Part 9Miscellaneous

Part 9—Miscellaneous 75A—Opal mining registrar (1) There is to be an Opal Mining Registrar and other opal mining registrars. (2) The Opal Mining Registrar and the opal mining registrars are to be Public Service employees. (3) The Opal Mining Registrar may delegate a power or function of the Opal Mining Registrar to another opal mining registrar. (4) If the terms of an instrument of delegation allows for subdelegation, the delegate may subdelegate the power or function in accordance with the instrument (and a reference in this section to a delegation will then extend to any such subdelegation). (5) A delegation under this section— (a) may be absolute or conditional; and (b) may be made— (i) to a specified person; or (ii) to a person for the time being holding or acting in a specified office or position; and (iii) does not derogate from the power of the delegator to act in any matter; and (iv) is revocable at will by the delegator. (6) An opal mining registrar may be assigned to act as the Opal Mining Registrar— (a) during a vacancy in the office of Opal Mining Registrar; or (b) when the Opal Mining Registrar is absent from, or unable to discharge, official duties. 76—Opal mining register (1) The Opal Mining Registrar will keep a register (the opal mining register). (2) The opal mining register will be a register of— (a) precious stones prospecting permits issued under this Act; and (b) tenements registered under this Act; and (c) agreements registered under this Act; and (d) proceedings in the Warden's Court that relate to tenements under this Act; and (e) other instruments or determinations that require registration under this Act or the regulations, and may include any other information the Opal Mining Registrar thinks fit. (3) The Opal Mining Registrar must note in the opal mining register any agreement or instrument registered under the Mining Act that is relevant to the operation of this Act. (4) A person may, on payment of the prescribed fee, inspect the opal mining register during normal office hours. (5) An instrument that requires registration under this Act has no force or effect until it is registered. (6) However, subsection (5) does not apply to— (a) an order or determination of a court; or (b) an order or approval of the Minister, or of an officer acting under this Act; or (c) an instrument of a prescribed class. 77—Appointment of authorised persons (1) The Director may appoint suitable persons to be authorised persons for the purposes of this Act. (2) An appointment may be subject to conditions or limitations specified by the Director. (3) A person appointed under this section must be issued with an identity card— (a) containing a photograph of the person; and (b) stating any limitations on the authorised person's authority. (4) An authorised person must, at the request of a person in relation to whom the authorised person intends to exercise a power under this Act, produce for the inspection of the person his or her identity card. (5) An authorised person may, as may reasonably be required in connection with the administration, operation or enforcement of this Act— (a) enter, search, inspect and examine any premises, land or vehicle that has been or is intended to be, used for, or in connection with, any operations or activity regulated by this Act and, where necessary for the purpose, break into or open a part of, or anything in, the premises, land or vehicle; (b) inspect or examine anything; (c) seize and retain specimens or samples; (d) require a person to produce documents (which may include a written record reproducing in an understandable form information stored by computer, microfilm or other process); (e) examine, copy or take extracts from a document or information so produced or require a person to provide a copy of the document or information; (f) require a person to answer questions; (g) give directions. (6) In the exercise of powers under this section an authorised person may be assisted by such persons as may be necessary or desirable in the circumstances. (7) A person exercising a power under this section must not unnecessarily impede or obstruct the lawful use or enjoyment of the land by an owner of the land. (8) Subject to the requirements of subsection (7), the owner or occupier of land must give an authorised person or a person assisting an authorised person such assistance as is reasonably required for the effective exercise of a power conferred by this section. Maximum penalty: $10 000 or imprisonment for 6 months. (9) A person who— (a) without reasonable excuse, hinders or obstructs an authorised person, or a person assisting an authorised person, in the exercise of powers under this Act; or (b) uses abusive, threatening or insulting language to an authorised person, or a person assisting an authorised person; or (c) without reasonable excuse, fails to obey a requirement or direction of an authorised person under this Act; or (d) without reasonable excuse, fails to answer, to the best of the person's knowledge, information and belief, a question put by an authorised person; or (e) falsely represents, by words or conduct, that he or she is an authorised person, Maximum penalty: $10 000 or imprisonment for 6 months. (10) It is not an excuse for a natural person to refuse to answer a question or to provide information under a preceding subsection on the ground that to do so might tend to incriminate the person or make the person liable to a