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Offshore Petroleum and Greenhouse Gas Storage Amendment (Regulations References) Bill 2018

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2016-2017-2018

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE

AMENDMENT (REGULATIONS REFERENCES) BILL 2018

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the Minister for Resources and Northern Australia,

Senator the Honourable Matthew Canavan)



OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE

AMENDMENT (REGULATIONS REFERENCES) BILL 2018

 

OUTLINE

The purpose of the Offshore Petroleum and Greenhouse Gas Storage Amendment (Regulations References) Bill 2018 (the Bill) is to amend the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act) to future-proof references to regulations made under the OPGGS Act in provisions of that Act. The amendments will avoid the need to amend the OPGGS Act any time regulations under the OPGGS Act sunset and are remade.

 

The OPGGS Act currently contains specific references to the titles of sets of regulations under the OPGGS Act. However, when those regulations sunset and are remade with a new title, there is a risk that the references will become ineffective. Also, provisions in the regulations that are integral to the meaning and application of defined terms and requirements in the OPGGS Act will potentially be renumbered in remade regulations, even if their content remains comparable.

 

Effective references to regulations are critical to the operation of a number of provisions of the OPGGS Act, including provisions which set out parts of the OPGGS Act and regulations that are subject to monitoring and investigation under the Regulatory Powers (Standard Provisions) Act 2014 , and polluter pays and financial assurance obligations.

 

The Bill will amend the OPGGS Act to remove the references to specific titles of regulations, and instead enable references to the titles of regulations, or reference to provisions of regulations, to be prescribed by regulations under the OPGGS Act.

 

FINANCIAL IMPACT STATEMENT

 

The Bill is expected to have nil financial impact.



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Offshore Petroleum and Greenhouse Gas Storage Amendment (Regulations References) Bill 2018 (the Bill)

 

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The purpose of the Offshore Petroleum and Greenhouse Gas Storage Amendment (Regulations References) Bill 2018 is to amend the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act) to future-proof references to regulations made under the OPGGS Act in provisions of that Act. The amendments will avoid the need to amend the OPGGS Act any time regulations under the OPGGS Act sunset and are remade.

 

The Bill will amend the OPGGS Act to remove the references to specific titles of regulations, and instead enable references to the titles of regulations, or reference to provisions of regulations, to be prescribed by regulations under the OPGGS Act.

 

Human Rights implications

The Bill makes technical amendments only and does not engage any of the applicable rights or freedoms.

 

Conclusion

The Bill is compatible with human rights as it does not raise any human rights issues.

 

 

 

Minister for Resources and Northern Australia

Senator the Honourable Matthew Canavan


OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE AMENDMENT (REGULATIONS REFERENCES) BILL 2018

 

NOTES ON CLAUSES

 

Clause 1—Short title

 

1.              This is a formal provision specifying the short title of the Act.

 

Clause 2—Commencement

 

2.              The table in this clause sets out the commencement dates for when the provisions of the Bill will commence.

 

3.              The Bill will not commence unless the Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Amendments) Act 2018 (the Miscellaneous Amendments Act) receives the Royal Assent. The Miscellaneous Amendments Act includes amendments to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act) that omit or insert references to specific titles of regulations made under the OPGGS Act. The references to be inserted will be amended by the provisions of this Bill.

 

4.              If the Miscellaneous Amendments Act receives the Royal Assent, the Bill will commence by Proclamation. This will enable time to make amendments to regulations under the OPGGS Act to prescribe references to regulations before the Bill commences.    

 

5.              If Proclamation does not occur within 6 months of Royal Assent, the Bill will automatically commence immediately after the later of the day after the 6 month period expires, or the commencement of Schedule 15 to the Miscellaneous Amendments Act. Schedule 15 to the Miscellaneous Amendments Act is the latest to commence of the Schedules to the Miscellaneous Amendments Act that will insert references to specific titles of regulations in the OPGGS Act, and must therefore commence before the amendments in this Bill commence.

 

Clause 3—Schedules

 

6.              This clause gives effect to the provisions in the Schedule to the Bill.

 

Schedule 1—Amendments

 

Offshore Petroleum and Greenhouse Gas Storage Act 2006

 

Items 1, 2 and 3: Paragraph 316(2)(b); Paragraph 351(2)(b); Paragraph 376(3)(b)

 

7.              Paragraphs 316(2)(b), 351(2)(b) and 376(3)(b) of the OPGGS Act provide that a direction under section 316, 351 or 376 respectively has effect and must be complied with despite anything in the regulations, other than the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (the Environment Regulations), Part 5 of the Offshore Petroleum and Greenhouse Gas Storage (Resource Management and Administration) Regulations 2011 (the Resource Management Regulations) and the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2009 (the Safety Regulations).

