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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Landholders' Right to Refuse (Gas and
Coal) Bill 2015
No. , 2015
(Senator Waters)
A Bill for an Act to provide Australian landholders
the right to refuse the undertaking of gas and coal
mining activities on their land without prior written
authorisation, to ban hydraulic fracturing, and for
related purposes
No. , 2015
Landholders' Right to Refuse (Gas and Coal) Bill 2015
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Simplified outline of this Act ............................................................. 2
4
Definitions ......................................................................................... 2
5
Meaning of ownership interest .......................................................... 4
6
Act binds the Crown .......................................................................... 4
7
Extension to external Territories ........................................................ 4
8
Relationship to State and Territory laws ............................................ 4
Part 2--Gas or coal mining
5
Division 1--Gas or coal mining without prior written
authorisation from landholders is unlawful
5
9
Application of this Division ............................................................... 5
10
Gas or coal mining without prior written authorisation from
landholders is unlawful ...................................................................... 5
11
Action for gas or coal mining without prior written
authorisation from landholders .......................................................... 6
Division 2--Prior written authorisations for gas or coal mining
7
12
Obtaining prior written authorisation ................................................. 7
Division 3--Remedies
9
13
Remedies in actions for gas or coal mining on without prior
written authorisation .......................................................................... 9
Part 3--Hydraulic fracturing operations ban
10
Division 1--Hydraulic fracturing operations ban
10
14
Hydraulic fracturing operations by constitutional corporation
is unlawful ....................................................................................... 10
Division 2--Injunctions
11
15
Injunctions for contravention of hydraulic fracturing ban ............... 11
16
Discharge of injunctions .................................................................. 13
17
Certain considerations for granting injunctions not relevant ........... 13
18
Powers conferred are in addition to other powers of the
Court ................................................................................................ 14
Division 3--Civil penalties
15
Subdivision A--Obtaining an order for a civil penalty
15
19
Federal Court may order person to pay pecuniary penalty for
contravening civil penalty provision ................................................ 15
ii
Landholders' Right to Refuse (Gas and Coal) Bill 2015
No. , 2015
20
Contravening a civil penalty provision is not an offence ................. 15
21
Recovery of a pecuniary penalty ...................................................... 16
Subdivision B--Civil penalty proceedings and criminal
proceedings
16
22
Civil proceedings after criminal proceedings .................................. 16
23
Criminal proceedings during civil proceedings ............................... 16
24
Criminal proceedings after civil proceedings .................................. 16
25
Evidence given in proceedings for penalty not admissible in
criminal proceedings ........................................................................ 17
Subdivision C--Miscellaneous
17
26
Persons involved in contravening civil penalty provision ............... 17
27
Civil penalty provisions contravened by employees, agents
or officers ......................................................................................... 18
Part 4--Miscellaneous
19
28
Application of this Act to joint ventures and partnerships ............... 19
29
Regulations ...................................................................................... 19
No. , 2015
Landholders' Right to Refuse (Gas and Coal) Bill 2015
1
A Bill for an Act to provide Australian landholders
1
the right to refuse the undertaking of gas and coal
2
mining activities on their land without prior written
3
authorisation, to ban hydraulic fracturing, and for
4
related purposes
5
The Parliament of Australia enacts:
6
Part 1--Preliminary
7
8
1 Short title
9
This Act may be cited as the Landholders' Right to Refuse (Gas
10
and Coal) Act 2015.
11
Part 1 Preliminary
Section 2
2
Landholders' Right to Refuse (Gas and Coal) Bill 2015
No. , 2015
2 Commencement
1
This Act commences on the day after this Act receives the Royal
2
Assent.
3
3 Simplified outline of this Act
4
This Act:
5
(a)
gives Australian landholders the right to refuse mining
6
companies access to their land to engage in gas or coal
7
mining activity; and
8
(b)
bans hydraulic fracturing operations by constitutional
9
corporations.
10
It is an offence for a constitutional corporation to conduct gas or
11
coal mining operations, or enter or remain on land to do so, without
12
the prior written authorisation of each person with an ownership
13
interest in the land. The prior authorisation must contain certain
14
information and is invalid if the corporation does not advise the
15
person of their right to refuse authorisation.
