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Offshore Petroleum and Greenhouse Gas Storage Amendment (Stopping PEP11) Bill 2021

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2019-2020-2021

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Offshore Petroleum and Greenhouse Gas Storage Amendment (Stopping PEP11) Bill 2021

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

the Member for Warringah, Ms Zali Steggall OAM MP



Offshore Petroleum and Greenhouse Gas Storage Amendment (Stopping PEP11) Bill 2021

OUTLINE

The Offshore Petroleum and Greenhouse Gas Storage Amendment (Stopping PEP11) Bill 2021 (the Bill) proposes changes to the Offshore Petroleum and Greenhouse Gas Storage Act 2007 (Cth) (OPGGS Act) that would cancel Petroleum Exploration Permit 11 (PEP11) and prohibit any further petroleum exploration or exploitation in the PEP11 area. The amendments will ensure that the climate, local economy and biodiversity in the area in and adjacent to PEP11 are protected in the public interest.

The OPGGS Act provides for a regulatory framework for petroleum exploration and recovery; and the injection and storage of greenhouse gas substances in offshore areas. Offshore oil and gas exploration and storage titles are managed by the National Offshore Petroleum Titles Administrator (NOPTA) also called the Titles Administrator. 

The ‘Joint Authority’ is the decision maker under the OPGGS Act. Where decisions are to be made under the Act in relation to the offshore area of a State (in the case of PEP11, New South Wales), the Joint Authority comprises the responsible State minister and the responsible Commonwealth Minister. The responsible Commonwealth Minister is the final decision maker. The Joint Authority’s functions include but are not limited to: the grant/refusal of offshore petroleum titles, variation, suspension and extension of title conditions, and renewal, surrender and cancellation of titles.

Petroleum exploration permits (PEPs) are one class of offshore petroleum title that the Joint Authority is empowered, under the OPPGS Act, to grant. PEP11 is one such title.  PEP11 covers 4,575 square kilometres of the offshore area of New South Wales from Newcastle, through the Central Coast to Manly Beach. This coastline is home to internationally famous beaches and sustains significant local industry and tourism. It is also home to a whale migration path and rich marine and coastal biodiversity.  Asset Energy Pty Ltd and Bounty Oil & Gas NL are the current titleholders of PEP11.

Offshore oil and gas exploration and production through PEP11 could have dire consequences for coastal ecosystems, tourism businesses, communities, and the climate. It is therefore in the public interest that it does not proceed. 

PEP11 expired in February of 2021 but is still in force pending decisions by the Joint Authority in relation to two applications by the current titleholder for suspension of conditions and extension of the PEP. The first application was made for the suspension, extension and variation of the PEP and has been with the Joint Authority for 289 days.

The delay in decisions is causing considerable anxiety and distress in the communities affected by PEP11. These communities have wholly rejected PEP11. Therefore, this Bill will act to ameliorate considerable uncertainty and preclude any current and future development in the PEP11 area. 

This Bill will ensure that:

·          PEP11 ceases to be in force two months after royal assent to this Bill;

·          the Joint Authority cannot consider or continue to consider a PEP11 application, including the two applications for suspension of conditions and extension of the PEP that are currently before the Joint Authority; 

·          the Joint Authority cannot invite applications for the grant of petroleum exploration permit or petroleum exploration license over a PEP11 block; and 

·          the Joint Authority or Titles Administrator cannot grant petroleum retention leases, petroleum exploration permits, petroleum special prospecting authorities, petroleum access authorities, petroleum production licenses, infrastructure licenses, pipeline licenses, and petroleum scientific investigation consents.

 

FINANCIAL IMPACT

The bill will have no financial impact.



NOTES ON CLAUSES

 

Part 1 - Introduction

 

Division 1 - Preliminary

 

Clause 1: Short Title

 

1.     This clause is a formal provision and specifies the short title of the Bill as the Offshore Petroleum and Greenhouse Gas Storage Amendment (Stopping PEP11) Act 2021.

 

Clause 2: Commencement

 

2.     This clause provides for the commencement of the Act on the day it receives Royal Assent.

 

 

Schedule 1 - Amendments

 

Amends the Offshore Petroleum and Greenhouse Gas Storage Act 2007 (Cth)

 

Item 1:

 

This item adds section 286D to the Offshore Petroleum and Greenhouse Gas Storage Act 2007 (Cth).

 

Subsection (1) provides that PEP11 ceases to be in force 2 months after this section commences.

 

Subsections (2), (3) and (4) prevent the Joint Authority from inviting, considering or continuing to consider a PEP11 application that had not been determined as at the date of commencement of the provision.

 

These sections are designed to ensure that if, as at the date of commencement of the provision, the Joint Authority has not decided the titleholders’ two extant applications for suspension of conditions and extension of PEP11, then it is under no obligation to continue considering those applications. These provisions are designed to work with subsections (5)(b) and (6), which would prevent the Joint Authority from granting the aforementioned applications for suspension and extension, as well as any other applications for suspension and extension relating to PEP11.

