Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Where the Minister
is of the opinion that any royalty has not been paid or that, having regard to
any particulars that may be furnished by a person pursuant to a requirement of
this Act or regulations in respect of any mining operations, any royalty was
not properly assessed or was not properly calculated, notwithstanding that a
certificate may have been furnished in accordance with subsection (2),
the Minister may make an estimate of the royalty, taking into account the
relevant regulations and such information as has been furnished or is
otherwise available to the Minister, and thereafter, having given to the
person who paid or may be required to pay the royalty notice —
(a) that
the Minister proposes to exercise the power conferred by this subsection,
particulars of the manner in which the proposed estimate is calculated being
set out in the notice; and
(b) that
any submissions as to the proposal should be made to the Minister within a
period specified in that notice,
the Minister, on the
expiry of that period and having considered any submissions made, may
determine the amount of royalty that should have been or which is to be paid.
(2) For the purpose of
verifying any royalty, the Minister may, where a person who has paid or may be
required to pay a royalty under this Act so requests, in respect of a period
stated in the request, accept a certificate that the royalty appears to the
person signing the certificate to have been properly assessed and calculated,
being a certificate which —
(a) is
prepared at the cost of the person by whom the request is made and is signed
by —
(i)
an auditor, being a person who is registered as an
auditor, or taken to be registered as an auditor, under Part 9.2 of the
Corporations Act; or
(ii)
some other competent independent assessor, being a person
approved by the Minister;
and
(b) sets
out the amount of the royalty paid or to be payable and, unless the Minister
otherwise consents, sufficient detail of the methods of assessment and
calculation, and of all weights, analyses, assays and other matters relevant
to the certificate to enable the amount certified to be verified.
(3) For the purpose
of —
(a)
determining whether or not in relation to any mining operations any royalties
are payable, the rates of payment, the method of valuation which is to be used
in relation to a mineral or class of minerals, the basis on which a rate of
royalty shall be applicable, the methods of assessment and calculation, and
the amount payable; or
(b)
ascertaining information as to pricing or accounting methods and storage,
transportation, processing or merchandising practices,
an officer of the
Department or a person authorised by the Minister may, at any reasonable time,
without warrant other than this section exercise the powers conferred by
subsection (4).
(4) For the purposes
of subsection (3), the powers conferred are to —
(a)
enter upon any land where mining operations are carried out and into any
premises situate there or any other premises elsewhere used for the purpose of
preparing accounting or other records relating to the mining operations
conducted on that land;
(b)
enter upon any other land or into any premises where that officer or
authorised person has reasonable cause to believe any mineral derived from the
mining operations, or any accounting records relating to that mineral, to be,
if —
(i)
the officer or authorised person has reasonable cause to
believe an offence against this Act or a breach of the conditions of any
mining tenement has been, is being, or is about to be committed; or
(ii)
the consent of the owner or occupier of that land or
premises has been obtained;
(c)
inspect and examine any mining operations and any accounting or other records
in respect of those operations, and any mining product or mineral, in relation
to which royalty is, or in his opinion may be, payable;
(d) take
copies or extracts of accounting or other records relating to mining
operations, or of other sources of information examined by or produced to him;
(e)
require any person to produce, or to secure the production of to that officer
or authorised person —
(i)
forthwith; or
(ii)
if by notice in writing a time and place for the
production is specified, at the time and place specified,
such accounting or
other records or other sources of information as are in the custody or control
of the person of whom the requirement is made and which relate to a mining
tenement, or to any mining operations, mineral product or holder of a mining
tenement specified by the officer or authorised person, and are relevant for
the purpose of determining whether any, or what amount of, royalty may be
payable in relation to the mining operations,
for the purpose of
seeking or obtaining the information that appears to the officer or person
exercising that power to be necessary in relation to any question as to the
royalties that may be payable.
(5) A person who,
without reasonable cause, refuses or fails —
(a) to
permit the entry upon any land or into any premises which an officer of the
Department or other person authorised under subsection (3) reasonably
believes to be necessary; or
(b) to
permit inspection or examination, or the taking of copies or extracts of
records or other sources of information, for the purposes of this section; or
(c) to
produce, or secure the production of, to such an officer or authorised person
the accounting or other records or sources of information that officer or
authorised person reasonably believes to be necessary and requires to be
produced; or
(d) to
provide or secure the provision of any other information which such an officer
or authorised person may reasonably require pursuant to this section; or
(e) to
provide such an officer or authorised person with appropriate means and
reasonable facilities and assistance for the effective exercise of the powers
conferred by this section,
or who knowingly makes
any false or misleading statement or otherwise furnishes or permits to be
furnished false or misleading information, in relation to a matter to which
this section applies, commits an offence against this Act.
Penalty: $5 000.
(6) Where a person who
is the holder of, or an applicant for, a mining tenement is convicted in
respect of that tenement of an offence contravening
subsection (5) —
(a) an
estimate of the royalty that, taking into account the relevant regulations and
such information as has been furnished or is otherwise available to the
Minister, might but for the contravention have been assessed in respect of
minerals obtained from the land to which the tenement or application relates
may be made by or on behalf of the Minister; and
(b) that
person may by notice in writing be required to pay to the
Minister —
(i)
that estimated royalty; and
(ii)
an amount by way of penalty determined by the Minister,
being an amount not greater than 50% of that estimated royalty,
within a time
specified by the Minister; and
(c)
where in relation to an offence a requirement for payment of estimated royalty
or a penalty, or both, was made of that person under paragraph (b) and is
not complied with, the Minister may —
(i)
in the case of a mining tenement, forfeit that tenement
as though it were a mining lease liable to forfeiture for a breach of the
lessee’s covenant to pay royalty, effect being given to section 97
as though for the purposes of that section the tenement were a lease of
which the holder was the lessee; or
(ii)
in the case of an application for a mining tenement,
refuse that application, effect being given to section 111A as though the
Minister were satisfied on reasonable grounds in the public interest that the
application should not be granted.
[Section 109A inserted by No. 22 of 1990
s. 35; amended by No. 37 of 1993 s. 27; No. 10 of 2001
s. 136.]