2015
2015
2016-03-02
act
government
publicspecial
act.reprint
act-1987-015
allinforce
2015-10-15
2015-10-15
0
2016-03-02
act-1987-015
2015
none
act-2015-040
2ab8d699-0a63-4971-a7e6-cea4c18fa319
9d3c3b8f-d590-4db8-9c0e-e3286da099d3
Repeal:
This Act was repealed by sec 30C of the Interpretation Act 1987 No 15 with
effect from 2.3.2016.
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.
1Name of
Act
This Act is the Mining and
Petroleum Legislation Amendment (Harmonisation) Act
2015.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Repeal of Mining
Amendment Act 2008 No 19
The Mining Amendment
Act 2008 is repealed.
Schedule 1Amendment of Mining Act 1992 No
29
[1]Section 13 Application for
exploration licence
Insert after section 13 (4):
Note—
Section 129A requires an application for an
exploration licence to be accompanied by a proposed work
program.
[2]Section 13 (5)
(c)
Omit the paragraph.
[3]Section 15
Tenders
Insert at the end of section 15 (1):
Note—
Section 129A requires a tender for an exploration
licence to be accompanied by a proposed work program.
[4]Section 15 (2)
(b)
Omit the paragraph.
[5]Section 16 Decision-maker may
require further information
Omit the section.
[6]Section 21 Colliery
holdings
Omit the section.
[7]Section 22 Power of
decision-maker in relation to applications
Insert at the end of section 22 (1):
Note—
Schedule 1B contains provisions about the grant
or refusal of an application for an exploration licence and the conditions to
which an exploration licence is subject.
[8]Section 22
(2)
Omit the subsection.
[9]Section 23 Power of
decision-maker in relation to tenders
Insert at the end of section 23 (2):
Note—
Schedule 1B contains provisions about the grant
or refusal of an exploration licence to a tenderer.
[10]Section 23
(3)
Omit the subsection.
[11]Section
23A
Insert after section 23:
23AActivity approval required for
assessable prospecting operations
(1)
An exploration licence is subject to a statutory
condition that the holder of the licence must not carry out an assessable
prospecting operation on land over which the licence is granted 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.
(2)
The holder of an exploration licence may apply in
writing to the decision-maker for approval to carry out an assessable
prospecting operation in relation to any part of the land over which the
licence is granted (an activity
approval).
(3)
The decision-maker may require the holder to
provide such information as is required by the decision-maker, within the time
specified by the decision-maker, before considering the application or at any
time during consideration of the application.
(4)
After considering the application for the
activity approval, the decision-maker:
(a)
may grant the activity approval,
or
(b)
may refuse the
application.
(5)
Without limiting the grounds for refusal, the
application may be refused if the applicant fails to provide the information
required by the decision-maker within the time required.
(6)
An activity approval may be granted subject to
terms.
(7)
For the purposes of this Act, it is a statutory
condition of an exploration licence that the holder must comply with any
activity approval granted to the holder and in force.
(8)
Clauses 7 (2)–(4), 10 (2), 12 and 14 of
Schedule 1B apply to and in respect of the imposition of terms on, and
variation of the terms of, an activity approval in the same way as they apply
to and in respect of the imposition of conditions on, and the variation of the
conditions of, an authorisation.
(9)
The decision-maker may cancel an activity
approval:
(a)
if the holder of the activity approval lodges
with the Secretary a request that the decision-maker cancel the activity
approval, or
(b)
if the decision-maker is satisfied that a person
has contravened the activity approval (whether or not the person is prosecuted
or convicted of any offence arising from the
contravention).
(10)
Before cancelling an activity approval, otherwise
than at the request of the holder of the activity approval, the decision-maker
is to cause a written notice to be served on the holder of the activity
approval that contains the following:
(a)
notice that the activity approval is proposed to
be cancelled,
(b)
details of the grounds for the proposed
cancellation,
(c)
notice that the holder of the activity approval
has a specified period (of at least 28 days) in which to make representations
with respect to the proposed cancellation.
(11)
The decision-maker must not cancel an activity
approval, otherwise than at the request of the holder of the activity
approval, unless:
(a)
the decision-maker has taken any such
representations received from the holder of the activity approval into
consideration, or
(b)
the period specified in the notice has elapsed
and no such representations have been received.
(12)
The decision-maker is to cause written notice of
the cancellation of an activity approval to be given to the holder of the
activity approval.
(13)
The cancellation takes effect on the date on
which the written notice of the cancellation is given to the holder of the
activity approval, or on a later date specified in the
notice.
(14)
Any person who is aggrieved by the decision of
the decision-maker to cancel an activity approval held by the person may
appeal to the Land and Environment Court against the decision. Section 128
applies to such an appeal as if it were an appeal against a decision to cancel
an authority.
(15)
The cancellation of an activity approval does not
affect any liability incurred by the holder of the activity approval before
the cancellation took effect.
(16)
Action may be taken under subsection (9) (b)
whether or not any other action has been taken in respect of the activity
approval under this Act.
[12]Section 26 Conditions of
exploration licence
Omit the section.
[13]Section 27 Term of exploration
licence
Omit “5 years” from section 27 (b)
(ii). Insert instead “6 years”.
[14]Section 28 Form of exploration
licence
Insert at the end of the section:
Note—
Schedule 1B provides for an exploration licence
to be varied after it is granted.
[15]Section 30 Exempted
areas
Insert after section 30 (2):
(3)
Clauses 12 and 14 of Schedule 1B apply to the
variation or suspension of a condition of consent granted under this section
in the same way as they apply to the variation or suspension of a condition of
an authorisation.
[16]Section 33 Application for
assessment lease
Insert after section 33 (4):
Note—
Section 129A requires an application for an
assessment lease to be accompanied by a proposed work
program.
[17]Section 33 (5)
(d)
Omit the paragraph.
[18]Section 34 Decision-maker may
require further information
Omit the section.
[19]Section 40 Colliery
holdings
Omit the section.
[20]Section 41 Power of
decision-maker in relation to applications
Insert at the end of section 41 (1):
Note—
Schedule 1B contains provisions about the grant
or refusal of an application for an assessment lease and the conditions to
which an assessment lease is subject.
[21]Section 41
(2)
Omit the subsection.
[22]Section 44 Conditions of
assessment lease
Omit the section.
[23]Section
44A
Insert before section 45:
44AActivity approval required for
assessable prospecting operations
(1)
An assessment lease is subject to a statutory
condition that the holder must not carry out an assessable prospecting
operation on land over which the lease is granted 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.
(2)
The holder of an assessment lease may apply in
writing to the decision-maker for approval to carry out an assessable
prospecting operation in relation to any part of the land over which the lease
is granted (an activity
approval).
(3)
The decision-maker may require the holder to
provide such information as is required by the decision-maker, within the time
specified by the decision-maker, before considering the application or at any
time during consideration of the application.
(4)
After considering the application for the
activity approval, the decision-maker:
(a)
may grant the activity approval,
or
(b)
may refuse the
application.
(5)
Without limiting the grounds for refusal, the
application may be refused if the applicant fails to provide the information
required by the decision-maker within the time required.
(6)
An activity approval may be granted subject to
terms.
(7)
For the purposes of this Act, it is a statutory
condition of an assessment lease that the holder must comply with any activity
approval granted to the holder and in force.
(8)
Clauses 7 (2)–(4), 10 (2), 12 and 14 of
Schedule 1B apply to and in respect of the imposition of terms on, and
variation of the terms of, an activity approval in the same way as they apply
to and in respect of the imposition of conditions on, and the variation of the
conditions of, an authorisation.
(9)
The decision-maker may cancel an activity
approval:
(a)
if the holder of the activity approval lodges
with the Secretary a request that the decision-maker cancel the activity
approval, or
(b)
if the decision-maker is satisfied that a person
has contravened the activity approval (whether or not the person is prosecuted
or convicted of any offence arising from the
contravention).
(10)
Before cancelling an activity approval, otherwise
than at the request of the holder of the activity approval, the decision-maker
is to cause a written notice to be served on the holder of the activity
approval that contains the following:
(a)
notice that the activity approval is proposed to
be cancelled,
(b)
details of the grounds for the proposed
cancellation,
(c)
notice that the holder of the activity approval
has a specified period (of at least 28 days) in which to make representations
with respect to the proposed cancellation.
(11)
The decision-maker must not cancel an activity
approval, otherwise than at the request of the holder of the activity
approval, unless:
(a)
the decision-maker has taken any such
representations received from the holder of the activity approval into
consideration, or
(b)
the period specified in the notice has elapsed
and no such representations have been received.
(12)
The decision-maker is to cause written notice of
the cancellation of an activity approval to be given to the holder of the
activity approval.
(13)
The cancellation takes effect on the date on
which the written notice of the cancellation is given to the holder of the
activity approval, or on a later date specified in the
notice.
(14)
Any person who is aggrieved by the decision of
the decision-maker to cancel an activity approval held by the person may
appeal to the Land and Environment Court against the decision. Section 128
applies to such an appeal as if it were an appeal against a decision to cancel
an authority.
(15)
The cancellation of an activity approval does not
affect any liability incurred by the holder of the activity approval before
the cancellation took effect.
(16)
Action may be taken under subsection (9) (b)
whether or not any other action has been taken in respect of the activity
approval under this Act.
[24]Section 45 Term of assessment
lease
Omit “5 years” from section 45 (b)
(ii). Insert instead “6 years”.
[25]Section 46 Form of assessment
lease
Insert at the end of the section:
Note—
Schedule 1B provides that an assessment lease may
be varied after it is granted.
[26]Section 48 Exempted
areas
Insert after section 48 (2):
(3)
Clauses 12 and 14 of Schedule 1B apply to the
variation or suspension of a condition of consent granted under this section
in the same way as they apply to the variation or suspension of a condition of
an authorisation.
[27]Section 51 Application for
mining lease
Insert at the end of section 51 (4):
Note—
Section 129A requires an application for a mining
lease to be accompanied by a proposed work program.
[28]Section 51 (5)
(d)
Omit the paragraph.
[29]Section 53
Tenders
Insert at the end of section 53 (1):
Note—
Section 129A requires a tender for a mining lease
to be accompanied by a proposed work program.
[30]Section 53 (2)
(b)
Omit the paragraph.
[31]Section 54 Decision-maker may
require further information
Omit the section.
[32]Section 61 Colliery
holdings
Omit the section.
[33]Section 63 Power of
decision-maker in relation to applications
Insert at the end of section 63 (1):
Note—
Schedule 1B contains provisions about the grant
or refusal of an application for a mining lease.
[34]Section 63
(2)
Omit the subsection.
[35]Section 64 Power of
decision-maker in relation to tenders
Insert at the end of section 64 (1):
Note—
Schedule 1B contains provisions about the grant
or refusal of a mining lease to a tenderer.
[36]Section 64
(3)
Omit the subsection.
[37]Section 70 Conditions of
mining lease
Omit the section.
[38]Section 79 Amendment of mining
lease in respect of expenditure and labour conditions
Omit the section.
[39]Section 93 Granting of
proposed lease if objection or proposal made
Omit section 93 (4). Insert instead:
(4)
Despite clause 12 of Schedule 1B, a condition
included in a proposed lease in accordance with a direction of the Premier may
only be varied with the concurrence of the Premier.
[40]Section 113 Applications for
renewal
Insert after section 113 (5):
(5A)
An application for renewal of an exploration
licence may include a description of any special circumstances that the
applicant claims (for the purposes of section 114A) exist 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.
[41]Sections 114 and
114A
Omit section 114. Insert instead:
114Power of decision-maker in
relation to renewal applications
(1)
After considering an application for the renewal
of an authority, the decision-maker:
(a)
may renew the authority, or
(b)
may refuse the
application.
Note—
Schedule 1B contains provisions about the grant
or refusal of an application to renew an authority and the grounds for refusal
of such an application.
(2)
The period for which an authority is renewed may
not on any one occasion exceed:
(a)
in the case of an exploration licence or
assessment lease—6 years, or
(b)
in the case of a mining lease—21 years (or
such longer period as the decision-maker may, with the concurrence of the
Premier, determine).
(3)
The decision-maker is not bound to renew an
authority over the area nominated by the applicant.
(4)
The area of land over which an authority is
renewed may differ from the area of land over which the renewal of the
authority is sought, but not so as to include any land that was not subject to
the authority immediately before the renewal.
(5)
The decision-maker may defer dealing with an
application for the renewal of a mining lease over any land if the mining
lease is the subject of action being taken under Part 6 in connection with the
granting of a consolidated mining lease over that land.
114APower of decision-maker in
relation to renewal applications for exploration
licences
(1)
The area of land over which an exploration
licence may be renewed is not to exceed half of the area over which the
licence was in force when the application for renewal was
made.
(2)
However, the decision-maker may grant a renewal
over more than half of the area over which the licence was in force if:
(a)
the applicant for renewal claims that special
circumstances exist that justify doing so, and
(b)
the decision-maker is satisfied that special
circumstances exist that justify doing so.
(3)
Without limiting the considerations available to
the decision-maker in determining whether special circumstances exist for the
purposes of this section, the decision-maker may take into account any partial
cancellation of the exploration licence on the request of the holder of the
licence under section 126, and reduce the percentage of the area of land over
which the renewal may not be granted.
(4)
The decision-maker may direct an applicant for
renewal of an exploration licence, within the time specified in the direction,
to nominate which part of the area of land is sought to be included in the new
exploration licence, where the licence may not be renewed over the whole area
of land.
(5)
The decision-maker may refuse to renew an
exploration licence if such a direction is not complied with within the time
specified in the direction (in addition to the other grounds for refusal in
clause 6 of Schedule 1B).
(6)
The decision-maker is not bound to renew an
exploration licence over the area nominated by the applicant in compliance
with a direction under this section or otherwise.
[42]Section 117 Authority to have
effect until application dealt with
Omit section 117 (2) and
(3).
[43]Section 118 Date from which
renewal of authority has effect
Omit section 118 (2).
[44]Section 120 Application for
approval of transfer
Omit “to another person” from section
120 (1).
[45]Section 120
(3)
Insert after section 120 (2):
(3)
The holder of an authority must not apply for a
transfer of the authority unless the holder has notified any person who has an
interest in the authority that is registered under section 161 of the proposed
application.
[46]Section 121 Power of
decision-maker in relation to transfer approval
applications
Insert at the end of section 121 (1):
Note—
Schedule 1B contains provisions about the grant
or refusal of an application for approval of the transfer of an
authority.
[47]Section 121 (2) and
(6)
Omit the subsections.
[48]Section 122 Registration of
transfers
Omit “regulations, and” from section
122 (2) (b). Insert instead “regulations.”.
[49]Section 122 (2)
(c)
Omit the paragraph.
[50]Section 122
(3)
Insert “, unless registration is prohibited
by section 124” after “new
authority”.
[51]Sections 125 and
126
Omit the sections. Insert instead:
125Grounds of cancellation of
authorities
(1)
The decision-maker may cancel an authority as to
the whole or any part of the land to which it relates:
(a)
if the holder of the authority lodges with the
Secretary a request that the decision-maker cancel the authority as to the
whole or part of the land, or
(b)
if the decision-maker is satisfied that the
holder of the authority has contravened a provision of this Act or the
regulations (whether or not the holder is prosecuted or convicted of any
offence arising from the contravention), or
(c)
if the decision-maker is satisfied that a person
has contravened a condition of the authority (whether or not the person is
prosecuted or convicted of any offence arising from the contravention),
or
(d)
if the decision-maker is satisfied that the
holder of the authority provided false or misleading information in or in
connection with an application for or with respect to the authority or any
report provided under this Act, or
(e)
if the decision-maker is satisfied that the
holder of the authority has failed to comply with the requirements of any
agreement or assessment under Part 13 in relation to the payment of
compensation, or
(f)
if the holder of the authority is convicted of
any offence relating to mining or minerals, or
(g)
if the decision-maker is satisfied that the
holder of the authority has failed to use the land the subject of the
authority in good faith for the purposes for which the authority has been
granted, or has used the land for a purpose other than that for which the
authority has been granted, or
(h)
if the decision-maker is satisfied that there has
been a contravention of a direction under section 240 or 240AA,
or
(i)
if the decision-maker is satisfied that the land
is required for a public purpose.
(2)
A request lodged with the Secretary for the
cancellation of an authority as to part only of the land to which it relates
must be accompanied by a description, prepared in the manner prescribed by the
regulations, of the land in respect of which the authority is to be
cancelled.
(3)
Action may be taken under this section whether or
not any other action has been taken in respect of the authority under this
Act.
126Cancellations of
authorities
(1)
Before cancelling an authority, otherwise than at
the request of the holder of the authority, the decision-maker is to cause a
written notice to be served on the holder of the authority that contains the
following:
(a)
notice that the authority is proposed to be
cancelled,
(b)
details of the grounds for the proposed
cancellation,
(c)
notice that the holder of the authority has a
specified period (of at least 28 days) in which to make representations with
respect to the proposed cancellation.
(2)
The decision-maker must not cancel an authority,
otherwise than at the request of the holder of the authority, unless:
(a)
the decision-maker has taken any such
representations received from the holder of the authority into consideration,
or
(b)
the period specified in the notice has elapsed
and no such representations have been received.
(3)
The decision-maker is to cause written notice of
the cancellation of an authority to be given to the holder of the
authority.
(4)
The cancellation takes effect on the date on
which the written notice of the cancellation is given to the holder of the
authority, or on a later date specified in the notice.
(5)
The cancellation of an authority does not affect
any liability incurred by the holder of the authority before the cancellation
took effect.
[52]Section 128 Appeals against
decisions concerning cancellations
Insert after section 128 (4):
(5)
This section does not apply to a cancellation
that was requested by the holder of the authority.
[53]Section
129A
Insert after section 129:
129AApplications and tenders to be
supported by proposed work program
(1)
An application for an authority, and any tender,
must be accompanied by a proposed work program that:
(a)
indicates the nature and extent of operations to
be carried out under the authority conferred by the relevant authority,
and
(b)
sets out commitments relating to the conduct of
those operations (such as the timing of the operations),
and
(c)
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
(d)
complies with the
regulations.
(2)
In the case of an application for a mining lease,
the requirement in subsection (1) can be satisfied by providing a current
development consent under the Environmental
Planning and Assessment Act 1979 for the development
(within the meaning of that Act) in respect of which the mining lease is being
applied for.
[54]Section 135 Waiver of minor
procedural matters
Omit the section.
[55]Part 8, Division 3,
heading
Omit the heading. Insert instead:
Division 3Registration of interests and
other matters
[56]Part 8, Division
3A
Omit section 163C. Insert instead:
Division 3AReports and
records
163CReports
(1)
The holder of an authorisation must prepare and
lodge reports of all operations carried out under the
authorisation.
Note—
Clause 7 (2) (g) of Schedule 1B provides that
reports may also be required by the conditions of an
authorisation.
(2)
The regulations may make provision for or with
respect to the following:
(a)
the content, form or lodgment of the
reports,
(b)
the exemption of any person, class of persons,
authorisations or class of authorisations from a requirement of this section
or the regulations under this section,
(c)
prohibiting or regulating the disclosure of
reports required to be lodged or made under this section or as a condition of
an authorisation.
(3)
A person who fails, without reasonable excuse, to
prepare or lodge a report in accordance with this section or the regulations
is guilty of an offence.
Maximum penalty:
(a)
in the case of a corporation—10,000 penalty
units, and, in the case of a continuing offence, a further penalty of 1,000
penalty units for each day that the offence continues, or
(b)
in the case of a natural person—2,000
penalty units, and, in the case of a continuing offence, a further penalty of
200 penalty units for each day that the offence
continues.
(4)
If there is an inconsistency between a condition
of an authorisation and a reporting requirement imposed under this section,
the condition prevails to the extent of the
inconsistency.
163DRecord-keeping
Any record required to be created and maintained
under this Act, the regulations, a condition of an authorisation or a term of
an activity approval must be kept in a legible form, or in a form that can
readily be reduced to a legible form for production to any
inspector.
163ERetention of records relating
to authorisations
The holder of an authorisation must retain any
records required to be created and maintained under this Act, the regulations,
a condition of an authorisation or a term of an activity approval in relation
to the authorisation for not less than 4 years after the expiry or
cancellation of the authorisation.
163FInformation provided, served
or lodged by agents
Any information received from or served or lodged
by an agent duly appointed and notified in accordance with the regulations on
behalf of any of the following persons is taken to have been received from or
served or lodged by that person:
(a)
the holder of an
authorisation,
(b)
an applicant or tenderer for an authorisation or
an applicant for the renewal, transfer or cancellation of an
authorisation,
(c)
an applicant for an activity approval or for the
cancellation of an activity approval,
(d)
any person who owns or occupies land over which
an authorisation is in force or to which an application for an authorisation
relates.
163GSamples of strata, minerals
and water
(1)
The holder of an authorisation must collect any
samples of strata, minerals, water or any other thing required by the
regulations.
(2)
Those samples must be collected, labelled for
reference or preserved in the manner required by the
regulations.
[57]Section 168 Suspension of
conditions
Omit the section.
[58]Section 168A Addition or
variation of conditions in certain circumstances
Omit the section.
[59]Section 186 Colliery
holdings
Omit the section.
[60]Section 190 Power of Secretary
in relation to applications
Omit section 190 (2).
[61]Section 190,
note
Insert at the end of section 190 (6):
Note—
Schedule 1B makes provision about the grant or
refusal of an application for a mineral claim and the conditions to which a
mineral claim is subject.
[62]Section 192 Conditions of
mineral claim
Omit the section.
[63]Section 198 Determination of
application for renewal of mineral claim
Omit section 198 (2) and
(3).
[64]Section 201 Determination of
application for transfer of mineral claim
Omit section 201 (2) and
(3).
[65]Section 203 Grounds of
cancellation or operational suspension
Insert at the end of section 203 (1) (h):
, or
(i)
if the Secretary reasonably considers that there
has been a contravention of a direction under section 240 or
240AA.
[66]Section 204 Cancellations of
mineral claims
Omit “section 203 (1) (b)–(e) or
(h)” from section 204 (1).
Insert instead “section 203 (1)
(b)–(f), (h) or (i)”.
[67]Section 210A Waiver of minor
procedural matters
Omit the section.
[68]Section 215 Suspension of
conditions
Omit the section.
[69]Section 218A
Records
Insert “, varied” after
“renewed” in section 218A (1) (b).
[70]Section 223A Special
conditions
Omit “program of work” from section
223A (2) (g). Insert instead “works”.
[71]Section 228 Power of Secretary
in relation to applications
Omit section 228 (2).
[72]Section 231 Form of
licence
Insert at the end of the section:
Note—
Schedule 1B applies to small-scale titles,
including opal prospecting licences.
[73]Section 233 Grounds of
cancellation of opal prospecting licence
Insert at the end of section 233 (1) (e):
, or
(f)
if the Secretary reasonably considers that there
has been a contravention of a direction under section 240 or
240AA.
[74]Section 234
Cancellations
Omit “section 233 (1) (b)–(d)”
from section 234 (1).
Insert instead “section 233 (1)
(b)–(d) or (f)”.
[75]Section 235A
Records
Insert at the end of section 235A (1) (c):
, and
(d)
the variation of any opal prospecting
licence.
[76]Part 11, Divisions 1 and
2
Omit the Divisions.
[77]Section 239E
Interpretation
Omit “240A” from the definition of
authorisation. Insert instead
“240AA”.
[78]Section 239E
(2)
Insert at the end of section 239E:
(2)
In this Division, a reference to giving a
direction or notice to a responsible person includes, where the responsible
person is a corporation that is subject to a scheme of arrangement,
receivership, winding up or other external administration, a reference to
giving a direction or notice to the administrator, receiver or liquidator of
the corporation.