16
A person with an ownership interest in the land may also take
17
action against the corporation if they fail to obtain their
18
authorisation.
19
It is a contravention of a civil penalty provision if a constitutional
20
corporation engages in hydraulic fracturing operations.
21
Persons with an interest affected by any hydraulic fracturing
22
operations may apply for an injunction to stop a constitutional
23
corporation from engaging in the operations, or the Environment
24
Minister may apply to the Federal Court for an order that the
25
corporation pay a pecuniary penalty.
26
4 Definitions
27
In this Act:
28
Preliminary Part 1
Section 4
No. , 2015
Landholders' Right to Refuse (Gas and Coal) Bill 2015
3
civil penalty provision: a subsection of this Act (or a section of this
1
Act that is not divided into subsections) is a civil penalty provision
2
if:
3
(a) the subsection (or section) sets out at its foot a pecuniary
4
penalty, or penalties, indicated by the words "Civil penalty";
5
or
6
(b) another provision of this Act provides that the subsection (or
7
section) is a civil penalty provision.
8
constitutional corporation means a corporation to which
9
paragraph 51(xx) of the Constitution applies.
10
court means the Federal Court of Australia.
11
Environment Minister means the Minister who administers the
12
Environment Protection and Biodiversity Conservation Act 1999.
13
gas or coal means:
14
(a) coal; or
15
(b) coal seam gas; or
16
(c) shale gas; or
17
(d) tight gas.
18
gas or coal mining activity includes any activity undertaken for the
19
purpose of:
20
(a) exploring for gas or coal; or
21
(b) mining or producing gas or coal (including underground coal
22
gasification).
23
hydraulic fracturing operations means any operations that involve
24
the recovery (or the potential or enhanced recovery) of coal seam
25
gas, shale gas or tight gas by the high-pressure injection of fluid
26
into a wellbore to create fractures, or enlarge existing fractures, in
27
geological formations.
28
land includes:
29
(a) land within the beds and banks of streams, watercourses and
30
inundated land; and
31
(b) waters in, upon and above land; and
32
(c) subterranean land.
33
Part 1 Preliminary
Section 5
4
Landholders' Right to Refuse (Gas and Coal) Bill 2015
No. , 2015
ownership interest has the meaning given by section 5.
1
prior written authorisation means an authorisation given under
2
section 12 that has not expired.
3
5 Meaning of ownership interest
4
(1) A person has an ownership interest in land if the person has a legal
5
or equitable interest in it or a right to occupy it.
6
(2) Despite subsection (1), a person does not have an ownership
7
interest in land if the interest or right in the land arises as a result of
8
a right granted under a law of the Commonwealth, a State or a
9
Territory to engage in gas or coal mining activities.
10
6 Act binds the Crown
11
This Act binds the Crown in each of its capacities.
12
7 Extension to external Territories
13
This Act extends to every external Territory.
14
8 Relationship to State and Territory laws
15
This Act is not intended to exclude or limit the operation of any
16
law of a State or Territory, to the extent that that law is capable of
17
operating concurrently with this Act.
18
Gas or coal mining Part 2
Gas or coal mining without prior written authorisation from landholders is unlawful
Division 1
Section 9
No. , 2015
Landholders' Right to Refuse (Gas and Coal) Bill 2015
5
Part 2--Gas or coal mining
1
Division 1--Gas or coal mining without prior written
2
authorisation from landholders is unlawful
3
9 Application of this Division
4
(1) This Division applies in relation to any gas or coal mining activity
5
engaged in by a constitutional corporation on, or in relation to, land
6
on or after the day this section commences.
7
(2) Despite subsection (1), this Division does not apply in relation to a
8
gas or coal mining activity engaged in by a constitutional
9
corporation on, or in relation to, particular land after the day this
10
section commences if:
11
(a) the activity is for the purpose of exploring for gas or coal;
12
and
13
(b) the constitutional corporation commenced exploring for gas
14
or coal on, or in relation to, the land before the day this
15
section commences.
16
(3) Despite subsection (1), this Division does not apply in relation to a
17
gas or coal mining activity engaged in by a constitutional
18
corporation on, or in relation to, particular land after the day this
19
section commences if:
20
(a) the activity is for the purpose of mining or producing gas or
21
coal; and
22
(b) the constitutional corporation commenced mining or
23
producing gas or coal on, or in relation to, the land before the
24
day this section commences.
