In this Part:assessed deposit has the meaning given by section 261BC.
group security deposit means a single security deposit that, under a security deposit condition or conditions, is required to be provided and maintained in respect of more than one authorisation.
holder, in relation to an authorisation that has ceased to have effect, means the person who was the holder of the authorisation immediately before it ceased to have effect.
minimum deposit has the meaning given by section 261BF.
obligations under an authorisation means:
(a) any obligations under the conditions of an authorisation, other than an obligation to pay royalty, and(b) any obligations on the holder of the authorisation under Part 11.security deposit condition means a condition of an authorisation imposed under section 261B.
261B Security deposit conditions
(1) A decision-maker may impose a condition on an authorisation that requires the holder of the authorisation to provide and maintain a security deposit to secure funding for the fulfilment of obligations under the authorisation, including obligations under the authorisation that may arise in the future.(2) A condition may be imposed under this section:(a) whether or not the land that is or may be affected by the activities the subject of the obligations or direction is or has at any time been an authorisation area, and(b) whether or not the obligations relate to activities that were carried out by the current holder of the authorisation, and(c) whether or not the obligations relate to activities that were authorised by the authorisation, and(d) if the authorisation has been previously wholly or partly transferred, whether or not the obligations relate to activities carried out under the transferred authority.(3) A security deposit condition may be varied to change the required amount of the deposit (whether the deposit was provided by the holder of the authorisation or by another person) or any other requirement of the condition.(4) A security deposit condition may be imposed or varied:(a) when an authorisation is granted or renewed, or(b) when a full or partial transfer of an authority is approved under this Act, or(c) when a mineral claim is transferred under this Act, or(d) at any other time during the term of an authorisation.(4A) A security deposit condition, or a variation to a security deposit condition, takes effect as follows:(a) in the case of a security deposit condition imposed when an authorisation is granted—when the grant takes effect,(b) in the case of a security deposit condition imposed or varied when an authorisation is renewed—when the renewal takes effect,(c) in the case of a security deposit condition imposed or varied when a full or partial transfer of an authority is approved under this Act—when the transfer is registered under this Act,(d) in the case of a security deposit condition imposed or varied when a mineral claim is transferred under this Act—when the mineral claim is transferred,(e) in any other case—when written notice of the imposition or variation of the condition is served on the holder of the authorisation or on any later date specified in the notice.(5) A security deposit condition may require a single security deposit to be provided and maintained in respect of more than one authorisation held by the same person.(6) This section does not affect the operation of section 89K or 115ZH (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.
261BA Security may be required before application for authorisation is granted
(1) If a decision-maker proposes to grant an authorisation subject to a security deposit condition, the decision-maker may, by notice given to the applicant:(a) advise the applicant of the proposed security deposit condition, and(b) require the applicant to provide the security deposit required to be provided and maintained under that condition before the authorisation is granted.(2) If a decision-maker requires a security deposit to be provided before an authorisation is granted, the authorisation must not be granted unless the security deposit is provided.
261BB Amount of security deposit
The amount of the security deposit that may be required by a security deposit condition is:(a) the assessed deposit for the authorisation concerned as at the date the decision-maker imposes or varies the condition, or(b) if there is no assessed deposit for the authorisation—the minimum deposit for the authorisation as at the date the decision-maker imposes or varies the condition.
261BC Director-General may assess amount of security deposit
(1) The Director-General may assess the amount of the security deposit that may be required by a security deposit condition for a particular authorisation or, in the case of a group security deposit, for a particular group of authorisations.(2) The amount of the security deposit as assessed by the Director-General is the assessed deposit for the authorisation or authorisations concerned.(3) The Director-General must make an assessment if the regulations require an assessment to be made.(4) The Director-General may make an assessment at any other time:(a) at the request of the decision-maker, or(b) on the Director-General’s own initiative.(5) An assessment, and a decision to make or request an assessment, may be made without prior notice to, or consultation with, the holder of an affected authorisation.(6) The Director-General is to make an assessment under this section having regard to the estimated cost of fulfilling any obligations under the authorisation or authorisations concerned, including obligations under the authorisation that may arise in the future.(7) An assessed deposit must not be less than the minimum deposit for the authorisation or, in the case of a group security deposit, the sum of the minimum deposits for all affected authorisations.(8) After an assessment is made, the Director-General must give written notice of the assessment:(a) to the holder of an affected authorisation, and(b) to the decision-maker (if not the Director-General).(9) The notice given to the holder of an affected authorisation must:(a) set out the reasons for the Director-General’s assessment, and(b) advise the holder of the holder’s entitlement to apply for a review of the assessment under this Part.(10) The Director-General is to exercise his or her functions under this section having regard to any guidelines approved by the Minister.(11) An assessment by the Director-General under this section does not affect:(a) the validity of any security deposit condition imposed or varied before the assessment was made, or(b) liability for an administrative levy that arose before the assessment was made.(12) The Director-General may revise his or her assessment under this section. For that purpose, the Director-General may amend, revoke or replace a previous assessment.(13) This section applies in respect of the revision of an assessment in the same way as it applies in respect of an assessment.(14) An assessment may be made in relation to a security deposit condition proposed to be imposed on the grant of an authorisation and, for that purpose, a reference in this section, and in sections 261BD and 261BE, to a holder of an authorisation is taken to include a reference to a person who, on grant, will be a holder of an authorisation.
