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Is Carborough Downs Prosecution Fiasco Incompetence By Workplace Health And Safety And RSHQ?

Is Carborough Downs Prosecution Fiasco Incompetence by Workplace Health and Safety and RSHQ?

Well seems like the Management at Carborough Downs are going to be very fortunate indeed.
There is a legal precedent eerily similar from 2007 Prosecution under the 1999 CMSHA Act involving BMA Coal.
I am certainly not any sort of Lawyer. But precedence, then Custom and Practice I do understand.
Unless there is some sort of legal miracle, no-one will ever put their hands on a bible over the death of Mr Duxbury, and the Public will never see the Investigation Report itself.
Luckily the geniuses at RSHQ and WHS Prosecution already have a ready made solution/template from 2007. 
I have no doubt there will be an announcement by the RSHQ Chief Inspector in about 6 months. (Maybe hoping the Public have forgotten about this likely huge legal stuff up).
It will triumphantly announce a settlement from a Prosecution.
Carborough Downs will agree to pay the maximum allowable fine and the RSHQ will receive monetary compensation for costs of Investigation and Prosecution.
Then the Management will have to appear in Brisbane before the CEO of RSHQ Dave Stone and CIOCM Peter Newman, “to explain improvements made or to be made in operating procedures at the mine to manage the recurrence of the factors underlying the incident the subject of the prosecutions, as identified in the secret from the Public Department’s safety investigation report.”
How Carborough Downs Management must be trembling in their boots about that.
The most obvious question is how the issue of having to only appear in an Industrial Magistrates Court arose in the first place?
Surely after getting belted in the face by this mistake in 2007, making sure to only appear in an Industrial Magistrates Court would the first MUST DO.
How does Workplace Health and Safety get this so wrong first up?
Carborough Downs Barristers must have been laughing and laughing when this fell in their lap.
SANTA has been very generous this year.
This is from the Mackay Mercury story of the 13th of December.
The hearing for the matters began on December 9 in Mackay Magistrates Court where Mr Uhr’s barrister Christopher Murdoch and Mr Futeran’s barrister Peter Roney brought an application to dismiss the matter on the argument the complaint was invalid.

Mr Murdoch began his submissions alleging Mr Guilfoyle’s staffer had lodged the original complaint in Mackay Magistrates Court rather than the Industrial Magistrates Court.

The pair argued this meant the complaint was invalid because it was not brought into a court with the jurisdiction to hear the matter resulting in a contest of legislative interpretation between them and Work Health and Safety’s barrister Glen Rice.
Below are the Decisions and Mines Department Announcements from 2007 and 2008
BM Alliance Coal Operations Pty Ltd and Byron Hamilton Zietsman AND Brian Lyne (C/2007/31) BM Alliance Coal Operations Pty Ltd and Byron Hamilton Zietsman AND James Gordon and Brian Lyne (C/2007/43)
The Decision while not the easiest one to read can be summarized as 
1. The argued that the original complaint was made to a Justice of Peace, not an Industrial Magistrate.
2. The Judge decided that the summons was less misleading than Chew Ying in 1913. It was accepted. 
3. But they were arguing about moving the hearing from Moranbah to Brisbane to save costs.
4. There was a step up Magistrate who seems not to have appreciated that he was supposed to be an Industrial Magistrate.
5. There was an appeal about moving the court to Brisbane.
It was thrown out. Because they had been in the wrong court.
BHP voluntarily paid the maximum fine 300,000 plus the prosecution costs of 236,000.
Then everyone went home happily ever after. 
What prosecution???? 

BMA Goonyella Riverside Mud.doc

BMA pay $300,000 plus costs to settle prosecution

BMA Coal Operations will pay $300,000 toward coal mine safety research in Queensland, following an out of court settlement in the Industrial Magistrates Court in Brisbane on 30 January 2008. The company also agreed to pay $236,000 to the Department of Mines and Energy for investigation and court costs

The company had been charged with neglecting its duty of care obligations under

Queensland’s Coal Mining Safety and Health Act 1999 in relation to an incident at Goonyella Riverside mine west of Mackay on 28 July 2004. Maximum fines under the Act were $300,000.

