Miners lead on occupational health and safety. But what about digital health and safety?

With cyber attacks all over the news – and cyber security firm, Secolve, warning that miners and contractors could be increasingly in the cross-hairs – we look at where your operations could most be at risk, and what you can do to reduce the risk of being the next victim.

In 2019, International Mining reported that Swiss mining and metals processer Nystar was hit by a cyber attack which necessitated key IT systems, including email, being shut down at both corporate and operational sites.  It would be easy to dismiss such an event as an isolated situation (especially as mining operations were not directly impacted) – however, the same publication had earlier reported that 54% of mining companies had experienced a significant cyber incident in the previous 12 months.

Increasing international interconnectivity has resulted not only in significant knowledge, productivity and efficiency gains but, on the flip side, also an expanding and evolving cyber threat environment which is increasingly capable of posing existential threats.  The Australian media has recently reported on the impact of high profile cyber events (think Nine Network and Toll), and for all Australian organisations, accepting and adapting to this changing environment, where state, quasi-state and criminal actors operate with seeming impunity, is critical. The ‘new normal’ is not limited to COVID considerations. The need to adapt is even more so in the mining sector, where the threat vectors are likely to be broader than those confronting many other enterprises operating in Australia.

Where your operations could be at risk

Much of the recent media reporting has focused on the rise in two types of cyber attacks:

  • ransomware attacks, where large volumes of data are encrypted (and increasingly also exfiltrated) and a ransom being demanded for the decrypt key to regain access to data, with the added threat that if a ransom is not paid, sensitive data that has been exfiltrated will be made available; and
  • distributed denial of service (or DDoS) attacks, such as that which recently impacted the NZX, and where a targeted service or network is overwhelmed with a flood of internet traffic.

Such attacks focus on compromising sensitive data, and while the mining sector does not hold the volume of personal information as a supermarket chain, for example, highly sensitive mining data (like pricing data, inventory/scheduling information, and employee data including salaries and benefits) remains a high value target for not only organised criminal enterprises, but also nation states.

However, mining companies utilise operational technology (OT) in an increasingly sophisticated way in the extraction and operations processes.  A well-planned cyber attack focusing on a mining company’s autonomous vehicle fleet or IoT systems, for example, could severely disrupt business and adversely impact production. In a worst case scenario, health and safety can be compromised: in 2017, malware which is commonly referred to as “Triton”, and which targets industrial control systems, was deployed against a Saudi Arabian petrochemical plant with the intention of interfering with emergency safety controls. Such cyber sabotage or cyber espionage are threats which are more pronounced in the mining sector.

How you can stay ahead of the game

Effective technology tools and processes can greatly enhance cyber resilience – for example, maintaining version control on applications and deploying emergency patches/updates without delay, and implementing security tools and processes such as virus detection systems and penetration testing.

However, a key plank (perhaps the key plank) in any organisation’s cyber resilience strategy is the culture of the workforce. In assessing cyber-readiness, there must be a clear focus on the internal information environment, including:

  • staff on-boarding processes;
  • initial and ongoing education and training; and
  • staff at all levels embracing the importance of data.

Each employee has a critical role to play in managing cyber risk – email phishing remains an effective means of launching malware, and disclosure of sensitive information is still often caused by ‘fat finger’ errors.  In this respect, mining companies, which have an historically strong and market-leading focus on occupational health and safety, can leverage from this physical safety culture to drive improvements in digital safety culture. Accepting the critical importance of a safe and resilient work environment is already a given.

How we can help – Seven areas to consider

Our multi-practice cyber team helps clients on all manner of digital health and safety matters – from proactively reducing the threat of successful cyber attacks through to advising and assisting on breach response. We would be happy to discuss with you how we can:

  • undertake an information risk ‘health check’ across your integrated organisation;
  • advise the board on its obligations with respect to cyber resilience;
  • provide targeted training to different teams and disciplines;
  • conduct cyber attack simulation exercises;
  • advise on cyber attack response requirements, including advising on notification requirements or expectations with respect to regulators, law enforcement, other government agencies, continuous disclosure obligations and insurance;
  • assist with ransom payment demands; and
  • advise in connection with post-attack remediation requirements.
Peter Jones
Peter Jones
+61 2 9225 5588
Julian Lincoln
Julian Lincoln
+61 3 9288 1694

Force majeure and China import restrictions

The Chinese Government has reportedly issued verbal advice to state-owned enterprises and private coal customers to not buy certain categories of Australian exports, including coal and copper ore, ‘until further notice’.

