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2008 - 2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE LEGISLATION AMENDMENT BILL
2009
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Resources and Energy,
the Honourable Martin Ferguson AM, MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE HOUSE OF REPRESENTATIVES
TO THE BILL AS INTRODUCED
OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE LEGISLATION AMENDMENT BILL
2009
GENERAL OUTLINE
This Bill has three main elements. Firstly, to make some minor policy
changes to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the
Act) arising from various reviews. These are:
. Providing an 'expedited' consultation process for the granting of
an access authority to titles in adjoining offshore areas where
the title holders have consented to the access.
. Changing the decision to declare a location from the Designated
Authority (DA) to Joint Authority (JA).
. Changing the decision to grant scientific investigation consents
(SIC) from the DA to the JA.
. Amending the Act to require notification of discovery of
petroleum in a production license area, as is required for other
titles and to extend the period of notification of discovery of
petroleum from immediately to within 30 days from completion of
the well that led to the discovery.
. Changing datum provisions to directly empower the DA to issue
instruments to allow relabelling of title areas, blocks etc,
using coordinates corresponding to the current datum rather than
providing this power through regulations as occurs currently.
. Amending the Act to state in unequivocal terms that the
fault element for duty of care offences is negligence and not
intent.
. Removing the requirement for a consent to operate a pipeline.
. Removing requirements for Data Management Plans.
. Clarifying titleholder's responsibility for matters within their
control in relation to a drilling safety case.
Secondly, the Bill adds a new Part 9.10A to the Act. These amendments
provide for a standing power enabling the responsible Commonwealth Minister
to appoint a Commissioner to undertake a Commission of inquiry into the
operational, human and regulatory matters specific or incidental to a
significant offshore petroleum or greenhouse gas storage incident, from
time to time as required. This power is limited to where a significant
offshore petroleum or greenhouse gas incident has occurred, and where it
would be appropriate to consider operational, human and/or regulatory
issues related to that incident.
The purpose of the amendments is to correct an administrative gap in the
provisions of the Act for the investigation of these matters. Currently,
the responsible Commonwealth Minister may initiate two types of
investigation under the Act, each limited in nature: an investigation by
the National Offshore Petroleum Safety Authority (NOPSA) which would be
limited to occupational health and safety matters pertaining to an
incident; and an investigation by the Minister as Designated Authority for
the offshore area which would be limited to considering the appropriateness
of existing statutory powers under the Act.
Recent incidents involving uncontrolled release of hydrocarbons
jeopardising human and environmental health, have demonstrated that the
existing investigatory powers are insufficient. An inquiry for the purposes
of determining operational, human and regulatory factors would inform
regulators and operators of causal factors contributing to significant
incidents relating to offshore oil and gas exploration, development,
production, greenhouse gas storage and/or decommissioning. This power will
enable the Government and industry to learn from incidents, and be better
prepared to prevent similar incidents occurring in the future.
The amendments will enable the responsible Commonwealth Minister to appoint
a Commissioner to conduct a Commission of inquiry into the operational,
human and regulatory factors surrounding the uncontrolled release of oil
and gas at the Montara offshore oil field in the Timor Sea. The inquiry
will enable governments, regulators and the industry to be fully informed
of all matters surrounding this incident, and will enable all stakeholders
to initiate appropriate changes (legislative and operational) to prevent
similar future incidents.
It is intended that the findings of any such Commission of inquiry will be
made public, subject to the disclosure and privacy provisions of other
legislation. This will enable lessons learned from the incident to be
considered and understood by the widest possible range of stakeholders both
in Australia and overseas.
The only statutory mechanism currently available to the responsible
Minister for a comprehensive investigation would be a Royal Commission
appointed by the Governor-General under the Royal Commissions Act 1902
(Cth). This mechanism is not always appropriate, timely or cost effective.
A specific investigatory mechanism, within the offshore oil and gas context
of the Act, is a more appropriate, timely and cost effective avenue to
investigate significant incidents such as uncontrolled hydrocarbon
releases. This amendment does not override the ability for a Royal
Commission to be called if warranted by the severity and impact of an
incident.
