Mining Amendment Act 2008 (NSW)
An Act to amend the Mining Act 1992 and other legislation to make further provision with respect to prospecting for and mining minerals.
This Act is the Mining Amendment Act 2008.
This Act commences on a day or days to be appointed by proclamation.
The Mining Act 1992 is amended as set out in Schedule 1.
Each Act and instrument set out in Schedule 2 is amended as set out in that Schedule.
The Mining Amendment (Miscellaneous Provisions) Act 2004 is repealed.
This Act is repealed on the day following the day on which all of the provisions of this Act have commenced.
The repeal of this Act does not, because of the operation of section 30 of the Interpretation Act 1987, affect any amendment made by this Act.
(Section 3)
(Repealed)
Omit the subsection. Insert instead:
Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds:
(a) that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,
(b) that the decision-maker reasonably considers that the applicant provided false or misleading information in or in connection with the application,
(c) that the decision-maker considers it appropriate to do so having taken into account the matters required by section 238.
Section 238 specifies additional matters that may be taken into account in deciding whether or not an application should be refused.
Omit section 23 (3). Insert instead:
Without limiting the generality of subsections (1) and (2) or any other provision of this Act, a tender may be refused on any one or more of the following grounds:
(a) that the tenderer (or, in the case of a tenderer that is a corporation, a director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,
(b) that the decision-maker reasonably considers that the tenderer provided false or misleading information in or in connection with an application or any report provided under this Act for or with respect to the tender,
(c) that the decision-maker considers it appropriate to do so having taken into account the matters required by section 238.
Section 238 specifies additional matters that may be taken into account in deciding whether or not an application should be refused.
(Repealed)
Omit sections 29–30. Insert instead:
An exploration licence authorises:
(a) the conduct, in accordance with the conditions of the licence, of prospecting and prospecting operations of a kind determined by the Minister for the purposes of this section by order published in the Gazette, and
(b) any other kinds of prospecting and prospecting operations authorised by the decision-maker.
The holder of an exploration licence may apply in writing to the decision-maker for a variation of the licence to authorise other kinds of prospecting or prospecting operations to be carried out.
An application must:
(a) be made in the approved form and manner (if any), and
(b) contain any information that is prescribed by the regulations, and
(c) be accompanied by the fee (if any) prescribed by the regulations.
The decision-maker may:
(a) vary the licence in accordance with the application and make any variation to the conditions of the licence that the decision-maker considers appropriate, or
(b) refuse the application.
The decision-maker is to give the applicant written notice of the outcome of the application.
Any variation of the licence or conditions of the licence takes effect on the date on which written notice of the variation is served on the applicant or any later date specified in the notice.
The concurrence of the Minister under the National Parks and Wildlife Act 1974 is required to the grant of a mining lease on land within a state conservation area under that Act.
The holder of an exploration licence may, within 30 days (or such longer period as may be prescribed) after being served with written notice of the determination of an application under section 29, apply to the decision-maker for a review of the determination.
An application must:
(a) be made in the approved form and manner (if any), and
(b) contain any information that is prescribed by the regulations, and
(c) be accompanied by the fee (if any) prescribed by the regulations.
The making of an application for review of a determination does not operate to stay the determination.
On a review, the decision-maker may confirm or change the determination.
The decision-maker is to give the applicant written notice of the outcome of the review.
If the decision-maker changes a determination, the changed determination replaces the earlier determination from the date of the written notice.
A decision on a review may not be further reviewed under this section.
(Repealed)
Omit the subsection. Insert instead:
Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds:
(a) that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,
(b) that the decision-maker reasonably considers that the applicant provided false or misleading information in or in connection with the application,
(c) that the decision-maker considers it appropriate to do so having taken into account the matters required by section 238.
Section 238 specifies additional matters that may be taken into account in deciding whether or not an application should be refused.
(Repealed)
Omit sections 47–48. Insert instead:
An assessment lease authorises:
(a) the conduct, in accordance with the conditions of the lease, of prospecting and prospecting operations of a kind determined by the Minister by order under section 29, and
(b) any other kinds of prospecting and prospecting operations authorised by the decision-maker.
The holder of an assessment lease may apply in writing to the decision-maker for a variation of the lease to authorise other kinds of prospecting or prospecting operations to be carried out.
An application must:
(a) be made in the approved form and manner (if any), and
(b) contain any information that is prescribed by the regulations, and
(c) be accompanied by the fee (if any) prescribed by the regulations.
The decision-maker may:
(a) vary the lease in accordance with the application and make any variations to the conditions of the lease that the decision-maker considers appropriate, or
(b) refuse the application.
The decision-maker is to give the applicant written notice of the outcome of any application.
Any variation of the lease or conditions of the lease takes effect on the date on which written notice of the variation is served on the applicant or any later date specified in the notice.
The holder of an assessment lease may, within 30 days (or such longer period as may be prescribed) after being served with written notice of the determination of an application under section 47, apply to the decision-maker for a review of the determination.
An application must:
(a) be made in the approved form and manner (if any), and
(b) contain any information that is prescribed by the regulations, and
(c) be accompanied by the fee (if any) prescribed by the regulations.
The making of an application for review of a determination does not operate to stay the determination.
On a review, the decision-maker may confirm or change the determination.
The decision-maker is to give the applicant written notice of the outcome of any application under this section.
If the decision-maker changes a determination, the changed determination replaces the earlier determination as from the date of the written notice.
A decision on a review may not be further reviewed under this section.
(Repealed)
Omit the subsection. Insert instead:
Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds:
(a) that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,
(b) that the decision-maker reasonably considers that the applicant provided false or misleading information in or in connection with the application or any report provided under this Act for or with respect to the lease,
(c) that the decision-maker considers it appropriate to do so having taken into account the matters required by section 238.
Section 238 specifies additional matters that may be taken into account in deciding whether or not an application should be refused.
(Repealed)
Omit section 64 (3). Insert instead:
Without limiting the generality of subsections (1) and (2) or any other provision of this Act, a tender may be refused on any one or more of the following grounds:
(a) that the tenderer (or, in the case of a tenderer that is a corporation, a director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,
(b) that the decision-maker reasonably considers that the tenderer provided false or misleading information in or in connection with the application,
(c) that the decision-maker considers it appropriate to do so having taken into account the matters required by section 238.
Section 238 specifies additional matters that may be taken into account in deciding whether or not an application should be refused.
(Repealed)
Insert after section 70 (1) (a):
a condition that the holder must comply with a rehabilitation and environmental management plan approved by the Secretary under this Act in carrying out any activities authorised by the lease, or that the holder of a lease is authorised to carry out under this Act (whether in or outside the mining area), and
(Repealed)
Omit section 73 (2). Insert instead:
While a mining lease is in force, the holder of the lease and any person acting as agent or employee of the holder, or delivering goods or providing services to the holder, for the purpose of a requirement of or an activity authorised by the lease may:
(a) for that purpose enter and be on the mining area, and
(b) do anything so authorised or required.
Despite subsection (1), the only prospecting and prospecting operations that a mining lease authorises are:
(a) prospecting and prospecting operations of a kind determined by the Minister by order under section 29, or
(b) any other kinds of prospecting and prospecting operations authorised by the decision-maker.
The holder of the lease may apply in writing to the decision-maker for a variation of the lease or conditions of the lease to authorise other kinds of prospecting or prospecting operations to be carried out.
An application must:
(a) be made in the approved form and manner (if any), and
(b) contain any information that is prescribed by the regulations, and
(c) be accompanied by the fee (if any) prescribed by the regulations.
The decision-maker may:
(a) vary the lease in accordance with the application and make any variations to the conditions of the lease that the decision-maker considers appropriate, or
(b) refuse the application.
The decision-maker is to give the applicant written notice of the outcome of any application under this section.
Any variation of the lease or the conditions of the lease takes effect on the date on which written notice of the variation is served on the applicant or any later date specified in the notice.
In this section:
Insert after section 73:
The holder of a mining lease may, within 30 days (or such longer period as may be prescribed) after being served with written notice of the determination of an application under section 73, apply to the decision-maker for a review of the determination.
An application must:
(a) be made in the approved form and manner (if any), and
(b) contain any information that is prescribed by the regulations, and
(c) be accompanied by the fee (if any) prescribed by the regulations.
