Mining Rehabilitation Fund Act 2012

The Act deploys a small set of interlocking statutory concepts. These are the Fund (ss 5-8), the mining rehabilitation levy (Part 4), abandoned mine site (s 3, s 9), mining authorisation (s 4), assessment machinery for levy collection (ss 14-19), objection and review rights (ss 20-24), and the CEO’s information‑gathering and enforcement powers (ss 29-31).

Fund and purpose. The Fund is an agency special purpose account established under the Financial Management Act 2006 (s 5). The Act defines the Fund’s main purpose as a source of funding to rehabilitate abandoned mine sites and related affected land (s 6(1)). The Act then specifies permitted payments to the Fund (levy amounts, penalty amounts, recoveries under s 9A and investment income, s 7) and permitted uses of Fund money (s 8). Note the statutory prioritisation: primary Fund money may be applied to rehabilitation of abandoned sites that were subject to authorisations in respect of which the levy is payable, and to affected land relating to those sites (s 8(1)(a)). Investment income may be used for a broader set of rehabilitation and administrative purposes (s 8(2)).

Mining authorisation and levy base. For the purposes of the levy, the Act defines what counts as a mining authorisation (s 4). The category includes most mining tenements, subject to prescriptions for certain tenements, particular classes granted under Government agreements and other prescribed classes (s 4(2)). The levy is imposed on each mining authorisation in force and is payable annually in accordance with the regulations (s 11). The person liable in a particular year is the holder on the prescribed day (s 12). The Act leaves the amount of the levy to be specified or worked out in the regulations (s 13(1)), and empowers the Governor in Council to make regulations prescribing the basis and factors for working out levy amounts (s 37(2)(a)).

Assessment, reassessment and objections. The CEO must assess the levy for each person liable (s 14). Holders must provide prescribed assessment information by the prescribed date each year (s 15(2)), on pain of a fine up to $20,000. The CEO may base an assessment on information provided or on other information, and may make an estimate where information is not provided or is inadequate (s 16). Assessments and reassessments generate notices with prescribed content and a minimum 30‑day payment window (ss 17, 19). Reassessments can be made up to two years after the original assessment (s 18(4)). A person may object to an assessment or reassessment within 28 days, and the CEO must determine objections within 28 days (ss 20-21). Decisions on objections that adjust amounts must be notified via an adjustment notice, and refunds must be made where an overpayment occurred (ss 22-23).

Information powers and admissibility rules. The CEO may direct a person to give information, answer questions, and produce records for the administration and enforcement of Part 4 (s 29). Failure to comply without reasonable excuse carries a fine of $20,000 (s 29(4)). Section 30 sets out a limited use immunity for incriminating information given under compulsion: the compelled material is not admissible in civil or criminal proceedings against the individual except for perjury or for an offence under s 31 (false or misleading information). Section 31 makes it an offence, punishable by a fine of $20,000, to provide false or misleading information in compliance with the Act.

Declaration and rehabilitation. The CEO may declare land to be an abandoned mine site by Gazette notice where mining operations have been carried out and have ceased (s 9(1)). The CEO may amend or revoke such notices (s 9(4)). Once sites are declared, the CEO may authorise persons to enter abandoned sites and affected land to carry out rehabilitation work funded from the Fund, subject to notice requirements and consent conditions for private and pastoral leased land (s 10). Section 9A creates a statutory liability: if Fund money is spent to rehabilitate land that is an abandoned mine site, each person who on declaration day was liable under or in relation to the mining authorisation to rehabilitate the land is jointly and severally liable to pay to the Fund the amount applied (s 9A(3)).

Administrative architecture. The Act establishes the Mining Rehabilitation Advisory Panel to provide advice to the CEO (s 33). The CEO may delegate most powers to public service officers, but cannot delegate the powers to declare abandoned mines under s 9(1) and (4) (s 34(1)). Confidentiality obligations bind persons engaged under the Act but permit disclosure for administration, legal proceedings and with consent, and breach carries a fine (s 35). The Act provides protection from tort claims for persons acting in good faith under the Act, while preserving State liability in certain circumstances (s 36).

Regulatory discretion. Many operational details are left to regulations, including the levy calculation, assessment detail, and conduct of the advisory panel (s 37). The Minister is required to review the Act’s operation and effectiveness after ten years from Royal Assent, with a report to Parliament not later than 18 months after the review period ends (s 38).

These main concepts set up a statutory levy regime, an accountable fund with limited permitted uses, declaration authority for abandoned sites, recovery powers against those liable to rehabilitate, and administrative enforcement backed by penalties and compulsion powers.

The Act principally affects holders of mining authorisations as defined in s 4. For levy liability the operative rule is that the person liable in a year is the holder of the mining authorisation on the day prescribed for section 15(2) in that year (s 12). The definition of “mining authorisation” includes mining tenements unless granted under a Government agreement, and also includes prescribed tenements and leases under Government agreements or other prescribed classes (s 4(2)). The regulations may further prescribe classes of tenements to be included or excluded (s 4(2) and s 37(2)(a)). Therefore the initial and ongoing class of persons captured depends partly on regulatory prescription.

