2017
2017
2021-08-27
act
government
publicgeneral
act.reprint
sl-2019-0472
allinforce
2017-08-01
2017-08-01
0
act-2017-037
5258f451-3193-41c8-bd26-b2a5693bdf97
73e44a37-5a1d-4ede-9614-5b30073fe114
2017
none
Does not include amendments
by—
Real Property Amendment
(Certificates of Title) Act 2021 No 10 (not commenced
— to commence 11.10.2021)
See also—
Statute Law (Miscellaneous Provisions)
Bill 2021
Editorial note
The Parliamentary Counsel’s Office is
progressively updating certain formatting styles in versions of NSW in force
legislation published from 29 July 2019. For example, colons are being
replaced by em-rules (em-dashes). Text of the legislation is not
affected.
This version has been
updated.
An Act to make provision for the payment of
compensation for damage caused by subsidence in connection with the extraction
of coal; and for related purposes.
Part 1Preliminary
1Name of Act
This Act is the Coal Mine
Subsidence Compensation Act 2017.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Objects of Act
(1)
The object of this Act is to provide for a fair,
efficient and sustainable compensation framework for dealing with the impacts
of coal mine subsidence.
(2)
In particular, it is the object of this Act to
provide for—
(a)
a scheme for the provision of compensation for
damage caused by subsidence resulting from coal mine operations,
and
(b)
the assessment and management of risks associated
with subsidence resulting from coal mine
operations.
4Definitions
(1)
In this Act—
active coal mine means
the following—
(a)
a colliery holding registered in accordance with
section 163 of the Mining Act 1992
for which a mining lease or other authorisation is in force that authorises
mining for coal or the carrying out of mining purposes in connection with the
mining of coal,
(b)
a coal mine prescribed by the
regulations,
but does not include a coal mine excluded from this
definition by the regulations.
approved
procedures—see section 14.
authorised
officer—see section 36.
Chief Executive means
the person employed in the Public Service as the Chief Executive of Subsidence
Advisory NSW.
coal mine means a place where
mining for coal is occurring or has occurred.
Department means the
Department of Finance, Services and Innovation.
function includes a power,
authority or duty, and exercise a function includes
perform a duty.
Fund means the Coal Mine
Subsidence Compensation Fund.
goods means any moveable personal
property, but does not include motor vehicles, boats or aircraft or any other
thing prescribed by the regulations.
Note—
For example, goods can include carpets, curtains,
furniture, electrical appliances, musical instruments, computers or power
tools.
improvement includes the
following—
(a)
any building or work erected or constructed on
land,
(b)
infrastructure, whether above or below the
surface of the land.
infrastructure includes
(without limitation) railways, roads, electricity transmission or distribution
networks, pipelines, ports, wharf or boating facilities, telecommunications,
sewerage systems, stormwater management systems, water supply systems,
waterway or foreshore management activities, flood mitigation works, public
parks or reserves management, soil conservation works or other buildings or
works prescribed by the regulations.
mine subsidence
district means an area declared under section
20.
non-active coal mine
means a coal mine other than an active coal mine.
preventative or
mitigative expense means an expense incurred or proposed by
or on behalf of the owner of an improvement or goods in preventing or
mitigating damage to that improvement or those goods arising from
subsidence.
proprietor, in relation to a
coal mine, means a person who is the immediate owner, lessee or occupier of
the coal mine (or of any part of the coal mine), and includes the
following—
(a)
any contractor for the working of the coal mine
(or any part of the coal mine),
(b)
if the proprietor is a corporation—any
related body corporate of that corporation,
but does not include a person—
(c)
who merely receives a royalty, rent or fine from
a coal mine, or
(d)
who is merely the proprietor of a coal mine,
subject to any lease, grant, or licence for the working of the coal mine,
or
(e)
who is merely the owner of the soil, but is not
interested in the minerals of the coal mine.
related body
corporate has the same meaning as in the Corporations
Act 2001 of the Commonwealth.
Secretary means the Secretary
of the Department.
subdivide and subdivision mean the
dividing of land into parts, whether the dividing is—
(a)
by sale, conveyance, transfer or partition,
or
(b)
by any agreement, dealing or instrument (other
than a lease for a period not exceeding 5 years without option of renewal)
rendering different parts of the land immediately available for separate
occupation or disposition, or
(c)
by obtaining the issue of a certificate of title
under the Real Property Act
1900 in respect of a part of the
land,
but does not include any severance of land by the
opening of a public road.
subsidence means subsidence
due to the extraction of coal, and includes all vibrations or other movements
of the ground related to any such extraction (whether or not the movements
result in actual subsidence), but does not include vibrations or other
movements of the ground that are due to blasting operations in an open cut
mine and that do not result in actual subsidence.
Note—
The Interpretation Act
1987 contains definitions and other provisions that affect
the interpretation and application of this Act.
(2)
Notes included in this Act do not form part of
this Act.
5Act to bind Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of the Parliament of New South
Wales permits, the Crown in all its other capacities.
Part 2Compensation for mine subsidence
6Compensation in relation to subsidence
A person is entitled to compensation in relation
to subsidence in accordance with this Act.
7Types of compensation
(1)Compensation for damage arising out of
subsidence
A person is entitled to the following
compensation—
(a)
compensation for any damage to improvements or
goods owned by the person that arises from subsidence, unless the subsidence
is due to operations carried on by the owner of the improvements or goods or
an affiliate of the owner,
(b)
compensation to meet the reasonable and necessary
expense incurred or to be incurred as a result of such
damage,
(c)
in relation to a building or works (or any part
of a building or works) that are leased by the owner to another
person—reasonable compensation for the rent that would have been paid or
payable for any period during which the building or works are uninhabitable,
under repair or in the course of construction because of damage arising from
subsidence,
(d)
in relation to a building or works (or any part
of a building or works) that are occupied by the owner—reasonable
compensation for accommodation expenses of the owner (including relocation
expenses and rent) for any period during which the building or works are
uninhabitable, under repair or in the course of construction because of damage
arising from subsidence.
(2)Compensation in relation to actions to prevent or
mitigate damage
A person is entitled to the following
compensation—
(a)
compensation for preventative or mitigative
expenses,
(b)
compensation for damage incurred as a result of
the exercise by the Chief Executive of the Chief Executive’s functions
under section 29 (Works for prevention or mitigation of damage from
subsidence).
(3)Entitlement transfers to successors in
title
For the avoidance of doubt, a successor in title
to an original owner of an improvement or goods is entitled to compensation
under this Act, as if the successor were the original owner, in relation to
subsidence and damage that occurred before the transfer of ownership of the
improvement or goods.
(4)
In this section—
affiliate, in relation to an
entity (the entity),
means—
(a)
another entity that is controlled (within the
meaning of section 50AA of the Corporations Act
2001 of the Commonwealth) by the entity,
or
(b)
if the entity is a body corporate—an entity
that is a related entity of the entity.
entity and related entity have the
same meanings as in section 9 of the Corporations Act
2001 of the Commonwealth.
8Liability for compensation
(1)
Compensation under this Act is to be
paid—
(a)
by the proprietor of the coal mine that caused
the subsidence—in relation to compensation arising from an active coal
mine, and
(b)
by the Chief Executive from the Fund—in
relation to compensation arising from a non-active coal
mine.
