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): Environment Law; Trade Practices Law; Occupational Health and Safety Law; and
Corporations Law.