Current and former holders. The levy is imposed in each year on each authorisation in force (s 11). The CEO assesses levy amounts and issues notices to the person liable (ss 14, 17). Those who once held authorisations are affected indirectly by s 9A: where the CEO applies Fund money to rehabilitate an abandoned mine site, each person who, on the declaration day, was liable under or in relation to the mining authorisation to rehabilitate the land is jointly and severally liable to reimburse the Fund the amount applied (s 9A(3)-(4)). That can include persons who no longer hold an authorisation if they were the person liable on the relevant declaration day.

Owners and occupiers of private land and holders of pastoral or diversification leases. Section 10 creates entry powers for persons authorised by the CEO to carry out rehabilitation work funded from the Fund, but places notice and consent requirements where entry is into private land or pastoral and diversification lease land. Before entry onto private land a person authorised must have taken reasonable steps to give the owner or occupier notice of intended entry or have their consent (s 10(4)(a)). Similar notice or consent obligations apply for pastoral or diversification leases (s 10(4)(b)). These rules affect private landowners and leaseholders by creating a framework for notice and potential access for rehabilitation work.

People providing information and records. Holders must provide assessment information annually by the prescribed day in the form and manner approved by the CEO, on pain of a $20,000 fine (s 15(2)). Other persons who receive directions under s 29 to provide information or produce records are subject to the same $20,000 penalty for non‑compliance (s 29(4)). Individuals compelled to provide incriminating information are given limited use immunity under s 30, but that immunity does not prevent prosecution for perjury or s 31 offences concerning false or misleading information.

The State through the CEO. The CEO and department staff gain discretionary implementation roles: declaring abandoned sites (s 9), making assessments and reassessments (ss 14-19), enforcing compliance by requiring information and records (s 29), issuing levy enforcement notices and recovery actions (ss 25-27), and authorising entry for rehabilitation (s 10). The CEO appoints members to the Mining Rehabilitation Advisory Panel (s 33).

Broader public stakeholders. The Act enables the CEO to publish assessment methodology and assessment information to the public (ss 13(2), 15(3)), and the Fund’s investment income may fund programmes and information about rehabilitation (s 8(2)(b)). Local communities around abandoned sites will be affected by declaration and rehabilitation activities, though the Act does not create a specific statutory right for community participation in the declaration process; declaration is effected by a Gazette notice at the CEO’s satisfaction that mining operations have been carried out and ceased (s 9(1)).

Regulators and the courts. The courts are the recovery forum for levy amounts, penalty amounts and for recovering amounts payable under s 9A as debts due to the State (ss 27, 9A(4)). The State Administrative Tribunal is the review forum for decisions on objections (s 24).

In practice, then, the principal economic cost-bearers are holders of mining authorisations as captured by s 4, while persons who were liable under authorisations on the day of an abandonment declaration can face retrospective reimbursement claims under s 9A. The CEO and the department exercise significant decision rights that shape when levies are assessed, when sites are declared, how information is requested, and which sites are rehabilitated using Fund resources.

This Act creates specific statutory duties and corresponding rights for holders, the CEO and other participants. Below are the principal ones expressed in the Act text with the controlling sections.

Duties on holders of mining authorisations

• Annual reporting duty: The holder must give the CEO assessment information of a prescribed kind by the prescribed day each year, in the form and manner approved by the CEO (s 15(2)). Penalty on non‑compliance is a fine of $20,000 (s 15(2)). The Act also contemplates that holders may nominate a single address for service where there are multiple holders (s 37A(2)). The CEO may make assessment information public (s 15(3)).

• Payment duty: The holder (as the person liable under s 12) must pay the levy amount determined by the CEO under s 14 and notified in an assessment notice (s 17). A levy amount becomes due and payable on the due date stated in the levy notice (s 25). Non-payment after the due date attracts a penalty calculated at the prescribed rate on amounts unpaid (s 26(1)).

• Duty to provide information and records on direction: Under s 29 the CEO may direct persons to give information, answer questions, and produce records. Failure without reasonable excuse to comply is a fine of $20,000 (s 29(4)).

• Duty of honesty: It is an offence to provide false or misleading information in compliance with s 15, a direction under s 29, or any other requirement under the Act (s 31). Penalty: $20,000 (s 31(1)).

• Rehabilitation liability for declared abandoned sites: If the CEO applies Fund money to rehabilitate land that is an abandoned mine site, each person who on declaration day was liable under or in relation to the mining authorisation to rehabilitate the land is jointly and severally liable to pay to the Fund the amount applied (s 9A(3)). The CEO may recover this amount in court as a debt due to the State (s 9A(4)).

Rights of holders and others

• Right to assessment notice and minimum payment window: After assessment the CEO must give an assessment notice specifying the levy amount and the day the amount is payable, being at least 30 days after the date of the notice (s 17(2)(c)).

• Right to object and statutory timelines: A person may object in writing to an assessment or reassessment within 28 days of the notice (s 20(2)). The CEO must consider and determine the objection within 28 days after it is made (s 21(1)). The person may apply to the State Administrative Tribunal for review of the CEO’s decision within 42 days after notice of the decision (s 24(1)-(2)).

• Right to reassessment corrections: The CEO must give a reassessment notice where reassessment increases or decreases the levy (s 19(1)-(2)), and must cause a refund where an excess levy or penalty was paid (s 19(3), s 22(4)).