(2)
If a person ceases to be a proprietor of an
active coal mine (whether by reason of sale, transfer, the coal mine ceasing
to be active or any other reason), the proprietor remains liable to pay
compensation in relation to any claim that has been made under this Act but
has not been finally determined.
(3)
Subject to subsection (2), a person who becomes a
proprietor of an active coal mine (whether by reason of purchase, transfer or
any other reason) is liable to pay compensation under this Act in relation to
subsidence arising from the coal mine (whether occurring before or after that
time).
9Limitation on claims for damage arising out of
subsidence
(1)
If damage caused by subsidence to an improvement
is greater, by reason of the negligent or improper manner in which the
improvement was constructed or maintained, than it would have been had the
improvement not been so constructed or maintained, the amount of compensation
in respect of the damage may be reduced in accordance with the approved
procedures.
(2)
Compensation is not payable in relation
to—
(a)
improvements or goods used in connection with the
carrying on of a coal mining operation that were damaged by subsidence,
or
(b)
a preventative or mitigative expense that was
incurred, or is incurred or proposed, in relation to any such improvements or
goods,
if the cause of the subsidence that caused the damage or
necessitated the expense was the carrying on of that coal mining
operation.
10Limitation on claims arising out of actions to prevent or
mitigate damage
(1)
Compensation is not payable in relation to a
claim for any preventative or mitigative expense unless—
(a)
the claim is made after the subsidence concerned
has commenced, and
(b)
the expense is incurred or proposed after the
subsidence concerned has commenced, and
(c)
at the time the expense is incurred or proposed
the damage concerned is more likely than not to occur, and
(d)
the preventative or mitigating work (or proposed
preventative or mitigating work) is appropriate and necessary to prevent or
mitigate the damage concerned, and
(e)
the subsidence concerned is not due to operations
carried on by the owner.
(2)
Compensation is not payable in relation to a
claim for any preventative or mitigative expenses if the total preventative or
mitigative expenses claimed are disproportionate to the reasonably expected
total expense of repairing or replacing the improvements or goods concerned if
no preventative or mitigating work had been or were to be carried
out.
11Making of claims of compensation
(1)
A person may apply for compensation under this
Act by lodging a claim through the website of Subsidence Advisory NSW in the
manner and form approved by the Chief Executive.
(2)
An application is to be accompanied by the
information or documents (if any) specified by the regulations or that the
Chief Executive requires in any particular case.
(3)
A claim for compensation under section 7 (1) must
be made—
(a)
within 12 months after the day on which it became
known to the owner concerned that the damage was caused by subsidence,
or
(b)
if the Chief Executive determines that the owner
should have known on a particular day that the damage was caused by
subsidence—within 12 months after that day, or
(c)
if the Chief Executive determines that a longer
period is justified in the circumstances of the case—within the longer
period so determined.
(4)
A claim for compensation for preventative or
mitigative expenses under section 7 (2) (a) must be made within 3 months after
the expense to which the claim relates became known to the claimant or within
such longer period as may be prescribed by the
regulations.
(5)
A claim for compensation for damage under section
7 (2) (b) incurred as a result of the exercise by the Chief Executive of
powers under section 29 must be made within 3 months after the damage to which
the claim relates became known to the claimant or within such longer period as
may be prescribed by the regulations.
12Forwarding of claims relating to active coal mines to mine
proprietors
(1)
The Chief Executive is to—
(a)
forward each claim relating to compensation
arising from an active coal mine to the proprietor of the coal mine,
and
(b)
determine each other claim for compensation in
accordance with this Act.
(2)
The proprietor of the coal mine to whom a claim
has been forwarded under subsection (1) (a) may request the Secretary in
writing to review the determination of the Chief Executive that the claim
relates to compensation arising from the proprietor’s active coal
mine.
(3)
A request under this section must be made within
21 days after the date on which the claim was forwarded to the
proprietor.
(4)
On receiving a request, the Secretary is to
review the Chief Executive’s determination and may confirm or reject the
forwarding of the claim.
(5)
The Secretary must give the following persons
notice in writing of the Secretary’s decision—
(a)
the proprietor of the coal
mine,
(b)
the claimant for
compensation,
(c)
the Chief Executive.
(6)
If the Secretary rejects the forwarding of a
claim to the proprietor of the coal mine, the Chief Executive
may—
(a)
if the Chief Executive is of the opinion that the
claim relates to compensation arising from another active coal mine, forward
the claim to the proprietor of that other coal mine, or
(b)
in any other case, determine the claim for
compensation in accordance with this Act.
(7)
The proprietor of a coal mine to whom a claim has
been forwarded under this section is to determine the claim for compensation
in accordance with this Act.
(8)
A proprietor of a coal mine may not request a
second or subsequent review in respect of any particular claim unless new and
material evidence has been discovered after the determination of the earlier
review.
13Determination of claims in accordance with approved
procedures
(1)
Claims for compensation are to be determined in
accordance with the approved procedures.
(2)
A claim must be determined within—
(a)
the period of time specified in the approved
procedures or otherwise prescribed by the regulations, or
(b)
such longer period of time as may be approved by
the Chief Executive in a particular case.
(3)
A failure to determine a claim within the period
referred to in subsection (2) is taken, for the purposes of this Part, to be a
disallowance of the claim.
14Approved procedures
(1)
The Chief Executive may approve procedures for
the determination of claims under this Act.
(2)
Without limiting subsection (1), approved
procedures may deal with the following—
(a)
the determination of whether damage is caused by
subsidence arising from an active or non-active coal mine,
(b)
the determination of claims relating to damage
caused by or likely to be caused by subsidence arising from an active coal
mine, with the agreement of the claimant, by the proprietor of the coal
mine—
(i)
purchasing the land, improvements or goods
concerned, or
(ii)
carrying out or causing to be carried out works
to restore the damaged improvements or goods or works to prevent or mitigate
damage to improvements or goods,
(c)
the independent assessment of claims, including
the selection of independent assessors and the processes for such
assessment,
(d)
the payment of costs, fees and charges (or the
prohibition of costs, fees and charges) in connection with the determination
of claims under this Act,
(e)
any other matters prescribed by the regulations
for the purposes of this section.
(3)
The Chief Executive may amend, revoke or replace
the approved procedures.
(4)
The Chief Executive is—
(a)
to consult the proprietors of coal mines before
the Chief Executive approves, amends or replaces the approved procedures,
and
(b)
to provide reasonable notice of any amendment to
the approved procedures before the amendment takes
effect.
(5)
Subsection (4) (a) does not apply to an amendment
of the approved procedures that, in the opinion of the Chief Executive, is
minor or trivial in nature.
(6)
The approved procedures may—
(a)
adopt the provisions of other publications,
whether with or without modification or addition and whether in force at a
particular time or from time to time, and
(b)
apply generally or be limited in their
application by reference to specified exceptions or factors or apply
differently according to different factors of a specified kind (or do a
combination of those things).
Note—
Under section 380A of the Mining Act 1992, decision-makers may
take contraventions of this Act into consideration in determining whether a
person is a fit and proper person under that Act.
15Review of claim determinations by
Secretary
(1)
A claimant whose claim for compensation under
this Act is wholly or partly disallowed (whether by the Chief Executive or by
the proprietor of a coal mine) may request the Secretary in writing to review
the decision.
(2)
A request under this section must be made within
3 months of the decision to disallow the claim.
