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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Mining and Petroleum Legislation
Amendment (Harmonisation) Bill 2015
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
This Bill is cognate with the Mining and Petroleum Legislation Amendment (Grant of Coal and
Petroleum Prospecting Titles) Bill 2015.
Overview of Bill
The object of this Bill is to amend the Mining Act 1992 and the Petroleum (Onshore) Act 1991 as
follows:
(a) by consolidating provisions about mining authorisations and petroleum titles into a separate
Schedule of standard clauses that:
(i) allow a decision-maker to require an applicant or tenderer to furnish further
information, and
(ii) require applications and tenders to be supported by a proposed work program, and
(iii) provide broader and more flexible grounds on which mining authorisations and
petroleum titles may be granted, suspended or cancelled, and
(iv) require the need to conserve and protect the environment to be taken into account in
considering applications, and
(v) specify other matters that may be taken into account in considering applications,
including the applicant's technical and financial capability to carry out the proposed
work program, compliance history and ability to meet minimum standards, and
(vi) set out a non-exhaustive list of grounds on which applications or tenders can be
refused, and
(vii) provide broader and more flexible powers to impose and vary conditions, and
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Mining and Petroleum Legislation Amendment (Harmonisation) Bill 2015 [NSW]
Explanatory note
(viii) allow security deposit conditions to be imposed in relation to any impact that is the
result of work carried out under an authorisation or title, whether or not that impact
affects land over which it was granted, and
(ix) provide for the modification of the amount of land to which an exploration licence
that is being renewed can apply,
(b) by requiring the holder of an exploration licence or assessment lease under either Act to
obtain a further approval for prospecting activities that are not exempt development under
planning legislation, and creating a power to impose terms on such activity approvals,
(c) by requiring the lodging of reports in relation to all operations carried out under a mining
authorisation or petroleum title and requiring any record created or maintained under the
Act to be kept in a legible form for at least 4 years after the expiry or cancellation of the
relevant authorisation or title,
(d) by giving decision-makers the power to waive minor procedural matters if the waiver is
unlikely to adversely affect any person's rights or to result in any person being deprived of
information necessary for the effective exercise of those rights,
(e) by enabling the Minister or an inspector to issue a prohibition notice to a person suspected
of carrying out unauthorised activity, or a suspension notice in certain circumstances that
could constitute grounds for cancellation of a mining authorisation or petroleum title, and
by making a contravention of either type of direction a ground for cancelling an
authorisation or title,
(f) by creating an offence for the non-payment of any annual rental fee or annual administrative
levy payable for a mining authorisation or petroleum title,
(g) by providing for the Secretary to refund or waive payment of fees, in certain circumstances,
(h) by making it an offence to aid, abet, counsel or conspire in the commission of an offence,
(i) by providing that a court that is satisfied, to a civil standard, that a person has carried out
unauthorised prospecting or mining may order the person to pay costs and expenses
incurred in the prevention or management of any environmental impact or rehabilitating
land or water or to pay compensation for loss or damage suffered,
(j) by providing for the giving of enforceable undertakings in relation to contraventions of
statutory provisions,
(k) by providing for the ongoing effect of notices and of conditions of mining authorisations
and petroleum titles,
(l) by providing for the extraterritorial application of notices relating to investigation and
enforcement action,
(m) by prohibiting inspectors, certain member of staff of the Department and certain persons
who exercise judicial or official functions under the Acts from holding a direct or indirect
beneficial interest in a mining authorisation or petroleum title,
(n) by providing for the use and disclosure of information, work programs and samples
provided under the Acts, including under information sharing arrangements with other
regulatory agencies,
(o) by enabling mandatory codes of practice (including for land access), minimum standards
and conditions to be adopted by regulation,
(p) by amending the Petroleum (Onshore) Act 1991 to permit the holder of an exploration
licence or assessment lease to beneficially use gas recovered by the holder when
prospecting for petroleum and to harmonise particular compliance, investigation and
enforcement provisions with those of the Mining Act 1992, including by aligning provisions
relating to audits, inspection and investigative powers, the giving of directions,
enforcement and administration,
(q) by amending the Mining Act 1992 to require the holder of a mining authorisation to collect
cores and samples,
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Explanatory note
(r) by making other minor and consequential amendments and enacting savings and
transitional provisions consequent on the enactment of the proposed Act.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed
by proclamation.
Clause 3 repeals the Mining Amendment Act 2008, which contains uncommenced amendments,
including amendments that are superseded by the amendments made by the proposed Act.
Schedule 1 Amendment of Mining Act 1992 No 29
Types of authorisations dealt with by amendments
Schedule 1 deals with the following instruments:
(a) authorities, which are any of the following:
(i) an exploration licence (which gives its holder the right to prospect on the land
specified in the licence for the group or groups of minerals specified),
(ii) an assessment lease (which gives its holder the right to prospect on the land specified
in the lease for the group or groups of minerals specified),
(iii) a mining lease (which gives its holder the right to prospect and mine on the land
specified in the lease for the group or groups of minerals specified, to carry out
primary treatment operations (such as crushing, sizing, grading, washing and
leaching) necessary to separate the mineral or minerals from the material from which
they are recovered, and carry out on that land any mining purpose),
(b) authorisations, which are any of the following:
(i) an exploration licence,
(ii) an assessment lease,
(iii) a mining lease,
(iv) a mineral claim (which gives its holder the right to prospect for the mineral or
minerals specified),
(v) an opal prospecting licence (which gives its holder the right to prospect for opals in
the opal prospecting block over which the licence is granted),
(vi) an environmental assessment permit granted under section 252 (which gives its
holder the right to enter the land to which the permit relates and do all things
reasonably necessary to carry out the assessment to which the permit relates).
Applications and tenders required to be supported by a proposed work program
Schedule 1 [1], [3], [16], [27] and [29] insert notes about a proposed provision requiring
applications and tenders for exploration licences, assessment leases and mining leases to be
supported by a proposed work program.
Schedule 1 [2], [4], [17], [28] and [30] omit existing provisions requiring certain applications and
tenders to be supported by a proposed program of work.
Schedule 1 [53] requires an application for an authority, and a tender, to be accompanied by a
proposed work program that indicates the nature and extent of operations to be carried out under
the authority conferred by the relevant authority, sets out commitments relating to the conduct of
those operations (such as the timing of the operations), provides for the carrying out of activities
(such as community consultation and environmental management and rehabilitation) in
connection with, or ancillary to, those operations and complies with the regulations. This
harmonises the Mining Act 1992 with section 14 of the Petroleum (Onshore) Act 1991, as
proposed to be amended.
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Explanatory note
Transfer of provisions about grant and refusal of authorisations
Schedule 1 [5], [18] and [31] omit provisions that allow a decision-maker to require the applicant
or tenderer for an exploration licence, assessment lease or mining lease, respectively, to furnish
further information in connection with the application or tender. Those provisions are proposed to
be transferred to clause 5 of Schedule 1B.
Schedule 1 [6], [19], [32] and [59] omit provisions that restrict the granting of exploration
licences, assessment leases, mining leases and mineral claims over land within a colliery holding.
Schedule 1 [7], [9], [20], [33], [35] and [61] insert notes referring to the fact that proposed
Schedule 1B provides for the grant or refusal of an application or tender for an exploration licence,
assessment lease, mining lease or mineral claim, respectively, and for the conditions to which an
exploration licence or mineral claim is subject.
Schedule 1 [8], [10], [21], [34], [36], [47], [60], [63], [64] and [71] omit provisions about the
power of decision-makers to grant or refuse applications or tenders for the grant or transfer of
exploration licences, assessment leases, or mining leases, applications for the grant, renewal or
transfer of mineral claims, or applications for opal prospecting licences, respectively. The relevant
provisions provide that an application or tender may be refused on the ground that the
decision-maker is satisfied that the applicant, or a director of an applicant or tenderer that is a
corporation, has contravened the Act or the regulations, has been convicted of any other offence
relating to mining, minerals or petroleum or has provided false or misleading information in or in
connection with the application. Those provisions are proposed to be transferred, in a modified
form, to clause 6 (a) of Schedule 1B.
Schedule 1 [13] extends the maximum duration of an exploration licence from 5 years to 6 years.
Schedule 1 [24] extends the maximum duration of an assessment lease from 5 years to 6 years.
Schedule 1 [76] omits a provision requiring the need to protect natural resources and features of
Aboriginal, architectural, archaeological, historical or geological interest to be taken into account
when deciding whether or not to grant an authority or mineral claim. The obligation to consider
the impact on the environment (a term that is broadly defined so as to include features of such
interest) is proposed to be transferred to clause 3 of Schedule 1B.
Activity approvals required for assessable prospecting operations
Schedule 1 [11] and [23] provide that exploration licences and assessment leases are subject to a
statutory condition that the holder of the licence or lease must not carry out an assessable
prospecting operation on land unless an activity approval has been obtained for the carrying out
of the assessable prospecting operation in relation to that land and is in force (such a requirement
is presently imposed by conditions of licences or leases, in some cases only). An assessable
prospecting operation is defined in Schedule 1 [133] to mean any prospecting operation that is
not exempt development within the meaning of the Environmental Planning and Assessment Act
1979. The proposed amendments also provide for the making of applications for activity
approvals and for their consideration, the terms that may be imposed on them and their variation
and cancellation.
Conditions of authorisations
Schedule 1 [12], [22], [37] and [62] omit provisions about the imposition of conditions on
exploration licences, assessment leases, mining leases and mineral claims, respectively. Those
provisions are proposed to be transferred to Part 3 of Schedule 1B.
Schedule 1 [14] inserts a note about the fact that an exploration licence may be varied after grant
under proposed Schedule 1B.
Schedule 1 [15] and [26] provide that provisions of proposed Schedule 1B about the variation or
suspension of a condition of an authorisation apply to the variation or suspension of a condition
of consent to exercise rights conferred by an exploration licence or assessment lease within land
in an exempted area.
Schedule 1 [25] inserts a note about the fact that an assessment lease may be varied after grant
under proposed Schedule 1B.
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Explanatory note
Schedule 1 [38] omits a provision that provides that the decision-maker can amend a mining lease
so as to allow the holder of the lease to comply with a condition relating to expenditure instead of
a condition relating to labour.
Schedule 1 [39] provides that a condition imposed on a proposed mining lease in accordance with
a direction of the Premier may only be varied with the concurrence of the Premier.
Schedule 1 [57] omits a provision about the suspension of conditions of an authority. That
provision is proposed to be transferred to clause 14 of Schedule 1B.
Schedule 1 [58] omits a provision about the addition or variation of conditions in certain
circumstances. That provision is proposed to be transferred to clause 12 of Schedule 1B.
Schedule 1 [68] omits a provision about the suspension of conditions of a mineral claim. That
provision is proposed to be transferred to clause 14 of Schedule 1B.
Schedule 1 [70] provides that the conditions that apply to an opal prospecting licence may include
conditions as to the works (rather than the program of work) to be carried out under an opal
prospecting licence.
Schedule 1 [76] omits provisions (Division 2 of Part 11) about the imposition of condition on
authorisation for protecting the environment. Those provisions are proposed to be transferred to
Part 2 of Schedule 1B.
Schedule 1 [90] provides that the section about the conditions of audits does not affect the
operation of section 115ZH (Approvals etc legislation that must be applied consistently) of the
Environmental Planning and Assessment Act 1979.
Schedule 1 [101] updates a cross-reference to a provision about conditions that is proposed to be
transferred to Part 3 of Schedule 1B.
Renewal of authorities
Schedule 1 [40] provides that an application for renewal of an exploration licence may include a
description of any special circumstances that the applicant claims apply that justify the area of land
over which the exploration licence is renewed exceeding half of the area over which the licence is
in force when the application for renewal is made.
Schedule 1 [41] replaces an existing provision about the power of decision-makers in relation to
renewals of authorities. It also inserts a new provision that specifies how the decision-maker is to
determine the land to which any renewed exploration licence will apply.
Schedule 1 [42] omits provisions about the amendment of the conditions of an authority while an
application for renewal of an authority is being dealt with. This will enable the variation of
conditions regarding royalty. That provision is proposed to be transferred, in a modified form, to
Part 4 of proposed Schedule 1B.
Schedule 1 [43] omits a provision that provides that any amendment of the conditions of a
renewed authority takes effect on the date on which the renewal of the authority takes effect. That
provision is proposed to be transferred, in a modified form, to clause 12 (7) of Schedule 1B.
Transfer of authorities
Schedule 1 [44] provides that the holder of an authority may apply for approval of any transfer of
the authority (and not only for transfer to another person).
Schedule 1 [45] provides that the holder of an authority must not apply for a transfer unless the
holder has notified any person who has a registered interest in the authority of the proposed
application.
Schedule 1 [46] inserts a note about the fact that Schedule 1B contains provisions about the grant
or refusal of an application for approval of the transfer of an authority.
Schedule 1 [47] omits provisions about:
(a) the power of decision-makers to refuse an application for the transfer of an authority, which
is proposed to be transferred, in a modified form, to clause 6 (a) of Schedule 1B, and
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Explanatory note
(b) the ability of a decision-maker considering an application for transfer of an authority to vary
the authority by adding conditions, which is proposed to be transferred, in a modified form,
to Part 4 of Schedule 1B.
Schedule 1 [48] and [49] omit a provision that requires an application to register the transfer of
an authority to be accompanied by a document acknowledging the terms of the authority after
transfer.
Schedule 1 [50] provides that the requirement that on receipt of the application the Secretary must
register the transferee as the holder of the authority or (in the case of a partial transfer) the new
authority does not apply if registration is prohibited by section 124 (Caveats).
Cancellation of authorisations
Schedule 1 [51] redrafts provisions about the cancellation of authorisations, with the additional
grounds for cancellation that the decision-maker is satisfied that there has been a contravention of
a direction under proposed section 240 or 240AA.
Schedule 1 [52] provides that a section about appeals against decisions concerning cancellations
of authorisations does not apply to a cancellation that was requested by the holder of the authority.
Schedule 1 [65] creates an additional ground for cancellation of operational suspension of a
mineral claim, that the Secretary considers that there has been a contravention of a direction under
proposed section 240 or 240AA.
Schedule 1 [66] makes a consequential amendment and establishes an additional ground of
cancellation of a mineral claim, namely that the land is required for a public purpose.
Schedule 1 [73] provides that the Secretary may cancel an opal prospecting licence if the
Secretary considers that there has been a contravention of a direction under section 240 or
proposed section 240AA.
Schedule 1 [74] makes a consequential amendment.
Schedule 1 [85] makes a consequential amendment to a note that refers to the cancellation of
authorisations.
Waiver of minor procedural matters
Schedule 1 [54] and [67] omit provisions about the waiver of minor procedural matters relating
to renewals and transfers of mining leases and mineral claims, respectively. Those provision are
proposed to be transferred to proposed section 387C.
Schedule 1 [125] inserts a provision (proposed section 387C) that permits the Minister to waive
minor procedural matters, including any requirement of the Act or the regulations as to the time
within which anything is required to be done, the details to be contained in any notice to be served,
lodged or caused to be published by the applicant, the documents or particulars to accompany an
application or the furnishing of information by the applicant. The proposed section does not
authorise the Minister to waive a requirement unless the Minister is satisfied that the waiver is
unlikely to adversely affect any person's rights under the Act or the regulations or to result in any
person being deprived of information necessary for the effective exercise of those rights.
Consolidation of provisions that apply to authorisations generally
Schedule 1 [72] inserts a note in a provision about the fact that proposed Schedule 1B applies to
small-scale titles, including opal prospecting licences.
Schedule 1 [127] inserts a Schedule making further provision relating to authorisations generally,
that applies to and in respect of applications for, and decisions made, in relation to the grant,
renewal or transfer of an authorisation, the imposition of conditions on, or variation of conditions
of, an authorisation or the variation or suspension of an authorisation and includes provisions that
do the following:
(a) require the relevant decision-maker to take into account the need to conserve and protect
the environment in or on the land over which the authorisation is sought and provide that
the relevant decision-maker may cause studies (including environmental impact studies) to
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Explanatory note
be carried out as considered necessary and require the applicant to reimburse the costs of
the studies,
(b) specify some other matters that may be taken into account in considering applications,
including whether the applicant or transferee meets the minimum standards made public by
the relevant decision-maker and has the technical and financial capability to carry out the
proposed work program and the compliance history of the applicant or transferee,
(c) provide that the relevant decision-maker may require an applicant to furnish further
information and that an application may be refused if the applicant does not furnish the
information on time,
(d) specify some of the grounds on which an application may be refused (which are not
exhaustive) which include where the relevant decision-maker considers that the applicant
or the transferee has an unsatisfactory compliance history, does not meet the applicable
minimum standards with respect to work programs, does not have the technical and
financial capability to carry out the proposed work program or has not paid any fee or
lodged any information required,
(e) provide that an authorisation is subject to any condition imposed by the relevant
decision-maker (at the time of the grant of the authorisation or at any subsequent time,
including any variation of such a condition), statutory conditions about security deposits
and any conditions prescribed by the regulations,
(f) specify a list of conditions that may be imposed (which is not exhaustive) including
conditions relating to environmental management, protection and rehabilitation, conditions
relating to compliance with codes of practice or set of standards published by any person or
body and conditions requiring reports,
(g) provide that a mining lease that is not granted in relation to a mining purpose or mining
purposes only is subject to a condition that the holder of the lease will not suspend mining
operations in the mining area otherwise than in accordance with the written consent of the
decision-maker,
(h) enable rehabilitation and security deposit conditions to be imposed on authorisations for
impacts outside the area to which an authorisation relates,
(i) provide for the relevant decision-maker to exempt the holder of an authorisation from
compliance with a condition imposed by the regulations,
(j) provide that the relevant decision-maker may vary an authorisation (including vary, add or
remove any condition of the authorisation) during the term of the authorisation and for the
variation of conditions imposed by the regulations,
(k) provide for the suspension of conditions of authorisations (whether on the application of the
holder of the authorisation or otherwise).
Records and reports
Schedule 1 [55] creates a separate Division about the registration of interests and other matters.
Schedule 1 [56] inserts provisions about reports and records that:
(a) extend a provision requiring the lodging of reports so that it applies to holders of any
authorisation (it currently applies only to authorities) and to reports in relation to all
operations carried out under the authority (it currently applies only to prospecting activity),
and
(b) require the holder of an authorisation to collect samples as required by the regulations, and
(c) require any record required to be created and maintained under the Act, the regulations, a
condition of an authorisation or a term of an activity approval to be kept in a legible form
for not less than 4 years after the expiry or cancellation of the authorisation, and
(d) make it clear that any information received from or served or lodged by agents is taken to
have been received from or served or lodged by the relevant principal.
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Explanatory note
Environmental, rehabilitation and other directions
Schedule 1 [78] provides that in the Division about environmental, rehabilitation and other
directions a reference to giving a direction or notice to a responsible person includes giving it to
an administrator, receiver or liquidator.
Schedule 1 [79] makes it clear that a direction to a responsible person to carry out or stop carrying
out particular activities and achieve specified outcomes may be specified in any condition of a
direction.
Schedule 1 [80] provides that a direction served under the Part about protection of the
environment may require the person to prepare and submit reports as to the measures the person
proposes to take for the purpose of complying with the direction or the progress made by the
person in implementing any such measures.
Schedule 1 [81] inserts provisions that:
(a) allow the Secretary or an inspector to direct a person to discontinue an activity if, in the
Minister's opinion, an activity is being carried out, or is about to be carried out by a person
in contravention of the Act or a condition of an authorisation, and
(b) alter the circumstances in which the Secretary may issue a suspension notice directing a
responsible person to suspend operations under an authorisation, so that it can be issued
only if the Secretary or inspector considers that circumstances exist that could constitute a
ground for cancellation of the authorisation or on any other ground specified in the
regulations, provide for the cancellation of the authorisation at the end of the suspension
period unless conditions specified in the direction are met and that a suspension notice may
take effect on a later date specified in the notice (rather than on the date on which the notice
is given, as at present).
Schedule 1 [77] makes a consequential amendment.
Schedule 1 [82] provides that a direction may be varied by modification of, or addition to, any
conditions specified in the direction.
Schedule 1 [83] provides that a suspension notice may be varied by extending the period of
suspension.
Schedule 1 [84] extends the offence of breaching a direction to include breaching a suspension
notice.
Schedule 1 [86] provides that a fee payable to enable the recovery of the administrative costs of
preparing and issuing a direction is a debt due by the holder of the authorisation concerned to the
Crown and is recoverable in a court of competent jurisdiction.
Schedule 1 [87] provides that prior notice does not have to be given before a direction under
section 240 can be given.
Schedule 1 [91] provides that documents prepared under directions under proposed
section 240AA are not protected documents.
Powers of entry and inspection
Schedule 1 [92] omits a redundant Division heading.
Schedule 1 [93] and [94] make consequential amendments to provisions that will now apply to
the whole Part about powers of entry and inspection and not only to one Division.
Schedule 1 [95] extends a provision empowering an inspector to demand a name and address to
apply to a person whom the inspector suspects on reasonable grounds to have offended or to be
offending against any provision of the Act or the regulations (and not only section 248K, as at
present).
Schedule 1 [96] provides that a Division about powers of entry and search applies whether or not
a power of entry under the Division is being or has been exercised.
Schedule 1 [97] omits a provision conferring additional powers of entry.
Schedule 1 [98] modifies a provision relating to requirements to furnish records or information or
answer questions so that it is in a modern style.
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Explanatory note
Extraterritorial application
Schedule 1 [99] omits a provision about the extraterritorial application of a notice given under
Part 12 (Powers of entry and inspection). That provision is proposed to be transferred to
section 387B.
Schedule 1 [125] inserts a section (proposed section 387B) that provides for the extraterritorial
application of all notices under the Act (which may be given even though the person is outside the
State or the matter occurs or is located outside the State, so long as the matter relates to the
administration of the Act).
Payment of fees and levies
Schedule 1 [102] provides that a holder of an authorisation who fails to pay any annual rental fee
or annual administrative levy payable for the authorisation is guilty of an offence.
Schedule 1 [103] omits an existing provision about the failure to pay fees.
Schedule 1 [104] provides for the Secretary to refund or waive payment of fees, in certain
circumstances.
Schedule 1 [105] provides for the Secretary to allocate any money collected by way of a levy for
any purpose if the Secretary is satisfied that the reasons for which the application to allocate the
money was made are consistent with the purposes for which the levy was imposed and the
allocation is appropriate and reasonable for achieving those purposes.
Schedule 1 [106] makes a consequential amendment.
Schedule 1 [129] makes a consequential amendment to a regulation-making power that currently
provides for the making of regulations about the refund or waiver of fees.
Administration
Schedule 1 [69] creates an obligation on the Secretary to keep a record of every variation of a
mineral claim (in addition to other records kept).
Schedule 1 [75] creates an obligation on the Secretary to keep a record of every variation of an
opal prospecting licence by the Secretary (in addition to other records kept).
Schedule 1 [100] provides that the Minister may use money obtained under a security deposit for
a small-scale title to recover or fund the reasonable costs or expenses that the Crown reasonably
incurs rehabilitating land affected by activities undertaken under any small-scale title.
Schedule 1 [107] requires the Secretary to publish in the Gazette the classes of persons appointed
as inspectors under the Act and any conditions, limitations or restrictions, or limitation on
purposes, imposed by the Secretary on the appointment of those inspectors.
Schedule 1 [108] modifies a provision that currently prevents the Minister or any person
employed in the Department from holding an authority, mineral claim or an opal prospecting
licence. The new provision prevents the Minister, an inspector, certain members of staff of the
Department and certain persons who exercise judicial or official functions while holding office in
an official capacity from holding either directly or indirectly a beneficial interest in an authority,
a mineral claim or a prospecting licence.
Schedule 1 [109] provides for the use and disclosure of information provided under certain
conditions of an authorisation.
Schedule 1 [110] provides that the regulator may enter into an information sharing arrangement
with a relevant agency for the purposes of sharing or exchanging information of the type listed in
the provision that is held by the regulator or the agency.
Offences, enforcement and undertakings about contraventions
Schedule 1 [111] updates the heading to a Part, to reflect that, as a result of other proposed
amendments, the Part will be about offences, enforcement and undertakings about contraventions.
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Schedule 1 [112] makes it an offence to obstruct, hinder or resist an inspector, an authorised
person, certain members of staff of the Department and persons who exercise any judicial or
official functions (currently the offence relates to any person in the exercise of a function under
the Act).
Schedule 1 [113] modifies a provision that creates an offence of furnishing false or misleading
information. The new provision makes it an offence for a person other than an applicant to provide
any information, record or return in purported compliance with any requirement by or under the
Act that the person knows is false or misleading in a material particular. An applicant who
provides such information is also guilty of an offence.
Schedule 1 [114]-[116] and [121] remove a distinction between offences for breaches of
different categories of conditions of authorisations.
Schedule 1 [117] makes it an offence to aid, abet, counsel or procure another person to commit,
or to conspire to commit, an offence against the Act or the regulations.
Schedule 1 [118] amends the offences that will be offences attracting executive liability. Those
offences will now be offences against section 5 (Mining or prospecting without authorisation),
240C (Breach of direction) or 378D (Contravention of conditions of authorisation--offence by
holder) that are committed by a corporation.
Schedule 1 [119] updates a provision about continuing offences, to use more modern language.
Schedule 1 [120] omits a cross-reference to an uncommenced provision.
Schedule 1 [122] modifies the list of offences (currently in Part 2 of Schedule 7) that are to be
dealt with on indictment.
Schedule 1 [123] modifies the list of offences (currently in Part 3 of Schedule 7), proceedings for
which must be commenced within 3 years after the date on which the offence is alleged to have
been committed or after the date on which evidence of the alleged offence first came to the
attention of an inspector.
Schedule 1 [132] omits a Schedule that will be redundant as a consequence.
Schedule 1 [124] (to the extent it inserts Division 4A in Chapter 17A) provides that, if a court is
satisfied, on the balance of probabilities, that a person has prospected for or mined a mineral
otherwise than in accordance with an authorisation, the court may order the person to pay to a
government agency or person certain costs and expenses incurred, or compensation for loss or
damage suffered.
Schedule 1 [124] (to the extent it inserts Division 4B in Chapter 17A) provides that the Secretary
may accept a written undertaking, which is enforceable, given by a person in connection with a
contravention or alleged contravention of the Act and that:
(a) such an undertaking is not an admission of guilt and that proceedings cannot be brought for
a contravention or alleged contravention of the Act if an undertaking is in effect in relation
to that contravention, and
(b) require the Secretary to give a person seeking to make an undertaking notice of the
Secretary's decision to accept or reject the undertaking and the reasons for doing so, and
(c) specify when an undertaking takes effect and becomes enforceable, and
(d) make it an offence for a person to contravene an undertaking given by the person, and
(e) provide for the Secretary to apply to the District Court for an order to comply with the
undertaking or an order discharging the undertaking and orders as to costs, and
(f) provide for a person to withdraw or vary an undertaking.
Minor amendments
Schedule 1 [88] corrects a cross-reference.
Schedule 1 [89] omits a redundant definition.
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Explanatory note
Schedule 1 [126] provides that the regulations may adopt or provide for the adoption of any
document (including a code of practice) and for the application of the provisions of that document,
as in force from time to time, for any of the purposes of the Act or the regulations.
Schedule 1 [128] provides that documents prepared for public consultation with respect to the
granting of assessment leases and mining leases must contain a description, prepared in the
approved manner, of the land over which the lease is sought.
Schedule 1 [130] validates certain delegations of functions under the Environmental Planning
and Assessment Act 1979.
Schedule 1 [131] makes savings and transitional provisions consequent on the enactment of the
proposed Act.
Schedule 1 [133] inserts definitions used in other proposed amendments.
Schedule 1 [134] updates a definition.
Schedule 2 Amendment of Petroleum (Onshore) Act 1991
No 84
Types of petroleum titles dealt with by amendments
Schedule 2 makes provision about petroleum titles, that is, the following:
(a) an exploration licence (which gives its holder the exclusive right to prospect for petroleum
on the land comprised in the licence),
(b) an assessment lease (which gives its holder the exclusive right to prospect for petroleum and
to assess any petroleum deposit on the land comprised in the licence),
(c) a special prospecting authority (which gives its holder the exclusive right to conduct
speculative geological, geophysical or geochemical surveys or scientific investigations on
and in respect of the land comprised in the authority),
(d) a production lease (which gives its holder the exclusive right to conduct petroleum mining
operations in and on the land included in the lease, together with the right to construct and
maintain on the land such works, buildings, plant, waterways, roads, pipelines, dams,
reservoirs, tanks, pumping stations, tramways, railways, telephone lines, electric
powerlines and other structures and equipment as are necessary for the full enjoyment of
the lease or to fulfil the lessee's obligations under it),
(e) a low-impact prospecting title (which gives its holder the right to carry on prospecting
operations that the Minister is satisfied are unlikely to have a significant impact on the land
over which the title may be granted).
Grant and refusal of petroleum titles
Schedule 2 [4] inserts a note referring to the fact that proposed Schedule 1B contains further
provisions that relate generally to the consideration of applications for the grant, renewal or
transfer of a petroleum title, the imposition of conditions on, and the variation of conditions of, a
petroleum title and the variation and suspension of petroleum titles.
Schedule 2 [5] specifies the land over which a petroleum title may not be granted.
Schedule 2 [6] omits provisions about the grant of a petroleum title, that are transferred to
proposed section 16, that provide that:
(a) a petroleum title may be granted over land of any title or tenure, and
(b) a petroleum title takes effect on the date on which it is signed by the Minister or on a later
date specified in the title, and
(c) notification of the grant of a petroleum title or of a refusal to grant an application is to be
published in the Gazette, and
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Mining and Petroleum Legislation Amendment (Harmonisation) Bill 2015 [NSW]
Explanatory note
(d) the Minister is to notify the Minister administering the Threatened Species Conservation
Act 1995 of the grant of any petroleum title in relation to land that is a biobank site (within
the meaning of Part 7A of that Act).
Schedule 2 [9] omits provisions that allow the Minister to require an applicant for a petroleum
title to furnish further information about the applicant's financial capability and to refuse to grant
the application if the information is not furnished. Those provisions are proposed to be transferred
to clause 5 of Schedule 1B.
Schedule 2 [10] restates provisions about the grant or refusal of an application for a petroleum
title over any onshore area. The Minister is required to notify the Minister administering the
Threatened Species Conservation Act 1995 of the grant of any petroleum title in relation to land
that is a biobank site.
Schedule 2 [11] omits a provision about the form of petroleum titles, which is not being retained.
Schedule 2 [18] omits a provision about the grounds on which an application may be refused. That
provision is proposed to be transferred to clause 5 of Schedule 1B.
Schedule 2 [33] omits a provision (current section 74) requiring the need to protect natural
resources and features of Aboriginal, architectural, archaeological, historical or geological interest
to be taken into account when deciding whether or not to grant a petroleum title. The obligation
to consider the impact on the environment (a term that is broadly defined so as to include features
of such interest) is proposed to be transferred to clause 2 of Schedule 1B.
Applications required to be supported by a proposed work program
Schedule 2 [7] replaces a provision that requires applications for a petroleum title to be supported
by a proposed work program complying with the regulations and indicating the nature and extent
of operations to be carried out under the authority of the title so that it must also set out
commitments relating to the conduct of those operations (such as the timing of the operations and
provides for the carrying out of activities (such as community consultation and environmental
management and rehabilitation) in connection with, or ancillary to, those operations.
Renewal, cancellation and transfer of petroleum titles
Schedule 2 [12] inserts a note referring to the fact that proposed Schedule 1B contains provisions
about the consideration of applications for the renewal of petroleum titles and the grounds for
refusal of such applications.
Schedule 2 [13] provides that an application for renewal of an exploration licence may include a
description of any special circumstances that the applicant claims exist that justify the area of land
over which the exploration licence is renewed exceeding the maximum percentage over which the
licence is in force when the application for renewal is made.
Schedule 2 [14] omits two provisions, proposed to be transferred to clauses 4 (2) and 5 of
Schedule 1B, that provide that the Minister:
(a) may refuse to grant a renewal of a title on any ground on which the Minister might have
refused to grant the title originally or might have cancelled the title during its term, and
(b) may also refuse to grant a renewal of title unless all data and reports due under the
regulations have been submitted, and all data gathered, and operations carried on, during
any period not covered in any such report are made the subject of a full report submitted to
the Minister.
Schedule 2 [15] provides that requirements about fees that relate to titles and applications for titles
do not apply in the same way to renewals and applications for renewals.
