Title Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and Other Measures) Bill 2021
Database Explanatory Memoranda
Date 16-09-2021 08:36 PM
Source House of Reps
System Id legislation/ems/r6714_ems_5ba5fb41-5846-4206-9ba6-aa84ed2e6281


Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and Other Measures) Bill 2021

2019-2020-2021

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE AMENDMENT (TITLES ADMINISTRATION AND OTHER MEASURES) BILL 2021

OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE (REGULATORY LEVIES) AMENDMENT BILL 2021

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the Minister for Resources, Water and Northern Australia,
the Hon Keith Pitt MP)

 

 

 

 

 

 




GLOSSARY

Abbreviation

Definition

Bill

The Offshore Petroleum and Greenhouse Gas Storage (Titles Administration and Other Measures) Bill 2021

Corporations Act

The Corporations Act 2001

Crimes Act

The Crimes Act 1914

Criminal Code

The Criminal Code Act 1995

Cross-boundary Authority

The key decision-maker with respect to cross-boundary GHG titles under the OPGGS Act. Constituted by the responsible Commonwealth Minister and the responsible State Minister/responsible Northern Territory Minister. There is only a Cross-boundary Authority for a particular offshore area if the responsible State Minister or responsible Northern Territory Minister has consented to being a member of the Cross-boundary Authority for that offshore area.

Dealing

A transaction in relation to a title that has one or more of the effects set out in the table in section 486 (petroleum titles) or 537 (greenhouse gas titles) of the OPGGS Act

FATA

The Foreign Acquisitions and Takeovers Act 1975

GHG

Greenhouse gas

Government

The Australian Government

Joint Authority

The key decision-maker with respect to petroleum titles under the OPGGS Act. Generally constituted by the responsible Commonwealth Minister and the responsible State Minister/responsible Northern Territory Minister

NOPSEMA

The National Offshore Petroleum Safety and Environmental Management Authority

OPGGS Act

The Offshore Petroleum and Greenhouse Gas Storage Act 2006

Regulatory Levies Bill

The Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment Bill 2021, cognate with the Bill

Regulatory Powers Act

The Regulatory Powers (Standard Provisions) Act 2014

Responsible Commonwealth Minister

The Minister responsible for the administration of the OPGGS Act

Responsible Northern Territory Minister

The Northern Territory Minister responsible for administration of laws of the Northern Territory that correspond to the OPGGS Act

Responsible State Minister

The State Minister responsible for administration of laws of the State that correspond to the OPGGS Act

Royalty Act

The Offshore Petroleum (Royalty) Act 2006

Titles Administrator

The National Offshore Petroleum Titles Administrator

Walker Review

The independent Review into the Circumstances Leading to the Administration and Liquidation of Northern Oil and Gas Australia


OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE AMENDMENT (TITLES ADMINISTRATION AND OTHER MEASURES) BILL 2021

OUTLINE

The Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and Other Measures) Bill 2021 (the Bill) strengthens Australia’s offshore oil and gas regulatory regime to ensure that emerging decommissioning challenges facing the industry are able to be managed effectively, and the costs of decommissioning an offshore project remain with the entity or entities who are or were responsible for, or had the capacity to influence, the carrying out of the project, and does not fall to Australian taxpayers.

To achieve this objective, the Bill amends the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act) to provide for increased government oversight and scrutiny of entities throughout the life of an offshore project, from exploration through to development and eventual decommissioning. This is to ensure that entities are suitable (including being capable, competent and well-governed) to both carry out the petroleum or greenhouse gas (GHG) activities and discharge the obligations under the OPGGS Act, including decommissioning infrastructure and remediating the marine environment. 

The Bill:

·         provides for oversight of changes in control of titleholders (such as through a corporate merger or acquisition);

·         expands existing powers to ‘call back’ previous titleholders to decommission infrastructure and remediate the marine environment in the title area where the current or immediate former titleholder is unable to do so (known as ‘trailing liability’);

·         provides for specific decision-making criteria and expanded information-gathering powers to assess the suitability of entities wishing to enter into or progress through the regime; and

·         includes minor and technical amendments to improve the operation of the OPGGS Act, including enabling electronic lodgement of applications.

The Bill implements aspects of the Australian Government’s Enhanced Offshore Oil and Gas Decommissioning Framework and relevant recommendations from the Independent Review into the Circumstances Leading to the Administration and Liquidation of Northern Oil and Gas Australia (referred to as the Walker Review).

The Bill provides for government oversight of transactions involving a change in the control of a petroleum or GHG titleholder. The sale of an offshore project is meant to be captured as a transfer of the title or titles related to the project, which is already provided for under the OPGGS Act. But it is also common for the industry (both in Australian and overseas) for an offshore project to be transferred via the sale of the shares in the company that is the titleholder. Such transactions are not currently captured by the OPGGS Act because there is no transfer of the interests of the title or titles.

The Bill provides for trailing liability by expanding the remedial directions provisions in the OPGGS Act to require any former titleholder, or a ‘related person’ of a current or any former titleholder, to carry out decommissioning if the current or immediate former titleholder is unable to do so. Trailing liability is intended to be a measure of last resort where all other regulatory options have been exhausted. It aims to ensure that the risks and liabilities of petroleum activities remain the responsibility of those who held, or had the ability to influence operations under, the title, and change industry behaviour by increasing the due diligence undertaken by companies regarding who they sell their assets to.

The Bill increases regulatory oversight and scrutiny by providing for specific decision-making criteria at decision points across the OPGGS Act to ensure entities are suitable on entry into the regime, and remain suitable throughout the life of the project. It also expands the types of information that may be requested by the relevant decision maker from the applicant or applicants seeking to either enter into or progress through the regime. This ensures that the Australian Government will be better equipped to screen applicants, which in turn will reduce the risk that an entity who does not meet these suitability requirements will acquire interests in an offshore project and associated title(s).