• Limited use immunity for compelled incriminating information: Individuals required to provide information under compulsion are not excused on the ground that it may incriminate them, but the material is not admissible in evidence against the individual in civil or criminal proceedings, except for perjury or offences under s 31 (s 30(1)-(2)). This creates a limited compulsion/use immunity regime.

CEO duties and powers

• Duty to assess: The CEO must assess the levy amount for each person liable (s 14).

• Power to estimate: If information is not supplied or is inadequate, the CEO may assess on the basis of the CEO’s estimate (s 16(2)).

• Power to reassess: The CEO may reassess where there has been an error or it is otherwise appropriate, subject to a two‑year limit after the original assessment (s 18).

• Power to declare abandoned mine sites: The CEO may declare abandoned mine sites by Gazette notice where satisfied mining operations have been carried out and have ceased (s 9(1)). The CEO may amend or revoke such notices (s 9(4)).

• Power to authorise entry: The CEO may authorise persons to enter abandoned mine sites and affected land to carry out rehabilitation work funded from the Fund, subject to notice and consent requirements on private and pastoral leased land (s 10).

• Power to require information and produce records: The CEO may direct persons under s 29 to provide information and records and may examine and copy records (s 29(1)(a)-(c)).

• Discretionary waivers and refunds: The CEO may waive a penalty amount in whole or in part if there are good reasons (s 26(2)). The CEO must cause refunds where an excess has been paid following reassessment or objection (ss 19(3), 22(4), 23(2)(b)).

Other statutory rights and constraints

• Delegation: The CEO may delegate any power or duty under the Act to a departmental public service officer, except the power to declare abandoned mine sites (s 34(1)-(2)). Delegations must be written and signed (s 34(2)). Delegates cannot sub‑delegate (s 34(3)).

• Confidentiality: Persons engaged in the administration of the Act must not disclose information obtained in performance of functions except for specified purposes (s 35). Breach attracts a fine of $20,000 (s 35).

• Protection from tort liability: Persons acting in good faith under the Act are protected from actions in tort, though the State remains liable for any associated State liability (s 36).

These duties and rights create a regime where holders face reporting, payment and accuracy obligations with significant monetary penalties, while the CEO is vested with assessment, enforcement and site‑declaration powers together with obligations to issue notices, consider objections and provide minimum procedural safeguards such as review rights to the State Administrative Tribunal.

The Act establishes a mix of civil recovery mechanisms, administrative penalties, criminal fines for certain breaches, compulsion with limited immunity, and mechanisms for waiver and review. Enforcement is primarily through the CEO’s powers and through recovery in the courts.

Monetary fines and penalty amounts

• Fixed monetary fines: The Act prescribes criminal penalties in the form of fines for particular offences. Failure to provide assessment information under s 15(2) or to comply with a direction under s 29(1) without reasonable excuse attracts a penalty of a fine of $20,000 (ss 15(2), 29(4)). Providing false or misleading information in compliance with s 15(2), a direction under s 29(1) or any other requirement under the Act attracts a fine of $20,000 (s 31(1)). Breach of confidentiality under s 35 carries a fine of $20,000 (s 35). These statutory penalties are expressed as fines, which under the usual operation of state law may be enforceable criminal sanctions.

• Penalty amount for late payment: If a levy amount remains unpaid after the due date, the person liable is liable to pay, in addition to the levy, an amount calculated at the prescribed rate on the unpaid levy amount (s 26(1)). The amount is recoverable as a debt to the State (s 27). The CEO retains discretion to waive a penalty amount in whole or in part if the CEO considers there are good reasons (s 26(2)).

Recovery powers

• Recovery as debt: Levy amounts that remain unpaid after the due date and penalty amounts that remain unpaid may be recovered by the CEO in a court of competent jurisdiction as debts due to the State (s 27(a)-(b)). Similarly, amounts payable under s 9A for Fund money applied to rehabilitate abandoned land may be recovered by the CEO in court as a debt due to the State (s 9A(4)). Recovery as a debt means the State can pursue civil enforcement mechanisms available to recover contractual or statutory debts.

• Evidentiary presumptions: A levy notice or copy is admissible in proceedings under the Act and, absent proof to the contrary, is proof of the making of the assessment, the levy amount, the identity of the person liable, the due date and any other fact stated in the notice (s 32). This evidentiary deeming reduces the State’s initial proof burden in enforcement proceedings based on levy notices.

Compulsion, use immunity and offences

• Compulsion: The CEO may direct a person to give information, answer questions, and produce records, and examine and copy the records (s 29(1)(a)-(c)). Failure to comply without reasonable excuse is an offence with a $20,000 fine (s 29(4)).

• Use immunity: Section 30 provides that an individual is not excused from providing incriminating information on the basis that it might incriminate them, but that the information or things directly or indirectly obtained because of it are not admissible in evidence against the individual in civil or criminal proceedings, except for perjury or offences under s 31. This limits the State’s ability to use compelled incriminating material in subsequent proceedings.

• False and misleading information: Section 31 criminalises false or misleading statements made in compliance with reporting or direction obligations, with a $20,000 fine. The inclusion of reckless disregard as a culpable mental element (s 31(1)(b), (d)) widens the potential conduct captured beyond intentional falsehood.

