinion 7

The extent of inconsistency in the use, format and terminology of mine record entries constitutes unreasonable administrative action within the meaning of s.49(2)(b) of the Ombudsman Act.

Opinion 8

 The low level of prosecution activity by the QMI for breaches of the Coal Act and the Mining and Quarrying Act since the Acts commenced in 2001 does not, in itself, provide sufficient evidence of unreasonable administrative action within the meaning of the Ombudsman Act.

Opinion 9

My investigation did not establish that the QMI is inappropriately influenced by the mining industry in the performance of its functions.

Opinion 10

There is a reasonable perception that the QMI is subject to inappropriate influence from the mining industry and from officers in the DME responsible for promoting and supporting mining in Queensland. The main reasons for the perception are:

  • its compliance practices, especially the preference for informal compliance options, which are not recorded in a way that can be publicly reported on;
  • regional factors, leading to the development of social relationships and reliance on mine operators’ hospitality; and
  • staffing issues, including a high degree of mobility between the QMI and the mining industry.

Opinion 11

The QMI’s practice of not recording and reporting on a significant part of its informal compliance activity means that it has a limited capacity to defend itself from allegations that it is too close to the mining industry and is not effectively regulating the industry.

Recommendation 6

 That the QMI implement a procedure whereby, if an investigation has continued for a specified period (say, six months) and an assessment has still not been made about whether it will be likely to lead to prosecution action, the matter is ‘fast-tracked’ to ensure that the period in which a prosecution may commence does not expire

Recommendation 8

That a proposal be prepared for the Minister that the Coal Act and the Mining and Quarrying Act be amended to authorise the QMI to publish the following information (except when to do so may prejudice potential prosecution action):

  • its investigation reports into serious incidents in mines; and
  • such details of its other compliance activities (including the issuing of directives to operators) as it considers appropriate for promoting safety in mines.

Recommendation 9

That the QMI standardise its risk-based inspection prioritisation system.

Recommendation 10

 That the QMI significantly expand its use of team-based auditing activities with priority to be given to higher-risk operations, whether through the SafeGuard audit program, or other means.

Recommendation 12

That the QMI publish guidelines on how inspectors are to conduct themselves on visits to sites, with particular reference to the extent of their social interaction with staff of remote mining operations (whether at the mine or elsewhere).

Recommendation 13

That the QMI give greater emphasis to auditing the standard of the health and safety systems of contractors providing services to mine operators, with particular regard to how well those systems are being integrated into those of mine operators.

Recommendation 14

That the QMI publish a policy providing guidance to its inspectors, the industry and other stakeholders on its approach to its inspectors providing advice to mine operators and the limits of such advice.

Recommendation 16

That the DME report publicly on complaints it receives about mine safety, including the number and type, how they were received and the broad outcomes.

Recommendation 17

That the DME proceed with proposed amendments to the Coal Act and the Mining and Quarrying Act to make it an offence for a person to cause, or attempt to cause, detriment to another person because anybody has provided, may provide or is believed to have provided information to the QMI, another government agency, or the mine operator itself about a mine safety concern.

Recommendation 19

That the QMI develop a policy providing guidance to its inspectors on the making and use of mine entry records including:

  • the types of compliance actions to be recorded; and
  • the format and terminology to be used in such records.

Recommendation 20

That the QMI develop, and require inspectors to use, standard terminology for all available compliance actions.

Recommendation 22

 That the QMI upgrade its Lotus Notes database to enable more accurate and standardised recording of requests for action below the level of directives.

DME response

DME agreed, and also advised that its Lotus Notes database will be upgraded to allow easy tracking of compliance with directives and substandard condition or practice notices. A dedicated programmer has been employed to undertake this (and other) upgrade tasks.

Ombudsman comment

Including a time for compliance with the requested action does not change the request into a more formal compliance action. Furthermore, the operator’s response to the requested action can then be reviewed after the specified period and an assessment made whether to issue a directive relating to the issue the subject of the request. Therefore, I consider the recommendation should be implemented.

Recommendation 23

 That the DME report publicly on the number and types of directives, substandard condition or practice notices, and other requests for action issued by its inspectors.

