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Legislative Council - Fifty-Second Parliament, First Session (52-1)
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MINING (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee (resumed on motion).

Clause 23.

The ACTING CHAIRMAN (Hon. J.S.L. Dawkins): When the committee last met it was dealing with clause 23. We are now at the stage where it is appropriate for the Hon. Mr Brokenshire to move his amendment No. 12.

The Hon. R.L. BROKENSHIRE: In the interests of expediting this debate, I advise that amendments Nos 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 are all consequential and I therefore withdraw them.

The ACTING CHAIRMAN: Remaining to be dealt with in clause 23, I suggest that it is now appropriate for the Hon. Mr Parnell to move his amendment No. 10.

The Hon. M. PARNELL: Thank you, Mr Acting Chairman. As I indicated earlier when I spoke to an amendment which increased penalties, I made that a test for the remainder, so I will not be moving the remainder of my increased penalty amendments, including amendment No. 10.

The ACTING CHAIRMAN: So you do intend to move amendment No. 11?

The Hon. M. PARNELL: I move:

Page 17, after line 29—Insert:

(14) The Minister may, at any time and without consultation with the applicant or taking any other step, refuse an application at any stage of its consideration under this Act if the Minister considers that there are sufficient grounds for not assessing the application further after taking into account the public interest and such other matters as the Minister thinks fit.

Amendment No. 11 reinstates into this bill a provision that was in the government's bill when it went out for consultation as an earlier draft. This is the provision which is commonly referred to as 'The early no'. The wording of this amendment is identical to words that the government already has in this bill in relation to mineral exploration licences. I am proposing that the same provision should apply to mining leases. So this is the ability of the minister to give an early no to the granting of a mining lease.

The importance of this amendment (and I am disappointed that the government removed it from the draft bill) is that it enables the minister to help a mining company avoid unnecessary expense by giving them an indication very early on as to areas that they will not be able to access for mining. As we have discussed in previous amendments, the area allocated for the purposes of exploration is often vast. I think the minister talked about 1,000 square kilometres—maybe it was 100,000, but they are vast areas. The area that is applied for in connection with a mining lease is much smaller.

Often people take the position that if you have allowed exploration then it will be okay to mine anywhere within that area where minerals are found. Given the huge size of the explorations, it might just happen to be that the one small part of that vast exploration is in fact the one place where mining is inappropriate, which is often referred to as the 'God has a sense of humour' provision in terms of putting the best mineral deposits under the national parks.

If the minister has the ability to say to the mining company, 'We've given you this ability to explore a vast area, but I'm putting you on notice and telling you now not to bother asking to explore the wetland complex in the corner of your mineral exploration lease (or the last remaining habitat of some species in a corner of your exploration lease)', I think that is doing the right thing by industry in terms of giving them certainty. It allows the minister to declare fairly simple boundaries to exploration licence areas. They tend to be squares and rectangles; they tend not to follow any natural features whatsoever. They are basically lines on a map, but when it comes to the nitty-gritty of mining, the minister should have the ability to say, very early on, 'There are some places within that area where we are not going to let you go.'

I know from my discussions with departmental officers that there are all sorts of informal discussions held with mining companies and that the government can make its position clear in a whole range of other ways. However, I think that it is important, especially if we are going to avoid legal action on behalf of mining companies. We discussed some of this yesterday, that if they have been given the right to explore and the minister then says they cannot mine, whether some form of action could be taken. This clause, providing for an early no, will make it beyond doubt that the minister has the power to tell them they cannot mine in that area.

The Hon. P. HOLLOWAY: The government opposes this amendment. As I think the Hon. Mr Parnell indicated, the early no provision is based in many ways on the same principle of an early no in the Development Act, and initially in some of the discussions I was attracted to the idea of that, but after extensive consultation on the bill it was determined that it would be difficult for the minister to give an early no without some form of assessment of a mining lease application. During consultation on the bill, the minerals industry was strongly opposed to such a provision and indicated its ineffectiveness, as any early no decision without proper assessment could most likely be disputed in the courts anyway.

In the case the honourable member referred to of the large mining lease where there might be some area of sensitivity, for various reasons, such areas can be exempted from exploration under the licence. That is a preferable way of dealing with that, certainly from my point of view. There are some areas that are obviously more sensitive than others from many points of view—environmental, tourism, etc.—and while we do exclude many parts of the state from mining—

The Hon. M. Parnell: About 5 per cent.

The Hon. P. HOLLOWAY: It is more than that, if one includes the Woomera protected area, built-up areas and the like. Even if one takes out those areas where mining is totally excluded, there is also a lot of effective exclusion. There are dual-proclaimed national parks of various kinds where there can be exploration, but obviously there are very strict conditions placed upon that, and there are other areas as well where, for all sorts of reasons, stricter conditions apply.

There are a range of conditions and it is very difficult to have them all within an act of parliament. We draw up laws here to deal with every situation that can come up, but you have to have flexibility within the act to deal with issues that fall along the whole spectrum. It was after consultation that the government decided that, in the case of the mining industry, an early no provision similar to that in the Development Act would probably create more problems than it would solve. It is much better to try to restrict exploration of those areas that are particularly sensitive and, if any discovery there is unlikely to give rise to mining, it is better to exclude them from the start by not allowing exploration there in the first place.

The Hon. D.W. RIDGWAY: I indicate that initially the opposition was attracted to the Hon. Mark Parnell's amendment—

Members interjecting:

The Hon. D.W. RIDGWAY: No, he has to speak. Consultation with the industry seemed to indicate that, if a resource was identified, notwithstanding that there may be a whole range of environmental and other problems with exploiting and mining that resource, their view was that they should be able to explore every opportunity to mine, rather than the minister stepping in providing an early no, notwithstanding the constraints that may be put on them to protect the environment.

So, it makes sense to the opposition. It is a free-market society and if a mining company finds a resource and wants to explore every possible way it can exploit that resource and still leave the environment intact, it should be able to. Whatever other issues or concerns there may be that might trigger an early no, the opposition believes that the mining companies, or the miners, should be able to explore every possible opportunity, rather than the minister intervening at an early stage.

Amendment negatived; clause passed.

Clause 24 passed.

New clauses 24A and 24B.

The Hon. M. PARNELL: I move:

Page 18, after line 16—After clause 24 insert:

24A—Amendment of section 35A—Representations in relation to grant of lease

(1) Section 35A(1)—Delete 'in a newspaper circulating generally throughout the state' and substitute:

in accordance with subsection (4),

(2) Section 35A(1)(c)—Delete paragraph (c) and substitute:

(c) inviting members of the public to submit written representations in relation to—

(a) whether the application should be granted or refused; and

(b) any conditions that should be attached to the lease if the application is granted,

within a period specified in the notice (which must be a period of at least 28 days from the date of publication of the notice).

(3) Section 35A—After subsection (2) insert:

(2a) If the Minister receives 1 or more written representations in response to an invitation under this section, the Minister must cause to be published, in accordance with subsection (4), a notice inviting members of the public to attend a meeting to be held in relation to the application.

(2b) The Minister must cause all written representations received in response to an invitation under this section to be published on a website maintained by the department to which the public has access free of charge.

(4) Section 35A(3)—Delete:

'representations made in response to an invitation under this section' and substitute:

written representations submitted in response to an invitation under this section and any oral representations made at a meeting convened in accordance with subsection (2a)

(5) Section 35A—After subsection (3) insert:

(4) A notice under this section must be published—

(a) in the Gazette; and

(b) in a newspaper circulating generally throughout the State; and

(c) if there is a regional or local newspaper circulating in the part of the state in which the area of the proposed lease is situated—in the regional or local newspaper; and

(d) on a website maintained by the Department to which the public has access free of charge.