(3)
On receiving a request, the
Secretary—
(a)
if the claim is in relation to infrastructure,
may—
(i)
review the claim and may allow or disallow the
whole or part of the claim, or
(ii)
refuse to review the claim,
or
(b)
in any other case, is to review the claim and may
allow or disallow the whole or part of the claim.
(4)
The Secretary must give the following persons
notice in writing of the Secretary’s decision as to the
claim—
(a)
the claimant for
compensation,
(b)
in relation to a claim for compensation in
relation to subsidence arising from an active coal mine—the proprietor
of the coal mine,
(c)
in any case—the Chief
Executive.
(5)
A claimant may not request more than one review
in respect of any particular claim.
(6)
Subject to section 16 (Appeals), a proprietor of
a coal mine must give effect to a decision of the Secretary under this
section.
Maximum penalty—
(a)
in the case of an individual—500 penalty
units, or
(b)
in the case of a corporation—1,000 penalty
units.
Note—
Under section 380A of the Mining Act 1992, decision-makers may
take contraventions of this Act into consideration in determining whether a
person is a fit and proper person under that Act.
16Appeals
(1)
If the Secretary has refused to review a claim
under this Act for compensation in relation to infrastructure, the person
claiming compensation may appeal to the Land and Environment Court against a
determination of the claim.
(2)
A proprietor of a coal mine or a person claiming
compensation under this Act may appeal to the Land and Environment Court
against the decision of the Secretary under section 15 (Review of claim
determinations by Secretary)—
(a)
as to whether damage has arisen from subsidence,
or
(b)
as to the amount of the compensation,
or
(c)
to reject a claim because of a matter specified
in section 10 (Limitation on claims arising out of actions to prevent or
mitigate damage).
(3)
An appeal under this section must be made within
3 months after the making of the decision concerned.
17No contracting out of Act
This Act applies despite any contract or
agreement to the contrary.
18Failure of proprietor of coal mine to comply with
Act
(1)
If, in the opinion of the Chief Executive, a
proprietor of a coal mine fails to respond to a claim under this Act in
accordance with the approved procedures, the Chief Executive may respond to
the claim and deal with the claim as if the Chief Executive were the
proprietor of the coal mine.
(2)
If, in the opinion of the Chief Executive, a
proprietor of a coal mine fails to do any of the following in accordance with
an agreement with a claimant to determine a claim under section 14 (2) (b),
the Chief Executive may deal with the claim as if the Chief Executive were the
proprietor of the coal mine—
(a)
purchase land, improvements or
goods,
(b)
carry out or cause to be carried out works to
restore damaged improvements or goods or works to prevent or mitigate damage
to improvements or goods.
(3)
In exercising a function under subsection (1) or
(2), the Chief Executive may—
(a)
make a payment to the claimant from the Fund,
and
(b)
recover the amount of the payment from the
proprietor as a debt due to the Crown.
(4)
If, in the opinion of the Chief Executive, a
proprietor of a coal mine fails to make a payment to a claimant as required by
this Act, the Chief Executive—
(a)
is to make the payment to the claimant from the
Fund, and
(b)
may recover the amount of the payment from the
proprietor as a debt due to the Crown.
(5)
Unless the Chief Executive is of the opinion that
exceptional circumstances exist, the Chief Executive must not take action
under this section in relation to a claim that is pending but has not been
finally determined under this Act.
(6)
Before taking action under this section, the
Chief Executive must—
(a)
give the proprietor of the coal mine concerned at
least 21 days notice of the proposed action, and
(b)
invite the proprietor to make submissions
regarding that proposed action, and
(c)
consider any submission received from the
proprietor within that 21-day period.
(7)
The Chief Executive is to pay any amounts
recovered under this section into the Fund.
19No further liability for proprietors of coal mines complying
with Act
The proprietor of a coal mine who deals with a
claim for compensation in connection with subsidence under this Act and who
complies with—
(a)
the conditions of the relevant authority under
the Mining Act 1992, and
(b)
the provisions of this Act relating to
compensation,
is not liable under any other Act or law in connection
with that claim in connection with that subsidence.
Part 3Development within mine subsidence
districts
20Mine subsidence districts
The regulations may declare an area to be a mine
subsidence district.
21Certain development within mine subsidence districts
requires approval
(1)
A person must not carry out work, or cause work
to be done, in connection with the erection or alteration of an improvement
within a mine subsidence district, except in accordance with the approval of
the Chief Executive.
Maximum penalty—
(a)
in the case of an individual—100 penalty
units, or
(b)
in the case of a corporation—500 penalty
units.
(2)
A person must not subdivide land within a mine
subsidence district, or cause such land to be subdivided, except in accordance
with the approval of the Chief Executive.
Maximum penalty—
(a)
in the case of an individual—100 penalty
units, or
(b)
in the case of a corporation—500 penalty
units.
(3)
Proceedings for an offence under this section
must not be commenced except with the consent of the Chief
Executive.
22Approvals for development within mine subsidence
districts
(1)
An application for approval to alter or erect
improvements, or to subdivide land, within a mine subsidence district is to be
made in a form approved by the Chief Executive.
(2)
The Chief Executive may require any applicant for
approval under this section to provide such particulars as the Chief Executive
may specify in a notice sent to the applicant.
(3)
The Chief Executive may grant an approval under
this section either subject to conditions or unconditionally or may refuse to
grant the approval.
Note—
Such conditions may include conditions relating
to the class or nature of improvements, the height, weight, type of material,
number of storeys and method of construction of any improvements within the
district. Such conditions may vary according to the location, class or nature
of such improvements.
(4)
Any approval given under this section ceases to
have effect if the erection, alteration or subdivision concerned is not
commenced within the period specified in the approval (being a period of at
least 2 years, but not more than 5 years, commencing on the date of the
approval).
(5)
However, the Chief Executive may, if the Chief
Executive thinks fit, grant an extension or renewal of an approval given under
this section.
(6)
For the purposes of subsection (4), the
alteration or erection of improvements on land or the subdivision (involving
physical work) of land is commenced when building, engineering or construction
work relating to that alteration, erection or subdivision is physically
commenced on the land.
(7)
Without limiting the generality of subsection
(3), the Chief Executive may refuse to grant an approval that relates
to—
(a)
the alteration or erection of improvements over
land, or
(b)
the subdivision of
land,
being land that, in the opinion of the Chief Executive,
may subside if the coal in the land were extracted by underground
methods.
(8)
Nothing in this section affects the provisions of
the Environmental Planning and Assessment Act
1979 relating to the subdivision of
land.
(9)
If the approval of any person under the Environmental Planning and Assessment Act
1979 is required for the erection or alteration of an
improvement within a mine subsidence district or for the subdivision of any
land in a mine subsidence district, the Chief Executive may refuse an
application for approval of the erection, alteration or subdivision if the
applicant for the approval has not produced to the Chief Executive the
approval of that person to the erection, alteration or
subdivision.
23Contravening development
(1)
If an improvement has been erected or altered or
a subdivision has been made in contravention of this Part (a contravening
improvement or contravening
subdivision)—
(a)
the contravention does not invalidate any
instrument intended to affect or evidence the title to any land, but a
purchaser may cancel any contract for sale and recover any deposit or
instalment of purchase money paid together with reasonable costs and expenses
(if the contravention relates to the land purchased), and
(b)
a claim under Part 2 is not to be dealt with and
payment is not to be made under this Act in respect of the
following—
(i)
any contravening improvement, any goods fixed or
attached to a contravening improvement or any goods damaged as a consequence
of damage to a contravening improvement,
Note—
For example, no claim may be made in respect of
items placed in or around an unapproved house that are damaged by the collapse
of that house.
