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Schedule 15—Additional NOPSEMA inspection powers relating to well integrity laws

Schedule 15 Additional NOPSEMA inspection powers relating to well integrity laws

Part 1 Amendments

Offshore Petroleum and Greenhouse Gas Storage Act 2006

1  Section 7

Insert:

well integrity law has the same meaning as in Schedule 2B.

2  Subsection 601(1) (after table item 13)

Insert:

13A

Schedule 2B

Well integrity laws: additional NOPSEMA inspection powers

 

3  Subsection 602C(10) (after note 1)

Insert:

Note 1A:    Under Schedule 2B to this Act, NOPSEMA inspectors may exercise additional powers, and perform additional functions, for the purpose of monitoring well integrity laws.

4  After paragraph 602E(2)(a)

Insert:

                    (aa)  if the inspector’s entry is in connection with a listed NOPSEMA law that is a well integrity law—the power in relation to the premises that the inspector would have, if the inspector had entered the premises for the purposes of a well integrity inspection under Schedule 2B, to issue any of the following:

                              (i)  a well integrity do not disturb notice under clause 10 of Schedule 2B;

                             (ii)  a well integrity prohibition notice under clause 12 of Schedule 2B;

                            (iii)  a well integrity improvement notice under clause 14 of Schedule 2B;

5  Subsection 602E(3) (heading)

Repeal the heading, substitute:

Application of Schedule 2A, Schedule 2B and Schedule 3

6  After subsection 602E(3)

Insert:

          (3A)  Schedule 2B applies in relation to the exercise (as provided by this section) of a power covered by paragraph (2)(aa) as if the inspector were conducting a well integrity inspection under that Schedule.

7  After section 602J

Insert:

602JA   Well integrity laws—additional powers

                   NOPSEMA and NOPSEMA inspectors have the powers and functions given by Schedule 2B in relation to well integrity laws.

8  Subsection 602K(8) (after paragraph (b) of the definition of inspection )

Insert:

                   (ba)  a well integrity inspection under Schedule 2B; or

9  Subsection 602K(8) (after paragraph (b) of the definition of titleholder’s obligations )

Insert:

                   (ba)  for a well integrity inspection under Schedule 2B—a well integrity law; or

10  Section 602L (after paragraph (a) of the note)

Insert:

(aa)  under section 602JA and Schedule 2B, in relation to provisions of this Act that are well integrity laws; and

11  Subsection 611B(2) (table item 2, column headed “is an authorised applicant in relation to the following civil penalty provisions in this Act (to the extent indicated) …”, before paragraph (k))

Insert:

(jc) subclause 6(2) of Schedule 2B;

(jd) subclause 15(4) of Schedule 2B;

12  Subsection 611J(2) (table item 3, column headed “is an authorised person in relation to the following provisions in this Act (to the extent indicated) ...”, after paragraph (v))

Insert:

(va) subclauses 6(1) and (2) of Schedule 2B;

(vb) subclause 7(3) of Schedule 2B;

(vc) subclause 8(5) of Schedule 2B;

(vd) subclause 10(7) of Schedule 2B;

(ve) subclause 12(6) of Schedule 2B;

(vf) subclause 15(2) of Schedule 2B;

(vg) subclauses 16(1), (2), (3), (4) and (5) of Schedule 2B;

13  After Schedule 2A

Insert:

Schedule 2B Well integrity laws: additional NOPSEMA inspection powers

Note:       See section 602JA.

Part 1 Introduction

   

1   Simplified outline of this Schedule

•      This Schedule covers those provisions of this Act (called well integrity laws) that concern the integrity of wells.

•      NOPSEMA inspectors may conduct an inspection (called a well integrity inspection) to monitor compliance with well integrity 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 a well integrity inspection are in addition to the powers in relation to well integrity laws that the inspector may exercise for the purposes of Division 1 of Part 6.5 of this Act.

2   Definitions

                   In this Schedule:

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

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;

                     (c)  a part of a thing referred to in paragraph (a) or (b).

enter , when used in relation to a facility that is a vessel, includes board.

facility has the same meaning as in Schedule 3.

integrity , in relation to a well, means the capacity of the well to contain petroleum, a greenhouse gas substance, or any other substance.

offence against a well integrity law : see clause 14.

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.