24B—Insertion of section 35B

After section 35A insert:

35B—Notification of decision on application

As soon as practicable after determining whether to grant or refuse an application for a mining lease, the Minister must—

(a) provide written notification of the following to each person who made a written or oral representation in relation to the application (and whose identity and contact details are known to the Minister):

(i) the determination;

(ii) the date of the determination;

(iii) if a lease has been granted—the terms and conditions of the lease;

(iv) the person's right under section 42 to appeal against the determination; and

(b) cause the determination to be published on a website maintained by the Department to which the public has access free of charge, together with, if a lease has been granted, a copy of the lease.

I will not speak to this amendment at great length because it is effectively a replica clause to one I moved earlier. I will not be dividing on it unless I see that there is a different attitude to this amendment from the previous one.

Basically, this amendment is to improve the public participation regime in relation to mining leases as opposed to mineral exploration licences, which was my earlier amendment. The public participation regime at present is under section 35A of the Mining Act and it is slightly different from the mechanism under the mineral exploration licence provisions because it requires, for example, the minister to have regard to representations before making a decision. So, it is a slightly different mechanism.

Nevertheless, the elements that I spoke of previously are: the use of the internet for publishing details of the application that has been lodged, the requirement to hold a public meeting if a submission is made; the publication of submissions on a web page managed by the minister, and, after the event, notification of all those people who made submissions as to the final outcome, including a copy of the mining lease and the terms and conditions that were attached.

So, really it is very similar to the regime for public participation that I moved earlier, but I want it on the record in relation to mining leases. Once I have heard the response of the minister and the opposition, I just have one or two questions on this clause for the minister as well.

The Hon. P. HOLLOWAY: This proposal would significantly increase the red tape for government—again, we would argue, with no real value for the community. I point out that 80 per cent of lease applications are for extractive minerals, where, in accordance with the Mining Act, the landowner must already have given consent. Therefore, the current statutory time frame for comment of 14 days is adequate. In any other case, it is generally PIRSA's policy to extend the time frame to between four and eight weeks, depending on the significance of the application.

The Hon. Mr Parnell's amendment proposes that a public meeting must be held if more than one submission is received. This will be the case for all applications, because at least one submission is always received. The cost to government would be significant and would therefore need to be passed on to industry through significantly higher fees.

Clause 24 of the bill, of course, amends section 35 of the act, which deals with applications for mining leases. Pursuant to this clause, it is expected that the proponent would undertake appropriate consultation relevant to their proposed mining operations. This clause takes into consideration that one size does not fit all when it comes to the diversity of scale of mining operations—that is, a small sandpit on private land versus a large metallic mine near an urban population.

Publishing all written submissions, I would also point out, may be a deterrent in the engagement process as often individuals do not want their submissions to be made public. Information relating to a granted lease, including lease conditions, is already available on the existing public mining register.

The Hon. D.W. RIDGWAY: I indicate that the opposition has an amendment to the Hon. Mr Mark Parnell's amendment. The shadow minister in another place and Mr Parnell have had some negotiations and he is just advising the clerk. The government's adviser is looking very perplexed as to what we might be proposing to do, so I might speak to what we are proposing to do. If you do not have a copy of the amendment in front of you—

The Hon. P. Holloway: In your name, is it?

The Hon. D.W. RIDGWAY: No, there is nothing in my name at the moment. If we look at new clause 24A, we are proposing to delete sections 2, 3 and 4, effectively leaving only sections 1 and 5. Then, in new section 35B(a) we would move to delete subparagraph (iv), referring to 'the person's right under section 42 to appeal against the determination'.

The Hon. M. PARNELL: I seek leave to amend my amendment.

Leave granted.

The Hon. M. PARNELL: In relation to my amendment No. 12, I move:

Page 18, after line 16—After clause 24 insert:

24A—Amendment of section 35A—Representations in relation to grant of lease

(1) Section 35A(1)—delete "in a newspaper circulating generally throughout the State" and substitute:

, in accordance with subsection (4),

(5) Section 35A—after subsection (3) insert:

(4) A notice under this section must be published—

(a) in the Gazette; and

(b) in a newspaper circulating generally throughout the State; and

(c) if there is a regional or local newspaper circulating in the part of the State in which the area of the proposed lease is situated—in the regional or local newspaper; and

(d) on a website maintained by the Department to which the public has access free of charge.

24B—Insertion of section 35B

After section 35A insert:

35B—Notification of decision on application

As soon as practicable after determining whether to grant or refuse an application for a mining lease, the Minister must—

(a) provide written notification of the following to each person who made a written or oral representation in relation to the application (and whose identity and contact details are known to the Minister):

(i) the determination

(ii) the date of the determination;

(iii) if a lease has been granted—the terms and conditions of the lease;

(b) cause the determination to be published on a website maintained by the Department to which the public has access free of charge, together with, if a lease has been granted, a copy of the lease.

I have retained new clause 24A, subclauses (1) and (5), but have omitted subclauses (2), (3) and (4). Also, I move to insert new clause 24B, which inserts section 35B(a), subparagraphs (i), (ii) and (iii), and to omit subparagraph (iv) and insert paragraph (b).

The Hon. P. HOLLOWAY: From a quick look at it, it does not appear to be of too much concern to the government, but given that the bill will undergo final consideration when parliament resumes in September—it still has to go to the other place—for now I will not oppose the amendment but make clear that I reserve the right to look at it over the break and, if there are issues that need tidying up, we can come back to it. For now, to facilitate the debate we will let it go through.

The Hon. D.W. RIDGWAY: The opposition certainly will support it. It was a negotiated outcome between the Greens and the opposition.

The CHAIRMAN: It shows good reason why amendments are not sent around the place well before they are tabled and moved.

Amendment carried; new clauses as amended inserted.

Clauses 25 to 27 passed.

Clause 28.

The Hon. M. PARNELL: I move:

Page 19, after line 22—Insert:

(a1) Section 41A(2)(c)—delete paragraph (c)

This amendment relates to the issue of retention leases. This amendment deletes what I believe is a redundant provision of the act in relation to the mining of radioactive minerals. The minister may have another interpretation but my understanding is that the special mention of radioactive minerals in the retention lease provision was to enable the mining of those minerals without going through the normal mining lease process because of some technical reason why that was not possible.

If that is not the case, then we have to ask ourselves why we are treating those minerals differently when they are certainly capable of being extracted under a regular mining lease. It may well be that the government believes that, because of the in situ leaching method that is often used, there is some reason why companies should be able to 'try before you buy' and use in situ leaching to recover minerals without going to the trouble of getting a full mining lease. If that is the case, then the question would be: why is it that they are allowed to sell those minerals they recover when all they have is a retention lease?

What I will say is that one improvement in this bill is that retention leases will now go through a public consultation process which they never did before which was why groups like Friends of the Earth were quite outraged at the government allowing uranium mining under the guise of a retention lease without requiring any public consultation whatsoever. It seems to me that the bill is now improved by having public consultation for retention leases but it seems that there is no useful purpose to be served by having this special provision relating to radioactive minerals being able to be extracted on the minister's say-so under a retention lease. So my amendment is to delete that unnecessary provision.

The Hon. P. HOLLOWAY: The government opposes the amendment. Mr Parnell proposes to delete section 41A(2)(c) which states:

(c) where the applicant seeks an authorisation to carry out mining operations for the recovery of a radioactive mineral and the Minister thinks it desirable to defer the granting of a mining lease endorsed with such an authorisation.