Administrative remedies and avenues for review

• Reassessment and objection process: The CEO may reassess an assessment up to two years after the original assessment (s 18(4)) and must notify persons by reassessment notice (s 19). Persons may object to an assessment or reassessment within 28 days and the CEO must decide within 28 days (ss 20-21). Where the CEO’s objection decision adjusts the levy, the CEO must issue an adjustment notice and, where an overpayment has occurred, must cause a refund (ss 22-23).

• Tribunal review: A person dissatisfied with a decision of the CEO on an objection may apply to the State Administrative Tribunal for review within 42 days after notice of the decision (s 24). The Tribunal may extend time for an application (s 24(3)).

Operational enforcement discretion

• Estimation power: If assessment information is not provided or is inadequate, the CEO may make an assessment based on his or her estimate (s 16(2)). Estimation creates an enforcement backstop to ensure the levy can be assessed despite non‑cooperation, although estimation may generate disputes that are later subject to objection.

• Waiver power: The CEO may waive penalty amounts in the CEO’s discretion if there are good reasons (s 26(2)). That power introduces administrative mitigation and case‑by‑case relief.

Other enforcement‑adjacent provisions

• Delegation: The CEO may delegate powers to departmental officers, which enables administrative scaling of enforcement (s 34). The CEO cannot delegate the power to declare abandoned mine sites (s 34(1)).

• Confidentiality and protection from liability: Confidentiality breaches attract fines (s 35). Conversely, persons acting in good faith under this Act are protected from tort liability (s 36), which reduces the risk of civil suits against State agents conducting rehabilitation work.

The enforcement regime thus combines criminal fines for non‑compliance with reporting and honesty obligations, civil recovery powers for unpaid levies and reimbursements, compulsion with limited evidentiary immunity, and administrative processes for reassessment, objection and tribunal review. The CEO wields significant discretion in assessment, estimation and waiver, subject to statutory safeguards such as objections and Tribunal review.

The Act is drafted to operate alongside and reference other Western Australian statutes and to leave specific mechanics to regulations. The text itself cross‑refers to the Mining Act 1978, the Financial Management Act 2006 and other instruments, and it contains mechanisms for interaction with regulatory instruments.

Interaction with the Mining Act 1978

• Definitions and scope. The Act imports the meaning of “land” and “mining operations” from the Mining Act 1978 s 8(1) (s 3: “land has the meaning given in the Mining Act 1978 section 8(1)”; “mining operations has the meaning given in the Mining Act 1978 section 8(1)”). This anchors the Fund Act’s territorial and activity scope to the pre‑existing Mining Act definitions.

• Mining tenements and tenement classes. Section 4 defines mining authorisation for the purposes of this Act and refers back to the Mining Act’s concepts of mining tenement and to Government agreements where relevant. It excludes, or makes subject to prescription, tenements granted or held pursuant to Government agreements unless prescribed (s 4(2)(a)-(e)). This means the operation of the levy across particular tenement types depends on how the Mining Act’s categories and the regulations interact.

• Entry and private land. The Act’s provisions on entry for rehabilitation work (s 10) reference private land and pastoral or diversification leases as defined in the Mining Act 1978 and the Land Administration Act 1997 respectively (s 10(4) cross‑references). This creates a coordinated approach to property rights and notice/consent duties.

Interaction with the Financial Management Act 2006

• Agency special purpose account. The Fund is an agency special purpose account under the Financial Management Act 2006 s 16 (s 5(2)). That designation subjects the Fund to the financial management, reporting and appropriation architecture established by the Financial Management Act, including accounting, investment and audit regimes that apply to agency accounts. Section 8’s restriction that investment income may be used for additional purposes intersects with ordinary public sector rules on appropriation and account use.

Interaction with Government Agreements Act and other Acts

• Government agreements. Section 4(1) references the Government Agreements Act 1979 definition of “Government agreement” and uses that concept to determine which tenements are mining authorisations for levy purposes. The regulations may prescribe classes of tenements even when they are granted under Government agreements (s 4(2)), so the levy’s application can be tailored to particular contract‑based tenements.

• Land Administration Act 1997. Section 10(4)(b) refers to pastoral leases and diversification leases as defined in the Land Administration Act 1997 s 3(1). Where rehabilitation entry involves such leases, the Act imposes notice or consent requirements aligned to the rights in the Land Administration Act.

Regulatory interface

• Regulations set levy basis and procedural detail. Section 37 provides the Governor with power to make regulations prescribing all matters required or permitted by the Act and anything necessary or convenient to give effect to the Act. Subsection 37(2)(a) specifically contemplates that regulations may prescribe the basis and factors for working out levy amounts. This places substantial detail in subordinate legislation and requires practitioners to consult both the Act and the regulations to understand levy mechanics, calculation methods, prescribed days for liability, prescribed classes of mining authorisations, and prescribed forms of assessment information.

Interplay with administrative law and tribunals

• Review to the State Administrative Tribunal. Decisions of the CEO on objections are reviewable to the State Administrative Tribunal under s 24. That interacts with State administrative law principles and tribunal practice, including procedural fairness doctrines and remedial powers available to the Tribunal. Tribunal decisions may then interact with court review remedies such as judicial review if required, although the Act itself provides the express statutory review route to the Tribunal for objections.

