RSHQ Woeful Prosecution Track Record for Fatalities and Grievous Bodily Injury
The record of so called prosecution by the now RSHQ is overwhelmingly poor when it comes to the Qld coal industry over the last 23 years
Despite the occasional media releases crowing about the success of prosecutions very few actually have RSHQ Investigation Reports tendered as formal evidence, hear any sworn evidence or have anyone subject to any cross examination.
There has been a continuation of what has become standard custom and practice of a completely ineffective enforcement process and any charges and cases seem driven by PR purposes by RSHQ and the Government.
Very few Senior management are ever finally facing charges and none that I know of have ever had to give sworn evidence in a court hearing into a fatality yet in 23 years.
- Charges are steadily downgraded during preliminary hearings
- Charges are dropped against individuals from Management including the SSE and a 2 to 3 week full hearing has a date set.
- Before the full hearing a Deal is reached between OWHSP and legal Representatives.
- The Mining Company agrees to plead guilty to often further downgraded charges.
- As part of the plead deal, the Mining Company agrees to pay the costs of RSHQ and OWHSP.
- There is no RSHQ Investigation Report or formal evidence tendered. No sworn testimony by any witnesses, management and consultants; let alone Investigating Officers from RSHQ.
- Company receives a fine about 20% of the maximum.
- All Court Proceedings over in half a day.
- RSHQ Fatality Investigation Report is never voluntarily released by RSHQ
1)Brian Lyne v BM Alliance Coal Operations Pty Ltd (“BMA”) and Barend Zietsman
Case thrown out due to ruling that case was not brought to an Industrial Magistrate Court. BHP voluntarily paid the maximum fine $300,000 plus the prosecution costs of $236,000
2) Paul McGuire Grasstree May 2014.
Agreed Guilty Plea. $135,000 Fine for Anglo in 2016. Costs paid for RSHQ.
No Anglo Management charged. Coroners Court Proceedings in 2020.
Commissioner of Mine Safety questioned over potential conflict of interest at Coroners Court proceedings for the decision not to prosecute any Anglo Grasstree management
3) Ian Downes Grasstree December 2014
Agreed Guilty Plea. Anglo-American $284,000, and a conviction has been recorded. Anglo pay $15,000 in investigation costs.
No Anglo Management charged.
4) Brad Hardwick Moranbah North February 2019.
Charges against several MNC Anglo Management dropped before final hearing
Magistrate Michael Quinn found the company not guilty of causing the 47-year-old’s death.
Due to Anglo’s failure to develop an appropriate test for the grader’s park brake, Mr Quinn found the company guilty in relation to causing bodily harm to the three miners whose vehicle was hit by the grader.
Mr Quinn adjourned the matter for sentence at a date yet to be set.
https://www.couriermail.com.au/news/queensland/rockhampton/trial-announced-for-anglo-coal-lawsuit-over-bradley-hardwick-death/news-story/4dfcdf7ed544b6e74ef4c910d63182b1
5) David Routledge Middlemount June 2019
All charges against Middlemount Management dropped before court hearing
A penalty totaling 10 per cent of the maximum fine. Middlemount Coal was fined $70,000 plus $110,000 in costs and a conviction was not recorded. Middlemount Coal agrees to pay RSHQ costs
6) Brad Duxbury Carborough Downs November 2019
Case dismissed by Acting Magistrate again on whether they were an Industrial Magistrate in a re-run almost exactly of the 2007 Lyne v Zietsman in 2007.
This was later overturned by the President of the Magistrates Court.
Case still ongoing
7) Daniel Springer Goonyella Riverside August 2017. No Prosecution
RSHQ Investigation found SSE not the senior Operator appointed Officer on the Goonyella Riverside. Instead the General Manager was.
RSHQ Investigation lists no action to be taken to address the issue and bring the Mine into compliance.
No subsequent MRE addresses the issue.
RSHQ decides it is not in public interest to prosecute BMA, but is in public interest to have Coroners Court.
Appears sections of RSHQ Investigation Report dealing with SSE not being most Senior Officer on site redacted by mutual agreement between RSHQ and BMA
8) Grosvenor Methane Explosion due to Spontaneous Combustion burning 5 Miners causing grievous bodily injuries May 2020. No Prosecution
Ministerial Board of Inquiry. Inquiry found spontaneous combustion cause first overpressure event (methane explosion in goaf). Also found no risk assessment for spontaneous combustion for LW 104 block despite Anglo Management stating in writing that one was required before longwall operations commenced
OWHSP and RSHQ decide that no one from Anglo Management would be charged about a week before 3 year time expiry.