25
10 Gas or coal mining without prior written authorisation from
26
landholders is unlawful
27
(1) A constitutional corporation commits an offence if:
28
(a) the corporation:
29
Part 2 Gas or coal mining
Division 1 Gas or coal mining without prior written authorisation from landholders is
unlawful
Section 11
6
Landholders' Right to Refuse (Gas and Coal) Bill 2015
No. , 2015
(i) enters, or remains on, land for the purposes of engaging
1
in a gas or coal mining activity; or
2
(ii) engages in a gas or coal mining activity on, or in
3
relation to, land; and
4
(b) the corporation does not have an ownership interest in the
5
land.
6
Penalty: 5,000 penalty units.
7
(2) A constitutional corporation that contravenes subsection (1)
8
commits a separate offence in relation to each day (including a day
9
of conviction for the offence or any later day) during which the
10
contravention continues.
11
(3) Subsection (1) does not apply if the corporation has a prior written
12
authorisation from each person with an ownership interest in the
13
land to engage in the gas or coal mining activity on, or in relation
14
to, the land.
15
Note:
A defendant bears an evidential burden in relation to the matter in
16
subsection (3): see subsection 13.3(3) of the Criminal Code.
17
11 Action for gas or coal mining without prior written authorisation
18
from landholders
19
(1) A person (a landholder) with an ownership interest in land may
20
bring an action against another person if:
21
(a) the other person is a constitutional corporation; and
22
(b) the other person:
23
(i) enters, or remains on, the land for the purpose of
24
engaging in a gas or coal mining activity; or
25
(ii) engages in a gas or coal mining activity on, or in
26
relation to, the land; and
27
(c) the other person does not have a prior written authorisation
28
from the landholder to engage in the gas or coal mining
29
activity on, or in relation to, the land.
30
(2) An action under subsection (1) may be commenced by the
31
landholder at any time within 6 years after the day on which the
32
cause of action accrued.
33
Gas or coal mining Part 2
Prior written authorisations for gas or coal mining Division 2
Section 12
No. , 2015
Landholders' Right to Refuse (Gas and Coal) Bill 2015
7
Division 2--Prior written authorisations for gas or coal
1
mining
2
12 Obtaining prior written authorisation
3
(1) A constitutional corporation wishing to enter, or remain on, land to
4
engage in a gas or coal mining activity may apply to a person with
5
an ownership interest in the land for an authorisation (a prior
6
written authorisation) to engage in that activity on that land.
7
Note:
If more than one person has an ownership interest in the land, the
8
constitutional corporation must obtain a prior written authorisation
9
from each of them to avoid an action under section 11.
10
(2) A prior written authorisation must contain the following
11
information:
12
(a) the names and details of the parties to the authorisation;
13
(b) the land to which the authorisation relates;
14
(c) the gas or coal mining activity proposed to be undertaken by
15
the constitutional corporation in relation to the land;
16
(d) when and where the activity is proposed to be engaged in;
17
(e) an independent assessment of the current and future risks
18
associated with the proposed gas or coal mining activity on,
19
or affecting, the land and any associated groundwater
20
systems;
21
(f) the date the authorisation has effect and its expiry date;
22
(g) any other information prescribed by the regulations.
23
(3) A prior written authorisation is invalid unless:
24
(a) the authorisation contains the information required by
25
subsection (2); and
26
(b) the authorisation is in writing; and
27
(c) the person with the ownership interest in the land (the
28
landholder) has been advised, in writing, by the
29
constitutional corporation that is a party to the authorisation,
30
that the landholder:
31
(i) may refuse to sign the authorisation; and
32
Part 2 Gas or coal mining
Division 2 Prior written authorisations for gas or coal mining
Section 12
8
Landholders' Right to Refuse (Gas and Coal) Bill 2015
No. , 2015
(ii) should seek independent advice about the authorisation
1
before signing it; and
2
(d) the authorisation is signed and dated by the landholder.
3
Gas or coal mining Part 2
Remedies Division 3
Section 13
No. , 2015
Landholders' Right to Refuse (Gas and Coal) Bill 2015
9
Division 3--Remedies
1
13 Remedies in actions for gas or coal mining on without prior
2
written authorisation
3
(1) Without limiting the relief that a court may grant to a person (the
4
plaintiff) in an action under section 11 (gas or coal mining without
5
a prior written authorisation), the relief may include an injunction
6
(including an interim injunction).