[79]Section 240
Directions
Insert “or any condition specified in the
direction” after “the direction” in section 240
(2).
[80]Section 240
(2A)
Insert after section 240 (2):
(2A)
A direction served on a person under this
Division may require the person to prepare, and submit to the Secretary or
inspector, reports as to any of the following:
(a)
the measures the person proposes to take for the
purpose of complying with the direction,
(b)
the progress made by the person in implementing
any such measures.
[81]Sections 240A and
240AA
Omit section 240A. Insert instead:
240AProhibition
notices
(1)
If the Secretary or an inspector reasonably
suspects that a person who is not the holder of an authorisation is carrying
out, or is about to carry out, any activity in contravention of a provision of
this Act requiring an authorisation to be held when carrying out the activity,
the Secretary or inspector may direct the person to discontinue that activity
on the land specified in the notice.
(2)
The direction may be given orally, but must be
confirmed by written notice (a prohibition notice) issued to the
person as soon as practicable.
(3)
A prohibition notice must state:
(a)
the reasons for the issue of the prohibition
notice, and
(b)
the activity concerned, and
(c)
the provision of this Act that the Secretary or
inspector believes is being, or is likely to be, contravened by that
activity.
240AADirection to suspend
operations
(1)
The Secretary may, by written notice (a suspension notice), direct a
responsible person to suspend (for such period as is specified in the
direction or until further notice) all, or any specified, operations under an
authorisation or suspend any activity approval relating to the operations if
the Secretary considers that:
(a)
circumstances exist that could constitute a
ground for cancellation of the authorisation under section 125 (1)
(b)–(g), 203 (1) (b)–(e) or (h) or 233 (1) (b)–(d),
or
(b)
circumstances exist that could constitute a
ground for cancellation of the authorisation under section 125 (1) (h), 203
(1) (i) or 233 (1) (f), in relation to a breach of a direction under section
240 only, or
(c)
on any other ground specified in the
regulations.
(2)
Before giving a suspension notice, the Secretary
is to:
(a)
cause written notice of the proposed suspension
notice and the grounds for it to be served on the holder of the authorisation,
and
(b)
give the holder a reasonable opportunity to make
representations with respect to the proposed suspension notice,
and
(c)
take any such representations into
consideration.
(3)
The suspension notice takes effect on the date on
which it is given to the holder of the authorisation or on a later date
specified in the notice.
(4)
The suspension of an authorisation does not
affect any liability incurred by the holder of the authorisation before the
suspension took effect.
(5)
The holder of an authorisation is not entitled to
compensation merely because of the suspension of operations under the
authorisation in accordance with a suspension notice.
(6)
If a suspension notice under this section is
issued to a person who is not the current holder of the authorisation
concerned, the Secretary must cause a copy of the notice to be served on any
current holder within 5 days after the notice is issued.
(7)
A direction served on a person under this section
may require the person to prepare, and submit to the Secretary or inspector,
reports as to any of the following:
(a)
the measures the person proposes to take for the
purpose of complying with the direction,
(b)
the progress made by the person in implementing
any such measures.
(8)
Any costs or expenses incurred by the Crown under
this section are a debt due to the Crown by the person on whom the direction
was served and are recoverable in a court of competent
jurisdiction.
[82]Section 240B Revocation or
variation
Insert “or any condition specified in the
direction” after “specifications” in section 240B
(2).
[83]Section 240B
(3)
Insert “or the period of suspension”
after “the direction”.
[84]Section 240C Breach of
direction or notice
Insert “or notice” after
“direction” wherever occurring.
[85]Section 240D Effect of
direction
Omit “section 125” from the note to
the section. Insert instead “section 126”.
[86]Section 240E
Fee
Insert after section 240E (2):
(3)
A fee payable under this section is a debt due by
the holder of the authorisation concerned to the Crown and is recoverable in a
court of competent jurisdiction.
[87]Section
242AA
Insert after section 242:
242AAPrior notice of direction
under section 240 not required
A person who gives a direction under section 240
is not required to notify any person who may be affected by the direction
before giving the direction.
[88]Section 242C Derelict Mine
Sites Fund
Omit “section 246A” from section 242C
(3) (a). Insert instead “section 246”.
[89]Section 244
Definitions
Omit the definition of forfeiture
order.
[90]Section 246P Conditions for
mandatory audits
Omit section 246P (7). Insert instead:
(7)
This section does not affect the operation of the
following provisions of the Environmental
Planning and Assessment Act 1979:
(a)
section 89K (Approvals etc legislation that must
be applied consistently),
(b)
section 93 (Granting and modification of approval
by approval body),
(c)
section 115ZH (Approvals etc legislation that
must be applied consistently).
[91]Section 246V Protected
documents
Insert “or 240AA” after
“section 240” in section 246V (3).
[92]Part 12, Division 1C,
heading
Omit the heading.
[93]Section 248L Powers of
inspectors to require answers
Omit “Division” from section 248L
(1). Insert instead “Part”.
[94]Section 248M Recording of
evidence
Omit “Division” from section 248M
(1). Insert instead “Part”.
[95]Section 248N Power of
inspectors to demand name and address
Omit “referred to in section 248K”
from section 248N (1).
Insert instead “of this Act or the
regulations”.
[96]Section
248NA
Insert after section 248N:
248NAApplication of
Division
The powers in sections 248L, 248M and 248N may be
exercised whether or not a power of entry under this Division is being or has
been exercised.
[97]Section 248O Additional powers
of entry
Omit the section.
[98]Section
248T
Omit the section. Insert instead:
248TProvisions relating to
requirements to furnish records or information or answer
questions
(1)Warning to be given on each
occasion
A person is not guilty of an offence of failing
to comply with a requirement under this Part to furnish records or information
or to answer a question unless the person was warned on that occasion that a
failure to comply is an offence.
(2)Self-incrimination not an
excuse
A person is not excused from a requirement under
this Part to furnish records or information or to answer a question on the
ground that the record, information or answer might incriminate the person or
make the person liable to a penalty.
(3)Information or answer not
admissible if objection made
However, any information furnished or answer
given by a natural person in compliance with a requirement under this Part is
not admissible in evidence against the person in criminal proceedings (except
proceedings for an offence under this Part) if:
(a)
the person objected at the time to doing so on
the ground that it might incriminate the person, or
(b)
the person was not warned on that occasion that
the person may object to furnishing the information or giving the answer on
the ground that it might incriminate the person.
(4)Records
admissible
Any record furnished by a person in compliance
with a requirement under this Part is not inadmissible in evidence against the
person in criminal proceedings on the ground that the record might incriminate
the person.
(5)Further
information
Further information obtained as a result of a
record or information furnished or of an answer given in compliance with a
requirement under this Part is not inadmissible on the ground:
(a)
that the record or information had to be
furnished or the answer had to be given, or
(b)
that the record or information furnished or
answer given might incriminate the person.
(6)Section extends to requirement
to state name and address
This section extends to a requirement under this
Part to state a person’s name and address.
[99]Section 248V Extraterritorial
application
Omit the section.
[100]Section 261F Claim on and use
of security deposit
Insert after section 261F (3):
(3A)
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.
[101]Section 282 Liability to pay
royalty—publicly owned minerals
Omit “section 70 (4)” from section
282 (2). Insert instead “clause 8 (4) of Schedule
1B”.
[102]Section 292C Fees payable in
respect of authorisation
Insert after section 292C (2):
(3)
The holder of an authorisation must not fail to
pay any annual rental fee or annual administrative levy payable under this
Part for the authorisation.
Maximum penalty:
(a)
in the case of a corporation—100 penalty
units, or
(b)
in the case of a natural person—50 penalty
units.
[103]Section 292Q Failure to pay
fee
Omit the section.
[104]Section
292RA
Insert after section 292R:
292RAWaiver or refund of
fees
(1)
The Secretary may refund or waive payment of the
whole or any part of a fee that this Act requires to be paid, on his or her
own initiative or on the application of the person who is required to pay the
fee, if the Secretary is satisfied that there is good cause for doing
so.
(2)
The regulations may make further provision for or
with respect to the waiver or refund of fees payable under this
Act.
[105]Section
292SD
Omit the section. Insert instead:
292SDUse of money raised through
levy
The Secretary may, on the application of a
person, allocate any money collected by way of a levy under this Part for any
purpose if the Secretary is satisfied that the reasons for which the
application was made are consistent with the purposes for which the levy was
imposed and the allocation is appropriate and reasonable for achieving those
purposes.
[106]Section 292V Small-Scale
Titles Levy Fund
Omit “awards as grants” from section
292V (4) (a). Insert instead “allocates”.
[107]Section 361 Appointment of
inspectors
Insert after section 361 (3):
(4)
The Secretary must publish the following matters
in the Gazette:
(a)
the classes of persons appointed as inspectors
under subsection (1),
(b)
any conditions, limitations or restrictions, or
limitation on purposes, imposed by the Secretary on the appointment of persons
under this section.
[108]Section 364 Minister or
official not to be interested in authority or small-scale
title
Omit section 364 (1). Insert instead:
(1)
A person must not, while holding office in an
official capacity for the purposes of this Act and while exercising functions
in that capacity, hold either directly or indirectly a beneficial interest in
an authority or a small-scale title.
(1A)
The following are persons who hold office in an
official
capacity for the purposes of this Act:
(a)
the Minister,
(b)
an inspector,
(c)
a member of staff of the Department who exercises
functions under this Act or the Petroleum
(Onshore) Act 1991,
(d)
any other person who exercises any judicial or
official functions under this Act or the Petroleum
(Onshore) Act 1991.
[109]Section
364A
Insert after section 364:
364ADocuments or information
provided under conditions requiring reporting
(1)
Any document or information provided under a
condition of an authorisation referred to in clause 7 (2) (g) of Schedule 1B
may be taken into consideration by the Secretary or the relevant
decision-maker and used for the purposes of this Act, including for the
purposes of the prosecution of offences under this Act or the
regulations.
(2)
The Secretary is authorised, despite any other
Act or law, to provide a relevant agency with any such document or
information.
(3)
Any such document or information is required to
be provided by the holder of an authorisation, whether or not the document or
information might incriminate the holder.
(4)
However, information provided by a natural person
in compliance with a condition of an authorisation referred to in clause 7 (2)
(g) of Schedule 1B is not admissible in evidence against the person in
criminal proceedings (other than proceedings for an offence for providing
false and misleading information) if the person, when providing the
information, objected to the provision of the information on the grounds that
it might incriminate him or her.
(5)
In this section:
relevant
agency means:
(a)
the Department, or
(b)
a public authority engaged in administering or
executing the environment protection legislation, the Environmental Planning and Assessment Act
1979 or such other legislation, if any, as may be
prescribed by the regulations.
[110]Section
365A
Insert after section 365:
365AExchange of
information
(1)
The regulator may enter into an arrangement
(an
information sharing arrangement) with a relevant agency for
the purposes of sharing or exchanging any information that is held by the
regulator or the agency.
(2)
The information to which an information sharing
arrangement may relate is limited to information that assists the regulator or
relevant agency:
(a)
to determine applications made under the
resources legislation or legislation made under the corresponding law of
another jurisdiction, or
(b)
to determine whether to cancel, revoke, suspend
or vary an authorisation, activity approval or other approval, or an exemption
or declaration, that is granted, made or given under that legislation,
or
(c)
to facilitate the carrying out of inspections,
probity checks or other enforcement action under that
legislation.
(3)
Under an information sharing arrangement, the
regulator and the relevant agency are, despite any other Act or law of the
State, authorised:
(a)
to request and receive information that is held
by the other party to the arrangement, and
(b)
to disclose that information to the other
party.
(4)
In this section:
regulator means the Minister or the
Secretary.
relevant
agency means any of the following:
(a)
a government agency or holder of a statutory
office with any functions similar to or related to those imposed on the
regulator by or under the resources legislation,
(b)
any government agency of the Commonwealth or
another State or Territory with functions similar to or related to those
imposed on the regulator under any of the resources
legislation,
(c)
any other person or body, or person or body of a
class, prescribed by the regulations.
[111]Part 17A,
heading
Omit the heading. Insert instead:
Part 17AOffences, enforcement and
undertakings about contraventions
[112]Section
378A
Omit the section. Insert instead:
378AObstruction
A person must not, without reasonable excuse,
obstruct, hinder or resist any of the following persons in the exercise of a
function under this Act:
(a)
an inspector,
(b)
an authorised person within the meaning of
Division 3 of Part 11,
(c)
a member of staff of the Department who exercises
functions under this Act or the Petroleum
(Onshore) Act 1991,
(d)
any other person who exercises any judicial or
official functions under this Act or the Petroleum
(Onshore) Act 1991.
Maximum penalty:
(a)
in the case of a corporation—10,000 penalty
units, or
(b)
in the case of a natural person—2,000
penalty units.
[113]Section
378C
Omit the section. Insert instead:
378CProviding false or misleading
information
A person must not provide any information, record
or return in purported compliance with any requirement by or under this
Act:
(a)
knowing that the information, record or return is
false or misleading in a material particular, or
(b)
being reckless as to whether the information,
record or return is false or misleading in a material
particular.
Maximum penalty:
(a)
in the case of a corporation—1,000 penalty
units, or
(b)
in the case of a natural person—500 penalty
units.
[114]Section 378D Contravention of
condition of authorisation—offence by holder
Omit the penalties to section 378D (1). Insert
instead:
Maximum penalty:
(a)
in the case of a corporation—10,000 penalty
units, and, in the case of a continuing offence, a further penalty of 1,000
penalty units for each day that the offence continues, or
(b)
in the case of a natural person—2,000
penalty units, and, in the case of a continuing offence, a further penalty of
200 penalty units for each day that the offence
continues.
[115]Section 378D (2),
penalties
Omit the penalties. Insert instead:
Maximum penalty:
(a)
in the case of a corporation—10,000 penalty
units, and, in the case of a continuing offence, a further penalty of 1,000
penalty units for each day that the offence continues, or
(b)
in the case of a natural person—2,000
penalty units, and, in the case of a continuing offence, a further penalty of
200 penalty units for each day that the offence
continues.
[116]Section 378D
(3)
Omit “of a kind referred to in Part 1 of
Schedule 7”.
[117]Section
378EA
Insert after section 378E:
378EAAiding and abetting commission
of offence
A person who:
(a)
causes or permits the commission of an offence
against this Act or the regulations, or
(b)
aids, abets, counsels or procures another person
to commit an offence against this Act or the regulations,
or
(c)
attempts to commit an offence against this Act or
the regulations, or
(d)
conspires to commit an offence against this Act
or the regulations,
is guilty of that offence and liable to the penalty
prescribed by this Act or the regulations in relation to that
offence.
[118]Section 378F Liability of
directors etc for offences by corporation—offences attracting executive
liability
Omit section 378F (1). Insert instead:
(1)
For the purposes of this section, an executive
liability offence is an offence against section 5, 240C or
378D that is committed by a corporation.
[119]Section
378G
Omit the section. Insert instead:
378GContinuing
offences
(1)
If an offence against a provision of this Act is
committed by a person by reason of a continuing act or omission:
(a)
the person is liable, in addition to the penalty
otherwise applicable to the offence, to a penalty for each day during which
the act or omission continues of not more than an amount specified for that
offence, and
(b)
if the act or omission continues after the person
is convicted of the offence, the person is guilty of a further offence against
that provision and liable, in addition to the penalty otherwise applicable to
the further offence, to a penalty for each day during which the act or
omission continues after that conviction of not more than an amount specified
for that offence.
(2)
An obligation to do something is to be regarded
as continuing until the act is done despite the fact that a period within
which, or time before which, the act is required to be done has expired or
passed.
(3)
An omission is to be regarded as continuing for
as long as the thing required to be done remains undone after the end of the
period for compliance with the requirement.
(4)
However, this section does not apply to an
offence if the relevant provision of this Act or the regulations does not
provide for a penalty for a continuing offence.
[120]Section 378H Proceedings for
offences
Omit “239C,” from section 378H (1)
(a).
[121]Section 378H (1)
(a)
Omit “(in the case of a contravention of a
condition referred to in Part 1 of Schedule 7 or section
261B)”.
[122]Section 378H
(3)
Omit “specified in Part 2 of Schedule
7”.
Insert instead “under section 5, 6 (1),
12B, 12C, 12D or 291”.
[123]Section 378I Time within which
summary proceedings may be commenced
Omit “listed in Part 3 of Schedule 7”
wherever occurring in section 378I (1) (a) and (2) (a).
Insert instead “under section 5, 6 (1),
12B, 12C, 12D, 240C, 246R, 248S, 291, 378A or
378D”.
[124]Part 17A, Divisions 4A and
4B
Insert after Division 4:
Division 4ACourt orders in connection
with suspected contravention
378ZFAOrder for recovery of costs
related to prospecting or mining without authorisation
(1)
The Land and Environment Court or the Local Court
may make an order under this section if the court is satisfied, on the balance
of probabilities, that a person has prospected for or mined for a mineral
otherwise than in accordance with an authorisation.
(2)
The Land and Environment Court or the Local Court
may order a person to pay to a government agency or person costs and expenses
incurred, or compensation for loss or damage suffered, as the case may be, in
such amount as is fixed by the order, if it appears to the court that:
(a)
a government agency has incurred costs and
expenses in connection with:
(i)
the prevention, control, mitigation or management
of any environmental impact caused by the prospecting or mining,
or
(ii)
rehabilitating land or water damaged or affected
by the prospecting or mining, or
(b)
a person (including a government agency) has, by
reason of the prospecting or mining, suffered loss of or damage to property or
has incurred costs and expenses in preventing, controlling, mitigating or
managing any such loss or damage, or attempting to do
so.
(3)
However, the court is not to make an order for
payment to a person under the section to the extent that the payment would
represent the value of minerals extracted by that person without title that
the person who carried out the suspected unlawful prospecting or mining had
obtained by fossicking, prospecting operations or mining operations carried
out with the consent of that person and in connection with the suspected
contravention.
(4)
An order made by the Local Court under this
section is enforceable as if it were an order made by the court when
exercising jurisdiction under the Civil Procedure
Act 2005.
(5)
An order made by the Land and Environment Court
under this section is enforceable as if it were an order made by the Court in
Class 4 proceedings under the Land and
Environment Court Act 1979.
(6)
The Local Court may not make an order under this
section for the payment of an amount that exceeds the jurisdictional limit of
the Local Court under the Civil Procedure Act
2005.
(7)
The court may make an order under this section
whether or not the person against whom the order is made:
(a)
has been convicted of an offence under this Act
in relation to the prospecting or mining, or
(b)
has been issued with a penalty notice under this
Act in relation to the prospecting or mining, and whether or not the amount of
penalty prescribed for the offence has been paid under any such penalty
notice, or
(c)
has had any other action taken against the person
in respect of an offence under this Act in relation to the prospecting or
mining.
(8)
This section does not prevent the taking of
proceedings for an offence of prospecting or mining for a mineral except in
accordance with an authorisation.
Division 4BEnforceable
undertakings
378ZFBSecretary may accept
enforceable undertakings
(1)
The Secretary may accept a written undertaking
(an enforceable undertaking) given by a
person in connection with a matter relating to a contravention or alleged
contravention by the person of this Act.
(2)
The giving of an enforceable undertaking does not
constitute an admission of guilt by the person giving it in relation to the
contravention or alleged contravention to which the undertaking
relates.
(3)
The Secretary must issue, and make public,
general guidelines for or in relation to the acceptance of enforceable
undertakings under this Act.
378ZFCNotice of decision and reasons
for decision
(1)
The Secretary must give the person seeking to
make an enforceable undertaking written notice of the Secretary’s
decision to accept or reject the enforceable undertaking and of the reasons
for the decision.
(2)
The Secretary must publish, and make public,
notice of a decision to accept an enforceable undertaking and the reasons for
that decision.
378ZFDWhen an enforceable
undertaking is enforceable
An enforceable undertaking takes effect and
becomes enforceable when the Secretary’s decision to accept the
undertaking is given to the person who made the undertaking or at any later
date specified by the Secretary.
378ZFECompliance with enforceable
undertaking
A person must not contravene an enforceable
undertaking made by that person that is in effect.
Maximum penalty:
(a)
in the case of a corporation—10,000 penalty
units, or
(b)
in the case of a natural person—2,000
penalty units.
378ZFFContravention of enforceable
undertaking
(1)
The Secretary may apply to the District Court for
an order if a person contravenes an enforceable
undertaking.
(2)
If the Court is satisfied that the person who
made the enforceable undertaking has contravened the undertaking, the Court,
in addition to the imposition of any penalty, may make one or both of the
following orders:
(a)
an order directing the person to comply with the
undertaking,
(b)
an order discharging the
undertaking.
(3)
In addition to the orders referred to in
subsection (2), the Court may make any other order that the Court considers
appropriate in the circumstances, including orders directing the person to pay
to the State:
(a)
the costs of the proceedings,
and
(b)
the reasonable costs of the Secretary in
monitoring compliance with the enforceable undertaking in the
future.
Note—
Section 378ZFH specifies circumstances affecting
proceedings for a contravention for which an enforceable undertaking has been
given.
378ZFGWithdrawal or variation of
enforceable undertaking
(1)
A person who has made an enforceable undertaking
may at any time, with the written agreement of the Secretary:
(a)
withdraw the undertaking, or
(b)
vary the undertaking.
(2)
However, the provisions of the undertaking cannot
be varied to provide for a different alleged contravention of the
Act.
(3)
The Secretary must publish, and make public,
notice of the withdrawal or variation of an enforceable
undertaking.
378ZFHProceeding for alleged
contravention
(1)
Subject to this section, no proceedings for a
contravention or alleged contravention of this Act may be brought against a
person if an enforceable undertaking is in effect in relation to that
contravention.
(2)
No proceedings may be brought for a contravention
or alleged contravention of this Act against a person who has made an
enforceable undertaking in relation to that contravention and has completely
discharged the enforceable undertaking.
(3)
The Secretary may accept an enforceable
undertaking in relation to a contravention or alleged contravention before
proceedings in relation to that contravention have been
finalised.
(4)
If the Secretary accepts an enforceable
undertaking before the proceedings are finalised, the Secretary must take all
reasonable steps to have the proceedings discontinued as soon as
possible.
[125]Sections 387B and
387C
Insert after section 387A:
387BExtraterritorial
application
A notice may be given under this Act to a person
in respect of a matter even though the person is outside the State or the
matter occurs or is located outside the State, so long as the matter relates
to the administration of this Act (including, but not limited to investigation
of, or enforcement action relating to, offences against this
Act).
387CWaiver of minor procedural
matters
(1)
The Minister may waive any requirement of this
Act or the regulations:
(a)
as to the time within which anything is required
to be done (but not the time for lodging any application for renewal of an
authorisation after the date of expiry), or
(b)
as to the details to be contained in any notice
to be served, lodged or caused to be published by the applicant,
or
(c)
as to the documents or particulars to accompany
the application, or
(d)
as to the furnishing of information by the
applicant.
(2)
This section does not authorise the Minister to
waive a requirement unless the Minister is satisfied that the waiver is
unlikely:
(a)
to adversely affect any person’s rights
under this Act or the regulations, or
(b)
to result in any person being deprived of
information necessary for the effective exercise of those
rights.
[126]Section 388
Regulations
Insert after section 388 (1):
(1A)
The regulations may adopt or provide for the
adoption of any document (including, for example, a code of practice or set of
standards published by any person or body) and for the application of the
provisions of that document, as in force for the time being, for any of the
purposes of this Act or the regulations.
[127]Schedule
1B
Insert in appropriate order before Schedule
1:
Schedule 1BFurther provisions relating to
authorisations generally
Part 1Preliminary
1Meaning of “relevant
decision-maker”
In this Schedule:
relevant
decision-maker, in relation to a decision concerning an
authorisation made under a provision of this Act, means the person who makes
that decision for the purposes of that provision.
