Miners' Homestead Leases Act Amendment Act 1975 (Qld)

793 ANNO VICESIMO QUARTO ELIZABETHAE SECUNDAE REGINAE No. 73 of 1975 An Act to amend the Miners ' Homestead Leases Act 1913-1974 in certain particulars [ASSENTED TO 12TH DECEMBER, 1975] BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled , and by the authority of the same , as follows:- PART I-PRELIMINARY 1. Short title and citation . (1) This Act may be cited as the Miners' Homestead Leases Act Amendment Act 1975. (2) The Miners ' Homestead Leases Act 1913-1974 is in this Act referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Miners ' Homestead Leases Act 1913-1975.

794 Miners ' Homestead Leases Act Amendment Act 1975, No. 73 2. Arrangement . This Act is divided into Parts as follows:- PART I-PRELIMINARY (SS. 1-3); PART 1I-AMENDMENT OF THE MINERS' HOMESTEAD LEASES ACT 1913-1974 (ss. 4-33). 3. Declaring as to continuance of applications . For the purpose of avoiding the raising of disputes concerning the survival and the effect thereon of an application for a miners' homestead perpetual lease or for approval of the subdivision of a miner's homestead made before and subsisting as at the commencement of this Act it is declared- (a) that the application shall not be taken to have been prejudiced by the commencement of this Act; (b) that the application shall be disposed of in accordance with The Miners' Homestead Leases Act of 1913 as amended to the date of commencement of this Act. PART II-AMENDMENT OF THE MINERS' HOMESTEAD LEASES ACT 1913-1974 4. Amendment of s. 1. Section 1 of the Principal Act is amended by omitting the words " 1898," herein referred to as the Principal Act " and substituting the expression " 1898 " ". 5. Amendmen t of s. 2. Section 2 of the Principal Act is amended by omitting the words " Division IIIA-Special provisions for coalfields;". 6. Amendmen t of s. 3. Section 3 of the Principal Act is amended by- (a) in the term " Lessee ", (i) omitting the words " the Principal Act " where firstly occurring and substituting the words " The Mining Act of 1898 "; (ii) omitting the words " the Principal Act " where secondly occurring and substituting the words " that Act "; (b) inserting after the term " Lessee " the following term:- " " Local Authority "-A Local Authority or Joint Local Authority constituted under the Local Government Act 1936-1975 and includes- (a) any person who at the material time is to be deemed to be a Local Authority pursuant to that Act; (b) Brisbane City Council constituted under the City of BrisbaneAct1924-1974; (c) any person or persons to whom are delegated any of the powers, authorities , duties and discretions had by a Local Authority;"; (c) omitting the term " Mining Field " and substituting the following term:- " Mining Field "- A mining field as defined by the Mining Act1968-1974;"; (d) in the term " Miner ' s homestead lease ", (i) omitting the words " the Principal Act " where firstly occurring and substituting the words " The Mining Act of 1898 "; (ii) omitting the words " the Principal Act " where secondly occurring and substituting the words " that Act ";

Miners' Homestead Leases Act Amendment Act 1975, No. 73 795 (e) in the term " Qualified person," (i) omitting the word " or " occurring between subparagraphs (iii) and (iv) and between subparagraphs (iv) and (v); ( ii) omitting subparagraphs (iv) and (v). 7. Amendment of s. 4. Section 4 of the Principal Act is amended by omitting the words " the Principal Act " and substituting the words " The Mining Act of 1898 ". . 8. Amendmen t of s. 6. Section 6 of the Principal Act is amended by- (a) in subsection (1), omitting the words " not exceeding ten acres "; (b) in subsection (2), in the second paragraph, omitting the words " clause twenty-seven of the Principal Act " and substituting the words " section 28 (1) (b) of the Mining Act1968-1974 ". 9. Amendment of s. 8 . Section 8 of the Principal Act is amended by inserting after subsection (1) the following subsection:- " (1A) Marking out land applied for. (a ) Before making an application for a miner's homestead perpetual lease the intending applicant shall cause to be inserted in the ground at the corner of the land applied for that is nearest to the access to the land, a round datum post, that is not less than 100 millimetres in diameter, or a square datum post, each side of which is not less than 100 millimetres in width, and stands at least one metre above the surface of the ground and is sunk not less than one-half metre in the ground. (b) The applicant shall cause to be engraved or in some way durably marked on the datum post the initial letters of the applicant's full name or, if there is more than one applicant, the initial letter of the surname of each of the applicants. (c) Where the application is for land that has been previously surveyed and the land is readily identifiable on the ground or where in the opinion of the warden, due to the nature of the ground, it is not practicable to insert a datum post the warden may, in writing, exempt the applicant from compliance with paragraphs (a) and (b).". 10. Amendment of s. 9 . Section 9 of the Principal Act is amended by. in the first paragraph, omitting the words "Applications shall be in duplicate," and substituting the words " Applications, and such number of copies thereof as the warden requires, shall be lodged with the warden, shall be ". 11. Repeal of and new s. 10. The Principal Act is amended by repealing section 10 and substituting the following section:- " 10. Posting copy of application . (1) The applicant shall, within 48 hours after lodging the application or within such further time as the warden may fix, cause- (a) a copy of the application to be posted at the warden's office and in a conspicuous place on the, land applied for which copies .shall be kept so posted for a continuous period of 30 days from the time of posting;