Criminal and civil enforcement regimes

• Offences and fines operate within the State criminal law framework. The Act’s specified fines and offences will be prosecuted and enforced under the State’s criminal procedure and enforcement laws. Civil recovery of debts to the State (s 27, s 9A(4)) is undertaken in courts of competent jurisdiction, using the civil procedural and judgment enforcement systems.

Financial management and public accountability

• Fund accounting and reporting. Because the Fund is an agency special purpose account under the Financial Management Act 2006 (s 5(2)), the Fund’s accounts, investment income, and permitted uses will be subject to the Financial Management Act’s requirements for public sector financial governance, which governs audit, investment policy and reporting to Parliament. Section 8’s distinctions between principal balance uses and investment income uses are operationalised through those financial governance arrangements.

Consequential amendment to the Constitution Acts Amendment Act 1899

• Part 6 inserts the Mining Rehabilitation Advisory Panel into Schedule V Part 3 of the Constitution Acts Amendment Act 1899, formalising the Panel’s recognition alongside other advisory bodies (s 39). This is chiefly a housekeeping provision but evidences inter‑statute coordination.

In sum, the Act is designed to work within the existing regulatory edifice: it relies on the Mining Act for key definitions and for tenement architecture, on the Financial Management Act for account classification and financial governance, on the Land Administration Act for pastoral lease interactions, and on regulations to fill in levy mechanics. For practitioners, understanding the Fund requires reading the Act alongside the Mining Act and the regulations that prescribe levy amounts, prescribed days and assessment information.

The Act has been amended since enactment. The compilation table and the textual amendment notes inside the Act record the principal amendments and their commencement dates. The following are the amendments recorded in the Act text and the compilation table.

Original enactment and commencement

• Mining Rehabilitation Fund Act 2012 (33 of 2012), assented 5 November 2012. Sections 1 and 2 (short title and commencement) commenced on 5 November 2012, while the remainder of the Act came into operation by proclamation on 1 July 2013 (s 2; compilation table).

Mining Rehabilitation Fund Amendment Act 2012

• Mining Rehabilitation Fund Amendment Act 2012 (34 of 2012) is listed in the compilation table, assented 5 November 2012 and with the substantive provisions commencing on 1 July 2013. The Act text notes that s 11 was amended by No. 34 of 2012 s 4 (s 11 amended: No. 34 of 2012 s. 4). The annotation indicates that the statutory imposition language in s 11 was adjusted by that amendment. Practitioners should consult the amendment text in the amending Act to see the precise drafting change implemented by s 4 of No. 34 of 2012.

Mining Legislation Amendment Act 2014

• The Mining Legislation Amendment Act 2014 (No. 4 of 2014) made a series of amendments. The Act contains marginal notes indicating specific sections amended or inserted by No. 4 of 2014:

  • Section 7 was amended by No. 4 of 2014 s 10 (see s 7 annotation: "Section 7 amended: No. 4 of 2014 s. 10"). That amendment added subsection (aa) to s 7, which now credits to the Fund "any amount paid or recovered under section 9A", thereby making recovered amounts from persons liable for rehabilitation costs a source of Fund receipts.

  • Section 9A (Liability for rehabilitation costs) was inserted by No. 4 of 2014 s 11 (annotation: "Section 9A inserted: No. 4 of 2014 s. 11"). This is a substantive policy change creating joint and several liability to reimburse the Fund where Fund money is applied to rehabilitate land that is an abandoned mine site, and makes those amounts recoverable by the CEO as a debt to the State (s 9A(3)-(4)).

  • Section 13 was amended by No. 4 of 2014 s 12 (annotation: "Section 13 amended: No. 4 of 2014 s. 12"). That amendment likely added or clarified CEO publication powers concerning how levy amounts are worked out (s 13(2)).

  • Section 15 was amended by No. 4 of 2014 s 13 (annotation: "Section 15 amended: No. 4 of 2014 s. 13"). The textual effect includes the CEO’s power to make assessment information public (s 15(3)) and the specific $20,000 penalty for failure to provide assessment information (s 15(2)).

  • Section 37A was inserted by No. 4 of 2014 s 14 (annotation: "Section 37A inserted: No. 4 of 2014 s. 14"). This provision permits multiple holders of a mining authorisation to nominate a single address for service and creates rules for giving notice to two or more holders (s 37A).

The Mining Legislation Amendment Act 2014 amendments came into operation on 30 June 2014 (compilation table).

Land and Public Works Legislation Amendment Act 2023

• The Land and Public Works Legislation Amendment Act 2023 (No. 4 of 2023) effected at least one amendment recorded in the Act: s 10 was amended, annotated as "Section 10 amended: No. 4 of 2023 s. 137". The compilation table states the Act was assented on 24 March 2023 with the relevant provisions commencing 10 August 2023 (SL 2023/132 cl. 2). The textual change is reflected in s 10(4) as it appears in the compilation, which sets out notice and consent requirements for entry into private land and pastoral/diversification lease land for rehabilitation work. Practitioners should consult the 2023 amending instrument for the exact content of s 137 of No. 4 of 2023.