(ii)
any improvement on land within a contravening
subdivision that was erected or altered after the land was
subdivided,
(iii)
any goods on land within a contravening
subdivision for the purpose of erecting or altering an
improvement.
(2)
Despite subsection (1) (b), the Chief Executive
may determine that a claim may be dealt with or a payment made under this Act
in relation to the following—
(a)
an improvement that is a residential building, if
the Chief Executive is of the opinion that—
(i)
the failure to obtain the approval was not the
fault of the claimant, or
(ii)
exceptional circumstances
exist,
(b)
an improvement that is not a residential
building, if the Chief Executive is of the opinion that exceptional
circumstances exist.
s 23: Am 2018 No 68,
Sch 1.4.
24Exemption from Part by Chief Executive
(1)
The Chief Executive may, by order in writing,
exempt any specified work or subdivision or class of work or subdivision or
any specified person or class of persons from the operation of any of the
provisions of this Part.
(2)
An exemption granted by the Chief Executive
may—
(a)
be granted subject to conditions,
and
(b)
apply generally or be limited in its application
by reference to specified exceptions or factors, and
(c)
apply differently according to different factors
of a specified kind, and
(d)
be granted for a specified period or for an
indefinite period, and
(e)
if granted for a specified period, be granted
before, during or after that period.
(3)
An exemption that is granted for—
(a)
a specified period remains in force for that
period, and
(b)
an indefinite period remains in force until it is
revoked.
A condition of an exemption may, according to its
terms, continue in force after the exemption has ceased to be in
force.
(4)
The regulations may make provision for or with
respect to applications to the Chief Executive for an exemption under this
section.
25Exemption from Part under regulations
The regulations may exempt, or provide for the
exemption, from the operation of any of the provisions of this Part any
specified work or subdivision or class of work or subdivision or any specified
person or class of persons, and subject to such conditions, as may be
specified in the regulations.
Part 4Miscellaneous functions of Chief
Executive
26Purchase of damaged improvements and effecting of remedial
works by the Chief Executive
(1)
The Chief Executive may, instead of making a
payment of compensation in respect of a claim under section 7 (1) or (2) (b)
in relation to a non-active coal mine—
(a)
after consulting a qualified valuer, agree with
the owner of the land or improvements to which the claim relates to purchase
the following without regard to any damage caused by subsidence or by works to
prevent or mitigate any such damage—
(i)
the land,
(ii)
the improvements,
(iii)
any estate or interest in the land or the
improvements concerned, and
(b)
carry out or cause to be carried out such works
as may be necessary to restore the damaged improvements or goods to a
condition as nearly as practicable to the condition in which the improvements
or goods were before the damage to the improvements or goods
arose.
(2)
If no agreement has been entered into under
subsection (1) (a) within such time as the Chief Executive considers
reasonable after the claim is made under section 7 (1) or (2) (b), the Chief
Executive may acquire the land (or the land and improvements or the estate or
interest) by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act
1991 without regard to any damage caused by subsidence or
by works to prevent or mitigate any such damage.
(3)
For the purposes of the Public Works and Procurement Act 1912,
any such acquisition is taken to be for an authorised work and the Chief
Executive is taken to be the Constructing Authority.
(4)
Sections 34, 35, 36 and 37 of the Public Works and Procurement Act 1912 do
not apply in respect of works constructed under this
section.
(5)
The Chief Executive may sell, lease or otherwise
dispose of any property acquired by the Chief Executive under subsection (1)
or (2).
(6)
The Chief Executive may, in connection with any
purchase under subsection (1), agree to increase the purchase price determined
under that subsection by the amount of the reasonable incidental expenses
incurred by the owner in connection with, or resulting from, the sale of the
property concerned to the Chief Executive.
(7)
Subject to the regulations, a reference in this
section to a qualified valuer is a
reference to a person who is of a class prescribed by the
regulations.
27Emergency, urgent and temporary
actions
(1)
If the Chief Executive reasonably believes
that—
(a)
damage to the surface of any land caused by
subsidence may cause danger to any member of the public, the Chief Executive
may do either or both of the following in order to eliminate or minimise the
danger—
(i)
in relation to subsidence arising from an active
coal mine—direct the proprietor of the coal mine to cause the land to be
filled in or fenced off or take such other action
necessary,
(ii)
cause the land to be filled in or fenced off or
take such other action necessary, and
(b)
damage to improvements or goods has been caused
by subsidence and urgent repairs are required to ensure the continued use of
the improvement, the Chief Executive may—
(i)
in relation to subsidence arising from an active
coal mine—direct the proprietor of the coal mine to cause urgent repairs
to be carried out, or
(ii)
in relation to subsidence arising from a
non-active coal mine—cause urgent repairs to be carried out,
and
(c)
damage to improvements or goods has been caused
by subsidence and further subsidence is likely to occur, the Chief Executive
may—
(i)
in relation to subsidence arising from an active
coal mine—direct the proprietor of the coal mine to cause temporary
repairs to be carried out, or
(ii)
in relation to subsidence arising from a
non-active coal mine—cause temporary repairs to be carried out and may
defer payments in respect of claims for damage to the improvements or goods
until the Chief Executive is satisfied that the subsidence has settled or is
unlikely to recur within a reasonable period.
(2)
The proprietor of the coal mine must comply with
a direction under this section.
Maximum penalty—
(a)
in the case of an individual—2,000 penalty
units, or
(b)
in the case of a corporation—10,000 penalty
units.
Note—
Under section 380A of the Mining Act 1992, decision-makers may
take contraventions of this Act into consideration in determining whether a
person is a fit and proper person under that Act.
(3)
If, in the opinion of the Chief Executive, a
proprietor of an active coal mine fails to comply with a direction under this
section, the Chief Executive may cause the necessary action or urgent or
temporary repairs to be carried out as if the Chief Executive were the
proprietor of the coal mine.
(4)
In exercising a function under subsection (3),
the Chief Executive may—
(a)
make a payment from the Fund,
and
(b)
recover the amount of the payment from the
proprietor as a debt due to the Crown.
(5)
The Chief Executive may exercise a function under
this section on the request of a person or on the Chief Executive’s own
motion.
(6)
The Chief Executive is to pay any amounts
recovered under this section into the Fund.
28Review by Secretary of certain temporary action
directions
(1)
A proprietor of a coal mine to whom a direction
under section 27 (1) (c) (i) has been given may make a request in writing to
the Secretary to review the direction.
(2)
On receiving a request, the Secretary is to
review the direction and may—
(a)
confirm the direction, or
(b)
disallow the whole or part of the direction,
or
(c)
amend the direction.
(3)
The Secretary must give the following persons
notice in writing of the Secretary’s decision as to the
review—
(a)
the proprietor of the coal
mine,
(b)
the Chief Executive.
(4)
A proprietor of a coal mine may not request more
than one review in respect of any particular direction.
29Works for prevention or mitigation of damage from
subsidence
The Chief Executive may expend money from the
Fund for the funding of works to prevent or mitigate damage to improvements or
goods that the Chief Executive anticipates would occur (in the absence of the
works) by reason of subsidence if the Chief Executive is satisfied that the
expenditure will reduce the total prospective liability of the
Fund.