RSHQ Investigation Report still confidential and not published.
1)Brian Lyne v BM Alliance Coal Operations Pty Ltd (“BMA”) and Barend Zietsman
The 2007 Decision while not the easiest one to read can be summarized as
- They argued that the original complaint was made to a Justice of Peace, not an Industrial Magistrate.
- The Judge decided that the summons was less misleading than Chew Ying in 1913. It was accepted.
- But they were arguing about moving the hearing from Moranbah to Brisbane to save costs.
- There was a step up Magistrate who seems not to have appreciated that he was supposed to be an Industrial Magistrate.
- There was an appeal about moving the court to Brisbane.
- Because they had been in the wrong court it was thrown out.
- BHP voluntarily paid the maximum fine $300,000 plus the prosecution costs of $236,000.
https://www.qldminingcrisis.com.au/wp-content/uploads/2021/12/BMA-Goonyella-Riverside-Mud.doc.pdf
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)
2) Paul McGuire Grasstree May 2014 Coroners Court Proceedings in 2020.
http://www.mineaccidents.com.au/uploads/20161028-daily-mercury.pdf
Anglo was fined $135,000 after pleading guilty to the same offence leading to Paul McGuire’s May 2014 death.
She said that the gas sensor Mr McGuire was asked to maintain had been moved away from the area on January 14, 2014. Between February 4 and April 1 three job cards were issued instructing an electrician to go to the old, incorrect location.
Defence barrister Geraldine Dann said Anglo accepted that the failure wasn’t a one off, that it was a serious offence and an ongoing tragedy to the family.
She said the company had met funeral, travel and accommodation costs and were giving Mr McGuire’s children a scholarship
https://www.couriermail.com.au/news/queensland/mackay/how-mine-goaf-death-sparked-industry-changes-to-safety/news-story/9c90deb5c688c8d868ac04c8541efe01
Commissioner Du Preez questioned at the Coroners Court by the Barrister for the Widow
Ms du Preez said she received a recommendation from external legal advice about a range of people who should have been charged.
She said she went through the process of following the prosecution policy, looked at the technical aspects and considered prosecution.
Barrister Michael de Waard, for Mr McGuire’s wife Melissa McGuire, questioned Ms du Preez on whether or not she had a “conflict of interest” because she had worked for a company that was then bought out by Anglo Coal.
Ms du Preez said she did not believe it was a conflict of interest.
3) Ian Downes Grasstree December 2014
https://www.couriermail.com.au/news/queensland/gladstone/breaking-cq-coal-mine-cops-massive-fine-over-workers-death/news-story/7dece2d61232ef6896dc77f32c9bb9d4
ANGLO Coal failed Ian Downes when he was killed working on part of the Grasstree mine that had not been inspected for a year, a court has ruled.
Anglo Coal was fined $284,000 in Brisbane Magistrates Court on Friday after the company pleaded guilty to failing to provide a safe workplace leading to Mr Downes’s death.
The Brisbane Magistrates Court has fined Anglo-American $284,000, and a conviction has been recorded, over their role in the death of coal mining contractor Ian Downes in 2014.
It’s the first time a conviction against a coal mine operator has been recorded by the court, and the largest fine ever imposed for an offence of its type.
Ms O’Gorman said the maximum penalty for the offence was $550,000. She said a fine of $100,000 was warranted, and that the parties had agreed that Anglo pay $15,000 in investigation costs.
Magistrate Wilson accepted Anglo barrister Thomas Bradley’s submission that the company should be penalised for the failure to make the area safe – not for Mr Downes’s death.
It was the second death in Grasstree mine that year. Anglo was fined $135,000 after pleading guilty to the same offence leading to Paul McGuire’s May 2014 death.
4) Brad Hardwick Moranbah North 2019
Charges against several MNC Anglo Management dropped before final hearing
Magistrate Michael Quinn found the company not guilty of causing the 47-year-old’s death.
Due to Anglo’s failure to develop an appropriate test for the grader’s park brake, Mr Quinn found the company guilty in relation to causing bodily harm to the three miners whose vehicle was hit by the grader.