We are talking here about the grant of a retention lease. Deleting section 41A(2)(c) would have no real effect in the present political climate where both the state and commonwealth governments are in favour of uranium mining but, if there were to be a change in policy at either the state or commonwealth level, then this provision should be retained to ensure that where companies have expended significant amounts of exploration for uranium and have found a deposit, they are able to retain title until there is a change in policy, as was the case 10 years ago for the Honeymoon project. So the removal of this provision could create a perceived sovereign risk issue for industry. Although it is redundant with the current policies of this government and the commonwealth government, we believe that to remove it could be a perceived sovereign risk issue.

The Hon. D.W. RIDGWAY: The opposition will not be supporting the amendment.

The Hon. M. PARNELL: I am fascinated by the minister's response. Effectively he is saying that if you have a state government that is in favour of uranium mining and a federal government that is opposed to uranium mining, they will allow the company to have a retention lease so that they can sit on it until the federal government changes its mind or changes altogether, but in fact that is not what this provision says because a retention lease is a lease that allows someone to sit on their rights but what this provision does is allow the actual recovery of the radioactive materials and their sale. It is not just limited to them sitting on their rights. My information is that, in fact, it has been used to allow companies to recover radioactive materials and sell them and it was, in fact, a backdoor method of obtaining a mining lease without actually doing so. I wonder if the minister could explain or further clarify this. Is he prepared to tell the chamber that under no circumstances will a mining company be allowed to extract and sell radioactive minerals under a retention lease?

The Hon. P. HOLLOWAY: You cannot sell minerals off a retention lease. Retention leases have a purpose in the mining industry and there might be a number of reasons why the regulators think it may not be appropriate, or the government may think it is not appropriate to recover minerals at a particular point in time. However, a retention lease can be granted so that the company that has discovered the resource still has the potential, at some stage in the future, should conditions change, to exploit that resource. I think it is an important provision to have.

The act provides for the granting of a retention lease, subject to subsection (3), in paragraphs (a), (b) and (c)—and (c) refers to the situation where the applicant 'seeks an authorisation to carry out mining operations for the recovery of a radioactive mineral and the minister thinks it is desirable to defer the granting of a mining lease endorsed with such an authorisation'.

In relation to the past, I think it was Honeymoon. They obviously had a retention lease and this mineral had been discovered many years ago but they were not able to produce uranium because that was not in accord with the policy of the government of the day; but, given that they had invested in discovering the resource, they were offered a retention lease. So, it is a way of dealing with these issues where, for whatever reason, you cannot or the government thinks you should not exploit a resource at a particular time. The retention lease acts as a means of protecting the long-term interests of the explorer.

Of course, conditions (a) and (c) are also related where, for economic or other reasons, the applicant is, in the opinon of the minister, justified in not proceeding immediately to mine the land in pursuance of a mining lease. The whole purpose is that with exploration leases you try to mine the land. If a company has an exploration lease and does not discover anything, once the lease expires it ought to become available to somebody else who might have a different exploration plan and may be able to discover something. That turnover of tenements is important.

There may be discovery but, for all sorts of reasons, the applicant may not be able to proceed immediately to mine the land. The radioactive case just happens to be one instance where there were uranium policies applying, but there could be a number of other reasons why a company cannot proceed and they are covered in cases (a) and (b). As I said, the government believes that (c), even though it is redundant with the current policy, should there be some change in that policy—I know in recent days there has been some discussion and I think the Greens were talking about banning—

The Hon. M. Parnell: Don't believe everything you read in the paper!

The Hon. P. HOLLOWAY: If they controlled the Senate they would ban uranium mining.

The Hon. M. Parnell: Don't believe the newspaper.

The Hon. P. HOLLOWAY: If that is the case, we believe that that provision should stay there.

The Hon. M. PARNELL: I am sure Hansard did not record my interjection, which was out of order, but certainly the Greens do not support uranium mining. However, I will put on the record again that it is not our policy to close the Olympic Dam mine down, because that is primarily a copper, gold and silver mine. We would, however, leave the uranium in the ground.

An honourable member interjecting:

The Hon. M. PARNELL: No, it is a profitable copper, gold and silver mine. My question to the minister is: can he assure us that we will not see commercial uranium mining under a retention lease?

The Hon. P. HOLLOWAY: A retention lease is what you have when you have a resource but you are not mining. That is essentially what a retention lease is. If you were to proceed to mine you would need a mining lease. You cannot mine under a retention lease. I am told you can if you are proving up a resource. If you are proving up a resource, that could be done under a retention lease. In relation to uranium, it should be pointed out that with that mining there are a whole lot of other controls on it as well, through the commonwealth. I think all uranium mining comes under EPBC. There are a number of additional controls on uranium mining anyway, so I do not think that that would be a likely event, even if, with other metalliferous mines, it may be possible to have some proving up on a retention lease.

Amendment negatived; clause passed.

Clause 29 passed.

Clause 30.

The Hon. M. PARNELL: I move:

Page 20, lines 20 and 21 [clause 30, inserted section 41BA(1)]—Delete 'in a newspaper circulating generally throughout the State' and substitute:

, in accordance with subsection (5),

This amendment relates to improving public participation rights in relation to the issue of retention leases. I acknowledge that we at least are having limited public comment rights in relation to retention leases for the very first time through the government's bill. I think they could have done better, which is why I moved these amendments.

I will not speak further to the detail but, again, it includes exactly the same model I proposed for mineral exploration licences and for mining leases. I acknowledge that the Liberal Party have supported some of these provisions in relation to mining leases, but my understanding from discussions with the shadow minister is that they are not so inclined to support them in relation to retention leases. So, I will move the amendment but I will not be dividing on it.

The Hon. P. HOLLOWAY: The government opposes it for reasons I have just outlined. I just restate that it is PIRSA's longstanding policy to extend the time frame from 14 days to between four to eight weeks depending on the significance of the application. Mr Parnell again proposed that a public meeting must be held if more than one submission is received. This will always be the case because at least one submission is always received. It is necessary to have it received as part of the application. The cost to government would be significant and would therefore need to be passed on to industry through significantly higher fees.

The Hon. D.W. RIDGWAY: As the Hon. Mark Parnell has rightly said, the opposition was attracted to certain elements, but we decided we would not be supporting this and some other consequential amendments.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 20—

Lines 27 to 30 [clause 30, inserted section 41BA(1)(c)]—delete paragraph (c) and substitute:

(c) inviting members of the public to submit written representations in relation to—

(a) whether the application should be granted or refused; and

(b) any conditions that should be attached to the lease if the application is granted,

within a period specified in the notice (which must be a period of at least 28 days from the date of publication of the notice).

After line 40 [clause 30, inserted section 41BA]—after subsection (3) insert:

(3a) If the Minister receives 1 or more written representations in response to an invitation under this section, the Minister must cause to be published, in accordance with subsection (5), a notice inviting members of the public to attend a meeting to be held in relation to the application.

(3b) All written representations received in response to an invitation under this section must be published on a website maintained by the Department to which the public has access free of charge, together with, if a lease has been granted, a copy of the lease.

