355A

Offence relating to mining operations

In force

Offence of carrying on mining operations

(1)

A person commits an offence if:

(a)

the person carries on mining operations; and

(b)

the mining operations are carried on in a Commonwealth reserve.

Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.

Note 1:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:

Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

(2)

Strict liability applies to paragraph (1)(b).

Note:

For strict liability, see section 6.1 of the Criminal Code.

(3)

To avoid doubt, subsection (1) does not prevent the doing of anything for the purposes of building or construction, or the supply of water, in a Commonwealth reserve unless the purposes are connected with, or incidental to, mining operations.

Exception for mining operations carried on in accordance with a management plan

(4)

Subsection (1) does not apply to the carrying on of mining operations in accordance with a management plan in operation for the Commonwealth reserve in which the operations are carried on.

Note:

The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

Exception in relation to Kakadu National Park and the Antarctic

(5)

Subsection (1) does not apply to the carrying on of mining operations in the Kakadu National Park or in the Antarctic.

Note 1:

Section 387 generally prohibits mining operations in the Kakadu National Park. Sections 19A and 19B of the Antarctic Treaty (Environment Protection) Act 1980 prohibit mining activities in the Antarctic.

Note 2:

The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

Exception for prior usage rights

(6)

Subsection (1) does not apply to mining operations that are covered by a usage right, or a right arising out of a usage right, to which section 359 applies.

Note:

The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

Exception for prior traditional use

(7)

Subsection (1) does not apply to an action that is covered by section 359A.

Note:

The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

Exception for mining operations approved under section 359B

(8)

Subsection (1) does not apply to mining operations that are covered by an approval in force under subsection 359B(2). For this purpose, mining operations are covered by such an approval if:

(a)

a management plan is not in operation for the Commonwealth reserve; and

(b)

the mining operations are, or are in the class of mining operations, specified in the approval; and

(c)

the mining operations are carried on in accordance with the approval by the person, or a person in the class of persons, specified in the approval in the area specified in the approval.

Note:

The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

Section has effect despite other laws

(9)

Except as provided in this section, this section has effect despite any other law of the Commonwealth or of a State or Territory.

This Act’s bill:Explanatory memorandum Second reading speech

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