89EConsiderations for decisions and declarations—the Act, s 393

#### 89E Considerations for decisions and declarations—the Act, s 393 89E Considerations for decisions and declarations—the Act, s 393 > > (1) For the Act, section 393(3), a decision-maker may, without limitation, take into consideration, for the purposes of deciding whether a person is a fit and proper person or whether to make a declaration under the Act, section 393, one or more of the matters specified in— > > > > > (a) subclause (2), and > > > > > (b) if the person is— > > > > > > > (i) an individual—subclause (3), or > > > > > > > (ii) a body corporate—subclause (4). > > > (2) For subclause (1)(a), the matters relating to a person, whether or not the person is an individual or a body corporate, include the following— > > > > > (a) whether the person has compliance or criminal conduct issues, > > > > > (b) the person’s record of compliance with relevant legislation, established to the satisfaction of the decision-maker, > > > > > (c) whether, in the opinion of the decision-maker, the management of the activities or works that are or are to be authorised, required or regulated under the authorisation are not or will not be in the hands of a technically competent person, > > > > > (d) whether, in the opinion of the decision-maker, the person is not of good repute, > > > > > (e) whether, in the opinion of the decision-maker, the person is not of good character, with particular regard to honesty and integrity, > > > > > (f) whether the person has demonstrated to the decision-maker the financial capacity to comply with the person’s obligations under the authorisation, > > > > > (g) whether the person is in partnership, in connection with activities that are subject to an authorisation or a proposed authorisation, with a person who is a declared person under the Act, Part 18, Division 2, > > > > > (h) whether the person has an arrangement, formal or informal, in connection with activities that are subject to an authorisation or a proposed authorisation with a person who is a declared person under the Act, Part 18, Division 2, if the decision-maker is satisfied that the arrangement gives the declared person the capacity to determine the outcome of decisions about financial and operating policies concerning those activities. > > > (3) For subclause (1)(b)(i), additional matters relating to a person who is an individual include the following— > > > > > (a) whether the person, during the previous 3 years, was an undischarged bankrupt or applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit, > > > > > (b) whether the person is or was a director of a body corporate— > > > > > > > (i) that is the subject of a winding up order, or > > > > > > > (ii) for which a controller or administrator has been appointed during the previous 3 years. > > > (4) For subclause (1)(b)(ii), additional matters relating to a person who is a body corporate include the following— > > > > > (a) whether a related body corporate, or a director of the body corporate or of a related body corporate, has compliance or criminal conduct issues, > > > > > (b) whether a director of the body corporate or of a related body corporate is or has been a director of another body corporate that has compliance or criminal conduct issues, but only if the person was a director of that other body corporate at the time of the conduct that resulted in the compliance or criminal conduct issues, > > > > > (c) the record of compliance with relevant legislation, established to the satisfaction of the decision-maker, of any director of the body corporate or a related body corporate, > > > > > (d) whether, in the opinion of the decision-maker, a director of the body corporate or a related body corporate is not of good repute, > > > > > (e) whether, in the opinion of the decision-maker, a director of the body corporate or a related body corporate is not of good character, with particular regard to honesty and integrity, > > > > > (f) whether the body corporate or a related body corporate— > > > > > > > (i) is the subject of a winding up order, or > > > > > > > (ii) has had a controller or administrator appointed during the previous 3 years. > > > (5) A person has compliance or criminal conduct issues if— > > > > > (a) the decision-maker is satisfied that the person has contravened relevant legislation, whether or not the person has been prosecuted for or convicted of an offence arising from the contravention, or > > > > > (b) in the previous 10 years, the person has been convicted in New South Wales or elsewhere of a serious offence or an offence involving fraud or dishonesty, or > > > > > (c) the person has held an authorisation, or another instrument issued or granted under relevant legislation, that has been suspended, cancelled or revoked. > > > (6) In this clause— > > > > authorisation has the same meaning as in the Act, Part 18, Division 2. > > > > relevant legislation means the following legislation— > > > > > (a) the Act, > > > > > (b) the [Petroleum (Onshore) Act 1991](/view/html/inforce/current/act-1991-084), > > > > > (c) the environment protection legislation, > > > > > (d) the [Environmental Planning and Assessment Act 1979](/view/html/inforce/current/act-1979-203), > > > > > (e) the work health and safety legislation, > > > > > (f) the [Coal Mine Subsidence Compensation Act 2017](/view/html/inforce/current/act-2017-037). > > > > serious offence means— > > > > > (a) an offence committed in New South Wales that is punishable by a specified punishment, or > > > > > (b) an offence committed elsewhere than in New South Wales that if committed in New South Wales would be punishable by a specified punishment, or > > > > > (c) an offence committed under a law of the Commonwealth that is punishable by a specified punishment. > > > > specified punishment means— > > > > > (a) imprisonment for life, or > > > > > (b) imprisonment for a term of 5 years or more, or > > > > > (c) a fine of $500,000 or more. > > **cl 89E:** Ins 2022 (802), Sch 1\[47\].