Mine and Petroleum Site Safety (Cost Recovery) Act 2005 No 116 An Act to make provision with respect to the funding of regulatory activities in relation to safety at mines and petroleum sites. Part 1 Preliminary 1 Name of Act This Act is the Mine and Petroleum Site Safety (Cost Recovery) Act 2005. 2 Commencement This Act commences on the date of assent. 3 Definitions (1) In this Act— Department means the Department of Regional NSW. exercise a function includes perform a duty. financial year means a year commencing on 1 July. function includes a power, authority or duty. Fund means the Mine and Petroleum Site Safety Fund established under this Act. insurer means— (a) a licensed mining and petroleum industry insurer, or (b) a mining and petroleum industry self-insurer, or (c) a specialised mining and petroleum industry insurer. licensed mining and petroleum industry insurer means a licensed insurer (within the meaning of the Workers Compensation Acts) who issues workers compensation policies of insurance to mining and petroleum industry employers, but does not include a specialised insurer within the meaning of the Workers Compensation Acts. mine and petroleum site safety legislation means any of the following Acts and the regulations and other instruments made under them— (a) this Act, (b) Work Health and Safety (Mines and Petroleum Sites) Act 2013, (c) Work Health and Safety Act 2011 to the extent that it relates to a mine or a petroleum site to which the Work Health and Safety (Mines and Petroleum Sites) Act 2013 applies. mining and petroleum industry employer—see section 4. mining and petroleum industry self-insurer means a mining and petroleum industry employer who is a self-insurer within the meaning of the Workers Compensation Acts. Secretary means the Secretary of the Department. specialised mining and petroleum industry insurer means a specialised insurer (within the meaning of the Workers Compensation Acts) who issues workers compensation policies of insurance to mining and petroleum industry employers, and includes the workers compensation company within the meaning of the Coal Industry Act 2001. Note— The workers compensation company referred to in this definition is taken to be a specialised insurer for the purposes of the Workers Compensation Acts. Workers Compensation Acts means the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. (2) (Repealed) (3) Notes included in the text of this Act do not form part of this Act. 4 Meaning of "mining and petroleum industry employer" (1) In this Act— mining and petroleum industry employer means a person— (a) who employs workers who work in the mining and petroleum industry (or whose work includes work in the mining and petroleum industry), and (b) who has obligations and responsibilities under the mine and petroleum site safety legislation in relation to the health and safety of those workers, and includes— (c) a principal who (as provided by section 20 of the Workers Compensation Act 1987) is liable to pay compensation under that Act to a worker of a contractor who is a person referred to in paragraphs (a) and (b), or (d) a principal contractor who (as provided by section 175B of the Workers Compensation Act 1987) is liable for the payment of any workers compensation insurance premiums payable by a person referred to in paragraphs (a) and (b). (2) For the purposes of this Act, a person is a mining and petroleum industry employer only to the extent that the person employs workers in the mining and petroleum industry. (3) In this section, worker has the same meaning as in the Workers Compensation Acts, and includes a person who is, by operation of the Workers Compensation Acts, deemed to be a worker for the purposes of those Acts. Part 2 Funding of mine and petroleum site safety regulatory activities Division 1 Establishment of Mine and Petroleum Site Safety Fund 5 Establishment of Fund (1) There is to be established in the Special Deposits Account a fund called the Mine and Petroleum Site Safety Fund. (2) The Fund is to be administered by the Secretary. 6 Payments into Fund The following is to be paid into the Fund— (a) contributions paid by insurers under and in accordance with this Act, (b) any money appropriated by Parliament for the purposes of the Fund, (c) the proceeds of the investment of money in the Fund, (d) any other money required to be paid into the Fund by or under this or any other Act or the regulations under this Act. 7 Payments out of Fund (1) The following is to be paid from the Fund— (a) all payments required to meet expenditure incurred by the Department in carrying out regulatory activities under or in connection with the mine and petroleum site safety legislation, (b) all other amounts required to meet expenditure incurred by the Department in the administration or execution of the mine and petroleum site safety legislation, (c) any money required to reimburse the State Insurance Regulatory Authority for expenses incurred by it in connection with its functions under this Act, (d) any money required to meet administrative expenses in relation to the Fund, (e) all other money directed or authorised to be paid from the Fund by this Act or by the regulations under this Act. (2) The assets of the Fund cannot be applied for the purpose of enabling any payment as a