Wednesday, 5 June 2019

 Mr PALLAS (Werribee—Treasurer, Minister for Economic Development, Minister for Industrial Relations) (10:16): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Mineral Resources (Sustainable Development) Amendment Bill 2019.

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The main purposes of the Bill are to establish the Mine Land Rehabilitation Authority (the Authority) and its Board, provide for the rehabilitation of declared mine land and the establishment of a declared mine land register, and establish the Declared Mine Fund. The Bill achieves these purposes by making relevant amendments, to the Mineral Resources (Sustainable Development) Act 1990 (the Act) and consequential amendments to other Acts. Declared mine land is defined to mean land covered by a mining licence that includes a declared mine, or land covered by other specifically identified licences. Declared mines are defined in the Act as specified mines that the Minister considers to pose a significant risk to public safety, the environment or infrastructure, and are subsequently declared to be so by Ministerial order.

I note at the outset that the holders of the licences effected by the Bill are primarily corporations rather than individuals; however, to the extent that some licence holders may be individuals, I discuss the relevant human rights issues raised by this Bill below.

I also note that the Authority will replace and succeed the Latrobe Valley Mine Rehabilitation Commissioner, and will be given the current functions and powers of the Commissioner under the Act, as well as some additional functions and powers. To the extent that these powers and functions may interfere with human rights, I only discuss the additional functions and powers.

Human Rights Issues

Privacy and property rights

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference with privacy will not be ‘unlawful’ where it is permitted by a law which is precise and appropriately circumscribed. Interferences with privacy will not be ‘arbitrary’ provided they are reasonable in the particular circumstances, and just and proportionate to the legitimate end they seek to achieve.

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. An interference with property may amount to a ‘deprivation’ in circumstances where it effectively prevents a person from using or dealing with their property. However, the Charter permits deprivations of property so long as the powers which authorise the deprivation are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

Some provisions in the Bill may interfere with privacy and property rights; however, in my view these interferences are minimal, are likely to apply to corporations rather than individuals, and, in any event, are clear, reasonable and proportionate. I therefore consider the provisions not to limit these Charter rights.

Rehabilitation works

Clause 10 of the Bill amends section 83(1)(a) of the Act to insert additional grounds on which the Minister may take necessary action to rehabilitate certain land. The additional grounds include where the land is declared mine land and the Minister is not satisfied that the land has been rehabilitated, or the Minister is satisfied that it requires further rehabilitation in accordance with an applicable declared mine land rehabilitation plan. The primary responsibility for rehabilitation under the Act remains with the relevant licensee or authority holder; under section 81(3), the Minister may only carry out rehabilitation if they have requested the licensee or authority holder to do so and this has not been done within a reasonable period. Under section 81(4), the Minister may recover as a debt due to the Crown any amount by which the rehabilitation costs exceed the relevant bond otherwise owing to the licensee or authority holder.

Rehabilitation works may in some instances interfere with the privacy and property of relevant licensees and authority holders. However, in my view any such interferences will be neither unlawful nor arbitrary, and therefore do not amount to a limit on either right under the Charter. The obligations to rehabilitate land are set out in the relevant rehabilitation plans, authorities and licence conditions that apply to that land, which licensees and authority holders are aware of and have elected to be subject to by virtue of their involvement with relevant land. The Minister will only conduct rehabilitation works to the extent that such works are necessary, due to the failure of the licensee or authority holder to discharge those obligations themselves. As such, I consider any interference with privacy or property occasioned by clause 10 to be lawful and proportionate to the objectives of the provision.

Notices requiring authority holder to take action or stop work

Clause 45 of the Bill amends section 110(l)(b) of the Act to provide an additional ground on which the Minister may issue a notice to require an authority holder to take specified action in relation to certain contraventions (here, failure to comply with a declared rehabilitation plan), cease certain activities for a specified period, supply certain plans or information, or carry out or arrange monitoring, surveys, audits or assessments and report to the Minister as to the results. Further, clause 45 extends the application of this provision to former licensees and clause 46 inserts new section 110B of the Act to provide that the Minister may issue a notice to require such action on the part of owners of registered mine land.

In my view, any interferences with the privacy or property rights of authority holders, mine land owners or former licensees occasioned by these provisions are appropriately circumscribed and directly linked to their purpose such that they are neither unlawful nor arbitrary. The Minister may only issue the relevant notices if they believe on reasonable grounds that certain things have or are likely to occur; namely, a contravention of a relevant plan or the Act, or an act or omission that is likely to result in a risk to public safety, the environment, land, property or infrastructure. It is reasonable for authority holders and licensees, both current and former, and owners of relevant land, to be held accountable for the fulfilment of their obligations, including avoiding and remedying contraventions, and to avoid, minimise or remove the risks associated with declared mine land.

Register of declared mine land and comments on licence applications

Clause 44 of the Bill inserts new section 84AZZL(1) into the Act to provide that the Authority must establish and maintain a register of declared mine land registered under new Part 7C of the Act. New section 84AZZL(3) provides that the register must include various documents including copies of any applicable licence (whether or not it is in force) and new 84AZZL(2) provides that the register may be inspected by any person. The register is highly unlikely to contain any personal information; however, to extent that it may (for example, the name of an individual licence holder), any interference occasioned by the inclusion of that information in the register will be minimal. Further, a relevant licensee will have very little expectation of privacy over the information, and given the nature of the land to which the licences apply, and the public interest in ensuring transparency and accountability with respect to such land, it is reasonable for this information to be contained in a public register. In my view, the right to privacy is therefore not limited.