Other compilation entries

• The compilation table records commencement dates and the acts that amended the original statute. It confirms the main commencement of the principal Act on 1 July 2013, the 2014 amendments on 30 June 2014, and the 2023 amendments on 10 August 2023.

Practical implications of the amendments

• Addition of s 9A in 2014 materially altered the liability landscape by creating a statutory reimbursement claim against persons who were liable to rehabilitate on the declaration day, for Fund money applied to rehabilitate abandoned sites. The same amendment also ensured recoveries under s 9A are credited to the Fund (s 7(aa)).

• The 2014 amendments strengthened transparency and administrative mechanisms through CEO publication powers (ss 13(2), 15(3)) and addressed operational notice mechanics for multiple holders (s 37A).

• The 2023 amendment to s 10 clarified or adjusted the CEO’s power to authorise entry and the notice/consent requirements for private and pastoral lease lands. The exact operational changes are recorded in the 2023 amending Act.

For compliance, practitioners must refer to the consolidated Act text and the amending Acts to confirm the current statutory text, and must consult the regulations (s 37) that prescribe levy calculation, prescribed days and other operational details. The compilation table provides dates and sources to track when changes took effect.

The Act’s text does not record case law or judicial decisions. The statute itself includes no named cases, nor does it summarise any litigation. The Act provides statutory mechanisms that create potential litigation pathways, but any litigation history must be identified from external legal databases and court records rather than from the Act’s text.

From the Act’s provisions it is possible to identify the kinds of disputes likely to produce litigation:

• Recovery actions in the courts for unpaid levies, unpaid penalty amounts and amounts recoverable under s 9A as debts due to the State (ss 27, 9A(4)). Such actions would typically proceed in civil court.

• Administrative law challenges: decisions by the CEO on objections under Part 4 (ss 20-21) are subject to review by the State Administrative Tribunal (s 24). Tribunal determinations could create litigation records and possible judicial review applications in appropriate circumstances.

• Disputes about the validity or operation of a Gazette declaration under s 9 could generate judicial review proceedings if affected parties contend the CEO’s decision was unlawful, procedurally unfair, or arrived at without jurisdiction.

• Prosecutions for offences such as failing to provide assessment information, non‑compliance with directions to produce records, or providing false or misleading information (ss 15(2), 29(4), 31(1)) would appear in criminal or regulatory enforcement records.

• Property or trespass disputes: entry authorised under s 10 to private land or pastoral leases could generate civil claims in specific fact patterns, although s 36 provides protection from tort claims for persons acting in good faith under the Act while preserving any State liability (s 36(1)-(3)).

If you require an authoritative litigation history , for example, reported decisions in the State Administrative Tribunal or state courts that interpret assessment powers, s 9 declarations, s 9A reimbursement claims, or the evidentiary operation of levy notices under s 32 , the Act provides the legal routes but not the decisions. To assemble litigation history one must search judgment databases (for example, AustLII, JADE, or Westlaw AU), tribunal records, and court registries for proceedings invoking this Act or its provisions. The Act itself provides the doctrinal hooks that litigation would attach to: assessment, reassessment and estimation powers (ss 14-16, 18), objection and review (ss 20-24), recovery as debt (s 27), s 9A reimbursement claims, and compulsion/use immunity (s 30).

Because the Act enables the CEO to publish assessment information and the method of calculating levy amounts (ss 13(2), 15(3)), some disputes may also turn on whether the CEO followed published methodology and procedural fairness obligations when issuing assessments or reassessments. Again, these outcomes exist in external caselaw, not in the statutory text. For precise litigation precedents and outcomes, consult the relevant case law repositories.

This section highlights practical traps, drafting asymmetries and enforcement levers in the Act that can create commercial and compliance surprises when read closely with the statutory text.

1. Levy liability is pegged to the holder on a prescribed day, not necessarily the date of the assessment notice. Section 12 states the person liable is the holder on the day prescribed for the purposes of s 15(2) in that year. Practitioners must identify the “prescribed day” in the regulations. Changes in ownership around the prescribed day can determine who is liable for the annual levy even if a different party received the assessment notice.

2. The regulations determine levy amount mechanics. Section 13(1) makes the amount of levy payable the amount specified in, or worked out in accordance with, the regulations. That means the effective levy base, per‑authorisation rates, classification of tenements and calculation factors may be in subordinate legislation. Practitioners must read the regulations alongside the Act; the Act alone does not disclose the levy formula.

3. CEO estimation power can create provisional liabilities and cashflow pressure. Under s 16(2) the CEO may assess on the basis of the CEO’s estimate where assessment information is missing or inadequate. An estimated assessment becomes a levy notice and is subject to payment timelines (s 17). The holder’s ability to contest an estimate is via objection and then tribunal review, but the levy remains payable and collection actions can follow, and liability to pay is not suspended by making an objection (s 28). This can generate immediate cashflow obligations even where the assessment is disputed.

4. Liability to pay is not stayed by an objection. Section 28 expressly provides that a person’s liability to pay a levy amount or penalty amount is not affected by the making of an objection. That means holders may be required to pay disputed sums and then pursue refunds following successful objections or reassessments (see ss 19(3), 22(4), 23(2)(b)). Financial planning should account for potential interim payments followed by refunds.

