MINING MANAGEMENT AMENDMENT BILL 2011

8A Application of Criminal Code
16A Consultation and cooperation for taking care of environment
Division 3 Environmental offences

29 Operator must report environmental incident or serious environmental incident

33 No unauthorised release of waste or contaminant
35 Requirement for Authorisation

39 Contravention of Authorisation
40 Mining management plan and required information

41 Review and amendment of mining management plan
45A Minister may publish report
64 Obstruction of official

64A Falsely representing to be mining officer
Part 9 Offences, liability and criminal proceedings

76 Offence – other partners and managers taken to have committed offence of partner

77 Offence – managers of unincorporated associations taken to have committed offence of other manager

80 Defence if conduct in accordance with guideline or code
82A Social and economic benefits for affected communities
Part 11 Transitional matters for Mining Management Amendment Act 2011

98 Reporting and investigating environmental incidents and serious environmental incidents

sites, the provision of economic and social benefits to communities affected by mining activities, and

(iii) requiring an operator for a mining site to establish, implement and maintain a management system for the site and, for that purpose, to facilitate consultation and cooperation between the operator, contractors and workers on the site; and

(ca) to promote the development of relationships between the mining industry and communities affected by mining activities to facilitate the provision of economic and social benefits to those communities; and

(1) Section 4, definitions Chief Executive Officer, critical incident, management system, mining management plan and serious accident

acting in an official capacity, in relation to an official, means the official is exercising powers or performing functions under, or otherwise related to the administration of, this Act.

environmental incident means an incident on a mining site that causes environmental harm.

environmental obligation means an obligation imposed on a person under Part 3, Division 1.

management system, for a mining site, means the environmental protection management system established, implemented and maintained under section 16(2)(c).

serious environmental incident means an incident on a mining site that causes material environmental harm.

(eb) the construction, maintenance and use of infrastructure authorised by an access authority granted under the Mineral Titles Act;

Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.

(3) The appointment must be in writing and include a condition that the operator must:

(a) before mining activities are carried out on the mining site – establish a management system for the site; and

(b) while mining activities are carried out on the mining site – implement and maintain the management system.

(4) If the operator resigns or the appointment is terminated after the notice mentioned in section 36(2)(b) has been given to the Minister, the owner must, not later than 14 days after the relevant date, give the Chief Executive Officer a written notice of the resignation or termination and the date on which it took effect.

(5) If the owner appoints a different operator after the notice mentioned in section 36(2)(b) has been given to the Minister, the owner must, not later than 14 days after the relevant date, give the Chief Executive Officer a written notice of the appointment and the date on which it took effect.

(6) The owner of a mining site who has appointed an operator for the site must take all reasonable and practicable measures to ensure the operator does not contravene this Act.

relevant date means the date on which the termination of appointment, or the resignation or appointment, of an operator takes effect.

(1) For section 16(2)(c), the operator for a mining site must facilitate consultation and cooperation between the operator, contractors and workers in initiating, developing and implementing environment protection measures for the site's management system.

(2) Without limiting subsection (1), the measures may include one or more of the following:

(a) establishing one or more environment protection committees for the mining site or for a particular mining activity;

(b) establishing appropriate policies and procedures for dealing with issues involving risk of environmental harm;

(c) ensuring, as far as practicable, that adequate information is available about environmental risks involved in operations on the site;

(d) planning appropriate strategies for dealing with environmental incidents and serious environmental incidents on the site.

This Division does not apply in relation to environmental harm caused by a substance that is prescribed under the Waste Management and Pollution Control Act to be an ozone-depleting substance.

(3) In a proceeding for an offence against subsection (1), the person charged with the offence may be found guilty alternatively of an offence against section 26A(1), 27(1), 27A(1), 28(1) or 28A(1).

(3) In a proceeding for an offence against subsection (1), the person charged with the offence may be found guilty alternatively of an offence against section 27(1), 27A(1), 28(1) or 28A(1).

(3) In a proceeding for an offence against subsection (1), the person charged with the offence may be found guilty alternatively of an offence against section 27A(1), 28(1) or 28A(1).

(3) In a proceeding for an offence against subsection (1), the person charged with the offence may be found guilty alternatively of an offence against section 28(1) or 28A(1).

(3) In a proceeding for an offence against subsection (1), the person charged with the offence may be found guilty alternatively of an offence against section 28A(1).