30Vacant land whose development affected by
subsidence
If a person proposes to erect an improvement on
vacant land that, in the opinion of the Chief Executive, has been, or is
likely to be, adversely affected by subsidence, the Chief Executive may (but
is not required to)—
(a)
acquire that land or any estate or interest in
that land, or
(b)
carry out, or cause to be carried out, on that
land such works as would prevent or mitigate the effects of
subsidence.
31Chief Executive may provide advice
The Chief Executive may provide advice on matters
relating to mine subsidence or the development of land that may be subject to
subsidence, whether or not the land concerned is within a mine subsidence
district.
Part 5Financial provisions
32Coal Mine Subsidence Compensation Fund
(1)
There is to be established by this Act in the
Special Deposits Account a fund called the Coal Mine Subsidence Compensation
Fund.
(2)
The following amounts are to be paid into the
Fund, subject to any requirements specified in the regulations—
(a)
the rate, levies and contributions payable by the
proprietors of coal mines under this Act,
(b)
the proceeds of investment of money in the
Fund,
(c)
any other money appropriated by Parliament for
the purposes of the Fund or required by this or any other Act or law to be
paid into the Fund.
(3)
The following amounts may be paid out of the
Fund, subject to any requirements specified in the regulations—
(a)
all amounts payable under this Act in respect of
damage caused by subsidence or otherwise payable under this
Act,
(b)
money expended by the Chief Executive in the
exercise of the Chief Executive’s functions under Part
4,
(c)
the expenses involved in the administration of
this Act,
(d)
such other amounts as are authorised to be paid
out of the Fund by this or any other Act or law.
(4)
The Chief Executive is to manage and control the
Fund in accordance with this Act and the regulations.
(5)
The Chief Executive—
(a)
is to act as trustee of money in the Fund,
and
(b)
is to invest the money in the Fund not
immediately required for the purposes for which it is to be applied in the
same way as trustees may invest trust funds, and
(c)
subject to any requirements specified in the
regulations, is to make payments from the Fund as authorised by this Act and
the regulations, and
(d)
may do all things necessary or convenient to be
done in connection with the exercise of functions under this
section.
(6)
The regulations may make further provision with
respect to the Fund and its management and control.
33Imposition of rates, levies and
contributions
(1)
The Chief Executive may make and levy, in
accordance with the regulations, such types and amounts of rates, levies and
contributions on coal mines as are prescribed by, or determined in accordance
with, the regulations.
(2)
The regulations may deal with the making and
levying of rates, levies and contributions, including in relation to the
following—
(a)
providing for the period within which a rate,
levy or contribution is payable,
(b)
describing the basis or bases on which any
particular type of rate, levy or contribution may be
imposed,
(c)
describing the coal mine or other land in respect
of which a particular type of rate, levy or contribution is
payable.
(3)
All amounts of rates, levies and contributions
are to be paid into the Fund.
(4)
Any rate, levy or contribution due or payable
under this section may be recovered by the Chief Executive as a debt due to
the Crown in a court of competent jurisdiction and paid into the
Fund.
34Recovery by Chief Executive in the case of unlawful mining
operations
(1)
In this section, unlawful mining
operations means mining operations, in relation to coal,
carried out by a person in contravention of—
(a)
Part 2 of the Mining Act
1992, or
(b)
any condition of the authority under the Mining Act 1992 (including conditions of
any approvals required to be obtained under any such condition),
or
(c)
the Environmental Planning and
Assessment Act 1979.
(2)
If improvements or goods are damaged by
subsidence caused by unlawful mining operations—
(a)
any amount paid from the Fund to the owner of the
improvements or goods in respect of the damage under section 7 (1) or in
respect of the subsidence under section 7 (2) (a), or
(b)
the cost of the execution of any work in respect
of the damage under section 26 (1) (b),
may be recovered in any court of competent jurisdiction
as a debt due to the Crown from the person who carried out the unlawful mining
operations.
(3)
Any money recovered by the Chief Executive under
subsection (2) is to be paid into the Fund.
Part 6Enforcement of Act
Division 1Authorised
officers
35Definitions
In this Part—
premises includes
land.
requirement under this Act
includes a requirement imposed under a notice, a direction or an exemption
under this Act and a requirement contained in an undertaking or order given
under this Act.
36Appointment of authorised officers by Chief
Executive
The Chief Executive may appoint the following
persons to be an authorised officer for the purposes of this Act—
(a)
a person employed in Subsidence Advisory
NSW,
(b)
a police officer,
(c)
a person of a class prescribed by the regulations
for the purposes of this section.
37Limitations on functions
The authority of an authorised officer may be
limited by the relevant instrument of appointment to the functions, and to the
cases, specified in the instrument of appointment.
38Identity cards must be issued
(1)
The Chief Executive must issue an authorised
officer with an identity card.
(2)
The identity card must—
(a)
be in the form approved by the Chief Executive,
and
(b)
contain a recent photograph of the
person.
(3)
An authorised officer must not exercise a
function conferred by or under this Act unless an identity card has been
issued to the authorised officer by the Chief Executive.
(4)
This section does not apply to an authorised
officer who is a police officer.
39Identity cards to be shown
(1)
This section applies to an authorised officer who
is exercising, or about to exercise, a function under this
Act.
(2)
An authorised officer must—
(a)
carry his or her identity card at all times when
exercising a power under this Act to enter premises or a vehicle or a power
that is exercisable after entering premises or a vehicle,
and
(b)
produce his or her identity card if requested to
do so by a person in relation to whom the officer is exercising, or about to
exercise, the power.
(3)
A person who has ceased to be an authorised
officer must not, without reasonable excuse, refuse or fail to return to the
Chief Executive, within the period specified by the Chief Executive in a
request for the return of the card, any identity card issued to the person by
the Chief Executive.
(4)
This section does not apply in relation to a
power exercised by an authorised officer who is a police
officer.
Maximum penalty—15 penalty
units.
40Functions of authorised officers
(1)
An authorised officer may exercise the functions
conferred by Division 2 if the officer believes on reasonable grounds that it
is necessary to do so for the purposes of this Act or the regulations,
including the following purposes—
(a)
an inspection, audit or inquiry under this
Act,
(b)
to determine whether there has been a
contravention of this Act or the regulations.
(2)
An authorised officer must not use any more force
than is reasonably necessary to enter premises under this Act or to do
anything for which entry is effected.
(3)
An authorised officer must do as little damage as
possible when exercising a function under this Act.
41Inspections
(1)
The Chief Executive may cause inspections of
premises to be carried out in relation to subsidence (including inspections of
premises before activities at a coal mine commence to ascertain pre-subsidence
information).
(2)
Inspections under this section may be carried out
at the intervals that the Chief Executive thinks fit.
Division 2Powers of
authorised officers
42Power to enter premises with consent
(1)
An authorised officer may enter any premises with
the consent of the occupier of the premises at any time.
(2)
Before obtaining the consent of a person to enter
premises, an authorised officer must inform the person that the person may
refuse consent.
43Power to enter premises without
consent
(1)
An authorised officer may enter premises or any
part of premises (other than premises or any part of premises used as a
residence) without the consent of the occupier of the
premises.
(2)
An authorised officer may enter the premises
without the consent of the occupier of the premises only at any of the
following times—
(a)
at any reasonable time during the
day,
(b)
at any other time the premises are open for
entry.