Reports indicate that the decision has resulted in the cancellation of several cargoes of exports over the last few weeks. It is anticipated that the ban may substantially impact the price of coal and impact coal royalties, regardless of destination.

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Greenwoods+HSF: Junior Mineral Exploration Incentive (JMEI) Impact Assessment for 2017-18

In summary

The Department of Industry, Science, Energy and Resources has in July 2020 released its first annual impact assessment of the Junior Minerals Exploration Incentive (JMEI) which commenced in the 2017-18 income year. The impact assessment provides insight to the number of successful applicants, their identity and credits received.

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NSW Government clarifies the strategic future of coal exploration and mining in New South Wales

On 24 June 2020 the NSW Government released its ‘Strategic Statement on Coal Exploration and Mining in NSW’ (the Statement), which outlines the Government’s policy position on future coal mining and exploration in New South Wales and aims to provide increased certainty to industry and community stakeholders.

The new policy position recognises the ‘finite lifespan’ of coal as a source of energy. The Statement therefore seeks to balance the decline of the thermal coal industry over the longer term (as a result of the transition to lower carbon sources of energy pursuant to the Paris Agreement) and the near-term opportunity for the NSW coal export industry to meet continuing international demand for thermal coal, generate jobs and royalties, and support regional communities. Continue reading

Western Australia’s new lithium royalty regime

On 11 October 2019 the Western Australian government announced that it will introduce a new royalty regime for lithium producers in the form of a 5% feedstock royalty rate for lithium hydroxide and lithium carbonate where those are the first products sold and the feedstock is spodumene concentrate.

The announcement comes after a recent review into lithium royalties as part of the government’s Future Battery Industry Strategy and aims to encourage downstream processing of lithium concentrate in WA.

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Briefing note – NROLA Act introduces amendments to the MRA and PAGA


On 15 May 2019, the Queensland Parliament passed the Natural Resources and Other Legislation Amendment Act 2019 (NROLA Act). The Act implements a large number of changes across 34 pieces of land, water and mining legislation.1 Relevantly, the NROLA Act includes reforms to the administration of coal and petroleum exploration tenements in Queensland.

This note provides a summary of the key amendments to the Mineral Resources Act 1989 (MRA) and the Petroleum and Gas (Production and Safety) Act 2004 (PAGA) and the effects on holders of exploration permits (EP) and authorities to prospect (ATP). The relevant amendments discussed below are set to commence next year, upon proclamation.

Tenure reforms

Minister’s power to unilaterally vary conditions

EPs and ATPs

The NROLA Act inserts new provisions in the MRA and PAGA that allow the Minister to unilaterally vary the conditions of an existing EP or ATP, without notifying or consulting the tenement holder.2

The new power may only be exercised if the Minister considers it necessary because of an ‘exceptional event’, and will apply retrospectively to EPs and ATPs granted before and after the commencement of the NROLA Act.

‘Exceptional event’ is defined as an event that:

  • affects the carrying out of authorized activities under the authority/permit; and
  • is beyond the control of the holder of the authority/permit; and
  • could not reasonably have been prevented by the holder of the authority/permit.3

The explanatory notes clarify that ‘exceptional event’ is expected to capture industry-wide events such as natural disasters or economic crises.

The QRC and QLS have both raised concerns to the State Development, Natural Resources and Agricultural Industry Development Committee,4 submitting that the power is too wide because:

  • the Minister’s decision to vary conditions would not be subject to internal review, meaning that tenement holders will only be able to challenge the decision by way of judicial review; and
  • ‘exceptional event’ is defined relatively broadly under the NROLA Act.

Despite these objections, the provisions passed without further amendment. The explanatory notes state that the Minister’s power is intended to assist tenement holders by reducing or delaying work program requirements or relinquishment requirements, in light of ‘exceptional events’.5 Nevertheless, how the Minister will apply and exercise the power is uncertain and not fettered by any requirement to consult with permit holders or subject to any internal review or objection process.

ATPs granted via tender

Where there is a call for tenders for an ATP, the NROLA Act allows the Minister to impose additional conditions they consider appropriate, when deciding whether or not to grant tenure.6

The discretion is significantly wide, but has received relatively little public (and parliamentary) scrutiny. Prospective ATP holders should be particularly wary when applying for an ATP through tender processes, as additional conditions may be imposed without prior notice to the applicant.