29 Operator must report environmental incident or serious environmental incident

(1) As soon as practicable after the operator for a mining site becomes aware of the occurrence of an environmental incident or serious environmental incident on the site, the operator must notify the Chief Executive Officer of the occurrence.

(2) An operator who gives notice orally must, as soon as practicable after doing so, give a written notice to the Chief Executive Officer.

As soon as practicable after receiving notice of an environmental incident or serious environmental incident, the Chief Executive Officer may instruct a mining officer to:

(b) if the mining officer considers circumstances require it – investigate the incident to determine, if possible, the nature and cause of the incident; and

(1) If a serious environmental incident occurs on a mining site, the operator for the site must:

(a) carry out an investigation to determine, if possible, the cause of the incident; and

(b) within the relevant time – give the Chief Executive Officer a written report about the incident that includes information about remedial actions taken, or to be taken, and recommendations for the prevention of further similar incidents.

(2) If an environmental incident occurs on a mining site, the Chief Executive Officer may, by written notice, require the operator for the site to:

(a) carry out an investigation to determine, if possible, the cause of the incident; and

(3) An operator must not contravene subsection (1) or a requirement under subsection (2).

(5) It is a defence to a prosecution for an offence against subsection (3) if the defendant establishes a reasonable excuse.

(a) for subsection (1)(b) – 14 days after the day on which the serious environmental incident occurred or a longer period as approved by the Chief Executive Officer; or

(b) for subsection (2)(b) – 14 days after the day on which the Chief Executive Officer gives the notice or a longer period as approved by the Chief Executive Officer.

If the Chief Executive Officer considers it to be in the public interest, the Chief Executive Officer may publish all or part of a report given under section 30 or 31.

(a) interferes with a place where a serious environmental incident occurred; and

(3) It is a defence to a prosecution for an offence against subsection (1) if the defendant establishes a reasonable excuse.

(1) The operator for a mining site may carry out mining activities on the site only if the Minister has granted the operator an Authorisation to do so.

(2) However, subsection (1) applies in relation to the carrying out of exploration for minerals on a mining site only if the exploration will involve substantial disturbance of the mining site.

(3) For subsection (2), substantial disturbance of a mining site includes any of the following:

(c) aboveground works (for example, works for building roads, buildings, bridges, railways or airstrips or works for establishing conveyors, pipelines, telephone lines or power lines);

(d) underground works (for example, works in connection with tunnels, wells, pipelines, conduits or cables);

(e) waterworks (for example, works in connection with dams, impoundments, canals or the drainage or alteration of river or creek banks, water courses or shorelines);

(f) extracting resources from the surface of the land, underground, riverbeds or under the sea;

(h) establishing seismic lines, drill pads, drill holes, grids, tracks or costeans;

(b) the mining activity is an activity for which an Authorisation is required because of subsection (1); and

(1) An operator for a mining site who requires an Authorisation because of section 35(1) must apply in writing to the Minister for the Authorisation.

(b) if the operator is not the owner of the mining site – a notice stating the date on which the operator was appointed.

(3) The Minister may, by written notice to the operator, request further information to be given within the time specified in the notice.

(b) refusing to approve the mining management plan and refusing to grant the Authorisation.

(5) Before approving the mining management plan, the Minister must be satisfied:

(ii) will, as far as practicable, operate effectively in protecting the environment; and

(b) the mining activities described in the plan will be carried out in accordance with good industry practice.

(6) If the Minister refuses to approve the mining management plan and grant the Authorisation, the Minister must give the operator written reasons for the refusal.

(1) An Authorisation is granted for the period and subject to the conditions specified in it.

(a) the operator for the mining site to which the Authorisation relates must comply with the mining management plan in force for the site;

(b) if the mining management plan relates to the mining of minerals – the operator must make an environmental mining report available to the public at intervals not exceeding 12 months;

(c) any other conditions the Minister considers appropriate for the mining activities specified in the mining management plan.

(3) For subsection (2)(b), an environmental mining report is a report about an operator's environmental performance in carrying out activities for mining minerals, taking into account:

(a) the commitments given by, and the obligations imposed on, the operator in relation to an environmental assessment under the Environmental Assessment Act; and

(b) the obligations of the operator under the management system for the mining site.