(3)
Before entering premises without the consent of
the occupier, an authorised officer must give the occupier reasonable notice
of the intention to enter the premises unless—
(a)
notice would defeat the purpose for which entry
is required, or
(b)
it is an emergency.
44Powers after entering premises
An authorised officer who enters premises under
this Part may do any of the following—
(a)
search any part of the
premises,
(b)
inspect, measure, test, photograph or film, or
make audio recordings of, any part of the premises or anything at the
premises,
(c)
take a thing, or a sample of or from a thing, at
the premises for analysis, measurement or testing,
(d)
copy, or take an extract from, a document, at the
premises,
(e)
take into or onto the premises any person,
equipment and materials the authorised officer reasonably requires for
exercising a power under this Act,
(f)
require the occupier of the premises, or a person
at the premises, to give the authorised officer reasonable help to exercise
the authorised officer’s powers under paragraphs
(a)–(e),
(g)
require the occupier of the premises, or a person
at the premises, to give the authorised officer information to help the
authorised officer in exercising the officer’s
functions.
45Production of documents
(1)
An authorised officer may, by written notice,
require a person to produce documents or information.
(2)
The notice must specify the manner in which
documents or information are required to be produced and a reasonable time by
or at which they must be produced.
(3)
If any document required by the notice to be
produced is in electronic form or a form other than writing, the notice
requires the document to be produced in writing, unless the notice otherwise
provides.
(4)
The notice may relate to a document that is
located outside this State or Australia.
(5)
A person is liable to an offence under section 49
(Offences relating to inspections) of failing to produce a document required
by a notice even if the document is not located in this State if the person is
reasonably able to bring the document or a copy of the document to this
State.
46Retention of documents and other
material
(1)
This section applies to the following
material—
(a)
a document or other thing produced under this
Part,
(b)
a thing seized under this
Part.
(2)
An authorised officer must provide a receipt for
the document or thing.
(3)
An authorised officer may make copies of the
document or thing.
(4)
An authorised officer may examine or test the
document or thing, even though that might result in damage to or destruction
of the document or thing or a reduction in its value.
(5)
An authorised officer must return the document or
thing when it is no longer needed for the purposes of an inspection,
investigation or inquiry. However, if there is no owner or the authorised
officer cannot, despite making reasonable efforts, locate the owner, the
authorised officer may dispose of the document or thing in the manner that the
authorised officer thinks appropriate.
(6)
Despite subsection (5), an authorised officer
must make the document or thing available to a relevant body on the written
request of the body for the purposes of—
(a)
an investigation under a law of the Commonwealth
or another State or Territory, or
(b)
a coronial inquest or
inquiry.
(7)
An authorised officer must permit a person who
would be entitled to inspect the document or thing were it not in the
possession of the authorised officer to inspect the document or thing at any
reasonable time and to make copies of the document or
thing.
(8)
In this section—
owner includes an agent of an
owner.
relevant body
means—
(a)
a government sector agency within the meaning of
the Government Sector Employment Act 2013,
or
(b)
a NSW government agency, or
(c)
an agency of the Commonwealth or another State or
Territory, or
(d)
a State or Territory government,
or
(e)
a coroner.
47Power to require explanation of
documents
(1)
This section applies to the following
documents—
(a)
a document seized or produced under this
Part,
(b)
a document found on premises inspected under this
Part.
(2)
An authorised officer may require a person who
was a party to the creation of a document to provide any explanation that the
person is able to provide of a matter relating to the creation of the document
or to which the document relates.
48Provisions relating to requirements to provide documents or
information or answer questions
(1)Warning to be given on each
occasion
A person is not guilty of an offence under
section 49 (Offences relating to inspections) of failing to comply with a
requirement under this Act to provide documents 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 Act to provide documents or information or to answer a question on the
ground that the document, 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 provided or answer given
by a natural person in compliance with a requirement under this Act is not
admissible in evidence against the person in criminal proceedings (except
proceedings for an offence against section 49) 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 providing the information or giving the answer on the
ground that it might incriminate the person.
(4)Documents admissible
Any document provided by a person in compliance
with a requirement under this Act is not inadmissible in evidence against the
person in criminal proceedings on the ground that the document might
incriminate the person.
(5)Further information
Further information obtained as a result of a
document or information provided or an answer given in compliance with a
requirement under this Act is not inadmissible on the ground—
(a)
that the document or information had to be
provided or the answer had to be given, or
(b)
that the document or information provided or
answer given might incriminate the person.
Division 3Offences
49Offences relating to inspections
(1)
A person must not, without reasonable excuse,
hinder or obstruct an authorised officer in a manner that interferes with the
exercise by the officer of his or her functions under this Act or the
regulations.
(2)
The occupier or person in charge of any premises
or land entered by an authorised officer under this Act must not, without
reasonable excuse, fail to provide the officer with all reasonable assistance
for the effective exercise of the officer’s functions under this Act or
the regulations.
(3)
A person must not, without reasonable excuse,
fail to answer questions or provide information when required to do so by an
authorised officer in the exercise of the officer’s functions under this
Act or the regulations.
(4)
A person must not, without reasonable excuse,
fail to produce for inspection any documents or other things when required to
do so by an authorised officer in the exercise of the officer’s
functions under this Act or the regulations.
Maximum penalty—
(a)
in the case of an individual—500 penalty
units, or
(b)
in the case of a corporation—1,000 penalty
units.
Division 4Prevention
notices
50Prevention of unauthorised work
(1)
If a person is carrying out work without an
approval required under Part 3, or carries out work that is not in accordance
with such an approval, the Chief Executive may, by notice in writing given to
the person, direct the person to cease carrying out that work until the
necessary approval is obtained or unless it conforms with the
approval.
(2)
A person who contravenes the notice is guilty of
an offence.
Maximum penalty—20 penalty
units.
(3)
The Chief Executive may bring proceedings in the
Land and Environment Court for an order to restrain the carrying out of work
in contravention of any such notice.
(4)
If the Land and Environment Court is satisfied
that the notice will be contravened unless restrained by order of the Court,
it may make such order as it thinks fit to restrain the
contravention.
Part 7Miscellaneous
51Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
Without limiting subsection (1), the regulations
may make provision for or with respect to the following—
(a)
fees and charges in connection with the
administration of this Act,
(b)
data and reports to be provided by proprietors of
coal mines to the Chief Executive regarding ground movement and subsidence
management (including requirements for monitoring to be
conducted),
(c)
requiring proprietors of coal mines to conduct
inspections of land or premises that may be affected by subsidence from future
coal mining activities before those activities commence to ascertain
pre-subsidence information.
(3)
The regulations may create offences punishable by
a monetary penalty not exceeding 10 penalty units.
52Delegation
(1)
The Secretary may delegate the exercise of any
function of the Secretary under this Act (other than this power of delegation)
to—
(a)
any person employed in the Department,
or
(b)
any person, or any class of persons, authorised
for the purposes of this section by the
regulations.
(2)
The Chief Executive may delegate the exercise of
any function of the Chief Executive under this Act (other than this power of
delegation) to—
(a)
any person employed in Subsidence Advisory NSW,
or
(b)
any person, or any class of persons, authorised
for the purposes of this section by the
regulations.