dividend to the credit of the Consolidated Fund nor can they be applied for any purpose by any other Act. 8 Investment of money in Fund The Secretary may, on behalf of the Department, invest money in the Fund— (a) if the Department is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the Department is permitted to invest money under that Part, or (b) if the Department is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way approved by the Treasurer. Division 2 Contributions to Mine and Petroleum Site Safety Fund 9 Estimate by Secretary of amount to be contributed to Fund (1) The Secretary is to make an estimate before the beginning of each relevant period of the amount required to be contributed to the Fund to meet the payments required to be made from the Fund during that period. (2) A relevant period is any financial year or, in the case of the financial year commencing 1 July 2005, such other period (if any) as the Secretary determines for the purposes of this section. (3) The Secretary's estimate for a relevant period has no effect unless it is approved by the Minister. 10 Contributions to Fund by insurers (1) The amount estimated by the Secretary under section 9 for a relevant period is to be paid to the Secretary by way of contributions by insurers in accordance with this section. (2) The Secretary may, in respect of an estimate for a relevant period, determine— (a) the insurers or classes of insurers by whom contributions under this section are to be paid, and (b) the amount of the contributions to be paid by such insurers or classes of insurers (including different amounts of contributions in respect of different insurers or classes of insurers), and (c) the times at which the contributions are to be paid and the manner in which they are to be paid (including by way of instalments). (3) The amount payable may be expressed as a fixed amount or in such other manner as may be determined by the Secretary. (4) The Secretary is to notify each insurer of the amount of contributions payable by the insurer for a relevant period and the times and manner in which they are to be paid. (5) (Repealed) (6) In the case of a specialised mining and petroleum industry insurer, the insurer may adjust the premium payable in respect of a policy of insurance issued to a mining and petroleum industry employer so as to include an amount equivalent to such part of the contributions payable by the insurer under this section as relates to that employer and that policy. (7) Except as may be provided by the regulations, an adjustment of premium may, despite any other Act, be made for the purposes of subsection (6) in respect of a policy of insurance in force as at the date on which the Secretary's determination (if any) under this section is made in relation to the financial year commencing 1 July 2005. (8) If a contribution payable by an insurer has not been paid within the time required under this section— (a) the insurer is guilty of an offence and liable to a penalty not exceeding 100 penalty units, and (b) the amount of the required contribution together with a late payment fee calculated at the rate of 15% of that amount per annum compounded quarterly (or, where another rate is prescribed by the regulations, that other rate) may be recovered by the Secretary from the insurer as a debt due to the State for payment into the Fund. (9) A certificate purporting to be signed by the Secretary as to the amount of a contribution payable under this section by an insurer specified in the certificate and the due date for payment is admissible in proceedings under this section and is evidence of the matters specified in the certificate. (10) The obligation of an insurer to make a contribution under this section in respect of any period during which the person was an insurer does not cease merely because the person subsequently ceases to be an insurer. (11) A determination by the Secretary under subsection (2) (c) may only be made with the concurrence of the State Insurance Regulatory Authority unless the determination relates solely to the workers compensation company within the meaning of the Coal Industry Act 2001. Part 3 Miscellaneous 11 Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. 12 Arrangements for exchanging information and for other matters (1) The Secretary may enter into arrangements with the State Insurance Regulatory Authority (SIRA) for any of the following purposes— (a) the exchanging of information for or in connection with the making of a determination under section 10, (b) the payment of contributions under section 10 by insurers of a specified class to SIRA for subsequent payment into the Fund, (c) authorising SIRA to make a determination as referred to in section 10 (2) (c) in relation to a specified class of insurers, (d) authorising SIRA to notify a specified class of insurers of any matters required to be notified under section 10, (e) authorising SIRA to bring any debt recovery proceedings arising under section 10 in relation to a specified class of insurers, (f) for the payment of money out of the Fund to reimburse insurers of a specified class for expenses incurred by them in connection with this Act, but only if those expenses have been approved by SIRA after consulting with the Secretary. (2) Information may be exchanged between the Secretary and SIRA under any such arrangement despite the provisions of any other Act. (3) The Secretary may enter into arrangements with any insurer for the provision by the insurer of any information that may be used by the Secretary for the purposes of making a determination under section 10. 