Limit on applications to vary conditions

The NROLA Act introduces limitations to the grounds under which the holder of an EP or ATP can apply to have the conditions of a tenement varied. The Act limits variations to:

  • the occurrence of an ‘exceptional event’; or
  • circumstances arising from the permit forming part of an exploration project.7

The amendment is a significant shift in the legislative position with respect to varying conditions of a tenement. Prior to the NROLA Act, there was no limit to the grounds on which a tenement holder could apply to have the conditions of their tenements varied.

The explanatory notes state that this change is intended to improve turnover of exploration land. For EP and ATP holders who struggle to meet work program or relinquishment requirements, the amendment would incentivise holders to apply for higher tenure or surrender the tenement, instead of applying for a variation.

Capped term for mineral and coal EPs

To accelerate land turnover, the NROLA Act imposes a 15-year cap on the total life of a mineral or coal EP, which applies to the entirety of:

  • the initial term of an EP;
  • all renewed term/s of an EP;8 and
  • if the holder has surrendered an EP on the condition that a new EP be granted over the same area – the life of the surrendered EP.9

Permit holders may apply for a one-off extension of up to 3 years on top of the 15-year limit if an ‘exceptional event’:

  • prevented the holder from complying with the approved work program; and
  • occurred in the last renewed term of the EP.10

Introduction of ‘outcomes-based’ work programs

In an Australian first, the NROLA Act allows EP and ATP holders to submit ‘outcomes-based’ work programs alongside tenement applications.

Currently in all other Australian jurisdictions, EP and ATP holders are required to submit ‘activities-based’ work programs that outline specific exploration activities to be undertaken during the term of the tenement.

Under the NROLA Act, the ‘outcomes-based’ work program will serve as an alternative for Queensland tenement holders and ‘over the counter’ applications, and must outline:

  • the outcomes proposed to be pursued during the term of the tenement;
  • the strategy for pursuing the outcomes;
  • the information and data to be collected; and
  • the estimated human, technical and financial resources proposed to be committed.11

The benefit of an outcomes-based work program, as envisioned by the explanatory notes, is that explorers can adjust their activities in response to exploration results without the need to seek approval from the Minister to vary the work program.

Prospective explorers should note that activities-based work programs will still be the default requirement for EPs and ATPs awarded through competitive processes (subject to the Minister’s directions otherwise). The Minister may also request an activities-based work program from applicants when considering the priority of EP applications.12 Outcomes-based work programs will generally be accepted in non-competitive, non-tender applications.

Less onerous relinquishment requirements


Under the NROLA Act, permit holders will be required to relinquish 50% of the permit area at the end of year 5, and 50% of the remaining area at the end of year 10.13

Further, the Minister has the discretion to change the relinquishment requirements of EPs due to:

  • an ‘exceptional event’ (as discussed above); or
  • circumstances arising from the permit forming part of an exploration project.14

In this instance, an exploration project is a ‘project involving 2 or more exploration permits that have a unifying exploration purpose’.15 According to the explanatory notes, the exploration project exception is intended to allow permit holders to adjust the relinquishment percentages of individual permits within the same project, so long as 50% of the area for the project (as a whole) is relinquished by the due date.16

Compared to current relinquishment obligations, the NROLA Act reduces the total area to be relinquished before the expiry of the permit, and extends the time between relinquishment intervals. Early explorers will be given an extra two years before the first relinquishment due date.

If the area to be relinquished is covered by an application for higher tenure (ie a mining development licence or mining lease), permit holders can defer its relinquishment until:

  • if the application is successful – the day the tenure is granted; or
  • if the application is withdrawn or refused – 20 business days after the day of the withdrawal/refusal.17


Under the NROLA Act, authority holders will be required to relinquish 50% of the area at the end of year 6.18 Compared to current relinquishment obligations, the NROLA Act reduces the total area to be relinquished before the expiry of the authority and will give early explorers an extra two years before the relinquishment due date.

Implications on existing EPs, ATPs and related applications


Existing EPs will be limited to further renewals of up to 10 years from the first renewal after commencement of the NROLA Act. For example, an EP granted in 2006 and due for renewal in 2021 may be renewed multiple times for up to 10 years, and will expire in 2031.

