New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Mining Amendment Bill 2008
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Mining Act 1992 No 29 2
4 Amendment of other Acts and instrument 2
5 Repeal of Mining Amendment (Miscellaneous Provisions)
Act 2004 No 75 2
6 Repeal of this Act 2
Schedule 1 Amendment of Mining Act 1992 3
Schedule 2 Amendment of other Acts and instrument 140
b2006-027-07.d21
New South Wales
Mining Amendment Bill 2008
No , 2008
A Bill for
An Act to amend the Mining Act 1992 and other legislation to make further provision
with respect to prospecting for and mining minerals.
Clause 1 Mining Amendment Bill 2008
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Mining Amendment Act 2008. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
3 Amendment of Mining Act 1992 No 29 6
The Mining Act 1992 is amended as set out in Schedule 1. 7
4 Amendment of other Acts and instrument 8
Each Act and instrument set out in Schedule 2 is amended as set out in 9
that Schedule. 10
5 Repeal of Mining Amendment (Miscellaneous Provisions) Act 2004 No 75 11
The Mining Amendment (Miscellaneous Provisions) Act 2004 is 12
repealed. 13
6 Repeal of this Act 14
(1) This Act is repealed on the day following the day on which all of the 15
provisions of this Act have commenced. 16
(2) The repeal of this Act does not, because of the operation of section 30 17
of the Interpretation Act 1987, affect any amendment made by this Act. 18
Page 2
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
Schedule 1 Amendment of Mining Act 1992 1
(Section 3) 2
[1] Section 3A 3
Insert after section 3: 4
3A Objects 5
The objects of this Act are to encourage and facilitate the 6
discovery and development of mineral resources in New South 7
Wales, having regard to the need to encourage ecologically 8
sustainable development, and in particular: 9
(a) to recognise and foster the significant social and economic 10
benefits to New South Wales that result from the efficient 11
development of mineral resources, and 12
(b) to provide an integrated framework for the effective 13
regulation of authorisations for prospecting and mining 14
operations, and 15
(c) to provide a framework for compensation to landholders 16
for loss or damage resulting from such operations, and 17
(d) to ensure an appropriate return to the State from mineral 18
resources, and 19
(e) to require the payment of security to provide for the 20
rehabilitation of mine sites, and 21
(f) to ensure effective rehabilitation of disturbed land and 22
water, and 23
(g) to ensure mineral resources are identified and developed in 24
ways that minimise impacts on the environment. 25
[2] Sections 5 and 6 26
Omit sections 5-9. Insert instead: 27
5 Mining or prospecting without authorisation 28
A person must not prospect for or mine any mineral except in 29
accordance with an authorisation that is in force in respect of that 30
mineral and the land where the prospecting or mining is carried 31
on. 32
Maximum penalty for prospecting in contravention of this 33
section: 200 penalty units, and, in the case of a continuing 34
offence, a further penalty of 50 penalty units for each day that the 35
offence continues. 36
Page 3
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
Maximum penalty for mining in contravention of this section: 1
(a) 1,000 penalty units, in the case of an offence committed by 2
a corporation, or 3
(b) 1,000 penalty units or imprisonment for 5 years, or both, in 4
the case of an offence committed by a natural person, 5
and, in the case of a continuing offence, a further penalty of 50 6
penalty units for each day that the offence continues. 7
6 Unauthorised carrying out of mining purposes 8
(1) A person must not carry out a mining purpose specified for the 9
purposes of this section except in accordance with an 10
authorisation that is in force in respect of the land where the 11
purpose is carried out. 12
Maximum penalty: 13
(a) 1,000 penalty units, in the case of an offence committed by 14
a corporation, or 15
(b) 1,000 penalty units or imprisonment for 5 years, or both, in 16
the case of an offence committed by a natural person, 17
and, in the case of a continuing offence, a further penalty of 50 18
penalty units for each day that the offence continues. 19
(2) The regulations may provide for the exemption, by order of the 20
Minister, of a person or class of persons from the operation of this 21
section with respect to the carrying out of a particular mining 22
purpose, or a class of mining purposes, that is specified for the 23
purposes of this section. 24
(3) The mining purposes specified for the purposes of this section are 25
the following mining related purposes: 26
(a) the construction, maintenance or use of any reservoir, dam 27
(including a tailings dam), drain or water race, other than 28
any reservoir, dam, drain or water race principally used for 29
purposes not connected with mining or any other activities 30
regulated by or under an authorisation, 31
(b) opal puddling, 32
(c) the removal, stockpiling or depositing of overburden, ore 33
or tailings to the extent that it is associated with mineral 34
extraction or mine benefication. 35
Page 4
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[3] Section 10 1
Omit the section. Insert instead: 2
10 Defences to prosecutions under Part 2 3
(1) It is a defence to a prosecution of a person for an offence under 4
section 5 if the person establishes that the person was prospecting 5
for or mining minerals in the course of: 6
(a) fossicking, or 7
Note. Section 12 declares fossicking to be a lawful activity. 8
(b) carrying out an activity in accordance with section 81. 9
(2) It is a defence to a prosecution of a person for an offence under 10
section 6 if the person establishes that the person was carrying out 11
the mining purpose in the course of carrying out an activity in 12
accordance with section 81. 13
(3) It is a defence to the prosecution of a person for an offence under 14
section 5 or 6 if the person establishes that the person was 15
prospecting for or mining minerals, or carrying out the mining 16
purpose: 17
(a) in accordance with rights under an authority or a mineral 18
claim that have devolved on the person by operation of 19
law, and 20
(b) at a time when the person had applied under section 162 or 21
202 to have the person's name recorded as the holder of the 22
authority or mineral claim and the application had not been 23
refused. 24
[4] Section 11A Certain activities taken not to be prospecting or mining 25
Omit section 11A (1). Insert instead: 26
(1) The regulations may declare that, or provide for the declaration 27
by the Minister that, a specified activity is, or a specified class or 28
classes of activities are, not prospecting or mining for the 29
purposes of this Act. 30
[5] Section 11A (2) 31
Omit "regulation". Insert instead "declaration". 32
Page 5
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[6] Section 11A (3) 1
Omit the subsection. Insert instead: 2
(3) Part 14 applies, subject to any modifications necessary to give 3
effect to a declaration under subsection (1) and any modifications 4
prescribed by the regulations: 5
(a) to royalty payable under subsection (2) in the same way as 6
it applies to royalty payable on a mineral recovered under 7
a mining lease, and 8
(b) to the person by whom royalty is payable as if the person 9
were the holder of a mining lease. 10
[7] Sections 12B, 12C and 12D 11
Omit the penalty provisions wherever occurring. Insert instead: 12
Maximum penalty: 13
(a) 1,000 penalty units, in the case of an offence committed by 14
a corporation, or 15
(b) 1,000 penalty units or imprisonment for 5 years, or both, in 16
the case of an offence committed by a natural person. 17
[8] Sections 13-13B 18
Omit section 13. Insert instead: 19
13 Application for exploration licence 20
(1) Any person may apply for an exploration licence. 21
(2) To avoid doubt, the owner of privately owned minerals may 22
apply for an exploration (mineral owner) licence or any other 23
exploration licence with respect to those minerals. 24
Note. The owner of privately owned minerals may choose to apply for an 25
ordinary exploration licence with respect to those minerals, rather than 26
an exploration (mineral owner) licence. In relation to exploration (mineral 27
owner) licences see section 24 (4). 28
(3) An application that relates to land in a mineral allocation area 29
may not be made, except with the Minister's consent, in relation 30
to any group of minerals that includes an allocated mineral. 31
(4) An application for an exploration licence must: 32
(a) specify the group or groups of minerals in respect of which 33
the application is made, and 34
(b) be lodged with the Director-General, and 35
(c) be accompanied by the required information and the 36
application fee prescribed by the regulations, and 37
Page 6
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(d) if the application is for an exploration (mineral owner) 1
licence with respect to privately owned minerals that have 2
more than one owner, be made by all the owners. 3
(5) The required information is as follows: 4
(a) a description, prepared in the approved manner, of the 5
proposed exploration area, 6
(b) particulars of the financial resources and relevant technical 7
advice available to the applicant, 8
(c) particulars of the program of work proposed to be carried 9
out by the applicant in the proposed exploration area, 10
(d) particulars of the estimated amount of money that the 11
applicant proposes to spend on prospecting in that area, 12
(e) if the application is for an exploration (mineral owner) 13
licence, evidence that the minerals to which the application 14
relates are owned by the applicant, 15
(f) any other information that is prescribed by the regulations. 16
(6) If there is more than one applicant for the licence, a reference in 17
subsection (5) to the applicant is a reference to each applicant. 18
13A Notice of application for exploration licence 19
(1) Within 14 days (or such other period as may be prescribed by the 20
regulations) after lodging an application for an exploration 21
licence, the applicant must cause notice of the application to be 22
published in a newspaper circulating generally in the State and in 23
at least one newspaper circulating in the locality of the proposed 24
exploration area. 25
(2) The notice must: 26
(a) state that an application for an exploration licence has been 27
lodged, and 28
(b) contain a plan of the proposed exploration area, and 29
(c) comply with any other requirements that are prescribed by 30
the regulations for the purposes of this subsection. 31
13B Limit on subsequent applications for exploration licences 32
If a person: 33
(a) applies for the grant or renewal of a mineral owner 34
authority in relation to particular land and that application 35
is refused, or 36
(b) was the holder of a mineral owner authority in relation to 37
particular land when that authority was cancelled, 38
Page 7
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
the person may not, within 2 years after that refusal or 1
cancellation, apply for an exploration (mineral owner) licence in 2
relation to that land except with the Minister's consent. 3
[9] Section 14 Invitations for tenders 4
Insert "(other than an exploration (mineral owner) licence)" after "exploration 5
licence" in section 14 (2). 6
[10] Section 15 Tenders 7
Omit "particulars" from section 15 (1) (b). Insert instead "information". 8
[11] Section 15 (1) (c) 9
Omit "appropriate lodgment fee". 10
Insert instead "lodgment fee prescribed by the regulations". 11
[12] Section 15 (2) 12
Omit the subsection. Insert instead: 13
(2) The required information is as follows: 14
(a) particulars of the financial resources and relevant technical 15
advice available to the tenderer, 16
(b) particulars of the program of work proposed to be carried 17
out by the tenderer in the proposed exploration area, 18
(c) particulars of the estimated amount of money that the 19
tenderer proposes to expend on prospecting, 20
(d) any other information that is specified in the tender 21
invitation. 22
[13] Sections 16, 22 (1) and (3), 23 (1) and (2), 34, 38 (1) and (3), 41 (1) and (3), 23
54, 59 (1), 62 (7), 63 (1), (3) and (5), 70 (2) (a), 77 (4), 114 (1), (3), (4) and (7), 24
115 (1), 116 (1) and (2), 117 (2), 125 (1), 128 (1), (2) and (4) and 135 25
Omit "Minister" wherever occurring. Insert instead "decision-maker". 26
[14] Section 17 Exclusion of land from application or tender 27
Omit section 17 (1). Insert instead: 28
(1) The decision-maker may, by order in writing, direct that any part 29
of the land to which an application or tender for an exploration 30
licence relates be excluded from the application or tender. 31
Page 8
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[15] Section 17 (4) 1
Insert after section 17 (3): 2
(4) This section does not apply to an application for an exploration 3
(mineral owner) licence. 4
[16] Section 19 Land subject to authority 5
Omit section 19 (1) (c). Insert instead: 6
(c) the subject of an application for any of the following that 7
was lodged before the application for the firstmentioned 8
exploration licence: 9
(i) an exploration licence that includes a group of 10
minerals in respect of which the firstmentioned 11
exploration licence is sought, 12
(ii) an assessment lease, 13
(iii) a mining lease, 14
(iv) a mineral claim. 15
[17] Section 19 (3) 16
Insert ", unless the decision-maker makes a determination under subsection 17
(4)" after "as the case requires". 18
[18] Section 19 (4) 19
Insert after section 19 (3): 20
(4) The decision-maker may determine that subsection (3) does not 21
apply with respect to the land or to a part of the land if the 22
decision-maker is satisfied that having the land or that part 23
subject to both the licence and the other authorisation concerned 24
is not likely to make the exercise of rights under the licence or the 25
other authorisation impracticable. 26
[19] Section 20 27
Omit the section. 28
[20] Section 22 Power of decision-maker in relation to exploration licence 29
applications 30
Omit section 22 (1) (a). Insert instead: 31
(a) may grant to the applicant an exploration licence over all 32
or part of the land over which a licence was sought, or 33
Page 9
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[21] Section 22 (2) 1
Omit the subsection. Insert instead: 2
(2) Without limiting the generality of subsection (1) or any other 3
provision of this Act, an application may be refused on any one 4
or more of the following grounds: 5
(a) that the applicant (or, in the case of an applicant that is a 6
corporation, a director of the corporation) has contravened 7
this Act or the regulations (whether or not the person has 8
been prosecuted or convicted of any offence arising from 9
the contravention) or has been convicted of any other 10
offence relating to mining or minerals, 11
(b) that the decision-maker reasonably considers that the 12
applicant provided false or misleading information in or in 13
connection with the application, 14
(c) that the decision-maker considers it appropriate to do so 15
having taken into account the matters required by section 16
238. 17
Note. Section 238 specifies additional matters that may be taken into 18
account in deciding whether or not an application should be refused. 19
[22] Section 23 Power of decision-maker in relation to tenders 20
Omit section 23 (3). Insert instead: 21
(3) Without limiting the generality of subsections (1) and (2) or any 22
other provision of this Act, a tender may be refused on any one or 23
more of the following grounds: 24
(a) that the tenderer (or, in the case of a tenderer that is a 25
corporation, a director of the corporation) has contravened 26
this Act or the regulations (whether or not the person has 27
been prosecuted or convicted of any offence arising from 28
the contravention) or has been convicted of any other 29
offence relating to mining or minerals, 30
(b) that the decision-maker reasonably considers that the 31
tenderer provided false or misleading information in or in 32
connection with an application or any report provided 33
under this Act for or with respect to the tender, 34
(c) that the decision-maker considers it appropriate to do so 35
having taken into account the matters required by section 36
238. 37
Note. Section 238 specifies additional matters that may be taken into 38
account in deciding whether or not an application should be refused. 39
Page 10
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[23] Section 24 Land and minerals for which exploration licence may be 1
granted 2
Insert after section 24 (3): 3
(4) However, an exploration (mineral owner) licence may be 4
granted: 5
(a) only in respect of privately owned minerals, and 6
(b) only to the owner of those minerals. 7
[24] Section 25 Shape and dimensions of land over which exploration licence 8
may be granted 9
Omit section 25 (1). Insert instead: 10
(1) The land over which an exploration licence is granted must 11
comply with the regulations in relation to shape and size. 12
[25] Section 25 (3) 13
Omit section 25 (3) and (4). Insert instead: 14
(3) Subsections (1) and (2) do not apply with respect to an 15
exploration (mineral owner) licence. 16
[26] Sections 26 and 27 17
Omit the sections. Insert instead: 18
26 Conditions of exploration licence 19
(1) An exploration licence may be issued subject to conditions or 20
unconditionally. 21
(2) Without limiting the generality of subsection (1), the conditions 22
of an exploration licence may include any of the following: 23
(a) a condition requiring the holder of the licence to pay 24
royalty to the Minister on any minerals recovered under 25
the licence (but only if it is not an exploration (mineral 26
owner) licence), 27
(b) a condition with respect to cores and samples obtained in 28
the course of drilling. 29
(3) Part 14 applies to royalty payable under a condition referred to in 30
subsection (2) (a) in the same way as it applies to royalty payable 31
on a mineral recovered under a mining lease. 32
27 Term of exploration licence 33
An exploration licence: 34
Page 11
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(a) takes effect on the date on which it is granted or on such 1
later date, or on the occurrence of such later event, as the 2
decision-maker may determine, and 3
(b) ceases to have effect on the expiration of: 4
(i) 2 years after the date on which it took effect, in the 5
case of an exploration (mineral owner) licence, or 6
(ii) such period (not exceeding 5 years) as the 7
decision-maker determines, in the case of any other 8
exploration licence. 9
[27] Sections 29 and 30 10
Omit sections 29-30. Insert instead: 11
29 Rights under exploration licence 12
(1) An exploration licence authorises: 13
(a) the conduct, in accordance with the conditions of the 14
licence, of prospecting and prospecting operations of a 15
kind determined by the Minister for the purposes of this 16
section by order published in the Gazette, and 17
(b) any other kinds of prospecting and prospecting operations 18
authorised by the decision-maker. 19
(2) The holder of an exploration licence may apply in writing to the 20
decision-maker for a variation of the licence to authorise other 21
kinds of prospecting or prospecting operations to be carried out. 22
(3) An application must: 23
(a) be made in the approved form and manner (if any), and 24
(b) contain any information that is prescribed by the 25
regulations, and 26
(c) be accompanied by the fee (if any) prescribed by the 27
regulations. 28
(4) The decision-maker may: 29
(a) vary the licence in accordance with the application and 30
make any variation to the conditions of the licence that the 31
decision-maker considers appropriate, or 32
(b) refuse the application. 33
(5) The decision-maker is to give the applicant written notice of the 34
outcome of the application. 35
Page 12
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(6) Any variation of the licence or conditions of the licence takes 1
effect on the date on which written notice of the variation is 2
served on the applicant or any later date specified in the notice. 3
Note. The concurrence of the Minister under the National Parks and 4
Wildlife Act 1974 is required to the grant of a mining lease on land within 5
a state conservation area under that Act. 6
30 Review of determination under section 29 7
(1) The holder of an exploration licence may, within 30 days (or such 8
longer period as may be prescribed) after being served with 9
written notice of the determination of an application under 10
section 29, apply to the decision-maker for a review of the 11
determination. 12
(2) An application must: 13
(a) be made in the approved form and manner (if any), and 14
(b) contain any information that is prescribed by the 15
regulations, and 16
(c) be accompanied by the fee (if any) prescribed by the 17
regulations. 18
(3) The making of an application for review of a determination does 19
not operate to stay the determination. 20
(4) On a review, the decision-maker may confirm or change the 21
determination. 22
(5) The decision-maker is to give the applicant written notice of the 23
outcome of the review. 24
(6) If the decision-maker changes a determination, the changed 25
determination replaces the earlier determination from the date of 26
the written notice. 27
(7) A decision on a review may not be further reviewed under this 28
section. 29
[28] Section 31 Dwelling-houses, gardens and improvements 30
Omit section 31 (4). Insert instead: 31
(4) This section does not apply with respect to a dwelling-house, 32
garden or improvement owned by the holder of the exploration 33
licence or, if the holder is a corporation, by a related corporation. 34
(5) If a dispute arises as to whether or not subsection (1) applies in 35
any particular case, the holder of the licence, the owner of the 36
dwelling-house, garden or improvement or the occupier of the 37
Page 13
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
dwelling-house may apply to a Warden's Court for a 1
determination of the matter. 2
[29] Section 32EA 3
Insert after section 32E: 4
32EA Review of determination under section 32E 5
(1) The Minister must give an applicant under section 32E written 6
notice of the outcome of the application. 7
(2) The holder of a low-impact exploration licence may, within 30 8
days (or such longer period as may be prescribed) after being 9
served with written notice of the determination under section 32E 10
apply to the decision-maker for a review of the determination. 11
(3) An application must: 12
(a) be made in the approved form and manner (if any), and 13
(b) contain any information that is prescribed by the 14
regulations, and 15
(c) be accompanied by the fee (if any) prescribed by the 16
regulations. 17
(4) The making of an application for review of a determination does 18
not operate to stay the determination. 19
(5) On a review, the decision-maker may confirm or change the 20
determination. 21
(6) The decision-maker is to give the applicant written notice of the 22
outcome of the application. 23
(7) If the decision-maker changes a determination, the changed 24
determination replaces the earlier determination as from the date 25
of the written notice. 26
(8) A decision on a review may not be further reviewed under this 27
section. 28
[30] Sections 33-33B 29
Omit section 33. Insert instead: 30
33 Application for assessment lease 31
(1) Any person may apply for an assessment lease. 32
(2) To avoid doubt, the owner of privately owned minerals may 33
apply for an assessment (mineral owner) lease or any other 34
assessment lease with respect to those minerals. 35
Page 14
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
Note. The owner of privately owned minerals may choose to apply for an 1
ordinary assessment lease with respect to those minerals, rather than an 2
assessment (mineral owner) lease. In relation to assessment (mineral 3
owner) leases see section 42 (4). 4
(3) An application that relates to land in a mineral allocation area 5
may not be made in relation to an allocated mineral except: 6
(a) by the holder of an exploration licence or mining lease 7
over that land in respect of that mineral or group of 8
minerals, or 9
(b) with the Minister's consent. 10
(4) An application for an assessment lease must: 11
(a) specify the mineral or minerals in respect of which the 12
application is made, and 13
(b) be lodged with the Director-General, and 14
(c) be accompanied by the required information and the 15
application fee prescribed by the regulations, and 16
(d) if the application is for an assessment (mineral owner) 17
lease with respect to privately owned minerals that have 18
more than one owner, be made by all the owners. 19
(5) The required information is as follows: 20
(a) a description, prepared in the approved manner, of the 21
proposed assessment area, 22
(b) an assessment of the mineral bearing capacity of land in 23
that area and of the extent of any mineral deposits in that 24
land, 25
(c) particulars of the financial resources and technical advice 26
available to the applicant, 27
(d) particulars of the program of work proposed to be carried 28
out by the applicant in the proposed assessment area, 29
(e) particulars of any program of marketing or environmental 30
study proposed to be carried out by the applicant, 31
(f) particulars of the estimated amount of money that the 32
applicant proposes to spend on prospecting in the proposed 33
assessment area, 34
(g) if the application is for an assessment (mineral owner) 35
lease, evidence that the minerals to which the application 36
relates are owned by the applicant, 37
(h) any other information that is prescribed by the regulations. 38
Page 15
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(6) If there is more than one applicant for the lease, a reference in 1
subsection (5) to the applicant is a reference to each applicant. 2
33A Notice of application for assessment lease 3
(1) Within 14 days (or such other period as may be prescribed by the 4
regulations) after lodging an application for an assessment lease, 5
the applicant must cause notice of the application to be published 6
in a newspaper circulating generally in the State and in at least 7
one newspaper circulating in the locality concerned. 8
(2) The notice must: 9
(a) state that an application for an assessment lease has been 10
lodged, and 11
(b) contain a plan of the proposed assessment area, and 12
(c) comply with any other requirements that are prescribed by 13
the regulations for the purposes of this subsection. 14
33B Limit on subsequent applications 15
If a person: 16
(a) applies for the grant or renewal of a mineral owner 17
authority in relation to particular land and that application 18
is refused, or 19
(b) was the holder of a mineral owner authority in relation to 20
particular land when that authority was cancelled, 21
the person may not, within 2 years after that refusal or 22
cancellation, apply for an assessment (mineral owner) lease in 23
relation to that land except with the Minister's consent. 24
[31] Section 35 25
Omit the section. Insert instead: 26
35 Exclusion of land from assessment lease application 27
(1) The decision-maker may, by order in writing, direct that any part 28
of the land to which an application for an assessment lease relates 29
be excluded from the application. 30
(2) A direction takes effect on the date on which written notice of the 31
direction is served on the applicant. 32
(3) This section does not apply to an application for an assessment 33
(mineral owner) lease. 34
Page 16
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[32] Section 37 Land subject to authority 1
Omit section 37 (1) (c). Insert instead: 2
(c) the subject of an application for any of the following that 3
was lodged before the application for the assessment lease: 4
(i) an exploration licence that includes a group of 5
minerals in respect of which the assessment lease is 6
sought, 7
(ii) an assessment lease, 8
(iii) a mining lease, 9
(iv) a mineral claim, 10
[33] Section 37 (3) 11
Insert ", unless the decision-maker makes a determination under subsection 12
(4)" after "case requires". 13
[34] Section 37 (4) 14
Insert after section 37 (3): 15
(4) The decision-maker may determine that subsection (3) does not 16
apply with respect to the land or to a part of the land if the 17
decision-maker is satisfied that having the land or that part 18
subject to both the lease and the other authorisation concerned 19
will not make the exercise of rights under the lease or the other 20
authorisation impracticable. 21
[35] Section 38 Land subject to exploration licence 22
Omit "an inspector for investigation" and "the inspector's" from section 23
38 (3). 24
Insert instead "a warden for inquiry" and "the warden's", respectively. 25
[36] Section 39 26
Omit the section. 27
[37] Section 41 Power of decision-maker in relation to assessment lease 28
applications 29
Omit section 41 (1) (a). Insert instead: 30
(a) may grant to the applicant an assessment lease over all or 31
part of the land over which a lease was sought, or 32
Page 17
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[38] Section 41 (2) 1
Omit the subsection. Insert instead: 2
(2) Without limiting the generality of subsection (1) or any other 3
provision of this Act, an application may be refused on any one 4
or more of the following grounds: 5
(a) that the applicant (or, in the case of an applicant that is a 6
corporation, a director of the corporation) has contravened 7
this Act or the regulations (whether or not the person has 8
been prosecuted or convicted of any offence arising from 9
the contravention) or has been convicted of any other 10
offence relating to mining or minerals, 11
(b) that the decision-maker reasonably considers that the 12
applicant provided false or misleading information in or in 13
connection with the application, 14
(c) that the decision-maker considers it appropriate to do so 15
having taken into account the matters required by section 16
238. 17
Note. Section 238 specifies additional matters that may be taken into 18
account in deciding whether or not an application should be refused. 19
[39] Section 42 Land and minerals for which assessment lease may be 20
granted 21
Insert after section 42 (3): 22
(4) However, an assessment (mineral owner) lease may be granted: 23
(a) only in respect of privately owned minerals, and 24
(b) only to the owner of those minerals. 25
[40] Sections 44 and 45 26
Omit the sections. Insert instead: 27
44 Conditions of assessment lease 28
(1) An assessment lease may be issued subject to conditions or 29
unconditionally. 30
(2) Without limiting the generality of subsection (1), the conditions 31
of an assessment lease may include any of the following: 32
(a) a condition requiring the holder of the lease to pay royalty 33
to the Minister on any minerals recovered under the lease 34
(but only if it is not an assessment (mineral owner) lease), 35
(b) a condition with respect to cores and samples obtained in 36
the course of prospecting. 37
Page 18
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(3) Part 14 applies to royalty payable under a condition referred to in 1
subsection (2) (a) in the same way as it applies to royalty payable 2
on a mineral recovered under a mining lease. 3
45 Term of assessment lease 4
An assessment lease: 5
(a) takes effect on the date on which it is granted or on such 6
later date, or on the occurrence of such later event, as the 7
decision-maker may determine, and 8
(b) ceases to have effect on the expiration of: 9
(i) 2 years after the date on which it took effect, in the 10
case of an assessment (mineral owner) lease, or 11
(ii) such period (not exceeding 5 years) as the 12
decision-maker determines, in the case of any other 13
assessment lease. 14
[41] Sections 47 and 48 15
Omit sections 47-48. Insert instead: 16
47 Rights under assessment lease 17
(1) An assessment lease authorises: 18
(a) the conduct, in accordance with the conditions of the lease, 19
of prospecting and prospecting operations of a kind 20
determined by the Minister by order under section 29, and 21
(b) any other kinds of prospecting and prospecting operations 22
authorised by the decision-maker. 23
(2) The holder of an assessment lease may apply in writing to the 24
decision-maker for a variation of the lease to authorise other 25
kinds of prospecting or prospecting operations to be carried out. 26
(3) An application must: 27
(a) be made in the approved form and manner (if any), and 28
(b) contain any information that is prescribed by the 29
regulations, and 30
(c) be accompanied by the fee (if any) prescribed by the 31
regulations. 32
(4) The decision-maker may: 33
(a) vary the lease in accordance with the application and make 34
any variations to the conditions of the lease that the 35
decision-maker considers appropriate, or 36
Page 19
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(b) refuse the application. 1
(5) The decision-maker is to give the applicant written notice of the 2
outcome of any application. 3
(6) Any variation of the lease or conditions of the lease takes effect 4
on the date on which written notice of the variation is served on 5
the applicant or any later date specified in the notice. 6
48 Review of determination under section 47 7
(1) The holder of an assessment lease may, within 30 days (or such 8
longer period as may be prescribed) after being served with 9
written notice of the determination of an application under 10
section 47, apply to the decision-maker for a review of the 11
determination. 12
(2) An application must: 13
(a) be made in the approved form and manner (if any), and 14
(b) contain any information that is prescribed by the 15
regulations, and 16
(c) be accompanied by the fee (if any) prescribed by the 17
regulations. 18
(3) The making of an application for review of a determination does 19
not operate to stay the determination. 20
(4) On a review, the decision-maker may confirm or change the 21
determination. 22
(5) The decision-maker is to give the applicant written notice of the 23
outcome of any application under this section. 24
