OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE ACT 2006 - SCHEDULE 2A Environmental management laws: additional NOPSEMA inspection powers

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OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE ACT 2006 - SCHEDULE 2A

Environmental management laws: additional NOPSEMA inspection powers

Note: See section 602J.

• This Schedule covers those provisions of this Act (called environmental management laws) that concern offshore petroleum and greenhouse gas storage environmental management in Commonwealth waters.

• NOPSEMA inspectors may conduct an inspection (called an environmental inspection) to monitor compliance with environmental management laws.

• A NOPSEMA inspector must prepare a report about an inspection and give the report to NOPSEMA.

• The powers that a NOPSEMA inspector may exercise for the purposes of an inspection are in addition to the powers in relation to environmental management laws that the inspector may exercise for the purposes of Division 1 of Part 6.5 of this Act.

• During a declared oil pollution emergency, NOPSEMA inspectors may conduct an inspection (called an oil pollution environmental inspection ) to determine either or both of the following:

(a) whether the oil pollution emergency provisions of a declared environment plan have been, or are being, complied with;

(b) whether a significant incident direction has been, or is being, complied with.

2 Definitions

In this Schedule:

"CEO" means the Chief Executive Officer of NOPSEMA.

"Commonwealth waters" has the same meaning as in Part 6.9 of this Act.

"declared environment plan" has the meaning given by clause 2A.

"declared oil pollution emergency" has the meaning given by clause 2A.

"eligible premises" means premises (within the ordinary meaning of that expression), and includes the following:

(a) a structure or building;

(b) a place that is enclosed;

"emergency response premises" has the meaning given by clause 2B.

"enter" , when used in relation to offshore premises that are a vessel, includes board.

"environmental do not disturb notice" has the meaning given by subclause 10(2).

"environmental improvement notice" has the meaning given by subclause 11C(2).

"environmental inspection" : see clause 3.

"environmental management law" means:

(a) the provisions of this Act, to the extent to which the provisions relate to, or empower NOPSEMA to take action in relation to, offshore petroleum environmental management (within the meaning of Part 6.9 of this Act) in relation to Commonwealth waters; or

(aa) the provisions of this Act, to the extent to which the provisions relate to, or empower NOPSEMA to take action in relation to, the oil pollution emergency provisions of an environment plan; or

(ab) the provisions of an environment plan that relate to preparation for an emergency that may result in oil pollution; or

(b) the provisions of this Act, to the extent to which the provisions relate to, or empower NOPSEMA to take action in relation to, offshore greenhouse gas storage environmental management (within the meaning of Part 6.9 of this Act) in relation to Commonwealth waters;

and includes:

(d) a requirement made under a provision of this Act, to the extent mentioned in paragraph (b); and

(e) section 571 (which deals with financial assurance); and

(f) a regulation made for the purposes of subsection 571(3) in relation to compliance with section 571.

"environmental prohibition notice" has the meaning given by subclause 11A(2).

"environment plan" means an environment plan under prescribed regulations, or a prescribed provision of regulations, made under this Act.

"facility" has the meaning given by Schedule 3.

"greenhouse gas title" means:

(a) a greenhouse gas assessment permit; or

(b) a greenhouse gas holding lease; or

(d) a greenhouse gas search authority; or

(e) a greenhouse gas special authority; or

(f) a greenhouse gas research consent.

"master" , in relation to a vessel, means the person having command or charge of the vessel.

"offence against an environmental management law" : see clause 14.

"offshore premises" means any of the following, if located in Commonwealth waters:

(a) a facility;

(b) an infrastructure facility that is (or has been) the subject of an infrastructure licence;

(i) petroleum exploration;

(ii) exploration for potential greenhouse gas storage formations;

(iii) exploration for potential greenhouse gas injection sites;

(d) any other premises (other than a vessel under the command or charge of a master) that are or are to be used, or that have been used, for the carrying out of an activity in connection with the exercise of a titleholder's rights, or the performance of a titleholder's obligations, under this Act.

"oil pollution emergency provisions" of an environment plan means:

(a) any provisions of an oil pollution emergency plan contained in the environment plan; or

(b) any other provisions of the environment plan that relate to an emergency that has resulted in, or may result in, oil pollution.

"oil pollution environmental inspection" means an environmental inspection covered by subclause 3(2A).

"operator" , in relation to a facility, has the same meaning as in Schedule 3.

"operator's representative at the facility" has the same meaning as in Schedule 3.

"own" includes own jointly or own in part.

"petroleum activity" means operations or works in an offshore area undertaken for the purpose of:

(a) exercising a right conferred on a petroleum titleholder by or under this Act by a petroleum title; or

(b) discharging an obligation imposed on a petroleum titleholder by or under this Act.

"petroleum title" means:

(a) a petroleum exploration permit; or

(b) a petroleum retention lease; or

(d) an infrastructure licence; or

(e) a pipeline licence; or

(f) a petroleum special prospecting authority; or

(g) a petroleum access authority; or

(h) a petroleum scientific investigation consent.

"petroleum titleholder" means the registered holder of a petroleum title.

"plant" includes any machinery, equipment or tool, or any component.

"premises" has the same meaning as in the Regulatory Powers Act. This definition does not apply to the definition of eligible premises .

"regulated business premises" means:

(a) eligible premises that are:

(i) on land; and

(ii) occupied by the registered holder of a title; and

(iii) used, or proposed to be used, wholly or principally in connection with operations in relation to one or more titles, including that title; or

(b) eligible premises that are:

(i) on land; and

(ii) occupied by a related body corporate of the registered holder of a title; and

(iii) used, or proposed to be used, wholly or principally in connection with operations in relation to one or more titles, including that title; or

(i) on land; and

(ii) occupied by a person who, under a contract, arrangement or understanding with the registered holder of a title, has carried out, is carrying out, or is to carry out one or more operations in connection with the exercise of the holder's rights, or the performance of the holder's obligations, under this Act; and

(iii) used, or proposed to be used, wholly or partly in connection with operations in relation to one or more titles, including that title; and

(iv) not used as a residence; or

(d) eligible premises that are:

(i) on land; and

(ii) occupied by a person who, under a contract, arrangement or understanding with a related body corporate of the registered holder of a title, has carried out, is carrying out, or is to carry out one or more operations in connection with the exercise of the holder's rights, or the performance of the holder's obligations, under this Act; and

(iii) used, or proposed to be used, wholly or partly in connection with operations in relation to one or more titles, including that title; and

(iv) not used as a residence.

"significant incident direction" means a direction under section 576B.

"this Act" includes a legislative instrument under this Act.