2Application of
Schedule
(1)
This Schedule applies to and in respect of
applications and tenders for, and decisions made by the relevant
decision-maker in relation to, the following:
(a)
the grant of an authorisation (including the
grant of an authorisation to a tenderer),
(b)
the renewal of an
authorisation,
(c)
the approval of the transfer of an
authorisation,
(d)
the imposition of conditions on, or variation of
conditions of, an authorisation,
(e)
the suspension of an
authorisation.
(2)
This Schedule does not apply to environmental
assessment permits under section 252.
Part 2Considering
applications
3Protection of the environment
must be taken into account in considering applications
(1)
The relevant decision-maker must take into
account the need to conserve and protect the environment in or on the land
over which the authorisation is sought (or, in the case of a variation, to
which it applies) in considering an application to which this Schedule
applies.
(2)
The relevant decision-maker may cause such
studies (including environmental impact studies) to be carried out as the
relevant decision-maker considers necessary to assist in making a decision on
the application.
(3)
If public money is spent under subclause (2) in
having studies carried out or engaging persons to provide advice, the relevant
decision-maker may, by written notice, require the applicant concerned to
reimburse the Government, within the time specified in the notice, for the
money, or any part of the money, reasonably incurred.
(4)
The relevant decision-maker may recover from the
applicant any unpaid amounts specified in the notice as a debt in a court of
competent jurisdiction.
4Other matters that may be
taken into account in considering applications
Without limiting the generality of any other
provision of this Act, the relevant decision-maker may take into account any
one or more of the following when considering an application to which this
Schedule applies:
(a)
whether, in the opinion of the relevant
decision-maker, the applicant meets the minimum standards, made public by the
relevant decision-maker, required to be met with respect to the technical and
financial capability to carry out the proposed work
program,
(b)
if the application relates to a
transfer—whether, in the opinion of the relevant decision-maker, the
transferee meets the minimum standards, made public by the relevant
decision-maker, required to be met with respect to the technical and financial
capability to carry out the proposed work program,
(c)
if the applicant is a natural person—the
compliance history of the applicant,
(d)
if the applicant is a body corporate—the
compliance history of any director of the body corporate or of any related
body corporate,
(e)
if the application relates to a transfer and the
proposed transferee is a natural person—the compliance history of the
proposed transferee,
(f)
if the application relates to a transfer and the
proposed transferee is a body corporate—the compliance history of any
director of that body corporate,
(g)
whether, in the opinion of the relevant
decision-maker, the work program proposed to be carried out by the applicant
meets the minimum standards, made public by the relevant decision-maker,
required to be met with respect to work programs for an authorisation of the
kind concerned.
5Relevant decision-maker may
require further information
(1)
The relevant decision-maker may require a person
who makes an application to which this Schedule applies to furnish further
information in connection with the application, including (if the applicant is
a body corporate) information as to the extent to which the controlling power
in the body corporate’s affairs is held by:
(a)
a foreign company within the meaning of the
Corporations Act 2001 of the
Commonwealth, or
(b)
a company registered under that Act that is taken
for the purposes of that Act to be registered in a State or Territory other
than New South Wales, or
(c)
a natural person who is a resident of a foreign
country.
(2)
The application may be refused if the applicant
does not furnish that further information within the period specified by the
relevant decision-maker by written notice when the request for further
information is made.
6Grounds for refusal of
applications
Without limiting the generality of any other
provision of this Act, the relevant decision-maker may refuse an application
to which this Schedule applies on any one or more of the following
grounds:
(a)
the relevant decision-maker considers that the
applicant (or if the application relates to a transfer, the transferee) has an
unsatisfactory compliance history,
(b)
the relevant decision-maker considers that the
applicant (or if the application relates to a transfer, the transferee) does
not meet the applicable minimum standards with respect to work programs and
the technical and financial capability to carry out the proposed work
program,
(c)
the applicant has not paid any fee payable in
connection with the application,
(d)
the applicant has failed to lodge any information
required to accompany the application within 10 business days after the
application is lodged,
(e)
in the case of an application relating to a
mineral claim or opal prospecting licence—that the applicant has failed
to pay any levy required under section 292SA in relation to the claim or
licence.
Part 3Conditions of
authorisations
7Conditions of
authorisations
(1)
An authorisation is subject to:
(a)
any condition imposed by the relevant
decision-maker under this Schedule (including any variation of such a
condition), and
(b)
any condition imposed by or under section 246P or
261B, and
(c)
in the case of a mineral claim—the
conditions referred to in clause 8, and
(d)
in the case of an opal prospecting
licence—the conditions referred to in clause 9, and
(e)
any condition prescribed by the
regulations.
(2)
Without limiting the generality of subclause (1),
conditions imposed by the relevant decision-maker or prescribed by the
regulations may include conditions relating to the following:
(a)
the development and conduct of mining
operations,
(b)
environmental management, protection and
rehabilitation, including requiring the holder of the authorisation to:
(i)
carry out activities or not to carry out
activities in order to protect, prevent, control or mitigate harm to the
environment, and
(ii)
rehabilitate land or water that is or may be
affected by activities under the authorisation,
(c)
compliance with codes of practice or sets of
standards published by any person or body,
(d)
ensuring the safety of the public in relation to
prospecting and mining operations,
(e)
the administration of
authorisations,
(f)
community relations,
(g)
requiring the holder to provide the Minister with
reports detailing any non-compliance with the conditions of the authorisation,
or any requirements of this Act or the regulations relating to activities
under the authorisation, and any action taken, or to be taken, to prevent any
recurrence, or to mitigate the effects of that
non-compliance.
(3)
Any obligation imposed on the holder of an
authorisation in relation to environmental management, protection and
rehabilitation:
(a)
continues to have effect despite the cancellation
of the authorisation or it ceasing to have effect, and
(b)
can be imposed despite anything to the contrary
in section 93 of the Environmental Planning and Assessment
Act 1979.
(4)
Unless an exemption from conditions imposed by
regulations applies, in the event of an inconsistency between conditions
imposed by the relevant decision-maker and those imposed by regulations, the
conditions imposed by the regulations prevail to the extent of any
inconsistency.
8Additional conditions of
mineral claims
(1)
In addition to the conditions referred to in
clause 7, a mineral claim is subject to:
(a)
any special conditions that apply to the land,
and
(b)
the conditions imposed on the holder of the claim
under section 211 as to his or her exercise of any right of way under that
section in respect of the claim area, and
(c)
the conditions to which the holder of the claim
is subject pursuant to any registered access management plan in force in
respect of that land, and
(d)
any other conditions (not inconsistent with any
other condition referred to in this subclause) that the Secretary imposes when
the claim is granted, or at any other time under a power conferred by this
Act.
(2)
Without limiting the generality of subclause (1),
a condition may be imposed on a mineral claim requiring the holder of the
claim to pay royalty to the Crown on any minerals recovered under the
claim.
(3)
In addition to any condition imposed by or under
subclause (1), 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.
(4)
A mining lease granted on the basis of a tender
lodged under section 53 is taken to include a condition in the terms specified
in the tender for the purposes of section 53 (3).
9Additional conditions of opal
prospecting licence
In addition to the conditions referred to in
clause 7, an opal prospecting licence is subject to:
(a)
any special conditions that apply, pursuant to
section 223A, to the opal prospecting block over which the licence is granted,
and
(b)
the conditions imposed on the holder of the
licence, pursuant to section 235C, as to his or her exercise of any right of
way under that section in respect of the opal prospecting block over which the
licence is granted, and
(c)
any other conditions (not inconsistent with any
other condition referred to in this section) that the Secretary imposes when
the licence is granted, or at any other time under a power conferred by this
Act.
10Conditions imposed on
authorisations by relevant decision-maker
(1)
The relevant decision-maker may impose conditions
on an authorisation:
(a)
at the time of the grant of the authorisation,
or
(b)
at any later time, as permitted by this
Schedule.
(2)
A condition imposed by the relevant
decision-maker takes effect as follows:
(a)
if the condition is imposed on the grant of an
authorisation—when the grant takes effect,
(b)
if the condition is imposed on the renewal of an
authorisation—when the renewal takes effect,
(c)
if the condition is imposed when a full or
partial transfer of an authorisation is approved under this Act—when the
transfer is registered under this Act,
(d)
if the condition is a variation under clause
12—as provided by clause 12 (7),
(e)
in any other case—when written notice of
the imposition of the condition is served on the holder of the authorisation
or at a later time specified in the notice.
11Exemption from conditions
imposed by regulations
(1)
The relevant decision-maker may, by order
published in the Gazette, exempt the holder of an authorisation from
compliance with a condition imposed by the regulations.
(2)
An exemption may be granted subject to
conditions.
(3)
An exemption may:
(a)
apply generally or be limited in its application
by reference to specified exceptions or factors, and
(b)
apply differently according to different factors
of a specified kind, and
(c)
be granted for a specified period or for an
indefinite period, and
(d)
if granted for a specified period—be
granted before, during or after that period.
(4)
The relevant decision-maker may vary or revoke an
exemption (including by imposing, varying or revoking a condition of the
exemption) at any time by notice in writing to the holder of the
authorisation.
(5)
The regulations may make provision for or with
respect to exemptions.
Part 4Variation of authorisations
and variation or suspension of their conditions
12Variation of authorisations by
relevant decision-maker
(1)
The relevant decision-maker may vary an
authorisation (including the conditions of an
authorisation).
(2)
A variation of an authorisation may
include:
(a)
the attaching of a condition to an authorisation
(whether or not any conditions have already been attached),
or
(b)
the substitution of a condition,
or
(c)
the omission of a condition,
or
(d)
the amendment of a condition,
or
(e)
the variation of the instrument by which an
authorisation is granted, including so as to:
(i)
update the instrument, or
(ii)
correct a minor error or misdescription,
or
(iii)
consolidate variations made to the
authorisation.
(3)
An authorisation may be varied on application by
the holder of the authorisation or on the initiative of the relevant
decision-maker.
(4)
An authorisation may be varied at any time during
its currency, including on its being transferred to another
person.
(5)
Except in the case of the renewal or transfer of
an authorisation, the decision-maker is not to vary a prescribed condition
subsequent to the grant of the authorisation unless the decision-maker:
(a)
has given the holder of the authorisation notice
of the draft variation, and
(b)
has invited the making of submissions to the
decision-maker about the proposed variation and specified a deadline for the
making of those submissions that is at least 28 days after the publication of
the notice, and
(c)
has either received such submissions and has
taken them into consideration or has not received any such submission after
the deadline has elapsed.
(6)
An authorisation is varied by notice in writing
given to the holder of the authorisation.
(7)
The variation of a condition by the relevant
decision-maker takes effect as follows:
(a)
if the condition is varied on the renewal of an
authorisation—when the renewal takes effect,
(b)
if the condition is varied when a full or partial
transfer of an authorisation is approved under this Act—when the
transfer is registered under this Act,
(c)
if a prescribed condition is varied other than at
the renewal of an authorisation or when a full or partial transfer of an
authorisation is approved under this Act—28 days after written notice of
the variation of the condition is served on the holder of the authorisation or
at a later time specified in the notice,
(d)
in any other case—when written notice of
the variation of the condition is served on the holder of the authorisation or
at a later time specified in the notice.
(8)
In this clause:
prescribed condition means a
condition that is not:
(a)
imposed on the application of the holder of the
authorisation, or
(b)
imposed under section 246P or
261B.
(9)
This clause does not apply to a condition that is
prescribed by the regulations.
13Variation of conditions
imposed by the regulations
(1)
Before a regulation is made that varies any
condition of an authorisation imposed by the regulations, the relevant
decision-maker is required to ensure that:
(a)
a notice is published in a daily newspaper
circulating throughout New South Wales:
(i)
stating the objects of the proposed regulation,
and
(ii)
advising where a copy of the regulation may be
obtained or inspected, and
(iii)
inviting comments and submissions within a
specified time, but not less than 28 days from publication of the notice,
and
(b)
all the comments and submissions received within
the time specified in the notice are considered.
(2)
For the purposes of this clause, a regulation
varies a condition of an authorisation if the regulation:
(a)
imposes a new condition (whether or not any
conditions have already been imposed), or
(b)
substitutes a condition imposed by the
regulations, or
(c)
omits a condition imposed by the regulations,
or
(d)
amends a condition imposed by the
regulations.
14Suspension of conditions of
authorisations
(1)
The relevant decision-maker may (whether on the
application of the holder of the authorisation or on the initiative of the
relevant decision-maker) suspend any of the conditions of an authorisation
(other than a mineral claim) for such period, or until the happening of such
event, as the relevant decision-maker may determine.
(2)
The Secretary may (whether on the application of
the holder of the claim or otherwise) suspend any of the conditions of a
mineral claim (other than conditions of the kind referred to in section 175
(4)) for such period, or until the happening of such event, as the Secretary
may determine.
(3)
A condition of a mineral claim that is suspended
on the application of the holder may not be suspended for more than 3 months
at a time.
(4)
The suspension of conditions of an authorisation
may be granted unconditionally or subject to such conditions as the relevant
decision-maker may consider appropriate.
(5)
The suspension of the conditions of an
authorisation takes effect on the date on which written notice of the
suspension is served on the holder of the authorisation or on such later date
as may be specified in the notice.
(6)
An application for suspension of the conditions
of an authorisation may be withdrawn by means of a notice of withdrawal signed
by the applicant and lodged with the relevant
decision-maker.
(7)
The application ceases to have effect when the
notice is lodged.
(8)
The withdrawal of an application under this
clause is irrevocable.
(9)
The relevant decision-maker may vary the
suspension of the conditions of an authorisation (including the conditions to
which the suspension is subject).
(10)
A variation includes the attaching of a condition
to the suspension, the substitution of a condition, the omission of a
condition or the amendment of a condition.
(11)
A suspension of the conditions of an
authorisation is varied by notice in writing given to the holder of the
authorisation.
(12)
The suspension of any condition of an
authorisation under this clause does not prevent any action being taken under
this Act in respect of the authorisation (including variation under clause
12).
(13)
This clause does not apply to a condition that is
prescribed by the regulations.
[128]Schedule 1 Public consultation
with respect to the granting of assessment leases and mining
leases
Omit clause 21 (4) (b). Insert instead:
(b)
must contain a description, prepared in the
approved manner, of the land over which the lease is sought,
and
[129]Schedule 4 Regulation making
powers
Omit “, refund or waiver” from clause
8.
[130]Schedule 6 Savings,
transitional and other provisions
Insert after clause 118:
118ADelegations of functions under
Environmental Planning and Assessment Act
1979
(1)
This clause applies to the exercise of a function
purported to be delegated by the Minister under section 153A of the Environmental Planning and Assessment Act
1979 before the substitution of section 363 (1) of this
Act by the 2008 Act, whether the delegation was for the purposes associated
with functions under this Act or any other Act administered by the
Minister.
(2)
The delegation of any such function is taken to
have been validly done on and from the date of the delegation if the
delegation could have been made had section 363 (1), as so substituted been in
force when the delegation was made.
[131]Schedule
6
Insert at the end of the Schedule with
appropriate Part and clause numbering:
PartProvisions consequent on
enactment of Mining and Petroleum Legislation
Amendment (Harmonisation) Act 2015
Definition
In this Part:
2015
amending Act means the Mining and
Petroleum Legislation Amendment (Harmonisation) Act
2015.
Pending
applications
An application for an authorisation, or transfer
or renewal of an authorisation, made but not decided before the commencement
of this clause and that complied with this Act, as in force before the
Act’s amendment by the 2015 amending Act, is taken to have been duly
made under this Act, as amended.
Existing
conditions
Subject to this Part, a condition of an
authorisation, in force under section 26, 44, 70, 238 or 239 immediately
before the repeal of that section by the 2015 amending Act, continues to have
effect and is taken to be a condition imposed under Schedule
1B.
Existing suspension of
condition of authorisation
A condition of an authorisation that was,
immediately before the repeal of section 168 by the 2015 amending Act,
suspended, is taken to have been suspended under clause 14 of Schedule 1B, on
the date of the original suspension.
Existing “activity
approval” conditions in exploration licences
(1)
Any condition to which an exploration licence was
subject immediately before the commencement of section 23A, as inserted by the
2015 amending Act, that requires approval to carry out operations and that is
identified in the licence using one of the following phrases is void:
(a)
Category 1 prospecting
operations,
(b)
Category 2 prospecting
operations,
(c)
assessable prospecting
operations.
(2)
However, an approval granted pursuant to a
condition referred to in subclause (1) that was in force immediately before
the commencement of this clause is taken to be an activity approval granted
under section 23A and can be varied or voluntarily cancelled
accordingly.
(3)
An application for approval to carry out
prospecting operations made in compliance with a condition imposed on an
assessment lease under section 44, being an application that had not been
dealt with before the commencement of section 44A (as inserted by the 2015
amending Act), is to be dealt with in accordance with section 44A, as if it
had been made under that section.
(4)
For the avoidance of doubt, compliance with
section 23A or 44A is required in respect of any assessable prospecting
operation (within the meaning of that section) carried out after the
commencement of the section, even if it began before the commencement of the
section.
Existing directions to
rehabilitate land
A direction given under section 240, as in force
before its amendment by the 2015 amending Act, and having effect immediately
before that amendment, continues in force after that amendment as if section
240 had not been substituted.
Environmental
information
Section 365A, as inserted by the 2015 amending
Act, does not apply to information about harm caused, or likely to be caused,
to the environment obtained by the Secretary before the commencement of the
section.
Existing notices and
conditions
Section 378C, as inserted by the 2015 amending
Act, extends to information given after the commencement of that section in
compliance with a notice given or condition imposed under this Act before the
commencement of that section if the time by which, or period within which, the
notice or condition must have been complied with had not expired immediately
before that commencement.
Time for commencement of
proceedings
Section 378I, as in force before the amendment of
that section by the 2015 amending Act, continues to apply in relation to
proceedings for offences alleged to have been committed before the
commencement of the amendments.
[132]Schedule 7
Offences
Omit the Schedule.
[133]Dictionary
Insert in alphabetical order:
activity
approval—see sections 23A and 44A.
assessable prospecting operation
means any prospecting operation that is not exempt development within the
meaning of the Environmental Planning and Assessment
Act 1979.
director of a body corporate or
corporation includes any person involved in the management of the affairs of
the body corporate or corporation.
enforceable undertaking means an
undertaking given under Division 4B of Part 17A.
related
body corporate has the same meaning as in the Corporations
Act 2001 of the Commonwealth.
resources
legislation means this Act, the Petroleum (Onshore) Act 1991 and the
regulations and other instruments made under those Acts.
work
program means a work program referred to in section
129A.
[134]Dictionary, definition of
“Department”
Omit the definition. Insert instead:
Department means the Department of
Industry, Skills and Regional Development.
Schedule 2Amendment of Petroleum (Onshore) Act 1991 No
84
[1]Section
2A
Insert after section 2:
2AObjects
The objects of this 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, and in particular:
(a)
to recognise and foster the significant social
and economic benefits to New South Wales that result from the efficient
development of petroleum resources, and
(b)
to provide an integrated framework for the
effective regulation of titles for petroleum prospecting and mining,
and
(c)
to provide a framework for compensation to
landholders for loss or damage resulting from such operations,
and
(d)
to ensure an appropriate return to the State from
petroleum resources, and
(e)
to require the payment of security to provide for
the rehabilitation of sites damaged or affected by such operations,
and
(f)
to ensure effective rehabilitation of disturbed
land and water, and
(g)
to ensure petroleum resources are identified and
developed in ways that minimise impacts on the
environment.
[2]Section 3
Definitions
Insert in alphabetical order in section 3
(1):
activity
approval—see sections 31A and 36A.
assessable prospecting operation
means any prospecting operation that is not exempt development within the
meaning of the Environmental Planning and Assessment
Act 1979.
director of a body corporate or
corporation includes any person involved in the management of the affairs of
the body corporate or corporation.
enforceable undertaking means an
undertaking given under Division 6 of Part 13A.
environment includes all aspects of
the surroundings of humans, whether affecting any human as an individual or in
his or her social grouping.
function includes a power, authority
or duty, and exercise a function includes perform
a duty.
inspector means an inspector within
the meaning of the Mining Act
1992.
prospecting operations means
operations carried out in the course of prospecting.
public
authority means a public authority constituted by or under
an Act, and includes:
(a)
a Government Department, and
(b)
a statutory body representing the Crown, a State
owned corporation within the meaning of the State Owned
Corporations Act 1989 and a subsidiary (within the meaning
of that Act), and
(c)
a council, and
(d)
a member of staff or other person who exercises
functions on behalf of a public authority.
related
body corporate has the same meaning as in the Corporations
Act 2001 of the Commonwealth.
resources
legislation means this Act, the Mining
Act 1992 and the regulations and other instruments made
under those Acts.
work
program means a work program referred to in section
14.
[3]Section 3 (1), definition of
“Department”
Omit the definition. Insert instead:
Department means the Department of
Industry, Skills and Regional Development.
[4]Part 3 Petroleum
titles
Insert after the heading to the Part:
Note—
Schedule 1B contains further provisions about the
following:
(a)
the consideration of applications for the grant,
renewal or transfer of petroleum titles,
(b)
the grounds for refusal of such
applications,
(c)
the imposition of conditions on, and the
variation of conditions of, petroleum titles,
(d)
the variation and suspension of petroleum
titles.
[5]Section 9 Areas over which
petroleum titles may not be granted
Omit “The Minister may grant a petroleum
title over any onshore area within the State, except” from section 9
(1).
Insert instead “The Minister must not grant
a petroleum title over any of the following land (the excluded
areas)”.
[6]Section 9
(3)–(6)
Omit the subsections.
[7]Section
14
Omit the section. Insert instead:
14Applications to be supported
by proposed work program
(1)
An application for a petroleum title must be
accompanied by a proposed work program that:
(a)
indicates the nature and extent of operations to
be carried out under the authority conferred by the relevant petroleum title,
and
(b)
sets out commitments relating to the conduct of
those operations (such as the timing of the operations),
and
(c)
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
(d)
complies with the
regulations.
(2)
In the case of an application for a production
lease, the requirement in subsection (1) can be satisfied by providing a
current development consent under the Environmental
Planning and Assessment Act 1979 for the conduct of
petroleum mining operations, or the construction and maintenance of works or
structures, in respect of which the production lease is being applied
for.
[8]Section 15 Applications to be
supported by evidence of financial capability
Omit “standing” from section 15 (1)
(a). Insert instead “capability”.
[9]Section 15 (2) and
(3)
Omit the subsections.
[10]Section
16
Insert after section 15:
16Grant or refusal of petroleum
titles
(1)
After considering an application for a petroleum
title, the Minister:
(a)
may grant the petroleum title over land of any
title or tenure in any onshore area within the State other than an excluded
area within the meaning of section 9, or
(b)
may refuse the
application.
(2)
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.
(3)
Notification of the grant of a petroleum title or
of a refusal to grant an application is to be published in the
Gazette.
(4)
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).
Note—
Schedule 1B contains provisions about the
consideration of applications for petroleum titles and the grounds for refusal
of such applications.
[11]Section 17 Form of
titles
Omit the section.
[12]Section 19 Renewal of
title
Insert at the end of section 19 (1):
Note—
Schedule 1B contains provisions about the
consideration of applications for the renewal of petroleum titles and the
grounds for refusal of such applications.
