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Offshore Petroleum and Greenhouse Gas Storage Amendment Bill 2016



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ISSN 1328-8091

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BILLS DIGEST NO. 85, 2015-16 24 FEBRUARY 2016

Offshore Petroleum and Greenhouse Gas Storage Amendment Bill 2016 Sophie Power Science, Technology, Environment and Resources Section

Contents

The Bills Digest at a glance ................................................... 2

Purpose of the Bill ............................................................... 3

Background ......................................................................... 3

Commonwealth offshore petroleum legislation ..................... 3

Petroleum titles under the OPGGS Act ................................. 4

Offshore petroleum activities and the EPBC Act ..................... 4

Commonwealth marine reserves .......................................... 4

Commonwealth marine reserve proclamations ................. 4

Managing activities in Commonwealth reserves ................ 5

Prior usage rights and Commonwealth reserves ................ 6

Committee consideration .................................................... 6

Senate Selection of Bills Committee........................................ 6

Senate Standing Committee for the Scrutiny of Bills .............. 6

Policy position of non-government parties/independents ..... 6

Position of major interest groups ......................................... 7

Financial implications .......................................................... 7

Statement of Compatibility with Human Rights .................... 7

Parliamentary Joint Committee on Human Rights .................. 7

Key issues and provisions..................................................... 7

Prior usage rights and Commonwealth reserves..................... 7

Environmental oversight of petroleum activities in Commonwealth reserves ...................................................... 8

Date introduced: 11 February 2016

House: House of Representatives

Portfolio: Industry, Innovation and Science

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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The Bills Digest at a glance

Purpose of the Bill

• The Bill seeks to amend the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act)1 to retrospectively validate the renewal or extension of certain petroleum titles in areas proclaimed as Commonwealth marine reserves. These titles were renewed or extended before 1 January 2016, without obtaining the consent of the Commonwealth Environment Minister as required under section 359 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).2

Background

• The EPBC Act regulates certain activities, including mining operations (such as gas and petroleum exploration and production activities), conducted in Commonwealth reserves. However, the EPBC Act also recognises that people who have rights relating to an area that is later included in a reserve can continue to exercise those rights in the reserve. In particular, section 359 provides that the provisions in the EPBC Act or Regulations restricting activities in Commonwealth reserves do not affect a ‘usage right’ over an area that was held immediately before the area was included in a Commonwealth reserve. These are known as ‘prior usage rights’.

• However, under subsection 359(3) of the EPBC Act, a prior usage right may only be renewed or have its term extended with the Environment Minister’s written consent and subject to any conditions determined by the Minister. It appears that this has not been complied with in relation to petroleum titles (which fall within the definition of ‘usage right’) that have been renewed or extended under the OPGGS Act since 2008.

Key issues

• It is unclear how many petroleum titles have been renewed or extended in Commonwealth marine reserves without seeking the Environment Minister’s consent under the EPBC Act. There also appears to be little readily obtainable information on the Commonwealth marine reserves that may be affected by these renewals or extensions. Media reports suggest around 42 renewals or extensions may be affected.

• However, the Explanatory Memorandum does state that ‘all titles and subsequent activities have continued to be subject to Australia’s stringent environmental, safety and well integrity regime administered by the … National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA). Affected titleholders which have undertaken offshore petroleum activities have obtained approval from NOPSEMA in accordance with the requirements of the environmental, safety and well integrity regime’.3

• Nevertheless, the fact that such an error has occurred may raise broader concerns about the adequacy of processes for the administration and enforcement of both the EPBC Act and the offshore petroleum regulatory regime.

1. Offshore Petroleum and Greenhouse Gas Storage Act 2006, accessed 23 February 2016. 2. Environment Protection and Biodiversity Conservation Act 1999, accessed 23 February 2016. 3. Explanatory Memorandum, Offshore Petroleum and Greenhouse Gas Storage Amendment Bill 2016, p. 1.

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Purpose of the Bill The purpose of the Offshore Petroleum and Greenhouse Gas Storage Amendment Bill 2016 (the Bill) is to amend the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act) to retrospectively validate the renewal and extension of certain petroleum titles in areas proclaimed as Commonwealth marine reserves. These titles were renewed or extended before 1 January 2016, without obtaining the consent of the Commonwealth Environment Minister as required under subsection 359(3) of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

Background This Bill relates to the interaction between the OPGGS Act and the EPBC Act. As such, a brief overview of each Act, and its key provisions, follows.

