Mineral Resources Amendment Regulation (No. 4) 2010 (Qld)

Queensland Mineral Resources Amendment Regulation (No. 4) 2010 Subordinate Legislation 2010 No. 264 made under the MineralResourcesAct1989 Contents Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4 Amendment of s 29 (Definitions for div 2) . . . . . . . . . . . . . . . . . . 3 5 Replacement of s 31 (General royalty payable under the Act) . . . 3 31 Royalty payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6 Replacement of pt 9, div 3, sdiv 2, hdg (Coal seam gas) . . . . . . . 3 7 Omission of pt 9, div 3, sdiv 3, hdg (Minerals other than coal seam gas) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 8 Omission of s 42 (Gross value of a mineral) . . . . . . . . . . . . . . . . 4 9 Amendment of s 43 (Working out value of minerals other than coal seam gas) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 10 Insertion of new pt 9, div 3, sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . 4 Subdivision 3 Gross value of minerals other than coal seam gas 43 Definitions for sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 5 43A Meaning of market value mineral . . . . . . . . . . . . . . . . 5 43B Gross value of a mineral. . . . . . . . . . . . . . . . . . . . . . . 7 43C Application for gross value royalty decision by holder 8 43D Minister may request application for gross value royalty decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Mineral Resources Amendment Regulation (No. 4) 2010 Contents 43E Requirements for application for gross value royalty decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43F Gross value royalty decision. . . . . . . . . . . . . . . . . . . . 43G Considerations for gross value royalty decision . . . . . 43H Minister’s power to amend gross value royalty decision ............................. 43I Procedure for amending a gross value royalty decision on Minister’s initiative . . . . . . . . . . . . . . . . . . 43J Procedure for amending a gross value royalty decision on application by holder . . . . . . . . . . . . . . . . 43K Notice of decision to amend or not amend a gross value royalty decision . . . . . . . . . . . . . . . . . . . . . . . . . 11 Replacement of pt 13, hdg (Transitional provision for MineralResources Amendment Regulation (No. 5) 2008) . . . . . . . . . . . . 12 Insertion of new pt 13, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Division 2 Transitional provisions for Mineral Resources Amendment Regulation (No. 4) 2010 86 Definitions for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Existing decisions about gross value . . . . . . . . . . . . . 88 Existing applications for decision about gross value . 89 Existing provisions apply in relation to working out value of minerals for particular return periods . . . . . . 13 Amendment of sch 4 (Royalty payable for minerals) . . . . . . . . . . 2 Royalty rate for prescribed mineral. . . . . . . . . . . . . . . 14 Amendment of sch 7 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 9 10 10 11 12 12 13 13 14 14 14 14 15 15 16 17 Page 2 2010 SL No. 264

Mineral Resources Amendment Regulation (No. 4) 2010 [s 1] 1 Short title This regulation may be cited as the Mineral Resources Amendment Regulation (No. 4) 2010 . 2 Commencement (1) This regulation, other than sections 5 and 13, commences on 1 October 2010. (2) Sections 5 and 13 commence on 1 January 2011. 3 Regulation amended This regulation amends the MineralResourcesRegulation 2003. 4 Amendment of s 29 (Definitions for div 2) Section 29, definition mining authority — relocate to schedule 7. 5 Replacement of s 31 (General royalty payable under the Act) Section 31— omit, insert— ‘31 Royalty payable ‘The royalty payable under the Act is payable, for all minerals sold, disposed of or used in a return period, at the following rate— (a) for a prescribed mineral—the royalty rate stated in schedule 4, part 1, section 2; (b) otherwise—the royalty rate stated for the mineral in schedule 4, part 2.’. 6 Replacement of pt 9, div 3, sdiv 2, hdg (Coal seam gas) Part 9, division 3, subdivision 2, heading— 2010 SL No. 264 Page 3

Mineral Resources Amendment Regulation (No. 4) 2010 [s 7] omit, insert— ‘Subdivision 2 Value of minerals generally’. 7 Omission of pt 9, div 3, sdiv 3, hdg (Minerals other than coal seam gas) Part 9, division 3, subdivision 3, heading— omit. 8 Omission of s 42 (Gross value of a mineral) Section 42— omit. 9 Amendment of s 43 (Working out value of minerals other than coal seam gas) (1) Section 43, heading ‘Working out value’— omit, insert— ‘ Value ’. (2) Section 43(1)(a), after ‘mineral’— insert— ‘under subdivision 3’. (3) Section 43— renumber as section 42. 10 Insertion of new pt 9, div 3, sdiv 3 Part 9, after section 42, as renumbered— insert— Page 4 2010 SL No. 264