 

8.              These items omit the references to the specific titles of the regulations under the OPGGS Act, and instead provide for the names of the relevant regulations, or provisions of regulations, to be prescribed by regulation.

 

Item 4: Subsection 571(3) (note)

 

9.              This item repeals the note to subsection 571(3). The note included a specific reference to the Environment Regulations, and is not required for effective operation of the OPGGS Act.

 

Items 5 and 6: Subsection 571(5) (definition of environment plan ); Subsection 571(5) (definition of petroleum activity )

 

10.          Subsection 571(5) defines environment plan and petroleum activity for the purpose of section 571 (financial assurance requirements for petroleum titleholders). The definitions include specific references to the Environment Regulations.

 

11.          These items repeal the definitions and replace them with new definitions that provide for environment plan and petroleum activity to have the meaning given by prescribed regulations, or a prescribed provision of regulations, made under the OPGGS Act.

 

Item 7 and 8: Subsection 572C(3) (definition of environment plan ); Subsection 572C(3) (definition of petroleum activity )

 

12.          Subsection 572C(3) defines environment plan and petroleum activity for the purpose of section 572C (polluter pays obligations of petroleum titleholders). The definitions include specific references to the Environment Regulations.   

 

13.          These items repeal the definitions and replace them with new definitions that provide for environment plan and petroleum activity to have the meaning given by prescribed regulations, or a prescribed provision of regulations, made under the OPGGS Act.

 

Items 9 and 10: Paragraph 574A(6)(b); Paragraph 580(5)(b)

 

14.          Paragraphs 574A(6)(b) and 580(5)(b) of the OPGGS Act provide that a direction under section 574A or 580 respectively has effect and must be complied with despite anything in the regulations, other than the Environment Regulations, Part 5 of the Resource Management Regulations and the Safety Regulations.

 

15.          These items omit the references to the specific titles of the regulations under the OPGGS Act, and instead provide for the names of the relevant regulations, or provisions of regulations, to be prescribed by regulation.

 

Items 11 to 15: Subsection 601(1)

 

16.          The table in subsection 601(1) sets out the listed NOPSEMA laws . The OPGGS Act provides for the listed NOPSEMA laws to be subject to monitoring and investigation under the Regulatory Powers (Standard Provisions) Act 2014 .

 

17.          The listed NOPSEMA laws include the Safety Regulations (table item 15), the Environment Regulations (table item 16), the Offshore Petroleum and Greenhouse Gas Storage (Greenhouse Gas Injection and Storage) Regulations 2011 (table item 16A) and provisions of the Resource Management Regulations (table items 17 and 18).

 

18.          These items omit the references to the specific titles of the regulations under the OPGGS Act, and instead provide for the names of the relevant regulations, or provisions of regulations, to be prescribed by regulation.

 

Item 16: Subsection 602K(8) (subparagraph (c)(ii) of the definition of titleholder’s obligations )

 

19.          The definition of titleholder’s obligations includes a specific reference to Part 5 of the Resource Management Regulations. This item omits the reference to the specific Part and title, and instead provides for the name of the regulations, or provision of the regulations, to be prescribed by regulation.

 

Items 17 and 18: Paragraphs 638(1)(d), (e) and (h); Subsection 638(2)

 

20.          Section 638 sets out the listed OHS laws for the purposes of the OPGGS Act. Among other things, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) has powers to conduct warrant-free inspections in relation to compliance with listed OHS laws.

 

21.          The listed OHS laws include the Safety Regulations (paragraph 638(1)(d)), Part 5 of the Resource Management Regulations to the extent to which that Part relates to occupational health and safety matters (paragraph 638(1)(e)), and any other regulations relating to occupational health and safety matters that are prescribed for the purposes of paragraph 638(1)(h).

 

22.          Item 17 omits the references to the specific titles and Part of the regulations under the OPGGS Act, and instead provides for the names of the relevant regulations, or provisions of regulations, to be prescribed by regulation. Paragraph 638(1)(h) is repealed as it is no longer required.

 

23.          Item 18 repeals subsection 638(2). The subsection is no longer required given the amendments made by item 17.