"title" means:

(a) a petroleum title; or

(b) a greenhouse gas title.

"titleholder" means the registered holder of:

(a) a petroleum title; or

(b) a greenhouse gas title.

"titleholder's representative" , in relation to a titleholder within the meaning of this Schedule, has the meaning given by section 602K.

2A Declared oil pollution emergency

Declaration

(1) If the CEO is satisfied that:

(a) there is an emergency, including an emergency to which a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020 ) relates, that has resulted in, or may result in, oil pollution; and

(b) the emergency is attributable to one or more petroleum activities of a petroleum titleholder; and

(i) there is a single environment plan that is, or may be, relevant to the emergency; or

(ii) there are 2 or more environment plans that are, or may be, relevant to the emergency;

the CEO may, by writing, declare:

(d) that there is a declared oil pollution emergency for the purposes of this Schedule; and

(e) if subparagraph (c)(i) applies--that the environment plan is a declared environment plan for the purposes of this Schedule; and

(f) if subparagraph (c)(ii) applies--that each of those environment plans is a declared environment plan for the purposes of this Schedule.

(2) NOPSEMA must:

(a) publish a copy of a declaration under subclause (1) on NOPSEMA's website; and

(b) do so as soon as practicable after the declaration is made.

(3) NOPSEMA must:

(a) give a copy of a declaration under subclause (1) to the Secretary; and

(b) do so as soon as practicable after the declaration is made.

(4) If a declaration under subclause (1) relates to an emergency that is attributable to one or more petroleum activities carried on in the offshore area of a State, NOPSEMA must:

(a) give a copy of the declaration to the designated public official of the State; and

(b) do so as soon as practicable after the declaration is made.

(5) If a declaration under subclause (1) relates to an emergency that is attributable to one or more petroleum activities carried on in the Principal Northern Territory offshore area, NOPSEMA must:

(a) give a copy of the declaration to the designated public official of the Northern Territory; and

(b) do so as soon as practicable after the declaration is made.

(6) If a declaration under subclause (1) relates to an emergency that is attributable to one or more petroleum activities carried on in the offshore area of a designated external Territory, NOPSEMA must:

(a) give a copy of the declaration to the designated public official of the designated external Territory; and

(b) do so as soon as practicable after the declaration is made.

(7) If a declaration under subclause (1) relates to an emergency that is attributable to one or more petroleum activities of a petroleum titleholder, NOPSEMA must:

(a) give a copy of the declaration to the petroleum titleholder; and

(b) do so as soon as practicable after the declaration is made.

Revocation of declaration

(8) If:

(a) a declaration under subclause (1) is in force in relation to an emergency; and

(b) the CEO is satisfied that the emergency no longer exists;

the CEO must, by writing, revoke the declaration.

(9) If a declaration is revoked under subclause (8), NOPSEMA must:

(a) publish a copy of the instrument of revocation on NOPSEMA's website; and

(b) do so as soon as practicable after the instrument of revocation is made.

(10) If a declaration is revoked under subclause (8), NOPSEMA must:

(a) give a copy of the instrument of revocation to the Secretary; and

(b) do so as soon as practicable after the instrument of revocation is made.

(11) If:

(a) a declaration under subclause (1) relates to an emergency that is attributable to one or more petroleum activities carried on in the offshore area of a State; and

(b) the declaration is revoked under subclause (8);

NOPSEMA must:

(d) do so as soon as practicable after the instrument of revocation is made.

(12) If:

(a) a declaration under subclause (1) relates to an emergency that is attributable to one or more petroleum activities carried on in the Principal Northern Territory offshore area; and

(b) the declaration is revoked under subclause (8);

NOPSEMA must:

(d) do so as soon as practicable after the instrument of revocation is made.

(13) If:

(a) a declaration under subclause (1) relates to an emergency that is attributable to one or more petroleum activities carried on in the offshore area of a designated external Territory; and

(b) the declaration is revoked under subclause (8);

NOPSEMA must:

(c) give a copy of the instrument of revocation to the designated public official of the designated external Territory; and

(d) do so as soon as practicable after the instrument of revocation is made.

(14) If:

(a) a declaration under subclause (1) relates to an emergency that is attributable to one or more petroleum activities of a petroleum titleholder; and

(b) the declaration is revoked under subclause (8);

NOPSEMA must:

(d) do so as soon as practicable after the instrument of revocation is made.

Other matters

(15) A declaration under subclause (1), and an instrument of revocation under subclause (8), are not legislative instruments.

(16) For the purposes of paragraph (1)(a), it is immaterial whether the oil pollution is:

(a) in an offshore area; or

(b) within the coastal waters of a State or the Northern Territory; or

2B Emergency response premises

Premises other than an aircraft or a vessel

(1) For the purposes of this Schedule, premises (other than an aircraft or a vessel) are emergency response premises if the premises:

(a) are being used, or are proposed to be used, for the implementation of the oil pollution emergency provisions of a declared environment plan; or

(b) are being used, or are proposed to be used, for:

(i) planning; or

(ii) directing; or

(iii) coordinating; or

(iv) providing logistical support for;

the implementation of the oil pollution emergency provisions of a declared environment plan; or

(d) are being used, or are proposed to be used, for:

(i) planning; or

(ii) directing; or

(iii) coordinating; or

(iv) providing logistical support for;

compliance with a significant incident direction.

Premises being an aircraft or a vessel

(2) For the purposes of this Schedule, premises (being an aircraft or a vessel) are emergency response premises if the premises:

(a) are being:

(i) used; or

(ii) prepared for use; or

(iii) positioned for use;

for the implementation of the oil pollution emergency provisions of a declared environment plan; or

(b) are being:

(i) used; or

(ii) prepared for use; or

(iii) positioned for use;

for:

(iv) observing; or

(v) planning; or

(vi) directing; or

(vii) coordinating; or

(viii) providing logistical support for;

the implementation of the oil pollution emergency provisions of a declared environment plan; or

(i) used; or

(ii) prepared for use; or

(iii) positioned for use;

for compliance with a significant incident direction; or

(d) are being:

(i) used; or

(ii) prepared for use; or

(iii) positioned for use;

for:

(iv) observing; or

(v) planning; or

(vi) directing; or

(vii) coordinating; or

(viii) providing logistical support for;

compliance with a significant incident direction.

Location of premises

(3) For the purposes of subclauses (1) and (2), it is immaterial whether the premises are:

(a) in an offshore area; or

(b) in or above the coastal waters of a State or the Northern Territory; or

Note: For the space above an offshore area, see section 9.