The making of an application for review of a determination does not operate to stay the determination.
On a review, the decision-maker may confirm or change the determination.
The decision-maker is to give the applicant written notice of the outcome of the application.
If the decision-maker changes a determination, the changed determination replaces the earlier determination from the date of the written notice.
A decision on a review may not be further reviewed under this section.
(Repealed)
Omit section 114 (2). Insert instead:
Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds:
(a) that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations or a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,
(b) that a person has contravened a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention),
(c) that the decision-maker reasonably considers that the holder of the authority provided false or misleading information in or in connection with the application or any report provided under this Act for or with respect to the authority,
(d) that the decision-maker considers it appropriate to do so having taken into account the matters required by section 238.
Section 238 specifies additional matters that may be taken into account in deciding whether or not an application should be refused.
(Repealed)
Omit sections 120–123. Insert instead:
The holder of an authority may apply for approval of the transfer of the authority to another person.
An application for approval must be lodged with the Secretary, include any information that is prescribed by the regulations and be accompanied by the following:
(a) the application fee prescribed by the regulations,
(b) the consent of the proposed transferee,
(c) in the case of a partial transfer, a plan identifying the area to which the new authority would apply.
After considering an application for approval of the transfer of an authority, the decision-maker may:
(a) approve the transfer in accordance with the application, or
(b) refuse the application.
Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds:
(a) that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,
(b) that the decision-maker reasonably considers that the applicant provided false or misleading information in or in connection with an application,
(c) that the decision-maker considers it appropriate to do so having taken into account the matters required by section 238.
Section 238 specifies additional matters that may be taken into account in deciding whether or not an application should be refused.
An application for the transfer of a mineral owner authority may be approved only:
(a) if the proposed transferee is the owner of the minerals to which the authority relates, or
(b) if the proposed transferee is not the owner, subject to the condition that the transfer does not come into effect until the decision-maker notifies the applicant in writing that the decision-maker is satisfied that the proposed transferee has become the owner.
In approving a full transfer, the decision-maker may, subject to this Act, vary the conditions of the authority or include further conditions in the authority.
In approving a partial transfer, the decision-maker:
(a) may, subject to this Act, vary the conditions of the original authority, and
(b) is to determine the conditions of the new authority.
Without limiting subsection (4) or (5), the decision-maker may vary an authority by adding conditions, including conditions that impose obligations on the transferor or the transferee to rehabilitate land or water affected by mining or prospecting or by associated activities carried out on land that is the subject of the transfer.
The decision-maker is to give the applicant written notice of the outcome of the application.
This section does not affect the operation of section 75V (Approvals etc legislation that must be applied consistently) or 93 (Granting and modification of approval by approval body) of the Environmental Planning and Assessment Act 1979.
If the transfer of an authority has been approved, the transferor or transferee of the authority may, within 3 months after being notified of the approval, apply for registration of the transfer.
Any such application must be:
(a) lodged with the Secretary, and
(b) accompanied by the application fee prescribed by the regulations, and
(c) accompanied by:
(i) in the case of a full transfer—a document signed by the decision-maker and the transferee acknowledging the terms of the authority after the transfer, and
(ii) in the case of a partial transfer—a document signed by the decision-maker and the transferor acknowledging the terms of the original authority after the transfer, and
(iii) in the case of a partial transfer—a document signed by the decision-maker and the transferee acknowledging the terms of the new authority.
On receipt of the application, the Secretary must register the transferee as the holder of the authority or (in the case of a partial transfer) the new authority.
On registration of a full transfer the transferee becomes the holder of the authority and any variation of the authority under this Division takes effect.
On registration of a partial transfer:
(a) the original authority is taken to have been cancelled as to the area of the part transferred, and
(b) an authority over the part transferred is taken to have been granted to the transferee for the period from the date of registration until the date on which the original authority is due to expire and subject to the conditions determined under this Division, and
(c) the transferee becomes the holder of the new authority, and
(d) any variation of the original authority under this Division takes effect.
(Repealed)
Omit section 125 (1) (b). Insert instead:
if the holder of the authority contravenes a provision of this Act or the regulations (whether or not the holder is prosecuted or convicted of any offence arising from the contravention), or
if a person contravenes a condition of the authority (whether or not the person is prosecuted or convicted of any offence arising from the contravention), or
if the decision-maker reasonably considers that the holder of the authority provided false or misleading information in or in connection with an application or any report provided under this Act for or with respect to the authority, or
if the decision-maker considers it appropriate to do so having taken into account the matters required by section 238, or
(Repealed)
Omit “land within an exempted area” and “that area”.
Insert instead “reserved land” and “that land”, respectively.
(Repealed)
Omit “land within an exempted area” and “that area”.
Insert instead “reserved land” and “that land” respectively.
(Repealed)
Omit the section.
(Repealed)
Omit section 190 (2). Insert instead:
Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds:
(a) that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,
(b) that the Secretary reasonably considers that the applicant provided false or misleading information in or in connection with the application,
(c) that the Secretary considers it appropriate to do so having taken into account the matters required by section 238.
Section 238 specifies additional matters that may be taken into account in deciding whether or not an application should be refused.
(Repealed)
Omit section 198 (2). Insert instead:
Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds:
(a) that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations or a condition of the claim (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,
(b) that a person has contravened a condition of the claim (whether or not the person has been prosecuted or convicted of any offence arising from the contravention),
(c) that the Secretary reasonably considers that the holder of the claim provided false or misleading information in or in connection with an application or any report provided under this Act for or with respect to the claim,
(d) that the Secretary considers it appropriate to do so having taken into account the matters required by section 238.
Section 238 specifies additional matters that may be taken into account in deciding whether or not an application should be refused.
(Repealed)
(Repealed)
Omit section 201 (2) and (3). Insert instead:
Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds:
(a) that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,
(b) that the Secretary reasonably considers that the applicant provided false or misleading information in or in connection with an application,
(c) that the Secretary considers it appropriate to do so having taken into account the matters required by section 238.
Section 238 specifies additional matters that may be taken into account in deciding whether or not an application should be refused.
The Secretary may, on transferring a mineral claim, vary the conditions of the claim in such manner as the Secretary may (in accordance with the special conditions) determine.
(Repealed)
Omit section 203 (1) (c). Insert instead:
if the holder of the claim contravenes a provision of this Act or the regulations (whether or not the holder is prosecuted or convicted of any offence arising from the contravention), or
if a person contravenes a condition of the claim (whether or not the holder is prosecuted or convicted of any offence arising from the contravention), or
if the Secretary reasonably considers that the holder of the claim provided false or misleading information in or in connection with an application or any report provided under this Act for or with respect to the claim, or
if the Secretary considers it appropriate to do so having taken into account the matters required by section 238, or
(Repealed)
Omit “an exempted area” from section 223 (1) (c).
Insert instead “reserved land”.
(Repealed)
Omit section 228 (2). Insert instead:
Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds:
(a) that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,
(b) that the Secretary reasonably considers that the applicant provided false or misleading information in or in connection with the application,
(c) that the Secretary considers it appropriate to do so having taken into account the matters required by section 238.
Section 238 specifies additional matters that may be taken into account in deciding whether or not an application should be refused.
(Repealed)
Omit section 233 (1) (b). Insert instead:
if the holder contravenes a provision of this Act or the regulations (whether or not the holder is prosecuted or convicted of any offence arising from the contravention), or
if a person contravenes a condition of the licence (whether or not the holder is prosecuted or convicted of any offence arising from the contravention), or
if the Secretary reasonably considers that the holder of the licence provided false or misleading information in or in connection with an application or any report provided under this Act for or with respect to the licence, or
if the Secretary considers it appropriate to do so having taken into account the matters required by section 238, or
(Repealed)
Omit Divisions 1 and 2 of the Part. Insert instead:
In this Division:
(a) to grant, renew, transfer, suspend or cancel an authorisation, or
(b) to impose conditions on, or vary the conditions of, an authorisation, or
(c) to approve an application to register a mining sublease, or
(d) to approve a rehabilitation and environmental management plan under section 246H.
In making an authorisation decision, the decision-maker is to take into account:
(a) the likely impact on the environment of activities authorised by the authorisation or undertaken in the authorisation area or proposed authorisation area in connection with activities authorised by the authorisation (including any impact outside the authorisation area), and
(b) (Repealed)
(c) any guidelines approved by the Secretary for the purposes of this section.