The amendments also define a Commissioner's powers by reference to the
powers and offences in the Royal Commissions Act 1902, including the
relevant enforcement and penalty provisions relating to powers under the
Act, and the provision of the same protection and immunity as a Justice of
the High Court to the Commissioner, those assisting the Commissioner,
witnesses and others.
The amendments focus on determining the causal factors contributing to a
significant offshore incident, rather than on seeking evidentiary material
for prosecution, and require the results of an inquiry commissioned under
these powers to be made public, consistent with the Royal Commissions Act
1902.
Minor amendments of a technical nature are proposed to the Archives Act
1983, the Freedom of Information Act 1982, and the Privacy Act 1988.
Thirdly, the Bill amends the greenhouse gas provisions of the Act that
provide for approval and registration of transfers of, and dealings in,
petroleum titles. The affected parts of the Act are Part 4.3 (Transfer of
titles), Part 4.6 (Dealings relating to existing titles) and Part 4.7
(Dealings in future interests).
The purpose of the amendments is to correct an oversight in the provisions
establishing a process for enabling the responsible Commonwealth Minister
to give a direction to the Designated Authority (DA) with respect to the
exercise of the DA's powers to approve and register transfers of, and
dealings in, petroleum titles.
The oversight was in not limiting the class of petroleum titles to which
the new process was to apply. The greenhouse gas amendments made by the
Offshore Petroleum Amendment (Greenhouse Gas Storage) Act 2008 applied the
process to all petroleum titles, whereas the intention was that it would
apply only to petroleum titles that had a specified geographical
relationship to an existing greenhouse gas title.
These amendments:
. define the class of petroleum titles to which the process
applies;
. confine the provisions that establish the process to transfers
of, and dealings in, petroleum titles of that class; and
. reduce the numbers of copies required to be lodged with other
applications.
FINANCIAL IMPACT STATEMENT
This Bill will not have any financial impact on the Australian Government
Budget. The pipeline safety management levy is to be replaced with an
equivalent safety case levy covering pipelines.
NOTES ON INDIVIDUAL CLAUSES
Clause 1 - Short title
Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2 - Commencement
Sections 1 to 3 in the Bill will commence the day the Act receives Royal
Assent.
Schedule 1 will commence the day after the Act receives Royal Assent except
for Schedule 1, Parts 7 and 8 which will commence on 1 January 2010, and
Schedule 1, Part 15 which will commence as set out below.
The commencement of Schedule 1, Parts 7 and 8 coincides with the start of
the next levy year following Royal Assent. This will make for an easier
transition for safety levy arrangements for pipelines. Safety levies are
calculated annually at the start of each calendar year. From this date,
pipelines will be largely regulated under the safety regime and this is
also the appropriate time for the repeal of the provisions requiring a
consent to operate a pipeline.
Schedule 1, Part 15 will commence retrospectively, immediately after the
commencement of Part 1 of Schedule 4 to the Offshore Petroleum Amendment
(Greenhouse Gas Storage) Act 2008 (i.e. immediately after the commencement
of the greenhouse gas amendments and the renumbering of the whole Act).
The commencement date of the present amendments is therefore 22 November
2008.
Because there are not yet any existing greenhouse gas titles (and so no
petroleum titles to which the new process was intended to apply) and
because compliance with the process in relation to all transfers and
dealings in petroleum titles would have involved a considerable (and
wasted) administrative effort both for the Commonwealth and the Designated
Authorities, the process has in fact not been followed in relation to the
many transfers and dealings that have been approved and registered by the
Designated Authorities since the greenhouse gas amendments came into force.
The proposed amendments therefore need to be made retrospective, to cure
any technical defect in the approvals and registrations that might have
resulted from non-compliance with the process.
Clause 3 - Schedules
This clause gives effect to the provisions in the Schedules to this Act.
Schedule 1 - Amendments
Part 1 - Access authorities
Item 1 - subsection 245(1)
This item includes in section 245 the same expedited consultation
arrangements for the grant of an access authority in an adjoining offshore
area as is already included in section 244 for consultation arrangements on
the grant of an access authority in the offshore area of a single
jurisdiction.