(5) Without limiting subsection (2)(c), the Minister may impose conditions on an Authorisation about any of the following matters:

(b) the outcomes of an environmental assessment of mining activities undertaken under the Environmental Assessment Act;

(c) the requirement for security for the purpose mentioned in section 43, in the form and on the terms specified in the condition;

(d) the provision of social and economic benefits to communities outside the mining site that will be directly affected by the mining activities to be carried out on the site;

(e) the form and frequency of periodic reports about mining activities carried out on the mining site;

(f) the requirement to make particular reports, or parts of reports, available to the public.

(1) An operator may apply in writing to the Minister for a variation of an Authorisation, stating the reasons for the application.

If the mining management plan is being amended in connection with the variation, section 41(2) to (5) applies.

(2) The Minister may, by written notice to an operator, vary or revoke an Authorisation.

(3) The Minister must not vary an Authorisation unless satisfied the management system detailed in the current mining management plan, or in the amended plan submitted for approval in connection with the variation:

(b) as far as practicable – will operate effectively in protecting the environment.

(4) Before varying or revoking an Authorisation, the Minister may in writing request the operator to give the Minister specified information, documents or plans within a specified time.

(a) on the date on which the notice of variation or revocation is given to the operator; or

(b) the conduct results in a contravention of the Authorisation in force for the site.

(1) A mining management plan is a plan for the management of a mining site for which the operator requires an Authorisation to carry out mining activities.

(a) details of the mining interest held for, or associated with, the mining site;

(d) details of the organisational structure for carrying out the mining activities;

(1) The operator for a mining site must, at intervals specified in the Authorisation for the site or as required in writing by the Minister:

(a) review and, if necessary, amend the mining management plan for the site; and

(b) if the plan is amended – submit the amended plan to the Minister for approval.

(2) If at any other time it is necessary to amend the mining management plan, the operator must submit the amended plan to the Minister for approval.

(4) The Minister may, by written notice to the operator, approve the amended plan or refuse to do so.

(5) An amended mining management plan has no effect unless it has been approved by the Minister.

If an operator is required under section 37 to make all or part of a report available to the public and does not do so, the Minister may publish the report or part.

(2) A person must comply with a requirement, instruction or direction of a mining officer given under subsection (1).

(4) It is a defence to a prosecution for an offence against subsection (2) if the defendant establishes a reasonable excuse.

(a) the person represents, by words or conduct, that the person or someone else is a mining officer; and

(a) under section 36(6) refusing to approve a mining management plan and grant an Authorisation; or

(a) draws the misleading aspect of the document to the official's attention; and

(b) to the extent to which the person can reasonably do so – gives the official the information necessary to correct the document.

misleading information means information that is misleading in a material particular or because of the omission of a material particular.

(1) This section applies if a court has found a person guilty of an offence against a section of this Act.

(2) The court may, in addition to any penalty imposed for the offence, impose a penalty not exceeding 10 penalty units for each day during which the offence continues after the day the offence is committed.

(1) It is not a defence to a prosecution for an offence against a provision of this Act that the defendant was, at the time of the commission of the offence, another person's representative.

(2) However, it is a defence if the defendant proves the defendant was, at the time of the commission of the offence:

(1) This section applies to a prosecution for an offence against a provision of this Act.

This section deals with prosecutions of individuals. Part IIAA, Division 5, of the Criminal Code contains provisions about corporate criminal responsibility.

(2) Conduct engaged in by a representative of a person within the scope of the representative's actual or apparent authority is taken to have been also engaged in by the person.

(3) However, subsection (2) does not apply if the person proves the person took reasonable steps to prevent the conduct.

(4) In deciding whether the person took reasonable steps to prevent the conduct, a court must consider:

(a) any action the person took to ensure the representative had a reasonable knowledge and understanding of the requirement to comply with the contravened provision; and

(b) the level of management, control or supervision that was appropriate for the person to exercise over the representative.

(6) If it is relevant to prove a person had a fault element in relation to a physical element of an offence, it is enough to show:

(a) the conduct relevant to the physical element was engaged in by a representative of the person within the scope of the representative's actual or apparent authority; and

(b) the representative had the fault element in relation to the physical element.

(7) A person may rely on section 43AX of the Criminal Code in relation to conduct by a representative that would be an offence by the person only if:

(a) the representative was under a mistaken but reasonable belief about the facts that, had they existed, would have meant that the conduct would not have constituted an offence; and

(b) the person proves the person exercised due diligence to prevent the conduct.

Section 43AX of the Criminal Code provides a person is not criminally responsible if the person engaged in conduct under a mistake of fact in relation to an offence of strict liability.