The NROLA Act will also affect existing applications to renew. Applications will be restricted by the 15-year life cap and applicants can update their proposed work programs within 3 months after the commencement of the NROLA Act (if they so choose).

With respect to relinquishment requirements, existing EP holders will only be required to relinquish 50% of the area if the EP is renewed after commencement, 5 years after the date of renewal.19 If no exploration activities was undertaken because the EP is locked-out/overlapping with a petroleum lease, the permit holder will be exempt from any relinquishment requirements.20

On the other hand, existing tenders, approved programs of work and applications to vary the conditions of an EP will not be affected by the NROLA Act and will be dealt with under the MRA as if the provisions have not been amended.


Existing ATPs will not be affected by the new relinquishment requirements under the NROLA Act.

However, the NROLA Act will affect existing applications to renew. Applicants can update their proposed work program within 3 months after the commencement of the NROLA Act (if they so choose).21

Other amendments

Area of  petroleum leases (PL) and potential commercial areas (PCL)

The NROLA Act removes the 75 sub-block area limit for PLs and PCLs, and will allow existing PLs and PCLs to be amalgamated. Tenement holders will no longer be required to apply for multiple PLs and PCLs over the same area at the same time.22

Access to public and private land for rehabilitation purposes

The NROLA Act amends the Mineral and Energy Resources (Common Provisions) Act 2014 to allow tenement holders to access land for the purposes of rehabilitation and environmental management. This right applies to both private and public land.23

Next steps

As at the date of this summary, the amending provisions discussed have not come into effect as they will commence on proclamation. The Minister for Natural Resources, Mines and Energy has released a statement advising that proclamation is expected to occur sometime next year.24

In the meantime, exploration tenement holders and prospective explorers should be mindful of the changes to the tenure management system, and plan to make adjustments to their activities as necessary.

Annexure 1

Legislation amended

  • Aboriginal and Torres Strait Islander Land Holding Act 2013
  • Aboriginal Land Act 1991
  • Aboriginal Land Regulation 2011
  • Electricity Act 1994
  • Foreign Ownership of Land Register Act 1988
  • Geothermal Energy Act 2010
  • Greenhouse Gas Storage Act 2009
  • Land Access Ombudsman Act 2017
  • Land Act 1994
  • Land and Other Legislation Amendment Act 2017
  • Land Holding Act 2013
  • Land Regulation 2009
  • Land Title Act 1994
  • Land Title Regulation 2015
  • Land Valuation Act 2010
  • Mineral and Energy Resources (Financial Provisioning) Act 2018
  • Mineral and Energy Resources(Common Provisions) Act 2014
  • Mineral Resources Act 1989
  • Nature Conservation Act 1992
  • Petroleum Act 1923
  • Petroleum and Gas (Production and Safety) Act 2004
  • Planning Act 2016
  • Planning Regulation 2017
  • Right to Information Act 2009
  • South-East Queensland Water (Distribution and Retail Restructuring) Act 2009
  • South-East Queensland Water (Restructuring) Act 2007
  • Surveyors Act 2003
  • Surveyors Regulation 2014
  • Torres Strait Islander Land Act 1991
  • Torres Strait Islander Land Regulation 2011
  • Valuers Registration Act 1992
  • Water Act 2000
  • Water Supply (Safety and Reliability) Act 2008
  • Vegetation Management Act 1999


  1. For a full list of legislation amended by the NROLA Act, see Annexure 1.
  2. NROLA Act, ss 260 and 279.
  3. NROLA Act, ss 274 and 313.
  4. Submission of the QRC (https://www.parliament.qld.gov.au/documents/committees/SDNRAIDC/2019/NROLAB2019/submissions/003.pdf); Submission of the QLS (https://www.parliament.qld.gov.au/documents/committees/SDNRAIDC/2019/NROLAB2019/submissions/011.pdf)
  5. See the Department’s operational policies for further guidance. https://www.dnrme.qld.gov.au/?a=109113:policy_registry/operational-policy-exceptional-circumstance.pdf&ver=1.01
  6. NROLA Act, s 277.
  7. NROLA Act, ss 261 and 304.
  8. NROLA Act, s 265.
  9. NROLA Act, ss 254 and 271.
  10. NROLA Act, s 267.
  11. NROLA Act, ss 247 and 280.
  12. NROLA Act, s 249.
  13. NROLA Act, s 258.
  14. NROLA Act, s 258.
  15. NROLA Act, ss 274 and 313.
  16. See Annexure 2 for an example provided by the NROLA Bill’s explanatory notes.
  17. NROLA Act, s 258A.
  18. NROLA Act, ss 294 and 295.
  19. NROLA Act, s 273.
  20. NROLA Act, s 857. See also section 232 of the Mineral and Energy Resources (Common Provisions) Act 2014.
  21. NROLA Act, s 311.
  22. NROLA Act, ss 303 and 307.
  23. NROLA Act, s 209.
  24. http://statements.qld.gov.au/Statement/2019/5/15/parliament-cuts-resources-red-tape

