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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales Mining and Petroleum Legislation Amendment Bill 2014 Explanatory note This explanatory note relates to this Bill as introduced into Parliament. This Bill is cognate with the Criminal Assets Recovery Amendment Bill 2014. Overview of Bill The object of this Bill is to amend mining, petroleum and planning laws to address further issues raised in the Independent Commission Against Corruption's reports on the investigations known as Operation Jasper and Operation Acacia. In particular, this Bill: (a) standardises provisions dealing with the basis on which administrative functions affecting mining authorities and petroleum titles may be exercised, and (b) removes the public interest test as a ground on which certain administrative decisions about mining rights and petroleum titles may be made, and replaces it with a test based on whether the applicant or other relevant person is a "fit and proper person", and (c) prevents an application for development consent under the Environmental Planning and Assessment Act 1979 (the Planning Act) to mine coal from being made or determined unless the applicant is the holder of a mining authority for coal on the land (to prevent development consent being used to avoid the mining exploration licence process), and (d) provides that the grant, renewal or transfer of a mining lease or petroleum title can be refused on the ground that the applicant is not a fit and proper person despite planning approval for integrated development, State significant development, State significant infrastructure or a Part 3A project under the Planning Act, and (e) makes it clear that the public interest can be taken into account in deciding whether or not to approve a transitional Part 3A project under the Planning Act, and b2014-014-33.d14 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Explanatory note (f) extends the operation of provisions of the Mining Act 1992 that relate to the conditions of a mining authority so that they will apply to the preserved conditions of the exploration licences cancelled by the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014. The Bill also amends the Planning Act to include notes about the effect of the above amendments and makes a consequential change to the requirements for the content of applications for development consent under that Act. Outline of provisions Clause 1 sets out the name (also called the short title) of the proposed Act. Clause 2 provides for the commencement of the proposed Act on the date of assent to the proposed Act. Schedule 1 Amendment of Mining Act 1992 No 29 Standardisation of basis for making administrative decisions concerning mining rights Schedule 1 [1]-[10] and [12]-[22] standardise provisions about the basis on which administrative functions affecting mining rights may be exercised so that the grounds for taking administrative action must be established to the satisfaction of the decision-maker. Schedule 1 [25] inserts a savings and transitional provision that extends the operation of the amendments to a decision with respect to a matter that was pending on the commencement of the amendments and a decision based on conduct that occurred, or on a matter that arose, before that commencement. Interrelationship between mining laws and planning laws Schedule 1 [23] inserts a section that provides that an application for development consent under the Planning Act for consent to mine for coal cannot be made or determined unless the applicant is the holder of an authority under the Mining Act 1992 that is in force in respect of coal and the land where the mining is proposed to be carried out. The provision also applies to the modification of a development consent. The section provides that a mining lease that is for mining purposes only is not an authority that can be relied on for the purposes of making an application under the Planning Act in compliance with the section. Schedule 1 [25] inserts a savings and transitional provision that extends this amendment to applications for development consent that are pending on the date of assent to the Bill. Schedule 1 [24] inserts (as section 380A (4)) a provision that overrides various provisions of the Planning Act so as to allow the grant, renewal or transfer of a mining lease to be refused on the ground that the Minister is of the opinion that the applicant is not a fit and proper person, even if the mining lease is necessary for the carrying out of State significant development, State significant infrastructure or a transitional Part 3A project or has been approved as integrated development. Schedule 1 [11] inserts a note drawing attention to that new provision in a provision about development consent. Schedule 1 [25] inserts a savings and transitional provision that extends this amendment to development consents already granted. Introduction of "fit and proper person" considerations in making certain decisions about mining rights Schedule 1 [24] omits an existing public interest test (under which the public interest is a relevant ground for making certain decisions about mining rights) and inserts instead a section that provides that certain decisions about mining rights may be made on the ground that, in the opinion of the decision-maker, a relevant person is not a fit and proper person. This does not limit any other Page 2 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Explanatory note ground on which such a decision may be made. The relevant decisions to which the new section applies are as follows: (a) a decision to refuse to grant, transfer or renew a mining right, (b) a decision to cancel a mining right or to suspend operations under a mining right, (c) a decision to restrict operations under a mining right by the imposition or variation of conditions of a mining