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

                     (c)  eligible premises that are:

                              (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.

this Act includes a legislative instrument under this Act.

title means:

                     (a)  a petroleum exploration permit; or

                     (b)  a petroleum retention lease; or

                     (c)  a petroleum production licence; or

                     (d)  a greenhouse gas assessment permit; or

                     (e)  a greenhouse gas holding lease; or

                      (f)  a greenhouse gas injection licence.

titleholder means the registered holder of a title.

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

well includes the well-related equipment associated with a well.

well activity means an activity relating to a well that is carried out during the life of the well.

well integrity do not disturb notice has the meaning given by subclause 10(2).

well integrity improvement notice has the meaning given by subclause 14(2).

well integrity inspection : see clause 3.

well integrity law means:

                     (a)  Part 5 of the Offshore Petroleum and Greenhouse Gas Storage (Resource Management and Administration) Regulations 2011 ; or

                     (b)  the provisions of this Act, to the extent to which the provisions:

                              (i)  relate to the integrity of wells; and

                             (ii)  are not covered by paragraph (a);

and includes:

                     (c)  a requirement made under Part 5 of the Offshore Petroleum and Greenhouse Gas Storage (Resource Management and Administration) Regulations 2011 ; and

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

well integrity prohibition notice has the meaning given by subclause 12(2).

Part 2 Well integrity inspections

Division 1 Well integrity inspections: general provisions

3   Well integrity inspections—nature of inspections

What is a well integrity inspection ?

             (1)  A well integrity 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 facility, premises or thing.

Inspections—general power

             (2)  A NOPSEMA inspector may, at any time, conduct a well integrity inspection:

                     (a)  to determine whether a well integrity law has been, or is being, complied with; or

                     (b)  to determine whether information given in compliance, or purported compliance, with a well integrity law is correct.

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

Inspections—directed by NOPSEMA

             (3)  NOPSEMA may give a written direction to a NOPSEMA inspector to conduct a well integrity inspection.

             (4)  The NOPSEMA inspector must conduct a well integrity inspection as directed under subclause (3).

4   Well integrity inspections—facility

Power to enter and search

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

                     (a)  enter a facility 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 facility;

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

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

                            (iv)  inspect, take extracts from, or make copies of, any documents at the facility 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 facility to which the inspection relates.

Notification of entry

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

                     (a)  the operator’s representative at the facility; and

                     (b)  whichever of the following is applicable:

                              (i)  the titleholder’s representative at the facility who is nominated for the inspection;

                             (ii)  if there is no titleholder’s representative at the facility—the person at the facility who appears to be in overall control of the activities to which the inspection relates.

             (3)  The inspector must, on being requested to do so by a person 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

                     (c)  a copy of any directions given by the CEO under section 602A in relation to the exercise of the inspector’s powers.

5   Well integrity inspections—regulated business premises

Power to enter and search

             (1)  A NOPSEMA inspector may, for the purposes of a well integrity 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 title; or

                             (ii)  compliance or non-compliance with a well integrity law; and

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

                     (c)  inspect, take extracts from, or make copies of, any such documents 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

                     (c)  a copy of any directions issued by NOPSEMA under section 602A in relation to the exercise of the inspector’s powers.

6   Well integrity 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)—see section 96 of the Regulatory Powers Act.

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 Well integrity inspections: compliance powers

7   Well integrity 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 a well integrity inspection at or near a facility that relates to a title, require:

                     (a)  the titleholder; or

                     (b)  the titleholder’s representative at the facility who is nominated for the inspection;

to provide the inspector with reasonable assistance and facilities:

                     (c)  that is or are reasonably connected with the conduct of the inspection at or near the facility; or

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

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

                     (a)  appropriate transport to or from the facility 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 facility.

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

                     (c)  the omission breaches the requirement.

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   Well integrity 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 a well integrity inspection in relation to a title; and

                     (b)  the person is:

                              (i)  the titleholder; or

                             (ii)  in the case of an inspection at a facility—the titleholder’s representative at the facility who is nominated for the inspection, or any person engaged in a well activity at the facility; 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 a facility 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

                     (c)  is accompanied by a statement to the effect that a failure to comply with the requirement is an offence.

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 a well integrity inspection in relation to a title; and

                     (b)  the person is:

                              (i)  the titleholder; or

                             (ii)  in the case of an inspection at a facility—the titleholder’s representative at the facility who is nominated for the inspection, or any person engaged in a well activity at the facility; 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 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 a facility 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

                     (c)  is accompanied by a statement to the effect that a failure to comply with the requirement is an offence.

