Wednesday, 29 October 2025

 Lily D’AMBROSIO (Mill Park – Minister for Climate Action, Minister for Energy and Resources, Minister for the State Electricity Commission) (20:32): 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 (Financial Assurance) Bill 2025:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Mineral Resources (Sustainable Development) Amendment (Financial Assurance) Bill 2025.

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

Overview

The Bill amends the Mineral Resources (Sustainable Development) Act 1990 (the Principal Act) and the Mineral Resources (Sustainable Development) Amendment Act 2023.

The amendments will:

(a) introduce a new trailing liabilities scheme relating to the rehabilitation of declared mine land; and

(b) clarify the requirements for and operation of rehabilitation plans and declared mine rehabilitation plans; and

(c) provide additional mechanisms for the variation of mining licences and extractive industry work authorities, and conditions on those licences and authorities; and

(d) require notice of any change in control of corporate declared mine licensees; and

(e) make various other minor and technical amendments to improve the operation of the Principal Act.

Human Rights Issues

The following rights are relevant to the Bill:

• Right to freedom from forced work (section 11(2))

• Right to privacy (section 13)

• Aboriginal cultural rights (section 19)

• Right to property (section 20)

• Right to the presumption of innocence (section 25(1))

• Right to privilege against self-incrimination (section 25(2)(k)).

For the following reasons, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, those limitations are reasonable and demonstrably justified having regard to the factors in section 7(2) of the Charter.

In practice, it is likely that many of the Bill’s provisions regulate corporate entities rather than natural persons due to the nature of mining activities on declared mine land that require significant financial resources to carry out. Corporate entities are not considered a ‘person’ under the Charter and as such, do not attract the human rights specified in the Charter. However, to the extent that the provisions regulate natural persons, the impact on their Charter rights is addressed.

Right to freedom from forced work

Section 11(2) of the Charter provides that a person must not be made to perform forced or compulsory labour. ‘Forced or compulsory labour’ does not include court-ordered community work as a condition of release from detention, work or service required because of an emergency threatening the Victorian community or a part of that community, or work or service that forms part of normal civil obligations.

Amendments in clause 11 of the Bill that insert new sections 84AZZQ, 84AZZX and 84AZZY into the Principal Act may engage this right. New section 84AZZQ provides that the Minister may issue a remedial direction to a person requiring them to take a specified rehabilitation or closure related action if the Minister is satisfied that the declared mine licensee has failed to meet a rehabilitation or closure requirement or is not able to meet a rehabilitation or closure requirement. Section 84AZZX provides that failure to comply with a remedial direction is an offence. New section 84AZZY provides that the Minister may apply to the Supreme Court for an injunction compelling a person to comply with a remedial direction or restraining a person from contravening a remedial direction. These provisions could be viewed as requiring a person to perform forced or compulsory labour, as they enable a person to be compelled to undertake certain activities.

However, in my view, the right to freedom from forced work is not limited by the provisions in this Bill, as any forced labour required would form part of normal civil obligations and is therefore specifically excluded from the scope of section 11(2) by section 11(3)(c) of the Charter.

I am therefore satisfied that the right to freedom from forced work in section 11(2) of the Charter is not limited by clause 11 of the Bill.

Right to privacy

Section 13(a) of the Charter provides that a person has the right not to have their privacy or home unlawfully or arbitrarily interfered with.

Amendments in clauses 11 and 13 of the Bill may engage this right. Clause 11 of the Bill inserts new section ‍84AZZV into the Principal Act to provide that the Minister, by written notice, may require any person to provide the Minister with any information or document that the Minister reasonably considers relevant to the making of a call back determination or a remedial direction. This notice may require the provision of personal information.

Clause 13 of the Bill inserts new section 84AZZZE into the Principal Act to provide that a declared mine licensee that is a body corporate must notify the Department Head of any change in control of the declared mine licensee or of the existence of any prescribed circumstances relating to the control of the declared mine licensee. This notification may require the provision of personal information.

However, to the extent that the amendments in the Bill may interfere with the right to privacy, any interference with the right will not be arbitrary because it will be done in accordance with the law as set out in new sections ‍84AZZV and 84AZZZE of the Principal Act, with the legitimate purpose of ensuring the Government has accurate and up to date information regarding the control of declared mine licensees, which will assist in the operation of the trailing liabilities scheme and in ensuring compliance with obligations under the Principal Act.