right. Schedule 1 [25] inserts a savings and transitional provision that extends the operation of the fit and proper person test to a decision with respect to an application or other matter that was pending on the commencement of the amendment and a decision based on conduct that occurred, or on a matter that arose, before that commencement. Application of Act to preserved conditions Schedule 1 [26] and [27] extend provisions of the Act that apply to conditions of an authority to include the preserved conditions of the exploration licences cancelled by the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014. This extends an existing provision provided for the limited application of provisions to those preserved conditions. Schedule 2 Amendment of Environmental Planning and Assessment Act 1979 No 203 Schedule 2 [1]-[11] insert notes into various provisions of the Act to draw attention to the new provisions that will allow a mining lease under the Mining Act 1992 or a production lease under the Petroleum (Onshore) Act 1991 to be refused on the ground that the applicant is not a fit and proper person and that will prevent the making or grant of an application for development consent to mine coal or petroleum unless an appropriate mining authority or petroleum title is held. Schedule 2 [12] makes it clear that the public interest can be taken into account in deciding whether to approve a project under Part 3A of the Act, whether or not the Director-General's report on the project gives consideration to or makes any recommendation about the public interest or any particular aspect of the public interest. Schedule 3 Amendment of Environmental Planning and Assessment Regulation 2000 Schedule 3 amends the requirements for the documents that are required to accompany an application for development consent so that, in the case of development comprising the mining of coal, documentary evidence will be required showing that the applicant holds an authority under the Mining Act 1992 for coal on the land concerned or has the written consent of the holder of such an authority to make the application. Schedule 4 Amendment of Mining Amendment Act 2008 No 19 Schedule 4 removes uncommenced amendments to the Mining Act 1992 concerning the taking into account of environmental performance in decision-making under that Act. Those amendments will become redundant as a result of the amendments made by Schedule 1, to the extent that the new fit and proper person test includes consideration for the conduct of a person, or a body corporate of which the person is a director, under relevant environmental legislation. Page 3 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Explanatory note Schedule 5 Amendment of Petroleum (Onshore) Act 1991 No 84 Schedule 5 [1] and [2] amend provisions that authorise the cancellation or suspension of a petroleum title so that the grounds that need to be established to justify cancellation or suspension are required to be established to the satisfaction of the Minister. Schedule 5 [4] inserts a savings and transitional provision that extends the operation of the amendments to a decision with respect to a matter that was pending on the commencement of the amendments and a decision based on conduct that occurred, or on a matter that arose, before that commencement. Schedule 5 [3] omits an existing public interest test (under which the public interest is a relevant ground for making certain decisions about petroleum titles) and inserts instead a section that provides that certain decisions about petroleum titles may be made on the ground that, in the opinion of the Minister, a relevant person is not a fit and proper person. This does not limit any other ground on which such a decision may be made. The relevant decisions to which the new section applies are as follows: (a) a decision to refuse to grant, renew or transfer a petroleum title, (b) a decision to cancel a petroleum title or to suspend operations under a petroleum title, (c) a decision to restrict operations under a petroleum title by the imposition or variation of conditions of a petroleum title. The new section also provides that it overrides various provisions of the Planning Act so as to allow the grant, renewal or transfer of a petroleum title to be refused on the ground that the Minister is of the opinion that the applicant is not a fit and proper person, even if the petroleum title is necessary for the carrying out of State significant development, State significant infrastructure or a Part 3A project or development that has been approved as integrated development. Schedule 5 [4] inserts a savings and transitional provision that extends the operation of the fit and proper person test to a decision with respect to an application or other matter that was pending on the commencement of the amendment and a decision based on conduct that occurred, or on a matter that arose, before that commencement. Page 4 First print New South Wales Mining and Petroleum Legislation Amendment Bill 2014 Contents Page 1 Name of Act 2 2 Commencement 2 Schedule 1 Amendment of Mining Act 1992 No 29 3 Schedule 2 Amendment of Environmental Planning and Assessment Act 1979 No 203 10 Schedule 3 Amendment of Environmental Planning and Assessment Regulation 2000 12 Schedule 4 Amendment of Mining Amendment Act 2008 No 19 13 Schedule 5 Amendment of Petroleum (Onshore) Act 1991 No 84 14 b2014-014-33.d14 New South Wales Mining and Petroleum Legislation Amendment Bill 2014 No , 2014 A Bill for An Act to amend mining, petroleum and planning laws to make further provision for the grounds for certain administrative decisions affecting mining rights and petroleum titles and the interrelationship between mining and petroleum laws and planning laws; and for other purposes. Mining and Petroleum Legislation Amendment Bill 2014 [NSW] The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Mining and Petroleum Legislation Amendment Act 2014. 