Anglo Coal (Moranbah North Management) Pty Ltd v Stone [2025] ICQ 11

INDUSTRIAL COURT OF QUEENSLAND CITATION: Anglo Coal (Moranbah North Management) Pty Ltd v Stone [2025] ICQ 011 PARTIES: ANGLO COAL (MORANBAH NORTH MANAGEMENT) PTY LTD (appellant) v MARK DOUGLAS STONE (respondent) FILE NO: C/2023/19 PROCEEDING: Appeal DELIVERED ON: 27 June 2025 DELIVERED AT: Brisbane HEARING DATE: 29 September 2023 MEMBER: Davis J, President ORDERS: 1. Appeal allowed. 2. The conviction is set aside. 3. The respondent shall on or before 4 pm on 11 July 2025 file and serve any written submissions on the question of what further orders ought to be made. 4. The appellant shall on or before 4 pm on 25 July 2025 file and serve any written submissions on the question of what further orders ought to be made. 5. Each party has leave to file and serve on before 4pm on 1 August 2025 a notice of intention to make further oral submissions on the question of what further orders ought to be made. 6. In the event no application is filed pursuant to order 5, the issue of further orders will be determined on any written submissions received and without further oral hearing. CATCHWORDS: APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – where the respondent alleged offences against the Coal Mining Safety and Health Act 1999 (the CMSH Act) – where the CMSH Act provides for a defence where the causes of an offence were outside of the control of the accused (the control defence) – where the appellant initially did not pursue the control defence but later provided -- 1 of 37 -- 2 submissions to the Industrial Magistrate indicating reliance on the control defence – where evidence adduced during the original trial was relevant to consideration of the control defence by the Industrial Magistrate – where the appellant was convicted of offences under the CMSH Act – whether the Industrial Magistrate’s reasons properly considered the evidence relevant to the control defence – whether the trial at first instance miscarried Coal Mining Safety and Health Act 1999 (Qld), s 6, s 7, s 9, s 18, s 25, s 29, s 30, s 31, s 33, s 34, s 37, s 39, s 41, s 42, s 44, s 45, s 45A, s 46, s 48, s 62, sch 3 Coal Mining Safety and Health Regulation 2017 (Qld), r 66, r 71, r 73, pt 10 Criminal Code Act 1899 (Qld), s 23, s 24 Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209; [2011] ACTSC 133, cited Australian Competition and Consumer Commission (ACCC) v Cement Amoket Pty Ltd (2016) 242 FCR 389; [2016] FCA 453, cited Bank of New South Wales v Piper [1897] AC 383, cited Bourk v Power Serve Pty Ltd [2008] QCA 225, followed Brown v Director-General of the Justice and Community Safety Directorate (2011) 364 FLR 155; [2021] ACTSC 320, cited Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43, cited Construction, Forestry, Mining & Energy Union v State of Queensland & Anor [2004] QSC 181, followed Eastman v R (2000) 203 CLR 1; [2000] HCA 29, cited He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43, followed Irwin v R (2018) 262 CLR 626; [2018] HCA 8, cited Kaporonovski v R (1973) 133 CLR 209; [1973] HCA 35, cited R v Barlow (1997) 188 CLR 1; [1997] HCA 19, followed Re Finance Sector Union of Australia; Ex parte Financial Clinic (VIC) Pty Ltd (1993) 178 CLR 352; [1993] HCA 34, cited Royall v The Queen (1990) 172 CLR 378; [1991] HCA 27, cited Mickelberg v R (1989) 167 CLR 259; [1989] HCA 35, cited Midland Montagu Australia Ltd v O’Connor (1992) 2 NTLR 86, cited Mitchell v R (1996) 184 CLR 333; [1996] HCA 45, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, followed R v A2 (2019) 269 CLR 507; [2019] HCA 35, followed -- 2 of 37 -- 3 COUNSEL: S C Holt KC with A C Freeman for the appellant J J Underwood for the respondent SOLICITORS: Ashurst for the appellant Office of the Work Health Safety Prosecutor for the respondent [1] The appellant, Anglo Coal (Moranbah North Management) Pty Ltd, who is a coal mine operator,1 appeals against its conviction in the Industrial Magistrates Court at Brisbane of a failure to discharge safety obligations in breach of s 34 of the Coal Mining Safety and Health Act 1999 (Qld) (CMSHA). A circumstance of aggravation was also found to be proved. [2] At all relevant times, Anglo operated the Moranbah North Mine, which is an underground coal mine. [3] In the course of those operations, coal mine workers2 employed by Anglo operated various pieces of equipment, including graders and driftrunners. Driftrunners are vehicles which carry miners between the surface and the underground working area of the mine. [4] Access to the mine was gained through a tunnel called the Personnel and Equipment Drift. The drift has a concrete floor, is almost one kilometre long, and has an average gradient of 1:8. [5] On 20 February 2019, Bradley Alistair Hardwick, a coal mine worker employed by Anglo, was operating an Anderson Wright Cat 120G grader at the mine. The grader is “plant”, as defined by the CMSHA.3 [6] Mr Hardwick parked the grader on the drift. He applied the brakes which included the parking brake. It can be inferred that he expected the parking brake to keep the grader stationary, notwithstanding the decline of the drift back into the mine. [7] The parking brake on the grader failed and it began to run backwards along the drift, down into the mine. [8] Further down the drift was a group of coal mine workers travelling in a driftrunner. The grader struck the driftrunner causing bodily injury to some of the occupants. Mr Hardwick died in the incident. Anglo denied that Mr Hardwick was struck and killed by the runaway grader. [9] By complaint made and summons issued on 14 February 2020, Anglo was charged as follows: “Charge one On the 20th day of February 2019, at Moranbah North Mine in Moranbah in the Magistrates Court District of Clermont in the State 1 Coal Mining Safety and Health Act 1999 , s 21. 2 Coal Mining Safety and Health Act 1999, sch 3, definition of “coal mine worker”. 3 Coal Mining Safety and Health Act 1999, sch 3, definition of “plant”. -- 3 of 37 -- 4 of Queensland, Anglo Coal (Moranbah North Management) Pty Ltd, ACN 069 603 587, on whom a safety and health obligation was imposed by section 41(1)(a) of the Coal Mining Safety and Health Act 1999 (Qld) did fail to discharge the said obligation, in contravention of section 34 of the said Act AND the said contravention of the said Act caused the death of Bradley Alistair Hardwick AND the said contravention of the said Act caused bodily harm to Vincent Wilson, John Jones, Craig Banks and Mark Barnham. Particulars That at the stated place and time: 1. Anglo Coal (Moranbah North Management) Pty Ltd (“Anglo Coal”) was an Australian registered company with ACN 069 603 587; 2. Anglo Coal was the holder of mining lease ML 70108 under the Coal Mining Safety and Health Act 1999 (“the Act”); 3. The Moranbah North Mine (“the mine”) was located in an area on mining lease ML 70108; 4. It was a coal mine within the meaning of that term in section 9 of the Act; 5. Anglo Coal was the operator for the mine; 6. Bradley Alistair Hardwick, Vincent Wilson, John Jones, Craig Banks and Mark Barnham were employed by Anglo Coal at the mine; 7. They were coal mine workers within the meaning of that term in Schedule 3 of the Act; 8. Mr Hardwick was tasked to operate a piece of machinery known as an Anderson Wright Cat 120G grader GR002 (“the grader”); 9. The grader was provided to Mr Hardwick by Anglo Coal; 10. Mr Hardwick used the grader for the performance of his work throughout the day; 11. Prior to 3.30pm, Mr Hardwick drove the grader onto the mine drift (“the drift”) in the direction of the mine surface; 12. At or shortly after 3.30pm, the grader stopped on the drift and the park brake was applied; 13. After the grader was stopped and the park brake applied, the grader started to move down the drift; 14. Mr Hardwick suffered fatal injuries as a result of the grader’s movement; 15. The grader only stopped when it collided with another vehicle on the drift; -- 4 of 37 -- 5 16. Vincent Wilson, John Jones, Craig Banks and Mark Barnham, who were occupants of the other vehicle, sustained bodily injuries as a result of the collision; 17. Subsequent analysis of the grader revealed the park brake was defective such that it was not able to hold the grader stationary while the grader was on the drift when it should have been able to do so; 18. The grader is plant as defined in Schedule 3 of the Act; 19. The grader was not in a safe state because the defective park brake rendered it unable to hold the grader stationary on the drift; 20. The provision of the grader by Anglo Coal to Mr Hardwick in circumstances where the grader had a defective park brake meant that the coal mine workers were exposed to an unacceptable level of risk of injury or death from unplanned movement of the grader; 21. The risk was unacceptable because it was not within acceptable limits and as low as reasonably achievable having regard to the likelihood of injury to a person arising out of the risk and the severity of the potential injury; 22. To bring the risk to an acceptable level, Anglo Coal ought to have ensured the mine developed and implemented a system for testing the park brake independently of the service brakes prior to 20 February 2019; 23. Anglo Coal did not do so; 24. Anglo Coal failed to discharge the safety and health obligation imposed on it by section 41(1)(a) of the Act, namely the obligation to ensure the risk to coal mine workers while at the operator’s mine is at an acceptable level, including by providing plant in a safe state; 25. The contravention caused the death of Mr Hardwick; and 26. The contravention caused bodily harm to Vincent Wilson, John Jones, Craig Banks and Mark Barnham. contrary to the Acts in such case made and provided.”4 [10] The structure of the charge is: (a) the offence is one of a failure to discharge a safety obligation;5 with (b) a circumstance of aggravation that the failure caused the death of a person;6 and 4 The complaint was amended to remove the name of Craig Banks from the charge and at particulars paragraphs [16] and [26]. 5 Coal Mining Safety and Health Act 1999, s 34. 