Where an exploration activity extends from one offshore area into another
offshore area (e.g. from the offshore area of Western Australia into the
offshore area of South Australia), section 245 currently stipulates that
the DA into whose jurisdictional access is sought must carry out
consultations, taking up to one month.
This item seeks to alleviate any time delays by allowing expedited
consultation arrangements where the titleholders have consented to the
access.
Item 2 - subsection 245(1)
This item allows that the amendment to subsection 245(1) only applies to
applications for a petroleum access authority made after the commencement
of this item.
Part 2 - Locations
Items 3-11 - Sections 95-96 and Part 2.2, Division 6
These items change the decision maker from the Designated Authority (DA) to
the Joint Authority (JA) for the declaration of a location and in relation
to nomination of blocks.
Currently Part 2.2, Division 6 (sections 128 to 133) provides that the DA
(i.e. the relevant State or Territory Minister) may require the nomination
of blocks and may declare a location over the blocks containing a petroleum
discovery. The nomination of blocks and the declaration of a location is a
necessary step before an exploration company applies for a retention lease
to retain title over a currently non-commercial discovery or applies for a
production license to develop a commercial discovery. The decision to
grant a retention lease or a production license lies with the JA (i.e. the
Commonwealth Minister and the relevant State Minister).
Amendments to these sections are appropriate given the Commonwealth
Minister's influence on the subsequent retention lease and production
licence process.
Item 12 - Transitional
This item allows decisions of the DA, in relation to locations, made prior
to the commencement of this item to remain valid.
Part 3 - Petroleum scientific investigation consents
Items 13-14 - Subsection 253(1) and subsection 254(1)
These items change the decision maker for setting conditions for a
scientific investigation consent (SIC) and for granting a SIC from the DA
to the JA.
Currently sections 251 to 254 provide for the DA to grant a SIC to
authorise petroleum exploration operations carried out for scientific
research purposes. The United Nations Convention on the Law of the Sea
(UNCLOS) provides that all states have the right to conduct marine
scientific research on the continental shelf with the consent of the
relevant coastal state, which can include petroleum exploration operations.
Given that SICs are in the Act to implement international obligations, it
is appropriate that the Commonwealth Minister should have a role in
granting the consent.
Item 15 - Transitional
This item allows decisions of the DA, in relation to a scientific
investigation consent, made prior to the commencement of this item to
remain valid.
Part 4 - Occupational health and safety provisions
Item 16 - Clause 41, Schedule 6
This item amends clause 41 of Schedule 6 so that it extends clause 89 of
Schedule 3 to cover 'omitted offences' (i.e. offences against regulations
set out or prescribed for the purposes of section 140H(2) of the repealed
Petroleum (Submerged Lands) Act 1967 (PSLA) as in force during the period
beginning on 1 January 2005 and ending immediately before the commencement
of the Act. This amendment will ensure that the National Offshore
Petroleum Safety Authority (NOPSA) or an occupational health and safety
(OHS) inspector is not prevented from instituting proceedings for omitted
offences after the transition from the PSLA to the Act. The Act received
Royal Assent on 29 March 2006 and on 24 June 2008 was proclaimed to
commence from 1 July 2008.
Part 5 - Notification of discovery of petroleum
Item 17 - Subsection 284(1)
This item extends notification of discovery of petroleum to cover a
petroleum production licence area. Notification of discovery is already
required for an exploration permit area or a retention lease area.
By adding this requirement for petroleum production licence areas it is
intended to capture knowledge of discrete accumulations and not incremental
accumulations.
Item 18 - Subsections 284(2) and (3)
This item repeals the provisions to notify a discovery immediately and to
provide a written notice within 3 days. The item sets the period for
notification of a discovery to 30 days from the completion of the well that
resulted in the discovery.
At 30 days the petroleum company has a more detailed knowledge of what has
been located and of whether it may be commercial.
This amendment will result in a less onerous process for companies compared
to the current process requiring immediate notification of a discovery.
Item 19 - Subsection 284(4)
This item amends subsection 284(4) to remove the reference to subsection
284(3) which is repealed by Item 18.
Item 20 - Paragraph 284(5)(a)
This item removes the reference to subsection 284(3).
