MINING AND OTHER LEGISLATION AMENDMENT ACT 2013 No. 10 - SECT 50 50 Insertion of new ss 136 and 136A, pt 5, div 3 and pt 5, div 4, hdg

MINING AND OTHER LEGISLATION AMENDMENT ACT 2013 No. 10 - SECT 50

Before section 137—

insert—

'(1) The Minister may, for an application for an exploration permit under this division—

(a) grant an exploration permit, with or without conditions; or

(b) refuse the application.

'(2) However, the Minister must not grant an exploration permit unless the Minister is satisfied the prescribed criteria for the grant of the permit are met.

'(3) Also, subject to subsection (4), the Minister must not grant an exploration permit for land if all or any part of the land is—

(a) in a fossicking area; or

(b) subject to an exploration permit for the same mineral.

'(4) Subsection (3)(a) does not apply if the application for the exploration permit was made, but not decided, before the land became a fossicking area.

'(5) If the Minister refuses an application for an exploration permit under this division, the Minister may decide whether all or part of the application fee that accompanied the application will be retained.

'(1) This section applies if the Minister considers it is in the best interests of the State for an exploration permit for a mineral other than coal to be granted for 1 or more sub-blocks by competitive tender.

'(2) The Minister may publish a gazette notice (a call for EP (non-coal) tenders) inviting tenders for the exploration permit.

'(3) Division 3, subdivisions 2 and 3 apply for the call for EP (non-coal) tenders—

(a) as if—

(i) a reference to a call for EP (coal) tenders were a reference to a call for EP (non-coal) tenders; and

(ii) a reference to an exploration permit for coal were a reference to an exploration permit for a mineral other than coal for the sub-blocks the subject of the call; and

(b) with any other necessary changes.

'(4) The Minister must not act under subsection (2) for a sub-block that is—

(a) in a fossicking area; or

(b) the subject of an application for an exploration permit for the same mineral.

'(1) This division—

(a) applies to exploration permits for coal; and

(b) provides for a process for the granting of exploration permits for coal—

(i) generally, by competitive tender; or

(ii) to a person who holds 1 or more exploration permits for coal for the same land that are surrendered immediately before the grant of the permit.

'(2) To remove any doubt, it is declared that an exploration permit for coal can only be granted under this division.

'(1) The Minister may publish a gazette notice (a call for EP (coal) tenders) inviting tenders for an exploration permit for coal.

'(2) The call must state—

(a) the proposed area of the permit; and

(b) the day and time by which tenders in response to it must be made (the closing time for the call); and

(c) that the tenders must be lodged before the closing time for the call; and

(d) that details about each of the following are available at a stated place—

(i) any proposed conditions of the permit that are likely to impact significantly on exploration in the proposed area;

(ii) the period of not more than 5 years for which the proposed program of work for the permit must apply;

(iii) any criteria (special criteria), other than the prescribed criteria, proposed to be used to decide whether to grant the permit, or to decide its provisions;

(iv) whether a process for appointing a preferred tenderer involving a cash bid component is to be used for deciding the call.

'(3) The call may state other relevant matters, including, for example, matters relevant to the special criteria and prescribed criteria.

'(4) Subsection (2)(d)(i) does not limit the Minister's power under section 136K to decide conditions of the exploration permit if it is granted.

'(5) However, the Minister must not act under this section for land if all or any part of the land is—

(a) in a fossicking area; or

(b) the subject of an application for an exploration permit for the same mineral.

'(1) An eligible person may, by a tender made under section 136E, tender for a proposed exploration permit the subject of a call for EP (coal) tenders.

'(2) However, the tender can not be made—

(a) after the closing time for the call; or

(b) for only part of the area of the proposed exploration permit.

'A tender for an exploration permit for coal must—

(a) be in the approved form; and

(b) be accompanied by a statement—

(i) specifying a description of the program of work proposed to be carried out under the authority of the exploration permit, if granted; and

(ii) specifying the estimated human, technical and financial resources proposed to be committed to exploration work during each year of the exploration permit, if granted; and

(c) be accompanied by a statement, separate from the statement mentioned in paragraph (b), detailing the tenderer's financial and technical resources; and

(d) be accompanied by the following—

(i) a statement, separate from the statements mentioned in paragraphs (b) and (c), about how and when the tenderer proposes to consult with, and keep informed, each owner and occupier of private or public land on which authorised activities for the proposed exploration permit are, or are likely to be, carried out;

Note—

See section 140A for obligations about consulting with particular owners and occupiers.

(ii) proof of the tenderer's identity;

(iii) the application fee prescribed under a regulation;

(iv) if a process for appointing a preferred tenderer involving a cash bid component is to be used for deciding the call—the tenderer's cash bid.

'(1) The Minister may, by gazette notice, terminate a call for EP (coal) tenders at any time before deciding to grant an exploration permit to an eligible person who has made a tender in response to the call.

'(2) All tenders in response to the call lapse when the call is terminated.

'(3) No amount, whether by way of compensation, reimbursement or otherwise is payable by the State to any person for or in connection with the termination.