I am therefore satisfied that the right to privacy under section 13(a) of the Charter is not limited by clauses 11 and 13 of the Bill.

Aboriginal cultural rights

Section 19(2) of the Charter provides specific protection for Aboriginal persons, providing that Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community, to enjoy their identity and culture, maintain and use their language, maintain kinship ties, and maintain their distinct spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

The rights under section 19(2) are to be read broadly and are concerned not only with the preservation of the cultural, religious and linguistic identity of particular cultural groups, but also with their continued development. Aboriginal cultural rights are inherently connected to the relevant community and the traditions, laws and customs of that community. It can include traditional ways of life including practice of spiritual traditions, customs and ceremonies, and the maintenance of a cultural connection with the land, including the use of natural resources and the preservation of historical sites and artefacts.

Clause 11 of the Bill inserts new section 84AZZQ into the Principal Act, which enables the Minister to issue a remedial direction to a person to undertake certain rehabilitation or closure related activities if satisfied that the declared mine licensee has failed to meet a rehabilitation or closure requirement or is not able to meet a rehabilitation or closure requirement. This may limit this right, as the activities undertaken in compliance with a remedial direction may affect the enjoyment of cultural rights. However, the Bill requires that, before issuing a remedial direction in relation to action that may impact land that is the subject of a recognition and settlement agreement under the Traditional Owner Settlement Act 2010, the Minister must consult with the traditional owner group whose rights are recognised under that agreement.

Mining and extractive industry activities can impact Aboriginal cultural rights, including by limiting access to, or damaging land. To the extent that many of the amendments in this Bill clarify and support compliance with rehabilitation obligations by current and former licence and extractive industry work authority holders and improve the ability to update rehabilitation plans and declared mine rehabilitation plans to ensure satisfactory rehabilitation of the land, the Bill may promote Aboriginal cultural rights.

Further, to the extent that any actions authorised under the amendments made by the Bill affect the enjoyment of cultural rights, the Minister or the Department Head as public authorities will, pursuant to section 38(1) of the Charter, be required to give proper consideration to, and act in a way that is compatible with, human rights, including cultural rights under section 19(2) of the Charter.

As such, to the extent Aboriginal cultural rights under section 19(2) of the Charter may be limited by the Bill, the limitation is reasonable and justified under section 7(2) of the Charter.

Property rights

Section 20 of the Charter provides that a person must not be deprived of that person’s property other than in accordance with the law. This right is not limited where there is a law that authorises a deprivation of property, and that law is adequately accessible, clear and certain, and sufficiently precise to enable a person to regulate their conduct. International jurisprudence supports the view that a ‘deprivation of property’ may not be confined to situations of forced transfer of title or ownership but could include any substantial restriction on a person’s control, use or enjoyment of their property.

The Charter does not define the term ‘property’ and very little Victorian jurisprudence exists with respect to the meaning of ‘property’ under the Charter. The rights recognised under the European Convention on Human Rights may inform how a court will understand property under section 20 of the Charter. Patents and licences have been recognised as possessions.

Amendments in clauses 11, 26 and 27 of the Bill may engage this right.

The new trailing lability scheme introduced by clause 11 has the potential to engage the right to property in a number of ways. The Bill enables the Minister to issue a remedial direction to certain persons requiring them to undertake specified rehabilitation related activities. A person complying with a remedial direction who does not have esoteric knowledge of declared mine land rehabilitation may cause damage or harm to the land of neighbouring communities or private landowners of adjacent properties. The Bill also provides a power for a person complying with a remedial direction to enter declared mine land, which may be seen as depriving the owner or occupier of that land of their property.

Clauses 14, 15, 16 and 17 will introduce more flexible mechanisms to vary licences and extractive industry work authorities, and to vary, suspend or revoke conditions on the licences or authorities, which may be seen to deprive the licence or authority holder of their property.

Clause 26 will introduce a new power for the Minister to authorise persons to enter any land and do anything where the Minister considers it necessary for the purposes of the Minister exercising their power to take any action they consider necessary to rehabilitate land if satisfied that the land hasn’t been rehabilitated in accordance with specified requirements in accordance with section 83(1). Clause 27 will introduce a new offence for hindering or obstructing the Minister or an authorised person from undertaking rehabilitation, without reasonable excuse. These provisions may deprive the owner or occupier of the land, being entered to undertake rehabilitation, of their property.