3 2 Commencement 4 This Act commences on the date of assent to this Act. 5 Page 2 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 1 Amendment of Mining Act 1992 No 29 Schedule 1 Amendment of Mining Act 1992 No 29 1 [1] Section 22 Power of decision-maker in relation to applications 2 Insert "that the decision-maker is satisfied" before "that the applicant" in section 22 (2) (a). 3 [2] Section 22 (2) (b) 4 Omit "decision-maker reasonably considers". Insert instead "decision-maker is satisfied". 5 [3] Section 23 Power of decision-maker in relation to tenders 6 Insert "that the decision-maker is satisfied" before "that the tenderer" in section 23 (3) (a). 7 [4] Section 23 (3) (b) 8 Omit "decision-maker reasonably considers". Insert instead "decision-maker is satisfied". 9 [5] Section 41 Power of decision-maker in relation to applications 10 Insert "that the decision-maker is satisfied" before "that the applicant" in section 41 (2) (a). 11 [6] Section 41 (2) (b) 12 Omit "decision-maker reasonably considers". Insert instead "decision-maker is satisfied". 13 [7] Section 63 Power of decision-maker in relation to applications 14 Insert "that the decision-maker is satisfied" before "that the applicant" in section 63 (2) (a). 15 [8] Section 63 (2) (b) 16 Omit "decision-maker reasonably considers". Insert instead "decision-maker is satisfied". 17 [9] Section 64 Power of decision-maker in relation to tenders 18 Insert "that the decision-maker is satisfied" before "that the tenderer" in section 64 (3) (a). 19 [10] Section 64 (3) (b) 20 Omit "decision-maker reasonably considers". Insert instead "decision-maker is satisfied". 21 [11] Section 65 Development consents under Environmental Planning and Assessment 22 Act 1979 23 Insert at the end of section 65 (1): 24 Note. Section 380AA prevents an application for development consent to mine coal 25 from being made or granted unless the applicant is the holder of an authority that is in 26 force in respect of coal and the land concerned. 27 [12] Section 114 Power of decision-maker in relation to renewal applications 28 Insert "that the decision-maker is satisfied" before "that the applicant" in 29 section 114 (2) (a). 30 [13] Section 114 (2) (b) 31 Insert "that the decision-maker is satisfied" before "that a person". 32 [14] Section 114 (2) (c) 33 Omit "decision-maker reasonably considers". Insert instead "decision-maker is satisfied". 34 Page 3 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 1 Amendment of Mining Act 1992 No 29 [15] Section 121 Power of decision-maker in relation to transfer approval applications 1 Insert "that the decision-maker is satisfied" before "that the applicant" in 2 section 121 (2) (a). 3 [16] Section 121 (2) (b) 4 Omit "decision-maker reasonably considers". Insert instead "decision-maker is satisfied". 5 [17] Section 125 Grounds of cancellation of authority 6 Omit "if the holder of the authority contravenes" from section 125 (1) (b). 7 Insert instead "if the decision-maker is satisfied that the holder of the authority has 8 contravened". 9 [18] Section 125 (1) (b1) 10 Omit "a person contravenes". 11 Insert instead "the decision-maker is satisfied that a person has contravened". 12 [19] Section 125 (1) (b2) 13 Omit "the decision-maker reasonably considers". 14 Insert instead "the decision-maker is satisfied". 15 [20] Section 125 (1) (c) 16 Omit "the holder of the authority fails". 17 Insert instead "the decision-maker is satisfied that the holder of the authority has failed". 18 [21] Section 125 (1) (e) 19 Omit "the land". Insert instead "the decision-maker is satisfied that the land". 20 [22] Section 125 (1) (f) 21 Omit the paragraph. Insert instead: 22 (f) if the decision-maker is satisfied that the holder of the authority has 23 failed to use the land comprised in the authority in good faith for the 24 purposes for which the authority has been granted, or has used the land 25 for a purpose other than that for which the authority has been granted. 26 [23] Section 380AA 27 Insert after section 380: 28 380AA Restrictions on planning applications for coal mining 29 (1) An application for development consent, or for the modification of a 30 development consent, to mine for coal cannot be made or determined unless 31 (at the time it is made or determined) the applicant is the holder of an authority 32 that is in force in respect of coal and the land where mining for coal is proposed 33 to be carried out, or the applicant has the written consent of the holder of such 34 an authority to make the application. 35 Note. The Dictionary to this Act defines development consent to include an approval 36 under Part 3A or Part 5.1 of the Environmental Planning and Assessment Act 1979. 37 (2) For that purpose, an authority in respect of coal need not be in force in respect 38 of the whole of the land to which the application for development consent 39 relates but must be in force for the land where mining for coal is proposed. 40 Page 4 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 1 Amendment of Mining Act 1992 No 29 (3) For the purposes of this section, an authority that is a mining lease is 1 considered to be in force in respect of the land on which it authorises 2 prospecting or mining for coal, and not in respect of land on which it only 3 authorises the carrying out of mining purposes (and not prospecting or mining 4 for coal). A mining lease is not an authority for the purposes of this section if 5 it is for mining purposes only. 6 (4) The Director-General must notify the appropriate planning authority of any 7 decision under this Act to cancel or refuse to renew an authority in respect of 8 coal if the Director-General is aware that an application for development 9 consent, or for the modification of a development consent, to mine for coal on 10 the land concerned has been made but not determined. 