Part 10BCompliance and enforcement

Part 10B—Compliance and enforcement 70E—Power to direct persons to take action to prevent or minimise environmental harm (1) If, in the Minister's opinion, authorised operations are being conducted in a way that results in, or that is reasonably likely to result in— (a) undue damage to the environment; or (b) a breach of the environmental outcomes under a program under Part 10A, the Minister may, by written notice given to any person involved in undertaking the mining operations (an environmental direction), direct that action be taken to comply with specified requirements to prevent or minimise damage to the environment (to the extent necessary to address the relevant matter arising under paragraph (a) or (b)). (3) A direction under this section may impose any requirement reasonably required for the purpose for which the direction is issued including 1 or more of the following: (a) a requirement that a person specified or identified in the direction discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from the Minister or an authorised officer; (b) a requirement that a person specified or identified in the direction take specified action in a specified way, and within a specified period or at specified times or in specified circumstances; (c) a requirement that a person specified or identified in the direction take action to prevent or minimise any damage to the environment, or to control any specified activity; (d) a requirement that a person specified or identified in the direction undertake specified tests or monitoring and, in relation to such a requirement— (i) a requirement that the tests or monitoring be carried out by a person with specified qualifications or experience; (ii) a requirement that a report or reports be provided to the Minister, or to any other specified person; (e) a requirement that a person specified or identified in the direction take specified action to rehabilitate or restore any land; (ea) a requirement that a person specified or identified in the direction prepare a plan of action (that complies with any specified requirements and to the satisfaction of the Minister) to prevent or address— (i) undue damage to the environment; or (ii) a breach of an environmental outcome under a program under Part 10A; or (iii) any other breach of this Act; (f) a requirement that a person specified or identified in the direction furnish the Minister with specified results or reports. (4) A direction under this section must allow a reasonable time for compliance with the direction. (5) A person to whom a direction relates must comply with a direction under this section within the time allowed in the direction. (6) If a direction is given under this section, the Minister may review the adequacy of any relevant program under Part 10A and, if it appears on the review that a revised program is appropriate, the Minister may take the necessary steps to have a revised program prepared and brought into force. (8) For the purposes of this section, a reference to a person involved in undertaking authorised operations extends (in all cases) to the holder of a mineral tenement under which the authorised operations are conducted. 70F—Power to direct rehabilitation of land (1) The Minister may, by written notice given to any person involved in undertaking authorised operations under a mineral tenement (including a former mineral tenement) (a rehabilitation direction), direct that action be taken— (a) to rehabilitate land in accordance with the requirements of a program under Part 10A; or (b) to rehabilitate land to a standard required to secure compliance with a condition of the mineral tenement, (including land outside the area of the mineral tenement). (2) A direction under this section— (a) must allow a reasonable time for compliance with the direction; and (b) may require the removal of abandoned equipment and facilities. (3) A person must comply with a direction under this section within the time allowed in the direction. (6) For the purposes of this section a rehabilitation direction may be issued at any time (including after a mineral tenement has expired or been cancelled or surrendered) and a reference to a person involved in undertaking authorised operations extends (in all cases) to— (a) the holder of the mineral tenement under which the authorised operations are conducted; (b) if relevant, the holder of a mineral tenement that has since expired, or has been cancelled or surrendered (but, in such a case, a notice may only be given to the person who was the holder of the mineral tenement immediately before its expiration, cancellation or surrender). 70FA—Compliance directions (1) The Minister may issue a direction under this section (a compliance direction) for the purpose of— (a) securing compliance with a requirement under this Act, a mineral tenement (including a term or condition of a mineral tenement) or any authorisation or direction under or in relation to a mineral tenement; or (b) preventing or bringing to an end specified operations that are contrary to this Act or a mineral tenement (including a term or condition of a mineral tenement); or (c) without limiting any other provision, requiring the rehabilitation of land on account of any authorised operations carried out without an authority required by this Act. (2) A compliance direction— (a) must be in the form of a written notice given to the person to whom the direction is issued; and (b) must— (i) specify the person to whom it is issued (whether by name or by description sufficient to identify the person); and (ii) specify the grounds on which it is issued; and (c) may impose any requirement reasonably required for the purpose for which the direction is issued including 1 or more of the following: (i) a requirement that the person discontinue, or not commence, specified operations indefinitely or for a specified period or until further notice from the Minister; (ii) a requirement that the person not carry on specified operations except at specified times or subject to specified conditions; (iii) a requirement that the person take specified action within a specified period. (3) The Minister may, by written notice given to the person to whom a compliance direction is issued, vary or revoke the direction. (4) A person to whom a compliance direction relates must comply with a direction under this section within the time allowed in the direction. 