Schedule 2 [16] transfer an existing provision about the power of the Minister in relation to
renewals of petroleum titles, part of which is proposed to be transferred to Part 2 of Schedule 1B.
Schedule 2 [17] omits a provision about the waiver of minor procedural matters relating to
renewals. That provision is proposed to be transferred to proposed section 129B.
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Explanatory note
Schedule 2 [19] redrafts provisions about the cancellation of petroleum titles, with the additional
grounds for cancellation, that the decision-maker is satisfied that there has been a contravention
of a direction under section 75 or 77 and also provides that the right to appeal against decisions
concerning cancellations of petroleum titles does not apply to a cancellation that was requested by
the holder of the petroleum title.
Schedule 2 [21] and [26] make consequential amendments to cross-references that refer to
suspensions of petroleum titles.
Schedule 2 [24] inserts a note in a provision about the fact that proposed section 19B makes
provision for the size of the area over which the renewal of an exploration licence may be granted.
Schedule 2 [40] inserts a note referring to the fact that proposed Schedule 1B contains provisions
about the consideration of applications for the transfer of petroleum titles and the grant or refusal
of such applications.
Beneficial use of gas yielded through prospecting
Schedule 2 [23] provides that the holder of an exploration licence or assessment lease has the right
to carry on such operations as may be described by the regulations to enable the beneficial use of
gas recovered from the land comprised in the licence or lease, but only if that gas would otherwise
have been flared or released into the atmosphere as part of activities under the licence or lease.
That provision is specific to the Petroleum (Onshore) Act 1991.
Activity approvals required for assessable prospecting operations
Schedule 2 [25] and [27] provide that exploration licences and assessment leases are subject to a
statutory condition that the holder of the licence must not carry out an assessable prospecting
operation on land unless an activity approval has been obtained for the carrying out of the
assessable prospecting operation in relation to that land and is in force (such a requirement is
presently imposed by conditions of licences or leases, in some cases only). An assessable
prospecting operation is defined in Schedule 2 [2] to mean any prospecting operation that is not
exempt development within the meaning of the Environmental Planning and Assessment Act
1979. The proposed amendments also provide for the making of applications for activity
approvals and for their consideration, the terms that may be imposed on them and their variation
and cancellation.
Consolidation of provisions that apply to petroleum titles generally
Schedule 2 [20] omits provisions about the imposition and suspension of conditions on petroleum
titles. Those provisions are proposed to be transferred to Part 3 of Schedule 1B.
Schedule 2 [32] provides that a condition included in a production lease in accordance with a
direction of the Premier may only be varied with the concurrence of the Premier.
Schedule 2 [33] omits provisions (Division 1 of Part 6) requiring the need to protect natural
resources and features of Aboriginal, architectural, archaeological, historical or geological interest
to be taken into account when deciding whether or not to grant a petroleum title and provisions
(Division 2 of Part 6) about the imposition of condition on petroleum titles for protecting the
environment. Those provisions are to be transferred to clauses 2 and 6 (2) of proposed
Schedule 1B.
Schedule 2 [43] provides that a security deposit condition of a petroleum title may be imposed in
relation to any impact that is the result of work carried out under the relevant petroleum title,
whether or not that impact is in relation to land over which the petroleum title is to be or was
granted.
Schedule 2 [50] inserts a Schedule making further provision relating to petroleum titles generally,
that applies to and in respect of applications for, and decisions made by the Minister in relation to
the grant, renewal or transfer of a petroleum title, the imposition of conditions on, or variation of
conditions of, a petroleum title or the variation or suspension of a petroleum title and includes
provisions that do the following:
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Explanatory note
(a) require the Minister to take into account the need to conserve and protect the environment
in or on the land over which the petroleum title is sought and provide that the Minister may
cause studies (including environmental impact studies) to be carried out as considered
necessary and require the applicant to reimburse the costs of the studies,
(b) specify some other matters that may be taken into account in considering applications,
including whether the applicant or transferee meets the minimum standards made public by
the Minister and has the technical and financial capability to carry out the proposed work
program and the compliance history of the applicant or transferee,
(c) provide that the Minister may require an applicant to furnish further information and that
an application may be refused if the applicant does not furnish the information on time,
(d) specify some of the grounds on which an application may be refused (which are not
exhaustive) which include where the Minister considers that the applicant or the transferee
has an unsatisfactory compliance history, does not meet the applicable minimum standards
with respect to work programs or have the technical and financial capability to carry out the
proposed work program or has not paid any fee or lodged any information required,
(e) provide that a petroleum title is subject to any condition imposed by the Minister (at the
time of the grant of the petroleum title or at any subsequent time, including any variation of
such a condition), statutory conditions about security deposits and any conditions
prescribed by the regulations,
(f) specify a list of conditions that may be imposed (which is not exhaustive) including
conditions relating to environmental management, protection and rehabilitation, conditions
relating to compliance with codes of practice or set of standards published by any person or
body and conditions requiring reports,
(g) enable rehabilitation and security deposit conditions to be imposed on petroleum titles for
impacts outside the area to which a petroleum title relates,
(h) provide for the Minister may exempt the holder of a petroleum title from compliance with
a condition imposed by the regulations,
(i) provide that the Minister may vary a petroleum title (including vary, add or remove any
condition on the petroleum title) during the term of the petroleum title and for the variation
of conditions imposed by the regulations,
(j) provide for the suspension of conditions of petroleum titles (whether on the application of
the holder of the petroleum title or otherwise).
Environmental, rehabilitation and other directions
Schedule 2 [33] also replaces provisions enabling the Secretary or an inspector to issue
environmental, rehabilitation and other directions with provisions that mirror Division 3 of Part 11
of the Mining Act 1992, as proposed to be amended by this Bill, which do the following:
(a) allow the Secretary or an inspector to direct a person to discontinue an activity if, in the
Minister's opinion, an activity is being carried out, or is about to be carried out by a person
in contravention of the Act or a condition of a petroleum title,
(b) allow the Secretary to issue a suspension notice directing a responsible person to suspend
operations under a petroleum title, only if the Secretary or inspector considers that
circumstances exist that could constitute a ground for cancellation of the petroleum title or
on any other ground specified in the regulations, and provide for the cancellation of the title
at the end of the suspension period unless conditions specified in the direction are met,
(c) provide for the revocation or variation of a direction,
(d) make it an offence for a person to fail to comply with a direction,
(e) provide that issuing a direction does not affect the liability of any person to any penalty for
an offence in relation to a petroleum title, the amount of security deposit that is or may be
required under a petroleum title or the operation of any other provision of the Act or the
regulations,
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Explanatory note
(f) provide for the payment of fees to cover the administrative costs of preparing and issuing a
direction,
(g) provide for the Minister to take any action necessary to give effect to a direction about
rehabilitation and to recover the costs and expenses of the person on whom the direction
was served and for the recovery of the costs of rehabilitation as a debt due to the Crown.
Audits of petroleum prospecting or mining
Schedule 2 [34] inserts a new Division about audits (which mirrors Division 6 of Part 11 of the
Mining Act 1992, as proposed to be amended by this Bill) and includes provisions that do the
following:
(a) specify the nature of an audit under the proposed Division, that is, as a periodic or particular
documented evaluation of prospecting or mining for petroleum,
(b) provide that the regulations may make provision for or with respect to the accreditation of
auditors or the carrying out of audits by auditors,
(c) enable the Secretary to impose mandatory audit conditions on petroleum titles,
(d) provide for the certification of an audit report by the holder of the petroleum title and the
auditor,
(e) create offences relating to failing to provide information to an auditor or in an audit and
failing to retain or produce documentation,
(f) provide that self-incriminatory information is not exempt from the obligations of a person
in relation to a mandatory audit,
(g) limit the use of information in an audit report or other documentation supplied to the
Secretary in a mandatory audit,
(h) provide for the nature of a voluntary audit,
(i) protect documents prepared for the sole purpose of a voluntary audit, specify the nature of
the protection of those documents and provide for the lifting of that protection,
(j) provide for certification of an audit report.
Payment of royalty and fees
Schedule 2 [35] makes it an offence for a person to fail to pay any royalty that the person is
required to pay under the Act (which mirrors section 91A of the Mining Act 1992).
Schedule 2 [36] provides that the regulations may make provision about the refund or rebate of
royalty payable or paid under the Act.
Schedule 2 [37] makes it an offence for a person to fail to pay an annual rental fee or
administrative levy that the person is required to pay in relation to a petroleum title.
Schedule 2 [38] omits an existing provision about the failure to pay fees.
Schedule 2 [39] provides for the Secretary to refund or waive payment of fees, in certain
circumstances.
Records and reports
Schedule 2 [41] inserts provisions about reports and records (which mirror Division 3 of Part 8 of
the Mining Act 1992, as proposed to be amended by this Bill) including provisions that do the
following:
(a) require the holder of a petroleum title to keep accurate geological plans, maps and records
relating to the land comprised in the title and furnish to the Minister such geological and
other plans and information as to the progress of operations on such land as the Minister
may from time to time require (transferred from current section 131 (2) of the Petroleum
(Onshore) Act 1991),
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Explanatory note
(b) require the holder of a petroleum title and any other person carrying on any operation in
connection with any such title to furnish certain statistics, returns and other information as
required and keep records necessary for the completion of any such statistics and returns
(transferred from current section 132 of the Petroleum (Onshore) Act 1991),
(c) require the holder of a petroleum title to collect samples as required by the regulations,
(d) require any record required to be created and maintained under the Act, the regulations, a
condition of a petroleum title or a term of an activity approval to be kept in a legible form
for not less than 4 years after the expiry or cancellation of the petroleum title.
Powers of entry and inspection
Schedule 2 [42] inserts provisions aligning powers of entry and inspection with those in Part 17A
of the Mining Act 1992, as proposed to be amended by this Bill, including provisions that do the
following:
(a) specify that powers under the proposed Part may be exercised for determining whether
there has been compliance with or a contravention of the Act or the regulations or any
petroleum title, direction, notice or requirement issued or made under the Act, obtaining
information or records for purposes connected with the administration of the Act or
generally for administering the Act,
(b) provide that an inspector may give a notice to a person to require the person to furnish to
the inspector such information or records (or both) as the inspector requires by the notice in
connection with any matter relating to the administration of the Act,
(c) provide power for inspectors to enter premises at which the inspector reasonably suspects
that any prospecting or mining operations are being or are about to be carried out or have
been, or that are being or are likely to be affected by prospecting operations or mining
operations, at any time,
(d) make it clear that the proposed Division does not entitle an inspector to enter any part of
premises used only for residential purposes without the permission of the occupier or the
authorisation of a search warrant,
(e) provide power for an inspector or the Secretary to require a person to produce information
and records or to answer questions in relation to an alleged breach or require a person whom
the inspector suspects on reasonable grounds to have offended or to be offending against a
provision of the Act or the regulations to state his or her full name and residential address,
(f) make it an offence to obstruct, hinder or resist an inspector, an authorised person, certain
members of staff of the Department and persons who exercise any judicial or official
functions under the Act,
(g) make it an offence for a person to provide any information, record or return in purported
compliance with any requirement by or under the Act that the person knows is false or
misleading in a material particular.
and and Environment Court proceedings
Schedule 2 [44] inserts a new Part (which mirrors current Part 15 of the Mining Act 1992)
containing provisions about Land and Environment Court proceedings that do the following:
(a) set out the jurisdiction of the Land and Environment Court to hear and determine
proceedings relating to certain matters (which is transferred from current section 115 of the
Petroleum (Onshore) Act 1991), and
(b) provide for the Court to order any other party to the proceedings to deposit, pending its
decision, any earth, petroleum, money or chattels the right to which will, in the opinion of
the Court, be put in issue in the course of those proceedings, and which may then be in, or
at any time before the termination of the proceedings may come into, the possession or
control of that other party (which mirrors current section 294 of the Mining Act 1992) or to
prohibit extraction of such petroleum,
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Explanatory note
(c) provide for the Court to grant an injunction restraining any specified person from
encroaching on, occupying, using or working land or property that another person claims
an interest in or from doing certain things in relation to that land (which mirrors current
section 295 of the Mining Act 1992),
(d) provide for the granting of injunctions in cases of urgency (which mirrors current
section 296 of the Mining Act 1992),
(e) provide for the making of orders protecting adjacent petroleum titles (which mirrors current
section 297 of the Mining Act 1992),
(f) provide for the Court to order payment of money or delivery of petroleum (which mirrors
current section 298 of the Mining Act 1992).
Administration
Schedule 2 [44] also inserts a new Part (which mirrors Part 17 of the Mining Act 1992, as proposed
to be amended by this Bill) containing provisions about the administration of the Act that do the
following:
(a) exclude the Minister, Secretary and certain persons from personal liability (which is
transferred from sections 125 and 126A of the Petroleum (Onshore) Act 1991),
(b) provide for the delegation of functions by the Minister or the Secretary (which is transferred
from section 127 of the Petroleum (Onshore) Act 1991),
(c) modify the circumstances in which the Minister, an inspector, certain members of staff of
the Department and certain persons who exercise judicial or official functions while
holding office in an official capacity are prohibited from holding either directly or indirectly
a beneficial interest in a petroleum title (this is transferred from section 127A of the
Petroleum (Onshore) Act 1991).
Schedule 2 [45] and [47] omit the existing provisions proposed to be so transferred.
Schedule 2 [49] updates a cross-reference to one of the provisions proposed to be transferred.
Release of information
Schedule 2 [44] also inserts a new Part (some of the provisions of which mirror provisions of the
Mining Act 1992, as proposed to be inserted by this Bill) containing provisions about the release
of information that do the following:
(a) enable the release by the Minister of certain data (which is transferred from section 118 of
the Petroleum (Onshore) Act 1991),
(b) enable the release by the Minister of any cores or cuttings from, or samples of, the subsoil
in a block, or samples of petroleum recovered in a block, that have been furnished to the
Minister under the Act (which is transferred from section 119 of the Petroleum (Onshore)
Act 1991),
(c) provide for the release by the Minister of summaries of work programs,
(d) provide for the release by the Minister of information that relates to the subsoil, or to
petroleum, in a block, and that, in the opinion of the Minister, is a conclusion drawn in
whole or in part from opinions based on such information (which is transferred from
sections 120-124 of the Petroleum (Onshore) Act 1991),
(e) otherwise prohibit the disclosure of any information obtained in connection with the
administration or execution of the Act except in certain circumstances (which mirrors
section 365 of the Mining Act 1992),
(f) authorise the Minister or the Secretary to enter into arrangements for the purpose of sharing
or exchanging any information held by them (which mirrors proposed section 365A of the
Mining Act 1992).
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Explanatory note
Offences, enforcement and undertakings
Schedule 2 [44] also inserts a new Part (which mirrors Part 17A of the Mining Act 1992, as
proposed to be amended by this Bill), which contains provisions that do the following:
(a) make it an offence to obstruct, hinder or resist inspectors and other persons in the exercise
of functions under the Act or to obstruct the holder of a petroleum title from doing any act
authorised under the Act,
(b) make it an offence to provide false or misleading information in connection with an
application or when furnishing information in response to other requirements under the Act,
(c) make it an offence for the holder of a petroleum title to contravene a condition of the title
(which is transferred from section 136A of the Petroleum (Onshore) Act 1991),
(d) make it an offence to aid, abet, counsel or conspire in the commission of an offence,
(e) specify offences as executive liability offences, where the directors of a corporation will be
liable for an offence when a corporation that is a holder of a petroleum title contravenes a
direction or a condition of a petroleum title held by a corporation is contravened,
(f) provide for continuing offences,
(g) provide for proceedings for offences and the time within which summary proceedings may
be commenced,
(h) provide for the issue of penalty notices,
(i) provide for restraining orders directing that any property of a defendant in proceedings
under the Act is not to be disposed of, or otherwise dealt with, by the defendant or by any
other person, except in such manner and in such circumstances (if any) as are specified in
the order,
(j) provide for court orders in connection with offences, including orders for costs, expenses
and compensation at the time when an offence is proved or at a later time and orders
regarding the costs and expenses of investigations,
(k) provide that a court that is satisfied, to a civil standard that a person has carried out
unauthorised prospecting or mining may order the person to pay costs and expenses
incurred in the prevention or management of any environmental impact or rehabilitating
land or water or to pay compensation for loss or damage suffered,
(l) provide for the giving of enforceable undertakings in relation to contraventions of statutory
provisions,
(m) provide for prima facie evidence of certain matters under the Act.
Minor amendments
Schedule 2 [1] inserts an objects section. The objects of the Act are to encourage and facilitate the
discovery and development of petroleum resources in New South Wales, having regard to the need
to encourage ecologically sustainable development. (The proposed section mirrors current
section 3A of the Mining Act 1992.)
Schedule 2 [2] inserts definitions of terms used in the proposed amendments.
Schedule 2 [3] updates a definition.
Schedule 2 [8] updates terminology (a reference to "financial standing" is updated to "financial
capability").
Schedule 2 [28], [29] and [31] update references to Departments, to use modern terms.
Schedule 2 [30] and [31] update references to an office-holder.
Schedule 2 [46] inserts a provision (proposed section 129B) that permits the Minister to waive
minor procedural matters, including any requirement of the Act or the regulations as to the time
within which anything is required to be done, the details to be contained in any notice to be served,
lodged or caused to be published by the applicant, the documents or particulars to accompany an
application or the furnishing of information by the applicant. The proposed section does not
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Explanatory note
authorise the Minister to waive a requirement unless the Minister is satisfied that the waiver is
unlikely to adversely affect any person's rights under the Act or the regulations or to result in any
person being deprived of information necessary for the effective exercise of those rights.
Schedule 2 [48] provides that the regulations may adopt or provide for the adoption of any
document (including a code of practice) and for the application of the provisions of that document,
as in force from time to time, for any of the purposes of the Act or the regulations.
Schedule 2 [51] makes savings and transitional provisions consequent on the enactment of the
proposed Act.
Schedule 3 Consequential amendment of other Acts
Amendment of Dams Safety Act 2015 No 26
Schedule 3.1 omits an uncommenced amendment to the Mining Regulation 2010, as a
consequence of proposed amendments to the Mining Act 1992.
Amendment of Environmental Planning and Assessment Act 1979 No 203
Schedule 3.2 updates a reference to a provision of the Petroleum (Onshore) Act 1991 that is being
amended by Schedule 2.
Amendment of Fines Act 1996 No 99
Schedule 3.3 updates a reference to the provision of the Petroleum (Onshore) Act 1991 under
which penalty notices are issued, which is being transferred by Schedule 2.
Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Schedule 3.4 updates a reference to the provision of the Petroleum (Onshore) Act 1991 under
which search warrants are issued, which is being transferred by Schedule 2.
Amendment of Offshore Minerals Act 1999 No 42
Schedule 3.5 amends a provision about decisions on an application for renewal of an exploration
licence, to provide for renewal at the discretion of the Minister.
Amendment of Protection of the Environment Operations Act 1997 No 156
Schedule 3.6 updates references to offences under the Petroleum (Onshore) Act 1991 that are
being modified or transferred by Schedule 2.
Page 19
First print
New South Wales
Mining and Petroleum Legislation
Amendment (Harmonisation) Bill 2015
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Repeal of Mining Amendment Act 2008 No 19 2
Schedule 1 Amendment of Mining Act 1992 No 29 3
Schedule 2 Amendment of Petroleum (Onshore) Act 1991 No 84 38
Schedule 3 Consequential amendment of other Acts 100
b2014-150.d33
New South Wales
Mining and Petroleum Legislation
Amendment (Harmonisation) Bill 2015
No , 2015
A Bill for
An Act to amend the Mining Act 1992 and Petroleum (Onshore) Act 1991 to make further
provision with respect to prospecting for and mining minerals and petroleum, including by
harmonising certain provisions of those Acts.
Mining and Petroleum Legislation Amendment (Harmonisation) Bill 2015 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Mining and Petroleum Legislation Amendment (Harmonisation) 3
Act 2015. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Repeal of Mining Amendment Act 2008 No 19 7
The Mining Amendment Act 2008 is repealed. 8
Page 2
Mining and Petroleum Legislation Amendment (Harmonisation) Bill 2015 [NSW]
Schedule 1 Amendment of Mining Act 1992 No 29
Schedule 1 Amendment of Mining Act 1992 No 29 1
[1] Section 13 Application for exploration licence 2
Insert after section 13 (4): 3
Note. Section 129A requires an application for an exploration licence to be 4
accompanied by a proposed work program. 5
[2] Section 13 (5) (c) 6
Omit the paragraph. 7
[3] Section 15 Tenders 8
Insert at the end of section 15 (1): 9
Note. Section 129A requires a tender for an exploration licence to be accompanied by 10
a proposed work program. 11
[4] Section 15 (2) (b) 12
Omit the paragraph. 13
[5] Section 16 Decision-maker may require further information 14
Omit the section. 15
[6] Section 21 Colliery holdings 16
Omit the section. 17
[7] Section 22 Power of decision-maker in relation to applications 18
Insert at the end of section 22 (1): 19
Note. Schedule 1B contains provisions about the grant or refusal of an application for 20
an exploration licence and the conditions to which an exploration licence is subject. 21
[8] Section 22 (2) 22
Omit the subsection. 23
[9] Section 23 Power of decision-maker in relation to tenders 24
Insert at the end of section 23 (2): 25
Note. Schedule 1B contains provisions about the grant or refusal of an exploration 26
licence to a tenderer. 27
[10] Section 23 (3) 28
Omit the subsection. 29
[11] Section 23A 30
Insert after section 23: 31
23A Activity approval required for assessable prospecting operations 32
(1) An exploration licence is subject to a statutory condition that the holder of the 33
licence must not carry out an assessable prospecting operation on land over 34
which the licence is granted unless an activity approval has been obtained for 35
the carrying out of the assessable prospecting operation in relation to that land 36
and is in force. 37
(2) The holder of an exploration licence may apply in writing to the 38
decision-maker for approval to carry out an assessable prospecting operation 39
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Schedule 1 Amendment of Mining Act 1992 No 29
in relation to any part of the land over which the licence is granted (an activity 1
approval). 2
(3) The decision-maker may require the holder to provide such information as is 3
required by the decision-maker, within the time specified by the 4
decision-maker, before considering the application or at any time during 5
consideration of the application. 6
(4) After considering the application for the activity approval, the decision-maker: 7
(a) may grant the activity approval, or 8
(b) may refuse the application. 9
(5) Without limiting the grounds for refusal, the application may be refused if the 10
applicant fails to provide the information required by the decision-maker 11
within the time required. 12
(6) An activity approval may be granted subject to terms. 13
(7) For the purposes of this Act, it is a statutory condition of an exploration licence 14
that the holder must comply with any activity approval granted to the holder 15
and in force. 16
(8) Clauses 7 (2)-(4), 10 (2), 12 and 14 of Schedule 1B apply to and in respect of 17
the imposition of terms on, and variation of the terms of, an activity approval 18
in the same way as they apply to and in respect of the imposition of conditions 19
on, and the variation of the conditions of, an authorisation. 20
(9) The decision-maker may cancel an activity approval: 21
(a) if the holder of the activity approval lodges with the Secretary a request 22
that the decision-maker cancel the activity approval, or 23
(b) if the decision-maker is satisfied that a person has contravened the 24
activity approval (whether or not the person is prosecuted or convicted 25
of any offence arising from the contravention). 26
(10) Before cancelling an activity approval, otherwise than at the request of the 27
holder of the activity approval, the decision-maker is to cause a written notice 28
to be served on the holder of the activity approval that contains the following: 29
(a) notice that the activity approval is proposed to be cancelled, 30
(b) details of the grounds for the proposed cancellation, 31
(c) notice that the holder of the activity approval has a specified period (of 32
at least 28 days) in which to make representations with respect to the 33
proposed cancellation. 34
(11) The decision-maker must not cancel an activity approval, otherwise than at the 35
request of the holder of the activity approval, unless: 36
(a) the decision-maker has taken any such representations received from 37
the holder of the activity approval into consideration, or 38
(b) the period specified in the notice has elapsed and no such 39
representations have been received. 40
(12) The decision-maker is to cause written notice of the cancellation of an activity 41
approval to be given to the holder of the activity approval. 42
(13) The cancellation takes effect on the date on which the written notice of the 43
cancellation is given to the holder of the activity approval, or on a later date 44
specified in the notice. 45
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(14) Any person who is aggrieved by the decision of the decision-maker to cancel 1
an activity approval held by the person may appeal to the Land and 2
Environment Court against the decision. Section 128 applies to such an appeal 3
as if it were an appeal against a decision to cancel an authority. 4
(15) The cancellation of an activity approval does not affect any liability incurred 5
by the holder of the activity approval before the cancellation took effect. 6
(16) Action may be taken under subsection (9) (b) whether or not any other action 7
has been taken in respect of the activity approval under this Act. 8
[12] Section 26 Conditions of exploration licence 9
Omit the section. 10
[13] Section 27 Term of exploration licence 11
Omit "5 years" from section 27 (b) (ii). Insert instead "6 years". 12
[14] Section 28 Form of exploration licence 13
Insert at the end of the section: 14
Note. Schedule 1B provides for an exploration licence to be varied after it is granted. 15
[15] Section 30 Exempted areas 16
Insert after section 30 (2): 17
(3) Clauses 12 and 14 of Schedule 1B apply to the variation or suspension of a 18
condition of consent granted under this section in the same way as they apply 19
to the variation or suspension of a condition of an authorisation. 20
[16] Section 33 Application for assessment lease 21
Insert after section 33 (4): 22
Note. Section 129A requires an application for an assessment lease to be 23
accompanied by a proposed work program. 24
[17] Section 33 (5) (d) 25
Omit the paragraph. 26
[18] Section 34 Decision-maker may require further information 27
Omit the section. 28
[19] Section 40 Colliery holdings 29
Omit the section. 30
[20] Section 41 Power of decision-maker in relation to applications 31
Insert at the end of section 41 (1): 32
Note. Schedule 1B contains provisions about the grant or refusal of an application for 33
an assessment lease and the conditions to which an assessment lease is subject. 34
[21] Section 41 (2) 35
Omit the subsection. 36
[22] Section 44 Conditions of assessment lease 37
Omit the section. 38
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[23] Section 44A 1
Insert before section 45: 2
44A Activity approval required for assessable prospecting operations 3
(1) An assessment lease is subject to a statutory condition that the holder must not 4
carry out an assessable prospecting operation on land over which the lease is 5
granted unless an activity approval has been obtained for the carrying out of 6
the assessable prospecting operation in relation to that land and is in force. 7
(2) The holder of an assessment lease may apply in writing to the decision-maker 8
for approval to carry out an assessable prospecting operation in relation to any 9
part of the land over which the lease is granted (an activity approval). 10
(3) The decision-maker may require the holder to provide such information as is 11
required by the decision-maker, within the time specified by the 12
decision-maker, before considering the application or at any time during 13
consideration of the application. 14
(4) After considering the application for the activity approval, the decision-maker: 15
(a) may grant the activity approval, or 16
(b) may refuse the application. 17
(5) Without limiting the grounds for refusal, the application may be refused if the 18
applicant fails to provide the information required by the decision-maker 19
within the time required. 20
(6) An activity approval may be granted subject to terms. 21
(7) For the purposes of this Act, it is a statutory condition of an assessment lease 22
that the holder must comply with any activity approval granted to the holder 23
and in force. 24
(8) Clauses 7 (2)-(4), 10 (2), 12 and 14 of Schedule 1B apply to and in respect of 25
the imposition of terms on, and variation of the terms of, an activity approval 26
in the same way as they apply to and in respect of the imposition of conditions 27
on, and the variation of the conditions of, an authorisation. 28
(9) The decision-maker may cancel an activity approval: 29
(a) if the holder of the activity approval lodges with the Secretary a request 30
that the decision-maker cancel the activity approval, or 31
(b) if the decision-maker is satisfied that a person has contravened the 32
activity approval (whether or not the person is prosecuted or convicted 33
of any offence arising from the contravention). 34
(10) Before cancelling an activity approval, otherwise than at the request of the 35
holder of the activity approval, the decision-maker is to cause a written notice 36
to be served on the holder of the activity approval that contains the following: 37
(a) notice that the activity approval is proposed to be cancelled, 38
(b) details of the grounds for the proposed cancellation, 39
(c) notice that the holder of the activity approval has a specified period (of 40
at least 28 days) in which to make representations with respect to the 41
proposed cancellation. 42
(11) The decision-maker must not cancel an activity approval, otherwise than at the 43
request of the holder of the activity approval, unless: 44
(a) the decision-maker has taken any such representations received from 45
the holder of the activity approval into consideration, or 46
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(b) the period specified in the notice has elapsed and no such 1
representations have been received. 2
(12) The decision-maker is to cause written notice of the cancellation of an activity 3
approval to be given to the holder of the activity approval. 4
(13) The cancellation takes effect on the date on which the written notice of the 5
cancellation is given to the holder of the activity approval, or on a later date 6
specified in the notice. 7
(14) Any person who is aggrieved by the decision of the decision-maker to cancel 8
an activity approval held by the person may appeal to the Land and 9
Environment Court against the decision. Section 128 applies to such an appeal 10
as if it were an appeal against a decision to cancel an authority. 11
(15) The cancellation of an activity approval does not affect any liability incurred 12
by the holder of the activity approval before the cancellation took effect. 13
(16) Action may be taken under subsection (9) (b) whether or not any other action 14
has been taken in respect of the activity approval under this Act. 15
[24] Section 45 Term of assessment lease 16
Omit "5 years" from section 45 (b) (ii). Insert instead "6 years". 17
[25] Section 46 Form of assessment lease 18
Insert at the end of the section: 19
Note. Schedule 1B provides that an assessment lease may be varied after it is granted. 20
[26] Section 48 Exempted areas 21
Insert after section 48 (2): 22
(3) Clauses 12 and 14 of Schedule 1B apply to the variation or suspension of a 23
condition of consent granted under this section in the same way as they apply 24
to the variation or suspension of a condition of an authorisation. 25
[27] Section 51 Application for mining lease 26
Insert at the end of section 51 (4): 27
Note. Section 129A requires an application for a mining lease to be accompanied by a 28
proposed work program. 29
[28] Section 51 (5) (d) 30
Omit the paragraph. 31
[29] Section 53 Tenders 32
Insert at the end of section 53 (1): 33
Note. Section 129A requires a tender for a mining lease to be accompanied by a 34
proposed work program. 35
[30] Section 53 (2) (b) 36
Omit the paragraph. 37
[31] Section 54 Decision-maker may require further information 38
Omit the section. 39
[32] Section 61 Colliery holdings 40
Omit the section. 41
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[33] Section 63 Power of decision-maker in relation to applications 1
Insert at the end of section 63 (1): 2
Note. Schedule 1B contains provisions about the grant or refusal of an application for 3
a mining lease. 4
[34] Section 63 (2) 5
Omit the subsection. 6
[35] Section 64 Power of decision-maker in relation to tenders 7
Insert at the end of section 64 (1): 8
Note. Schedule 1B contains provisions about the grant or refusal of a mining lease to 9
a tenderer. 10
[36] Section 64 (3) 11
Omit the subsection. 12
[37] Section 70 Conditions of mining lease 13
Omit the section. 14
[38] Section 79 Amendment of mining lease in respect of expenditure and labour 15
conditions 16
Omit the section. 17
[39] Section 93 Granting of proposed lease if objection or proposal made 18
Omit section 93 (4). Insert instead: 19
(4) Despite clause 12 of Schedule 1B, a condition included in a proposed lease in 20
accordance with a direction of the Premier may only be varied with the 21
concurrence of the Premier. 22
[40] Section 113 Applications for renewal 23
Insert after section 113 (5): 24
(5A) An application for renewal of an exploration licence may include a description 25
of any special circumstances that the applicant claims (for the purposes of 26
section 114A) exist that justify the area of land over which the exploration 27
licence is renewed exceeding half of the area over which the licence is in force 28
when the application for renewal is made. 29
[41] Sections 114 and 114A 30
Omit section 114. Insert instead: 31
114 Power of decision-maker in relation to renewal applications 32
(1) After considering an application for the renewal of an authority, the 33
decision-maker: 34
(a) may renew the authority, or 35
(b) may refuse the application. 36
Note. Schedule 1B contains provisions about the grant or refusal of an application to 37
renew an authority and the grounds for refusal of such an application. 38
(2) The period for which an authority is renewed may not on any one occasion 39