Page 21—

Lines 3 and 4 [clause 30, inserted section 41BA(4)]—delete 'representations made in response to an invitation under this section' and substitute:

written representations submitted in response to an invitation under this section and any oral representations made at a meeting convened in accordance with subsection (3a)

After line 4 [clause 30, inserted section 41BA]—after subsection (4) insert:

(5) A notice under this section must be published—

(a) in the Gazette; and

(b) in a newspaper circulating generally throughout the State; and

(c) if there is a regional or local newspaper circulating in the part of the State in which the area of the proposed lease is situated—in the regional or local newspaper; and

(d) on a website maintained by the Department to which the public has access free of charge.

41BB—Notification of decision on application

As soon as practicable after determining whether to grant or refuse an application for a retention lease, the Minister must—

(a) provide written notification of the following to each person who made a written or oral representation in relation to the application (and whose identity and contact details are known to the Minister):

(i) the determination;

(ii) the date of the determination;

(iii) if a lease has been granted—the terms and conditions of the lease;

(iv) the person's right under section 42 to appeal against the determination; and

(b) cause the determination to be published on a website maintained by the Department to which the public has access free of charge, together with, if a lease has been granted, a copy of the lease.

These amendments are consequential, but I would like to formally move them just so they are on the record.

Amendments negatived; clause passed.

Clause 31 passed.

New clause 31A.

The Hon. M. PARNELL: I move:

Page 21, after line 18—After clause 31 insert:

31A—Insertion of Part 7

After Part 6A insert:

PART 7—Appeal against grant of certain licences and leases

42—Appeal

(1) A person may appeal to the ERD Court against a determination of the Minister to grant an exploration licence, a mining lease or a retention lease on the grounds that mining operations to be conducted under the licence or lease are reasonably likely to result in undue damage to the environment.

(2) An appeal must be commenced within 15 business days after the date of the determination appealed against.

(3) A mining tenement that may be the subject of an appeal under this section cannot take effect until—

(a) the time within which an appeal may be commenced has expired; or

(b) until the questions raised by the appeal have been finally determined (other than any question as to costs)

(4) The Court may, on appeal, confirm or revoke the Minster's determination.

This amendment is one that I believe would fill a glaring hole in the mining act, and that is the right of people aggrieved by the minister's decisions to be able to go to the umpire. In my view, it is a natural consequence of seeking the views of the community, as the government now agrees it is right to do. Then to not allow those people who have made submissions to be able to test the minister's decision before an appropriate umpire I think is an omission in this act.

I will not speak at any length to this amendment because I understand it does not have the support of the opposition. However, I will just make the point that, as with the land use planning system and the development control system, it is the normal situation where a person who has made a submission in relation to controversial projects (in the Development Act that is category 3 projects) has the right to go to the umpire. I envisaged that this amendment would have some difficulty getting support, so I have limited the grounds of appeal to a single ground of appeal, and that is:

...mining operations to be conducted under the licence or lease are reasonably likely to result in undue damage to the environment.

The reason I have chosen those words is because that is the test that the government has used in other parts of the bill: the test of whether the activities would be reasonably likely to result in undue damage to the environment. Whilst I firmly believe that we should have a rigorous system that allows people to go to the Environment, Resources and Development Court and challenge the decision of the minister on environmental grounds, I appreciate that I do not have the numbers on this occasion. I have moved the amendment, but I will not be dividing on it.

The Hon. P. HOLLOWAY: I indicate for the record that the government does oppose this. Mr Parnell's amendment would introduce a right of appeal against a determination by the minister to grant a lease or licence on the grounds that mining operations are reasonably likely to result in undue damage to the environment. The assessment process for leases and licences is based on a comprehensive document provided by the applicant in accordance with the government's published guidelines. It mirrors environmental impact statements under the Development Act. The assessment is conducted in collaboration with other key government agencies with relevant expertise, such as environment and conservation, water, heritage, etc.

The minister's determination is made subject to extensive consultation with all those relevant and other stakeholders. The Hon. Mr Parnell's amendment mirrors similar legislative provisions in Victoria, where any person can appeal to the Victorian Civil and Administrative Tribunal, which, I am informed, has resulted in significant impediment to the resources sector due to high costs and major delays waiting for the matter to be heard but with no real benefit to the community. In other words, there is no evidence that as a result of that process there has been any change in outcome, but it certainly has resulted in significant delays and impediments to the sector in that state.

The Hon. D.W. RIDGWAY: I indicate that the opposition will not be supporting the amendment. It appears to us—I do not have a copy of the act, and it may not be in the definitions— that 'a person' can be anybody, anywhere in probably South Australia or Australia—

The Hon. M. Parnell: Absolutely.

The Hon. D.W. RIDGWAY: —and that they may have little or no understanding of the issues. This may just be used as a mechanism to delay and frustrate, again probably without any particular benefit to the community or saving the environment, other than just to frustrate the whole process. It seems to be just too wide and too broad, so the opposition will not be supporting it.

The Hon. D.G.E. HOOD: I would like to ask a brief question of the mover. I seek some clarification, if I may. The Hon. Mr Ridgway may have answered the question, but are there other jurisdictions that have a similar clause that you are aware of?

The Hon. M. PARNELL: The minister answered in relation to Victoria. There is the ability in Queensland for people to challenge the issue of mining rights as well. I am not as familiar with that system. I use the example that going to the umpire to effectively get a second opinion on whether the minister has done his or her job properly is possible in other legislation, such as the Development Act.

New clause negatived.

Clauses 32 and 33 passed.

New clause 33A.

The Hon. D.W. RIDGWAY: I move:

Page 22, after line 40—Insert new clause as follows:

33A—Amendment of section 54—Compensation

Section 54—after its present contents (now to be designated as subsection (1)) insert:

(2) The compensation may include an additional component to cover reasonable costs reasonably incurred by an owner of land in connection with any negotiation or dispute related to—

(a) the licensee gaining access to the land; and

(b) the activities to be carried out on the land; and

(c) the compensation to be paid under subsection (1).

(3) In assessing compensation under subsection (2), costs in connection with any negotiation or dispute will not be taken to be reasonably incurred if they arise during any period when a reasonable offer of compensation is open to be accepted by the relevant owner of land.

This basically gives an opportunity for the landowner to be adequately compensated and to cover any costs incurred by the landowner in connection with that dispute, so it would be legal costs and the like. It seems to make sense to make the playing field a little more level. That was certainly an issue when various people contacted my office at the time when I was shadow minister. They felt they may have been unduly disadvantaged because, of course, to seek legal advice is another cost that may be incurred. For a business operation that perhaps cannot afford to bear those costs, this just makes the playing field more level.

The Hon. P. HOLLOWAY: The government opposes this amendment, which provides that compensation may be payable to a landowner for costs incurred by that landowner in connection with any negotiation or dispute. I point out that section 61 of the act, which generally deals with compensation, provides that compensation can be payable for the following matters:

(a) any damage caused to the land by the person carrying out the mining operations; and

(b) any loss of productivity or profits as a result of the mining operations; and

(c) any other relevant matters.

The current definition is implicit by way of section 61(2)(c) that compensation can be payable for those matters proposed by the Hon. Mr Ridgway's amendment.

The Hon. Mr Ridgway's amendment may, the government fears, as a consequence encourage more complicated and costly court disputes. Even though we believe that the act covers the case where any matter relevant to compensation can be taken into consideration, once you put in more specific provisions it does open the door for more complicated and costly disputes and hence does not, we believe, encourage amicable negotiations, where the aim should be to build good long-term relations between the miner and the landowner.

I think that, inevitably, if this is put in with this explicit provision, even though it should be covered under the current act, you will have lawyers trying it out, and I think the government's fear is that it could encourage more litigation in relation to these matters when in fact the whole objective should be getting landholders appropriate compensation rather than making lawyers rich.