53Personal liability
(1)
A matter or thing done or omitted to be done by
the Secretary or the Chief Executive or a person acting under the direction of
the Secretary or the Chief Executive does not, if the matter or thing was done
or omitted to be done in good faith for the purpose of exercising a function
under this Act, subject the Secretary or the Chief Executive or person so
acting personally to any action, liability, claim or
demand.
(2)
However, any such liability attaches instead to
the Crown.
54Exchange of information
(1)
The Chief Executive 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 Chief Executive or
the agency.
(2)
The information to which an information sharing
arrangement may relate is limited to the following—
(a)
information that assists in the exercise of the
functions of the Chief Executive or relevant agency under this Act or
legislation administered by the relevant agency concerned,
(b)
any other information that may be prescribed by
the regulations.
(3)
Under an information sharing arrangement, the
Chief Executive 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—
relevant agency means
any of the following—
(a)
the Secretary,
(b)
a government agency or holder of a statutory
office with any functions similar to or related to those imposed on the Chief
Executive under this Act,
(c)
any government agency of the Commonwealth or
another State or Territory with functions similar to or related to those
imposed on the Chief Executive under this Act,
(d)
any other person or body, or person or body of a
class, prescribed by the regulations.
55Nature of proceedings for offences
(1)
Proceedings for an offence under this Act or the
regulations may be dealt with—
(a)
summarily before the Local Court,
or
(b)
summarily before the Land and Environment
Court.
(2)
If proceedings are brought in the Local Court,
the maximum monetary penalty that the Local Court may impose for the offence
is 100 penalty units, despite any higher maximum monetary penalty provided in
respect of the offence.
(3)
Any penalty recovered for an offence against this
Act or the regulations is to be paid into the Fund.
56Time for commencement of proceedings for
offences
(1)
Proceedings for an offence against this Act or
the regulations may be commenced within, but not later than, 3 years after the
date on which the offence is alleged to have been
committed.
(2)
Proceedings for an offence against this Act or
the regulations may also be commenced within, but not later than 3 years,
after the date on which evidence of the alleged offence first came to the
attention of any authorised officer.
(3)
If subsection (2) is relied on for the purpose of
commencing proceedings for an offence, the court attendance
notice—
(a)
must contain particulars of the date on which
evidence of the offence first came to the attention of any relevant authorised
officer, and
(b)
does not have to contain particulars of the date
on which the offence was committed.
The date on which evidence first came to the
attention of any authorised officer is the date specified in the court
attendance notice, unless the contrary is established.
(4)
This section applies despite anything in the
Criminal Procedure Act 1986 or another
Act.
57Penalty notices
(1)
An authorised officer may issue a penalty notice
to a person if it appears to the officer that the person has committed a
penalty notice offence.
(2)
A penalty notice offence is an offence against
this Act or the regulations that is prescribed by the regulations as a penalty
notice offence.
(3)
The Fines Act
1996 applies to a penalty notice issued under this
section.
Note—
The Fines Act
1996 provides that, if a person issued with a penalty
notice does not wish to have the matter determined by a court, the person may
pay the amount specified in the notice and is not liable to any further
proceedings for the alleged offence.
(4)
The amount payable under a penalty notice issued
under this section is the amount prescribed for the alleged offence by the
regulations (not exceeding the maximum amount of penalty that could be imposed
for the offence by a court).
(5)
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.
58Service of documents
(1)
A document that is authorised or required by this
Act or the regulations to be served on any person may be served by any of the
following methods—
(a)
in the case of an individual—by personal
delivery to the person,
(b)
by post to the address specified by the person
for the service of documents of that kind,
(c)
in the case of an individual who has not
specified such an address—by post to the residential or business address
of the person last known to the person serving the
document,
(d)
in the case of a corporation—by post to the
registered office or any other office of the corporation or by leaving it at
any such office with a person apparently over the age of 16
years,
(e)
by email to an email address specified by the
person for the service of documents of that kind,
(f)
by any other method authorised by the regulations
for the service of documents of that kind.
(2)
A document may be served on the Chief Executive
or the Secretary by any of the following methods—
(a)
by post to the address specified by the Chief
Executive or the Secretary for the service of documents of that
kind,
(b)
by post to an office of the Chief Executive or
the Secretary or by leaving it at any such office with a person apparently
over the age of 16 years,
(c)
by email to an email address specified by the
Chief Executive or the Secretary for the service of documents of that
kind,
(d)
by any other method authorised by the regulations
for the service of documents of that kind.
(3)
Nothing in this section affects the operation of
any provision of a law or of the rules of a court authorising a document to be
served on a person or the Chief Executive or the Secretary by any other
method.
(4)
In this section, serve includes forward, give or
send.
59Review of Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
60
s 60: Rep 1987 No 15,
sec 30C.
Schedule 1Savings,
transitional and other provisions
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
Act that amends this Act.
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication on the NSW
legislation website, the provision does not operate so as—
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
(4)
Any such provision has effect despite anything to
the contrary in this Schedule.
(5)
The regulations may make separate savings and
transitional provisions or amend this Schedule to consolidate the savings and
transitional provisions.
Part 2Provisions consequent on enactment of this
Act
2Definitions
In this Part—
abolition day means the
day that is 12 months after the repeal of the former Act.
assets means any legal or
equitable estate or interest (whether present or future, whether vested or
contingent and whether personal or assignable) in real or personal property of
any description (including money), and includes securities, choses in action
and documents.
former Act means the Mine Subsidence Compensation Act
1961.
liabilities means any
liabilities, debts or obligations (whether present or future, whether vested
or contingent and whether personal or assignable).
rights means any rights, powers,
privileges or immunities (whether present or future, whether vested or
contingent and whether personal or assignable).
3Transitional continuation of Mine Subsidence
Board
Until the abolition day—
(a)
the Mine Subsidence Board constituted under the
former Act is taken to continue to be constituted under this Act,
and
(b)
sections 5–7 of the former Act, as in force
immediately before that Act’s repeal, continue to apply as if those
sections had not been repealed, and
(c)
a reference in this Act (except in section 4 and
this Schedule other than clause 11) to the Chief Executive is taken to be a
reference to the Mine Subsidence Board.
4Abolition of Mine Subsidence
Board
(1)
On the abolition day, the Mine Subsidence Board
is abolished.
(2)
Each person holding office as a member of the
Mine Subsidence Board ceases to hold office as such a member on the abolition
of the Board and is not entitled to any remuneration or compensation for the
loss of that office.
(3)
Subject to the regulations, the assets, rights
and liabilities of the Mine Subsidence Board are, on its abolition,
transferred to the Minister.
(4)
Without limiting the application of clause 5 to
any such transfer, any proceedings commenced by or on behalf of the Mine
Subsidence Board but not completed before the abolition day are taken to have
been commenced by or on behalf of the Chief Executive and may be completed by
the Chief Executive.
(5)
For the purposes of subclause (4), proceedings includes
any prosecution, investigation or other enforcement
action.
5Provisions relating to transfers of assets, rights and
liabilities
(1)
In this clause, transferor means the
Mine Subsidence Board and transferee means the
Minister.