Item 21 - Subsections 452(2) and (3)
Section 452 sets out requirements for the notification of discovery of
petroleum in a greenhouse gas assessment permit area, a greenhouse gas
holding lease area or a greenhouse gas injection licence area.
This item amends section 452 by repealing subsections 452(2) and (3) and
substituting a new subsection 452(2). The requirements for immediate
notification of discovery and for a written report within 3 days are
removed and replaced by the requirement to notify the responsible
Commonwealth Minister within 30 days.
Item 22 - Subsection 452(4)
This Item amends the reference in Subsection 452(4) to subsection 452(2)
only.
Item 23 - Paragraph 452(5)(a)
This removes the reference to subsection 452(3) from paragraph 452(5)(a).
Part 6 - Datum
Item 24 - Section 42
This item includes greenhouse gas titles in the table of titles and
instruments that may be annotated with a reference to the current datum.
Items 25-26 - Section 42
These items add a new note at the end of the table stating that a grant of
a greenhouse gas holding lease may be a grant by way of a renewal.
Item 27 - Subsection 43(1)
This item includes greenhouse gas titles in the table of titles or
instruments that may be described by the previous datum.
Item 28 - Sections 44 and 45
This item moves the authorisation from regulations directly into the Act to
allow the Designated Authority (DA) to issue an instrument to vary
petroleum titles and instruments, greenhouse gas titles and instruments,
applications for petroleum titles and applications for greenhouse gas
titles by re-labelling them using coordinates based on the current datum.
Item 29 - Chapter 4, Part 4.2
This item adds a new section to allow the DA to make a notation in the
Register about the applicable datum for a petroleum title, petroleum
special prospecting authority, notice or instrument. When a new Datum is
gazetted there can be considerable work in re-labelling titles with new
coordinates. This item allows the DA to make a notation in the Register
rather than necessarily issuing an instrument as set out in Sections 44-45
for every change.
Item 30 - Chapter 5, Part 5.2
This item adds a new section to allow the responsible Commonwealth Minister
to make a notation in the Register about the applicable datum for a
greenhouse gas title, greenhouse gas search authority, notice or instrument
(see item 29).
Item 31 - Transitional
This item allows variations, in relation to datum made to titles before the
commencement of this item, to remain valid.
Part 7 - Pipeline safety management plan levy
Items 32-33 - Paragraph 683(d) and Section 688
These items remove references to the pipeline safety management plan levy.
After the commencement of these items the levy raised on pipelines will be
known as a safety case levy.
Item 34 - Application
This item provides for paragraph 683(d) and Section 688 to continue to
apply in relation to pipeline safety management plan levy imposed and late
payment penalty in relation to levy imposed as if the amendments in items
32 and 33 had not been made.
Part 8 - Consent to operate a pipeline
Item 35 - Subsections 210(3), (4), (5) and (6)
This item removes the requirement for the consent of the DA for a person to
start operating a pipeline or to recommence operating a pipeline after a
period of discontinuance.
From 1 January 2010, when the pipeline safety management plan levy for
pipelines will be replaced by a safety case levy for pipelines, NOPSA will
have an increased role in the regulation of pipelines. The DA will retain
responsibility for pipeline licensing matters and the environmental
regulation of pipelines.
Under this future regime, requiring a consent to commence operation of a
pipeline would be duplicative and would add to compliance costs.
Commencement of operations for a licensed pipeline will require acceptance
of a safety case by NOPSA and acceptance of an environment plan by the DA.
Item 36 - Subsections 210(7) and (8)
As the previous item repeals subsections 210(3) and (5), this item removes
reference to them in subsections 210(7) and (8).
Item 37 - Subsection 210(9)
This item removes subsection 210(9) which refers to provisions removed by
Item 35.
Part 9 - Data management plans
Item 38 - Subsections 698(2), (3) and (4)
This item removes the requirement for a data management plan for petroleum
titles.
The collection of data and samples is very important both as an aid to
ensure the resource is being effectively managed and to provide to
prospective exploration companies to encourage exploration of Australia's
offshore areas. However, it is sufficient to require the data to be
collected, stored and provided as set out in regulations without requiring
a plan to state how the data is going to be collected, stored and provided.