exceed: 40
(a) in the case of an exploration licence or assessment lease--6 years, or 41
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(b) in the case of a mining lease--21 years (or such longer period as the 1
decision-maker may, with the concurrence of the Premier, determine). 2
(3) The decision-maker is not bound to renew an authority over the area 3
nominated by the applicant. 4
(4) The area of land over which an authority is renewed may differ from the area 5
of land over which the renewal of the authority is sought, but not so as to 6
include any land that was not subject to the authority immediately before the 7
renewal. 8
(5) The decision-maker may defer dealing with an application for the renewal of 9
a mining lease over any land if the mining lease is the subject of action being 10
taken under Part 6 in connection with the granting of a consolidated mining 11
lease over that land. 12
114A Power of decision-maker in relation to renewal applications for exploration 13
licences 14
(1) The area of land over which an exploration licence may be renewed is not to 15
exceed half of the area over which the licence was in force when the 16
application for renewal was made. 17
(2) However, the decision-maker may grant a renewal over more than half of the 18
area over which the licence was in force if: 19
(a) the applicant for renewal claims that special circumstances exist that 20
justify doing so, and 21
(b) the decision-maker is satisfied that special circumstances exist that 22
justify doing so. 23
(3) Without limiting the considerations available to the decision-maker in 24
determining whether special circumstances exist for the purposes of this 25
section, the decision-maker may take into account any partial cancellation of 26
the exploration licence on the request of the holder of the licence under 27
section 126, and reduce the percentage of the area of land over which the 28
renewal may not be granted. 29
(4) The decision-maker may direct an applicant for renewal of an exploration 30
licence, within the time specified in the direction, to nominate which part of 31
the area of land is sought to be included in the new exploration licence, where 32
the licence may not be renewed over the whole area of land. 33
(5) The decision-maker may refuse to renew an exploration licence if such a 34
direction is not complied with within the time specified in the direction (in 35
addition to the other grounds for refusal in clause 6 of Schedule 1B). 36
(6) The decision-maker is not bound to renew an exploration licence over the area 37
nominated by the applicant in compliance with a direction under this section 38
or otherwise. 39
[42] Section 117 Authority to have effect until application dealt with 40
Omit section 117 (2) and (3). 41
[43] Section 118 Date from which renewal of authority has effect 42
Omit section 118 (2). 43
[44] Section 120 Application for approval of transfer 44
Omit "to another person" from section 120 (1). 45
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Schedule 1 Amendment of Mining Act 1992 No 29
[45] Section 120 (3) 1
Insert after section 120 (2): 2
(3) The holder of an authority must not apply for a transfer of the authority unless 3
the holder has notified any person who has an interest in the authority that is 4
registered under section 161 of the proposed application. 5
[46] Section 121 Power of decision-maker in relation to transfer approval applications 6
Insert at the end of section 121 (1): 7
Note. Schedule 1B contains provisions about the grant or refusal of an application for 8
approval of the transfer of an authority. 9
[47] Section 121 (2) and (6) 10
Omit the subsections. 11
[48] Section 122 Registration of transfers 12
Omit "regulations, and" from section 122 (2) (b). Insert instead "regulations.". 13
[49] Section 122 (2) (c) 14
Omit the paragraph. 15
[50] Section 122 (3) 16
Insert ", unless registration is prohibited by section 124" after "new authority". 17
[51] Sections 125 and 126 18
Omit the sections. Insert instead: 19
125 Grounds of cancellation of authorities 20
(1) The decision-maker may cancel an authority as to the whole or any part of the 21
land to which it relates: 22
(a) if the holder of the authority lodges with the Secretary a request that the 23
decision-maker cancel the authority as to the whole or part of the land, 24
or 25
(b) if the decision-maker is satisfied that the holder of the authority has 26
contravened a provision of this Act or the regulations (whether or not 27
the holder is prosecuted or convicted of any offence arising from the 28
contravention), or 29
(c) if the decision-maker is satisfied that a person has contravened a 30
condition of the authority (whether or not the person is prosecuted or 31
convicted of any offence arising from the contravention), or 32
(d) if the decision-maker is satisfied that the holder of the authority 33
provided false or misleading information in or in connection with an 34
application for or with respect to the authority or any report provided 35
under this Act, or 36
(e) if the decision-maker is satisfied that the holder of the authority has 37
failed to comply with the requirements of any agreement or assessment 38
under Part 13 in relation to the payment of compensation, or 39
(f) if the holder of the authority is convicted of any offence relating to 40
mining or minerals, or 41
(g) if the decision-maker is satisfied that the holder of the authority has 42
failed to use the land the subject of the authority in good faith for the 43
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Schedule 1 Amendment of Mining Act 1992 No 29
purposes for which the authority has been granted, or has used the land 1
for a purpose other than that for which the authority has been granted, or 2
(h) if the decision-maker is satisfied that there has been a contravention of 3
a direction under section 240 or 240AA, or 4
(i) if the decision-maker is satisfied that the land is required for a public 5
purpose. 6
(2) A request lodged with the Secretary for the cancellation of an authority as to 7
part only of the land to which it relates must be accompanied by a description, 8
prepared in the manner prescribed by the regulations, of the land in respect of 9
which the authority is to be cancelled. 10
(3) Action may be taken under this section whether or not any other action has 11
been taken in respect of the authority under this Act. 12
126 Cancellations of authorities 13
(1) Before cancelling an authority, otherwise than at the request of the holder of 14
the authority, the decision-maker is to cause a written notice to be served on 15
the holder of the authority that contains the following: 16
(a) notice that the authority is proposed to be cancelled, 17
(b) details of the grounds for the proposed cancellation, 18
(c) notice that the holder of the authority has a specified period (of at least 19
28 days) in which to make representations with respect to the proposed 20
cancellation. 21
(2) The decision-maker must not cancel an authority, otherwise than at the request 22
of the holder of the authority, unless: 23
(a) the decision-maker has taken any such representations received from 24
the holder of the authority into consideration, or 25
(b) the period specified in the notice has elapsed and no such 26
representations have been received. 27
(3) The decision-maker is to cause written notice of the cancellation of an 28
authority to be given to the holder of the authority. 29
(4) The cancellation takes effect on the date on which the written notice of the 30
cancellation is given to the holder of the authority, or on a later date specified 31
in the notice. 32
(5) The cancellation of an authority does not affect any liability incurred by the 33
holder of the authority before the cancellation took effect. 34
[52] Section 128 Appeals against decisions concerning cancellations 35
Insert after section 128 (4): 36
(5) This section does not apply to a cancellation that was requested by the holder 37
of the authority. 38
[53] Section 129A 39
Insert after section 129: 40
129A Applications and tenders to be supported by proposed work program 41
(1) An application for an authority, and any tender, must be accompanied by a 42
proposed work program that: 43
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Schedule 1 Amendment of Mining Act 1992 No 29
(a) indicates the nature and extent of operations to be carried out under the 1
authority conferred by the relevant authority, and 2
(b) sets out commitments relating to the conduct of those operations (such 3
as the timing of the operations), and 4
(c) provides for the carrying out of activities (such as community 5
consultation and environmental management and rehabilitation) in 6
connection with, or ancillary to, those operations, and 7
(d) complies with the regulations. 8
(2) In the case of an application for a mining lease, the requirement in 9
subsection (1) can be satisfied by providing a current development consent 10
under the Environmental Planning and Assessment Act 1979 for the 11
development (within the meaning of that Act) in respect of which the mining 12
lease is being applied for. 13
[54] Section 135 Waiver of minor procedural matters 14
Omit the section. 15
[55] Part 8, Division 3, heading 16
Omit the heading. Insert instead: 17
Division 3 Registration of interests and other matters 18
[56] Part 8, Division 3A 19
Omit section 163C. Insert instead: 20
Division 3A Reports and records 21
163C Reports 22
(1) The holder of an authorisation must prepare and lodge reports of all operations 23
carried out under the authorisation. 24
Note. Clause 7 (2) (g) of Schedule 1B provides that reports may also be required by 25
the conditions of an authorisation. 26
(2) The regulations may make provision for or with respect to the following: 27
(a) the content, form or lodgment of the reports, 28
(b) the exemption of any person, class of persons, authorisations or class of 29
authorisations from a requirement of this section or the regulations 30
under this section, 31
(c) prohibiting or regulating the disclosure of reports required to be lodged 32
or made under this section or as a condition of an authorisation. 33
(3) A person who fails, without reasonable excuse, to prepare or lodge a report in 34
accordance with this section or the regulations is guilty of an offence. 35
Maximum penalty: 36
(a) in the case of a corporation--10,000 penalty units, and, in the case of a 37
continuing offence, a further penalty of 1,000 penalty units for each day 38
that the offence continues, or 39
(b) in the case of a natural person--2,000 penalty units, and, in the case of 40
a continuing offence, a further penalty of 200 penalty units for each day 41
that the offence continues. 42
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(4) If there is an inconsistency between a condition of an authorisation and a 1
reporting requirement imposed under this section, the condition prevails to the 2
extent of the inconsistency. 3
163D Record-keeping 4
Any record required to be created and maintained under this Act, the 5
regulations, a condition of an authorisation or a term of an activity approval 6
must be kept in a legible form, or in a form that can readily be reduced to a 7
legible form for production to any inspector. 8
163E Retention of records relating to authorisations 9
The holder of an authorisation must retain any records required to be created 10
and maintained under this Act, the regulations, a condition of an authorisation 11
or a term of an activity approval in relation to the authorisation for not less than 12
4 years after the expiry or cancellation of the authorisation. 13
163F Information provided, served or lodged by agents 14
Any information received from or served or lodged by an agent duly appointed 15
and notified in accordance with the regulations on behalf of any of the 16
following persons is taken to have been received from or served or lodged by 17
that person: 18
(a) the holder of an authorisation, 19
(b) an applicant or tenderer for an authorisation or an applicant for the 20
renewal, transfer or cancellation of an authorisation, 21
(c) an applicant for an activity approval or for the cancellation of an activity 22
approval, 23
(d) any person who owns or occupies land over which an authorisation is in 24
force or to which an application for an authorisation relates. 25
163G Samples of strata, minerals and water 26
(1) The holder of an authorisation must collect any samples of strata, minerals, 27
water or any other thing required by the regulations. 28
(2) Those samples must be collected, labelled for reference or preserved in the 29
manner required by the regulations. 30
[57] Section 168 Suspension of conditions 31
Omit the section. 32
[58] Section 168A Addition or variation of conditions in certain circumstances 33
Omit the section. 34
[59] Section 186 Colliery holdings 35
Omit the section. 36
[60] Section 190 Power of Secretary in relation to applications 37
Omit section 190 (2). 38
[61] Section 190, note 39
Insert at the end of section 190 (6): 40
Note. Schedule 1B makes provision about the grant or refusal of an application for a 41
mineral claim and the conditions to which a mineral claim is subject. 42
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[62] Section 192 Conditions of mineral claim 1
Omit the section. 2
[63] Section 198 Determination of application for renewal of mineral claim 3
Omit section 198 (2) and (3). 4
[64] Section 201 Determination of application for transfer of mineral claim 5
Omit section 201 (2) and (3). 6
[65] Section 203 Grounds of cancellation or operational suspension 7
Insert at the end of section 203 (1) (h): 8
, or 9
(i) if the Secretary reasonably considers that there has been a contravention 10
of a direction under section 240 or 240AA. 11
[66] Section 204 Cancellations of mineral claims 12
Omit "section 203 (1) (b)-(e) or (h)" from section 204 (1). 13
Insert instead "section 203 (1) (b)-(f), (h) or (i)". 14
[67] Section 210A Waiver of minor procedural matters 15
Omit the section. 16
[68] Section 215 Suspension of conditions 17
Omit the section. 18
[69] Section 218A Records 19
Insert ", varied" after "renewed" in section 218A (1) (b). 20
[70] Section 223A Special conditions 21
Omit "program of work" from section 223A (2) (g). Insert instead "works". 22
[71] Section 228 Power of Secretary in relation to applications 23
Omit section 228 (2). 24
[72] Section 231 Form of licence 25
Insert at the end of the section: 26
Note. Schedule 1B applies to small-scale titles, including opal prospecting licences. 27
[73] Section 233 Grounds of cancellation of opal prospecting licence 28
Insert at the end of section 233 (1) (e): 29
, or 30
(f) if the Secretary reasonably considers that there has been a contravention 31
of a direction under section 240 or 240AA. 32
[74] Section 234 Cancellations 33
Omit "section 233 (1) (b)-(d)" from section 234 (1). 34
Insert instead "section 233 (1) (b)-(d) or (f)". 35
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[75] Section 235A Records 1
Insert at the end of section 235A (1) (c): 2
, and 3
(d) the variation of any opal prospecting licence. 4
[76] Part 11, Divisions 1 and 2 5
Omit the Divisions. 6
[77] Section 239E Interpretation 7
Omit "240A" from the definition of authorisation. Insert instead "240AA". 8
[78] Section 239E (2) 9
Insert at the end of section 239E: 10
(2) In this Division, a reference to giving a direction or notice to a responsible 11
person includes, where the responsible person is a corporation that is subject 12
to a scheme of arrangement, receivership, winding up or other external 13
administration, a reference to giving a direction or notice to the administrator, 14
receiver or liquidator of the corporation. 15
[79] Section 240 Directions 16
Insert "or any condition specified in the direction" after "the direction" in section 240 (2). 17
[80] Section 240 (2A) 18
Insert after section 240 (2): 19
(2A) A direction served on a person under this Division may require the person to 20
prepare, and submit to the Secretary or inspector, reports as to any of the 21
following: 22
(a) the measures the person proposes to take for the purpose of complying 23
with the direction, 24
(b) the progress made by the person in implementing any such measures. 25
[81] Sections 240A and 240AA 26
Omit section 240A. Insert instead: 27
240A Prohibition notices 28
(1) If the Secretary or an inspector reasonably suspects that a person who is not 29
the holder of an authorisation is carrying out, or is about to carry out, any 30
activity in contravention of a provision of this Act requiring an authorisation 31
to be held when carrying out the activity, the Secretary or inspector may direct 32
the person to discontinue that activity on the land specified in the notice. 33
(2) The direction may be given orally, but must be confirmed by written notice (a 34
prohibition notice) issued to the person as soon as practicable. 35
(3) A prohibition notice must state: 36
(a) the reasons for the issue of the prohibition notice, and 37
(b) the activity concerned, and 38
(c) the provision of this Act that the Secretary or inspector believes is 39
being, or is likely to be, contravened by that activity. 40
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240AA Direction to suspend operations 1
(1) The Secretary may, by written notice (a suspension notice), direct a 2
responsible person to suspend (for such period as is specified in the direction 3
or until further notice) all, or any specified, operations under an authorisation 4
or suspend any activity approval relating to the operations if the Secretary 5
considers that: 6
(a) circumstances exist that could constitute a ground for cancellation of the 7
authorisation under section 125 (1) (b)-(g), 203 (1) (b)-(e) or (h) or 8
233 (1) (b)-(d), or 9
(b) circumstances exist that could constitute a ground for cancellation of the 10
authorisation under section 125 (1) (h), 203 (1) (i) or 233 (1) (f), in 11
relation to a breach of a direction under section 240 only, or 12
(c) on any other ground specified in the regulations. 13
(2) Before giving a suspension notice, the Secretary is to: 14
(a) cause written notice of the proposed suspension notice and the grounds 15
for it to be served on the holder of the authorisation, and 16
(b) give the holder a reasonable opportunity to make representations with 17
respect to the proposed suspension notice, and 18
(c) take any such representations into consideration. 19
(3) The suspension notice takes effect on the date on which it is given to the holder 20
of the authorisation or on a later date specified in the notice. 21
(4) The suspension of an authorisation does not affect any liability incurred by the 22
holder of the authorisation before the suspension took effect. 23
(5) The holder of an authorisation is not entitled to compensation merely because 24
of the suspension of operations under the authorisation in accordance with a 25
suspension notice. 26
(6) If a suspension notice under this section is issued to a person who is not the 27
current holder of the authorisation concerned, the Secretary must cause a copy 28
of the notice to be served on any current holder within 5 days after the notice 29
is issued. 30
(7) A direction served on a person under this section may require the person to 31
prepare, and submit to the Secretary or inspector, reports as to any of the 32
following: 33
(a) the measures the person proposes to take for the purpose of complying 34
with the direction, 35
(b) the progress made by the person in implementing any such measures. 36
(8) Any costs or expenses incurred by the Crown under this section are a debt due 37
to the Crown by the person on whom the direction was served and are 38
recoverable in a court of competent jurisdiction. 39
[82] Section 240B Revocation or variation 40
Insert "or any condition specified in the direction" after "specifications" in 41
section 240B (2). 42
[83] Section 240B (3) 43
Insert "or the period of suspension" after "the direction". 44
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Schedule 1 Amendment of Mining Act 1992 No 29
[84] Section 240C Breach of direction or notice 1
Insert "or notice" after "direction" wherever occurring. 2
[85] Section 240D Effect of direction 3
Omit "section 125" from the note to the section. Insert instead "section 126". 4
[86] Section 240E Fee 5
Insert after section 240E (2): 6
(3) A fee payable under this section is a debt due by the holder of the authorisation 7
concerned to the Crown and is recoverable in a court of competent jurisdiction. 8
[87] Section 242AA 9
Insert after section 242: 10
242AA Prior notice of direction under section 240 not required 11
A person who gives a direction under section 240 is not required to notify any 12
person who may be affected by the direction before giving the direction. 13
[88] Section 242C Derelict Mine Sites Fund 14
Omit "section 246A" from section 242C (3) (a). Insert instead "section 246". 15
[89] Section 244 Definitions 16
Omit the definition of forfeiture order. 17
[90] Section 246P Conditions for mandatory audits 18
Omit section 246P (7). Insert instead: 19
(7) This section does not affect the operation of the following provisions of the 20
Environmental Planning and Assessment Act 1979: 21
(a) section 89K (Approvals etc legislation that must be applied 22
consistently), 23
(b) section 93 (Granting and modification of approval by approval body), 24
(c) section 115ZH (Approvals etc legislation that must be applied 25
consistently). 26
[91] Section 246V Protected documents 27
Insert "or 240AA" after "section 240" in section 246V (3). 28
[92] Part 12, Division 1C, heading 29
Omit the heading. 30
[93] Section 248L Powers of inspectors to require answers 31
Omit "Division" from section 248L (1). Insert instead "Part". 32
[94] Section 248M Recording of evidence 33
Omit "Division" from section 248M (1). Insert instead "Part". 34
[95] Section 248N Power of inspectors to demand name and address 35
Omit "referred to in section 248K" from section 248N (1). 36
Insert instead "of this Act or the regulations". 37
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Schedule 1 Amendment of Mining Act 1992 No 29
[96] Section 248NA 1
Insert after section 248N: 2
248NA Application of Division 3
The powers in sections 248L, 248M and 248N may be exercised whether or 4
not a power of entry under this Division is being or has been exercised. 5
[97] Section 248O Additional powers of entry 6
Omit the section. 7
[98] Section 248T 8
Omit the section. Insert instead: 9
248T Provisions relating to requirements to furnish records or information or 10
answer questions 11
(1) Warning to be given on each occasion 12
A person is not guilty of an offence of failing to comply with a requirement 13
under this Part to furnish records or information or to answer a question unless 14
the person was warned on that occasion that a failure to comply is an offence. 15
(2) Self-incrimination not an excuse 16
A person is not excused from a requirement under this Part to furnish records 17
or information or to answer a question on the ground that the record, 18
information or answer might incriminate the person or make the person liable 19
to a penalty. 20
(3) Information or answer not admissible if objection made 21
However, any information furnished or answer given by a natural person in 22
compliance with a requirement under this Part is not admissible in evidence 23
against the person in criminal proceedings (except proceedings for an offence 24
under this Part) if: 25
(a) the person objected at the time to doing so on the ground that it might 26
incriminate the person, or 27
(b) the person was not warned on that occasion that the person may object 28
to furnishing the information or giving the answer on the ground that it 29
might incriminate the person. 30
(4) Records admissible 31
Any record furnished by a person in compliance with a requirement under this 32
Part is not inadmissible in evidence against the person in criminal proceedings 33
on the ground that the record might incriminate the person. 34
(5) Further information 35
Further information obtained as a result of a record or information furnished 36
or of an answer given in compliance with a requirement under this Part is not 37
inadmissible on the ground: 38
(a) that the record or information had to be furnished or the answer had to 39
be given, or 40
(b) that the record or information furnished or answer given might 41
incriminate the person. 42
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Schedule 1 Amendment of Mining Act 1992 No 29
(6) Section extends to requirement to state name and address 1
This section extends to a requirement under this Part to state a person's name 2
and address. 3
[99] Section 248V Extraterritorial application 4
Omit the section. 5
[100] Section 261F Claim on and use of security deposit 6
Insert after section 261F (3): 7
(3A) The Minister may use money obtained under a security deposit for a 8
small-scale title to recover or fund the reasonable costs or expenses that the 9
Crown reasonably incurs rehabilitating land affected by activities undertaken 10
under any small-scale title. 11
[101] Section 282 Liability to pay royalty--publicly owned minerals 12
Omit "section 70 (4)" from section 282 (2). Insert instead "clause 8 (4) of Schedule 1B". 13
[102] Section 292C Fees payable in respect of authorisation 14
Insert after section 292C (2): 15
(3) The holder of an authorisation must not fail to pay any annual rental fee or 16
annual administrative levy payable under this Part for the authorisation. 17
Maximum penalty: 18
(a) in the case of a corporation--100 penalty units, or 19
(b) in the case of a natural person--50 penalty units. 20
[103] Section 292Q Failure to pay fee 21
Omit the section. 22
[104] Section 292RA 23
Insert after section 292R: 24
292RA Waiver or refund of fees 25
(1) The Secretary may refund or waive payment of the whole or any part of a fee 26
that this Act requires to be paid, on his or her own initiative or on the 27
application of the person who is required to pay the fee, if the Secretary is 28
satisfied that there is good cause for doing so. 29
(2) The regulations may make further provision for or with respect to the waiver 30
or refund of fees payable under this Act. 31
[105] Section 292SD 32
Omit the section. Insert instead: 33
292SD Use of money raised through levy 34
The Secretary may, on the application of a person, allocate any money 35
collected by way of a levy under this Part for any purpose if the Secretary is 36
satisfied that the reasons for which the application was made are consistent 37
with the purposes for which the levy was imposed and the allocation is 38
appropriate and reasonable for achieving those purposes. 39
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Schedule 1 Amendment of Mining Act 1992 No 29
[106] Section 292V Small-Scale Titles Levy Fund 1
Omit "awards as grants" from section 292V (4) (a). Insert instead "allocates". 2
[107] Section 361 Appointment of inspectors 3
Insert after section 361 (3): 4
(4) The Secretary must publish the following matters in the Gazette: 5
(a) the classes of persons appointed as inspectors under subsection (1), 6
(b) any conditions, limitations or restrictions, or limitation on purposes, 7
imposed by the Secretary on the appointment of persons under this 8
section. 9
[108] Section 364 Minister or official not to be interested in authority or small-scale title 10
Omit section 364 (1). Insert instead: 11
(1) A person must not, while holding office in an official capacity for the purposes 12
of this Act and while exercising functions in that capacity, hold either directly 13
or indirectly a beneficial interest in an authority or a small-scale title. 14
(1A) The following are persons who hold office in an official capacity for the 15
purposes of this Act: 16
(a) the Minister, 17
(b) an inspector, 18
(c) a member of staff of the Department who exercises functions under this 19
Act or the Petroleum (Onshore) Act 1991, 20
(d) any other person who exercises any judicial or official functions under 21
this Act or the Petroleum (Onshore) Act 1991. 22
[109] Section 364A 23
Insert after section 364: 24
364A Documents or information provided under conditions requiring reporting 25
(1) Any document or information provided under a condition of an authorisation 26
referred to in clause 7 (2) (g) of Schedule 1B may be taken into consideration 27
by the Secretary or the relevant decision-maker and used for the purposes of 28
this Act, including for the purposes of the prosecution of offences under this 29
Act or the regulations. 30
(2) The Secretary is authorised, despite any other Act or law, to provide a relevant 31
agency with any such document or information. 32
(3) Any such document or information is required to be provided by the holder of 33
an authorisation, whether or not the document or information might 34
incriminate the holder. 35
(4) However, information provided by a natural person in compliance with a 36
condition of an authorisation referred to in clause 7 (2) (g) of Schedule 1B is 37
not admissible in evidence against the person in criminal proceedings (other 38
than proceedings for an offence for providing false and misleading 39
information) if the person, when providing the information, objected to the 40
provision of the information on the grounds that it might incriminate him or 41
her. 42
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Schedule 1 Amendment of Mining Act 1992 No 29
(5) In this section: 1
relevant agency means: 2
(a) the Department, or 3
(b) a public authority engaged in administering or executing the 4
environment protection legislation, the Environmental Planning and 5
Assessment Act 1979 or such other legislation, if any, as may be 6
prescribed by the regulations. 7
[110] Section 365A 8
Insert after section 365: 9
365A Exchange of information 10
(1) The regulator may enter into an arrangement (an information sharing 11
arrangement) with a relevant agency for the purposes of sharing or 12
exchanging any information that is held by the regulator or the agency. 13
(2) The information to which an information sharing arrangement may relate is 14
limited to information that assists the regulator or relevant agency: 15
(a) to determine applications made under the resources legislation or 16
legislation made under the corresponding law of another jurisdiction, or 17
(b) to determine whether to cancel, revoke, suspend or vary an 18
authorisation, activity approval or other approval, or an exemption or 19
declaration, that is granted, made or given under that legislation, or 20
(c) to facilitate the carrying out of inspections, probity checks or other 21
enforcement action under that legislation. 22
(3) Under an information sharing arrangement, the regulator and the relevant 23
agency are, despite any other Act or law of the State, authorised: 24
(a) to request and receive information that is held by the other party to the 25
arrangement, and 26
(b) to disclose that information to the other party. 27
(4) In this section: 28
regulator means the Minister or the Secretary. 29
relevant agency means any of the following: 30
(a) a government agency or holder of a statutory office with any functions 31
similar to or related to those imposed on the regulator by or under the 32
resources legislation, 33
(b) any government agency of the Commonwealth or another State or 34
Territory with functions similar to or related to those imposed on the 35
regulator under any of the resources legislation, 36
(c) any other person or body, or person or body of a class, prescribed by the 37
regulations. 38
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Schedule 1 Amendment of Mining Act 1992 No 29
[111] Part 17A, heading 1
Omit the heading. Insert instead: 2
Part 17A Offences, enforcement and undertakings about 3
contraventions 4
[112] Section 378A 5
Omit the section. Insert instead: 6
378A Obstruction 7
A person must not, without reasonable excuse, obstruct, hinder or resist any of 8
the following persons in the exercise of a function under this Act: 9
(a) an inspector, 10
(b) an authorised person within the meaning of Division 3 of Part 11, 11
(c) a member of staff of the Department who exercises functions under this 12
Act or the Petroleum (Onshore) Act 1991, 13
(d) any other person who exercises any judicial or official functions under 14
this Act or the Petroleum (Onshore) Act 1991. 15
Maximum penalty: 16
(a) in the case of a corporation--10,000 penalty units, or 17
(b) in the case of a natural person--2,000 penalty units. 18
[113] Section 378C 19
Omit the section. Insert instead: 20
378C Providing false or misleading information 21
A person must not provide any information, record or return in purported 22
compliance with any requirement by or under this Act: 23
(a) knowing that the information, record or return is false or misleading in 24
a material particular, or 25
(b) being reckless as to whether the information, record or return is false or 26
misleading in a material particular. 27
Maximum penalty: 28
(a) in the case of a corporation--1,000 penalty units, or 29
(b) in the case of a natural person--500 penalty units. 30
[114] Section 378D Contravention of condition of authorisation--offence by holder 31
Omit the penalties to section 378D (1). Insert instead: 32
Maximum penalty: 33
(a) in the case of a corporation--10,000 penalty units, and, in the case of a 34
continuing offence, a further penalty of 1,000 penalty units for each day 35
that the offence continues, or 36
(b) in the case of a natural person--2,000 penalty units, and, in the case of 37
a continuing offence, a further penalty of 200 penalty units for each day 38
that the offence continues. 39
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Schedule 1 Amendment of Mining Act 1992 No 29
[115] Section 378D (2), penalties 1
Omit the penalties. Insert instead: 2
Maximum penalty: 3
(a) in the case of a corporation--10,000 penalty units, and, in the case of a 4
continuing offence, a further penalty of 1,000 penalty units for each day 5
that the offence continues, or 6
(b) in the case of a natural person--2,000 penalty units, and, in the case of 7
a continuing offence, a further penalty of 200 penalty units for each day 8
that the offence continues. 9
[116] Section 378D (3) 10
Omit "of a kind referred to in Part 1 of Schedule 7". 11
[117] Section 378EA 12
Insert after section 378E: 13
378EA Aiding and abetting commission of offence 14
A person who: 15
(a) causes or permits the commission of an offence against this Act or the 16
regulations, or 17
(b) aids, abets, counsels or procures another person to commit an offence 18
against this Act or the regulations, or 19
(c) attempts to commit an offence against this Act or the regulations, or 20
(d) conspires to commit an offence against this Act or the regulations, 21
is guilty of that offence and liable to the penalty prescribed by this Act or the 22
regulations in relation to that offence. 23
[118] Section 378F Liability of directors etc for offences by corporation--offences 24
attracting executive liability 25
Omit section 378F (1). Insert instead: 26
(1) For the purposes of this section, an executive liability offence is an offence 27
against section 5, 240C or 378D that is committed by a corporation. 28
[119] Section 378G 29
Omit the section. Insert instead: 30
378G Continuing offences 31
(1) If an offence against a provision of this Act is committed by a person by reason 32
of a continuing act or omission: 33
(a) the person is liable, in addition to the penalty otherwise applicable to the 34
offence, to a penalty for each day during which the act or omission 35
continues of not more than an amount specified for that offence, and 36
(b) if the act or omission continues after the person is convicted of the 37
offence, the person is guilty of a further offence against that provision 38
and liable, in addition to the penalty otherwise applicable to the further 39
offence, to a penalty for each day during which the act or omission 40
continues after that conviction of not more than an amount specified for 41
that offence. 42
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Schedule 1 Amendment of Mining Act 1992 No 29
(2) An obligation to do something is to be regarded as continuing until the act is 1
done despite the fact that a period within which, or time before which, the act 2
is required to be done has expired or passed. 3
(3) An omission is to be regarded as continuing for as long as the thing required 4
to be done remains undone after the end of the period for compliance with the 5
requirement. 6
(4) However, this section does not apply to an offence if the relevant provision of 7
this Act or the regulations does not provide for a penalty for a continuing 8
offence. 9
[120] Section 378H Proceedings for offences 10
Omit "239C," from section 378H (1) (a). 11
[121] Section 378H (1) (a) 12
Omit "(in the case of a contravention of a condition referred to in Part 1 of Schedule 7 or 13
section 261B)". 14
[122] Section 378H (3) 15
Omit "specified in Part 2 of Schedule 7". 16
Insert instead "under section 5, 6 (1), 12B, 12C, 12D or 291". 17
[123] Section 378I Time within which summary proceedings may be commenced 18
Omit "listed in Part 3 of Schedule 7" wherever occurring in section 378I (1) (a) and (2) (a). 19
Insert instead "under section 5, 6 (1), 12B, 12C, 12D, 240C, 246R, 248S, 291, 378A or 20
378D". 21
[124] Part 17A, Divisions 4A and 4B 22
Insert after Division 4: 23
Division 4A Court orders in connection with suspected 24
contravention 25
378ZFA Order for recovery of costs related to prospecting or mining without 26
authorisation 27
(1) The Land and Environment Court or the Local Court may make an order under 28
this section if the court is satisfied, on the balance of probabilities, that a 29
person has prospected for or mined for a mineral otherwise than in accordance 30
with an authorisation. 31
(2) The Land and Environment Court or the Local Court may order a person to pay 32
to a government agency or person costs and expenses incurred, or 33
compensation for loss or damage suffered, as the case may be, in such amount 34
as is fixed by the order, if it appears to the court that: 35
(a) a government agency has incurred costs and expenses in connection 36
with: 37
(i) the prevention, control, mitigation or management of any 38
environmental impact caused by the prospecting or mining, or 39
(ii) rehabilitating land or water damaged or affected by the 40
prospecting or mining, or 41
(b) a person (including a government agency) has, by reason of the 42
prospecting or mining, suffered loss of or damage to property or has 43
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Schedule 1 Amendment of Mining Act 1992 No 29
incurred costs and expenses in preventing, controlling, mitigating or 1
managing any such loss or damage, or attempting to do so. 2
(3) However, the court is not to make an order for payment to a person under the 3
section to the extent that the payment would represent the value of minerals 4
extracted by that person without title that the person who carried out the 5
suspected unlawful prospecting or mining had obtained by fossicking, 6
prospecting operations or mining operations carried out with the consent of 7
that person and in connection with the suspected contravention. 8
(4) An order made by the Local Court under this section is enforceable as if it were 9
an order made by the court when exercising jurisdiction under the Civil 10
Procedure Act 2005. 11
(5) An order made by the Land and Environment Court under this section is 12
enforceable as if it were an order made by the Court in Class 4 proceedings 13
under the Land and Environment Court Act 1979. 14
(6) The Local Court may not make an order under this section for the payment of 15
an amount that exceeds the jurisdictional limit of the Local Court under the 16
Civil Procedure Act 2005. 17
(7) The court may make an order under this section whether or not the person 18
against whom the order is made: 19
(a) has been convicted of an offence under this Act in relation to the 20
prospecting or mining, or 21
(b) has been issued with a penalty notice under this Act in relation to the 22
prospecting or mining, and whether or not the amount of penalty 23