Commonwealth offshore petroleum legislation Offshore petroleum activities (such as exploration and production) beyond designated state and territory coastal waters4 are governed by the Commonwealth OPGGS Act and related Acts and Regulations.5 The offshore petroleum legislation, regulations and guidelines are intended to provide for the ‘orderly’ exploration and production of petroleum and greenhouse gas resources, setting out a framework of rights, entitlements and responsibilities of government and industry.6

Within this framework, Australian Government entities administer the regulatory regime with respect to the offshore area together with relevant adjacent state and Northern Territory government involvement through Joint Authority arrangements.7 In short, the Joint Authorities have the power to make certain decisions under the OPGGS Act. These decisions relate to, but are not limited to, the granting of petroleum titles, the imposition of title conditions and cancellation of titles, as well as decisions about resource management and resource security.8

The OPGGS Act also establishes two Commonwealth statutory authorities, the National Offshore Petroleum Titles Administrator (NOPTA) and the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), both established on 1 January 2012, to perform certain regulatory functions under the OPGGS Act and related Acts and regulations.9 NOPTA’s key functions include assisting and advising the Joint Authorities and the responsible Commonwealth Minister; keeping registers of titles; and data and information management.10 NOPSEMA’s functions relate to the administration of occupational health and safety, structural integrity, and environmental management of all offshore petroleum and greenhouse gas storage activities.11 So, for example, before commencing a petroleum or greenhouse gas activity (such as exercising a right under a petroleum title) in Commonwealth waters, a titleholder must have an environment plan for the activity accepted by NOPSEMA and must comply with that environmental plan.12 The Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 set out the criteria for acceptance by NOPSEMA as well as the content requirements for environment plans.13

4. ‘Coastal waters’ are generally three nautical miles seaward of the territorial sea baseline: OPPGS Act, section 7. See also Geoscience Australia, ‘Maritime boundary definitions’, Geoscience Australia website, or, for a more detailed discussion of Australia’s offshore jurisdictional arrangements in the context of the offshore petroleum regime: J Tomaras and A St John, ‘Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Measures) Bill 2014 [and] Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment (Designated Coastal Waters) Bill 2014’, Bills digest, 77, 2014-15, Parliamentary Library, 27 February 2015, pp. 2-4 and 6-7, accessed 23 February 2016.

5. For a full list of relevant legislation, see Department of Industry, Innovation and Science (DIIS), ‘Offshore petroleum legislation, regulations and guidelines’, DIIS website, accessed 18 February 2016. 6. DIIS, ‘Offshore Petroleum Regulatory Regime’, DIIS Science website, accessed 12 February 2016. 7. Ibid.

8. National Offshore Petroleum Titles Administrator (NOPTA), ‘Joint Authorities’, NOPTA website, accessed 12 February 2016. 9. NOPTA was established by the Offshore Petroleum and Greenhouse Gas Storage Amendment (National Regulator) Act 2011, which also expanded the former National Offshore Petroleum Safety Authority to become NOPSEMA. 10. OPGGS Act, section 695AB. 11. OPGGS Act, sections 642 and 646. 12. See Part 2 of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations, accessed 22 February 2016. 13. Ibid. More detailed information on NOPSEMA’s environmental assessment and management processes is available at NOPSEMA,

‘Environmental resources’, NOPSEMA website, accessed 22 February 2016.

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Petroleum titles under the OPGGS Act The OPGGS Act regulates offshore petroleum exploration and production through requirements to obtain titles in the form of exploration permits, retention leases,14 and production, infrastructure and pipeline licences. Special prospecting authorities and access authorities allow for exploration activity (excluding the drilling of wells). In short:

Petroleum activities can only occur if a company holds a valid title, which in itself provides holders with an exclusive right to apply for further approvals to conduct safe petroleum operations in the area. 15

The OPGGS Act also contains provisions for the duration of these titles, depending on the nature of the particular title, as well as the renewal and extension of petroleum titles.

The OPGGS Act also requires that an activity in an offshore area under a permit, lease, authority or consent must be undertaken in a manner that does not interfere with navigation, fishing, conservation of the resources of the sea and seabed, the enjoyment of native title rights and interests and any activities of another person being lawfully carried on by way of exploration for, recovery of or conveyance of a mineral or construction or operation of a pipeline.16

Offshore petroleum activities and the EPBC Act The EPBC Act is the principal environmental legislation of the Commonwealth. It provides arrangements for environmental impact assessment and other mechanisms to conserve biodiversity and heritage.