Clause 55 inserts new section 24A into the Act to provide that any person may provide written comments to the Minister on a licence being granted. These comments must then be made available for inspection by any person until the application for the licence is granted or refused. This provision is an extension of existing provisions enabling any person to object to a licence being granted and for such objections to be available for public inspection. For the same reasons as set out above with respect to the register of declared mine land, in my view clause 55 does not limit the right to privacy of licence applicants.

Tim Pallas MP

Treasurer

Minister for Economic Development

 Mr PALLAS (Werribee—Treasurer, Minister for Economic Development, Minister for Industrial Relations) (10:16): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Background

The main purpose of the Bill is to fulfil the Government’s commitments to the Latrobe Valley community and the people of Victoria to implement the recommendations of the Hazelwood Mine Fire Inquiry.

In February 2014, a fire broke out at the Hazelwood coal mine which lasted 45 days, and had significant adverse impacts on the local community. In 2016, the Inquiry established to investigate the fire recommended that a Statutory Authority be established by 2026 or earlier if one of the mines should close. The Inquiry wanted the Authority to have ‘ongoing tenure until all mines have been successfully rehabilitated, and monitoring and maintenance of the Latrobe Valley mines is no longer required.’

In June 2016 the Andrews Labor Government committed to meet the Inquiry’ recommendations through the Hazelwood Mine Fire Inquiry Implementation Plan. ENGIE ceased mining at Hazelwood in March 2017.

This Bill will support the Latrobe Valley and other Victorian communities that face long term impacts from mining and quarrying.

Overview of Bill

The Bill establishes a Mine Land Rehabilitation Authority, clarifies rehabilitation, closure and post-closure obligations and sets up a post closure fund.

The Bill enables the Minister to apply this new regime to future mines that present a significant risk to public safety, the environment and infrastructure using an existing statutory power to declare mines. The Latrobe Valley coal mines are currently the only declared mines.

Mine Land Rehabilitation Authority

The Mine Land Rehabilitation Authority will be established on 1 July 2020. The Authority will take over the Latrobe Valley Mine Rehabilitation Commissioner’s current roles in relation to rehabilitation and the Latrobe Valley Regional Rehabilitation Strategy. The Authority’s rehabilitation role will extend to declared mines. The Authority will be engaged in monitoring, maintaining and managing registered declared mine land.

The Authority will register post-closure declared mine land. The Authority may become the owner of registered declared mine land, if this is needed to protect the public, infrastructure and the environment. The Authority will be empowered to perform or contract for any functions arising from its role as landholder of declared mine land, for example managing any ongoing risks of fire or other emergencies.

Declared mine land rehabilitation .and closure obligations

Declared mines will be required to have declared mine rehabilitation plans. Declared mine rehabilitation plans will include closure criteria and a post closure plan. The Bill clarifies that rehabilitation will be satisfactory and bonds returned if closure criteria are met. This will be the point of closure. Declared mine rehabilitation plans will continue in force until closure.

Post-closure obligations and the Declared Mine Fund

After a mine is closed the land owner will be responsible for monitoring and maintaining the land. The post closure plan will be registered against the title of the land. The Minister will have the power to enforce the post-closure plan.

The Bill establishes a Declared Mine Fund. The Authority will use the Declared Mine Fund to meet the ongoing costs of managing declared mine land post-closure. The criteria and processes for assessing contributions to the Fund will be set in regulations.

It is intended that amounts contributed by individual licensees to the Declared Mine Fund will be used for the maintenance and management of that specific mine, avoiding risks associated with cross-subsidisation. These amendments make the liabilities and responsibilities of mine operators more explicit rather than increase them.

The declared mine land rehabilitation framework in the Bill is enabling—detail will be in regulations. The changes will start to come into force from 1 July 2020 giving time for full consultation. The time frame for rehabilitation plan changes will be set following this consultation.

Other amendments

The Bill contains three other amendments to the Mineral Resources (Sustainable Development) Act 1990.

The Bill enables the public to comment on the grant and refusal of licence applications. Currently only objections are allowed. This amendment increases the ability of the community to participate in decision-making about exploration and mining.

The Bill allows land owners and mine licence holders to include agreements on non-financial compensation in registered compensation agreements. This amendment gives people who are affected by mining on private land more scope to develop solutions that meet their needs.

The Bill extends the term of prospecting licences to seven years, from the current five years. Prospecting licences were introduced in 2010. They are used by small-scale prospectors and miners. The area of land in a prospecting licence must not exceed five hectares. Prospecting licences cannot be renewed. At present the use of these licences is limited because it can take several years for licensees to fulfil the statutory conditions to commence work. The 2-year extension to the term of prospecting licences will ensure that they remain an effective form of licensing for small scale prospectors.

I commend the Bill to the house.

 Ms STALEY (Ripon) (10:16): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday, 19 June.