11 (5) In this section: 12 application includes request. 13 appropriate planning authority means: 14 (a) the Director of Planning in the case of an application for development 15 consent for State significant development, State significant 16 infrastructure or a transitional Part 3A project under the Environmental 17 Planning and Assessment Act 1979, or 18 (b) the consent authority under that Act in relation to any other application. 19 mine for coal means to extract coal from land. 20 [24] Section 380A 21 Omit the section. Insert instead: 22 380A Fit and proper person consideration in making certain decisions about mining 23 rights 24 (1) Despite anything to the contrary in this Act, any of the following decisions 25 under this Act may be made on the ground that, in the opinion of the 26 decision-maker, a relevant person is not a fit and proper person (without 27 limiting any other ground on which such a decision may be made): 28 (a) a decision to refuse to grant or renew a mining right (a relevant person 29 in such a case being an applicant for the grant or renewal of the mining 30 right), 31 (b) a decision to refuse to transfer a mining right (a relevant person in such 32 a case being the proposed transferee), 33 (c) a decision to cancel a mining right or to suspend operations under a 34 mining right (in whole or in part), a relevant person in such a case being 35 a holder of the mining right, 36 (d) a decision to restrict operations under a mining right by the imposition 37 or variation of conditions of a mining right (a relevant person in such a 38 case being a holder of the mining right). 39 (2) For the purpose of determining whether a person is a fit and proper person, the 40 decision-maker may take into consideration any or all of the following matters 41 (but without limiting the matters that can be taken into consideration for that 42 purpose): 43 (a) whether the person or (in the case of a body corporate) a director of the 44 body corporate or of a related body corporate has compliance or 45 criminal conduct issues (as defined in this section), 46 (b) in the case of a body corporate, whether a director of the body corporate 47 or of a related body corporate is or has been a director of another body 48 Page 5 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 1 Amendment of Mining Act 1992 No 29 corporate that has compliance or criminal conduct issues (as defined in 1 this section) but only if the person was a director of that other body 2 corporate at the time of the conduct that resulted in the compliance or 3 criminal conduct issues, 4 (c) the person's record of compliance with relevant legislation (established 5 to the satisfaction of the decision-maker), 6 (d) in the case of a body corporate, the record of compliance with relevant 7 legislation (established to the satisfaction of the decision-maker) of any 8 director of the body corporate or a related body corporate, 9 (e) whether, in the opinion of the decision-maker, the management of the 10 activities or works that are or are to be authorised, required or regulated 11 under the mining right are not or will not be in the hands of a technically 12 competent person, 13 (f) whether, in the opinion of the decision-maker, the person is not of good 14 repute, 15 (g) in the case of a body corporate, whether, in the opinion of the 16 decision-maker, a director of the body corporate or a related body 17 corporate is not of good repute, 18 (h) whether, in the opinion of the decision-maker, the person is not of good 19 character, with particular regard to honesty and integrity, 20 (i) in the case of a body corporate, whether, in the opinion of the 21 decision-maker, a director of the body corporate or a related body 22 corporate is not of good character, with particular regard to honesty and 23 integrity, 24 (j) whether the person, during the previous 3 years, was an undischarged 25 bankrupt or applied to take the benefit of any law for the relief of 26 bankrupt or insolvent debtors, compounded with his or her creditors or 27 made an assignment of his or her remuneration for their benefit, 28 (k) in the case of an individual, whether he or she is or was a director of a 29 body corporate that is the subject of a winding up order or for which a 30 controller or administrator has been appointed during the previous 31 3 years, 32 (l) in the case of a body corporate, whether the body corporate or a related 33 body corporate is the subject of a winding up order or has had a 34 controller or administrator appointed during the previous 3 years, 35 (m) whether the person has demonstrated to the decision-maker the 36 financial capacity to comply with the person's obligations under the 37 mining right, 38 (n) whether the person is in partnership, in connection with activities that 39 are subject to a mining right or proposed mining right, with a person 40 whom the decision-maker considers is not a fit and proper person under 41 this section, 42 (o) whether the person has an arrangement (formal or informal) in 43 connection with activities that are subject to a mining right or proposed 44 mining right with another person whom the decision-maker considers is 45 not a fit and proper person under this section, if the decision-maker is 46 satisfied that the arrangement gives that other person the capacity to 47 determine the outcome of decisions about financial and operating 48 policies concerning those activities, 49 (p) any other matters prescribed by the regulations. 50 Page 6 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 1 Amendment of Mining Act 1992 No 29 (3) A person or body corporate has compliance or criminal conduct issues if: 1 (a) the decision-maker is satisfied that the person or body corporate has 2 contravened any relevant legislation, whether or not the person or body 3 corporate has been prosecuted for or convicted of an offence arising 4 from the contravention, or 5 (b) in the previous 10 years, the person or body corporate has been 6 convicted in New South Wales or elsewhere of a serious offence or an 7 offence involving fraud or dishonesty, or 8 (c) the person or body corporate has held a mining right, or any other 9 instrument issued or granted under relevant legislation, that has been 10 suspended, cancelled or revoked. 