Individual Personal Liability Risk Management in Open Pit Mining

It must be stressed that the following comments are offered only to assist mineral industry professionals in understanding the issues involved in personal liability. The information and views expressed herein are not intended to be a comprehensive guide or definitive statement of the law and they should not be regarded as a substitute for specific advice for individual situations. Readers should consult their own legal and other professional advisers before applying the content of this paper to their own particular circumstances. It is hardly news that work in the mining industry is governed by a complex regulatory and legal system which is constantly changing, but few realise just how directly they can be affected and become personally liable for any breaches. These may result in civil or criminal proceedings and personal assets are at risk. Owners, company directors, managers and now employees are at risk, together with consultants, contractors and suppliers of equipment or consumables, as well as government inspectors. They are liable for their personal decisions to act (or failure to act) in managing operations or carrying out directions, as well as for the actions of others under their control. This paper identifies the areas where such individuals in the open pit mining industry in Australia face the risk of personal liability and measures which can be used to minimise the risk or which can be used to make out a defence to legal action which could arise. There have always been a myriad of Commonwealth, State and Local Government laws and regulations with which to comply, and now international protocols are being used as a basis to impose greater obligations on all people. Once, the `corporate veil' gave some protection to the individual, but today there is negligible protection from the full force of the law. Not only are there various types of law enforcement officers, but public interest groups, shareholders, customers, suppliers, creditors etc may litigate. This paper is not intended to be an exhaustive discussion of the provisions of all the legislation or case law where individuals can be held) personally liable. These areas would include environmental, pollution and heritage law (including Aboriginal sacred sites); occupational health and safety (including workers' compensation) law; trade practices and fair trading law; contract law; corporations law (including the requirements of the Australian Stock Exchange [ASX] and Australian Securities Commission [ASC]); industrial relations law; anti-discrimination and sexual harassment law; taxation (including superannuation trustee) law; and the Common Law. The focus is on the following areas of regulation, which are outside the usual experience of those in the open pit mining industry (the Mining Acts and Regulations are specifically not dealt with here): ò Environment Law; ò Trade Practices Law; ò Occupational Health and Safety Law; and ò Corporations Law.