 

Item 19: Paragraphs 646A(1)(e), (f) and (g)

 

24.          Subsection 646A(1) sets out limits on petroleum functions that may be conferred on NOPSEMA under State or Territory legislation. The limits include that there must be regulations under the State or Territory legislation that substantially correspond to the Commonwealth Safety Regulations and Part 5 of the Resource Management Regulations, and, if environmental management regulatory functions are being conferred, the Environment Regulations, as in force at the commencement of section 646A or at any later time.

 

25.          This item inserts new subparagraphs under paragraphs 646A(1)(e), (f) and (g) that also provide for the names of the relevant Commonwealth regulations, or provisions of Commonwealth regulations, to instead be prescribed by regulation.

 

26.          The item retains references to the Safety Regulations, Part 5 of the Resource Management Regulations, and the Environment Regulations, as those regulations were in force on 1 January 2012 or at any later time. These references are necessary to maintain the validity of current conferrals of functions made on the basis that regulations under State or Territory legislation substantially correspond to those regulations as in force at any time between 1 January 2012 and the time that they sunset/are repealed, but do not correspond to the remade regulations that replace the sunsetting regulations.

 

Item 20: Paragraph 646A(5)(f), (g) and (h)

 

27.          Subsection 646A(5) sets out limits on greenhouse gas functions that may be conferred on NOPSEMA under State or Territory legislation. The limits include that there must be regulations under the State or Territory legislation that substantially correspond to the Commonwealth Safety Regulations and Part 5 of the Resource Management Regulations, and, if environmental management regulatory functions are being conferred, the Environment Regulations, as in force at the commencement of subsection 646A(5) or at any later time.

 

28.          These items omit the references to the specific titles and Part of the regulations under the OPGGS Act, and instead provide for the names of the relevant regulations, or provisions of regulations, to be prescribed by regulation.

 



 

Items 21 and 22: Clause 2 of Schedule 2B (paragraphs (a) and (c) of the definition of well integrity law )

 

29.          Paragraphs (a) and (c) of the definition of well integrity law include specific reference to Part 5 of the Resource Management Regulations. This item omits the reference to the specific Part and title, and instead provides for the name of the regulations, or provision of the regulations, to be prescribed by regulation.  

 

Items 23 to 25: Clause 3 of Schedule 3 (subparagraphs (c)(iii), (d)(ii) and (e)(ii) of the definition of regulated business premises )

 

30.          Subparagraphs (c)(iii), (d)(ii) and (e)(ii) of the definition of regulated business premises include specific reference to the Safety Regulations. This item omits the reference to the specific title of the regulations, and instead provides for the name of the regulations, or a provision of regulations, to be prescribed by regulation.  

 

Item 26: Clause 3 of Schedule 3 (paragraph (b) of the definition of titleholder’s well-related obligations )

 

31.          The definition of titleholder’s well-related obligations includes a specific reference to Part 5 of the Resource Management Regulations. This item omits the reference to the specific Part and title, and instead provides for the name of the regulations, or provision of the regulations, to be prescribed by regulation. 

 

32.          This item also removes the limitation in the definition that refers to obligations in well-related regulations to the extent that those regulations apply in relation to petroleum titles. This limitation was necessary when NOPSEMA was the regulator of petroleum wells and the responsible Commonwealth Minister was the regulator of greenhouse gas wells.

 

33.          Amendments to the OPGGS Act made by the Miscellaneous Amendments Act have made NOPSEMA the regulator of greenhouse gas wells, in addition to its existing regulatory functions in relation to petroleum wells. The Miscellaneous Amendments Act should have included a consequential amendment to paragraph (b) of the definition of titleholder’s well-related obligations in clause 3 of Schedule 3 to ensure that the limitation to petroleum titles was removed; however the amendment was accidentally omitted. The amendment is therefore included in this Bill instead.    

 

Item 27: Saving provisions

 

34.          This item provides saving provisions in relation to the amendments of sections 601, 602K and 638, and clauses 2 of Schedule 2B and 3 of Schedule 3. 

 

35.          The saving provisions ensure that the inspection provisions in Part 6.5, Schedule 2B and Schedule 3 to the OPGGS Act continue to apply in relation to conduct that occurred prior to commencement of the Bill, by continuing the amended provisions in force, as they were in force immediately prior to commencement of the Bill.  

 

36.          The savings provisions do not create new retrospective obligations. They ensure that NOPSEMA continues to be able, after commencement of the Bill, to inspect for compliance with obligations as they were in force prior to commencement of the Bill.