6 Coal Mining Safety and Health Act 1999, s 34(b). -- 5 of 37 -- 6 (c) a further circumstance of aggravation that the failure caused bodily harm to persons.7 [11] The complaint was tried in the Industrial Magistrates Court at Brisbane over seven days between 14 November 2022 and 1 December 2022. [12] During the trial and through admissions, it was accepted by Anglo that at the time of the incident the parking brake of the grader was defective and could not hold the grader on the drift. The service brake was capable of holding the grader stationary on the drift, but once the grader’s engine was turned off the air pressure required to operate the service brake fell, and as the parking brake in its defective form could not hold the grader, it rolled down the drift into the mine.8 [13] Although tests of the brake systems on the grader had been regularly carried out by Anglo, the design of the parking brake was such that it could not be tested independently of the service brake without installing a parking brake test valve. This was because when the parking brake was engaged, so was the service brake. Therefore, any defects in the parking brake were masked during testing by the service brake if it was functioning properly, as it apparently was. [14] Much of Anglo’s defence was designed to show that when managing its safety obligations in relation to the grader, it had relied heavily upon the manufacturer. Servicing was done by Anglo in accordance with the manufacturer’s recommendations and the manufacturer had performed various overhauls. The manufacturer had failed to tell Anglo that a parking brake test valve had to be installed in order to effectively test the parking brake system. [15] The Industrial Magistrate was called upon to resolve many issues, including: (a) the proper construction of various provisions of the CMSHA and the Coal Mining Safety and Health Regulation 2017 (the Regulations); and (b) whether a document described as “The 1998 Schematic”, which was in the possession of Anglo, warned Anglo of the difficulties in testing the parking brake independently of the service brake. [16] On 11 May 2023, the Industrial Magistrate convicted Anglo of the charge and the circumstance of aggravation that some of the coal miners in the driftrunner suffered bodily harm. The Industrial Magistrate held a reasonable doubt as to the circumstance of aggravation that the contravention caused the death of Mr Hardwick, and that was found not to be proved against Anglo. [17] This appeal was commenced by an Application to Appeal filed 30 May 2023, which alleged grounds of appeal as follows: “5. Grounds of the appeal In relation to the decision on 11 May 2023 to convict Anglo Coal (Moranbah North Management) Pty Ltd of one contravention of section 34 of the Coal Mining Safety and Health Act 1999 (Qld) causing bodily harm, the Industrial Magistrate: 7 Coal Mining Safety and Health Act 1999, s 34(c). 8 T1-29, lines 21 to 35. -- 6 of 37 -- 7 (1) erred in interpreting section 66 of the Coal Mining Safety and Health Regulation 2017 (Qld) by finding that the brake testing system developed by Anglo Coal (Moranbah North Management) Pty Ltd was not “appropriate” for the testing of the park brake; and (2) erred in finding that the 1998 schematic provided a clear and unambiguous warning to Anglo Coal (Moranbah North Management) Pty Ltd of the interrelationship between the service brakes and the park brake on the grader because such a finding was so profoundly against the evidence.” The way the respective cases were put at the trial [18] As will become apparent, the general structure of the CMSHA is that: (a) section 41 places a safety and health obligation upon Anglo to achieve an acceptable level of risk which is that the risk must be within acceptable limits, namely, as low as reasonably achievable;9 (b) where a regulation provides a way of achieving an acceptable level of risk, that way must be followed, and if followed, the person has discharged the safety and health obligation in relation to the risk the subject of the regulation. If not followed, the person has failed to discharge the safety and health obligation in relation to the risk the subject of the regulation;10 (c) section 48 provides defences where a defendant can prove: (1) by s 48(1)(a), that the way prescribed by a regulation was followed;11 or (2) by s 48(2) “the commission of the offence was due to causes over which the person had no control”. [19] The prescribed way of discharging the safety and health obligations, which fell on Anglo in relation to the braking systems of the grader, was to provide, relevantly here, a system for “appropriate testing of parking brakes”. Because of the design peculiarities of the braking systems, the testing procedures designed and implemented by Anglo did not identify defects with the parking brake. [20] The prosecution produced written opening submissions. After stating that the testing of the parking brake system performed by Anglo was ineffective, it was said: “11. Anglo Coal did not identify, analyse and assess the serious risk of injury to coal mine workers arising from the absence of a system of appropriate testing of the park brake. Anglo Coal should have implemented such a system, or not used the grader if no such system could be implemented.” [21] After dealing with various provisions of the CMSHA, the prosecution said this: “26. The obligation which it is alleged that Anglo Coal contravened (s 41(1)(a)) is an obligation imposed under part 3, division 3 of the CMSH Act so that s 48 has potential application. 9 Coal Mining Safety and Health Act 1999, s 29(1). 10 Section 37. 11 Section 48(1)(a). -- 7 of 37 -- 8 27. It is envisaged that Anglo Coal may seek to rely upon s 48(1)(c) which would provide a defence to the charge if it could show on the balance of probabilities that it took reasonable precautions and exercised proper diligence to prevent the contravention. 28. However, s 48(1)(c) is not available in this case, since a regulation has been made about the way to achieve an acceptable level of risk. For that reason, s 48(1)(a) of the CMSH Act is the operative subsection of s 48 against which Anglo Coal’s actions or omissions are to be measured.” (emphasis added) [22] Section 48(1)(c)12 clearly has no application. It concerns a situation where there is no regulation and no “recognised standard”.13 Here, there was a regulation. [23] There was no mention of s 48(2) in the written opening of the prosecution. The trial commenced on the basis that the issue for determination was whether the testing of the parking brake system was “appropriate”. For reasons which will become apparent, if the testing was not “appropriate” then the elements of the charge are proved and Anglo has no defence under s 48(1)(a). It may, in those circumstances, still avail itself of the defence created by s 48(2). [24] Anglo’s case before the Industrial Magistrate was that the testing was “appropriate”. It argued that appropriateness had to be assessed in light of various things, including the lack of knowledge of Anglo of what could be said to be a latent feature of the braking system. It also relied upon its interactions with the manufacturer of the grader as the tests were those approved by the manufacturer. It was argued that the tests Anglo adopted were “appropriate”, in the sense that it was appropriate for Anglo to adopt them. Therefore, it was argued that the prescribed way had been followed and that the safety and health obligation was discharged and/or alternatively, depending upon the proper construction of the legislation, a defence under s 48(1)(a) was established. [25] At trial, Anglo initially disavowed reliance upon s 48(2). For reasons which will become apparent Anglo was wrong to do so. Anglo had no chance of proving that the tests were “appropriate”14 and its only defence (if any) came via s 48(2). [26] Because Anglo led evidence at the trial, its counsel addressed first in closing. In Anglo’s written closing submission, it was put: “3. There are two key issues that the Court is required to determine in order to find whether or not Anglo Coal is guilty of the offence in respect of the incident that occurred at Moranbah North Mine on 20 February 2019: a. First, whether Anglo Coal had in place “appropriate” testing for the Grader’s park brake at the time of the incident (the “Liability Issue”); and …” 12 Which appears at paragraph [61] of these reasons. 13 Coal Mining Safety and Health Act 1999, s 71. 14 The onus was on Anglo: s 48(1)(a). -- 8 of 37 -- 9 [27] The second “key issue” identified by Anglo was whether any by Anglo failure caused Mr Hardwick’s death. Anglo prevailed on that issue. [28] Anglo’s concluding written submissions on the question of whether it discharged its safety and health obligations were: “170. As demonstrated above, Anglo Coal’s SHMS provided for orthodox, well-informed, and appropriate testing of parking brakes in the circumstances that were known to it at the time and in accordance with the recommendations of the OEM.15 171. Anglo Coal was entitled to rely upon the information and recommendations provided by the OEM in relation to testing of the Grader’s parking brakes in circumstances where they were the design experts in relation to the plant. 172. The issues that arose on 20 February 2019 in relation to the Grader’s brakes were as a result of design flaws which were solely within the knowledge of the OEM and who had both contractual and statutory obligations to inform Anglo Coal of such flaws and failed to do so. 173. It follows that Anglo Coal did discharge its obligations under the Act and Court ought to dismiss the complaint and summons before the Court on this basis alone.” [29] By the time closing oral submissions were made, the prosecution had filed and served its written submissions. Those submissions urged a construction of the CMSHA and the Regulations which called for a purely objective approach to the notion of the appropriateness of the testing. Its submission was that if the testing actually designed and done did not identify the defects in the parking brake system, then it was not “appropriate”. [30] That submission provoked a change of position by Anglo. The primary position was still maintained, namely that the appropriateness or otherwise of the testing had to be looked at in the light of the tests actually conducted, the knowledge of Anglo, and the role of the manufacturer of the grader. However, it was made clear that reliance would also be made upon the defence created by s 48(2). This exchange occurred: “So, I want to be really clear about this. Our respectful submission is your Honour gets nowhere near section 48(2) because there is no contravention for all of the reasons that we’ve set out. Our submission is that the only way in which your Honour would get to, that the only way in which your Honour would get to a conclusion that there had been a contravention would be if your Honour accepted, contrary to our submissions, the legal propositions that I’ve set out from our learned friends, in particular the kind of absolutist approach to section 66 of the regulation. Having had the opportunity then to consider that potential scenario, having read our learned friends’ submissions, if your Honour got to that point as a matter of law, which is not the process that we commend 15 A reference to the manufacturer of the grader. -- 9 of 37 -- 10 to your Honour, then our submission is that on the evidence, on the balance of probabilities, it will have been demonstrated that any such contravention was due to causes over which Anglo Coal had no control. Now, that is not a matter addressed in our written submission because it’s a matter that arose from consideration of our learned friends’ submissions. So what we’ve sought to do is just provide your Honour with a very short supplementary submission on this issue so that there is clarity about something. Given that it’s a defence that’s being relied upon, your Honour, I didn’t want it to be just indicate in oral submissions.” (emphasis added) [31] Apart from that exchange, s 48(2) was not mentioned again except in the final statement made by Anglo’s leading counsel to the Industrial Magistrate in his address: “Thank you. And overall, your Honour, we respectfully submit that Anglo Coal should be found not guilty of the complaint, the charge in the complaint first and foremost on the basis that it does not – that it did discharge its duty for the reasons that we’ve set out, that it did not discharge its duty that has available the defence under section 48(2) and that if your Honour were to find contrary to those submissions that it was responsible, then it certainly was not responsible for Mr Hardwick’s tragic death.” [32] The supplementary written submissions referred to by counsel were tendered. The handling of the issue of a defence under s 48(2) is critical, and it is necessary to set out the written submission in full: “1. Section 48 of the Act relevantly provides: (2) Also, it is a defence in a proceeding against a person for an offence against section 34 for the person to prove that the commission of the offence was due to causes over which the person had no control. (3) The Criminal Code, sections 23 and 24, do not apply in relation to a contravention of section 34. 