penalty. (11) However, if compliance with a requirement to answer a question or to provide information might tend to incriminate the person or make the person liable to a penalty, then— (a) in the case of a person who is required to provide information, including by the production of a document—the fact of the provision of the information or document (as distinct from the information itself or the contents of a document); or (b) in any other case—the answer given in compliance with the requirement, 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 the making of a false or misleading statement). (12) An authorised person may require a person who the authorised officer reasonably suspects has committed, is committing or is about to commit, a contravention of this Act to state the person's full name and usual place of residence and to produce evidence of the person's identity. (13) A person of whom a requirement is made under subsection (12) must comply with the requirement. (14) An authorised person may only exercise a power under subsection (5)(a) in respect of premises on the authority of a warrant issued by a magistrate (including as a warden) or justice. (15) However, a warrant is not required to exercise a power under subsection (5)(a) in relation to non-residential premises if— (a) the premises are used by a tenement holder for, or in connection with, operations under this Act; or (b) the authorised person has reason to believe that, in the circumstances, urgent action is required. (16) A warrant may not be issued unless the magistrate, warden or justice (as the case may be) is satisfied that the warrant is reasonably required in the circumstances. (17) An application for the issue of a warrant— (a) may be made personally, electronically or by telephone; and (b) must be made in accordance with any procedures prescribed by the regulations. 78—Delegations (1) The Director may delegate a power or function under this Act— (a) to a specified person or body; or (b) to a person occupying a specified office or position. (2) A delegation— (a) may be made subject to conditions and limitations specified in the instrument of delegation; and (b) if the instrument of delegation so provides, may be further delegated by the delegate; and (c) is revocable at will and does not prevent the Director from acting personally in a matter. 79—Exemptions (1) If the Minister is satisfied that it is justifiable to do so, the Minister may— (a) exempt the holder of a tenement from the obligation to comply with a term or condition of the tenement; or (b) exempt the holder of a tenement from the obligation to comply with a provision of this Act (except Part 7). (2) An exemption may be granted on conditions determined by the Minister. (3) An exemption will remain in force for a period specified by the Minister or, if no period is specified, until revoked by the Minister. (4) The Minister may, at any time, vary, revoke or impose a condition of an exemption. (5) A person who contravenes or fails to comply with a condition imposed under this section is guilty of an offence. (6) An exemption may not be granted under this section so as to discriminate against the holders of native title in land. 80—Passing of property (1) The property in precious stones is vested in the Crown. (2) However, subject to this Act, the Mining Act, and other laws, the property in precious stones will pass to the person by whom the precious stones are lawfully mined on recovery of the precious stones. 81—Acts of officers, employees and agents For the purposes of this Act, an act or default of an officer, employee or agent of a person who is the holder of a permit or tenement under this Act, or who is otherwise engaged in mining operations, will be taken to be an act or default of the person unless it is proved that the officer, employee or agent acted outside the scope of his or her actual, usual and ostensible authority. 82—Offences (1) A person who— (a) mines for precious stones; or (b) sells, uses or disposes of precious stones recovered in the course of mining operations, without being duly authorised by or under this Act or the Mining Act is guilty of an offence. Maximum penalty: $150 000 or imprisonment for 2 years. (2) A person who is on land comprised in a tenement for the purpose of mining in contravention of subsection (1) is guilty of an offence and liable to the same penalty as prescribed by that subsection. (3) A person must not, without lawful excuse, obstruct or hinder the holder of a permit or tenement under this Act in the reasonable exercise of a right conferred by this Act. (4) A person who— (a) by a false statement or information, obtains or attempts to obtain a permit or tenement under this Act; or (b) forges or fraudulently alters or uses a permit or tenement under this Act, (5) A person who, in furnishing information for the purposes of this Act, makes a statement that is false or misleading in a material particular is guilty of an offence. (6) A person who contravenes or fails to comply with a provision of this Act (other than a provision to which an administrative penalty applies) is guilty of an offence and, if no penalty is specifically provided, is liable to a fine not exceeding $10 000. 