Item 39 - Subsections 724(2), (3) and (4)
This item removes the requirement for a data management plan for greenhouse
gas titles. See item 38.
Item 40 - Transitional
This item permits the continuance of data management plans already in
force. It allows variation to those plans but does not permit renewal of
the plans.
Part 10 - Occupational health and safety duties
Items 41-49 - Schedule 3, Clauses 9-15 and Clause 13A
These items make negligence the fault element of the Criminal Code that
applies in Clauses 9-15 and the new Clause 13A of Schedule 3 to the conduct
and result elements of the occupational health and safety (OHS) duties
offence provisions. As a consequence, absolute liability will apply to the
element that a person is subject to an OHS requirement.
The first element of each relevant OHS clause is (a) the person is subject
to a requirement under subclause (1).
This element attracts absolute liability because it is a 'jurisdictional
element'. A jurisdictional element is essentially a precondition of the
offence. The person's state of mind with respect to that element has
little, if any, bearing on their culpability. It is sufficient that a
person is subject to a requirement under subclause (1) rather than that
they knew they were subject to a requirement.
The other elements are (b) the person omits to do an act; and (c) the
omission breaches the requirement. For each of these the fault element is
negligence.
Negligence is a commonly used fault element in occupational health and
safety matters. This is consistent with the criminal prosecution
provisions of the Occupational Health and Safety Act 1991 and provides a
more enforceable regime. Penalty provisions already set out in Clauses 9-
15 and those in the new clause 13A are also consistent with the Therapeutic
Goods Act 1989.
If intent were the fault element, having to require a prosecutor to prove
that a person to whom the OHS clauses apply intended to omit to do an act
would significantly reduce the likelihood of a conviction for OHS offences.
This would frustrate the aims of the legislation.
The Senate Standing Committee For the Scrutiny of Bills, Sixth Report of
2002 and A Guide To Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers, 2004 have been considered in the revision of these
clauses. The Attorney-General's Department was also consulted.
Item 47 - Clause 13A of Schedule 3
This item adds a new clause setting out that a titleholder has
responsibility in relation to the design of a facility to ensure that it is
safe and without risk to health. The same penalty provisions apply as set
out in Items 41-46 and 48-49.
The responsibility for the design of the facility has always been the
titleholder's. Since the introduction of amendments to the safety regime
associated with the creation of NOPSA, only the facility operator could be
prosecuted in the event of a breach of a drilling safety case (see
Petroleum (Submerged Lands) (Management of Safety on Offshore Facilities)
Regulations 1996). For drilling activities this is the drilling
contractor. Similarly, the general duties under the work safety provisions
of the Act rest with operators and employers (Schedule 3, Part 2).
In the event of an OHS incident, this amendment will permit NOPSA to seek
prosecution of a titleholder in the event there is a failure in well
design. Wells are defined in the Act to be part of a facility (see
Schedule 3, Clause 4).
This amendment allows titleholders to be held responsible where they have
contributed to the unsafe situation but it is not intended that it will
shift responsibility from facility operators when they are at fault.
Part 11 - Maps
Items 50-51 - Subsections 6(3) and (4)
These items provide revised maps showing Australia's offshore areas, which
include
the findings of the United Nations Commission on the Limits of the
Continental Shelf in April 2008 confirming the location of the outer limit
of Australia's continental shelf in nine distinct marine regions and
Australia's entitlement to large areas of continental shelf beyond 200
nautical miles.
Part 12 - Judicial review of administrative decisions
Item 52 - Schedule 3, Administrative Decisions (Judicial Review) Act 1977
This item adds the Western Australian (WA) mirror legislation to the Act to
Schedule 3. The legislation of other States and the Northern Territory has
already been listed in that Schedule.
Part 13 - Greenhouse gas storage
Item 53 - Subsection 21(7A)
This item adds a new subsection to remove possible confusion between the
requirements to identify an eligible greenhouse gas formation under section
21 and the requirements in subsection 388(8) requiring the responsible
Commonwealth Minister to make a decision on an application for a site
closing certificate within five years of the application being made.