In February 2014, the Commonwealth Minister for the Environment endorsed NOPSEMA’s environmental management authorisation processes under the OPGGS Act.17 The effect of this decision is that actions taken in accordance with the endorsed program no longer require separate referral, assessment or approval under Parts 7 to 9 of the EPBC Act.18 Prior to this, offshore petroleum gas activities that were likely, for example, to have a significant impact on ‘matters of national environmental significance’19 required approval from the Minister for the Environment under the EPBC Act. However, the February 2014 decision does not affect other requirements under the EPBC Act, for example, relating to activities in Commonwealth reserves discussed below.

Commonwealth marine reserves Part 15 of the EPBC Act provides for the proclamation and management of Protected areas, which includes Commonwealth reserves. Commonwealth reserves are listed and managed under the provisions of Division 4 of Part 15 of the EPBC Act, which cover matters including:

• the process for declaring and revoking Commonwealth reserves

• regulating the types of activities that can take place in Commonwealth reserves and

• the process for preparing and approving management plans for Commonwealth reserves.

Commonwealth marine reserve proclamations Under section 344 of the EPBC Act, the Governor-General may, by proclamation, declare an area of sea in a Commonwealth marine area as a Commonwealth reserve.20 A Commonwealth reserve also includes the waters and seabed under any sea in the declared area and the seabed to a depth stated in the Proclamation.21

14. Petroleum retention leases are granted if the recovery of petroleum is not currently commercially viable, but is likely to become commercially viable within 15 years: OPPGS Act, section 142. 15. DIIS, ‘Offshore Petroleum Titles’, DIIS website, accessed 18 February 2016. 16. OPGGS Act, section 280. 17. G Hunt (Minister for the Environment), Final Approval Decision for the Taking of Actions in accordance with an Endorsed Program under the

Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), 27 February 2014, accessed 17 February 2016. Note that there are some exclusions, such as actions taken in the Great Barrier Reef Marine Park. 18. Ibid., p. 3. 19. See further Department of the Environment (DoE), ‘What is protected under the EPBC Act?’, DoE website, accessed 16 February 2016. 20. EPBC Act, paragraph 344(1)(b)(i). ‘Commonwealth marine area’ is defined in section 24 of the EPBC Act and generally includes the area from the seaward boundary of state and Northern Territory coastal waters (normally three nautical miles from the territorial sea baseline, usually the low water mark) to the outer limit of the Exclusive Economic Zone (200 nautical miles from the territorial sea baseline). Somewhat circularly, ‘Commonwealth marine area’ is also defined to include any other area of sea or seabed that is included in Commonwealth reserve. 21. EPBC Act, section 345.

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To ensure consistency in defining and managing protected areas, the EPBC Act uses the World Conservation Union's (IUCN) internationally recognised set of seven protected area management categories. The Commonwealth reserve proclamation must assign the reserve (and any zones within the reserve) to an IUCN Category.22 For example, IUCN Category IV is a habitat or species management area which must be managed primarily to ensure the maintenance of habitats or to meet the requirements of specific species.23

A number of Commonwealth reserves have been proclaimed in marine areas under the EPBC Act. These proclamations follow a process dating back to at least 1998, when the Commonwealth, states and Northern Territory governments committed themselves to establishing the Representative System of Marine Protected Areas by 2012.24 The South-east Commonwealth marine reserves network was proclaimed in 2007. Following the release of draft proposals for consultation over the period May 2011 and February 2012, Commonwealth marine reserves were proclaimed in November 2012 for the North-west, North, East and South-west Marine Regions plus the Coral Sea Commonwealth Marine Reserve.25 However, in December 2013, the Governor-General revoked and reproclaimed the Commonwealth marine reserves in the South-west, North-west, North and Temperate East networks and the Coral Sea marine reserve, pending a Commonwealth marine reserves review.26 This new proclamation declared the same 44 areas as Commonwealth reserves (with the same assigned IUCN categories). However, the management plans for the reserves, that were scheduled to come into effect in July 2014, were ‘set aside’. The government advises that:

Until the new management plans come into effect, transitional management arrangements are in place. Under these transitional arrangements, there are no changes “on the water” for users in the Commonwealth Marine Reserve estate. 27

Managing activities in Commonwealth reserves The EPBC Act requires Commonwealth reserves to be managed in accordance with the Australian IUCN reserve management principles that are prescribed for each IUCN category.28 In particular, subsection 357(2) of the EPBC Act requires Commonwealth agencies (such as NOPSEMA) to exercise their powers or perform their functions in relation to Commonwealth reserves consistent with the Australian IUCN reserve management principles.

