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This is a Bill, not an Act. For current law, see the Acts databases.


MINING AND PETROLEUM LEGISLATION AMENDMENT BILL 2014





                                    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




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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




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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.




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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.




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                                                                        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




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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




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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




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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



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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




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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




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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




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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




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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




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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




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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




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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




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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



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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




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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




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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




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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




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