[13]Section 19 (2AA) and
(2AB)
Insert after section 19 (2A):
(2AA)
An application for renewal of an exploration
licence:
(a)
may be made in respect of one or more parts (but
not more than such number of parts as may be prescribed by the regulations) of
the land comprised in the exploration licence when the application for renewal
is made, and
(b)
if it relates to renewal in respect of part only
of the land comprised in the licence—must be accompanied by a
description, prepared in the manner prescribed by the regulations, of the land
over which renewal of the licence is sought, and
(c)
may include a description of any special
circumstances that the applicant claims (for the purposes of section 19B)
exist that justify the area of land over which the licence is renewed
exceeding 75% of the size of:
(i)
the area over which the licence was originally
granted (in the case of a first renewal of the licence),
or
(ii)
the area over which its last previous renewal was
granted (in any other case).
(2AB)
An application for renewal must be accompanied
by:
(a)
the application fee prescribed by the
regulations, and
(b)
any information that is prescribed by the
regulations.
[14]Section 19 (3) and
(3A)
Omit the subsections.
[15]Section 19
(5)
Omit “(including requirements with respect
to fees)”.
[16]Section
19B
Insert after section 19A:
19BLand over which exploration
licences may be renewed
(1)
The area of land over which an exploration
licence may be renewed is not to exceed 75% of the size of:
(a)
the area over which the licence was originally
granted, in the case of a first renewal of the licence, or
(b)
the area over which its last previous renewal was
granted, in any other case.
(2)
However, the Minister may grant a renewal over
more than 75% of the size of the area over which the licence was originally or
last granted if:
(a)
the applicant for renewal claims that special
circumstances exist that justify doing so, and
(b)
the Minister is satisfied that special
circumstances exist that justify doing so.
(3)
Without limiting the considerations available to
the Minister in determining whether special circumstances exist for the
purposes of this section, the Minister may take into account any partial
cancellation of the exploration licence on the request of the holder of the
licence under section 22, and reduce the percentage of the area of land over
which the renewal may not be granted.
(4)
The Minister may direct an applicant for renewal
of an exploration licence, within the time specified in the direction, to
nominate which part of the area of land is sought to be included in the new
exploration licence, where the licence may not be renewed over the whole area
of land.
(5)
The Minister may refuse to renew an exploration
licence if such a direction is not complied with within the time specified in
the direction (in addition to the other grounds for refusal in clause 5 of
Schedule 1B).
(6)
The Minister is not bound to renew an exploration
licence over the area nominated by the applicant in compliance with a
direction under this section or otherwise.
[17]Section 20A Waiver of minor
procedural matters
Omit the section.
[18]Section 21 Grounds on which
application may be refused
Omit the section.
[19]Sections
22–22B
Omit section 22. Insert instead:
22Grounds of cancellation of
petroleum titles
(1)
The Minister may cancel a petroleum title as to
the whole or any part of the land to which it relates:
(a)
if the holder of the petroleum title lodges with
the Secretary a request that the Minister cancel the petroleum title as to the
whole or part of the land, or
(b)
if the Minister is satisfied that the holder of
the petroleum title has contravened a provision of this Act or the regulations
(whether or not the holder is prosecuted or convicted of any offence arising
from the contravention), or
(c)
if the Minister is satisfied that a person has
contravened a condition of the petroleum title (whether or not the person is
prosecuted or convicted of any offence arising from the contravention),
or
(d)
if the Minister is satisfied that the holder of
the petroleum title provided false or misleading information in or in
connection with an application for or with respect to the petroleum title or
any report provided under this Act, or
(e)
if the Minister is satisfied that the holder of
the petroleum title has failed to comply with the requirements of any
agreement or assessment under Part 11 in relation to the payment of
compensation, or
(f)
if the holder of the petroleum title is convicted
of any offence relating to prospecting, mining or petroleum,
or
(g)
if the Minister is satisfied that the holder of
the petroleum title has failed to use the land the subject of the petroleum
title in good faith for the purposes for which the petroleum title has been
granted, or has used the land for a purpose other than that for which the
petroleum title has been granted, or
(h)
if the Minister is satisfied that there has been
a contravention of a direction under section 75 or 77, or
(i)
if the Minister is satisfied that the land is
required for a public purpose.
(2)
A request for the cancellation of the petroleum
title as to part only of the land to which it relates must be accompanied by a
description, prepared in the manner prescribed by the regulations, of the land
in respect of which the petroleum title is to be
cancelled.
(3)
Action may be taken under this section whether or
not any other action has been taken in respect of the petroleum title under
this Act.
22ACancellations of petroleum
titles
(1)
Before cancelling a petroleum title, otherwise
than at the request of the holder of the title, the Minister is to cause a
written notice to be served on the holder of the title that contains the
following:
(a)
notice that the title is proposed to be
cancelled,
(b)
details of the grounds for the proposed
cancellation,
(c)
notice that the holder of the title has a
specified period (of at least 28 days) in which to make representations with
respect to the proposed cancellation.
(2)
The Minister must not cancel a petroleum title,
otherwise than at the request of the holder of the title, unless:
(a)
the Minister has taken any such representations
received from the holder of the title into consideration,
or
(b)
the period specified in the notice has elapsed
and no such representations have been received.
(3)
The Minister is to cause written notice of the
cancellation of a petroleum title to be given to the holder of the petroleum
title.
(4)
The cancellation takes effect on the date on
which the written notice of the cancellation is given to the holder of the
petroleum title, or on a later date specified in the
notice.
(5)
The cancellation of a petroleum title does not
affect any liability incurred by the holder of the petroleum title before the
cancellation took effect.
(6)
No compensation is payable by the Crown for or in
respect of the cancellation of a petroleum title.
22BAppeals against decisions
concerning cancellations of petroleum titles
(1)
Any person who is aggrieved by the decision of
the Minister to cancel a petroleum title held by the person may appeal to the
Land and Environment Court against the decision.
(2)
Such an appeal is to be made:
(a)
within 14 days after written notice of the
cancellation is served on the holder of the petroleum title,
or
(b)
within such further period as the Land and
Environment Court may allow.
(3)
In deciding whether or not to allow a further
period for appeal, the Land and Environment Court is to have regard to:
(a)
the circumstances that have prevented the
appellant from making the appeal within the 14 days referred to in subsection
(2) (a), and
(b)
the consequences to the appellant, and to persons
other than the appellant, of a decision allowing a further period for appeal,
and
(c)
the consequences to the appellant, and to persons
other than the appellant, of a decision refusing a further period for appeal,
and
(d)
the public interest.
(4)
An appeal is to be heard by way of a new hearing,
and fresh evidence, or evidence additional to the evidence available to the
Minister when the decision was made, may be admitted in the
hearing.
(5)
Subject to any order made by the Land and
Environment Court, the lodging of an appeal does not operate to stay the
decision appealed against.
(6)
The decision of the Land and Environment Court on
an appeal is final and is to be given effect to as if it were the decision of
the Minister.
(7)
This section does not apply to a cancellation
that was requested by the holder of the petroleum title.
[20]Sections 23 and
24
Omit the sections.
[21]Section 24A Fit and proper
person consideration in making certain decisions about petroleum
titles
Omit “section 22 (5)” from section
24A (5). Insert instead “section 22A (6)”.
[22]Section 24A
(5)
Omit “or suspension of operations
under”.
[23]
[24]Section 30 Area of exploration
licence
Omit section 30 (2). Insert at the end of section
30 (1):
Note—
Section 19B makes provision for the size of the
area over which the renewal of an exploration licence may be
granted.
[25]Section
31A
Insert after section 31:
31AActivity approval required for
assessable prospecting operations
(1)
An exploration licence is subject to a statutory
condition that the holder must not carry out an assessable prospecting
operation on land over which the licence is granted 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.
(2)
The holder of an exploration licence may apply in
writing to the Minister for approval to carry out an assessable prospecting
operation in relation to any part of the land over which the licence is
granted (an activity
approval).
(3)
The Minister may require the holder of an
exploration licence to provide such information as is required by the
Minister, within the time specified by the Minister, before considering the
application or at any time during consideration of the
application.
(4)
After considering the application for the
activity approval, the Minister:
(a)
may grant the activity approval,
or
(b)
may refuse the
application.
(5)
Without limiting the grounds for refusal, the
application may be refused if the applicant fails to provide the information
required by the Minister within the time required.
(6)
An activity approval may be granted subject to
terms.
(7)
For the purposes of this Act, it is a statutory
condition of an exploration licence that the holder must comply with any
activity approval granted to the holder and in force.
(8)
Clauses 6 (2)–(4), 7 (2), 9 and 11 of
Schedule 1B apply to and in respect of the imposition of terms on, and
variation of terms of, an activity approval in the same way as they apply to
and in respect of the imposition of conditions on, and the variation of
conditions of, a petroleum title.
(9)
The Minister may cancel an activity
approval:
(a)
if the holder of the activity approval lodges
with the Secretary a request that the Minister cancel the activity approval,
or
(b)
if the Minister is satisfied that a person has
contravened the activity approval (whether or not the person is prosecuted or
convicted of any offence arising from the
contravention).
(10)
Before cancelling an activity approval, otherwise
than at the request of the holder of the activity approval, the Minister is to
cause a written notice to be served on the holder of the activity approval
that contains the following:
(a)
notice that the activity approval is proposed to
be cancelled,
(b)
details of the grounds for the proposed
cancellation,
(c)
notice that the holder of the activity approval
has a specified period (of at least 28 days) in which to make representations
with respect to the proposed cancellation.
(11)
The Minister must not cancel an activity
approval, otherwise than at the request of the holder of the activity
approval, unless:
(a)
the Minister has taken any such representations
received from the holder of the activity approval into consideration,
or
(b)
the period specified in the notice has elapsed
and no such representations have been received.
(12)
The Minister is to cause written notice of the
cancellation of an activity approval to be given to the holder of the activity
approval.
(13)
The cancellation takes effect on the date on
which the written notice of the cancellation is given to the holder of the
activity approval, or on a later date specified in the
notice.
(14)
Any person who is aggrieved by the decision of
the Minister to cancel an activity approval held by the person may appeal to
the Land and Environment Court against the decision. Section 22B applies to
such an appeal as if it were an appeal against a decision to cancel a
petroleum title.
(15)
The cancellation of an activity approval does not
affect any liability incurred by the holder of the activity approval before
the cancellation took effect.
(16)
Action may be taken under subsection (9) (b)
whether or not any other action has been taken in respect of the activity
approval under this Act.
[26]Section 32 Direction to holder
of exploration licence to apply for lease
Omit “Section 22 (4)” from the note
to the section. Insert instead “Section 22A
(4)”.
[27]Section
36A
Insert after section 36:
36AActivity approval required for
assessable prospecting operations
(1)
An assessment lease is subject to a statutory
condition that the holder must not carry out an assessable prospecting
operation on land over which the lease is granted 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.
(2)
The holder of an assessment lease may apply in
writing to the Minister for approval to carry out an assessable prospecting
operation in relation to any part of the land over which the lease is granted
(an activity
approval).
(3)
The Minister may require the holder of an
assessment lease to provide such information as is required by the Minister,
within the time specified by the Minister, before considering the application
or at any time during consideration of the application.
(4)
After considering the application for the
activity approval, the Minister:
(a)
may grant the activity approval,
or
(b)
may refuse the
application.
(5)
Without limiting the grounds for refusal, the
application may be refused if the applicant fails to provide the information
required by the Minister within the time required.
(6)
An activity approval may be granted subject to
terms.
(7)
For the purposes of this Act, it is a statutory
condition of an assessment lease that the holder must comply with any activity
approval granted to the holder and in force.
(8)
Clauses 6 (2)–(4), 7 (2), 9 and 11 of
Schedule 1B apply to and in respect of the imposition of terms on, and
variation of terms of, an activity approval in the same way as they apply to
and in respect of the imposition of conditions on, and the variation of
conditions of, a petroleum title.
(9)
The Minister may cancel an activity
approval:
(a)
if the holder of the activity approval lodges
with the Secretary a request that the Minister cancel the activity approval,
or
(b)
if the Minister is satisfied that a person has
contravened the activity approval (whether or not the person is prosecuted or
convicted of any offence arising from the
contravention).
(10)
Before cancelling an activity approval, otherwise
than at the request of the holder of the activity approval, the Minister is to
cause a written notice to be served on the holder of the activity approval
that contains the following:
(a)
notice that the activity approval is proposed to
be cancelled,
(b)
details of the grounds for the proposed
cancellation,
(c)
notice that the holder of the activity approval
has a specified period (of at least 28 days) in which to make representations
with respect to the proposed cancellation.
(11)
The Minister must not cancel an activity
approval, otherwise than at the request of the holder of the activity
approval, unless:
(a)
the Minister has taken any such representations
received from the holder of the activity approval into consideration,
or
(b)
the period specified in the notice has elapsed
and no such representations have been received.
(12)
The Minister is to cause written notice of the
cancellation of an activity approval to be given to the holder of the activity
approval.
(13)
The cancellation takes effect on the date on
which the written notice of the cancellation is given to the holder of the
activity approval, or on a later date specified in the
notice.
(14)
Any person who is aggrieved by the decision of
the Minister to cancel an activity approval held by the person may appeal to
the Land and Environment Court against the decision. Section 22B applies to
such an appeal as if it were an appeal against a decision to cancel a
petroleum title.
(15)
The cancellation of an activity approval does not
affect any liability incurred by the holder of the activity approval before
the cancellation took effect.
(16)
Action may be taken under subsection (9) (b)
whether or not any other action has been taken in respect of the activity
approval under this Act.
[28]Section 49 Notice of
application for production lease to be sent to Public Service
agencies
Omit “Government Department”. Insert
instead “Public Service agency”.
[29]Section
49
Omit “that Department”. Insert
instead “that agency”.
[30]Section 50 Notice to be sent
to Secretary of Department of Planning and Environment
Omit “Director of Planning” wherever
occurring.
Insert instead “Secretary of the Department
of Planning and Environment”.
[31]Section 51 Objection to grant
of production lease
Omit “Government Department or statutory
authority or the Director of Planning”.
Insert instead “Public Service agency or
statutory authority or the Secretary of the Department of Planning and
Environment”.
[32]Section 53 Grant of production
lease after objection or proposal
Insert after section 53 (3):
(4)
Despite clauses 9 and 10 of Schedule 1B, 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.
[33]Part 6 Protection of the
environment
Omit Divisions 1–3. Insert instead:
Division 1Environmental, rehabilitation
and other directions
74Interpretation
(1)
In this Division:
responsible person means:
(a)
in relation to a petroleum title that is in
force—the holder of the title, or
(b)
in relation to a petroleum title that has ceased
to be in force—the person who was the holder of the title immediately
before it ceased to be in force.
(2)
In this Division, a reference to giving a
direction or notice to a responsible person includes, where the responsible
person is a corporation that is subject to a scheme of arrangement,
receivership, winding up or other external administration, a reference to
giving a direction or notice to the administrator, receiver or liquidator of
the corporation.
75Directions
(1)
The Secretary or an inspector may, by written
notice, direct a responsible person in relation to a petroleum title to do any
one or more of the following:
(a)
to give effect to a condition of the petroleum
title (except a condition requiring payment of royalty or provision or
maintenance of a security deposit),
(b)
to address any adverse impact that activities
carried out under, or purportedly carried out under, the petroleum title have
had on any aspect of the environment,
(c)
to address a risk of there being such an
impact,
(d)
to conserve the environment, protect it from harm
as a result of activities under the title or to prevent, control or mitigate
any such harm,
(e)
to rehabilitate land or water that is or may be
affected by activities under the title.
(2)
A direction may require a responsible person to
carry out or stop carrying out particular activities, carry out activities in
a particular manner or achieve specified outcomes within such period (if any)
as is specified in the direction or any condition specified in the
direction.
(3)
A direction served on a person under this section
may require the person to prepare, and submit to the Secretary or inspector,
reports as to any of the following:
(a)
the measures the person proposes to take for the
purpose of complying with the direction,
(b)
the progress made by the person in implementing
any such measures.
76Prohibition
notices
(1)
If the Secretary or an inspector reasonably
suspects that a person who is not the holder of a petroleum title is carrying
out, or is about to carry out, any activity in contravention of a provision of
this Act requiring a petroleum title to be held when carrying out the
activity, the Secretary or inspector may direct the person to discontinue that
activity on the land specified in the notice.
(2)
The direction may be given orally, but must be
confirmed by written notice (a prohibition notice) issued to the
person as soon as practicable.
(3)
A prohibition notice must state:
(a)
the reasons for the issue of the prohibition
notice, and
(b)
the activity concerned, and
(c)
the provision of this Act that the Secretary or
inspector believes is being, or is likely to be, contravened by that
activity.
77Direction to suspend
operations
(1)
The Secretary may, by written notice (a suspension notice), direct a
responsible person to suspend (for such period as is specified in the
direction or until further notice) all, or any specified, operations under a
petroleum title or an activity approval relating to the operations if the
Secretary considers that:
(a)
circumstances exist that could constitute a
ground for cancellation of the petroleum title under section 22 (1)
(b)–(g), or
(b)
circumstances exist that could constitute a
ground for cancellation of the petroleum title under section 22 (1) (h), in
relation to a contravention of a direction under section 75 only,
or
(c)
on any other ground specified in the
regulations.
(2)
Before giving a suspension notice, the Secretary
is to:
(a)
cause written notice of the proposed suspension
notice and the grounds for it to be served on the holder of the relevant
petroleum title, and
(b)
give the holder of the relevant petroleum title a
reasonable opportunity to make representations with respect to the proposed
suspension notice, and
(c)
take any such representations into
consideration.
(3)
The suspension notice takes effect on the date on
which it is given to the holder of the relevant petroleum title or on a later
date specified in the notice.
(4)
The suspension of a petroleum title does not
affect any liability incurred by the holder of the relevant petroleum title
before the suspension took effect.
(5)
The holder of the relevant petroleum title is not
entitled to compensation merely because of the suspension of operations under
the petroleum title or an activity approval in accordance with a suspension
notice.
(6)
If a suspension notice under this section is
issued to a person who is not the current holder of the relevant petroleum
title, the Secretary must cause a copy of the notice to be served on any
current holder within 5 days after the notice is issued.
(7)
A direction served on a person under this section
may require the person to prepare, and submit to the Secretary or inspector,
reports as to any of the following:
(a)
the measures the person proposes to take for the
purpose of complying with the direction,
(b)
the progress made by the person in implementing
any such measures.
78Revocation or
variation
(1)
A direction under this Division may be revoked or
varied by a subsequent direction issued in accordance with this
Division.
(2)
A direction may be varied by modification of, or
addition to, its terms and specifications or any condition specified in the
direction.
(3)
Without limiting the above, a direction or notice
may be varied by extending the time for complying with the direction or the
period of suspension.
78ABreach of direction or
notice
A person must comply with a direction or notice
issued to the person under this Division, unless the person has a reasonable
excuse for not doing so.
Maximum penalty:
(a)
in the case of a corporation—10,000 penalty
units, and, in the case of a continuing offence, a further penalty of 1,000
penalty units for each day that the offence continues, or
(b)
in the case of a natural person—2,000
penalty units, and, in the case of a continuing offence, a further penalty of
200 penalty units for each day that the offence
continues.
78BEffect of
direction
The issuing of a direction under this Division
does not affect:
(a)
the liability of any person to any penalty for an
offence in relation to a petroleum title, or
(b)
the amount of security deposit that is or may be
required under a petroleum title, or
(c)
the operation of any other provision of this Act
or the regulations that requires or enables other action to be taken in
relation to any contravention or other circumstances to which the direction
relates.
Note—
For example, the issuing of a direction does not
affect the power to cancel a petroleum title under section 22A on a ground
specified in section 22.
78CFee
(1)
The purpose of this section is to enable the
recovery of the administrative costs of preparing and issuing a direction
under this Division (not including a direction that varies an earlier
direction under this Division).
(2)
A person to whom a direction is issued must,
within 30 days, pay the fee prescribed by the regulations to the
Secretary.
(3)
A fee payable under this section is a debt due by
the holder of the petroleum title concerned to the Crown and is recoverable in
a court of competent jurisdiction.
78DRehabilitation by Minister at
holder’s expense
(1)
If a person on whom a direction is served under
this Division does not comply with the direction, the Minister may take any
action necessary to give effect to the direction.
(2)
Any costs or expenses incurred by the Crown under
this section are a debt due to the Crown by the person on whom the direction
was served and are recoverable in a court of competent
jurisdiction.
(3)
An authorised person may enter any land and do
anything that in the person’s opinion is necessary for or in connection
with the taking of that action (including gaining access from that land to
other land).
(4)
However, an authorised person must not enter land
unless the person:
(a)
has given the occupier of the land reasonable
notice of the person’s intention to do so, and
(b)
enters the land at a reasonable time (except in
the case of an emergency), and
(c)
uses no more force than is reasonably necessary
to effect entry, and
(d)
before entering any premises on the land that are
used only for residential purposes—has obtained the permission of the
occupier of those premises.
(5)
A person who suffers damage caused by the taking
of any action under this section is entitled to be paid reasonable
compensation by the person who failed to comply with the direction (as
referred to in subsection (1)).
(6)
Parts 11 and 12 apply (with such modifications as
may be prescribed by the regulations) to that compensation as if it were
compensation payable under Part 11.
(7)
In this section:
authorised person means:
(a)
a person engaged in connection with the taking of
steps under subsection (1), or
(b)
the Secretary, or
(c)
a person authorised in writing by the Secretary
for the purposes of this section, or
(d)
an inspector.
78ERecovery of costs of
rehabilitation
(1)
In any proceedings for the recovery of a debt due
to the Crown under this Division, a certificate that is signed by the Minister
and that states that a specified amount is the amount of the debt so due is
admissible in evidence in all courts and is evidence of that
fact.
(2)
A debt due to the Crown under this Division is
recoverable whether or not the person by whom it is due is prosecuted or
convicted of an offence under this Division.
78FPrior notice of direction
under section 75 or 76 not required
A person who gives a direction under section 75
or 76 is not required to notify any person who may be affected by the
direction before giving the direction.
[34]Part 6, Division
5
Insert after Division 4:
Division 5Audits
83ARelationship of this Division
to other provisions
This Division does not affect any other provision
of this Act that:
(a)
enables a petroleum title to be subject to a
condition requiring monitoring or reporting, or
(b)
relates to functions exercisable by persons for
the purpose of auditing compliance with this Act, the regulations or
conditions of petroleum titles.
83BNature of
audit
An audit under this Division is a periodic or
particular documented evaluation of prospecting or mining for petroleum
(including management practices, systems and plant) for any one or more of the
following purposes:
(a)
to provide information on compliance or otherwise
with obligations under the petroleum title or other related legal requirements
under this or any other law (including in relation to the protection of the
environment from the impacts of, or the rehabilitation of land affected by,
activities under the title),
(b)
to provide information on compliance or otherwise
with codes of practice or policies relevant to the petroleum
title,
(c)
to enable a determination of whether the way
activities are being carried out under the petroleum title can be improved in
order to protect the environment.
83CAccreditation and regulation
of auditors
The regulations may make provision for or with
respect to either or both of the following:
(a)
the accreditation of auditors for the purposes of
this Division,
(b)
the carrying out of audits by
auditors.
83DConditions for mandatory
audits
(1)
A condition that requires one or more mandatory
audits to be undertaken, to the satisfaction of the Secretary, for any one or
more of the purposes referred to in section 83B (a mandatory
audit condition) may be imposed on a petroleum title by the
regulations or the Minister in accordance with Part 3 of Schedule
1B.
(2)
A mandatory audit condition must specify the
purpose or purposes of the audit.
(3)
A mandatory audit condition may require any one
or more of the following:
(a)
appointment of an auditor to undertake the
audit,
(b)
approval by the Secretary of the auditor before
being appointed,
(c)
preparation of particular written documentation
during the course of the audit,
(d)
preparation of an audit
report,
(e)
production to the Secretary of the audit
report.
(4)
A mandatory audit condition may also:
(a)
specify the format and level of detail required
for the audit, or
(b)
require the auditor to submit the proposed format
and level of detail to the Secretary for approval.
