The Western Australian Parliament recently passed the
Mining Legislation Amendment and Validation Act 2008
(WA) (MLAV Act), which introduces, among other
things, some important changes regarding the prescribed
purposes for miscellaneous licences.
Regulation 42B of the Mining Regulations 1981 (WA)
(Regulations) prescribes the purposes for
which a miscellaneous licence can be granted. A number of
specific purposes are listed in regulations 42B(a) to (m), with
regulation 42B(n) providing a catch-all for "any other
purpose directly connected with mining operations approved by
the Director General of Mines."
In BHP Billiton & Ors v Westover Holdings Pty
Ltd  WAMW 4, Warden Calder refused an application
for a miscellaneous licence for purposes approved by the
Director General of Mines but not specified in regulations
42B(a) to (m). The refusal was on the grounds that regulation
42B(n) was ultra vires as the Governor (who is delegated
authority to prescribe regulations) had acted beyond the power
conferred on him by the Mining Act 1978 (WA) by
conferring the power to prescribe purposes under regulation
42B(n) on the Director General. Warden Calder's finding
has resulted in doubts over the validity of miscellaneous
licences applied for or granted for purposes not specified in
regulations 42B(a) to (m), but otherwise approved by the
Section 8 of the MLAV Act, once proclaimed, will have the
effect of validating all miscellaneous licences granted prior
to the proclamation date for purposes approved by the Director
General of Mines under regulation 42B(n), as if those purposes
were specifically prescribed in the Regulations. Similarly,
section 9 of the MLAV Act provides that miscellaneous licence
applications which are pending prior to the proclamation date
for purposes approved by the Director General are to be dealt
with as if those purposes were prescribed in the
It is currently anticipated that regulation 42B(n) will be
repealed in the near future, which would have the effect of
removing the power conferred on the Director General to approve
purposes for miscellaneous licences. To compensate for this, it
is anticipated that additional prescribed purposes will be
included in regulation 42B. The Second Reading Speech for the
MLAV Act notes that the Director General approved some 42
infrastructure purposes since regulation 42B(n) was first
introduced in 1991. The MLAV Act will remove the uncertainty
surrounding the validity of around 450 granted miscellaneous
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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