In addition, the EPBC Act prohibits certain activities being carried on in a Commonwealth reserve unless they are expressly provided for by a management plan for the reserve. Under sections 354 and 354A, these activities include, for example, actions that affect native species, damage heritage in the reserve, carrying on an excavation, carrying out works or commercial activities. So, for example, management plans can provide for actions affecting native species and commercial activities to be carried on under a permit issued by the Director of National Parks.29

However, these sections do not cover situations where these actions are taken in the course of ‘mining operations’.30 ‘Mining operations’ are covered separately under section 355 and are defined in subsection 355(2) to include a range of activities connected with or related to the mining and production of minerals (such as oil and gas), including, for example, exploration for minerals and construction of pipelines. Section 355 provides that a person must not carry on a mining operation in a Commonwealth reserve except in accordance with a management plan in operation for that reserve, with civil penalties provided for contravention of the provisions. Section 355A establishes a criminal offence for carrying on a mining operation in a Commonwealth area, unless, for example it is in accordance with a management plan, occurs under a prior usage right or has been approved

22. EPBC Act, section 346. 23. DoE, ‘Commonwealth marine reserves - Legal framework’, DoE website, accessed 23 February 2016. 24. For further background, see DoE, ‘Commonwealth marine reserves - Background’, DoE website, accessed 17 February 2016. 25. Environment Protection and Biodiversity Conservation (Commonwealth Marine Reserves) Proclamation 2012, accessed 22 February 2016. 26. DoE, ‘Commonwealth Marine Reserves Review’, DoE website, accessed 22 February 2016. 27. DoE, ‘About the Commonwealth Marine Reserves Review’, DoE website, accessed 22 February 2016; see also G Hunt (Minister for the

Environment) and R Colbeck (Parliamentary Secretary to the Minister for Agriculture), Supporting recreational fishing while protecting our marine parks, media release, 14 December 2013, accessed 22 February 2016. 28. The Australian IUCN reserve management principles are set out in Schedule 8 of the Environment Protection and Biodiversity Conservation Regulations 2000 (EPBC Regulations), accessed 23 February 2016. 29. Part 12 of the EPBC Regulations further regulate a range of other activities in Commonwealth reserves. The power to make these regulations

is set out in section 356 of the EPBC Act. 30. EPBC Act, subsections 354(1A) and 354A(9).

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by the Director of National Parks. Where there is no management plan in operation, certain activities (including mining operations) must be approved in writing by the Director of National Parks under section 359B of the EPBC Act.

Prior usage rights and Commonwealth reserves However, the EPBC Act also recognises that people who have rights relating to an area that is later included in a Commonwealth reserve can continue to exercise those rights in the reserve. In particular, section 359 provides that the provisions in the EPBC Act or EPBC Regulations relating to Commonwealth reserves, and the provisions of a reserve management plan, do not affect a ‘usage right’ in relation to land or seabed that was held immediately before the land or seabed was included in a Commonwealth reserve. These are known as ‘prior usage rights’. Under subsection 359(3), that usage right may only be renewed or have its term extended with the Environment Minister’s written consent and subject to any conditions determined by the Minister.

It appears that subsection 359(3) has not been complied with since 2008 in relation to petroleum titles renewed or extended under the OPGGS Act:

A recently identified administrative oversight, extending back to 2008, has led to certain petroleum titles being renewed or extended under the OPGGS Act without the Minister for the Environment’s consent being sought as is required under the EPBC Act. 31

Committee consideration Senate Selection of Bills Committee At the time of writing, the Senate Selection of Bills Committee had not considered whether the Bill should be referred to a Senate Committee for inquiry and report.

Senate Standing Committee for the Scrutiny of Bills At the time of writing, the Senate Standing Committee for the Scrutiny of Bills had not considered the Bill.