5. Reassessments have a two‑year limitation but can be made whether or not payment has been made. Section 18(4) limits reassessments to within two years of the original assessment, but s 18(3) clarifies a reassessment can be made irrespective of whether the levy amount has been paid. This means past assessments can be reopened within two years, creating a backward‑looking adjustment window. Practically, retain records for at least two years to enable objection and appeal.

6. Joint and several reimbursement liability under s 9A is triggered by Fund use and declared abandonment. Where Fund money is applied to rehabilitate an abandoned mine site affected by mining operations, any person who, on the declaration day, was liable under the authorisation to rehabilitate the land is jointly and severally liable to repay the Fund the amount applied (s 9A(3)). Key points: the trigger is the CEO’s decision to use Fund money for rehabilitation and the fixed reference date is “declaration day”. A person who had ceased operations before declaration day may nonetheless be liable if on declaration day they were the person with the rehabilitation obligation. This creates retrospective reimbursement risk tied to the timing of declarations. Section 7(aa) also channels recoveries under s 9A back into the Fund.

7. Fund money primary use is restricted. Section 8(1) restricts money standing to the credit of the Fund to be applied to rehabilitate abandoned mine sites that are, or have been, the subject of mining authorisations in respect of which the levy is payable, and related affected land, and to refund amounts required under Part 4. Only investment income is available for broader rehabilitation and administration purposes (s 8(2)). The practical effect is that Fund principal is ring‑fenced for eligible sites tied to the levy base, and administrators must rely on investment income to pay for administration or for rehabilitation of other sites (s 8(2)(a)-(d)).

8. Compulsion with limited immunity couples with a false‑information offence. The CEO can compel production of records and information under s 29 and compelled incriminating material is protected from use in civil or criminal proceedings under s 30, except for perjury or offences under s 31 (false or misleading information). Section 31 makes it an offence to provide false or misleading information with a $20,000 fine. This combination means an individual compelled to give evidence cannot rely on privilege to refuse, yet material cannot be used against them except in limited circumstances , and providing false information remains separately criminal.

9. CEO discretion and limited non‑delegable powers. The CEO has broad assessment, reassessment, publication and declaration powers and may delegate many powers to departmental officers (s 34), but not the power to declare abandoned mine sites under s 9(1) and (4). That concentrates strategic decision rights with the CEO. Delegations are written instruments and cannot be sub‑delegated (s 34(2)-(3)). Practitioners should note that delegations can affect who in the department carries out operational assessments and enforcement.

10. Publication of assessment information may have commercial consequences. The CEO may make assessment methodology and assessment information public (ss 13(2), 15(3)). This could reveal company‑specific data if the CEO decides to publish it, with commercial confidentiality implications. However, s 35 imposes confidentiality obligations on persons engaged in administration of the Act and criminalises improper disclosure by those persons (s 35). The CEO’s power to publish assessment information to the public is explicit and therefore requires vigilance by holders about the nature of information provided.

11. Multiple holders and service of notices. Section 37A allows multiple holders to nominate a single address for service when providing assessment information; absent nomination, a notice may be given to one holder and treated as effective for all. This simplifies service mechanics but means that co‑holders must coordinate to ensure a nominated address is monitored for notices, as a notice given to one may bind all.

12. Administrative review timeline traps. Objecting requires timely action: 28 days to object from notice, the CEO has 28 days to determine, and Tribunal review must be lodged within 42 days after notification of the CEO decision (ss 20(2), 21(1), 24(2)). Delay can forfeit review rights; extensions are available but require showing reasonable grounds (ss 20(3), 24(3)).

These provisions create a regime with immediate administrative levers (estimation, compulsion and recovery) that can pressure holders to pay and then litigate, while the Act also creates refund and review routes. Careful recordkeeping, early engagement on assessments and clear transfer warranties on tenement sales are practical mitigations.

This section sets out actionable compliance steps tailored to holders of mining authorisations, their advisers, landowners likely to be affected by rehabilitation works, and departmental administrators. The compliance tasks are directly tied to statutory duties and timings in the Act.

1. Identify whether a tenement or entitlement is a “mining authorisation” for levy purposes

• Review s 4 to determine whether a tenement counts as a mining authorisation. Consider whether the tenement is granted or held pursuant to a Government agreement, and whether regulations have prescribed classes to be included or excluded. Consult current regulations to determine whether specific classes of tenements are prescribed.

• For clients acquiring or disposing of tenements, contractual allocation of levy liabilities should reflect the statutory rule in s 12 that liability in a year is the holder on the prescribed day. Insert clear transfer warranties and indemnities tied to the prescribed day used for liability, and confirm the prescribed day in the regulations.

2. Establish internal processes to provide assessment information and to monitor regulatory changes

• Create a compliance calendar keyed to the “prescribed day” and the prescribed day for s 15(2) reporting. The holder must provide assessment information on or before the prescribed day in the form approved by the CEO (s 15(2)). Non‑compliance attracts a $20,000 fine.

• Ensure the nominated form and manner are used. The CEO may approve form and manner and may publish assessment information (s 15(2)-(3)). If more than one holder exists, consider nominating a single address under s 37A(2) but ensure the nominated address is actively monitored.

• Monitor regulations for changes to levy calculation, prescribed days, prescribed classes, and reporting requirements (s 37). Regulatory changes can materially alter levy amounts and the timing of liability.