11 (4) The grant, renewal or transfer of a mining lease can be refused on the ground 12 that the Minister is of the opinion that the applicant is not a fit and proper 13 person even if: 14 (a) the mining lease is necessary for the carrying out of State significant 15 development that is authorised by a development consent, despite 16 section 89K of the Environmental Planning and Assessment Act 1979 17 (the Planning Act), or 18 (b) the mining lease is necessary for the carrying out of approved State 19 significant infrastructure under Part 5.1 of the Planning Act, despite 20 section 115ZH of that Act, or 21 (c) the mining lease is necessary for the carrying out of a transitional 22 Part 3A project under Schedule 6A to the Planning Act, despite 23 section 75V of that Act, or 24 (d) section 91A or 93 of the Planning Act would otherwise prevent that 25 refusal. 26 (5) To avoid doubt, sections 127 (1) and 205 (1) of this Act extend to the 27 cancellation of a mining right under this section. 28 (6) A relevant person who is aggrieved by a decision of the decision-maker under 29 this section may apply to the Land and Environment Court for a review of the 30 decision, and the following provisions apply to such a review: 31 (a) a review is to be by way of rehearing, and fresh material or material in 32 addition to, or in substitution for, the material considered on the making 33 of the decision by the decision-maker may be given on the review and 34 taken into consideration by the Land and Environment Court, 35 (b) the decision of the Land and Environment Court on a review of a 36 decision is final and is to be given effect to by the decision maker. 37 (7) In this section: 38 director of a body corporate includes any person involved in the management 39 of the affairs of the body corporate. 40 mining right means an exploration licence, an assessment lease, a mining 41 lease, a mineral claim or an opal prospecting licence. 42 related body corporate has the same meaning as in the Corporations Act 2001 43 of the Commonwealth. 44 relevant legislation means the following legislation: 45 (a) this Act, 46 (b) the Petroleum (Onshore) Act 1991, 47 (c) the environment protection legislation, 48 Page 7 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 1 Amendment of Mining Act 1992 No 29 (d) the Environmental Planning and Assessment Act 1979, 1 (e) the work health and safety legislation, 2 (f) any other legislation prescribed by the regulations under this Act. 3 serious offence means: 4 (a) an offence committed in New South Wales that is punishable by 5 imprisonment for life or for a term of 5 years or more or by a fine of 6 $500,000 or more, or an offence committed elsewhere than in New 7 South Wales that if committed in New South Wales would be an offence 8 so punishable, or 9 (b) an offence committed under a law of the Commonwealth that is 10 punishable by imprisonment for life or for a term of 5 years or more or 11 by a fine of $500,000 or more. 12 [25] Schedule 6 Savings, transitional and other provisions 13 Insert at the end of the Schedule with appropriate Part and clause numbering: 14 Part Provisions consequent on enactment of Mining and 15 Petroleum Legislation Amendment Act 2014 16 Operation of planning amendments 17 (1) Section 380AA (Restrictions on planning applications for coal mining) 18 extends to any application for development consent, or modification of 19 development consent, that was made (but not determined) before the date of 20 assent to the Mining and Petroleum Legislation Amendment Act 2014. 21 (2) Section 380A (4) (as enacted by the Mining and Petroleum Legislation 22 Amendment Act 2014) extends to permit the Minister to refuse the grant, 23 renewal or transfer of a mining lease even if the development consent that 24 would otherwise have prevented refusal was granted before the date of assent 25 to the Mining and Petroleum Legislation Amendment Act 2014. 26 Operation of fit and proper person test 27 Section 380A (as enacted by the Mining and Petroleum Legislation 28 Amendment Act 2014) applies to any decision made after the commencement 29 of that section, including: 30 (a) a decision with respect to an application or other matter that was 31 pending on that commencement, and 32 (b) a decision based on conduct that occurred, or on a matter that arose, 33 before that commencement. 34 Matters of which decision-maker to be satisfied 35 An amendment made to section 22, 23, 41, 63, 64, 114, 121 or 125 by the 36 Mining and Petroleum Legislation Amendment Act 2014 applies to any 37 decision made after the commencement of the amendment, including: 38 (a) a decision with respect to a matter that was pending on that 39 commencement, and 40 (b) a decision based on conduct that occurred, or on a matter that arose, 41 before that commencement. 42 Page 8 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 1 Amendment of Mining Act 1992 No 29 [26] Schedule 6A Cancellation of certain authorities 1 Omit clause 13 (3). Insert instead: 2 (3) A reference in a provision of this Act or the regulations to the conditions of an 3 authority includes a reference to a preserved condition of a relevant licence. 4 [27] Schedule 6A, clause 13 (4) 5 Omit "A reference in section 378D". 6 Insert instead "For the purposes of the application of a provision of this Act to and in respect 7 of a preserved condition of a relevant licence, a reference in the provision". 