prescribed for the offence has been paid under any such penalty notice, 24
or 25
(c) has had any other action taken against the person in respect of an 26
offence under this Act in relation to the prospecting or mining. 27
(8) This section does not prevent the taking of proceedings for an offence of 28
prospecting or mining for a mineral except in accordance with an 29
authorisation. 30
Division 4B Enforceable undertakings 31
378ZFB Secretary may accept enforceable undertakings 32
(1) The Secretary may accept a written undertaking (an enforceable undertaking) 33
given by a person in connection with a matter relating to a contravention or 34
alleged contravention by the person of this Act. 35
(2) The giving of an enforceable undertaking does not constitute an admission of 36
guilt by the person giving it in relation to the contravention or alleged 37
contravention to which the undertaking relates. 38
(3) The Secretary must issue, and make public, general guidelines for or in 39
relation to the acceptance of enforceable undertakings under this Act. 40
378ZFC Notice of decision and reasons for decision 41
(1) The Secretary must give the person seeking to make an enforceable 42
undertaking written notice of the Secretary's decision to accept or reject the 43
enforceable undertaking and of the reasons for the decision. 44
(2) The Secretary must publish, and make public, notice of a decision to accept an 45
enforceable undertaking and the reasons for that decision. 46
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Schedule 1 Amendment of Mining Act 1992 No 29
378ZFD When an enforceable undertaking is enforceable 1
An enforceable undertaking takes effect and becomes enforceable when the 2
Secretary's decision to accept the undertaking is given to the person who made 3
the undertaking or at any later date specified by the Secretary. 4
378ZFE Compliance with enforceable undertaking 5
A person must not contravene an enforceable undertaking made by that person 6
that is in effect. 7
Maximum penalty: 8
(a) in the case of a corporation--10,000 penalty units, or 9
(b) in the case of a natural person--2,000 penalty units. 10
378ZFF Contravention of enforceable undertaking 11
(1) The Secretary may apply to the District Court for an order if a person 12
contravenes an enforceable undertaking. 13
(2) If the Court is satisfied that the person who made the enforceable undertaking 14
has contravened the undertaking, the Court, in addition to the imposition of 15
any penalty, may make one or both of the following orders: 16
(a) an order directing the person to comply with the undertaking, 17
(b) an order discharging the undertaking. 18
(3) In addition to the orders referred to in subsection (2), the Court may make any 19
other order that the Court considers appropriate in the circumstances, 20
including orders directing the person to pay to the State: 21
(a) the costs of the proceedings, and 22
(b) the reasonable costs of the Secretary in monitoring compliance with the 23
enforceable undertaking in the future. 24
Note. Section 378ZFH specifies circumstances affecting proceedings for a 25
contravention for which an enforceable undertaking has been given. 26
378ZFG Withdrawal or variation of enforceable undertaking 27
(1) A person who has made an enforceable undertaking may at any time, with the 28
written agreement of the Secretary: 29
(a) withdraw the undertaking, or 30
(b) vary the undertaking. 31
(2) However, the provisions of the undertaking cannot be varied to provide for a 32
different alleged contravention of the Act. 33
(3) The Secretary must publish, and make public, notice of the withdrawal or 34
variation of an enforceable undertaking. 35
378ZFH Proceeding for alleged contravention 36
(1) Subject to this section, no proceedings for a contravention or alleged 37
contravention of this Act may be brought against a person if an enforceable 38
undertaking is in effect in relation to that contravention. 39
(2) No proceedings may be brought for a contravention or alleged contravention 40
of this Act against a person who has made an enforceable undertaking in 41
relation to that contravention and has completely discharged the enforceable 42
undertaking. 43
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Schedule 1 Amendment of Mining Act 1992 No 29
(3) The Secretary may accept an enforceable undertaking in relation to a 1
contravention or alleged contravention before proceedings in relation to that 2
contravention have been finalised. 3
(4) If the Secretary accepts an enforceable undertaking before the proceedings are 4
finalised, the Secretary must take all reasonable steps to have the proceedings 5
discontinued as soon as possible. 6
[125] Sections 387B and 387C 7
Insert after section 387A: 8
387B Extraterritorial application 9
A notice may be given under this Act to a person in respect of a matter even 10
though the person is outside the State or the matter occurs or is located outside 11
the State, so long as the matter relates to the administration of this Act 12
(including, but not limited to investigation of, or enforcement action relating 13
to, offences against this Act). 14
387C Waiver of minor procedural matters 15
(1) The Minister may waive any requirement of this Act or the regulations: 16
(a) as to the time within which anything is required to be done (but not the 17
time for lodging any application for renewal of an authorisation after the 18
date of expiry), or 19
(b) as to the details to be contained in any notice to be served, lodged or 20
caused to be published by the applicant, or 21
(c) as to the documents or particulars to accompany the application, or 22
(d) as to the furnishing of information by the applicant. 23
(2) This section does not authorise the Minister to waive a requirement unless the 24
Minister is satisfied that the waiver is unlikely: 25
(a) to adversely affect any person's rights under this Act or the regulations, 26
or 27
(b) to result in any person being deprived of information necessary for the 28
effective exercise of those rights. 29
[126] Section 388 Regulations 30
Insert after section 388 (1): 31
(1A) The regulations may adopt or provide for the adoption of any document 32
(including, for example, a code of practice or set of standards published by any 33
person or body) and for the application of the provisions of that document, as 34
in force for the time being, for any of the purposes of this Act or the 35
regulations. 36
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Schedule 1 Amendment of Mining Act 1992 No 29
[127] Schedule 1B 1
Insert in appropriate order before Schedule 1: 2
Schedule 1B Further provisions relating to authorisations 3
generally 4
Part 1 Preliminary 5
1 Meaning of "relevant decision-maker" 6
In this Schedule: 7
relevant decision-maker, in relation to a decision concerning an authorisation 8
made under a provision of this Act, means the person who makes that decision 9
for the purposes of that provision. 10
2 Application of Schedule 11
(1) This Schedule applies to and in respect of applications and tenders for, and 12
decisions made by the relevant decision-maker in relation to, the following: 13
(a) the grant of an authorisation (including the grant of an authorisation to 14
a tenderer), 15
(b) the renewal of an authorisation, 16
(c) the approval of the transfer of an authorisation, 17
(d) the imposition of conditions on, or variation of conditions of, an 18
authorisation, 19
(e) the suspension of an authorisation. 20
(2) This Schedule does not apply to environmental assessment permits under 21
section 252. 22
Part 2 Considering applications 23
3 Protection of the environment must be taken into account in considering 24
applications 25
(1) The relevant decision-maker must take into account the need to conserve and 26
protect the environment in or on the land over which the authorisation is 27
sought (or, in the case of a variation, to which it applies) in considering an 28
application to which this Schedule applies. 29
(2) The relevant decision-maker may cause such studies (including environmental 30
impact studies) to be carried out as the relevant decision-maker considers 31
necessary to assist in making a decision on the application. 32
(3) If public money is spent under subclause (2) in having studies carried out or 33
engaging persons to provide advice, the relevant decision-maker may, by 34
written notice, require the applicant concerned to reimburse the Government, 35
within the time specified in the notice, for the money, or any part of the money, 36
reasonably incurred. 37
(4) The relevant decision-maker may recover from the applicant any unpaid 38
amounts specified in the notice as a debt in a court of competent jurisdiction. 39
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4 Other matters that may be taken into account in considering applications 1
Without limiting the generality of any other provision of this Act, the relevant 2
decision-maker may take into account any one or more of the following when 3
considering an application to which this Schedule applies: 4
(a) whether, in the opinion of the relevant decision-maker, the applicant 5
meets the minimum standards, made public by the relevant 6
decision-maker, required to be met with respect to the technical and 7
financial capability to carry out the proposed work program, 8
(b) if the application relates to a transfer--whether, in the opinion of the 9
relevant decision-maker, the transferee meets the minimum standards, 10
made public by the relevant decision-maker, required to be met with 11
respect to the technical and financial capability to carry out the 12
proposed work program, 13
(c) if the applicant is a natural person--the compliance history of the 14
applicant, 15
(d) if the applicant is a body corporate--the compliance history of any 16
director of the body corporate or of any related body corporate, 17
(e) if the application relates to a transfer and the proposed transferee is a 18
natural person--the compliance history of the proposed transferee, 19
(f) if the application relates to a transfer and the proposed transferee is a 20
body corporate--the compliance history of any director of that body 21
corporate, 22
(g) whether, in the opinion of the relevant decision-maker, the work 23
program proposed to be carried out by the applicant meets the minimum 24
standards, made public by the relevant decision-maker, required to be 25
met with respect to work programs for an authorisation of the kind 26
concerned. 27
5 Relevant decision-maker may require further information 28
(1) The relevant decision-maker may require a person who makes an application 29
to which this Schedule applies to furnish further information in connection 30
with the application, including (if the applicant is a body corporate) 31
information as to the extent to which the controlling power in the body 32
corporate's affairs is held by: 33
(a) a foreign company within the meaning of the Corporations Act 2001 of 34
the Commonwealth, or 35
(b) a company registered under that Act that is taken for the purposes of that 36
Act to be registered in a State or Territory other than New South Wales, 37
or 38
(c) a natural person who is a resident of a foreign country. 39
(2) The application may be refused if the applicant does not furnish that further 40
information within the period specified by the relevant decision-maker by 41
written notice when the request for further information is made. 42
6 Grounds for refusal of applications 43
Without limiting the generality of any other provision of this Act, the relevant 44
decision-maker may refuse an application to which this Schedule applies on 45
any one or more of the following grounds: 46
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Schedule 1 Amendment of Mining Act 1992 No 29
(a) the relevant decision-maker considers that the applicant (or if the 1
application relates to a transfer, the transferee) has an unsatisfactory 2
compliance history, 3
(b) the relevant decision-maker considers that the applicant (or if the 4
application relates to a transfer, the transferee) does not meet the 5
applicable minimum standards with respect to work programs and the 6
technical and financial capability to carry out the proposed work 7
program, 8
(c) the applicant has not paid any fee payable in connection with the 9
application, 10
(d) the applicant has failed to lodge any information required to accompany 11
the application within 10 business days after the application is lodged, 12
(e) in the case of an application relating to a mineral claim or opal 13
prospecting licence--that the applicant has failed to pay any levy 14
required under section 292SA in relation to the claim or licence. 15
Part 3 Conditions of authorisations 16
7 Conditions of authorisations 17
(1) An authorisation is subject to: 18
(a) any condition imposed by the relevant decision-maker under this 19
Schedule (including any variation of such a condition), and 20
(b) any condition imposed by or under section 246P or 261B, and 21
(c) in the case of a mineral claim--the conditions referred to in clause 8, 22
and 23
(d) in the case of an opal prospecting licence--the conditions referred to in 24
clause 9, and 25
(e) any condition prescribed by the regulations. 26
(2) Without limiting the generality of subclause (1), conditions imposed by the 27
relevant decision-maker or prescribed by the regulations may include 28
conditions relating to the following: 29
(a) the development and conduct of mining operations, 30
(b) environmental management, protection and rehabilitation, including 31
requiring the holder of the authorisation to: 32
(i) carry out activities or not to carry out activities in order to protect, 33
prevent, control or mitigate harm to the environment, and 34
(ii) rehabilitate land or water that is or may be affected by activities 35
under the authorisation, 36
(c) compliance with codes of practice or sets of standards published by any 37
person or body, 38
(d) ensuring the safety of the public in relation to prospecting and mining 39
operations, 40
(e) the administration of authorisations, 41
(f) community relations, 42
(g) requiring the holder to provide the Minister with reports detailing any 43
non-compliance with the conditions of the authorisation, or any 44
requirements of this Act or the regulations relating to activities under 45
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the authorisation, and any action taken, or to be taken, to prevent any 1
recurrence, or to mitigate the effects of that non-compliance. 2
(3) Any obligation imposed on the holder of an authorisation in relation to 3
environmental management, protection and rehabilitation: 4
(a) continues to have effect despite the cancellation of the authorisation or 5
it ceasing to have effect, and 6
(b) can be imposed despite anything to the contrary in section 93 of the 7
Environmental Planning and Assessment Act 1979. 8
(4) Unless an exemption from conditions imposed by regulations applies, in the 9
event of an inconsistency between conditions imposed by the relevant 10
decision-maker and those imposed by regulations, the conditions imposed by 11
the regulations prevail to the extent of any inconsistency. 12
8 Additional conditions of mineral claims 13
(1) In addition to the conditions referred to in clause 7, a mineral claim is subject 14
to: 15
(a) any special conditions that apply to the land, and 16
(b) the conditions imposed on the holder of the claim under section 211 as 17
to his or her exercise of any right of way under that section in respect of 18
the claim area, and 19
(c) the conditions to which the holder of the claim is subject pursuant to any 20
registered access management plan in force in respect of that land, and 21
(d) any other conditions (not inconsistent with any other condition referred 22
to in this subclause) that the Secretary imposes when the claim is 23
granted, or at any other time under a power conferred by this Act. 24
(2) Without limiting the generality of subclause (1), a condition may be imposed 25
on a mineral claim requiring the holder of the claim to pay royalty to the 26
Crown on any minerals recovered under the claim. 27
(3) In addition to any condition imposed by or under subclause (1), a mining lease 28
that is not granted in relation to a mining purpose or mining purposes only is 29
subject to a condition that the holder of the lease will not suspend mining 30
operations in the mining area otherwise than in accordance with the written 31
consent of the decision-maker. 32
(4) A mining lease granted on the basis of a tender lodged under section 53 is 33
taken to include a condition in the terms specified in the tender for the 34
purposes of section 53 (3). 35
9 Additional conditions of opal prospecting licence 36
In addition to the conditions referred to in clause 7, an opal prospecting licence 37
is subject to: 38
(a) any special conditions that apply, pursuant to section 223A, to the opal 39
prospecting block over which the licence is granted, and 40
(b) the conditions imposed on the holder of the licence, pursuant to 41
section 235C, as to his or her exercise of any right of way under that 42
section in respect of the opal prospecting block over which the licence 43
is granted, and 44
(c) any other conditions (not inconsistent with any other condition referred 45
to in this section) that the Secretary imposes when the licence is granted, 46
or at any other time under a power conferred by this Act. 47
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10 Conditions imposed on authorisations by relevant decision-maker 1
(1) The relevant decision-maker may impose conditions on an authorisation: 2
(a) at the time of the grant of the authorisation, or 3
(b) at any later time, as permitted by this Schedule. 4
(2) A condition imposed by the relevant decision-maker takes effect as follows: 5
(a) if the condition is imposed on the grant of an authorisation--when the 6
grant takes effect, 7
(b) if the condition is imposed on the renewal of an authorisation--when 8
the renewal takes effect, 9
(c) if the condition is imposed when a full or partial transfer of an 10
authorisation is approved under this Act--when the transfer is 11
registered under this Act, 12
(d) if the condition is a variation under clause 12--as provided by 13
clause 12 (7), 14
(e) in any other case--when written notice of the imposition of the 15
condition is served on the holder of the authorisation or at a later time 16
specified in the notice. 17
11 Exemption from conditions imposed by regulations 18
(1) The relevant decision-maker may, by order published in the Gazette, exempt 19
the holder of an authorisation from compliance with a condition imposed by 20
the regulations. 21
(2) An exemption may be granted subject to conditions. 22
(3) An exemption may: 23
(a) apply generally or be limited in its application by reference to specified 24
exceptions or factors, and 25
(b) apply differently according to different factors of a specified kind, and 26
(c) be granted for a specified period or for an indefinite period, and 27
(d) if granted for a specified period--be granted before, during or after that 28
period. 29
(4) The relevant decision-maker may vary or revoke an exemption (including by 30
imposing, varying or revoking a condition of the exemption) at any time by 31
notice in writing to the holder of the authorisation. 32
(5) The regulations may make provision for or with respect to exemptions. 33
Part 4 Variation of authorisations and variation or 34
suspension of their conditions 35
12 Variation of authorisations by relevant decision-maker 36
(1) The relevant decision-maker may vary an authorisation (including the 37
conditions of an authorisation). 38
(2) A variation of an authorisation may include: 39
(a) the attaching of a condition to an authorisation (whether or not any 40
conditions have already been attached), or 41
(b) the substitution of a condition, or 42
(c) the omission of a condition, or 43
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Schedule 1 Amendment of Mining Act 1992 No 29
(d) the amendment of a condition, or 1
(e) the variation of the instrument by which an authorisation is granted, 2
including so as to: 3
(i) update the instrument, or 4
(ii) correct a minor error or misdescription, or 5
(iii) consolidate variations made to the authorisation. 6
(3) An authorisation may be varied on application by the holder of the 7
authorisation or on the initiative of the relevant decision-maker. 8
(4) An authorisation may be varied at any time during its currency, including on 9
its being transferred to another person. 10
(5) Except in the case of the renewal or transfer of an authorisation, the 11
decision-maker is not to vary a prescribed condition subsequent to the grant of 12
the authorisation unless the decision-maker: 13
(a) has given the holder of the authorisation notice of the draft variation, 14
and 15
(b) has invited the making of submissions to the decision-maker about the 16
proposed variation and specified a deadline for the making of those 17
submissions that is at least 28 days after the publication of the notice, 18
and 19
(c) has either received such submissions and has taken them into 20
consideration or has not received any such submission after the deadline 21
has elapsed. 22
(6) An authorisation is varied by notice in writing given to the holder of the 23
authorisation. 24
(7) The variation of a condition by the relevant decision-maker takes effect as 25
follows: 26
(a) if the condition is varied on the renewal of an authorisation--when the 27
renewal takes effect, 28
(b) if the condition is varied when a full or partial transfer of an 29
authorisation is approved under this Act--when the transfer is 30
registered under this Act, 31
(c) if a prescribed condition is varied other than at the renewal of an 32
authorisation or when a full or partial transfer of an authorisation is 33
approved under this Act--28 days after written notice of the variation 34
of the condition is served on the holder of the authorisation or at a later 35
time specified in the notice, 36
(d) in any other case--when written notice of the variation of the condition 37
is served on the holder of the authorisation or at a later time specified in 38
the notice. 39
(8) In this clause: 40
prescribed condition means a condition that is not: 41
(a) imposed on the application of the holder of the authorisation, or 42
(b) imposed under section 246P or 261B. 43
(9) This clause does not apply to a condition that is prescribed by the regulations. 44
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13 Variation of conditions imposed by the regulations 1
(1) Before a regulation is made that varies any condition of an authorisation 2
imposed by the regulations, the relevant decision-maker is required to ensure 3
that: 4
(a) a notice is published in a daily newspaper circulating throughout New 5
South Wales: 6
(i) stating the objects of the proposed regulation, and 7
(ii) advising where a copy of the regulation may be obtained or 8
inspected, and 9
(iii) inviting comments and submissions within a specified time, but 10
not less than 28 days from publication of the notice, and 11
(b) all the comments and submissions received within the time specified in 12
the notice are considered. 13
(2) For the purposes of this clause, a regulation varies a condition of an 14
authorisation if the regulation: 15
(a) imposes a new condition (whether or not any conditions have already 16
been imposed), or 17
(b) substitutes a condition imposed by the regulations, or 18
(c) omits a condition imposed by the regulations, or 19
(d) amends a condition imposed by the regulations. 20
14 Suspension of conditions of authorisations 21
(1) The relevant decision-maker may (whether on the application of the holder of 22
the authorisation or on the initiative of the relevant decision-maker) suspend 23
any of the conditions of an authorisation (other than a mineral claim) for such 24
period, or until the happening of such event, as the relevant decision-maker 25
may determine. 26
(2) The Secretary may (whether on the application of the holder of the claim or 27
otherwise) suspend any of the conditions of a mineral claim (other than 28
conditions of the kind referred to in section 175 (4)) for such period, or until 29
the happening of such event, as the Secretary may determine. 30
(3) A condition of a mineral claim that is suspended on the application of the 31
holder may not be suspended for more than 3 months at a time. 32
(4) The suspension of conditions of an authorisation may be granted 33
unconditionally or subject to such conditions as the relevant decision-maker 34
may consider appropriate. 35
(5) The suspension of the conditions of an authorisation takes effect on the date 36
on which written notice of the suspension is served on the holder of the 37
authorisation or on such later date as may be specified in the notice. 38
(6) An application for suspension of the conditions of an authorisation may be 39
withdrawn by means of a notice of withdrawal signed by the applicant and 40
lodged with the relevant decision-maker. 41
(7) The application ceases to have effect when the notice is lodged. 42
(8) The withdrawal of an application under this clause is irrevocable. 43
(9) The relevant decision-maker may vary the suspension of the conditions of an 44
authorisation (including the conditions to which the suspension is subject). 45
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Schedule 1 Amendment of Mining Act 1992 No 29
(10) A variation includes the attaching of a condition to the suspension, the 1
substitution of a condition, the omission of a condition or the amendment of a 2
condition. 3
(11) A suspension of the conditions of an authorisation is varied by notice in 4
writing given to the holder of the authorisation. 5
(12) The suspension of any condition of an authorisation under this clause does not 6
prevent any action being taken under this Act in respect of the authorisation 7
(including variation under clause 12). 8
(13) This clause does not apply to a condition that is prescribed by the regulations. 9
[128] Schedule 1 Public consultation with respect to the granting of assessment leases 10
and mining leases 11
Omit clause 21 (4) (b). Insert instead: 12
(b) must contain a description, prepared in the approved manner, of the land 13
over which the lease is sought, and 14
[129] Schedule 4 Regulation making powers 15
Omit ", refund or waiver" from clause 8. 16
[130] Schedule 6 Savings, transitional and other provisions 17
Insert after clause 118: 18
118A Delegations of functions under Environmental Planning and Assessment Act 19
1979 20
(1) This clause applies to the exercise of a function purported to be delegated by 21
the Minister under section 153A of the Environmental Planning and 22
Assessment Act 1979 before the substitution of section 363 (1) of this Act by 23
the 2008 Act, whether the delegation was for the purposes associated with 24
functions under this Act or any other Act administered by the Minister. 25
(2) The delegation of any such function is taken to have been validly done on and 26
from the date of the delegation if the delegation could have been made had 27
section 363 (1), as so substituted been in force when the delegation was made. 28
[131] Schedule 6 29
Insert at the end of the Schedule with appropriate Part and clause numbering: 30
Part Provisions consequent on enactment of Mining and 31
Petroleum Legislation Amendment (Harmonisation) 32
Act 2015 33
Definition 34
In this Part: 35
2015 amending Act means the Mining and Petroleum Legislation Amendment 36
(Harmonisation) Act 2015. 37
Pending applications 38
An application for an authorisation, or transfer or renewal of an authorisation, 39
made but not decided before the commencement of this clause and that 40
complied with this Act, as in force before the Act's amendment by the 2015 41
amending Act, is taken to have been duly made under this Act, as amended. 42
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Schedule 1 Amendment of Mining Act 1992 No 29
Existing conditions 1
Subject to this Part, a condition of an authorisation, in force under section 26, 2
44, 70, 238 or 239 immediately before the repeal of that section by the 2015 3
amending Act, continues to have effect and is taken to be a condition imposed 4
under Schedule 1B. 5
Existing suspension of condition of authorisation 6
A condition of an authorisation that was, immediately before the repeal of 7
section 168 by the 2015 amending Act, suspended, is taken to have been 8
suspended under clause 14 of Schedule 1B, on the date of the original 9
suspension. 10
Existing "activity approval" conditions in exploration licences 11
(1) Any condition to which an exploration licence was subject immediately before 12
the commencement of section 23A, as inserted by the 2015 amending Act, that 13
requires approval to carry out operations and that is identified in the licence 14
using one of the following phrases is void: 15
(a) Category 1 prospecting operations, 16
(b) Category 2 prospecting operations, 17
(c) assessable prospecting operations. 18
(2) However, an approval granted pursuant to a condition referred to in 19
subclause (1) that was in force immediately before the commencement of this 20
clause is taken to be an activity approval granted under section 23A and can 21
be varied or voluntarily cancelled accordingly. 22
(3) An application for approval to carry out prospecting operations made in 23
compliance with a condition imposed on an assessment lease under section 44, 24
being an application that had not been dealt with before the commencement of 25
section 44A (as inserted by the 2015 amending Act), is to be dealt with in 26
accordance with section 44A, as if it had been made under that section. 27
(4) For the avoidance of doubt, compliance with section 23A or 44A is required 28
in respect of any assessable prospecting operation (within the meaning of that 29
section) carried out after the commencement of the section, even if it began 30
before the commencement of the section. 31
Existing directions to rehabilitate land 32
A direction given under section 240, as in force before its amendment by the 33
2015 amending Act, and having effect immediately before that amendment, 34
continues in force after that amendment as if section 240 had not been 35
substituted. 36
Environmental information 37
Section 365A, as inserted by the 2015 amending Act, does not apply to 38
information about harm caused, or likely to be caused, to the environment 39
obtained by the Secretary before the commencement of the section. 40
Existing notices and conditions 41
Section 378C, as inserted by the 2015 amending Act, extends to information 42
given after the commencement of that section in compliance with a notice 43
given or condition imposed under this Act before the commencement of that 44
section if the time by which, or period within which, the notice or condition 45
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Schedule 1 Amendment of Mining Act 1992 No 29
must have been complied with had not expired immediately before that 1
commencement. 2
Time for commencement of proceedings 3
Section 378I, as in force before the amendment of that section by the 2015 4
amending Act, continues to apply in relation to proceedings for offences 5
alleged to have been committed before the commencement of the 6
amendments. 7
[132] Schedule 7 Offences 8
Omit the Schedule. 9
[133] Dictionary 10
Insert in alphabetical order: 11
activity approval--see sections 23A and 44A. 12
assessable prospecting operation means any prospecting operation that is not 13
exempt development within the meaning of the Environmental Planning and 14
Assessment Act 1979. 15
director of a body corporate or corporation includes any person involved in the 16
management of the affairs of the body corporate or corporation. 17
enforceable undertaking means an undertaking given under Division 4B of 18
Part 17A. 19
related body corporate has the same meaning as in the Corporations Act 2001 20
of the Commonwealth. 21
resources legislation means this Act, the Petroleum (Onshore) Act 1991 and 22
the regulations and other instruments made under those Acts. 23
work program means a work program referred to in section 129A. 24
[134] Dictionary, definition of "Department" 25
Omit the definition. Insert instead: 26
Department means the Department of Industry, Skills and Regional 27
Development. 28
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Schedule 2 Amendment of Petroleum (Onshore) Act 1991 1
No 84 2
[1] Section 2A 3
Insert after section 2: 4
2A Objects 5
The objects of this Act are to encourage and facilitate the discovery and 6
development of petroleum resources in New South Wales, having regard to the 7
need to encourage ecologically sustainable development, and in particular: 8
(a) to recognise and foster the significant social and economic benefits to 9
New South Wales that result from the efficient development of 10
petroleum resources, and 11
(b) to provide an integrated framework for the effective regulation of titles 12
for petroleum prospecting and mining, and 13
(c) to provide a framework for compensation to landholders for loss or 14
damage resulting from such operations, and 15
(d) to ensure an appropriate return to the State from petroleum resources, 16
and 17
(e) to require the payment of security to provide for the rehabilitation of 18
sites damaged or affected by such operations, and 19
(f) to ensure effective rehabilitation of disturbed land and water, and 20
(g) to ensure petroleum resources are identified and developed in ways that 21
minimise impacts on the environment. 22
[2] Section 3 Definitions 23
Insert in alphabetical order in section 3 (1): 24
activity approval--see sections 31A and 36A. 25
assessable prospecting operation means any prospecting operation that is not 26
exempt development within the meaning of the Environmental Planning and 27
Assessment Act 1979. 28
director of a body corporate or corporation includes any person involved in the 29
management of the affairs of the body corporate or corporation. 30
enforceable undertaking means an undertaking given under Division 6 of 31
Part 13A. 32
environment includes all aspects of the surroundings of humans, whether 33
affecting any human as an individual or in his or her social grouping. 34
function includes a power, authority or duty, and exercise a function includes 35
perform a duty. 36
inspector means an inspector within the meaning of the Mining Act 1992. 37
prospecting operations means operations carried out in the course of 38
prospecting. 39
public authority means a public authority constituted by or under an Act, and 40
includes: 41
(a) a Government Department, and 42
(b) a statutory body representing the Crown, a State owned corporation 43
within the meaning of the State Owned Corporations Act 1989 and a 44
subsidiary (within the meaning of that Act), and 45
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Schedule 2 Amendment of Petroleum (Onshore) Act 1991 No 84
(c) a council, and 1
(d) a member of staff or other person who exercises functions on behalf of 2
a public authority. 3
related body corporate has the same meaning as in the Corporations Act 2001 4
of the Commonwealth. 5
resources legislation means this Act, the Mining Act 1992 and the regulations 6
and other instruments made under those Acts. 7
work program means a work program referred to in section 14. 8
[3] Section 3 (1), definition of "Department" 9
Omit the definition. Insert instead: 10
Department means the Department of Industry, Skills and Regional 11
Development. 12
[4] Part 3 Petroleum titles 13
Insert after the heading to the Part: 14
Note. Schedule 1B contains further provisions about the following: 15
(a) the consideration of applications for the grant, renewal or transfer of petroleum 16
titles, 17
(b) the grounds for refusal of such applications, 18
(c) the imposition of conditions on, and the variation of conditions of, petroleum 19
titles, 20
(d) the variation and suspension of petroleum titles. 21
[5] Section 9 Areas over which petroleum titles may not be granted 22
Omit "The Minister may grant a petroleum title over any onshore area within the State, 23
except" from section 9 (1). 24
Insert instead "The Minister must not grant a petroleum title over any of the following land 25
(the excluded areas)". 26
[6] Section 9 (3)-(6) 27
Omit the subsections. 28
[7] Section 14 29
Omit the section. Insert instead: 30
14 Applications to be supported by proposed work program 31
(1) An application for a petroleum title must be accompanied by a proposed work 32
program that: 33
(a) indicates the nature and extent of operations to be carried out under the 34
authority conferred by the relevant petroleum title, and 35
(b) sets out commitments relating to the conduct of those operations (such 36
as the timing of the operations), and 37
(c) provides for the carrying out of activities (such as community 38
consultation and environmental management and rehabilitation) in 39
connection with, or ancillary to, those operations, and 40
(d) complies with the regulations. 41
(2) In the case of an application for a production lease, the requirement in 42
subsection (1) can be satisfied by providing a current development consent 43
under the Environmental Planning and Assessment Act 1979 for the conduct 44
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of petroleum mining operations, or the construction and maintenance of works 1
or structures, in respect of which the production lease is being applied for. 2
[8] Section 15 Applications to be supported by evidence of financial capability 3
Omit "standing" from section 15 (1) (a). Insert instead "capability". 4
[9] Section 15 (2) and (3) 5
Omit the subsections. 6
[10] Section 16 7
Insert after section 15: 8
16 Grant or refusal of petroleum titles 9
(1) After considering an application for a petroleum title, the Minister: 10
(a) may grant the petroleum title over land of any title or tenure in any 11
onshore area within the State other than an excluded area within the 12
meaning of section 9, or 13
(b) may refuse the application. 14
(2) A petroleum title takes effect on the date on which it is signed by the Minister 15
or on a later date specified in the title. 16
(3) Notification of the grant of a petroleum title or of a refusal to grant an 17
application is to be published in the Gazette. 18
(4) The Minister is to notify the Minister administering the Threatened Species 19
Conservation Act 1995 of the grant of any petroleum title in relation to land 20
that is a biobank site (within the meaning of Part 7A of that Act). 21
Note. Schedule 1B contains provisions about the consideration of applications for 22
petroleum titles and the grounds for refusal of such applications. 23
[11] Section 17 Form of titles 24
Omit the section. 25
[12] Section 19 Renewal of title 26
Insert at the end of section 19 (1): 27
Note. Schedule 1B contains provisions about the consideration of applications for the 28
renewal of petroleum titles and the grounds for refusal of such applications. 29
[13] Section 19 (2AA) and (2AB) 30
Insert after section 19 (2A): 31
(2AA) An application for renewal of an exploration licence: 32
(a) may be made in respect of one or more parts (but not more than such 33
number of parts as may be prescribed by the regulations) of the land 34
comprised in the exploration licence when the application for renewal 35
is made, and 36
(b) if it relates to renewal in respect of part only of the land comprised in 37
the licence--must be accompanied by a description, prepared in the 38
manner prescribed by the regulations, of the land over which renewal of 39
the licence is sought, and 40
(c) may include a description of any special circumstances that the 41
applicant claims (for the purposes of section 19B) exist that justify the 42
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area of land over which the licence is renewed exceeding 75% of the 1
size of: 2
(i) the area over which the licence was originally granted (in the case 3
of a first renewal of the licence), or 4
(ii) the area over which its last previous renewal was granted (in any 5
other case). 6
(2AB) An application for renewal must be accompanied by: 7
(a) the application fee prescribed by the regulations, and 8