(8) A person (the defendant) may not rely on section 43BA of the Criminal Code in relation to a physical element of an offence brought about by another person if the other person is a representative of the defendant.

Section 43BA of the Criminal Code provides a person is not criminally responsible in circumstances of an intervening conduct or event.

(9) A person who is convicted of an offence cannot be punished by imprisonment for the offence if the person would not have been convicted of the offence without subsection (2) or (6).

fault element includes intention, knowledge, recklessness, opinion, belief and purpose, but does not include negligence.

76 Offence – other partners and managers taken to have committed offence of partner

(1) If a person (the offender) who is a partner in a partnership commits an offence against a provision of this Act in the course of the activities of the partnership, each other partner in the partnership, and each other person who is concerned with, or takes part in, the management of the partnership, is:

(a) the other partner or person was not in a position to influence the conduct of the offender; or

(b) the other partner or person, being in a position to influence the conduct of the offender, took reasonable steps and exercised due diligence to prevent the conduct.

The defendant has an evidential burden in relation to the matters mentioned (see section 43BU of the Criminal Code).

(4) This section applies whether or not the offender is prosecuted for, or convicted of, the offence.

(5) This section does not apply if the offender would have a defence to a prosecution for the offence.

partnership does not include an incorporated limited partnership formed under the Partnership Act.

77 Offence – managers of unincorporated associations taken to have committed offence of other manager

(1) If a person (the offender) who is concerned with, or takes part, in the management of an unincorporated association commits an offence against a provision of this Act in the course of the activities of the association, each other person who is concerned with, or takes part in, the management of the unincorporated association is:

(a) the other person was not in a position to influence the conduct of the offender; or

(b) the other person, being in a position to influence the conduct of the offender, took reasonable steps and exercised due diligence to prevent the conduct.

The defendant has an evidential burden in relation to the matters mentioned (see section 43BU of the Criminal Code).

(4) This section applies whether or not the offender is prosecuted for, or convicted of, the offence.

(5) This section does not apply if the offender would have a defence to a prosecution for the offence.

(a) the body corporate commits an offence (a relevant offence) by contravening a provision of this Act; and

(b) the officer was in a position to influence the conduct of the body corporate in relation to the contravention; and

Maximum penalty: The maximum penalty that may be imposed on an individual for the relevant offence.

(2) In deciding whether the executive officer took (or failed to take) reasonable steps to prevent the contravention, a court must consider the following:

(a) any action the officer took directed towards ensuring the following (to the extent the action is relevant to the contravention):

(i) the body corporate arranged regular professional assessments of the body corporate's compliance with the contravened provision;

(ii) the body corporate implemented any appropriate recommendation arising from an assessment under subparagraph (i);

(iii) the body corporate's representatives and contractors had a reasonable knowledge and understanding of the requirement to comply with the contravened provision;

(b) any action the officer took when the officer became aware that the contravention was, or could be, about to happen.

(5) This section applies whether or not the body corporate is prosecuted for, or convicted of, the relevant offence.

(6) This section does not apply if the body corporate would have a defence to a prosecution for the relevant offence.

executive officer, of a body corporate, means a director or other person who is concerned with, or takes part in, the management of the body corporate.

(b) within 12 months after the day on which the Chief Executive Officer first became aware of the commission of the alleged offence.

(2) A certificate of the Chief Executive Officer stating the day on which the Chief Executive Officer first became aware of the commission of an alleged offence is, in the absence of evidence to the contrary, evidence of that fact.

(1) Subsection (2) applies if, in a proceeding, an averment in the information or complaint states that at a specified time:

(a) a specified place was a mining site or specified mining activities were being carried out; or

(g) a direction, instruction, notice or requirement permitted or required to be given or imposed under this Act had been given or imposed or had not been given or imposed; or

(2) The statement is taken to have been proved in the absence of evidence to the contrary.

(1) It is a defence to a prosecution for an offence against this Act if the defendant establishes that the defendant's conduct relevant to establishing guilt was in accordance with a guideline or code in force at the time the defendant engaged in the conduct.

(2) A reference in subsection (1) to a code includes a standard, practice and methodology.

In exercising a power or performing a function under this Act in connection with a mining site, the Minister or Chief Executive Officer must have regard to the desirability of the operator for the site providing social and economic benefits to communities outside the site that are directly affected by the mining activities carried out on the site.

commencement day means the day on which the Mining Management Amendment Act 2011 commences.

former Act means this Act as in force immediately before the commencement day.

