Victorian Mining Warden
Section 96 of the Mineral Resources (Sustainable Development) Act 1990 (the Act) enables the Governor in Council to appoint a mining warden for a term not exceeding three years.
The mining warden is an independent statutory office holder. The Act confers wide-ranging powers to assist a mining warden in performing the statutory functions.
Administration of the office of the mining warden is attended to by the Operations Manager.
Functions of a Mining Warden
There are presently three functions conferred by the Act on a mining warden.
First, when a dispute has been referred to a mining warden under section 97 (1) of the Act, the mining warden must investigate the dispute, attempt to settle, or arbitrate in relation to, the matter in dispute and, where appropriate, make recommendations to the Minister concerning those matters. When performing the section 97 function, a mining warden may ask parties to first participate in mediation. If it appears settlement is not possible, the mining warden will proceed to arbitration if the circumstances indicate that course is a realistic one to pursue.
Second, the Minister or the Department Head may under section 98 of the Act refer a matter to a mining warden for investigation, report and recommendation.
Third, under section 25A of the Act certain applications for waiver of an exploration licence holder’s consent must be referred by the Minister to a mining warden for a recommendation as to whether a waiver should be granted.
Powers and Obligations of a Mining Warden
Before a dispute can be referred to a mining warden, the dispute must come within the definition of "dispute" in section 4 of the Act. That section defines "dispute" to mean:
... a dispute arising under the Act between:
- a licensee or an applicant and the Department Head or an employee of the Department; or
- a licensee or an applicant and the holder of a miner's right; or
- a licensee or an applicant and the owner or occupier of land; or
- a licensee and another licensee or an applicant for a licence; or
- an applicant and another applicant; or
- a member of the public and the Department Head (or an employee of the Department) in relation to work under a licence that directly and substantially affects, or is likely to affect, the member of the public -
and includes a dispute -
- about the existence of a licence, miner's right, tourist fossicking authority or tourist mine authority; or
- about the boundaries of land covered by a licence or an application -
but does not include a dispute for which recourse to a court, a tribunal or an expert (other than a mining warden) is expressly provided under this Act...
The general powers and obligations of a mining warden are to be found in Part 11 of the Act (sections 96-105 inclusive). Two particular points to note from these powers and obligations are, first, the requirement that the rules of natural justice are to be observed in conducting a hearing and, second, that legal representation is only permitted if other parties agree or the mining warden grants leave.
Procedures re section 97 referrals
Submitting an application
A dispute under Section 97 is to be submitted in writing to the mining warden’s office at Level 16, 121 Exhibition Street, Melbourne, 3000. Ordinarily the referral document should contain at least the following information and material:
- The full name, address and telephone number of the applicant;
- The name, address and telephone number of the other party or parties to the dispute;
- If known, the number assigned to the relevant mining or exploration licence;
- A description of the nature of the dispute.
- Documentation relevant to the dispute (Any dispute documentation referred to a mining warden will ordinarily be forwarded to all parties involved);
- Whether representation by an agent/lawyer is being sought and, if so, the name, address and telephone number of that person.
If you experience difficulty in providing parts of the above information, you should discuss your difficulty with the Operations Manager, who may be contacted on (03) 8392 2218.
Summons to give evidence
The mining warden has for the purpose of an investigation power to issue a summons calling on a person to give evidence and/or produce documents. Requests for the issue of a summons should be made to the Operations Manager, who will discuss with the mining warden whether it is appropriate for a summons to be issued.
Location of hearings
Hearings are normally held at the office of the mining warden in Melbourne, but at times some hearings may be held at Regional Centres for reasons of general convenience.
Discontinuing a referral
The mining warden will discontinue an investigation into a dispute if, among other circumstances, the person or body that referred the dispute requests the mining warden in writing to discontinue – see section 103 (c) of the Act.
Fees and Costs
No fee is payable in respect of the referral of a dispute. However, it is to be noted that under section 104 of the Act a mining warden has power to determine by whom, to whom and to what extent the costs of, and incidental to, an investigation are to be paid.
The Department may be joined in dispute resolution services and investigation processes of the mining warden; as well, Department employees can also refer disputes to the mining warden where under the Act they require assistance in resolving such disputes with any licence holders or licence applicants. An important provision in the Act is section 99(1)(e) which imposes a statutory obligation upon all employees of the Department to provide any information or assistance required by the mining warden:
99. In investigating a dispute or other matter referred to him or her, a mining warden has power to do all or any of the following -
(1) (e) require an employee of the Department to produce any record or other document kept by, or in the custody, possession or control of, the Department and give any other information or assistance that the mining warden requests and the employee is able to give.
When such assistance is required, initially the mining warden will contact the appropriate employee of the Department to put in place suitable arrangements for that assistance to be provided.
If an employee has any queries regarding a request by the mining warden, he/she may seek clarification from the Operations Manager (03) 8392 2218.
Victorian Mining Warden's Office
Level 16, 121 Exhibition Street
Melbourne VIC 3000
Tel: (03) 8392 2218
Fax: (03) 9092 2066