Recommendation 24

That the DME require inspectors to specify a due date for implementation of each request for action the subject of a mine record entry.

Recommendation 25

That when an inspector specifies a due date for implementation of a directive or request for action, the inspector consider whether the level of risk is acceptable during the specified implementation periods.

DME response

In relation to risk, DME stated that it does always take this into account when deciding on an appropriate response. The Department stated that, in the 12 months to April 2008, it had directed the closure of 18 mines in full or in part where activities presenting an immediate danger of serious injury were detected by QMI inspectors.

Recommendation 26

 That the DME implement a policy to the effect that, where an inspector makes a request for action to an operator to address a safety risk that could have been addressed by way of a directive, the inspector provide reasons in the mine record entry for not issuing a directive.

DME response

DME agreed with this recommendation and added that if a risk could be addressed by a directive, there should be a clear explanation in the MRE as to why a directive is not issued, just as the legislation requires an inspector to give a reason in the MRE for issuing a directive.

Recommendation 27

That, for the purpose of developing the policies I have recommended, the QMI review a sample of mine record entries (including some relating to directives) and incident investigations from all three regions and all sectors of the industry, and analyse:

  • the nature, circumstances and appropriateness of the directives, requests for action and advice given;
  • whether any request for action or advice should have been the subject of a ndirective;
  • the clarity and practicability of each directive, request for action or advice; and
  • whether due dates for compliance were specified and followed up.

Recommendation 28

That mine record entries produced by QMI inspectors be randomly and regularly audited by head office to identify whether:

  • they are being made and recorded appropriately;
  • directives were given wherever appropriate;
  • due dates for compliance were specified and followed up; and
  • risk is being adequately addressed in mine record entries.

Recommendation 29

That a proposal be developed for the Minister to consider amendments to the Coal Act and the Mining and Quarrying Act to authorise the Executive Director, Safety and Health, to commence prosecutions under those Acts.

Recommendation 30

That until the amendments recommended in recommendation 29 are made and commence, the Director-General of DME delegate the authority to commence prosecution action under the Coal Act and the Mining and Quarrying Act to the Executive Director, Safety and Health.

DME did not support recommendations 29 and 30, stating that they are both contrary to a previous decision made by the Minister and Director-General to have prosecution decisions made at the highest level. DME indicated that any changes to this would require Ministerial support.

The Director-General stated:

The Department notes recommendations 29 and 30 and advises that the decision to prosecute is taken by the Director-General following legal advice and deliberation by the Compliance Committee which is chaired by the Executive Director Safety and Health Division. Given the involvement of the Executive Director in the detailed process of the Compliance Committee, I consider that the existing process is appropriate. I do note that since this process started the number of prosecutions has increased.

I note the Director-General’s views in this regard, and fully appreciate that implementing recommendation 29 would require Ministerial approval as it would require legislative amendment.

As with several other recommendations in this report (namely, recommendations 39, 40 and 41), my intention in making recommendations 29 and 30 is to address the perception that the DME is influenced to an inappropriate degree by the mining industry and thereby compromised in its ability to discharge its statutory compliance functions in an impartial manner.

As the Director-General commented in his response to my proposed report, my investigation did not substantiate that regulatory capture[1] of the DME had occurred.181 However, previous investigations I have conducted, as well as academic studies of regulatory capture, indicate strongly that the perception of regulatory capture can, in itself, significantly detract from a regulator’s effectiveness, including by prejudicing its reputation.

 

My primary concern with the current system is that the Director-General has responsibility for both mine safety and mining industry promotion (see Chapter 13 in relation to recommendations 39, 40 and 41). Safeguards are needed not only to insulate the QMI from regulatory capture but to publicly signal its operational independence from the DME’s other important activities of promoting, encouraging and supporting mining in Queensland.

Accordingly, I have decided to retain recommendations 29 and 30.

[1] See Chapter 13 for a discussion of the meaning of ‘regulatory capture’. 181  The Director-General’s comment appears in 13.5 after Recommendation 41.