(1) This Act as in force on and after the commencement day applies in relation to an offence against a provision of this Act only if the offence is alleged to have been committed on or after the commencement day.

(2) An offence alleged to have been committed against a provision of the former Act must be dealt with as if the amendment Act had not come into force.

98 Reporting and investigating environmental incidents and serious environmental incidents

(1) Sections 29 to 31A apply only in relation to an environmental incident or serious environmental incident that occurs on or after the commencement day.

(2) Sections 29 to 31 of the former Act continue to apply in relation to a critical incident or serious accident that occurred before the commencement day.

(1) If a relevant application made under the former Act was not decided before the commencement day, the former Act continues to apply in relation to the application and decision as if the amendment Act had not come into force.

Provision	Amendment
	omit	insert
Part 1, heading, at the end		matters
section 4	, unless the contrary intention appears
section 4, definition *Atomic Energy Act*	of the Commonwealth	(Cth)
section 4, definition *Authorisation*	Division 2 of Part 4	Part 4, Division 2
section 4, definition *contaminant*	has the same meaning as in	, see section 4(1) of
section 4, definition *environment*, paragraphs (a) and (b), at the end		and
section 4, definitions *material environmental harm, paragraphs (a) and (b), and mineral*, paragraphs (a) and (b), at the end		or
section 4, definition *mineral*, paragraph (f)	within the meaning	as defined in section 5(1)
section 4, definition *mining site*, paragraph (a), at the end		or
section 4, definition *mining site*, paragraph (c)	notice in the Gazette	Gazette notice
section 4, definition *serious environmental harm*, paragraphs (a) and (b), at the end		or
section 4, definition *waste*	has the same meaning as in	, see section 4(1) of
section 4, definition *worker*	a natural person	an individual
section 7(1)	may by notice in the Gazette	may, by Gazette notice,
section 8(1)	nothing in this Act is to be taken to	this Act does not
section 9(2), penalty provision	whole penalty provision	Maximum penalty: 1 000 penalty units.
section 11(1) and (2)	notice in the Gazette	Gazette notice
section 11(3), penalty provision	Penalty:	Maximum penalty:
section 11(4)	a regulatory offence	an offence of strict liability
section 12(a) and (b), at the end		and
sections 17(2)(a) and 18(2)	a serious accident or critical	an environmental incident or serious environmental
section 18(3)	a natural person	an individual
section 34(1)	in respect of the mining activities	for the mining site
section 34(5), definition *Ranger Project Area*	*Area* has the same meaning as in	*Area*, see section 4 of
section 42(1), penalty provision	whole penalty provision	Maximum penalty: 20 penalty units
section 42(2)	this section is a regulatory offence	subsection (1) is an offence of strict liability
section 44(2)(a) and (4)(a), at the end		and
section 44(4)(b)	the submission (if any)	any submission
section 44(5)	notice in writing	written notice
Part 4, Division 5 heading, at the end		matters
section 45(2)	all the words from "for" to "subsection (1)"	must comply with the notice
section 45(2), penalty provision	whole penalty provision	Maximum penalty: 20 penalty units
section 45(3)	a regulatory offence	an offence of strict liability
section 50(1)	are:	are as follows:
section 50(1)(e)	and
section 52(1)	an employee within the meaning of the Public Sector Employment and Management Act	a public sector employee
section 55(4)	in pursuance of	under
section 58(a), at the end		or
section 60(3), penalty provision	Penalty:	Maximum penalty:
section 60(4)	a regulatory offence	an offence of strict liability
section 63	in pursuance of	mentioned in
section 63, penalty provision	Penalty:	Maximum penalty:
section 70(5)(a), at the end		or
Part 10, heading, at the end		matters
section 81(1)	(1) The	The
section 81(2), (3) and (4)	whole subsection
Part 10, Division 2, heading	whole heading	Other matters
section 86(1)(a) and (b), at the end		or
section 88(1)(a)	notice in the Gazette;	Gazette notice; and
section 90(a) and (b), at the end		or
section 90(c), after "law"		, or by the Minister or Chief Executive Officer,
section 92(2)(i)	whole paragraph
section 92(2)(j)	a regulatory offence	an offence of strict liability

Northern Territory Bills

MINING MANAGEMENT AMENDMENT BILL 2011