2. The Explanatory Memorandum for the Bill provides as follows: Sections of the Criminal Code not to apply The Bill states that sections 23 and 24 of the Criminal Code do not apply to a contravention of clause 34 of the Bill. These sections of the Criminal Code require the prosecution to disprove potential excuses of mistake of fact and acts or omissions that occur independently of the exercise of the will or for an event that occurs by accident. The Bill provides instead for a defence that the defendant must prove that the commission of the offence was due to causes over which the defendant had no control. -- 10 of 37 -- 11 The exclusion of sections 23 and 24 of the Criminal Code is necessary because some matters are inherently within the knowledge of persons with obligations under the proposed legislation. 3. Thus, the statutory trade-off for excluding defences of mistake of fact and acts independent of will from contraventions of section 34, is that the defendant is still entitled to rely upon a defence that the commission of the offence was due to causes over which the defendant had no control. 4. In this case, the primary position of Anglo Coal is that it did comply with section 66 of the Regulation and had a system which provided for appropriate testing of park brakes in the circumstances known to it at the time. 5. However, should the Court not accept that proposition and conclude that Anglo Coal did fail to discharge its obligation under section 41(1)(a) by failing to have a system that provided for the appropriate testing of park brakes on the Grader, then that will likely be because of a combination of the Prosecution’s legal submissions, namely that: a) The word “appropriate” is section 66 of the Regulations is, in effect, an absolute requirement; and b) That Anglo Coal’s position is “tantamount” to a mistake of fact defence. 6. If so, Anglo Coal submits that the commission of such offence was due to “causes over which it had no control” because: a) It had systems in place for the regular testing of the park brakes on the Grader which were orthodox, thorough and in accordance with the recommendations of the OEM and which were religiously followed by its employees; b) The reason that it did not have a system for testing the park brakes independently was because of a design flaw with the Grader; c) The OEM had sole possession of the knowledge regarding the design flaws of the Grader and the risks posed by those flaws, had spent years developing a control for the hazard but failed to tell anyone outside the OEM, in breach of its own obligations under the Act. The only practical way to test the park brake independently from the service brakes was to install a park brake test valve and only the OEM held this knowledge and failed to tell anyone including Anglo Coal and the Chief Inspector of Coal Mines. d) This was not something which Anglo Coal had control over. In fact, Anglo Coal took appropriate and proactive steps to try and ensure that the OEM did provide to it the relevant information including by: -- 11 of 37 -- 12 i. Ensuring that the Grader was serviced according to the schedule recommended by the OEM, including that Code C and Code D overhauls were undertaken by the OEM; ii. Contractually ensuring that when the Grader was sent for its 2015 overhaul, all approval dossiers and equipment files were updated and were to provide updated drawings and documentation for the Grader including manuals; iii. Contractually ensuring that the OEM provide a summary of modification works undertaken on the Grader as a result of OEM Technical Bulletins or OEM investigations relating to incidents (safety alerts) and provide copies of the Technical Bulletins with the dossier/safety file; iv. Contractually ensuring that the OEM overhaul the Grader in accordance with the requirements of all Authorities that have influence and/or jurisdiction over the area where the Grader was to be operated, including MDG requirements and Australian Standards; v. Contractually ensuring that where applicable, the Grader was to comply with the requirements of the latest editions of all Australian Standards and any non-conformance was to be identified by PPK through an audit process and a risk-based approach adopted to manage the gaps with all gap analysis to be reported and included in the safety file. 7. Despite these steps being taken by Anglo Coal and despite employees of the OEM knowing that the Grader had these design flaws, were not compliant with MDG39 and had been parked up in NSW in late 2013, when the Grader came to PPK for its 2015 overhaul, no one firstly, advised Anglo Coal of the issue or secondly, installed a park brake test valve on the Grader or provided Anglo Coal with a practical way to test the park brake independently of the service brakes that was relevant to the Grader in question. 8. Instead, the OEM returned the Grader with recommendations for brake testing which did not test the park brake and the service brake independently. 9. The fact that Anglo Coal: a) had sophisticated, robust and detailed systems and procedures in place within its SHMS for the testing of brake systems on plant developed in accordance with the recommendations of the OEM; and b) had implemented bespoke brake testing procedures for other plant in use at the Mine as required; and -- 12 of 37 -- 13 c) immediately installed a park brake test valve in GR001 once it became aware of the hazard posed by the design of the braking system and the control available to deal with such hazard; demonstrates that had it known the relevant information about the unique design of the Grader’s brake system and how to test same it would have acted upon it and implemented the necessary testing procedures to ensure that the park brake was tested independently of the service brakes. 10. Therefore, any failure to discharge its obligations under the Act in relation to the appropriate testing of park brakes was caused by the failure of the OEM to provide the requisite information regarding known design flaws and hazards, which the OEM had sole possession of (as the entity responsible for the design, manufacture and supply of such plant) and over which Anglo Coal had no control.” (footnotes in the submission omitted and emphasis added) [33] There can be no doubt that, although there was not reliance by Anglo on s 48(2) initially, the supplementary written submission raised that defence clearly for the consideration of and determination by the Industrial Magistrate. [34] In closing written submissions, the prosecution submitted that the only available defence was that provided by s 48(1)(a). The defence provided by s 48(2) is not mentioned in the prosecution’s final written submissions, apart from two irrelevant and passing references.16 [35] The prosecution dealt with what it saw as the effect of s 36 of the CMSHA. Those submissions appeared under a heading “(iii) Section 36 precludes a duty-holder from escaping liability by pointing to the failings of another duty-holder”. There is then an explanation of the scheme of the CMSHA which, as I have earlier observed, lays independent safety and health obligations upon individual obligation bearers.17 [36] The prosecution’s written submissions on s 36 concluded with: “51. The possibility that an injury may be caused by a breach of the same obligation by separate duty-holders (Scenario 1), or by the contravention of various obligations by separate duty-holders (Scenario 2), raises the possibility that duty-holders may seek to avoid liability by blaming each other. That is what section 36 is designed to avoid. And for good reason: coal mine workers’ safety is apt to be drastically undermined if duty-holders could escape liability by pointing to the concurrent failings of others. By preventing blameshifting, duty-holders are required to uphold their obligations even when others do not. This provides for a fail-safe mechanism for worker safety. It ensures that coal mine 16 Prosecution’s closing written submissions, paragraph [34] where the whole of s 48, including s 48(2), is set out and paragraph [53] by inference where s 48 and the removal of the exculpatory provisions in s 23 and s 24 of the Code are referred to, although there is no specific mention of s 48(2). 17 Prosecution’s closing written submissions, paragraphs [49] – [51]. -- 13 of 37 -- 14 workers will be protected from harm by some duty-holders even when others fail to discharge their obligations. 