On 20 December 2022, the Auditor General tabled in Parliament the Compliance with Mining Environmental Conditions Report. The Report follows an assessment on whether the Department of Mines, Industry Regulation and Safety (DMIRS) and the Department of Water and Environmental Regulation (DWER) effectively ensured miners compliance with environmental conditions.
The Report found that both DMIRS and DWER have failed to implement effective compliance and enforcement action. As a result of the Report, we expect to see a take up of its recommendations and the potential for increased activity on the compliance and enforcement front in 2023.
- Both DMIRS and DWER were observed to have reduced the monitoring of operator compliance, conducting fewer compliance related activities and ineffectively documenting the outcome of completed activities. Notably, the Report considers a timeframe where COVID impacted ‘business as usual’ activities.
- The Auditor General has identified deficiencies in the compliance verification of both DMIRS and DWER, with a reliance upon self-reported information coinciding with reduced inspections by both entities.
- Approaches to enforcement and internal guidance were not found to be consistent or clear. The timeliness of bringing, and the transparency of, enforcement action was also commented on.
- The Auditor General has produced a series of six recommendations for DMIRS and DWER to implement, with implementation to begin during 2023.
The Report followed compliance and enforcement audits of both DMIRS and DWER, focussing on activities between 2017 and 2022. This includes a substantial period of time where COVID will have impacted business as usual function of the Departments, however the impact of COVID is noted but largely unexamined.
Between these periods the audit recognised that while both entities did have systems in place, these systems were either ineffective, or had narrowed in their scope during the audited period. This materialised in a reduction in the number of compliance activities that were completed by both entities and inadequate verification of self-reported figures.
The Report found internal guidance processes for enforcement lacking and not supportive of consistent action by the Departments. The Auditor General concluded that the consequences of this are a current level of enforcement action that does not successfully support deterrence, and in many cases, no action on serious or repeated breaches by operators.
In making the above findings, the Auditor General noted the high workloads and resourcing pressures of both DMIRS and DWER, with a shift in focus to addressing approvals backlogs. Current circumstances present a heightened risk for compliance and the Auditor General found that ‘to deal with this, entities need to work together, innovate and take a balanced, risk-based approach to all their regulatory functions’.
The Auditor General’s Recommendations and Entity Responses
The Auditor General has made the following six recommendations for DMIRS and DWER:
- develop better documentation processes;
- improve compliance assessment and verification;
- improve internal utilisation of compliance and enforcement information through collaboration and information sharing;
- introduce thresholds for action and more effective guidance mechanisms for enforcement;
- explore the publishing and availability of operator non-compliance data; and
- prioritise plans to restore compliance activities.
Both DWER and DMIRS accepted that reform is necessary and are already responding through developing processes based on the Auditor General’s recommendations to strengthen compliance and enforcement. Both Departments will continue to evaluate the findings of the Auditor General, but have suggested implementation timeframes that would see the key recommendations introduced throughout 2023. As a result, we anticipate more activity on the compliance and enforcement front in 2023.
For further information please contact Melanie Debenham.