(b) any information that is prescribed by the regulations. 9
[14] Section 19 (3) and (3A) 10
Omit the subsections. 11
[15] Section 19 (5) 12
Omit "(including requirements with respect to fees)". 13
[16] Section 19B 14
Insert after section 19A: 15
19B Land over which exploration licences may be renewed 16
(1) The area of land over which an exploration licence may be renewed is not to 17
exceed 75% of the size of: 18
(a) the area over which the licence was originally granted, in the case of a 19
first renewal of the licence, or 20
(b) the area over which its last previous renewal was granted, in any other 21
case. 22
(2) However, the Minister may grant a renewal over more than 75% of the size of 23
the area over which the licence was originally or last granted if: 24
(a) the applicant for renewal claims that special circumstances exist that 25
justify doing so, and 26
(b) the Minister is satisfied that special circumstances exist that justify 27
doing so. 28
(3) Without limiting the considerations available to the Minister in determining 29
whether special circumstances exist for the purposes of this section, the 30
Minister may take into account any partial cancellation of the exploration 31
licence on the request of the holder of the licence under section 22, and reduce 32
the percentage of the area of land over which the renewal may not be granted. 33
(4) The Minister may direct an applicant for renewal of an exploration licence, 34
within the time specified in the direction, to nominate which part of the area 35
of land is sought to be included in the new exploration licence, where the 36
licence may not be renewed over the whole area of land. 37
(5) The Minister may refuse to renew an exploration licence if such a direction is 38
not complied with within the time specified in the direction (in addition to the 39
other grounds for refusal in clause 5 of Schedule 1B). 40
(6) The Minister is not bound to renew an exploration licence over the area 41
nominated by the applicant in compliance with a direction under this section 42
or otherwise. 43
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[17] Section 20A Waiver of minor procedural matters 1
Omit the section. 2
[18] Section 21 Grounds on which application may be refused 3
Omit the section. 4
[19] Sections 22-22B 5
Omit section 22. Insert instead: 6
22 Grounds of cancellation of petroleum titles 7
(1) The Minister may cancel a petroleum title as to the whole or any part of the 8
land to which it relates: 9
(a) if the holder of the petroleum title lodges with the Secretary a request 10
that the Minister cancel the petroleum title as to the whole or part of the 11
land, or 12
(b) if the Minister is satisfied that the holder of the petroleum title has 13
contravened a provision of this Act or the regulations (whether or not 14
the holder is prosecuted or convicted of any offence arising from the 15
contravention), or 16
(c) if the Minister is satisfied that a person has contravened a condition of 17
the petroleum title (whether or not the person is prosecuted or convicted 18
of any offence arising from the contravention), or 19
(d) if the Minister is satisfied that the holder of the petroleum title provided 20
false or misleading information in or in connection with an application 21
for or with respect to the petroleum title or any report provided under 22
this Act, or 23
(e) if the Minister is satisfied that the holder of the petroleum title has failed 24
to comply with the requirements of any agreement or assessment under 25
Part 11 in relation to the payment of compensation, or 26
(f) if the holder of the petroleum title is convicted of any offence relating 27
to prospecting, mining or petroleum, or 28
(g) if the Minister is satisfied that the holder of the petroleum title has failed 29
to use the land the subject of the petroleum title in good faith for the 30
purposes for which the petroleum title has been granted, or has used the 31
land for a purpose other than that for which the petroleum title has been 32
granted, or 33
(h) if the Minister is satisfied that there has been a contravention of a 34
direction under section 75 or 77, or 35
(i) if the Minister is satisfied that the land is required for a public purpose. 36
(2) A request for the cancellation of the petroleum title as to part only of the land 37
to which it relates must be accompanied by a description, prepared in the 38
manner prescribed by the regulations, of the land in respect of which the 39
petroleum title is to be cancelled. 40
(3) Action may be taken under this section whether or not any other action has 41
been taken in respect of the petroleum title under this Act. 42
22A Cancellations of petroleum titles 43
(1) Before cancelling a petroleum title, otherwise than at the request of the holder 44
of the title, the Minister is to cause a written notice to be served on the holder 45
of the title that contains the following: 46
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(a) notice that the title is proposed to be cancelled, 1
(b) details of the grounds for the proposed cancellation, 2
(c) notice that the holder of the title has a specified period (of at least 3
28 days) in which to make representations with respect to the proposed 4
cancellation. 5
(2) The Minister must not cancel a petroleum title, otherwise than at the request 6
of the holder of the title, unless: 7
(a) the Minister has taken any such representations received from the 8
holder of the title into consideration, or 9
(b) the period specified in the notice has elapsed and no such 10
representations have been received. 11
(3) The Minister is to cause written notice of the cancellation of a petroleum title 12
to be given to the holder of the petroleum title. 13
(4) The cancellation takes effect on the date on which the written notice of the 14
cancellation is given to the holder of the petroleum title, or on a later date 15
specified in the notice. 16
(5) The cancellation of a petroleum title does not affect any liability incurred by 17
the holder of the petroleum title before the cancellation took effect. 18
(6) No compensation is payable by the Crown for or in respect of the cancellation 19
of a petroleum title. 20
22B Appeals against decisions concerning cancellations of petroleum titles 21
(1) Any person who is aggrieved by the decision of the Minister to cancel a 22
petroleum title held by the person may appeal to the Land and Environment 23
Court against the decision. 24
(2) Such an appeal is to be made: 25
(a) within 14 days after written notice of the cancellation is served on the 26
holder of the petroleum title, or 27
(b) within such further period as the Land and Environment Court may 28
allow. 29
(3) In deciding whether or not to allow a further period for appeal, the Land and 30
Environment Court is to have regard to: 31
(a) the circumstances that have prevented the appellant from making the 32
appeal within the 14 days referred to in subsection (2) (a), and 33
(b) the consequences to the appellant, and to persons other than the 34
appellant, of a decision allowing a further period for appeal, and 35
(c) the consequences to the appellant, and to persons other than the 36
appellant, of a decision refusing a further period for appeal, and 37
(d) the public interest. 38
(4) An appeal is to be heard by way of a new hearing, and fresh evidence, or 39
evidence additional to the evidence available to the Minister when the decision 40
was made, may be admitted in the hearing. 41
(5) Subject to any order made by the Land and Environment Court, the lodging of 42
an appeal does not operate to stay the decision appealed against. 43
(6) The decision of the Land and Environment Court on an appeal is final and is 44
to be given effect to as if it were the decision of the Minister. 45
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(7) This section does not apply to a cancellation that was requested by the holder 1
of the petroleum title. 2
[20] Sections 23 and 24 3
Omit the sections. 4
[21] Section 24A Fit and proper person consideration in making certain decisions about 5
petroleum titles 6
Omit "section 22 (5)" from section 24A (5). Insert instead "section 22A (6)". 7
[22] Section 24A (5) 8
Omit "or suspension of operations under". 9
[23] Section 28B 10
Insert after section 28A: 11
28B Right to beneficial use of gas yielded through prospecting 12
(1) In addition to the other rights conferred by the title, an exploration licence or 13
assessment lease confers on its holder: 14
(a) the right to carry out such operations as may be described by the 15
regulations to enable the beneficial use of gas recovered from the land 16
comprised in the licence or lease, but only if that gas would otherwise 17
have been flared or released into the atmosphere as part of activities 18
under the licence or lease, and 19
(b) the right to use that gas subject to, and in accordance with, the 20
regulations. 21
(2) The regulations may make provision for or with respect to royalty payable 22
under Part 7 in respect of gas used in accordance with this section. 23
[24] Section 30 Area of exploration licence 24
Omit section 30 (2). Insert at the end of section 30 (1): 25
Note. Section 19B makes provision for the size of the area over which the renewal of 26
an exploration licence may be granted. 27
[25] Section 31A 28
Insert after section 31: 29
31A Activity approval required for assessable prospecting operations 30
(1) An exploration licence is subject to a statutory condition that the holder must 31
not carry out an assessable prospecting operation on land over which the 32
licence is granted unless an activity approval has been obtained for the 33
carrying out of the assessable prospecting operation in relation to that land and 34
is in force. 35
(2) The holder of an exploration licence may apply in writing to the Minister for 36
approval to carry out an assessable prospecting operation in relation to any 37
part of the land over which the licence is granted (an activity approval). 38
(3) The Minister may require the holder of an exploration licence to provide such 39
information as is required by the Minister, within the time specified by the 40
Minister, before considering the application or at any time during 41
consideration of the application. 42
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(4) After considering the application for the activity approval, the Minister: 1
(a) may grant the activity approval, or 2
(b) may refuse the application. 3
(5) Without limiting the grounds for refusal, the application may be refused if the 4
applicant fails to provide the information required by the Minister within the 5
time required. 6
(6) An activity approval may be granted subject to terms. 7
(7) For the purposes of this Act, it is a statutory condition of an exploration licence 8
that the holder must comply with any activity approval granted to the holder 9
and in force. 10
(8) Clauses 6 (2)-(4), 7 (2), 9 and 11 of Schedule 1B apply to and in respect of the 11
imposition of terms on, and variation of terms of, an activity approval in the 12
same way as they apply to and in respect of the imposition of conditions on, 13
and the variation of conditions of, a petroleum title. 14
(9) The Minister may cancel an activity approval: 15
(a) if the holder of the activity approval lodges with the Secretary a request 16
that the Minister cancel the activity approval, or 17
(b) if the Minister is satisfied that a person has contravened the activity 18
approval (whether or not the person is prosecuted or convicted of any 19
offence arising from the contravention). 20
(10) Before cancelling an activity approval, otherwise than at the request of the 21
holder of the activity approval, the Minister is to cause a written notice to be 22
served on the holder of the activity approval that contains the following: 23
(a) notice that the activity approval is proposed to be cancelled, 24
(b) details of the grounds for the proposed cancellation, 25
(c) notice that the holder of the activity approval has a specified period (of 26
at least 28 days) in which to make representations with respect to the 27
proposed cancellation. 28
(11) The Minister must not cancel an activity approval, otherwise than at the 29
request of the holder of the activity approval, unless: 30
(a) the Minister has taken any such representations received from the 31
holder of the activity approval into consideration, or 32
(b) the period specified in the notice has elapsed and no such 33
representations have been received. 34
(12) The Minister is to cause written notice of the cancellation of an activity 35
approval to be given to the holder of the activity approval. 36
(13) The cancellation takes effect on the date on which the written notice of the 37
cancellation is given to the holder of the activity approval, or on a later date 38
specified in the notice. 39
(14) Any person who is aggrieved by the decision of the Minister to cancel an 40
activity approval held by the person may appeal to the Land and Environment 41
Court against the decision. Section 22B applies to such an appeal as if it were 42
an appeal against a decision to cancel a petroleum title. 43
(15) The cancellation of an activity approval does not affect any liability incurred 44
by the holder of the activity approval before the cancellation took effect. 45
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(16) Action may be taken under subsection (9) (b) whether or not any other action 1
has been taken in respect of the activity approval under this Act. 2
[26] Section 32 Direction to holder of exploration licence to apply for lease 3
Omit "Section 22 (4)" from the note to the section. Insert instead "Section 22A (4)". 4
[27] Section 36A 5
Insert after section 36: 6
36A Activity approval required for assessable prospecting operations 7
(1) An assessment lease is subject to a statutory condition that the holder must not 8
carry out an assessable prospecting operation on land over which the lease is 9
granted unless an activity approval has been obtained for the carrying out of 10
the assessable prospecting operation in relation to that land and is in force. 11
(2) The holder of an assessment lease may apply in writing to the Minister for 12
approval to carry out an assessable prospecting operation in relation to any 13
part of the land over which the lease is granted (an activity approval). 14
(3) The Minister may require the holder of an assessment lease to provide such 15
information as is required by the Minister, within the time specified by the 16
Minister, before considering the application or at any time during 17
consideration of the application. 18
(4) After considering the application for the activity approval, the Minister: 19
(a) may grant the activity approval, or 20
(b) may refuse the application. 21
(5) Without limiting the grounds for refusal, the application may be refused if the 22
applicant fails to provide the information required by the Minister within the 23
time required. 24
(6) An activity approval may be granted subject to terms. 25
(7) For the purposes of this Act, it is a statutory condition of an assessment lease 26
that the holder must comply with any activity approval granted to the holder 27
and in force. 28
(8) Clauses 6 (2)-(4), 7 (2), 9 and 11 of Schedule 1B apply to and in respect of the 29
imposition of terms on, and variation of terms of, an activity approval in the 30
same way as they apply to and in respect of the imposition of conditions on, 31
and the variation of conditions of, a petroleum title. 32
(9) The Minister may cancel an activity approval: 33
(a) if the holder of the activity approval lodges with the Secretary a request 34
that the Minister cancel the activity approval, or 35
(b) if the Minister is satisfied that a person has contravened the activity 36
approval (whether or not the person is prosecuted or convicted of any 37
offence arising from the contravention). 38
(10) Before cancelling an activity approval, otherwise than at the request of the 39
holder of the activity approval, the Minister is to cause a written notice to be 40
served on the holder of the activity approval that contains the following: 41
(a) notice that the activity approval is proposed to be cancelled, 42
(b) details of the grounds for the proposed cancellation, 43
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(c) notice that the holder of the activity approval has a specified period (of 1
at least 28 days) in which to make representations with respect to the 2
proposed cancellation. 3
(11) The Minister must not cancel an activity approval, otherwise than at the 4
request of the holder of the activity approval, unless: 5
(a) the Minister has taken any such representations received from the 6
holder of the activity approval into consideration, or 7
(b) the period specified in the notice has elapsed and no such 8
representations have been received. 9
(12) The Minister is to cause written notice of the cancellation of an activity 10
approval to be given to the holder of the activity approval. 11
(13) The cancellation takes effect on the date on which the written notice of the 12
cancellation is given to the holder of the activity approval, or on a later date 13
specified in the notice. 14
(14) Any person who is aggrieved by the decision of the Minister to cancel an 15
activity approval held by the person may appeal to the Land and Environment 16
Court against the decision. Section 22B applies to such an appeal as if it were 17
an appeal against a decision to cancel a petroleum title. 18
(15) The cancellation of an activity approval does not affect any liability incurred 19
by the holder of the activity approval before the cancellation took effect. 20
(16) Action may be taken under subsection (9) (b) whether or not any other action 21
has been taken in respect of the activity approval under this Act. 22
[28] Section 49 Notice of application for production lease to be sent to Public Service 23
agencies 24
Omit "Government Department". Insert instead "Public Service agency". 25
[29] Section 49 26
Omit "that Department". Insert instead "that agency". 27
[30] Section 50 Notice to be sent to Secretary of Department of Planning and 28
Environment 29
Omit "Director of Planning" wherever occurring. 30
Insert instead "Secretary of the Department of Planning and Environment". 31
[31] Section 51 Objection to grant of production lease 32
Omit "Government Department or statutory authority or the Director of Planning". 33
Insert instead "Public Service agency or statutory authority or the Secretary of the 34
Department of Planning and Environment". 35
[32] Section 53 Grant of production lease after objection or proposal 36
Insert after section 53 (3): 37
(4) Despite clauses 9 and 10 of Schedule 1B, a condition included in a production 38
lease in accordance with a direction of the Premier may only be varied with 39
the concurrence of the Premier. 40
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[33] Part 6 Protection of the environment 1
Omit Divisions 1-3. Insert instead: 2
Division 1 Environmental, rehabilitation and other directions 3
74 Interpretation 4
(1) In this Division: 5
responsible person means: 6
(a) in relation to a petroleum title that is in force--the holder of the title, or 7
(b) in relation to a petroleum title that has ceased to be in force--the person 8
who was the holder of the title immediately before it ceased to be in 9
force. 10
(2) In this Division, a reference to giving a direction or notice to a responsible 11
person includes, where the responsible person is a corporation that is subject 12
to a scheme of arrangement, receivership, winding up or other external 13
administration, a reference to giving a direction or notice to the administrator, 14
receiver or liquidator of the corporation. 15
75 Directions 16
(1) The Secretary or an inspector may, by written notice, direct a responsible 17
person in relation to a petroleum title to do any one or more of the following: 18
(a) to give effect to a condition of the petroleum title (except a condition 19
requiring payment of royalty or provision or maintenance of a security 20
deposit), 21
(b) to address any adverse impact that activities carried out under, or 22
purportedly carried out under, the petroleum title have had on any 23
aspect of the environment, 24
(c) to address a risk of there being such an impact, 25
(d) to conserve the environment, protect it from harm as a result of 26
activities under the title or to prevent, control or mitigate any such harm, 27
(e) to rehabilitate land or water that is or may be affected by activities under 28
the title. 29
(2) A direction may require a responsible person to carry out or stop carrying out 30
particular activities, carry out activities in a particular manner or achieve 31
specified outcomes within such period (if any) as is specified in the direction 32
or any condition specified in the direction. 33
(3) A direction served on a person under this section may require the person to 34
prepare, and submit to the Secretary or inspector, reports as to any of the 35
following: 36
(a) the measures the person proposes to take for the purpose of complying 37
with the direction, 38
(b) the progress made by the person in implementing any such measures. 39
76 Prohibition notices 40
(1) If the Secretary or an inspector reasonably suspects that a person who is not 41
the holder of a petroleum title is carrying out, or is about to carry out, any 42
activity in contravention of a provision of this Act requiring a petroleum title 43
to be held when carrying out the activity, the Secretary or inspector may direct 44
the person to discontinue that activity on the land specified in the notice. 45
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(2) The direction may be given orally, but must be confirmed by written notice (a 1
prohibition notice) issued to the person as soon as practicable. 2
(3) A prohibition notice must state: 3
(a) the reasons for the issue of the prohibition notice, and 4
(b) the activity concerned, and 5
(c) the provision of this Act that the Secretary or inspector believes is 6
being, or is likely to be, contravened by that activity. 7
77 Direction to suspend operations 8
(1) The Secretary may, by written notice (a suspension notice), direct a 9
responsible person to suspend (for such period as is specified in the direction 10
or until further notice) all, or any specified, operations under a petroleum title 11
or an activity approval relating to the operations if the Secretary considers that: 12
(a) circumstances exist that could constitute a ground for cancellation of the 13
petroleum title under section 22 (1) (b)-(g), or 14
(b) circumstances exist that could constitute a ground for cancellation of the 15
petroleum title under section 22 (1) (h), in relation to a contravention of 16
a direction under section 75 only, or 17
(c) on any other ground specified in the regulations. 18
(2) Before giving a suspension notice, the Secretary is to: 19
(a) cause written notice of the proposed suspension notice and the grounds 20
for it to be served on the holder of the relevant petroleum title, and 21
(b) give the holder of the relevant petroleum title a reasonable opportunity 22
to make representations with respect to the proposed suspension notice, 23
and 24
(c) take any such representations into consideration. 25
(3) The suspension notice takes effect on the date on which it is given to the holder 26
of the relevant petroleum title or on a later date specified in the notice. 27
(4) The suspension of a petroleum title does not affect any liability incurred by the 28
holder of the relevant petroleum title before the suspension took effect. 29
(5) The holder of the relevant petroleum title is not entitled to compensation 30
merely because of the suspension of operations under the petroleum title or an 31
activity approval in accordance with a suspension notice. 32
(6) If a suspension notice under this section is issued to a person who is not the 33
current holder of the relevant petroleum title, the Secretary must cause a copy 34
of the notice to be served on any current holder within 5 days after the notice 35
is issued. 36
(7) A direction served on a person under this section may require the person to 37
prepare, and submit to the Secretary or inspector, reports as to any of the 38
following: 39
(a) the measures the person proposes to take for the purpose of complying 40
with the direction, 41
(b) the progress made by the person in implementing any such measures. 42
78 Revocation or variation 43
(1) A direction under this Division may be revoked or varied by a subsequent 44
direction issued in accordance with this Division. 45
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(2) A direction may be varied by modification of, or addition to, its terms and 1
specifications or any condition specified in the direction. 2
(3) Without limiting the above, a direction or notice may be varied by extending 3
the time for complying with the direction or the period of suspension. 4
78A Breach of direction or notice 5
A person must comply with a direction or notice issued to the person under this 6
Division, unless the person has a reasonable excuse for not doing so. 7
Maximum penalty: 8
(a) in the case of a corporation--10,000 penalty units, and, in the case of a 9
continuing offence, a further penalty of 1,000 penalty units for each day 10
that the offence continues, or 11
(b) in the case of a natural person--2,000 penalty units, and, in the case of 12
a continuing offence, a further penalty of 200 penalty units for each day 13
that the offence continues. 14
78B Effect of direction 15
The issuing of a direction under this Division does not affect: 16
(a) the liability of any person to any penalty for an offence in relation to a 17
petroleum title, or 18
(b) the amount of security deposit that is or may be required under a 19
petroleum title, or 20
(c) the operation of any other provision of this Act or the regulations that 21
requires or enables other action to be taken in relation to any 22
contravention or other circumstances to which the direction relates. 23
Note. For example, the issuing of a direction does not affect the power to cancel a 24
petroleum title under section 22A on a ground specified in section 22. 25
78C Fee 26
(1) The purpose of this section is to enable the recovery of the administrative costs 27
of preparing and issuing a direction under this Division (not including a 28
direction that varies an earlier direction under this Division). 29
(2) A person to whom a direction is issued must, within 30 days, pay the fee 30
prescribed by the regulations to the Secretary. 31
(3) A fee payable under this section is a debt due by the holder of the petroleum 32
title concerned to the Crown and is recoverable in a court of competent 33
jurisdiction. 34
78D Rehabilitation by Minister at holder's expense 35
(1) If a person on whom a direction is served under this Division does not comply 36
with the direction, the Minister may take any action necessary to give effect to 37
the direction. 38
(2) Any costs or expenses incurred by the Crown under this section are a debt due 39
to the Crown by the person on whom the direction was served and are 40
recoverable in a court of competent jurisdiction. 41
(3) An authorised person may enter any land and do anything that in the person's 42
opinion is necessary for or in connection with the taking of that action 43
(including gaining access from that land to other land). 44
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(4) However, an authorised person must not enter land unless the person: 1
(a) has given the occupier of the land reasonable notice of the person's 2
intention to do so, and 3
(b) enters the land at a reasonable time (except in the case of an 4
emergency), and 5
(c) uses no more force than is reasonably necessary to effect entry, and 6
(d) before entering any premises on the land that are used only for 7
residential purposes--has obtained the permission of the occupier of 8
those premises. 9
(5) A person who suffers damage caused by the taking of any action under this 10
section is entitled to be paid reasonable compensation by the person who failed 11
to comply with the direction (as referred to in subsection (1)). 12
(6) Parts 11 and 12 apply (with such modifications as may be prescribed by the 13
regulations) to that compensation as if it were compensation payable under 14
Part 11. 15
(7) In this section: 16
authorised person means: 17
(a) a person engaged in connection with the taking of steps under 18
subsection (1), or 19
(b) the Secretary, or 20
(c) a person authorised in writing by the Secretary for the purposes of this 21
section, or 22
(d) an inspector. 23
78E Recovery of costs of rehabilitation 24
(1) In any proceedings for the recovery of a debt due to the Crown under this 25
Division, a certificate that is signed by the Minister and that states that a 26
specified amount is the amount of the debt so due is admissible in evidence in 27
all courts and is evidence of that fact. 28
(2) A debt due to the Crown under this Division is recoverable whether or not the 29
person by whom it is due is prosecuted or convicted of an offence under this 30
Division. 31
78F Prior notice of direction under section 75 or 76 not required 32
A person who gives a direction under section 75 or 76 is not required to notify 33
any person who may be affected by the direction before giving the direction. 34
[34] Part 6, Division 5 35
Insert after Division 4: 36
Division 5 Audits 37
83A Relationship of this Division to other provisions 38
This Division does not affect any other provision of this Act that: 39
(a) enables a petroleum title to be subject to a condition requiring 40
monitoring or reporting, or 41
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(b) relates to functions exercisable by persons for the purpose of auditing 1
compliance with this Act, the regulations or conditions of petroleum 2
titles. 3
83B Nature of audit 4
An audit under this Division is a periodic or particular documented evaluation 5
of prospecting or mining for petroleum (including management practices, 6
systems and plant) for any one or more of the following purposes: 7
(a) to provide information on compliance or otherwise with obligations 8
under the petroleum title or other related legal requirements under this 9
or any other law (including in relation to the protection of the 10
environment from the impacts of, or the rehabilitation of land affected 11
by, activities under the title), 12
(b) to provide information on compliance or otherwise with codes of 13
practice or policies relevant to the petroleum title, 14
(c) to enable a determination of whether the way activities are being carried 15
out under the petroleum title can be improved in order to protect the 16
environment. 17
83C Accreditation and regulation of auditors 18
The regulations may make provision for or with respect to either or both of the 19
following: 20
(a) the accreditation of auditors for the purposes of this Division, 21
(b) the carrying out of audits by auditors. 22
83D Conditions for mandatory audits 23
(1) A condition that requires one or more mandatory audits to be undertaken, to 24
the satisfaction of the Secretary, for any one or more of the purposes referred 25
to in section 83B (a mandatory audit condition) may be imposed on a 26
petroleum title by the regulations or the Minister in accordance with Part 3 of 27
Schedule 1B. 28
(2) A mandatory audit condition must specify the purpose or purposes of the audit. 29
(3) A mandatory audit condition may require any one or more of the following: 30
(a) appointment of an auditor to undertake the audit, 31
(b) approval by the Secretary of the auditor before being appointed, 32
(c) preparation of particular written documentation during the course of the 33
audit, 34
(d) preparation of an audit report, 35
(e) production to the Secretary of the audit report. 36
(4) A mandatory audit condition may also: 37
(a) specify the format and level of detail required for the audit, or 38
(b) require the auditor to submit the proposed format and level of detail to 39
the Secretary for approval. 40
(5) A mandatory audit condition may be varied by written notice served on the 41
holder of the petroleum title and otherwise in accordance with Part 4 of 42
Schedule 1B. 43
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(6) A condition imposed under this section takes effect on the date on which 1
written notice of the condition is served on the holder of the petroleum title or 2
on any later date specified in the notice. 3
(7) This section does not affect the operation of the following provisions of the 4
Environmental Planning and Assessment Act 1979: 5
(a) section 89K (Approvals etc legislation that must be applied 6
consistently), 7
(b) section 93 (Granting and modification of approval by approval body), 8
(c) section 115ZH (Approvals etc legislation that must be applied 9
consistently). 10
83E Certification of audit report 11
The audit report for a mandatory audit is taken not to have been duly produced 12
to the Secretary unless it is accompanied by: 13
(a) a declaration signed by the holder of the petroleum title certifying that 14
the holder has not knowingly provided any false or misleading 15
information to the auditor and has provided all relevant information to 16
the auditor, and 17
(b) a declaration signed by the auditor: 18
(i) setting out the auditor's qualifications, and 19
(ii) certifying that the report is accurate, and that the auditor has not 20
knowingly included any false or misleading information in it or 21
failed to include any relevant information in it. 22
83F Offences relating to audit information 23
(1) A person who provides information to an auditor in connection with a 24
mandatory audit, knowing the information to be false or misleading in a 25
material respect, is guilty of an offence. 26
(2) The holder of a petroleum title who fails to provide information to an auditor 27
in connection with a mandatory audit being carried out in relation to the 28
petroleum title, knowing the information to be materially relevant to the audit, 29
is guilty of an offence. 30
(3) An auditor who includes information in an audit report produced to the 31
Secretary in connection with a mandatory audit, knowing the information to 32
be false or misleading in a material respect, is guilty of an offence. 33
(4) An auditor who fails to provide information in an audit report produced to the 34
Secretary in connection with a mandatory audit, knowing the information to 35
be materially relevant to the audit, is guilty of an offence. 36
(5) The holder of a petroleum title who: 37
(a) fails to retain any written documentation required to be prepared by the 38
holder in connection with a mandatory audit for a period of at least 5 39
years after the audit report concerned was produced to the Secretary (or 40
such other period as is prescribed by the regulations), or 41
(b) fails to produce during that period any such documentation to the 42
Secretary on request, 43
is guilty of an offence. 44
Maximum penalty: 45
(a) in the case of a corporation--1,000 penalty units, or 46
(b) in the case of a natural person--500 penalty units. 47
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83G Self-incriminatory information not exempt 1
Information must be supplied by a person in connection with a mandatory 2
audit, and this Division applies to any such information that is supplied, 3
whether or not the information might incriminate the person. 4
83H Use of information 5
(1) Any information in an audit report or other documentation supplied to the 6
Secretary in connection with a mandatory audit may be supplied by the 7
Secretary to, and taken into consideration by, any person who has functions 8
under this Act, the Environmental Planning and Assessment Act 1979 or the 9
environment protection legislation and may be used by that person for the 10
purposes of those laws. 11
(2) Without limiting subsection (1): 12
(a) the Secretary is authorised, despite any other Act or law, to provide a 13
relevant agency with any such information, and 14
(b) any such information is admissible in evidence in any prosecution of the 15
holder of a petroleum title for any offence (whether under this Act or 16
otherwise). 17
(3) In this section, relevant agency means the Department, or a public authority 18
engaged in administering or executing the environment protection legislation, 19
the Environmental Planning and Assessment Act 1979 or such other 20
legislation, if any, as may be prescribed by the regulations. 21
83I Nature of voluntary audit 22
(1) For the purposes of this Division, a voluntary audit is an audit commissioned 23
or carried out voluntarily, whether or not in relation to activities carried out 24
under a petroleum title. 25
(2) An audit is not voluntary if there is a contemporaneous requirement for a 26
mandatory audit in relation to the same or substantially the same activity or 27
other matter and the audits are to be carried out by the same person. 28
83J Protected documents 29
(1) Documents prepared for the sole purpose of a voluntary audit are protected 30
documents for the purposes of this Act. 31
(2) The protected documents include the final report of the audit and any 32
documents prepared during the course of the audit for the sole purpose of the 33
audit. 34
(3) Without affecting the generality of subsection (1) or (2), documents are not 35
protected if they are prepared wholly or partly in connection with monitoring 36
or reporting that is required by any conditions of a petroleum title or by a 37
direction under section 75 or 77. 38
83K Nature of protection 39
(1) A protected document: 40
(a) is not admissible in evidence against any person in any proceedings 41
connected with the administration or enforcement of this Act, the 42
environment protection legislation or such other legislation, if any, as 43
may be prescribed by the regulations, and 44
(b) must not be inspected, copied, seized or otherwise obtained by the 45
Department, any authority prescribed by the regulations or any other 46
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person for any purpose connected with such administration or 1
enforcement. 2
(2) Neither the Department, a prescribed authority nor any other person may, for 3
the purpose referred to in subsection (1) (b), require a person to answer any 4
question or provide any information about the existence of the document or 5
about what it contains. 6
(3) The onus of establishing that a document is a protected document lies on the 7
person asserting that it is protected. 8
(4) A court may inspect any document that is claimed to be a protected document 9
for the purpose of determining whether it is or is not a protected document. 10
(5) The regulations may prescribe procedures for making and determining claims 11
that a document is a protected document. 12
83L Lifting of protection 13
(1) Documents prepared in relation to a voluntary audit cease to be protected if the 14
person asserting or relying on the protection uses or relies on (or attempts to 15
use or rely on) the whole or any part of one or more of the documents, whether 16
directly or indirectly, in any proceedings connected with the administration or 17
enforcement of this Act, the environment protection legislation or such other 18
legislation, if any, as may be prescribed. 19
(2) This section does not apply where the person is using or relying on (or 20
attempting to use or rely on) a document for the purpose of establishing that 21
the document is protected. 22
[35] Section 91 Payment of royalty 23
Insert after section 91 (1): 24
(1A) If a person who is liable to pay royalty fails to pay it as required by subsection 25
(1), the person is guilty of an offence. 26
Maximum penalty: 27
(a) in the case of a corporation--10,000 penalty units, and, in the case of a 28
continuing offence, a further penalty of 1,000 penalty units for each day 29
that the offence continues, or 30
(b) in the case of a natural person--2,000 penalty units or imprisonment for 31
12 months, or both, and, in the case of a continuing offence, a further 32
penalty of 200 penalty units for each day that the offence continues. 33
[36] Section 91A 34