Annexure 2: Example – adjustment of relinquishment percentages for multiple EPs within an exploration project

EP1 EP2 EP3 EP4 Total
Sub-blocks held 100 100 100 100 400
Number of sub-blocks relinquished for mandatory relinquishment of 50% for individual EP 50 50 50 50 200
Minister’s discretion to apply more or less than mandatory relinquishment of 50% for EPs within a project Less by 50%

Total percentage required = 0%

More by 25%

Total percentage required = 75%

More by 15%

Total percentage required = 65%

More by 10%

Total percentage required = 60%

Number of sub-blocks relinquished for after relinquishment for project EP 0 75 65 60 200


Whilst the example provided in the explanatory notes is not as clear as it could be, the intention is that if EP1 is the most prospective EP within the ‘exploration project’ a permit holder will not be required to relinquish any sub-blocks within that EP but will instead be required to relinquish additional sub-blocks of other EPs within the ‘exploration project’.

A methodology for the calculation of native title compensation

 On 13 March 2019, the High Court handed down its first decision on native title compensation in ‘Timber Creek’ [2019] HCA 7 (Timber Creek).

The High Court’s decision is a measured reflection of the need for Australian law to evolve in a manner that acknowledges, recognises and accommodates the diversity and individuality of native title in Australia. The majority judgment sensibly navigates the difficult task of applying common law legal concepts, such as compensation, freehold value, economic loss and solatium, in the context of traditional rights and interests, and connection to country.

Resisting the temptation to apply a blanket approach, a 5:2 majority of the High Court instead affirmed a methodology to determine the appropriate, just and fair compensation to be awarded to native title holders for the impact of compensable acts on their distinct native title rights and interests.

Applying the methodology, the High Court determined that compensation should be paid for the extinguishment of the claim group’s non-exclusive native title rights and interests as follows:




Climate change impacts used to reject new NSW coal mine

Proponents seeking consent for new projects, or modifications of existing projects, with ‘material’ greenhouse gas emissions across all industries in NSW should carefully assess climate change impacts, particularly if the proposal is not ‘carbon neutral’.

What has happened?

On 8 February 2019, the NSW Land and Environment Court (Court) refused development consent for a new open cut mine near Gloucester, New South Wales.

The Rocky Hill Coal Project (Project) was expected to produce 21 million tonnes of coal over a period of 19 years (including rehabilitation) and support up to 110 jobs during operation and 60 jobs during construction.


PIL Notes Re-Post – Bear Creek Mining Corp. v. Peru: the potential impact on damages of an investor’s contributory action and failure to obtain a social license

In an award dated 30 November 2017, an ICSID Tribunal ordered Peru to pay around US$30.4million to Canadian company Bear Creek Mining following its finding that a 2011 decree constituted an unlawful indirect expropriation of the Claimant’s right to operate the Santa Ana mine.


Forrest & Forrest v Wilson – consequences for mining lease applicants

As we previously reported1, a consequence of the High Court of Australia’s decision in Forrest & Forrest Pty Ltd  v Wilson2 is unexpected and unhelpful uncertainty regarding the validity of the grant of certain mining leases in Western Australia.

The State Government and the Department of Mines and Petroleum (DMP) are continuing to assess an appropriate legislative fix for the issues arising out of the High Court’s decision. Although this assessment is ongoing, the DMP has publicly indicated that the legislative fix will not cover mining lease applications which (in DMP’s opinion) are affected by the High Court’s decision. Affected applicants will be required to re-submit new mining lease applications that comply with the relevant requirements of the Mining Act. The DMP has not indicated (at this stage) whether the same approach will be taken for other applications for mining tenure which have similar document lodgement requirements.

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