The decision-maker may:
(a) have studies (including environmental impact studies) carried out or engage persons to provide advice, as the decision-maker considers necessary, to assist in the making of an authorisation decision, and
(b) consider any reports or studies prepared in connection with a relevant decision referred to in subsection (3).
This section does not require the decision-maker:
(a) to consider or assess any matters that have already been, or are to be, considered or assessed by a Minister or public authority in connection with an approval of the Minister or authority, or
(b) to take into account the impact of the uses of any products obtained or derived from the minerals or other things obtained as a result of activities authorised by the authorisation, unless the uses are activities authorised by the authorisation.
(Repealed)
Nothing in this section affects any requirement for an applicant to provide information or documents in connection with an application under this Act.
(Repealed)
If public money is spent under section 238 (2) in having studies carried out or engaging persons to provide advice, the decision-maker may, by written notice, require the relevant person concerned to reimburse the Government, within the time specified in the notice, for the money, or any part of the money, reasonably incurred.
The decision-maker may recover from the relevant person any unpaid amounts specified in the notice as a debt in a court of competent jurisdiction.
Without limiting any other provision of this Act, a condition may be imposed on an authorisation that requires the holder to carry out activities for any one or more of the following purposes:
(a) the conservation of the environment, protection of the environment from harm as a result of activities under the authorisation or the prevention, control or mitigation of any such harm,
(b) the rehabilitation of land or water that is or may be affected by activities under the authorisation,
(c) the afforestation (including for carbon sequestration within the meaning of section 87A of the Conveyancing Act 1919 and related environmental purposes) of any part of the authorisation area that may have been adversely affected by activities under the authorisation,
(d) the offsetting of any such adverse effects by the dedication or conservation of land for a public purpose or the rehabilitation of land or water other than the authorisation area.
However, a condition referred to in subsection (1) (c) may be imposed only at the request of an applicant for, or the holder of, the authorisation.
A condition may be imposed under this section:
(a) whether or not the land or water that is or may be affected by the activities is or has at any time been an authorisation area, and
(b) whether or not the activities were carried out by the current holder of the authorisation, and
(c) whether or not the activities were authorised by the authorisation, and
(d) if the authorisation has been previously wholly or partly transferred, whether or not the activities were carried out under the transferred authority.
A condition relating to land or water outside an authorisation area (including land previously in an authorisation area):
(a) may be imposed only in relation to matters arising, or likely to arise, directly from activities carried out under an authorisation or under section 81, and
(b) may require the provision and management of environmental off-sets related to the matters referred to in paragraph (a), and
(c) may require the monitoring of environmental impacts and the provision of environmental data in relation to the land or water.
A condition may be imposed on the holder of an authorisation in relation to the rehabilitation of land or water affected by activities carried on under an authorisation that has been cancelled or previously carried on without an authorisation, only if the condition is imposed when the authorisation is granted or with the consent of the holder.
A condition imposed under this section may be varied.
A condition may be imposed or varied under this section:
(a) when an authorisation is granted or renewed, or
(b) when a full or partial transfer of an authorisation is approved under this Act, or
(c) when a mineral claim is transferred under this Act, or
(d) at any other time during the term of the authorisation.
A condition imposed or varied under this section takes effect as follows:
(a) in the case of a condition imposed on the grant of an authorisation—when the grant takes effect,
(b) in the case of a condition imposed or varied on the renewal of an authorisation—when the renewal takes effect,
(c) in the case of a condition imposed or varied when a full or partial transfer of an authorisation is approved under this Act—when the transfer is registered under this Act,
(d) in the case of a reporting condition imposed or varied when a mineral claim is transferred under this Act—when the mineral claim is transferred,
(e) in any other case—when written notice of the imposition or variation of the condition is served on the holder of the authorisation or on any later date specified in the notice.
A condition imposed under this section may be revoked at any time by written notice served on the holder of the authorisation.
This section does not affect the operation of section 89K or 115ZH (Approvals etc legislation that must be applied consistently) or 93 (Granting and modification of approval by approval body) of the Environmental Planning and Assessment Act 1979.
A condition may be imposed on an authorisation to require the holder to provide the Secretary with reports detailing any one or more of the following:
(a) the extent to which the conditions of the authorisation, or any provisions of this Act or the regulations applicable to activities under the authorisation, have or have not been complied with,
(b) particulars of any non-compliance with any such conditions or provisions,
(c) the reasons for any such non-compliance,
(d) any action taken, or to be taken, to prevent any recurrence, or to mitigate the effects, of that non-compliance.
A condition imposed under this section (a
A reporting condition may be varied.
A reporting condition may be imposed or varied:
(a) when an authorisation is granted or renewed, or
(b) when a full or partial transfer of an authority is approved under this Act, or
(c) when a mineral claim is transferred under this Act, or
(d) at any other time during the term of an authorisation.
A reporting condition, or a variation to a reporting condition, takes effect as follows:
(a) in the case of a reporting condition imposed when an authorisation is granted—when the grant takes effect,
(b) in the case of a reporting condition imposed or varied when an authorisation is renewed—when the renewal takes effect,
(c) in the case of a reporting condition imposed or varied when a full or partial transfer of an authority is approved under this Act—when the transfer is registered under this Act,
(d) in the case of a reporting condition imposed or varied when a mineral claim is transferred under this Act—when the mineral claim is transferred,
(e) in any other case—when written notice of the imposition or variation of the condition is served on the holder of the authorisation or on any later date specified in the notice.
A reporting condition may be revoked at any time by written notice served on the holder of the authorisation.
A person who provides information or a document in compliance with, or in purported compliance with, a reporting condition is guilty of an offence if the person provides the information or document knowing that it is false or misleading in a material particular.
Maximum penalty:
(a) in the case of a corporation—1,000 penalty units, or
(b) in the case of a natural person—200 penalty units.
A person is not guilty of an offence against subsection (7) in respect of the provision of a document that is false or misleading in a material particular if the person, when providing the document, discloses the manner in which the document is false or misleading.
Any document or information provided under a reporting condition imposed under this Division may be taken into consideration by the Secretary or the Minister and used for the purposes of this Act, including for the purposes of the prosecution of offences under this Act or the regulations.
The Secretary is authorised, despite any other Act or law, to provide a relevant agency with any such document or information.
Any such document or information is required to be provided by the holder of an authorisation, whether or not the document or information might incriminate the holder.
However, information provided by a natural person in compliance with a reporting condition is not admissible in evidence against the person in criminal proceedings (other than proceedings for an offence under section 239C (7)) if the person, when providing the information, objected to the provision of the information on the grounds that it might incriminate him or her.
In this section,
(Repealed)
Omit sections 245 and 246. Insert instead:
If land ceases to be subject to an authorisation, the former holder of the authorisation:
(a) may, within the prescribed period, and
(b) must, if directed to do so by the Minister by written notice served on the person, within the period specified in the notice,
remove from the land mining plant brought onto, or erected on, that land in the course of mining operations carried out under the authorisation.
The Minister may give a direction even though the prescribed period has not expired.
If an item of mining plant is not duly removed under section 245, the Minister may, by order published in the Gazette, declare the item to be forfeited to:
(a) a person whom the Minister is satisfied has a right to the control, use or benefit of the plant, or
(b) if the Minister is not so satisfied, to one of the following as the Minister thinks fit and specifies in the order:
(i) the Crown,
(ii) a landholder on whose land the plant is located.
The Minister is to cause a copy of the forfeiture order to be served on the person to whom the item is forfeited (if the person is not the Crown) and each landholder.
Ownership of the plant vests in the person to whom the item is forfeited, freed and discharged from all other estates and interests in the plant:
(a) when the period for applying under section 246C to the Land and Environment Court for a review of the order expires without an application being made, or
(b) if any such application is made within that period, when the court confirms the order or the application is withdrawn,
whichever occurs first.
A person must not dispose of or otherwise deal with any estate or interest in an item of mining plant that is the subject of a forfeiture order unless ownership of the plant has vested in the person under this Division.
Maximum penalty: 100 penalty units.