52. To interpret section 36 of the CMSH Act contrariwise–and thereby to permit blameshifting to take place–would not only conflict with the plain and emphatic words of the section, but would be contrary to the entire philosophy of the Act.” [37] That submission conflates the existence of a duty with its breach and the consequences of any breach. Section 36 preserves the safety and health obligations upon a particular entity, in the face of the existence of another safety and health obligation falling upon another person in the same circumstances. All have obligations, and there are consequences for breach of those obligations, but all have the benefit of s 48(2). That defence is raised where the person’s safety and health obligation is breached through causes beyond their control. There is nothing in the CMSHA which provides that the actions of others (whether or not they bear safety and health obligations) is not relevant to the question of whether a defence under s 48(2) is established. The ultimate question is control over the causes of the commission of the offence. [38] In his closing oral address, leading counsel for the prosecution firstly dealt with the issue of the circumstance of aggravation that the contravention caused Mr Hardwick’s death. He then turned to what he described as “liability” which was a term the parties had adopted to refer to whether or not Anglo ought to be convicted of the charge.18 [39] Various submissions were made in relation to s 48(1)(a), but nothing in relation to s 48(2). Statutory scheme [40] Section 6 of the CMSHA defines the objects of the legislation as follows: “6 Objects of Act The objects of this Act are— (a) to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations; and (b) to require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level; and (c) to provide a way of monitoring the effectiveness and administration of provisions relating to safety and health under this Act and other mining legislation.” (emphasis added) 18 T7-83. -- 14 of 37 -- 15 [41] These objects are achieved by various means which are identified in s 7. Section 7 relevantly provides: “7 How objects are to be achieved The objects of this Act are to be achieved by— (a) imposing safety and health obligations on persons who operate coal mines or who may affect the safety or health of others at coal mines; and (b) providing for safety and health management systems at coal mines to manage risk effectively; and … (f) providing for inspectors and other officers to monitor the effectiveness of risk management and control at coal mines, and to take appropriate action to ensure adequate risk management; and …” (emphasis added) [42] “Risk” is defined by s 18: “18 Meaning of risk (1) Risk means the risk of injury or illness to a person arising out of a hazard. (2) Risk is measured in terms of consequences and likelihood.” [43] The concept of an “acceptable level of risk” is explained by s 29: “29 What is an acceptable level of risk (1) For risk to a person from coal mining operations to be at an acceptable level, the operations must be carried out so that the level of risk from the operations is— (a) within acceptable limits; and (b) as low as reasonably achievable. (2) To decide whether risk is within acceptable limits and as low as reasonably achievable regard must be had to— (a) the likelihood of injury or illness to a person arising out of the risk; and (b) the severity of the injury or illness.” (emphasis added) [44] Sections 30 and 31 concern achieving an acceptable level of risk and the consequences of the risk being unacceptable: “30 How is an acceptable level of risk achieved (1) To achieve an acceptable level of risk, this Act requires that management and operating systems must be put in place for each coal mine. -- 15 of 37 -- 16 (2) This Act provides that the systems must incorporate risk management elements and practices appropriate for each coal mine to— (a) identify, analyse, and assess risk; and (b) avoid or remove unacceptable risk; and (c) monitor levels of risk and the adverse consequences of retained residual risk; and (d) investigate and analyse the causes of serious accidents and high potential incidents with a view to preventing their recurrence; and (e) review the effectiveness of risk control measures, and take appropriate corrective and preventive action; and (f) mitigate the potential adverse effects arising from residual risk. (3) Also, the way an acceptable level of risk of injury or illness may be achieved may be prescribed under a regulation. 31 What happens if the level of risk is unacceptable (1) If there is an unacceptable level of risk to persons at a coal mine, this Act requires that— (a) persons be evacuated to a safe location; and (b) action be taken to reduce the risk to an acceptable level. (2) Action to reduce the risk to an acceptable level may include stopping the use of specified plant or substances. (3) The action may be taken by the coal mine operator for the mine, the site senior executive for the mine, industry safety and health representatives, site safety and health representatives, coal mine workers, inspectors or inspection officers.” (emphasis added) [45] Part 3 provides that safety and health obligations fall upon various persons. Section 33 provides: “33 Obligations for safety and health (1) Coal mine workers or other persons at coal mines or persons who may affect safety and health at coal mines or as a result of coal mining operations, have obligations under division 2 (safety and health obligations). (2) The following persons have obligations under division 3 (also safety and health obligations)— (a) a holder; (b) a coal mine operator; -- 16 of 37 -- 17 (c) a site senior executive; (d) a contractor; (e) a designer, manufacturer, importer or supplier of plant for use at a coal mine; (f) an erector or installer of plant at a coal mine; (g) a manufacturer, importer or supplier of substances for use at a coal mine; (h) a person who supplies a service at a coal mine. (3) If a corporation has an obligation under this Act, an officer of the corporation has obligations under division 3A (also safety and health obligations).” [46] Each of the safety and health obligations stand independently so as to create a multi-layered defence against death or injury. Section 36 supports this concept. It provides: “36 Person not relieved of obligations To remove doubt, it is declared that nothing in this Act that imposes a safety and health obligation on a person relieves another person of the person’s safety and health obligations under this Act.” [47] By individual sections, obligations are specifically imposed upon the persons identified in s 33. While the various obligations which attach to persons holding particular roles vary, the constant theme is to ensure that the risk to persons from coal mining is at an “acceptable level”.19 [48] As earlier observed, Anglo is the coal mine operator of the Moranbah North Coal Mine. Section 41 of the CMSHA provides: “41 Obligations of coal mine operators (1) A coal mine operator for a coal mine has the following obligations— (a) to ensure the risk to coal mine workers while at the operator’s mine is at an acceptable level, including, for example, by providing and maintaining a place of work and plant in a safe state … (c) not to carry out an activity at the coal mine that creates a risk to a person on an adjacent or overlapping petroleum authority if the risk is higher than an acceptable level of risk; 19 Section 39(1)(c), persons generally; s 41(1)(a), coal mine operators; s 42(a), senior site executives; s 44(1), designers, manufacturers, importers and suppliers of plant; s 45(a), erectors and installers of plant; s 45A(1) and s 45A(2)(a), designers, constructors and erectors of earthworks; s 46(1)(a), manufacturers, importers and suppliers of substances. -- 17 of 37 -- 18 (d) to appoint a site senior executive for the mine; (e) to ensure the site senior executive for the mine— (i) develops and implements a safety and health management system for the mine; and (ii) develops, implements and maintains a management structure for the mine that helps ensure the safety and health of persons at the mine; …” (emphasis added) [49] Section 41(1)(d) obliges the operator of a coal mine to appoint a site senior executive who is the most senior officer employed at a coal mine and has overall responsibility for the mine.20 Section 41(1)(e) obliges a coal mine operator to ensure that the site senior executive develops and implements a safety and health management system for the mine. Both these things have occurred. [50] Obligations fall upon the site senior executive under s 42 to develop and implement the safety and health management system. That section provides, relevantly: “42 Obligations of site senior executive for coal mine A site senior executive for a coal mine has the following obligations in relation to the safety and health of persons who may be affected by coal mining operations— (a) to ensure the risk to persons from coal mining operations is at an acceptable level; (b) to ensure the risk to persons from any plant or substance provided by the site senior executive for the performance of work is at an acceptable level; (c) to develop and implement a safety and health management system for all persons at the mine including contractors…” (emphasis added) [51] Under both ss 41 and 42, safety and health obligations are created in relation to “plant”.21 [52] Division 3 of Part 4 concerns safety and health management systems. Section 62 of the CMSHA relevantly provides: “62 Safety and health management system (1) The safety and health management system, for a coal mine, is a single system that incorporates risk management elements and practices that ensure the safety and health of persons who may be affected by coal mining operations. … 20 Section 25(1). 21 The grader is “plant”; Coal Mining Safety and Health Act 1999, Schedule 3. -- 18 of 37 -- 19 (5) The safety and health management system must be adequate and effective to achieve an acceptable level of risk by— [a number of specific requirements are listed]” (emphasis added) [53] The manufacturer of the grader was an entity upon which safety and health obligations fell. Section 44 of the CMSHA provides: “44 Obligations of designers, manufacturers, importers and suppliers of plant etc. for use at coal mines (1) A designer or importer of plant for use at a coal mine has an obligation to ensure the plant is designed so that, when used properly, the risk to persons from the use of the plant is at an acceptable level. (2) A manufacturer or importer of plant for use at a coal mine has an obligation to ensure the plant is constructed so that, when used properly, the risk to persons from the use of the plant is at an acceptable level. (3) A designer, manufacturer or importer of plant for use at a coal mine has an obligation to ensure the plant undergoes appropriate levels of testing and examination to ensure compliance with the obligation imposed by subsection (1) or (2). (4) Also, a designer, manufacturer, importer or supplier of plant for use at a coal mine has the following obligations— (a) to take all reasonable steps to ensure appropriate information about the safe use of the plant is available, including information about the maintenance necessary for the safe use of the plant; (b) if the designer, manufacturer, importer or supplier becomes aware of a hazard or defect associated with the plant that may create an unacceptable level of risk to users of the plant, to inform the chief inspector of— (i) the nature of the hazard or defect and its significance; and (ii) any modifications or controls of which the designer, manufacturer, importer or supplier is aware that have been developed to eliminate or correct the hazard or defect or manage the risk; and (iii) the name of each coal mine operator or contractor to whom the designer, manufacturer, importer or supplier has supplied the plant; and (iv) the steps taken to notify the coal mine operators and contractors about the matters mentioned in subparagraphs (i) and (ii); -- 19 of 37 -- 20 (c) to take the action the chief inspector reasonably requires to prevent the use of unsafe plant anywhere. Example of subsection (4)(c)— The chief inspector may require a designer, manufacturer, importer or supplier of plant to recall the plant to prevent its use. (5) For subsection (4)(a), information