'(4) However, subject to sections 136H(4) and 136J(4), the Minister must refund any tender security given by the tenderer.

'(1) This section provides for the amendments that can be made to a tender in response to a call for EP (coal) tenders.

'(2) A proposed program of work included in the tender may be amended at any time until, but not after, the tenderer has become the preferred tenderer for the call.

'(3) The tender may be amended, other than as provided by subsection (2), at any time until, but not after, the closing time for the call.

'(4) However, subsection (3) does not apply if—

(a) the tenderer is a company; and

(b) the change is only a change of name of the tenderer; and

(c) the tenderer's Australian company number and Australian registered business name have not changed.

'(1) A person who has lodged a tender in response to a call for EP (coal) tenders may lodge a notice withdrawing the tender at any time before the relevant exploration permit is granted.

'(2) The withdrawal takes effect when the notice is lodged.

'(3) If the preferred tenderer's tender is withdrawn under this section, the withdrawal does not affect the Minister's power to appoint another tenderer, from the tenders made in response to the call, to be the preferred tenderer.

'(4) If a tender is withdrawn under this section, the Minister may, if the Minister considers it reasonable in the circumstances, retain the whole or part of any tender security given by the tenderer.

'(1) Subject to section 136K(2) and (3), any process the Minister considers appropriate may be used to decide a call for EP (coal) tenders, including, for example—

(a) a process appointing a preferred tenderer on the tenders made in response to the call (whether or not involving a cash bid component); or

(b) a process involving short-listing a group of possible preferred tenderers and inviting them to engage in another round of tendering before appointing a preferred tenderer from that group.

'(2) Without limiting subsection (1), the Minister may give a tenderer a notice requiring the tenderer to give the Minister, within the reasonable period stated in the notice, information the Minister reasonably requires to assess the tender.

'(1) The Minister may require a preferred tenderer for the call for EP (coal) tenders to—

(a) pay any amounts necessarily incurred, or to be incurred, to enable the exploration permit to be granted; and

Example—

amounts required to comply with the Commonwealth Native Title Act, part 2, division 3, subdivision P

(b) do all or any of the following within a stated reasonable period—

(i) pay the rental for the first year of the term of the permit under section 138;

(ii) give, under section 144, security for the permit.

'(2) If a preferred tenderer does not—

(a) comply with a requirement under subsection (1); or

(b) do all things reasonably necessary to allow an exploration permit for coal to be granted to the tenderer;

the Minister may revoke the tenderer's appointment as the preferred tenderer.

'(3) However, before acting under subsection (2), the Minister must give the preferred tenderer a reasonable opportunity to provide reasons for, and rectify, the tenderer's failure to comply with a requirement under subsection (1) or (2)(b).

'(4) If the Minister revokes the appointment of the tenderer as the preferred tenderer under this section, the Minister may—

(a) retain the whole or part of any tender security given by the tenderer, if the Minister considers it reasonable in the circumstances; and

(b) appoint another tenderer to be the preferred tenderer.

'(1) The Minister may, after the closing time for the call for EP (coal) tenders—

(a) grant an exploration permit for coal to 1 tenderer, with or without conditions; or

(b) refuse to grant any exploration permit for coal.

'(2) However, the Minister must not grant the exploration permit unless the Minister is satisfied the prescribed criteria for the grant of the permit are met.

'(3) Also, in deciding whether to grant an exploration permit or deciding its provisions, the Minister must consider any special criteria for the call.

'(1) After a call for EP (coal) tenders has been decided, each tenderer not granted the exploration permit must be given notice of the decision.

Note—

See also the Judicial Review Act 1991, section 32 (Request for statement of reasons).

'(2) Subject to sections 136H(4) and 136J(4), the Minister must refund any tender security given by the tenderer.

'(1) This section applies if the holder of an exploration permit for coal intends to surrender the permit.

'(2) The holder may apply for a new exploration permit for the whole or part of the area of the exploration permit to be surrendered.

'(3) The application must be made in the same way an application for an exploration permit is made under section 133.

'(4) The Minister may give the applicant a notice requiring the applicant to give the Minister information the Minister reasonably requires to assess the application.

'(5) If the information is not given to the Minister within the reasonable period stated in the notice, the Minister may refuse the application.

'(6) An application for an exploration permit under this section must be numbered in the way prescribed under a regulation and the number, if the permit is granted, must become the number of that permit.

'(1) The Minister may, for an application for an exploration permit under section 136M—

(a) grant the exploration permit, with or without conditions; or

(b) refuse the application.

'(2) However, the Minister must not grant an exploration permit under this section unless the Minister is satisfied the prescribed criteria for the grant of the permit are met.

'(3) Also, subject to subsection (4), the Minister must not grant an exploration permit for land if all or any part of the land is in a fossicking area.

'(4) Subsection (3) does not apply if the application for the exploration permit was made, but not decided, before the land became a fossicking area.

'(5) If the Minister refuses the application, the Minister may decide whether all or part of the application fee that accompanied the application will be retained.