In determining whether an applicant is suitable, the relevant decision maker will consider a range of factors including (but not limited to): technical and financial capacity, experience, compliance history, corporate governance, and any previous bankruptcy or insolvency. As is the case with the existing decision-making powers in the OPGGS Act, the relevant decision maker has the discretion to, and may request, additional information on a case-by-case basis to inform its decision regarding the application.

The Bill also provides for amendments to improve the administration of petroleum and GHG titles, including providing for electronic lodgement of applications and other documentation and reports, modernising administrative processes, repealing redundant and spent amendment Acts, and making minor and technical amendments to improve the overall operation of the OPGGS Act.

FINANCIAL IMPACT STATEMENT

The Bill is expected to have nil financial impact.

REGULATION IMPACT STATEMENT

A Regulation Impact Statement (RIS) has been prepared for the following amendments contained in the Bill in accordance with the Australian Government Guide to Regulation: changes in control of titleholders, trailing liability and decision-making criteria. The RIS meets the Government’s regulatory impact assessment requirements (OBPR ID Number: 25323) and is included at the end of this combined Explanatory Memorandum.

CONSULTATION

Significant consultation was undertaken throughout the policy planning and drafting process of the Bill, including:

·         public consultation with a range of stakeholders, including the industry, environmental groups, fishing groups, academia, government and law firms, on the Enhanced Offshore Oil and Gas Decommissioning Framework as part of the department’s Decommissioning Review, which included the release of a discussion paper, invitation of submissions and targeted stakeholder workshops;

·         consultation with the industry, the National Offshore Petroleum Titles Administrator (NOPTA) and the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), as part of the Walker Review;

·         a workshop with the industry through its peak body, the Australian Petroleum Production and Exploration Association (APPEA), on the Government’s proposed legislative measures; and

·         public consultation on an Exposure Draft of the Bill, which invited written submissions from all stakeholders and included face-to-face meetings with key stakeholders.

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 (Titles Administration and Other Measures) 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 strengthens Australia’s offshore oil and gas regulatory regime to ensure that emerging decommissioning challenges facing the industry are able to be managed effectively, and the costs of decommissioning an offshore project remain with the entity or entities who are or were responsible for, or had the capacity to influence, the carrying out of the project, and does not fall to Australian taxpayers.

To achieve this objective the Bill amends the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act) to provide for increased government oversight and scrutiny of entities throughout the life of an offshore project, from exploration through to development and eventual decommissioning. This is to ensure that entities are suitable (including being capable, competent and well-governed) to both carry out the petroleum or greenhouse gas (GHG) activities and discharge the obligations under the OPGGS Act, including decommissioning infrastructure and remediating the marine environment. 

The Bill:

·         provides for oversight of changes in control of titleholders (such as through a corporate merger or acquisition);

·         expands existing powers to ‘call back’ previous titleholders to decommission infrastructure and remediate the marine environment in the title area where the current or immediate former titleholder is unable to do so (known as ‘trailing liability’);

·         provides for specific decision-making criteria and expanded information-gathering powers to assess the suitability of entities wishing to enter into or progress through the regime; and

·         includes minor and technical amendments to improve the operation of the OPGGS Act, including enabling electronic lodgement of applications.

The Bill implements aspects of the Australian Government’s Enhanced Offshore Oil and Gas Decommissioning Framework and relevant recommendations from the independent Review into the Circumstances Leading to the Administration and Liquidation of Northern Oil and Gas Australia (referred to as the Walker Review).

Human rights implications

This Bill engages, or has the potential to engage, the following rights:

·         Article 14 of the International Covenant on Civil and Political Rights (the ICCPR) – criminal process rights, specifically the right to be presumed innocent until proven guilty according to law and the right to minimum guarantees in criminal proceedings; and

·         Article 17 of the ICCPR – right to privacy and reputation.

 

Right to be presumed innocent until proven guilty (Article 14(2) of the ICCPR)

Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. Generally, consistency with the presumption of innocence requires the prosecution to prove each element of an offence beyond reasonable doubt. Offences that place an evidential burden on the defendant will engage the presumption of innocence. This is because a defendant’s failure to discharge the burden may permit their conviction despite reasonable doubt as to their guilt.

Reverse burden provision

New sections 566N and 566P (inserted by item 1 of Schedule 1 to the Bill) create civil penalty provisions that reverse the onus of proof on the defendant. Although these do not technically engage article 14(2) of the ICCPR because they relate to civil penalty provisions rather than offences, a discussion of the provisions is included for completeness given their nature in deterring non-compliance and severity.

A person contravenes subsection 566N(1) if the person begins or ceases to control a titleholder and either the National Offshore Petroleum Titles Administrator (the Titles Administrator) has not approved the change in control, or the Titles Administrator has approved the change in control but the change took effect after the end of the approval period. Under subsection 566N(3), a person is liable to a civil penalty if the person contravenes subsection (1). Subsection 566N(4) provides that subsection (3) does not apply if the person did not know, and could not reasonably be expected to have known, that the person had begun or ceased to control the titleholder.

A person contravenes subsection 566P(1) if the person begins or ceases to control a titleholder that either was not approved, or was approved but took effect after the approval period, and the person does not notify the Titles Administrator of the change in control within 30 days of the change in control taking effect. Under subsection 566P(2), a person is liable to a civil penalty if the person contravenes subsection (1). Subsection 566P(4) provides that subsection (2) does not apply if the person did not know, and could not reasonably be expected to have known, that the person had begun or ceased to control the titleholder. 

In both cases, due to the operation of section 96 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) (which is triggered by the OPGGS Act for the purposes of civil penalty provisions), a person who wishes to rely on the exception in proceedings for a civil penalty order bears an evidential burden in relation to that matter. When a defendant bears an evidential burden in relation to a matter, it means that the defendant bears the burden of adducing or pointing to evidence suggesting a reasonable possibility that the exception has been met.