The Hon. M. PARNELL: I do not know whether the mover or the minister can clarify this, but my understanding of the amendment is that it relates only to that fairly limited set of circumstances where compensation is being pursued in relation to the issue of a miscellaneous purposes licence rather than any other form of mining tenement.

The Hon. P. Holloway: I'm using this as a sort of test.

The Hon. M. PARNELL: This is a test; fair enough, thank you. I accept what the minister has said in relation to section 61 of the act, that it is possible to take any other relevant matter into account, and those other relevant matters would include the list of matters that the Hon. David Ridgway seeks to include. However, to be consistent with the approach that I took earlier, if the amendment does no harm and just clarifies the things that can be taken into account, I can see no reason to oppose it. I do not see that the minister's fear would be borne out because, if the parties cannot reach agreement, it needs to go to a decision maker, the appropriate court. The appropriate court is going to have to resolve the dispute, regardless of the wording in the act. It will need to take into account all the things that the parties put before it. I guess the only additional costs could be—and the one the minister was most concerned about—costs in connection with negotiation or dispute.

I think any decision-maker or any court would interpret that to be the reasonable costs involved. If they thought that someone was simply stringing out negotiations solely for the purpose of earning extra fees for lawyers, that would become apparent and, therefore the court would not award those costs. It does not guarantee that those costs will be awarded; it basically says that it is a consideration to be taken into account. So, unless the minister can convince me that this is a guaranteed recipe for extending disputes and allowing what you might think of as rorting behaviour, I am inclined to support the amendment.

The Hon. P. HOLLOWAY: That is best answered with a corollary: given that this clause has been around for a long time, is there any evidence that the current provision is inadequate in relation to providing that component of compensation to landowners? I do not believe that that is the case.

The Hon. D.W. RIDGWAY: That is one of the reasons we have had this amendment drafted. As I said in my opening remarks, I was contacted when I was shadow minister by landowners who felt they were unduly affected by the need to get legal representation. In one particular case, a farming operation that earned particularly low commodity prices felt that it was a cost they should not have to bear but, nonetheless, they had to. This just allows for the playing field to be a little more level, particularly if the landowner is not flushed with funds at the time.

The Hon. D.G.E. HOOD: I just have a question of the mover. It seems to me that the mover's amendment would be encapsulated by paragraph (c), if you like, or any other related matter. Does the mover agree with that and, if not, why not?

The Hon. D.W. RIDGWAY: It is my understanding that it just clarifies it and makes it a bit more certain. The Hon. Mark Parnell said that, if it does not do any harm and perhaps clarifies it a little better, it is worth doing. Certainly, in the negotiations that the shadow minister and I have had, we seem to think that it adds a bit more clarity.

The Hon. P. HOLLOWAY: The government would argue that, once you put it in there, it would act as an encouragement, whereas the court should, under the existing act, properly consider any other relevant matters, which would include the reasonable cost of negotiations. If this is put in, it will be like bees to a honeypot. Time will tell, but it is for that reason that the government opposes it. Obviously, the impact of it is very difficult to determine.

The committee divided on the new clause:

AYES (13)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Hood, D.G.E. Jennings, T.A.
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. (teller) Stephens, T.J. Vincent, K.L.
Wade, S.G.
NOES (6)
Finnigan, B.V. Gago, G.E. Gazzola, J.M.
Holloway, P. (teller) Hunter, I.K. Zollo, C.

Majority of 7 for the ayes.

New clause thus inserted.

Clauses 34 to 37 passed.

Clause 38.

The Hon. P. HOLLOWAY: The Hon. Mr Ridgway kindly pointed out a potential unintended consequence of this clause in relation to an authorisation to use declared equipment within or adjacent to a specially protected area; that is, a marine park, Adelaide Dolphin Sanctuary or River Murray protection area.

Pursuant to section 59 of the act, where an application for an authorisation to use declared equipment is situated within a specially protected area, the application must be referred to the relevant minister. If the relevant minister and the mines minister cannot agree, the minister responsible for mines must take steps to refer the matter to the Governor. The bill proposes to replace the mines minister with the Director of Mines. I propose to correct this clause 38 of the bill to ensure it remains as the minister responsible for mines. I move:

Page 24, lines 12 to 14—Delete subclause (4)

I thank the honourable member.

The Hon. D.W. RIDGWAY: I am delighted he is thanking me and I indicate we will support the amendment.

Amendment carried.

The Hon. R.L. BROKENSHIRE: I advise the committee that my amendments Nos 23 and 24 are consequential so I will not proceed with them.

Clause as amended passed.

Clause 39 passed.

New clause 39A.

The Hon. D.W. RIDGWAY: I move:

Page 24, after line 38—Insert new clause as follows:

39A—Compensation

(1) Section 61—after subsection (2) insert:

(2a) The compensation may include an additional component to cover reasonable costs reasonably incurred by an owner of land in connection with any negotiation or dispute related to—

(a) the licensee gaining access to the land; and

(b) the activities to be carried out on the land; and

(c) the compensation to be paid under subsection (1).

(2) Section 61—after subsection (5) insert:

(5a) In assessing compensation under subsection (2a), costs in connection with any negotiation or dispute will not be taken to be reasonably incurred if they arise during any period when a reasonable offer of compensation is open to be accepted by the relevant owner of the land.

This relates to mining leases and compensation. It is basically the same as we have just discussed for miscellaneous purpose licences. I do not think we need to go through the debate and I look for members' support.

The Hon. P. HOLLOWAY: The government opposes the clause, but, given the debate on a similar matter, I will not divide on this occasion.

New clause inserted.

Clause 40.

The Hon. R.L. BROKENSHIRE: The way I look at this, really one could argue that you would debate this one after my amendment 26. Given the way the bill is drafted, I will speak to this amendment. This amendment empowers the minister—and I love giving the minister lots of power—to require a security from a miner, not an explorer, so, not during the exploration stage, but during the mining stage, to be lodged with the minister to meet a possible need to acquire land. It will be evident from commencement of operations that in some cases there will be such a substantial impact that there is a real prospect of the need to—

The Hon. A. Bressington interjecting:

The Hon. R.L. BROKENSHIRE: I move:

Page 25, after line 1—Insert:

(1) Section 62(1)—after paragraph (b) insert:

and

(c) to such extent that the Minister may consider to be appropriate in the circumstances—any obligation to make a payment under section 62A,

I thank the Hon. Ms Bressington.

An honourable member interjecting:

The Hon. R.L. BROKENSHIRE: Well, I am from the country and I am allowed to be slow—that is my excuse. It will be evident from commencement of operations that in some cases there will be such a substantial impact that there is a real prospect of the need to acquire land. This power will simply activate the duty of care the government has to the landowner to ensure the miner has the financial capacity to pay out if it want to compel acquisition of the land.

Mining operations can have a tenuous financial status until they really get going. Often, they are still raising more funds once they have already started mining, so it is only fair that a security or bond be sought when there is concern about the viability of the miner and their capacity to pay out the farmer or property owner (or even the government, if it happened to be the property owner) should there be a significant impact on use, enjoyment and economic viability of the farm.

In the next amendment, the minister tabled one very similar to mine, so there is common agreement between the government and my party that there should be opportunities for landowners with compulsory acquisition of the land. It would be fairly senseless having that clause in there but not ensuring that the minister, when the minister has information or is concerned that there may not be sufficient security, has that security there.

I point out to members that this is already happening with a lot of land divisions. Developers quite often have to pay bonds during the process of development for that very reason, so that they do not get half way through the development and not be able to proceed. There are precedents in law, and I think it makes common sense.