Policy position of non-government parties/independents The Australian Labor Party supports the Bill.32 The media release from the Minister for Resources, Energy and Northern Australia stated that ‘following consultation with the Opposition, this will proceed with bipartisan support’.33 This bipartisan support was confirmed in the House of Representatives on 23 February 2016, when Mr Gary Gray stated that the Bill fixes ‘administrative oversight’ in ‘an orderly fashion that ensures the continuation of good public administration and good practices in the management of our offshore title system’.34

The Australian Greens have expressed concerns about the Bill, with Senator Siewert suggesting:

This opens up a can of worms on all leases over marine protected areas. Have other mistakes been made in the environmental approval process of other leases in marine parks?

It is concerning that it wasn't even considered that these leases would need environmental approval, it demonstrates a disregard of environmental issues when it comes to the petroleum industry.

This must shine a spot light on the access and operation of the petroleum industry in marine protected areas. The virtual open access policy starts with the opening of acreage for exploration where there is no environmental right of veto. 35

31. A Robb (Minister for Trade and Investment), ‘Second reading speech: Offshore Petroleum and Greenhouse Gas Storage Amendment Bill 2016’, House of Representatives, Debates, (proof), 11 February 2016, p. 4, accessed 17 February 2016. 32. G Gray, ‘Second reading speech: Offshore Petroleum and Greenhouse Gas Storage Amendment Bill’, House of Representatives, Debates, (proof), 23 February 2016, p. 5, accessed 24 February 2016 33. J Frydenberg (Minister for Resources, Energy and Northern Australia), Correcting offshore petroleum title processing, media release,

10 February 2016, accessed 18 February 2016. 34. G Gray, ‘Second reading speech: Offshore Petroleum and Greenhouse Gas Storage Amendment Bill’, op. cit. 35. R Siewert (Australian Greens spokesperson on marine issues), Invalid oil leases highlights contempt for environment when it comes to

supporting petroleum industry, media release, 11 February 2016, accessed 12 February 2016.

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Position of major interest groups It is reported that the Australian Petroleum Production and Exploration Association supports the Bill, stating that it addresses an ‘administrative oversight that has had no impact on the environmental obligation on titleholders’:

A petroleum title does not constitute an environmental approval… titleholders would still need to apply for separate environmental and safety approvals for all regulated activities. 36

However, the Save Our Marine Life campaign has concerns that ‘oil and gas operations have not had the correct environmental approvals’ for operating in vulnerable marine areas:

Mining in marine parks is a concession, which must have the highest scrutiny given the impact on marine life, fishing and local communities that can occur as a result of seismic exploration, drilling operations and oil spills… 37

Financial implications According to the Explanatory Memorandum, the Bill is expected to have no financial impact.38

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.39

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.40

Key issues and provisions Prior usage rights and Commonwealth reserves As noted in the background section of this Bills Digest, the EPBC Act recognises ‘prior usage rights’ - that is, a ‘usage right’ in relation to land or seabed that was held immediately before the land or seabed was included in a Commonwealth reserve. Petroleum titles under the OPGGS Act would fall within the definition of ‘usage right’, which is defined in subsection 350(7) of the EPBC Act as an ‘estate or a legal or equitable charge, power, privilege, authority, licence or permit’.

Section 359 of the EPBC Act provides that the provisions of the EPBC Act or EPBC Regulations relating to Commonwealth reserves, and the provisions of a reserve management plan, do not affect such prior usage rights. However, under subsection 359(3), that usage right may only be renewed or have its term extended with the Environment Minister’s written consent and subject to any conditions determined by the Minister.

It appears that subsection 359(3) has not been complied with in relation to petroleum titles renewed or extended under the OPGGS Act:

A recently identified administrative oversight, extending back to 2008, has led to certain petroleum titles being renewed or extended under the OPGGS Act without the Minister for the Environment’s consent being sought as is required under the EPBC Act. Without a curative legislative amendment, there is a question as to the validity of the relevant extension and renewal title decisions made under the OPPGS Act.

41

36. N Hasham, ‘Bungle leaves 42 mining approvals in sensitive oceans unlawful, Josh Frydenberg says’, Sydney Morning Herald, (online edition), 11 February 2016, accessed 18 February 2016. 37. Ibid.