The burden of proof is reversed because the matter is likely to be exclusively within the knowledge of the defendant. This is particularly the case given the potentially complex and sizeable corporate structures of entities that may control a registered holder of a title under the OPGGS Act. It is therefore reasonable to require the defendant to adduce evidence in relation to this exception. This is consistent with A Guide To Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011 edition), which states that where the facts of a defence are peculiarly within a defendant’s knowledge, it may be appropriate for the burden of proof to be placed on the defendant.

The right to minimum guarantees in criminal proceedings (Article 14(3) of the ICCPR)

Article 14(3) of the ICCPR establishes a number of guarantees that must be observed in criminal proceedings. These include the right for a person to examine the witnesses against the person (Article 14(3)(e)) and the right to not be compelled to testify against themselves or to confess guilt (Article 14(3)(g)). These rights may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they must be aimed at a legitimate objective and be reasonable, necessary and proportionate to that objective.

Evidentiary certificates

New subsections 566ZE(3) and (4) (inserted by item 1 of Schedule 1 to the Bill) engage the presumption of innocence by enabling the Titles Administrator to issue a certificate stating that an entry, matter or thing required by new Chapter 5A to be made or done, or not to be made or done, has in fact been made or done, or has not been made or done (referred to as an evidentiary certificate). The certificate is to be received in all courts and proceedings as prima facie evidence of the statements in the certificate.

The objective of these provisions is to ensure that all relevant evidence is before the court. The Titles Administrator will provide evidentiary certificates which settle formal or technical matters of fact that would be difficult to prove by adducing admissible evidence.

Allowing the certificate as prima facie evidence of limited matters is reasonable. Evidentiary certificates promote efficiency by removing delays arising from obtaining evidence with more traditional methods, freeing up the court’s time to consider the more serious issues related to the offence.

New subsections 566ZE(5) to (8) provide procedural safeguards consistent with Commonwealth criminal law principles about the use of evidentiary certificates in view of the fact that their use may affect the fairness of proceedings, to ensure the defendant’s rights are not unduly limited. Evidentiary certificates establish prima facie evidence of the matters contained in the certificate, as opposed to conclusive evidence. As such, the certificates create a rebuttable presumption of the facts that the defendant may challenge during court proceedings.

An evidentiary certificate issued under subsection 566(3) must not be admitted in evidence in proceedings for an offence unless the person charged with the offence, or a barrister or solicitor who has appeared for the person, has been given a copy of the certificate and notice of the intention to produce the certificate as evidence in the proceedings at least 14 days before the certificate is sought to be so admitted. If the certificate is admitted, the person charged with the offence may require the person who signed the certificate to be called as a witness for the prosecution and cross-examined. Further, any evidence given in support or rebuttal of a matter stated in a certificate must be considered on its merits.

The rationale for inclusion of the provision, together with the safeguards for the defendant, ensure this clause is necessary and proportionate to achieve the legitimate objective of establishing facts in criminal proceedings.

Abrogation against the privilege against self-incrimination in relation to information-gathering under new Part 5A.4

Article 14(3)(g) of the ICCPR provides for the right of a person not to be compelled to testify against themselves or to confess guilt, otherwise known as the privilege against self-incrimination. The privilege against self-incrimination may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations not to be arbitrary, they must be aimed at a legitimate objective and be reasonable, necessary and proportionate to that objective.

New subsection 566R(2) (inserted by item 1 of Schedule 1 to the Bill) empowers the Titles Administrator to require a person to give information or evidence or produce a document if the Titles Administrator believes on reasonable grounds that the person has information or a document relevant to one of the following matters:

a)      the Titles Administrator believes on reasonable grounds that there has been, or will be, a change in control of a titleholder;

b)      an application is made for approval of a change in control of a titleholder;

c)      the approval period for a change in control of a titleholder has not ended and the Titles Administrator believes on reasonable grounds that there has been, or will be, a change in the circumstances of a person approved to begin or cease to control the titleholder. 

Under new section 566T, a person is not excused from giving information or evidence or producing a document on the ground that the information or evidence or the production of the document might tend to incriminate the person in relation to an offence. However, the information or evidence given or document produced, the fact of giving or producing the information, evidence or document, or any information, document or thing obtained as a direct or indirect consequence of the giving or production, is not admissible in evidence against the person in any criminal proceedings, other than a proceeding in relation to an offence for the provision of false or misleading information, documents or evidence (see subsection 566T(2)).

The objective of these provisions is to ensure the Titles Administrator can obtain information or documents relevant to the proper administration of Chapter 5A. Where matters relating to the effective oversight of changes in control are concerned, it may occasionally be more important to establish the facts rather than to be able to use the facts in the prosecution of an offence. Maintaining a privilege against self-incrimination may significantly hamper the Titles Administrator’s ability to administer provisions relating to the oversight of changes in control of a titleholder, and thereby seriously undermine the effectiveness of the offshore regime.

Section 566T abrogates the privilege against self-incrimination, but also provides an immunity against the use or derivative use of the information, documents or evidence given in criminal proceedings, other than a proceeding in relation to an offence for the provision of false or misleading information, documents or evidence. This section therefore ensures the Titles Administrator has sufficiently broad information-gathering powers to establish facts, while protecting individuals from proceedings on the basis of providing the information evidence or documents. This safeguard ensures that section 566T is reasonable and proportionate to meeting this objective, and therefore the provision meet Australia’s human rights obligations to afford minimum guarantees in criminal proceedings.

Summary

The Bill is compatible with the criminal process rights contained in Article 14 of the ICCPR because the measures in the Bill engage, but do not limit, those rights.

Right to privacy and reputation (Article 17 of the ICCPR)

Article 17 of the ICCPR provides for the right of every person to be protected against arbitrary or unlawful interference with their privacy, family, home or correspondence, as well as unlawful attacks on their honour and reputation. It also provides that a person has the right to the protection of the law against such interference or attacks.