‘Subdivision 3 Mineral Resources Amendment Regulation (No. 4) 2010 [s 10] Gross value of minerals other than coal seam gas ‘43 Definitions for sdiv 3 ‘In this subdivision— gross value royalty decision means a decision made by the Minister under section 43F. holder , for a mineral, means the holder of a mining authority for mining the mineral. market value mineral see section 43A. relevant entity means— (a) for an individual—an entity associated with the individual; or (b) for a corporation—an entity that— (i) is, under the Corporations Act, an associated entity or related entity of the corporation; or (ii) is a related party of the corporation, within the meaning of the Corporations Act, section 228. ‘43A Meaning of market value mineral ‘(1) Subject to subsection (4), a mineral mined by the holder for the mineral is a market value mineral if— (a) the mineral is sold on the basis of a price listed for the mineral in a recognised international price listing; or (b) the mineral is disposed of or used and a market value for the mineral can be established on the basis of a price listed for the mineral in a recognised international price listing; or (c) neither paragraph (a) nor (b) applies to the mineral and the holder has sold a mineral of the same kind in an arms-length transaction in the previous 2-year period to a person other than a relevant entity; or 2010 SL No. 264 Page 5

Mineral Resources Amendment Regulation (No. 4) 2010 [s 10] (d) none of the paragraphs (a) to (c) apply to the mineral and the holder entered into an agreement, before or as soon as practicable after the mineral was mined, to sell the mineral in an arms-length transaction to a person other than a relevant entity. ‘(2) For subsection (1)(a), a mineral is sold on the basis of a price listed for the mineral in a recognised international price listing if it is sold— (a) at the price listed for the mineral in the listing at the time it is sold; or (b) at a price worked out by averaging the prices listed for the mineral in the listing over a particular period of not longer than 3 months. ‘(3) For subsection (1)(b), the market value for a mineral is established on the basis of a price listed for the mineral in a recognised international price listing if it is either— (a) the price listed for the mineral in the listing at the time the mineral is disposed of or used; or (b) a price worked out by averaging the prices listed for the mineral in the listing over a particular period of not longer than 3 months. ‘(4) A mineral mined by the holder for the mineral is not a market value mineral if— (a) the mineral is sold or disposed of to, or used by, a relevant entity for the holder and the relevant entity is involved in the marketing or re-selling of the mineral or in the production of a commodity using the mineral; or Example for paragraph (a) — The holder mines coal and the coal is used by a related body corporate for the holder to produce electricity in a power station. (b) the mineral is sold or disposed of to, or used by, a person and the holder receives a non-financial benefit from the sale, disposal or use (whether or not the holder also receives a financial benefit from the sale, disposal or use). Page 6 2010 SL No. 264

Mineral Resources Amendment Regulation (No. 4) 2010 [s 10] Example for paragraph (b) — The holder sells coal to another person for a price but also receives goods from the other person in return for the coal. ‘(5) In this section— recognised international price listing means a list of quoted or published prices of minerals— (a) on a recognised international mineral exchange or market; or Examples of recognised international mineral exchange or market — London Metal Exchange, London Bullion Market (b) in a publication recognised for quoting or publishing prices of minerals in an international market. Example of publication for paragraph (b) — Metal Bulletin ‘43B Gross value of a mineral ‘(1) If a mineral is a market value mineral, the gross value of the mineral is— (a) for oil shale if it is processed—the amount that would reasonably be expected to be obtained if the oil processed from the oil shale was sold in an arms-length transaction to a person who is not a relevant entity for the seller of the mineral; or (b) for a prescribed mineral— (i) if the mineral is a market value mineral under section 43A(1)(a)—the amount obtained for the mineral by selling it as mentioned in section 43A(2), disregarding any cost relating to the processing of the mineral; or (ii) if the mineral is a market value mineral under section 43A(1)(b)—the market value established for the mineral as mentioned in section 43A(3); or 2010 SL No. 264 Page 7

