Mineral Resources (Sustainable
Development) Amendment Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill amends the enforcement provisions of the Mineral Resources
(Sustainable Development) Act 1990.
Clause Notes
Clause 1
sets out the main purposes of the Bill. The Bill amends the
Mineral Resources (Sustainable Development) Act 1990 to
extend the types of risks for which a notice may be issued by the
Minister for Energy and Resources under section 110 of that Act,
strengthen the powers of the Minister to enforce compliance with
notices issued under that section and, where the authority holder
has failed to undertake the necessary remedial action and there is
a serious risk, enable the Minister to carry out that action.
Clause 2
sets out the commencement provisions for the Bill. The Bill will
come into operation on a day or days to be proclaimed. If a
provision of the Bill has not come into operation before 1 June
2013, it comes into operation on that day.
Clause 3
provides that, in this Bill, the Mineral Resources (Sustainable
Development) Act 1990 is called the Principal Act.
Clause 4
amends section 94(2) of the Principal Act to extend the types of
risks that are taken into consideration under that section by
inspectors to include risks to public safety, land, property and
infrastructure, so that an inspector may enter any place that the
inspector reasonably believes is a worksite at any time, not only
during working hours, if the inspector reasonably believes that
there is an immediate risk to public safety, the environment, land,
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BILL LA INTRODUCTION 9/10/2012
property or infrastructure, arising from the conduct of an
undertaking at the place.
This amendment reflects the fact that, in practice, the types of
risk that may arise from mining activities extend beyond risks to
the environment and include risks to public safety, land (such as
subsidence, collapse or erosion of land), property (such as fences,
machinery or livestock) and infrastructure (such as houses or
sheds), some of which may be owned by a third party.
Clause 5
amends section 95M(1) of the Principal Act to extend the types
of risks that are taken into consideration under that section by
inspectors to include risks to public safety, land, property and
infrastructure, so that an inspector may give a direction (either
orally or in writing) to a person at a worksite if the inspector
reasonably believes that it is necessary to do so because of an
immediate risk to public safety, the environment, land, property
or infrastructure.
This amendment reflects the fact that, in practice, the risks that
may arise from mining activities extend beyond risks to the
environment and include risks to public safety, land (such as
subsidence, collapse or erosion of land), property (such as fences,
machinery or livestock) and infrastructure (such as houses or
sheds), some of which may be owned by a third party.
Clause 6
amends the heading to section 110 of the Principal Act to clarify
that the section, as amended, applies to notices, not orders, issued
by the Minister for Energy and Resources requiring the authority
holder to take action or stop work.
Subclause (2) amends section 110(1)(a) of the Principal Act to
extend the types of risk for which a notice may be issued by the
Minister under section 110 to include risks to public safety, land,
property and infrastructure, so that section 110 applies if the
Minister believes on reasonable grounds that an act or omission
by the holder of an authority is likely to result in a risk to public
safety, the environment, land, property or infrastructure.
This amendment reflects the fact that, in practice, the types of
risks that may arise from mining activities extend beyond risks to
the environment and include risks to public safety, land (such as
subsidence, collapse or erosion of land), property (such as fences,
machinery or livestock) and infrastructure (such as houses or
sheds), some of which may be owned by a third party.
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Subclause (3) substitutes section 110(2)(a) of the Principal Act to
reflect the change to the circumstances in which a notice may be
issued under section 110(1). Section 110(2)(a) currently provides
that the Minister may, by notice served on the authority holder,
require the authority holder to take any action necessary, within a
specified period, to remedy the contravention or non-compliance.
Subclause (3) amends section 110(2)(a) so that the Minister may
also, by notice served on the authority holder, require the
authority holder to take any action necessary, within a specified
period, to avoid the likely contravention or likely non-compliance
with the Principal Act or regulations, and take any action to
avoid, minimise or remove the risk to public safety, the
environment, land, property or infrastructure.