7
(2) The court must order that all costs incurred by a person
8
commencing an action under this Part are to be paid by the
9
defendant to the action unless the court considers that:
10
(a) the person instituted the action vexatiously or without
11
reasonable cause; or
12
(b) it would be unreasonable, in all the circumstances, to do so.
13
(3) The court may discharge or vary an injunction or other order made
14
under this section.
15
Part 3 Hydraulic fracturing operations ban
Division 1 Hydraulic fracturing operations ban
Section 14
10
Landholders' Right to Refuse (Gas and Coal) Bill 2015
No. , 2015
Part 3--Hydraulic fracturing operations ban
1
Division 1--Hydraulic fracturing operations ban
2
14 Hydraulic fracturing operations by constitutional corporation is
3
unlawful
4
A constitutional corporation must not engage in hydraulic
5
fracturing operations.
6
Civil penalty:
50,000 penalty units.
7
Hydraulic fracturing operations ban Part 3
Injunctions Division 2
Section 15
No. , 2015
Landholders' Right to Refuse (Gas and Coal) Bill 2015
11
Division 2--Injunctions
1
15 Injunctions for contravention of hydraulic fracturing ban
2
Applications for injunctions
3
(1) If a person has engaged, engages or proposes to engage in conduct
4
consisting of an act or omission that constitutes a contravention of
5
section 14:
6
(a) the Environment Minister; or
7
(b) an interested person (other than an unincorporated
8
organisation); or
9
(c) a person acting on behalf of an unincorporated organisation
10
that is an interested person;
11
may apply to the Federal Court for an injunction.
12
Prohibitory injunctions
13
(2) If a person has engaged, is engaging or is proposing to engage in
14
conduct constituting an offence or other contravention of section
15
14, the Court may grant an injunction restraining the person from
16
engaging in the conduct.
17
Additional orders with prohibitory injunctions
18
(3) If the court grants an injunction restraining a person from engaging
19
in conduct and in the Court's opinion it is desirable to do so, the
20
Court may make an order requiring the person to do something
21
(including repair or mitigate damage to the environment).
22
Mandatory injunctions
23
(4) If a person has refused or failed, or is refusing or failing, or is
24
proposing to refuse or fail to do an act, and the refusal or failure
25
did, does or would constitute an offence or other contravention of
26
section 14, the Court may grant an injunction requiring the person
27
to do the act.
28
Part 3 Hydraulic fracturing operations ban
Division 2 Injunctions
Section 15
12
Landholders' Right to Refuse (Gas and Coal) Bill 2015
No. , 2015
Interim injunctions
1
(5) Before deciding an application for an injunction under this section,
2
the Court may grant an interim injunction:
3
(a) restraining a person from engaging in conduct; or
4
(b) requiring a person to do an act.
5
Meaning of interested person--individuals
6
(6) For the purposes of an application for an injunction relating to
7
conduct or proposed conduct, an individual is an interested person
8
if the individual is an Australian citizen or ordinarily resident in
9
Australia or an external Territory, and:
10
(a) the individual's interests have been, are or would be affected
11
by the conduct or proposed conduct; or
12
(b) the individual engaged in a series of activities for protection
13
or conservation of, or research into, the environment at any
14
time in the 2 years immediately before:
15
(i) the conduct; or
16
(ii) in the case of proposed conduct--making the
17
application for the injunction.
18
Meaning of interested person--organisations
19
(7) For the purposes of an application for an injunction relating to
20
conduct or proposed conduct, an organisation (whether
21
incorporated or not) is an interested person if it is incorporated (or
22
was otherwise established) in Australia or an external Territory and
23
one or more of the following conditions are met:
24
(a) the organisation's interests have been, are or would be
25
affected by the conduct or proposed conduct;
26
(b) if the application relates to conduct--at any time during the 2
27
years immediately before the conduct:
28
(i) the organisation's objects or purposes included the
29
protection or conservation of, or research into, the
30
environment; and
31
(ii) the organisation engaged in a series of activities related
32
to the protection or conservation of, or research into, the
33
environment;
34
Hydraulic fracturing operations ban Part 3
Injunctions Division 2
Section 16
No. , 2015
Landholders' Right to Refuse (Gas and Coal) Bill 2015
13
(c) if the application relates to proposed conduct--at any time
1
during the 2 years immediately before the making of the
2
application:
3
(i) the organisation's objects or purposes included the
4
protection or conservation of, or research into, the
5
environment; and
6
(ii) the organisation engaged in a series of activities related
7
to the protection or conservation of, or research into, the
8
environment.