(6) If the decision-maker changes a determination, the changed 25
determination replaces the earlier determination as from the date 26
of the written notice. 27
(7) A decision on a review may not be further reviewed under this 28
section. 29
[42] Section 49 Dwelling-houses, gardens and improvements 30
Omit section 49 (4). Insert instead: 31
(4) This section does not apply with respect to a dwelling-house, 32
garden or improvement owned by the holder of the assessment 33
lease or, if the holder is a corporation, by a related corporation. 34
(5) If a dispute arises as to whether or not subsection (1) applies in 35
any particular case, the holder of the lease, the owner of the 36
dwelling-house, garden or improvement or the occupier of the 37
Page 20
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
dwelling-house may apply to a Warden's Court for a 1
determination of the matter. 2
[43] Sections 51-51B 3
Omit section 51. Insert instead: 4
51 Application for mining lease 5
(1) Any person may apply for a mining lease. 6
(2) To avoid doubt, the owner of privately owned minerals may 7
apply for a mining (mineral owner) lease or any other mining 8
lease with respect to those minerals. 9
Note. The owner of privately owned minerals may choose to apply for an 10
ordinary mining lease with respect to those minerals, rather than a 11
mining (mineral owner) lease. In relation to mining (mineral owner) 12
leases see section 68 (4). 13
(3) An application that relates to land in a mineral allocation area 14
may not be made in relation to an allocated mineral except: 15
(a) by the holder of an exploration licence or assessment lease 16
over that land in respect of that mineral, or 17
(b) with the Minister's consent. 18
(4) An application for a mining lease must: 19
(a) specify the mineral or minerals, or the mining purpose or 20
mining purposes, in respect of which the application is 21
made, and 22
(b) be lodged with the Director-General, and 23
(c) be accompanied by the required information and the 24
application fee prescribed by the regulations, and 25
(d) if the application is for a mining (mineral owner) lease 26
with respect to privately owned minerals that have more 27
than one owner, be made by all the owners. 28
(5) The required information is as follows: 29
(a) a description, prepared in the approved manner, of the 30
proposed mining area, 31
(b) an assessment of the mineral bearing capacity of land in 32
that area and of the extent of any mineral deposits in that 33
land, 34
(c) particulars of the financial resources and technical advice 35
available to the applicant, 36
(d) particulars of the program of work proposed to be carried 37
out by the applicant in the proposed mining area, 38
Page 21
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(e) if the application is for a mining (mineral owner) lease, 1
evidence that the minerals to which the application relates 2
are owned by the applicant, 3
(f) any other information that is prescribed by the regulations. 4
(6) If there is more than one applicant for the lease, a reference in 5
subsection (5) to the applicant is a reference to each applicant. 6
51A Notice of application for mining lease 7
(1) Within 14 days (or such other period as may be prescribed by the 8
regulations) after lodging an application for a mining lease, the 9
applicant must cause notice of the application to be published in 10
a newspaper circulating generally in the State and in at least one 11
newspaper circulating in the locality concerned. 12
(2) The notice must: 13
(a) state that an application for a mining lease has been 14
lodged, and 15
(b) contain a plan of the proposed mining area, and 16
(c) comply with any other requirements that are prescribed by 17
the regulations for the purposes of this subsection. 18
51B Limitation on subsequent applications 19
If a person: 20
(a) applies for the grant or renewal of a mineral owner 21
authority in relation to particular land and that application 22
is refused, or 23
(b) was the holder of a mineral owner authority in relation to 24
particular land when that authority was cancelled, 25
the person may not, within 2 years after that refusal or 26
cancellation, apply for a mining (mineral owner) lease in relation 27
to that land except with the Minister's consent. 28
[44] Section 52 Invitations for tenders 29
Insert "(other than a mining (mineral owner) lease)" after "mining lease" in 30
section 52 (2). 31
[45] Section 53 Tenders 32
Omit "particulars" from section 53 (1) (b). Insert instead "information". 33
Page 22
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[46] Section 53 (1) (c) 1
Omit "appropriate lodgment fee". 2
Insert instead "lodgment fee prescribed by the regulations". 3
[47] Section 53 (2) 4
Omit the subsection. Insert instead: 5
(2) The required information is as follows: 6
(a) particulars of the financial resources and relevant technical 7
advice available to the tenderer, 8
(b) particulars of the program of work proposed to be carried 9
out by the tenderer in the proposed mining area, 10
(c) any other information that is specified in the tender 11
invitation. 12
[48] Section 55 Exclusion of land from application or tender 13
Omit section 55 (1). Insert instead: 14
(1) The decision-maker may, by order in writing, direct that any part 15
of the land to which an application or tender for a mining lease 16
relates be excluded from the application or tender. 17
[49] Section 55 (4) 18
Insert after section 55 (3): 19
(4) This section does not apply to an application for a mining 20
(mineral owner) lease. 21
[50] Section 56 22
Omit the section. 23
[51] Section 58 Land subject to authority 24
Omit section 58 (1) (c). Insert instead: 25
(c) the subject of an application for any of the following that 26
was lodged before the application for the firstmentioned 27
mining lease: 28
(i) an exploration licence that includes minerals in 29
respect of which the mining lease is sought, 30
(ii) an assessment lease, 31
(iii) a mining lease, 32
(iv) a mineral claim, 33
Page 23
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[52] Section 58 (3) 1
Insert ", unless the decision-maker makes a determination under subsection 2
(4)" after "case requires". 3
[53] Section 58 (4) 4
Insert after section 58 (3): 5
(4) The decision-maker may determine that subsection (3) does not 6
apply with respect to the land or to a part of the land if the 7
decision-maker is satisfied that having the land or that part 8
subject to both the lease and the other authorisation concerned is 9
not likely to make the exercise of rights under the lease or the 10
other authorisation impracticable. 11
[54] Section 59 Land subject to exploration licence 12
Omit "an inspector for investigation" and "the inspector's" from section 13
59 (3). 14
Insert instead "a warden for inquiry" and "the warden's", respectively. 15
[55] Section 60 16
Omit the section. 17
[56] Section 62 Dwelling-houses, gardens and improvements 18
Omit section 62 (6). Insert instead: 19
(6) This section does not apply with respect to a dwelling-house, 20
garden or improvement owned by the holder of the mining lease 21
or, if the holder is a corporation, by a related corporation. 22
(6A) If a dispute arises as to whether or not subsection (1) applies in 23
any particular case, the holder of the lease, the owner of the 24
dwelling-house, garden or improvement or the occupier of the 25
dwelling-house may apply to a Warden's Court for a 26
determination on the matter. 27
[57] Section 63 Power of decision-maker in relation to mining lease 28
applications 29
Omit section 63 (1) (a). Insert instead: 30
(a) may grant to the applicant a mining lease over all or part of 31
the land over which a lease was sought, or 32
Page 24
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[58] Section 63 (2) 1
Omit the subsection. Insert instead: 2
(2) Without limiting the generality of subsection (1) or any other 3
provision of this Act, an application may be refused on any one 4
or more of the following grounds: 5
(a) that the applicant (or, in the case of an applicant that is a 6
corporation, a director of the corporation) has contravened 7
this Act or the regulations (whether or not the person has 8
been prosecuted or convicted of any offence arising from 9
the contravention) or has been convicted of any other 10
offence relating to mining or minerals, 11
(b) that the decision-maker reasonably considers that the 12
applicant provided false or misleading information in or in 13
connection with the application or any report provided 14
under this Act for or with respect to the lease, 15
(c) that the decision-maker considers it appropriate to do so 16
having taken into account the matters required by section 17
238. 18
Note. Section 238 specifies additional matters that may be taken into 19
account in deciding whether or not an application should be refused. 20
[59] Section 63 (3A) 21
Omit "appropriate mining lease fee (as determined under section 382A)". 22
Insert instead "mining lease fee prescribed by the regulations". 23
[60] Section 63 (6) 24
Insert after section 63 (5): 25
(6) A mining lease may not be granted over land in respect of a 26
mining purpose or mining purposes relating only to mining under 27
a mining (mineral owner) lease if the land is not owned by the 28
holder of the mining (mineral owner) lease. 29
[61] Section 64 Power of decision-maker in relation to tenders 30
Omit section 64 (3). Insert instead: 31
(3) Without limiting the generality of subsections (1) and (2) or any 32
other provision of this Act, a tender may be refused on any one or 33
more of the following grounds: 34
(a) that the tenderer (or, in the case of a tenderer that is a 35
corporation, a director of the corporation) has contravened 36
this Act or the regulations (whether or not the person has 37
been prosecuted or convicted of any offence arising from 38
Page 25
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
the contravention) or has been convicted of any other 1
offence relating to mining or minerals, 2
(b) that the decision-maker reasonably considers that the 3
tenderer provided false or misleading information in or in 4
connection with the application, 5
(c) that the decision-maker considers it appropriate to do so 6
having taken into account the matters required by section 7
238. 8
Note. Section 238 specifies additional matters that may be taken into 9
account in deciding whether or not an application should be refused. 10
[62] Section 66 Survey of land to be carried out 11
Omit "ensure" from section 66 (1). Insert instead "be satisfied". 12
[63] Section 68 Land and minerals for which mining lease may be granted 13
Insert after section 68 (3): 14
(4) However, a mining (mineral owner) lease may be granted: 15
(a) only in respect of privately owned minerals, and 16
(b) only to the owner of those minerals. 17
[64] Section 70 Conditions of mining lease 18
Omit section 70 (1). Insert instead: 19
(1) A mining lease is subject to the following conditions: 20
(a) a condition that the holder of the lease must not suspend 21
mining operations in the mining area otherwise than in 22
accordance with the written consent of the decision-maker, 23
(b) a condition that the holder must comply with a 24
rehabilitation and environmental management plan 25
approved by the Director-General under this Act in 26
carrying out any activities authorised by the lease, or that 27
the holder of a lease is authorised to carry out under this 28
Act (whether in or outside the mining area), 29
(c) any other conditions that the decision-maker may impose. 30
Note. Division 5 of Part 11 sets out procedures for the approval of 31
rehabilitation and environmental management plans. 32
[65] Section 70 (2) (g) 33
Insert after section 70 (2) (f): 34
(g) conditions relating to cores and samples obtained in the 35
course of mining or mining operations, 36
Page 26
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[66] Section 70 (2A) and (3) 1
Omit the subsections. 2
[67] Section 71 3
Omit the section. Insert instead: 4
71 Term of mining lease 5
A mining lease: 6
(a) takes effect on the date on which it is granted or on such 7
later date as the decision-maker may determine, and 8
(b) ceases to have effect at the expiration of such period as the 9
decision-maker determines, being a period that must not 10
exceed 21 years, except with the Premier's concurrence. 11
[68] Section 72 Form of mining lease 12
Omit "is to be in the approved form and". 13
[69] Section 73 Rights under mining lease 14
Omit section 73 (2). Insert instead: 15
(2) While a mining lease is in force, the holder of the lease and any 16
person acting as agent or employee of the holder, or delivering 17
goods or providing services to the holder, for the purpose of a 18
requirement of or an activity authorised by the lease may: 19
(a) for that purpose enter and be on the mining area, and 20
(b) do anything so authorised or required. 21
(3) Despite subsection (1), the only prospecting and prospecting 22
operations that a mining lease authorises are: 23
(a) prospecting and prospecting operations of a kind 24
determined by the Minister by order under section 29, or 25
(b) any other kinds of prospecting and prospecting operations 26
authorised by the decision-maker. 27
(4) The holder of the lease may apply in writing to the 28
decision-maker for a variation of the lease or conditions of the 29
lease to authorise other kinds of prospecting or prospecting 30
operations to be carried out. 31
(5) An application must: 32
(a) be made in the approved form and manner (if any), and 33
(b) contain any information that is prescribed by the 34
regulations, and 35
Page 27
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(c) be accompanied by the fee (if any) prescribed by the 1
regulations. 2
(6) The decision-maker may: 3
(a) vary the lease in accordance with the application and make 4
any variations to the conditions of the lease that the 5
decision-maker considers appropriate, or 6
(b) refuse the application. 7
(7) The decision-maker is to give the applicant written notice of the 8
outcome of any application under this section. 9
(8) Any variation of the lease or the conditions of the lease takes 10
effect on the date on which written notice of the variation is 11
served on the applicant or any later date specified in the notice. 12
(9) In this section: 13
mining area includes, in relation to a lease that does not include 14
the surface of land, any part of the surface of land on which the 15
holder of the lease is authorised, in accordance with section 81, 16
to carry out activities. 17
[70] Section 74 18
Insert after section 73: 19
74 Review of determination under section 73 20
(1) The holder of a mining lease may, within 30 days (or such longer 21
period as may be prescribed) after being served with written 22
notice of the determination of an application under section 73, 23
apply to the decision-maker for a review of the determination. 24
(2) An application must: 25
(a) be made in the approved form and manner (if any), and 26
(b) contain any information that is prescribed by the 27
regulations, and 28
(c) be accompanied by the fee (if any) prescribed by the 29
regulations. 30
(3) The making of an application for review of a determination does 31
not operate to stay the determination. 32
(4) On a review, the decision-maker may confirm or change the 33
determination. 34
(5) The decision-maker is to give the applicant written notice of the 35
outcome of the application. 36
Page 28
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(6) If the decision-maker changes a determination, the changed 1
determination replaces the earlier determination from the date of 2
the written notice. 3
(7) A decision on a review may not be further reviewed under this 4
section. 5
[71] Section 76 Fencing of land subject to mining lease 6
Insert at the end of section 76 (2): 7
Maximum penalty: 100 penalty units. 8
[72] Section 77 Addition of mineral to mineral mining lease 9
Insert after section 77 (4): 10
(4A) A direction may be given in respect of a mining (mineral owner) 11
lease only if the additional mineral is owned by the holder of that 12
lease. 13
[73] Section 79 14
Omit the section. Insert instead: 15
79 Amendment of mining lease in respect of expenditure and labour 16
conditions 17
(1) The decision-maker may amend a mining lease so as to allow the 18
holder of the lease to comply with a condition relating to 19
expenditure instead of a condition relating to labour. 20
(2) The amendment takes effect on the date on which written notice 21
of the amendment is served on the holder of the lease or on any 22
later date specified in the notice. 23
[74] Section 81 Surface activities in relation to subsurface leases 24
Omit "prospecting operations on the surface of the land" from section 81 (1). 25
Insert instead "on the surface of the land any activities that are prescribed by 26
the regulations". 27
[75] Section 81 (2) 28
Omit the subsection. 29
[76] Section 81 (3) 30
Omit "prospecting operations". Insert instead "prescribed activities". 31
Page 29
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[77] Section 83A 1
Omit the section. Insert instead: 2
83A Mining subleases 3
(1) The holder of a mining lease, other than a mining (mineral 4
owner) lease, may grant a mining sublease with respect to all or 5
part of the mining area under the mining lease (the head lease). 6
(2) A sublease may be renewed, or its term or conditions varied, 7
according to law. 8
(3) However, the granting, renewal or variation of the term or a 9
condition of a mining sublease has no effect for the purposes of 10
this Act unless the sublease is registered in accordance with 11
section 163A. 12
(4) A sublease that has been registered in accordance with section 13
163A ceases to have effect for the purposes of this Act if: 14
(a) the term of the sublease or head lease expires, or 15
(b) it ceases to have effect in accordance with the conditions 16
of the sublease, or 17
(c) it is removed from the register of mining subleases in 18
accordance with section 163B, 19
whichever occurs first. 20
(5) The holder of a mining sublease must not grant a further mining 21
sublease with respect to all or any part of the sublease area. 22
(6) The granting, renewal or variation of the term or a condition or 23
registration of a mining sublease does not prevent any action 24
being taken under this Act (including variation, suspension or 25
cancellation) in respect of the head lease. 26
[78] Section 91 Objections to granting of proposed mining lease 27
Omit "mining" wherever occurring. Insert instead "proposed mining". 28
[79] Part 6, Division 6 29
Omit the Division. 30
[80] Section 113 Applications for renewal 31
Omit section 113 (2)-(4). Insert instead: 32
(2) An application for the renewal of an authority must be lodged 33
with the Director-General within the period set out below: 34
Page 30
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(a) in the case of the renewal of an exploration licence or an 1
assessment lease--within the period of 2 months before 2
the licence or lease ceases to have effect, or 3
(b) in the case of the renewal of a mining lease for 1 year or 4
less--within the period of 2 months before the lease ceases 5
to have effect, or 6
(c) in the case of the renewal of a mining lease for more than 7
1 year--not earlier than 5 years and not later than 1 year 8
before the lease ceases to have effect. 9
(3) An application for renewal must be accompanied by the 10
application fee prescribed by the regulations and any information 11
that is prescribed by the regulations. 12
[81] Section 113 (8) 13
Insert after section 113 (7): 14
(8) To avoid doubt, the holder of an exploration licence may apply 15
for and be granted a renewal of the licence even if the holder is 16
an applicant for or is granted an assessment lease or a mining 17
lease with respect to some or all of the land in the exploration 18
area. 19
[82] Section 114 Power of decision-maker in relation to renewal applications 20
Omit section 114 (2). Insert instead: 21
(2) Without limiting the generality of subsection (1) or any other 22
provision of this Act, an application may be refused on any one 23
or more of the following grounds: 24
(a) that the applicant (or, in the case of an applicant that is a 25
corporation, a director of the corporation) has contravened 26
this Act or the regulations or a condition of the authority 27
(whether or not the person has been prosecuted or 28
convicted of any offence arising from the contravention) or 29
has been convicted of any other offence relating to mining 30
or minerals, 31
(b) that a person has contravened a condition of the authority 32
(whether or not the person has been prosecuted or 33
convicted of any offence arising from the contravention), 34
(c) that the decision-maker reasonably considers that the 35
holder of the authority provided false or misleading 36
information in or in connection with the application or any 37
report provided under this Act for or with respect to the 38
authority, 39
Page 31
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(d) that the decision-maker considers it appropriate to do so 1
having taken into account the matters required by section 2
238. 3
Note. Section 238 specifies additional matters that may be taken into 4
account in deciding whether or not an application should be refused. 5
[83] Section 114 (6) 6
Omit the subsection. Insert instead: 7
(6) The area of land over which an exploration licence may be 8
renewed is not to exceed half the area over which the licence was 9
in force when the application for renewal was made unless the 10
decision-maker is satisfied that special circumstances exist that 11
justify renewal of the licence over a larger area. 12
[84] Section 118 Date from which renewal of authority has effect 13
Omit section 118 (1). Insert instead: 14
(1) The renewal of an authority takes effect on the date on which the 15
application for renewal is granted or on any later date, or on the 16
occurrence of any later event, that the decision-maker may 17
determine. 18
[85] Sections 120-122 19
Omit sections 120-123. Insert instead: 20
120 Application for approval of transfer 21
(1) The holder of an authority may apply for approval of the transfer 22
of the authority to another person. 23
(2) An application for approval must be lodged with the 24
Director-General, include any information that is prescribed by 25
the regulations and be accompanied by the following: 26
(a) the application fee prescribed by the regulations, 27
(b) the consent of the proposed transferee, 28
(c) in the case of a partial transfer, a plan identifying the area 29
to which the new authority would apply. 30
121 Power of decision-maker in relation to transfer approval 31
applications 32
(1) After considering an application for approval of the transfer of an 33
authority, the decision-maker may: 34
(a) approve the transfer in accordance with the application, or 35
(b) refuse the application. 36
Page 32
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(2) Without limiting the generality of subsection (1) or any other 1
provision of this Act, an application may be refused on any one 2
or more of the following grounds: 3
(a) that the applicant (or, in the case of an applicant that is a 4
corporation, a director of the corporation) has contravened 5
this Act or the regulations (whether or not the person has 6
been prosecuted or convicted of any offence arising from 7
the contravention) or has been convicted of any other 8
offence relating to mining or minerals, 9
(b) that the decision-maker reasonably considers that the 10
applicant provided false or misleading information in or in 11
connection with an application, 12
(c) that the decision-maker considers it appropriate to do so 13
having taken into account the matters required by section 14
238. 15
Note. Section 238 specifies additional matters that may be taken into 16
account in deciding whether or not an application should be refused. 17
(3) An application for the transfer of a mineral owner authority may 18
be approved only: 19
(a) if the proposed transferee is the owner of the minerals to 20
which the authority relates, or 21
(b) if the proposed transferee is not the owner, subject to the 22
condition that the transfer does not come into effect until 23
the decision-maker notifies the applicant in writing that the 24
decision-maker is satisfied that the proposed transferee has 25
become the owner. 26
(4) In approving a full transfer, the decision-maker may, subject to 27
this Act, vary the conditions of the authority or include further 28
conditions in the authority. 29
(5) In approving a partial transfer, the decision-maker: 30
(a) may, subject to this Act, vary the conditions of the original 31
authority, and 32
(b) is to determine the conditions of the new authority. 33
(6) Without limiting subsection (4) or (5), the decision-maker may 34
vary an authority by adding conditions, including conditions that 35
impose obligations on the transferor or the transferee to 36
rehabilitate land or water affected by mining or prospecting or by 37
associated activities carried out on land that is the subject of the 38
transfer. 39
(7) The decision-maker is to give the applicant written notice of the 40
outcome of the application. 41
Page 33
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(8) This section does not affect the operation of section 75V 1
(Approvals etc legislation that must be applied consistently) or 93 2
(Granting and modification of approval by approval body) of the 3
Environmental Planning and Assessment Act 1979. 4
122 Registration of transfers 5
(1) If the transfer of an authority has been approved, the transferor or 6
transferee of the authority may, within 3 months after being 7
notified of the approval, apply for registration of the transfer. 8
(2) Any such application must be: 9
(a) lodged with the Director-General, and 10
(b) accompanied by the application fee prescribed by the 11
regulations, and 12
(c) accompanied by: 13
(i) in the case of a full transfer--a document signed by 14
the decision-maker and the transferee 15
acknowledging the terms of the authority after the 16
transfer, and 17
(ii) in the case of a partial transfer--a document signed 18
by the decision-maker and the transferor 19
acknowledging the terms of the original authority 20
after the transfer, and 21
(iii) in the case of a partial transfer--a document signed 22
by the decision-maker and the transferee 23
acknowledging the terms of the new authority. 24
(3) On receipt of the application, the Director-General must register 25
the transferee as the holder of the authority or (in the case of a 26
partial transfer) the new authority. 27
(4) On registration of a full transfer the transferee becomes the 28
holder of the authority and any variation of the authority under 29
this Division takes effect. 30
(5) On registration of a partial transfer: 31
(a) the original authority is taken to have been cancelled as to 32
the area of the part transferred, and 33
(b) an authority over the part transferred is taken to have been 34
granted to the transferee for the period from the date of 35
registration until the date on which the original authority is 36
due to expire and subject to the conditions determined 37
under this Division, and 38
(c) the transferee becomes the holder of the new authority, and 39
Page 34
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(d) any variation of the original authority under this Division 1
takes effect. 2
[86] Section 124 Caveats 3
Omit "appropriate lodgment fee" from section 124 (1). 4
Insert instead "lodgment fee prescribed by the regulations". 5
[87] Part 7, Division 3 and Part 9, Division 6, headings 6
Omit "or operational suspension" wherever occurring. 7
[88] Section 125 Grounds for cancellation of authority 8
Omit section 125 (1) (b). Insert instead: 9
(b) if the holder of the authority contravenes a provision of this 10
Act or the regulations (whether or not the holder is 11
prosecuted or convicted of any offence arising from the 12
contravention), or 13
(b1) if a person contravenes a condition of the authority 14
(whether or not the person is prosecuted or convicted of 15
any offence arising from the contravention), or 16
(b2) if the decision-maker reasonably considers that the holder 17
of the authority provided false or misleading information 18
in or in connection with an application or any report 19
provided under this Act for or with respect to the authority, 20
or 21
(b3) if the decision-maker considers it appropriate to do so 22
having taken into account the matters required by section 23
238, or 24
[89] Section 125 (3) 25
Omit the subsection. Insert instead: 26
(3) Action may be taken under this section whether or not any other 27
action has been taken in respect of the authority under this Act. 28
[90] Section 126 29
Omit the section. Insert instead: 30
126 Cancellations of authorities 31
(1) Before cancelling an authority on a ground referred to in section 32
125 (1) (b)-(d) or (f), the decision-maker is to: 33
Page 35
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(a) cause written notice of the proposed cancellation and the 1
grounds for it to be served on the holder of the authority, 2
and 3
(b) give the holder a reasonable opportunity to make 4
representations with respect to the proposed cancellation, 5
and 6
(c) take any such representations into consideration. 7
(2) The decision-maker is to cause written notice of the cancellation 8
of an authority to be given to the holder of the authority. 9
(3) The cancellation takes effect on the date on which the written 10
notice of the cancellation is given to the holder of the authority. 11
(4) The cancellation of an authority does not affect any liability 12
incurred by the holder of the authority before the cancellation 13
took effect. 14
[91] Section 127 Compensation for cancellation 15
Omit "or operations under it are suspended" from section 127 (1). 16
[92] Section 128 Appeals against decisions concerning cancellations 17
Omit ", or suspend operations under," from section 128 (1). 18
[93] Section 128 (1A) 19
Omit "or suspension, or of the Minister's". Insert instead "or of the". 20
[94] Section 133 Nomination of authority holder by applicant or tenderer 21
Omit section 133 (3). 22
[95] Section 135 Waiver of minor procedural matters 23
Omit "particulars" from section 135 (1) (c). Insert instead "information". 24
[96] Section 136 Gazettal of certain matters 25
Omit "or for the renewal of an authority" from section 136 (b). 26
Insert instead ", for the renewal of an authority or for approval of the transfer 27
of an authority". 28
[97] Section 136 29
Insert after paragraph (b): 30
(b1) a request for the cancellation of an authority is made, or 31
Page 36
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[98] Section 137 1
Omit the section. Insert instead: 2
137 Limitation of challenges to decisions with respect to authorities 3
(1) The cancellation of an authority, or the grant or refusal of an 4
application for an authority or the renewal or approval of the 5
transfer of an authority, cannot be challenged in any legal 6
proceedings commenced later than 3 months after the date on 7
which notice of the cancellation, grant or refusal is published in 8
the Gazette. 9
(2) A notice lodged under section 130 cannot be challenged in any 10
legal proceedings commenced later than one month after the date 11
on which notice of its lodgment is published in the Gazette. 12
(3) This section has effect despite any other Act, but does not apply 13
so as to affect: 14
(a) any appeal from proceedings commenced within the 15
period of 3 months referred to in subsection (1) or, in the 16
case of proceedings relating to a notice referred to in 17
subsection (2), the month referred to in subsection (2), or 18
(b) the operation of section 128. 19
[99] Section 140 20
Omit the section. Insert instead: 21
140 Prospecting to be carried out in accordance with access 22
arrangement 23
(1) The holder of a prospecting title must not carry out prospecting 24
operations on any land except in accordance with an access 25
arrangement relating to the land that: 26
(a) is agreed (orally or in writing) between the landholder and 27
the holder of the prospecting title, or 28
(b) is determined by an arbitrator in accordance with this 29
Division. 30
(2) The arrangement may be one that is agreed before, on or after the 31
grant of the prospecting title. 32
(3) However, if the arrangement is one that was agreed before the 33
grant of the prospecting title, it must have been in effect 34
immediately before the grant. 35
(4) If, immediately before the grant of a prospecting title any land to 36
which the title relates was, or was in, an authorisation area and the 37
Page 37
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
subject of an agreed access arrangement (an existing 1
arrangement) that complied with this section, that land is taken 2
to be subject to an access arrangement for the purposes of this 3
section if the holder of the prospecting title: 4
(a) was the holder of the authorisation immediately before the 5
granting of the prospecting title, or 6
(b) is the assignee of the rights under the existing arrangement. 7
(5) Subsection (4) ceases to apply to land if a subsequent access 8
arrangement is agreed or determined in relation to the land. 9
[100] Section 144 Appointment of arbitrator in default of agreement 10
Omit "appropriate lodgment fee" from section 144 (2). 11
Insert instead "application fee prescribed by the regulations". 12
[101] Section 144 (3) 13
Omit ", after consultation with the Heads of the Departments of Aboriginal 14
Affairs and Agriculture,". 15
[102] Part 8, Division 3, heading 16
Omit the heading. Insert instead: 17
Division 3 Records, registration and reports 18
[103] Section 159 Records 19
Omit section 159 (2). Insert instead: 20
(2) The record must be kept in the approved form (if any) and must 21
contain the particulars prescribed by the regulations. 22
[104] Section 161 Registration of certain interests 23
Omit "appropriate lodgment fee" from section 161 (3). 24
Insert instead "application fee prescribed by the regulations". 25
[105] Section 161 (7A) 26