(5)
A mandatory audit condition may be varied by
written notice served on the holder of the petroleum title and otherwise in
accordance with Part 4 of Schedule 1B.
(6)
A condition imposed under this section takes
effect on the date on which written notice of the condition is served on the
holder of the petroleum title or on any later date specified in the
notice.
(7)
This section does not affect the operation of the
following provisions of the Environmental
Planning and Assessment Act 1979:
(a)
section 89K (Approvals etc legislation that must
be applied consistently),
(b)
section 93 (Granting and modification of approval
by approval body),
(c)
section 115ZH (Approvals etc legislation that
must be applied consistently).
83ECertification of audit
report
The audit report for a mandatory audit is taken
not to have been duly produced to the Secretary unless it is accompanied
by:
(a)
a declaration signed by the holder of the
petroleum title certifying that the holder has not knowingly provided any
false or misleading information to the auditor and has provided all relevant
information to the auditor, and
(b)
a declaration signed by the auditor:
(i)
setting out the auditor’s qualifications,
and
(ii)
certifying that the report is accurate, and that
the auditor has not knowingly included any false or misleading information in
it or failed to include any relevant information in
it.
83FOffences relating to audit
information
(1)
A person who provides information to an auditor
in connection with a mandatory audit, knowing the information to be false or
misleading in a material respect, is guilty of an
offence.
(2)
The holder of a petroleum title who fails to
provide information to an auditor in connection with a mandatory audit being
carried out in relation to the petroleum title, knowing the information to be
materially relevant to the audit, is guilty of an
offence.
(3)
An auditor who includes information in an audit
report produced to the Secretary in connection with a mandatory audit, knowing
the information to be false or misleading in a material respect, is guilty of
an offence.
(4)
An auditor who fails to provide information in an
audit report produced to the Secretary in connection with a mandatory audit,
knowing the information to be materially relevant to the audit, is guilty of
an offence.
(5)
The holder of a petroleum title who:
(a)
fails to retain any written documentation
required to be prepared by the holder in connection with a mandatory audit for
a period of at least 5 years after the audit report concerned was produced to
the Secretary (or such other period as is prescribed by the regulations),
or
(b)
fails to produce during that period any such
documentation to the Secretary on request,
is guilty of an offence.
Maximum penalty:
(a)
in the case of a corporation—1,000 penalty
units, or
(b)
in the case of a natural person—500 penalty
units.
83GSelf-incriminatory information
not exempt
Information must be supplied by a person in
connection with a mandatory audit, and this Division applies to any such
information that is supplied, whether or not the information might incriminate
the person.
83HUse of
information
(1)
Any information in an audit report or other
documentation supplied to the Secretary in connection with a mandatory audit
may be supplied by the Secretary to, and taken into consideration by, any
person who has functions under this Act, the Environmental
Planning and Assessment Act 1979 or the environment
protection legislation and may be used by that person for the purposes of
those laws.
(2)
Without limiting subsection (1):
(a)
the Secretary is authorised, despite any other
Act or law, to provide a relevant agency with any such information,
and
(b)
any such information is admissible in evidence in
any prosecution of the holder of a petroleum title for any offence (whether
under this Act or otherwise).
(3)
In this section, relevant
agency means the Department, or a public authority engaged
in administering or executing the environment protection legislation, the
Environmental Planning and Assessment Act
1979 or such other legislation, if any, as may be
prescribed by the regulations.
83INature of voluntary
audit
(1)
For the purposes of this Division, a voluntary
audit is an audit commissioned or carried out voluntarily,
whether or not in relation to activities carried out under a petroleum
title.
(2)
An audit is not voluntary if there is a
contemporaneous requirement for a mandatory audit in relation to the same or
substantially the same activity or other matter and the audits are to be
carried out by the same person.
83JProtected
documents
(1)
Documents prepared for the sole purpose of a
voluntary audit are protected
documents for the purposes of this
Act.
(2)
The protected documents include the final report
of the audit and any documents prepared during the course of the audit for the
sole purpose of the audit.
(3)
Without affecting the generality of subsection
(1) or (2), documents are not protected if they are prepared wholly or partly
in connection with monitoring or reporting that is required by any conditions
of a petroleum title or by a direction under section 75 or
77.
83KNature of
protection
(1)
A protected document:
(a)
is not admissible in evidence against any person
in any proceedings connected with the administration or enforcement of this
Act, the environment protection legislation or such other legislation, if any,
as may be prescribed by the regulations, and
(b)
must not be inspected, copied, seized or
otherwise obtained by the Department, any authority prescribed by the
regulations or any other person for any purpose connected with such
administration or enforcement.
(2)
Neither the Department, a prescribed authority
nor any other person may, for the purpose referred to in subsection (1) (b),
require a person to answer any question or provide any information about the
existence of the document or about what it contains.
(3)
The onus of establishing that a document is a
protected document lies on the person asserting that it is
protected.
(4)
A court may inspect any document that is claimed
to be a protected document for the purpose of determining whether it is or is
not a protected document.
(5)
The regulations may prescribe procedures for
making and determining claims that a document is a protected
document.
83LLifting of
protection
(1)
Documents prepared in relation to a voluntary
audit cease to be protected if the person asserting or relying on the
protection uses or relies on (or attempts to use or rely on) the whole or any
part of one or more of the documents, whether directly or indirectly, in any
proceedings connected with the administration or enforcement of this Act, the
environment protection legislation or such other legislation, if any, as may
be prescribed.
(2)
This section does not apply where the person is
using or relying on (or attempting to use or rely on) a document for the
purpose of establishing that the document is protected.
[35]Section 91 Payment of
royalty
Insert after section 91 (1):
(1A)
If a person who is liable to pay royalty fails to
pay it as required by subsection (1), the person is guilty of an
offence.
Maximum penalty:
(a)
in the case of a corporation—10,000 penalty
units, and, in the case of a continuing offence, a further penalty of 1,000
penalty units for each day that the offence continues, or
(b)
in the case of a natural person—2,000
penalty units or imprisonment for 12 months, or both, and, in the case of a
continuing offence, a further penalty of 200 penalty units for each day that
the offence continues.
[36]Section
91A
Insert after section 91:
91ARefunds and rebates of
royalties
(1)
The regulations may make provision for or with
respect to the refund or rebate of royalty payable or paid under this
Act.
(2)
Without limiting subsection (1), the regulations
may prescribe the criteria for eligibility for a refund or rebate, which may
include that a contribution has been made for the purpose of funding any
programs for the benefit of the community.
[37]Section 94C Fees payable in
respect of petroleum title
Insert after section 94C (2):
(3)
The holder of a petroleum title must not fail to
pay any annual rental fee or administrative levy payable under this Part for
the petroleum title.
Maximum penalty:
(a)
in the case of a corporation—100 penalty
units, or
(b)
in the case of a natural person—50 penalty
units.
[38]Section 94P Failure to pay
fee
Omit the section.
[39]Section
94T
Insert after section 94S:
94TWaiver or refund of
fees
(1)
The Secretary may refund or waive payment of the
whole or any part of a fee that this Act requires to be paid, on his or her
own initiative or on the application of the person who is required to pay the
fee, if the Secretary is satisfied that there is good cause for doing
so.
(2)
The regulations may make further provision for
the waiver or refund of fees payable under this Act.
[40]Section 96 Applications for
transfer of title
Insert at the end of section 96 (3):
Note—
Schedule 1B makes provision about the
consideration of applications for the transfer of a petroleum title and the
grant or refusal of such an application.
[41]Part 8A
Insert after Part 8:
Part 8ARecords and
reports
97AKeeping of geological plans,
maps and records
To the extent required by the regulations, every
holder of a petroleum title must:
(a)
keep accurate geological plans, maps and records
relating to the land comprised in the title, and
(b)
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.
97BFurnishing of statistics,
returns and other information
(1)
Every holder of a petroleum title and any other
person carrying on any operation in connection with any such title who is
called on to do so must, at such times and in such manner as the Minister may
require, furnish such statistics, returns and other information as may be
required and must keep such records as may be necessary for the completion of
any such statistics and returns.
(2)
Any information required under this section in
respect of any particulars supplied in or omitted from a return must be
furnished within such period as may be specified by the
Minister.
(3)
Statistics, returns and other information
obtained pursuant to this section, are to be treated as confidential, but the
Minister may cause to be published or otherwise made available the results of
such statistics, returns and other information with respect to the whole of
New South Wales or any portion of the State and such details furnished on an
individual return (other than details relating to working expenses) as the
Minister may think fit.
(4)
A person who contravenes this section is guilty
of an offence.
Maximum penalty: 200 penalty
units.
97CReports
(1)
The holder of a petroleum title must prepare and
lodge reports of all operations carried out under the petroleum
title.
Note—
Clause 6 (2) (g) of Schedule 1B provides that
reports may also be required by the conditions of a petroleum
title.
(2)
The regulations may make provision for or with
respect to the following:
(a)
the content, form or lodgment of the
reports,
(b)
the exemption of any person, class of persons,
petroleum titles or class of petroleum titles from a requirement of this
section or the regulations under this section.
(3)
A person who fails, without reasonable excuse, to
prepare or lodge a report in accordance with this section or the regulations
is guilty of an offence.
Maximum penalty:
(a)
in the case of a corporation—10,000 penalty
units, and, in the case of a continuing offence, a further penalty of 1,000
penalty units for each day that the offence continues, or
(b)
in the case of a natural person—2,000
penalty units, and, in the case of a continuing offence, a further penalty of
200 penalty units for each day that the offence
continues.
(4)
If there is an inconsistency between a condition
of a petroleum title and a reporting requirement imposed under this section,
the condition prevails to the extent of the
inconsistency.
97DRecord-keeping
Any record required to be created and maintained
under this Act, the regulations, a condition of a petroleum title or a term of
an activity approval must be kept in a legible form, or in a form that can
readily be reduced to a legible form for production to any
inspector.
97ERetention of records relating
to petroleum titles
The holder of a petroleum title must retain any
records required to be created and maintained under this Act, the regulations,
a condition of a petroleum title or a term of an activity approval in relation
to the petroleum title for not less than 4 years after the expiry or
cancellation of the petroleum title.
97FInformation or return
provided, served or lodged by agents
Any information or return received from or served
or lodged by an agent duly appointed and notified in accordance with the
regulations on behalf of any of the following persons is taken to have been
received from or served or lodged by that person:
(a)
the holder of a petroleum
title,
(b)
an applicant for a petroleum title or for the
renewal, transfer or cancellation of a petroleum title,
(c)
an applicant for an activity approval or for the
cancellation of an activity approval,
(d)
any person who owns or occupies land over which a
petroleum title is in force or to which an application for a petroleum title
relates.
97GSamples of strata, petroleum
and water
(1)
The holder of a petroleum title must collect any
samples of strata, petroleum, water or any other thing, as required by the
regulations.
(2)
Those samples must be collected, labelled for
reference or preserved in the manner required by the
regulations.
[42]Part 9
Omit the Part. Insert instead:
Part 9Powers of entry and
inspection
Division 1Preliminary
98Purposes for which powers
under Part may be exercised
Powers may be exercised under this Part for the
following purposes:
(a)
for determining whether there has been compliance
with or a contravention of this Act or the regulations or any petroleum title,
direction, notice or requirement issued or made under this
Act,
(b)
for obtaining information or records for purposes
connected with the administration of this Act,
(c)
generally for administering this
Act.
99Effect on other
functions
Nothing in this Part:
(a)
affects any function under any other Part of this
Act or under any other Act, or
(b)
limits the conditions that may be attached to a
petroleum title.
Division 2Powers to require information
and records
100Application of
Division
This Division applies whether or not a power of
entry under Division 3 is being or has been exercised.
101Requirement to provide
information and records
(1)
An inspector may, by written notice given to a
person, require the person to furnish to the inspector such information or
records (or both) as the inspector requires by the notice in connection with
any matter relating to the administration of this Act.
(2)
The notice must specify the manner in which the
information or records are required to be furnished and a reasonable time by
which the information or records are required to be
furnished.
(3)
If a record required to be furnished under the
notice is in electronic, mechanical or other form, the notice requires the
record to be furnished in written form, unless the notice otherwise
provides.
(4)
The notice may only require a person to furnish
existing records that are in the person’s possession or that are within
the person’s power to obtain lawfully.
(5)
The inspector to whom a record is furnished under
the notice may take copies of the record.
Division 3Powers of entry and
search
102Powers to enter
premises
(1)
An inspector may enter:
(a)
any premises at which the inspector reasonably
suspects that any prospecting operations or mining of petroleum are being or
are about to be carried out, at any time, and
(b)
any premises that the inspector reasonably
suspects have been, are being or are likely to be affected by prospecting
operations or mining of petroleum, at any time, and
(c)
any premises where the inspector reasonably
believes that documents that relate to any activity referred to in paragraph
(a) or (b) are kept, at any time.
(2)
The power to enter premises authorises entry by
foot or by means of a motor vehicle or other vehicle, or by an aircraft, or in
any other manner.
(3)
Entry may be effected with the aid of such police
officers or other inspectors as the inspector considers necessary and with the
use of reasonable force.
(4)
Entry may be effected to any premises with the
authority of a search warrant under section 104A.
103Entry into residential
premises only with permission or warrant
This Division does not entitle an inspector to
enter any part of premises used only for residential purposes without the
permission of the occupier or the authority of a search warrant under section
104A.
104Powers of inspectors to do
things at premises
(1)
An inspector may, at any premises lawfully
entered, do anything that in the opinion of the inspector is necessary to be
done for the purposes of this Part, including (but not limited to) the things
specified in subsection (2).
(2)
An inspector may do any or all of the
following:
(a)
examine and inspect any works, plant, vehicle,
aircraft or other article,
(b)
take and remove samples,
(c)
make such examinations, inquiries and tests as
the inspector considers necessary,
(d)
take such photographs, films, audio, video and
other recordings as the inspector considers necessary,
(e)
require records to be produced for
inspection,
(f)
examine and inspect any
records,
(g)
take extracts from, or a copy of, any
records,
(h)
seize anything that the inspector has reasonable
grounds for believing is connected with an offence against this Act or the
regulations,
(i)
for the purposes of paragraph (h), direct the
occupier of the premises where the thing is seized to retain it at those
premises or at another place under the control of the
occupier,
(j)
do any other thing the inspector is empowered to
do under this Part.
(3)
The power to seize anything connected with an
offence includes a power to seize:
(a)
a thing with respect to which the offence has
been committed, and
(b)
a thing that will afford evidence of the
commission of the offence, and
(c)
a thing that was used for the purpose of
committing the offence.
A reference to any such offence includes a
reference to an offence that there are reasonable grounds for believing has
been committed.
104ASearch
warrants
(1)
An inspector may apply to an authorised officer
within the meaning of the Law Enforcement (Powers and
Responsibilities) Act 2002 for the issue of a search
warrant if the inspector believes on reasonable grounds that:
(a)
a provision of this Act or the regulations is
being or has been contravened at any premises, or
(b)
there is in or on any premises matter or a thing
that is connected with an offence under this Act or the
regulations.
(2)
An authorised officer within the meaning of the
Law Enforcement (Powers and Responsibilities) Act
2002 to whom an application is made may, if satisfied that
there are reasonable grounds for doing so, issue a search warrant authorising
an inspector named in the warrant:
(a)
to enter the premises, and
(b)
to exercise any function of an inspector under
this Part.
(3)
Division 4 of Part 5 of the Law
Enforcement (Powers and Responsibilities) Act 2002 applies
to a search warrant issued under this section.
(4)Definitions
In this section:
matter or
a thing that is connected with an offence means:
(a)
matter or a thing with respect to which the
offence has been committed, or
(b)
matter or a thing that will afford evidence of
the commission of an offence, or
(c)
matter or a thing that was used, or is intended
to be used, for the purpose of committing the
offence.
offence includes an offence that
there are reasonable grounds for believing has been, or is to be,
committed.
104BInspectors may request
assistance
A person may accompany an inspector and take all
reasonable steps to assist the inspector in the exercise of his or her
functions under this Part if the inspector is of the opinion that the person
is capable of providing assistance to the inspector in the exercise of those
functions.
104CAssistance to be given to
inspectors
(1)
This section applies for the purpose of enabling
an inspector to exercise any of the powers of an inspector under this Part in
connection with any premises.
(2)
The Secretary may, by written notice given to the
owner or occupier of the premises, require the owner or occupier to provide
such reasonable assistance and facilities as are specified in the notice
within a specified time and in a specified manner.
(3)
Assistance and facilities can be required under
this section, whether they are of the same kind as, or a different kind from,
any prescribed by the regulations.
104DCare to be
taken
In the exercise of a power of entering or
searching premises under this Part, the inspector must do as little damage as
possible.
104ECompensation
The Crown is to compensate all interested parties
for any damage caused by an inspector, a person employed in the Department, a
geologist, a geophysicist or a geochemist in exercising a power under this
Part of entering premises (but not any damage caused by the exercise of any
other power), unless the occupier obstructed or hindered the inspector or
other person in the exercise of the power of entry.
104FPower of inspectors to require
answers
(1)
An inspector may require a person whom the
inspector suspects on reasonable grounds to have knowledge of matters in
respect of which information is reasonably required for a purpose to which
this Part applies to answer questions in relation to those
matters.
(2)
The Secretary may, by written notice, require a
corporation to nominate, in writing within the time specified in the notice, a
director or officer of the corporation to be the corporation’s
representative for the purpose of answering questions under this
section.
(3)
Answers given by a person nominated under
subsection (2) bind the corporation.
(4)
An inspector may, by written notice, require a
person to attend at a specified place and time to answer questions under this
section if attendance at that place is reasonably required in order that the
questions can be properly put and answered.
(5)
The place and time at which a person may be
required to attend is to be:
(a)
a place or time nominated by the person,
or
(b)
if the place and time nominated is not reasonable
in the circumstances, or a place and time is not nominated by the
person—a place and time nominated by the inspector that is reasonable in
the circumstances.
104GRecording of
evidence
(1)
An inspector may cause any questions and answers
to questions given under this Part to be recorded if the inspector has
informed the person who is to be questioned that the record is to be
made.
(2)
A record may be made using sound recording
apparatus or audio visual apparatus, or any other method determined by the
inspector.
(3)
A copy of any such record must be provided by the
inspector to the person who is questioned as soon as practicable after it is
made.
(4)
A record may be made under this section despite
the provisions of any other law.
104HPower of inspectors to demand
name and address
(1)
An inspector may require a person whom the
inspector suspects on reasonable grounds to have offended or to be offending
against a provision of this Act or the regulations to state his or her full
name and residential address.
(2)
An inspector may request a person who is required
under this section to state his or her full name and residential address to
provide proof of the name and address. It is not an offence under section 104O
to fail to comply with any such request.
(3)
The maximum penalty for an offence under section
104O in connection with a requirement under this section is 100 penalty units,
despite anything to the contrary in that section.
104IApplication of
Division
The powers in sections 104F, 104G and 104H may be
exercised whether or not a power of entry in this Division is being or has
been exercised.
Division 4Powers with respect to
articles
104JApplication of
Division
Nothing in this Division limits the functions
that may be exercised under any other Division of this
Part.
104KPower to inspect and
test
(1)
An inspector may, for the purposes of this Part,
inspect and test any article.
(2)
The inspector may, for the purposes of any such
inspection or testing:
(a)
enter the article, and
(b)
enter, in accordance with this Act, the premises
where the article is located, and
(c)
operate the article, and
(d)
take photographs or video films of the article,
and
(e)
inspect or test any substance being carried by
the article or in any container on the article, and
(f)
take a sample of any such substance for
testing.
(3)
In this section:
article includes any plant, motor or
other vehicle, aircraft, vessel or other thing of any
description.
Division 5Other entry
powers
104LSurvey
(1)
Any person employed in the Department authorised
by the Secretary for the purposes of this Part, or a registered surveyor so
authorised, may at all reasonable times enter any land with such assistants as
he or she may think necessary:
(a)
for the purpose of carrying out any survey,
or
(b)
for the purpose of defining any road,
or
(c)
for the purpose of carrying out a geological or
geophysical survey, or
(d)
for any other purpose authorised by this Act or
the regulations.
(2)
In this section, registered surveyor means a
registered land surveyor or registered mining surveyor within the meaning of
the Surveying and Spatial Information Act
2002.
104MSampling
A geologist, geophysicist or geochemist employed
in the Department and authorised by the Secretary for the purposes of this
Part may, at all reasonable times, enter any land with such assistants as he
or she may think necessary for the purpose of removing any sample of
petroleum, water or strata.
104NNotice to
landholder
(1)
Before a person enters any land pursuant to this
Division, the person must:
(a)
if practicable, give reasonable notice to the
landholder of the person’s intention to do so, and
(b)
if required by that landholder, produce evidence
that the person is authorised by the Secretary for the purposes of this
Part.
(2)
Evidence referred to in subsection (1) (b) is to
be in the form prescribed by the regulations.
(3)
In this section, landholder includes a secondary
landholder.
Division 6General
104OOffences
(1)
A person who, without lawful excuse, neglects or
fails to comply with a requirement made of the person under this Part is
guilty of an offence.
(2)
A person who wilfully delays or obstructs an
inspector in the exercise of the inspector’s powers under this Part is
guilty of an offence.
(3)
A person who impersonates an inspector is guilty
of an offence.
Maximum penalty:
(a)
in the case of a corporation—10,000 penalty
units, and, in the case of a continuing offence, a further penalty of 1,000
penalty units for each day that the offence continues, or
(b)
in the case of a natural person—2,000
penalty units, and, in the case of a continuing offence, a further penalty of
200 penalty units for each day that the offence
continues.
104PProvisions relating to
requirements to furnish records or information or answer
questions
(1)Warning to be given on each
occasion
A person is not guilty of an offence of failing
to comply with a requirement under this Part to furnish records or information
or to answer a question unless the person was warned on that occasion that a
failure to comply is an offence.
(2)Self-incrimination not an
excuse
A person is not excused from a requirement under
this Part to furnish records or information or to answer a question on the
ground that the record, information or answer might incriminate the person or
make the person liable to a penalty.
(3)Information or answer not
admissible if objection made
However, any information furnished or answer
given by a natural person in compliance with a requirement under this Part is
not admissible in evidence against the person in criminal proceedings (except
proceedings for an offence under this Part) if:
(a)
the person objected at the time to doing so on
the ground that it might incriminate the person, or
(b)
the person was not warned on that occasion that
the person may object to furnishing the information or giving the answer on
the ground that it might incriminate the person.
(4)Records
admissible
Any record furnished by a person in compliance
with a requirement under this Part is not inadmissible in evidence against the
person in criminal proceedings on the ground that the record might incriminate
the person.
(5)Further
information
Further information obtained as a result of a
record or information furnished or of an answer given in compliance with a
requirement under this Part is not inadmissible on the ground:
(a)
that the record or information had to be
furnished or the answer had to be given, or
(b)
that the record or information furnished or
answer given might incriminate the person.
(6)Section extends to requirement
to state name and address
This section extends to a requirement under this
Part to state a person’s name and address.
104QRevocation or
variation
(1)
A notice given under this Part may be revoked or
varied by a subsequent notice or notices.
(2)
A notice may be varied by modification of, or
addition to, its terms and specifications.
(3)
Without limiting subsection (2), a notice may be
varied by extending the time for complying with the
notice.
(4)
A notice may only be revoked or varied by an
inspector (whether or not the inspector who gave the
notice).
[43]Section 106B Security required
to be given
Insert after section 106B (6):
(7)
A condition may be imposed under this section 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.