 

Subsection (5)(a) prohibits the Joint Authority and Titles Administrator from granting any of the permits, consents, authorities, leases and licences provided for by Ch 2 of the OPGGS Act, in any part of the area that has been subject to PEP11 (including when PEP11 was in force by virtue of the now-repealed Petroleum (Submerged Lands) Act 1967 (Cth).

 

Subsection 5(b) prohibits the Joint Authority from renewing, varying or suspending a condition of any offshore petroleum titles (i.e. the permits, consents, authorities, leases and licences provided for by Ch 2 of the Act) in a PEP11 block. If the two current applications for suspension and extension made by the titleholder in relation to PEP11 remain extant as at the date of this provision coming into force, the provision would prevent the Joint Authority from granting those applications.

 

Subsection (6) ensures that the prohibitions in subsection (5) apply notwithstanding that the titleholder may have applied for the grant, renewal, variation or suspension before the provision’s commencement.

 

Subsection (7) defines the terms “earlier PEP11”; “PEP11”, “PEP11 application” and “PEP11 block”. The definitions interact to ensure that the prohibitions effected by subsection (4) apply in any area that has ever been subject to PEP11.

 

 

 

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 (Stopping PEP11) Bill 2021

 

This 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

This Bill will ensure that:

·          PEP11 ceases to be in force two months after the royal assent of this Bill;

·          the Joint Authority cannot consider or continue to consider a PEP11 application, including the two applications for suspension of conditions and extension of the PEP that are currently before the Joint Authority; 

·          the Joint Authority cannot invite applications for the grant of petroleum exploration permit or petroleum exploration license over a PEP11 block; and 

·          the Joint Authority or Titles Administrator cannot grant petroleum retention leases, petroleum exploration permits, petroleum special prospecting authorities, petroleum access authorities, petroleum production licenses, infrastructure licenses, pipeline licenses, and petroleum scientific investigation consents.

 

Human rights implications

 

This bill does not engage any of the applicable rights or freedoms, other than to promote the safety and wellbeing of people by helping to ensure a safe climate.

 

This bill engages the following human rights:

 

●      The right to life as enshrined in Article 6(1) of the International Covenant on Civil and Political Rights ( ICCPR );

●      The right to an adequate standard of living under Article 11(1) of the International Covenant on Economic, Social and Cultural Rights ( ICESCR ) and the Right to Health under Article 12(1) of the ICESCR;

●      The right to self-determination as enshrined in Article 1 in the ICCPR and ICESCR; and

●      A child’s inherent right to life under Article 6(1) of the Convention on the Rights of the Child ( CRC ) along with a child’s right to the highest attainable standard of health under Article 24(1) of the CRC and Article 27(1) of the CRC which preserves the rights of the child to an adequate standard of living which promotes their development.

 

 

Basis for human rights implications

 

For reference for this Bill and its human rights compatibility statement, the most recent Environment Plan associated with a seismic survey done over the PEP11 area published in January 2018 found the following environmental impacts:

 

●      extraction of living resources;

●      physical habitat modification;

●      marine debris;

●      atmospheric emissions; and

●      climate change .

 

The human rights implications of this Bill are inextricably linked to climate change.  These rights, which include the right to life, health, food, water and housing, are limited by the consequences of ongoing fossil fuel mining and subsequent greenhouse gas emissions warming the earth. Given the impacts of climate change, this human rights compatibility statement addresses the immediate effect of climate change on human all rights while acknowledging its gradual impact which significantly affects the rights of the child under CRC.

 

The rights of the child

 

Climate change has been identified by the Committee on the Rights of the Child as one of the biggest threats to children’s health globally (‘the Committee’). The Committee calls on states to put children at the centre of their climate change adaptation and mitigation strategies. The Office of the United Nations High Commissioner for Human Rights finds that children are most susceptible to the effects of climate change which include extreme weather and natural disasters, water scarcity, good insecurity, air pollution, vector-borne and infectious diseases and adverse mental health.

 

Australia’s obligations to consider climate change’s impact on children are triggered by Article 3(1) of the CRC which states that the best interests of the child shall be a primary consideration concerning any action taken by the authorities or legislative bodies.

 

The Bill engages Article 6(1) of the CRC which includes preserving the rights to life, survival and development by way of minimising the effects of climate change on children in its attempt to reduce greenhouse gas emissions and the sourcing and consumption of fossil fuels.

 

The Bill also engages Articles 27(1) of the CRC which ensures a right of living adequate for the child and Article 24(1) of the CRC provides that children should enjoy the highest attainable standard of physical and mental health. 

 

Pertinently, current Australian domestic law finds there is a duty of care to prevent harm or injury to children caused by climate change. This duty exists when considering future fossil fuel projects whereby a reasonable person could foresee the project may result in an increase in greenhouse gas emissions and creating risk of injury or death to children.