Part 2 -- Environmental inspections

Division 1 -- Environmental inspections: general provisions

3 Environmental inspections--nature of inspections

What is an environmental inspection ?

(1) An environmental inspection is an inspection under this Part. Such an inspection:

(a) includes an investigation or inquiry; and

(b) need not include a physical inspection of any premises or thing.

Inspections--general power

(2) A NOPSEMA inspector may, at any time, conduct an environmental inspection:

(a) to determine whether an environmental management law has been, or is being, complied with; or

(b) to determine whether information given in compliance, or purported compliance, with an environmental management law is correct.

The inspection may be conducted at the inspector's own initiative or in compliance with a direction under subclause (3).

(2A) I f there is a declared oil pollution emergency, a NOPSEMA inspector may conduct an environmental inspection to determine either or both of the following:

(a) whether the oil pollution emergency provisions of a declared environment plan have been, or are being, complied with;

(b) whether a significant incident direction has been, or is being, complied with.

(2B) An environmental inspection under subclause (2A) is to be known as an oil pollution environmental inspection .

(2C) An oil pollution environmental inspection may be conducted:

(a) at the inspector's own initiative; or

(b) in compliance with a direction under subclause (5).

(2D) Subclause (2A) does not limit subclause (2).

(2E) An oil pollution environmental inspection may be conducted concurrently with an inspection under subclause (2).

(2F) For the purposes of this Schedule, if:

(a) an oil pollution environmental inspection is conducted wholly or partly to determine whether the oil pollution emergency provisions of a declared environment plan have been, or are being, complied with; and

(b) the declared environment plan relates to one or more of the petroleum activities of the registered holder of a petroleum title;

the oil pollution environmental inspection is taken to relate to the title.

(2G) For the purposes of this Schedule, if:

(a) an oil pollution environmental inspection is conducted wholly or partly to determine whether a significant incident direction has been, or is being, complied with; and

(b) the significant incident direction was given to the registered holder of a petroleum title;

the oil pollution environmental inspection is taken to relate to the title.

Inspections--directed by NOPSEMA

(3) NOPSEMA may give a written direction to a NOPSEMA inspector to conduct an environmental inspection under subclause (2).

(4) The NOPSEMA inspector must conduct an environmental inspection under subclause (2) as directed under subclause (3).

(5) If there is a declared oil pollution emergency, NOPSEMA may give a written direction to a NOPSEMA inspector to conduct an oil pollution environmental inspection.

(6) The NOPSEMA inspector must conduct an oil pollution environmental inspection as directed under subclause (5).

4 Environmental inspections--offshore premises

Power to enter and search

(1) A NOPSEMA inspector may, for the purposes of an environmental inspection, at any reasonable time during the day or night:

(a) enter offshore premises at which activities to which the inspection relates are being, or have been, carried on, and do any or all of the following:

(i) search the premises;

(ii) inspect, examine or measure, or conduct tests concerning, the premises (including any part of the premises and any plant, substance or thing at the premises);

(iii) take photographs of, make video recordings of, or make sketches of, the premises (including any part of the premises and any plant, substance or thing at the premises);

(iv) inspect, take extracts from, or make copies of, any documents at the premises that the inspector is satisfied on reasonable grounds relate, or are likely to relate, to the subject matter of the inspection;

(v) exercise the powers conferred by clause 8 in relation to the inspection;

(vi) exercise the powers conferred by clause 9 in relation to the inspection; and

(b) inspect the seabed and subsoil in the vicinity of the offshore premises to which the inspection relates.

Notification of entry

(2) Immediately on entering the offshore premises for the purposes of the inspection, a NOPSEMA inspector must take reasonable steps to notify the purpose of the entry to the following person (the occupier ):

(a) if the premises are a vessel under the command or charge of a master--the master;

(b) if paragraph (a) does not apply:

(i) the titleholder's representative at the premises who is nominated for the inspection; or

(ii) if there is no titleholder's representative at the premises--the person at the premises who appears to be in overall control of the premises.

(3) The inspector must, on being requested to do so by the occupier, produce for inspection by the occupier:

(a) the inspector's identity card; and

(b) a copy of NOPSEMA's written direction (if any) to conduct the inspection; and

Modified operation of this clause in relation to an oil pollution environmental inspection

(4) If there is a declared oil pollution emergency, this clause has effect, in relation to an oil pollution environmental inspection, as if a reference in this clause to offshore premises included a reference to emergency response premises.

5 Environmental inspections--regulated business premises

Power to enter and search

(1) A NOPSEMA inspector may, for the purposes of an environmental inspection (other than an oil pollution environmental inspection):

(a) at any reasonable time, enter any regulated business premises if the inspector is satisfied on reasonable grounds that there are likely to be at those premises plant, substances, documents or things that relate to:

(i) operations conducted for the purposes of a petroleum title or a greenhouse gas title; or

(ii) compliance or non - compliance with an environmental management law; and

(b) search those premises for any such plant, substances, documents or things at those premises; and

(d) inspect, examine or measure, or conduct tests concerning:

(i) those premises (including any part of those premises); or

(ii) any such plant, substances or things at those premises; and

(e) take photographs of, make video recordings of, or make sketches of:

(i) those premises (including any part of those premises); or

(ii) any such plant, substances or things at those premises; and

(f) exercise the powers conferred by clause 8 in relation to the inspection; and

(g) exercise the powers conferred by clause 9 in relation to the inspection.

(1A) If there is a declared oil pollution emergency, a NOPSEMA inspector may, for the purposes of an oil pollution environmental inspection:

(i) the oil pollution emergency provisions of a declared environment plan; or

(ii) a significant incident direction; and

(b) search those premises for any such plant, substances, documents or things at those premises; and

(d) inspect, examine or measure, or conduct tests concerning, any such plant, substances or things at those premises; and

(e) take photographs of, make video recordings of, or make sketches of, any such plant, substances or things at those premises; and

(f) exercise the powers conferred by clause 8 in relation to the inspection; and

(g) exercise the powers conferred by clause 9 in relation to the inspection.

Notification of entry

(2) Immediately on entering regulated business premises for the purposes of an inspection, a NOPSEMA inspector must take reasonable steps to notify the purpose of the entry to:

(a) in the case of an inspection at regulated business premises that are occupied by the titleholder--a person representing the titleholder; or

(b) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the titleholder--a person representing the related body corporate; or

(c) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (c)(ii) of the definition of regulated business premises in clause 2--a person representing the person; or

(d) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (d)(ii) of the definition of regulated business premises in clause 2--a person representing the person.