261BD Application for review of assessed deposit
(1) The holder of an authorisation may apply for a review by the Minister of the Director-General’s assessment of the amount of the security deposit that may be required for the authorisation.(2) The application must:(a) be made in writing, and(b) be made in a form approved by the Minister (if any form is approved), and(c) contain particulars of the grounds for review of the assessment, and(d) contain or be accompanied by such other information or documents as the Minister requires to review the assessment (which requirement may be specified in the approved form or on the Department’s website), and(e) be accompanied by any fee required by the regulations, and(f) be lodged with the Director-General within 28 days after notice is given to the holder of the authorisation of the assessment or within such other period as the regulations may prescribe.(3) The holder of an authorisation is not entitled to apply for a review under this section if the assessment concerned has previously been reviewed under this section.(4) This section applies in respect of a revision of an assessment in the same way as it applies in respect of an assessment.
261BE Review of assessed deposit by Minister
(1) If an application for review of the Director-General’s assessment of the amount of a security deposit that may be required for an authorisation is duly made, the Minister is to review the Director-General’s assessment.(2) In conducting a review, the Minister:(a) is to have regard to any submissions made by the holder of the authorisation in relation to the assessment the subject of the review, and(b) otherwise, has the same functions as the Director-General in relation to an assessment.(3) The review, if conducted by a delegate of the Minister, is not to be conducted by the Director-General or a person who, as the delegate of the Director-General, made the assessment the subject of the review.(4) Following the review, the Minister may:(a) affirm the Director-General’s assessment, or(b) amend the Director-General’s assessment, or(c) set aside the Director-General’s assessment and substitute a new assessment.(5) An assessment, or an amendment to an assessment, that is made by the Minister has the same effect as an assessment, or an amendment, made by the Director-General. However, the assessment or amendment is not reviewable under this section.(6) Any action taken by the Minister under this section does not affect:(a) the validity of any security deposit condition imposed or varied before the action was taken, or(b) liability for an administrative levy that arose before that action was taken.(7) However, if the Minister makes a new assessment, or amends an assessment, the Minister may:(a) vary or, if the decision-maker is not the Minister, direct the decision-maker to vary, a security deposit condition in accordance with the assessment or amendment, and(b) direct the Director-General to reassess any administrative levy payable for an affected authorisation, and for which liability arose before the Minister’s assessment or amendment, in a manner that the Minister considers fair and reasonable.Note. The amount of the security deposit required in respect of an authorisation directly affects the administrative levy payable in respect of an authorisation under Part 14A. In general terms, the levy is one percent of the amount of the security deposit.
(1) The minimum deposit for an authorisation is the amount prescribed by the regulations as the minimum deposit in relation to the type of authorisation concerned.(2) A change to the minimum deposit for an authorisation does not affect the validity of a security deposit condition imposed or varied before the change takes effect.
261C Content of security deposit condition
(1A) A security deposit condition may:(a) be in a standard form, being a form prescribed by the regulations, or(b) be in a form approved by the decision-maker.(1) A security deposit condition (whether in a standard form or otherwise) may include requirements with respect to any one or more of the following matters:(a) (Repealed)(b) the form of the deposit,(c) the date by which the deposit is to be provided,(d) the manner in which the deposit is to be provided and maintained,(e) the provision of information or other material to the Director-General or the Minister that demonstrates that the condition is being complied with,(f) the provision of progress reports on work (and associated costs and expenses) for which the deposit is intended to provide security,(g) the independent auditing of any such work, costs and expenses,(h) (Repealed)(2) A security deposit condition may require the holder of the authorisation to cause a security deposit that has been provided and maintained in relation to another authorisation to be extended to the firstmentioned authorisation.(3) (Repealed)(4) Nothing in this section limits the matters that may be included in a security deposit condition.
