Division 6246M Relationship of this Division to other provisions
This Division does not affect any other provision of this Act that:(a) enables an authorisation to be subject to a condition requiring monitoring or reporting, or(b) relates to functions exercisable by persons for the purpose of auditing compliance with this Act, the regulations or conditions of authorisations.
An audit under this Division is a periodic or particular documented evaluation of prospecting or mining operations (including management practices, systems and plant) for any one or more of the following purposes:(a) to provide information on compliance or otherwise with obligations under the authorisation or other related legal requirements under this or any other law (including in relation to the protection of the environment from the impacts of, or the rehabilitation of land affected by, activities under the authorisation),(b) to provide information on compliance or otherwise with codes of practice or policies relevant to the authorisation,(c) to enable a determination of whether the way activities are being carried out under the authorisation can be improved in order to protect the environment.
246O Accreditation and regulation of auditors
The regulations may make provision for or with respect to either or both of the following:(a) the accreditation of auditors for the purposes of this Division,(b) the carrying out of audits by auditors.
246P Conditions for mandatory audits
(1) A condition that requires one or more mandatory audits to be undertaken, to the satisfaction of the Director-General, for any one or more of the purposes referred to in section 246N (a mandatory audit condition) may be imposed on an authorisation.(2) A mandatory audit condition must specify the purpose or purposes of the audit.(3) A mandatory audit condition may require any one or more of the following:(a) appointment of an auditor to undertake the audit,(b) approval by the Director-General of the auditor before being appointed,(c) preparation of particular written documentation during the course of the audit,(d) preparation of an audit report,(e) production to the Director-General of the audit report.(4) A mandatory audit condition may also:(a) specify the format and level of detail required for the audit, or(b) require the auditor to submit the proposed format and level of detail to the Director-General for approval.(5) A mandatory audit condition may be varied or revoked by written notice served on the holder of the authorisation.(6) A condition imposed under this section takes effect on the date on which written notice of the condition is served on the holder of the authorisation or on any later date specified in the notice.(7) This section does not affect the operation of section 75V (Approvals etc legislation that must be applied consistently) or 93 (Granting and modification of approval by approval body) of the Environmental Planning and Assessment Act 1979.
246Q Certification of audit report
The audit report for a mandatory audit is taken not to have been duly produced to the Director-General unless it is accompanied by:(a) a declaration signed by the holder of the authorisation certifying that the holder has not knowingly provided any false or misleading information to the auditor and has provided all relevant information to the auditor, and(b) a declaration signed by the auditor:(i) setting out the auditor’s qualifications, and(ii) certifying that the report is accurate, and that the auditor has not knowingly included any false or misleading information in it or failed to include any relevant information in it.
246R Offences relating to audit information
(1) A person who provides information to an auditor in connection with a mandatory audit, knowing the information to be false or misleading in a material respect, is guilty of an offence.(2) The holder of an authorisation who fails to provide information to an auditor in connection with a mandatory audit being carried out in relation to the authorisation, knowing the information to be materially relevant to the audit, is guilty of an offence.(3) An auditor who includes information in an audit report produced to the Director-General in connection with a mandatory audit, knowing the information to be false or misleading in a material respect, is guilty of an offence.(4) An auditor who fails to provide information in an audit report produced to the Director-General in connection with a mandatory audit, knowing the information to be materially relevant to the audit, is guilty of an offence.(5) The holder of an authorisation who:(a) fails to retain any written documentation required to be prepared by the holder in connection with a mandatory audit for a period of at least 5 years after the audit report concerned was produced to the Director-General (or such other period as is prescribed by the regulations), or(b) fails to produce during that period any such documentation to the Director-General on request,is guilty of an offence.Maximum penalty:
(a) in the case of a corporation—1,000 penalty units, or(b) in the case of a natural person—500 penalty units.
246S Self-incriminatory information not exempt
Information must be supplied by a person in connection with a mandatory audit, and this Division applies to any such information that is supplied, whether or not the information might incriminate the person.
(1) Any information in an audit report or other documentation supplied to the Director-General in connection with a mandatory audit may be supplied by the Director-General to, and taken into consideration by, any person who has functions under this Act, the Environmental Planning and Assessment Act 1979 or the environment protection legislation and may be used by that person for the purposes of those laws.(2) Without limiting subsection (1):(a) the Director-General is authorised, despite any other Act or law, to provide a relevant agency with any such information, and(b) any such information is admissible in evidence in any prosecution of the holder of an authorisation for any offence (whether under this Act or otherwise).(3) In this section, relevant agency means the Department, or a public authority engaged in administering or executing the environment protection legislation, the Environmental Planning and Assessment Act 1979 or such other legislation, if any, as may be prescribed by the regulations.
246U Nature of voluntary audit
(1) For the purposes of this Division, a voluntary audit is an audit commissioned or carried out voluntarily, whether or not in relation to activities carried out under an authorisation.(2) An audit is not voluntary if there is a contemporaneous requirement for a mandatory audit in relation to the same or substantially the same activity or other matter and the audits are to be carried out by the same person.
(1) Documents prepared for the sole purpose of a voluntary audit are protected documents for the purposes of this Act.(2) The protected documents include the final report of the audit and any documents prepared during the course of the audit for the sole purpose of the audit.(3) Without affecting the generality of subsection (1) or (2), documents are not protected if they are prepared wholly or partly in connection with monitoring or reporting that is required by any conditions of an authorisation or by a direction under section 240.
(1) A protected document:(a) is not admissible in evidence against any person in any proceedings connected with the administration or enforcement of this Act, the environment protection legislation or such other legislation, if any, as may be prescribed by the regulations, and(b) must not be inspected, copied, seized or otherwise obtained by the Department, any authority prescribed by the regulations or by any other person for any purpose connected with such administration or enforcement.(2) Neither the Department, a prescribed authority nor any other person may, for the purpose referred to in subsection (1) (b), require a person to answer any question or provide any information about the existence of the document or about what it contains.(3) The onus of establishing that a document is a protected document lies on the person asserting that it is protected.(4) A court may inspect any document that is claimed to be a protected document for the purpose of determining whether it is or is not a protected document.(5) The regulations may prescribe procedures for making and determining claims that a document is a protected document.
(1) Documents prepared in relation to a voluntary audit cease to be protected if the person asserting or relying on the protection uses or relies on (or attempts to use or rely on) the whole or any part of one or more of the documents, whether directly or indirectly, in any proceedings connected with the administration or enforcement of this Act, the environment protection legislation or such other legislation, if any, as may be prescribed.(2) This section does not apply where the person is using or relying on (or attempting to use or rely on) a document for the purpose of establishing that the document is protected.