(3) The inspector must, on being requested to do so by the person required to be notified under subclause (2), produce for inspection by the person:

(a) the inspector's identity card; and

(b) a copy of NOPSEMA's written direction (if any) to conduct the inspection; and

6 Environmental inspections--obstructing or hindering NOPSEMA inspector

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct obstructs or hinders a NOPSEMA inspector in the exercise of the inspector's powers under clause 4 or 5.

Penalty: 60 penalty units.

(2) A person is liable for a civil penalty if the person obstructs or hinders a NOPSEMA inspector in the exercise of the inspector's powers under clause 4 or 5.

Civil penalty: 135 penalty units.

(3) Subclause (1) or (2) does not apply if the person has a reasonable excuse.

Note 1: In proceedings for an offence against subclause (1), the defendant bears an evidential burden in relation to the matter in subclause (3)--see subsection 13.3(3) of the Criminal Code . The same applies in proceedings for a civil penalty under subclause (2).

Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility).

Note 3: The same conduct may be an offence against both subclause (1) of this clause and section 149.1 of the Criminal Code .

Division 2 -- Environmental inspections: compliance powers

7 Environmental inspections--power to require assistance

Requirement to provide assistance

(1) A NOPSEMA inspector may, to the extent that it is reasonably necessary to do so in connection with the conduct of an environmental inspection at or near offshore premises in relation to a petroleum title or a greenhouse gas title, require:

(a) the titleholder; or

(b) the titleholder's representative at the premises who is nominated for the inspection;

to provide the inspector with reasonable assistance and facilities:

(d) for the effective exercise of the inspector's powers in connection with the conduct of the inspection at or near the premises.

(2) The reasonable assistance referred to in subclause (1) includes, so far as the titleholder is concerned:

(a) appropriate transport to or from the premises for the inspector and for any equipment required by the inspector, or any thing of which the NOPSEMA inspector has taken possession; and

(b) reasonable accommodation and means of subsistence while the inspector is at the premises.

(2A) If there is a declared oil pollution emergency, a NOPSEMA inspector may, to the extent that it is reasonably necessary to do so in connection with the conduct of an oil pollution environmental inspection that relates to a petroleum title, require the petroleum titleholder to provide the inspector with reasonable assistance and facilities:

(a) that is or are reasonably connected with the conduct of the inspection; or

(b) for the effective exercise of the inspector's powers in connection with the conduct of the inspection.

(2B) The reasonable assistance referred to in subclause (2A) includes:

(a) appropriate transport to or from emergency response premises for the inspector and for any equipment required by the inspector, or any thing of which the NOPSEMA inspector has taken possession; and

(b) reasonable accommodation and means of subsistence while the inspector is at emergency response premises; and

(i) implementing the oil pollution emergency provisions of a declared environment plan; or

(ii) observing the implementation of the oil pollution emergency provisions of a declared environment plan; or

(iii) directing the implementation of the oil pollution emergency provisions of a declared environment plan; or

(iv) coordinating the implementation of the oil pollution emergency provisions of a declared environment plan; or

(v) complying with a significant incident direction; or

(vi) observing compliance with a significant incident direction; or

(vii) directing compliance with a significant incident direction; or

(viii) coordinating compliance with a significant incident direction; and

(d) arranging for persons on board such an aircraft or vessel to facilitate the conduct by the inspector of the oil pollution environmental inspection; and

(e) arranging for reasonable means of subsistence while the inspector is present on such an aircraft or vessel; and

(f) arranging for reasonable accommodation while the inspector is present on such a vessel.

Offence

(3) A person commits an offence if:

(a) the person is subject to a requirement under this clause; and

(b) the person omits to do an act; and

Penalty: Imprisonment for 6 months or 60 penalty units, or both.

(4) Subclause (3) does not apply if the person has a reasonable excuse.

Note 1: A defendant bears an evidential burden in relation to the matter in subclause (4)--see subsection 13.3(3) of the Criminal Code .

Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility).

8 Environmental inspections--powers to require information, and the production of documents and things

Requirement to answer questions

(1) If:

(a) a NOPSEMA inspector is satisfied on reasonable grounds that a person is capable of answering a question that is reasonably connected with the conduct of an environmental inspection in relation to a petroleum title or a greenhouse gas title; and

(b) the person is:

(i) the titleholder; or

(ii) in the case of an inspection at offshore premises--the titleholder's representative at the premises who is nominated for the inspection, or any person engaged in petroleum activities or greenhouse gas activities at the premises; or

(iii) in the case of an inspection at regulated business premises that are occupied by the titleholder--a person representing the titleholder; or

(iv) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the titleholder--a person representing the related body corporate; or

(v) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (c)(ii) of the definition of regulated business premises in clause 2--a person representing the person; or

(vi) in the case of an inspection at regulated business premises that are occupied by a person covered by subparagraph (d)(ii) of the definition of regulated business premises in clause 2--a person representing the person;

the inspector may, to the extent that it is reasonably necessary to do so in connection with the conduct of the inspection, require the person to answer the question put by the inspector.

(2) If, at the time when a requirement under subclause (1) is imposed on a person, the person is not physically present at offshore premises or regulated business premises, the person is not obliged to comply with the requirement unless the requirement:

(a) is in writing; and

(b) specifies the day on or before which the question is to be answered; and

The day specified under paragraph (b) must be at least 14 days after the day the requirement is imposed.

Requirement to produce documents or things

(3) If:

(a) a NOPSEMA inspector is satisfied on reasonable grounds that a person is capable of producing a document or thing that is reasonably connected with the conduct of an environmental inspection in relation to a petroleum title or a greenhouse gas title; and

(b) the person is:

(i) the titleholder; or

(iii) in the case of an inspection at regulated business premises that are occupied by the titleholder--a person representing the titleholder; or

(iv) in the case of an inspection at regulated business premises that are occupied by a related body corporate of the titleholder--a person representing the related body corporate; or

the inspector may, to the extent that it is reasonably necessary to do so in connection with the conduct of the inspection, require the person to produce the document or thing.

(4) If, at the time when a requirement under subclause (3) is imposed on a person, the person is not physically present at offshore premises or regulated business premises, the person is not obliged to comply with the requirement unless the requirement:

(a) is in writing; and

(b) specifies the day on or before which the document or thing is to be produced; and

The day specified under paragraph (b) must be at least 14 days after the day the requirement is imposed.

Modified operation of this clause in relation to an oil pollution environmental inspection

(4A) If there is a declared oil pollution emergency, this clause has effect, in relation to an oil pollution environmental inspection, as if a reference in this clause to offshore premises included a reference to emergency response premises.