Mineral Resources Amendment Regulation (No. 4) 2010 [s 10] (iii) otherwise—the amount decided by the Minister in a gross value royalty decision; or (c) for another mineral— (i) if the mineral is a market value mineral under section 43A(1)(a), (c) or (d)—the amount for which the mineral is sold; or (ii) if the mineral is a market value mineral under section 43A(1)(b)—the market value established for the mineral as mentioned in section 43A(3). ‘(2) If a mineral is not a market value mineral, the gross value of the mineral is the amount decided by the Minister in a gross value royalty decision. ‘43C Application for gross value royalty decision by holder ‘(1) If the holder for a mineral reasonably believes that the mineral is not or may not be a market value mineral, the holder must apply for a gross value royalty decision. ‘(2) An application under subsection (1) must be made before or as soon as practicable after the mineral is sold, disposed of or used. ‘43D Minister may request application for gross value royalty decision ‘(1) If the Minister reasonably believes that a mineral is not or may not be a market value mineral, the Minister may, by written notice, ask the holder for the mineral to apply for a gross value royalty decision for the mineral. ‘(2) The Minister may make a request under subsection (1) only— (a) for a mineral that has not been sold, disposed of or used; or (b) for a mineral that has been sold, disposed of or used—if the holder has not lodged a royalty return for the return period in which the mineral was sold, disposed of or used. Page 8 2010 SL No. 264

Mineral Resources Amendment Regulation (No. 4) 2010 [s 10] ‘(3) A request under subsection (1) must be made at least 30 business days before the first day of the period to which the proposed gross value royalty decision is to apply. ‘(4) A request under subsection (1) may include a request for additional information or documents in the holder’s possession that may show the mineral is a market value mineral. ‘(5) If the Minister makes a request under subsection (1), the holder must comply with the request within— (a) 15 business days after the request is made; or (b) if the Minister has, within the 15 business days, agreed to a longer period—the longer period. ‘(6) If the holder for a mineral does not comply with a request under subsection (1), the Minister may make a gross value royalty decision for the mineral as if the holder has made an application for the decision under this subdivision. ‘43E Requirements for application for gross value royalty decision ‘(1) An application for a gross value royalty decision must— (a) be in writing; and (b) be lodged at— (i) the office of the department for lodging applications for gross value royalty decisions as stated in a gazette notice by the chief executive; or (ii) if no notice is gazetted under subparagraph (i)—the office of the chief executive; and (c) state whether the application is made under section 43C or 43D; and (d) state the applicant’s proposed method for working out either or both of the following— (i) the gross value of the mineral; (ii) the gross value of the mineral for a particular transaction or for a particular period; and 2010 SL No. 264 Page 9

Mineral Resources Amendment Regulation (No. 4) 2010 [s 10] Examples of methods for paragraph (d) — • a fixed value with adjustments for particular circumstances • a formula for deciding the market value (e) state the proposed period for which the gross value royalty decision is to apply. ‘(2) If the Minister has requested additional information or documents under section 43D(4), the application must include the additional information or documents. ‘43F Gross value royalty decision ‘(1) The Minister must make a gross value royalty decision for a mineral if an application for the decision is made under this subdivision. ‘(2) The Minister may, by written notice, ask the applicant for additional information or documents about a transaction for the mineral for the purpose of making the gross value royalty decision. ‘(3) The Minister must give the applicant written notice of the gross value royalty decision and the reasons for the decision. ‘(4) The gross value royalty decision may state that the gross value of the mineral is the value worked out by using a stated method and adjusted for particular circumstances. ‘(5) The notice of the gross value royalty decision must state the period to which the decision applies. ‘(6) The period to which the gross value royalty decision applies may start only on a day in a return period that starts after the decision is made. ‘43G Considerations for gross value royalty decision ‘In making a gross value royalty decision for a mineral, the Minister may consider the following— (a) the amount for which a mineral of the same kind has been sold in an arms-length transaction to a person other than a relevant entity for the seller; Page 10 2010 SL No. 264