Recommendation 31

That if it is proposed to continue using review committees to advise on possible prosecution action, DME’s Compliance Policy be amended to ensure no member of the Committee, whether an officer of the public sector or not, is involved in promoting the mining industry in Queensland

Recommendation 32

 That the QMI amend its Compliance Policy to provide that, when determining how to respond to an unacceptable level of risk at a mine, it will have regard to the following priorities:

  1. Prevention of immediate harm at the site;
  2. Prevention of similar incidents occurring at that site or elsewhere in the industry; and
  3. The taking of prosecution action in respect of serious or repeated safety

Recommendation 33

That the QMI refine its Compliance Policy to provide greater guidance to officers on the appropriate compliance options to use to address safety concerns in the various sectors of the mining industry (such as small quarries).

Recommendation 34

That the QMI revise its Compliance Policy to incorporate, in an appropriately modified form, the principles set out in the Macrory Report.

Recommendation 35

That the DME undertake research (preferably in collaboration with the mining industry, unions, universities, other inspectorates and other relevant bodies) on the effectiveness of the various types of compliance action in improving mine safety.

Recommendation 36

That the DME use the results of this research in developing a new Compliance Policy and regulatory strategy.

Recommendation 38

That the QMI conduct an audit to identify areas of its operational activity susceptible to inappropriate influence from the mining industry, based on the indicators discussed in this chapter, and develop strategies to manage the associated risks.

Recommendation 43

 That the DME increase the public visibility of its general complaints management system.

 

10.4 ‘Parachuting lawyers’

One person to whom we spoke during the investigation claimed that a trend is emerging within certain parts of the mining industry in response to increased prosecution activity, whereby, following a fatality or serious injury, a legal team on retainer is flown in to the mine site ‘… parachuting from a private jet …’, and therefore arriving ahead of the mines inspectors. Officers at another regulatory agency the subject of a previous investigation we conducted described this practice as ‘lawyering up’.

When this happens, the mine operator tends to take a defensive position from the very beginning of an investigation, seeking to challenge the activities of the QMI wherever possible. This is in contrast to the traditionally more common approach (at least in Queensland) of operators cooperating with the regulator to ascertain the ‘nature and cause’ of the incident.

Following any kind of serious incident, it is vital for investigators to inspect the scene, collect evidence and interview witnesses as soon as possible. Any delay can affect the reliability of people’s memories, which, over time, become more prone to change and more reliant on assumptions. Physical evidence may also be lost or tampered with. Therefore, any significant delay to the commencement of an investigation can hinder its effectiveness.

The intervention of lawyers at the very outset of the investigative process may hinder investigators in their efforts to establish the cause of the incident and ways of preventing similar incidents occurring at the particular site or elsewhere.

Hopkins reports that this trend also developed in NSW following the 1996 Gretley prosecutions:

… companies were now asking managers to involve company lawyers in the investigation of any accident. It should be noted, however, that this development, is not a response by mine managers to the threat of personal liability, but a company response to the new era of prosecution ushered in by the Gretley case. There appeared to be two distinct strategies. The first was to formally place the investigation in the hands of the company’s lawyers. Then, if government inspectors ask to see a report, lawyers can refuse to hand it over on the grounds that this violates lawyer/client confidentiality. The second strategy was to send draft reports to lawyers so that they could advise on what needed to be left out to avoid self-incrimination.

Interviewees complied somewhat reluctantly with these new policies because they believed that censoring reports in this way damaged relationships with local inspectors. Any such censorship of accident reports must be seen as an undesirable outcome of the Gretley prosecution, if anything, detrimental to safety.[1]

This trend has also been observed elsewhere. In the USA, the national mine safety regulator (MSHA) appears to have often taken a more prosecutorial approach to mine safety than has been the case in Australia, and ‘lawyering up’ has been occurring there for many years. Braithwaite, writing as long ago as 1985, described an ‘organised culture of resistance’ at some USA mine operators, with workers being told by management not to speak to MSHA inspectors without legal counsel present.183

[1] Hopkins, Gretley Prosecutions, pp.17-18 183  Braithwaite, To Punish or Persuade: Enforcement of Coal Mine Safety, p.100 184  QMI Compliance Policy, p.15

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