Omit the subsection. 27
[106] Section 161 (11) 28
Insert after section 161 (10): 29
(11) An interest arising under a mining sublease is not a legal or 30
equitable interest for the purposes of this section. 31
Page 38
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[107] Section 162 Devolution of rights of holder of authority 1
Insert at the end of the section: 2
(2) To avoid doubt, the granting or registration under this Act of a 3
mining sublease does not result in the devolution of the rights of 4
the holder of the head lease to any person. 5
[108] Section 163 Colliery holdings 6
Insert after section 163 (2) (a): 7
(aa) the name of the colliery holding, and 8
(ab) the name of the colliery holder, and 9
(ac) a plan showing the location of the holding, and 10
[109] Section 163 (3)-(6D) 11
Omit section 163 (3)-(6). Insert instead: 12
(3) The holder of a mining lease or registered mining sublease that 13
authorises the holder to mine for coal or to carry out mining 14
purposes in connection with the mining of coal must apply to 15
have the mining area or sublease area registered as a colliery 16
holding or recorded on the register as part of an existing colliery 17
holding before commencing mining operations under the lease or 18
sublease. 19
Maximum penalty: 20 penalty units. 20
(4) A person who is lawfully carrying out mining purposes on land 21
in connection with the mining of coal (and doing so otherwise 22
than as the holder of a mining lease or registered mining 23
sublease) may apply to have the land registered as a colliery 24
holding or recorded on the register as part of an existing colliery 25
holding. 26
(5) A person may not be recorded as the colliery holder of a colliery 27
holding registered under this section unless the person is the 28
holder of a mining lease or registered mining sublease that is part 29
of the colliery holding. 30
(6) A person who has an interest in a colliery holding registered 31
under this section may apply to have the registration of the 32
holding concerned: 33
(a) cancelled, or 34
(b) amended so as to exclude land from the holding, or 35
(c) amended so as to transfer land from the holding to another 36
registered colliery holding, or 37
Page 39
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(d) amended with respect to the identity of the colliery holder. 1
(6A) An application under this section must be: 2
(a) signed by the persons or classes of persons prescribed by 3
the regulations, and 4
(b) must be accompanied by any fee and any particulars and 5
consents to the making of the application prescribed by the 6
regulations, and 7
(c) must be lodged with the Director-General. 8
(6B) Within 14 days after an application is lodged (or within such 9
longer period as may be prescribed by the regulations), the 10
Minister must: 11
(a) grant the application and cause the register to be updated, 12
as soon as practicable, in accordance with the application, 13
or 14
(b) refuse the application on any of the following grounds: 15
(i) the application does not comply with the 16
requirements of this section, 17
(ii) if the application is for registration of a holding or 18
with respect to the name of a holding--the name 19
proposed for the holding may cause confusion 20
(because, for example, it is the same as or similar to 21
a name that is or was used for another holding, 22
whether registered or not). 23
(6C) The Minister may, by order in writing: 24
(a) direct a person who is required to or may apply for land to 25
be registered as a colliery holding or recorded on the 26
register as part of an existing colliery holding to apply for 27
that registration or recording in accordance with this 28
section within the time specified by the order, or 29
(b) direct that a colliery holding is to be registered with a 30
specified name or that the registered name of a colliery 31
holding is to be amended, or 32
(c) direct that a person be registered as the colliery holder of a 33
colliery holding, if no person has been registered or 34
nominated for registration of the collliery holding. 35
(6D) A person who is given a direction under subsection (6C) must 36
not, without reasonable excuse, fail to comply with the direction. 37
Maximum penalty: 20 penalty units. 38
Page 40
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[110] Section 163 (8) and (9) 1
Omit "subsection (6)" wherever occurring. Insert instead "subsection (6C)". 2
[111] Section 163 (8) 3
Omit "subsection (3A) or (4)". Insert instead "subsection (4) or (6)". 4
[112] Section 163 (9) 5
Omit "direction" and "instrument" wherever occurring. Insert instead "order". 6
[113] Section 163 (10) 7
Insert after section 163 (9): 8
(10) The register of colliery holdings must be kept available for 9
inspection, free of charge, by members of the public at such 10
offices of the Department as may be prescribed by the 11
regulations. 12
[114] Sections 163A-163C 13
Insert after section 163: 14
163A Registration of mining subleases 15
(1) The Director-General is to cause to be kept a register of mining 16
subleases containing such information as is prescribed by the 17
regulations. 18
(2) Any person claiming to have been granted a mining sublease or 19
to be the holder of a mining sublease may apply in writing for 20
registration of the sublease or of its renewal or variation. 21
(3) An application must not be made without the Minister's 22
approval. 23
(4) An application must be in the approved form, lodged with the 24
Director-General and accompanied by the following: 25
(a) documentary evidence of the sublease, including its term 26
and conditions, 27
(b) a plan of the sublease area, 28
(c) documentary evidence that a security deposit to the 29
Minister's satisfaction has been provided and is being 30
maintained in relation to the sublease area, 31
(d) documentary evidence of the Minister's approval of the 32
application (if required), 33
(e) the application fee prescribed by the regulations, 34
Page 41
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(f) any other information that is prescribed by the regulations. 1
(5) The Director-General may register the document by which the 2
mining sublease is evidenced only if satisfied that the applicant 3
holds the sublease. 4
(6) The registration of a mining sublease under this section does not 5
affect any liability that the holder of the sublease would 6
otherwise have to a penalty for an offence under this Act, 7
including an offence that relates to the head lease. 8
(7) The regulations may exempt an application or class of 9
applications from the requirement in subsection (3). 10
(8) The register of mining subleases must be kept available for 11
inspection, free of charge, by members of the public at such 12
offices of the Department as may be prescribed by the 13
regulations. 14
163B Deregistration of mining subleases 15
(1) Any person who would be entitled to apply to have a mining 16
sublease registered under this Act may apply for the removal of 17
the sublease from the register. 18
(2) An application must be in writing, lodged with the 19
Director-General and accompanied by the written consent of the 20
sublessor. 21
(3) The Director-General may grant or refuse an application to 22
remove a sublease from the register of mining subleases. 23
163C Reports 24
(1) The holder of an authorisation must prepare and lodge reports of 25
all prospecting activity carried out under the authorisation. 26
Note. Reports can also be required by the conditions of an 27
authorisation--see section 239C. 28
(2) The regulations may make provision for or with respect to the 29
following: 30
(a) the content, form or lodgment of the reports, 31
(b) the exemption of any person, class of persons, 32
authorisation or class of authorisations from a requirement 33
of this section or the regulations under this section, 34
(c) prohibiting or regulating the disclosure of reports required 35
to be lodged or made under this section or a condition of 36
an authorisation. 37
Page 42
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(3) A person who fails, without reasonable excuse, to prepare or 1
lodge a report in accordance with this section or the regulations 2
is guilty of an offence. 3
Maximum penalty: 100 penalty units. 4
(4) If there is an inconsistency between a condition of an 5
authorisation and a reporting requirement imposed under this 6
section, the condition prevails to the extent of the inconsistency. 7
[115] Section 164 Rights of way 8
Insert "(other than a mineral owner authority)" after "holder of an authority" 9
in section 164 (1). 10
[116] Section 164 (3) (a) 11
Insert ", that comply with subsection (4)," after "and grids)". 12
[117] Section 164 (3) 13
Insert at the end of the subsection: 14
Maximum penalty (subsection (3)): 50 penalty units. 15
[118] Section 165 Right of access to water 16
Omit section 165 (2)-(4). Insert instead: 17
(2) If a dispute arises between the holder of an authority and any such 18
landholder concerning the right of access, the holder or the 19
landholder may apply to a Warden's Court for a determination on 20
the matter. 21
[119] Section 168A 22
Insert after section 168: 23
168A Addition or variation of conditions in certain circumstances 24
(1) Without limiting any other provision of this Act, the 25
decision-maker may amend an authorisation, by imposing 26
conditions on the authorisation or varying existing conditions, in 27
order to remove an inconsistency between the authorisation and 28
a development consent. 29
Note. The Dictionary to this Act defines development consent to 30
include an approval under Part 3A of the Environmental Planning and 31
Assessment Act 1979. 32
(2) However, subsection (1) applies only if: 33
(a) the development consent was granted after the 34
authorisation, or 35
Page 43
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(b) the development consent was granted on or before the date 1
on which the authorisation was granted and the 2
inconsistency arose from a subsequent modification of the 3
consent. 4
(3) An amendment under this section takes effect on the date on 5
which notice of the amendment is served on the holder of the 6
authorisation or on such later date as may be specified in the 7
notice. 8
[120] Section 169 9
Omit the section. 10
[121] Section 170 11
Omit the section. Insert instead: 12
170 Settlement of certain disputes 13
If any dispute arises between the holders of 2 or more authorities 14
concerning their respective rights in relation to any land or 15
minerals, any one or more of them may apply to a Warden's 16
Court for a determination on the matter. 17
[122] Section 171 18
Omit the section. Insert instead: 19
171 Certain claims for damages prohibited 20
(1) No action lies against the Crown, the Minister or any person 21
administering this Act in respect of any injury or loss suffered or 22
incurred in relation to the exercise of any right conferred by an 23
authority. 24
(2) Subsection (1) does not affect any liability of the Crown in 25
respect of any injury or loss suffered or incurred in relation to the 26
exercise of any right conferred by an exploration licence held by 27
the Director-General on behalf of the Crown. 28
Note. The Director-General may hold an exploration licence on behalf of 29
the Crown--see section 364. 30
[123] Section 172 31
Omit the section. 32
[124] Section 173 Constitution of mineral claims districts 33
Omit "within a single mining division" from section 173 (1). 34
Page 44
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[125] Section 173 (2) (c) 1
Omit "land within an exempted area" and "that area". 2
Insert instead "reserved land" and "that land", respectively. 3
[126] Section 175 Special conditions 4
Omit "lodged" from section 175 (2) (f). 5
Insert instead "provided and maintained, in accordance with Part 12A,". 6
[127] Section 175 (4) 7
Omit "land within an exempted area" and "that area". 8
Insert instead "reserved land" and "that land" respectively. 9
[128] Section 176 Marking out of proposed claim area 10
Omit "must be situated wholly within a single mining division and" from 11
section 176 (2). 12
[129] Section 178 Application for granting of mineral claim 13
Omit section 178 (2) (c) and (d). Insert instead: 14
(c) must be accompanied by the application fee prescribed by 15
the regulations, and 16
(d) must be accompanied by any information that is prescribed 17
by the regulations, and 18
(e) must be lodged with the Director-General, and 19
[130] Section 179 Objection as to agricultural land 20
Omit "mining registrar for the mining division within which the land is 21
situated" from section 179 (2). 22
Insert instead "Director-General". 23
[131] Section 179 (3) 24
Omit "mining registrar is to refer the objection to the Director-General of the 25
Department of Agriculture who". 26
Insert instead "Director-General". 27
[132] Section 180 General restrictions 28
Omit section 180 (2) and (3). Insert instead: 29
(2) A mineral claim may not be granted over land that is not situated 30
within a mineral claims district. 31
Page 45
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[133] Section 181 1
Omit the section. 2
[134] Section 183 Land subject to authority 3
Omit section 183 (1) (c). Insert instead: 4
(c) the subject of an application for any of the following that 5
was lodged before the application for the firstmentioned 6
mineral claim: 7
(i) an exploration licence that includes a group of 8
minerals in respect of which the mineral claim is 9
sought, 10
(ii) an assessment lease, 11
(iii) a mining lease, 12
(iv) a mineral claim. 13
[135] Section 183 (3) 14
Insert ", unless the Director-General makes a determination under subsection 15
(4)" after "case requires". 16
[136] Section 183 (4) 17
Insert after section 183 (3): 18
(4) The Director-General may determine that subsection (3) does not 19
apply with respect to the land or to a part of the land if the 20
Director-General is satisfied that having the land or that part 21
subject to both the claim and the other authorisation concerned is 22
not likely to make the exercise of rights under the claim or the 23
other authorisation impracticable. 24
[137] Sections 184, 190 (1) and (5), 193, 194 (1), 198 (1), 199A (1), 200 (3), 201 25
(1), 203 (3), 204 (1), 205 (2), 206 (4), 215 (1) and (2), 218A (1) (a) and (b), 26
228 (1) and (3), 229 (d), 233 (1) (a) and (e), 234 (1) and 335 (2) 27
Omit "mining registrar" wherever occurring. 28
Insert instead "Director-General". 29
[138] Section 184 Land subject to exploration licence 30
Omit "an inspector for investigation" and "the inspector's" from section 31
184 (3). 32
Insert instead "a warden for inquiry" and "the warden's", respectively. 33
Page 46
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[139] Section 185 1
Omit the section. 2
[140] Section 187 Agricultural land 3
Omit "that is within a mineral claims district" from section 187 (2). 4
[141] Section 188 Dwelling-houses, gardens and improvements 5
Omit section 188 (5). Insert instead: 6
(5) If a dispute arises as to whether or not subsection (1) or (2A) 7
applies in any particular case, the holder of the mineral claim, the 8
owner of the dwelling-house, garden or improvement or the 9
occupier of the dwelling-house may apply to a Warden's Court 10
for a determination on the matter. 11
[142] Section 190 Power of Director-General in relation to applications 12
Omit section 190 (1) (a). Insert instead: 13
(a) may grant to the applicant a mineral claim over all or only 14
part of the land over which a claim was sought, or 15
[143] Section 190 (2) 16
Omit section 190 (2). Insert instead: 17
(2) Without limiting the generality of subsection (1) or any other 18
provision of this Act, an application may be refused on any one 19
or more of the following grounds: 20
(a) that the applicant (or, in the case of an applicant that is a 21
corporation, a director of the corporation) has contravened 22
this Act or the regulations (whether or not the person has 23
been prosecuted or convicted of any offence arising from 24
the contravention) or has been convicted of any other 25
offence relating to mining or minerals, 26
(b) that the Director-General reasonably considers that the 27
applicant provided false or misleading information in or in 28
connection with the application, 29
(c) that the Director-General considers it appropriate to do so 30
having taken into account the matters required by section 31
238. 32
Note. Section 238 specifies additional matters that may be taken into 33
account in deciding whether or not an application should be refused. 34
Page 47
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[144] Section 190 (3) 1
Omit "mining registrar before the application is determined, the mining 2
registrar may (in the case of land that is situated within a mineral claims 3
district) and must (in any other case)". 4
Insert instead "Director-General before the application is determined, the 5
Director-General may". 6
[145] Section 190 (4)-(4B) and (7) 7
Omit the subsections. 8
[146] Section 192 Conditions of mineral claim 9
Omit section 192 (1). Insert instead: 10
(1) A mineral claim is subject to: 11
(a) any special conditions that apply to the land, and 12
(b) the conditions imposed on the holder of the claim under 13
section 211 as to his or her exercise of any right of way 14
under that section in respect of the claim area, and 15
(c) the conditions to which the holder of the claim is subject 16
pursuant to any registered access management plan in 17
force in respect of that land, and 18
(d) any other conditions (not inconsistent with any other 19
condition referred to in this subsection) that the 20
Director-General imposes. 21
[147] Section 195 Rights under mineral claim 22
Renumber section 195 (1A) as section 195 (1B). 23
[148] Section 195 (1) and (1A) 24
Omit section 195 (1). Insert instead: 25
(1) The holder of a mineral claim granted in respect of a mineral or 26
minerals may, in accordance with the conditions of the claim, 27
prospect for that mineral or those minerals and mine that mineral 28
or those minerals. 29
(1A) The holder of a mineral claim may, subject to the conditions of 30
the claim, also do any of the following in connection with any 31
prospecting or mining authorised by subsection (1): 32
(a) erect any buildings and structures, 33
(b) exercise any rights in the nature of easements, 34
(c) remove from the claim area any timber, stone or gravel, 35
Page 48
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(d) carry out any mining purpose. 1
[149] Section 195 (2) 2
Omit the subsection. 3
[150] Section 195A 4
Omit the section. 5
[151] Section 197 Application for renewal of mineral claim 6
Omit section 197 (2) and (3). Insert instead: 7
(2) An application for renewal of a mineral claim: 8
(a) must be accompanied by the application fee prescribed by 9
the regulations, and 10
(b) must be lodged with the Director-General within 2 months 11
before the day on which the claim would otherwise expire. 12
(3) If an application for renewal of a mineral claim is not finally dealt 13
with before the date on which the mineral claim would otherwise 14
cease to have effect, the mineral claim continues to have effect in 15
relation to the land to which the application relates (and no other 16
land) until the application is finally determined. 17
[152] Section 198 Determination of application for renewal of mineral claim 18
Omit section 198 (2) and (3). Insert instead: 19
(2) Without limiting the generality of subsection (1) or any other 20
provision of this Act, an application may be refused on any one 21
or more of the following grounds: 22
(a) that the applicant (or, in the case of an applicant that is a 23
corporation, a director of the corporation) has contravened 24
this Act or the regulations or a condition of the claim 25
(whether or not the person has been prosecuted or 26
convicted of any offence arising from the contravention) or 27
has been convicted of any other offence relating to mining 28
or minerals, 29
(b) that a person has contravened a condition of the claim 30
(whether or not the person has been prosecuted or 31
convicted of any offence arising from the contravention), 32
(c) that the Director-General reasonably considers that the 33
holder of the claim provided false or misleading 34
information in or in connection with an application or any 35
report provided under this Act for or with respect to the 36
claim, 37
Page 49
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(d) that the Director-General considers it appropriate to do so 1
having taken into account the matters required by section 2
238. 3
Note. Section 238 specifies additional matters that may be taken into 4
account in deciding whether or not an application should be refused. 5
(3) The Director-General may, on renewing a mineral claim, vary the 6
conditions of the claim in such manner as the Director-General 7
may (in accordance with the special conditions) determine. 8
[153] Section 199A Term of renewal 9
Omit ", in the case of a mineral claim over land that is situated within a mineral 10
claims district, not exceeding" from section 199A (1) (b). 11
[154] Section 200 Application for transfer of mineral claim 12
Omit section 200 (2). Insert instead: 13
(2) An application for the transfer of a mineral claim: 14
(a) must be accompanied by the application fee prescribed by 15
the regulations, and 16
(b) must be lodged with the Director-General, and 17
(c) must contain any information prescribed by the 18
regulations, and 19
(d) must be accompanied by the written consent of the 20
proposed transferee, and 21
(e) must be accompanied by a copy of the relevant notice 22
served under subsection (2A). 23
[155] Section 201 Determination of application for transfer of mineral claim 24
Omit section 201 (2) and (3). Insert instead: 25
(2) Without limiting the generality of subsection (1) or any other 26
provision of this Act, an application may be refused on any one 27
or more of the following grounds: 28
(a) that the applicant (or, in the case of an applicant that is a 29
corporation, a director of the corporation) has contravened 30
this Act or the regulations (whether or not the person has 31
been prosecuted or convicted of any offence arising from 32
the contravention) or has been convicted of any other 33
offence relating to mining or minerals, 34
(b) that the Director-General reasonably considers that the 35
applicant provided false or misleading information in or in 36
connection with an application, 37
Page 50
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(c) that the Director-General considers it appropriate to do so 1
having taken into account the matters required by section 2
238. 3
Note. Section 238 specifies additional matters that may be taken into 4
account in deciding whether or not an application should be refused. 5
(3) The Director-General may, on transferring a mineral claim, vary 6
the conditions of the claim in such manner as the 7
Director-General may (in accordance with the special conditions) 8
determine. 9
[156] Section 202 10
Omit the section. Insert instead: 11
202 Devolution of rights of holder of mineral claim 12
A person on whom the rights of the holder of a mineral claim 13
have devolved by operation of law may apply to the 14
Director-General to have that person's name recorded as the 15
holder of the claim and, if the Director-General is satisfied that 16
those rights have so devolved, the Director-General must so 17
record the name of the applicant. 18
[157] Sections 203 (1), 210A (1), 218A (1), 233 (1) and 335 (1) 19
Omit "A mining registrar" wherever occurring. 20
Insert instead "The Director-General". 21
[158] Sections 203 (1) (a) and 210A (2) 22
Omit "the mining registrar" wherever occurring. 23
Insert instead "the Director-General". 24
[159] Section 203 (1) (c)-(c3) 25
Omit section 203 (1) (c). Insert instead: 26
(c) if the holder of the claim contravenes a provision of this 27
Act or the regulations (whether or not the holder is 28
prosecuted or convicted of any offence arising from the 29
contravention), or 30
(c1) if a person contravenes a condition of the claim (whether 31
or not the holder is prosecuted or convicted of any offence 32
arising from the contravention), or 33
(c2) if the Director-General reasonably considers that the 34
holder of the claim provided false or misleading 35
information in or in connection with an application or any 36
Page 51
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
report provided under this Act for or with respect to the 1
claim, or 2
(c3) if the Director-General considers it appropriate to do so 3
having taken into account the matters required by section 4
238, or 5
[160] Section 203 (2) (a) 6
Omit "mining registrar for the mining division within which the claim area is 7
situated". 8
Insert instead "Director-General". 9
[161] Section 203 (4) 10
Omit the subsection. 11
[162] Section 204 Cancellations of mineral claims 12
Omit "(c), (d), (e) or (h), or suspending operations under a claim" from section 13
204 (1). 14
Insert instead "(b)-(e) or (h)". 15
[163] Section 204 (1) (a) and (b) 16
Omit "or suspension" wherever occurring. 17
[164] Section 204 (2) and (3) 18
Omit "or suspension of operations under" wherever occurring. 19
[165] Section 204 (2) 20
Omit "or suspension" where secondly occurring. 21
[166] Section 204 (3) 22
Omit "or suspension" where secondly occurring. 23
[167] Section 204 (4) and (5) 24
Omit the subsections. 25
[168] Section 205 Compensation for cancellation of mineral claims 26
Omit "or operations under it are suspended" from section 205 (1). 27
[169] Sections 206 (1), 210A (2) and 226 (3) 28
Omit "a mining registrar" wherever occurring. 29
Insert instead "the Director-General". 30
Page 52
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[170] Section 206 Review of decisions concerning cancellation of mineral 1
claims 2
Omit ", or suspend operations under," from section 206 (1). 3
[171] Section 208 Withdrawal of application 4
Omit "mining registrar with whom the application or objection was lodged" 5
from section 208 (1). 6
Insert instead "Director-General". 7
[172] Section 210B 8
Omit the section. Insert instead: 9
210B Limitation of challenges to decisions relating to mineral claims 10
(1) The cancellation of a mineral claim, or the grant or refusal of an 11
application for a mineral claim or for the renewal or transfer of a 12
mineral claim, cannot be challenged in any legal proceedings 13
commenced later than 3 months after the date of the cancellation, 14
grant or refusal. 15
(2) A notice lodged under section 208 cannot be challenged in any 16
legal proceedings commenced later than one month after the date 17
of its lodgment. 18
(3) This section has effect despite any other Act, but does not apply 19
so as to affect: 20
(a) any appeal from proceedings commenced within the 21
period of 3 months referred to in subsection (1) or, in the 22
case of proceedings relating to a notice referred to in 23
subsection (2), the month referred to in subsection (2), or 24
(b) the operation of section 206. 25
[173] Section 211 Rights of way 26
Omit "in the case of land within a mineral claims district," wherever occurring 27
in section 211 (2) (b) and (6) (b). 28
[174] Section 211 (3) (a) 29
Insert ", that comply with subsection (4)," after "and grids)". 30
[175] Section 211 (3) 31
Insert at the end of the section: 32
Maximum penalty (subsection (3)): 50 penalty units. 33
Page 53
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[176] Section 211 (9) 1
Omit "In the case of land within a mineral claims district, the". 2
Insert instead "The". 3
[177] Section 212 Right of access to water 4
Omit section 212 (2)-(4). Insert instead: 5
(2) If a dispute arises between the holder of the mineral claim and 6
any such landholder concerning the right of access, the holder of 7
the mineral claim or the landholder may apply to a Warden's 8
Court for a determination on the matter. 9
[178] Section 213 Use of water, timber and pasturage etc 10
Insert at the end of the section: 11
Maximum penalty: 100 penalty units. 12
[179] Section 217 13
Omit sections 216 and 217. Insert instead: 14
217 Settlement of certain disputes 15
If any dispute arises between the holders of 2 or more mineral 16
claims concerning their respective rights in relation to any land or 17
minerals, any one or more of them may apply to a Warden's 18
Court for a determination on the matter. 19
[180] Section 218A Records 20
Omit "mining registrar's office" from section 218A (3). 21
Insert instead "office of the Department". 22
[181] Section 219 23
Omit the section. 24
[182] Section 222 Objections 25
Omit section 222 (3) and (4). Insert instead: 26
(3) If an objection is made on the ground referred to in subsection (1) 27
(a), the Director-General is to determine the question of whether 28
the land concerned is agricultural land in accordance with 29
Schedule 2. 30
(4) The Minister must refer such part of an objection as has been 31
made on a ground referred to in subsection (1) (b) to a warden for 32
inquiry and report. 33
Page 54
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[183] Section 223 Certain land not to be included in opal prospecting area 1
Omit "an exempted area" from section 223 (1) (c). 2
Insert instead "reserved land". 3
[184] Section 223A Special conditions 4
Omit "lodged" from section 223A (2) (d). 5
Insert instead "provided and maintained, in accordance with Part 12A,". 6
[185] Section 225 Map of opal prospecting area to be prepared 7
Omit "mining registrar for each mining division within which the opal 8
prospecting area, or any part of the opal prospecting area, is situated" from 9
section 225 (1) (b). 10
Insert instead "Director-General". 11
[186] Section 225 (3) 12
Omit "mining registrar for each mining division within which the relevant opal 13
prospecting area, or any part of the area, is situated". 14
Insert instead "Director-General". 15
[187] Section 225 (4) 16
Omit the subsection. Insert instead: 17
(4) The Director-General must cause a copy of the map to be kept 18
available for inspection during office hours, free of charge, in 19
such location or locations as the Director-General determines. 20
[188] Section 226 Applications for opal prospecting licences 21
Insert "over an opal prospecting block" after "licence" in section 226 (1). 22
[189] Section 226 (2) 23
Omit the subsection. Insert instead: 24
(2) An application must be in writing, lodged with the 25
Director-General and accompanied by: 26
(a) the application fee prescribed by the regulations, and 27
(b) any information that is prescribed by the regulations. 28
[190] Section 227 Restrictions on grant of licence 29
Omit "in the same mining division" from section 227 (1) (d). 30
Page 55
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[191] Section 228 Power of Director-General in relation to applications 1
Omit section 228 (2). Insert instead: 2
(2) Without limiting the generality of subsection (1) or any other 3
provision of this Act, an application may be refused on any one 4
or more of the following grounds: 5
(a) that the applicant (or, in the case of an applicant that is a 6
corporation, a director of the corporation) has contravened 7
this Act or the regulations (whether or not the person has 8
been prosecuted or convicted of any offence arising from 9
the contravention) or has been convicted of any other 10
offence relating to mining or minerals, 11
(b) that the Director-General reasonably considers that the 12
applicant provided false or misleading information in or in 13
connection with the application, 14
(c) that the Director-General considers it appropriate to do so 15
having taken into account the matters required by section 16
238. 17
Note. Section 238 specifies additional matters that may be taken into 18
account in deciding whether or not an application should be refused. 19
[192] Section 228 (4)-(6) 20
Omit the subsections. 21
[193] Section 232A 22
Omit the section. 23
[194] Section 233 Grounds of cancellation of opal prospecting licence 24
Omit section 233 (1) (b). Insert instead: 25
(b) if the holder contravenes a provision of this Act or the 26
regulations (whether or not the holder is prosecuted or 27
convicted of any offence arising from the contravention), 28
or 29
(b1) if a person contravenes a condition of the licence (whether 30
or not the holder is prosecuted or convicted of any offence 31
arising from the contravention), or 32
(b2) if the Director-General reasonably considers that the 33
holder of the licence provided false or misleading 34
information in or in connection with an application or any 35
report provided under this Act for or with respect to the 36
licence, or 37
Page 56
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(b3) if the Director-General considers it appropriate to do so 1
having taken into account the matters required by section 2
238, or 3
[195] Section 233 (2) 4
Omit "the mining registrar for the mining division within which the opal 5
prospecting block is situated". 6
Insert instead "the Director-General". 7
[196] Section 234 Cancellations 8
Omit "(b), (c) or (d)" from section 234 (1). Insert instead "(b)-(d)". 9
[197] Section 234A 10
Insert after section 234: 11
234A Limitation of challenges to decisions relating to opal prospecting 12
licences 13
(1) The cancellation of an opal prospecting licence or the grant or 14
refusal of an application for an opal prospecting licence cannot be 15
challenged in any legal proceedings commenced later than 3 16
months after the cancellation, grant or refusal. 17
(2) This section has effect despite any other Act, but does not apply 18
so as to affect any appeal from proceedings commenced within 19
the period of 3 months referred to in subsection (1). 20
[198] Section 235A 21
Omit sections 235A and 235B. Insert instead: 22
235A Records 23
(1) The Director-General is to cause to be kept a record of: 24
(a) every application for an opal prospecting licence that is 25
made, and 26
(b) every opal prospecting licence that is granted or cancelled, 27
and 28
(c) the amendment of any opal prospecting licence. 29
(2) The record must be kept in the approved form and must contain 30
the particulars prescribed by the regulations. 31