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

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

                     (c)  the omission breaches the requirement.

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

                     (c)  the information is given in compliance or purported compliance with a requirement under this clause.

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 a facility

           (15)  On taking possession of a thing under subclause (14) at a facility, 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 facility who is nominated for the inspection; or

                             (ii)  if there is no titleholder’s representative at the facility—the titleholder;

                     (b)  the operator’s representative at the facility;

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

Display of notice at facility

           (16)  The operator’s representative at the facility must cause the notice to be displayed in a prominent place at the facility.

Notice—taking possession at regulated business premises

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

                     (a)  the person who produced the thing;

                     (b)  if that person is not the owner of the thing—the owner of the thing.

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:

                     (c)  the person who produced the thing; and

                     (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:

                     (c)  the person who produced the thing; or

                     (d)  the person who owns the thing; or

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

9   Well integrity inspections—power to take possession of plant and samples etc.

Power to take possession or samples

             (1)  In conducting a well integrity inspection in relation to a 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 a facility, or regulated business premises, in connection with the inspection:

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

                     (b)  take a sample of the substance or thing and remove that sample from the facility or 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)  in the case of a facility:

                              (i)  the titleholder’s representative at the facility who is nominated for the inspection; or

                             (ii)  if there is no titleholder’s representative at the facility—the titleholder;

                     (b)  in the case of a facility—the operator’s representative at the facility;

                     (c)  in the case of regulated business premises that are occupied by the titleholder—a person who represents the titleholder;

                     (d)  in the case of regulated business premises that are occupied by a related body corporate of the titleholder—a person who represents the related body corporate;

                     (e)  in the case of 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;

                      (f)  in the case of 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;

                     (g)  if the plant, substance or thing is owned by a person other than a person mentioned in paragraph (a), (b), (c), (d), (e) or (f)—that owner.

Display of notice

             (3)  If the notice relates to a facility, the operator’s representative at the facility must cause the notice to be displayed in a prominent place at the facility.

             (4)  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

             (5)  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 a facility—return it to the facility 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.

             (6)  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).

10   Well integrity inspections—well integrity do not disturb notices (general)

Scope

             (1)  This clause applies if a NOPSEMA inspector is conducting a well integrity inspection in relation to a facility.

When a notice may be issued

             (2)  A NOPSEMA inspector may issue a notice (a well integrity 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 facility; or

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

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 facility 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 facility;

                             (ii)  particular plant, or a particular substance or thing, at the facility; 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.

Offence

             (7)  A person commits an offence if:

                     (a)  the person is subject to a well integrity do not disturb notice; and

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

                     (c)  the omission breaches the notice.

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

11   Well integrity inspections—well integrity do not disturb notices (notification and display)

Notice to interested persons

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

                     (a)  the operator’s representative at the facility;

                     (b)  in a case where the facility, plant, substance or thing is, owned by a person other than the titleholder—that owner.

Display of notice

             (2)  The operator’s representative at the facility must cause a copy of a well integrity do not disturb notice to be displayed in a prominent place at the facility.

12   Well integrity inspections—well integrity prohibition notices (issue)

Scope

             (1)  This clause applies if a NOPSEMA inspector is conducting a well integrity inspection in relation to a facility.

When notice may be issued

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

                     (a)  either or both of the following is the case:

                              (i)  an activity is occurring at the facility that involves an immediate and significant threat to the integrity of a well;

                             (ii)  an activity may occur at the facility that, if it occurred, would involve an immediate and significant threat to the integrity of a well; 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 17).

How notice may be issued

             (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 facility who is nominated for the inspection.

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)  if subparagraph (2)(a)(i) applies—specify the activity mentioned in that subparagraph; and

                     (c)  if subparagraph (2)(a)(ii) applies—specify the activity mentioned in that subparagraph; and

                     (d)  specify the threat to the integrity of a well; and

                     (e)  direct the titleholder to ensure:

                              (i)  that the activity is not conducted; or

                             (ii)  that the activity is not conducted 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 integrity of a well.

Offence

             (6)  A person commits an offence if:

                     (a)  the person is subject to a well integrity prohibition notice; and

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

                     (c)  the omission breaches the notice.

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.