The right to privacy and reputation may be limited, provided that the interference with the right is authorised by law and not arbitrary. In order for limitations not to be arbitrary, they must be aimed at a legitimate objective and be reasonable, necessary and proportionate to that objective. 

Provision of information

The Bill includes measures that may require persons to provide information or documents that include personal information. The measures include:

·         Providing for the relevant decision-maker to take into account the suitability of an applicant when making a decision in relation to the grant, renewal or transfer of a petroleum or GHG title, or the approval of a change in control of a registered holder of a petroleum or GHG title. For example, where a decision provides for the entry of a person into the offshore regime (such as the grant of a petroleum exploration permit or a transfer of a petroleum or GHG title), suitability matters may require the provision of information about the directors and other officers of the applicant, such as their past compliance with the OPGGS Act and certain provisions of the Corporations Act 2001 (the Corporations Act), any previous history of bankruptcy or insolvency, and experience in offshore petroleum or GHG operations.

·         Requiring a person who is an applicant for the grant, renewal or transfer of a petroleum or GHG title, or who is a current registered holder of a title, to notify the Titles Administrator and the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) in certain circumstances, such as if the person is found guilty of an offence against, or ordered to pay a pecuniary penalty for a contravention of, a law of the Commonwealth or of a State or Territory involving fraud or dishonesty, becomes insolvent, or is disqualified from managing corporations under Part 2D.6 of the Corporations Act.

Given the nature of the offshore oil and gas industry, almost every applicant and titleholder is a corporation, and most of the information required to be provided will be corporate information. However, applications may require the provision of ‘personal information’, within the meaning of the Privacy Act 1988 (the Privacy Act), where they require information about the directors or other officers of a body corporate.

The measures of the Bill are aimed at achieving the legitimate objective of increasing regulatory oversight and scrutiny to ensure entities who enter the offshore regime are suitable to carry out petroleum or GHG activities in Australia’s offshore areas, and that they remain suitable throughout the life of the project. This will in turn reduce the risk that an entity who does not meet these suitability requirements will acquire interests in an offshore project and the related title or titles.

There are potentially significant adverse consequences if an entity that does not meet suitability requirements acquires interests in an offshore project, whether through the grant or transfer of a title or beginning to control a registered holder of a title. For example, the person may be unable to meet legislation requirements in relation to safety or the environment, potentially resulting in major accident events or severe environmental damage. These potential consequences require that the offshore regime be supported by robust regulatory controls, particularly at key titles decision points. To this end, it is essential that decision-makers can obtain sufficient information to be able to assess whether an applicant is suitable to hold the title. The Titles Administrator and NOPSEMA also require notification of changes of circumstances that relate to the ongoing suitability of persons to hold a title, and thereby enable the Titles Administrator and NOPSEMA to take appropriate action, including, for example, compliance monitoring or enforcement.

The interference with privacy is not arbitrary in these circumstances because the specific decision-making criteria with respect to which a person will be required to provide information in an application will be prescribed in the OPGGS Act. These matters will be expressly prescribed with sufficient clarity to ensure that there will be an appropriate legal basis for determining whether to approve or refuse an application for the grant, etc., of a title. In addition, the OPGGS Act will clearly specify when a person is required to notify the Titles Administrator and NOPSEMA about a change in circumstances that goes to the suitability of a person to hold a petroleum or GHG title (see new subsection 695YC(2), inserted by item 231 of Schedule 3). In all cases, the information required will be directly relevant to the suitability and capability of an entity to participate in the offshore regime.

The Parliamentary Joint Committee on Human Rights has indicated in guidance that whether a person has a reasonable expectation of privacy in the circumstances is relevant to the issue of determining whether or not a clause is permissible. If an entity applies for the grant, renewal or transfer of a title, or a change in control of a titleholder, it is reasonable to expect that a certain amount and type of information about the compliance and management history of directors, other officers or other employees in management or control of the entity will need to be provided to support the application, and ensure that only those entities that are suitable of carrying out activities and discharging obligations are permitted to enter and remain in the regime.

The provision of information is necessary for appropriate oversight and decision-making that mitigates the risk inherent in the industry. In addition, the provision of personal information pursuant to these amendments is appropriately safeguarded from arbitrary use in the following ways:

·         any personal information received is subject to the Privacy Act, which regulates the collection, storage, use and disclosure of personal information;

·         personal information will be used solely for the purpose of assessing the suitability of entities to enter or continue to participate in the offshore regime, and will not be made publicly available;

·         information cannot be shared arbitrarily because the information-sharing provisions of the OPGGS Act (which allow information to be shared between the responsible Commonwealth Minister, the Secretary of the Department of Industry, Science, Energy and Resources, NOPSEMA, the Titles Administrator, each member of a Joint Authority and each member of a Cross-boundary Authority) are restricted to sharing for the purpose of the exercise of powers or the performance of functions under the OPGGS Act, or the administration of the OPGGS Act; and

·         if personal information is shared under the information-sharing provisions of the OPGGS Act, it is required to be de-identified where possible, pursuant to section 695Y of the OPGGS Act.

Taking into account the rationale for requiring the information and the safeguards on collection, use and disclosure of the information, the impact of the provisions on the right against arbitrary interference with privacy is minimal, and accordingly is proportionate to the objective of the amendments. To the extent that the measures limit the right of individuals against arbitrary interference with their privacy under Article 17 of the ICCPR, this limitation is necessary, proportionate and reasonable to achieve the legitimate objectives of these measures.

Summary

The Bill is compatible with the right to privacy in Article 17 of the ICCPR because to the extent that it may limit that right, that limitation is reasonable, necessary and proportionate to the achievement of a legitimate objective.

Conclusion

The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

The Minister for Resources, Water and Northern Australia,
the Hon Keith Pitt MP

 


OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE AMENDMENT (TITLES ADMINISTRATION AND OTHER MEASURES) BILL 2021

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 date for when the Bill’s provisions commence.

