Select Civil (Kiama) Pty Ltd v Kearney

Section 3 Definitions Insert in alphabetical order in section 3(1): mine means a mine within the meaning of the Coal Mines Regulation Act 1982 as in force immediately before its repeal by the Coal Mine Health and Safety Act 2002, but does not include any place that, in accordance with section 8(3) of the Coal Mine Health and Safety Act 2002, is a place to which that Act does not apply.

Sections 4 and 52A(9) and Part 18 of Schedule 6 Omit "to which the Coal Mines Regulation Act 1982 applies" wherever occurring". 20The respondent argued in support of his Notice of Contention that the first of these amendments effected a substantive change, and thus did not operate retrospectively, while the second of the changes was procedural and therefore operated retrospectively, rendering it applicable at 10 April 2006, the date of Mr Kearney's accident. Thus he said that the effect of the changes (plainly designed to move the reference to the Coal Mines Regulation Act from one place in the Workers Compensation Act to another) was that for a period of time prior to 22 December 2006, encompassing 10 April 2006, the Workers Compensation Act did not contain any presently relevant reference to the Coal Mines Regulation Act. 21The respondent proffered no reason why the legislature might have intended this apparent incongruity. In my view the proposition that the two amendments were designed to operate from different points in time should be rejected as inconsistent with the apparently complementary nature of the two amendments. As the appellant noted in reply, it is highly unlikely that two provisions, intended to complement one another and having their genesis in the same amending Act, would be intended to operate at two different times. Whether they both apply, or neither applies, in relation to Mr Kearney's accident is not in my view significant as in both cases consideration is required of whether the subject site was a mine within the meaning of the Coal Mines Regulation Act. In my view there is no relevant difference, at least in this context, between the language used in the first amending provision ("a mine within the meaning of the Coal Mines Regulation Act 1982") and that of the second (a mine "to which the Coal Mines Regulation Act 1982 applies"). 22In any event, if, as the respondent contends, recourse cannot be had to the Coal Mines Regulation Act 1982 for the purpose of determining whether Mr Kearney was a worker "employed in or about a mine" (see the definition of "coal miners" in Schedule 6 Part 18 Clause 3(4) of the Workers Compensation Act after the second of the 2002 Act amendments took effect on 22 December 2006) the same result still follows because the ordinary meaning of the words "employed in or about a mine" in my view includes employment in the rehabilitation of a mine site after extraction of minerals has ceased. For the reasons given above, that activity is an incident of the mining itself. A mine does not cease to be a mine immediately upon cessation of extraction of minerals. It continues to have that character at least whilst equipment is packed up and the site is rehabilitated. Only once that is complete and the site has been abandoned by those concerned with the mining or restorative operations does the site cease to be a mine. 23For these reasons I reject the submissions made in relation to the Notice of Contention.