 

This Bill positively engages Australia’s obligations under Articles 6(1), 24(1) and 27(1) of the CRC by actively reducing the negative effects of fossil fuels and greenhouse gas emissions which in turn includes reducing the risk of harm to children.

 

 

The right to life

 

Article 6(1) of the ICCPR states that “ [e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. ” This right is a fundamental right which cannot be interpreted in a narrow nor strictly immediate sense.

 

The Committee has found that this right includes “the entitlement of individuals to be free from acts and omissions intended or expected to cause their unnatural or premature death, as well as to enjoy a life with dignity.”

 

Climate change threatens the right to life in myriad ways. In Australia, climate change is

contributing to more frequent and intense heatwaves, droughts, and bushfires, all of which

threaten lives through, for example, heat stress, dehydration, smoke inhalation, respiratory

stress and physical injury. Failure to mitigate and adapt to the impacts of climate change will result in deaths.

 

The Bill promotes Article 6(1) of the ICCPR in its aim to reduce environmental depletion and the effects of climate change so that all people may enjoy the right to life without facing premature harm.

 

The right to health

 

Article 12 of the ICESCR recognises that everyone has a right to enjoy the highest

attainable standard of physical and mental health. Climate change threatens the enjoyment of the right to health both directly, through extreme weather conditions and extreme temperature changes, and indirectly through changes to natural ecosystems that result in resource scarcity, disease proliferation and stressors on social systems.

 

The impact of climate change on the right to health is recognised by Article 1 of the United

Nations Framework Convention on Climate Change, which defines the “adverse effects of

climate change” as being "changes in the physical environment or biota resulting from

climate change which have significant deleterious effect on human health and welfare.”

 

The right to health is contingent on the right to an adequate standard of living and so any

effect that climate change has on the latter will resound on the former. As the key social

and environmental determinants of health are threatened by climate change, such as

access to adequate food, water and clean air, the right to health is also threatened. The

highest attainable standard of health depends on access to essential foods which are

nutritionally adequate and safe, access to basic shelter, housing and sanitation, and an

adequate supply of safe water.

 

In regard to the direct effects of climate change on the right to health, the findings of the

Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC)

confirm that these will include increasingly frequent extreme weather events and natural

disasters, rising sea levels, floods, heatwaves, and drought. These extremes will alter

ecosystems and disrupt food production and water supply

 

Consistent with Article 12 of the ICESCR, the Bill actively promotes the removal of fossil fuel mining and limits greenhouse gas emissions thereby reducing the effects of c limate change on health.

 

The right to adequate standard of living

 

Article 11(1) of the ICESCR upholds the right to adequate standard of living which in addition to food and water, means the right to adequate housing. The right to adequate housing is of central importance to the enjoyment of many other socio-economic rights. State Parties are required to take all required steps to uphold this right by reducing any contributory factors which result in extreme weather events including floods, drought, erosion along with uninhabitable heat areas.

 

Climate change threatens the right to an adequate standard of living due to the extreme

weather events and rising sea levels that can compromise both food and housing. Food

production in particular is affected by shifting precipitation patterns, higher temperatures,

droughts, floods and salinisation. These weather patterns have the ability to undermine

major crops and resultantly threaten access to adequate food.

 

This Bill upholds the right to an adequate standard of living as it seeks to stop further contribution to extreme weather events and sea levels rising by way of limiting Australia’s contribution to greenhouse gas emissions.

 

The right to self-determination

 

All peoples have the right to self-determination as found in Article (1) of the ICCPR and Article 1 of the ICESCR. The right for Australian First Nations peoples to pursue economic, social and cultural development is altered by the effects of climate change mandating geographic areas of liveability and ways of subsistence which compromises connection to culture and land.

 

Former United Nations Special Rapporteur on the rights of Indigenous Peoples, Victoria Tauli-Corpuz said “the realisation of the rights to self-determination and development” are “being seriously challenged” by climate change. These challenges are both current and developing not only for First Nations people of Australia but for all Indigenous peoples globally.

 

First Nations Peoples’ cultural and spiritual connection to Country includes lands, waters, skies, animals, plants and natural phenomena. The PEP11 area is identified as a biologically important area for many endangered species who live in and migrate through the area. The 2018 Environment Plan by Asset Energy identified 36 threatened species of animal (as defined under Environment Protection and Biodiversity Conservation Act 1999 (Cth)) including whales, sharks, turtles and fish in the PEP11 area.

 

The Bill promotes the Right to Self Determination for First Nations peoples through its climate change mitigation. Beyond mitigating the effects of climate change, the refusal to grant or renew the PEP11 has a positive impact on the flora and fauna of the area and promotes cultural connection to Country for First Nations People. 

 

Conclusion

 

This bill is compatible with human rights because it does not otherwise raise any human rights issues.