9
16 Discharge of injunctions
10
On application, the Federal Court may discharge or vary an
11
injunction.
12
17 Certain considerations for granting injunctions not relevant
13
Prohibitory injunctions
14
(1) The Federal Court may grant an injunction restraining a person
15
from engaging in conduct:
16
(a) whether or not it appears to the Court that the person intends
17
to engage again, or to continue to engage, in conduct of that
18
kind; and
19
(b) whether or not the person has previously engaged in conduct
20
of that kind; and
21
(c) whether or not there is a significant risk of injury or damage
22
to human beings or the environment if the person engages, or
23
continues to engage, in conduct of that kind.
24
Mandatory injunctions
25
(2) The Federal Court may grant an injunction requiring a person to do
26
a particular act or thing:
27
(a) whether or not it appears to the Court that the person intends
28
to refuse or fail again, or to continue to refuse or fail, to do
29
the act or thing; and
30
(b) whether or not the person has previously refused or failed to
31
do the act or thing; and
32
Part 3 Hydraulic fracturing operations ban
Division 2 Injunctions
Section 18
14
Landholders' Right to Refuse (Gas and Coal) Bill 2015
No. , 2015
(c) whether or not there is a significant risk of injury or damage
1
to human beings or the environment if the person refuses or
2
fails, or continues to refuse or fail, to do the act or thing.
3
18 Powers conferred are in addition to other powers of the Court
4
The powers conferred on the Federal Court by this Division are in
5
addition to (and do not limit) any other powers of the Court.
6
Hydraulic fracturing operations ban Part 3
Civil penalties Division 3
Section 19
No. , 2015
Landholders' Right to Refuse (Gas and Coal) Bill 2015
15
Division 3--Civil penalties
1
Subdivision A--Obtaining an order for a civil penalty
2
19 Federal Court may order person to pay pecuniary penalty for
3
contravening civil penalty provision
4
Application for order
5
(1) Within 6 years of a person (the wrongdoer) contravening a civil
6
penalty provision, the Environment Minister may apply on behalf
7
of the Commonwealth to the Federal Court for an order that the
8
wrongdoer pay the Commonwealth a pecuniary penalty.
9
Court may order wrongdoer to pay pecuniary penalty
10
(2) If the Court is satisfied that the wrongdoer has contravened a civil
11
penalty provision, the Court may order the wrongdoer to pay to the
12
Commonwealth for each contravention the pecuniary penalty that
13
the Court determines is appropriate (but not more than the relevant
14
amount specified for the provision).
15
Determining amount of pecuniary penalty
16
(3) In determining the pecuniary penalty, the Court must have regard
17
to all relevant matters, including:
18
(a) the nature and extent of the contravention; and
19
(b) the nature and extent of any loss or damage suffered as a
20
result of the contravention; and
21
(c) the circumstances in which the contravention took place; and
22
(d) whether the person has previously been found by a court
23
(including a court in a foreign country) to have engaged in
24
any similar conduct.
25
20 Contravening a civil penalty provision is not an offence
26
A contravention of a civil penalty provision is not an offence.
27
Part 3 Hydraulic fracturing operations ban
Division 3 Civil penalties
Section 21
16
Landholders' Right to Refuse (Gas and Coal) Bill 2015
No. , 2015
21 Recovery of a pecuniary penalty
1
If the Federal Court orders a person to pay a pecuniary penalty:
2
(a) the penalty is payable to the Commonwealth; and
3
(b) the Commonwealth may enforce the order as if it were a
4
judgment of the Court.
5
Subdivision B--Civil penalty proceedings and criminal
6
proceedings
7
22 Civil proceedings after criminal proceedings
8
The Federal Court must not make a pecuniary penalty order against
9
a person for a contravention of a civil penalty provision if the
10
person has been convicted of an offence constituted by conduct
11
that is substantially the same as the conduct constituting the
12
contravention.