Insert after section 91: 35
91A Refunds and rebates of royalties 36
(1) The regulations may make provision for or with respect to the refund or rebate 37
of royalty payable or paid under this Act. 38
(2) Without limiting subsection (1), the regulations may prescribe the criteria for 39
eligibility for a refund or rebate, which may include that a contribution has 40
been made for the purpose of funding any programs for the benefit of the 41
community. 42
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[37] Section 94C Fees payable in respect of petroleum title 1
Insert after section 94C (2): 2
(3) The holder of a petroleum title must not fail to pay any annual rental fee or 3
administrative levy payable under this Part for the petroleum title. 4
Maximum penalty: 5
(a) in the case of a corporation--100 penalty units, or 6
(b) in the case of a natural person--50 penalty units. 7
[38] Section 94P Failure to pay fee 8
Omit the section. 9
[39] Section 94T 10
Insert after section 94S: 11
94T Waiver or refund of fees 12
(1) The Secretary may refund or waive payment of the whole or any part of a fee 13
that this Act requires to be paid, on his or her own initiative or on the 14
application of the person who is required to pay the fee, if the Secretary is 15
satisfied that there is good cause for doing so. 16
(2) The regulations may make further provision for the waiver or refund of fees 17
payable under this Act. 18
[40] Section 96 Applications for transfer of title 19
Insert at the end of section 96 (3): 20
Note. Schedule 1B makes provision about the consideration of applications for the 21
transfer of a petroleum title and the grant or refusal of such an application. 22
[41] Part 8A 23
Insert after Part 8: 24
Part 8A Records and reports 25
97A Keeping of geological plans, maps and records 26
To the extent required by the regulations, every holder of a petroleum title 27
must: 28
(a) keep accurate geological plans, maps and records relating to the land 29
comprised in the title, and 30
(b) furnish to the Minister such geological and other plans and information 31
as to the progress of operations on such land as the Minister may from 32
time to time require. 33
97B Furnishing of statistics, returns and other information 34
(1) Every holder of a petroleum title and any other person carrying on any 35
operation in connection with any such title who is called on to do so must, at 36
such times and in such manner as the Minister may require, furnish such 37
statistics, returns and other information as may be required and must keep such 38
records as may be necessary for the completion of any such statistics and 39
returns. 40
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(2) Any information required under this section in respect of any particulars 1
supplied in or omitted from a return must be furnished within such period as 2
may be specified by the Minister. 3
(3) Statistics, returns and other information obtained pursuant to this section, are 4
to be treated as confidential, but the Minister may cause to be published or 5
otherwise made available the results of such statistics, returns and other 6
information with respect to the whole of New South Wales or any portion of 7
the State and such details furnished on an individual return (other than details 8
relating to working expenses) as the Minister may think fit. 9
(4) A person who contravenes this section is guilty of an offence. 10
Maximum penalty: 200 penalty units. 11
97C Reports 12
(1) The holder of a petroleum title must prepare and lodge reports of all operations 13
carried out under the petroleum title. 14
Note. Clause 6 (2) (g) of Schedule 1B provides that reports may also be required by 15
the conditions of a petroleum title. 16
(2) The regulations may make provision for or with respect to the following: 17
(a) the content, form or lodgment of the reports, 18
(b) the exemption of any person, class of persons, petroleum titles or class 19
of petroleum titles from a requirement of this section or the regulations 20
under this section. 21
(3) A person who fails, without reasonable excuse, to prepare or lodge a report in 22
accordance with this section or the regulations is guilty of an offence. 23
Maximum penalty: 24
(a) in the case of a corporation--10,000 penalty units, and, in the case of a 25
continuing offence, a further penalty of 1,000 penalty units for each day 26
that the offence continues, or 27
(b) in the case of a natural person--2,000 penalty units, and, in the case of 28
a continuing offence, a further penalty of 200 penalty units for each day 29
that the offence continues. 30
(4) If there is an inconsistency between a condition of a petroleum title and a 31
reporting requirement imposed under this section, the condition prevails to the 32
extent of the inconsistency. 33
97D Record-keeping 34
Any record required to be created and maintained under this Act, the 35
regulations, a condition of a petroleum title or a term of an activity approval 36
must be kept in a legible form, or in a form that can readily be reduced to a 37
legible form for production to any inspector. 38
97E Retention of records relating to petroleum titles 39
The holder of a petroleum title must retain any records required to be created 40
and maintained under this Act, the regulations, a condition of a petroleum title 41
or a term of an activity approval in relation to the petroleum title for not less 42
than 4 years after the expiry or cancellation of the petroleum title. 43
97F Information or return provided, served or lodged by agents 44
Any information or return received from or served or lodged by an agent duly 45
appointed and notified in accordance with the regulations on behalf of any of 46
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the following persons is taken to have been received from or served or lodged 1
by that person: 2
(a) the holder of a petroleum title, 3
(b) an applicant for a petroleum title or for the renewal, transfer or 4
cancellation of a petroleum title, 5
(c) an applicant for an activity approval or for the cancellation of an activity 6
approval, 7
(d) any person who owns or occupies land over which a petroleum title is 8
in force or to which an application for a petroleum title relates. 9
97G Samples of strata, petroleum and water 10
(1) The holder of a petroleum title must collect any samples of strata, petroleum, 11
water or any other thing, as required by the regulations. 12
(2) Those samples must be collected, labelled for reference or preserved in the 13
manner required by the regulations. 14
[42] Part 9 15
Omit the Part. Insert instead: 16
Part 9 Powers of entry and inspection 17
Division 1 Preliminary 18
98 Purposes for which powers under Part may be exercised 19
Powers may be exercised under this Part for the following purposes: 20
(a) for determining whether there has been compliance with or a 21
contravention of this Act or the regulations or any petroleum title, 22
direction, notice or requirement issued or made under this Act, 23
(b) for obtaining information or records for purposes connected with the 24
administration of this Act, 25
(c) generally for administering this Act. 26
99 Effect on other functions 27
Nothing in this Part: 28
(a) affects any function under any other Part of this Act or under any other 29
Act, or 30
(b) limits the conditions that may be attached to a petroleum title. 31
Division 2 Powers to require information and records 32
100 Application of Division 33
This Division applies whether or not a power of entry under Division 3 is being 34
or has been exercised. 35
101 Requirement to provide information and records 36
(1) An inspector may, by written notice given to a person, require the person to 37
furnish to the inspector such information or records (or both) as the inspector 38
requires by the notice in connection with any matter relating to the 39
administration of this Act. 40
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(2) The notice must specify the manner in which the information or records are 1
required to be furnished and a reasonable time by which the information or 2
records are required to be furnished. 3
(3) If a record required to be furnished under the notice is in electronic, 4
mechanical or other form, the notice requires the record to be furnished in 5
written form, unless the notice otherwise provides. 6
(4) The notice may only require a person to furnish existing records that are in the 7
person's possession or that are within the person's power to obtain lawfully. 8
(5) The inspector to whom a record is furnished under the notice may take copies 9
of the record. 10
Division 3 Powers of entry and search 11
102 Powers to enter premises 12
(1) An inspector may enter: 13
(a) any premises at which the inspector reasonably suspects that any 14
prospecting operations or mining of petroleum are being or are about to 15
be carried out, at any time, and 16
(b) any premises that the inspector reasonably suspects have been, are 17
being or are likely to be affected by prospecting operations or mining of 18
petroleum, at any time, and 19
(c) any premises where the inspector reasonably believes that documents 20
that relate to any activity referred to in paragraph (a) or (b) are kept, at 21
any time. 22
(2) The power to enter premises authorises entry by foot or by means of a motor 23
vehicle or other vehicle, or by an aircraft, or in any other manner. 24
(3) Entry may be effected with the aid of such police officers or other inspectors 25
as the inspector considers necessary and with the use of reasonable force. 26
(4) Entry may be effected to any premises with the authority of a search warrant 27
under section 104A. 28
103 Entry into residential premises only with permission or warrant 29
This Division does not entitle an inspector to enter any part of premises used 30
only for residential purposes without the permission of the occupier or the 31
authority of a search warrant under section 104A. 32
104 Powers of inspectors to do things at premises 33
(1) An inspector may, at any premises lawfully entered, do anything that in the 34
opinion of the inspector is necessary to be done for the purposes of this Part, 35
including (but not limited to) the things specified in subsection (2). 36
(2) An inspector may do any or all of the following: 37
(a) examine and inspect any works, plant, vehicle, aircraft or other article, 38
(b) take and remove samples, 39
(c) make such examinations, inquiries and tests as the inspector considers 40
necessary, 41
(d) take such photographs, films, audio, video and other recordings as the 42
inspector considers necessary, 43
(e) require records to be produced for inspection, 44
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(f) examine and inspect any records, 1
(g) take extracts from, or a copy of, any records, 2
(h) seize anything that the inspector has reasonable grounds for believing is 3
connected with an offence against this Act or the regulations, 4
(i) for the purposes of paragraph (h), direct the occupier of the premises 5
where the thing is seized to retain it at those premises or at another place 6
under the control of the occupier, 7
(j) do any other thing the inspector is empowered to do under this Part. 8
(3) The power to seize anything connected with an offence includes a power to 9
seize: 10
(a) a thing with respect to which the offence has been committed, and 11
(b) a thing that will afford evidence of the commission of the offence, and 12
(c) a thing that was used for the purpose of committing the offence. 13
A reference to any such offence includes a reference to an offence that there 14
are reasonable grounds for believing has been committed. 15
104A Search warrants 16
(1) An inspector may apply to an authorised officer within the meaning of the Law 17
Enforcement (Powers and Responsibilities) Act 2002 for the issue of a search 18
warrant if the inspector believes on reasonable grounds that: 19
(a) a provision of this Act or the regulations is being or has been 20
contravened at any premises, or 21
(b) there is in or on any premises matter or a thing that is connected with an 22
offence under this Act or the regulations. 23
(2) An authorised officer within the meaning of the Law Enforcement (Powers 24
and Responsibilities) Act 2002 to whom an application is made may, if 25
satisfied that there are reasonable grounds for doing so, issue a search warrant 26
authorising an inspector named in the warrant: 27
(a) to enter the premises, and 28
(b) to exercise any function of an inspector under this Part. 29
(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 30
2002 applies to a search warrant issued under this section. 31
(4) Definitions 32
In this section: 33
matter or a thing that is connected with an offence means: 34
(a) matter or a thing with respect to which the offence has been committed, 35
or 36
(b) matter or a thing that will afford evidence of the commission of an 37
offence, or 38
(c) matter or a thing that was used, or is intended to be used, for the purpose 39
of committing the offence. 40
offence includes an offence that there are reasonable grounds for believing has 41
been, or is to be, committed. 42
104B Inspectors may request assistance 43
A person may accompany an inspector and take all reasonable steps to assist 44
the inspector in the exercise of his or her functions under this Part if the 45
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inspector is of the opinion that the person is capable of providing assistance to 1
the inspector in the exercise of those functions. 2
104C Assistance to be given to inspectors 3
(1) This section applies for the purpose of enabling an inspector to exercise any of 4
the powers of an inspector under this Part in connection with any premises. 5
(2) The Secretary may, by written notice given to the owner or occupier of the 6
premises, require the owner or occupier to provide such reasonable assistance 7
and facilities as are specified in the notice within a specified time and in a 8
specified manner. 9
(3) Assistance and facilities can be required under this section, whether they are 10
of the same kind as, or a different kind from, any prescribed by the regulations. 11
104D Care to be taken 12
In the exercise of a power of entering or searching premises under this Part, 13
the inspector must do as little damage as possible. 14
104E Compensation 15
The Crown is to compensate all interested parties for any damage caused by 16
an inspector, a person employed in the Department, a geologist, a geophysicist 17
or a geochemist in exercising a power under this Part of entering premises (but 18
not any damage caused by the exercise of any other power), unless the 19
occupier obstructed or hindered the inspector or other person in the exercise of 20
the power of entry. 21
104F Power of inspectors to require answers 22
(1) An inspector may require a person whom the inspector suspects on reasonable 23
grounds to have knowledge of matters in respect of which information is 24
reasonably required for a purpose to which this Part applies to answer 25
questions in relation to those matters. 26
(2) The Secretary may, by written notice, require a corporation to nominate, in 27
writing within the time specified in the notice, a director or officer of the 28
corporation to be the corporation's representative for the purpose of answering 29
questions under this section. 30
(3) Answers given by a person nominated under subsection (2) bind the 31
corporation. 32
(4) An inspector may, by written notice, require a person to attend at a specified 33
place and time to answer questions under this section if attendance at that place 34
is reasonably required in order that the questions can be properly put and 35
answered. 36
(5) The place and time at which a person may be required to attend is to be: 37
(a) a place or time nominated by the person, or 38
(b) if the place and time nominated is not reasonable in the circumstances, 39
or a place and time is not nominated by the person--a place and time 40
nominated by the inspector that is reasonable in the circumstances. 41
104G Recording of evidence 42
(1) An inspector may cause any questions and answers to questions given under 43
this Part to be recorded if the inspector has informed the person who is to be 44
questioned that the record is to be made. 45
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(2) A record may be made using sound recording apparatus or audio visual 1
apparatus, or any other method determined by the inspector. 2
(3) A copy of any such record must be provided by the inspector to the person who 3
is questioned as soon as practicable after it is made. 4
(4) A record may be made under this section despite the provisions of any other 5
law. 6
104H Power of inspectors to demand name and address 7
(1) An inspector may require a person whom the inspector suspects on reasonable 8
grounds to have offended or to be offending against a provision of this Act or 9
the regulations to state his or her full name and residential address. 10
(2) An inspector may request a person who is required under this section to state 11
his or her full name and residential address to provide proof of the name and 12
address. It is not an offence under section 104O to fail to comply with any such 13
request. 14
(3) The maximum penalty for an offence under section 104O in connection with 15
a requirement under this section is 100 penalty units, despite anything to the 16
contrary in that section. 17
104I Application of Division 18
The powers in sections 104F, 104G and 104H may be exercised whether or not 19
a power of entry in this Division is being or has been exercised. 20
Division 4 Powers with respect to articles 21
104J Application of Division 22
Nothing in this Division limits the functions that may be exercised under any 23
other Division of this Part. 24
104K Power to inspect and test 25
(1) An inspector may, for the purposes of this Part, inspect and test any article. 26
(2) The inspector may, for the purposes of any such inspection or testing: 27
(a) enter the article, and 28
(b) enter, in accordance with this Act, the premises where the article is 29
located, and 30
(c) operate the article, and 31
(d) take photographs or video films of the article, and 32
(e) inspect or test any substance being carried by the article or in any 33
container on the article, and 34
(f) take a sample of any such substance for testing. 35
(3) In this section: 36
article includes any plant, motor or other vehicle, aircraft, vessel or other thing 37
of any description. 38
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Division 5 Other entry powers 1
104L Survey 2
(1) Any person employed in the Department authorised by the Secretary for the 3
purposes of this Part, or a registered surveyor so authorised, may at all 4
reasonable times enter any land with such assistants as he or she may think 5
necessary: 6
(a) for the purpose of carrying out any survey, or 7
(b) for the purpose of defining any road, or 8
(c) for the purpose of carrying out a geological or geophysical survey, or 9
(d) for any other purpose authorised by this Act or the regulations. 10
(2) In this section, registered surveyor means a registered land surveyor or 11
registered mining surveyor within the meaning of the Surveying and Spatial 12
Information Act 2002. 13
104M Sampling 14
A geologist, geophysicist or geochemist employed in the Department and 15
authorised by the Secretary for the purposes of this Part may, at all reasonable 16
times, enter any land with such assistants as he or she may think necessary for 17
the purpose of removing any sample of petroleum, water or strata. 18
104N Notice to landholder 19
(1) Before a person enters any land pursuant to this Division, the person must: 20
(a) if practicable, give reasonable notice to the landholder of the person's 21
intention to do so, and 22
(b) if required by that landholder, produce evidence that the person is 23
authorised by the Secretary for the purposes of this Part. 24
(2) Evidence referred to in subsection (1) (b) is to be in the form prescribed by the 25
regulations. 26
(3) In this section, landholder includes a secondary landholder. 27
Division 6 General 28
104O Offences 29
(1) A person who, without lawful excuse, neglects or fails to comply with a 30
requirement made of the person under this Part is guilty of an offence. 31
(2) A person who wilfully delays or obstructs an inspector in the exercise of the 32
inspector's powers under this Part is guilty of an offence. 33
(3) A person who impersonates an inspector is guilty of an offence. 34
Maximum penalty: 35
(a) in the case of a corporation--10,000 penalty units, and, in the case of a 36
continuing offence, a further penalty of 1,000 penalty units for each day 37
that the offence continues, or 38
(b) in the case of a natural person--2,000 penalty units, and, in the case of 39
a continuing offence, a further penalty of 200 penalty units for each day 40
that the offence continues. 41
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104P Provisions relating to requirements to furnish records or information or 1
answer questions 2
(1) Warning to be given on each occasion 3
A person is not guilty of an offence of failing to comply with a requirement 4
under this Part to furnish records or information or to answer a question unless 5
the person was warned on that occasion that a failure to comply is an offence. 6
(2) Self-incrimination not an excuse 7
A person is not excused from a requirement under this Part to furnish records 8
or information or to answer a question on the ground that the record, 9
information or answer might incriminate the person or make the person liable 10
to a penalty. 11
(3) Information or answer not admissible if objection made 12
However, any information furnished or answer given by a natural person in 13
compliance with a requirement under this Part is not admissible in evidence 14
against the person in criminal proceedings (except proceedings for an offence 15
under this Part) if: 16
(a) the person objected at the time to doing so on the ground that it might 17
incriminate the person, or 18
(b) the person was not warned on that occasion that the person may object 19
to furnishing the information or giving the answer on the ground that it 20
might incriminate the person. 21
(4) Records admissible 22
Any record furnished by a person in compliance with a requirement under this 23
Part is not inadmissible in evidence against the person in criminal proceedings 24
on the ground that the record might incriminate the person. 25
(5) Further information 26
Further information obtained as a result of a record or information furnished 27
or of an answer given in compliance with a requirement under this Part is not 28
inadmissible on the ground: 29
(a) that the record or information had to be furnished or the answer had to 30
be given, or 31
(b) that the record or information furnished or answer given might 32
incriminate the person. 33
(6) Section extends to requirement to state name and address 34
This section extends to a requirement under this Part to state a person's name 35
and address. 36
104Q Revocation or variation 37
(1) A notice given under this Part may be revoked or varied by a subsequent notice 38
or notices. 39
(2) A notice may be varied by modification of, or addition to, its terms and 40
specifications. 41
(3) Without limiting subsection (2), a notice may be varied by extending the time 42
for complying with the notice. 43
(4) A notice may only be revoked or varied by an inspector (whether or not the 44
inspector who gave the notice). 45
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[43] Section 106B Security required to be given 1
Insert after section 106B (6): 2
(7) A condition may be imposed under this section in relation to any impact that 3
is the result of work carried out under the relevant petroleum title, whether or 4
not that impact is in relation to land over which the petroleum title is to be or 5
was granted. 6
[44] Parts 12-13A 7
Omit Parts 12 and 13. Insert instead: 8
Part 12 Land and Environment Court proceedings 9
112B Jurisdiction of Land and Environment Court 10
(1) The Land and Environment Court has jurisdiction to hear and determine 11
proceedings relating to any of the following matters: 12
(a) any demand concerning the ascertainment and adjustment of 13
boundaries of land held under a petroleum title, or occupied by virtue of 14
an easement or right of way granted under this Act, where such 15
boundaries are in dispute or doubtful--in which case the Court is to 16
ascertain and determine such boundaries by such means as may be 17
found convenient, and may make and give all such orders and directions 18
as may be necessary for the purpose of carrying out or giving effect to 19
its determination, 20
(b) the right to the occupation of areas of land comprised in a petroleum title 21
and the right to or ownership of petroleum and other materials obtained 22
from them, 23
(c) the right to the use of areas of land comprised in an easement or right of 24
way granted under this Act, 25
(d) any encroachments on, infringements of or damage to any land 26
comprised in a petroleum title, 27
(e) any encroachments on, infringements of or damage to an easement or 28
right of way granted under this Act, 29
(f) any demand for debt or damages or both arising out of or made in 30
respect of any contract whatever relating to the search for or mining of 31
petroleum, 32
(g) the right to any petroleum in or to be taken out of any land comprised in 33
a petroleum title or in respect of any matter concerning or arising out of 34
any contract relating to any such petroleum, 35
(h) any demand concerning or arising out of any partnership or joint 36
venture for or in relation to the search for or mining of petroleum in any 37
land comprised in or held under any petroleum title, easement or right 38
of way granted under this Act, or any partnership or joint venture in any 39
such land, or in any works, machinery or petroleum, or concerning or 40
arising out of any contract for or in connection with any such search or 41
mining, or for the dissolution wholly or in part of any such partnership 42
or joint venture, 43
(i) any demand concerning contributions to calls or to the expense of 44
working or using any such land or works or any share or interest in any 45
such contributions, 46
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(j) any demand concerning or arising out of any mortgage or assignment 1
by way of security of or charge on any such land, works, machinery, 2
petroleum or any share or interest in any such mortgage or assignment, 3
(k) any demand concerning the cancellation and delivery up of instruments 4
relating to: 5
(i) mortgages, charges or encumbrances of or on any such land, 6
works, machinery or petroleum, or any share or interest in them, 7
or 8
(ii) any assignment of such mortgages, charges and encumbrances, 9
or 10
(iii) any contract respecting the working or use of any such land, 11
works or machinery or any partnership or joint venture for or in 12
relation to the search for or mining of petroleum or the total or 13
partial dissolution of any such partnership or joint venture, 14
(l) any money claimed to be due on any account relating to a partnership or 15
joint venture for or in relation to the search for or mining of petroleum 16
or in any way accruing to the complainant from any such partnership or 17
joint venture, or any adventure or interest, 18
(m) any question or dispute as to: 19
(i) the validity of a petroleum title, or 20
(ii) the decision of the Minister in relation to an application for the 21
granting, renewal or transfer of a petroleum title, or 22
(iii) the decision of the Minister to cancel a petroleum title, 23
(n) the recovery of any money which any person is liable to pay under this 24
Act or the regulations and for which no other mode of recovery is 25
provided under this Act or the regulations, 26
(o) all questions and disputes which may arise: 27
(i) between holders of petroleum titles, or 28
(ii) between holders of petroleum titles and landholders, 29
(p) all questions or disputes which may arise as to operations on or the 30
working or management of the land comprised in a petroleum title, 31
(q) any other matter in respect of which jurisdiction is conferred on the 32
Court by this Act. 33
(2) Nothing in this section limits or restricts the jurisdiction conferred on any 34
other court by any other Act or law. 35
112C Land and Environment Court may order deposit of petroleum, money or 36
chattels or prohibit extraction of petroleum 37
(1) On application by any party to proceedings in the Land and Environment 38
Court, the Court may order any other party to the proceedings: 39
(a) to deposit, pending its decision, any petroleum, money or chattels: 40
(i) the right to which will, in the opinion of the Court, be put in issue 41
in the course of those proceedings, and 42
(ii) which may then be in, or at any time before the termination of the 43
proceedings may come into, the possession or control of that 44
other party, or 45
(b) not to extract any petroleum the right to which will, in the opinion of the 46
Court, be put in issue in the course of those proceedings. 47
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(2) An order under subsection (1) (a) must specify the thing to be so deposited and 1
must direct the deposit to be made, at or before a time specified in the order, 2
with a person or at a place so specified. 3
112D Land and Environment Court may grant injunction 4
(1) If an application is made to the Land and Environment Court by a person 5
claiming to hold a legal or equitable interest in any land subject to a petroleum 6
title, or in any property, the Court may, on such terms as to costs or otherwise 7
as it may consider just, grant an injunction restraining any specified person: 8
(a) from encroaching on, occupying, using or working the land or property, 9
or 10
(b) from seeking or extracting any petroleum from the land, or 11
(c) from selling or disposing of or otherwise interfering with the property, 12
or 13
(d) from doing any act that may affect the interest concerned in the whole, 14
or any part, of the land or property. 15
(2) An injunction remains in force for the period specified in the injunction, unless 16
it is sooner discharged. 17
112E Granting of injunctions in cases of urgency 18
(1) If an applicant for an injunction satisfies the Land and Environment Court that 19
there are urgent reasons for granting the injunction, the Court may, in any case 20
in which the Court might otherwise grant an injunction, grant an injunction to 21
have effect for a period of not more than 2 months (including the day on which 22
the injunction is made) without notice of the application having been served 23
on any other party. 24
(2) The Land and Environment Court may not grant a continuance of an 25
injunction granted under this section, and may not grant a further injunction 26
under this section, but application for a further injunction may be made under 27
section 112D, either during or after the period of the injunction granted under 28
this section. 29
112F Orders protecting adjacent petroleum titles 30
(1) The holder of a petroleum title over land which is adjacent to: 31
(a) land that is the subject of an injunction, or 32
(b) land on which is located property that is the subject of an injunction, 33
may apply to the Land and Environment Court for an order permitting the land 34
or property under injunction to be worked so as to prevent or minimise damage 35
to or depreciation of the land over which the petroleum title is held. 36
(2) The Land and Environment Court: 37
(a) may order, on such terms as the Court thinks fit, such working of that 38
land or property as in the Court's opinion will be sufficient to prevent 39
that damage or depreciation, and 40
(b) may make such further order as to the cost of that working as the Court 41
considers just. 42
(3) An order may not be made under this section unless the applicant shows to the 43
satisfaction of the Land and Environment Court that the petroleum title 44
concerned will sustain damage or be materially depreciated in value by reason 45
of the non-working of the land or property under injunction. 46
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112G Court may order payment of money or delivery of petroleum 1
(1) If any money or petroleum is claimed in the Land and Environment Court, the 2
Court may order the payment of such money or the delivery of such petroleum 3
as it may find to be due or deliverable by one party to another, where possible. 4
(2) If such a claim arises out of a petroleum mining partnership, adventure or 5
interest, the Land and Environment Court may take accounts in respect of that 6
partnership, adventure or interest, to the extent to which it may be necessary 7
to ascertain what money or petroleum (if any) is so due by one party to the 8
other, and may make such further order as it considers just. 9
(3) If the Land and Environment Court orders payment of money in respect of any 10
debt, damages, costs or otherwise, the Court may make a further order: 11
(a) that any petroleum in the possession, and being the property, of the 12
party directed to make the payment must (to the extent in value of the 13
payment as estimated by the Court) be delivered up to the party entitled 14
to the payment, and 15
(b) that the petroleum to that extent be seized and delivered accordingly. 16
(4) If such a further order is made, the order for payment of money may only be 17
enforced in respect of any balance remaining due after deducting the value of 18
the petroleum so delivered to the party entitled to payment. 19
Part 12A Administration 20
113A Exclusion of personal liability 21
An act or omission of: 22
(a) the Minister or the Secretary, or 23
(b) a member of staff of the Department, or 24
(c) a body constituted under this Act, a member of any such body or a 25
member of staff of any such body, or 26
(d) an authorised person within the meaning of section 78D, or 27
(e) a person acting under the direction of a person or body referred to in 28
paragraph (a), (b), (c) or (d), 29
does not subject the Minister, the Secretary, or any such member or member 30
of staff or any person so acting, personally to any action, liability, claim or 31
demand if the act or omission was done or omitted in good faith and for the 32
purpose of executing this Act. 33
113B Delegation of functions by Minister or Secretary 34
(1) The Minister may delegate any of the following functions (except this power 35
of delegation) of the Minister to any person: 36
(a) any function under this Act, 37
(b) any function under the Environmental Planning and Assessment Act 38
1979. 39
(2) The Secretary may delegate any function under this Act (except this power of 40
delegation or any function delegated to the Secretary by the Minister) to any 41
person. 42
(3) A reference in this section to a function under this Act includes a reference to 43
a function under the regulations and a function under a condition of a 44
petroleum title. 45
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113C Minister or officer not to be interested in petroleum title 1
(1) A person must not, while holding office in an official capacity for the purposes 2
of this Act and while exercising functions in that capacity, hold either directly 3
or indirectly a beneficial interest in a petroleum title. 4
Maximum penalty: 200 penalty units. 5
(2) The following are persons who hold office in an official capacity for the 6
purposes of this Act: 7
(a) the Minister, 8
(b) an inspector, 9
(c) a Public Service employee, who exercises functions under this Act or 10
the Mining Act 1992, 11
(d) any other person who exercises any judicial or official functions under 12
this Act or the Mining Act 1992. 13
Part 13 Release of information 14
Division 1 Preliminary 15
113D Definitions 16
(1) In this Part, a reference to a core, cutting or sample includes a reference to a 17
portion of a core, cutting or sample. 18
(2) For the purposes of this Part: 19
(a) cores and cuttings, and well data logs, sample descriptions and other 20
documents, relating to the drilling of a well, are taken to have been 21
furnished to the Minister not later than one month after the drilling of 22
the well was, in the opinion of the Minister, substantially completed, 23
and 24
(b) geophysical or geochemical data relating to geophysical or geochemical 25
surveys are taken to have been furnished to the Minister not later than 26
one year after the geophysical or geochemical field work was, in the 27
opinion of the Minister, substantially completed. 28
(3) A reference to information furnished to the Minister under this Act includes a 29
reference to a return or other information relating to royalty under this Act that 30
is obtained by the Minister, or a delegate of the Minister, from a tax officer 31
(within the meaning of the Taxation Administration Act 1996). 32
Division 2 Release of certain data, samples and work programs 33
113E Release of certain data 34
The Minister may, at any time later than 2 years after being furnished with the 35
information: 36
(a) make publicly known, or 37
(b) on request by a person and, if the Minister so requires, on payment of 38
the fee prescribed by the regulations, make available to that person, 39
any information that has been furnished to the Minister under this Act, being 40
information that relates to the subsoil, or to petroleum, in a block, but not 41
including any matter contained in a report, return or document that, in the 42
opinion of the Minister, is a conclusion drawn in whole or in part from, or an 43
opinion based in whole or in part on, any such information. 44
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113F Release of samples 1
(1) The Minister may, at any time later than 2 years after being furnished with 2
them: 3
(a) make publicly known any particulars of, or 4
(b) on request by a person and, if the Minister so requires, on payment of 5
the fee prescribed by the regulations, permit that person to inspect, 6
any cores or cuttings from, or samples of, the subsoil in a block, or samples of 7
petroleum recovered in a block, that have been furnished to the Minister under 8
this Act. 9
(2) Except as provided by subsection (1), or for the purposes of the administration 10
of this Act and the regulations, the Minister must not permit any person to 11
inspect any core, cutting or sample furnished to the Minister under this Act. 12
113G Release of summaries of work programs 13
The Minister may, at any time: 14
(a) make publicly known, or 15
(b) on request by a person and, if the Minister so requires, on payment of 16
the fee prescribed by the regulations, make available to that person, 17
a summary of any work program that has been furnished to the Minister under 18
this Act, including a work program that has been varied during the life of a 19
petroleum title. 20
Division 3 Release of assessments, subject to objections 21
113H Release of assessments 22
The Minister may, at any time later than 5 years after being furnished with the 23
information: 24
(a) make publicly known, or 25
(b) on request by a person and, if the Minister so requires, on payment of 26
the fee prescribed by the regulations, make available to that person, 27
any information that has been furnished to the Minister under this Act, being 28
information that relates to the subsoil, or to petroleum, in a block, and that, in 29
the opinion of the Minister, is a conclusion drawn in whole or in part from, or 30
an opinion based in whole or in part on, any such information. 31
113I Invitation of objections to release of assessments 32
(1) Before the Minister makes available or publicly known any information under 33
section 113H, the Minister must, if it is practicable to do so, serve a notice on 34
each interested person: 35
(a) stating that the Minister proposes to make the information available or 36
publicly known, and 37
(b) inviting persons having a right to make an objection to give to the 38
Minister, by such day as is specified in the notice (being a day not earlier 39
than 45 days after the publication of the notice), a notice objecting to the 40
whole or any part of the information being made available or publicly 41