The proceeds of any disposal of an item of mining plant forfeited to the Crown under this Division must be paid into the Derelict Mine Sites Fund, after deduction of the following amounts:
(a) the costs of the disposal and of any matter incidental to or connected with the disposal,
(b) the costs of removing from the land concerned any plant remaining unsold after the disposal,
(c) any amount owing in respect of compensation for compensable loss within the meaning of Division 3 of Part 13,
(d) any other amount that the Secretary certifies to be a deductible amount.
If the proceeds of any such disposal are less than the amounts to be deducted, the proceeds are to be applied in or towards meeting those amounts in such manner as the Minister directs.
Before giving a direction under section 245 or making a forfeiture order, in relation to an item of plant on land that has ceased to be subject to an authorisation, the Minister is, if practicable:
(a) to give the holder of the former authorisation and each landholder of the land written notice of the intention to issue the direction or order, and
(b) to take into account any submissions that are received in response to the notice within 21 days after the notice is given.
A failure to comply with subsection (1) does not invalidate a direction or order.
A landholder on whose land an item of mining plant is located that is the subject of a forfeiture order may, within 28 days after a copy of the order is served on the landholder, apply to the Land and Environment Court for a review of the order.
The landholder must serve a copy of the application on the Minister in accordance with the rules under section 332.
The Minister is a party to the review proceedings.
The court may dispose of the application:
(a) by varying or revoking the order, or
(b) by confirming the order.
If the court revokes the order, it may make an order vesting the item of plant in:
(a) a person whom the court is satisfied has a right to the control, use or benefit of the plant, or
(b) if the court is not so satisfied, one of the following, as the court thinks fit:
(i) the Crown,
(ii) a landholder on whose land the plant is located.
The forfeiture of an item of plant under this Division cannot be challenged in any legal proceedings commenced later than 3 months after the forfeiture order is published in the Gazette.
This section has effect despite the provisions of any other Act, but does not apply so as to affect:
(a) any appeal from proceedings commenced within the period of 3 months referred to in subsection (1), or
(b) the operation of section 246C.
A person in whom the ownership of an item of plant vests under this Division is not, because of that vesting, liable to pay compensation or make any other payment to any other person.
The Crown does not incur any liability (including liability for compensation) in respect of any loss or injury suffered by a person because of the operation of or a defect in plant that is forfeited under this Division.
This section does not limit the generality of section 362.
In this section:
In this Division:
A condition may be imposed on an authorisation (other than a mining lease) that the holder must comply with a rehabilitation and environmental management plan approved by the Secretary in carrying out activities authorised by the authorisation (whether inside or outside the authorisation area).
A condition imposed on an authorisation under this section takes effect on the date on which written notice of the condition is served on the holder of the authorisation or on any later date that is specified in the notice.
Section 70 makes it a condition of a mining lease that the holder comply with an approved rehabilitation and environmental management plan. Section 378D makes it an offence not to comply with a condition of an authorisation.
The holder of an authorisation may apply in writing to the Secretary for approval of a rehabilitation and environmental management plan or a variation of a rehabilitation and environmental management plan for the purposes of the authorisation.
The Secretary may grant or refuse the application.
The Secretary may grant an application only if satisfied that the plan or the plan as varied:
(a) describes how activities are to be carried out under the authorisation and how the authorisation area is to be managed after those activities cease, and
(b) addresses any other matters that are prescribed by the regulations, and
(c) is consistent with the conditions of the authorisation, and
(d) is consistent with the guidelines.
Section 238 requires the Secretary to take certain matters into account in deciding whether or not to approve a rehabilitation and environmental management plan.
The Secretary must approve a new plan or a variation of a plan if satisfied that the plan or variation is necessary for compliance with a condition of a licence under the Protection of the Environment Operations Act 1997 or a development consent.
The Secretary may refuse to approve the variation of a rehabilitation and environmental management plan if the Secretary considers that the variation would be more appropriately dealt with by a new plan (because of, for example, the number of changes proposed).
A rehabilitation and environmental management plan remains in force for a period of 7 years commencing on its approval, or such other period, if any, as may be specified by the Secretary in the notice of its approval.
While a plan is still in force the Secretary may, on the written application of the holder of the authorisation and by written notice to the holder, extend the period for which it is in force for such period as the Secretary thinks fit.
If:
(a) an authorisation expires or is cancelled (whether or not at the request of a holder of the authorisation), and
(b) at that time an obligation of the person who was the holder under a condition imposed under section 70 (1) (b) or this Division was not discharged,
the person remains liable to comply with that obligation until it is discharged and is liable to a penalty for any non-compliance as if the authorisation were still in force and the person were still a holder of the authorisation.
The Minister may determine that the person is not subject to:
(a) any particular obligation under this section, or
(b) all the person’s remaining obligations under this section.
A determination under subsection (2) is to be in writing.
If the Secretary refuses an application under this Division, the applicant may, within 2 months after the refusal, apply in writing to the Minister to review the refusal.
In reviewing a refusal, the Minister is to have regard to:
(a) any reasons given by the Secretary for the decision, and
(b) any supporting information that the applicant may submit in relation to the application for review, and
(c) any other information that the Minister considers relevant.
On a review, the Minister:
(a) has all the functions and discretions of the Secretary in respect of the matter that is under review, and
(b) cannot approve a rehabilitation and environmental management plan, or a variation of a plan, other than that for which approval was sought from the Secretary.
The decision of the Minister on a review is taken to be the decision of the Secretary and is to be given effect to accordingly.
An application under this Division must:
(a) be made in the approved form and manner (if any), and
(b) contain any information that is prescribed by the regulations, and
(c) be accompanied by the fee (if any) prescribed by the regulations.
The Secretary or the Minister must cause written notice of his or her decision on an application under this Division to be given to the applicant (including, if the decision is to refuse the application, the reasons for that refusal) within the period prescribed by the regulations.
An application under this Division is taken to have been refused if it has not been determined within the period prescribed by the regulations.
However, this does not preclude the determination of an application after that period expires.
This Division does not affect any other provision of this Act that:
(a) enables an authorisation to be subject to a condition requiring monitoring or reporting, or
(b) relates to functions exercisable by persons for the purpose of auditing compliance with this Act, the regulations or conditions of authorisations.
An audit under this Division is a periodic or particular documented evaluation of prospecting or mining operations (including management practices, systems and plant) for any one or more of the following purposes:
(a) to provide information on compliance or otherwise with obligations under the authorisation or other related legal requirements under this or any other law (including in relation to the protection of the environment from the impacts of, or the rehabilitation of land affected by, activities under the authorisation),
(b) to provide information on compliance or otherwise with codes of practice or policies relevant to the authorisation,
(c) to enable a determination of whether the way activities are being carried out under the authorisation can be improved in order to protect the environment.
The regulations may make provision for or with respect to either or both of the following:
(a) the accreditation of auditors for the purposes of this Division,
(b) the carrying out of audits by auditors.
A condition that requires one or more mandatory audits to be undertaken, to the satisfaction of the Secretary, for any one or more of the purposes referred to in section 246N (a
A mandatory audit condition must specify the purpose or purposes of the audit.
A mandatory audit condition may require any one or more of the following:
(a) appointment of an auditor to undertake the audit,
(b) approval by the Secretary of the auditor before being appointed,
(c) preparation of particular written documentation during the course of the audit,
(d) preparation of an audit report,
(e) production to the Secretary of the audit report.
A mandatory audit condition may also:
(a) specify the format and level of detail required for the audit, or
(b) require the auditor to submit the proposed format and level of detail to the Secretary for approval.
A mandatory audit condition may be varied or revoked by written notice served on the holder of the authorisation.
A condition imposed under this section takes effect on the date on which written notice of the condition is served on the holder of the authorisation or on any later date specified in the notice.
This section does not affect the operation of section 75V (Approvals etc legislation that must be applied consistently) or 93 (Granting and modification of approval by approval body) of the Environmental Planning and Assessment Act 1979.
The audit report for a mandatory audit is taken not to have been duly produced to the Secretary unless it is accompanied by:
(a) a declaration signed by the holder of the authorisation certifying that the holder has not knowingly provided any false or misleading information to the auditor and has provided all relevant information to the auditor, and
(b) a declaration signed by the auditor:
(i) setting out the auditor’s qualifications, and
(ii) certifying that the report is accurate, and that the auditor has not knowingly included any false or misleading information in it or failed to include any relevant information in it.