The worst case scenario would be that someone starts mining on the property, starts to make a mess as they go through the unravelling of top layers to get to the minerals, negotiates for the sale of the land through the next amendment and then it is discovered that they do not have the money because they have not been able to raise it on the Stock Exchange or in other places. I trust that the government and my colleagues will consider this amendment positively.

The Hon. P. HOLLOWAY: The government opposes the amendment. The Hon. Mr Brokenshire's amendment No. 25 proposes to amend the bond and security provisions in the act to enable the minister to make payments from the bond held as security for rehabilitation under new section 62A, which is proposed by the honourable member in his amendment No. 26 dealing with the acquisition of land. As I indicated, I will move an amendment to this as well.

The bond provisions under the act are primarily in place to secure both present and future rehabilitation obligations. It is a condition of the lease or licence that public liability insurance must be maintained. Any civil liability is likely to be covered under this insurance.

The Hon. D.W. RIDGWAY: We will not support the Hon. Mr Brokenshire's amendment at this stage, but we will support the government's amendment.

Amendment negatived; clause passed.

New clause 40A.

The Hon. R.L. BROKENSHIRE: I move:

Page 25, after line 3—Insert:

40A—Insertion of section 62

After section 62 insert:

62A—Right to require acquisition of land

(1) If the activities of a mining operator on land substantially impair the owner's use and enjoyment of the land, the owner may apply to the Land and Valuation Court for an order under this section.

(2) Without limiting subsection (1), in the case of land used wholly or predominantly as a farm, the owner's use and enjoyment of the land will be taken to be substantially impaired under that subsection if the farming business conducted on the land has been rendered economically unviable by the activities of the mining operator.

(3) The Court may, on an application under this section—

(a) make an order transferring the owner's land to the holder of the relevant mining tenement; and

(b) order the holder of the relevant mining tenement to pay to the owner, by way of compensation—

(i) an amount equivalent to the market value of the land; and

(ii) a further amount the Court considers just by way of compensation for disturbance; and

(c) make such other ancillary or related orders as the Court thinks fit.

Hopefully, this might be a chance in the showdown to win in at least one quarter. This amendment is very similar to that of the government. I gather that the government has looked at this amendment and seen merit in it. The only difference now between my amendment and the minister's amendment is one subclause. My amendment has subclauses (1), (2) and (3) and the minister's amendment has subclauses (1) and (2). I will explain the difference in a moment.

As I stated in the second reading debate, this is an important amendment empowering a farmer or any other landholder who has lost substantial use and enjoyment of the land to go to the miner and ask them to buy out that business. I raised this issue with the South Australian Chamber of Mines and Energy, and in the meeting in my office they indicated that they saw merit in this.

Subsequently, a couple of weeks later, they indicated to my colleague, the Hon. Dennis Hood, that they had concerns about it. At the meeting in my office, the CEO said that this has merit because they would prefer to buy out the farmer or landowner and have full autonomy and control over the issue and not have to worry about all the issues of mining within 400 metres of a home and so on.

I have had a mixed message from them, but I believe that it need not be legislated, that is, a business negotiation between farmers/landowners on one hand and a miner on the other. However, those negotiations will only be fair if the farmer/landowner has the capacity, should the negotiations break down, to go to the Land and Valuation Court for a determination of fair market value. This amendment, which we note that the government has pretty much copied and tabled, provides what I believe is justice and a legislated assessment process in that situation.

To explain in a little more detail (and I will be as brief as possible), on Tuesday the minister tabled an amendment in largely similar terms to what I have before us now, save that the economic viability test has been excluded. I do not see that as meaning that economic viability is an irrelevant consideration under the use and enjoyment test that exists under both the minister's amendment and ours.

However, I do feel that it is important that substantially damaged farming economic viability be specifically stated as a ground for seeking acquisition. I remind members that this applies only to mine operators and not to explorers. So, we are talking about a situation where mining certainly has begun or is about to begin.

I know that the shadow minister said you could argue with economic viability that it might be about commodity prices. That is not the intent, and in the discussions my office had with parliamentary counsel that was not the intent. Commodity prices are commodity prices but if you have enough impact on that farming property—and I talk of farming properties because most of the time it is on farming property—your economic viability can be destroyed because your pasture and crop rotations can be much different to what you would have. There could be huge areas of the farm that you cannot actually run stock on or crop for a long period of time, or if at all, in the future. So it has an impact on economic viability as well as on the owner's use and enjoyment of the land, and we believe in the best interests of clarity for farmers and other landholders, if it has specific economic viability impacts, then that should be an argument considered in the compensation.

The Hon. P. HOLLOWAY: I move:

Page 25, after line 3—Insert:

40A—Insertion of section 62

After section 62 insert:

62A—Right to require acquisition of land

(1) If the activities of a mining operator on land substantially impair the owner's use and enjoyment of the land, the owner may apply to the Land and Valuation Court for an order under this section.

(2) The court may, on an application under this section—

(a) make an order transferring the owner's land to the holder of the relevant mining tenement; and

(b) order the holder of the relevant mining tenement to pay to the owner, by way of compensation—

(i) an amount equivalent to the market value of the land; and

(ii) a further amount the court considers just by way of compensation for disturbance; and

(c) make such other ancillary or related orders as the court thinks fit.

The amendment that I have moved seeks to adopt the same provisions currently in the Petroleum and Geothermal Energy Act 2000, and we had some discussion on this matter when we discussed earlier clauses of the bill on Tuesday. I should point out that there have been ongoing discussions between PIRSA and SACOME which indicate that this amendment (and Mr Brokenshire's, for that matter) may consequentially impose unrealistic opportunities with respect to claims for acquisition on the exploration industry whose activities are generally short-term and low impact.

Although the government supports the amendment at this stage, we propose further discussions with industry to narrow this amendment only to apply to all tenements, other than exploration licences, before we come back and revisit this matter by way of recommittal. I think everyone in this council understands the issue we are trying to deal with which is the uncertainty in some cases where you have uncertainty hanging over a land holding. It would be good to find some way of resolving that, but it is a fairly complex issue. Obviously it is important we get this right, so I ask the council's support for my amendment at this stage but I indicate that we will have further discussions with SACOME, and I guess the opposition, over the break and we will finalise our position when we revisit this bill in September.

The Hon. D.W. RIDGWAY: I indicate that the opposition will be supporting the government's amendment but, given that the minister has indicated he wants to have further discussions, we will certainly be prepared to listen and be involved in those discussions and if need be make the necessary adjustments when we return in September.

The Hon. M. PARNELL: When comparing these two amendments side by side, I appreciate what the Hon. Rob Brokenshire is seeking to do; however, I am inclined at this stage to support the government version of this amendment simply because the Hon. Robert Brokenshire's version has this test of whether farming business conducted on the land has been rendered economically unviable by the activities of the mining operator. The mover acknowledged this as much himself in his contribution that determining what is economically unviable is very difficult. If you have someone who is happy to live a close to subsistence lifestyle and is happy to have an annual income of $5,000 a year, then there is probably a fair bit of impact and they might still be happy that their property is viable. Someone else who needs a higher rate of return to pay off considerable debt or they have a large family, then the test for them will be different.

It seems to me that in any case once the dispute has gone to the court, then all those matters can be taken into account by the court. The court can actually determine whether doing justice to the case and being fair to both parties requires the land to be acquired or not. So even though I have been talking about my 'do no harm' test, I think there is enough uncertainty in the Hon. Robert Brokenshire's amendment that it possibly creates more problems than it solves but I take some comfort in the fact that I think all of the matters that the honourable member wants to see taken into account by the decision-maker in resolving these disputes will in fact be taken into account.