13   Well integrity inspections—well integrity prohibition notices (notification)

Scope

             (1)  This clause applies if a NOPSEMA inspector issues a well integrity prohibition notice to a titleholder under clause 12 that concerns a threat to the integrity of a well and relates to an activity at a facility.

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 operator’s representative at the facility.

Display of notice

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

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 integrity of a well 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 a well integrity 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 integrity of a well.

14   Well integrity inspections—well integrity improvement notices (issue)

Scope

             (1)  This clause applies if a NOPSEMA inspector is conducting a well integrity inspection in relation to a facility.

When notice may be issued

             (2)  A NOPSEMA inspector may issue a notice (a well integrity 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 a well integrity law; or

                             (ii)  has contravened a provision of a well integrity law and is likely to contravene that provision again; and

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

Note:          The notice will be published on NOPSEMA’s website (see clause 17).

How notice may be issued

             (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 facility who is nominated for the inspection.

Contents of notice

             (4)  The notice must:

                     (a)  state that the inspector is satisfied on reasonable grounds that a specified contravention of a well integrity 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 integrity of a well, and set out those grounds; and

                     (c)  specify the threat to the integrity of a well; 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.

15   Well integrity inspections—well integrity improvement notices (compliance and notification)

Scope

             (1)  This clause applies if, in the course of a well integrity inspection in relation to a facility, a NOPSEMA inspector issues a well integrity improvement notice to a titleholder under clause 14 that concerns a contravention, or likely contravention, of a well integrity 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

                     (c)  the omission breaches the requirement.

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)  the operator’s representative at the facility;

                     (b)  if the facility is owned by a person other than the titleholder or operator—that owner.

Display of notice

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

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.

16   Well integrity 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 (4), 11(2), 13(3) or 15(6) while that notice is so displayed.

Removal of notice

             (2)  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).

             (3)  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 facility from which it was removed.

             (4)  If a notice has been displayed under subclause 9(4), 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.

             (5)  If a notice has been displayed under subclause 11(2), 13(3) or 15(6), a person must not remove the notice before the notice has ceased to have effect.

Offence

             (6)  A person commits an offence if:

                     (a)  the person is subject to a requirement under subclause (1), (2), (3), (4) or (5); and

                     (b)  the person engages in conduct; and

                     (c)  the conduct breaches the requirement.

Penalty:  50 penalty units.

             (7)  Subclause (6) 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 (7)—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)  An offence against subclause (6) is an offence of strict liability.

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

17   Well integrity inspections—publishing well integrity prohibition notices and well integrity improvement notices

             (1)  NOPSEMA must:

                     (a)  publish on its website a well integrity prohibition notice or a well integrity improvement notice; and

                     (b)  do so 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:

                     (a)  the notice is published on NOPSEMA’s website; and

                     (b)  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:

                     (a)  all rights for judicial review (including any right of appeal) in relation to the decision to issue the notice have been exhausted; and

                     (b)  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 well integrity laws

18   Reports on inspections concerning well integrity laws

Scope

             (1)  This clause applies if a NOPSEMA inspector has conducted either of the following inspections in relation to a well integrity law:

                     (a)  a well integrity 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 a well integrity inspection in relation to a 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

                     (c)  such other matters (if any) as are prescribed by the regulations.

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

   

19   Meaning of offence against a well integrity law

                   In this Schedule:

offence against a well integrity law includes an offence against section 6 of the Crimes Act 1914 that relates to an offence against a well integrity law.

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

20   Offences against well integrity laws—prosecutions

                   Proceedings for an offence against a well integrity law may be instituted by NOPSEMA or by a NOPSEMA inspector.

21   Offences against well integrity laws—conduct of directors, employees and agents

Scope

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

22   Well integrity 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 a well integrity 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 a well integrity law that is a civil penalty provision.

23   Offences against well integrity laws—defence of circumstances preventing compliance

                   It is a defence to a prosecution for refusing or failing to do anything required by a well integrity 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 .

Part 2 Application provisions

14  Application—well integrity inspections

(1)       Paragraph 3(2)(a) of Schedule 2B to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (as amended by this Act) applies in relation to determining a question that relates to an act or omission that occurred before, or that occurs at or after, the commencement of this item.

(2)       Paragraph 3(2)(b) of Schedule 2B to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (as amended by this Act) applies in relation to determining a question that relates to information that was given before, or is given at or after, the commencement of this item.