Section 21 requires an estimate of the earliest time the responsible
Commonwealth Minister would be in a position to issue a site closing
certificate. If this is taken to be a maximum of five years specified in
subsection 388(8) it may lead to the identification of smaller than optimum
storage formation areas. The new subsection will make it clear that such
an estimate is to be made disregarding the maximum five year period set in
subsection 388(8).
Item 54 - Paragraph 297(1)(b)
This item replaces the phrase "greenhouse gas holding lease over the block"
with "greenhouse gas holding lease, or a greenhouse gas injection licence,
over the block", removing some ambiguities in the Act in relation to the
release of areas for greenhouse gas assessment. This will give effect to
the intent of the policy approach that petroleum retention lessees and
production licensees are given at least 60 days notice of the intention to
release an area covering their lease or licence for greenhouse gas
assessment.
Item 55 - Paragraph 297(3)(b)
This item inserts the words 'the day before' into the text to remove an
inconsistency relating to the timing for release of areas for greenhouse
gas assessment following the end of the 60 day notice period. Current text
provides for the end of the notice period to be at the end of a nominated
day, while release could be done at any time on that same day, including
before the end of the notice period. The amendment, therefore, will
require that release cannot occur until the day after the 60 day notice
period is completed.
Item 56 - Paragraph 297(3)(d)
This item adds the words "or licensee" to the text, making it consistent
with paragraph 297(3)(a). Without this amendment, the text is ambiguous
because other parts of the Act make it clear that a production licensee can
only apply for a greenhouse gas injection licence and not a greenhouse gas
holding lease.
Item 57 - Paragraph 304(1)(b)
This item inserts missing commas which are needed to ensure clarity.
Item 58 - Paragraph 304(3)(b)
This item inserts the words 'the day before' into the text to remove an
inconsistency relating to the timing for release of areas for greenhouse
gas assessment following the end of the 60 day notice period. The
amendment will require that release cannot occur until the day after the 60
day notice period is completed.
Item 59 - Paragraph 304(3)(d)
This item adds the words "or licensee" to the text, making it consistent
with paragraph 304(3)(a).
Items 60-61 - Subsection 358(8) and 358(8A)
These items remove an inconsistency in the Act, in respect of a greenhouse
gas injection licence awarded to a petroleum production licence holder.
The Offshore Petroleum Amendment (Greenhouse Gas Storage) Bill 2008, as
originally introduced into the Senate, specified that an injection licence
could only be granted to a production licensee in respect of greenhouse
gases derived from the production licence in question. An amendment in the
Senate added a paragraph extending these rights to include greenhouse gases
from any source, provided that some of it is obtained as a by-product of
petroleum recovery and subject to the responsible Commonwealth Minister
being satisfied that the grant of the licence is in the public interest.
The relevant paragraph appears in 370(c) of the Act.
However, Section 358 of the Act, dealing with conditions of injection
licences, stipulates in subsection 8 that an injection licence granted to a
production licence holder can only source greenhouse from the production
licence and makes no provision for the circumstances covered by the
amendment to the Act made in the Senate. The amended subsection 358(8) and
the new subsection 358(8A) will remove this inconsistency, so that the
amendments passed in the Senate have effect.
Item 62 - Subsection 374(4)
This item adds a new subclause to allow a variation of conditions to a
greenhouse gas injection licence granted to a production licence,
consistent with subsection 370(c). The extension of the rights of petroleum
production licensees, as specified in section 370(c), has created two
classes of injection licences granted to petroleum production licensees,
without any capacity to convert from one type of licence to another, and
without the difference in greenhouse gas source requirements necessarily
having any continuing policy rationale. The new sub-clause allows the
responsible Commonwealth Minister to vary the more restrictive greenhouse
gas source requirement to the less restrictive source requirement, provided
the variation is in the public interest.
Part 13A - Inquiries into significant offshore incidents
Items 62A-62C - Part 1.2, Division 1, Section 7
These items pertain to definitions and clarifications to the Act, relating
to the
Commission of inquiry.
Item 62A introduces the concept of a 'Commissioner' for the purposes of a
Commission of inquiry under the Act.
Item 62B defines a 'Commission of inquiry' for the purposes of the Act.