(3) The record must be kept available for inspection, free of charge, 32
by members of the public at such office or offices of the 33
Department as the Director-General determines. 34
Page 57
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[199] Section 235C Rights of way 1
Insert ", that comply with subsection (4)," after "and grids)" in section 2
235C (3). 3
[200] Section 235C (3) 4
Insert at the end of the section: 5
Maximum penalty (subsection (3)): 50 penalty units. 6
[201] Section 236 7
Omit the section. 8
[202] Section 236C Alternative procedures for making access management 9
plan 10
Omit "the Warden's Court" from section 236C (b). 11
Insert instead "a Warden's Court in accordance with this Part". 12
[203] Section 236G Determination of access management plan by Warden's 13
Court 14
Omit "the Warden's Court" from section 236G (1) (a). 15
Insert instead "a Warden's Court". 16
[204] Part 11 Protection of the environment 17
Omit Divisions 1 and 2 of the Part. Insert instead: 18
Division 1 Environmental consideration in 19
decision-making 20
237 Interpretation 21
In this Division: 22
approval means any form of permission whether under this or 23
any other Act or law. 24
authorisation decision means a decision (whether in response to 25
an application or otherwise) about whether or not: 26
(a) to grant, renew, transfer, suspend or cancel an 27
authorisation, or 28
(b) to impose conditions on, or vary the conditions of, an 29
authorisation, or 30
(c) to approve an application to register a mining sublease, or 31
(d) to approve a rehabilitation and environmental 32
management plan under section 246H. 33
Page 58
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
environmental performance--see section 239. 1
other relevant legislation means any legislation (whether or not 2
repealed or of a place outside the State) declared by the 3
regulations to be other relevant legislation for the purposes of this 4
Division. 5
relevant person means: 6
(a) in the case of a decision relating to the transfer of an 7
authorisation--the proposed transferee, and 8
(b) in any other case--the applicant for or holder of the 9
authorisation concerned. 10
238 Environment and environmental performance to be taken into 11
account 12
(1) In making an authorisation decision, the decision-maker is to take 13
into account: 14
(a) the likely impact on the environment of activities 15
authorised by the authorisation or undertaken in the 16
authorisation area or proposed authorisation area in 17
connection with activities authorised by the authorisation 18
(including any impact outside the authorisation area), and 19
(b) the environmental performance of each relevant person 20
and, if a relevant person is a corporation, of any related 21
corporation, and 22
(c) any guidelines approved by the Director-General for the 23
purposes of this section. 24
(2) The decision-maker may: 25
(a) have studies (including environmental impact studies) 26
carried out or engage persons to provide advice, as the 27
decision-maker considers necessary, to assist in the 28
making of an authorisation decision, and 29
(b) consider any reports or studies prepared in connection with 30
a relevant decision referred to in subsection (3). 31
(3) This section does not require the decision-maker: 32
(a) to consider or assess any matters that have already been, or 33
are to be, considered or assessed by a Minister or public 34
authority in connection with an approval of the Minister or 35
authority, or 36
(b) to take into account the impact of the uses of any products 37
obtained or derived from the minerals or other things 38
obtained as a result of activities authorised by the 39
Page 59
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
authorisation, unless the uses are activities authorised by 1
the authorisation. 2
(4) The decision-maker may, in making an authorisation decision, 3
disregard a contravention of the environment protection 4
legislation, having regard to its seriousness or otherwise, the 5
length of time since it occurred, and any other matters that appear 6
relevant to the decision-maker. 7
(5) Nothing in this section affects any requirement for an applicant 8
to provide information or documents in connection with an 9
application under this Act. 10
239 Meaning of environmental performance 11
(1) In this Division, the environmental performance of a relevant 12
person and, if the relevant person is a corporation, of any related 13
corporation, includes: 14
(a) whether the person or related corporation has contravened 15
any of the environment protection legislation or any other 16
relevant legislation, or has held an approval that has been 17
suspended or revoked under the environment protection 18
legislation or other relevant legislation, and 19
(b) if the relevant person is a corporation, whether a director 20
of the corporation: 21
(i) has contravened the environment protection 22
legislation or any other relevant legislation, or has 23
held an approval that has been suspended or revoked 24
under the environment protection legislation or 25
other relevant legislation, or 26
(ii) is or has been the director of another corporation 27
that has contravened the environment protection 28
legislation or any other relevant legislation, or has 29
held an approval that has been suspended or revoked 30
under the environment protection legislation or any 31
other relevant legislation. 32
(2) A reference in this section to a director of a corporation extends 33
to a person involved in the management of the affairs of the 34
corporation. 35
239A Recovery of public money spent under section 238 36
(1) If public money is spent under section 238 (2) in having studies 37
carried out or engaging persons to provide advice, the 38
decision-maker may, by written notice, require the relevant 39
person concerned to reimburse the Government, within the time 40
Page 60
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
specified in the notice, for the money, or any part of the money, 1
reasonably incurred. 2
(2) The decision-maker may recover from the relevant person any 3
unpaid amounts specified in the notice as a debt in a court of 4
competent jurisdiction. 5
Division 2 Conditions relating to the environment, 6
rehabilitation and reporting 7
239B Conditions for environment protection and rehabilitation 8
(1) Without limiting any other provision of this Act, a condition may 9
be imposed on an authorisation that requires the holder to carry 10
out activities for any one or more of the following purposes: 11
(a) the conservation of the environment, protection of the 12
environment from harm as a result of activities under the 13
authorisation or the prevention, control or mitigation of 14
any such harm, 15
(b) the rehabilitation of land or water that is or may be affected 16
by activities under the authorisation, 17
(c) the afforestation (including for carbon sequestration 18
within the meaning of section 87A of the Conveyancing 19
Act 1919 and related environmental purposes) of any part 20
of the authorisation area that may have been adversely 21
affected by activities under the authorisation, 22
(d) the offsetting of any such adverse effects by the dedication 23
or conservation of land for a public purpose or the 24
rehabilitation of land or water other than the authorisation 25
area. 26
(2) However, a condition referred to in subsection (1) (c) may be 27
imposed only at the request of an applicant for, or the holder of, 28
the authorisation. 29
(3) A condition may be imposed under this section: 30
(a) whether or not the land or water that is or may be affected 31
by the activities is or has at any time been an authorisation 32
area, and 33
(b) whether or not the activities were carried out by the current 34
holder of the authorisation, and 35
(c) whether or not the activities were authorised by the 36
authorisation, and 37
Page 61
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(d) if the authorisation has been previously wholly or partly 1
transferred, whether or not the activities were carried out 2
under the transferred authority. 3
(4) A condition relating to land or water outside an authorisation area 4
(including land previously in an authorisation area): 5
(a) may be imposed only in relation to matters arising, or 6
likely to arise, directly from activities carried out under an 7
authorisation or under section 81, and 8
(b) may require the provision and management of 9
environmental off-sets related to the matters referred to in 10
paragraph (a), and 11
(c) may require the monitoring of environmental impacts and 12
the provision of environmental data in relation to the land 13
or water. 14
(5) A condition may be imposed on the holder of an authorisation in 15
relation to the rehabilitation of land or water affected by activities 16
carried on under an authorisation that has been cancelled or 17
previously carried on without an authorisation, only if the 18
condition is imposed when the authorisation is granted or with 19
the consent of the holder. 20
(6) A condition imposed under this section may be varied or revoked 21
by written notice served on the holder of the authorisation. 22
(7) A condition imposed under this section takes effect on the date on 23
which the written notice is served on the holder of the 24
authorisation or on any later date specified in the notice. 25
(8) This section does not affect the operation of section 75V 26
(Approvals etc legislation that must be applied consistently) or 93 27
(Granting and modification of approval by approval body) of the 28
Environmental Planning and Assessment Act 1979. 29
239C Conditions requiring reporting 30
(1) A condition may be imposed on an authorisation to require the 31
holder to provide the Director-General with reports detailing any 32
one or more of the following: 33
(a) the extent to which the conditions of the authorisation, or 34
any provisions of this Act or the regulations applicable to 35
activities under the authorisation, have or have not been 36
complied with, 37
(b) particulars of any non-compliance with any such 38
conditions or provisions, 39
(c) the reasons for any such non-compliance, 40
Page 62
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(d) any action taken, or to be taken, to prevent any recurrence, 1
or to mitigate the effects, of that non-compliance. 2
(2) A condition imposed under this section (a reporting condition) 3
may require a report to be certified as correct by the holder, 4
another person approved by the Director-General or a person who 5
is a member of a class of persons prescribed by the regulations. 6
(3) A condition imposed under this section takes effect on the date on 7
which written notice of the condition is served on the holder of 8
the authorisation or on any later date specified in the notice. 9
(4) A condition imposed under this section may be varied or revoked 10
by written notice served on the holder of the authorisation. 11
(5) A person who gives a certificate for the purposes of a reporting 12
condition is guilty of an offence if the person gives the certificate 13
knowing that any of the statements certified is false or misleading 14
in a material respect. 15
Maximum penalty: 16
(a) in the case of a corporation--1,000 penalty units, or 17
(b) in the case of a natural person--500 penalty units. 18
239D Use of information provided under reporting condition 19
(1) Any document or information provided under a reporting 20
condition imposed under this Division may be taken into 21
consideration by the Director-General or the Minister and used 22
for the purposes of this Act. 23
(2) Without limiting subsection (1), any such document or 24
information is admissible in evidence in any prosecution of the 25
holder of the authorisation for any offence against this Act or the 26
regulations, whether or not the information or statements might 27
incriminate that holder. 28
(3) The Director-General is authorised, despite any other Act or law, 29
to provide a relevant agency with any such document or 30
information. 31
(4) In this section, relevant agency means the Department or a public 32
authority engaged in administering or executing the environment 33
protection legislation, the Environmental Planning and 34
Assessment Act 1979 or such other legislation, if any, as may be 35
prescribed by the regulations. 36
Page 63
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[205] Part 11, Division 3, heading 1
Omit the heading. Insert instead: 2
Division 3 Environmental, rehabilitation and other 3
directions 4
[206] Sections 239E-240E 5
Omit section 240. Insert instead: 6
239E Definitions 7
In this Division: 8
authorisation includes a mining sublease and (except in sections 9
240 (4) and 240A) an authorisation that has ceased to have effect. 10
authorised person means: 11
(a) a person engaged in connection with the taking of steps 12
under section 241 (1), or 13
(b) the Director-General, or 14
(c) a person authorised in writing by the Director-General for 15
the purposes of this Division, or 16
(d) an inspector. 17
mining sublease includes a mining sublease that has ceased to 18
have effect. 19
responsible person means: 20
(a) in relation to an authorisation that is in force: 21
(i) a holder of the authorisation, or 22
(ii) in the case of a mining lease or registered mining 23
sublease that authorises the holder to mine for coal 24
or carry out mining purposes connected with the 25
land--a person who is the operator of the mine 26
concerned within the meaning of the Coal Mine 27
Health and Safety Act 2002, or 28
(b) in relation to an authorisation that has ceased to be in 29
force--a person who was a responsible person, in relation 30
to that authorisation, immediately before the authorisation 31
ceased to be in force. 32
240 Directions 33
(1) The Director-General or an inspector may, by written notice, 34
direct a responsible person in relation to an authorisation to do 35
any one or more of the following: 36
Page 64
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(a) to give effect to a condition of an authorisation (except a 1
condition requiring payment of royalty or provision or 2
maintenance of a security deposit), 3
(b) to address any adverse impact that activities carried out 4
under, or purportedly carried out under, an authorisation 5
have had on any aspect of the environment, 6
(c) to address a risk of there being such an impact, 7
(d) to conserve the environment, protect it from harm as a 8
result of activities under the authorisation or to prevent, 9
control or mitigate any such harm, 10
(e) to rehabilitate land or water that is or may be affected by 11
activities under the authorisation. 12
(2) A direction may require a responsible person to carry out or stop 13
carrying out particular activities, carry out activities in a 14
particular manner or achieve specified outcomes, within such 15
period (if any) as is specified in the direction. 16
(3) However, a direction to a responsible person in the person's 17
capacity as the holder of a mining sublease may only impose 18
requirements relating to activities under the sublease or in 19
relation to the sublease area. 20
(4) If a direction is issued to a person who is not the holder of the 21
authorisation to which the direction relates, the Director-General 22
must cause a copy of the direction to be served on the holder 23
within 5 days after the direction is issued. 24
240A Direction to suspend operations 25
(1) The Director-General may, by written notice (a suspension 26
notice), direct a responsible person to suspend (by such time as is 27
specified in the direction and until further notice) all, or any 28
specified, operations under an authorisation if the 29
Director-General considers that there has been a contravention 30
of: 31
(a) a direction under section 240 that relates to the 32
authorisation, or 33
(b) a condition of the authorisation (including a condition 34
requiring the payment of royalty or provision or 35
maintenance of a security deposit), or 36
(c) an access arrangement that relates to the authorisation 37
area, or 38
Page 65
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(d) an agreement or assessment under Part 13 relating to the 1
payment of compensation in connection with the 2
authorisation. 3
(2) Before giving a suspension notice, the Director-General is to: 4
(a) cause written notice of the proposed suspension notice and 5
the grounds for it to be served on the holder of the 6
authorisation, and 7
(b) give the holder a reasonable opportunity to make 8
representations with respect to the proposed suspension 9
notice, and 10
(c) take any such representations into consideration. 11
(3) The suspension notice takes effect on the date on which it is given 12
to the holder of the authorisation. 13
(4) The suspension of an authority does not affect any liability 14
incurred by the holder of the authorisation before the cancellation 15
took effect. 16
(5) The holder of an authorisation is not entitled to compensation 17
merely because of the suspension of operations under the 18
authorisation in accordance with a suspension notice. 19
(6) If a suspension notice under this section is issued to a person who 20
is not the holder of the authorisation concerned, the 21
Director-General must cause a copy of the notice to be served on 22
the holder within 5 days after the notice is issued. 23
240B Revocation or variation 24
(1) A direction under this Division may be revoked or varied by a 25
subsequent direction issued in accordance with this Division. 26
(2) A direction may be varied by modification of, or addition to, its 27
terms and specifications. 28
(3) Without limiting the above, a direction may be varied by 29
extending the time for complying with the direction. 30
240C Breach of direction 31
If a person fails, without reasonable excuse, to comply with a 32
direction under this Division: 33
(a) the person to whom the direction was issued, and 34
(b) the holder of the authorisation to which the direction 35
relates (if not the person to whom the direction was 36
issued), 37
Page 66
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
are each guilty of an offence. 1
Maximum penalty: 500 penalty units and, in the case of a 2
continuing offence, a further penalty of 50 penalty units for each 3
day that the offence continues. 4
240D Effect of direction 5
The issuing of a direction under this Division does not affect: 6
(a) the liability of any person to any penalty for an offence in 7
relation to an authorisation, or 8
(b) the amount of security deposit that is or may be required 9
under an authorisation, or 10
(c) the operation of any other provision of this Act or the 11
regulations that requires or enables other action to be taken 12
in relation to any contravention or other circumstances to 13
which the direction relates. 14
Note. For example, the issuing of a direction does not affect the power 15
to cancel an authority under section 125. 16
240E Fee 17
(1) The purpose of this section is to enable the recovery of the 18
administrative costs of preparing and issuing a direction under 19
this Division (not including a direction that varies an earlier 20
direction under this Division). 21
(2) A person to whom a direction is issued must within 30 days pay 22
the fee prescribed by the regulations to the Director-General. 23
[207] Section 241 Rehabilitation by Minister at holder's expense 24
Insert after section 241 (2): 25
(3) An authorised person may enter any land and do anything that in 26
the person's opinion is necessary for or in connection with the 27
taking of those steps (including gaining access from that land to 28
other land). 29
(4) However, an authorised person must not enter land unless the 30
person: 31
(a) has given the occupier of the land reasonable notice of the 32
person's intention to do so, and 33
(b) enters the land at a reasonable time (except in the case of 34
an emergency), and 35
(c) uses no more force than is reasonably necessary to effect 36
entry, and 37
Page 67
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(d) before entering any premises on the land that are used only 1
for residential purposes, has obtained the permission of the 2
occupier of those premises. 3
(5) A person who suffers damage caused by the taking of steps under 4
this section is entitled to be paid reasonable compensation by the 5
person who failed to comply with the direction (as referred to in 6
subsection (1)). 7
(6) Division 3 of Part 13 and Part 15 apply (with such modifications 8
as may be prescribed by the regulations) to that compensation as 9
if it were compensation payable for a compensable loss (within 10
the meaning of Division 3 of Part 13). 11
[208] Part 11, Division 3A 12
Insert after Division 3 of Part 11: 13
Division 3A Derelict mine sites 14
242A Declaration of derelict mine sites 15
(1) The Minister may, by order published in the Gazette, declare as a 16
derelict mine site any land that, in the opinion of the Minister: 17
(a) was used for, or has been affected by, mining operations or 18
prospecting operations, and 19
(b) has been abandoned. 20
(2) The declaration is to identify the land with reasonable 21
particularity. 22
(3) In making the declaration, the Minister is to have regard to any 23
matters that are prescribed by the regulations. 24
(4) The Minister may declare land as a derelict mine site whether or 25
not it is possible to identify or locate the landholder or the holder 26
of an authorisation under which operations referred to in 27
subsection (1) (a) were carried out. 28
(5) A declaration cannot be challenged in any legal proceedings 29
commenced later than 3 months after the order is published in the 30
Gazette. 31
(6) Subsection (5) has effect despite the provisions of any other Act 32
or law, but does not apply so as to affect any appeal from 33
proceedings commenced within 3 months after the declaration is 34
published in the Gazette. 35
Page 68
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
242B Rehabilitation of derelict mine site 1
(1) The Director-General may cause steps to be taken to have a 2
derelict mine site fully or partially rehabilitated and may, for that 3
purpose, enter into contracts or agreements. 4
(2) An authorised person may enter any land and do anything that in 5
the person's opinion is necessary for or in connection with the 6
rehabilitation (including gaining access to other land from that 7
land). 8
(3) However, an authorised person must not enter land unless the 9
person: 10
(a) has given the occupier of the land reasonable notice of the 11
person's intention to do so, and 12
(b) enters the land at a reasonable time (except in the case of 13
an emergency), and 14
(c) uses no more force than is reasonably necessary to effect 15
entry. 16
(4) A landholder who suffers damage caused by an authorised person 17
entering the landholder's land under this section is entitled to be 18
paid reasonable compensation by the Crown unless the 19
landholder obstructed, hindered or restricted the authorised 20
person's entry. 21
(5) Division 3 of Part 13 and Part 15 apply (with such modifications 22
as may be prescribed by the regulations) to that compensation as 23
if it were compensation payable for a compensable loss (within 24
the meaning of Division 3 of Part 13). 25
(6) In this section: 26
authorised person means: 27
(a) a person engaged in connection with the taking of steps 28
under subsection (1), or 29
(b) the Director-General, or 30
(c) a person authorised in writing by the Director-General for 31
the purposes of this section, or 32
(d) an inspector. 33
242C Derelict Mine Sites Fund 34
(1) There is established in the Special Deposits Account the Derelict 35
Mine Sites Fund. 36
Page 69
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(2) Money in the Fund is under the control of the Director-General 1
and may be spent by the Director-General only for the purposes 2
authorised by this section. 3
(3) There is to be paid into the Fund: 4
(a) the balance of any money received from the sale of mining 5
plant under section 246A after all deductions have been 6
made in accordance with that section, and 7
(b) the proceeds of investment of money in the Fund, and 8
(c) money obtained under a security deposit that is payable 9
into the Fund under section 261F or 261G, and 10
(d) any other money that is appropriated by Parliament for the 11
purposes of the Fund, that is required by law to be paid into 12
the Fund or that the Minister has approved being paid into 13
the Fund. 14
(4) Subject to the regulations, there may be paid out of the Fund: 15
(a) compensation payable to a landholder under section 242B, 16
and 17
(b) any other costs associated with the rehabilitation of 18
derelict mine sites under this Division, as determined by 19
the Director-General. 20
[209] Section 243 21
Omit the section. Insert instead: 22
243 Application of Division 23
This Division applies to land that ceases to be subject to an 24
authorisation. 25
[210] Section 244 Definitions 26
Insert in alphabetical order: 27
forfeiture order means an order under section 246. 28
former holder, in relation to an authorisation that has ceased to 29
apply to land, means the person who was the holder of the 30
authorisation immediately before the authorisation ceased to 31
apply to the land. 32
landholder of land means the owner of an estate in fee simple of 33
the land, the controlling body in relation to reserved land or the 34
holder, over or in the land, of: 35
(a) a lease or licence granted under the Crown Lands Act 36
1989, or 37
Page 70
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(b) a tenure referred to in Part 1 or 2 of Schedule 1 to the 1
Crown Lands (Continued Tenures) Act 1989 in the land, or 2
(c) a lease granted under the Western Lands Act 1901 over the 3
land. 4
[211] Section 244, definition of "mining plant" 5
Insert "prospecting," after "used for". 6
[212] Section 244, definition of "prescribed period" 7
Omit the definition. Insert instead: 8
prescribed period, in relation to land that has ceased to be subject 9
to an authorisation, means the period of 6 months from the date 10
on which the land ceased to be subject to the authorisation or any 11
longer period that the Minister may, in any particular case, allow. 12
[213] Sections 245-246X 13
Omit sections 245 and 246. Insert instead: 14
245 Clearing away of mining plant 15
(1) If land ceases to be subject to an authorisation, the former holder 16
of the authorisation: 17
(a) may, within the prescribed period, and 18
(b) must, if directed to do so by the Minister by written notice 19
served on the person, within the period specified in the 20
notice, 21
remove from the land mining plant brought onto, or erected on, 22
that land in the course of mining operations carried out under the 23
authorisation. 24
(2) The Minister may give a direction even though the prescribed 25
period has not expired. 26
246 Forfeiture of mining plant 27
(1) If an item of mining plant is not duly removed under section 245, 28
the Minister may, by order published in the Gazette, declare the 29
item to be forfeited to: 30
(a) a person whom the Minister is satisfied has a right to the 31
control, use or benefit of the plant, or 32
(b) if the Minister is not so satisfied, to one of the following as 33
the Minister thinks fit and specifies in the order: 34
(i) the Crown, 35
(ii) a landholder on whose land the plant is located. 36
Page 71
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(2) The Minister is to cause a copy of the forfeiture order to be served 1
on the person to whom the item is forfeited (if the person is not 2
the Crown) and each landholder. 3
(3) Ownership of the plant vests in the person to whom the item is 4
forfeited, freed and discharged from all other estates and interests 5
in the plant: 6
(a) when the period for applying under section 246C to a 7
Warden's Court for a review of the order expires without 8
an application being made, or 9
(b) if any such application is made within that period, when 10
the court confirms the order or the application is 11
withdrawn, 12
whichever occurs first. 13
246A Disposal of forfeited mining plant 14
(1) A person must not dispose of or otherwise deal with any estate or 15
interest in an item of mining plant that is the subject of a 16
forfeiture order unless ownership of the plant has vested in the 17
person under this Division. 18
Maximum penalty: 100 penalty units. 19
(2) The proceeds of any disposal of an item of mining plant forfeited 20
to the Crown under this Division must be paid into the Derelict 21
Mine Sites Fund, after deduction of the following amounts: 22
(a) the costs of the disposal and of any matter incidental to or 23
connected with the disposal, 24
(b) the costs of removing from the land concerned any plant 25
remaining unsold after the disposal, 26
(c) any amount owing in respect of compensation for 27
compensable loss within the meaning of Division 3 of Part 28
13, 29
(d) any other amount that the Director-General certifies to be 30
a deductible amount. 31
(3) If the proceeds of any such disposal are less than the amounts to 32
be deducted, the proceeds are to be applied in or towards meeting 33
those amounts in such manner as the Minister directs. 34
246B Consultation and notice about plant removal or forfeiture 35
(1) Before giving a direction under section 245 or making a 36
forfeiture order, in relation to an item of plant on land that has 37
ceased to be subject to an authorisation, the Minister is, if 38
practicable: 39
Page 72
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(a) to give the holder of the former authorisation and each 1
landholder of the land written notice of the intention to 2
issue the direction or order, and 3
(b) to take into account any submissions that are received in 4
response to the notice within 21 days after the notice is 5
given. 6
(2) A failure to comply with subsection (1) does not invalidate a 7
direction or order. 8
246C Review of order vesting mining plant 9
(1) A landholder on whose land an item of mining plant is located 10
that is the subject of a forfeiture order may, within 28 days after 11
a copy of the order is served on the landholder, apply to a 12
Warden's Court for a review of the order. 13
(2) The landholder must serve a copy of the application on the 14
Minister in accordance with the rules under section 332. 15
(3) The Minister is a party to the review proceedings. 16
(4) The court may dispose of the application: 17
(a) by varying or revoking the order, or 18
(b) by confirming the order. 19
(5) If the court revokes the order, it may make an order vesting the 20
item of plant in: 21
(a) a person whom the court is satisfied has a right to the 22
control, use or benefit of the plant, or 23
(b) if the court is not so satisfied, one of the following, as the 24
court thinks fit: 25
(i) the Crown, 26
(ii) a landholder on whose land the plant is located. 27
246D Limitation of challenges to forfeiture 28
(1) The forfeiture of an item of plant under this Division cannot be 29
challenged in any legal proceedings commenced later than 3 30
months after the forfeiture order is published in the Gazette. 31
(2) This section has effect despite the provisions of any other Act, 32
but does not apply so as to affect: 33
(a) any appeal from proceedings commenced within the 34
period of 3 months referred to in subsection (1), or 35
(b) the operation of section 246C. 36
Page 73
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
246E Liabilities in relation to vesting of or defect in forfeited plant 1
(1) A person in whom the ownership of an item of plant vests under 2
this Division is not, because of that vesting, liable to pay 3
compensation or make any other payment to any other person. 4
(2) The Crown does not incur any liability (including liability for 5
compensation) in respect of any loss or injury suffered by a 6
person because of the operation of or a defect in plant that is 7
forfeited under this Division. 8
(3) This section does not limit the generality of section 362. 9
(4) In this section: 10
compensation includes damages or any other form of monetary 11
compensation. 12
the Crown means the Crown within the meaning of the Crown 13
Proceedings Act 1988, and includes any officer, employee or 14
agent of the Crown. 15
Division 5 Rehabilitation and environmental 16
management plans 17
246F Definitions 18
In this Division: 19
approved, in relation to a rehabilitation and environmental 20
management plan, means approved under this Division. 21
guidelines means guidelines issued by the Director-General for 22
the purposes of this Division and published in the Gazette. 23
246G Rehabilitation and environmental management plans for 24
authorisations other than mining leases 25
(1) A condition may be imposed on an authorisation (other than a 26
mining lease) that the holder must comply with a rehabilitation 27
and environmental management plan approved by the 28
Director-General in carrying out activities authorised by the 29
authorisation (whether inside or outside the authorisation area). 30
(2) A condition imposed on an authorisation under this section takes 31
effect on the date on which written notice of the condition is 32
served on the holder of the authorisation or on any later date that 33
is specified in the notice. 34
Note. Section 70 makes it a condition of a mining lease that the holder 35
comply with an approved rehabilitation and environmental management 36
plan. Section 378D makes it an offence not to comply with a condition of 37
an authorisation. 38
Page 74
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
246H Application for approval of rehabilitation and environmental 1
management plan 2
(1) The holder of an authorisation may apply in writing to the 3
Director-General for approval of a rehabilitation and 4
environmental management plan or a variation of a rehabilitation 5
and environmental management plan for the purposes of the 6
authorisation. 7
(2) The Director-General may grant or refuse the application. 8
(3) The Director-General may grant an application only if satisfied 9
that the plan or the plan as varied: 10
(a) describes how activities are to be carried out under the 11
authorisation and how the authorisation area is to be 12