Mr Quinn adjourned the matter for sentence at a date yet to be set.
https://www.couriermail.com.au/news/queensland/rockhampton/trial-announced-for-anglo-coal-lawsuit-over-bradley-hardwick-death/news-story/4dfcdf7ed544b6e74ef4c910d63182b1
5) David Routledge Middlemount 2019
6) Brad Duxbury Carborough Downs 2019
Case dismissed by Acting Magistrate again on whether they were an Industrial Magistrate in a re-run almost exactly of the 2007 Lyne v Zietsman in 2007.
This was later overturned by the President of the Magistrates Court
On the 10 of May 2023, ICQ President Justice Peter Davis issued a decision some 29 pages in length.
https://archive.sclqld.org.au/qjudgment/2023/ICQ23-005.pdf
Orders
In relation to each of the appeals, it is appropriate to:
1. allow the appeal;
2. set aside the orders made in the Industrial Magistrates Court at Mackay on 21 February 2022;
3. remit the complaint to the Industrial Magistrates Court at Mackay to be heard and determined according to law
Justice Davis found there was “no reason” why the Acting Magistrate Mr. Kennedy “could not have exercised his jurisdiction as an industrial magistrate”.
Further, Justice Davis found because the industrial Magistrate‘s jurisdiction “ousts that of the magistrates court” Mr Kennedy, who had been acting as a magistrate, should not have dismissed the case.
7) Daniel Springer Goonyella Riverside August 2017. Non prosecution SSE not the SSE
SSE not Senior official on site as per Section 25 of the Act. Senior Management directly reported to The General Manager Goonyella Riverside.
Evidence given by the maintenance manager showed that he did not report to the SSE but to the General Manager of Goonyella Riverside mine. (RSHQ Investigation Report)
DNRM decision not to prosecute
84. DNRME advised at the conclusion of the investigation they would not proceed with a Prosecution in relation to the incident and requested an Inquest be conducted in the public interest. (Coroners Decision)
RSHQ Investigation Report appears to have been redacted by mutual agreement to exclude RSHQ findings in relation to SSE not in fact being the SSE
Site Senior Executive
The investigation revealed evidence to suggest that the appointed SSE at Goonyella Riverside mine was not the most senior officer employed who has responsibility for the coal mine as required by section 25 of the Coal Mining Safety and Health Act 1999.
Evidence given by the maintenance manager showed that he did not report to the SSE but to the General Manager of Goonyella Riverside mine.
Since the SSE did not appear to manage the maintenance manager’s routine individual development and performance review process, he could not ensure that he had the competencies required to carry out his responsibilities, and that he was effectively carrying his responsibilities as stated in the management structure.
This is contrary to section 55 of the Coal Mining Safety and Health Act 1999, which states that the SSE for a mine must develop, implement and maintain a management structure that helps ensure the safety and health of persons at the mine.
Other related findings
The investigation also identified a number of related findings:
- There was confusion as to who was supposed to be supervising the IMS activities. The step-up field maintenance shift supervisor did not believe he was responsible for supervising IMS on day shifts Monday to Friday, so therefore Mr Springer and his co-worker had worked unsupervised for their first two-day shifts.
- Goonyella Riverside mine was unable to provide any documented record of the step-up field maintenance shift supervisor having ever been authorised and appointed as a supervisor by the mine’s SSE as required under sections 26 and 56 of the Coal Mining Safety and Health Act 1999, so therefore the step-up field maintenance shift supervisor was not authorised to be a supervisor at the mine.
- The mine’s SSE did not appear to be the most senior person employed or otherwise engaged by the coal mine operator who had responsibility for the mine as required by section 25 of Coal Mining Safety and Health Act 1999.
- The mine’s management structure did not state the competencies required for supervisors as required by Section 55 of the Coal Mining Safety and Health Act 1999.
8) Grosvenor Methane Explosion due to Spontaneous Combustion burning 5 Miners causing grievous bodily injuries
Brian Lyne v BM Alliance Coal Operations Pty Ltd (“BMA”) and Barend Zietsman
Terms of Settlement: 30 January 2008
- 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.
- The terms of this settlement are not confidential.
- 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.
- 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.
- 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.
- 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.
- 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.