Item 62C ensures that the term 'Royal Commission' is the same as used in
the Royal Commissions Act 1902.
Item 62D - New Part 9.10A
These amendments form a new Part 9.10A to the Offshore Petroleum and
Greenhouse Gas Storage Act 2006 to govern Commonwealth inquiries into
significant offshore incidents, in relation to petroleum activities and
greenhouse gas
activities under the Act.
New sections
Section 780A provides for the responsible Commonwealth Minister to appoint
a
person as a Commissioner, to conduct a Commission of inquiry, as well as
the
matters which the Commission may address. An appointment must be notified
in
the Gazette.
This section also confines the inquiry to incidents regarded as
significant, and
identifies the offshore operations that are within the scope of this
section. This
section should be interpreted broadly, and may include, for example, such
specific
matters as those listed in s782 of the Act.
Section 780B enables the Commissioner to conduct hearings for the purposes
of the
Commission of inquiry. Hearings may be conducted within or outside
Australia,
using procedures decided by the Commissioner.
Section 780C states that the Commissioner is not bound by the rules of
evidence.
This provision allows the Commissioner to seek and obtain a wide variety of
information as necessary and relevant to the inquiry, without the
strictures of judicial evidence rules. This will fulfil the purposes of
this Part to determine the operational,
human and regulatory factors contributing to a significant offshore
incident, and
apply this understanding to the prevention of such incidents in future.
Section 780D provides for the Secretary of the responsible Commonwealth
Department to assign officers of the Department to assist the Commissioner
in the
conduct of a Commission of inquiry. It also specifies that once assigned,
such
officers will be solely under the direction of the Commissioner. This
removes the
possibility of conflicting directions and interests. By implication, the
Department may
contract other independent persons with relevant skills and expertise as
required to
assist in the inquiry and confer on them the powers of inspectors under
section
780F.
Section 780E outlines the application of the Royal Commissions Act 1902 and
provides the Commissioner with powers as outlined in the Royal Commissions
Act
1902 for the purposes of the Commission of inquiry. These powers include,
but are
not limited to:
. the relevant enforcement and penalty provisions relating to
powers under the Royal Commissions Act 1902, including those
relating to witnesses and evidence; and
. the provision of the same protection and immunity as a Justice of
the High Court to the Commissioner, those assisting the
Commissioner, witnesses and others.
These powers specifically exclude those powers outlined in Sections 4 and 5
of the
Royal Commissions Act 1902 (relating to warrants and searches).
This section also outlines the application of s9, s10 and s16 of the Royal
Commissions Act 1902 (relating to regulations and legal proceedings) to
this
section.
Section 780F allows the Secretary of the Department to confer inspection
powers
under the Act upon persons assisting the Commissioner of inquiry. The
Secretary
may determine that such persons have any or all of the functions and powers
of a
petroleum project inspector, a Greater Sunrise visiting inspector, a
greenhouse gas
project inspector, and an OHS inspector. These powers are defined in the
Offshore
Petroleum and Greenhouse Gas Storage Act 2006. These persons
. are subject only to the direction of the Commissioner, to
preclude conflicting directions and interests;
. are required to carry an identity card issued by the Secretary of
the Department, and return the card at the conclusion of their
work for the Commission of inquiry; and,
. have all of the powers and functions of all of the inspectors
under the Act, as well as those conferred by the Royal
Commissions Act 1902.
Section 780G specifies that laws of the Commonwealth relating the
disclosure of
information for Royal Commissions also apply to a Commission of inquiry.
Items 62E- 62H - Amendments to the Archives Act 1983
These items introduce the concept of a Commission of inquiry under the
Offshore
Petroleum and Greenhouse Gas Storage Act 2006 to the Archives Act 1983 to
ensure appropriate and lawful record keeping and archival of information
relating to
a Commission of inquiry.
Items 62J-62L - Amendments to the Freedom of Information Act 1982
These items introduce the concept of a Commission of inquiry under the
Offshore
Petroleum and Greenhouse Gas Storage Act 2006 to the Freedom of Information
Act 1982. This is to ensure that a Commission of inquiry is exempt from the
provisions of the Freedom of Information Act as per the amendments to the
Quarantine Act 1908 for the Inquiry into Equine Influenza in 2007.