Offence

(5) A person commits an offence if:

(a) the person is subject to a requirement under this clause; and

(b) the person omits to do an act; and

Penalty: Imprisonment for 6 months or 60 penalty units, or both.

(6) Subclause (5) does not apply if the person has a reasonable excuse.

Note 1: A defendant bears an evidential burden in relation to the matter in subclause (6)--see subsection 13.3(3) of the Criminal Code .

Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility).

False information

(7) A person commits an offence if:

(a) the person gives information to another person; and

(b) the person does so knowing that the information is false or misleading in a material particular; and

Penalty: Imprisonment for 6 months or 60 penalty units, or both.

Note: The same conduct may be an offence against both subclause (7) of this clause and section 137.1 of the Criminal Code .

Self - incrimination

(8) A person is not excused from answering a question or producing a document or thing when required to do so under subclause (1) or (3) on the ground that the answer to the question, or the production of the document or thing, may tend to incriminate the person or make the person liable to a penalty.

(9) However, in the case of an individual:

(a) the answer given or document or thing produced; or

(b) answering the question or producing the document or thing; or

(c) any information, document or thing obtained as a direct or indirect consequence of the answering of the question or the production of the document or thing;

is not admissible in evidence against the individual:

(d) in any civil proceedings; or

(e) in any criminal proceedings other than:

(i) proceedings for an offence against this clause; or

(ii) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this clause.

NOPSEMA inspector may retain documents

(10) A NOPSEMA inspector may take possession of a document produced under this clause, and retain it for as long as is reasonably necessary.

(11) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by a NOPSEMA inspector to be a true copy.

(12) The certified copy must be received in all courts and tribunals as evidence as if it were the original.

(13) Until a certified copy is supplied, a NOPSEMA inspector must provide the person otherwise entitled to possession of the document, or a person authorised by that person, reasonable access to the document for the purposes of inspecting and making copies of, or taking extracts from, the document.

NOPSEMA inspector may retain other things

(14) A NOPSEMA inspector may take possession of a thing (other than a document) produced under this clause, and retain it for as long as is reasonably necessary.

Notice--taking possession at offshore premises

(15) On taking possession of a thing under subclause (14) at offshore premises, the NOPSEMA inspector must, by written notice, inform the following persons of the taking of possession, and the reasons for it:

(a) in any case:

(i) the titleholder's representative at the premises who is nominated for the inspection; or

(ii) if there is no titleholder's representative at the premises--the titleholder;

(b) if the premises are a facility--the operator's representative at the facility;

(d) if the thing is owned by a person other than a person mentioned in paragraph (a), (b) or (c)--that owner.

Display of notice at premises

(16) The following person must cause the notice to be displayed in a prominent place at the premises:

(a) if the premises are a facility--the operator's representative at the facility;

(b) in any other case--the person notified under paragraph (15)(a).

Note: The person notified under paragraph (15)(a) is either the titleholder's representative or the titleholder.

Notice--taking possession otherwise than at offshore premises

(17) On taking possession of a thing under subclause (14) otherwise than at offshore premises, the NOPSEMA inspector must, by written notice, inform the owner of the thing of the taking of possession, and the reasons for it.

Inspection of thing

(18) If:

(a) a NOPSEMA inspector has taken possession of a thing (other than a document) produced under this clause; and

(b) it is reasonably necessary for the NOPSEMA inspector to retain the thing;

the NOPSEMA inspector must provide:

(d) the person who owns the thing; and

(e) a person authorised by a person covered by paragraph (c) or (d);

reasonable access to the thing for the purposes of inspecting the thing.

Return of thing

(19) If:

(a) a NOPSEMA inspector has taken possession of a thing (other than a document) produced under this clause; and

(b) it is no longer reasonably necessary for the NOPSEMA inspector to retain the thing;

the NOPSEMA inspector must return the thing to:

(d) the person who owns the thing; or

(e) a person authorised by a person covered by paragraph (c) or (d).

9 Environmental inspections--power to take possession of plant and samples etc.

Power to take possession or samples

(1) In conducting an environmental inspection in relation to a petroleum title or a greenhouse gas title, a NOPSEMA inspector may, to the extent that it is reasonably necessary for the purposes of inspecting, examining or measuring, or conducting tests concerning, any plant, substance or thing at offshore premises, or regulated business premises, in connection with the inspection:

(a) take possession of the plant, substance or thing and remove it from the premises; or

(b) take a sample of the substance or thing and remove that sample from the premises.

Notice

(2) On taking possession of plant, a substance or a thing, or taking a sample of a substance or thing, the inspector must, by written notice, inform the following persons of the taking of possession or the taking of the sample, and the reasons for it:

(a) if the premises are offshore premises:

(i) the titleholder's representative at the premises who is nominated for the inspection; or

(ii) if there is no titleholder's representative at the premises--the titleholder;

(b) if the premises are a facility--the operator's representative at the facility;

(ca) if the premises are regulated business premises that are occupied by the titleholder--a person who represents the titleholder;

(cb) if the premises are regulated business premises that are occupied by a related body corporate of the titleholder--a person who represents the related body corporate;

(cc) if the premises are regulated business premises that are occupied by a person covered by subparagraph (c)(ii) of the definition of regulated business premises in clause 2--a person who represents the person;

(cd) if the premises are regulated business premises that are occupied by a person covered by subparagraph (d)(ii) of the definition of regulated business premises in clause 2--a person who represents the person;

(d) if the plant, substance or thing is owned by a person other than a person mentioned in paragraph (a), (b), (c), (ca), (cb), (cc) or (cd)--that owner.

Display of notice

(3) If the notice relates to offshore premises, the following person must cause the notice to be displayed in a prominent place at the premises:

(a) if the premises are a facility--the operator's representative at the facility;

(b) in any other case--the person notified under paragraph (2)(a).

Note: The person notified under paragraph (2)(a) is either the titleholder's representative or the titleholder.

(3A) If the notice relates to regulated business premises, the following person must cause the notice to be displayed in a prominent place at the premises:

(a) if the premises are occupied by the titleholder--the titleholder;

(b) if the premises are occupied by a related body corporate of the titleholder--a person who represents the related body corporate;

(c) if the premises are occupied by a person covered by subparagraph (c)(ii) of the definition of regulated business premises in clause 2--a person who represents the person;

(d) if the premises are occupied by a person covered by subparagraph (d)(ii) of the definition of regulated business premises in clause 2--a person who represents the person.