83—Proceedings for offences (1) Offences constituted by this Act lie within the jurisdiction of the Warden's Court. (2) A prosecution for an offence against this Act that is commenced in the Warden's Court will be heard and determined summarily. (3) The Warden's Court will, for the purposes of proceedings for an offence against this Act, have the powers and authorities of a court of summary jurisdiction, and such other powers and authorities as may be conferred by regulation. (4) A prosecution for an offence against this Act may be commenced at any time within two years after the date of the alleged commission of the offence or, with the authorisation of the Attorney-General, at a later time within three years after the date of the alleged commission of the offence. (5) An apparently genuine document purporting to be signed by the Attorney-General and to authorise the commencement of proceedings for an offence against this Act will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation. (6) The conferral of jurisdiction on the Warden's Court in respect of offences does not limit the jurisdiction of any other court. 84—Prohibition orders (1) The Director may apply to the Warden's Court for an order prohibiting a person from entering or remaining on a precious stones field. (2) The Warden's Court may make an order against a person under this section if satisfied that the order is necessary to restore, or to safeguard, good order on a precious stones field. (3) An order may be made in the absence of the person if the Warden's Court is satisfied that a copy of the application was served on the person and the person was given reasonable notice of the hearing of the matter. (4) An order under this section must be served on the person personally and is not binding until it has been so served. (5) A person bound by an order who enters, or remains on, a precious stones field in contravention of the order is guilty of an offence. Maximum penalty: $150 000 or imprisonment for 2 years. (6) The Warden's Court may revoke an order under this section on application— (a) by the Director; or (b) by the person bound by the order. 85—Power of Opal Mining Registrar to require pegs be removed If the Opal Mining Registrar is satisfied on reasonable grounds that an area has been pegged out in contravention of this Act or otherwise than in accordance with an authority conferred by this Act, the Opal Mining Registrar may cause the pegs to be removed. 86—Compliance orders (1) If a person carries out mining operations without the authority required by this Act, the ERD Court may, on application by the Director or the owner of the land on which the operations are carried out, make an order (a compliance order) requiring the person (the respondent)— (a) to stop the operations; and (b) if the operations have resulted in damage to land—to take specified action to restore the land to its former condition. (2) Before the Court makes a compliance order it must allow the respondent a reasonable opportunity to be heard on the application. (3) A person against whom a compliance order is made must comply with the order. Maximum penalty: $100 000. 87—Evidentiary provision (1) In proceedings for an offence against this Act, an allegation in a complaint that land referred to in the complaint— (a) comprises, or is within, a precious stones field; or (b) is reserved from the operation of this Act; or (c) is a designated area; or (d) is an exclusion zone; or (e) is exempt land; or (f) is prescribed exempt land, will be taken to be proved in the absence of proof to the contrary. (2) In proceedings, a certificate purporting to be given by the Opal Mining Registrar certifying— (a) as to a matter relating to a permit or tenement under this Act; or (b) as to a matter relating to a notice or requirement under this Act; or (c) that a person named in the certificate was or was not at a specified time the holder of a tenement; or (d) that a specified provision was a term or condition of a specified tenement at a specified time; or (e) that a specified determination, decision, order or requirement was made or given on a specified day; or (f) that at a specified time the Minister, the Director or the Opal Mining Registrar gave notice of any specified matter under or in connection with the operation of this Act; or (g) that at a specified time the Minister, the Director or the Opal Mining Registrar had not received any notice, instrument or other document, or had not received any information of a specified kind; or (h) that at a specified time a specified person was an authorised officer under this Act; or (i) that a particular delegation was in force under this Act at a specified time, constitutes proof, in the absence of proof to the contrary, of the matters so certified. (3) In proceedings a document purporting to be a precious stones prospecting permit or a certificate of registration of a precious stones tenement will be accepted as such in the absence of proof to the contrary. 88—Avoidance of double compensation In determining compensation to be paid to a body or person under this Act, compensation that has been paid to the body or person, or to which the body or person is entitled under other laws, must be taken into account. 