To the extent that these provisions may deprive a person of their property, the limitation will be in accordance with clear and precise legislation and therefore the right to property is not limited.

Right to be presumed innocent

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Clause 11 of the Bill inserts new section 84AZZX(1) into the Principal Act, which creates a new offence for a called-back person to fail to comply with a remedial direction. Failure to comply with a remedial direction may result in significant penalties. New section 84AZZX(2) provides that in a proceeding for an offence against section 84AZZX(1), it is a defence to the charge for the accused to prove that the accused took all reasonable steps to comply with the remedial direction.

This provision is relevant to the presumption of innocence as it imposes a legal burden on an accused person to prove they took all reasonable steps to comply with the remedial direction if they wish to rely on the defence in section 84AZZX(2).

I am satisfied that, to the extent that this limits the right to be presumed innocent, the limitation is compatible with the Charter because it is justified under section 7(2). This is because imposing a legal burden on an accused person in these circumstances is reasonable, justified and proportionate for the following reasons:

• The purpose of the burden is to ensure that a person to whom a remedial direction is issued cannot easily and unreasonably avoid their obligations to rehabilitate the land. The availability of the defence reflects the policy intention that the trailing liabilities scheme is intended to support effective rehabilitation.

• Remedial directions can only be issued as a last resort measure when the State has exhausted all possible avenues to successfully rehabilitate declared mine land.

• Compliance with a remedial direction is likely to be highly technical. As such, the evidence required to establish the defence will ordinarily be peculiarly within the personal knowledge of the accused and would be difficult for the prosecution to establish without a legal burden.

• A remedial direction can only be issued following consultation with the person to whom it is proposed to be issued. This affords procedural fairness.

• If the defence only placed an evidential burden on the accused this would make it difficult to successfully prosecute non-compliance with a remedial direction, hence the trailing liabilities scheme will be undermined and the burden of rehabilitating declared mine land will fall on the State.

• While placing an evidential burden would place a lesser limitation on the right to be presumed innocent, a legal burden is justified having regard to the purpose and circumstances of remedial direction.

• The prosecution is still required to prove the accused committed the elements of the offence.

• The offence is not punishable by imprisonment.

• Courts in other jurisdictions have held that the presumption of innocence may be subject to reasonable limits in the context of regulatory compliance, particularly where the commission of regulatory offences may cause harm to the public.

As such, I am satisfied that this provision is compatible with the Charter.

Right to privilege against self-incrimination

Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. This right is at least as broad as the common law privilege against self-incrimination. It applies to protect a charged person against any incriminatory admission contained in material obtained under compulsion from that person in any subsequent criminal proceedings against the person, regardless of whether the information was obtained prior to, or subsequent to, the charge being laid.

Amendments in clause 11 of the Bill engage this right. Clause 11 of the Bill inserts new section 84AZZV into the Principal Act to provide that the Minister, by written notice, may require any person to provide the Minister with any information or document that the Minister reasonably considers relevant to the making of a call back determination or remedial direction. New section 84AZZZA provides that a person is not excused from providing information or a document in accordance with a notice under section 84AZZV(1) on the grounds that the information or document might tend to incriminate the person or make the person liable to a penalty. This is critical to ensuring the Minister can obtain information necessary to decide whether to make a determination or direction. However, new section 84AZZZA(2), also to be inserted by clause 11 of the Bill, provides an immunity against both direct and indirect use of the information obtained against the person in criminal or civil proceedings, other than proceedings regarding failure to comply with a request for information, or proceedings regarding provision of false or misleading information. Further, the disclosure or communication of any information provided to the Minister under section 84AZZV(1) will be protected by the secrecy provisions in new section 84AZZZ.

Therefore, in my view, although the right to self-incrimination may be limited, the limitation is justified under section 7(2) having regard to the purpose of the provisions and the fact that the immunity in section ‍84AZZZA(2) ensures that there is no possibility that an individual‘s compliance with the requirement to provide information will assist in their own conviction for an offence (or liability for a civil penalty), except in relation to offences necessary to ensure effective compliance with a requirement to provide information.