38. Explanatory Memorandum, op. cit., p. 1. 39. The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill. 40. Parliamentary Joint Committee on Human Rights, Thirty-fourth Report of the 44th Parliament, The Senate, Canberra, 23 February 2016, p. 1, accessed 24 February 2016.

41. A Robb (Minister for Trade and Investment), ‘Second reading speech: Offshore Petroleum and Greenhouse Gas Storage Amendment Bill 2016’, op. cit.

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The Bill therefore seeks to validate past decisions by the Joint Authorities to grant renewals or extensions of titles issued under the OPGGS Act prior to 1 January 2016. It does this by inserting a new Part 9.10C into the OPGGS Act containing three sections:

• Proposed section 708J provides a simplified outline of the new Part.

• Proposed section 780K provides for the validation of renewals and extensions of certain petroleum titles made under the OPGGS Act prior to 1 January 2016, where the consent of the Environment Minister under subsection 359(3) of the EPBC Act for the renewal or extension was not sought as required. In particular, subsection 780K(1) validates renewals of petroleum exploration permits, petroleum retention leases and fixed-term petroleum production licences made before 1 January 2016 without the Environment Minister’s consent under subsection 359(3) of the EPBC Act. The decisions to renew or extend are to be taken as always having been as valid and effective as they would have been if consent had been given under subsection 359(3). Subsection 780K(2) validates extensions to the terms of petroleum exploration permits and petroleum retention leases done before 1 January 2016 as having been always as valid and effective as they would have been had consent been given under subsection 359(3).

• Proposed section 780L clarifies that the requirements of subsection 359(1) of the EPBC Act will apply to the renewed title or the period of the extension of the term of the title, as applicable.42

Environmental oversight of petroleum activities in Commonwealth reserves Although the consent of the Commonwealth Environment Minister has not been sought under section 359 of the EPBC Act to renew or extend petroleum titles in Commonwealth reserves, and therefore the Minister has not had an opportunity to determine whether any conditions should be imposed on those titles, the activities under the relevant titles that have been renewed or extended are overseen by NOPSEMA. For example, such activities require an environmental plan to be accepted by NOPSEMA (as required under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 outlined earlier in this Digest). As the Explanatory Memorandum states:

…this is a technical issue that has not had an impact on the environmental requirements associated with the titles. All titles and subsequent activities have continued to be subject to Australia’s stringent environmental, safety and well integrity regime administered by the independent regulator, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA). Affected titleholders which have undertaken offshore petroleum activities have obtained approval from NOPSEMA in accordance with the requirements of the environmental, safety and well integrity regime.

43

In addition, as noted above, subsection 357(2) of the EPBC Act requires a Commonwealth agency (such as NOPSEMA) to exercise its powers or perform its functions in relation to Commonwealth reserves consistently with the Australian IUCN reserve management principles.44

However, it is unclear how many petroleum titles have been renewed or extended in Commonwealth marine reserves without seeking the relevant consent under the EPBC Act. It is also unclear how many and which Commonwealth marine reserves are involved. The Explanatory Memorandum and Minister’s Second Reading Speech are silent on these issues. A press release issued by the Minister for Resources, Energy and Northern Australia’s states that ‘a number’ of offshore petroleum titles were involved, but did not give any indication of the actual number.45 Media reports suggest that around 42 renewals or extensions may be affected.46

Without this information, it is difficult to determine the full ramifications and implications of the Bill. For example, since no detail has been given in relation to the petroleum titles affected nor the Commonwealth reserves involved, it is not possible to scrutinise NOPSEMA’s environmental oversight relating to the activities under these titles. Given that Commonwealth marine reserves have been identified as warranting higher levels

42. Note that there appears to be a typographical error in the heading of section 780L, which refers to the ‘EPIC exemption regime’, which presumably is meant to the ‘EPBC exemption regime’. 43. Explanatory Memorandum, op. cit., p. 1. 44. The Australian IUCN reserve management principles are set out in Schedule 8 of the Environment Protection and Biodiversity Conservation

Regulations 2000. 45. J Frydenberg (Minister for Resources, Energy and Northern Australia), Correcting offshore petroleum title processing, op. cit. 46. N Hasham, op. cit.

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of protection and management than other marine areas, parliament may wish to seek further details of the petroleum titles affected.

In addition, the fact that this error has occurred may raise broader concerns about the adequacy of processes for the administration and enforcement of both the EPBC Act and the offshore petroleum regulatory regime.

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