8 Page 9 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 2 Amendment of Environmental Planning and Assessment Act 1979 No 203 Schedule 2 Amendment of Environmental Planning and 1 Assessment Act 1979 No 203 2 [1] Section 78A Application 3 Insert at the end of section 78A (1): 4 Note. Section 380AA of the Mining Act 1992 provides that an application for 5 development consent to mine for coal can only be made by or with the consent of the 6 holder of an authority under that Act in respect of coal and the land concerned. 7 [2] Section 89E Consent for State significant development 8 Insert at the end of section 89E (1): 9 Note. Section 380AA of the Mining Act 1992 provides that an application in respect of 10 State significant development for the mining of coal can only be determined if it is made 11 by or with the consent of the holder of an authority under that Act in respect of coal and 12 the land concerned. 13 [3] Section 89K Approvals etc legislation that must be applied consistently 14 Insert at the end of section 89K (1) (c): 15 Note. Under section 380A of the Mining Act 1992, a mining lease can be refused on 16 the ground that the applicant is not a fit and proper person, despite this section. 17 [4] Section 89K (1) (d) 18 Insert at the end of the paragraph: 19 Note. Under section 24A of the Petroleum (Onshore) Act 1991, a production lease can 20 be refused on the ground that the applicant is not a fit and proper person, despite this 21 section. 22 [5] Section 91A Development that is integrated development 23 Insert at the end of section 91A (5): 24 Note. Under section 380A of the Mining Act 1992 and section 24A of the Petroleum 25 (Onshore) Act 1991, a mining lease or production lease can be refused on the ground 26 that the applicant is not a fit and proper person, despite this section. 27 [6] Section 93 Granting and modification of approval by approval body 28 Insert at the end of section 93 (1): 29 Note. Under section 380A of the Mining Act 1992 and section 24A of the Petroleum 30 (Onshore) Act 1991, a mining lease or production lease can be refused on the ground 31 that the applicant is not a fit and proper person, despite this section. 32 [7] Section 96 Modification of consents--generally 33 Insert at the end of section 96 (1): 34 Note. Section 380AA of the Mining Act 1992 provides that an application for 35 modification of development consent to mine for coal can only be made by or with the 36 consent of the holder of an authority under that Act in respect of coal and the land 37 concerned. 38 [8] Section 115X Application for approval of State significant infrastructure 39 Insert at the end of section 115X (1): 40 Note. Section 380AA of the Mining Act 1992 provides that an application in respect of 41 State significant infrastructure for the mining of coal can only be made by or with the 42 consent of the holder of an authority under that Act in respect of coal and the land 43 concerned. 44 Page 10 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 2 Amendment of Environmental Planning and Assessment Act 1979 No 203 [9] Section 115ZH Approvals etc legislation that must be applied consistently 1 Insert at the end of section 115ZH (1) (c): 2 Note. Under section 380A of the Mining Act 1992, a mining lease can be refused on 3 the ground that the applicant is not a fit and proper person, despite this section. 4 [10] Section 115ZH (1) (d) 5 Insert at the end of the paragraph: 6 Note. Under section 24A of the Petroleum (Onshore) Act 1991, a production lease can 7 be refused on the ground that the applicant is not a fit and proper person, despite this 8 section. 9 [11] Section 115ZI Modification of Minister's approval 10 Insert at the end of section 115ZI (2): 11 Note. Section 380AA of the Mining Act 1992 provides that a request for the 12 modification of approval for State significant infrastructure for the mining of coal can 13 only be made by or with the consent of the holder of an authority under that Act in 14 respect of coal and the land concerned. 15 [12] Schedule 6A Transitional arrangements--repeal of Part 3A 16 Insert after clause 2: 17 2A Public interest consideration for Part 3A projects 18 (1) To avoid doubt, it is declared that the Minister is authorised (and is taken 19 always to have been authorised) to take the public interest into account when 20 deciding whether or not to approve the carrying out of a project or to give 21 approval for a concept plan under Part 3A, before or after the repeal of that 22 Part. 23 (2) It does not matter whether the Director-General's report on the project did or 24 did not give consideration to or make any recommendation about the public 25 interest or any particular aspect of the public interest. 26 Page 11 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 3 Amendment of Environmental Planning and Assessment Regulation 2000 Schedule 3 Amendment of Environmental Planning and 1 Assessment Regulation 2000 2 Schedule 1 Forms 3 Insert after clause 2 (1) (k): 4 (k1) in the case of development comprising mining for coal (within the 5 meaning of section 380AA of the Mining Act 1992)--documentary 6 evidence that the applicant holds an authority under the Mining Act 7 1992 in respect of coal and the land concerned or has the written consent 8 of the holder of such an authority to make the development application, 9 Page 12 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 4 Amendment of Mining Amendment Act 2008 No 19 Schedule 4 Amendment of Mining Amendment Act 2008 1 No 19 2 [1] Schedule 1 Amendment of Mining Act 1992 3 Omit the definitions of environmental performance, other relevant legislation and 4 relevant person from proposed section 237 in Schedule 1 [204]. 5 [2] Schedule 1 [204] 6 Omit the heading to proposed section 238. Insert instead: 7 238 Environment to be taken into account 8 [3] Schedule 1 [204] 9 Omit proposed section 238 (1) (b). 10 [4] Schedule 1 [204] 11 Omit proposed section 238 (4). 