261D Form and amount of security deposit
(1) A security deposit may be in (but is not limited to) any of the following forms:(a) a bank guarantee,(b) cash,(c) a bond,(d) another form (such as an insurance policy) that the decision-maker considers appropriate and specifies in the security deposit condition.(2) (Repealed)
261E Security deposit can be taken to be provided for consolidated mining lease or multiple authorisations
(1) A security deposit is taken to have been provided under a security deposit condition of a consolidated mining lease if:(a) a security deposit was provided in compliance with the conditions of one or more of the leases that were consolidated, and(b) the Minister notifies the holder of the consolidated mining lease that, because of the provision of the security deposit referred to in paragraph (a), a security deposit is taken to have been provided under the consolidated mining lease.(2) A security deposit is taken to have been provided under a security deposit condition of an authorisation (the first authorisation) held by a person if:(a) a security deposit was provided in compliance with the conditions of one or more other authorisations held by that person, and(b) the Minister notifies that person that, because of the provision of the security deposit referred to in paragraph (a), a security deposit is taken to have been provided under the first authorisation.
261F Claim on and use of security deposit
(1) The Minister may make a claim on or realise a security deposit provided under a security deposit condition if:(a) the authorisation is cancelled or otherwise ceases to have effect and an obligation under the former authorisation remains unfulfilled, or(b) the holder of the authorisation has failed to comply with a direction under section 240 that relates to the authorisation or to activities carried out under, or purportedly under, the authorisation.(1A) The Minister may make a claim on or realise a security deposit for a failure to comply with a direction under section 240 even if the security deposit condition under which it was provided was imposed before the direction was given.(2) Before making a claim on or realising a security deposit, the Minister must, if practicable, give written notice of the proposed action to the holder of the authorisation or, if the authorisation has been cancelled or has otherwise ceased to have effect, the former holder of the authorisation.(3) The Minister may use money obtained under a security deposit:(a) in the circumstances to which subsection (1) (a) refers—to recover or fund the costs or expenses that the Crown reasonably incurs in causing any obligation under the former authorisation to be fulfilled, or(b) in the circumstances to which subsection (1) (b) refers—to recover or fund the reasonable costs or expenses of the Crown in giving effect to the direction under section 240.(4) The Minister may invest money obtained under a security deposit in interest-bearing deposits in a bank.(5) Any interest accruing on the money is to be paid into the Derelict Mine Sites Fund.(6) Money obtained under a security deposit and used under subsection (3) is taken, for all purposes, to be forfeited to the Crown when it is so used.(7) The functions of the Minister under this Part may be exercised with or without the benefit of a finding by a court or tribunal that the holder of the authorisation concerned has failed to comply with a direction under section 240 or failed to fulfil any obligation under the authorisation.(8) In relation to a group security deposit, a reference in this section to the authorisation is a reference to any authorisation in respect of which the group security deposit is provided and maintained.
261G Lapsing of security deposit requirement and return of money
(1) Any money obtained under a security deposit that is not used under section 261F is to be paid (without interest) to the person who provided the deposit or, if that person is unable to be located despite reasonable endeavours, into the Derelict Mine Sites Fund.(2) The requirement to maintain a security deposit lapses:(a) in accordance with the terms of the security deposit condition, or(b) if the condition does not deal with the lapsing of the requirement, when the Minister has determined that any requirements of the direction under section 240 or obligations under the authorisation (non-compliance with which would authorise a claim on or realisation of the deposit) have been fulfilled to a satisfactory extent and in a satisfactory manner.(3) The Minister must, if practicable, give written notice of that determination to the holder of the authorisation.
261H Security deposit not to affect other action
Nothing in this Part affects:(a) the liability of a person to any penalty for an offence in relation to a direction under section 240 or an obligation under an authorisation or any contravention to which the security deposit relates, or(b) any other action that may be taken or is required to be taken in relation to any contravention or other circumstances to which the security deposit relates.
261I Regulations in relation to security deposits
The regulations may make provision for or with respect to the administration of money or other securities obtained by the Minister under a security deposit.