Subclause (4) amends section 110(3) of the Principal Act to
increase the maximum penalty for the offence by an authority
holder of failing to comply with a notice issued under
section 110. The maximum penalty is increased from 1000 to
2500 penalty units in the case of a corporation and from 200 to
500 penalty units in any other case.
Section 111A(1) of the Principal Act provides that, if a person is
convicted of an offence against the Principal Act in respect of
which a default penalty is provided, the person is guilty of a
further offence for each day the offence continues after the
conviction, and is liable to be fined up to the amount specified as
the default penalty. Subclause (4) amends section 110(3) of the
Principal Act, which sets out a default penalty for the offence of
failing to comply with a notice issued under section 110, to
increase the maximum default (or daily) penalty from 20 to 300
penalty units in the case of a corporation and from 10 to 60
penalty units in any other case. This is intended to provide a
greater incentive for an authority holder to promptly comply with
a court order.
Subclause (5) inserts a new subsection 110(3A) in the Principal
Act to enable the court to, in addition to imposing a penalty for
failure to comply with a notice issued under section 110, make an
order that the authority holder must comply with the notice or
take specified action to comply with the notice. The court may
also make any other order the court considers appropriate.
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Subclause (6) amends section 110(4) of the Principal Act to
provide that, subject to new sections 110(5A) and 110AA(4), a
person whose interests are affected by a decision of the Minister
to vary a notice served under section 110 may apply to the
Victorian Civil and Administrative Tribunal for review of the
decision.
Subclause (7) amends section 110(4A) of the Principal Act to
provide that an application to the Victorian Civil and
Administrative Tribunal for review of the decision to vary a
notice must be made within 28 days after the later of the day on
which the notice of the variation is served or, if under the
Victorian Civil and Administrative Tribunal Act 1998, the
person requests a statement of reasons for the decision to vary the
notice, the day on which the statement of reasons is given to the
person or the person is informed under section 46(5) of that Act
that a statement of reasons will not be given.
Subclause (8) amends section 110(5) of the Principal Act so that
the Minister may, by notice served on the holder of the authority,
vary a notice issued under section 110(2). At present, the
Minister has the power to vary such notices, as according to
section 41A of the Interpretation of Legislation Act 1984, if an
Act confers a power to make or issue an instrument, that power
includes, unless the contrary intention appears, a power to
repeal, revoke, rescind, amend, alter or vary that instrument.
Subclause (8) makes this clear in the Principal Act.
Subclause (9) inserts new section 110(5A) in the Principal Act to
provide that a person cannot apply to the Victorian Civil and
Administrative Tribunal for review of the variation of a notice
served under section 110 if the purpose of the variation is limited
to correcting a minor or technical error in the notice, extending
the period within which an action required by the notice must be
taken, or reducing the period during which the doing of any
activity or class of activity is prohibited. These limitations on the
right of review are necessary to prevent authority holders from
seeking review of minor and technical variations, such as
corrections of typographical errors, as a mechanism for delaying
compliance with a notice.
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Clause 7
inserts new sections 110AA to 110AG in the Principal Act to
strengthen the powers of the Minister to ensure compliance with
notices issued under section 110.
New section 110AA provides that the Minister may apply for an
injunction in the event of non-compliance with a notice served
under section 110(2) of the Principal Act.
New section 110AA(1) provides that the Minister may apply to
the Supreme Court for an injunction compelling the authority
holder to comply with a notice served on the holder under
section 110 or restraining the holder from contravening the
notice.
New subsection (2) provides that the Minister may apply for an
injunction under new subsection (1) regardless of whether or not
an application has been made by the authority holder to the
Victorian Civil and Administrative Tribunal under section 110(4)
for review of the Minister's decision to serve or vary the notice or
whether proceedings have been brought for an offence against the
Principal Act or regulations in relation to the notice or in relation
to a matter that gave rise to the decision to serve the notice.