Duties of NOPSEMA inspector

(4) If the NOPSEMA inspector takes possession of plant, a substance or a thing for the purpose of inspecting, examining or measuring, or conducting tests concerning, the plant, substance or thing, the inspector must:

(a) ensure that the inspection, examination, measuring or testing is conducted as soon as practicable; and

(b) if the NOPSEMA inspector took possession of the plant, substance or thing at offshore premises--return it to the offshore premises as soon as practicable afterwards; and

(c) if the NOPSEMA inspector took possession of the plant, substance or thing at regulated business premises--return it to a representative of the occupier of the premises as soon as practicable afterwards.

(5) As soon as practicable after completing any such inspection, examination, measurement or testing, the inspector must give a written statement setting out the results to each person the inspector is required to notify under subclause (2).

Modified operation of this clause in relation to an oil pollution environmental inspection

(6) If there is a declared oil pollution emergency, this clause has effect, in relation to an oil pollution environmental inspection, as if a reference in this clause to offshore premises included a reference to emergency response premises.

10 Environmental do not disturb notices (general)

Scope

(1) This clause applies if a NOPSEMA inspector is conducting an environmental inspection in relation to offshore premises.

When a notice may be issued

(2) A NOPSEMA inspector may, in connection with the conduct of the environmental inspection, issue a notice (an environmental do not disturb notice ) to a titleholder, in writing, under this clause if the inspector is satisfied on reasonable grounds that it is reasonably necessary to issue the notice in order to allow the inspection, examination or measurement of, or the conducting of tests concerning:

(a) the premises; or

(b) particular plant, or a particular substance or thing, at the premises.

Issue of notice

(3) Without limiting the way in which the notice may be issued, the notice may be issued to the titleholder by being given to the titleholder's representative at the premises who is nominated for the inspection.

Contents of notice

(4) The notice must:

(a) direct the titleholder to take all reasonably practicable steps to ensure that one or more of the following are not disturbed for a period specified in the notice:

(i) a particular part of the premises;

(ii) particular plant, or a particular substance or thing, at the premises; and

(b) set out the reasons for the inspector's decision to issue the notice.

(5) The period specified in the notice must be a period that the inspector is satisfied on reasonable grounds is necessary in order to allow the inspection, examination, measuring or testing to take place.

Renewal of notice

(6) The notice may be renewed by another notice in the same terms.

Modified operation of this clause in relation to an oil pollution environmental inspection

(6A) If there is a declared oil pollution emergency, this clause has effect, in relation to an oil pollution environmental inspection, as if a reference in this clause to offshore premises included a reference to emergency response premises.

(6B) In the case of an oil pollution environmental inspection, a NOPSEMA inspector must not issue an environmental do not disturb notice in relation to emergency response premises of a particular kind unless the inspector considers that it is appropriate to issue such a notice in relation to premises of that kind.

Offence

(7) A person commits an offence if:

(a) the person is subject to an environmental do not disturb notice; and

(b) the person omits to do an act; and

Penalty for contravention of subclause (7): 300 penalty units.

11 Environmental inspections--environmental do not disturb notices (notification and display)

Notice to interested persons

(1) As soon as practicable after issuing an environmental do not disturb notice, the NOPSEMA inspector must take reasonable steps to give a copy of the notice to the following persons:

(a) if the premises are a facility--the operator's representative at the facility;

(b) if the premises are a vessel under the command or charge of a master--the master;

(c) if the premises are, or the plant, substance or thing is, owned by a person other than the titleholder or operator--that owner.

Display of direction

(2) The following person must cause a copy of an environmental do not disturb notice to be displayed in a prominent place at the premises:

(a) if the premises are a facility--the operator's representative at the facility;

(b) in any other case:

(i) if the notice is given to the titleholder's representative under subclause 10(3)--the titleholder's representative; or

(ii) if the notice is not given to the titleholder's representative--the titleholder.

11A Environmental inspections--environmental prohibition notices (issue)

Scope

(1) This clause applies if a NOPSEMA inspector is conducting an environmental inspection in relation to offshore premises.

When notice may be issued

(2) A NOPSEMA inspector may issue a notice (an environmental prohibition notice ) to a titleholder, in writing, under this clause if, in conducting the inspection, the inspector is satisfied on reasonable grounds that:

(a) one or more of the following is the case:

(i) an activity is occurring at the premises that involves an immediate and significant threat to the environment;

(ii) an activity may occur at the premises that, if it occurred, would involve an immediate and significant threat to the environment;

(iii) the operation or use of the premises involves an immediate and significant threat to the environment;

(iv) the operation or use of the premises, if it occurred, would involve an immediate and significant threat to the environment; and

(b) it is reasonably necessary to issue the notice in order to remove the threat.

Note: The notice will be published on NOPSEMA's website (see clause 12A).

How notice may be issued

Contents of notice

(4) The notice must:

(a) state that the inspector is satisfied on reasonable grounds that a specified circumstance mentioned in paragraph (2)(a) applies, and set out those grounds; and

(b) specify the activity at the premises, or the operation or use of the premises, that involves a threat to the environment; and

(d) direct the titleholder to ensure:

(i) that the activity is not conducted; or

(ii) that the activity is not conducted in a specified manner; or

(iii) that the premises are not operated or used; or

(iv) that the premises are not operated or used in a specified manner.

(5) The notice may specify action that may be taken to satisfy a NOPSEMA inspector that adequate action has been taken to remove the threat to the environment.

Modified operation of this clause in relation to an oil pollution environmental inspection

(5A) If there is a declared oil pollution emergency, this clause has effect, in relation to an oil pollution environmental inspection, as if:

(a) a reference in this clause to offshore premises included a reference to emergency response premises; and

(b) a reference in this clause to a threat to the environment were, by express provision, confined to a threat that is attributable to one or more petroleum activities of a petroleum titleholder.

Offence

(6) A person commits an offence if:

(a) the person is subject to an environmental prohibition notice; and

(b) the person omits to do an act; and

Penalty: 600 penalty units.

Continuing offences

(7) A person who commits an offence against subclause (6) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the offence continues.

(8) The maximum penalty for each day that an offence under subclause (6) continues is 10% of the maximum penalty that can be imposed in respect of that offence.

Definition

(9) In this clause:

"premises" , in relation to offshore premises, includes:

(a) a particular part of the premises; and

(b) particular plant or equipment, or a particular substance or thing, at the premises.

11B Environmental inspections--environmental prohibition notices (notification)

Scope

(1) This clause applies if a NOPSEMA inspector issues an environmental prohibition notice to a titleholder under clause 11A that concerns a threat to the environment in relation to:

(a) an activity at offshore premises; or

(b) the operation or use of offshore premises.