Accordingly, I consider that clause 31 is compatible with the right to privilege against self-incrimination section 25(2)(k) of the Charter.

Conclusion

I am therefore of the view that the Bill is compatible with the Charter.

Hon Lily D’Ambrosio MP

Minister for Energy and Resources

 Lily D’AMBROSIO (Mill Park – Minister for Climate Action, Minister for Energy and Resources, Minister for the State Electricity Commission) (20:32): 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:

This Bill amends the Mineral Resources (Sustainable Development) Act 1990 to implement the Government’s public commitment announced on 6 May 2022 to introduce a trailing liabilities scheme in relation to the declared mines, which currently comprise of the three Latrobe Valley coal mines: ENGIE’s Hazelwood mine, Energy Australia’s Yallourn mine and AGL’s Loy Yang mine.

The provisions aim to ensure the mining industry remains responsible for the rehabilitation and closure of the coal mines as Victoria transitions away from coal-fired energy. The Bill is similar to provisions passed by the Commonwealth Government for decommissioning offshore infrastructure.

The Bill will help protect Victorian taxpayers from a worst-case scenario where a declared mine licensee fails to or is unable to meet its rehabilitation obligations. The new provisions will reduce the likelihood that rehabilitation costs are passed on to Victorians; and provide the Government with a new tool to require those who derived greatest financial benefit from mining projects to be responsible for remediating the rehabilitation risks and liabilities caused by the project.

The trailing liabilities scheme is a measure of last resort to provide financial assurance to the State of Victoria where there is no feasible alternative to enforce existing rehabilitation obligations against the current or former declared mine licensee. The trailing liability provisions will not change the existing rehabilitation obligations of the declared mine licensees. The rehabilitation obligations are not new.

The scheme will enable the Minister to ‘call back’ a party, via a remedial direction, to carry out or pay the costs of rehabilitation and post-closure work where the Minister is satisfied it is appropriate to do so. Remedial directions can be issued to a person who, at any time on or after the Victorian Government committed to introducing a trailing liabilities scheme on 6 May 2022:

• is a related body corporate of a current declared mine licensee, including a parent and subsidiary company of the licensee;

• was the holder of a mining licence that covered declared mine land, or was a related body corporate of that former holder;

• is a person determined by the Minister to be a ‘person subject to call back’ only if reasonably appropriate to do so, after considering whether they have or may receive a significant financial benefit from work authorised under a declared mine licence, the degree of influence they have or have had over rehabilitation compliance, and whether they act or acted jointly with the mining licensee.

The Bill allows a remedial direction to be issued to a broad range of persons because the specific ownership and management arrangements of mining operations can vary greatly. The intention is to capture parties who have a sufficiently significant relationship with the declared mine licensee, either through financial benefit, degree of influence, or joint action, for it to be reasonable for them to contribute to rehabilitation. The Bill specifically excludes employees and contractors from being able to be determined by the Minister to be a person subject to call back, to address public concerns that they could be captured. Other parties such as companies or their directors would only be captured if they benefitted significantly financially from the declared mine, substantially influenced the licensee’s compliance with their rehabilitation obligations, or acted jointly with the declared mine licensee. It would be rare for individuals to be captured. Guidance will be issued to assist in the understanding of when the Minister will consider it reasonable to determine a person to be a person subject to call back.

The Bill also makes amendments to require the Department Head to be notified of any change in control of corporate declared mine licensees. This supports the trailing liabilities regime by capturing changes in ownership and would inform any future consideration of related parties who may become subject to the trailing liabilities provisions.

The Bill also amends the Mineral Resources (Sustainable Development) Act 1990 to:

• provide additional mechanisms for the variation of rehabilitation plans and declared mine rehabilitation plans and clarifies the rehabilitation obligations that apply to declared mines.

• address long-standing deficiencies with the Minister’s power to vary mineral licences and extractive industry work authorities, so that the Minister can efficiently and appropriately address emerging risks of harm, including in emergency situations.

• provide more clarity and flexibility for how a Code of Compliance applies under the new duty-based regime to introduced by the Mineral Resources (Sustainable Development) Amendment Act ‍2023.

• make technical and consequential amendments to clarify the operation of the Act.

I commend the Bill to the house.

 James NEWBURY (Brighton) (20:33): 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 12 November.