managed after those activities cease, and 13
(b) addresses any other matters that are prescribed by the 14
regulations, and 15
(c) is consistent with the conditions of the authorisation, and 16
(d) is consistent with the guidelines. 17
Note. Section 238 requires the Director-General to take certain matters 18
into account in deciding whether or not to approve a rehabilitation and 19
environmental management plan. 20
(4) The Director-General must approve a new plan or a variation of 21
a plan if satisfied that the plan or variation is necessary for 22
compliance with a condition of a licence under the Protection of 23
the Environment Operations Act 1997 or a development consent. 24
(5) The Director-General may refuse to approve the variation of a 25
rehabilitation and environmental management plan if the 26
Director-General considers that the variation would be more 27
appropriately dealt with by a new plan (because of, for example, 28
the number of changes proposed). 29
246I Term of rehabilitation and environmental management plan 30
(1) A rehabilitation and environmental management plan remains in 31
force for a period of 7 years commencing on its approval, or such 32
other period, if any, as may be specified by the Director-General 33
in the notice of its approval. 34
(2) While a plan is still in force the Director-General may, on the 35
written application of the holder of the authorisation and by 36
written notice to the holder, extend the period for which it is in 37
force for such period as the Director-General thinks fit. 38
Page 75
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
246J Continuing rehabilitation obligations 1
(1) If: 2
(a) an authorisation expires or is cancelled (whether or not at 3
the request of a holder of the authorisation), and 4
(b) at that time an obligation of the person who was the holder 5
under a condition imposed under section 70 (1) (b) or this 6
Division was not discharged, 7
the person remains liable to comply with that obligation until it is 8
discharged and is liable to a penalty for any non-compliance as if 9
the authorisation were still in force and the person were still a 10
holder of the authorisation. 11
(2) The Minister may determine that the person is not subject to: 12
(a) any particular obligation under this section, or 13
(b) all the person's remaining obligations under this section. 14
(3) A determination under subsection (2) is to be in writing. 15
246K Reviews 16
(1) If the Director-General refuses an application under this 17
Division, the applicant may, within 2 months after the refusal, 18
apply in writing to the Minister to review the refusal. 19
(2) In reviewing a refusal, the Minister is to have regard to: 20
(a) any reasons given by the Director-General for the decision, 21
and 22
(b) any supporting information that the applicant may submit 23
in relation to the application for review, and 24
(c) any other information that the Minister considers relevant. 25
(3) On a review, the Minister: 26
(a) has all the functions and discretions of the 27
Director-General in respect of the matter that is under 28
review, and 29
(b) cannot approve a rehabilitation and environmental 30
management plan, or a variation of a plan, other than that 31
for which approval was sought from the Director-General. 32
(4) The decision of the Minister on a review is taken to be the 33
decision of the Director-General and is to be given effect to 34
accordingly. 35
Page 76
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
246L Applications--miscellaneous provisions 1
(1) An application under this Division must: 2
(a) be made in the approved form and manner (if any), and 3
(b) contain any information that is prescribed by the 4
regulations, and 5
(c) be accompanied by the fee (if any) prescribed by the 6
regulations. 7
(2) The Director-General or the Minister must cause written notice of 8
his or her decision on an application under this Division to be 9
given to the applicant (including, if the decision is to refuse the 10
application, the reasons for that refusal) within the period 11
prescribed by the regulations. 12
(3) An application under this Division is taken to have been refused 13
if it has not been determined within the period prescribed by the 14
regulations. 15
(4) However, this does not preclude the determination of an 16
application after that period expires. 17
Division 6 Audits 18
246M Relationship of this Division to other provisions 19
This Division does not affect any other provision of this Act that: 20
(a) enables an authorisation to be subject to a condition 21
requiring monitoring or reporting, or 22
(b) relates to functions exercisable by persons for the purpose 23
of auditing compliance with this Act, the regulations or 24
conditions of authorisations. 25
246N Nature of audit 26
An audit under this Division is a periodic or particular 27
documented evaluation of prospecting or mining operations 28
(including management practices, systems and plant) for any one 29
or more of the following purposes: 30
(a) to provide information on compliance or otherwise with 31
obligations under the authorisation or other related legal 32
requirements under this or any other law (including in 33
relation to the protection of the environment from the 34
impacts of, or the rehabilitation of land affected by, 35
activities under the authorisation), 36
Page 77
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(b) to provide information on compliance or otherwise with 1
codes of practice or policies relevant to the authorisation, 2
(c) to enable a determination of whether the way activities are 3
being carried out under the authorisation can be improved 4
in order to protect the environment. 5
246O Accreditation and regulation of auditors 6
The regulations may make provision for or with respect to either 7
or both of the following: 8
(a) the accreditation of auditors for the purposes of this 9
Division, 10
(b) the carrying out of audits by auditors. 11
246P Conditions for mandatory audits 12
(1) A condition that requires one or more mandatory audits to be 13
undertaken, to the satisfaction of the Director-General, for any 14
one or more of the purposes referred to in section 246N (a 15
mandatory audit condition) may be imposed on an authorisation. 16
(2) A mandatory audit condition must specify the purpose or 17
purposes of the audit. 18
(3) A mandatory audit condition may require any one or more of the 19
following: 20
(a) appointment of an auditor to undertake the audit, 21
(b) approval by the Director-General of the auditor before 22
being appointed, 23
(c) preparation of particular written documentation during the 24
course of the audit, 25
(d) preparation of an audit report, 26
(e) production to the Director-General of the audit report. 27
(4) A mandatory audit condition may also: 28
(a) specify the format and level of detail required for the audit, 29
or 30
(b) require the auditor to submit the proposed format and level 31
of detail to the Director-General for approval. 32
(5) A mandatory audit condition may be varied or revoked by written 33
notice served on the holder of the authorisation. 34
(6) A condition imposed under this section takes effect on the date on 35
which written notice of the condition is served on the holder of 36
the authorisation or on any later date specified in the notice. 37
Page 78
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(7) This section does not affect the operation of section 75V 1
(Approvals etc legislation that must be applied consistently) or 93 2
(Granting and modification of approval by approval body) of the 3
Environmental Planning and Assessment Act 1979. 4
246Q Certification of audit report 5
The audit report for a mandatory audit is taken not to have been 6
duly produced to the Director-General unless it is accompanied 7
by: 8
(a) a declaration signed by the holder of the authorisation 9
certifying that the holder has not knowingly provided any 10
false or misleading information to the auditor and has 11
provided all relevant information to the auditor, and 12
(b) a declaration signed by the auditor: 13
(i) setting out the auditor's qualifications, and 14
(ii) certifying that the report is accurate, and that the 15
auditor has not knowingly included any false or 16
misleading information in it or failed to include any 17
relevant information in it. 18
246R Offences relating to audit information 19
(1) A person who provides information to an auditor in connection 20
with a mandatory audit, knowing the information to be false or 21
misleading in a material respect, is guilty of an offence. 22
(2) The holder of an authorisation who fails to provide information 23
to an auditor in connection with a mandatory audit being carried 24
out in relation to the authorisation, knowing the information to be 25
materially relevant to the audit, is guilty of an offence. 26
(3) An auditor who includes information in an audit report produced 27
to the Director-General in connection with a mandatory audit, 28
knowing the information to be false or misleading in a material 29
respect, is guilty of an offence. 30
(4) An auditor who fails to provide information in an audit report 31
produced to the Director-General in connection with a mandatory 32
audit, knowing the information to be materially relevant to the 33
audit, is guilty of an offence. 34
(5) The holder of an authorisation who: 35
(a) fails to retain any written documentation required to be 36
prepared by the holder in connection with a mandatory 37
audit for a period of at least 5 years after the audit report 38
Page 79
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
concerned was produced to the Director-General (or such 1
other period as is prescribed by the regulations), or 2
(b) fails to produce during that period any such documentation 3
to the Director-General on request, 4
is guilty of an offence. 5
Maximum penalty: 6
(a) in the case of a corporation--1,000 penalty units, or 7
(b) in the case of a natural person--500 penalty units. 8
246S Self-incriminatory information not exempt 9
Information must be supplied by a person in connection with a 10
mandatory audit, and this Division applies to any such 11
information that is supplied, whether or not the information 12
might incriminate the person. 13
246T Use of information 14
(1) Any information in an audit report or other documentation 15
supplied to the Director-General in connection with a mandatory 16
audit may be supplied by the Director-General to, and taken into 17
consideration by, any person who has functions under this Act, 18
the Environmental Planning and Assessment Act 1979 or the 19
environment protection legislation and may be used by that 20
person for the purposes of those laws. 21
(2) Without limiting subsection (1): 22
(a) the Director-General is authorised, despite any other Act 23
or law, to provide a relevant agency with any such 24
information, and 25
(b) any such information is admissible in evidence in any 26
prosecution of the holder of an authorisation for any 27
offence (whether under this Act or otherwise). 28
(3) In this section, relevant agency means the Department, or a 29
public authority engaged in administering or executing the 30
environment protection legislation, the Environmental Planning 31
and Assessment Act 1979 or such other legislation, if any, as may 32
be prescribed by the regulations. 33
246U Nature of voluntary audit 34
(1) For the purposes of this Division, a voluntary audit is an audit 35
commissioned or carried out voluntarily, whether or not in 36
relation to activities carried out under an authorisation. 37
Page 80
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(2) An audit is not voluntary if there is a contemporaneous 1
requirement for a mandatory audit in relation to the same or 2
substantially the same activity or other matter and the audits are 3
to be carried out by the same person. 4
246V Protected documents 5
(1) Documents prepared for the sole purpose of a voluntary audit are 6
protected documents for the purposes of this Act. 7
(2) The protected documents include the final report of the audit and 8
any documents prepared during the course of the audit for the 9
sole purpose of the audit. 10
(3) Without affecting the generality of subsection (1) or (2), 11
documents are not protected if they are prepared wholly or partly 12
in connection with monitoring or reporting that is required by any 13
conditions of an authorisation or by a direction under section 240. 14
246W Nature of protection 15
(1) A protected document: 16
(a) is not admissible in evidence against any person in any 17
proceedings connected with the administration or 18
enforcement of this Act, the environment protection 19
legislation or such other legislation, if any, as may be 20
prescribed, and 21
(b) must not be inspected, copied, seized or otherwise 22
obtained by the Department, any authority prescribed by 23
the regulations or by any other person for any purpose 24
connected with such administration or enforcement. 25
(2) Neither the Department, a prescribed authority nor any other 26
person may, for the purpose referred to in subsection (1) (b), 27
require a person to answer any question or provide any 28
information about the existence of the document or about what it 29
contains. 30
(3) The onus of establishing that a document is a protected document 31
lies on the person asserting that it is protected. 32
(4) A court may inspect any document that is claimed to be a 33
protected document for the purpose of determining whether it is 34
or is not a protected document. 35
(5) The regulations may prescribe procedures for making and 36
determining claims that a document is a protected document. 37
Page 81
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
246X Lifting of protection 1
(1) Documents prepared in relation to a voluntary audit cease to be 2
protected if the person asserting or relying on the protection uses 3
or relies on (or attempts to use or rely on) the whole or any part 4
of one or more of the documents, whether directly or indirectly, 5
in any proceedings connected with the administration or 6
enforcement of this Act, the environment protection legislation 7
or such other legislation, if any, as may be prescribed. 8
(2) This section does not apply where the person is using or relying 9
on (or attempting to use or rely on) a document for the purpose of 10
establishing that the document is protected. 11
[214] Part 12, heading 12
Omit the heading. Insert instead: 13
Part 12 Powers of entry and inspection 14
[215] Part 12, Divisions 1-1E 15
Omit Division 1. Insert instead: 16
Division 1 Preliminary 17
247 Purposes for which powers under Part may be exercised 18
Powers may be exercised under this Part for the following 19
purposes: 20
(a) for determining whether there has been compliance with or 21
a contravention of this Act or the regulations or any 22
authorisation, direction, notice or requirement issued or 23
made under this Act, 24
(b) for obtaining information or records for purposes 25
connected with the administration of this Act, 26
(c) generally for administering this Act. 27
248 Effect on other functions 28
Nothing in this Part: 29
(a) affects any function under any other Part of this Act or 30
under any other Act, or 31
(b) limits the conditions that may be attached to an 32
authorisation. 33
Page 82
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
Division 1A Powers to require information and records 1
248A Application of Division 2
This Division applies whether or not a power of entry under 3
Division 1B is being or has been exercised. 4
248B Requirement to provide information and records 5
(1) An inspector may, by written notice given to a person, require the 6
person to furnish to the inspector such information or records (or 7
both) as the inspector requires by the notice in connection with 8
any matter relating to the administration of this Act. 9
(2) The notice must specify the manner in which the information or 10
records are required to be furnished and a reasonable time by 11
which the information or records are required to be furnished. 12
(3) If a record required to be furnished under the notice is in 13
electronic, mechanical or other form, the notice requires the 14
record to be furnished in written form, unless the notice otherwise 15
provides. 16
(4) The notice may only require a person to furnish existing records 17
that are in the person's possession or that are within the person's 18
power to obtain lawfully. 19
(5) The inspector to whom a record is furnished under the notice may 20
take copies of the record. 21
Division 1B Powers of entry and search 22
248C Powers to enter premises 23
(1) An inspector may enter: 24
(a) any premises at which the inspector reasonably suspects 25
that any prospecting operations, mining operations or 26
mining purposes are being or are about to be carried out-- 27
at any time, and 28
(b) any premises that the inspector reasonably suspects have 29
been, are being or are likely to be affected by prospecting 30
operations, mining operations or a mining purpose--at any 31
time. 32
(2) The power to enter premises authorises entry by foot or by means 33
of a motor vehicle or other vehicle, or by an aircraft, or in any 34
other manner. 35
Page 83
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(3) Entry may be effected with the aid of such police officers or other 1
inspectors as the inspector considers necessary and with the use 2
of reasonable force. 3
(4) Entry may be effected to any premises with the authority of a 4
search warrant under section 248F. 5
248D Entry into residential premises only with permission or warrant 6
This Division does not entitle an inspector to enter any part of 7
premises used only for residential purposes without the 8
permission of the occupier or the authority of a search warrant 9
under section 248F. 10
248E Powers of inspectors to do things at premises 11
(1) An inspector may, at any premises lawfully entered, do anything 12
that in the opinion of the inspector is necessary to be done for the 13
purposes of this Part, including (but not limited to) the things 14
specified in subsection (2). 15
(2) An inspector may do any or all of the following: 16
(a) examine and inspect any works, plant, vehicle, aircraft or 17
other article, 18
(b) take and remove samples, 19
(c) make such examinations, inquiries and tests as the 20
inspector considers necessary, 21
(d) take such photographs, films, audio, video and other 22
recordings as the inspector considers necessary, 23
(e) require records to be produced for inspection, 24
(f) examine and inspect any records, 25
(g) copy any records, 26
(h) seize anything that the inspector has reasonable grounds 27
for believing is connected with an offence against this Act 28
or the regulations, 29
(i) for the purposes of paragraph (h), direct the occupier of the 30
premises where the thing is seized to retain it at those 31
premises or at another place under the control of the 32
occupier, 33
(j) do any other thing the inspector is empowered to do under 34
this Part. 35
(3) The power to seize anything connected with an offence includes 36
a power to seize: 37
Page 84
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(a) a thing with respect to which the offence has been 1
committed, and 2
(b) a thing that will afford evidence of the commission of the 3
offence, and 4
(c) a thing that was used for the purpose of committing the 5
offence. 6
A reference to any such offence includes a reference to an offence 7
that there are reasonable grounds for believing has been 8
committed. 9
248F Search warrants 10
(1) An inspector may apply to an authorised officer within the 11
meaning of the Law Enforcement (Powers and Responsibilities) 12
Act 2002 for the issue of a search warrant if the inspector believes 13
on reasonable grounds that: 14
(a) a provision of this Act or the regulations is being or has 15
been contravened at any premises, or 16
(b) there is in or on any premises matter or a thing that is 17
connected with an offence under this Act or the 18
regulations. 19
(2) An authorised officer within the meaning of the Law 20
Enforcement (Powers and Responsibilities) Act 2002 to whom an 21
application is made may, if satisfied that there are reasonable 22
grounds for doing so, issue a search warrant authorising an 23
inspector named in the warrant: 24
(a) to enter the premises, and 25
(b) to exercise any function of an inspector under this Part. 26
(3) Division 4 of Part 5 of the Law Enforcement (Powers and 27
Responsibilities) Act 2002 applies to a search warrant issued 28
under this section. 29
(4) Definitions 30
In this section: 31
matter or a thing connected with an offence means: 32
(a) matter or a thing with respect to which the offence has 33
been committed, or 34
(b) matter or a thing that will afford evidence of the 35
commission of an offence, or 36
(c) matter or a thing that was used, or is intended to be used, 37
for the purpose of committing the offence. 38
Page 85
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
offence includes an offence that there are reasonable grounds for 1
believing has been, or is to be, committed. 2
248G Inspectors may request assistance 3
A person may accompany an inspector and take all reasonable 4
steps to assist the inspector in the exercise of his or her functions 5
under this Part if the inspector is of the opinion that the person is 6
capable of providing assistance to the inspector in the exercise of 7
those functions. 8
248H Assistance to be given to inspectors 9
(1) This section applies for the purpose of enabling an inspector to 10
exercise any of the powers of an inspector under this Part in 11
connection with any premises. 12
(2) The Director-General may, by written notice given to the owner 13
or occupier of the premises, require the owner or occupier to 14
provide such reasonable assistance and facilities as are specified 15
in the notice within a specified time and in a specified manner. 16
(3) Assistance and facilities can be required under this section, 17
whether they are of the same kind as, or a different kind from, any 18
prescribed by the regulations. 19
248I Care to be taken 20
In the exercise of a power of entering or searching premises under 21
this Part, the inspector must do as little damage as possible. 22
248J Compensation 23
The Crown is to compensate all interested parties for any damage 24
caused by an inspector in exercising a power under this Part of 25
entering premises (but not any damage caused by the exercise of 26
any other power), unless the occupier obstructed or hindered the 27
inspector in the exercise of the power of entry. 28
Division 1C Additional powers relating to certain 29
offences 30
248K Purposes for which powers under Division may be exercised 31
(1) Powers may be exercised under this Division for determining 32
whether there has been compliance with or a contravention of any 33
of the following provisions of this Act: 34
(a) Division 1 of Part 2 or 378A (in relation to a condition 35
imposed under section 70 (1) (b) or 246G), 36
Page 86
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(b) section 239C, 240C, 246R or 378A (in relation to a 1
condition imposed under section 239B (1)). 2
(2) Powers may only be exercised under this Part in relation to a 3
provision referred to in subsection (1) (b) if an inspector 4
reasonably suspects that a failure to comply with, or 5
contravention of, the provision has resulted, or may result, in 6
harm to the environment that: 7
(a) involves actual or potential harm to the health or safety of 8
human beings or to ecosystems that is not trivial, or 9
(b) results in actual or potential loss or property damage of an 10
amount, or amounts in aggregate, exceeding $10,000 (or 11
such other amount as is prescribed by the regulations). 12
(3) Evidence obtained by the use of powers exercised under this 13
Division may be used in respect of offences other than offences 14
referred to in subsection (1). 15
248L Power of inspectors to require answers 16
(1) An inspector may require a person whom the inspector suspects 17
on reasonable grounds to have knowledge of matters in respect of 18
which information is reasonably required for a purpose to which 19
this Division applies to answer questions in relation to those 20
matters. 21
(2) The Director-General may, by written notice, require a 22
corporation to nominate, in writing within the time specified in 23
the notice, a director or officer of the corporation to be the 24
corporation's representative for the purpose of answering 25
questions under this section. 26
(3) Answers given by a person nominated under subsection (2) bind 27
the corporation. 28
(4) An inspector may, by written notice, require a person to attend at 29
a specified place and time to answer questions under this section 30
if attendance at that place is reasonably required in order that the 31
questions can be properly put and answered. 32
(5) The place and time at which a person may be required to attend 33
is to be: 34
(a) a place or time nominated by the person, or 35
(b) if the place and time nominated is not reasonable in the 36
circumstances or a place and time is not nominated by the 37
person, a place and time nominated by the inspector that is 38
reasonable in the circumstances. 39
Page 87
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
248M Recording of evidence 1
(1) An inspector may cause any questions and answers to questions 2
given under this Division to be recorded if the inspector has 3
informed the person who is to be questioned that the record is to 4
be made. 5
(2) A record may be made using sound recording apparatus or audio 6
visual apparatus, or any other method determined by the 7
inspector. 8
(3) A copy of any such record must be provided by the inspector to 9
the person who is questioned as soon as practicable after it is 10
made. 11
(4) A record may be made under this section despite the provisions 12
of any other law. 13
248N Power of inspectors to demand name and address 14
(1) An inspector may require a person whom the inspector suspects 15
on reasonable grounds to have offended or to be offending 16
against a provision referred to in section 248K to state his or her 17
full name and residential address. 18
(2) An inspector may request a person who is required under this 19
section to state his or her full name and residential address to 20
provide proof of the name and address. It is not an offence under 21
section 248S to fail to comply with any such request. 22
(3) The maximum penalty for an offence under section 248S in 23
connection with a requirement under this section is 100 penalty 24
units, despite anything to the contrary in that section. 25
248O Additional powers of entry 26
(1) This section applies in addition to the powers of entry to premises 27
conferred by section 248C. 28
(2) An inspector may enter any other premises at any reasonable 29
time. 30
(3) Division 1B applies in respect of a power of entry conferred by 31
this section in the same way as it applies to a power of entry 32
conferred by that Division. 33
Page 88
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
Division 1D Powers with respect to articles 1
248P Definition 2
In this Division, article includes any plant, motor or other 3
vehicle, aircraft, vessel or other thing of any description. 4
248Q Application of Division 5
Nothing in this Division limits the functions that may be 6
exercised under any other Division of this Part. 7
248R Power to inspect and test 8
(1) An inspector may, for the purposes of this Part, inspect and test 9
any article. 10
(2) The inspector may, for the purposes of any such inspection or 11
testing: 12
(a) enter the article, and 13
(b) enter in accordance with this Act the premises where the 14
article is located, and 15
(c) operate the article, and 16
(d) take photographs or video films of the article, and 17
(e) inspect or test any substance being carried by the article or 18
in any container on the article, and 19
(f) take a sample of any such substance for testing. 20
Division 1E General 21
248S Offences 22
(1) A person who, without lawful excuse, neglects or fails to comply 23
with a requirement made of the person under this Part is guilty of 24
an offence. 25
(2) A person who wilfully delays or obstructs an inspector in the 26
exercise of the inspector's powers under this Part is guilty of an 27
offence. 28
(3) A person who impersonates an inspector is guilty of an offence. 29
Maximum penalty: 30
(a) in the case of a corporation--1,000 penalty units and, in 31
the case of a continuing offence, a further penalty of 10 32
penalty units for each day the offence continues, or 33
Page 89
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(b) in the case of a natural person--200 penalty units and, in 1
the case of a continuing offence, a further penalty of 5 2
penalty units for each day the offence continues. 3
248T Provisions relating to requirements to furnish records, 4
information or answer questions 5
(1) A person is not guilty of an offence of failing to comply with a 6
requirement under this Part to furnish records or information or 7
to answer a question unless the person was warned on that 8
occasion that a failure to comply is an offence. 9
(2) A person is not excused from a requirement under this Part to 10
furnish records or information or to answer a question on the 11
ground that the record, information or answer might incriminate 12
the person or make the person liable to a penalty. 13
(3) However, any information furnished or answer given by a natural 14
person in compliance with a requirement under this Part is not 15
admissible in evidence against the person in criminal proceedings 16
(except proceedings for an offence under this Part) if: 17
(a) the person objected at the time to doing so on the ground 18
that it might incriminate the person, or 19
(b) the person was not warned on that occasion that the person 20
may object to furnishing the information or giving the 21
answer on the ground that it might incriminate the person. 22
(4) Any record furnished by a person in compliance with a 23
requirement under this Part is not inadmissible in evidence 24
against the person in criminal proceedings on the ground that the 25
record might incriminate the person. 26
(5) Further information obtained as a result of a record or 27
information furnished or of an answer given in compliance with 28
a requirement under this Part is not inadmissible on the ground: 29
(a) that the record or information had to be furnished or the 30
answer had to be given, or 31
(b) that the record or information furnished or answer given 32
might incriminate the person. 33
(6) This section extends to a requirement under this Part to state a 34
person's name and address. 35
248U Revocation or variation 36
(1) A notice given under this Part may be revoked or varied by a 37
subsequent notice or notices. 38
Page 90
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(2) A notice may be varied by modification of, or addition to, its 1
terms and specifications. 2
(3) Without limiting subsection (2), a notice may be varied by 3
extending the time for complying with the notice. 4
(4) A notice may only be revoked or varied by an inspector (whether 5
or not the inspector who gave the notice). 6
248V Extraterritorial application 7
A notice may be given under this Part to a person in respect of a 8
matter even though the person is outside the State or the matter 9
occurs or is located outside the State, so long as the matter relates 10
to the administration of this Act (including, but not limited to 11
investigation of, or enforcement action relating to, offences 12
against this Act). 13
[216] Part 12, Division 2, heading 14
Omit the heading. Insert instead: 15
Division 2 Entry in other circumstances 16
[217] Section 249 17
Omit the section. Insert instead: 18
249 Entry on land for rehabilitation purposes 19
(1) The Minister may grant a permit to any person to enter any land 20
to enable the person: 21
(a) to do on that land all such things as are reasonably 22
necessary to comply with a condition under section 239B, 23
or 24
(b) to carry out work in accordance with a direction in force 25
under section 240, or 26
(c) to remove any mining plant from any land in accordance 27
with a direction under section 245 or as a result of a 28
disposal of the plant under section 246A. 29
(2) The holder of a permit under this section, and any employee or 30
agent of the holder, may, in accordance with the permit: 31
(a) enter the land to which the permit relates, and 32
(b) do on that land all things that are reasonably necessary to 33
achieve the purpose for which the permit is granted. 34
Page 91
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[218] Section 252 Environmental assessment 1
Omit "land in an exempted area" from section 252 (4). 2
Insert instead "reserved land". 3
[219] Section 255 4
Omit the section. 5
[220] Section 255A Restriction of power of entry: permit holders 6
Omit "this Part" from section 255A (2). Insert instead "the permit". 7
[221] Sections 256 and 257 8
Omit the sections. Insert instead: 9
256 Entry into residential premises only with permission 10
Nothing in this Division or Division 2 entitles any person to enter 11
any part of premises used only for residential purposes without 12
the permission of the occupier. 13
257 Obstruction 14
A person must not, without reasonable excuse, obstruct, hinder or 15
restrict any other person who is: 16
(a) entering land, or carrying out any other activity, pursuant 17
to a permit under Division 2, or 18
(b) entering or doing things on a derelict mine site pursuant to 19
section 249 (2). 20
Maximum penalty: 100 penalty units. 21
[222] Section 258 Conditions of permit 22
Insert at the end of the section: 23
(2) A holder of a permit who contravenes any condition of the permit 24
is guilty of an offence. 25
Maximum penalty: 5 penalty units. 26
[223] Section 261 Cancellation of permit 27
Omit section 261 (3). Insert instead: 28
(3) The Director-General may, for such reason as he or she thinks fit, 29
cancel a permit. 30
Page 92
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(4) The cancellation of a permit under this section cannot be 1