12 [5] Schedule 1 [204] 13 Omit proposed section 239 (Meaning of environmental performance). 14 Page 13 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 5 Amendment of Petroleum (Onshore) Act 1991 No 84 Schedule 5 Amendment of Petroleum (Onshore) Act 1991 1 No 84 2 [1] Section 22 Cancellation and suspension of title 3 Omit section 22 (1). Insert instead: 4 (1) A petroleum title may be cancelled by the Minister if the Minister is satisfied 5 that its holder has, at any time during the term of the title: 6 (a) contravened or failed to fulfil any of the conditions of the title, or 7 (b) failed to use the land comprised in the title in good faith for the purposes 8 for which it has been granted, or 9 (c) used the land for a purpose other than that for which the title has been 10 granted, or 11 (d) contravened a provision of this Act or the regulations (whether or not 12 the holder has been prosecuted or convicted of an offence arising from 13 the contravention). 14 [2] Section 22 (3A) 15 Omit the subsection. Insert instead: 16 (3A) The Minister may suspend all or any specified operations under a petroleum 17 title until further notice if the Minister is satisfied that the holder of the title has 18 contravened: 19 (a) a requirement under this Act to pay royalty, or to give or maintain 20 security for the performance of the holder's obligations under the title, 21 or 22 (b) any condition of the title that is identified as a condition related to 23 environmental management. 24 [3] Section 24A 25 Omit the section. Insert instead: 26 24A Fit and proper person consideration in making certain decisions about 27 petroleum titles 28 (1) Despite anything to the contrary in this Act, any of the following decisions 29 under this Act may be made on the ground that, in the opinion of the Minister, 30 a relevant person is not a fit and proper person (without limiting any other 31 ground on which such a decision may be made): 32 (a) a decision to refuse to grant or renew a petroleum title (a relevant 33 person in such a case being an applicant for the grant or renewal of the 34 petroleum title), 35 (b) a decision to refuse to transfer a petroleum title (a relevant person in 36 such a case being the proposed transferee), 37 (c) a decision to cancel a petroleum title or to suspend operations under a 38 petroleum title (in whole or in part), a relevant person in such a case 39 being a holder of the petroleum title, 40 (d) a decision to restrict operations under a petroleum title by the 41 imposition or variation of conditions of a petroleum title (a relevant 42 person in such a case being a holder of the petroleum title). 43 (2) For the purpose of determining whether a person is a fit and proper person, the 44 Minister may take into consideration any or all of the following matters (but 45 Page 14 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 5 Amendment of Petroleum (Onshore) Act 1991 No 84 without limiting the matters that can be taken into consideration for that 1 purpose): 2 (a) whether the person or (in the case of a body corporate) a director of the 3 body corporate or of a related body corporate has compliance or 4 criminal conduct issues (as defined in this section), 5 (b) in the case of a body corporate, whether a director of the body corporate 6 or of a related body corporate is or has been a director of another body 7 corporate that has compliance or criminal conduct issues (as defined in 8 this section) but only if the person was a director of that other body 9 corporate at the time of the conduct that resulted in the compliance or 10 criminal conduct issues, 11 (c) the person's record of compliance with relevant legislation (established 12 to the satisfaction of the Minister), 13 (d) in the case of a body corporate, the record of compliance with relevant 14 legislation (established to the satisfaction of the Minister) of any 15 director of the body corporate or a related body corporate, 16 (e) whether, in the opinion of the Minister, the management of the activities 17 or works that are or are to be authorised, required or regulated under the 18 petroleum title are not or will not be in the hands of a technically 19 competent person, 20 (f) whether, in the opinion of the Minister, the person is not of good repute, 21 (g) in the case of a body corporate, whether, in the opinion of the Minister, 22 a director of the body corporate or a related body corporate is not of 23 good repute, 24 (h) whether, in the opinion of the Minister, the person is not of good 25 character, with particular regard to honesty and integrity, 26 (i) in the case of a body corporate, whether, in the opinion of the Minister, 27 a director of the body corporate or a related body corporate is not of 28 good character, with particular regard to honesty and integrity, 29 (j) whether the person, during the previous 3 years, was an undischarged 30 bankrupt or applied to take the benefit of any law for the relief of 31 bankrupt or insolvent debtors, compounded with his or her creditors or 32 made an assignment of his or her remuneration for their benefit, 33 (k) in the case of an individual, whether he or she is or was a director of a 34 body corporate that is the subject of a winding up order or for which a 35 controller or administrator has been appointed during the previous 36 3 years, 37 (l) in the case of a body corporate, whether the body corporate or a related 38 body corporate is the subject of a winding up order or has had a 39 controller or administrator appointed during the previous 3 years, 40 (m) whether the person has demonstrated to the Minister the financial 41 capacity to comply with the person's obligations under the petroleum 42 title, 43 (n) whether the person is in partnership, in connection with activities that 44 are subject to a petroleum title or proposed petroleum title, with a 45 person whom the Minister considers is not a fit and proper person under 46 this section, 47 Page 15 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 5 Amendment of Petroleum (Onshore) Act 1991 No 84 (o) whether the person has an arrangement (formal or informal) in 1 connection with activities that are subject to a petroleum title or 2 proposed petroleum title with another person whom the Minister 3 considers is not a fit and proper person under this section, if the Minister 4 is satisfied that the arrangement gives that other person the capacity to 5 determine the outcome of decisions about financial and operating 6 policies concerning those activities, 7 (p) any other matters prescribed by the regulations. 