A person who provides information to an auditor in connection with a mandatory audit, knowing the information to be false or misleading in a material respect, is guilty of an offence.
The holder of an authorisation who fails to provide information to an auditor in connection with a mandatory audit being carried out in relation to the authorisation, knowing the information to be materially relevant to the audit, is guilty of an offence.
An auditor who includes information in an audit report produced to the Secretary in connection with a mandatory audit, knowing the information to be false or misleading in a material respect, is guilty of an offence.
An auditor who fails to provide information in an audit report produced to the Secretary in connection with a mandatory audit, knowing the information to be materially relevant to the audit, is guilty of an offence.
The holder of an authorisation who:
(a) fails to retain any written documentation required to be prepared by the holder in connection with a mandatory audit for a period of at least 5 years after the audit report concerned was produced to the Secretary (or such other period as is prescribed by the regulations), or
(b) fails to produce during that period any such documentation to the Secretary on request,
is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation—1,000 penalty units, or
(b) in the case of a natural person—500 penalty units.
Information must be supplied by a person in connection with a mandatory audit, and this Division applies to any such information that is supplied, whether or not the information might incriminate the person.
Any information in an audit report or other documentation supplied to the Secretary in connection with a mandatory audit may be supplied by the Secretary to, and taken into consideration by, any person who has functions under this Act, the Environmental Planning and Assessment Act 1979 or the environment protection legislation and may be used by that person for the purposes of those laws.
Without limiting subsection (1):
(a) the Secretary is authorised, despite any other Act or law, to provide a relevant agency with any such information, and
(b) any such information is admissible in evidence in any prosecution of the holder of an authorisation for any offence (whether under this Act or otherwise).
In this section,
For the purposes of this Division, a voluntary audit is an audit commissioned or carried out voluntarily, whether or not in relation to activities carried out under an authorisation.
An audit is not voluntary if there is a contemporaneous requirement for a mandatory audit in relation to the same or substantially the same activity or other matter and the audits are to be carried out by the same person.
Documents prepared for the sole purpose of a voluntary audit are protected documents for the purposes of this Act.
The protected documents include the final report of the audit and any documents prepared during the course of the audit for the sole purpose of the audit.
Without affecting the generality of subsection (1) or (2), documents are not protected if they are prepared wholly or partly in connection with monitoring or reporting that is required by any conditions of an authorisation or by a direction under section 240.
A protected document:
(a) is not admissible in evidence against any person in any proceedings connected with the administration or enforcement of this Act, the environment protection legislation or such other legislation, if any, as may be prescribed by the regulations, and
(b) must not be inspected, copied, seized or otherwise obtained by the Department, any authority prescribed by the regulations or by any other person for any purpose connected with such administration or enforcement.
Neither the Department, a prescribed authority nor any other person may, for the purpose referred to in subsection (1) (b), require a person to answer any question or provide any information about the existence of the document or about what it contains.
The onus of establishing that a document is a protected document lies on the person asserting that it is protected.
A court may inspect any document that is claimed to be a protected document for the purpose of determining whether it is or is not a protected document.
The regulations may prescribe procedures for making and determining claims that a document is a protected document.
Documents prepared in relation to a voluntary audit cease to be protected if the person asserting or relying on the protection uses or relies on (or attempts to use or rely on) the whole or any part of one or more of the documents, whether directly or indirectly, in any proceedings connected with the administration or enforcement of this Act, the environment protection legislation or such other legislation, if any, as may be prescribed.
This section does not apply where the person is using or relying on (or attempting to use or rely on) a document for the purpose of establishing that the document is protected.
(Repealed)
Omit Division 1. Insert instead:
Powers may be exercised under this Part for the following purposes:
(a) for determining whether there has been compliance with or a contravention of this Act or the regulations or any authorisation, direction, notice or requirement issued or made under this Act,
(b) for obtaining information or records for purposes connected with the administration of this Act,
(c) generally for administering this Act.
Nothing in this Part:
(a) affects any function under any other Part of this Act or under any other Act, or
(b) limits the conditions that may be attached to an authorisation.
This Division applies whether or not a power of entry under Division 1B is being or has been exercised.
An inspector may, by written notice given to a person, require the person to furnish to the inspector such information or records (or both) as the inspector requires by the notice in connection with any matter relating to the administration of this Act.
The notice must specify the manner in which the information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.
If a record required to be furnished under the notice is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.
The notice may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.
The inspector to whom a record is furnished under the notice may take copies of the record.
An inspector may enter:
(a) any premises at which the inspector reasonably suspects that any prospecting operations, mining operations or mining purposes are being or are about to be carried out—at any time, and
(b) any premises that the inspector reasonably suspects have been, are being or are likely to be affected by prospecting operations, mining operations or a mining purpose—at any time, and
(c) any premises where the inspector reasonably believes that documents that relate to any activity referred to in paragraph (a) or (b) are kept—at any time.
The power to enter premises authorises entry by foot or by means of a motor vehicle or other vehicle, or by an aircraft, or in any other manner.
Entry may be effected with the aid of such police officers or other inspectors as the inspector considers necessary and with the use of reasonable force.
Entry may be effected to any premises with the authority of a search warrant under section 248F.
This Division does not entitle an inspector to enter any part of premises used only for residential purposes without the permission of the occupier or the authority of a search warrant under section 248F.
An inspector may, at any premises lawfully entered, do anything that in the opinion of the inspector is necessary to be done for the purposes of this Part, including (but not limited to) the things specified in subsection (2).
An inspector may do any or all of the following:
(a) examine and inspect any works, plant, vehicle, aircraft or other article,
(b) take and remove samples,
(c) make such examinations, inquiries and tests as the inspector considers necessary,
(d) take such photographs, films, audio, video and other recordings as the inspector considers necessary,
(e) require records to be produced for inspection,
(f) examine and inspect any records,
(g) take extracts from, or a copy of, any records,
(h) seize anything that the inspector has reasonable grounds for believing is connected with an offence against this Act or the regulations,
(i) for the purposes of paragraph (h), direct the occupier of the premises where the thing is seized to retain it at those premises or at another place under the control of the occupier,
(j) do any other thing the inspector is empowered to do under this Part.
The power to seize anything connected with an offence includes a power to seize:
(a) a thing with respect to which the offence has been committed, and
(b) a thing that will afford evidence of the commission of the offence, and
(c) a thing that was used for the purpose of committing the offence.
A reference to any such offence includes a reference to an offence that there are reasonable grounds for believing has been committed.
An inspector may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for the issue of a search warrant if the inspector believes on reasonable grounds that:
(a) a provision of this Act or the regulations is being or has been contravened at any premises, or
(b) there is in or on any premises matter or a thing that is connected with an offence under this Act or the regulations.
An authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 to whom an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an inspector named in the warrant:
(a) to enter the premises, and
(b) to exercise any function of an inspector under this Part.
Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.
In this section:
(a) matter or a thing with respect to which the offence has been committed, or
(b) matter or a thing that will afford evidence of the commission of an offence, or
(c) matter or a thing that was used, or is intended to be used, for the purpose of committing the offence.
A person may accompany an inspector and take all reasonable steps to assist the inspector in the exercise of his or her functions under this Part if the inspector is of the opinion that the person is capable of providing assistance to the inspector in the exercise of those functions.
This section applies for the purpose of enabling an inspector to exercise any of the powers of an inspector under this Part in connection with any premises.
The Secretary may, by written notice given to the owner or occupier of the premises, require the owner or occupier to provide such reasonable assistance and facilities as are specified in the notice within a specified time and in a specified manner.
Assistance and facilities can be required under this section, whether they are of the same kind as, or a different kind from, any prescribed by the regulations.
In the exercise of a power of entering or searching premises under this Part, the inspector must do as little damage as possible.
The Crown is to compensate all interested parties for any damage caused by an inspector in exercising a power under this Part of entering premises (but not any damage caused by the exercise of any other power), unless the occupier obstructed or hindered the inspector in the exercise of the power of entry.
Powers may be exercised under this Division for determining whether there has been compliance with or a contravention of any of the following provisions of this Act:
(a) Division 1 of Part 2 or 378A (in relation to a condition imposed under section 70 (1) (b) or 246G),
(b) section 239C, 240C, 246R or 378A (in relation to a condition imposed under section 239B (1)).
