Victorian Mining Warden

The Victorian Mining Warden is the oldest continually existing public service position in Australia. The Victorian Mining Warden currently consists of the following two entities which are both based in Melbourne - The Office of the Victorian Mining Warden and The Victorian Mining Wardens Court.

Applications to refer disputes to the Victorian Mining Wardens Court are fee free. To apply to refer a matter to the Victorian Mining Warden please fill in Form 1 (66 KB) - Application to Refer a Mining Dispute and email registrar@miningwarden.vic.gov.au.

The Office of the Victorian Mining Warden is run by the Registrar of the Court and provides administrative support to the Victorian Mining Warden and the Victorian Mining Wardens Court. The Victorian Mining Warden is a Court under section 3 of the Evidence Act 1958 and the Court is presided over by the Victorian Mining Warden who performs all of the statutory functions of the Court.

The Victorian Mining Warden is provided for under the Mineral Resources (Sustainable Development) Act 1990. Previously over the past 150 years the Office existed under various acts including the Mines (Amendment) Act 1983 and was constituted by a Magistrate or formed part of the Magistrates Courts jurisdiction. The role was reformulated in the early 1980s in response to a need to have a dedicated specialist resolving mining-related disputes and complaints within the mining sector and conducting mining related investigations.

The Victorian Mining Warden is now appointed by Order in Council under section 96 of the Mineral Resources (Sustainable Development) Act 1990 for a fixed term of three years. See Ministerial Appointment Announcement.

The Victorian Mining Warden is a wholly independent entity that reports directly to the Minister for Energy and Resources. The Victorian Mining Warden is not an employee of the Department of Primary Industries and is wholly independent of that Department. Part three of the Public Administration Act 2004 does not apply to the Victorian Mining Warden.

Functions of the Victorian Mining Warden and the Victorian Mining Wardens Court

The Victorian Mining Warden has wide-ranging powers in the mining sector in Victoria. Unlike most Courts the Victorian Mining Wardens Court has no financial limit on its jurisdiction and the Court can arbitrate all mining disputes including commercial mining disputes regardless of the monetary value of the assets involved or the cause of action. The Victorian Mining Warden is regularly called on to arbitrate commercial mining disputes that would ordinarily be litigated in the Supreme Court of Victoria.

The mandatory statutory function of the Victorian Mining Warden under section 97 of the Mineral Resources (Sustainable Development) Act 1990 is to attempt to settle or arbitrate a dispute as defined in section 4 of the Mineral Resources (Sustainable Development) Act 1990. The role includes undertaking negotiation, mediation, conciliation and arbitration. Where appropriate the Victorian Mining Warden may also make recommendations to the Minister concerning matters.

The Victorian Mining Warden must also investigate any matter referred by the Minister or Departmental Head under section 98 of the Mineral Resources (Sustainable Development) Act 1990 for report and recommendation.

Jurisdiction and Powers of the Victorian Mining Warden

As an independent statutory judicial officer and Court the Victorian Mining has jurisdiction over parties to a dispute under section 97 of the Mineral Resources (Sustainable Development) Act 1990.

The word dispute is defined in Section 4 of the Mineral Resources (Sustainable Development) Act 1990 to mean a dispute arising under the Act between:

(a) a licensee or an applicant and the Department Head or an employee of the Department; or

(b) a licensee or an applicant and the holder of a miner's right; or

(d) a licensee and another licensee or an applicant for a licence; or

(e) an applicant and another applicant; or

(ea) 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�

(f) about the existence of a licence, miner's right, tourist fossicking authority or tourist mine authority; or

(g) 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;

As mentioned above there is no limit on the cause of action that the dispute can be founded upon nor is there is any financial limit on the value of the assets involved in the dispute. The only limitation on the jurisdiction is that the dispute must be fall within the confines of the Act. This is also the only limitation on the investigative jurisdiction of Victorian Mining Warden.

The following sections of the Mineral Resources (Sustainable Development) Act 1990 are relevant to the functions and powers of the Victorian Mining Warden:

Section 4 - Definition of "dispute"

Section 15(6) - Fit and proper provisions
Section 25A - Waiver of Exploration Licence Holder's Consent.
Section 88 - Compensation provisions
Section 96 - The appointment of a Victorian Mining Warden
Section 97 - Disputes
Section 98 - Referrals
Section 99 - Powers
Section 100 - Conduct of Hearing
Section 101 - Evidence
Section 102 - Validity of acts or decisions
Section 103 - Discontinuance of Investigation
Section 104 - Costs that may be awarded
Section 105 - Annual Report

The Victorian Mining Warden also has the specific power under section 99(1)(e) of the Act to require an employee of the Department of Primary Industries 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 Victorian Mining Warden requests and the employee is able to give.

The relevant Sections governing the powers of the Victorian Mining Warden under the Evidence Act 1958 are contained in Part 1 Division 5 - Boards appointed and commissions issued by the Governor-in-Council and includes:

Section 3 - Definitions

Section 14 - Power to send for persons and papers
Section 15 - Power to examine upon oath
Section 16 - Penalty for non-attendance or refusal to give evidence
Section 20 - Penalty and procedure for failure to attend
Section 20A - Summons requires continuous attendance
Section 21A - Privileges and immunities in relation to inquiries

The procedures of the Victorian Mining Warden are at the discretion of the incumbent and the Victorian Mining Warden is not bound by the rules of evidence, but is bound by rules of natural justice. Hearings are currently conducted in the County Court Rooms. Barristers and or Solicitors may represent a party only if the other party consents or the Victorian Mining Warden grants leave. To apply for leave fill in Form 2 (60 KB) - Application for Leave to be Represented by an Australian Lawyer and send registrar@miningwarden.vic.gov.au. On complicated matters particularly the retention of legal representatives is encouraged and costs applications can be made in those proceedings if successful.

Note: Opening PDF Files

This website uses PDF (Portable Document Format) files, also known as Adobe files to make publications available online. To open, print and/or save these files, you will need to use Adobe Acrobat Reader. If you do not already have this tool, you can download it for free from Adobe.

Download Adobe Acrobat Reader Approximate file size: 8.6Mb

Note: Opening Microsoft Word, Excel and Powerpoint files

This site sometimes uses Microsoft Word, Excel and Powerpoint to make files created in these programs available online. If you do not have these programs on your computer, you can download readers that will allow you to view these documents.

Download Microsoft Word Viewer
Approximate file size: 1.2Mb

Download Microsoft Excel Viewer
Approximate file size: 1Mb

Download Microsoft Powerpoint Viewer
Approximate file size: 1906Kb