Items 62M-62N - Amendments to the Privacy Act 1988
These items introduce the concept of a Commission of inquiry under the
Offshore
Petroleum and Greenhouse Gas Storage Act 2006 to the Privacy Act 1988. This
is
to ensure that a Commission of inquiry is exempt from the provisions of the
Privacy
Act as per the amendments to the Quarantine Act 1908 for the Inquiry into
Equine
Influenza in 2007.
Part 14 - Technical corrections
Item 63 - Subsections 222(2) and (5)
This item corrects an error in these subsections and sets out minor changes
to headings in subsection 132(1) and sections 297, 304 and 346.
Item 64 - Schedule 6, Subclauses 36(2) and (4)
This item corrects a reference to a subsection with reference to a
subclause.
Items 65-68 - Related Acts
These items amend the Acts set out to correct a reference to the
interpretation section from a reference to section 6 to a reference to
section 7. This has arisen through renumbering the Act.
Part 15 - Registration of transfers of, and dealings in, petroleum titles
Item 69 - Section 7
Item 69 introduces the concept of a 'referable title'. This is the class
of petroleum titles to which the process requirement was intended to apply.
Item 70 - Section 467
Item 70 inserts a definition of 'referable title' into section 467. A
'referable title' is a petroleum title the title area of which overlaps the
title area of a greenhouse gas title. It makes no difference whether the
titles are held by the same, or different, title-holders.
Items 71-75 - Applications for approval of transfers of titles
Item 71 confines to referable titles only the requirement in
paragraph 474(c) to provide 2 copies of the application and other
documents. For other petroleum titles, under new paragraph 474(d),
inserted by item 72, the requirement reverts to 1 copy, as it was prior to
the greenhouse gas amendments.
Item 73 confines to referable titles only the requirement in section 475
that the DA forward to the responsible Commonwealth Minister ('the
Minister') a copy of the application for approval of a transfer of title
and related documents.
Items 74 and 75 amend section 478 to confine to referable titles only:
. the obligation of the DA to defer making a decision on an
application until a direction or notification is received from
the Minister
. the obligation of the DA to comply with a direction of the
Minister; and
. the power of the Minister to give a direction.
Items 76-83 - Applications for approval of dealings.
Item 76 confines to referable titles only the requirement in
subsection 489(4) to provide 2 copies of the application and other
documents. For other petroleum titles, item 78 inserts new
subsection 489(4A) under which the requirement reverts to one copy, as it
was prior to the greenhouse gas amendments.
Item 79 inserts a new paragraph (aa) to subsection 489(5), which confines
to referable titles only the requirement that 3 copies of documents lodged
under section 263 of the Corporations Act 2001 be provided. For other
petroleum titles, item 80 adds new subsection 489(6) under which the
requirement reverts to 2 copies, as it was prior to the greenhouse gas
amendments.
Item 81 confines to referable titles only the requirement in section 490
that the DA forward a copy of the application for approval of a dealing and
related documents to the Minister.
Items 82 and 83 amend section 493 to confine to referable titles only:
. the obligation of the DA to defer making a decision on an
application for approval of a dealing until a direction or
notification is received from the Minister;
. the obligation of the DA to comply with a direction of the
Minister; and
. the power of the Minister to give a direction.
Items 84-88 - Provisional applications for approval of dealings in future
titles.
Item 84 confines to referable titles only the requirement in
subsection 499(4) to provide 2 copies of the provisional application and
other documents. For other petroleum titles, item 85 inserts new
subsection 499(4A) under which the requirement reverts to 1 copy, as it was
prior to the greenhouse gas amendments.
Item 86 inserts a new paragraph (aa) to subsection 499(5), which confines
to referable titles only the requirement that 3 copies of documents lodged
under section 263 of the Corporations Act 2001 be provided. For other
petroleum titles, item 87 adds a new subsection 499(6) under which the
requirement reverts to 2 copies, as it was prior to the greenhouse gas
amendments.
Item 88 confines to referable titles the obligation to give a copy of the
application and other documents to the Minister.
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