is appropriate if the information states— (a) the use for which the plant has been designed and tested; and (b) any conditions that must be followed if the plant is to be used safely so that risk to persons is at an acceptable level. (6) If a supplier of plant becomes aware of a hazard or defect associated with the plant the supplier has supplied to a coal mine operator for a coal mine or to a contractor for use at a coal mine, that may create an unacceptable level of risk to users of the plant, the supplier has an obligation to take all reasonable steps to inform the coal mine operator or contractor— (a) of the nature of the hazard or defect and its significance; and (b) any modifications or controls the supplier is aware of that have been developed to eliminate or correct the hazard or defect or manage the risk.” (emphasis added) [54] Sections 44(4)(a) and 44(6) would oblige the manufacturer to inform Anglo about the design feature which affects the effectiveness of tests of the parking brake. [55] The Regulations prescribes how an acceptable level of risk can be achieved in certain circumstances. [56] Section 37 of the CMSHA concerns the relationship between regulations prescribing the handling of risk and the discharge of safety obligations, and s 38 concerns the discharge of obligations where regulations do not prescribe a way of achieving an acceptable level of risk. Section s37 and 38 provide: “37 How obligation can be discharged if regulation or recognised standard made (1) If a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the person’s safety and health obligation in relation to the risk only by following the prescribed way. (2) If a regulation prohibits exposure to a risk, a person may discharge the person’s safety and health obligation in -- 20 of 37 -- 21 relation to the risk only by ensuring the prohibition is not contravened. (3) Subject to subsections (1) and (2), if a recognised standard states a way or ways of achieving an acceptable level of risk, a person discharges the person’s safety and health obligation in relation to the risk only by— (a) adopting and following a stated way; or (b) adopting and following another way that achieves a level of risk that is equal to or better than the acceptable level. 38 How obligation can be discharged if no regulation or recognised standard made (1) This section applies if there is no regulation or recognised standard prescribing or stating a way to discharge the person’s safety and health obligation in relation to a risk. (2) The person may choose an appropriate way to discharge the person’s safety and health obligation in relation to the risk. (3) However, the person discharges the person’s safety and health obligation in relation to the risk only if the person takes reasonable precautions, and exercises proper diligence, to ensure the obligation is discharged.” [57] Part 10 of the Regulations concern “plant”. Regulation 71 prescribes safety checks for fixed and mobile plant and reg 73 provides: “73 Checking mobile plant (1) A coal mine must have a standard operating procedure for checking mobile plant used at the mine. (2) The procedure must provide for the operator of the plant, as soon as practicable after taking control of the plant, to check that the plant’s brakes, steering, lights and any other safety features are functioning properly.” [58] The safety and health management system for the mine prescribed a standard operating procedure for checking mobile plant consistently with reg 73. Mr Hardwick performed a safety check on the grader before he operated it on the day he died. [59] Braking systems are clearly crucial to the safe operation of plant, so unsurprisingly the Regulations provide for the testing of braking systems. Regulation 66 provides: “66 Braking systems (1) A coal mine’s safety and health management system must provide for the continued effectiveness of braking systems on fixed and mobile plant used at the mine. Examples of braking systems for subsection (1)— -- 21 of 37 -- 22 1 hoist brakes on shovels or draglines 2 braking systems on winders (2) The system must provide for the following— (a) the dynamic testing of service brakes; (b) appropriate testing of parking brakes, emergency brakes and other braking systems the failure of which may create a risk to a person; (c) keeping a record of the brake test results in a location that is easily accessible by each coal mine worker at the mine.” [60] As earlier observed, s 34 of the CMSHA creates an offence of failing to discharge a safety and health obligation, and prescribes various circumstances of aggravation. Relevantly, s 34 provides: “34 Discharge of obligations A person on whom a safety and health obligation is imposed must discharge the obligation. Maximum penalty— (a) if the contravention caused multiple deaths … (b) if the contravention caused death or grievous bodily harm— (i) for an offence committed by a corporation—15,000 penalty units … (c) if the contravention caused bodily harm— (i) for an offence committed by a corporation—7,500 penalty units … (e) otherwise— (i) for an offence committed by a corporation—5,000 penalty units …” [61] Section 48 of the CMSHA concerns defences to proceedings for various offences under the Act, including an offence under s 34. Section 48 provides: “48 Defences for div 2, 3 or 3A (1) It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division 2, 3 or 3A in relation to a risk for the person to prove— (a) if a regulation has been made about the way to achieve an acceptable level of risk—the person followed the way prescribed in the regulation to prevent the contravention; or -- 22 of 37 -- 23 (b) subject to paragraph (a), if a recognised standard has been made stating a way or ways to achieve an acceptable level of a risk— (i) that the person adopted and followed a stated way to prevent the contravention; or (ii) that the person adopted and followed another way that achieved a level of risk that is equal to or better than the acceptable level to prevent the contravention; or (c) if no regulation or recognised standard prescribes or states a way to discharge the person’s safety and health obligation in relation to the risk—that the person took reasonable precautions and exercised proper diligence to prevent the contravention. (2) Also, it is a defence in a proceeding against a person for an offence against section 34 for the person to prove that the commission of the offence was due to causes over which the person had no control. (3) The Criminal Code, sections 23 and 24, do not apply in relation to a contravention of section 34. (4) In this section, a reference to a recognised standard is a reference to the recognised standard in force at the time of the contravention.” (emphasis added) [62] It can be seen that not only does s 48 provide defences, but also excludes the operation of ss 23 and 24 of the Criminal Code. Both those provisions provide exculpations. Sections 23 and 24 provide: “23 Intention—motive (1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for— (a) an act or omission that occurs independently of the exercise of the person’s will; or (b) an event that— (i) the person does not intend or foresee as a possible consequence; and (ii) an ordinary person would not reasonably foresee as a possible consequence. (1A)However, under subsection (1)(b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality. -- 23 of 37 -- 24 (2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial. (3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility. 24 Mistake of fact (1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist. (2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”22 (emphasis added) The proper construction of the provisions and how they apply here [63] The general structure of the CMSHA is to cast safety and health obligations upon various persons working in coal mines. These people form a very broad group. They not only include persons or entities managing a coal mine, such as a coal mine operator or a site senior executive, but also coal mine workers and “other persons at coal mines”.23 [64] In the main, the structure of the CMSHA is not to prescribe what persons and corporations involved in mining should actually do or refrain from doing to increase safety and decrease risk. The legislation prescribes standards that such people ought reach and leaves it to them to determine how those standards are reached. This approach is consistent with the recommendations of the Robens Report.24 [65] Relevantly here, it is the coal mine operator, Anglo, who bears the obligation to “ensure the risk to coal mine workers … is at an acceptable level”,25 which means that the risk must be “within acceptable limits” and “as low as reasonably achievable”.26 [66] However, as regards some risks, there are prescribed ways of discharging the safety and health obligation. That is the effect of s 37. [67] As regards risks associated with plant, in particular, braking systems, there are measures prescribed by reg 66. By s 37, there is an obligation upon the coal mine operator to “follow the way prescribed” and if the way prescribed is “followed”, then 22 Parliamentary note omitted. 23 Section 33(1) and Part 3, Division 2. 24 Lord Alfred Robens, “Safety and Health at Work” presented to the Parliament of the United Kingdom July 1972. 25 Section 41(1)(a). 26 Section 29(1). -- 24 of 37 -- 25 there is a defence to any charge of breach of the safety and health obligation the subject of the regulation.27 [68] By prescribing a “way to achieve an acceptable risk”, various things follow. As regards braking systems on plant: (a) the obligation of the coal mine operator, in practical terms, changes from one to “achieve an acceptable level of risk”28 to an obligation to “[follow] the prescribed way”;29 (b) if the “prescribed way” is followed, the level of risk actually achieved is irrelevant to the liability of the person upon whom the obligation falls. If the “prescribed way” is followed, then the obligation has been discharged; and (c) while assessment of what is necessary to lower the risk posed by braking systems to an acceptable one is removed by reg 66 from the coal mine operator (who must just follow the “prescribed way”), it is then faced with the obligation to provide for “appropriate testing”. [69] This construction is consistent with the analysis by McMurdo J (as his Honour then was) of s 37 in the context of different regulations made under the CMSHA in Construction, Forestry, Mining & Energy Union v State of Queensland & Anor.30 His Honour there observed: “Section 37(1) provides that if a regulation prescribes a way of achieving an acceptable level of risk, a person may discharge the obligation in relation to the risk only by following the prescribed way. Section 38 provides that if there is no regulation (or recognised standard) prescribing a way to discharge a person’s obligation, then the person must choose an appropriate way to do so, which must involve the taking of reasonable precautions and the exercise of proper diligence. So the evident intent is that in some circumstances, a duly made regulation will itself define what constitutes an acceptable level of risk, by defining what can and must be done to achieve it. In other cases, the person obliged to achieve an acceptable level of risk is left to choose what is appropriate, subject to requirements of reasonableness and proper diligence and to the condition (from s 29(1)(b)) that the level of risk from the operations is as low as reasonably achievable.”31 (emphasis added) And: “The relevant provision in this case, which is s 296 of the Regulation, is thereby a regulation which prescribes a way of achieving an acceptable level of risk, so as to engage s 37 of the Act in relation to the site senior executive’s obligation to ensure that the risk from coal mining operations is at an acceptable level. There is no challenge to the validity of s 296. Accordingly the discharge of the site senior 27 Sections 48(1)(a). 