Mineral Resources Amendment Regulation (No. 4) 2010 [s 10] (b) the amount for which a product made using the mineral, or a mineral of the same kind, has been sold; (c) how the value of the mineral can be adjusted to reflect changes to the market value of the mineral; (d) the expenses incurred or likely to be incurred by the holder for the mineral when selling the mineral in an arms-length transaction to a person other than a relevant entity for the holder; (e) the nature of the relationship between the holder for the mineral and the entity— (i) to whom the mineral has been sold or disposed of, or is to be sold or disposed of; or (ii) who has used or is to use the mineral; (f) the period to which the gross value royalty decision, or aspects of the decision, will apply; (g) the need for any future adjustment of the gross value royalty decision, or aspects of the decision; (h) any submissions made to the Minister about the gross value of the mineral by the holder for the mineral; (i) any other relevant matter. ‘43H Minister’s power to amend gross value royalty decision ‘The Minister may amend a gross value royalty decision for a mineral if— (a) the Minister reasonably believes there was a mistake in any aspects of the decision; or (b) the circumstances on which the Minister decided the gross value of the mineral have significantly changed. 2010 SL No. 264 Page 11

Mineral Resources Amendment Regulation (No. 4) 2010 [s 10] ‘43I Procedure for amending a gross value royalty decision on Minister’s initiative ‘(1) If the Minister proposes amending a gross value royalty decision for a mineral on his or her own initiative, the Minister must— (a) give the holder for the mineral written notice of the proposed amendment at least 30 business days before the first day of the period to which the proposed amendment would apply; and (b) invite the holder to make submissions about the proposed amendment within 15 business days (the submission period ) after giving the notice. ‘(2) In amending the gross value royalty decision, the Minister— (a) must consider any submissions made by the holder for the mineral in the submission period; and (b) may consider the matters stated in section 43G(a) to (g) and (i). ‘43J Procedure for amending a gross value royalty decision on application by holder ‘(1) The holder for a mineral may apply to the Minister to amend a gross value royalty decision for the mineral. ‘(2) The application must be made at least 30 business days before the first day of the period to which the amended gross value royalty decision is to apply. ‘(3) The application must— (a) be in writing; and (b) be lodged at— (i) the office of the department for lodging applications for gross value royalty decisions as stated in a gazette notice by the chief executive; or (ii) if no notice is gazetted under subparagraph (i)—the office of the chief executive; and Page 12 2010 SL No. 264

Mineral Resources Amendment Regulation (No. 4) 2010 [s 11] (c) state details of the proposed amendment of the gross value royalty decision; and (d) state the proposed period to which the amended gross value royalty decision is to apply. ‘(4) The Minister may ask the applicant for additional information or documents about a transaction for the purpose of deciding whether to amend the gross value royalty decision. ‘(5) In deciding whether to amend the gross value royalty decision, the Minister may consider the matters mentioned in section 43G(a) to (i). ‘43K Notice of decision to amend or not amend a gross value royalty decision ‘(1) If the Minister amends a gross value royalty decision (the original decision ) under this subdivision— (a) the amended gross value royalty decision replaces the original decision; and (b) the Minister must give the holder for the mineral written notice of the amended gross value royalty decision and the reasons for amending the original decision. ‘(2) Section 43F(4) to (6) applies to an amended gross value royalty decision as if a reference in the provisions to the gross value royalty decision were a reference to the amended gross value royalty decision. ‘(3) If under this subdivision the Minister decides not to amend a gross value royalty decision, the Minister must give the holder for the mineral written notice stating that the gross value royalty decision has not been amended and the reasons for not amending the gross value royalty decision.’. 11 Replacement of pt 13, hdg (Transitional provision for Mineral Resources Amendment Regulation (No. 5) 2008) Part 13, heading— omit, insert— 2010 SL No. 264 Page 13

Mineral Resources Amendment Regulation (No. 4) 2010 [s 12] ‘Part 13 Transitional provisions ‘Division 1 Transitional provision for MineralResources Amendment Regulation(No. 5) 2008’. 12 Insertion of new pt 13, div 2 Part 13— insert— ‘Division 2 Transitional provisions for Mineral Resources Amendment Regulation (No. 4) 2010 ‘86 Definitions for div 2 ‘In this division— commencement means the commencement of this section. previous section 42 means section 42 as in force from time to time before the commencement. ‘87 Existing decisions about gross value ‘A decision about the gross value of a mineral made by the Minister under previous section 42 is taken to be a gross value decision made under section 43F for the mineral. ‘88 Existing applications for decision about gross value ‘(1) This section applies if— (a) before the commencement, the holder of a mining authority made an application, under previous section 42, to the Minister for a decision about the gross value of a mineral (the existing application ); and Page 14 2010 SL No. 264