Powers may only be exercised under this Part in relation to a provision referred to in subsection (1) (b) if an inspector reasonably suspects that a failure to comply with, or contravention of, the provision has resulted, or may result, in harm to the environment that:
(a) involves actual or potential harm to the health or safety of human beings or to ecosystems that is not trivial, or
(b) results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $10,000 (or such other amount as is prescribed by the regulations).
Evidence obtained by the use of powers exercised under this Division may be used in respect of offences other than offences referred to in subsection (1).
An inspector may require a person whom the inspector suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required for a purpose to which this Division applies to answer questions in relation to those matters.
The Secretary may, by written notice, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation’s representative for the purpose of answering questions under this section.
Answers given by a person nominated under subsection (2) bind the corporation.
An inspector may, by written notice, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.
The place and time at which a person may be required to attend is to be:
(a) a place or time nominated by the person, or
(b) if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the inspector that is reasonable in the circumstances.
An inspector may cause any questions and answers to questions given under this Division to be recorded if the inspector has informed the person who is to be questioned that the record is to be made.
A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the inspector.
A copy of any such record must be provided by the inspector to the person who is questioned as soon as practicable after it is made.
A record may be made under this section despite the provisions of any other law.
An inspector may require a person whom the inspector suspects on reasonable grounds to have offended or to be offending against a provision referred to in section 248K to state his or her full name and residential address.
An inspector may request a person who is required under this section to state his or her full name and residential address to provide proof of the name and address. It is not an offence under section 248S to fail to comply with any such request.
The maximum penalty for an offence under section 248S in connection with a requirement under this section is 100 penalty units, despite anything to the contrary in that section.
This section applies in addition to the powers of entry to premises conferred by section 248C.
An inspector may enter any other premises at any reasonable time.
Division 1B applies in respect of a power of entry conferred by this section in the same way as it applies to a power of entry conferred by that Division.
In this Division,
Nothing in this Division limits the functions that may be exercised under any other Division of this Part.
An inspector may, for the purposes of this Part, inspect and test any article.
The inspector may, for the purposes of any such inspection or testing:
(a) enter the article, and
(b) enter in accordance with this Act the premises where the article is located, and
(c) operate the article, and
(d) take photographs or video films of the article, and
(e) inspect or test any substance being carried by the article or in any container on the article, and
(f) take a sample of any such substance for testing.
A person who, without lawful excuse, neglects or fails to comply with a requirement made of the person under this Part is guilty of an offence.
A person who wilfully delays or obstructs an inspector in the exercise of the inspector’s powers under this Part is guilty of an offence.
A person who impersonates an inspector is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation—1,000 penalty units and, in the case of a continuing offence, a further penalty of 10 penalty units for each day the offence continues, or
(b) in the case of a natural person—200 penalty units and, in the case of a continuing offence, a further penalty of 5 penalty units for each day the offence continues.
A person is not guilty of an offence of failing to comply with a requirement under this Part to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence.
A person is not excused from a requirement under this Part to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.
However, any information furnished or answer given by a natural person in compliance with a requirement under this Part is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Part) if:
(a) the person objected at the time to doing so on the ground that it might incriminate the person, or
(b) the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.
Any record furnished by a person in compliance with a requirement under this Part is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.
Further information obtained as a result of a record or information furnished or of an answer given in compliance with a requirement under this Part is not inadmissible on the ground:
(a) that the record or information had to be furnished or the answer had to be given, or
(b) that the record or information furnished or answer given might incriminate the person.
This section extends to a requirement under this Part to state a person’s name and address.
A notice given under this Part may be revoked or varied by a subsequent notice or notices.
A notice may be varied by modification of, or addition to, its terms and specifications.
Without limiting subsection (2), a notice may be varied by extending the time for complying with the notice.
A notice may only be revoked or varied by an inspector (whether or not the inspector who gave the notice).
A notice may be given under this Part to a person in respect of a matter even though the person is outside the State or the matter occurs or is located outside the State, so long as the matter relates to the administration of this Act (including, but not limited to investigation of, or enforcement action relating to, offences against this Act).
(Repealed)
Omit the section. Insert instead:
The Minister may grant a permit to any person to enter any land to enable the person:
(a) to do on that land all such things as are reasonably necessary to comply with a condition under section 239B, or
(b) to carry out work in accordance with a direction in force under section 240, or
(c) to remove any mining plant from any land in accordance with a direction under section 245 or as a result of a disposal of the plant under section 246A.
The holder of a permit under this section, and any employee or agent of the holder, may, in accordance with the permit:
(a) enter the land to which the permit relates, and
(b) do on that land all things that are reasonably necessary to achieve the purpose for which the permit is granted.
(Repealed)
Insert after section 293 (1) (v):
the review of an order issued under section 246 (Forfeiture of mining plant),
(Repealed)
Omit Division 3 of Part 17. Insert instead after Part 17:
A person must not, without reasonable excuse, obstruct, hinder or resist any person in the exercise of a function under this Act.
Maximum penalty: 1,000 penalty units.
A person must not, without reasonable excuse, obstruct or hinder the holder of an authorisation from doing any act that the holder is authorised by this Act to do.
Maximum penalty: 100 penalty units.
A person must not:
(a) in or in connection with an application under this Act, or
(b) in purported compliance with any requirement under this Act (including a condition of an authorisation),
furnish information that the person knows to be false or misleading in a material particular.
Maximum penalty: 500 penalty units.
If a condition of an authorisation is contravened by any person, each holder of the authorisation is guilty of an offence.
Maximum penalty if the condition is of a kind referred to in Part 1 of Schedule 7:
(a) in the case of a corporation—1,000 penalty units and, in the case of a continuing offence, a further penalty of 100 penalty units for each day that the offence continues, or
(b) in the case of a natural person—500 penalty units and, in the case of a continuing offence, a further penalty of 50 penalty units for each day that the offence continues.
Maximum penalty if the condition is not of a kind referred to in Part 1 of Schedule 7:
(a) in the case of a corporation—200 penalty units and, in the case of a continuing offence, a further penalty of 20 penalty units for each day that the offence continues, or
(b) in the case of a natural person—100 penalty units and, in the case of a continuing offence, a further penalty of 10 penalty units for each day that the offence continues.
If a condition of a mining lease, in its application to or in respect of a mining sublease area, is contravened by any person, the holder of the sublease is guilty of an offence.
Maximum penalty if the condition is of a kind referred to in Part 1 of Schedule 7:
(a) in the case of a corporation—1,000 penalty units and, in the case of a continuing offence, a further penalty of 100 penalty units for each day that the offence continues, or
(b) in the case of a natural person—500 penalty units and, in the case of a continuing offence, a further penalty of 50 penalty units for each day that the offence continues.
Maximum penalty if the condition is not of a kind referred to in Part 1 of Schedule 7:
(a) in the case of a corporation—200 penalty units and, in the case of a continuing offence, a further penalty of 20 penalty units for each day that the offence continues, or
(b) in the case of a natural person—100 penalty units and, in the case of a continuing offence, a further penalty of 10 penalty units for each day that the offence continues.
It is a defence to a prosecution of the holder of an authorisation for an offence against section 378D if the holder establishes that:
(a) the contravention of the condition was by, or caused by, another person, and
(b) the other person was not associated with the holder at the time the condition was contravened, and
(c) the holder took all reasonable steps to prevent the contravention of the condition.
A person is associated with the holder for the purposes of subsection (1) (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or subcontractor of the holder, or if the person holds a mining sublease granted by the holder under section 83A.
It is a defence to a prosecution for an offence against section 378D if the defendant satisfies the court that the act or omission constituting the contravention was reasonably necessary in order for the defendant to comply with:
If, after the court finds the offence proved:
(a) the Crown or a public authority has incurred costs and expenses in connection with:
(i) the prevention, control, abatement or mitigation of any harm to the environment caused by the commission of the offence, or
(ii) making good any resulting environmental damage, or
(b) a person (including the Crown and a public authority) has, because of the commission of the offence, suffered loss of or damage to property or has incurred costs and expenses in preventing or mitigating, or in attempting to prevent or mitigate, any such loss or damage,
the Crown, public authority or person may recover from the offender the costs and expenses incurred or the amount of the loss or damage in the Land and Environment Court.