70FB—Emergency directions (1) If, in the opinion of an authorised officer— (a) authorised operations are being carried out in a way that results in, or that is reasonably likely to result in— (i) undue damage to the environment; or (ii) a breach of an environmental outcome under a program under Part 10A; or (iii) a breach of a term or condition of a mineral tenement; and (b) it is urgently necessary to take action under this section, the authorised officer may, by written notice given to any person involved in undertaking the authorised operations, issue a direction under this section (an emergency direction). (2) An emergency direction— (a) subject to subsection (3), must be in the form of a written notice given to the person to whom the direction is issued; and (b) must specify the grounds on which it is issued; and (c) may impose any requirement reasonably required for the purpose for which the direction is issued including 1 or more of the following: (i) a requirement that a person specified or identified in the direction discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from an authorised officer; (ii) a requirement that a person specified or identified in the direction take specified action within a specified period; (iii) a requirement that a person specified or identified in the direction furnish the Minister or a specified authorised officer with a specified report or reports. (3) An authorised officer may, if of the opinion that urgent action is required under this section, issue an emergency direction imposing requirements of a kind referred to in subsection (2)(c) orally but, in that event, the authorised officer must confirm it in writing at the earliest opportunity (and in any event within 2 business days) by written notice given to the person to whom the direction applies. (4) An emergency direction issued under this section will cease to have effect at the expiration of 3 business days after the day on which it is issued unless the Director of Mines, within that period, confirms the direction in the manner prescribed by the regulations (and then the direction will continue to have effect for a period determined by the Director or until revoked by an authorised officer). (5) An authorised officer may, with the approval of the Director, by written notice served on the person to whom an emergency direction has been issued, vary or revoke the direction. (6) A person to whom an emergency direction relates must comply with a direction under this section within the time allowed in the direction. 70FC—Contravention of Act The Minister or an authorised officer may, if of the opinion that it is reasonably necessary to do so in the circumstances, include in a direction under this Part a requirement for an act or omission that might otherwise constitute a contravention of this Act and, in that event, a person incurs no liability to a penalty under this Act for compliance with the requirement. 70G—Application for review of direction (1) A person required to comply with a direction under this Part may apply to the ERD Court for a review of the direction within 28 days after receiving the direction or such longer period as the Minister or the Director of Mines may allow in a particular case. (2) Unless the Minister, the Director of Mines or the Court decides to the contrary, an application for review of a direction does not suspend operation of the direction. (3) On review of a direction, the ERD Court may— (a) confirm the direction (with or without modification); or (b) revoke the direction. 70H—Action if non‑compliance occurs (1) If the requirements of a direction under this Part are not complied with, the Minister or the Director of Mines may take the action required by the direction. (2) Any action to be taken under subsection (1) may be taken by an authorised officer or by another person authorised by the Minister or the Director for the purpose. (3) If a person other than an authorised officer is authorised to take action under subsection (2), the following provisions apply: (a) the Minister or the Director must issue the person with an instrument of authority; (b) the person must produce the instrument of authority for the inspection of any person in relation to whom the person intends to exercise powers under this section. (4) The reasonable costs and expenses incurred by the Minister or the Director of Mines taking action under this section constitute a debt due to the Crown. 70HA—Restriction of claims (1) Without limiting any other provision of this Act, the Warden's Court may order that no further claim may be established under this Act by a person named in a direction under this Part until the requirements of the direction have been satisfied. (2) If an order is made under subsection (1), the person named in the order is not entitled to establish a claim under this Act until the requirements of the direction have been satisfied or the order has been revoked. 