3.             Sections 1 to 3 and anything in the Bill not elsewhere covered by the table will commence on the day that the Bill receives Royal Assent.

4.             Schedule 1 will commence immediately after the commencement of Schedule 3. Schedule 1 amends provisions that will be inserted by Schedule 3, and therefore must commence after that Schedule. The delay in commencement of Schedule 1 (given that Schedule 3 has a delayed commencement) will also enable time for preparation and implementation of the changes made by that Schedule by the Titles Administrator and industry stakeholders.

5.             Schedules 2 and 3 will commence on a day to be fixed by Proclamation. The delay in commencement of the amendments made by Schedule 2 will enable time for consequential amendments to be made to regulations under the OPGGS Act. The delay in commencement of the amendments made by Schedule 3 will enable time for the Titles Administrator to publish an approved form and manner for giving certain notices and applications.

6.             If Proclamation does not occur within six months of Royal Assent, then Schedules 2 and 3 will automatically commence on the day after the end of that period.

7.             Schedules 4 and 7 commence on the day after the Bill receives Royal Assent.

8.             Schedule 5 will commence on a day to be fixed by Proclamation. The delay in commencement of the amendments will enable the Titles Administrator to prepare and implement the approved form and manner of giving notice for registered holders of petroleum and GHG titleholders.

9.             If Proclamation does not occur within six months of Royal Assent, then Schedule 5 will automatically commence on the day after the end of that period.

10.         Schedule 6 will commence on a day to be fixed by Proclamation. The amendments will commence by Proclamation to allow time for necessary consequential amendments to regulations under the OPGGS Act to be made.

11.         The amendments will need to commence at the same time as the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (the Environment Regulations) are remade, in order to prescribe the name of the remade Regulations for the purposes of the regulations references provisions inserted by Schedule 6. Given interdependencies with the remake of the Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Regulations 2004, the remake of the Environment Regulations will not be submitted to the Federal Executive Council until at least early 2022. Further, the remade Environment Regulations will have a 6 month delayed commencement to enable time for industry and the regulator to adjust guidance and processes (noting the Environment Regulations will change substantially in form, although not in content). Providing for a delayed commencement of a maximum of 18 months will ensure that the amendments made by Schedule 6 will not automatically commence before the remade Environment Regulations have commenced.

12.         If Proclamation does not occur within 18 months of Royal Assent, then Schedule 6 will commences on the day after the end of that period.

Clause 3: Schedules

13.         This clause gives effect to the provisions in the Schedules to the Bill.

 

 

 


Schedule 1—Change in control of registered titleholders

Part 1—Main amendments

Offshore Petroleum and Greenhouse Gas Storage Act 2006

Item 1: After Chapter 5

14.         This item inserts new Chapter 5A into the OPGGS Act, which regulates changes in control of registered holders of certain petroleum and GHG titles (see the definition of a title in section 566A). A registered holder of a title is also referred to as a ‘titleholder’.

15.         The transfer of the ownership or control of an offshore project is meant to be captured by the OPGGS Act as a transfer of the title or titles related to the project under either Part 4.3 in Chapter 4 (for petroleum titles) or Part 5.3 in Chapters 5 (for GHG titles). Government oversight of transfers of titles is crucial to ensuring that those who wish to acquire rights to explore for or exploit resources in offshore areas are suitable to do so. This includes being technically and financially capable to both carry out petroleum or GHG activities in the title area or areas and comply with legislative requirements, including decommissioning.

16.         However, it is also common industry practice in Australia and other countries for an offshore project to be bought and sold through a transfer of the interests in the registered holder of the title, which are typically the shares in the company who is the titleholder. Such transactions (referred to as a ‘change in control’ of a titleholder) are not captured by Parts 4.3 or 5.3 or otherwise subject to government oversight under the OPGGS Act. This is because a change in control of a titleholder involves a transfer of the interests in the titleholder (that is, the shares in the company that is the titleholder), not the title held by the titleholder. This type of transaction is not uncommon in Australia or international jurisdictions and may impact the titleholder’s ability to finance and meet its obligations under the OPGGS Act.

17.         This measure implements Recommendation 3 of the Walker Review to provide for increased government oversight of company level transactions. A change in control of a titleholder through a sale of the shares in the titleholder was a key part of the transaction that resulted in a relatively small company with no experience in offshore petroleum operations acquiring the ownership of the Northern Endeavour in the Laminaria and Corallina oil fields.

18.         In providing for increased government oversight of changes in control of titleholders, this measure aims to ensure that a titleholder will remain suitable (including technically and financially capable) to hold the title as a result of a transaction in which an offshore project is proposed to be bought and sold, but is not currently captured by a transfer of the related title or titles.

Chapter 5A—Change in control of a registered holder of a title

Part 5A.1—Introduction

Section 566        Simplified outline of this Chapter

19.         This section provides for a simplified outline of Chapter 5A. This outline does not form part of the operative text of the OPGGS Act and is not intended to be comprehensive. Instead, it is intended that the reader will rely on the substantive provisions in Chapter 5A.

20.         A change in control of a titleholder occurs if a person begins or ceases to control the titleholder (see section 566B for the definitions of control and a change in control of a registered holder of a title). A change in control of a titleholder may also be traced to a change in control of the companies, trusts or partnerships which control the titleholder (see section 566Z for the tracing provision).

21.         If a change in control of a titleholder takes effect without approval by the Titles Administrator, the person who begins or ceases to control the titleholder may commit an offence or be liable to a civil penalty. A person may also commit an offence or be liable to a civil penalty if the person enters into or carries out a scheme for the purpose of avoiding the application of the penalty provisions in Part 5A.3 of Chapter 5A (see section 566ZA for the anti-avoidance provision). Certain contraventions of provisions in Chapter 5A are also grounds to cancel the title.

22.         The Titles Administrator may obtain information, documents or evidence in relation to a change in control of a titleholder, including a possible change in control.