New subsection (3) provides that if an authority holder has
applied to the Victorian Civil and Administrative Tribunal under
section 110(4) for review of the Minister's decision to serve or
vary the notice at the time the Minister applies for an injunction
under new subsection (1), the Tribunal must make an order
staying the review proceedings pending the determination of the
Minister's application and must dismiss the review proceedings if
the Supreme Court grants an injunction on the Minister's
application.
New subsection (4) provides that if an authority holder has not
applied to the Victorian Civil and Administrative Tribunal under
section 110(4) for review of the Minister's decision to serve or
vary the notice at the time the Minister applies for an injunction
under new subsection (1), the authority holder cannot apply to the
Tribunal for review under section 110(4) while the Minister's
application is pending or if the Supreme Court grants the
injunction.
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New section 110AB(1) provides that the Minister may undertake
any remedial action required to be taken by a Court order under
new section 110(3A) or an injunction granted under new section
110AA if the authority holder fails to undertake the action within
the time specified in the order or injunction (or if no time is
specified, within a reasonable time), and failure to take the action
is, in the Minister's opinion, likely to result in a serious risk to
public safety, the environment, land, property or infrastructure.
It is anticipated that the State will undertake such remedial action
very rarely and only as a last resort, after all alternative
enforcement measures have been explored and exhausted.
New subsection (2) provides that the Minister may authorise a
person and any person assisting that person to enter any land,
including private and Crown land, and do anything that in the
Minister's opinion is necessary for the purposes of taking
remedial action under subsection (1).
New subsection (3) provides that, if it is necessary for a person
authorised by the Minister or a person assisting that person to
enter land under new subsection (2), the Minister must, except in
an emergency, give reasonable notice of the entry to the owner
and occupier of private land (or the Crown land Minister if the
land is Crown land), ensure the person enters the land at a
reasonable time, and if the land is used only for residential
purposes, obtain, or take all reasonable steps to obtain, the
consent of the occupier of that land.
New section 110AC(1) creates an offence for a person to, without
reasonable excuse, hinder or obstruct the Minister, a person
authorised by the Minister or a person assisting that authorised
person taking remedial action under new section 110AB.
The maximum penalty that applies to the offence is 300 penalty
units in the case of a corporation, and 60 penalty units in any
other case.
New subsection (2) clarifies that, in new section 110AC,
authorised person means a person authorised by the Minister
(and any person assisting that authorised person) under new
section 110AB(2) to enter any land, including private and Crown
land, and do anything that in the Minister’s opinion is necessary
for the purposes of taking remedial action under new section
110AB(1).
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New section 110AD provides that a person authorised by the
Minister or a person assisting that authorised person is not
personally liable for anything done or omitted to be done in good
faith in the course of taking action under new section 110AB or
in the reasonable belief that the act or omission was in the course
of taking action under new section 110AB.
New subsection (2) provides that any liability that would, but for
subsection (1), attach to a person attaches instead to the Crown.
New subsection (3) clarifies that, in new section 110AD,
authorised person has the same meaning as in new section
110AC, in which it means a person authorised by the Minister
under new section 110AB(2) to enter any land, including private
and Crown land, and do anything that in the Minister’s opinion is
necessary for the purposes of taking remedial action under new
section 110AB(1).
New section 110AE(1) provides that, subject to section
110AE(2), compensation is payable by the Minister to the owner
or occupier of private land for any loss or damage sustained as a
direct, natural and reasonable consequence of an action taken
under new section 110AB. It is intended that such land must be
directly affected, whether adjoining or non-adjoining to the area
where the action was taken. It is not intended that a
compensation agreement should be prepared or agreed
between the Minister and a private land owner or occupier
prior to the taking of the action under new section 110AB.
This compensation provision is intended to facilitate the recovery
of compensation by owners or occupiers of private land from the
Minister, rather than require such private landowners and
occupiers to seek compensation from the authority holder who
failed to take action, who may dispute their obligation to pay or
delay or withhold the payment of such compensation.