8 (3) A person or body corporate has compliance or criminal conduct issues if: 9 (a) the Minister is satisfied that the person or body corporate has 10 contravened any relevant legislation, whether or not the person or body 11 corporate has been prosecuted for or convicted of an offence arising 12 from the contravention, or 13 (b) in the previous 10 years, the person or body corporate has been 14 convicted in New South Wales or elsewhere of a serious offence or an 15 offence involving fraud or dishonesty, or 16 (c) the person or body corporate has held a petroleum title, or any other 17 instrument issued or granted under relevant legislation, that has been 18 suspended, cancelled or revoked. 19 (4) The grant, renewal or transfer of a petroleum title can be refused on the ground 20 that the Minister is of the opinion that the applicant is not a fit and proper 21 person even if: 22 (a) the petroleum title is necessary for the carrying out of State significant 23 development that is authorised by a development consent, despite 24 section 89K of the Environmental Planning and Assessment Act 1979 25 (the Planning Act), or 26 (b) the petroleum title is necessary for the carrying out of approved State 27 significant infrastructure under Part 5.1 of the Planning Act, despite 28 section 115ZH of that Act, or 29 (c) the petroleum title is necessary for the carrying out of a transitional 30 Part 3A project under Schedule 6A to the Planning Act, despite 31 section 75V of that Act, or 32 (d) section 91A or 93 of the Planning Act would otherwise prevent that 33 refusal. 34 (5) To avoid doubt, section 22 (5) of this Act extends to the cancellation of (or 35 suspension of operations under) a petroleum title under this section. 36 (6) A relevant person who is aggrieved by a decision of the Minister under this 37 section may apply to the Land and Environment Court for a review of the 38 decision, and the following provisions apply to such a review: 39 (a) a review is to be by way of rehearing, and fresh material or material in 40 addition to, or in substitution for, the material considered on the making 41 of the decision by the Minister may be given on the review and taken 42 into consideration by the Land and Environment Court, 43 (b) the decision of the Land and Environment Court on a review of a 44 decision is final and is to be given effect to by the Minister. 45 Page 16 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 5 Amendment of Petroleum (Onshore) Act 1991 No 84 (7) In this section: 1 director of a body corporate includes any person involved in the management 2 of the affairs of the body corporate. 3 related body corporate has the same meaning as in the Corporations Act 2001 4 of the Commonwealth. 5 relevant legislation means the following legislation: 6 (a) this Act, 7 (b) the Mining Act 1992, 8 (c) the environment protection legislation, 9 (d) the Environmental Planning and Assessment Act 1979, 10 (e) the work health and safety legislation within the meaning of the Mining 11 Act 1992, 12 (f) any other legislation prescribed by the regulations under this Act. 13 serious offence means: 14 (a) an offence committed in New South Wales that is punishable by 15 imprisonment for life or for a term of 5 years or more or by a fine of 16 $500,000 or more, or an offence committed elsewhere than in New 17 South Wales that if committed in New South Wales would be an offence 18 so punishable, or 19 (b) an offence committed under a law of the Commonwealth that is 20 punishable by imprisonment for life or for a term of 5 years or more or 21 by a fine of $500,000 or more. 22 [4] Schedule 1 Savings and transitional provisions 23 Insert at the end of the Schedule with appropriate Part and clause numbering: 24 Part Provisions consequent on enactment of Mining and 25 Petroleum Legislation Amendment Act 2014 26 Operation of fit and proper person test 27 (1) Section 24A (as enacted by the Mining and Petroleum Legislation Amendment 28 Act 2014) applies to any decision made after the commencement of that 29 section, including: 30 (a) a decision with respect to an application or other matter that was 31 pending on that commencement, and 32 (b) a decision based on conduct that occurred, or on a matter that arose, 33 before that commencement. 34 (2) Section 24A (4) (as enacted by the Mining and Petroleum Legislation 35 Amendment Act 2014) extends to permit the Minister to refuse the grant, 36 renewal or transfer of a petroleum title even if the development consent that 37 would otherwise have prevented refusal was granted before the date of assent 38 to the Mining and Petroleum Legislation Amendment Act 2014. 39 Page 17 Mining and Petroleum Legislation Amendment Bill 2014 [NSW] Schedule 5 Amendment of Petroleum (Onshore) Act 1991 No 84 Grounds for cancellation or suspension of petroleum title 1 An amendment made to section 22 by the Mining and Petroleum Legislation 2 Amendment Act 2014 applies to any decision made after the commencement 3 of the amendment, including: 4 (a) a decision with respect to a matter that was pending on that 5 commencement, and 6 (b) a decision based on conduct that occurred, or on a matter that arose, 7 before that commencement. 8 Page 18
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