The Hon. R.L. BROKENSHIRE: I thank the minister for having a close look at my amendment. Part of a win is better than no win at all, so I will support the minister's amendment, but I reserve my right to talk to the minister during the break and try to convince him and the opposition to look at further opportunities for compensation.

The Hon. R.L. Brokenshire's new clause negatived; the Hon. P. Holloway's new clause inserted.

New clause 40B.

The Hon. D.W. RIDGWAY: I move:

Page 25, after line 3—Insert:

40A—Amendment of section 63—Extractive Areas Rehabilitation Fund

Section 63(4)(b)—delete paragraph (b)

This relates to the Extractive Areas Rehabilitation Fund. In particular, it limits the amount of money to be spent in a particular year. The amendment bill provides:

The minister may expend any portion of the fund for any of the following purposes...that the total expenditure in a single financial year of cost in ensuring that the land referred to...it must not exceed an amount equal to 4¢ per tonne of extractive minerals on which the royalty payable into the fund for the financial year preceding that year.

I think the reason that that was done was that, at the time, there was a limited amount of money in the Extractive Areas Rehabilitation Fund. I think there is quite a significant amount of money in that fund at the moment—somewhere near $20 million. I do not think the government has contemplated it in this amendment, but most of the rehabilitation now is quite expensive.

There appears to be a significant amount of money in the fund, yet the minister is limited in the amount of money he can release for rehabilitation projects. We suggest that this might be an opportunity to release some more of that money from the fund to allow some of the more expensive rehabilitation projects to take place.

The Hon. P. HOLLOWAY: The government strongly opposes this amendment. The Hon. Mr Ridgway's amendment proposes to delete the provision in the act which provides for the payment of moneys from the Extractive Areas Rehabilitation Fund for compliance. The effect of this amendment would be to prevent the use of the fund to support PIRSA officers in undertaking compliance activities which, consequently, prevent the blowout of the liability on the fund; that is, the fund could not be used to ensure programs for environmental protection that include progressive rehabilitation.

This amendment, we believe, would not be supported by the extractive industry because any blowout on liability would impact on the ability of the fund to meet rehabilitation liabilities and potentially increase royalties for the extractive industries. I also point out that when these clauses were changed to put in this special part of the fund for compliance, it was negotiated with the industry.

In fact, it is one of the rare cases I can ever recall, as a minister, when an industry came wanting to pay a levy to get extra compliance, and that was because some of the larger quarries (if I recall correctly) were concerned that some of the smaller ones (including some allegations about councils' use of quarries and so on) were not actually contributing or were mining illegally.

Therefore, those quarries that were operating according to the law and providing funds into the Extractive Areas Rehabilitation Fund for the rehabilitation of quarries had a fear that there were quarries operating illegally and having a competitive advantage because they were not paying into the fund, and they were very keen to support part of the levy going for compliance. That is why the government strongly opposes the removal of that provision.

The Hon. M. PARNELL: If the minister is right, I will support the minister. However, if the minister is wrong, I am going to support the Hon. David Ridgway. The reason for my saying this is that (and I might have misread this) my understanding is that what the Hon. David Ridgway is doing is not removing the ability to spend money on compliance and prevention of damage and all the other things, he is just removing the artificial cap on the amount that can be spent on those purposes.

In fact, as I took the honourable member's amendment, if you remove a cap you free up more money to spend on those tasks rather than less. I am happy for the minister to take some advice because if he is right and the honourable member's amendment makes it harder to spend money on those good purposes the minister outlined, then I will not support the Hon. David Ridgway. However, if all the Hon. David Ridgway is doing is removing an artificial cap, I may be inclined to support that.

The Hon. D.W. RIDGWAY: It was the people in the extractive industries who came to the opposition saying that it was an impediment that the minister was not able to release sufficient funds for them to undertake it. So, that is my understanding of what I am trying to achieve. I know the shadow minister gave some instructions to the very hardworking parliamentary counsel as to what we were trying to achieve, so I hope that is what we are doing. That is certainly the way I read it.

The Hon. P. HOLLOWAY: Following advice from parliamentary counsel, I checked that it may remove the cap, so in that case I withdraw my opposition to it at this stage. We will look at it again and, if there is any problem, we can always revisit it. However, acting on that advice, I withdraw my opposition to the amendment.

New clause inserted.

The Hon. R.L. BROKENSHIRE: I advise the committee that, because they are consequential, I withdraw my amendments Nos. 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 and 41.

Clauses 41 to 51 passed.

Clause 52.

The Hon. D.W. RIDGWAY: I move:

Page 33, lines 16 to 21—Delete subclauses (1), (2) and (3) and substitute:

(1) Section 73O(1)—delete 'An inspector, or any person authorised in writing by the Director,' and substitute:

An authorised officer

(2) Section 73O(2)—delete 'inspector or an authorised person' and substitute:

authorised officer

(3) Section 73O(4)—delete 'inspector or an authorised person, or a person assisting an inspector or an authorised person' and substitute:

authorised officer, or a person assisting an authorised officer

We are a bit intrigued as to why we would have 'any person authorised' and not have just 'authorised officer'. So, we are keen to amend this clause to use the term 'authorised officer', rather than 'an inspector, or any person authorised'.

The Hon. P. HOLLOWAY: The government opposes this amendment. The Hon. Mr Ridgway's amendments 12 and 13 both propose to limit inspectors to authorised officers only. This amendment is unnecessary as it limits the ability to enforce compliance on private mines.

The Hon. M. PARNELL: The Greens are not supporting this amendment.

Amendment negatived; clause passed.

Clauses 53 and 54 passed.

Clause 55.

The Hon. M. PARNELL: I move:

Page 35, lines 29 to 32—Delete this clause and substitute:

55—Substitution of section 74A

Section 74A—delete the section and substitute:

74A—Compliance orders

(1) Any person may apply to the ERD Court for an order to remedy or restrain a breach of this act (whether or not any right of that person has been or may be infringed as a consequence of that breach).

(2) Proceedings under this section may be brought in a representative capacity.

(3) If proceedings under this section relating to mining operations conducted on land are brought by a person other than the owner of the land, the applicant must serve a copy of the application on the owner of the land within 3 days after filing the application with the ERD Court.

(4) If proceedings under this section are brought by a person other than the minister or the director, the applicant must serve a copy of the application on the Minister with 3 days after filing the application with the ERD Court.

(5) An application may be made without notice to any person and, if the ERD Court is satisfied on the application that the respondent has a case to answer, it may grant permission to the applicant to serve a summons requiring the respondent to appear before the court to show cause why an order should not be made under this section.

(6) An application under this section must, in the first instance, be referred to a conference under section 16 of the Environment, Resources and Development Court Act 1993.

(7) If—

(a) after hearing—

(i) the applicant and the respondent; and

(ii) any other person who has, in the opinion of the ERD Court, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings,

the court is satisfied, on the balance of probabilities, that the respondent to the application has breached this act or a repealed act; or

(b) the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard,

the court may, by order (a compliance order)—

(c) require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the breach, including so as to stop any mining operations;

(d) require the respondent to make good the breach in a manner, and within a period, specified by the court, including to take specified action to rehabilitate any land;

(e) require the respondent to pay to any person who has suffered loss or damage as a result of the breach, or incurred costs or expenses as a result of the breach, compensation for the loss or damage or an amount for or towards those costs or expenses;

(f) if the court considers it appropriate to do so, require the respondent to pay an amount, determined by the court, in the nature of exemplary damages, into the general revenue of the state;

(g) require the respondent to take such other action as may appear appropriate to the court.