Section 566A     Definitions

23.         This section defines the terms used in Chapter 5A. It also includes signpost definitions of control and a change in control of a registered holder of a title, which are fully defined in section 566B.

Approval period

24.         The definition of approval period provides the period in which a decision to approve a change in control of a registered holder under paragraph 566D(2)(a) is of effect.

25.         The approval period will start on the day that the notice of approval for the change in control is given under subsection 566E(1) and expire nine months after that day, unless it ends earlier because either the change in control has taken effect or the Titles Administrator has revoked the approval under subsection 566J(1). If the change in control takes effect, the approval period will end immediately after it takes effect. If the Titles Administrator revokes the approval, the approval period will end when the notice of revocation is given under subsection 566J(2).

26.         The rationale for an approval period of up to nine months is to provide the parties to a transaction proposing to effect a change in control that has been approved with a reasonable period within which to obtain any other regulatory approvals necessary to give effect to the transaction. Nine months represents a reasonable cut-off point for the approval to be of effect to ensure that information provided to the Titles Administrator with the application for approval of the change in control remains current, while providing the parties to such a transaction flexibility in obtaining any other regulatory approvals.

27.         It is common industry practice for a transaction proposing to effect a change in the ownership or control of an offshore project (including by way of a sale of the shares in the company that is the titleholder) to be executed before the parties apply for the relevant regulatory approvals. However, the transaction will typically be subject to a condition that one or more of the parties are required to obtain the relevant regulatory approvals for the transaction to take effect (which may include, for example, receiving a ‘no objections notification’ or obtaining an ‘exemption certificate’ for any transaction involving a foreign acquisition or takeover under the FATA). This means that the transaction is of no effect in contract law unless each relevant regulatory approval has been obtained.

28.         It will be a matter for the parties to such a transaction to obtain any other relevant regulatory approvals before the expiry of the approval period. If the approval period expires, the parties may make another application for the approval of the change in control if they wish to proceed with the transaction, although they may be required to provide further information or documents, and such an application will be required to be accompanied by the application fee (if any) prescribed by the regulations (see section 566M).

Register and title

29.  For the purposes of Chapter 5A, the terms Register and title are defined differently compared to other uses of these terms in other provisions of the OPGGS Act. Both definitions apply to the following titles:

a.       a petroleum exploration permit;

b.      a petroleum retention lease;

c.       a petroleum production licence;

d.      an infrastructure licence;

e.       a pipeline licence;

f.       a GHG assessment permit;

g.      a GHG holding lease;

h.      a GHG injection licence.

30.         The term Register is defined to mean the relevant Register kept under either section 469 or section 521 in relation to these titles. The term title is defined to mean any of these titles. This means that a change in control of a registered holder of any of these titles is subject to Chapter 5A.

Section 566B     Meaning of control and change in control of registered holder

31.         This section defines control and a change in control of a registered holder of a title, which are central concepts in Chapter 5A. This is because, if a change in control of a titleholder takes effect without approval by the Titles Administrator, those who began or ceased to control the titleholder may contravene the penalty provisions in Part 5A.3 of Chapter 5A and, consequently, commit an offence or be liable to a civil penalty (see section 566N). The title or titles held by the titleholder may also be cancelled.

Control

32.         For the purposes of a change in control of a registered holder of a title under subsection (4), a person controls a titleholder if the person either:

a.       holds the power to exercise, or control the exercise of, 20 per cent or more of the voting rights in the titleholder, or

b.      holds, or holds an interest in, 20 per cent or more of the issued securities in the titleholder.

33.         This definition, including the 20 per cent control threshold, is crucial for the Government to be able to oversight transactions proposing to effect a change in control of a titleholder to ensure that the titleholder’s ability to comply with its obligations under the OPGGS Act will not be adversely impacted.

34.         The terms ‘voting rights’ and ‘issued securities’ are not defined, which means the ordinary meaning of these terms apply. Despite this, these terms reflect, but do not necessarily rely on, similar concepts in other Commonwealth laws, notably:

a.       the definitions of ‘voting power’ in a body corporate in section 610 of the Corporations Act and ‘voting power’ in an entity or unincorporated limited partnership in section 22 of the FATA, which means a percentage of votes that might be cast at a general meeting of the entity or partnership;

b.      the definition of ‘control’ in relation to control of the voting power in an entity in section 23 of the FATA, which applies whether the power is direct or indirect, and whether it is as a result or by means of agreements or practices that have legal or equitable force, or are based on legal or equitable rights; and

c.       the definition of ‘securities’ in section 92 of the Corporations Act, which includes shares in a body corporate.

35.         The definition of control incorporates two key concepts: control and ownership. A change in control of a titleholder applies not only to persons who propose to be in a position to exercise control or influence over the titleholder, but also to those who propose to hold a substantial interest in the titleholder but may not be able to exercise such control or influence. For example, a person might propose to acquire 20 per cent or more of the shares in a titleholder and thereby become a significant source of the financial resources available to the titleholder. However, the person may be unable to exercise control or influence over the titleholder because of the nature of those shares (that is, if those shares do not confer voting rights on the holder and therefore do not entitle them to exercise, or control the exercise of, a right to vote at a meeting of the shareholders and other members of the titleholder).

36.         The 20 per cent control threshold is consistent with similar acquisition thresholds in other Commonwealth laws, including:

a.       the ‘20 per cent rule’ for takeovers under Chapter 6 of the Corporations Act, which applies to the acquisition of a relevant interest in the voting power in a company that increases a person’s voting power in the company from 20 per cent or below to more than 20 per cent (see sections 606, 608 and 609), and

b.      the definition of a ‘substantial interest’ (which is an interest of at least 20 per cent) in an Australian entity in relation to a ‘change in control’ of the entity under section 54 of the FATA, which applies to an interest (including an interest in a ‘security’ or a share or shares in the corporation that is the Australian entity) regardless of whether the interest confers voting power on the holder of the interest (see section 4 for the definitions of ‘interest’, ‘security’ and ‘share’ and section 9 for an ‘interest’ in a security).