3. Maintain accurate, retrievable records aligned to the reassessment window

• Because the CEO may reassess within two years of the original assessment (s 18(4)), retain records that support any assessment for at least two years. Records include production and delivery logs, financial records, production data and any documentation supporting declared cessation of mining operations.

• Ensure records are producible in the form specified by s 29 and that record‑keeping systems enable timely production in the formats the CEO may require. Failure to comply with production directions without reasonable excuse attracts a $20,000 fine (s 29(4)).

4. Prepare for the possibility of estimated assessments and for the obligation to pay pending dispute

• Because the CEO may estimate where information is missing or inadequate (s 16(2)), have documentation ready to challenge an estimate promptly by objection (s 20), but be prepared that liability to pay is not stayed by an objection (s 28). Cashflow planning should allow for payment and for seeking refunds following successful objections or reassessments (ss 19(3), 22(4), 23(2)(b)).

• If an estimated assessment appears incorrect, object in writing within 28 days and prepare a full evidentiary file to support reassessment, including production of records requested under s 29.

5. Meet honesty obligations and manage exposure to s 31

• Ensure statements and information provided under s 15, s 29, or any other requirement under the Act are accurate and not misleading in any material particular. Section 31 criminalises false or misleading statements with a $20,000 fine and includes reckless disregard as culpable conduct.

• Train personnel responsible for preparing assessment information and disclosures in the legal standard and record sign‑offs to demonstrate due diligence. Where statutory declarations are required by direction (s 29(2)(c)(iv)), ensure authorised officers execute them appropriately.

6. Manage risk of retrospective reimbursement under s 9A

• For clients with closed or care‑and‑maintenance mines, map the rehabilitation obligations under the mining authorisations and identify who would have been “liable to comply with an obligation requiring the rehabilitation of the land” on any potential future declaration day. Section 9A(3) makes those persons jointly and severally liable to reimburse the Fund where it is used to fund rehabilitation.

• In disposals and transfers, allocate liability for post‑declaration risk through clear contractual indemnities and consider requiring evidence of compliance with rehabilitation obligations as part of completion. Where possible, seek warranties and insurance for latent liabilities that might arise if the CEO declares a site abandoned in the future.

7. Engage early with the CEO and the advisory panel where appropriate

• Use the channels provided by the CEO to seek clarity on assessment methodology; s 13(2) authorises the CEO to make available particulars of how a levy amount is worked out. Early engagement can clarify assumptions that the CEO will employ in estimates.

• Consider making submissions to the Mining Rehabilitation Advisory Panel when the CEO seeks advice on matters relating to the administration of the Act (s 33). While the Panel is appointed by the CEO (s 33(2)) and its functions are advisory (s 33(3)), engagement can reduce administrative surprises.

8. Prepare for entry and rehabilitation activities on private or leased land

• The Act permits authorised persons to enter abandoned mine sites and affected land for rehabilitation funded from the Fund (s 10). Where entry may be onto private land or pastoral/diversification leases, ensure owners or leaseholders are given reasonable notice or their consent is obtained as required by s 10(4). Record the notice steps taken because a notice must specify the purpose and successive entries are covered by the notice (s 10(5)).

• Owners and leaseholders should assess and, if needed, negotiate terms for access including indemnities, compensation, timing, and remediation standards where the CEO authorises entry.

9. Use objection and review rights effectively

• If dissatisfied with an assessment, lodge an objection with the CEO in writing within 28 days under s 20, ensuring the objection identifies the person, sets out the grounds, attaches the relevant notice and complies with any prescribed requirements. Keep copies of all supporting documents.

• If the CEO’s determination is unsatisfactory, lodge an application to the State Administrative Tribunal within 42 days after notice of the decision (s 24(2)). Preserve rights to an extension by planning timely filing, but note the Tribunal may extend time upon showing reasonable grounds (s 24(3)).

10. Financial controls for levy payment and refunds

• Implement internal controls to ensure timely payment of levy amounts on the due date specified in the levy notice (s 25). Late payment attracts a prescribed rate penalty (s 26(1)). The CEO has power to waive penalty amounts for good reasons (s 26(2)) so record any extenuating circumstances and apply for waivers early.

• Track refunds due under s 19(3), s 22(4) and s 23(2) and reconcile refund processes with the Fund’s published statements in coordination with the department.

11. Confidentiality and publication risks

• Material provided to the CEO may be published under ss 13(2) and 15(3). Where commercially sensitive information must be provided, identify what will be made public and consider redaction strategies in discussions with the CEO. Note that persons engaged in the performance of functions must not disclose information improperly, and breaches attract a fine (s 35).

12. Delegation and points of contact

• Where the CEO delegates functions under s 34, obtain confirmation of the delegate and the written terms of the delegation. Letters and notices should be served according to the nominated address rules under s 37A where multiple holders exist.

In short, compliance requires an integrated approach: (a) confirm statutory capture and prescribed days via regulations; (b) maintain robust records and reporting protocols that align with assessment windows and the two‑year reassessment period; (c) build cashflow buffers for estimated assessments and potential interim payments; (d) negotiate transfer documentation that allocates the declaration‑day risk under s 9A; and (e) engage administratively with the CEO to understand published levy methodologies.