From 1 February 2015 exploration for minerals in NSW will be regulated under the Work Health and Safety (Mines) Act 2013 and the supporting Work Health and Safety (Mines) Regulation 2014.

The WHS (Mines) Act and its regulation apply to activities carried out for the purposes of exploring for minerals (including coal). They apply in addition to the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011. This consolidated work health and safety legislative framework is administered by the Division of Resources and Energy.

The WHS (Mines) laws don't apply to an activity carried out in relation to the extraction of minerals on private land for the private and non-commercial use of the owner of the land or fossicking.

The extent of duties under the WHS (Mines) legislation depends on whether or not the exploration involves mechanical means that disturb the ground.

Do exploration activities make a place a mine?

Yes. A mine is any workplace at which mining operations are carried out or a tourist mine. Activities carried out for the purpose of exploring for minerals (including coal) are mining activities.

Mining operations can be either mining activities or activities carried out in connection with mining activities provided they are carried out at a site where mining activities are carried out or in the vicinity of such a site, including at an adjoining location.

For the purposes of the WHS (Mines) Regulation an exploration site means a place where activities are carried out for the purpose of exploring for minerals by mechanical means that disturb the ground.

Non-mechanical exploration

For the purposes of the regulation, non-mechanical exploration means exploring for minerals other than by mechanical means that disturb the ground. Non-mechanical exploration will include:

  • geological mapping
  • sampling and coring using hand-held equipment
  • geophysical surveying (but not seismic surveying) and borehole logging
  • access by vehicle (but not if access requires the construction of an access way such as a track or road)
  • shallow reconnaissance drilling involving no more than minimal site preparation
  • minor excavations (but not costeaning or bulk sampling).

What provisions apply to non-mechanical exploration?

A person conducting a business or undertaking involving exploration by non-mechanical means must:

  • comply with the WHS Act, WHS Regulation, WHS (Mines) Act and the relevant parts of the WHS (Mines) Regulation (clause 183 specifies the provisions which don't apply)
  • notify the regulator of notifiable incidents
  • keep a mine record.

What needs to be kept in a mine record?

The requirements for the mine record are set out in clauses 133 and 134 of the WHS (Mines) Regulation. The mine record includes:

  • a record of any improvement, prohibition or notice issued in relation to the mine under Part 10 of the WHS Act
  • a copy of any provisional improvement notice issued in relation to the mine by a health and safety representative
  • a record of every incident notified to the regulator together with a summary of records kept in relation to a review of control measures following the notifiable incident
  • a record of all first aid treatment provided at the mine
  • any other record that the mine operator is required to keep in respect of the mine under the WHS laws.

Mechanical exploration

Exploring for minerals by mechanical means that disturb the ground includes:

  • drilling (other than the use of hand held augurs for sampling and coring or shallow reconnaissance drilling involving no more than minimal site preparation)
  • seismic surveying
  • costeaning or bulk sampling
  • construction of access ways or roads.

What provisions apply to mechanical exploration?

All relevant provisions of the WHS (Mines) Act and WHS (Mines) Regulation apply. Some provisions of the WHS (Mines) Regulation will not be relevant to the exploration activities being undertaken and will not apply. For example, while exploring for coal specific provisions relating to underground coal will not apply if no underground mining is being undertaken.

Relevant provisions include:

  • notifying the regulator of the mine operator
  • managing risks to health and safety associated with mining operations (clauses 9-12)
  • developing, implementing, maintaining and review a safety management system that is used by the mine operator as the primary means of ensuring, so far as is reasonably practicable, the health and safety of workers at the mine, and that the health and safety of others is not put at risk from the mine or work carried out as part of the mining operations
  • developing and implementing relevant principal control plans and principal mining hazard management plans
  • obligations in relation to contractors (for example, if contractors provide drilling services)
  • notifying the regulator of certain incidents (including notifiable incidents and high potential incidents) and providing information to the regulator
  • keeping a mine record.

The safety management system must provide a comprehensive and integrated system for the management of all aspects of risks to health and safety relating to the mine's operation. This includes:

  • the nature, complexity and location of the mining operations, and
  • the risks associated with those operations.

Changing from non-mechanical to mechanical exploration

Changing from non-mechanical exploration to mechanical exploration triggers a change in obligations, including some obligations prior to the change.

Mining operations, for the purposes of clause 129 (reportable events), are taken to commence at a mine as soon as mining operations other than non-mechanical exploration commence at the mine.  This means that the mine operator must notify the regulator one month before commencing mechanical exploration.

The mine holder must also notify the regulator of the appointment of the mine operator.  If the mine holder will not be personally undertaking the exploration mining operations, they must appoint a mine operator to:

  • carry out mining operations at the mine on behalf of the mine holder
  • to have management or control of the mine
  • and to discharge the duties of the mine operator under WHS laws.

The safety management system (and its parts) must also be developed and implemented.  The safety management system can be developed progressively provided that no mining operations take place while the part of the safety management system relevant to that part of the mining operations is not established and implemented at the mine.  For example, if the safety management system addresses the risks of drilling  then drilling work can be undertaken but roads could not be constructed until the safety management system or relevant parts addressed the risks associated with constructing roads.