(2)
When any assets, rights or liabilities are
transferred pursuant to clause 4, the following provisions have
effect—
(a)
the assets of the transferor vest in the
transferee by virtue of this clause and without the need for any further
conveyance, transfer, assignment or assurance,
(b)
the rights or liabilities of the transferor
become, by virtue of this clause, the rights or liabilities of the
transferee,
(c)
all proceedings relating to the assets, rights or
liabilities commenced before the transfer by or against the transferor or a
predecessor of the transferor and pending immediately before the transfer are
taken to be proceedings pending by or against the
transferee,
(d)
any act, matter or thing done or omitted to be
done in relation to the assets, rights or liabilities before the transfer by,
to or in respect of the transferor or a predecessor of the transferor is (to
the extent to which that act, matter or thing has any force or effect) taken
to have been done or omitted by, to or in respect of the
transferee,
(e)
the transferee has all the entitlements and
obligations of the transferor in relation to those assets, rights and
liabilities that the transferor would have had but for the transfer, whether
or not those entitlements and obligations were actual or potential at the time
of the transfer,
(f)
a reference in any Act, in any instrument made
under any Act or in any document of any kind to the transferor or a
predecessor of the transferor is (to the extent that it relates to those
assets, rights or liabilities but subject to the regulations), to be read as,
or as including, a reference to the transferee.
(3)
The operation of this clause is not to be
regarded—
(a)
as a breach of contract or confidence or
otherwise as a civil wrong, or
(b)
as a breach of any contractual provision
prohibiting, restricting or regulating the assignment or transfer of assets,
rights or liabilities, or
(c)
as giving rise to any remedy by a party to an
instrument, or as causing or permitting the termination of any instrument,
because of a change in the beneficial or legal ownership of any asset, right
or liability, or
(d)
as an event of default under any contract or
other instrument.
(4)
The Minister may, by notice in writing, confirm a
transfer of particular assets, rights or liabilities. Such a notice is
conclusive evidence of that transfer.
(5)
No attornment to the transferee by a lessee from
the transferor is required.
(6)
In this clause, instrument means an
instrument (other than this Act) that creates, modifies or extinguishes rights
or liabilities (or would do so if lodged, filed or registered in accordance
with any law), and includes any judgment, order or process of a
court.
6Continuation of Fund
The Mine Subsidence Compensation Fund constituted
by the former Act becomes, on the repeal of that Act, the Coal Mine Subsidence
Compensation Fund established by this Act.
7Pending claims
The former Act continues to apply (as if it had
not been repealed) to a claim made under that Act but not finally determined
before the repeal of that Act and for that purpose references in the former
Act to the Mine Subsidence Board (once it is abolished) are taken to be
references to the Chief Executive.
8Mine subsidence districts
Areas proclaimed to be mine subsidence districts
under the former Act immediately before its repeal are taken, until the
regulations otherwise provide, to be mine subsidence districts under this
Act.
9Approvals
(1)
An approval of the Mine Subsidence Board, as in
force under section 15 of the former Act immediately before its repeal is
taken, until the regulations otherwise provide, to be an approval under Part 3
of this Act.
(2)
The former Act continues to apply (as if it had
not been repealed) to an application for an approval made under section 15 of
the former Act, but not finally determined, before its repeal and for that
purpose references in the former Act to the Mine Subsidence Board (once it is
abolished) are taken to be references to the Chief
Executive.
10Development contravening former
Act
Section 23 of this Act extends to an improvement
erected or altered or a subdivision made in contravention of the former Act as
if it were erected, altered or made in contravention of Part 3 of this
Act.
11Transitional payments of compensation from
Fund
During the period of 5 years, commencing on the
commencement of this Act, the Chief Executive may make payments from the Fund
to reimburse the following persons wholly or in part for compensation payments
made under this Act by those persons—
(a)
Centennial Mandalong Pty
Limited,
(b)
South32 Limited,
(c)
Tahmoor Coal Pty Ltd.
12Claims relating to classified
roads
(1)
Without limiting section 64 of the Roads Act 1993, RMS may make a claim
under this Act in relation to any classified road as if RMS were the owner of
the road and compensation may be paid to RMS
accordingly.
(2)
In this clause, classified road
and RMS have the same meanings
that they have in the Roads Act
1993.
13Information obtained under former
Act
Any information obtained by a person in
connection with the administration or execution of the former Act is taken to
have been obtained by the person in connection with the administration or
execution of this Act.
14Continuation of provisions relating to
certificates
(1)
Until the end of 30 September 2019, sections 15B
and 15C of the former Act continue in force as if those sections had not been
repealed.
(2)
For the purposes of the application of those
sections during the period commencing on the abolition day and ending on 30
September 2019, a reference to the Mine Subsidence Board relating to an
application for or issue of a certificate under those sections is taken to be
a reference to the Chief Executive.
(3)
Section 15B(4) of the former Act continues in
force after 30 September 2019, in respect of a certificate issued under
section 15B of the former Act on or before that day, as if that subsection had
not been repealed.
15Financial reports for 2017–18 and 2018–19
financial year
Despite the amendment of the Public Finance and Audit Act 1983 by
this Act, for the purposes of that Act—
(a)
in relation to the 2017–18 financial
year—
(i)
the Mine Subsidence Board is taken to be a
statutory body within the meaning of that Act, and
(ii)
Subsidence Advisory NSW is taken not to be a
Department within the meaning of that Act, and
(b)
in relation to the 2018–19 financial year,
the activities carried out by the Mine Subsidence Board before the abolition
day are taken to have been carried out by the Chief Executive of Subsidence
Advisory NSW.
sch 1: Am 2017 (686),
Sch 2 [1] [2]; 2018 (182), Sch 2; 2018 (509), Sch 1 [1]–[3]; 2019 (278),
Sch 1; 2019 (472), cl 3.
Schedule 2
sch 2: Rep 1987 No
15, sec 30C.
Historical notes
Table of amending instruments
Coal Mine Subsidence
Compensation Act 2017 No 37. Assented to 14.8.2017. Date
of commencement, 1.1.2018, sec 2 and 2017 (685) LW 8.12.2017. This Act has
been amended as follows—
2017
(686)
Coal Mine Subsidence
Compensation Regulation 2017. LW 8.12.2017.
Date of commencement, 1.1.2018, cl
2.
2018
(182)
Coal Mine Subsidence Compensation
Amendment Regulation 2018. LW 27.4.2018.
Date of commencement, on publication on LW, cl
2.
(509)
Coal Mine Subsidence Compensation
Amendment (Miscellaneous) Regulation 2018. LW
31.8.2018.
Date of commencement, 1.9.2018, cl
2.
No 68
Statute Law (Miscellaneous
Provisions) Act (No 2) 2018. Assented to
31.10.2018.
Date of commencement of Sch 1.4, 8.1.2019, sec 2
(1).
2019
(278)
Coal Mine Subsidence Compensation
Amendment (Miscellaneous) Regulation 2019. LW
28.6.2019.
Date of commencement, on publication on LW, cl
2.
(472)
Coal Mine Subsidence Compensation
Amendment (Certificates) Regulation 2019. LW
27.9.2019.
Date of commencement, on publication on LW, cl
2.
This Act has been amended by sec 30C of the
Interpretation Act 1987 No
15.
Table of amendments
Sec 23
Am 2018 No 68, Sch
1.4.
Sec 60
Rep 1987 No 15, sec
30C.
Sch 1
Am 2017 (686), Sch 2
[1] [2]; 2018 (182), Sch 2; 2018 (509), Sch 1 [1]–[3]; 2019 (278), Sch
1; 2019 (472), cl 3.
Sch 2
Rep 1987 No 15, sec
30C.