37.         The rationale for a 20 per cent control threshold for the purposes of the definition of control in this section is that this percentage is regarded in Australia to be ‘a suitably arbitrary level falling short of the likelihood of actual control’ or captures a level of control of a company just before de facto or effective control occurs.[1] While holding an interest of more than 50 per cent of the shares in a company will likely confer on its holder significant control or influence over the company, particularly if the shares confer voting power, what will amount to effective control of any particular company will depend on the distribution of its shares, which varies between each company. For example, if there are three unrelated or unassociated shareholders that each hold one-third of the issued shares of the same class in a company, each shareholder will hold and be able to exercise the same level of control or influence over the company, which is likely to be substantial (such as an equal say in the appointment and removal of directors of the company, depending on its nature).

38.         Subsection (3) confers a power to prescribe in the regulations a different percentage, or different percentages, to the 20 per cent control threshold in paragraph (1)(a) or (b). This power is commonly referred to as a ‘Henry VIII clause’ because it allows delegated legislation to modify the operation of an Act.

39.         Exercising this power would entail a minor or technical modification to ensure that the control threshold remains up to date, particularly if the percentage of what is considered to amount to effective control of a titleholder changes, or similar acquisition thresholds in other Commonwealth laws change.

40.         This power will likely be exercised rarely and sparingly. Any such modification will also be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any such modification before it is commences to reduce any potential increase in legislative complexity in having to understand and comply with a modified control threshold that has been prescribed in the regulations.

41.         This power will provide greater flexibility in addressing any potential over or under regulation of transactions that practically amount to a change in control of a titleholder, compared to pursuing a change to the 20 per cent control threshold through an amendment to the OPGGS Act. Prescribing a different percentage or different percentages in the regulations will ensure a modification to the control threshold may be made in a timely, efficient and responsive manner, likely in a significantly shorter timeframe compared with making the changes within the OPGGS Act.

Acts jointly with

42.         A person may act alone or jointly with one or more other persons to control a titleholder. A person acts jointly with another person if the person acts, or is accustomed to acting, in agreement or accordance with the wishes of the other person. This definition captures agreements or practices in which a person acts jointly or in concert with other persons to control a titleholder. Such agreements or practices might include, for example, two or more related bodies corporate or joint venture partners collectively acquiring or disposing of voting rights or issued securities in a titleholder that triggers the definition of a change in control of the titleholder, even if each partner or body individually holds or will hold a percentage of the voting rights or issued securities that is less than 20 per cent.

Change in control

43.         The definition of a change in control of a registered holder of a title defines how one or more persons may begin or cease to control a titleholder. A change in control of a titleholder occurs if one or more persons (described as an original controller) control the titleholder at a particular time and, after that time, either:

a.       one or more other persons begin to control the titleholder, which would involve the acquisition of voting rights or issued securities in the titleholder so that the person or persons (either alone or acting jointly) will begin to hold at least 20 per cent of the voting rights or issued securities, or

b.      the original controller ceases to control the titleholder, which would involve the disposal of voting rights or issued securities in the titleholder so that the person or persons will cease to hold at least 20 per cent of the voting rights or issued securities.

44.         A transaction proposing to effect a change in control of a titleholder may involve persons either beginning or ceasing to control a titleholder, or both. For example:

a.       Entity A holds 100 per cent of the shares in a titleholder, but transfers all of its shares to Entity B. Entity A ceases to control the titleholder and Entity B begins to control the titleholder.

b.      Entity A holds 100 per cent of the shares in a titleholder and wishes to retain control of the titleholder, but transfers 20 per cent of its shares to Entity B. Entity A neither begins nor ceases to control the titleholder for the purposes of Chapter 5A (Entity A retains control), but Entity B begins to control the titleholder.

c.       Entity A and Entity B each hold 50 per cent of the shares in a titleholder. Entity A transfers all of its shares to Entity B. Entity A ceases to control the titleholder, but Entity B neither begins nor ceases to control the titleholder for the purposes of Chapter 5A (Entity B retains control).

45.         If a person controls a titleholder (for example, the person holds 20 per cent or more of the shares in the titleholder) and proposes to increase its shareholding, the person will not be required to apply to the Titles Administrator for approval of that increase. This is because the person already controls the titleholder and therefore there will be no change in control. Similarly, a person who controls a titleholder may dispose of its shares in the titleholder without approval, provided that the person does not cease to control the titleholder by decreasing its shareholding to less than 20 per cent.

Part 5A.2—Application and approval of change in control of a registered holder

Section 566C     Application for approval

46.         This section sets out how a person may apply to the Titles Administrator for the approval of a change in control of a titleholder, including the requirements of applications.

47.         Only persons who propose to begin or cease to control a titleholder may make an application to the Titles Administrator for approval of the change in control of the titleholder. However, similar to an application for the approval of a transfer of a title or a dealing in relation to a title, it is sufficient for just one of the parties to the transaction proposing to effect the change in control to make the application, rather than each party (that is, each person who proposes to begin or cease to control the titleholder). Provided that the change in control has been approved, no one beginning or ceasing to control the titleholder will contravene the requirements in Part 5A.3 of Chapter 5A.

48.         Applications are to be made with respect to each titleholder that will be subject to the change in control, rather than with respect to each title. This means that, even if a titleholder holds more than one title, only one application is required to be made for the approval of the change in control of the titleholder. However, similar to transactions involving multiple transfers or dealings, if a transaction involves a change in control of multiple titleholders, a separate application will be required to be made for the approval of the change in control of each titleholder.