challenged in any legal proceedings commenced later than 3 2
months after the cancellation. 3
(5) This section has effect despite the provisions of any other Act, 4
but does not apply so as to affect any appeal against the 5
cancellation commenced not later than 3 months after the 6
cancellation. 7
[224] Part 12A 8
Insert after Part 12: 9
Part 12A Security deposits 10
261A Definitions 11
In this Part: 12
holder, in relation to an authorisation that has ceased to have 13
effect, means the person who was the holder of the authorisation 14
immediately before it ceased to have effect. 15
obligation under an authorisation: 16
(a) does not include an obligation with respect to the payment 17
of royalty under this Act, and 18
(b) includes any obligations of the holder of an authorisation 19
under Part 11. 20
security deposit condition means: 21
(a) a condition of an authorisation imposed under section 22
261B requiring the provision and maintenance of a 23
security deposit, or 24
(b) a condition applying to a mineral claim or opal prospecting 25
licence requiring the provision and maintenance of a 26
security deposit as referred to in section 175 (2) (f) or 27
223A (2) (d). 28
261B Security deposit conditions 29
(1) A condition may be imposed on an authorisation to require the 30
holder of the authorisation to provide and maintain, or (where the 31
holder is a body corporate) to ensure that a related corporation 32
provides and maintains, a security deposit to secure funding for 33
either or both of the following: 34
(a) the fulfilment of obligations under the authorisation, 35
(b) the fulfilment of obligations under a direction issued under 36
section 240. 37
Page 93
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(2) A condition may be imposed under this section: 1
(a) whether or not the land that is or may be affected by the 2
activities or direction is or has at any time been an 3
authorisation area, and 4
(b) whether or not the obligations relate to activities that were 5
carried out by the current holder of the authorisation, and 6
(c) whether or not the obligations relate to activities that were 7
authorised by the authorisation, and 8
(d) if the authorisation has been previously wholly or partly 9
transferred, whether or not the obligations relate to 10
activities carried out under the transferred authority. 11
(3) A security deposit condition takes effect on the date written 12
notice of the condition is served on the holder of the authorisation 13
or on any later date specified in the notice. 14
(4) A security deposit condition may be varied to change the required 15
amount of the deposit (whether the deposit was provided by the 16
holder of the authorisation or by another person) or any other 17
requirement of the condition. 18
(5) A condition of 2 or more mining leases held by the same holder, 19
or within the same colliery holding, may require a single security 20
deposit to be given and maintained. 21
(6) This section does not affect the operation of section 75V 22
(Approvals etc legislation that must be applied consistently) or 93 23
(Granting and modification of approval by approval body) of the 24
Environmental Planning and Assessment Act 1979. 25
261C Content of security deposit condition 26
(1) A security deposit condition may include requirements with 27
respect to any one or more of the following matters: 28
(a) the amount of the deposit, 29
(b) the form of the deposit, 30
(c) the date by which the deposit is to be provided, 31
(d) the manner in which the deposit is to be provided and 32
maintained, 33
(e) the provision of information or other material to the 34
Director-General or the Minister that demonstrates that the 35
condition is being complied with, 36
(f) the provision of progress reports on work (and associated 37
costs and expenses) for which the deposit is intended to 38
provide security, 39
Page 94
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(g) the independent auditing of any such work, costs and 1
expenses, 2
(h) the circumstances in which the requirement to maintain the 3
deposit lapses. 4
(2) A security deposit condition may require the holder of the 5
authorisation to cause a security deposit that has been provided 6
and maintained in relation to another authorisation to be extended 7
to the firstmentioned authorisation. 8
(3) A security deposit condition may require one security deposit to 9
be provided and maintained in respect of a number of 10
authorisations held by one person or by a person and a related 11
corporation. 12
(4) Nothing in this section limits the matters that may be included in 13
a security deposit condition. 14
261D Form and amount of security deposit 15
(1) A security deposit may be in (but is not limited to) any of the 16
following forms: 17
(a) a bank guarantee, 18
(b) cash, 19
(c) a bond, 20
(d) another form (such as an insurance policy) that the 21
decision-maker considers appropriate and specifies in the 22
security deposit condition. 23
(2) The amount of the security deposit is to be determined having 24
regard to any guidelines prepared by the Director-General for the 25
purposes of this Part and any of the following that is relevant: 26
(a) the estimated cost of the rehabilitation concerned, 27
(b) the estimated cost of fulfilling the obligations concerned. 28
261E Security deposit can be taken to be provided for consolidated 29
mining lease or multiple authorisations 30
(1) A security deposit is taken to have been provided under a security 31
deposit condition of a consolidated mining lease if: 32
(a) a security deposit was provided in compliance with the 33
conditions of one or more of the leases that were 34
consolidated, and 35
(b) the Minister notifies the holder of the consolidated mining 36
lease that, because of the provision of the security deposit 37
Page 95
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
referred to in paragraph (a), a security deposit is taken to 1
have been provided under the consolidated mining lease. 2
(2) A security deposit is taken to have been provided under a security 3
deposit condition of an authorisation (the first authorisation) 4
held by a person if: 5
(a) a security deposit was provided in compliance with the 6
conditions of one or more other authorisations held by that 7
person or by a related corporation, and 8
(b) the Minister notifies that person that, because of the 9
provision of the security deposit referred to in paragraph 10
(a), a security deposit is taken to have been provided under 11
the first authorisation. 12
261F Claim on and use of security deposit 13
(1) The Minister may make a claim on or realise a security deposit 14
provided under a security deposit condition if: 15
(a) the authorisation is cancelled or otherwise ceases to have 16
effect and an obligation under the former authorisation 17
remains unfulfilled, or 18
(b) the holder of the authorisation has failed to comply with a 19
direction under section 240 that relates to the authorisation 20
or to activities carried out under, or purportedly under, the 21
authorisation. 22
(2) Before making a claim on or realising a security deposit, the 23
Minister must, if practicable, give written notice of the proposed 24
action to the holder of the authorisation. 25
(3) The Minister may use money obtained under a security deposit: 26
(a) in the circumstances to which subsection (1) (a) refers--to 27
recover or fund the costs or expenses that the Crown 28
reasonably incurs in causing any obligation under the 29
former authorisation to be fulfilled, or 30
(b) in the circumstances to which subsection (1) (b) refers--to 31
recover or fund the reasonable costs or expenses of the 32
Crown in causing steps specified in the direction under 33
section 240 to be taken. 34
(4) The Minister may invest money obtained under a security deposit 35
in interest-bearing deposits in a bank. 36
(5) Any interest accruing on the money is to be paid into the Derelict 37
Mine Sites Fund. 38
Page 96
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(6) Money obtained under a security deposit and used under 1
subsection (3) is taken, for all purposes, to be forfeited to the 2
Crown when it is so used. 3
(7) The functions of the Minister under this Part may be exercised 4
with or without the benefit of a finding by a court or tribunal that 5
the holder of the authorisation concerned has failed to comply 6
with a direction under section 240 or failed to fulfil any 7
obligation under the authorisation. 8
261G Lapsing of security deposit requirement and return of money 9
(1) Any money obtained under a security deposit that is not used 10
under section 261F is to be paid (without interest) to the person 11
who provided the deposit or, if that person is unable to be located 12
despite reasonable endeavours, into the Derelict Mine Sites Fund. 13
(2) The requirement to maintain a security deposit lapses: 14
(a) in accordance with the terms of the security deposit 15
condition, or 16
(b) if the condition does not deal with the lapsing of the 17
requirement, when the Minister has determined that any 18
requirements of the direction under section 240 or under 19
the authorisation (non-compliance with which would 20
authorise a claim on or realisation of the deposit) have 21
been fulfilled to a satisfactory extent and in a satisfactory 22
manner. 23
(3) The Minister must, if practicable, give written notice of that 24
determination to the holder of the authorisation. 25
261H Security deposit not to affect other action 26
Nothing in this Part affects: 27
(a) the liability of a person to any penalty for an offence in 28
relation to a direction under section 240 or an obligation 29
under an authorisation or any contravention to which the 30
security deposit relates, or 31
(b) any other action that may be taken or is required to be 32
taken in relation to any contravention or other 33
circumstances to which the security deposit relates. 34
261I Regulations in relation to security deposits 35
The regulations may make provision for or with respect to the 36
administration of money or other securities obtained by the 37
Minister under a security deposit. 38
Page 97
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[225] Section 263 Compensation arising under exploration licence 1
Omit section 263 (4). Insert instead: 2
(4) If the holder of an exploration licence does not have an agreement 3
referred to in this section in relation to land, the holder must not 4
exercise any right under the licence in relation to the land if its 5
exercise will, or is likely to, result in a compensable loss. 6
[226] Section 264 Compensation arising under assessment lease 7
Omit section 264 (4). Insert instead: 8
(4) If the holder of an assessment lease does not have an agreement 9
referred to in this section in relation to land, the holder must not 10
exercise any right under the lease in relation to the land if its 11
exercise will, or is likely to, result in a compensable loss. 12
(5) If, immediately before the grant of an assessment lease any part 13
of the assessment area was, or was in, an authorisation area and 14
the subject of a valid agreement under this Division (an existing 15
agreement), a valid agreement is taken to have been entered into 16
in relation to that part for the purpose of this section, if the holder 17
of the assessment lease: 18
(a) was the holder of the authorisation immediately before the 19
grant of the assessment lease, or 20
(b) is the assignee of the rights under the existing agreement. 21
(6) Subsection (5) ceases to apply to a part of an assessment area if a 22
subsequent valid agreement is entered into, or a warden makes an 23
assessment of compensation payable, in relation to that part. 24
[227] Section 265 Compensation arising under mining lease 25
Insert after section 265 (4): 26
(5) If, immediately before the grant of a mining lease any part of the 27
mining area was, or was in, an authorisation area and the subject 28
of a valid agreement under this Division (an existing agreement), 29
a valid agreement is taken to have been entered into in relation to 30
that part for the purpose of this section, if the holder of the mining 31
lease: 32
(a) was the holder of the authorisation immediately before the 33
grant of the mining lease, or 34
(b) is the assignee of the rights under the existing agreement. 35
(6) Subsection (5) ceases to apply to a part of a mining area if a 36
subsequent valid agreement is entered into, or a warden makes an 37
assessment of compensation payable, in relation to that part. 38
Page 98
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[228] Sections 266-267 1
Omit sections 266 and 267. Insert instead: 2
266 Compensation arising under small-scale titles 3
(1) On the granting of a small-scale title, a landholder becomes 4
entitled to be paid compensation by the holder of the title 5
concerned in respect of any compensable loss suffered, or likely 6
to be suffered, by the landholder as a result of the exercise of 7
rights under the title. 8
(2) The compensation payable consists of such amount as the holder 9
of the title and the landholder may agree or: 10
(a) if there is no agreement, such amount as may be declared 11
by, or determined in accordance with, an order by the 12
Minister under section 266A that applies to the 13
authorisation area of the title, or 14
(b) if an order has been made under section 266B (2) (a), such 15
amount as may be payable in accordance with an 16
assessment by a warden under section 266B. 17
(3) The holder of a small-scale title must not exercise any right under 18
the title unless: 19
(a) the holder has served notice of the intention to do so on 20
each person entitled to be paid compensation by the holder 21
under this section, and 22
(b) the holder has paid to the Director-General all amounts 23
payable by the holder under an order under section 266A 24
or 266B that applies to the authorisation area or, if there is 25
no such order, the requirements specified in subsection (4) 26
have been complied with in relation to the claim. 27
(4) For the purposes of subsection (3), the specified requirements are 28
as follows: 29
(a) in respect of each landholder, that the holder of the title has 30
an agreement, as referred to in subsection (2), 31
(b) that the holder of the title has paid to the Director-General 32
an amount prescribed by or determined in accordance with 33
the regulations for the purposes of section 267. 34
266A Compensation payable under Minister's order 35
(1) The Minister may, by order published in the Gazette, declare: 36
(a) the amount of compensation that is payable under section 37
266 by the holders of small-scale titles in an area specified 38
by the order, or 39
Page 99
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(b) the manner in which that amount must be determined, 1
in accordance with a warden's assessment under this section or 2
section 266B (2) (b). 3
(2) Before making an order (other than an order in accordance with 4
an assessment under section 266B), the Minister must request a 5
warden to assess the compensation that is payable or determine 6
the manner in which the amount is to be determined. 7
(3) The Minister may, by the order: 8
(a) declare amounts to be payable only on the grant of a claim 9
or licence or, in the case of a mineral claim, also on any or 10
every subsequent renewal of the claim, and 11
(b) specify the manner and circumstances in which 12
compensation paid to the Director-General may be paid to 13
the landholder. 14
(4) A holder of a small-scale title who is required to make a payment 15
under an order must make the payment to the Director-General, 16
in accordance with the terms of the order. 17
(5) An order takes effect on the day the order is published in the 18
Gazette or on a later day specified in the order. 19
(6) The regulations may make provision for or with respect to 20
matters that are to be: 21
(a) considered by the Minister in making an order, or 22
(b) specified in the order, such as the manner and time for 23
making payments under the order. 24
266B Individual assessments by warden 25
(1) If: 26
(a) the landholder and the holder of a small-scale title fail to 27
agree on an amount of compensation under section 266 28
and an order is not made under section 266A for the 29
amount of compensation, or 30
(b) the landholder or holder of a small-scale title is of the 31
opinion that the amount of compensation specified in an 32
order under section 266A is not appropriate in the 33
circumstances, 34
the landholder or holder may apply to a warden to assess the 35
compensation that is payable. 36
(2) On an application under this section, the warden may: 37
Page 100
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(a) assess the compensation payable in relation to the 1
small-scale title and, by order, vary the amount of 2
compensation payable under this Division in respect of the 3
title, or 4
(b) with the consent of the Minister, assess the amount of 5
compensation payable by all or a group of holders of 6
small-scale titles in the area concerned and recommend to 7
the Minister that an order varying the amount of 8
compensation payable under an order under section 266A 9
be made in respect of the holders affected by the order. 10
(3) An order by a warden under this section may specify the manner 11
and circumstances in which compensation paid to the 12
Director-General may be paid to the landholder. 13
(4) If the warden makes an assessment under subsection (2), the 14
warden may assess compensation as a fixed amount per 15
small-scale title or as an amount per small-scale title to be 16
calculated at a fixed rate. 17
Note. See Division 3 (sections 271-278) for the procedure relating to the 18
assessment of compensation by a warden. 19
267 Compensation for landholder not initially identified 20
(1) Any landholder who could not, when rights under a small-scale 21
title started to be exercised, establish an entitlement to 22
compensation under section 266 (whether because the landholder 23
could not then be identified, or for any other reason), but who 24
subsequently does so, may apply to a Warden's Court for an 25
order requiring payment of the compensation. 26
(2) If the court orders payment of compensation to the landholder, it 27
is to be paid out of the Mineral Claims Districts Compensation 28
Fund. 29
(3) If, at least 5 years but not more than 5 years and 6 months after a 30
small-scale title ceases to have effect, the whole or any part of 31
any such compensation amount paid into the Fund by the holder 32
of the title is not paid out, a warden may, on the application of the 33
holder of the authorisation, order that the whole or any part of that 34
amount be paid to the holder. 35
(4) If, 5 years and 6 months after a small-scale title ceases to have 36
effect, any amount of compensation paid into the Fund has not 37
been paid out, the amount is to be paid into the Consolidated 38
Fund. 39
Page 101
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[229] Section 267A Effect of determination and payment of compensation 1
under Commonwealth Native Title Act 2
Omit "to be validly agreed on or assessed for the purposes of whichever is 3
relevant of section 263, 264, 265, 266 or 267" from section 267A (1) (a). 4
Insert instead "to be validly agreed on or assessed for the purposes of 5
whichever is relevant of section 263, 264, 265, 266 or 267 or validly declared 6
by, or determined in accordance with, an order under section 266A or 266B". 7
[230] Section 271 Definition 8
Omit the definition of authorisation. 9
[231] Section 273 Payment into court or to Director-General 10
Insert "(other than compensation in respect of a mineral claim)" after 11
"Division". 12
[232] Section 273 (2) 13
Insert at the end of section 273: 14
(2) The total amount of compensation assessed under this Division in 15
respect of a mineral claim is to be paid to the Director-General for 16
payment into the Mineral Claims Districts Compensation Fund at 17
such times, and in respect of such periods, as is specified in the 18
order specifying the compensation. 19
[233] Section 274 Payment out of court or Fund 20
Insert "or the Mineral Claims Districts Compensation Fund" after "Warden's 21
Court" wherever occurring in section 274 (1). 22
[234] Sections 274 (2) and 276 (1) (a) 23
Insert "or the Mineral Claims Districts Compensation Fund" after "court" 24
wherever occurring. 25
[235] Section 274 (2) 26
Insert "or the Director-General" after "a warden" wherever occurring. 27
[236] Section 276 Additional assessment 28
Omit "section 140 (b)" from section 276 (3) (a). 29
Insert instead "section 140 (1) (b)". 30
Page 102
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[237] Section 276 (5) 1
Omit the subsection. Insert instead: 2
(5) In making an assessment of compensation, a warden must have 3
regard to: 4
(a) any previous compensation agreement between the parties 5
under this Division, and 6
(b) any current or previous access arrangement between the 7
parties that was determined, or taken to have been 8
determined, by an arbitrator under Part 8, and 9
(c) any previous assessment under this Division of 10
compensation payable to the landholder, 11
with respect to the land to which the current assessment relates. 12
[238] Section 278 Appeals 13
Omit "Divisions 3 and 4" from section 278 (1). Insert instead "Division 3". 14
[239] Section 278 (2) and (3) 15
Omit ", as referred to in section 266 (3) or 267 (3)" wherever occurring. 16
[240] Part 13, Division 6 17
Insert after Division 5 of Part 13: 18
Division 6 Mineral Claims Districts Compensation Fund 19
281C Establishment of Fund 20
(1) There is established in the Special Deposits Account the Mineral 21
Claims Districts Compensation Fund. 22
(2) Money in the Fund is under the control of the Director-General 23
and may be spent by the Director-General only for the purposes 24
authorised by this section. 25
(3) There is to be paid into the Fund: 26
(a) money received by the Director-General under this Part, 27
and 28
(b) the proceeds of investment of money in the Fund, and 29
(c) money from such other sources, if any, as may be 30
prescribed by the regulations, and 31
(d) any other money appropriated by Parliament for the 32
purposes of the Fund or required by law to be paid into the 33
Fund. 34
Page 103
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(4) Subject to the regulations, there is to be paid to a landholder out 1
of the Fund such compensation, if any, as the Director-General 2
determines is payable to the landholder under an order under 3
section 266A, 266B or 267. 4
281D Administration of, and review of payments from, Fund 5
The regulations may make provision for or with respect to the 6
administration of the Mineral Claims Districts Compensation 7
Fund (including the making of claims for payments out of the 8
Fund and the making of such payments and the review of such 9
payments by a Warden's Court). 10
[241] Section 282 Liability to pay royalty--publicly owned minerals 11
Omit section 282 (1). Insert instead: 12
(1) The holder of a mining lease is liable to pay royalty to the 13
Minister on publicly owned minerals recovered by the holder 14
under the lease. 15
(1A) The holder of a mining sublease is liable to pay royalty to the 16
Minister on publicly owned minerals recovered from the sublease 17
area. 18
(1B) Despite subsection (1), the holder of a mining lease remains 19
liable to pay royalty on publicly owned minerals recovered from 20
a sublease area only to the extent that the royalty has not been 21
paid by the holder of the sublease. 22
[242] Section 284 Liability to pay royalty--privately owned minerals 23
Omit section 284 (1). Insert instead: 24
(1) The holder of a mining lease is liable to pay royalty to the 25
Minister on privately owned minerals recovered from the mining 26
area as if those minerals were publicly owned. 27
(1A) The holder of a mining sublease is liable to pay royalty to the 28
Minister on privately owned minerals recovered from the 29
sublease area as if those minerals were publicly owned. 30
(1B) Despite subsection (1), the holder of a mining lease remains 31
liable to pay royalty on privately owned minerals recovered from 32
a sublease area only to the extent that the royalty has not been 33
paid by the sublessee. 34
[243] Section 284 (3) 35
Insert after section 284 (2): 36
(3) This section does not apply to a mining (mineral owner) lease. 37
Page 104
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[244] Section 288 1
Omit the section. Insert instead: 2
288 Trust fund 3
(1) The Minister may, by written notice served on the holder of a 4
mining lease, require the holder to establish a trust fund, in the 5
manner specified in the notice, and to pay into the trust fund (at 6
the time or times so specified) a specified proportion of the 7
money accruing from the sale of minerals (being a proportion that 8
will, in the opinion of the Minister, be sufficient to meet royalty 9
payable to the Minister under this Act in respect of those 10
minerals). 11
(2) A holder of the mining lease who fails to comply with such a 12
notice is guilty of an offence. 13
Maximum penalty: 100 penalty units and, in the case of a 14
continuing offence, 10 penalty units for each day that the offence 15
continues. 16
[245] Section 290 17
Omit the section. 18
[246] Section 291 Payment of royalty 19
Insert after section 291 (1): 20
(1A) If a person who is liable to pay royalty fails to pay it as required 21
by subsection (1), the person is guilty of an offence. 22
Maximum penalty: 23
(a) 1,000 penalty units in the case of an offence committed by 24
a corporation, or 25
(b) 1,000 penalty units or imprisonment for 12 months, or 26
both, in the case of an offence by a natural person, 27
and, in the case of a continuing offence, a further penalty of 50 28
penalty units for each day that the offence continues. 29
[247] Section 296 Jurisdiction of Wardens' Courts 30
Insert ", right of access to water" after "way" in paragraph (b1) wherever 31
occurring. 32
[248] Section 296 (v)-(y) 33
Omit section 296 (v). Insert instead: 34
(v) any question or dispute as to whether section 31 (1), 49 (1), 35
62 (1) or 188 (1) applies in a particular case, 36
Page 105
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(w) the review of an order issued under section 246 (Forfeiture 1
of mining plant), 2
(x) the review of payments out of the Mineral Claims Districts 3
Compensation Fund in accordance with any regulations 4
under section 281D, 5
(y) any other question or dispute or offence in respect of which 6
jurisdiction is conferred on the Court under this Act. 7
[249] Section 334 (3) 8
Insert after section 334 (2): 9
(3) Subsection (1) does not apply to any: 10
(a) question or dispute referred to in section 296, or 11
(b) matter referred to in section 164 (7), 211 (7) or 235C (7). 12
[250] Section 339 Disobedience of order 13
Insert "or an order to which section 378ZF applies" after "money". 14
[251] Section 360 Mining registrars, deputy mining registrars and other staff 15
Omit ", royalty officers". 16
[252] Section 360 17
Omit "Part 2 of the Public Sector Management Act 1988". 18
Insert instead "Chapter 2 of the Public Sector Employment and Management 19
Act 2002". 20
[253] Sections 361-361B 21
Omit section 361. Insert instead: 22
361 Appointment of inspectors 23
(1) The Director-General may appoint any person (including a 24
member of a class of persons) as an inspector for the purposes of 25
this Act. 26
(2) An appointment may (but does not have to) be subject to 27
conditions, limitations or restrictions or only for limited 28
purposes. 29
(3) If an appointment is subject to conditions, limitations or 30
restrictions or only for limited purposes, nothing in this Act 31
authorises or requires the inspector to act in contravention of the 32
conditions, limitations or restrictions or for other purposes. 33
Page 106
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
361A Identification 1
(1) Every inspector is to be provided with a card identifying him or 2
her as an inspector. 3
(2) In the course of exercising the functions of an inspector under this 4
Act, the inspector must, if requested to do so by any person 5
affected by the exercise of any such function, produce his or her 6
identification card to the person. 7
361B Extraterritorial exercise of functions 8
(1) The Minister may enter into an arrangement with a Minister of 9
another State or Territory providing for the exercise, in another 10
State or Territory, by officers of that State or Territory of 11
functions under this Act or the regulations. 12
(2) An officer of another State or Territory may, in accordance with 13
any such arrangement, exercise functions under this Act, but only 14
to the extent that the matters concerned relate to the 15
administration or enforcement of this Act or such other 16
legislation, if any, as may be prescribed. 17
[254] Section 362 Exclusion of personal liability 18
Omit section 362 (d). Insert instead: 19
(d) an authorised person within the meaning of Division 3 of 20
Part 11, or 21
(e) a person acting under the direction of a person or body 22
referred to in paragraph (a), (b), (c) or (d), 23
[255] Section 363 Delegation of functions by Minister, Director-General or 24
mining registrar 25
Omit section 363 (1). Insert instead: 26
(1) The Minister may delegate any of the following functions (except 27
this power of delegation) of the Minister to any person: 28
(a) any function under this Act, 29
(b) any function under the Environmental Planning and 30
Assessment Act 1979. 31
[256] Section 365 Disclosure of information 32
Insert after section 365 (1) (f): 33
, or 34
(g) by an inspector or a member of staff of the Department to 35
an officer or authority engaged in administering or 36
Page 107
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
executing the environment protection legislation, the 1
Environmental Planning and Assessment Act 1979, 2
occupational health and safety legislation or any other 3
legislation prescribed by the regulations. 4
[257] Section 370 Graticulation of the Earth's surface 5
Omit the section. 6
[258] Part 17A 7
Omit Division 3 of Part 17. Insert instead after Part 17: 8
Part 17A Offences and enforcement 9
Division 1 Offences 10
378A Obstruction of wardens and other persons 11
A person must not, without reasonable excuse, obstruct, hinder or 12
resist a warden, a mining registrar or any other person in the 13
exercise of a function under this Act. 14
Maximum penalty: 1,000 penalty units. 15
378B Obstruction of holder of authorisation 16
A person must not, without reasonable excuse, obstruct or hinder 17
the holder of an authorisation from doing any act that the holder 18
is authorised by this Act to do. 19
Maximum penalty: 100 penalty units. 20
378C False or misleading information 21
A person must not: 22
(a) in or in connection with an application under this Act, or 23
(b) in purported compliance with any requirement under this 24
Act (including a condition of an authorisation), 25
furnish information that the person knows to be false or 26
misleading in a material particular. 27
Maximum penalty: 500 penalty units. 28
378D Contravention of condition of authorisation--offence by holder 29
(1) If a condition of an authorisation is contravened by any person, 30
each holder of the authorisation is guilty of an offence. 31
Maximum penalty if the condition is of a kind referred to in Part 32
1 of Schedule 7: 33
Page 108
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(a) in the case of a corporation--1,000 penalty units and, in 1
the case of a continuing offence, a further penalty of 100 2
penalty units for each day that the offence continues, or 3
(b) in the case of a natural person--500 penalty units and, in 4
the case of a continuing offence, a further penalty of 50 5
penalty units for each day that the offence continues. 6
Maximum penalty if the condition is not of a kind referred to in 7
Part 1 of Schedule 7: 8
(a) in the case of a corporation--200 penalty units and, in the 9
case of a continuing offence, a further penalty of 20 10
penalty units for each day that the offence continues, or 11
(b) in the case of a natural person--100 penalty units and, in 12
the case of a continuing offence, a further penalty of 10 13
penalty units for each day that the offence continues. 14
(2) If a condition of a mining lease, in its application to or in respect 15
of a mining sublease area, is contravened by any person, the 16
holder of the sublease is guilty of an offence. 17
Maximum penalty if the condition is of a kind referred to in Part 18
1 of Schedule 7: 19
(a) in the case of a corporation--1,000 penalty units and, in 20
the case of a continuing offence, a further penalty of 100 21
penalty units for each day that the offence continues, or 22
(b) in the case of a natural person--500 penalty units and, in 23
the case of a continuing offence, a further penalty of 50 24
penalty units for each day that the offence continues. 25
Maximum penalty if the condition is not of a kind referred to in 26
Part 1 of Schedule 7: 27
(a) in the case of a corporation--200 penalty units and, in the 28
case of a continuing offence, a further penalty of 20 29
penalty units for each day that the offence continues, or 30
(b) in the case of a natural person--100 penalty units and, in 31
the case of a continuing offence, a further penalty of 10 32
penalty units for each day that the offence continues. 33
378E Defences 34
(1) It is a defence to a prosecution of the holder of an authorisation 35
for an offence against section 378D if the holder establishes that: 36
(a) the contravention of the condition was by, or caused by, 37
another person, and 38
(b) the other person was not associated with the holder at the 39
time the condition was contravened, and 40
Page 109
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(c) the holder took all reasonable steps to prevent the 1
contravention of the condition. 2
(2) A person is associated with the holder for the purposes of 3
subsection (1) (b) (but without limiting any other circumstances 4
of association) if the person is an employee, agent, licensee, 5
contractor or subcontractor of the holder, or if the person holds a 6