The charges arose after two workers were injured by a large quantity of falling mud while trying to clear a build-up of mud from under the body of a large excavator. One man suffered a fracture to the lower lumbar area of his spine and a fracture to his right ankle while the other suffered a split spleen that had to be removed

Under the settlement terms the department will use the $300,000 solely for safety and health research, and for safety and health projects that will benefit the Queensland coal mining industry. The department has total discretion in identifying the appropriate research projects.

The site senior executive of Goonyella Riverside mine, Mr Ben Zietsman, will meet with the department’s Safety and Health Division to explain improvements made in operating procedures at the mine and any additional improvements which were identified in the Mines Inspectorate’s safety investigation report.

These improvements are essential to prevent any recurrence of such an incident at any mine. The payment is significant and signals the Queensland Government’s strong commitment to use the full force of the Coal Mining Safety and Health Act to improve safety for all workers in our mining industry.

The full terms of the settlement are:

Brian Lyne v BM Alliance Coal Operations Pty Ltd (“BMA”) and Barend Zietsman

Terms of Settlement: 30 January 2008

  1. The parties to these prosecutions have agreed that the prosecutions will be discontinued on the terms set out below in clauses 2 – 7 and the parties submit to orders dismissing the complaints.
  2. The terms of this settlement are not confidential.
  3. BMA will pay to the Crown in Right of the State of Queensland represented by the Department of Mines and Energy (“the Department”) the sum of $300,000 within 30 days of the discontinuance of these prosecutions, such sum to be applied by the Chief Executive of the Department on behalf of the State of Queensland, in his absolute discretion for the purpose of carrying out safety and health research and safety and health projects with respect to the Queensland Coal Mining Industry.
  4. BMA will pay the sum of $236,000 to the Crown in Right of the State of Queensland represented by the Department within 30 days of the discontinuance of these prosecutions towards the expenses of investigating and prosecuting the prosecutions.
  5. The Site Senior Executive of the Goonyella Riverside Mine, Mr Barend Zietsman will meet with the Executive Director of the Department’s Safety and Health unit, Mr Stewart Bell, and the Chief Inspector of Coal Mines, Mr Gavin Taylor, at the offices of the Department in Brisbane on a date to be agreed to explain improvements made or to be made in operating procedures at the mine to manage the recurrence of the factors underlying the incident the subject of the prosecutions, as identified in the Department’s safety investigation report.
  6. The defendants will withdraw all requests and reviews under the Freedom of Information Act 1992 in relation to all matters the subject of the prosecutions.
  7. The terms set out in clauses 3 – 5 will be read into the record of the Court hearing these prosecutions by Counsel for the complainant.

Issued by:


Chief Inspector of Coal Mines

This Post Has 2 Comments
  1. Hi Stuart,
    More of the same isn’t it. How is this case going to improve safety in coal mines?
    Can’t say I am a supporter of the industrial manslaughter criteria.
    I don’t have inside knowledge of this fatality, however I struggle thinking that the 3 or 4 other roles of responsibility between the guys underground to the SSE do not have any responsibility. Further and it is why I do not support the manslaughter criteria, is that due to politics people have to be seen to do something over another fatality, rather than do the right thing. So someone has to be charged, to be held accountable.
    The best analogy is the bicycle rules. Bikes and cars are legally allowed on the road, cars have to keep a 1 metre clearance from bikes, so if a bike is hit by the car, the car driver is guilty. So with industrial manslaughter criteria, the fact there has been a fatality, the SSE is guilty.
    It is a learning for all management roles in the industry, it is not good enough to have a ‘system’ in place. It needs to be a complete system that can show the completeness including roles and responsibilities.
    Take the Principal hazards of gas management, ventilation, spontaneous combustion and gas drainage. These should be one complete document so that there is no overlap, conflict and or confusion. How many undergrounds maintained the 4 separate management plans and for how long? even though the risks and controls are so integrated.
    It is more of the same that an inquiry found in the case of Grosvenor. Those outcomes from the inquiry will not improve safety in the industry. Seriously a coal mine suffered an explosion with primary causes of spontaneous combustion and methane management, which by the way has been around since the first day of coal mining and the industry, company and management team are no better positioned today except they are not facing industrial manslaughter charges.
    And that is where we are, the focus is about keeping people out of jail rather than not having the injury in the first place!

    1. CoalHog,

      Out of all the stupidity that has come out of Mines Ministers and Govt over the last 100 year for Qld Mines, the Industrial Manslaughter laws would be the stupidest and craziest

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