13
23 Criminal proceedings during civil proceedings
14
(1) Proceedings for a pecuniary penalty order against a person for a
15
contravention of a civil penalty provision are stayed if:
16
(a) criminal proceedings are started or have already been started
17
against the person for an offence; and
18
(b) the offence is constituted by conduct that is substantially the
19
same as the conduct alleged to constitute the contravention.
20
(2) The proceedings for the order may be resumed if the person is not
21
convicted of the offence. Otherwise, the proceedings for the order
22
are dismissed.
23
24 Criminal proceedings after civil proceedings
24
Criminal proceedings may be started against a person for conduct
25
that is substantially the same as conduct constituting a
26
contravention of a civil penalty provision regardless of whether a
27
pecuniary penalty order has been made against the person.
28
Hydraulic fracturing operations ban Part 3
Civil penalties Division 3
Section 25
No. , 2015
Landholders' Right to Refuse (Gas and Coal) Bill 2015
17
25 Evidence given in proceedings for penalty not admissible in
1
criminal proceedings
2
(1) Evidence of information given or evidence of production of
3
documents by an individual is not admissible in criminal
4
proceedings against the individual if:
5
(a) the individual previously gave the evidence or produced the
6
documents in proceedings for a pecuniary penalty order
7
against the individual for a contravention of a civil penalty
8
provision (whether or not the order was made); and
9
(b) the conduct alleged to constitute the offence is substantially
10
the same as the conduct that was claimed to constitute the
11
contravention.
12
(2) However, subsection (1) does not apply to a criminal proceeding in
13
respect of the falsity of the evidence given by the individual in the
14
proceedings for the pecuniary penalty order.
15
Subdivision C--Miscellaneous
16
26 Persons involved in contravening civil penalty provision
17
(1) A person must not:
18
(a) aid, abet, counsel or procure a contravention of a civil
19
penalty provision; or
20
(b) induce (by threats, promises or otherwise) a contravention of
21
a civil penalty provision; or
22
(c) be in any way directly or indirectly knowingly concerned in,
23
or party to, a contravention of a civil penalty provision; or
24
(d) conspire to contravene a civil penalty provision.
25
(2) This Division applies to a person who contravenes subsection (1)
26
in relation to a civil penalty provision as if the person had
27
contravened the provision.
28
Part 3 Hydraulic fracturing operations ban
Division 3 Civil penalties
Section 27
18
Landholders' Right to Refuse (Gas and Coal) Bill 2015
No. , 2015
27 Civil penalty provisions contravened by employees, agents or
1
officers
2
If an element of a civil penalty provision is done by an employee,
3
agent or officer of a constitutional corporation acting within the
4
actual or apparent scope of his or her employment, or within his or
5
her actual or apparent authority, the element must also be attributed
6
to the corporation.
7
Miscellaneous Part 4
Section 28
No. , 2015
Landholders' Right to Refuse (Gas and Coal) Bill 2015
19
Part 4--Miscellaneous
1
2
28 Application of this Act to joint ventures and partnerships
3
(1) This section sets out the way this Act applies to a partnership or
4
joint venture (an entity) that consists of 2 or more constitutional
5
corporations. Those corporations are referred to in this section as
6
the participants.
7
(2) If this Act requires or permits something to be done by a
8
constitutional corporation, the thing may be done by one or more
9
of the participants on behalf of the entity.
10
(3) If a provision of this Act refers to a constitutional corporation
11
bearing any costs, the provision applies as if the provision referred
12
to any of the participants bearing any costs.
13
(4) If a provision of this Act refers to a constitutional corporation
14
doing something, the provision applies as if the provision referred
15
to one or more of the participants doing that thing on behalf of the
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entity.
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(5) If a provision of this Act requires a constitutional corporation to do
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something, or prohibits a constitutional corporation doing
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something, the provision applies as if the reference to the
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constitutional corporation were a reference to each participant.
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29 Regulations
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The Governor-General may make regulations prescribing matters:
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(a) required or permitted by this Act to be prescribed; or
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(b) necessary or convenient to be prescribed for carrying out or
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giving effect to this Act.
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