[44]Parts
12–13A
Omit Parts 12 and 13. Insert instead:
Part 12Land and Environment Court
proceedings
112BJurisdiction of Land and
Environment Court
(1)
The Land and Environment Court has jurisdiction
to hear and determine proceedings relating to any of the following
matters:
(a)
any demand concerning the ascertainment and
adjustment of boundaries of land held under a petroleum title, or occupied by
virtue of an easement or right of way granted under this Act, where such
boundaries are in dispute or doubtful—in which case the Court is to
ascertain and determine such boundaries by such means as may be found
convenient, and may make and give all such orders and directions as may be
necessary for the purpose of carrying out or giving effect to its
determination,
(b)
the right to the occupation of areas of land
comprised in a petroleum title and the right to or ownership of petroleum and
other materials obtained from them,
(c)
the right to the use of areas of land comprised
in an easement or right of way granted under this Act,
(d)
any encroachments on, infringements of or damage
to any land comprised in a petroleum title,
(e)
any encroachments on, infringements of or damage
to an easement or right of way granted under this Act,
(f)
any demand for debt or damages or both arising
out of or made in respect of any contract whatever relating to the search for
or mining of petroleum,
(g)
the right to any petroleum in or to be taken out
of any land comprised in a petroleum title or in respect of any matter
concerning or arising out of any contract relating to any such
petroleum,
(h)
any demand concerning or arising out of any
partnership or joint venture for or in relation to the search for or mining of
petroleum in any land comprised in or held under any petroleum title, easement
or right of way granted under this Act, or any partnership or joint venture in
any such land, or in any works, machinery or petroleum, or concerning or
arising out of any contract for or in connection with any such search or
mining, or for the dissolution wholly or in part of any such partnership or
joint venture,
(i)
any demand concerning contributions to calls or
to the expense of working or using any such land or works or any share or
interest in any such contributions,
(j)
any demand concerning or arising out of any
mortgage or assignment by way of security of or charge on any such land,
works, machinery, petroleum or any share or interest in any such mortgage or
assignment,
(k)
any demand concerning the cancellation and
delivery up of instruments relating to:
(i)
mortgages, charges or encumbrances of or on any
such land, works, machinery or petroleum, or any share or interest in them,
or
(ii)
any assignment of such mortgages, charges and
encumbrances, or
(iii)
any contract respecting the working or use of any
such land, works or machinery or any partnership or joint venture for or in
relation to the search for or mining of petroleum or the total or partial
dissolution of any such partnership or joint
venture,
(l)
any money claimed to be due on any account
relating to a partnership or joint venture for or in relation to the search
for or mining of petroleum or in any way accruing to the complainant from any
such partnership or joint venture, or any adventure or
interest,
(m)
any question or dispute as to:
(i)
the validity of a petroleum title,
or
(ii)
the decision of the Minister in relation to an
application for the granting, renewal or transfer of a petroleum title,
or
(iii)
the decision of the Minister to cancel a
petroleum title,
(n)
the recovery of any money which any person is
liable to pay under this Act or the regulations and for which no other mode of
recovery is provided under this Act or the regulations,
(o)
all questions and disputes which may
arise:
(i)
between holders of petroleum titles,
or
(ii)
between holders of petroleum titles and
landholders,
(p)
all questions or disputes which may arise as to
operations on or the working or management of the land comprised in a
petroleum title,
(q)
any other matter in respect of which jurisdiction
is conferred on the Court by this Act.
(2)
Nothing in this section limits or restricts the
jurisdiction conferred on any other court by any other Act or
law.
112CLand and Environment Court may
order deposit of petroleum, money or chattels or prohibit extraction of
petroleum
(1)
On application by any party to proceedings in the
Land and Environment Court, the Court may order any other party to the
proceedings:
(a)
to deposit, pending its decision, any petroleum,
money or chattels:
(i)
the right to which will, in the opinion of the
Court, be put in issue in the course of those proceedings,
and
(ii)
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, or
(b)
not to extract any petroleum the right to which
will, in the opinion of the Court, be put in issue in the course of those
proceedings.
(2)
An order under subsection (1) (a) must specify
the thing to be so deposited and must direct the deposit to be made, at or
before a time specified in the order, with a person or at a place so
specified.
112DLand and Environment Court may
grant injunction
(1)
If an application is made to the Land and
Environment Court by a person claiming to hold a legal or equitable interest
in any land subject to a petroleum title, or in any property, the Court may,
on such terms as to costs or otherwise as it may consider just, grant an
injunction restraining any specified person:
(a)
from encroaching on, occupying, using or working
the land or property, or
(b)
from seeking or extracting any petroleum from the
land, or
(c)
from selling or disposing of or otherwise
interfering with the property, or
(d)
from doing any act that may affect the interest
concerned in the whole, or any part, of the land or
property.
(2)
An injunction remains in force for the period
specified in the injunction, unless it is sooner
discharged.
112EGranting of injunctions in
cases of urgency
(1)
If an applicant for an injunction satisfies the
Land and Environment Court that there are urgent reasons for granting the
injunction, the Court may, in any case in which the Court might otherwise
grant an injunction, grant an injunction to have effect for a period of not
more than 2 months (including the day on which the injunction is made) without
notice of the application having been served on any other
party.
(2)
The Land and Environment Court may not grant a
continuance of an injunction granted under this section, and may not grant a
further injunction under this section, but application for a further
injunction may be made under section 112D, either during or after the period
of the injunction granted under this section.
112FOrders protecting adjacent
petroleum titles
(1)
The holder of a petroleum title over land which
is adjacent to:
(a)
land that is the subject of an injunction,
or
(b)
land on which is located property that is the
subject of an injunction,
may apply to the Land and Environment Court for an order
permitting the land or property under injunction to be worked so as to prevent
or minimise damage to or depreciation of the land over which the petroleum
title is held.
(2)
The Land and Environment Court:
(a)
may order, on such terms as the Court thinks fit,
such working of that land or property as in the Court’s opinion will be
sufficient to prevent that damage or depreciation, and
(b)
may make such further order as to the cost of
that working as the Court considers just.
(3)
An order may not be made under this section
unless the applicant shows to the satisfaction of the Land and Environment
Court that the petroleum title concerned will sustain damage or be materially
depreciated in value by reason of the non-working of the land or property
under injunction.
112GCourt may order payment of
money or delivery of petroleum
(1)
If any money or petroleum is claimed in the Land
and Environment Court, the Court may order the payment of such money or the
delivery of such petroleum as it may find to be due or deliverable by one
party to another, where possible.
(2)
If such a claim arises out of a petroleum mining
partnership, adventure or interest, the Land and Environment Court may take
accounts in respect of that partnership, adventure or interest, to the extent
to which it may be necessary to ascertain what money or petroleum (if any) is
so due by one party to the other, and may make such further order as it
considers just.
(3)
If the Land and Environment Court orders payment
of money in respect of any debt, damages, costs or otherwise, the Court may
make a further order:
(a)
that any petroleum in the possession, and being
the property, of the party directed to make the payment must (to the extent in
value of the payment as estimated by the Court) be delivered up to the party
entitled to the payment, and
(b)
that the petroleum to that extent be seized and
delivered accordingly.
(4)
If such a further order is made, the order for
payment of money may only be enforced in respect of any balance remaining due
after deducting the value of the petroleum so delivered to the party entitled
to payment.
Part 12AAdministration
113AExclusion of personal
liability
An act or omission of:
(a)
the Minister or the Secretary,
or
(b)
a member of staff of the Department,
or
(c)
a body constituted under this Act, a member of
any such body or a member of staff of any such body, or
(d)
an authorised person within the meaning of
section 78D, or
(e)
a person acting under the direction of a person
or body referred to in paragraph (a), (b), (c) or
(d),
does not subject the Minister, the Secretary, or any
such member or member of staff or any person so acting, personally to any
action, liability, claim or demand if the act or omission was done or omitted
in good faith and for the purpose of executing this
Act.
113BDelegation of functions by
Minister or Secretary
(1)
The Minister may delegate any of the following
functions (except this power of delegation) of the Minister to any
person:
(a)
any function under this Act,
(b)
any function under the Environmental Planning and Assessment Act
1979.
(2)
The Secretary may delegate any function under
this Act (except this power of delegation or any function delegated to the
Secretary by the Minister) to any person.
(3)
A reference in this section to a function under
this Act includes a reference to a function under the regulations and a
function under a condition of a petroleum title.
113CMinister or officer not to be
interested in petroleum title
(1)
A person must not, while holding office in an
official capacity for the purposes of this Act and while exercising functions
in that capacity, hold either directly or indirectly a beneficial interest in
a petroleum title.
Maximum penalty: 200 penalty
units.
(2)
The following are persons who hold office in an
official
capacity for the purposes of this Act:
(a)
the Minister,
(b)
an inspector,
(c)
a Public Service employee, who exercises
functions under this Act or the Mining Act
1992,
(d)
any other person who exercises any judicial or
official functions under this Act or the Mining Act
1992.
Part 13Release of
information
Division 1Preliminary
113DDefinitions
(1)
In this Part, a reference to a core, cutting or sample includes a reference to a
portion of a core, cutting or sample.
(2)
For the purposes of this Part:
(a)
cores and cuttings, and well data logs, sample
descriptions and other documents, relating to the drilling of a well, are
taken to have been furnished to the Minister not later than one month after
the drilling of the well was, in the opinion of the Minister, substantially
completed, and
(b)
geophysical or geochemical data relating to
geophysical or geochemical surveys are taken to have been furnished to the
Minister not later than one year after the geophysical or geochemical field
work was, in the opinion of the Minister, substantially
completed.
(3)
A reference to information furnished to the
Minister under this Act includes a reference to a return or other information
relating to royalty under this Act that is obtained by the Minister, or a
delegate of the Minister, from a tax officer (within the meaning of the
Taxation Administration Act
1996).
Division 2Release of certain data,
samples and work programs
113ERelease of certain
data
The Minister may, at any time later than 2 years
after being furnished with the information:
(a)
make publicly known, or
(b)
on request by a person and, if the Minister so
requires, on payment of the fee prescribed by the regulations, make available
to that person,
any information that has been furnished to the Minister
under this Act, being information that relates to the subsoil, or to
petroleum, in a block, but not including any matter contained in a report,
return or document that, in the opinion of the Minister, is a conclusion drawn
in whole or in part from, or an opinion based in whole or in part on, any such
information.
113FRelease of
samples
(1)
The Minister may, at any time later than 2 years
after being furnished with them:
(a)
make publicly known any particulars of,
or
(b)
on request by a person and, if the Minister so
requires, on payment of the fee prescribed by the regulations, permit that
person to inspect,
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 this Act.
(2)
Except as provided by subsection (1), or for the
purposes of the administration of this Act and the regulations, the Minister
must not permit any person to inspect any core, cutting or sample furnished to
the Minister under this Act.
113GRelease of summaries of work
programs
The Minister may, at any time:
(a)
make publicly known, or
(b)
on request by a person and, if the Minister so
requires, on payment of the fee prescribed by the regulations, make available
to that person,
a summary of any work program that has been furnished to
the Minister under this Act, including a work program that has been varied
during the life of a petroleum title.
Division 3Release of assessments,
subject to objections
113HRelease of
assessments
The Minister may, at any time later than 5 years
after being furnished with the information:
(a)
make publicly known, or
(b)
on request by a person and, if the Minister so
requires, on payment of the fee prescribed by the regulations, make available
to that person,
any information that has been furnished to the Minister
under this Act, being 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, or an opinion based in whole or in
part on, any such information.
113IInvitation of objections to
release of assessments
(1)
Before the Minister makes available or publicly
known any information under section 113H, the Minister must, if it is
practicable to do so, serve a notice on each interested person:
(a)
stating that the Minister proposes to make the
information available or publicly known, and
(b)
inviting persons having a right to make an
objection to give to the Minister, by such day as is specified in the notice
(being a day not earlier than 45 days after the publication of the notice), a
notice objecting to the whole or any part of the information being made
available or publicly known, and
(c)
stating that, if a person does not make an
objection in accordance with the invitation, the person will be taken to have
consented to the information being made available or publicly
known.
(2)
In this section:
interested person means any of the
following:
(a)
the person who furnished the document containing
the information,
(b)
any transferee of a petroleum title transferred
by the person who furnished the document containing the
information,
(c)
any other person whose lawful business,
commercial or financial affairs could reasonably be expected to be adversely
affected by the disclosure.
113JObjections
(1)
A person has no right to make an objection to
information being made available or publicly known under section 113H except
on the grounds that to do so would disclose a trade secret or would disclose
other information the disclosure of which would, or could reasonably be
expected to, adversely affect the person in respect of his or her lawful
business, commercial or financial affairs.
(2)
A notice of objection must set out the reasons
for making the objection.
113KConsideration of
objections
(1)
The Minister must consider any objection received
and must determine it by allowing the objection wholly or in part or by
rejecting it.
(2)
The Minister is to notify the objector in writing
of the decision.
(3)
The Minister cannot make available or make
publicly known any information under section 113H while an objection is
undetermined.
Division 4Use and disclosure of
information
113LDocuments or information
provided under conditions requiring reporting
(1)
Any document or information provided under a
condition of a petroleum title referred to in clause 6 (2) (g) of Schedule 1B
may be taken into consideration by the Secretary or the Minister and used for
the purposes of this Act, including for the purposes of the prosecution of
offences under this Act or the regulations.
(2)
The Secretary is authorised, despite any other
Act or law, to provide a relevant agency with any such document or
information.
(3)
Any such document or information is required to
be provided by the holder of a petroleum title, whether or not the document or
information might incriminate the holder.
(4)
However, information provided by a natural person
in compliance with a condition of a petroleum title referred to in clause 6
(2) (g) of Schedule 1B is not admissible in evidence against the person in
criminal proceedings (other than proceedings for an offence for providing
false and misleading information) if the person, when providing the
information, objected to the provision of the information on the grounds that
it might incriminate him or her.
(5)
In this section:
relevant
agency means:
(a)
the Department, or
(b)
a public authority engaged in administering or
executing the environment protection legislation, the Environmental Planning and Assessment Act
1979 or such other legislation, if any, as may be
prescribed by the regulations.
113MDisclosure of
information
(1)
A person must not disclose any information
obtained in connection with the administration or execution of this Act,
unless the disclosure is made:
(a)
with the consent of the person from whom the
information was obtained, or
(b)
in accordance with Division 2 or 3,
or
(c)
in connection with the administration or
execution of this Act, or
(d)
for the purposes of any legal proceedings arising
out of this Act or of any report of any such proceedings,
or
(e)
with the concurrence of the Minister,
or
(f)
in accordance with a requirement imposed under
the Government Information (Public Access) Act
2009, or
(g)
by an inspector or a member of staff of the
Department who exercises functions under this Act or the Mining
Act 1992 to an officer or authority engaged in
administering or executing the environment protection legislation, the Environmental Planning and Assessment Act
1979, work health and safety legislation (within the
meaning of the Mining Act 1992)
or any other legislation prescribed by the regulations, or
(h)
in accordance with the
regulations.
Maximum penalty: 100 penalty
units.
(2)
A reference in this section to information
obtained in connection with the administration or execution of this Act
includes a reference to a return or other information relating to royalty
under this Act that is obtained by the Minister, or a delegate of the
Minister, from a tax officer (within the meaning of the Taxation Administration Act
1996).
113NExchange of
information
(1)
The regulator may enter into an arrangement
(an
information sharing arrangement) with a relevant agency for
the purposes of sharing or exchanging any information that is held by the
regulator or the agency.
(2)
The information to which an information sharing
arrangement may relate is limited to information that assists the regulator or
relevant agency:
(a)
to determine applications made under the
resources legislation or legislation made under the corresponding law of
another jurisdiction, or
(b)
to determine whether to cancel, revoke, suspend
or vary a petroleum title, activity approval or other approval, or an
exemption or declaration, that is granted, made or given under that
legislation, or
(c)
to facilitate the carrying out of inspections,
probity checks or other enforcement action under that
legislation.
(3)
Under an information sharing arrangement, the
regulator and the relevant agency are, despite any other Act or law of the
State, authorised:
(a)
to request and receive information that is held
by the other party to the arrangement, and
(b)
to disclose that information to the other
party.
(4)
In this section:
regulator means the Minister or the
Secretary.
relevant
agency means any of the following:
(a)
a government agency or holder of a statutory
office with any functions similar to or related to those imposed on the
regulator by or under the resources legislation,
(b)
any government agency of the Commonwealth or
another State or Territory with functions similar to or related to those
imposed on the regulator under any of the resources
legislation,
(c)
any other person or body, or person or body of a
class, prescribed by the regulations.
Part 13AOffences, enforcement and
undertakings about contraventions
Division 1Offences
125BObstruction
A person must not, without reasonable excuse,
obstruct, hinder or resist any of the following persons in the exercise of a
function under this Act:
(a)
an inspector,
(b)
an authorised person within the meaning of
section 78D,
(b)
a member of staff of the Department, or Public
Service employee, who exercises functions under this Act or the Mining Act 1992,
(c)
any other person who exercises any judicial or
official functions under this Act or the Mining Act
1992.
Maximum penalty:
(a)
in the case of a corporation—10,000 penalty
units, or
(b)
in the case of an individual—2,000 penalty
units.
125CObstruction of holder of
petroleum title
A person must not, without reasonable excuse,
obstruct or hinder the holder of a petroleum title from doing any act that the
holder is authorised by this Act to do.
Maximum penalty: 100 penalty
units.
125DProviding false or misleading
information
A person must not provide any information, record
or return in purported compliance with any requirement by or under this
Act:
(a)
knowing that the information, record or return is
false or misleading in a material particular, or
(b)
being reckless as to whether the information,
record or return is false or misleading in a material
particular.
Maximum penalty:
(a)
in the case of a corporation—1,000 penalty
units, or
(b)
in the case of a natural person—500 penalty
units.
125EContravention of condition of
petroleum title—offence by holder
(1)
If a condition of a petroleum title is
contravened by any person, each holder of the petroleum title is guilty of an
offence.
Maximum penalty:
(a)
in the case of a corporation—10,000 penalty
units, or
(b)
in the case of a natural person—2,000
penalty units.
Note—
An offence against subsection (1) committed by a
corporation is an executive liability offence attracting executive liability
for a director or other person involved in the management of the
corporation—see section 125H.
(2)
In imposing a penalty under this section, the
court is to take into consideration the following (so far as they are
relevant):
(a)
the extent of the harm caused or likely to be
caused to the environment by the commission of the
offence,
(b)
the practical measures that may be taken to
prevent, control, abate or mitigate that harm,
(c)
the extent to which the person who committed the
offence could reasonably have foreseen the harm caused or likely to be caused
to the environment by the commission of the offence,
(d)
the extent to which the person who committed the
offence had control over the causes that gave rise to the
offence,
(e)
any other matters the court considers
relevant.
125FDefences
(1)
It is a defence to a prosecution of the holder of
a petroleum title for an offence against section 125E if the holder
establishes that:
(a)
the contravention of the condition was by, or
caused by, another person, and
(b)
the other person was not associated with the
holder at the time the condition was contravened, and
(c)
the holder took all reasonable steps to prevent
the contravention of the condition.
(2)
A person is associated with the holder for the
purposes of subsection (1) (b) (but without limiting any other circumstances
of association) if the person is an employee, agent, licensee, contractor or
subcontractor of the holder.
(3)
It is a defence to a prosecution for an offence
against section 125E if the defendant satisfies the court that the act or
omission constituting the contravention was reasonably necessary in order for
the defendant to comply with:
(a)
an order or direction (of which the Secretary was
given notice before the acts or omissions occurred) issued under the mine
safety legislation, the Environmental Planning and Assessment
Act 1979 or the Protection of the
Environment Operations Act 1997, or
(b)
a condition of a petroleum title,
or
(c)
a direction under this
Act.
(4)
In this section:
mine
safety legislation means the Work Health and
Safety Act 2011 and any other legislation that is
prescribed by the regulations.
125GAiding and abetting commission
of offence
A person who:
(a)
causes or permits the commission of an offence
against this Act or the regulations, or
(b)
aids, abets, counsels or procures another person
to commit an offence against this Act or the regulations,
or
(c)
attempts to commit an offence against this Act or
the regulations, or
(d)
conspires to commit an offence against this Act
or the regulations,
is guilty of that offence and liable to the penalty
prescribed by this Act or the regulations in relation to that
offence.
125HLiability of directors etc for
offences by corporation—offences attracting executive
liability
(1)
For the purposes of this section, an executive
liability offence is an offence against section 7, 78A or
125E that is committed by a corporation.
(2)
A person commits an offence against this section
if:
(a)
a corporation commits an executive liability
offence, and
(b)
the person is:
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the executive liability offence,
and
(c)
the person:
(i)
knows or ought reasonably to know that the
executive liability offence (or an offence of the same type) would be or is
being committed, and
(ii)
fails to take all reasonable steps to prevent or
stop the commission of that offence.
Maximum penalty: The maximum penalty for the
executive liability offence if committed by an
individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the executive liability
offence.
(5)
This section does not affect the liability of the
corporation for the executive liability offence, and applies whether or not
the corporation is prosecuted for, or convicted of, the executive liability
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are accessories to the
commission of the executive liability offence or are otherwise concerned in,
or party to, the commission of the executive liability
offence.
(7)
In this section:
director has the same meaning it has
in the Corporations Act 2001 of the
Commonwealth.
reasonable steps, in relation to the
commission of an executive liability offence, includes, but is not limited to,
such action (if any) of the following kinds as is reasonable in all the
circumstances:
(a)
action towards:
(i)
assessing the corporation’s compliance with
the provision creating the executive liability offence,
and
(ii)
ensuring that the corporation arranged regular
professional assessments of its compliance with the
provision,
(b)
action towards ensuring that the
corporation’s employees, agents and contractors are provided with
information, training, instruction and supervision appropriate to them to
enable them to comply with the provision creating the executive liability
offence so far as the provision is relevant to them,
(c)
action towards ensuring that:
(i)
the plant, equipment and other resources,
and
(ii)
the structures, work systems and other
processes,
relevant to compliance with the provision creating the
executive liability offence are appropriate in all the
circumstances,
(d)
action towards creating and maintaining a
corporate culture that does not direct, encourage, tolerate or lead to
non-compliance with the provision creating the executive liability
offence.
125ILiability of directors etc for
offences by corporation—accessory to the commission of the
offences
(1)
For the purposes of this section, a corporate
offence is an offence against this Act or the regulations
that is capable of being committed by a corporation, whether or not it is an
executive liability offence referred to in section 125H.
(2)
A person commits an offence against this section
if:
(a)
a corporation commits a corporate offence,
and
(b)
the person is:
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the corporate offence,
and
(c)
the person:
(i)
aids, abets, counsels or procures the commission
of the corporate offence, or
(ii)
induces, whether by threats or promises or
otherwise, the commission of the corporate offence, or
(iii)
conspires with others to effect the commission of
the corporate offence, or
(iv)
is in any other way, whether by act or omission,
knowingly concerned in, or party to, the commission of the corporate
offence.
Maximum penalty: The maximum penalty for the
corporate offence if committed by an individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the corporate
offence.
(5)
This section does not affect the liability of the
corporation for the corporate offence, and applies whether or not the
corporation is prosecuted for, or convicted of, the corporate
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are concerned in, or
party to, the commission of the corporate offence.
125JContinuing
offences
(1)
If an offence against a provision of this Act is
committed by a person by reason of a continuing act or omission:
(a)
the person is liable, in addition to the penalty
otherwise applicable to the offence, to a penalty for each day during which
the act or omission continues of the amount specified for that offence,
and
(b)
if the act or omission continues after the person
is convicted of the offence, the person is guilty of a further offence against
that provision and liable, in addition to the penalty otherwise applicable to
the further offence, to a penalty for each day during which the act or
omission continues after that conviction of the amount specified for that
offence.
(2)
An obligation to do something is to be regarded
as continuing until the act is done despite the fact that a period within
which, or time before which, the act is required to be done has expired or
passed.