mining sublease granted by the holder under section 83A. 7
(3) It is a defence to a prosecution for an offence against section 8
378D if the defendant satisfies the court that the act or omission 9
constituting the contravention was reasonably necessary in order 10
for the defendant to comply with: 11
(a) an order or direction (of which the Director-General was 12
given notice before the acts or omissions occurred) issued 13
under the mine safety legislation, the Environmental 14
Planning and Assessment Act 1979 or the Protection of the 15
Environment Operations Act 1997, or 16
(b) a condition of an authorisation, or 17
(c) a direction under this Act. 18
(4) In this section: 19
mine safety legislation means the Coal Mine Health and Safety 20
Act 2002, Mine Health and Safety Act 2004, Mines Inspection Act 21
1901, Occupational Health and Safety Act 2000 and any other 22
legislation that is prescribed by the regulations. 23
378F Offences by corporations 24
(1) If a corporation contravenes, whether by act or omission, any 25
provision of this Act or the regulations, each person who is a 26
director of the corporation or who is concerned in the 27
management of the corporation is taken to have contravened the 28
same provision, unless the person satisfies the court that: 29
(a) the person was not in a position to influence the conduct of 30
the corporation in relation to its contravention of the 31
provision, or 32
(b) the person, if in such a position, used all due diligence to 33
prevent the contravention by the corporation. 34
(2) A person may be proceeded against and convicted under 35
subsection (1) whether or not the corporation has been proceeded 36
against or convicted under the provision concerned. 37
(3) Nothing in this section affects any liability imposed on a 38
corporation for an offence committed by the corporation against 39
this Act or the regulations. 40
Page 110
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
378G Continuing offences 1
(1) A person who is guilty of an offence because the person 2
contravenes a requirement in or under this Act or the regulations 3
(whether the requirement is imposed by a direction, notice or 4
otherwise) to do or cease to do something (whether or not within 5
a specified period or before a particular time): 6
(a) continues, until the requirement is complied with and 7
despite the fact that any specified period has expired or 8
time has passed, to be liable to comply with the 9
requirement, and 10
(b) is guilty of a continuing offence for each day the 11
contravention continues. 12
(2) However, this section does not apply to an offence if the relevant 13
provision of this Act or the regulations does not provide for a 14
penalty for a continuing offence. 15
(3) This section does not apply to the extent that a requirement of a 16
notice is revoked. 17
Division 2 Proceedings for offences 18
378H Proceedings for offences 19
(1) Proceedings for an offence against this Act or the regulations are, 20
except as provided by this section, to be dealt with summarily 21
before: 22
(a) the Land and Environment Court, in the case of an offence 23
under Division 1 of Part 2 (committed by a corporation), 24
section 239C, 240C, 246R, 248S, 378A, 378D (in the case 25
of a contravention of a condition referred to in Part 1 of 26
Schedule 7 or section 261B) or 378ZF, or 27
(b) a Warden's Court or the Local Court, in the case of any 28
offence. 29
(2) If proceedings for an offence under this Act or the regulations are 30
brought in a Warden's Court or the Local Court: 31
(a) the maximum period of imprisonment that the Court may 32
impose for the offence is 12 months, and 33
(b) the maximum monetary penalty that the Court may impose 34
is 200 penalty units. 35
Page 111
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(3) Proceedings for an offence specified in Part 2 of Schedule 7 are 1
to be dealt with on indictment. 2
Note. Chapter 5 of the Criminal Procedure Act 1986 provides an 3
alternative procedure for dealing with these offences summarily 4
following an election by the prosecutor or defendant. 5
(4) For the purposes of dealing with an offence referred to in 6
subsection (3) in accordance with Chapter 5 of the Criminal 7
Procedure Act 1986, the Warden's Court has the functions of, 8
and is taken to be, the Local Court. 9
378I Time within which summary proceedings may be commenced 10
(1) Proceedings for an offence under this Act or the regulations may 11
be commenced: 12
(a) in the case of an offence listed in Part 3 of Schedule 7-- 13
within but not later than 3 years after the date on which the 14
offence is alleged to have been committed, or 15
(b) in any other case--within but not later than 12 months 16
after that date. 17
(2) Proceedings for an offence under this Act or the regulations may 18
also be commenced: 19
(a) in the case of an offence listed in Part 3 of Schedule 7-- 20
within but not later than 3 years after the date on which 21
evidence of the alleged offence first came to the attention 22
of an inspector, or 23
(b) in any other case--within but not later than 12 months 24
after that date. 25
(3) If subsection (2) is relied on for the purpose of commencing 26
proceedings for an offence, the court attendance notice or 27
application must contain particulars of the date on which 28
evidence of the offence first came to the attention of an inspector 29
and need not contain particulars of the date on which the offence 30
was committed. 31
(4) The date on which evidence first came to the attention of an 32
inspector is the date specified in the court attendance notice or 33
application, unless the contrary is established. 34
(5) This section applies only to proceedings that are to be dealt with 35
summarily. 36
(6) This section applies despite anything in the Criminal Procedure 37
Act 1986 or any other Act. 38
Page 112
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(7) In this section: 1
evidence of an offence means evidence of any act or omission 2
constituting the offence. 3
378J Penalty notices and related proceedings 4
(1) Section 378I does not affect the power to issue a penalty notice 5
under section 378K or the taking of enforcement proceedings in 6
relation to the penalty notice or in relation to the offence to which 7
the penalty notice relates. 8
(2) Enforcement proceedings include proceedings under Part 3 or 4 9
of the Fines Act 1996, including, in particular, proceedings taken 10
under section 37 of that Act in respect of the offence to which the 11
penalty notice relates, where the person concerned elects to have 12
the matter dealt with by a court. 13
378K Penalty notices for offences 14
(1) A penalty notice officer may serve a penalty notice on a person if 15
it appears to the officer that the person has committed an offence 16
under this Act or the regulations, being an offence prescribed by 17
the regulations. 18
(2) A penalty notice is a notice to the effect that, if the person served 19
does not wish to have the matter determined by a court, the 20
person may pay, within the time and to the person specified in the 21
notice, the penalty prescribed by the regulations for the offence if 22
dealt with under this section. 23
(3) A penalty notice may be served personally or by post. 24
(4) The regulations may authorise a penalty notice also to be served 25
by leaving the notice at premises in respect of which the offence 26
was committed. 27
(5) If the amount of the penalty prescribed for an alleged offence is 28
paid under this section, no person is liable to any further 29
proceedings for the alleged offence. 30
(6) Payment under this section is not an admission of liability for the 31
purposes of, and does not affect or prejudice, any civil claim, 32
action or proceeding arising out of the same occurrence. 33
(7) The regulations may: 34
(a) prescribe an offence for the purposes of this section by 35
specifying the offence or by referring to the provision 36
creating the offence, and 37
Page 113
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(b) prescribe the amount of penalty payable for the offence if 1
dealt with under this section, and 2
(c) prescribe different amounts of penalties for different 3
offences or classes of offences, and 4
(d) prescribe different amounts of penalties for the same 5
offence, including, in the case of a continuing offence, 6
different amounts of penalties for different periods during 7
which the offence continues. 8
(8) This section does not limit the operation of any provision of, or 9
made under, this or any other Act relating to proceedings that 10
may be taken in respect of offences. 11
(9) In this section, penalty notice officer means a person who is 12
declared by the regulations to be a penalty notice officer for the 13
purpose of this section or belongs to a class of persons so 14
declared. 15
Division 3 Restraining orders 16
378L Application of Division 17
(1) This Division applies where: 18
(a) proceedings have been commenced against a person for an 19
offence against this Act or the regulations and, as a result 20
of those proceedings, the person may be required to pay an 21
amount referred to in section 378ZA, or 22
(b) proceedings have been commenced against a person under 23
section 378ZA. 24
(2) In this Division: 25
the defendant means the person referred to in subsection (1) (a) 26
or (b). 27
378M Nature of restraining order 28
A restraining order is an order of a court directing that any 29
property of the defendant is not to be disposed of, or otherwise 30
dealt with, by the defendant or by any other person, except in 31
such manner and in such circumstances (if any) as are specified 32
in the order. 33
378N Application for restraining order 34
(1) A person bringing proceedings (as referred to in section 378L) 35
may apply for a restraining order in relation to property of the 36
defendant. 37
Page 114
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(2) An application under this section may be made to the Land and 1
Environment Court. 2
(3) On an application under this section: 3
(a) the court may, if it thinks fit, require the person making the 4
application to give notice of the application to a person 5
who the court has reason to believe has an interest in the 6
property or part of the property, and 7
(b) a person to whom the court requires notice be given under 8
paragraph (a) is entitled to appear and to adduce evidence 9
at the hearing of the application. 10
378O Making of restraining order 11
On an application under section 378N, the court may make a 12
restraining order in relation to the defendant's property, if it is 13
satisfied (on the information contained in or accompanying the 14
application) that: 15
(a) the defendant has committed the relevant offence, and 16
(b) amounts are or are likely to be payable under section 17
378ZA or 378ZB, and 18
(c) it is appropriate to make an order under this section in the 19
circumstances of the case. 20
378P Undertakings 21
The court may refuse to make a restraining order if the person 22
making the application refuses or fails to give to the court such 23
undertakings as the court considers appropriate with respect to 24
the payment of damages or costs, or both, in relation to the 25
making or operation of the order. 26
378Q Ancillary orders 27
(1) A court that makes a restraining order may make any ancillary 28
orders that the court considers appropriate. 29
(2) Without limiting the generality of subsection (1), ancillary orders 30
may include any one or more of the following: 31
(a) an order for the examination on oath of: 32
(i) the defendant, or 33
(ii) another person, 34
before the court, or an officer of the court prescribed by 35
rules of court, concerning the affairs of the defendant, 36
including the nature and location of any property of the 37
defendant, 38
Page 115
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(b) an order varying the restraining order in respect of the 1
property to which it relates, 2
(c) an order varying any conditions to which the restraining 3
order was subject. 4
(3) An ancillary order may be made on application: 5
(a) by the applicant for the restraining order, or 6
(b) by the defendant, or 7
(c) with the leave of the court, by any other person. 8
(4) Ancillary orders may be made when or at any time after the 9
restraining order is made. An ancillary order referred to in 10
subsection (2) (a) may be made in advance of the restraining 11
order. 12
378R Charge on property subject to restraining orders 13
(1) If: 14
(a) a court has made a restraining order in respect of particular 15
property or all of the property of the defendant, and 16
(b) the court orders the payment of an amount referred to in 17
section 378ZA or 378ZB, 18
there is created by force of this section, on the making of the order 19
referred to in paragraph (b), a charge on all the property to which 20
the restraining order applies to secure the payment to a public 21
authority or person (which extends, for the purposes of this 22
Division, to the Crown) of the amount referred to in section 23
378ZA or 378ZB. 24
(2) Such a charge ceases to have effect in respect of the property: 25
(a) on payment by the defendant to the public authority or 26
person of the amount concerned, or 27
(b) on the sale or other disposition of the property with the 28
consent of the court, or 29
(c) on the sale of the property to a purchaser in good faith for 30
value who, at the time of the sale, has no notice of the 31
charge, 32
whichever occurs first. 33
(3) Such a charge is subject to every charge or encumbrance to which 34
the property was subject immediately before the order referred to 35
in subsection (1) (b) was made and, in the case of land under the 36
provisions of the Real Property Act 1900, is subject to every 37
mortgage, lease or other interest recorded in the Register kept 38
under that Act. 39
Page 116
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(4) Such a charge is not affected by any change of ownership of the 1
property, except as provided by subsection (2). 2
(5) If: 3
(a) such a charge is created on property of a particular kind 4
and the provisions of any law of the State provide for the 5
registration of title to, or charges over, property of that 6
kind, and 7
(b) the charge is so registered, 8
a person who purchases or otherwise acquires the property after 9
the registration of the charge is, for the purposes of subsection 10
(2), taken to have notice of the charge. 11
(6) If such a charge relates to land under the provisions of the Real 12
Property Act 1900, the charge has no effect until it is registered 13
under that Act. 14
378S Registration of restraining orders 15
(1) If a restraining order applies to property of a particular kind and 16
the provisions of any law of the State provide for the registration 17
of title to, or charges over, property of that kind, the authority 18
responsible for administering the provisions is required, on 19
application by any person, to record the particulars of the order in 20
the register kept under those provisions. 21
(2) If the particulars of a restraining order are so recorded, a person 22
who afterwards deals with the property is, for the purposes of 23
section 378R (2), taken to have notice of the charge created by 24
this Act on the making of the order. 25
(3) If a restraining order applies to land under the provisions of the 26
Real Property Act 1900, a caveat may be lodged under that Act 27
in relation to the order. 28
378T Recovery of costs of registering charge on land 29
(1) A person or public authority who registers a charge on land to 30
which a restraining order applies under section 378R may, by 31
written notice, require the defendant to pay all or any of the 32
reasonable costs and expenses incurred by the person or authority 33
in respect of the lodgment and registration of the charge 34
(including the costs of discharging the charge). 35
(2) The person or public authority may recover from the defendant 36
any unpaid amounts specified in the notice as a debt in a court of 37
competent jurisdiction. 38
Page 117
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
378U Recovery of costs of lodging caveat 1
(1) A person or public authority who lodges a caveat in respect of 2
land to which a restraining order applies under section 378S may, 3
by written notice, require the defendant to pay all or any of the 4
reasonable costs and expenses incurred by the person or authority 5
in respect of the lodgment and registration of the caveat 6
(including the costs of withdrawal of the caveat). 7
(2) The person or public authority may recover from the defendant 8
any unpaid amounts specified in the notice as a debt in a court of 9
competent jurisdiction. 10
378V Contravention of restraining orders 11
(1) A person who knowingly contravenes a restraining order by 12
disposing of, or otherwise dealing with, property that is subject to 13
the order is guilty of an offence. 14
Maximum penalty: A fine equivalent to the value of the property 15
(as determined by the court) or imprisonment for 12 months, or 16
both. 17
(2) If: 18
(a) a restraining order is made against property, and 19
(b) the property is disposed of, or otherwise dealt with, in 20
contravention of the restraining order, and 21
(c) the disposition or dealing was either not for sufficient 22
consideration or not in favour of a person who acted in 23
good faith, 24
the person who applied for the restraining order may apply to the 25
court that made the restraining order for an order that the 26
disposition or dealing with the property be set aside. 27
(3) If an application is made under subsection (2), the court may 28
make an order: 29
(a) setting aside the disposition or dealing as from the day on 30
which the disposition or dealing took place or as from the 31
day of the order under this subsection, and 32
(b) (if appropriate) declaring the respective rights of any 33
persons who acquired interests in the property on or after 34
the day on which the disposition or dealing took place and 35
before the day of the order. 36
Page 118
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
378W Court may revoke restraining order 1
(1) The court that made a restraining order may revoke the order, on 2
application made to it by the person in relation to whose property 3
it was made. 4
(2) The court may refuse to revoke the order if the person does not: 5
(a) give security satisfactory to the court for the payment of 6
any amount referred to in section 378ZA or 378ZB that 7
may be imposed on or ordered to be paid by the person 8
under this Act in respect of the person's conviction for the 9
offence, or 10
(b) give undertakings satisfactory to the court concerning the 11
person's property. 12
(3) Subsection (2) does not limit the discretion of the court to revoke 13
or refuse to revoke a restraining order. 14
378X Time when restraining order ceases to be in force 15
If, after a restraining order was made in reliance on the charging 16
of a person with an offence against this Act or the regulations: 17
(a) the charge is withdrawn and the person is not charged with 18
a related offence by the time of the withdrawal--the 19
restraining order ceases to be in force when the charge is 20
withdrawn, or 21
(b) the person is acquitted of the charge and the person is not 22
charged with a related offence by the time of the 23
acquittal--the restraining order ceases to be in force when 24
the acquittal occurs. 25
Division 4 Court orders in connection with offences 26
378Y Operation of Division 27
(1) This Division applies where a court finds an offence against this 28
Act or the regulations proved. 29
(2) Without limiting the generality of subsection (1), a court finds an 30
offence proved if: 31
(a) the court convicts the offender of the offence, or 32
(b) the court makes an order under section 10 of the Crimes 33
(Sentencing Procedure) Act 1999 against the offender in 34
relation to the offence (in which case the order is not a 35
punishment for the purposes of that section). 36
Page 119
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(3) In this Division: 1
the court means the court that finds the offence proved. 2
the offender means the person who is found to have committed 3
the offence. 4
378Z Orders generally 5
(1) One or more orders may be made under this Division against the 6
offender. 7
(2) Orders may be made under this Division in addition to any 8
penalty that may be imposed or any other action that may be 9
taken in relation to the offence. 10
(3) Orders may be made under this Division regardless of whether 11
any penalty is imposed, or other action taken, in relation to the 12
offence. 13
378ZA Orders for costs, expenses and compensation at time offence 14
proved 15
(1) The court may, if it appears to the court that: 16
(a) the Crown or a public authority has incurred costs and 17
expenses in connection with: 18
(i) the prevention, control, abatement or mitigation of 19
any harm to the environment caused by the 20
commission of the offence, or 21
(ii) making good any resulting environmental damage, 22
or 23
(b) the Crown or another person or a public authority has, 24
because of the commission of the offence, suffered loss of 25
or damage to property or has incurred costs and expenses 26
in preventing or mitigating, or in attempting to prevent or 27
mitigate, any such loss or damage, 28
order the offender to pay to the Crown, public authority or person 29
the costs and expenses so incurred, or compensation for the loss 30
or damage so suffered, as the case may be, in such amount as is 31
fixed by the order. 32
(2) However, a court is not to make an order for payment to a person 33
under subsection (1) to the extent that the payment would 34
represent the value of minerals owned by that person that the 35
offender had obtained by fossicking, prospecting operations or 36
mining operations carried out with the consent of that person and 37
in or in connection with the offence. 38
Page 120
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(3) An order made by the Local Court or a Warden's Court under 1
subsection (1) is enforceable as if it were an order made by the 2
court when exercising jurisdiction under the Civil Procedure Act 3
2005. 4
(4) An order made by the Land and Environment Court under 5
subsection (1) is enforceable as if it were an order made by the 6
Court in Class 4 proceedings under the Land and Environment 7
Court Act 1979. 8
(5) The Local Court or a Warden's Court is not to make an order 9
under subsection (1) for the payment of an amount that exceeds 10
the amount for which an order may be made by the court when 11
exercising jurisdiction under the Civil Procedure Act 2005. 12
378ZB Recovery of costs, expenses and compensation after offence 13
proved 14
(1) If, after the court finds the offence proved: 15
(a) the Crown or a public authority has incurred costs and 16
expenses in connection with: 17
(i) the prevention, control, abatement or mitigation of 18
any harm to the environment caused by the 19
commission of the offence, or 20
(ii) making good any resulting environmental damage, 21
or 22
(b) a person (including the Crown and a public authority) has, 23
because of the commission of the offence, suffered loss of 24
or damage to property or has incurred costs and expenses 25
in preventing or mitigating, or in attempting to prevent or 26
mitigate, any such loss or damage, 27
the Crown, public authority or person may recover from the 28
offender the costs and expenses incurred or the amount of the loss 29
or damage in the Land and Environment Court. 30
(2) The amount of any such costs and expenses (but not the amount 31
of any such loss or damage) may be recovered as a debt in a court 32
of competent jurisdiction. 33
(3) However, a person may not recover an amount that would 34
represent the value of minerals owned by that person that the 35
offender had obtained by fossicking, prospecting operations or 36
mining operations carried out with the consent of that person and 37
in or in connection with the offence. 38
Page 121
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
378ZC Orders regarding costs and expenses of investigation 1
(1) The court may, if it appears to the court that the Crown or a public 2
authority has reasonably incurred costs and expenses during the 3
investigation of the offence, order the offender to pay to the 4
Crown or the authority the costs and expenses so incurred in such 5
amount as is fixed by the order. 6
(2) An order made by the Land and Environment Court under 7
subsection (1) is enforceable as if it were an order made by the 8
Court in Class 4 proceedings under the Land and Environment 9
Court Act 1979. 10
(3) An order made by the Local Court or a Warden's Court under 11
subsection (1) is enforceable as if it were an order made by the 12
court when exercising jurisdiction under the Civil Procedure Act 13
2005. 14
(4) In this section: 15
costs and expenses, in relation to the investigation of an offence, 16
means the costs and expenses: 17
(a) in taking any sample or conducting any inspection, test, 18
measurement or analysis, or 19
(b) of transporting, storing or disposing of evidence, 20
during the investigation of the offence. 21
378ZD Orders regarding other monetary benefits 22
(1) The court may order the offender to pay, as an additional penalty 23
for committing the offence, an amount that the court is satisfied, 24
on the balance of probabilities, represents the amount of any 25
monetary benefits acquired by the offender, or accrued or 26
accruing to the offender, as a result of the commission of the 27
offence. 28
(2) However, in calculating the amount of these monetary benefits, 29
the court is to exclude any monetary benefits acquired in 30
connection with the fossicking or prospecting for, or the mining 31
of, privately owned minerals. 32
(3) The amount of an additional penalty for an offence is not subject 33
to any maximum amount of penalty provided elsewhere by or 34
under this Act. 35
(4) In this section: 36
monetary benefits means monetary, financial or economic 37
benefits. 38
the court does not include the Local Court or a Warden's Court. 39
Page 122
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
378ZE Additional orders 1
(1) The court may do any one or more of the following: 2
(a) order the offender to take specified action to publicise the 3
offence (including the circumstances of the offence) and 4
its consequences and any other orders made against the 5
person, 6
(b) order the offender to take specified action to notify 7
specified persons or classes of persons of the offence 8
(including the circumstances of the offence) and its 9
consequences and of any orders made against the person 10
(including, for example, the publication in an annual report 11
or any other notice to shareholders of a company or the 12
notification of persons aggrieved or affected by the 13
offender's conduct), 14
(c) order the offender to carry out a specified project for the 15
rehabilitation of a current or former authorisation area, 16
(d) order the offender to carry out an audit of activities carried 17
on by the offender, 18
(e) order the offender to pay a specified amount to the Derelict 19
Mine Sites Fund for the purposes of a specified project for 20
the rehabilitation of a current or former authorisation area, 21
(f) order the offender to attend, or to cause an employee or 22
employees or a contractor or contractors of the offender to 23
attend, a training or other course specified by the court, 24
(g) order the offender to establish, for employees or 25
contractors of the offender, a training course of a kind 26
specified by the court, 27
(h) order the offender to pay any royalty that is due and 28
payable by the offender under this Act, 29
(i) if the Director-General is a party to proceedings, order the 30
offender to provide to the Director-General and maintain a 31
security deposit, in a form and amount, and on such terms 32
(if any), specified by the court, if the court orders the 33
offender to carry out a specified work or program for the 34
restoration or enhancement of the environment. 35
However, the Local Court or a Warden's Court is not authorised 36
to make an order referred to in paragraph (c), (d), (e) or (i). 37
(2) The court may, in an order under this section, fix a period for 38
compliance and impose any other requirements the court 39
considers necessary or expedient for enforcement of the order. 40
Page 123
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(3) If the offender contravenes an order under subsection (1) (a) or 1
(b), the prosecutor or a person authorised by the prosecutor may 2
take action to carry out the order as far as may be practicable, 3
including action to publicise or notify: 4
(a) the original contravention, its environmental and other 5
consequences, and any other penalties imposed on the 6
offender, and 7
(b) the contravention of the order. 8
(4) The reasonable cost of taking action referred to in subsection (3) 9
is recoverable by the prosecutor or person taking the action, in a 10
court of competent jurisdiction, as a debt from the offender. 11
(5) Sections 242C, 261F and 261G apply with respect to a security 12
deposit provided under an order referred to in subsection (1) (i) 13
as if it were provided under a security deposit condition. 14
378ZF Offence 15
A person who fails to comply with an order under this Division 16
(except an order under section 378ZA, 378ZB or 378ZC) is guilty 17
of an offence. 18
Maximum penalty: 19
(a) in the case of a corporation--1,000 penalty units for each 20
day the offence continues, or 21
(b) in the case of a natural person--500 penalty units for each 22
day the offence continues. 23
Division 5 Evidentiary provisions 24
378ZG Certificate evidence of certain matters 25
(1) A document signed by the Director-General, or by an officer 26
designated by the Director-General for the purposes of this 27
section, and certifying any one or more of the matters specified 28
in subsection (2) is admissible in any proceedings under this Act 29
and is prima facie evidence of the matters so certified. 30
(2) The following matters are specified for the purposes of 31
subsection (1): 32
(a) that an instrument, a copy of which is set out in or annexed 33
to the document, being an instrument purporting: 34
(i) to be issued, made or given for the purposes of this 35
Act, and 36
Page 124
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(ii) to have been signed by the person authorised to 1
issue, make or give the instrument, or by another 2
person acting as delegate or on behalf of the person, 3
was issued, made or given on a specified day, 4
(b) that a person was or was not, at a specified time or during 5
a specified period, the holder of a specified authorisation 6
or an authorisation of a specified kind, 7
(c) that specified land was or was not, at a specified time or 8
during a specified period, the subject of a specified 9
authorisation or an authorisation of a specified kind, 10
(d) that specified land was or was not, at a specified time or 11
during a specified period, a specified authorisation area or 12
part of a specified authorisation area, 13
(e) that an authorisation was or was not, at a specified time or 14
during a specified period, subject to specified conditions, 15
(f) that an authorisation was, at a specified time, cancelled or 16
suspended for a specified period or was cancelled or 17
suspended subject to specified conditions, 18
(g) that a condition was, at a specified time, revoked or varied 19
in a specified manner or that a new condition was, at a 20
specified time, imposed on an authorisation or on the 21
suspension of an authorisation, 22
(h) that a person was or was not, at a specified time or during 23
a specified period, a warden, an inspector or a royalty 24
officer, 25
(i) that a person was or was not, at a specified time or during 26
a specified period, a member of staff of the Department or 27
a council, 28
(j) that information required to be furnished pursuant to this 29
Act or the regulations was or was not received, 30
(k) that a document is a copy of part of, or an extract from, a 31
register kept under this Act, 32
(l) that a specified amount is payable under this Act or the 33
regulations by a specified person and has not been paid, 34
(m) that minerals of a specified value were recovered by a 35
specified person or from specified land, at a specified time 36
or during a specified period, 37
(n) that a specified legal or equitable interest (being a legal or 38
equitable interest of a kind referred to in section 161), 39
mining sublease or colliery holding was or was not 40
registered under this Act, 41
Page 125
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
(o) that the Crown or a public authority has incurred costs or 1
expenses of a specified amount under section 241 or 242B, 2
(p) that the Crown or a public authority has incurred costs or 3
expenses of a specified amount in connection with the 4
investigation of a specified offence under this Act, 5
(q) that a specified function under this Act was delegated to a 6
specified person under section 363 during a specified 7
period. 8
(3) For the purposes of the certification of a matter referred to in 9
subsection (2) (h), the person who appointed the warden, 10
inspector or royalty officer concerned is taken to be an officer 11
designated by the Director-General (as referred to in subsection 12
(1)). 13
(4) In the absence of information that would enable the accurate 14
determination of an amount payable, as referred to in subsection 15
(2) (l), or the value of minerals, as referred to in subsection (2) 16
(m), the following provisions have effect: 17
(a) the amount or value certified may be an estimate of that 18
amount or value (based on the information available to the 19
person making the certification), 20
(b) the estimate is presumed to be accurate and cannot be 21
challenged on the basis that insufficient information was 22
available to enable the making of an accurate 23
determination, but can be challenged by the provision of 24
information that enables a more accurate estimate to be 25
made, 26