(8) In assessing damages under subsection (7)(f), the ERD Court must have regard to—

(a) any detriment to the public interest resulting from the breach; and

(b) any financial or other benefit that the respondent sought to gain by committing the breach; and

(c) any other matter it considers relevant.

(9) The power conferred under subsection (7)(f) can only be exercised by a judge of the ERD Court.

(10) The minister, and any person who is served with a copy of the relevant application under subsection (3), is entitled to appear and be heard in the relevant proceedings before a compliance order is made under this section.

(11) If, on an application under this section or before the determination of the proceedings commenced by the application, the ERD Court is satisfied that, in order to preserve the rights or interest of parties to the proceedings or for any other reason, it is desirable to make an interim order under this section, the court may make such an order.

(12) An interim order—

(a) may be made on an application without notice to any person; and

(b) may be made whether or not the proceedings have been referred to a conference under subsection (6); and

(c) will be made subject to such conditions as the ERD Court thinks fit; and

(d) will not operate after the proceedings in which it is made are finally determined.

(13) The ERD Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order previously made under this section.

(14) A person against whom a compliance order is made must comply with the order.

Maximum penalty: $250,000.

(15) Proceedings under this section may be commenced at any time within 3 years after the date of the alleged breach or, with the authorisation of the Attorney-General, at any later time.

(16) An apparently genuine document purporting to be under the hand of the Attorney-General and to authorise the commencement of proceedings under this section will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of the authorisation.

(17) A person may apply to the ERD Court for a determination by the court that proceedings brought by the person under this section are public interest proceedings.

(18) If the ERD Court is satisfied, on application under subsection (17)—

(a) that the purpose of the applicant in bringing the proceedings is wholly or predominantly to advance or protect the public interest, being an interest of members of the public generally or a significant segment of the public (being an interest that may include, or may not include, a financial interest); and

(b) that in the circumstances it is appropriate to make an order,

the Court may declare that the proceedings brought by the applicant are public interest proceedings.

(19) If the proceedings are declared to be public interest proceedings, then the ERD Court, and court hearing an appeal (if any) in relation to the proceedings, will not make an order as to costs against the person who has the benefit of the declaration in connection with the proceedings unless—

(a) the order is made under section 17 or 29 of the Environment, Resources and Development Court Act 1993; or

(b) the court considers that the interests of justice require that the order as to costs be made; or

(c) in the case of proceedings on appeal—the court considers that the declaration that the proceedings are public interest proceedings should not have been made, or should be revoked.

(20) An order as to costs under subsection (19)(b) may specify the maximum costs that may be recovered against the person who has the benefit of the declaration that the proceedings are public interest proceedings.

(21) Subject to taking into account the principles reflected in subsections (17) to (20) (inclusive), a court may make such orders in relation to the costs of proceedings under this section as the court thinks fit.

This lengthy amendment is the subject of considerable discussion and negotiation in the environmental law community about the best method of ensuring that a civil enforcement regime is included in the Mining Act. As members may know, in almost all our pieces of environmental legislation, including the Development Act, the Environment Protection Act and the Natural Resources Management Act, there is a provision that allows for civil enforcement. What I mean by civil enforcement is the ability of a person to enforce the provisions of the act. That person can be an authorised officer or someone from the government, but it can also be someone from outside government. The circumstances in which an outside person would want to enforce the act are those where the government refuses or fails to do the right thing—refuses or fails to enforce the act.

There are a couple of really basic principles in our legal system. Number one is probably possession is nine-tenths of the law, but number two is that you can do anything you want in this world until someone stops you. So in other words you need to have mechanisms for people to be able to go to a decision-maker to insist on compliance with the law. If you do not have such a provision, then governments can ignore the law willy-nilly, and it is exceedingly difficult for anyone in the community to go to court and insist that the law be applied.

People might be aware of the idea of a judicial review, where you can go to the Supreme Court and you can insist that a decision-maker follow the right process, but judicial review provisions are limited to a very small range of people who have an economic interest in the matter and therefore are given legal standing. The beauty of a civil enforcement provision is that you do not need to have such a vested interest.

This matter is very close to my heart, because I think I was pretty much the first person to ever attempt to use a civil enforcement procedure in court. That was section 104 of the Environment Protection Act, on which this current amendment is loosely based. That case involved, as members might recall, the Whyalla Red Dust action group taking action against OneSteel to insist that the law be complied with and that proper environmental standards be enforced. It is a glaring omission in our resource statutes, our environmental laws, that there is no ability for the community to in fact enforce the provisions of this act.

This amendment provides that opportunity. It inserts a new section 74, compliance orders, and it basically provides that any person may apply to the ERD Court for an order to remedy or restrain a breach of the act, whether or not any right of that person has been or may be infringed as a consequence of that breach. In other words, it would enable a group of people acting in the public interest to insist that the environmental provisions of this act that we are going to be approving with the passage of this bill are in fact enforced. If we leave it entirely up to government to enforce the law, and if government is found wanting, there is nothing we can do about it in the absence of a civil enforcement mechanism. That is why such a mechanism has been inserted into all those other acts I described—the Development Act, the Environment Protection Act and the Natural Resources Management Act. We need to include such a provision in this legislation.

I am not going to go through the four pages of this amendment, but I will just say that it has been drafted with some skill and care by parliamentary counsel on a series of instructions that I have put together, having consulted very widely with the environmental law profession. I understand that it may not have the support of the opposition, so I am not going to speak at great length, other than to say that I am very grateful to now have the precedent provision. I will give notice that I will now seek to reform the civil enforcement provisions in the Development Act, in the Environment Protection Act and in the Natural Resources Management Act. So this is not a wasted amendment; I still believe that it is deserving of support and I look forward to members supporting it.

The Hon. P. HOLLOWAY: The government will not support it. The Hon. Mr Parnell's amendment would give any member of the public the power to ask the ERD Court to issue a compliance order against a tenement holder, and the amendment allows for exemplary damages to be awarded for any breach, and if the proceedings are considered in the public interest then costs may not be awarded to the person who has brought the matter to the court. Experience in other jurisdictions where this power is available has shown that it may be abused and used to significantly frustrate legitimate operators.

The Hon. Mr Parnell's amendment mirrors similar legislative provisions in Victoria, where any person can appeal to the Victorian Civil and Administrative Tribunal, which has resulted in significant impediment to the resources sector due to high costs and major delays of waiting for the matter to be heard, and again I do not think there is any demonstrated real benefit to the community as a result of that. The power is unnecessary, as there are adequate powers under other sections for ensuring compliance by the government, and we should point out that mining compliance is a highly technical area and you do need suitably qualified persons to determine if a breach has occurred and the potential risk to the environment that may result from any breach. The first thing you do if there is something is to bring in the experts to assess it, so for those reasons the government opposes the amendment.

The Hon. D.W. RIDGWAY: The Hon. Mr Parnell was 100 per cent right. The opposition will not be supporting his amendment.

Amendment negatived; clause passed.

Clauses 56 to 70 passed.

Clause 71.

The Hon. P. HOLLOWAY: I indicate that there are some amendments to the schedule but, given that we moved earlier to consider clause 6 after the other clauses, now is an appropriate time to report progress. We have almost completed debate on this bill and, when we come back in September, we will be in a good position to deal with the handful of outstanding issues.

Progress reported; committee to sit again.

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