796 Miners ' Homestead Leases Act Amendment Act 1975, No. 73 (b) to be engraved or in some way durably marked on the datum post inserted in accordance with the requirement of section 8 (IA) (a) the number given to the application by the warden or his clerk, unless pursuant to section 8 (1A) (c) the applicant has been exempted from that requirement. (2) The applicant shall after the expiration of the period specified in subsection (1) and prior to the hearing of the application lodge with the warden a statutory declaration in the prescribed form.". 12. Amendment of s. 11. Section l l of the principal Act is amended by omitting the words " resident within the mining field " and substituting the word " person ". 13. Amendment of s. 12. Section 12 of the Principal Act is amended by- (i) omitting the word " All " and substituting the words " Unless rejected pursuant to section 13 all "; (ii) inserting at the end of the section the following paragraph:- " If the land contains valuable improvements the warden may recommend the imposition of a condition that the applicant pay the value of the improvements, as fixed by the warden, to the person who appears to the warden to be their owner.". 14. Repeal of and new s . 13. The Principal Act is amended by repealing section 13 and substituting the following section:- 13. Rejection or alteration of application . (1) Where- (a) the land applied for includes any claim or land in the authorised occupation of a person other than the applicant; (b) the granting of the application would, in the opinion of the warden , in any way interfere with mining; or (c) the warden is of the opinion that the public interest would be prejudicially affected by the granting of an application, he may make such alterations in the area and boundaries of the land as seem advisable to him or he may, at any time prior to the date of hearing , recommend to the Minister that the application be rejected. (2) Where the warden is of the opinion that an irregularity exists in the making or lodging of an application or in the marking out of the land applied for he may, at any time prior to the date of heari ng , recommend to the Minister that the application be rejected. (3) Before making a recommendation under subsection (1) or (2) the warden shall give to the applicant at least seven days' notice in writing that he intends to make such recommendation. (4) The Minister may reject the application or direct that it be allowed to proceed.

Miners ' Homestead Leases Act Amendment Act 1975, No. 73 797 (5) Where the Minister is of the opinion that- (a) the granting of an application may prejudicially affect any public interest or right; or (b) an irregularity exists in the making or lodging of the application or in the marking out of the land applied for, he may, at any time , reject the application. (6) Where the Minister rejects an application prior to the date of hearing the warden shall- (a) note the register that it is rejected; (b) strike it out of the list of applications awaiting hearing; and (c) advise the applicant of its rejection and that it has been struck out.". 15. Antendutent of s. 19. Section 19 of the Principal Act is amended by- (a) in subsection ( 4), omitting the words " five pounds " and substituting the expression " $10 "; (b) in subsection ( 5), omitting the words " one-thirtieth part " and substituting the words " three per centum ". 16. Repeal of s. 19A. The Principal Act is amended by repealing section 19A and the heading immediately preceding that section. 17. Amendmen t of s. 20. Section 20 of the Principal Act is amended by- (a) inserting after the second paragraph , the following paragraph:- " If the Governor in Council approves of an application he may impose such special conditions as he thinks fit upon the applicant , either in addition to or substitution for the conditions imposed pursuant to subparagraph ( a), (b) or ( c) of section 21 (1)."; (b) in the paragraph commencing with the words " Upon approval ", (i) omitting the word " warden " and substituting the words " Under Secretary, Department of Mines,"; (ii) omitting the words " the mining surveyor or (iii) omitting the words ", and on receipt of the plans shall forward them to the Minister with his report thereon ". 18. An nudinent of s. 21 . Section 21 of the Principal Act is amended by- (a) in subsection (1), (i) in subparagraph (c) of the first paragraph, omitting the words " twenty-five pounds " where twice occurring and substituting the expression " $50 " in each case; (ii) inserting at the end of subparagraph (c) the following subparagraph :- (d) In the case of an applicant upon whom the Governor in Council has imposed additional conditions, comply as well with those additional conditions, and if the Governor in

