At the outset Council again extends its deepest sympathies to the affected worker, his family, his friends and work colleagues and to the CFMMEU.

pYesterday, the NSW Resources Regulator accepted an enforceable undertaking from Mt Arthur Coal Pty Limited in substitution of a criminal prosecution for a serious workplace incident at its Muswellbrook coal mine. Mt Arthur Coal Pty Limited is a related body corporate, and wholly owned subsidiary, of Hunter Valley Energy Coal Pty Limited and, ultimately, BHP Billiton Limited (collectively hereafter, “BHP Billiton”).

BHP Billiton has what can only be described as an appalling history of statutory offending in the Muswellbrook Shire. BHP Billiton’s most recent statutory offence was only last week with yet another breach of its conditions of planning consent and its environmental protection licence. A history of BHP Billiton’s environmental incidents and offending within the Shire of Muswellbrook is attached.

The enforceable undertaking provides for what the Resources Regulator has described as $1,090,750 of “penalties”. It is noted that BHP Billiton was already obliged to undertake $890,750 of works and costs to that value in compliance with its statuary obligations to ensure the workplace health and safety of its workforce – including its future workforce – and compensate for the costs of a prosecution.

The penalty, in truth, is just $200,000 -- a penalty that the NSW Resources Regulator, somewhat incredulously, refers to as a “donation”. The Resources Regulator compared the matter to the criminal conviction and $500,000 fine imposed by the District Court of NSW in Inspector Orr v Perilya Broken Hill Limited [2018] NSWDC 28. The penalty is, in truth, 40 per cent of that imposed in that case, despite the matter being of similar objective seriousness. No explanation for the substantial discount is provided for in the reasons of the Resources Regulator.

The Regulator was wrong to take into account those sums which BHP Billiton was already required to pay. The Regulator was wrong to take into account the reimbursement of costs to the Resources Regulator. The Regulator was wrong to take into account the history of criminal and statutory offending of Mt Arthur Coal Pty Limited but not its related bodies corporate.

Council repeats its view that the State Government should withdraw the licence for BHP Billiton to operate in NSW and should put in train enforceable steps for the transfer of the coal mining operation to a company that can operate in demonstrable compliance with the State’s laws.

There is a real suspicion in the community that the Regulator is subject to regulatory capture – that is to say – that the Regulator is doing the bidding of the party it is statutorily required to regulate. Not because of any improper purpose by its officials but by the modest resourcing of the Regulator compared with the resources available to the world’s largest mining business.

It does nothing for the credibility of the Resources Regulator to suggest the penalty is in excess of $1M when it patently isn’t. It does nothing for the credibility of the Resources Regulator to describe the $200,000 payable to the Rural Fire Service as a “donation” whilst holding out that it relied upon that amount as constituting a penalty.

The conduct of the Resources Regulator brings the entire regulatory system into disrepute and undermines confidence in the regulatory and compliance scheme provided for in NSW. The decision by the Resources Regulator not to proceed with a criminal prosecution and conviction means that an important consideration of public deterrence can now never be explored. The decision should rightly be criticised and condemned.

7 August, 2019

Contact: Martin Rush

Mobile: 0437571184

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