known, and 42
(c) stating that, if a person does not make an objection in accordance with 43
the invitation, the person will be taken to have consented to the 44
information being made available or publicly known. 45
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(2) In this section: 1
interested person means any of the following: 2
(a) the person who furnished the document containing the information, 3
(b) any transferee of a petroleum title transferred by the person who 4
furnished the document containing the information, 5
(c) any other person whose lawful business, commercial or financial affairs 6
could reasonably be expected to be adversely affected by the disclosure. 7
113J Objections 8
(1) A person has no right to make an objection to information being made 9
available or publicly known under section 113H except on the grounds that to 10
do so would disclose a trade secret or would disclose other information the 11
disclosure of which would, or could reasonably be expected to, adversely 12
affect the person in respect of his or her lawful business, commercial or 13
financial affairs. 14
(2) A notice of objection must set out the reasons for making the objection. 15
113K Consideration of objections 16
(1) The Minister must consider any objection received and must determine it by 17
allowing the objection wholly or in part or by rejecting it. 18
(2) The Minister is to notify the objector in writing of the decision. 19
(3) The Minister cannot make available or make publicly known any information 20
under section 113H while an objection is undetermined. 21
Division 4 Use and disclosure of information 22
113L Documents or information provided under conditions requiring reporting 23
(1) Any document or information provided under a condition of a petroleum title 24
referred to in clause 6 (2) (g) of Schedule 1B may be taken into consideration 25
by the Secretary or the Minister and used for the purposes of this Act, 26
including for the purposes of the prosecution of offences under this Act or the 27
regulations. 28
(2) The Secretary is authorised, despite any other Act or law, to provide a relevant 29
agency with any such document or information. 30
(3) Any such document or information is required to be provided by the holder of 31
a petroleum title, whether or not the document or information might 32
incriminate the holder. 33
(4) However, information provided by a natural person in compliance with a 34
condition of a petroleum title referred to in clause 6 (2) (g) of Schedule 1B is 35
not admissible in evidence against the person in criminal proceedings (other 36
than proceedings for an offence for providing false and misleading 37
information) if the person, when providing the information, objected to the 38
provision of the information on the grounds that it might incriminate him or 39
her. 40
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(5) In this section: 1
relevant agency means: 2
(a) the Department, or 3
(b) a public authority engaged in administering or executing the 4
environment protection legislation, the Environmental Planning and 5
Assessment Act 1979 or such other legislation, if any, as may be 6
prescribed by the regulations. 7
113M Disclosure of information 8
(1) A person must not disclose any information obtained in connection with the 9
administration or execution of this Act, unless the disclosure is made: 10
(a) with the consent of the person from whom the information was 11
obtained, or 12
(b) in accordance with Division 2 or 3, or 13
(c) in connection with the administration or execution of this Act, or 14
(d) for the purposes of any legal proceedings arising out of this Act or of 15
any report of any such proceedings, or 16
(e) with the concurrence of the Minister, or 17
(f) in accordance with a requirement imposed under the Government 18
Information (Public Access) Act 2009, or 19
(g) by an inspector or a member of staff of the Department who exercises 20
functions under this Act or the Mining Act 1992 to an officer or 21
authority engaged in administering or executing the environment 22
protection legislation, the Environmental Planning and Assessment Act 23
1979, work health and safety legislation (within the meaning of the 24
Mining Act 1992) or any other legislation prescribed by the regulations, 25
or 26
(h) in accordance with the regulations. 27
Maximum penalty: 100 penalty units. 28
(2) A reference in this section to information obtained in connection with the 29
administration or execution of this Act includes a reference to a return or other 30
information relating to royalty under this Act that is obtained by the Minister, 31
or a delegate of the Minister, from a tax officer (within the meaning of the 32
Taxation Administration Act 1996). 33
113N Exchange of information 34
(1) The regulator may enter into an arrangement (an information sharing 35
arrangement) with a relevant agency for the purposes of sharing or 36
exchanging any information that is held by the regulator or the agency. 37
(2) The information to which an information sharing arrangement may relate is 38
limited to information that assists the regulator or relevant agency: 39
(a) to determine applications made under the resources legislation or 40
legislation made under the corresponding law of another jurisdiction, or 41
(b) to determine whether to cancel, revoke, suspend or vary a petroleum 42
title, activity approval or other approval, or an exemption or declaration, 43
that is granted, made or given under that legislation, or 44
(c) to facilitate the carrying out of inspections, probity checks or other 45
enforcement action under that legislation. 46
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(3) Under an information sharing arrangement, the regulator and the relevant 1
agency are, despite any other Act or law of the State, authorised: 2
(a) to request and receive information that is held by the other party to the 3
arrangement, and 4
(b) to disclose that information to the other party. 5
(4) In this section: 6
regulator means the Minister or the Secretary. 7
relevant agency means any of the following: 8
(a) a government agency or holder of a statutory office with any functions 9
similar to or related to those imposed on the regulator by or under the 10
resources legislation, 11
(b) any government agency of the Commonwealth or another State or 12
Territory with functions similar to or related to those imposed on the 13
regulator under any of the resources legislation, 14
(c) any other person or body, or person or body of a class, prescribed by the 15
regulations. 16
Part 13A Offences, enforcement and undertakings about 17
contraventions 18
Division 1 Offences 19
125B Obstruction 20
A person must not, without reasonable excuse, obstruct, hinder or resist any of 21
the following persons in the exercise of a function under this Act: 22
(a) an inspector, 23
(b) an authorised person within the meaning of section 78D, 24
(b) a member of staff of the Department, or Public Service employee, who 25
exercises functions under this Act or the Mining Act 1992, 26
(c) any other person who exercises any judicial or official functions under 27
this Act or the Mining Act 1992. 28
Maximum penalty: 29
(a) in the case of a corporation--10,000 penalty units, or 30
(b) in the case of an individual--2,000 penalty units. 31
125C Obstruction of holder of petroleum title 32
A person must not, without reasonable excuse, obstruct or hinder the holder of 33
a petroleum title from doing any act that the holder is authorised by this Act to 34
do. 35
Maximum penalty: 100 penalty units. 36
125D Providing false or misleading information 37
A person must not provide any information, record or return in purported 38
compliance with any requirement by or under this Act: 39
(a) knowing that the information, record or return is false or misleading in 40
a material particular, or 41
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(b) being reckless as to whether the information, record or return is false or 1
misleading in a material particular. 2
Maximum penalty: 3
(a) in the case of a corporation--1,000 penalty units, or 4
(b) in the case of a natural person--500 penalty units. 5
125E Contravention of condition of petroleum title--offence by holder 6
(1) If a condition of a petroleum title is contravened by any person, each holder of 7
the petroleum title is guilty of an offence. 8
Maximum penalty: 9
(a) in the case of a corporation--10,000 penalty units, or 10
(b) in the case of a natural person--2,000 penalty units. 11
Note. An offence against subsection (1) committed by a corporation is an executive 12
liability offence attracting executive liability for a director or other person involved in the 13
management of the corporation--see section 125H. 14
(2) In imposing a penalty under this section, the court is to take into consideration 15
the following (so far as they are relevant): 16
(a) the extent of the harm caused or likely to be caused to the environment 17
by the commission of the offence, 18
(b) the practical measures that may be taken to prevent, control, abate or 19
mitigate that harm, 20
(c) the extent to which the person who committed the offence could 21
reasonably have foreseen the harm caused or likely to be caused to the 22
environment by the commission of the offence, 23
(d) the extent to which the person who committed the offence had control 24
over the causes that gave rise to the offence, 25
(e) any other matters the court considers relevant. 26
125F Defences 27
(1) It is a defence to a prosecution of the holder of a petroleum title for an offence 28
against section 125E if the holder establishes that: 29
(a) the contravention of the condition was by, or caused by, another person, 30
and 31
(b) the other person was not associated with the holder at the time the 32
condition was contravened, and 33
(c) the holder took all reasonable steps to prevent the contravention of the 34
condition. 35
(2) A person is associated with the holder for the purposes of subsection (1) (b) 36
(but without limiting any other circumstances of association) if the person is 37
an employee, agent, licensee, contractor or subcontractor of the holder. 38
(3) It is a defence to a prosecution for an offence against section 125E if the 39
defendant satisfies the court that the act or omission constituting the 40
contravention was reasonably necessary in order for the defendant to comply 41
with: 42
(a) an order or direction (of which the Secretary was given notice before the 43
acts or omissions occurred) issued under the mine safety legislation, the 44
Environmental Planning and Assessment Act 1979 or the Protection of 45
the Environment Operations Act 1997, or 46
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(b) a condition of a petroleum title, or 1
(c) a direction under this Act. 2
(4) In this section: 3
mine safety legislation means the Work Health and Safety Act 2011 and any 4
other legislation that is prescribed by the regulations. 5
125G Aiding and abetting commission of offence 6
A person who: 7
(a) causes or permits the commission of an offence against this Act or the 8
regulations, or 9
(b) aids, abets, counsels or procures another person to commit an offence 10
against this Act or the regulations, or 11
(c) attempts to commit an offence against this Act or the regulations, or 12
(d) conspires to commit an offence against this Act or the regulations, 13
is guilty of that offence and liable to the penalty prescribed by this Act or the 14
regulations in relation to that offence. 15
125H Liability of directors etc for offences by corporation--offences attracting 16
executive liability 17
(1) For the purposes of this section, an executive liability offence is an offence 18
against section 7, 78A or 125E that is committed by a corporation. 19
(2) A person commits an offence against this section if: 20
(a) a corporation commits an executive liability offence, and 21
(b) the person is: 22
(i) a director of the corporation, or 23
(ii) an individual who is involved in the management of the 24
corporation and who is in a position to influence the conduct of 25
the corporation in relation to the commission of the executive 26
liability offence, and 27
(c) the person: 28
(i) knows or ought reasonably to know that the executive liability 29
offence (or an offence of the same type) would be or is being 30
committed, and 31
(ii) fails to take all reasonable steps to prevent or stop the 32
commission of that offence. 33
Maximum penalty: The maximum penalty for the executive liability offence if 34
committed by an individual. 35
(3) The prosecution bears the legal burden of proving the elements of the offence 36
against this section. 37
(4) The offence against this section can only be prosecuted by a person who can 38
bring a prosecution for the executive liability offence. 39
(5) This section does not affect the liability of the corporation for the executive 40
liability offence, and applies whether or not the corporation is prosecuted for, 41
or convicted of, the executive liability offence. 42
(6) This section does not affect the application of any other law relating to the 43
criminal liability of any persons (whether or not directors or other managers of 44
the corporation) who are accessories to the commission of the executive 45
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liability offence or are otherwise concerned in, or party to, the commission of 1
the executive liability offence. 2
(7) In this section: 3
director has the same meaning it has in the Corporations Act 2001 of the 4
Commonwealth. 5
reasonable steps, in relation to the commission of an executive liability 6
offence, includes, but is not limited to, such action (if any) of the following 7
kinds as is reasonable in all the circumstances: 8
(a) action towards: 9
(i) assessing the corporation's compliance with the provision 10
creating the executive liability offence, and 11
(ii) ensuring that the corporation arranged regular professional 12
assessments of its compliance with the provision, 13
(b) action towards ensuring that the corporation's employees, agents and 14
contractors are provided with information, training, instruction and 15
supervision appropriate to them to enable them to comply with the 16
provision creating the executive liability offence so far as the provision 17
is relevant to them, 18
(c) action towards ensuring that: 19
(i) the plant, equipment and other resources, and 20
(ii) the structures, work systems and other processes, 21
relevant to compliance with the provision creating the executive 22
liability offence are appropriate in all the circumstances, 23
(d) action towards creating and maintaining a corporate culture that does 24
not direct, encourage, tolerate or lead to non-compliance with the 25
provision creating the executive liability offence. 26
125I Liability of directors etc for offences by corporation--accessory to the 27
commission of the offences 28
(1) For the purposes of this section, a corporate offence is an offence against this 29
Act or the regulations that is capable of being committed by a corporation, 30
whether or not it is an executive liability offence referred to in section 125H. 31
(2) A person commits an offence against this section if: 32
(a) a corporation commits a corporate offence, and 33
(b) the person is: 34
(i) a director of the corporation, or 35
(ii) an individual who is involved in the management of the 36
corporation and who is in a position to influence the conduct of 37
the corporation in relation to the commission of the corporate 38
offence, and 39
(c) the person: 40
(i) aids, abets, counsels or procures the commission of the corporate 41
offence, or 42
(ii) induces, whether by threats or promises or otherwise, the 43
commission of the corporate offence, or 44
(iii) conspires with others to effect the commission of the corporate 45
offence, or 46
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(iv)is in any other way, whether by act or omission, knowingly 1
concerned in, or party to, the commission of the corporate 2
offence. 3
Maximum penalty: The maximum penalty for the corporate offence if 4
committed by an individual. 5
(3) The prosecution bears the legal burden of proving the elements of the offence 6
against this section. 7
(4) The offence against this section can only be prosecuted by a person who can 8
bring a prosecution for the corporate offence. 9
(5) This section does not affect the liability of the corporation for the corporate 10
offence, and applies whether or not the corporation is prosecuted for, or 11
convicted of, the corporate offence. 12
(6) This section does not affect the application of any other law relating to the 13
criminal liability of any persons (whether or not directors or other managers of 14
the corporation) who are concerned in, or party to, the commission of the 15
corporate offence. 16
125J Continuing offences 17
(1) If an offence against a provision of this Act is committed by a person by reason 18
of a continuing act or omission: 19
(a) the person is liable, in addition to the penalty otherwise applicable to the 20
offence, to a penalty for each day during which the act or omission 21
continues of the amount specified for that offence, and 22
(b) if the act or omission continues after the person is convicted of the 23
offence, the person is guilty of a further offence against that provision 24
and liable, in addition to the penalty otherwise applicable to the further 25
offence, to a penalty for each day during which the act or omission 26
continues after that conviction of the amount specified for that offence. 27
(2) An obligation to do something is to be regarded as continuing until the act is 28
done despite the fact that a period within which, or time before which, the act 29
is required to be done has expired or passed. 30
(3) An omission is to be regarded as continuing for as long as the thing required 31
to be done remains undone after the end of the period for compliance with the 32
requirement. 33
(4) However, this section does not apply to an offence if the relevant provision of 34
this Act or the regulations does not provide for a penalty for a continuing 35
offence. 36
Division 2 Proceedings for offences 37
125L Proceedings for offences 38
(1) Proceedings for an offence against this Act or the regulations are, except as 39
provided by this section, to be dealt with summarily by: 40
(a) the Land and Environment Court, or 41
(b) the Local Court. 42
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(2) If proceedings for an offence against this Act or the regulations are brought in 1
the Local Court: 2
(a) the maximum period of imprisonment that the Court may impose is 3
12 months, and 4
(b) the maximum monetary penalty that the Court may impose is 5
2,000 penalty units. 6
(3) Proceedings against an individual for an offence of mining in contravention of 7
section 7 or 91 may be taken on indictment. 8
125M Time within which summary proceedings may be commenced 9
(1) Proceedings for an offence under this Act or the regulations may be 10
commenced: 11
(a) in the case of an offence under section 7, 78A, 83F, 91, 104O, 125B 12
or 125E--within but not later than 3 years after the date on which the 13
offence is alleged to have been committed, or 14
(b) in any other case--within but not later than 12 months after that date. 15
(2) Proceedings for an offence under this Act or the regulations may also be 16
commenced: 17
(a) in the case of an offence under section 7, 78A, 83F, 91, 104O, 125B 18
or 125E--within but not later than 3 years after the date on which 19
evidence of the alleged offence first came to the attention of an 20
inspector, or 21
(b) in any other case--within but not later than 12 months after that date. 22
(3) If subsection (2) is relied on for the purpose of commencing proceedings for 23
an offence, the court attendance notice or application must contain particulars 24
of the date on which evidence of the offence first came to the attention of an 25
inspector and need not contain particulars of the date on which the offence was 26
committed. 27
(4) The date on which evidence first came to the attention of an inspector is the 28
date specified in the court attendance notice or application, unless the contrary 29
is established. 30
(5) This section applies only to proceedings that are to be dealt with summarily. 31
(6) This section applies despite anything in the Criminal Procedure Act 1986 or 32
any other Act. 33
(7) In this section: 34
evidence of an offence means evidence of any act or omission constituting the 35
offence. 36
125N Penalty notices for offences 37
(1) An authorised officer may serve a penalty notice on a person if it appears to 38
the officer that the person has committed an offence against this Act or the 39
regulations, being an offence prescribed by the regulations as a penalty notice 40
offence. 41
(2) A penalty notice is a notice to the effect that, if the person served does not wish 42
to have the matter determined by a court, the person can pay, within the time 43
and to the person specified in the notice, the amount of the penalty prescribed 44
by the regulations for the offence if dealt with under this section. 45
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(3) A penalty notice under this section is declared to be a penalty notice for the 1
purposes of the Fines Act 1996. 2
(4) A penalty notice may be served personally or by post. 3
(5) If the amount of penalty prescribed for an alleged offence is paid under this 4
section, no person is liable to any further proceedings for the alleged offence. 5
(6) Payment under this section is not to be regarded as an admission of liability for 6
the purpose of, and does not in any way affect or prejudice, any civil claim, 7
action or proceeding arising out of the same occurrence. 8
(7) The regulations may: 9
(a) prescribe an offence for the purposes of this section by specifying the 10
offence or by referring to the provision creating the offence, and 11
(b) prescribe the amount of penalty payable for the offence if dealt with 12
under this section, and 13
(c) prescribe different amounts of penalties for different offences or classes 14
of offences. 15
(8) The amount of a penalty prescribed under this section for an offence is not to 16
exceed the maximum amount of penalty that could be imposed for the offence 17
by a court. 18
(9) This section does not limit the operation of any other provision of, or made 19
under, this or any other Act relating to proceedings that may be taken in 20
respect of offences. 21
(10) In this section, authorised officer means a member of staff of the Department 22
who exercises functions under this Act or the Mining Act 1992 authorised in 23
writing by the Department as an authorised officer for the purposes of this 24
section. 25
Division 3 Restraining orders 26
125O Application of Division 27
(1) This Division applies where: 28
(a) proceedings have been commenced against a person for an offence 29
against this Act or the regulations and, as a result of those proceedings, 30
the person may be required to pay an amount referred to in 31
section 125ZD, or 32
(b) proceedings have been commenced against a person under 33
section 125ZD. 34
(2) In this Division: 35
the defendant means the person referred to in subsection (1) (a) or (b). 36
125P Nature of restraining order 37
A restraining order is an order of a court directing that any property of the 38
defendant is not to be disposed of, or otherwise dealt with, by the defendant or 39
by any other person, except in such manner and in such circumstances (if any) 40
as are specified in the order. 41
125Q Application for restraining order 42
(1) A person bringing proceedings (as referred to in section 125O) may apply for 43
a restraining order in relation to property of the defendant. 44
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(2) An application under this section may be made to the Land and Environment 1
Court. 2
(3) On an application under this section: 3
(a) the court may, if it thinks fit, require the person making the application 4
to give notice of the application to a person who the court has reason to 5
believe has an interest in the property or part of the property, and 6
(b) a person to whom the court requires notice be given under paragraph (a) 7
is entitled to appear and to adduce evidence at the hearing of the 8
application. 9
125R Making of restraining order 10
On an application under section 125Q, the court may make a restraining order 11
in relation to the defendant's property if it is satisfied (on the information 12
contained in or accompanying the application) that: 13
(a) the defendant has committed the relevant offence, and 14
(b) amounts are or are likely to be payable under section 125ZD or 125ZE, 15
and 16
(c) it is appropriate to make an order under this section in the circumstances 17
of the case. 18
125S Undertakings 19
The court may refuse to make a restraining order if the person making the 20
application refuses or fails to give to the court such undertakings as the court 21
considers appropriate with respect to the payment of damages or costs, or both, 22
in relation to the making or operation of the order. 23
125T Ancillary orders 24
(1) A court that makes a restraining order may make any ancillary orders that the 25
court considers appropriate. 26
(2) Without limiting the generality of subsection (1), ancillary orders may include 27
any one or more of the following: 28
(a) an order for the examination on oath of: 29
(i) the defendant, or 30
(ii) another person, 31
before the court, or an officer of the court prescribed by rules of court, 32
concerning the affairs of the defendant, including the nature and 33
location of any property of the defendant, 34
(b) an order varying the restraining order in respect of the property to which 35
it relates, 36
(c) an order varying any conditions to which the restraining order was 37
subject. 38
(3) An ancillary order may be made on application: 39
(a) by the applicant for the restraining order, or 40
(b) by the defendant, or 41
(c) with the leave of the court, by any other person. 42
(4) Ancillary orders may be made when or at any time after the restraining order 43
is made. An ancillary order referred to in subsection (2) (a) may be made in 44
advance of the restraining order. 45
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125U Charge on property subject to restraining orders 1
(1) If: 2
(a) a court has made a restraining order in respect of particular property or 3
all of the property of the defendant, and 4
(b) the court orders the payment of an amount referred to in section 125ZD 5
or 125ZE, 6
there is created by force of this section, on the making of the order referred to 7
in paragraph (b), a charge on all the property to which the restraining order 8
applies to secure the payment to a public authority or person (which extends, 9
for the purposes of this Division, to the Crown) of the amount referred to in 10
section 125ZD or 125ZE. 11
(2) Such a charge ceases to have effect in respect of the property: 12
(a) on payment by the defendant to the public authority or person of the 13
amount concerned, or 14
(b) on the sale or other disposition of the property with the consent of the 15
court, or 16
(c) on the sale of the property to a purchaser in good faith for value who, at 17
the time of the sale, has no notice of the charge, 18
whichever occurs first. 19
(3) Such a charge is subject to every charge or encumbrance to which the property 20
was subject immediately before the order referred to in subsection (1) (b) was 21
made and, in the case of land under the provisions of the Real Property Act 22
1900, is subject to every mortgage, lease or other interest recorded in the 23
Register kept under that Act. 24
(4) Such a charge is not affected by any change of ownership of the property, 25
except as provided by subsection (2). 26
(5) If: 27
(a) such a charge is created on property of a particular kind and the 28
provisions of any law of the State provide for the registration of title to, 29
or charges over, property of that kind, and 30
(b) the charge is so registered, 31
a person who purchases or otherwise acquires the property after the 32
registration of the charge is, for the purposes of subsection (2), taken to have 33
notice of the charge. 34
(6) If such a charge relates to land under the provisions of the Real Property Act 35
1900, the charge has no effect until it is registered under that Act. 36
125V Registration of restraining orders 37
(1) If a restraining order applies to property of a particular kind and the provisions 38
of any law of the State provide for the registration of title to, or charges over, 39
property of that kind, the authority responsible for administering the 40
provisions is required, on application by any person, to record the particulars 41
of the order in the register kept under those provisions. 42
(2) If the particulars of a restraining order are so recorded, a person who 43
afterwards deals with the property is, for the purposes of section 125U (2), 44
taken to have notice of the charge created by this Act on the making of the 45
order. 46
(3) If a restraining order applies to land under the provisions of the Real Property 47
Act 1900, a caveat may be lodged under that Act in relation to the order. 48
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125W Recovery of costs of registering charge on land 1
(1) A person or public authority who registers a charge on land to which a 2
restraining order applies under section 125U may, by written notice, require 3
the defendant to pay all or any of the reasonable costs and expenses incurred 4
by the person or authority in respect of the lodgment and registration of the 5
charge (including the costs of discharging the charge). 6
(2) The person or public authority may recover from the defendant any unpaid 7
amounts specified in the notice as a debt in a court of competent jurisdiction. 8
125X Recovery of costs of lodging caveat 9
(1) A person or public authority who lodges a caveat in respect of land to which a 10
restraining order applies under section 125V may, by written notice, require 11
the defendant to pay all or any of the reasonable costs and expenses incurred 12
by the person or authority in respect of the lodgment and registration of the 13
caveat (including the costs of withdrawal of the caveat). 14
(2) The person or public authority may recover from the defendant any unpaid 15
amounts specified in the notice as a debt in a court of competent jurisdiction. 16
125Y Contravention of restraining orders 17
(1) A person who knowingly contravenes a restraining order by disposing of, or 18
otherwise dealing with, property that is subject to the order is guilty of an 19
offence. 20
Maximum penalty: A fine equivalent to the value of the property (as 21
determined by the court) or imprisonment for 12 months, or both. 22
(2) If: 23
(a) a restraining order is made against property, and 24
(b) the property is disposed of, or otherwise dealt with, in contravention of 25
the restraining order, and 26
(c) the disposition or dealing was either not for sufficient consideration or 27
not in favour of a person who acted in good faith, 28
the person who applied for the restraining order may apply to the court that 29
made the restraining order for an order that the disposition or dealing with the 30
property be set aside. 31
(3) If an application is made under subsection (2), the court may make an order: 32
(a) setting aside the disposition or dealing as from the day on which the 33
disposition or dealing took place or as from the day of the order under 34
this subsection, and 35
(b) (if appropriate) declaring the respective rights of any persons who 36
acquired interests in the property on or after the day on which the 37
disposition or dealing took place and before the day of the order. 38
125Z Court may revoke restraining order 39
(1) The court that made a restraining order may revoke the order, on application 40
made to it by the person in relation to whose property it was made. 41
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(2) The court may refuse to revoke the order if the person does not: 1
(a) give security satisfactory to the court for the payment of any amount 2
referred to in section 125ZD or 125ZE that may be imposed on or 3
ordered to be paid by the person under this Act in respect of the person's 4
conviction for the offence, or 5
(b) give undertakings satisfactory to the court concerning the person's 6
property. 7
(3) Subsection (2) does not limit the discretion of the court to revoke or refuse to 8
revoke a restraining order. 9
125ZA Time when restraining order ceases to be in force 10
If, after a restraining order was made in reliance on the charging of a person 11
with an offence against this Act or the regulations: 12
(a) the charge is withdrawn and the person is not charged with a related 13
offence by the time of the withdrawal--the restraining order ceases to 14
be in force when the charge is withdrawn, or 15
(b) the person is acquitted of the charge and the person is not charged with 16
a related offence by the time of the acquittal--the restraining order 17
ceases to be in force when the acquittal occurs. 18
Division 4 Court orders in connection with offences 19
125ZB Operation of Division 20
(1) This Division applies where a court finds an offence against this Act or the 21
regulations proved. 22
(2) Without limiting the generality of subsection (1), a court finds an offence 23
proved if: 24
(a) the court convicts the offender of the offence, or 25
(b) the court makes an order under section 10 of the Crimes (Sentencing 26
Procedure) Act 1999 against the offender in relation to the offence (in 27
which case the order is not a punishment for the purposes of that 28
section). 29
(3) In this Division: 30
the court means the court that finds the offence proved. 31
the offender means the person who is found to have committed the offence. 32
125ZC Orders generally 33
(1) One or more orders may be made under this Division against the offender. 34
(2) Orders may be made under this Division in addition to any penalty that may 35
be imposed or any other action that may be taken in relation to the offence. 36
(3) Orders may be made under this Division regardless of whether any penalty is 37
imposed, or other action taken, in relation to the offence. 38
125ZD Orders for costs, expenses and compensation at time offence proved 39
(1) The court may, if it appears to the court that: 40
(a) the Crown or a public authority has incurred costs and expenses in 41
connection with: 42
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(i) the prevention, control, abatement or mitigation of any harm to 1
the environment caused by the commission of the offence, or 2
(ii) making good any resulting environmental damage, or 3
(b) the Crown or another person or a public authority has, because of the 4
commission of the offence, suffered loss of or damage to property or has 5
incurred costs and expenses in preventing or mitigating, or in 6
attempting to prevent or mitigate, any such loss or damage, 7
order the offender to pay to the Crown, public authority or person the costs and 8
expenses so incurred, or compensation for the loss or damage so suffered, as 9
the case may be, in such amount as is fixed by the order. 10
(2) However, a court is not to make an order for payment to a person under 11
subsection (1) to the extent that the payment would represent the value of 12
petroleum owned by that person that the offender had obtained by fossicking, 13
prospecting operations or mining operations carried out with the consent of 14
that person and in connection with the offence. 15
(3) An order made by the Local Court under subsection (1) is enforceable as if it 16
were an order made by the court when exercising jurisdiction under the Civil 17
Procedure Act 2005. 18
(4) An order made by the Land and Environment Court under subsection (1) is 19
enforceable as if it were an order made by the Court in Class 4 proceedings 20
under the Land and Environment Court Act 1979. 21
(5) The Local Court is not to make an order under subsection (1) for the payment 22
of an amount that exceeds the amount for which an order may be made by the 23
court when exercising jurisdiction under the Civil Procedure Act 2005. 24
125ZE Recovery of costs, expenses and compensation after offence proved 25
(1) If, after the court finds the offence proved: 26
(a) the Crown or a public authority has incurred costs and expenses in 27
connection with: 28
(i) the prevention, control, abatement or mitigation of any harm to 29
the environment caused by the commission of the offence, or 30
(ii) making good any resulting environmental damage, or 31
(b) a person (including the Crown and a public authority) has, because of 32
the commission of the offence, suffered loss of or damage to property 33
or has incurred costs and expenses in preventing or mitigating, or in 34
attempting to prevent or mitigate, any such loss or damage, 35
the Crown, public authority or person may recover from the offender the costs 36
and expenses incurred or the amount of the loss or damage in the Land and 37
Environment Court. 38
(2) The amount of any such costs and expenses (but not the amount of any such 39
loss or damage) may be recovered as a debt in a court of competent 40
jurisdiction. 41
(3) However, a person may not recover an amount that would represent the value 42
of petroleum owned by that person that the offender had obtained by 43
fossicking, prospecting operations or mining operations carried out with the 44
consent of that person and in connection with the offence. 45
125ZF Orders regarding costs and expenses of investigation 46
(1) The court may, if it appears to the court that the Crown or a public authority 47
has reasonably incurred costs and expenses during the investigation of the 48
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offence, order the offender to pay to the Crown or the authority the costs and 1
expenses so incurred in such amount as is fixed by the order. 2
(2) An order made by the Land and Environment Court under subsection (1) is 3
enforceable as if it were an order made by the Court in Class 4 proceedings 4
under the Land and Environment Court Act 1979. 5
(3) An order made by the Local Court under subsection (1) is enforceable as if it 6
were an order made by the court when exercising jurisdiction under the Civil 7
Procedure Act 2005. 8
(4) In this section: 9
costs and expenses, in relation to the investigation of an offence, means the 10
costs and expenses: 11
(a) in taking any sample or conducting any inspection, test, measurement 12
or analysis, or 13
(b) of transporting, storing or disposing of evidence, 14
during the investigation of the offence. 15
125ZG Orders regarding other monetary benefits 16
(1) The court may order the offender to pay, as an additional penalty for 17
committing the offence, an amount that the court is satisfied, on the balance of 18
probabilities, represents the amount of any monetary benefits acquired by the 19
offender, or accrued or accruing to the offender, as a result of the commission 20
of the offence. 21
(2) However, in calculating the amount of these monetary benefits, the court is to 22
exclude any monetary benefits acquired in connection with the fossicking or 23
prospecting for, or the mining of, privately owned petroleum. 24
(3) The amount of an additional penalty for an offence is not subject to any 25
maximum amount of penalty provided elsewhere by or under this Act. 26
(4) In this section: 27
monetary benefits means monetary, financial or economic benefits. 28
the court does not include the Local Court. 29
125ZH Additional orders 30
(1) The court may do any one or more of the following: 31
(a) order the offender to take specified action to publicise the offence 32
(including the circumstances of the offence) and its consequences and 33
any other orders made against the person, 34
(b) order the offender to take specified action to notify specified persons or 35
classes of persons of the offence (including the circumstances of the 36
offence) and its consequences and of any orders made against the 37
person (including, for example, the publication in an annual report or 38