28 Section 41. 29 Sections 37(1) and 48(1)(a). 30 [2004] QSC 181. 31 At [7]. -- 25 of 37 -- 26 executive’s obligation requires his compliance with s 296 of the Regulation, irrespective of the executive’s own judgment as to whether there is another appropriate way to achieve the same level of risk. Compliance with s 296, where it operates, is not excused by the design of the mine in a different way although another design might represent reasonable precaution and diligence. In circumstances in which regulations such as s 296 operate, the Governor-in-Council has exercised its power to decide what is an acceptable level of risk, by prescribing the way of achieving it.”32 (emphasis added) [70] Regulation 66 prescribes a way of achieving an acceptable level of risk in relation to “braking systems”. It does so by prescribing what must be achieved in a safety and health management system for the mine. [71] By ss 41 and 42, coal mine operators and site senior executives have obligations in relation to the development and implementation of the safety and health management system. Therefore, reg 66 concerns obligations upon coal mine operators and site senior executives. [72] Regulation 66 is odd because it prescribes the way of discharging the obligation as providing for certain things in the safety and health management system. It does not provide for the implementation of that system. This is, perhaps, explained by the fact that ss 41 and 42 oblige both coal mine operators and site senior executives to implement the systems. [73] By force of s 37, a failure of a coal mine operator or a site senior executive to fulfill the obligations prescribed by reg 66 constitutes a breach of the safety obligations imposed by ss 41 and 42 respectively, without any analysis necessary as to whether the breach of reg 66 obligations: (a) in fact, raised risk above what it could be if reg 66 obligations were performed; or (b) whether fulfillment of the reg 66 obligations lowers the risk “to an acceptable level” or, in fact, lowers risk at all. 33 [74] Against that legislative context reg 66 can be construed. [75] As already observed, reg 66(1) imposes an obligation which concerns the content of the safety and health management system at the mine. The safety and health management system must provide “for the continued effectiveness of braking systems … on … plant”. That obligation seems to be an obligation which is independent but related to the obligations to provide for the testing prescribed by reg 66(2). Because of the way the case has been argued that issue need not be considered further. [76] Regulation 66(1) speaks of “braking systems”. Regulation 66(2)(b) speaks of “parking brakes, emergency brakes and other braking systems”. What is contemplated is not one “braking system” which includes the “parking brakes” and the service brakes. The parking brakes are a “braking system” and the service brakes 32 At [8]. 33 Construction Forestry Mining & Energy Union v State of Queensland & Anor [2004] QSC 181 at [7] and [8]. -- 26 of 37 -- 27 are a “braking system”. Therefore, reg 66 obliged Anglo to provide a system for testing parking brakes and a system for testing service brakes. [77] Regulation 66(2) does not prescribe a way in which the testing is to be done. Rather reg 66(2) reverts to the general scheme of the Act, which sets standards rather than prescribes conduct. The coal mine operator and site senior executive must devise and implement “appropriate” brake testing. [78] Section 48(1)(a), at first blush, appears inconsistent with s 37. Section 37 provides that where a regulation provides a way of achieving an acceptable level of risk, then the only way of discharging the safety and health obligation is to comply with the regulation. Taken literally, there could be no breach of the obligation if the regulation is complied with. [79] Section 48(1)(a) provides that proof by a defendant that a “prescribed way” has been complied with is a “defence”, and that proof of the defence is upon the defendant. As already observed, on one interpretation of s 37, if the prescribed way is complied with then the safety and health obligation is complied with, and there is no contravention and no offence to which a defence is necessary. [80] Sections 37 and 38 must be read together and harmoniously.34 Section 37 states that the only way of discharging the safety and health obligation is to follow the “prescribed way” and s 48 casts the burden of proving the fact that the prescribed way was followed upon a defendant. [81] Critical to the present appeal is the proper construction of reg 66, in particular, the term “appropriate testing”. [82] The word “appropriate” is in common usage and it has been considered in a wide range of cases. These include constitutional cases challenging legislation on the basis of breach of the constitutional freedom of political expression,35 industrial cases,36 cross-vesting cases,37 practice cases,38 human rights’ cases39 and sentencing cases.40 None of these authorities are of much assistance. The task of construction is to ascertain the meaning of the actual words used in the particular legislative text by reference to context and purpose.41 [83] The Macquarie Dictionary42 defines “appropriate” relevantly here as: “Suitable or fitting for a particular purpose, person, occasion, etc.; an appropriate example.” 34 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 35 Brown v Tasmania (2017) 261 CLR 328; whether the legislation is “reasonably appropriate and adapted”. 36 Re Finance Sector Union of Australia; Ex parte Financial Clinic (VIC) Pty Ltd (1993) 178 CLR 352. 37 Midland Montagu Australia Ltd v O’Connor (1992) 2 NTLR 86. 38 Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209. 39 Brown v Director-General of the Justice and Community Safety Directorate (2011) 364 FLR 155. 40 Australian Competition and Consumer Commission (ACCC) v Cement Amoket Pty Ltd (2016) 242 FCR 389; and Mitchell v R (1996) 184 CLR 333. 41 R v A2 (2019) 269 CLR 507 at [32] - [37]. 42 Macquarie Dictionary Publishers, 2023, 9th Ed. -- 27 of 37 -- 28 [84] The word “appropriate” by its very nature raises objective considerations. What is “appropriate” requires a comparison between the purpose and the thing that is said to be “appropriate”. [85] Such a use of the word “appropriate” as part of the composite “appropriate testing” in reg 66 is consistent with the scheme of the CMSHA. As already observed, the Act places obligations upon persons associated with coal mining to achieve objective standards. The risk must be reduced to “an acceptable level”.43 An “acceptable level of risk” is one “within acceptable limits” and “as low as reasonably achievable”.44 The persons upon whom those obligations fall must “ensure” that the risk falls to that level. That obligation is “absolute”.45 Exculpations46 are excluded by s 48(3) of the CMSHA. [86] The absolute nature of the safety obligations imposed by the CMSHA is ameliorated by the defences which are available under s 48. Here, s 48(1)(a) is irrelevant, as Anglo could never prove that the design of the testing of the parking brake was “appropriate”. The purpose of the testing was to identify defects in the braking system so that any defects which are identified can be rectified. The testing procedure adopted by Anglo could not identify defects in the parking brake system. Therefore, the testing system was not “appropriate”. Consequently, “the way prescribed in … regulation [66] …” was not followed, and s 48(1)(a) cannot be relied upon by Anglo. [87] Section 48(2) provides a defence in circumstances where s 48(1)(a) cannot be relied upon. [88] Sections 48(2) and (3) must be looked at together, as they are dealing with the same subject matter; exculpations for what is otherwise criminal conduct. The operation of ss 23 and 24 of the Criminal Code is excluded by s 48(3). [89] Sections 23 and 24 are contained in Chapter V of the Code, headed “Criminal Responsibility”. As Gibbs CJ explained in He Kaw Teh v The Queen,47 the common law recognises mens rea as a feature of criminal offences. An offence consists of an act or omission accompanied by a state of mind which renders the act or omission criminal in nature.48 Legislation may prescribe the elements of statutorily created offences, including or excluding those relevant to mens rea issues. [90] The Commonwealth Criminal Code addresses this by defining offences by reference to “physical elements” and “fault elements”, with the fault elements specifying the mens rea requirements.49 [91] The Queensland Criminal Code deals with mens rea differently. By s 2, all offences consist of an “act” or “omission”. Unlike the Commonwealth Criminal Code, there is no mental or fault element to an offence under the Code, unless expressly 43 Section 41(1)(a). 44 Section 29. 45 Bourk v Power Serve Pty Ltd [2008] QCA 225, a case considering similar wording in similar legislation. 46 Sections 23 and 24 of the Criminal Code. 47 (1985) 157 CLR 523 at 528 and following. 48 And see generally, He Kaw Teh v The Queen (1985) 157 CLR 523 at 654 and following. 