(c) if the estimate is successfully challenged and as a result a 27
more accurate estimate is substituted, no proceedings are 28
open to challenge merely because of the less accurate 29
estimate and proceedings may continue to be heard and be 30
determined on the basis of the substituted estimate. 31
[259] Section 382A 32
Omit the section. Insert instead: 33
382A Waiver or refund of fees and extension of time for payment 34
The Director-General may refund or waive payment of the whole 35
or any part of a fee that this Act requires to be paid, on his or her 36
own initiative or on the application of the person who is required 37
to pay the fee, if the Director-General is satisfied that there is 38
good cause for doing so. 39
Page 126
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[260] Section 383 Service of documents 1
Omit section 383 (1). Insert instead: 2
(1) For the purposes of this Act, any notice or other document may 3
be issued or given to a person, or may be served on a person: 4
(a) in the case of a natural person: 5
(i) by delivering it personally to the person, or 6
(ii) by delivering it to the place of residence, or a place 7
of business, of the person and by leaving it there for 8
the person with some other person apparently of or 9
above the age of 16 years, or 10
(iii) by posting it duly stamped and addressed to the 11
person at the place last shown in the records of the 12
Department as the person's place of residence or 13
business, or 14
(b) in the case of a body corporate--by leaving it with a 15
person apparently of or above the age of 16 years at, or by 16
sending it by post to, a registered office of the body 17
corporate, or 18
(c) by posting it duly stamped and addressed to the person at 19
the place indicated by the person as an address to which 20
correspondence may be posted (including for example a 21
post office box), or 22
(d) by sending it by facsimile or electronic transmission 23
(including for example the Internet) to the person in 24
accordance with arrangements indicated by the person as 25
appropriate for transmitting documents to the person, or 26
(e) by leaving it addressed to the person at a document 27
exchange or other place (in accordance with usual 28
arrangements for the exchange or other place) indicated by 29
the person as an exchange or place through which 30
correspondence may be forwarded to the person. 31
[261] Section 383 (5) 32
Omit the subsection. 33
[262] Section 383 (8) 34
Insert after section 383 (7): 35
(8) This section does not affect any other mode of issuing, giving or 36
serving a notice or other document under any other law. 37
Page 127
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
[263] Section 383B Consent of landholders and others 1
Omit "operations" from section 383B (1) (b). Insert instead "activities". 2
[264] Section 383B (1) (c) 3
Omit "section 140 (b)". Insert instead "section 140 (1) (b)". 4
[265] Section 383B (1) (d) 5
Omit "section 164 (5) or 211 (5)". Insert instead "section 164 (6) or 211 (6)". 6
[266] Section 387A Application of Act to former minerals 7
Omit section 387A (2). Insert instead: 8
(2) This Act continues to apply to a substance to which this section 9
applies as if it were a mineral and any mining lease or mineral 10
claim in respect of the substance continues in force, subject to 11
this Act. 12
(2A) The holder of any such lease or claim remains bound by the 13
conditions of the lease or claim (including conditions requiring 14
payment of royalty) in accordance with this Act. 15
[267] Schedule 1 Public consultation with respect to the granting of 16
assessment leases and mining leases 17
Omit "each exempted area" wherever occurring. 18
Insert instead "any reserved land". 19
[268] Schedule 1, clause 21 (3) 20
Insert "(except where the landholder is the applicant or is, in relation to the 21
applicant, a related corporation)" after "concerned". 22
[269] Schedule 1, clause 22 (5) 23
Omit the subclause. Insert instead: 24
(5) On receipt of an objection under this clause, the Director-General 25
is to determine the objection in accordance with Schedule 2. 26
[270] Schedule 1, clause 24 27
Omit clause 24 (3)-(5). 28
[271] Schedule 4 Regulation making powers 29
Omit "mining registrars," from clause 4. 30
Page 128
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
[272] Schedule 6 Savings, transitional and other provisions 1
Insert at the end of clause 1 (1): 2
Mining Amendment Act 2008 3
[273] Schedule 6 4
Insert at the end of the Schedule with appropriate Part and clause numbers: 5
Part Provisions consequent on enactment of 6
Mining Amendment Act 2008 7
Definition 8
In this Part: 9
the 2008 Act means the Mining Amendment Act 2008. 10
Existing private mining 11
(1) Sections 6, 8, and 9, as in force immediately before their repeal 12
by the 2008 Act, continue to apply to a person who, immediately 13
before the repeal, was entitled under section 8 or 9 to prospect for 14
or mine any privately owned minerals or coal. 15
(2) Sections 20, 39, 60 and 185, as in force immediately before their 16
repeal by the 2008 Act, continue to apply to applications for 17
authorisations over land if, immediately before the repeal of 18
those sections, a person was entitled under section 8 to prospect 19
for or mine any privately owned minerals. 20
(3) Sections 240 and 240A, as inserted by the 2008 Act, apply to or 21
in respect of activities carried out under section 8 (as continued 22
in force by this clause) in the same way that they apply to or in 23
respect of activities carried out under an authorisation. 24
(4) Sections 261F-261I, as inserted by the 2008 Act, apply to a 25
security lodged or required to be lodged under section 8 (as 26
continued in force by this clause) in the same way that they apply 27
to or in respect of a security deposit provided under a security 28
deposit condition. 29
(5) Sections 5 and 6, as inserted by the 2008 Act, do not apply to or 30
in respect of the prospecting, mining or carrying out of mining 31
purposes in the course of prospecting for or mining privately 32
owned minerals by a person referred to in subclause (1). 33
(6) This clause ceases to apply in respect of a person 12 months after 34
it commences or if the person becomes the holder of an 35
Page 129
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
authorisation in respect of the land on which the privately owned 1
minerals or coal are located before the expiry of that period. 2
Existing mining purposes 3
(1) Section 6, as inserted by the 2008 Act, does not apply to or in 4
respect of a mining purpose that was carried out, or in the course 5
of construction, immediately before the commencement of that 6
section. 7
(2) This clause ceases to have effect in relation to a mining purpose 8
on the earlier of the following events: 9
(a) the end of the period of 5 years following the 10
commencement of section 6, 11
(b) if the mining purpose is abandoned for a continuous period 12
of 12 months (other than for repair or maintenance). 13
Declarations that activities are not prospecting or mining 14
A regulation in force under section 11A (1) immediately before 15
its substitution by the 2008 Act continues in force and is taken to 16
have been made under that subsection as substituted by the 2008 17
Act. 18
Existing applications relating to authorisations 19
(1) An application for an authorisation, or for the transfer or renewal 20
of an authorisation, that was not determined before the 21
commencement of this clause and that complied with this Act, as 22
in force before its amendment by the 2008 Act, is taken to have 23
been duly made under this Act, as amended by the 2008 Act. 24
(2) Notice is not required to be given of an application referred to in 25
subclause (1) if such notice was not required to be given before 26
the amendment of this Act by the 2008 Act. 27
Term of existing authorisations 28
Sections 27, 45 and 71, as in force before the substitution of those 29
sections by the 2008 Act, continue to apply to an authority in 30
force immediately before that substitution. 31
Prospecting activities under authorisations 32
Regulations may be made for or with respect to the following: 33
(a) the prospecting operations that may be carried out under an 34
authorisation in force immediately before the substitution 35
of section 29 by the 2008 Act, 36
Page 130
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
(b) deeming particular prospecting operations, permitted 1
under existing authorisations, to be the subject of an order 2
by the Minister under section 29, as substituted by the 3
2008 Act. 4
Existing disputes subject to a warden's inquiry 5
(1) This clause applies to a dispute referred to a warden for 6
determination under section 31, 49, 62, 165, 170, 188, 212 or 217 7
and not determined before the commencement of this clause. 8
(2) A dispute to which this clause applies is to continue to be dealt 9
with as if the provision of this Act under which it is being dealt 10
with had not been amended by the 2008 Act. 11
Mining subleases 12
(1) A mining sublease that was registered, or taken to be registered, 13
under section 161 of this Act, and in force, immediately before 14
the commencement of section 163A of this Act must be 15
registered by the sublessee under section 163A not later than 3 16
months after the commencement of that section. 17
(2) A mining sublease referred to in subclause (1) ceases to be 18
registered under section 161 on being registered under section 19
163A or 3 months after the commencement of that section, 20
whichever is the earlier. 21
Existing mineral claims outside mineral claims districts 22
(1) A mineral claim over land that is outside a mineral claims district, 23
and that was in force immediately before the commencement of 24
this clause, is taken to be a mining lease over that land. 25
(2) An application for a mineral claim over land that is outside a 26
mineral claims district that was not determined before the 27
commencement of this clause is taken to be an application for a 28
mining lease under this Act. 29
(3) The regulations may make provision for or with respect to the 30
application of this Act to a mining lease referred to in subclause 31
(1), and may, for that purpose, modify the application of this Act 32
or the regulations. 33
Restrictions on grant of opal prospecting licence 34
Section 227, as amended by the 2008 Act, applies to and in 35
respect of an application for an opal prospecting licence made 36
before the commencement of that amendment in the same way as 37
Page 131
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
it applies to and in respect of an application for an opal 1
prospecting licence made on or after that commencement. 2
Assessment of compensation in relation to mineral claims and 3
opal prospecting licences 4
Sections 266-267, as inserted by the 2008 Act, apply to and in 5
respect of a mineral claim or opal prospecting licence granted 6
before the commencement of those sections in the same way as 7
they apply to and in respect of a mineral claim or opal prospecting 8
licence granted after that commencement, but do not affect any 9
compensation determined or payable before that commencement 10
in respect of any such mineral claim or opal prospecting licence. 11
Compensation arising under mineral claim or opal prospecting 12
licence 13
The holder of a mineral claim or opal prospecting licence who, 14
before the commencement of section 266 as substituted by the 15
2008 Act, had met the requirements of section 266 or 267 (as in 16
force before the substitution) that had to be met in order to be 17
entitled to exercise the rights conferred by the claim or licence is 18
taken, with respect to that claim or licence, to have met the 19
requirements imposed on the holder of an authorisation under 20
section 266. 21
Suspended authorisations 22
The provisions of this Act applying to the suspension of an 23
authorisation, as in force before the commencement of this 24
clause, continue to apply to or in respect of an authorisation that 25
was the subject of a suspension immediately before that 26
commencement. 27
Limitation of challenges to decisions with respect to authorities 28
and opal prospecting licences 29
Sections 137, 210B and 234A, as substituted or inserted by the 30
2008 Act, apply to an authority, mineral claim or opal 31
prospecting licence in force immediately before the section 32
commenced but do not apply to any decision made before that 33
commencement. 34
Access arrangements 35
Section 140 (4), as inserted by the 2008 Act, does not apply to or 36
in respect of a prospecting title in force before the 37
commencement of that subsection. 38
Page 132
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
Existing directions 1
(1) A direction given under section 240, and having effect 2
immediately before the substitution of that section by the 2008 3
Act, continues in force and may be enforced under sections 241 4
and 242 of this Act, as in force before that substitution. 5
(2) A direction given under section 245, and having effect 6
immediately before the substitution of that section by the 2008 7
Act, continues in force and may be enforced under section 246 of 8
this Act, as in force before that substitution. 9
Security deposits 10
(1) A condition of an authorisation in force immediately before the 11
commencement of Part 12A of this Act that required a security 12
deposit to be provided is taken to be a condition imposed under 13
that Part and is taken to comply with that Part. 14
(2) Part 12A applies to a security deposit provided, and not released, 15
under this Act immediately before the commencement of that 16
Part and any such security deposit is taken to comply with that 17
Part. 18
Environmental management conditions and directions 19
(1) A condition imposed on an authority under Division 2 of Part 11 20
of this Act, and in force immediately before the commencement 21
of this clause, continues to have effect and may be revoked or 22
varied by the decision-maker. 23
(2) For the purposes of this Act, any such condition is taken to be a 24
condition listed in Part 1 of Schedule 7. 25
(3) A condition imposed under section 70 (1) (b), as inserted by the 26
2008 Act, applies to a mining lease in force immediately before 27
the commencement of that provision. 28
(4) The regulations may provide for the period within which the 29
holder of any such mining lease is required to comply with the 30
condition and may deem existing agreements or arrangements to 31
be rehabilitation and environmental management plans for the 32
purposes of section 70 (1) (b). 33
(5) Except as provided by this clause and the regulations, a condition 34
imposed on an authority by an amendment made to this Act by 35
the 2008 Act does not apply to an authority in force on the 36
commencement of this clause. 37
Page 133
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
Addition or variation of conditions as a consequence of planning 1
approval 2
Section 168A, as inserted by the 2008 Act, applies to an 3
authorisation in force immediately before the commencement of 4
that section. 5
Evidentiary certificates 6
An evidentiary certificate given under section 172 of the Act 7
before its repeal by the 2008 Act is taken to have been given 8
under section 378ZG. 9
Lodgment fees 10
A fee that, immediately before the substitution of section 382A 11
of this Act by the 2008 Act, was a fee determined by the Minister 12
under that section is taken to be the lodgment or application fee 13
prescribed by the regulations for the purposes of the relevant 14
provision of the Act or regulations, until a fee is prescribed by the 15
regulations. 16
Matters referred to mining registrars 17
Any decision or other matter referred to a mining registrar before 18
the commencement of this clause and not finally made or 19
otherwise finally dealt with before that commencement is to be 20
made or otherwise dealt with by the Director-General. 21
Enforcement provisions 22
Divisions 3 and 4 of Part 17A, as inserted by the 2008 Act, apply 23
to or in respect of offences committed before the commencement 24
of those Divisions but do not apply to or in respect of any 25
proceedings commenced before that commencement. 26
[274] Schedule 7 27
Insert after Schedule 6: 28
Schedule 7 Offences 29
(Sections 378D, 378H and 378I) 30
Part 1 Conditions for which contravention carries 31
higher maximum penalty 32
A condition imposed by or under section 70 (1) (b), 168A, 239B, 239C, 246G 33
or 246P. 34
Page 134
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
Part 2 Offences that may be dealt with on 1
indictment 2
An offence by a natural person under Division 1 or 2 of Part 2 or section 291. 3
Part 3 Offences for purposes of section 378I 4
An offence under Division 1 or 2 of Part 2 or section 239C, 240C, 246R, 248S, 5
291, 378A or 378D (but only if it involves a contravention of a condition 6
referred to in Part 1 of this Schedule or imposed under section 261B). 7
[275] Dictionary, definition of "block" 8
Omit the definition. 9
[276] Dictionary, definition of "controlling body" 10
Omit "an exempted area" and "exempted area". 11
Insert instead "reserved land" and "reserved land" respectively. 12
[277] Dictionary, definition of "Department" 13
Omit "Department of Mineral Resources". 14
Insert instead "Department of Primary Industries". 15
[278] Dictionary, definition of "development consent" 16
Omit the definition. Insert instead: 17
development consent means a development consent under Part 4 18
of the Environmental Planning and Assessment Act 1979 or an 19
approval under Part 3A of that Act. 20
[279] Dictionary, definition of "exempted area" 21
Omit the definition. 22
[280] Dictionary, definition of "landholder" 23
Omit "any land". 24
Insert instead "reserved land, the controlling body of that land, or, in relation 25
to any other land". 26
[281] Dictionary, definition of "mine" 27
Omit paragraph (b) from the definition. Insert instead: 28
(b) when used as a verb--to extract material from land for the 29
purpose of recovering minerals from the material so 30
extracted or to rehabilitate land (other than a derelict mine 31
Page 135
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
site) from which material has been extracted, but does not 1
include any activity declared not to be mining by a 2
regulation under section 11A or by an order made under 3
such a regulation. 4
[282] Dictionary, definition of "prospect" 5
Insert "or by a declaration made under such a regulation" after "section 11A". 6
[283] Dictionary, definition of "royalty officer" 7
Omit the definition. 8
[284] Dictionary, definition of "unit" 9
Omit the definition. 10
[285] Dictionary 11
Insert in alphabetical order: 12
assessment (mineral owner) lease means an assessment lease 13
granted to the owner of privately owned minerals with respect to 14
those minerals. 15
authorisation means an authority, a small-scale title or an 16
environmental assessment permit granted under section 252. 17
authorisation area means land that is the subject of an 18
authorisation. 19
authority area means land the subject of an authority. 20
decision-maker means: 21
(a) in relation to a mineral claim or an opal prospecting 22
licence, or an application for or with respect to such a 23
claim or licence--the Director-General, or 24
(b) in relation to a mineral owner authority, or an application 25
for or with respect to such an authority--the 26
Director-General, or 27
(c) in relation to any other type of authority or an application 28
for or with respect to any other type of authority--the 29
Minister. 30
derelict mine site means land declared as a derelict mine site 31
under section 242A. 32
Derelict Mine Sites Fund means the fund established by section 33
242C. 34
ecologically sustainable development has the same meaning as it 35
has in section 6 (2) of the Protection of the Environment 36
Administration Act 1991. 37
Page 136
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
environment includes all aspects of the surroundings of humans, 1
whether affecting any human as an individual or in his or her 2
social grouping. 3
environment protection legislation has the same meaning as in 4
the Protection of the Environment Administration Act 1991. 5
exploration (mineral owner) licence means an exploration 6
licence granted to the owner of privately owned minerals with 7
respect to those minerals. 8
full transfer, in relation to an authority, means a transfer of the 9
authority that relates to the whole authority area. 10
head lease means a mining lease in relation to which a mining 11
sublease has effect under section 83A. 12
land includes land covered by water. 13
Mineral Claims Districts Compensation Fund means the fund 14
established by section 281C. 15
mineral owner authority means an exploration (mineral owner) 16
licence, an assessment (mineral owner) lease or a mining 17
(mineral owner) lease. 18
mining (mineral owner) lease means a mining lease granted to 19
the owner of privately owned minerals with respect to those 20
minerals. 21
mining sublease means an assignment, or purported assignment, 22
by the holder of a mining lease to another person of rights and 23
obligations conferred by the lease, for a limited period. 24
mining sublease area or sublease area means land that is the 25
subject of a mining sublease. 26
mining sublease register means the register of mining subleases 27
kept under section 163A. 28
new authority means the authority that is taken by section 122 (5) 29
(b) to have been granted on a partial transfer. 30
occupational health and safety legislation means: 31
(a) the Occupational Health and Safety Act 1983 and the 32
regulations made under that Act, and 33
(b) the Occupational Health and Safety Act 2000 and the 34
regulations made under that Act, and 35
(c) the Coal Mines Regulation Act 1982 and the regulations 36
made under that Act, and 37
(d) the Coal Mine Health and Safety Act 2002 and the 38
regulations made under that Act, and 39
(e) the Mines Inspection Act 1901 and the regulations and any 40
rules made under that Act. 41
Page 137
Mining Amendment Bill 2008
Schedule 1 Amendment of Mining Act 1992
original authority means the authority the partial transfer of 1
which results in a new authority being taken, by section 122 (5) 2
(b), to have been granted. 3
partial transfer, in relation to an authority, means a transfer of an 4
authority only in so far as part of the authority area is concerned. 5
premises includes: 6
(a) a building or structure, or 7
(b) land or a place (whether enclosed or built on or not), or 8
(c) a mobile plant, vehicle, vessel or aircraft. 9
public authority means a public authority constituted by or under 10
an Act, and includes: 11
(a) a Government Department, and 12
(b) a statutory body representing the Crown, a State owned 13
corporation within the meaning of the State Owned 14
Corporations Act 1989 and a subsidiary (within the 15
meaning of that Act), and 16
(c) a council, and 17
(d) a member of staff or other person who exercises functions 18
on behalf of a public authority. 19
record includes a plan, specifications, map, report, book and 20
other document (whether in writing, in electronic form or 21
otherwise). 22
rehabilitation means the treatment or management of disturbed 23
land or water for the purpose of establishing a safe and stable 24
environment. 25
related corporation, in relation to the holder of, or applicant or 26
tenderer for or with respect to, an authorisation that is a 27
corporation, means a corporation that is, with respect to that 28
holder, applicant or tenderer, a related body corporate within the 29
meaning of the Corporations Act 2001 of the Commonwealth. 30
reserved land means an area constituted by land: 31
(a) reserved, dedicated, appropriated, resumed or acquired for 32
public purposes (except land reserved for a temporary 33
common or a commonage), whether vested in the Crown 34
or in any person as trustee for public purposes, or 35
(b) held under a lease for water supply by virtue of a special 36
lease or otherwise, or 37
(c) transferred, granted or vested in trust by the Crown for the 38
purpose of a race-course, cricket-ground, recreation 39
Page 138
Mining Amendment Bill 2008
Amendment of Mining Act 1992 Schedule 1
reserve, park or permanent common or for any other public 1
purpose, or 2
(d) prescribed by the regulations for the purposes of this 3
definition. 4
transfer, in relation to an authority, means a full or partial 5
transfer of the authority. 6
transferee, in relation to a partial transfer of an authority, means 7
the holder of the new authority. 8
Page 139
Mining Amendment Bill 2008
Schedule 2 Amendment of other Acts and instrument
Schedule 2 Amendment of other Acts and 1
instrument 2
(Section 4) 3
2.1 Coal Mine Health and Safety Act 2002 No 129 4
Section 3 Definitions 5
Omit the definition of colliery holder. Insert instead: 6
colliery holder means the person identified in the register of 7
colliery holdings kept by the Director-General under section 163 8
of the Mining Act 1992 as the colliery holder for the holding. 9
2.2 Criminal Procedure Act 1986 No 209 10
[1] Schedule 1 Indictable offences triable summarily 11
Insert "or carrying out a mining purpose" after "offence of mining" in clause 12
31 (1) of Table 1. 13
[2] Schedule 1, Table 1 14
Omit ", where the value of the minerals to which the alleged offence relates is 15
$5,000 or more" from clause 31 (1). 16
[3] Schedule 1, Table 2 17
Omit clause 17 (1) and (3). 18
2.3 Environmental Planning and Assessment Regulation 2000 19
Schedule 3 Designated development 20
Omit "or subject to a notice under section 8 of" wherever occurring in Part 1. 21
Insert instead "under". 22
2.4 Fines Act 1996 No 99 23
Schedule 1 Statutory provisions under which penalty notices issued 24
Omit "Mining Act 1992, section 375A". 25
Insert instead "Mining Act 1992, section 378K". 26
Page 140
Mining Amendment Bill 2008
Amendment of other Acts and instrument Schedule 2
2.5 Mine Health and Safety Act 2004 No 74 1
[1] Section 3 Definitions 2
Omit the definition of mine holder from section 3 (1). Insert instead: 3
mine holder means: 4
(a) in relation to land subject to a mining title granted under 5
the Mining Act 1992--the person who holds the title, or 6
(b) in relation to land subject to a mining licence granted under 7
the Offshore Minerals Act 1999--the person who holds the 8
licence, or 9
(c) in relation to any other land--the person with the right to 10
extract minerals or quarry product from the land. 11
[2] Section 3 (1), definition of "mine holding" 12
Omit the definition. 13
[3] Section 6 Application of Act 14
Omit section 6 (1). Insert instead: 15
(1) This Act applies to the following places of work (which are called 16
mines in this Act): 17
(a) any place where the extraction of material from land for 18
the purpose of recovering minerals or quarry product is 19
carried out, 20
(b) any place where the treatment of any such extracted 21
material, or the treatment of minerals or quarry product, is 22
carried out, if that place is at or near the place from which 23
the material, minerals or quarry product were extracted, 24
(c) any place where the storage or treatment of waste resulting 25
from: 26
(i) the extraction of material from land for the purpose 27
of recovering minerals or quarry product, or 28
(ii) the treatment of minerals or quarry product, 29
is carried out, if that place is at or near the place from 30
which the material, minerals or quarry product were 31
extracted, 32
(d) any place where recycling operations are carried out, if that 33
place is at or near the place from which material was 34
extracted from land for the purpose of recovering quarry 35
product to be used in the recycling operations, 36
Page 141
Mining Amendment Bill 2008
Schedule 2 Amendment of other Acts and instrument
(e) any place where the manufacturing of ready-mix concrete 1
or bitumen hot mix is carried out, if that place is: 2
(i) at or near a place from which material was extracted 3
from land for the purpose of recovering quarry 4
product, and 5
(ii) under the control of the same person or entity that 6
has control of the place referred to in subparagraph 7
(i), 8
(f) any place where mining exploration is carried out, 9
Note. See subsection (6). 10
(g) any place where the treatment of zircon, rutile, ilmenite, 11
monazite and associated minerals is carried out, 12
(h) any place where offshore exploration or mining activities 13
within the meaning of the Offshore Minerals Act 1999 are 14
carried out, 15
(i) any place where operations associated with the care, 16
security or maintenance of a place referred to in paragraph 17
(a)-(h), (j) or (k) are carried out during any time when 18
activities or operations at that place are suspended, 19
(j) any place where operations associated with the 20
decommissioning or abandonment of a place referred to in 21
paragraph (a)-(i) are carried out, 22
(k) any place where an activity or operation referred to in 23
paragraph (a)-(j) is or has been carried out, and that is 24
being rehabilitated. 25
[4] Section 6 (2) (a) and (3) (a) 26
Omit "subsection (1) (b)-(i)" wherever occurring. 27
Insert instead "subsection (1) (a)-(h)". 28
[5] Section 6 (3) (b) 29
Omit "subsection (1) (b)-(l)". Insert instead "subsection (1) (a)-(k)". 30
Page 142
Mining Amendment Bill 2008
Amendment of other Acts and instrument Schedule 2
[6] Section 6 (5) 1
Omit "mine holding or other" wherever occurring. 2
[7] Section 6 (6) 3
Omit "subsection (1) (g)". Insert instead "subsection (1) (f)". 4
[8] Section 6 (6) (a) 5
Omit the paragraph. 6
[9] Section 22 Duty to nominate the operator of a mine 7
Omit "of the mine holding" from section 22 (11). 8
[10] Section 68 Duty to give notice of drilling operations 9
Omit ", not within a mine holding," from section 68 (4). 10
[11] Section 192 Amendment of Mining Act 1992 No 29 11
Omit the section. 12
[12] Schedule 1 Amendment of Mining Act 1992 13
Omit the Schedule. 14
[13] Schedule 2 Amendment of Occupational Health and Safety Act 2000 15
Omit the definition of mining workplace from item [3]. Insert instead: 16
mining workplace means a place of work: 17
(a) that is a mine to which the Mine Health and Safety Act 18
2004 applies, or 19
(b) at which activities under the Petroleum (Onshore) Act 20
1991 or the Petroleum (Submerged Lands) Act 1982 are 21
carried out. 22
2.6 Mine Subsidence Compensation Act 1961 No 22 23
Section 4 Definitions 24
Omit the definition of Colliery holding. Insert instead: 25
Colliery holding means a colliery holding registered in 26
accordance with section 163 of the Mining Act 1992. 27
Page 143
Mining Amendment Bill 2008
Schedule 2 Amendment of other Acts and instrument
2.7 National Parks and Wildlife Act 1974 No 80 1
Section 47J Provisions relating to mining 2
Insert "or an authorisation" after "consent" wherever occurring in section 3
47J (7). 4
2.8 Petroleum (Onshore) Act 1991 No 84 5
[1] Section 28A Right to explore for natural reservoirs 6
Insert "and section 29" after "title" in section 28A (2). 7
[2] Sections 29 and 29A 8
Omit section 29. Insert instead: 9
29 Rights of holders of exploration licence 10
(1) An exploration licence authorises only: 11
(a) the conduct, on the land comprised in the licence and in 12
accordance with the conditions of the licence, of 13
prospecting of a kind determined by the Minister for the 14
purposes of this section by order published in the Gazette, 15
and 16
(b) any other kinds of prospecting authorised by the Minister 17
on or after granting the licence. 18
(2) The holder of an exploration licence may apply in writing to the 19
Minister for a variation of the licence to authorise other kinds of 20
prospecting to be carried out. 21
(3) An application must: 22
(a) be made in the approved form and manner (if any), and 23
(b) contain any information that is prescribed by the 24
regulations, and 25
(c) be accompanied by the fee (if any) prescribed by the 26
regulations. 27
(4) The Minister may: 28
(a) vary the licence in accordance with the application and 29
make any variations to the conditions of the licence that the 30
Minister considers appropriate (including a condition 31
referred to in section 75 or 76), or 32
(b) refuse the application. 33
Page 144
Mining Amendment Bill 2008
Amendment of other Acts and instrument Schedule 2
(5) The Minister is to give the applicant written notice of the 1
outcome of the application. 2
(6) Any variation to the conditions of the licence takes effect on the 3
date on which written notice of the variation is served on the 4
applicant or any later date that is specified in the notice. 5
(7) Section 74 applies to the Minister's determination of an 6
application under this section in the same way as it applies to a 7
decision about whether or not to grant a petroleum title. 8
29A Review of determinations under section 29 9
(1) An applicant for a variation of a licence under section 29 may, 10
within 30 days (or such longer period as may be prescribed) after 11
being served with written notice of the determination of the 12
application, apply to the Minister for a review of the 13
determination. 14
(2) The making of an application for review of a determination does 15
not operate to stay the determination. 16
(3) On a review the Minister may confirm or change the 17
determination. 18
(4) If the Minister changes a determination, the changed 19
determination replaces the earlier determination as from the date 20
of the review. 21
(5) An application under this section must: 22
(a) be made in the approved form and manner (if any), and 23
(b) contain any information prescribed by the regulations, and 24
(c) be accompanied by the fee (if any) prescribed by the 25
regulations. 26
(6) The Minister is to give the applicant written notice of the 27
outcome of any application under this section. 28
(7) A decision on a review may not be further reviewed under this 29
section. 30
Page 145
Mining Amendment Bill 2008
Schedule 2 Amendment of other Acts and instrument
2.9 Protection of the Environment Operations Act 1997 No 156 1
Schedule 1 Schedule of EPA-licensed activities 2
Omit "or subject to a section 8 notice" from the item relating to mines in Part 1. 3
Page 146
[Index] [Search] [Download] [Related Items] [Help]