Notice to interested persons

(2) As soon as practicable after issuing the notice, the NOPSEMA inspector must take reasonable steps to give a copy of the notice to the following persons:

(a) if the premises are a facility--the operator's representative at the facility;

(b) if the premises are a vessel under the command or charge of a master--the master;

(c) if the premises are (or the relevant plant, equipment, substance or thing is) owned by a person other than the titleholder or operator--that owner.

Display of notice

(3) The titleholder must cause a copy of the notice to be displayed in a prominent place at the premises.

Inadequate action in response to notice

(4) If a NOPSEMA inspector is satisfied that action taken by the titleholder to remove the threat to the environment is not adequate, the inspector must inform the titleholder accordingly.

(5) In making a decision under subclause (4), a NOPSEMA inspector may exercise such of the powers of a NOPSEMA inspector conducting an environmental inspection as the inspector considers necessary for the purposes of making the decision.

When notice ceases to have effect

(6) The notice ceases to have effect in relation to a titleholder when a NOPSEMA inspector notifies the titleholder that the inspector is satisfied that the titleholder, or another person, has taken adequate action to remove the threat to the environment.

Modified operation of this clause in relation to an oil pollution environmental inspection

(6A) If there is a declared oil pollution emergency, this clause has effect, in relation to an oil pollution environmental inspection, as if:

(a) a reference in this clause to offshore premises included a reference to emergency response premises; and

(b) a reference in this clause to a threat to the environment were, by express provision, confined to a threat that is attributable to one or more petroleum activities of a petroleum titleholder.

Definition

(7) In this clause:

"premises" , in relation to offshore premises, includes:

(a) a particular part of the premises; and

(b) particular plant or equipment, or a particular substance or thing, at the premises.

11C Environmental inspections--environmental improvement notices (issue)

Scope

(1) This clause applies if a NOPSEMA inspector is conducting an environmental inspection in relation to offshore premises.

When notice may be issued

(2) A NOPSEMA inspector may issue a notice (an environmental improvement notice ) to a titleholder, in writing, under this clause if, in conducting the inspection, the inspector is satisfied on reasonable grounds that:

(a) the titleholder:

(i) is contravening a provision of an environmental management law; or

(ii) has contravened a provision of an environmental management law and is likely to contravene that provision again; and

(b) as a result, there is, or may be, a significant threat to the environment.

Note: The notice will be published on NOPSEMA's website (see clause 12A).

How notice may be issued

Contents of notice

(4) The notice must:

(a) state that the inspector is satisfied on reasonable grounds that a specified contravention of an environmental management law is occurring, or has occurred and is likely to occur again, and set out those grounds; and

(b) state that the inspector is satisfied on reasonable grounds that as a result of that contravention, there is, or may be, a significant threat to the environment, and set out those grounds; and

(d) specify action that the inspector is satisfied on reasonable grounds is required to be taken by the titleholder to remove the threat; and

(e) specify a period within which the titleholder is to take the action.

Period of notice and action to be taken

(5) The period specified in the notice must be reasonable.

(6) If the NOPSEMA inspector is satisfied on reasonable grounds that it is appropriate to do so, the NOPSEMA inspector may, in writing and before the end of the period, extend the period specified in the notice.

Modified operation of this clause in relation to an oil pollution environmental inspection

(7) If there is a declared oil pollution emergency, this clause has effect, in relation to an oil pollution environmental inspection, as if:

(a) a reference in this clause to offshore premises included a reference to emergency response premises; and

(b) a reference in this clause to an environmental management law included a reference to:

(i) the oil pollution emergency provisions of a declared environment plan; and

(ii) a significant incident direction; and

(c) a reference in this clause to a threat to the environment were, by express provision, confined to a threat that is attributable to one or more petroleum activities of a petroleum titleholder.

11D Environmental inspections--environmental improvement notices (compliance and notification)

Scope

(1) This clause applies if, in the course of an environmental inspection in relation to offshore premises, a NOPSEMA inspector issues an environmental improvement notice to a titleholder under clause 11C that concerns a contravention, or likely contravention, of an environmental management law.

Duty of titleholder

(2) The titleholder must ensure that the notice is complied with.

Offence

(3) A person commits an offence if:

(a) the person is subject to a requirement under subclause (2); and

(b) the person omits to do an act; and

Penalty: 300 penalty units.

Civil penalty

(4) A person is liable to a civil penalty if the person contravenes a requirement under subclause (2).

Civil penalty: 400 penalty units.

Notice to interested persons

(5) As soon as practicable after issuing the notice, the NOPSEMA inspector must take reasonable steps to give a copy of the notice to the following persons:

(a) if the premises are a facility--the operator's representative at the facility;

(b) if the premises are a vessel under the command or charge of a master--the master;

Display of notice

(6) The titleholder must cause a copy of the notice to be displayed in a prominent place at the premises. This rule does not apply in relation to an oil pollution environmental inspection.

Continuing offences and continuing contraventions of civil penalty provisions

(7) The maximum penalty for each day that an offence under subclause (3) continues is 10% of the maximum penalty that can be imposed in respect of that offence.

Note: Subclause (3) is a continuing offence under section 4K of the Crimes Act 1914 .

(8) The maximum civil penalty for each day that a contravention of subclause (4) continues is 10% of the maximum civil penalty that can be imposed in respect of that contravention.

Note: Subclause (4) is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.

Modified operation of this clause in relation to an oil pollution environmental inspection

(9) If there is a declared oil pollution emergency, this clause has effect, in relation to an oil pollution environmental inspection, as if:

(a) a reference in this clause to offshore premises included a reference to emergency response premises; and

(b) a reference in this clause to an environmental management law included a reference to:

(i) the oil pollution emergency provisions of a declared environment plan; and

(ii) a significant incident direction.

12 Environmental inspections--tampering with and removing notices

Tampering with notice

(1) A person must not tamper with any notice that has been displayed under subclause 8(16), 9(3) or (3A), 11(2), 11B(3) or 11D(6) while that notice is so displayed.

Removal of notice

(1A) If a notice has been displayed under subclause 8(16), a person must not remove the notice until the thing to which the notice relates is returned under subclause 8(19).

(2) If a notice has been displayed under subclause 9(3), a person must not remove the notice until the plant, substance or thing to which the notice relates is returned to the premises from which it was removed.

(2A) If a notice has been displayed under subclause 9(3A), a person must not remove the notice until the plant, substance or thing to which the notice relates is returned to a representative of the occupier of the premises from which it was removed.

(3) If a notice has been displayed under subclause 11(2), 11B(3) or 11D(6) a person must not remove the notice before the notice has ceased to have effect.