70HB—Self-incrimination (1) It is not an excuse for a natural person to refuse to provide information required by or under a direction under this Part on the ground that to do so might tend to incriminate the person or make the person liable to a penalty. (2) However, if compliance with a requirement to provide information might tend to incriminate the person or make the person liable to a penalty, then the fact of the provision of the information is not admissible in evidence against the person in proceedings for an offence or for the imposition of a penalty (other than proceedings in respect of making a false or misleading statement). Part 10C—Offences and penalties 70HC—Penalty for illegal mining (a) carries out authorised operations without being duly authorised by or under this Act; or (b) sells, or disposes of, minerals recovered by the person in the course of authorised operations, or utilises any such minerals, in a manner that is contrary to a provision of this Act, is guilty of an offence. Maximum penalty: $250 000 or imprisonment for 2 years. (2) Subsection (1) does not apply in relation to prescribed classes of ancillary operations authorised under another Act. 70HD—Obstruction of person authorised to mine etc A person must not, without lawful excuse, obstruct or hinder a tenement holder in the reasonable exercise of rights conferred under this Act. 70HE—Civil penalties (1) Subject to this section, if the Director of Mines is satisfied that a person has committed an offence by contravening a provision of this Act, the Director may, as an alternative to criminal proceedings, recover, by negotiation or by application to the ERD Court, an amount as a civil penalty in respect of the contravention. (2) The Director of Mines may not recover an amount under this section in respect of a contravention if the relevant offence requires proof of intention or some other state of mind, and must, in respect of any other contravention, determine whether to initiate proceedings for an offence or take action under this section, having regard to the seriousness of the contravention, the previous record of the offender and any other relevant factors. (3) The Director of Mines may not make an application to the Court under this section to recover an amount from a person as a civil penalty in respect of a contravention— (a) unless the Director has served on the person a notice in the prescribed form advising the person that the person may, by written notice to the Director, elect to be prosecuted for the contravention and the person has been allowed not less than 21 days after service of the Director's notice to make such an election; or (b) if the person serves written notice on the Director, before the making of such an application, that the person elects to be prosecuted for the contravention. (4) The maximum amount that the Director of Mines may recover by negotiation as a civil penalty in respect of a contravention is— (a) the amount specified by this Act as the criminal penalty in relation to that contravention; or (b) $150 000, whichever is the lesser. (5) If, on an application by the Director of Mines, the ERD Court is satisfied on the balance of probabilities that a person has contravened a provision of this Act, the Court may order the person to pay to the Director an amount as a civil penalty (but not exceeding the amount specified by this Act as the criminal penalty in relation to that contravention). (6) In determining the amount to be paid by a person as a civil penalty, the Court must have regard to— (a) the nature and extent of the contravention; and (b) any detriment to the public interest resulting from the contravention; and (c) any financial saving or other benefit that the person stood to gain by committing the contravention; and (d) whether the person has previously been found, in proceedings under this Act, to have engaged in any similar conduct; and (e) any other matter it considers relevant. (7) The jurisdiction conferred by this section is to be part of the civil jurisdiction of the ERD Court. (8) If conduct of a person constitutes a contravention of 2 or more provisions of this Act, an amount may be recovered from the person under this section in relation to the contravention of any 1 or more of those provisions (provided that the person is not liable to pay more than 1 amount as a civil penalty in respect of the same conduct). (9) Proceedings for an order under this section that a person pay an amount as a civil penalty in relation to a contravention of this Act, or for enforcement of such an order, are stayed if criminal proceedings are started or have already been started against the person for an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention. (10) Proceedings referred to in subsection (9) may only be resumed if the criminal proceedings do not result in a formal finding of guilt being made against the person. (11) Evidence of information given or evidence of the production of documents by a person is not admissible in criminal proceedings against the person if— (a) the person gave the evidence or produced the documents in the course of negotiations or proceedings under this section for the recovery of an amount as a civil penalty in relation to a contravention of this Act; and (b) the conduct alleged to constitute the offence is substantially the same as the conduct that was alleged to constitute the contravention. (12) However, subsection (11) does not apply to criminal proceedings in respect of the making of a false or misleading statement. (13) Proceedings for an order under this section may be commenced at any time within 3 years after the date of the alleged contravention or, with the authorisation of the Attorney‑General, at any later time within 10 years after the date of the alleged contravention. (14) An apparently genuine document purporting to be signed by the Attorney‑General authorising the commencement of proceedings for an order under this section will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation. (15) The Court may, in any proceedings under this section, make such orders in relation to the costs of the proceedings as it thinks just and reasonable. (16) An amount recovered as a civil penalty under this section will be paid into the Mining Rehabilitation Fund. 70HF—Additional orders on conviction (1) If a person is convicted of an offence against this Act, the court by which the conviction is recorded may, in addition to any penalty that it may impose, and to any other order that may be made under this or any other Act, make 1 or more of the following orders: (a) an order requiring the person to take any specified action (including an order to rectify the consequences of any