13 Requirement to provide information (1) An authorised officer may, by notice in writing, require a specialised mining and petroleum industry insurer or mining and petroleum industry self-insurer to provide the authorised officer with such documents and information, and within such time, as may be specified in the notice for the purposes of enabling the Secretary to make a determination under section 10. (2) The regulations may make provision for or with respect to— (a) the provision by specialised mining and petroleum industry insurers and mining and petroleum industry self-insurers of documents and information of the kind referred to in subsection (1), and (b) the keeping of records by specialised mining and petroleum industry insurers and mining and petroleum industry self-insurers for the purposes of this Act. (3) An authorised officer may— (a) carry out an audit or inspection of the documents and records required to be provided or kept by or under this section, and (b) make copies of any such documents or records. (4) An authorised officer has, for the purposes of exercising any function under subsection (3), the same functions as an inspector (within the meaning of section 238 of the Workplace Injury Management and Workers Compensation Act 1998) has under that section. (5) A reference in subsection (1) or (2) to a specialised mining and petroleum industry insurer or mining and petroleum industry self-insurer includes a reference to any person who, in the opinion of the Secretary, is or may be such an insurer. (6) A person who contravenes any requirement imposed on the person under this section or under the regulations referred to in this section is guilty of an offence. Maximum penalty—100 penalty units. (7) In this section— authorised officer means any person appointed by the Secretary as an authorised officer for the purposes of this section, and includes the Secretary. 14 Delegation The Secretary may delegate the exercise of any function of the Secretary under this Act (other than this power of delegation) to— (a) any member of staff of the Department, or (b) any person, or any class of persons, authorised for the purposes of this section by the regulations. 15 Service of documents (1) A document that is authorised or required by this Act or the regulations to be served on any person may be served by— (a) in the case of a natural person— (i) delivering it to the person personally, or (ii) sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or (iii) sending it by facsimile transmission to the facsimile number of the person, or (iv) sending it by email to the email address specified by the person for the service of documents, or (b) in the case of a body corporate— (i) leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or (ii) sending it by facsimile transmission to the facsimile number of the body corporate, or (iii) sending it by email to the email address of the body corporate or of any officer or employee of the body corporate specified by the body corporate for the service of documents. (2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner. 16 Nature of proceedings for offences Proceedings for an offence under this Act may be dealt with summarily before the Local Court. 17 Regulations (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) In particular, the regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act. (3) Any such savings or transitional provision may, if the regulations so provide, take effect from the date of assent to this Act or a later date. To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as— (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication. 18 (Repealed) 19 Review of Act (1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years. Schedule 1 Savings, transitional and other provisions Part 1 General 1 Regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act. (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as— (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication. (4) A provision referred to in subclause (1) has effect, if the regulations so provide, despite any other clause of this Schedule. (5) The regulations may make separate savings and transitional provisions or amend this Schedule to consolidate the savings and transitional provisions. Part 2 Provisions consequent on enactment of Work Health and Safety (Mines and Petroleum) Legislation Amendment (Harmonisation) Act 2015 2 Definition In this Part— amending Act means the Work Health and Safety (Mines and Petroleum) Legislation Amendment (Harmonisation) Act 2015. 3 The Fund The Mine and Petroleum Site Safety Fund is a continuation of the Mine Safety Fund operating under this Act immediately before the commencement of Schedule 3 [2] to the amending Act. 4 Mine and petroleum site safety legislation The definition of mine and petroleum site safety legislation in section 3 (1) is taken to include a reference to the Petroleum (Onshore) Act 1991, to the extent that it related to work health and safety requirements.