798 M iners ' Homestead Leases Act Amendment Act 1975, No. 73 Council has imposed substituted conditions comply with the substituted conditions in lieu of the conditions imposed pursuant to subparagraph (a), (b) or (c) "; (iii) in the last paragraph, omitting the words " a fee amounting to five shillings " and substituting the words " the prescribed fee "; (b) in subsection (2), (i) inserting after the word " specified " the words " or within the time (if any) specified in the special conditions "; (ii) inserting after the word " prescribed " the words " or when he has complied with the special conditions "; (c) in subsection (6), omitting the word `. such " and substituting the words " an instrument of ". 19. Amendm ent of s. 22. Section 22 of the Principal Act is amended by, in subsection (1), in the last paragraph, omitting the words " a fee amounting to five shillings " and substituting the words " the prescribed fee ". 20. Amendmen t of s. 23. Section 23 of the Principal Act is amended by- (a) in subsection (1), in subparagraph (b), omitting the words " five shillings " and substituting the words " fifty cents "; (b) in subsection (2), omitting the words " one shilling " and substituting the words " ten cents ". 21. Repeal of and new s. 23A. The Principal Act is amended by omitting section 23A and substituting the following section:- " 23A. Rent . (1) The annual rent of a miner's homestead perpetual lease shall be- (a) a sum equal to three per centum of the capital value of the land; or (b) if the Governor in Council sees fit in respect of a particular year, on application therefor being made by the lessee , such reduced sum as the Governor in Council considers reasonable having* regard to the lessee ' s circumstances. (2) In no case shall the annual rent be less than $2.". 22. Repeal of s. 24A . Section 24A of the Principal Act is repealed. 23. Amendment of s. 25. Section 25 of the Principal Act is amended by- (a) in subsection (3), in the third paragraph, omitting the words " a registration fee of ten shillings " and substituting the words " the prescribed registration fee "; (b) in subsection (4),

Miners' Homestead Leases Act Amendment Act 1975, No. 73 799 (i) omitting the words " there shall be payable a registration fee of ten shillings " and substituting the words " the prescribed registration fee shall be payable "; (ii) omitting the words " amounting to two shillings and sixpence " and substituting the words " as prescribed ". 24. Amendment of s. 26. Section 26 of the Principal Act is amended by, in the first paragraph, omitting the words " a fee of ten shillings " and substituting the words " the prescribed fee ". 25. Amendmen t of s. 27. Section 27 of the Principal Act is amended by omitting the words " a fee of ten shillings " and substituting the words " the prescribed fee ". 26. Repeal of s. 28 and new ss. 28 , 28A and 28B. The Principal Act is amended by repealing section 28 and substituting the following sections:- ,, 28. Subdivision of miner ' s homestead . (1) A lessee may apply to the Minister for approval to subdivide his miner's homestead. (2) The application shall be lodged with the warden together with- (a) the prescribed fees; (b) a plan of the land endorsed with the consent of the Local Authority and certified as being correct by an authorised surveyor, exhibiting distinctly delineated the roads, streets, passages, thoroughfares, lanes, pathways, parks, squares or reserves proposed to be appropriated or set apart for public use and the subdivisions into which the land is proposed to be divided marked with distinct numbers or symbols; (c a request for the issue of an instrument of lease in respect of each proposed subdivision; (d) the in§trument of lease of the miner's homestead. (3) The lessee shall endorse on the plan that he agrees to the plan of subdivision. (4) The warden shall forward the application, and all other documents lodged with him, to the Minister. (5) (a) If the Minister approves of the application an instrument of lease shall be issued in respect of each subdivision in the name of the lessee. (b) On issue of the instruments the original instrument shall have no force or effect- and shall be cancelled by the Minister. (6) On approval of the subdivision any right, title or interest the lessee has in the land contained in the roads, streets, passages, thoroughfares, lanes, pathways, parks, squares or reserves