49 Criminal Code Act 1995 (Cth), Chapter 2, Part 2.2. -- 28 of 37 -- 29 provided.50 Instead, there are exculpations and defences. The onus of disproving exculpations and defences are upon the Crown, unless the Code otherwise provides. [92] Sections 23 and 24 are exculpations to excuse what would otherwise be the commission of an offence. They are, in effect, mens rea provisions. By s 23, the act or omission which constitutes the offence will not result in criminal liability if the act of the alleged offender occurred independently of the exercise of their will, or if the event (being the consequences of the act), was not foreseen or foreseeable.51 [93] Section 24 provides that where a person is honestly but reasonably mistaken as to the existence of a fact, their criminal responsibility is limited to the extent of their mistaken belief.52 [94] Section 48(3) removes the operation of ss 23 and 24 and replaces them with s 48(2). Unlike ss 23 and 24, where the Crown must disprove their operation, the onus of proof of the defence under s 48(2) is upon a defendant. This is all perhaps obvious, but is also consistent with the Explanatory Memorandum to the Bill which introduced the CMSHA.53 [95] What a defendant must do in order to establish a defence under s 48(2) is to prove “that the commission of the offence was due to causes over which the person had no control”. [96] It can be seen that the subsection creates a connection between the “offence” and what is described as “the causes”. The offence must be “due to” the “causes” and the “causes” must be ones over which the person upon whom the safety and health obligation falls “had no control”. [97] Therefore, s 48(3) calls for an examination of: (a) the offence; (b) the causes; (c) the connection between the causes and the offence; and (d) whether the defendant had “control” over the “causes”. [98] As explained in R v Barlow,54 the term “offence” may refer to the offence as legally defined or may refer to the act or omission which actually (perhaps with other elements) constitutes the offence as defined.55 [99] Here the legal “offence” is the omission to lower the risk of the plant (the grader) to the statutory standard.56 The omission which constitutes that offence is the failure to devise an appropriate test to test the parking brake system. That must be so because s 37 provides that the prescribed way (reg 66) must be followed, and if it is followed 50 Criminal Code Act 1899 (Qld), s 23. 51 And see generally Kaporonovski v R (1973) 133 CLR 209; and Irwin v R (2018) 262 CLR 626. 52 Which reflects the common law; Bank of New South Wales v Piper [1897] AC 383 at 389 - 390. 53 The relevant passage of the Explanatory Memorandum appears in paragraph [2] of Anglo’s supplementary written submission which is extracted at paragraph [32] of these reasons. 54 (1997) 188 CLR 1. 55 At 9. 56 Sections 34 and 41. -- 29 of 37 -- 30 then the s 41 duty is discharged, but by s 48(1)(a) a defendant must prove compliance. In context, that omission must be the “offence”, the cause of which the person had no control over. The whole notion of “control”, in context, suggests an ability or inability to influence acts or omissions or events. [100] The “cause” of the failure to devise an appropriate test must ultimately be a question of fact. The “cause” may be multifaceted. One element here is the design of the braking system. However, the knowledge of Anglo’s employees of the system and many other factors may all be “causes” or may be relevant to determine the “causes”. Relevant factors must surely include steps taken to comply with the prescribed way including engagement with the manufacturer, even though the testing itself was done by Anglo. [101] The offence here (subject to any defence under s 48(2)) was committed by a failure to devise an appropriate test for the parking brake. The question then is whether that failure was “due” to causes which must be identified, and being ones beyond the control of Anglo. This throws up consideration of the causal connection between the identified “causes” and the commission of the offence, remembering that the offence was committed by an omission, being the omission to devise the appropriate test. What must be determined is whether that omission was “due” to the “causes”. This is a factual question.57 [102] Ultimately, the question will be whether “causes” of the offence were ones over which Anglo had “control”. That is also a factual matter and questions of knowledge, both actual and constructive, may be relevant, but so might the actions of others. [103] It is accepted by Anglo that the testing which was undertaken could not discern any defect in the parking brake system, as any defect was masked by the service braking system. It follows that upon a proper understanding of the legislation, as I have explained: (a) the testing system was not “appropriate”; (b) Anglo, therefore, did not comply with reg 66; (c) the defence in s 48(1)(a) was not available; and (d) the only real issue in the case was whether the defence in s 48(2) was proved by Anglo. [104] Anglo’s principal case at trial raised an argument that the appropriateness of the testing system should be gauged against its knowledge of the braking system, and whether the testing was conducted with reasonable precaution and diligence.58 As already observed, the reliance by Anglo upon s 48(2) was an afterthought and the arguments were not fully developed at trial. [105] Once it is appreciated that Anglo has breached the prescribed requirements of reg 66 (read with s 37), the only issue at trial was whether the defence in s 48(2) was available, namely “whether the commission of the offence was due to causes over which [Anglo] had no control”. That question is very different to whether the system to test the parking brake system was “appropriate”. 57 Royall v The Queen (1990) 172 CLR 378. 58 T2-32, lines 22 - 24. -- 30 of 37 -- 31 [106] The Industrial Magistrate made a series of findings which are clearly correct. He found that when the parking brake was engaged, the service brake was also engaged such that the parking brake was not being effectively tested. While he found that there was extensive testing of the braking systems, there was not an effective test of the parking brake acting alone.59 In those circumstances, he found that Anglo did not comply with reg 66. That finding was correct and indeed inevitable. The appeal [107] As earlier observed, there are two grounds of appeal. By ground 1, Anglo challenges the Industrial Magistrate’s construction of reg 66. Anglo submits that the Industrial Magistrate should have considered various circumstances which it said were relevant to whether or not the testing of the parking brake was “appropriate”. It points, in particular, to a substantial body of evidence concerning its interaction with the manufacturer and its compliance with testing regimes specified by the manufacturer. [108] I reject Anglo’s submission. For the reasons I have explained, the Industrial Magistrate was correct to assess appropriateness by reference to whether the testing system could achieve its purpose, namely, to identify defects in the parking brake system. The testing could not achieve that purpose and was therefore not appropriate and consequently ground 1 fails. [109] Ground 2 only attacks a specific finding made by the Industrial Magistrate and that is that the 1998 schematic fixed knowledge to Anglo of the fact that the parking brake system did not operate independently of the service braking system. Ground 2 can be put to one side temporarily. [110] The argument on appeal concerning ground 1 inevitably led to a consideration of the structure of the CMSHA and how s 48(1)(a) and 48(2) interacted with the offence provisions and with those provisions casting safety and health obligations upon Anglo. [111] Although s 48(2) was not the main focus of Anglo’s defence at trial, and not the subject of an independent ground of appeal, it was clearly raised by Anglo’s counsel as a defence at the trial. Much of the evidence led at the trial, particularly of the interaction between Anglo and the manufacturer of the grader, may be relevant to a defence under s 48(2). [112] The issue of how the Industrial Magistrate dealt with s 48(2) was the subject of full argument on the appeal. Very properly, the respondent did not take the point that there was no specific ground of appeal complaining about the Industrial Magistrate’s handling of the s 48(2) defence. It is clear, in my view, that by virtue of the way the Industrial Magistrate dealt (or did not deal with) s 48(2) at the trial, the trial has miscarried and it is in the interests of justice to deal with the issue. The Industrial Magistrate commenced his reasons by recording some of the procedural history and making observations about many of the relevant statutory provisions.60 59 T1-12. 60 D1-2 and 1-3. -- 31 of 37 -- 32 He then recorded some uncontentious facts including how the accident occurred61 and then turned to various submissions made by the parties. [113] In relation to the submissions by the prosecution, the Industrial Magistrate observed: “It says further that no defence under section 48(2) arises as Anglo had not provided62 on the balance of probabilities the breach was due to causes over which Anglo had no control. In fact, it says that within Anglo’s own records was a clear statement and unambiguous warning, my words, that when the park brake engaged, the service brakes were also engaged. It says further that Anglo cannot rely on the mistaken fact defence under section 24 and 25 of the Criminal Code. As such, the defence is specifically excluded by section 48(3) of the Act. In its defence, Anglo criticises the OEM for not disclosing to it the particular park brake system, and to alert them to the interconnection between the park brake and service brakes. It says that it would be impermissible under the Act for Anglo to blame the OEM for not telling Anglo of that fact by virtue of section 36, which clearly states where a safety and health obligation is placed on a person, that is to say on Anglo, that nothing relieves that person of its safety and health obligation under the Act.” (emphasis added) [114] That submission appears to have been accepted: “I am satisfied regulation 66 applied to Anglo on the relevant date, that sections 23 and 24 of the Criminal Code, mistake of fact, did not apply and do not apply, and that section 36 prevents Anglo from being relieved from its own safety and health obligations under the Act, by the conduct, misconduct, or admission to do something of any other person of the same obligation.” (emphasis added) And later: “Anglo is therefore in breach of section 34, it says, because its safety, health and management system did not provide for the appropriate testing of the parking brake system required by regulation 66. Although the Defence tendered a report concluding their testing procedures at the time were appropriate, I am still satisfied that it failed to act on its own knowledge of its unusual design brake feature which it was obliged to do. Anglo bitterly complained about the conduct of the OP – of the OEM, and in my view, with some justification. Anglo says the OEM did not disclose to them the unusual braking system, nor the need for specific and separate testing of the park braking system and how to rectify this unusual aspect when it should have done, and I expect that that is so. But as I have already found, Anglo are not able to rely upon someone else not doing something that it was their duty to do. It is not apparent 61 D1-4 and 1-5. 