contravention of this Act, or to ensure that a further contravention does not occur); (b) without limiting paragraph (a)—an order requiring the person to make good any environmental damage and, if appropriate, to take specified action to prevent or mitigate further harm to the environment; (c) an order requiring the person to publicise the contravention of this Act and any environmental or other consequences, and the other orders (if any) made against the person; (d) an order requiring the person to pay into the Mining Rehabilitation Fund an amount determined by the court to be equal to a fair assessment or estimate of the financial benefit that the person, or a related body corporate, has gained, or can reasonably be expected to gain, as a result of the contravention of this Act; (e) an order requiring the person to pay to any person who has suffered loss or damage to property as a result of the acts or omissions constituting the offence, or incurred costs or expenses in taking action to prevent or mitigate such loss or damage, compensation for that loss or damage and reasonable reimbursement for those costs or expenses. (2) For the purposes of subsection (1)(d), a financial benefit obtained by delaying or avoiding costs will be taken to be a financial benefit gained as a result of a contravention of the Act if the contravention can be attributed (in whole or in part) to that delay or avoidance. (3) The court may, by an order under this section, fix a period for compliance and impose other requirements the court considers necessary or expedient for the enforcement of the order. 70HG—Continuing offences (1) A person convicted of an offence against a provision of this Act in respect of a continuing act or omission— (a) is liable, subject to any determination of a court, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continued for not more than one-tenth of the maximum penalty prescribed for that offence; and (b) is, if the act or omission continues after the conviction, subject to any determination of a court, guilty of a further offence against the provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continued after the conviction of not more than one-tenth of the maximum penalty prescribed for the offence. (2) If an offence consists of an omission to do something that is required to be done, the omission will be taken to continue for as long as the thing required to be done remains undone after the end of the period for compliance with the requirement. 70HH—Offences by bodies corporate If a body corporate is guilty of an offence against this Act, each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence if the prosecution proves that— (a) the director knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and (b) the director was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and (c) the director failed to exercise due diligence to prevent the commission of the offence. 70HI—Time limits (1) Criminal proceedings under this Act may be commenced at any time within 3 years after the date of the alleged offence or, with the authorisation of the Attorney‑General, at any later time within 10 years after the alleged offence. (2) An apparently genuine document purporting to be signed by the Attorney‑General authorising the commencement of criminal proceedings under this Act will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation. 70HJ—Summary offences All offences under this Act are classified as summary offences. 70HK—Evidentiary provisions (1) In proceedings for an offence against this Act, an apparently genuine document purporting to be a certificate signed by the Minister certifying— (a) that a person named in the certificate was or was not at a specified time a tenement holder; or (b) that a specified provision was a term or condition of a specified mineral tenement at a specified time; or (c) that a specified provision was a requirement or condition of a program under Part 10A; or (d) that a specified determination, direction, decision, order or requirement was made or given on a specified day; or (e) that at a specified time the Minister, the Director of Mines or the Mining Registrar gave notice of any specified matter under or in connection with the operation of this Act; or (f) that at a specified time the Minister, the Director of Mines or the Mining Registrar had not received any notice, instrument or other document, or had not received any information of a specified kind; or (g) that at a specified time a specified person was an authorised officer under this Act; or (h) that a particular delegation was in force under this Act at a specified time, is, in the absence of proof to the contrary, proof of the matter so certified. (2) In any proceedings for an offence against this Act, an allegation in the complaint that any land referred to in the complaint is mineral land, or land exempt from operations under this Act, will be taken to be proved in the absence of evidence to the contrary. (3) In any proceedings for an offence against this Act, a document purporting to be a lease or licence under this Act will be accepted as such in the absence of evidence to the contrary. (4) If in any proceedings for an offence against this Act in relation to any operations it is proved that there has been a contravention of, or a failure to comply with— (a) a term or condition of a mineral tenement; or (b) a requirement or condition of a program under Part 10A applying in respect of a mineral tenement, it must be presumed, in the absence of evidence to the contrary, that the contravention or failure (as the case requires) occurred as a result of an act or omission of the tenement holder. (5) In any proceedings for an offence against this Act, if it appears that an alleged fact has been determined by the use of an electronic, sonic, optical, mechanical, measuring or other device or technique by an authorised officer or a person assisting an authorised officer, the alleged fact must be accepted as proved in the absence of evidence to the contrary.