800 Miners ' Homestead Leases Act Amendment Act 1975, No: 73 delineated in the plan as being proposed to be appropriated or set apart for public use shall be extinguished and the land shall be deemed to be surrendered. (7) There shall be noted on the instrument of lease issued in respect of each subdivision a memorial of every mortgage, sublease , easement or other encumbrance or matter affecting the land that is noted on the cancelled instrument and subsisting as at the date of cancellation. (8) The annual rent of each subdivision of a miner's homestead perpetual lease that is subdivided shall be-at the same rate as that reserved under the original lease. (9) The annual rent of each subdivision of a miner's homestead lease that is subdivided shall be- (a) during the balance of the first period of 30 years of the original lease , at the same rate as that reserved under the original lease; (b) after the expiration of that period, ten cents if demanded. (10) Each subdivision of the miner 's homestead may be transferred to a qualified person. 2$A. Surrender of miner ' s homestead. (1) A lessee may at any time on payment of the prescribed fees surrender his interest in a miner 's homestead if and only if- (a) in the case of a surrender- (i) the lessee has, in the opinion of the Minister having regard to the period of the lease that has elapsed reasonably fulfilled the conditions and terms therein required to be observed and performed on his part; and (ii) all sums that have become payable in respect of the lease up to the date of surrender have been paid; (b) in the case of the surrender of part of a miner's homestead, that part is identifiable from the balance of the miner's homestead by reference to a plan and description, certified as being correct by an authorised surveyor, showing the part proposed to be surrendered and endorsed with the consent of the Local Authority. (2) Where part only of a miner's homestead is surrendered the instrument of lease shall be amended by excising that part and otherwise as may be required to conform with this Act and the lease shall continue in respect of the balance of the area. (3) In the case of any surrender of a miner's homestead (in whole or in part) all adjustments between. the Crown and the lessee in respect of the payment of rent, fees or other moneys shall be in the discretion of the Minister who, for this purpose, may demand of the lessee such sums as the Minister specifies and recover the same by action in the Wardens Court as a debt due to the Crown.

Miners ' Homestead Leases Act Amendment Act 1975, No. 73 801 28B. Adding land to miner's bomesteed. (1) A lessee may at any time apply to add Crown land that lies near so as to touch some part of the lessee ' s miner ' s homestead to his miner's homestead. (2) The lessee shall lodge his application to add Crown land with the warden together with a plan and description, certified as being correct by an authorised surveyor, showing the land proposed to be added and endorsed with the consent of the Local Authority and the prescribed fees. (3) The Governor in Council may, on such terms and conditions as he thinks fit, approve of the application. (4) Where the Governor in Council approves that Crown land be added to a miner's homestead the instrument of lease shall be amended to show the area of land added and otherwise as may be required to conform with this Act and the lease shall continue in respect of the area of the miner's homestead together with the area added.". 27. Amendmen t of s. 29. Section 29 of the Principal Act is amended by- (a) in subsection ( 3), in the last paragraph, (i) omitting the words " there shall be payable a registration fee of five shillings " and substituting the words " the prescribed registration fee shall be payable,"; (ii) omitting the words " amounting to two shillings and sixpence " and substituting the words " as prescribed "; (b) in subsection (4), (i) omitting the words " there shall be payable a registration fee of five shillings " and substituting the words " the prescribed registration fee shall be payable "; (ii) omitting the words " amounting to two shillings and sixpence " and substituting the words " as prescribed "; (c) in subsection ( 7), omitting the words " fee of ten shillings " and substituting the words " prescribed fee ". 28. New ss. 29A and 29AA. The Principal Act is amended by inserting after section 29 the following sections:- "29A. ' Provisional and fresh i ts. (I) (a) When- (i) an instrument of lease is lost, mislaid or destroyed; or (ii) the person entitled to possession of such instrument is, for any cause beyond his control, unable to obtain possession of the instrument, the lessee, or a person having knowledge of the circumstances, may make a statutory declaration stating to the best of his knowledge and belief the facts of the case, the name and description of the lessee and the particulars of all mortgages, encumbrances or other matters affecting the land comprised in the lease and the title thereto.