89—Disposal of waste (1) In this section— relevant area means— (a) an area pegged out for a precious stones claim; or (b) an area within a registered tenement (and, for the purposes of this paragraph, if a registered precious stones claim is within a registered opal development lease, the relevant area for the claim will be taken to include the area of the lease while the lease is in force). (2) A person must not deposit, or allow to be deposited, soil, overburden or other material from a relevant area, or extend an open cut, beyond the boundaries of a relevant area, without the written authority of an authorised person. (3) If the relevant area is outside a precious stones field, an authorised person must not give an authority under subsection (2) without the written permission of the owner of the land. (4) An authority may be given subject to conditions specified by the authorised person. (5) A person must not contravene or fail to comply with a condition. (6) If a person acts in contravention of subsection (2), or of a condition under subsection (4), an authorised person may, by notice in writing, require the person to take specified action (immediately or within a period specified in the notice) to remedy the situation. (7) A person to whom a notice is addressed under subsection (6) must not, without reasonable excuse, fail to comply with the notice. (8) If the requirements of a notice are not complied with, an authorised person may cause the requirements to be carried out. (9) The Director may recover the costs and expenses reasonably incurred in taking action under subsection (8) from the person who failed to comply with the notice, as a debt. 90—Persons under 18 The obligations imposed by or under this Act are binding on a minor of or above the age of 16 who holds a permit or tenement as if the person were an adult. 92—Land subject to more than one tenement (1) Land must not be simultaneously subject to more than one tenement under this Act. (2) However, subsection (1) does not apply to a precious stones claim within an area of an opal development lease where the holder of the lease is the holder of the claim. 93—Interaction with Mining Act (1) Except where express provision is otherwise made, and subject to this section, this Act does not regulate operations carried out under the authority of a mineral tenement issued under the Mining Act. (2) Subject to this Act and the Mining Act, land may be simultaneously subject to a registered precious stones tenement under this Act and a mineral tenement under the Mining Act— (a) if the holder of the tenement that is first registered (whether under this Act or the Mining Act) gives written approval to the registration of the second tenement; or (b) if the Warden's Court approves the registration of the second tenement (whether under this Act or the Mining Act). (3) In a situation referred to in subsection (2), the holders of the respective tenements must, subject to maintaining reasonable efficiencies in the conduct of their own operations, and any order of the Warden's Court, take all steps that are reasonably practicable to minimise interference with each others' operations. Maximum penalty: $20 000. (4) The holders of the respective tenements may agree to the modification of their rights under this Act or the Mining Act (or both) and, subject to an order of the Warden's Court (made on the application of any interested person), that agreement will have effect according to its terms. (5) The Warden's Court may, on the application of the holder of a tenement (whether under this Act or the Mining Act), make an order to regulate, restrict or prohibit mining operations where two or more tenements include the same land. (6) The holder of a tenement (whether under this Act or the Mining Act) must not contravene or fail to comply with an order of the Warden's Court under this section. 94—Interaction with other Acts (1) This Act does not derogate from the following Acts (as they relate to the conduct of mining operations): (a) the Local Government Act 1934; (b) the Pastoral Land Management and Conservation Act 1989. (2) A person must, in carrying out mining operations under this Act, give proper consideration to the protection of any Aboriginal sites or objects within the meaning of the Aboriginal Heritage Act 1988 that may be affected by those operations. 95—Public roads and access routes (1) The rights conferred by this Act may only be exercised with respect to a public road, street or highway, or a public access route under section 45 of the Pastoral Land Management and Conservation Act 1989, with the written approval of the authority that has control of that road, street, highway or route. (2) However, an approval is not required to peg out an area for a precious stones tenement. 96—Approval of associations (1) The Director may, on the application of an association that represents the interests of mining operators, grant an approval to the association to act as an approved association for the purposes of this Act. (2) The Director may, at any time, by written notice to the association, revoke the approval of an association under this section. (3) If the Director— (a) refuses to grant an approval to an association under subsection (1); or (b) revokes the approval of an association under subsection (2), the association may apply to the Minister for a review of that decision. (4) The Minister may determine the application as the Minister thinks fit and, if the Minister finds in favour of the applicant, grant or preserve the approval (as appropriate). 98—Powers of attorney A person cannot do the following for or on behalf of another (other than a corporation) under a power of attorney: (a) apply for a precious stones prospecting permit; or (b) prospect, or peg out an area for a tenement; or (c) give notice of a pegging; or (d) apply for the registration or renewal of a tenement. 