Offence

(4) A person commits an offence if:

(a) the person is subject to a requirement under subclause (1), (1A), (2), (2A) or (3); and

(b) the person engages in conduct; and

Penalty: 50 penalty units.

(5) Subclause (4) does not apply if the person has a reasonable excuse.

Note 1: A defendant bears an evidential burden in relation to the matter in subclause (5)--see subsection 13.3(3) of the Criminal Code .

Note 2: See also Part 2.3 of the Criminal Code (circumstances in which there is no criminal responsibility).

(6) An offence against subclause (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code .

12A Environmental inspections--publishing environmental prohibition notices and environmental improvement notices

(1) NOPSEMA must publish on its website an environmental prohibition notice or an environmental improvement notice within 21 days after the notice is issued.

(2) However, NOPSEMA must not publish the notice if it is aware that the decision to issue a notice is the subject of an application for review by a court.

(3) If the notice is published on the NOPSEMA website and the decision to issue the notice is, or becomes, the subject of an application for review by a court, NOPSEMA must remove the notice from the website as soon as practicable after becoming aware of the application.

(4) If all rights for judicial review (including any right of appeal) in relation to the decision to issue the notice have been exhausted, and the decision to issue the notice has been upheld, NOPSEMA must publish the notice on its website within 21 days after becoming aware that the rights have been exhausted.

(5) If a notice contains personal information (within the meaning of the Privacy Act 1988 ), NOPSEMA must take such steps as are reasonable in the circumstances to ensure that the information is de - identified before the notice is published.

(6) Personal information is de - identified if the information is no longer about an identifiable individual or an individual who is reasonably identifiable.

Division 3 -- Reports: inspections concerning environmental management laws

13 Reports on inspections concerning environmental management laws

Scope

(1) This section applies if a NOPSEMA inspector has conducted either of the following inspections in relation to an environmental management law:

(a) an environmental inspection (under this Part);

(b) an inspection for the purposes of Division 1 of Part 6.5 of this Act.

Report to be given to NOPSEMA

(2) If a NOPSEMA inspector has conducted an environmental inspection in relation to a petroleum title or a greenhouse gas title, the inspector must, as soon as practicable, prepare a written report relating to the inspection and give the report to NOPSEMA.

(3) The report must include:

(a) the NOPSEMA inspector's conclusions from conducting the inspection and the reasons for those conclusions; and

(b) any recommendations that the NOPSEMA inspector wishes to make arising from the inspection; and

Copies of report to be given to titleholder

(4) As soon as practicable after receiving the report, NOPSEMA must give a copy of the report, together with any written comments that it wishes to make, to the titleholder.

Details of remedial action etc.

(5) NOPSEMA may, in writing, request the titleholder to provide to NOPSEMA, within a reasonable period specified in the request, details of any action proposed to be taken as a result of the conclusions or recommendations contained in the report.

(6) The titleholder must comply with a request under subclause (5).

Part 3 -- General

14 Meaning of offence against an environmental management law

"In this Schedule:"

"offence against an environmental management law" includes an offence against section 6 of the Crimes Act 1914 that relates to an offence against an environmental management law.

Note: For other ancillary offences, see section 11.6 of the Criminal Code .

15 Offences against environmental management laws--prosecutions

Proceedings for an offence against an environmental management law may be instituted by NOPSEMA or by a NOPSEMA inspector.

16 Offences against environmental management laws--conduct of directors, employees and agents

Scope

(1) This clause has effect for the purposes of a proceeding for an offence against an environmental management law.

State of mind of a body corporate

(2) If it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of actual or apparent authority; and

(b) that the director, employee or agent had the state of mind.

Conduct of a body corporate

(3) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of actual or apparent authority is taken to have been engaged in also by the body corporate unless it establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.

State of mind of an individual

(4) If it is necessary to establish the state of mind of an individual in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by an employee or agent of the individual within the scope of actual or apparent authority; and

(b) that the employee or agent had the state of mind.

Conduct of an individual

(5) Any conduct engaged in on behalf of an individual by an employee or agent of the individual within the scope of actual or apparent authority is taken to have been engaged in also by the individual unless the individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

Limitation on imprisonment

(6) If:

(a) an individual is convicted of an offence; and

(b) he or she would not have been convicted of the offence if subclauses (4) and (5) had not been enacted;

he or she is not liable to be punished by imprisonment for that offence.

Extended meaning of state of mind

(7) A reference in subclause (2) or (4) to the state of mind of a person includes a reference to:

(a) the person's knowledge, intention, opinion, belief or purpose; and

(b) the person's reasons for the intention, opinion, belief or purpose.

Disapplication of Part 2.5 of the Criminal Code

(8) Part 2.5 of the Criminal Code does not apply to an offence against an environmental management law.

17 Environmental inspections--civil proceedings

(1) This Schedule does not:

(a) confer a right of action in any civil proceeding in respect of any contravention of a provision of an environmental management law; or

(b) confer a defence to an action in any civil proceeding or otherwise affect a right of action in any civil proceeding.

(2) However, subclause (1) does not apply in relation to the enforcement, for the purposes of Division 4 of Part 6.5 of this Act, of an environmental management law that is a civil penalty provision.

18 Offences against environmental management laws--defence of circumstances preventing compliance

It is a defence to a prosecution for refusing or failing to do anything required by an environmental management law if the defendant proves that it was not practicable to do that thing because of an emergency prevailing at the relevant time.

Note: A defendant bears a legal burden in relation to the matter in this clause--see section 13.4 of the Criminal Code .

19 Constitutional basis of this Schedule

This Schedule relies on the Commonwealth's legislative powers under paragraphs 51(xxix) (external affairs) and (xxxix) (incidental matters) of the Constitution.

20 Additional operation of this Schedule

(1) In addition to clause 19, this Schedule also has effect as provided by this clause.

Corporations

(2) This Schedule also has the effect it would have if a reference to an environmental inspection were expressly confined to:

(a) in the case of an environmental inspection under subclause 3(2)--an inspection:

(i) to determine whether an environmental management law has been, or is being, complied with by a constitutional corporation; or

(ii) to determine whether information given by a constitutional corporation in compliance, or purported compliance, with an environmental management law is correct; and

(b) in the case of an environmental inspection under subclause 3(2A)--an inspection to determine either or both of the following:

(i) whether the oil pollution emergency provisions of a declared environment plan have been, or are being, complied with by a constitutional corporation;

(ii) whether a significant incident direction has been, or is being, complied with by a constitutional corporation.

Territories

(3) This Schedule also has the effect it would have if a reference to an environmental inspection were expressly confined to an environmental inspection within the limits of a Territory.

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