any other notice to shareholders of a company or the notification of 39
persons aggrieved or affected by the offender's conduct), 40
(c) order the offender to carry out a specified project for the rehabilitation 41
of the area comprised in a current or former petroleum title, 42
(d) order the offender to carry out an audit of activities carried on by the 43
offender, 44
(e) order the offender to attend, or to cause an employee or employees or a 45
contractor or contractors of the offender to attend, a training or other 46
course specified by the court, 47
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(f) order the offender to establish, for employees or contractors of the 1
offender, a training course of a kind specified by the court, 2
(g) order the offender to pay any royalty that is due and payable by the 3
offender under this Act, 4
(h) if the Secretary is a party to proceedings, order the offender to provide 5
to the Secretary and maintain a security deposit, in a form and amount, 6
and on such terms (if any), specified by the court, if the court orders the 7
offender to carry out a specified work or program for the restoration or 8
enhancement of the environment. 9
However, the Local Court is not authorised to make an order referred to in 10
paragraph (c), (d), (e) or (h). 11
(2) The court may, in an order under this section, fix a period for compliance and 12
impose any other requirements the court considers necessary or expedient for 13
enforcement of the order. 14
(3) If the offender contravenes an order under subsection (1) (a) or (b), the 15
prosecutor or a person authorised by the prosecutor may take action to carry 16
out the order as far as may be practicable, including action to publicise or 17
notify: 18
(a) the original contravention, its environmental and other consequences, 19
and any other penalties imposed on the offender, and 20
(b) the contravention of the order. 21
(4) The reasonable cost of taking action referred to in subsection (3) is recoverable 22
by the prosecutor or person taking the action, in a court of competent 23
jurisdiction, as a debt from the offender. 24
(5) Section 106I applies with respect to a security deposit provided under an order 25
referred to in subsection (1) (i) as if it were provided under a security deposit 26
condition. 27
Division 5 Court orders in connection with suspected 28
contraventions 29
125ZI Order for recovery of costs related to prospecting or mining without authority 30
(1) The Land and Environment Court or a Local Court may make an order under 31
this section if the court is satisfied, on the balance of probabilities, that a 32
person has prospected for or mined for petroleum otherwise than in 33
accordance with a petroleum title. 34
(2) The court may order a person to pay to a government agency or person costs 35
and expenses incurred, or compensation for loss or damage suffered, as the 36
case may be, in such amount as is fixed by the order, if it appears to the court 37
that: 38
(a) a government agency has incurred costs and expenses in connection 39
with: 40
(i) the prevention, control, mitigation or management of any 41
environmental impact caused by the prospecting or mining, or 42
(ii) rehabilitating land or water damaged or affected by the 43
prospecting or mining, or 44
(b) a person (including a government agency) has, by reason of the 45
prospecting or mining, suffered loss of or damage to property or has 46
incurred costs and expenses in preventing, controlling, mitigating or 47
managing any such loss or damage, or attempting to do so. 48
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(3) However, the court is not to make an order for payment to a person under the 1
section to the extent that the payment would represent the value of petroleum 2
owned by that person that the person who carried out the suspected unlawful 3
prospecting or mining had obtained by prospecting or mining carried out with 4
the consent of that person and in connection with the suspected contravention. 5
(4) An order made by the Local Court under this section is enforceable as if it were 6
an order made by the court when exercising jurisdiction under the Civil 7
Procedure Act 2005. 8
(5) An order made by the Land and Environment Court under this section is 9
enforceable as if it were an order made by the Court in Class 4 proceedings 10
under the Land and Environment Court Act 1979. 11
(6) The Local Court may not make an order under this section for the payment of 12
an amount that exceeds the jurisdictional limit of the Local Court under the 13
Civil Procedure Act 2005. 14
(7) The court may make an order under this section whether or not the person 15
against whom the order is made: 16
(a) has been convicted of an offence under this Act in relation to the 17
prospecting or mining, or 18
(b) has been issued with a penalty notice under this Act in relation to the 19
prospecting or mining, and whether or not the amount of penalty 20
prescribed for the offence has been paid under any such penalty notice, 21
or 22
(c) has had any other action taken against the person in respect of an 23
offence under this Act in relation to the prospecting or mining. 24
(8) This section does not prevent the taking of proceedings for an offence of 25
prospecting or mining for petroleum except in accordance with a petroleum 26
title. 27
Division 6 Enforceable undertakings 28
125ZJ Secretary may accept enforceable undertakings 29
(1) The Secretary may accept a written undertaking (an enforceable undertaking) 30
given by a person in connection with a matter relating to a contravention or 31
alleged contravention by the person of this Act. 32
(2) The giving of an enforceable undertaking does not constitute an admission of 33
guilt by the person giving it in relation to the contravention or alleged 34
contravention to which the undertaking relates. 35
(3) The Secretary must issue, and make public general guidelines for or in relation 36
to the acceptance of enforceable undertakings under this Act. 37
125ZK Notice of decision and reasons for decision 38
(1) The Secretary must give the person seeking to make an enforceable 39
undertaking written notice of the Secretary's decision to accept or reject the 40
enforceable undertaking and of the reasons for the decision. 41
(2) The Secretary must publish, and make public, notice of a decision to accept an 42
enforceable undertaking and the reasons for that decision. 43
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125ZL When an enforceable undertaking is enforceable 1
An enforceable undertaking takes effect and becomes enforceable when the 2
Secretary's decision to accept the undertaking is given to the person who made 3
the undertaking or at any later date specified by the Secretary. 4
125ZM Compliance with enforceable undertaking 5
A person must not contravene an enforceable undertaking made by that person 6
that is in effect. 7
Maximum penalty: 8
(a) in the case of a corporation--10,000 penalty units, or 9
(b) in the case of a natural person--2,000 penalty units. 10
125ZN Contravention of enforceable undertaking 11
(1) The Secretary may apply to the District Court for an order if a person 12
contravenes an enforceable undertaking. 13
(2) If the Court is satisfied that the person who made the enforceable undertaking 14
has contravened the undertaking, the Court, in addition to the imposition of 15
any penalty, may make one or both of the following orders: 16
(a) an order directing the person to comply with the undertaking, 17
(b) an order discharging the undertaking. 18
(3) In addition to the orders referred to in subsection (2), the Court may make any 19
other order that the Court considers appropriate in the circumstances, 20
including orders directing the person to pay to the State: 21
(a) the costs of the proceedings, and 22
(b) the reasonable costs of the Secretary in monitoring compliance with the 23
enforceable undertaking in the future. 24
Note. Section 125ZP specifies circumstances affecting proceedings for a 25
contravention for which an enforceable undertaking has been given. 26
125ZO Withdrawal or variation of enforceable undertaking 27
(1) A person who has made an enforceable undertaking may at any time, with the 28
written agreement of the Secretary: 29
(a) withdraw the undertaking, or 30
(b) vary the undertaking. 31
(2) However, the provisions of the undertaking cannot be varied to provide for a 32
different alleged contravention of the Act. 33
(3) The Secretary must publish, and make public, notice of the withdrawal or 34
variation of an enforceable undertaking. 35
125ZP Proceeding for alleged contravention 36
(1) Subject to this section, no proceedings for a contravention or alleged 37
contravention of this Act may be brought against a person if an enforceable 38
undertaking is in effect in relation to that contravention. 39
(2) No proceedings may be brought for a contravention or alleged contravention 40
of this Act against a person who has made an enforceable undertaking in 41
relation to that contravention and has completely discharged the enforceable 42
undertaking. 43
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(3) The Secretary may accept an enforceable undertaking in relation to a 1
contravention or alleged contravention before proceedings in relation to that 2
contravention have been finalised. 3
(4) If the Secretary accepts an enforceable undertaking before the proceedings are 4
finalised, the Secretary must take all reasonable steps to have the proceedings 5
discontinued as soon as possible. 6
Division 7 Evidentiary provisions 7
125ZQ Certificate evidence of certain matters 8
(1) A document signed by the Secretary, or by an officer designated by the 9
Secretary for the purposes of this section, and certifying any one or more of 10
the matters specified in subsection (2) is admissible in any proceedings under 11
this Act and is prima facie evidence of the matters so certified. 12
(2) The following matters are specified for the purposes of subsection (1): 13
(a) that an instrument, a copy of which is set out in or annexed to the 14
document, being an instrument purporting: 15
(i) to be issued, made or given for the purposes of this Act, and 16
(ii) to have been signed by the person authorised to issue, make or 17
give the instrument, or by another person acting as delegate or on 18
behalf of the person, 19
was issued, made or given on a specified day, 20
(b) that a person was or was not, at a specified time or during a specified 21
period, the holder of a specified petroleum title or a petroleum title of a 22
specified kind, 23
(c) that specified land was or was not, at a specified time or during a 24
specified period, the subject of a specified petroleum title or a petroleum 25
title of a specified kind, 26
(d) that a petroleum title was or was not, at a specified time or during a 27
specified period, subject to specified conditions, 28
(e) that a petroleum title was, at a specified time, cancelled or suspended for 29
a specified period or was cancelled or suspended subject to specified 30
conditions, 31
(f) that a condition was, at a specified time, revoked or varied in a specified 32
manner or that a new condition was, at a specified time, imposed on a 33
petroleum title or on the suspension of a petroleum title, 34
(g) that a person was or was not, at a specified time or during a specified 35
period, an inspector, 36
(h) that a person was or was not, at a specified time or during a specified 37
period, a member of staff of the Department or a council, 38
(i) that information required to be furnished pursuant to this Act or the 39
regulations was or was not received, 40
(j) that a document is a copy of part of, or an extract from, a register kept 41
under this Act, 42
(k) that a specified amount is payable under this Act or the regulations by a 43
specified person and has not been paid, 44
(l) that petroleum of a specified value was recovered by a specified person 45
or from specified land, at a specified time or during a specified period, 46
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(m) that a specified legal or equitable interest (being a legal or equitable 1
interest of a kind referred to in section 97) was or was not registered 2
under this Act, 3
(n) that the Crown or a public authority has incurred costs or expenses of a 4
specified amount under section 78D, 5
(o) that the Crown or a public authority has incurred costs or expenses of a 6
specified amount in connection with the investigation of a specified 7
offence under this Act, 8
(p) that a specified function under this Act was delegated to a specified 9
person under section 113B during a specified period. 10
(3) For the purposes of the certification of a matter referred to in 11
subsection (2) (h), the person who appointed the inspector or royalty officer 12
concerned is taken to be an officer designated by the Secretary (as referred to 13
in subsection (1)). 14
(4) In the absence of information that would enable the accurate determination of 15
an amount payable, as referred to in subsection (2) (k), or the value of 16
petroleum, as referred to in subsection (2) (l), the following provisions have 17
effect: 18
(a) the amount or value certified may be an estimate of that amount or value 19
(based on the information available to the person making the 20
certification), 21
(b) the estimate is presumed to be accurate and cannot be challenged on the 22
basis that insufficient information was available to enable the making of 23
an accurate determination, but can be challenged by the provision of 24
information that enables a more accurate estimate to be made, 25
(c) if the estimate is successfully challenged and as a result a more accurate 26
estimate is substituted, no proceedings are open to challenge merely 27
because of the less accurate estimate and proceedings may continue to 28
be heard and be determined on the basis of the substituted estimate. 29
Division 8 General 30
125ZR Continuing effect of notices and conditions 31
(1) A notice given, or a condition of a petroleum title imposed, under this Act or 32
the regulations that specifies a time by which, or period within which, the 33
notice or condition must be complied with continues to have effect until the 34
notice or condition is complied with even though the time has passed or the 35
period has expired. 36
(2) A notice that does not specify a time by which, or period within which, the 37
notice must be complied with continues to have effect until the notice is 38
complied with. 39
(3) This section does not apply to the extent that any requirement under a notice 40
or a condition of a petroleum title is revoked. 41
(4) Nothing in this section affects the powers of a regulatory authority with 42
respect to the enforcement of a notice or a condition of a petroleum title. 43
[45] Sections 126, 126A and 127 44
Omit the sections. 45
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[46] Sections 129A and 129B 1
Insert before section 130: 2
129A Extraterritorial application 3
A notice may be given under this Act to a person in respect of a matter even 4
though the person is outside the State or the matter occurs or is located outside 5
the State, so long as the matter relates to the administration of this Act 6
(including, but not limited to investigation of, or enforcement action relating 7
to, offences against this Act). 8
129B Waiver of minor procedural matters 9
(1) The Minister may waive any requirement of this Act or the regulations: 10
(a) as to the time within which anything is required to be done (but not the 11
time for lodging any application for renewal of a petroleum title after 12
the date of expiry), or 13
(b) as to the details to be contained in any notice to be served, lodged or 14
caused to be published by the applicant, or 15
(c) as to the documents or particulars to accompany the application, or 16
(d) as to the furnishing of information by the applicant. 17
(2) This section does not authorise the Minister to waive a requirement unless the 18
Minister is satisfied that the waiver is unlikely: 19
(a) to adversely affect any person's rights under this Act or the regulations, 20
or 21
(b) to result in any person being deprived of information necessary for the 22
effective exercise of those rights. 23
[47] Sections 131-133, 135, 136, 136A, 137 and 137A 24
Omit the sections. 25
[48] Section 138 Regulations 26
Omit section 138 (2). Insert instead: 27
(2) The regulations may adopt or provide for the adoption of any document 28
(including, for example, a code of practice or set of standards published by any 29
person or body) and for the application of the provisions of that document, as 30
in force for the time being, for any of the purposes of this Act or the 31
regulations. 32
[49] Sections 138B References to certain officers in petroleum titles 33
Omit "section 126" from section 138B (2). Insert instead "section 113B (1)". 34
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[50] Schedule 1B 1
Insert in appropriate order: 2
Schedule 1B Further provisions relating to petroleum 3
titles generally 4
Part 1 Preliminary 5
1 Application of Schedule 6
This Schedule applies to and in respect of the following: 7
(a) applications for, and decisions made by the Minister, in relation to the 8
grant, renewal or transfer of a petroleum title, 9
(b) the imposition of conditions on, or variation or suspension of conditions 10
of, a petroleum title, 11
(c) the variation of a petroleum title. 12
Part 2 Considering applications 13
2 Protection of the environment must be taken into account in considering 14
applications 15
(1) The Minister must take into account the need to conserve and protect the 16
environment in or on the land over which the petroleum title is sought (or, in 17
the case of a variation, to which it applies) in considering an application to 18
which this Schedule applies. 19
(2) The Minister may cause such studies (including environmental impact studies) 20
to be carried out as the Minister considers necessary to assist in making a 21
decision on the application. 22
(3) If public money is spent under subclause (2) in having studies carried out or 23
engaging persons to provide advice, the Minister may, by written notice, 24
require the applicant concerned to reimburse the Government, within the time 25
specified in the notice, for the money, or any part of the money, reasonably 26
incurred. 27
(4) The Minister may recover from the applicant any unpaid amounts specified in 28
the notice as a debt in a court of competent jurisdiction. 29
3 Other matters that may be taken into account in considering applications 30
Without limiting the generality of any other provision of this Act, the Minister 31
may take into account any one or more of the following when considering an 32
application to which this Schedule applies: 33
(a) whether, in the opinion of the Minister, the applicant meets the 34
minimum standards, made public by the Minister, required to be met 35
with respect to the technical and financial capability to carry out the 36
proposed work program, 37
(b) if the application relates to a transfer--whether, in the opinion of the 38
Minister, the transferee meets the minimum standards, made public by 39
the Minister, required to be met with respect to the technical and 40
financial capability to carry out the proposed work program, 41
(c) if the applicant is a natural person--the compliance history of the 42
applicant, 43
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(d) if the applicant is a body corporate--the compliance history of any 1
director of the body corporate or of any related body corporate, 2
(e) if the application relates to a transfer and the proposed transferee is a 3
natural person--the compliance history of the proposed transferee, 4
(f) if the application relates to a transfer and the proposed transferee is a 5
body corporate--the compliance history of any director of that body 6
corporate, 7
(g) whether, in the opinion of the Minister, the work program proposed to 8
be carried out by the applicant meets the minimum standards, made 9
public by the Minister, required to be met with respect to work 10
programs for a petroleum title of the kind concerned. 11
4 Minister may require further information 12
(1) The Minister may require a person who makes an application to which this 13
Schedule applies to furnish further information in connection with the 14
application, including (if the applicant is a body corporate) information as to 15
the extent to which the controlling power in the body corporate's affairs is held 16
by: 17
(a) a foreign company within the meaning of the Corporations Act 2001 of 18
the Commonwealth, or 19
(b) a company registered under that Act that is taken for the purposes of that 20
Act to be registered in a State or Territory other than New South Wales, 21
or 22
(c) a natural person who is a resident of a foreign country. 23
(2) The application may be refused if the applicant does not furnish that further 24
information within the period specified by the Minister by written notice when 25
the request for further information is made. 26
5 Grounds for refusal of applications 27
Without limiting the generality of any other provision of this Act, the Minister 28
may refuse an application to which this Schedule applies on any one or more 29
of the following grounds: 30
(a) the Minister considers that the applicant (or if the application relates to 31
a transfer, the transferee) has an unsatisfactory compliance history, 32
(b) the Minister considers that the applicant (or if the application relates to 33
a transfer, the transferee) does not meet the applicable minimum 34
standards with respect to work programs and the technical and financial 35
capability to carry out the proposed work program, 36
(c) the applicant has not paid any fee payable in connection with the 37
application, 38
(d) the applicant has failed to lodge any information required to accompany 39
the application within 10 business days after the application is lodged. 40
Part 3 Conditions of petroleum titles 41
6 Conditions of petroleum titles 42
(1) A petroleum title is subject to: 43
(a) any condition imposed by the Minister under this Schedule (including 44
any variation of such a condition), and 45
(b) any condition imposed by or under section 45C (2), 83D or 106B, and 46
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(c) any condition prescribed by the regulations. 1
(2) Without limiting the generality of subclause (1), conditions imposed by the 2
Minister or prescribed by the regulations may include conditions relating to 3
the following: 4
(a) the development and conduct of petroleum operations, 5
(b) environmental management, protection and rehabilitation, including 6
requiring the holder of the title: 7
(i) to carry out activities or not to carry out activities in order to 8
protect, prevent, control or mitigate harm to the environment, and 9
(ii) to rehabilitate land or water that is or may be affected by activities 10
under the petroleum title, 11
(c) compliance with codes of practice or sets of standards published by any 12
person or body, 13
(d) ensuring the safety of the public in relation to prospecting and mining 14
operations, 15
(e) the administration of petroleum titles, 16
(f) community relations, 17
(g) requiring the holder to provide the Minister with reports detailing any 18
non-compliance with the conditions of the petroleum title, or any 19
requirements of this Act or the regulations relating to activities under 20
the petroleum title, and any action taken, or to be taken, to prevent any 21
recurrence, or to mitigate the effects of that non-compliance. 22
(3) Any obligation imposed on the holder of a petroleum title in relation to 23
environmental management, protection and rehabilitation: 24
(a) continues to have effect despite the cancellation of the petroleum title or 25
it ceasing to have effect, and 26
(b) can be imposed despite anything to the contrary in section 93 of the 27
Environmental Planning and Assessment Act 1979. 28
(4) Unless an exemption from conditions imposed by the regulations applies, in 29
the event of an inconsistency between conditions imposed by the Minister and 30
those imposed by the regulations, the conditions imposed by the regulations 31
prevail to the extent of any inconsistency. 32
7 Conditions imposed on petroleum titles by Minister 33
(1) The Minister may impose conditions on a petroleum title: 34
(a) at the time of the grant of the petroleum title, or 35
(b) at any later time, as permitted by this Schedule. 36
(2) A condition imposed by the Minister takes effect as follows: 37
(a) if the condition is imposed on the grant of a petroleum title--when the 38
grant takes effect, 39
(b) if the condition is imposed on the renewal of a petroleum title--when 40
the renewal takes effect, 41
(c) if the condition is imposed when a full or partial transfer of a petroleum 42
title is approved under this Act--when the transfer is registered under 43
this Act, 44
(d) if the condition is a variation under clause 9--as provided by 45
clause 9 (7), 46
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(e) in any other case--when written notice of the imposition of the 1
condition is served on the holder of the petroleum title or at a later time 2
specified in the notice. 3
8 Exemption from conditions imposed by regulations 4
(1) The Minister may, by order published in the Gazette, exempt the holder of a 5
petroleum title from compliance with a condition imposed by the regulations. 6
(2) An exemption may be granted subject to conditions. 7
(3) An exemption may: 8
(a) apply generally or be limited in its application by reference to specified 9
exceptions or factors, and 10
(b) apply differently according to different factors of a specified kind, and 11
(c) be granted for a specified period or for an indefinite period, and 12
(d) if granted for a specified period--be granted before, during or after that 13
period. 14
(4) The Minister may vary or revoke an exemption (including by imposing, 15
varying or revoking a condition of the exemption) at any time by notice in 16
writing to the holder of the petroleum title. 17
(5) The regulations may make provision for or with respect to exemptions. 18
Part 4 Variation of petroleum titles and variation or 19
suspension of their conditions 20
9 Variation of petroleum titles by Minister 21
(1) The Minister may vary a petroleum title (including the conditions of a 22
petroleum title). 23
(2) A variation of a petroleum title may include: 24
(a) the attaching of a condition to a petroleum title (whether or not any 25
conditions have already been attached), or 26
(b) the substitution of a condition, or 27
(c) the omission of a condition, or 28
(d) the amendment of a condition, or 29
(e) the variation of the instrument by which a petroleum title is granted, 30
including so as to: 31
(i) update the instrument, or 32
(ii) correct a minor error or misdescription, or 33
(iii) consolidate variations made to the petroleum title. 34
(3) A petroleum title may be varied on application by the holder of the petroleum 35
title or on the initiative of the Minister. 36
(4) Except in the case of the renewal or transfer of a petroleum title, the Minister 37
is not to vary a prescribed condition subsequent to the grant of the petroleum 38
title unless the Minister: 39
(a) has given the holder of the petroleum title notice of the draft variation, 40
and 41
(b) has invited the making of submissions to the Minister about the 42
proposed variation and specified a deadline for the making of those 43
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submissions that is at least 28 days after the publication of the notice, 1
and 2
(c) has either received such submissions and has taken them into 3
consideration or has not received any such submission after the deadline 4
has elapsed. 5
(5) A petroleum title may be varied at any time during its currency, including on 6
its being transferred to another person. 7
(6) A petroleum title is varied by notice in writing given to the holder of the 8
petroleum title. 9
(7) The variation of a condition by the Minister takes effect as follows: 10
(a) if the condition is varied on the renewal of a petroleum title--when the 11
renewal takes effect, 12
(b) if the condition is varied when a full or partial transfer of a petroleum 13
title is approved under this Act--when the transfer is registered under 14
this Act, 15
(c) if a prescribed condition is varied other than at the renewal of a 16
petroleum title or when a full or partial transfer of a petroleum title is 17
approved under this Act--28 days after written notice of the variation 18
of the condition is served on the holder of the petroleum title or at a later 19
time specified in the notice, 20
(d) in any other case--when written notice of the variation of the condition 21
is served on the holder of the petroleum title or at a later time specified 22
in the notice. 23
(8) This clause does not apply to a condition that is prescribed by the regulations. 24
(9) In this clause: 25
prescribed condition means a condition that is not: 26
(a) imposed on the application of the holder of the petroleum title, or 27
(b) imposed under section 83D or 106B. 28
10 Variation of conditions imposed by the regulations 29
(1) Before a regulation is made that varies any condition of a petroleum title 30
imposed by the regulations, the Minister is required to ensure that: 31
(a) a notice is published in a daily newspaper circulating throughout New 32
South Wales: 33
(i) stating the objects of the proposed regulation, and 34
(ii) advising where a copy of the regulation may be obtained or 35
inspected, and 36
(iii) inviting comments and submissions within a specified time, but 37
not less than 28 days from publication of the notice, and 38
(b) all the comments and submissions received within the time specified in 39
the notice are considered. 40
(2) For the purposes of this clause, a regulation varies a condition of a petroleum 41
title if the regulation: 42
(a) imposes a new condition (whether or not any conditions have already 43
been imposed), or 44
(b) substitutes a condition imposed by the regulations, or 45
(c) omits a condition imposed by the regulations, or 46
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(d) amends a condition imposed by the regulations. 1
11 Suspension of conditions of petroleum titles 2
(1) The Minister may (whether on the application of the holder of the petroleum 3
title or on the initiative of the Minister) suspend any of the conditions of a 4
petroleum title for such period, or until the happening of such event, as the 5
Minister may determine. 6
(2) The suspension of conditions of a petroleum title may be granted 7
unconditionally or subject to such conditions as the Minister may consider 8
appropriate. 9
(3) The suspension of the conditions of a petroleum title takes effect on the date 10
on which written notice of the suspension is served on the holder of the 11
petroleum title or on such later date as may be specified in the notice. 12
(4) An application for suspension of the conditions of a petroleum title may be 13
withdrawn by means of a notice of withdrawal signed by the applicant and 14
lodged with the Minister. 15
(5) The application ceases to have effect when the notice is lodged. 16
(6) The withdrawal of an application under this clause is irrevocable. 17
(7) The Minister may vary the suspension of the conditions of a petroleum title 18
(including the conditions to which the suspension is subject). 19
(8) A variation includes the attaching of a condition to the suspension, the 20
substitution of a condition, the omission of a condition or the amendment of a 21
condition. 22
(9) A suspension of the conditions of a petroleum title is varied by notice in 23
writing given to the holder of the petroleum title. 24
(10) The suspension of any condition of a petroleum title under this clause does not 25
prevent any action being taken under this Act in respect of the petroleum title 26
(including variation under clause 9). 27
(11) This clause does not apply to a condition that is prescribed by the regulations. 28
[51] Schedule 1 Savings and transitional provisions 29
Insert at the end of the Schedule with appropriate Part and clause numbering: 30
Part Provisions consequent on enactment of Mining and 31
Petroleum Legislation Amendment (Harmonisation) 32
Act 2015 33
Definition 34
In this Part: 35
2015 amending Act means the Mining and Petroleum Legislation Amendment 36
(Harmonisation) Act 2015. 37
Pending applications 38
An application for a petroleum title, or transfer or renewal of a petroleum title, 39
made but not decided before the commencement of this clause and that 40
complied with this Act, as in force before the Act's amendment by the 2015 41
amending Act, is taken to have been duly made under this Act, as amended. 42
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Existing notifications of areas over which petroleum title may not be granted 1
A notification under section 9 (1) (a) that was in force immediately before the 2
amendment of section 9 (1) by the 2015 amending Act is taken to have been 3
made under section 9 (1) as amended by the 2015 amending Act. 4
Work programs accompanying existing applications 5
A work program that accompanied an application for a petroleum title before 6
the replacement of section 14 by the 2015 amending Act, and that complied 7
with section 14 (and the regulations) as in force immediately before the 8
substitution of the section, is taken to comply with section 14 as substituted. 9
Existing conditions 10
Subject to this Part, a condition of a petroleum title, in force under section 23 11
immediately before the repeal of that section by the 2015 amending Act, 12
continues to have effect and is taken to be a condition imposed under 13
Schedule 1B. 14
Existing suspension of condition of petroleum title 15
A condition of a petroleum title that was, immediately before the repeal of 16
section 24 by the 2015 amending Act, suspended, is taken to have been 17
suspended under clause 11 of Schedule 1B, on the date of the original 18
suspension. 19
Existing "activity approval" conditions in exploration licences 20
(1) Any condition to which an exploration licence was subject immediately before 21
the commencement of section 31A, as inserted by the 2015 amending Act, that 22
requires approval to carry out operations and that is identified in the licence 23
using one of the following phrases is void: 24
(a) Category 1 prospecting operations, 25
(b) Category 2 prospecting operations, 26
(c) assessable prospecting operations. 27
(2) However, an approval granted pursuant to a condition referred to in 28
subclause (1) that was in force immediately before the commencement of this 29
clause is taken to be an activity approval granted under section 31A and can 30
be varied or voluntarily cancelled accordingly. 31
(3) An application for approval to carry out prospecting operations made in 32
compliance with a condition imposed on an assessment lease, being an 33
application that had not been dealt with before the commencement of 34
section 36A, as inserted by the 2015 amending Act, is to be dealt with in 35
accordance with section 36A, as if it had been made under that section. 36
(4) For the avoidance of doubt, compliance with section 31A or 36A is required 37
in respect of any assessable prospecting operation carried out after the 38
commencement of the section, even if it began before the commencement of 39
the section. 40
Existing directions to rehabilitate land 41
A direction given under section 77, as in force before its substitution by the 42
2015 amending Act, and having effect immediately before that substitution, 43
continues in force after that amendment as if section 77 had not been 44
substituted. 45
Page 98
Mining and Petroleum Legislation Amendment (Harmonisation) Bill 2015 [NSW]
Schedule 2 Amendment of Petroleum (Onshore) Act 1991 No 84
Existing inspectors 1
(1) A person who, on the repeal of section 113 by the 2015 amending Act, was 2
constituted as an inspector by that section is, on that repeal, taken to be an 3
inspector appointed under section 361 of the Mining Act 1992 until whichever 4
of the following first occurs: 5
(a) the person is appointed as an inspector under section 361 of the Mining 6
Act 1992, 7
(b) the Secretary revokes the person's appointment under subclause (2), 8
(c) a day occurs that is one year after the day on which this clause 9
commences. 10
(2) The Secretary may revoke the appointment of a person who is taken to be 11
appointed as an inspector under this clause or may subject the appointment to 12
conditions, limitations or restrictions. 13
Existing notices of cause of danger 14
A notice that had effect under section 129 immediately before the 15
commencement of the 2015 amending Act, and was issued by a person who, 16
on the repeal of section 113 by the 2015 amending Act, was constituted as an 17
inspector by that section, is taken to have been issued under this Act, as 18
amended, and can be amended and revoked. 19
Environmental information 20
Sections 113M and 113N, as inserted by the 2015 amending Act, do not apply 21
to information about harm caused, or likely to be caused, to the environment 22
obtained by the Secretary before the commencement of those sections. 23
Existing notices and conditions 24
Section 125D, as inserted by the 2015 amending Act, extends to information 25
given after the commencement of that section in compliance with a a notice 26
given or condition imposed under this Act before the commencement of that 27
section if the time by which, or period within which, the notice or condition 28
must have been complied with had not expired immediately before that 29
commencement. 30
Time for commencement of proceedings 31
Section 125M, as inserted by the 2015 amending Act, does not extend to 32
offences committed before the commencement of that section for which 33
proceedings had not been commenced when the section commenced. 34
Page 99
Mining and Petroleum Legislation Amendment (Harmonisation) Bill 2015 [NSW]
Schedule 3 Consequential amendment of other Acts
Schedule 3 Consequential amendment of other Acts 1
3.1 Dams Safety Act 2015 No 26 2
Schedule 3 Amendment of other legislation 3
Omit Schedule 3.7. 4
3.2 Environmental Planning and Assessment Act 1979 No 203 5
Section 91 What is "integrated development"? 6
Omit "s 9" from the matter relating to the Petroleum (Onshore) Act 1991 in the table to 7
section 91 (1). 8
Insert instead "s 16". 9
3.3 Fines Act 1996 No 99 10
Schedule 1 Statutory provisions under which penalty notices issued 11
Omit "Petroleum (Onshore) Act 1991, section 137A". 12
Insert instead "Petroleum (Onshore) Act 1991, section 125N". 13
3.4 Law Enforcement (Powers and Responsibilities) Act 2002 No 103 14
Schedule 2 Search warrants under other Acts 15
Omit "Petroleum (Onshore) Act 1991, section 104". 16
Insert instead "Petroleum (Onshore) Act 1991, section 104A". 17
3.5 Offshore Minerals Act 1999 No 42 18
Section 108 19
Omit the section. Insert instead: 20
108 Decision on an application for renewal 21
After considering an application for the renewal of an exploration licence, the 22
Minister may: 23
(a) provisionally renew the licence, or 24
(b) refuse to renew the licence. 25
Note 1. Under section 89, the renewal of the licence cannot be effective before 26
it is registered (see section 334 for registration). The renewal will not be 27
registered until it has been properly accepted (see section 114 for proper 28
acceptance). 29
Note 2. Under section 118, new conditions may be imposed on renewal. 30
Page 100
Mining and Petroleum Legislation Amendment (Harmonisation) Bill 2015 [NSW]
Schedule 3 Consequential amendment of other Acts
3.6 Protection of the Environment Operations Act 1997 No 156 1
Schedule 2A Enforcement of gas and other petroleum legislation (as inserted by 2
Protection of the Environment Operations Amendment (Enforcement of Gas and 3
Other Petroleum Legislation) Act 2015) 4
Omit "section 7, 77, or 136A of the Petroleum (Onshore) Act 1991" from paragraph (a) of 5
the definition of petroleum offence in clause 1. 6
Insert instead "section 7, 78A or 125E of the Petroleum (Onshore) Act 1991". 7
Page 101
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