New subsection (2) provides that compensation is not payable by
the Minister under new section 110AE(1) if the owner or
occupier of the private land is also the authority holder that was
subject to the court order or injunction in relation to which the
action under new section 110AB was taken.
New subsection (3) provides that, in the event of a disputed claim
for compensation, an owner or occupier of the private land
affected may apply to the Victorian Civil and Administrative
Tribunal or refer the claim to the Supreme Court for
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determination in accordance with Part 10 of the Land
Acquisition and Compensation Act 1986, which sets out a
process for the determination of disputed claims for
compensation, as if the claim were a claim for compensation
under that Act and the Minister were the Authority referred to in
that Part.
New subsection (4) provides that Part 10 of the Land
Acquisition and Compensation Act 1986, in applying to a
disputed claim for compensation referred under new
subsection (3), has effect as if that Part required the Tribunal or
Court (as the case requires) to have regard to the provisions of
Part 12 of the Principal Act, and as if section 91(1) of the Land
Acquisition and Compensation Act 1986 provides that the
Minister must pay the Minister's own costs and the costs of the
private land owner or occupier, unless the owner or occupier has
been frivolous or vexatious or has otherwise acted unreasonably,
in which case the Tribunal or Court (as the case requires) may
award such costs as it thinks fit. Section 91(1) of the Land
Acquisition and Compensation Act 1986 sets out the matters to
be taken into consideration by the Tribunal or the Court (as the
case requires), if the Tribunal or Court considers it appropriate to
do so, in awarding costs in proceedings under Part 10 of that Act.
New section 110AF(1) provides that a claim for compensation
for any loss or damage may be made under new section 110AE at
any time until the end of two years after the day on which the
Minister, an authorised person or a person assisting that
authorised person finishes taking the action under new section
110AB.
New subsection (2) clarifies that, in new section 110AF,
authorised person has the same meaning as in new section
110AC, in which it means a person authorised by the Minister
under new section 110AB(2) to enter any land, including private
and Crown land, and do anything that in the Minister's opinion is
necessary for the purposes of taking remedial action under new
section 110AB(1).
New section 110AG provides that, as undertaking remedial
action under new section 110AB(1) would be at a financial cost
to the State, the Minister may recover from the authority holder
who was subject to a court order under new section 110(3A) or
an injunction granted under new section 110AA, as a debt due to
the Crown, in a court of competent jurisdiction, any reasonable
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costs incurred in taking that action and any compensation paid
under new section 110AE to owners and occupiers of private
land in respect of that action.
Clause 8
inserts transitional provisions relating to the Bill as new
section 138 in the Principal Act.
New section 138(1) provides that a court may make an order
under new section 110(3A) in relation to any offence against
section 110(3) (failing to comply with a notice served under
section 110(2)) committed after the commencement of the
amendments made by the Bill to section 110 of the Principal Act,
whether the notice in respect of which the offence is committed
was issued before or after that commencement.
Subsection (2) provides for a situation where the notice with
which the authority holder has not complied contains multiple
compliance dates and at least one of those dates falls after the
commencement of the amendments to section 110. For the
purposes of new section 138(1) the offences are taken to be
committed after that commencement.
New section 138(3) provides that the Minister may apply to the
Supreme Court for an injunction under new section 110AA(1) in
relation to any non-compliance with a notice that occurs after the
commencement of new sections 110AA to 110AG, whether the
notice is issued before or after that commencement.
Subsection (4) provides that if non-compliance with a notice can
occur on multiple dates and one of those dates falls after the
commencement of new sections 110AA to 110AG, for the
purposes of new section 138(3), the non-compliances are taken to
occur after that commencement.
New section 138(5) provides that, in new section 138, amending
Act means this Bill.
Clause 9
provides for the repeal of the Bill on 1 June 2014. The repeal of
the Bill does not affect the continuing operation of the
amendments made by it (see section 15 of the Interpretation of
Legislation Act 1984).
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