(3)
An omission is to be regarded as continuing for
as long as the thing required to be done remains undone after the end of the
period for compliance with the requirement.
(4)
However, this section does not apply to an
offence if the relevant provision of this Act or the regulations does not
provide for a penalty for a continuing offence.
Division 2Proceedings for
offences
125LProceedings for
offences
(1)
Proceedings for an offence against this Act or
the regulations are, except as provided by this section, to be dealt with
summarily by:
(a)
the Land and Environment Court,
or
(b)
the Local Court.
(2)
If proceedings for an offence against this Act or
the regulations are brought in the Local Court:
(a)
the maximum period of imprisonment that the Court
may impose is 12 months, and
(b)
the maximum monetary penalty that the Court may
impose is 2,000 penalty units.
(3)
Proceedings against an individual for an offence
of mining in contravention of section 7 or 91 may be taken on
indictment.
125MTime within which summary
proceedings may be commenced
(1)
Proceedings for an offence under this Act or the
regulations may be commenced:
(a)
in the case of an offence under section 7, 78A,
83F, 91, 104O, 125B or 125E—within but not later than 3 years after the
date on which the offence is alleged to have been committed,
or
(b)
in any other case—within but not later than
12 months after that date.
(2)
Proceedings for an offence under this Act or the
regulations may also be commenced:
(a)
in the case of an offence under section 7, 78A,
83F, 91, 104O, 125B or 125E—within but not later than 3 years after the
date on which evidence of the alleged offence first came to the attention of
an inspector, or
(b)
in any other case—within but not later than
12 months after that date.
(3)
If subsection (2) is relied on for the purpose of
commencing proceedings for an offence, the court attendance notice or
application must contain particulars of the date on which evidence of the
offence first came to the attention of an inspector and need not contain
particulars of the date on which the offence was
committed.
(4)
The date on which evidence first came to the
attention of an inspector is the date specified in the court attendance notice
or application, unless the contrary is established.
(5)
This section applies only to proceedings that are
to be dealt with summarily.
(6)
This section applies despite anything in the
Criminal Procedure Act 1986 or any other
Act.
(7)
In this section:
evidence of an offence means
evidence of any act or omission constituting the
offence.
125NPenalty notices for
offences
(1)
An authorised officer may serve a penalty notice
on a person if it appears to the officer that the person has committed an
offence against this Act or the regulations, being an offence prescribed by
the regulations as a penalty notice offence.
(2)
A penalty notice is a notice to the effect that,
if the person served does not wish to have the matter determined by a court,
the person can pay, within the time and to the person specified in the notice,
the amount of the penalty prescribed by the regulations for the offence if
dealt with under this section.
(3)
A penalty notice under this section is declared
to be a penalty notice for the purposes of the Fines Act
1996.
(4)
A penalty notice may be served personally or by
post.
(5)
If the amount of penalty prescribed for an
alleged offence is paid under this section, no person is liable to any further
proceedings for the alleged offence.
(6)
Payment under this section is not to be regarded
as an admission of liability for the purpose of, and does not in any way
affect or prejudice, any civil claim, action or proceeding arising out of the
same occurrence.
(7)
The regulations may:
(a)
prescribe an offence for the purposes of this
section by specifying the offence or by referring to the provision creating
the offence, and
(b)
prescribe the amount of penalty payable for the
offence if dealt with under this section, and
(c)
prescribe different amounts of penalties for
different offences or classes of offences.
(8)
The amount of a penalty prescribed under this
section for an offence is not to exceed the maximum amount of penalty that
could be imposed for the offence by a court.
(9)
This section does not limit the operation of any
other provision of, or made under, this or any other Act relating to
proceedings that may be taken in respect of offences.
(10)
In this section, authorised officer means a member of
staff of the Department who exercises functions under this Act or the Mining Act 1992 authorised in writing by
the Department as an authorised officer for the purposes of this
section.
Division 3Restraining
orders
125OApplication of
Division
(1)
This Division applies where:
(a)
proceedings have been commenced against a person
for an offence against this Act or the regulations and, as a result of those
proceedings, the person may be required to pay an amount referred to in
section 125ZD, or
(b)
proceedings have been commenced against a person
under section 125ZD.
(2)
In this Division:
the
defendant means the person referred to in subsection (1) (a)
or (b).
125PNature of restraining
order
A restraining order is an order of a court
directing that any property of the defendant 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.
125QApplication for restraining
order
(1)
A person bringing proceedings (as referred to in
section 125O) may apply for a restraining order in relation to property of the
defendant.
(2)
An application under this section may be made to
the Land and Environment Court.
(3)
On an application under this section:
(a)
the court may, if it thinks fit, require the
person making the application to give notice of the application to a person
who the court has reason to believe has an interest in the property or part of
the property, and
(b)
a person to whom the court requires notice be
given under paragraph (a) is entitled to appear and to adduce evidence at the
hearing of the application.
125RMaking of restraining
order
On an application under section 125Q, the court
may make a restraining order in relation to the defendant’s property if
it is satisfied (on the information contained in or accompanying the
application) that:
(a)
the defendant has committed the relevant offence,
and
(b)
amounts are or are likely to be payable under
section 125ZD or 125ZE, and
(c)
it is appropriate to make an order under this
section in the circumstances of the case.
125SUndertakings
The court may refuse to make a restraining order
if the person making the application refuses or fails to give to the court
such undertakings as the court considers appropriate with respect to the
payment of damages or costs, or both, in relation to the making or operation
of the order.
125TAncillary
orders
(1)
A court that makes a restraining order may make
any ancillary orders that the court considers
appropriate.
(2)
Without limiting the generality of subsection
(1), ancillary orders may include any one or more of the following:
(a)
an order for the examination on oath of:
(i)
the defendant, or
(ii)
another person,
before the court, or an officer of the court prescribed
by rules of court, concerning the affairs of the defendant, including the
nature and location of any property of the defendant,
(b)
an order varying the restraining order in respect
of the property to which it relates,
(c)
an order varying any conditions to which the
restraining order was subject.
(3)
An ancillary order may be made on
application:
(a)
by the applicant for the restraining order,
or
(b)
by the defendant, or
(c)
with the leave of the court, by any other
person.
(4)
Ancillary orders may be made when or at any time
after the restraining order is made. An ancillary order referred to in
subsection (2) (a) may be made in advance of the restraining
order.
125UCharge on property subject to
restraining orders
(1)
If:
(a)
a court has made a restraining order in respect
of particular property or all of the property of the defendant,
and
(b)
the court orders the payment of an amount
referred to in section 125ZD or 125ZE,
there is created by force of this section, on the making
of the order referred to in paragraph (b), a charge on all the property to
which the restraining order applies to secure the payment to a public
authority or person (which extends, for the purposes of this Division, to the
Crown) of the amount referred to in section 125ZD or
125ZE.
(2)
Such a charge ceases to have effect in respect of
the property:
(a)
on payment by the defendant to the public
authority or person of the amount concerned, or
(b)
on the sale or other disposition of the property
with the consent of the court, or
(c)
on the sale of the property to a purchaser in
good faith for value who, at the time of the sale, has no notice of the
charge,
whichever occurs first.
(3)
Such a charge is subject to every charge or
encumbrance to which the property was subject immediately before the order
referred to in subsection (1) (b) was made and, in the case of land under the
provisions of the Real Property Act
1900, is subject to every mortgage, lease or other
interest recorded in the Register kept under that Act.
(4)
Such a charge is not affected by any change of
ownership of the property, except as provided by subsection
(2).
(5)
If:
(a)
such a charge is created on property of a
particular kind and the provisions of any law of the State provide for the
registration of title to, or charges over, property of that kind,
and
(b)
the charge is so
registered,
a person who purchases or otherwise acquires the
property after the registration of the charge is, for the purposes of
subsection (2), taken to have notice of the charge.
(6)
If such a charge relates to land under the
provisions of the Real Property Act
1900, the charge has no effect until it is registered
under that Act.
125VRegistration of restraining
orders
(1)
If a restraining order applies to property of a
particular kind and the provisions of any law of the State provide for the
registration of title to, or charges over, property of that kind, the
authority responsible for administering the provisions is required, on
application by any person, to record the particulars of the order in the
register kept under those provisions.
(2)
If the particulars of a restraining order are so
recorded, a person who afterwards deals with the property is, for the purposes
of section 125U (2), taken to have notice of the charge created by this Act on
the making of the order.
(3)
If a restraining order applies to land under the
provisions of the Real Property Act
1900, a caveat may be lodged under that Act in relation to
the order.
125WRecovery of costs of
registering charge on land
(1)
A person or public authority who registers a
charge on land to which a restraining order applies under section 125U may, by
written notice, require the defendant to pay all or any of the reasonable
costs and expenses incurred by the person or authority in respect of the
lodgment and registration of the charge (including the costs of discharging
the charge).
(2)
The person or public authority may recover from
the defendant any unpaid amounts specified in the notice as a debt in a court
of competent jurisdiction.
125XRecovery of costs of lodging
caveat
(1)
A person or public authority who lodges a caveat
in respect of land to which a restraining order applies under section 125V
may, by written notice, require the defendant to pay all or any of the
reasonable costs and expenses incurred by the person or authority in respect
of the lodgment and registration of the caveat (including the costs of
withdrawal of the caveat).
(2)
The person or public authority may recover from
the defendant any unpaid amounts specified in the notice as a debt in a court
of competent jurisdiction.
125YContravention of restraining
orders
(1)
A person who knowingly contravenes a restraining
order by disposing of, or otherwise dealing with, property that is subject to
the order is guilty of an offence.
Maximum penalty: A fine equivalent to the value
of the property (as determined by the court) or imprisonment for 12 months, or
both.
(2)
If:
(a)
a restraining order is made against property,
and
(b)
the property is disposed of, or otherwise dealt
with, in contravention of the restraining order, and
(c)
the disposition or dealing was either not for
sufficient consideration or not in favour of a person who acted in good
faith,
the person who applied for the restraining order may
apply to the court that made the restraining order for an order that the
disposition or dealing with the property be set aside.
(3)
If an application is made under subsection (2),
the court may make an order:
(a)
setting aside the disposition or dealing as from
the day on which the disposition or dealing took place or as from the day of
the order under this subsection, and
(b)
(if appropriate) declaring the respective rights
of any persons who acquired interests in the property on or after the day on
which the disposition or dealing took place and before the day of the
order.
125ZCourt may revoke restraining
order
(1)
The court that made a restraining order may
revoke the order, on application made to it by the person in relation to whose
property it was made.
(2)
The court may refuse to revoke the order if the
person does not:
(a)
give security satisfactory to the court for the
payment of any amount referred to in section 125ZD or 125ZE that may be
imposed on or ordered to be paid by the person under this Act in respect of
the person’s conviction for the offence, or
(b)
give undertakings satisfactory to the court
concerning the person’s property.
(3)
Subsection (2) does not limit the discretion of
the court to revoke or refuse to revoke a restraining
order.
125ZATime when restraining order
ceases to be in force
If, after a restraining order was made in
reliance on the charging of a person with an offence against this Act or the
regulations:
(a)
the charge is withdrawn and the person is not
charged with a related offence by the time of the withdrawal—the
restraining order ceases to be in force when the charge is withdrawn,
or
(b)
the person is acquitted of the charge and the
person is not charged with a related offence by the time of the
acquittal—the restraining order ceases to be in force when the acquittal
occurs.
Division 4Court orders in connection
with offences
125ZBOperation of
Division
(1)
This Division applies where a court finds an
offence against this Act or the regulations proved.
(2)
Without limiting the generality of subsection
(1), a court finds an offence proved if:
(a)
the court convicts the offender of the offence,
or
(b)
the court makes an order under section 10 of the
Crimes (Sentencing Procedure) Act 1999
against the offender in relation to the offence (in which case the order is
not a punishment for the purposes of that section).
(3)
In this Division:
the
court means the court that finds the offence
proved.
the
offender means the person who is found to have committed the
offence.
125ZCOrders
generally
(1)
One or more orders may be made under this
Division against the offender.
(2)
Orders may be made under this Division in
addition to any penalty that may be imposed or any other action that may be
taken in relation to the offence.
(3)
Orders may be made under this Division regardless
of whether any penalty is imposed, or other action taken, in relation to the
offence.
125ZDOrders for costs, expenses and
compensation at time offence proved
(1)
The court may, if it appears to the court
that:
(a)
the Crown or a public authority has incurred
costs and expenses in connection with:
(i)
the prevention, control, abatement or mitigation
of any harm to the environment caused by the commission of the offence,
or
(ii)
making good any resulting environmental damage,
or
(b)
the Crown or another person or a public authority
has, because of the commission of the offence, suffered loss of or damage to
property or has incurred costs and expenses in preventing or mitigating, or in
attempting to prevent or mitigate, any such loss or
damage,
order the offender to pay to the Crown, public authority
or person the costs and expenses so incurred, or compensation for the loss or
damage so suffered, as the case may be, in such amount as is fixed by the
order.
(2)
However, a court is not to make an order for
payment to a person under subsection (1) to the extent that the payment would
represent the value of petroleum owned by that person that the offender had
obtained by fossicking, prospecting operations or mining operations carried
out with the consent of that person and in connection with the
offence.
(3)
An order made by the Local Court under subsection
(1) is enforceable as if it were an order made by the court when exercising
jurisdiction under the Civil Procedure Act
2005.
(4)
An order made by the Land and Environment Court
under subsection (1) is enforceable as if it were an order made by the Court
in Class 4 proceedings under the Land and
Environment Court Act 1979.
(5)
The Local Court is not to make an order under
subsection (1) for the payment of an amount that exceeds the amount for which
an order may be made by the court when exercising jurisdiction under the
Civil Procedure Act
2005.
125ZERecovery of costs, expenses
and compensation after offence proved
(1)
If, after the court finds the offence
proved:
(a)
the Crown or a public authority has incurred
costs and expenses in connection with:
(i)
the prevention, control, abatement or mitigation
of any harm to the environment caused by the commission of the offence,
or
(ii)
making good any resulting environmental damage,
or
(b)
a person (including the Crown and a public
authority) has, because of the commission of the offence, suffered loss of or
damage to property or has incurred costs and expenses in preventing or
mitigating, or in attempting to prevent or mitigate, any such loss or
damage,
the Crown, public authority or person may recover from
the offender the costs and expenses incurred or the amount of the loss or
damage in the Land and Environment Court.
(2)
The amount of any such costs and expenses (but
not the amount of any such loss or damage) may be recovered as a debt in a
court of competent jurisdiction.
(3)
However, a person may not recover an amount that
would represent the value of petroleum owned by that person that the offender
had obtained by fossicking, prospecting operations or mining operations
carried out with the consent of that person and in connection with the
offence.
125ZFOrders regarding costs and
expenses of investigation
(1)
The court may, if it appears to the court that
the Crown or a public authority has reasonably incurred costs and expenses
during the investigation of the offence, order the offender to pay to the
Crown or the authority the costs and expenses so incurred in such amount as is
fixed by the order.
(2)
An order made by the Land and Environment Court
under subsection (1) is enforceable as if it were an order made by the Court
in Class 4 proceedings under the Land and
Environment Court Act 1979.
(3)
An order made by the Local Court under subsection
(1) is enforceable as if it were an order made by the court when exercising
jurisdiction under the Civil Procedure Act
2005.
(4)
In this section:
costs and
expenses, in relation to the investigation of an offence,
means the costs and expenses:
(a)
in taking any sample or conducting any
inspection, test, measurement or analysis, or
(b)
of transporting, storing or disposing of
evidence,
during the investigation of the
offence.
125ZGOrders regarding other
monetary benefits
(1)
The court may order the offender to pay, as an
additional penalty for committing the offence, an amount that the court is
satisfied, on the balance of probabilities, represents the amount of any
monetary benefits acquired by the offender, or accrued or accruing to the
offender, as a result of the commission of the offence.
(2)
However, in calculating the amount of these
monetary benefits, the court is to exclude any monetary benefits acquired in
connection with the fossicking or prospecting for, or the mining of, privately
owned petroleum.
(3)
The amount of an additional penalty for an
offence is not subject to any maximum amount of penalty provided elsewhere by
or under this Act.
(4)
In this section:
monetary
benefits means monetary, financial or economic
benefits.
the
court does not include the Local
Court.
125ZHAdditional
orders
(1)
The court may do any one or more of the
following:
(a)
order the offender to take specified action to
publicise the offence (including the circumstances of the offence) and its
consequences and any other orders made against the person,
(b)
order the offender to take specified action to
notify specified persons or classes of persons of the offence (including the
circumstances of the offence) and its consequences and of any orders made
against the person (including, for example, the publication in an annual
report or any other notice to shareholders of a company or the notification of
persons aggrieved or affected by the offender’s
conduct),
(c)
order the offender to carry out a specified
project for the rehabilitation of the area comprised in a current or former
petroleum title,
(d)
order the offender to carry out an audit of
activities carried on by the offender,
(e)
order the offender to attend, or to cause an
employee or employees or a contractor or contractors of the offender to
attend, a training or other course specified by the court,
(f)
order the offender to establish, for employees or
contractors of the offender, a training course of a kind specified by the
court,
(g)
order the offender to pay any royalty that is due
and payable by the offender under this Act,
(h)
if the Secretary is a party to proceedings, order
the offender to provide to the Secretary and maintain a security deposit, in a
form and amount, and on such terms (if any), specified by the court, if the
court orders the offender to carry out a specified work or program for the
restoration or enhancement of the environment.
However, the Local Court is not authorised to
make an order referred to in paragraph (c), (d), (e) or
(h).
(2)
The court may, in an order under this section,
fix a period for compliance and impose any other requirements the court
considers necessary or expedient for enforcement of the
order.
(3)
If the offender contravenes an order under
subsection (1) (a) or (b), the prosecutor or a person authorised by the
prosecutor may take action to carry out the order as far as may be
practicable, including action to publicise or notify:
(a)
the original contravention, its environmental and
other consequences, and any other penalties imposed on the offender,
and
(b)
the contravention of the
order.
(4)
The reasonable cost of taking action referred to
in subsection (3) is recoverable by the prosecutor or person taking the
action, in a court of competent jurisdiction, as a debt from the
offender.
(5)
Section 106I applies with respect to a security
deposit provided under an order referred to in subsection (1) (i) as if it
were provided under a security deposit condition.
Division 5Court orders in connection
with suspected contraventions
125ZIOrder for recovery of costs
related to prospecting or mining without authority
(1)
The Land and Environment Court or a Local Court
may make an order under this section if the court is satisfied, on the balance
of probabilities, that a person has prospected for or mined for petroleum
otherwise than in accordance with a petroleum title.
(2)
The court may order a person to pay to a
government agency or person costs and expenses incurred, or compensation for
loss or damage suffered, as the case may be, in such amount as is fixed by the
order, if it appears to the court that:
(a)
a government agency has incurred costs and
expenses in connection with:
(i)
the prevention, control, mitigation or management
of any environmental impact caused by the prospecting or mining,
or
(ii)
rehabilitating land or water damaged or affected
by the prospecting or mining, or
(b)
a person (including a government agency) has, by
reason of the prospecting or mining, suffered loss of or damage to property or
has incurred costs and expenses in preventing, controlling, mitigating or
managing any such loss or damage, or attempting to do
so.
(3)
However, the court is not to make an order for
payment to a person under the section to the extent that the payment would
represent the value of petroleum owned by that person that the person who
carried out the suspected unlawful prospecting or mining had obtained by
prospecting or mining carried out with the consent of that person and in
connection with the suspected contravention.
(4)
An order made by the Local Court under this
section is enforceable as if it were an order made by the court when
exercising jurisdiction under the Civil Procedure
Act 2005.
(5)
An order made by the Land and Environment Court
under this section is enforceable as if it were an order made by the Court in
Class 4 proceedings under the Land and
Environment Court Act 1979.
(6)
The Local Court may not make an order under this
section for the payment of an amount that exceeds the jurisdictional limit of
the Local Court under the Civil Procedure Act
2005.
(7)
The court may make an order under this section
whether or not the person against whom the order is made:
(a)
has been convicted of an offence under this Act
in relation to the prospecting or mining, or
(b)
has been issued with a penalty notice under this
Act in relation to the prospecting or mining, and whether or not the amount of
penalty prescribed for the offence has been paid under any such penalty
notice, or
(c)
has had any other action taken against the person
in respect of an offence under this Act in relation to the prospecting or
mining.
(8)
This section does not prevent the taking of
proceedings for an offence of prospecting or mining for petroleum except in
accordance with a petroleum title.
Division 6Enforceable
undertakings
125ZJSecretary may accept
enforceable undertakings
(1)
The Secretary may accept a written undertaking
(an enforceable undertaking) given by a
person in connection with a matter relating to a contravention or alleged
contravention by the person of this Act.
(2)
The giving of an enforceable undertaking does not
constitute an admission of guilt by the person giving it in relation to the
contravention or alleged contravention to which the undertaking
relates.
(3)
The Secretary must issue, and make public general
guidelines for or in relation to the acceptance of enforceable undertakings
under this Act.
125ZKNotice of decision and reasons
for decision
(1)
The Secretary must give the person seeking to
make an enforceable undertaking written notice of the Secretary’s
decision to accept or reject the enforceable undertaking and of the reasons
for the decision.
(2)
The Secretary must publish, and make public,
notice of a decision to accept an enforceable undertaking and the reasons for
that decision.
125ZLWhen an enforceable
undertaking is enforceable
An enforceable undertaking takes effect and
becomes enforceable when the Secretary’s decision to accept the
undertaking is given to the person who made the undertaking or at any later
date specified by the Secretary.
125ZMCompliance with enforceable
undertaking
A person must not contravene an enforceable
undertaking made by that person that is in effect.
Maximum penalty:
(a)
in the case of a corporation—10,000 penalty
units, or
(b)
in the case of a natural person—2,000
penalty units.
125ZNContravention of enforceable
undertaking
(1)
The Secretary may apply to the District Court for
an order if a person contravenes an enforceable
undertaking.
(2)
If the Court is satisfied that the person who
made the enforceable undertaking has contravened the undertaking, the Court,
in addition to the imposition of any penalty, may make one or both of the
following orders:
(a)
an order directing the person to comply with the
undertaking,
(b)
an order discharging the
undertaking.
(3)
In addition to the orders referred to in
subsection (2), the Court may make any other order that the Court considers
appropriate in the circumstances, including orders directing the person to pay
to the State:
(a)
the costs of the proceedings,
and
(b)
the reasonable costs of the Secretary in
monitoring compliance with the enforceable undertaking in the
future.
Note—
Section 125ZP specifies circumstances affecting
proceedings for a contravention for which an enforceable undertaking has been
given.
125ZOWithdrawal or variation of
enforceable undertaking
(1)
A person who has made an enforceable undertaking
may at any time, with the written agreement of the Secretary:
(a)
withdraw the undertaking, or
(b)
vary the undertaking.
(2)
However, the provisions of the undertaking cannot
be varied to provide for a different alleged contravention of the
Act.
(3)
The Secretary must publish, and make public,
notice of the withdrawal or variation of an enforceable
undertaking.
125ZPProceeding for alleged
contravention
(1)
Subject to this section, no proceedings for a
contravention or alleged contravention of this Act may be brought against a
person if an enforceable undertaking is in effect in relation to that
contravention.
(2)
No proceedings may be brought for a contravention
or alleged contravention of this Act against a person who has made an
enforceable undertaking in relation to that contravention and has completely
discharged the enforceable undertaking.
(3)
The Secretary may accept an enforceable
undertaking in relation to a contravention or alleged contravention before
proceedings in relation to that contravention have been
finalised.
(4)
If the Secretary accepts an enforceable
undertaking before the proceedings are finalised, the Secretary must take all
reasonable steps to have the proceedings discontinued as soon as
possible.