The amount of any such costs and expenses (but not the amount of any such loss or damage) may be recovered as a debt in a court of competent jurisdiction.
However, a person may not recover an amount that would represent the value of minerals owned by that person that the offender had obtained by fossicking, prospecting operations or mining operations carried out with the consent of that person and in or in connection with the offence.
The court may, if it appears to the court that the Crown or a public authority has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the Crown or the authority the costs and expenses so incurred in such amount as is fixed by the order.
An order made by the Land and Environment Court under subsection (1) is enforceable as if it were an order made by the Court in Class 4 proceedings under the Land and Environment Court Act 1979.
An order made by the Local Court under subsection (1) is enforceable as if it were an order made by the court when exercising jurisdiction under the Civil Procedure Act 2005.
In this section:
(a) in taking any sample or conducting any inspection, test, measurement or analysis, or
(b) of transporting, storing or disposing of evidence,
during the investigation of the offence.
The court may order the offender to pay, as an additional penalty for committing the offence, an amount that the court is satisfied, on the balance of probabilities, represents the amount of any monetary benefits acquired by the offender, or accrued or accruing to the offender, as a result of the commission of the offence.
However, in calculating the amount of these monetary benefits, the court is to exclude any monetary benefits acquired in connection with the fossicking or prospecting for, or the mining of, privately owned minerals.
The amount of an additional penalty for an offence is not subject to any maximum amount of penalty provided elsewhere by or under this Act.
In this section:
The court may do any one or more of the following:
(a) order the offender to take specified action to publicise the offence (including the circumstances of the offence) and its consequences and any other orders made against the person,
(b) order the offender to take specified action to notify specified persons or classes of persons of the offence (including the circumstances of the offence) and its consequences and of any orders made against the person (including, for example, the publication in an annual report or any other notice to shareholders of a company or the notification of persons aggrieved or affected by the offender’s conduct),
(c) order the offender to carry out a specified project for the rehabilitation of a current or former authorisation area,
(d) order the offender to carry out an audit of activities carried on by the offender,
(e) order the offender to pay a specified amount to the Derelict Mine Sites Fund for the purposes of a specified project for the rehabilitation of a current or former authorisation area,
(f) order the offender to attend, or to cause an employee or employees or a contractor or contractors of the offender to attend, a training or other course specified by the court,
(g) order the offender to establish, for employees or contractors of the offender, a training course of a kind specified by the court,
(h) order the offender to pay any royalty that is due and payable by the offender under this Act,
(i) if the Secretary is a party to proceedings, order the offender to provide to the Secretary and maintain a security deposit, in a form and amount, and on such terms (if any), specified by the court, if the court orders the offender to carry out a specified work or program for the restoration or enhancement of the environment.
However, the Local Court is not authorised to make an order referred to in paragraph (c), (d), (e) or (i).
The court may, in an order under this section, fix a period for compliance and impose any other requirements the court considers necessary or expedient for enforcement of the order.
If the offender contravenes an order under subsection (1) (a) or (b), the prosecutor or a person authorised by the prosecutor may take action to carry out the order as far as may be practicable, including action to publicise or notify:
(a) the original contravention, its environmental and other consequences, and any other penalties imposed on the offender, and
(b) the contravention of the order.
The reasonable cost of taking action referred to in subsection (3) is recoverable by the prosecutor or person taking the action, in a court of competent jurisdiction, as a debt from the offender.
Sections 242C, 261F and 261G apply with respect to a security deposit provided under an order referred to in subsection (1) (i) as if it were provided under a security deposit condition.
A person who fails to comply with an order under this Division (except an order under section 378ZA, 378ZB or 378ZC) is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation—1,000 penalty units for each day the offence continues, or
(b) in the case of a natural person—500 penalty units for each day the offence continues.
A document signed by the Secretary, or by an officer designated by the Secretary for the purposes of this section, and certifying any one or more of the matters specified in subsection (2) is admissible in any proceedings under this Act and is prima facie evidence of the matters so certified.
The following matters are specified for the purposes of subsection (1):
(a) that an instrument, a copy of which is set out in or annexed to the document, being an instrument purporting:
(i) to be issued, made or given for the purposes of this Act, and
(ii) to have been signed by the person authorised to issue, make or give the instrument, or by another person acting as delegate or on behalf of the person,
was issued, made or given on a specified day,
(b) that a person was or was not, at a specified time or during a specified period, the holder of a specified authorisation or an authorisation of a specified kind,
(c) that specified land was or was not, at a specified time or during a specified period, the subject of a specified authorisation or an authorisation of a specified kind,
(d) that specified land was or was not, at a specified time or during a specified period, a specified authorisation area or part of a specified authorisation area,
(e) that an authorisation was or was not, at a specified time or during a specified period, subject to specified conditions,
(f) that an authorisation was, at a specified time, cancelled or suspended for a specified period or was cancelled or suspended subject to specified conditions,
(g) that a condition was, at a specified time, revoked or varied in a specified manner or that a new condition was, at a specified time, imposed on an authorisation or on the suspension of an authorisation,
(h) that a person was or was not, at a specified time or during a specified period, an inspector or a royalty officer,
(i) that a person was or was not, at a specified time or during a specified period, a member of staff of the Department or a council,
(j) that information required to be furnished pursuant to this Act or the regulations was or was not received,
(k) that a document is a copy of part of, or an extract from, a register kept under this Act,
(l) that a specified amount is payable under this Act or the regulations by a specified person and has not been paid,
(m) that minerals of a specified value were recovered by a specified person or from specified land, at a specified time or during a specified period,
(n) that a specified legal or equitable interest (being a legal or equitable interest of a kind referred to in section 161), mining sublease or colliery holding was or was not registered under this Act,
(o) that the Crown or a public authority has incurred costs or expenses of a specified amount under section 241 or 242B,
(p) that the Crown or a public authority has incurred costs or expenses of a specified amount in connection with the investigation of a specified offence under this Act,
(q) that a specified function under this Act was delegated to a specified person under section 363 during a specified period.
For the purposes of the certification of a matter referred to in subsection (2) (h), the person who appointed the inspector or royalty officer concerned is taken to be an officer designated by the Secretary (as referred to in subsection (1)).
In the absence of information that would enable the accurate determination of an amount payable, as referred to in subsection (2) (l), or the value of minerals, as referred to in subsection (2) (m), the following provisions have effect:
(a) the amount or value certified may be an estimate of that amount or value (based on the information available to the person making the certification),
(b) the estimate is presumed to be accurate and cannot be challenged on the basis that insufficient information was available to enable the making of an accurate determination, but can be challenged by the provision of information that enables a more accurate estimate to be made,
(c) if the estimate is successfully challenged and as a result a more accurate estimate is substituted, no proceedings are open to challenge merely because of the less accurate estimate and proceedings may continue to be heard and be determined on the basis of the substituted estimate.
(Repealed)
Omit “each exempted area” wherever occurring.
Insert instead “any reserved land”.
(Repealed)
Insert at the end of the Schedule with appropriate Part and clause numbers:
In this Part:
Sections 6, 8, and 9, as in force immediately before their repeal by the 2008 Act, continue to apply to a person who, immediately before the repeal, was entitled under section 8 or 9 to prospect for or mine any privately owned minerals or coal.
Sections 20, 39, 60 and 185, as in force immediately before their repeal by the 2008 Act, continue to apply to applications for authorisations over land if, immediately before the repeal of those sections, a person was entitled under section 8 to prospect for or mine any privately owned minerals.
Sections 240 and 240A, as inserted by the 2008 Act, apply to or in respect of activities carried out under section 8 (as continued in force by this clause) in the same way that they apply to or in respect of activities carried out under an authorisation.
Sections 261F–261I, as inserted by the 2008 Act, apply to a security lodged or required to be lodged under section 8 (as continued in force by this clause) in the same way that they apply to or in respect of a security deposit provided under a security deposit condition.
Sections 5 and 6, as inserted by the 2008 Act, do not apply to or in respect of the prospecting, mining or carrying out of mining purposes in the course of prospecting for or mining privately owned minerals by a person referred to in subclause (1).
This clause ceases to apply in respect of a person 12 months after it commences or if the person becomes the holder of an authorisation in respect of the land on which the privately owned minerals or coal are located before the expiry of that period.