802 diners ' Homestead Leases Act Amendment Act 1975, No. 73 (b) The Minister may, if satisfied as to the truth of the declaration and the bona fi des of the dealing and on payment of the prescribed fees, cause to be issued to the person entitled to possession thereof a provisional instrument of lease which shall be a copy of the original instrument and contain a short form of endorsement showing the devolution of title from the original lessee to the present lessee and particulars of all subsisting mortgages, encumbrances or other matters affecting the land that are endorsed on the original instrument and shall also, unless the Minister otherwise directs, contain a statement of the circumstances under which the provisional instrument was issued. (c) The Minister shall cause to be entered in the appropriate register, a note of the issuing of the provisional instrument, the date of issue and the circumstances under which it was issued. (d) The provisional instrument may be used for all purposes for which the original instrument may have been used and shall be as valid as if it were the original instrument. (e) On issue of the provisional instrument the original instrument shall have no force or effect and shall be deemed to be cancelled. (2) (a) When an instrument of lease has become so mutilated or contains so many endorsements as to render the instrument incapable of bearing, with convenience, any necessary endorsement or further endorsement the Minister may upon lodgment of the instrument with the Under Secretary, Department of Mines, cause to be issued in substitution therefor a new instrument of lease. (b) The new instrument shall be a copy of the original instrument and contain a short form of endorsement showing the devolution of title from the original lessee to the present lessee and particulars of all subsisting mortgages , encumbrances or other matters affecting the land that are endorsed on the original instrument. (c) The new instrument may be used for all purposes for which the original instrument may have been used and shall be as valid as if it were the original instrument. 29 &. Correction of instruments . (1) (a) If it becomes necessary or expedient to correct the instrument of lease of a miner 's homestead by reason that (a) the instrument is defective owing to error in its preparation; (b) from a survey of the miner's homestead, or otherwise, more accurate knowledge has been obtained; (c) facts have appeared or been established since the issue of the instrument that satisfy the Minister that a correction of the instrument should be made, the Governor in Council may, by Order in Council, declare the particulars in respect of which it is intended to correct the instrument. (b) The Order in Council shall be registered in the register kept in the Department of Mines that contains the instrument in question.

Miners' Homestead Leases Act Amendment Act 1975, No. 73 803 (c) When an Order in Council is made under this section the instrument to which it relates shall, subject to any direction in that behalf contained in the Order, be construed and operate as if it had been originally issued as corrected in the particulars declared in the Order. (2) (a) If the Minister is satisfied that consequent upon the making under subsection (1) of an Order in Council the instrument of lease to which the Order relates should be cancelled and a fresh instrument issued in its stead he shall cause notice of his intention to seek cancellation of the instrument to be given to the lessee and to every other person who, to the Minister's knowledge, has an interest in the miner 's homestead concerned. (b) After the expiration of one month from the date of giving the notice the Minister may recommend to the Governor in Council that the instrument be cancelled and a fresh instrument issued in its stead. (c) The Governor in Council, upon such recommendation and if he is satisfied that the provisions of paragraph (a) have been complied with, may cancel the instrument and approve that a fresh instrument be issued in its stead. (3) A fresh instrument of lease issued under this section- (a) shall be as valid as if it were the original instrument and may be used for all purposes for which the original instrument may have been used; and (b) shall be delivered to the person who appears to the Minister to be lawfully entitled to possession thereof. (4) In any proceeding, proof of the making of an Order in Council under this section, whether by proof of the register referred to in subsection (1) or otherwise in a manner acceptable in law, shall be sufficient proof that the Order in Council was duly made.". 29. Amendment of s. 35. Section 35 of the Principal Act is amended bv- (a) in subsections (1) and (2), omitting the words " Principal Act " and substituting the words " Mining Act1968-1974 " in each case; (b) omitting subsection (5). 30. Amendm ent of s. 36. Section 36 of the Principal Act is amended by, in the second paragraph, omitting the words " one hundred pounds " and substituting the expression " $200 ". 31. Amendment of s. 39. Section 39 of the Principal Act is amended by, in the last paragraph omitting the words " a fee amounting to ten shillings " and substituting the words " the prescribed fee ". 32. New s. 39A. The Principal Act is amended by inserting after section 39 the following section:- " 39A. Production of instrument . Where an instrument of lease has been issued for a miner's homestead a dealing, that requires an endorsement to be made on the instrument of lease, in respect of the lease shall not be registered until the instrument of lease is produced.".

804 Miners' Homestead Leases Act Amendment Act 1975, No. 73 33. Repeal of and new s. 40. The Principal Act is amended by repealing section 40 and substituting the following section:- " 40. Regulations . The Governor in Council may make regulations not inconsistent with this Act providing for all purposes whether general or to meet particular cases that in his opinion are convenient for the administration of this Act or are necessary or expedient to achieve the objects and purposes of this Act.".