98A—Administrative penalties (1) This section applies to any provision of this Act (or the regulations) at the foot of which the words "Administrative penalty" appear. (2) If a person who is a holder or former holder of a tenement is alleged to have contravened a provision to which this section applies, the Director may, by notice in writing to the person, impose an administrative penalty on the person (and the Director may act under this subsection without prior consultation with the person and without the need to give a warning or any prior notice in relation to the matter). (3) The amount of an administrative penalty is an amount (not exceeding $15 000) prescribed by regulation in relation to the relevant provision. (4) An administrative penalty may be recovered as a debt due to the Crown. (5) If an administrative penalty has been imposed in relation to a particular act or default, the same act or default cannot be made the subject of proceedings for an offence against this Act and if proceedings for an offence against this Act have been brought in relation to a particular act or default, an administrative penalty cannot be imposed for the same act or default. 98B—Penalties payable into Mining Rehabilitation Fund The following are payable into the Mining Rehabilitation Fund established under the Mining Act 1971: (a) penalties payable in respect of offences against this Act; (b) administrative penalties paid under this Act. 99—Regulations (1) The Governor may make regulations that are contemplated by, or are necessary or expedient for the purposes of, this Act. (2) Without limiting the generality of subsection (1), the regulations may— (a) regulate and control the issue of permits, certificates of registration and other instruments under this Act; and (b) prescribe categories of persons who are disqualified from holding a permit or tenement under this Act; and (c) provide for the maintenance and inspection of registers; and (d) regulate, restrict or prohibit specified kinds of operations on land, or land within a specified area, or land of a specified class; and (e) provide that an activity must not be carried out under this Act, or a permit, tenement or other instrument issued under this Act, unless or until a prescribed authority has been consulted and, if the regulations so provide, approved the activity or concurred in the issuing of the permit, tenement or instrument; and (f) require that mining operations be worked with proper diligence, in conformity with the requirements of the regulations, as to the number of personnel, and the nature of machinery, to be employed in carrying out operations and such other matters as may be required in the regulations; and (g) provide for the amalgamation of two or more tenements, or conditions affecting two or more tenements, so that the tenements may be worked as if they constituted a single tenement; and (h) provide for the protection, management, rehabilitation and restoration of land; and (i) restrict or prohibit operations that may cause nuisance or inconvenience to persons in the vicinity of mining operations; and (j) restrict or prohibit operations that may result in pollution or harm to any watercourse, water supply or natural amenity; and (k) prescribe the action that must be taken if a permit, pegging or tenement lapses or is cancelled under this Act, or otherwise ceases to have effect; and (l) provide for the form and service of notices and other documents under this Act; and (m) prescribe fees and charges to be paid in respect of a matter under this Act and provide for the recovery of those fees; and (n) authorise the release or publication of information of a specified kind obtained in the administration of this Act; and (o) prescribed fines (not exceeding $10 000) for contravention of a regulation. (3) The regulations may— (a) refer to or incorporate, wholly or partially and with or without modification, a code, standard or other document prepared or published by a prescribed body, either as in force at the time the regulations are made or as in force from time to time; and (b) be of general or limited application; and (c) make different provision according to the persons, things or circumstances to which they are expressed to apply; and (d) provide that a specified provision of this Act does not apply, or applies with prescribed variations, in any circumstance or situation (or circumstance or situation of a prescribed class) specified by the regulations, subject to any condition to which the regulations are expressed to be subject; and (e) provide that a matter or thing is to be determined, dispensed with, regulated or prohibited according to the discretion of the Minister, the Director, the Opal Mining Registrar or a prescribed authority. (4) The Governor may, by regulation, make provisions of a saving or transitional nature consequent on the amendment of this Act by another Act. (5) A provision made by a regulation under subsection (4) may be in addition to any provision of a saving or transitional nature made by the Act that makes the amendment. (6) A provision made by a regulation under subsection (4) may, if the regulations so provide, take effect from the commencement of the amendment or from a later day. (7) To the extent to which a provision takes effect under subsection (6) from a day earlier than the day of the publication of the regulation in the Gazette, the provision does not operate to the disadvantage of a person by— (a) decreasing the person's rights; or (b) imposing liabilities on the person.