Section 6, as inserted by the 2008 Act, does not apply to or in respect of a mining purpose that was carried out, or in the course of construction, immediately before the commencement of that section.
This clause ceases to have effect in relation to a mining purpose on the earlier of the following events:
(a) the end of the period of 5 years following the commencement of section 6,
(b) if the mining purpose is abandoned for a continuous period of 12 months (other than for repair or maintenance).
A regulation in force under section 11A (1) immediately before its substitution by the 2008 Act continues in force and is taken to have been made under that subsection as substituted by the 2008 Act.
An application for an authorisation, or for the transfer or renewal of an authorisation, that was not determined before the commencement of this clause and that complied with this Act, as in force before its amendment by the 2008 Act, is taken to have been duly made under this Act, as amended by the 2008 Act.
Notice is not required to be given of an application referred to in subclause (1) if such notice was not required to be given before the amendment of this Act by the 2008 Act.
Sections 27, 45 and 71, as in force before the substitution of those sections by the 2008 Act, continue to apply to an authority in force immediately before that substitution.
Regulations may be made for or with respect to the following:
(a) the prospecting operations that may be carried out under an authorisation in force immediately before the substitution of section 29 by the 2008 Act,
(b) deeming particular prospecting operations, permitted under existing authorisations, to be the subject of an order by the Minister under section 29, as substituted by the 2008 Act.
This clause applies to a dispute referred to a warden for determination under section 31, 49, 62, 165, 170, 188, 212 or 217 and not determined before the commencement of this clause.
A dispute to which this clause applies is to continue to be dealt with as if the provision of this Act under which it is being dealt with had not been amended by the 2008 Act.
A mining sublease that was registered, or taken to be registered, under section 161 of this Act, and in force, immediately before the commencement of section 163A of this Act must be registered by the sublessee under section 163A not later than 3 months after the commencement of that section.
A mining sublease referred to in subclause (1) ceases to be registered under section 161 on being registered under section 163A or 3 months after the commencement of that section, whichever is the earlier.
A mineral claim over land that is outside a mineral claims district, and that was in force immediately before the commencement of this clause, is taken to be a mining lease over that land.
An application for a mineral claim over land that is outside a mineral claims district that was not determined before the commencement of this clause is taken to be an application for a mining lease under this Act.
The regulations may make provision for or with respect to the application of this Act to a mining lease referred to in subclause (1), and may, for that purpose, modify the application of this Act or the regulations.
Section 227, as amended by the 2008 Act, applies to and in respect of an application for an opal prospecting licence made before the commencement of that amendment in the same way as it applies to and in respect of an application for an opal prospecting licence made on or after that commencement.
Sections 266–267, as inserted by the 2008 Act, apply to and in respect of a mineral claim or opal prospecting licence granted before the commencement of those sections in the same way as they apply to and in respect of a mineral claim or opal prospecting licence granted after that commencement, but do not affect any compensation determined or payable before that commencement in respect of any such mineral claim or opal prospecting licence.
The holder of a mineral claim or opal prospecting licence who, before the commencement of section 266 as substituted by the 2008 Act, had met the requirements of section 266 or 267 (as in force before the substitution) that had to be met in order to be entitled to exercise the rights conferred by the claim or licence is taken, with respect to that claim or licence, to have met the requirements imposed on the holder of an authorisation under section 266.
The provisions of this Act applying to the suspension of an authorisation, as in force before the commencement of this clause, continue to apply to or in respect of an authorisation that was the subject of a suspension immediately before that commencement.
Sections 137, 210B and 234A, as substituted or inserted by the 2008 Act, apply to an authority, mineral claim or opal prospecting licence in force immediately before the section commenced but do not apply to any decision made before that commencement.
A direction given under section 240, and having effect immediately before the substitution of that section by the 2008 Act, continues in force and may be enforced under sections 241 and 242 of this Act, as in force before that substitution.
A direction given under section 245, and having effect immediately before the substitution of that section by the 2008 Act, continues in force and may be enforced under section 246 of this Act, as in force before that substitution.
A condition of an authorisation in force immediately before the commencement of Part 12A of this Act that required a security deposit to be provided is taken to be a condition imposed under that Part and is taken to comply with that Part.
Part 12A applies to a security deposit provided, and not released, under this Act immediately before the commencement of that Part and any such security deposit is taken to comply with that Part.
A condition of an authority of a kind referred to in Division 2 of Part 11 of this Act (before the substitution of that Division by the 2008 Act), and in force immediately before the commencement of this clause, continues to have effect and is taken, on that commencement, to be a condition imposed under section 239B.
Accordingly the condition may be varied or revoked as provided for by that section.
For the purposes of this Act, any such condition is taken to be a condition listed in Part 1 of Schedule 7.
A condition imposed under section 70 (1) (b), as inserted by the 2008 Act, applies to a mining lease in force immediately before the commencement of that provision.
The regulations may provide for the period within which the holder of any such mining lease is required to comply with the condition and may deem existing agreements or arrangements to be rehabilitation and environmental management plans for the purposes of section 70 (1) (b).
Except as provided by this clause and the regulations, a condition imposed on an authority by an amendment made to this Act by the 2008 Act does not apply to an authority in force on the commencement of this clause.
Section 168A, as inserted by the 2008 Act, applies to an authorisation in force immediately before the commencement of that section.
An evidentiary certificate given under section 172 of the Act before its repeal by the 2008 Act is taken to have been given under section 378ZG.
A fee that, immediately before the substitution of section 382A of this Act by the 2008 Act, was a fee determined by the Minister under that section is taken to be the lodgment or application fee prescribed by the regulations for the purposes of the relevant provision of the Act or regulations, until a fee is prescribed by the regulations.
Any decision or other matter referred to a mining registrar before the commencement of this clause and not finally made or otherwise finally dealt with before that commencement is to be made or otherwise dealt with by the Secretary.
Divisions 3 and 4 of Part 17A, as inserted by the 2008 Act, apply to or in respect of offences committed before the commencement of those Divisions but do not apply to or in respect of any proceedings commenced before that commencement.
(Repealed)
Omit “an exempted area” and “
Insert instead “reserved land” and “
(Repealed)
Omit the definition.
(Repealed)
(Section 4)
(Repealed)
Land and Environment Court Act 1979 No 204Insert after section 21 (hc):
proceedings referred to in section 378H (1) (a) of the Mining Act 1992 in relation to offences arising under that Act,
(Repealed)
Petroleum (Onshore) Act 1991 No 84(Repealed)
Omit section 29. Insert instead:
An exploration licence authorises only:
(a) the conduct, on the land comprised in the licence and in accordance with the conditions of the licence, of prospecting of a kind determined by the Minister for the purposes of this section by order published in the Gazette, and
(b) any other kinds of prospecting authorised by the Minister on or after granting the licence.
The holder of an exploration licence may apply in writing to the Minister for a variation of the licence to authorise other kinds of prospecting to be carried out.
An application must:
(a) be made in the approved form and manner (if any), and
(b) contain any information that is prescribed by the regulations, and
(c) be accompanied by the fee (if any) prescribed by the regulations.
The Minister may:
(a) vary the licence in accordance with the application and make any variations to the conditions of the licence that the Minister considers appropriate (including a condition referred to in section 75 or 76), or
(b) refuse the application.
The Minister is to give the applicant written notice of the outcome of the application.
Any variation to the conditions of the licence takes effect on the date on which written notice of the variation is served on the applicant or any later date that is specified in the notice.
Section 74 applies to the Minister’s determination of an application under this section in the same way as it applies to a decision about whether or not to grant a petroleum title.
An applicant for a variation of a licence under section 29 may, within 30 days (or such longer period as may be prescribed) after being served with written notice of the determination of the application, apply to the Minister for a review of the determination.
The making of an application for review of a determination does not operate to stay the determination.
On a review the Minister may confirm or change the determination.
If the Minister changes a determination, the changed determination replaces the earlier determination as from the date of the review.
An application under this section must:
(a) be made in the approved form and manner (if any), and
(b) contain any information prescribed by the regulations, and
(c) be accompanied by the fee (if any) prescribed by the regulations.
The Minister is to give the applicant written notice of the outcome of any application under this section.
A decision on a review may not be further reviewed under this section.
(Repealed)
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