Mineral Resources Amendment Regulation (No. 4) 2010 [s 13] (b) at the commencement, the Minister has not decided the existing application. ‘(2) The existing application is taken to have been made under section 43C, and the Minister must decide it under part 9, division 3, subdivision 3. ‘(3) For deciding the existing application, the Minister may ask the applicant for information not included in the existing application that, under section 43E, is required to be included in an application under section 43C. ‘89 Existing provisions apply in relation to working out value of minerals for particular return periods ‘(1) Part 9, division 3, subdivision 3 as in force from time to time before the commencement continues to apply in relation to working out the value of minerals sold, disposed of or used in a prescribed return period, as if the Mineral Resources Amendment Regulation (No. 4) 2010 had not been made. ‘(2) In this section— prescribed return period means a return period for which a return must be lodged within 45 business days after the commencement.’. 13 Amendment of sch 4 (Royalty payable for minerals) (1) Schedule 4, part 1, section 1, definitions reference price 1 , reference price 2 and reference price 3 — omit. (2) Schedule 4, part 1, section 1— insert— ‘ reference price 1 , for a prescribed mineral, means— (a) for cobalt—$25 for each pound; or (b) for copper—$3600 for each tonne; or (c) for gold—$600 for each troy ounce; or (d) for lead—$1100 for each tonne; or 2010 SL No. 264 Page 15

Mineral Resources Amendment Regulation (No. 4) 2010 [s 13] (e) for nickel—$12500 for each tonne; or (f) for silver—$9 for each troy ounce; or (g) for zinc—$1900 for each tonne. reference price 2 , for a prescribed mineral, means— (a) for cobalt—$38 for each pound; or (b) for copper—$9200 for each tonne; or (c) for gold—$890 for each troy ounce; or (d) for lead—$2500 for each tonne; or (e) for nickel—$38100 for each tonne; or (f) for silver—$16.50 for each troy ounce; or (g) for zinc—$4400 for each tonne.’. (3) Schedule 4, part 1, sections 2 and 3— omit, insert— ‘2 Royalty rate for prescribed mineral ‘(1) The royalty rate for a prescribed mineral is— (a) if the average market price for the mineral is equal to or lower than reference price 1 for the mineral—2.5% of the value of the prescribed mineral; or (b) if the average market price for the mineral is higher than reference price 1 for the mineral but lower than reference price 2 for the mineral—the prescribed percentage of the value of the prescribed mineral; or (c) if the average market price for the mineral is equal to or higher than reference price 2 for the mineral—5% of the value of the prescribed mineral. ‘(2) In this section— prescribed percentage means the amount, expressed as a percentage, rounded down to nearest increment of 0.02%, worked out by using the following formula— where— PP is the prescribed percentage. Page 16 2010 SL No. 264

Mineral Resources Amendment Regulation (No. 4) 2010 [s 14] PP = 2. 5% +  R --- P -- F -- D -- D ---  2. 5%  PD is the difference between the average market price and reference price 1 for the prescribed mineral. RFD is the difference between reference price 2 and reference price 1 for the prescribed mineral. Example — If, for a quarter, the average market price for copper is $5045 for each tonne of copper, the royalty rate for copper for the quarter must be worked out under subsection (1)(b), given the average market price is higher than reference price 1 for copper ($3600) but lower than reference price 2 for copper ($9200). The royalty rate would be 3.14%, being the amount (3.145089%) worked out by using the formula in subsection (2), definition prescribed percentage , rounded down to the nearest increment of 0.02%.’. 14 Amendment of sch 7 (Dictionary) (1) Schedule 7, definition gross value , ‘section 42’— omit, insert — ‘section 43B’. (2) Schedule 7— insert — ‘ commencement , for part 13, division 2, see section 86. gross value royalty decision , for part 9, division 3, subdivision 3, see section 43. holder , for part 9, division 3, subdivision 3, see section 43. market value mineral , for part 9, division 3, subdivision 3, see section 43A. 2010 SL No. 264 Page 17

Mineral Resources Amendment Regulation (No. 4) 2010 [s 14] previous section 42 , for part 13, division 2, see section 86. relevant entity, for part 9, division 3, subdivision 3, see section 43.’. ENDNOTES 1 Made by the Governor in Council on 30 September 2010. 2 Notified in the gazette on 1 October 2010. 3 Laid before the Legislative Assembly on . . . 4 The administering agency is the Department of Employment, Economic Development and Innovation. © State of Queensland 2010 Page 18 2010 SL No. 264