Division 7Evidentiary
provisions
125ZQCertificate evidence of
certain matters
(1)
A document signed by the Secretary, or by an
officer designated by the Secretary for the purposes of this section, and
certifying any one or more of the matters specified in subsection (2) is
admissible in any proceedings under this Act and is prima facie evidence of
the matters so certified.
(2)
The following matters are specified for the
purposes of subsection (1):
(a)
that an instrument, a copy of which is set out in
or annexed to the document, being an instrument purporting:
(i)
to be issued, made or given for the purposes of
this Act, and
(ii)
to have been signed by the person authorised to
issue, make or give the instrument, or by another person acting as delegate or
on behalf of the person,
was issued, made or given on a specified
day,
(b)
that a person was or was not, at a specified time
or during a specified period, the holder of a specified petroleum title or a
petroleum title of a specified kind,
(c)
that specified land was or was not, at a
specified time or during a specified period, the subject of a specified
petroleum title or a petroleum title of a specified kind,
(d)
that a petroleum title was or was not, at a
specified time or during a specified period, subject to specified
conditions,
(e)
that a petroleum title was, at a specified time,
cancelled or suspended for a specified period or was cancelled or suspended
subject to specified conditions,
(f)
that a condition was, at a specified time,
revoked or varied in a specified manner or that a new condition was, at a
specified time, imposed on a petroleum title or on the suspension of a
petroleum title,
(g)
that a person was or was not, at a specified time
or during a specified period, an inspector,
(h)
that a person was or was not, at a specified time
or during a specified period, a member of staff of the Department or a
council,
(i)
that information required to be furnished
pursuant to this Act or the regulations was or was not
received,
(j)
that a document is a copy of part of, or an
extract from, a register kept under this Act,
(k)
that a specified amount is payable under this Act
or the regulations by a specified person and has not been
paid,
(l)
that petroleum of a specified value was recovered
by a specified person or from specified land, at a specified time or during a
specified period,
(m)
that a specified legal or equitable interest
(being a legal or equitable interest of a kind referred to in section 97) was
or was not registered under this Act,
(n)
that the Crown or a public authority has incurred
costs or expenses of a specified amount under section 78D,
(o)
that the Crown or a public authority has incurred
costs or expenses of a specified amount in connection with the investigation
of a specified offence under this Act,
(p)
that a specified function under this Act was
delegated to a specified person under section 113B during a specified
period.
(3)
For the purposes of the certification of a matter
referred to in subsection (2) (h), the person who appointed the inspector or
royalty officer concerned is taken to be an officer designated by the
Secretary (as referred to in subsection (1)).
(4)
In the absence of information that would enable
the accurate determination of an amount payable, as referred to in subsection
(2) (k), or the value of petroleum, as referred to in subsection (2) (l), the
following provisions have effect:
(a)
the amount or value certified may be an estimate
of that amount or value (based on the information available to the person
making the certification),
(b)
the estimate is presumed to be accurate and
cannot be challenged on the basis that insufficient information was available
to enable the making of an accurate determination, but can be challenged by
the provision of information that enables a more accurate estimate to be
made,
(c)
if the estimate is successfully challenged and as
a result a more accurate estimate is substituted, no proceedings are open to
challenge merely because of the less accurate estimate and proceedings may
continue to be heard and be determined on the basis of the substituted
estimate.
Division 8General
125ZRContinuing effect of notices
and conditions
(1)
A notice given, or a condition of a petroleum
title imposed, under this Act or the regulations that specifies a time by
which, or period within which, the notice or condition must be complied with
continues to have effect until the notice or condition is complied with even
though the time has passed or the period has expired.
(2)
A notice that does not specify a time by which,
or period within which, the notice must be complied with continues to have
effect until the notice is complied with.
(3)
This section does not apply to the extent that
any requirement under a notice or a condition of a petroleum title is
revoked.
(4)
Nothing in this section affects the powers of a
regulatory authority with respect to the enforcement of a notice or a
condition of a petroleum title.
[45]Sections 126, 126A and
127
Omit the sections.
[46]Sections 129A and
129B
Insert before section 130:
129AExtraterritorial
application
A notice may be given under this Act to a person
in respect of a matter even though the person is outside the State or the
matter occurs or is located outside the State, so long as the matter relates
to the administration of this Act (including, but not limited to investigation
of, or enforcement action relating to, offences against this
Act).
129BWaiver of minor procedural
matters
(1)
The Minister may waive any requirement of this
Act or the regulations:
(a)
as to the time within which anything is required
to be done (but not the time for lodging any application for renewal of a
petroleum title after the date of expiry), or
(b)
as to the details to be contained in any notice
to be served, lodged or caused to be published by the applicant,
or
(c)
as to the documents or particulars to accompany
the application, or
(d)
as to the furnishing of information by the
applicant.
(2)
This section does not authorise the Minister to
waive a requirement unless the Minister is satisfied that the waiver is
unlikely:
(a)
to adversely affect any person’s rights
under this Act or the regulations, or
(b)
to result in any person being deprived of
information necessary for the effective exercise of those
rights.
[47]Sections 131–133, 135,
136, 136A, 137 and 137A
Omit the sections.
[48]Section 138
Regulations
Omit section 138 (2). Insert instead:
(2)
The regulations may adopt or provide for the
adoption of any document (including, for example, a code of practice or set of
standards published by any person or body) and for the application of the
provisions of that document, as in force for the time being, for any of the
purposes of this Act or the regulations.
[49]Sections 138B References to
certain officers in petroleum titles
Omit “section 126” from section 138B
(2). Insert instead “section 113B (1)”.
[50]Schedule
1B
Insert in appropriate order:
Schedule 1BFurther provisions relating to
petroleum titles generally
Part 1Preliminary
1Application of
Schedule
This Schedule applies to and in respect of the
following:
(a)
applications for, and decisions made by the
Minister, in relation to the grant, renewal or transfer of a petroleum
title,
(b)
the imposition of conditions on, or variation or
suspension of conditions of, a petroleum title,
(c)
the variation of a petroleum
title.
Part 2Considering
applications
2Protection of the environment
must be taken into account in considering applications
(1)
The Minister must take into account the need to
conserve and protect the environment in or on the land over which the
petroleum title is sought (or, in the case of a variation, to which it
applies) in considering an application to which this Schedule
applies.
(2)
The Minister may cause such studies (including
environmental impact studies) to be carried out as the Minister considers
necessary to assist in making a decision on the
application.
(3)
If public money is spent under subclause (2) in
having studies carried out or engaging persons to provide advice, the Minister
may, by written notice, require the applicant concerned to reimburse the
Government, within the time specified in the notice, for the money, or any
part of the money, reasonably incurred.
(4)
The Minister may recover from the applicant any
unpaid amounts specified in the notice as a debt in a court of competent
jurisdiction.
3Other matters that may be
taken into account in considering applications
Without limiting the generality of any other
provision of this Act, the Minister may take into account any one or more of
the following when considering an application to which this Schedule
applies:
(a)
whether, in the opinion of the Minister, the
applicant meets the minimum standards, made public by the Minister, required
to be met with respect to the technical and financial capability to carry out
the proposed work program,
(b)
if the application relates to a
transfer—whether, in the opinion of the Minister, the transferee meets
the minimum standards, made public by the Minister, required to be met with
respect to the technical and financial capability to carry out the proposed
work program,
(c)
if the applicant is a natural person—the
compliance history of the applicant,
(d)
if the applicant is a body corporate—the
compliance history of any director of the body corporate or of any related
body corporate,
(e)
if the application relates to a transfer and the
proposed transferee is a natural person—the compliance history of the
proposed transferee,
(f)
if the application relates to a transfer and the
proposed transferee is a body corporate—the compliance history of any
director of that body corporate,
(g)
whether, in the opinion of the Minister, the work
program proposed to be carried out by the applicant meets the minimum
standards, made public by the Minister, required to be met with respect to
work programs for a petroleum title of the kind
concerned.
4Minister may require further
information
(1)
The Minister may require a person who makes an
application to which this Schedule applies to furnish further information in
connection with the application, including (if the applicant is a body
corporate) information as to the extent to which the controlling power in the
body corporate’s affairs is held by:
(a)
a foreign company within the meaning of the
Corporations Act 2001 of the
Commonwealth, or
(b)
a company registered under that Act that is taken
for the purposes of that Act to be registered in a State or Territory other
than New South Wales, or
(c)
a natural person who is a resident of a foreign
country.
(2)
The application may be refused if the applicant
does not furnish that further information within the period specified by the
Minister by written notice when the request for further information is
made.
5Grounds for refusal of
applications
Without limiting the generality of any other
provision of this Act, the Minister may refuse an application to which this
Schedule applies on any one or more of the following grounds:
(a)
the Minister considers that the applicant (or if
the application relates to a transfer, the transferee) has an unsatisfactory
compliance history,
(b)
the Minister considers that the applicant (or if
the application relates to a transfer, the transferee) does not meet the
applicable minimum standards with respect to work programs and the technical
and financial capability to carry out the proposed work
program,
(c)
the applicant has not paid any fee payable in
connection with the application,
(d)
the applicant has failed to lodge any information
required to accompany the application within 10 business days after the
application is lodged.
Part 3Conditions of petroleum
titles
6Conditions of petroleum
titles
(1)
A petroleum title is subject to:
(a)
any condition imposed by the Minister under this
Schedule (including any variation of such a condition),
and
(b)
any condition imposed by or under section 45C
(2), 83D or 106B, and
(c)
any condition prescribed by the
regulations.
(2)
Without limiting the generality of subclause (1),
conditions imposed by the Minister or prescribed by the regulations may
include conditions relating to the following:
(a)
the development and conduct of petroleum
operations,
(b)
environmental management, protection and
rehabilitation, including requiring the holder of the title:
(i)
to carry out activities or not to carry out
activities in order to protect, prevent, control or mitigate harm to the
environment, and
(ii)
to rehabilitate land or water that is or may be
affected by activities under the petroleum title,
(c)
compliance with codes of practice or sets of
standards published by any person or body,
(d)
ensuring the safety of the public in relation to
prospecting and mining operations,
(e)
the administration of petroleum
titles,
(f)
community relations,
(g)
requiring the holder to provide the Minister with
reports detailing any non-compliance with the conditions of the petroleum
title, or any requirements of this Act or the regulations relating to
activities under the petroleum title, and any action taken, or to be taken, to
prevent any recurrence, or to mitigate the effects of that
non-compliance.
(3)
Any obligation imposed on the holder of a
petroleum title in relation to environmental management, protection and
rehabilitation:
(a)
continues to have effect despite the cancellation
of the petroleum title or it ceasing to have effect, and
(b)
can be imposed despite anything to the contrary
in section 93 of the Environmental Planning and Assessment
Act 1979.
(4)
Unless an exemption from conditions imposed by
the regulations applies, in the event of an inconsistency between conditions
imposed by the Minister and those imposed by the regulations, the conditions
imposed by the regulations prevail to the extent of any
inconsistency.
7Conditions imposed on
petroleum titles by Minister
(1)
The Minister may impose conditions on a petroleum
title:
(a)
at the time of the grant of the petroleum title,
or
(b)
at any later time, as permitted by this
Schedule.
(2)
A condition imposed by the Minister takes effect
as follows:
(a)
if the condition is imposed on the grant of a
petroleum title—when the grant takes effect,
(b)
if the condition is imposed on the renewal of a
petroleum title—when the renewal takes effect,
(c)
if the condition is imposed when a full or
partial transfer of a petroleum title is approved under this Act—when
the transfer is registered under this Act,
(d)
if the condition is a variation under clause
9—as provided by clause 9 (7),
(e)
in any other case—when written notice of
the imposition of the condition is served on the holder of the petroleum title
or at a later time specified in the notice.
8Exemption from conditions
imposed by regulations
(1)
The Minister may, by order published in the
Gazette, exempt the holder of a petroleum title from compliance with a
condition imposed by the regulations.
(2)
An exemption may be granted subject to
conditions.
(3)
An exemption may:
(a)
apply generally or be limited in its application
by reference to specified exceptions or factors, and
(b)
apply differently according to different factors
of a specified kind, and
(c)
be granted for a specified period or for an
indefinite period, and
(d)
if granted for a specified period—be
granted before, during or after that period.
(4)
The Minister may vary or revoke an exemption
(including by imposing, varying or revoking a condition of the exemption) at
any time by notice in writing to the holder of the petroleum
title.
(5)
The regulations may make provision for or with
respect to exemptions.
Part 4Variation of petroleum titles
and variation or suspension of their conditions
9Variation of petroleum titles
by Minister
(1)
The Minister may vary a petroleum title
(including the conditions of a petroleum title).
(2)
A variation of a petroleum title may
include:
(a)
the attaching of a condition to a petroleum title
(whether or not any conditions have already been attached),
or
(b)
the substitution of a condition,
or
(c)
the omission of a condition,
or
(d)
the amendment of a condition,
or
(e)
the variation of the instrument by which a
petroleum title is granted, including so as to:
(i)
update the instrument, or
(ii)
correct a minor error or misdescription,
or
(iii)
consolidate variations made to the petroleum
title.
(3)
A petroleum title may be varied on application by
the holder of the petroleum title or on the initiative of the
Minister.
(4)
Except in the case of the renewal or transfer of
a petroleum title, the Minister is not to vary a prescribed condition
subsequent to the grant of the petroleum title unless the Minister:
(a)
has given the holder of the petroleum title
notice of the draft variation, and
(b)
has invited the making of submissions to the
Minister about the proposed variation and specified a deadline for the making
of those submissions that is at least 28 days after the publication of the
notice, and
(c)
has either received such submissions and has
taken them into consideration or has not received any such submission after
the deadline has elapsed.
(5)
A petroleum title may be varied at any time
during its currency, including on its being transferred to another
person.
(6)
A petroleum title is varied by notice in writing
given to the holder of the petroleum title.
(7)
The variation of a condition by the Minister
takes effect as follows:
(a)
if the condition is varied on the renewal of a
petroleum title—when the renewal takes effect,
(b)
if the condition is varied when a full or partial
transfer of a petroleum title is approved under this Act—when the
transfer is registered under this Act,
(c)
if a prescribed condition is varied other than at
the renewal of a petroleum title or when a full or partial transfer of a
petroleum title is approved under this Act—28 days after written notice
of the variation of the condition is served on the holder of the petroleum
title or at a later time specified in the notice,
(d)
in any other case—when written notice of
the variation of the condition is served on the holder of the petroleum title
or at a later time specified in the notice.
(8)
This clause does not apply to a condition that is
prescribed by the regulations.
(9)
In this clause:
prescribed condition means a
condition that is not:
(a)
imposed on the application of the holder of the
petroleum title, or
(b)
imposed under section 83D or
106B.
10Variation of conditions
imposed by the regulations
(1)
Before a regulation is made that varies any
condition of a petroleum title imposed by the regulations, the Minister is
required to ensure that:
(a)
a notice is published in a daily newspaper
circulating throughout New South Wales:
(i)
stating the objects of the proposed regulation,
and
(ii)
advising where a copy of the regulation may be
obtained or inspected, and
(iii)
inviting comments and submissions within a
specified time, but not less than 28 days from publication of the notice,
and
(b)
all the comments and submissions received within
the time specified in the notice are considered.
(2)
For the purposes of this clause, a regulation
varies a condition of a petroleum title if the regulation:
(a)
imposes a new condition (whether or not any
conditions have already been imposed), or
(b)
substitutes a condition imposed by the
regulations, or
(c)
omits a condition imposed by the regulations,
or
(d)
amends a condition imposed by the
regulations.
11Suspension of conditions of
petroleum titles
(1)
The Minister may (whether on the application of
the holder of the petroleum title or on the initiative of the Minister)
suspend any of the conditions of a petroleum title for such period, or until
the happening of such event, as the Minister may
determine.
(2)
The suspension of conditions of a petroleum title
may be granted unconditionally or subject to such conditions as the Minister
may consider appropriate.
(3)
The suspension of the conditions of a petroleum
title takes effect on the date on which written notice of the suspension is
served on the holder of the petroleum title or on such later date as may be
specified in the notice.
(4)
An application for suspension of the conditions
of a petroleum title may be withdrawn by means of a notice of withdrawal
signed by the applicant and lodged with the Minister.
(5)
The application ceases to have effect when the
notice is lodged.
(6)
The withdrawal of an application under this
clause is irrevocable.
(7)
The Minister may vary the suspension of the
conditions of a petroleum title (including the conditions to which the
suspension is subject).
(8)
A variation includes the attaching of a condition
to the suspension, the substitution of a condition, the omission of a
condition or the amendment of a condition.
(9)
A suspension of the conditions of a petroleum
title is varied by notice in writing given to the holder of the petroleum
title.
(10)
The suspension of any condition of a petroleum
title under this clause does not prevent any action being taken under this Act
in respect of the petroleum title (including variation under clause
9).
(11)
This clause does not apply to a condition that is
prescribed by the regulations.
[51]Schedule 1 Savings and
transitional provisions
Insert at the end of the Schedule with
appropriate Part and clause numbering:
PartProvisions consequent on
enactment of Mining and Petroleum Legislation
Amendment (Harmonisation) Act 2015
Definition
In this Part:
2015
amending Act means the Mining and Petroleum Legislation
Amendment (Harmonisation) Act
2015.
Pending
applications
An application for a petroleum title, or transfer
or renewal of a petroleum title, made but not decided before the commencement
of this clause and that complied with this Act, as in force before the
Act’s amendment by the 2015 amending Act, is taken to have been duly
made under this Act, as amended.
Existing notifications of
areas over which petroleum title may not be granted
A notification under section 9 (1) (a) that was
in force immediately before the amendment of section 9 (1) by the 2015
amending Act is taken to have been made under section 9 (1) as amended by the
2015 amending Act.
Work programs accompanying
existing applications
A work program that accompanied an application
for a petroleum title before the replacement of section 14 by the 2015
amending Act, and that complied with section 14 (and the regulations) as in
force immediately before the substitution of the section, is taken to comply
with section 14 as substituted.
Existing
conditions
Subject to this Part, a condition of a petroleum
title, in force under section 23 immediately before the repeal of that section
by the 2015 amending Act, continues to have effect and is taken to be a
condition imposed under Schedule 1B.
Existing suspension of
condition of petroleum title
A condition of a petroleum title that was,
immediately before the repeal of section 24 by the 2015 amending Act,
suspended, is taken to have been suspended under clause 11 of Schedule 1B, on
the date of the original suspension.
Existing “activity
approval” conditions in exploration licences
(1)
Any condition to which an exploration licence was
subject immediately before the commencement of section 31A, as inserted by the
2015 amending Act, that requires approval to carry out operations and that is
identified in the licence using one of the following phrases is void:
(a)
Category 1 prospecting
operations,
(b)
Category 2 prospecting
operations,
(c)
assessable prospecting
operations.
(2)
However, an approval granted pursuant to a
condition referred to in subclause (1) that was in force immediately before
the commencement of this clause is taken to be an activity approval granted
under section 31A and can be varied or voluntarily cancelled
accordingly.
(3)
An application for approval to carry out
prospecting operations made in compliance with a condition imposed on an
assessment lease, being an application that had not been dealt with before the
commencement of section 36A, as inserted by the 2015 amending Act, is to be
dealt with in accordance with section 36A, as if it had been made under that
section.
(4)
For the avoidance of doubt, compliance with
section 31A or 36A is required in respect of any assessable prospecting
operation carried out after the commencement of the section, even if it began
before the commencement of the section.
Existing directions to
rehabilitate land
A direction given under section 77, as in force
before its substitution by the 2015 amending Act, and having effect
immediately before that substitution, continues in force after that amendment
as if section 77 had not been substituted.
Existing
inspectors
(1)
A person who, on the repeal of section 113 by the
2015 amending Act, was constituted as an inspector by that section is, on that
repeal, taken to be an inspector appointed under section 361 of the Mining Act 1992 until whichever of the
following first occurs:
(a)
the person is appointed as an inspector under
section 361 of the Mining Act
1992,
(b)
the Secretary revokes the person’s
appointment under subclause (2),
(c)
a day occurs that is one year after the day on
which this clause commences.
(2)
The Secretary may revoke the appointment of a
person who is taken to be appointed as an inspector under this clause or may
subject the appointment to conditions, limitations or
restrictions.
Existing notices of cause of
danger
A notice that had effect under section 129
immediately before the commencement of the 2015 amending Act, and was issued
by a person who, on the repeal of section 113 by the 2015 amending Act, was
constituted as an inspector by that section, is taken to have been issued
under this Act, as amended, and can be amended and
revoked.
Environmental
information
Sections 113M and 113N, as inserted by the 2015
amending Act, do not apply to information about harm caused, or likely to be
caused, to the environment obtained by the Secretary before the commencement
of those sections.
Existing notices and
conditions
Section 125D, as inserted by the 2015 amending
Act, extends to information given after the commencement of that section in
compliance with a a notice given or condition imposed under this Act before
the commencement of that section if the time by which, or period within which,
the notice or condition must have been complied with had not expired
immediately before that commencement.
Time for commencement of
proceedings
Section 125M, as inserted by the 2015 amending
Act, does not extend to offences committed before the commencement of that
section for which proceedings had not been commenced when the section
commenced.
sch 2: Am 1987 No 15,
sec 30C.
Schedule 3Consequential amendment of
other Acts
3.1Dams
Safety Act 2015 No 26
Schedule 3 Amendment of other
legislation
Omit Schedule 3.7.
3.2Environmental Planning and Assessment Act 1979 No
203
Section 91 What is
“integrated development”?
Omit “s 9” from the matter relating
to the Petroleum (Onshore) Act
1991 in the table to section 91 (1).
Insert instead “s
16”.
3.3Fines
Act 1996 No 99
Schedule 1 Statutory
provisions under which penalty notices issued
Omit “Petroleum
(Onshore) Act 1991, section 137A”.
Insert instead “Petroleum (Onshore) Act 1991, section
125N”.
3.4Law
Enforcement (Powers and Responsibilities) Act 2002 No
103
Schedule 2 Search warrants
under other Acts
Omit “Petroleum
(Onshore) Act 1991, section 104”.
Insert instead “Petroleum (Onshore) Act 1991, section
104A”.
3.5Offshore Minerals Act 1999 No
42
Section
108
Omit the section. Insert instead:
108Decision on an application for
renewal
After considering an application for the renewal
of an exploration licence, the Minister may:
(a)
provisionally renew the licence,
or
(b)
refuse to renew the
licence.
Note 1—
Under section 89, the renewal of the licence
cannot be effective before it is registered (see section 334 for
registration). The renewal will not be registered until it has been properly
accepted (see section 114 for proper acceptance).
Note 2—
Under section 118, new conditions may be imposed
on renewal.
3.6Protection of the Environment Operations Act
1997 No 156
Schedule 2A Enforcement of gas
and other petroleum legislation (as inserted by Protection of the Environment Operations Amendment
(Enforcement of Gas and Other Petroleum Legislation) Act
2015)
Omit “section 7, 77, or 136A of the Petroleum (Onshore) Act 1991” from
paragraph (a) of the definition of petroleum
offence in clause 1.
Insert instead “section 7, 78A or 125E of
the Petroleum (Onshore) Act
1991”.
Historical
notes
Table of amending
instruments
Mining and
Petroleum Legislation Amendment (Harmonisation) Act 2015 No
40. Assented to 2.11.2015. Date of commencement, Sch 2 [23] excepted,
1.3.2016, sec 2 and 2016 (91) LW 26.2.2016; date of commencement of Sch 2
[23], 18.12.2015, sec 2 and 2015 (793) LW 18.12.2015.
This Act has been amended by sec 30C of the
Interpretation Act 1987 No
15.
Table of
amendments
Sch
2
Am 1987 No
15, sec 30C.