62 This must mean “proved”. -- 32 of 37 -- 33 why the OEM acted in that way. The prosecution submits, however, that Anglo is not excused from liability due to the OEM’s failure for the reasons I have just outlined.” (emphasis added) [115] As I have previously explained, s 36 concerns the obligation, not its breach, and not the applicability of defence provisions. The Industrial Magistrate wrongly concluded, it seems, that the evidence of the interactions between the manufacturer and Anglo was irrelevant. This error by the Industrial Magistrate probably explains why he did not deal with that evidence and how that led to Anglo not producing a testing regime that was “appropriate” to test the parking brakes. That evidence was not relevant to prove that the actions of the manufacturer relieved Anglo of its obligations under s 41 and reg 66. It was also not relevant in determining whether Anglo had discharged the safety obligation. As previously explained, whether the test which had been developed was “appropriate” had to be determined purely objectively. However, the evidence was relevant as a potential “cause” of Anglo’s “commission” of “the offence” which would then raise consideration of whether that “cause” was one “over which [Anglo] had no control”.63 [116] Instead of examining all the evidence relevant to whether or not the cause of the commission of the offence was beyond the control of Anglo, the Industrial Magistrate concentrated almost entirely upon what he described as the “smoking gun”. That was the inclusion in the maintenance records of Anglo of the 1998 schematic. What that showed was that some 20 years before the accident the subject of the charge, the parking brake system and the service brake system were interrelated such that when the grader’s parking brake was engaged the service brake was simultaneously engaged. There had been overhauls of the grader performed by the manufacturer in the intervening decades. There was no mention by the manufacturer of the necessity to install a valve. [117] After finding that through the 1998 schematic there was actual or at least constructive knowledge of the fact that the two braking systems were interconnected, the Industrial Magistrate concluded “Anglo has not proven on the balance of probabilities or at all, in my view, that the commission of the offence was due to causes over which it had no control”.64 [118] The Industrial Magistrate, probably labouring under the mistaken belief that s 36 rendered the evidence of Anglo’s interaction with the manufacturer irrelevant, has not analysed that evidence at all, except in relation to the 1998 schematic. He has also not grappled with the real questions which arose under s 48(2). He has not considered the interactions between Anglo and the manufacturer as potentially being “causes” of the “commission of the offence” and he has not then considered whether those “causes” are ones over which Anglo had “no control”. 63 Section 48(2). 64 D1-13, line 12 to 14. -- 33 of 37 -- 34 [119] On appeal, the respondent submitted that s 48(2) could never avail Anglo for two reasons: (a) Anglo provided the grader to the coal mine workers. It was within the control of Anglo not to provide the grader to the coal mine workers. It was under an obligation to not provide defective plant to the coal mine workers;65 and (b) Anglo could have made enquiries which would have discerned how the brakes worked. Therefore, that was not beyond its control. [120] Section 48(2), as I have explained, draws a connection between “the commission of the offence” and “causes over which the person had no control”. Here, the omission which constituted the “commission of the offence” was a failure to design a test that was “appropriate”. If Anglo had a test that was “appropriate” it would not have committed the offence, whether or not the grader’s brakes were in fact in a state where the risk was as low as reasonably achievable or not. Therefore, what are relevant are the “causes” of the failure to develop an appropriate test. If those “causes” were ones over which Anglo had no control then there is a defence. [121] The offending could obviously be avoided by actions within the control of Anglo. It could have elected not to provide the grader to its workers. It could have elected to close the mine. It could have elected to never again engage in coal mining. That, though, is not the point. They are all actions taken eliminate the risk. The CMSHA acknowledges risk cannot be eliminated. It assumes the existence of risk which must be lowered so it is “acceptable”. Anglo could provide the grader to coal mine workers, provided it complied with reg 66 and devise an “appropriate test”. Anglo didn’t devised an appropriate test. That’s the relevant omission which constituted the “offence”. The point is whether the omission which constitutes the offence “was due to causes over which [Anglo] had no control”. As I have explained, the omission is the failure to devise a test that was “appropriate” to test the parking brake system. [122] It may be that in the context of the omission to design an “appropriate” test for the parking brake, the ability of Anglo to acquire knowledge of the connection between the two braking systems is relevant to the s 48(2) defence. However, that raises its own questions which require an analysis of how Anglo would or could acquire that knowledge and whether the knowledge or part of it is held only by the manufacturer. [123] Neither of these two matters raised on appeal by the respondent avoid the conclusion that the trial miscarried. Neither of these things are even identified as issues by the Industrial Magistrate let alone dealt with in any reasoned way. [124] In construing s 48 of the CMSHA the Industrial Magistrate has misunderstood s 48(2) which has then led him to fail to decide the issues properly before him. There has been a miscarriage of justice and the conviction cannot stand. [125] It is unnecessary and, in my view, undesirable to consider ground 2. Ground 2 concerns a finding of fact which may be relevant to the defence under s 48(2). However, there is a good deal of other evidence relevant to the defence. In circumstances where the case will either have to be retried or at least reconsidered, determining whether this particular finding by the Industrial Magistrate was open or 65 Section 31(2) -- 34 of 37 -- 35 wrong is of little use. Further, if the matter is retried, there might be additional evidence on that very issue which may or may not lead to a different finding. What orders should be made? [126] Section 558 of the Industrial Relations Act 2016 provides, relevantly: “558 What court may do (1) On an appeal under section 55666 or 557, the court may— (a) dismiss the appeal; or (b) allow the appeal, set aside the decision and substitute another decision; or (c) allow the appeal and amend the decision; or (d) allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the commission or an Industrial Magistrates Court to act according to law. …” [127] For the reasons I have explained, the appeal must be allowed and the conviction set aside. The prosecution failed to prove to the Industrial Magistrate’s satisfaction beyond reasonable doubt that the contravention caused the death of Bradley Alistair Hardwick. Anglo has the benefit of that decision. [128] The matters which must now be determined are: (a) whether the charge itself is proved; and (b) whether the circumstance of aggravation that the contravention caused the bodily harm to Vincent Wilson, John Jones and Mark Barnham is proved. [129] Anglo’s success in having the conviction set aside does not in itself lead to acquittal. I have made no assessment as to whether Anglo has proved the defence under s 48(2). [130] The options then are: (a) remit the matter to the Industrial Magistrate who heard the trial; (b) remit the matter to an Industrial Magistrate other than the Industrial Magistrate who heard the trial; or (c) deal with the matter myself. [131] At the end of the hearing of the appeal, I indicated that if the appeal was allowed I would receive further submissions as to the appropriate orders. I will make orders to facilitate that process. [132] The Industrial Magistrate who heard the trial made factual findings against Anglo which were fairly emphatic. The “loaded gun” finding is an example. Findings were made and conclusions were drawn by the Industrial Magistrate against the backdrop 66 Section 556 provides an appeal from a magistrate to the Court. -- 35 of 37 -- 36 of a misunderstanding of critical aspects of the scheme of the legislation. There was no proper examination of how s 48(2) operated, and s 36 was misunderstood. [133] The parties should consider, and make submissions, as to whether in those circumstances (and there may be others) it is appropriate to remit the matter back to the Industrial Magistrate who heard the trial. [134] Section 558(b) allows the Court, to “set aside the decision and substitute another decision”. That section would enable this court to acquit Anglo if, on the material at the trial it has proved the defence under s 48(2). However, the parties should consider whether they wish to adduce further evidence and whether this Court has the power to receive it. Whether a court hearing an appeal has power to receive further evidence is dependent upon the nature of the appeal, and ultimately the proper construction of the statute which creates the avenue of appeal.67 [135] I can see forensic considerations which might have resulted in a desire by Anglo to rely on s 48(1)(a) rather than s 48(2). Section 48(2) only becomes relevant if the brake testing was not “appropriate”. Anglo no doubt was anxious to avoid such a finding. [136] However, the result of that forensic decision is that the trial was concluded on a false premise, namely that the issue was the “appropriateness” of the testing. The real issue was whether the commission of the offence was due to causes over which Anglo had no control. That remains the issue. Both parties should consider whether the real issue can be determined upon the record of proceedings which were conducted around a different issue. [137] The directions made today concern what further orders should be made. One order which Anglo no doubt hopes is ultimately made is that it is acquitted. The directions do not contemplate submissions on that topic. Apart from costs, the submissions should be confined to the three options identified in paragraph [131] of these reasons. If what is ordered is that I deal with the matter then further submissions will be invited as to how that should occur. [138] The directions given today do contemplate that the parties will make submissions on costs at this stage. Orders [139] The orders are: 1. Appeal allowed. 2. The conviction is set aside. 3. The respondent shall on or before 4 pm on 11 July 2025 file and serve any written submissions on the question of what further orders ought to be made. 4. The appellant shall on or before 4 pm on 25 July 2025 file and serve any written submissions on the question of what further orders ought to be made. 67 See generally, Eastman v R (2000) 203 CLR 1; and Mickelberg v R (1989) 167 CLR 259. -- 36 of 37 -- 37 5. Each party has leave to file and serve on or before 4pm on 1 August 2025 a notice of intention to make further oral submissions on the question of what further orders ought to be made. 6. In the event no application is filed pursuant to order 5, the issue of further orders will be determined on any written submissions received and without further oral hearing. -- 37 of 37 --