49.         Two notes are included at the end of subsection (1). Note 1 refers the reader to section 566N, which provides that a person who begins or ceases to control a titleholder where the change in control has not been approved by the Titles Administrator may commit an offence or be liable to a civil penalty. Note 2 refers the reader to section 566M, which provides that the application for the approval of a change in control of a titleholder is required to be accompanied by the application fee.

50.         An application for the approval of a change in control of a titleholder must be made in a manner, and be in the form, approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

51.         Enabling the Titles Administrator to approve the manner in which applications must be made enables flexibility for applications to be made electronically, in hardcopy or in some other manner. Subsection (4) provides that, in approving the manner in which applications must be made, the Titles Administrator must publish on its website a copy of the instrument of approval. This instrument will set out the approved manner or manners for applications to enable applicants to comply with the requirement in paragraph (2)(a).

52.         Additionally, providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) has recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

53.         Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision under subsection 566D(2) (that is, a decision whether or not to approve a change in control of a titleholder). The accompanying information or documents required by the form might include, for example, an original instrument or proposed instrument effecting the change in control, a copy of that instrument or proposed instrument, or information or documents with respect to the matters described in subsection 566D(4), including the technical advice and financial resources that will be available to the titleholder after the change in control takes effect (see paragraph 566D(5)(a)).

54.         Subsection (3) specifies a period within which information or documents required to accompany an application made under section 566C will be taken to accompany the application, which is before the end of the 10-day period that began on the day after the application was made. This subsection will provide applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Section 566D     Titles Administrator must decide whether to approve change in control

55.         This section sets out the criteria the Titles Administrator must and may have regard to in deciding whether or not to approve a change in control of a titleholder.

56.         If an application for the approval of a change in control of a titleholder has been made under section 566C, the Titles Administrator must decide whether to approve or refuse to approve the change in control, and notify the applicant of the decision. (See the note at the end of subsection (2), which refers the reader to this requirement to notify of the decision in section 566E.)

57.         In deciding whether or not to approve a change in control, the Titles Administrator must have regard to the matters specified in subsection (5). These matters go to determining whether or not the titleholder is suitable to hold the title after the transaction takes effect. These matters include:

a.       whether the technical advice and financial resources available to the titleholder after the change in control takes effect are sufficient for the titleholder to continue to hold the title or titles, specifically in:

                                               i.      carrying out the operations and works that are authorised by the title or titles held by the titleholder, which may include any conditions of the title, and

                                             ii.      discharging the obligations that are imposed under the OPGGS Act, or a legislative instrument under the OPGGS Act, in relation to that title or those titles, and

b.      if a person will begin to control the titleholder, the matters specified in section 695YB as they apply to the person, including any officers of the person if the person is a body corporate.

58.         The matters specified in section 695YB go to the compliance history and experience in offshore petroleum or GHG operations of the person or persons who will begin controlling the titleholder, and will enable the Titles Administrator to scrutinise the suitability of those who wish to acquire ownership or control of an offshore project through the acquisition of control of the titleholder.

59.         The amendment made by this section aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, including those proposing to acquire or dispose of ownership or control of an offshore project through the acquisition or disposal of control of a titleholder, which in turn will reduce the risk that a possible change in control that will have an adverse impact on the suitability of a titleholder will be approved. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

60.         The Titles Administrator must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to acquire ownership or control of an offshore project through the acquisition of control of the titleholder. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of a person who will begin to control the titleholder.

61.         Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

62.         Subsection (3) also enables the Titles Administrator to consult with the relevant decision-makers and NOPSEMA, and have regard to any matters raised in those consultations in deciding whether to approve or refuse the change in control (see subsection (3) and subparagraph (4)(b)(i)). This criterion will enable the Titles Administrator to take into account matters that are relevant to the decision, but not necessarily within its purview. These matters might include, for example, resource management or resource security considerations, or the titleholder’s compliance history (rather than the compliance history of the person or persons who will begin controlling the titleholder).

63.         The relevant decision-makers for petroleum titles include:

a.       the Joint Authority, which is responsible for the grant, renewal and cancellation of, and the imposition and variation of any conditions of, petroleum titles; and

b.      the responsible Commonwealth Minister, who is able to exercise regulatory powers in relation to resource management and resource security.

64.         The relevant decision-makers for GHG titles include:

a.       the responsible Commonwealth Minister, who is responsible for the grant, renewal and cancellation of, and the imposition and variation of any conditions of, GHG titles; and

b.      the Cross-boundary Authority, who is responsible for the grant and renewal of,  and the imposition and variation of any conditions of, cross-boundary GHG titles.

65.         The Titles Administrator may also take into account any other matters it considers relevant. This criterion ensures that the broad decision-making discretion that currently applies at similar decision points in the OPGGS Act (for example, the grant of a petroleum exploration permit or GHG assessment permit, or the transfer of a petroleum or GHG title) also applies at this decision point.

66.         These amendments will provide the Titles Administrator with administrative discretion to either approve or refuse to approve a change in control under subsection (2), but do not provide for merits review of the Titles Administrator’s decision. This is because decisions allowing access to participate in the offshore resources regime, including through the grant of titles and the imposition of title conditions, and through changes in control of the registered holders of titles, are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Section 566E     Notice of decision

67.         This section provides that the Titles Administrator must give written notice of a decision to either approve or refuse to approve a change in control of a titleholder under subsection 566D(2) to the applicant.

68.         The applicant is the person who will be given notice of the approval or refusal. This means that, if only one of the parties to a transaction proposing to effect a change in control made an application for approval under section 566C and therefore is given notice of the approval or refusal, it will be up to that person to notify the other parties to the transaction (that is, each person proposing to begin or cease controlling the titleholder) of the approval or refusal.

Section 566F     Retention and return of instrument

69.         This section provides that, if an application for the approval of a change in control of a titleholder was accompanied by the original instrument or proposed instrument effecting the change in control, the Titles Administrator must, after making a decision to either approve or refuse to approve the change in control under subsection 566D(2), make and retain a copy of the instrument or proposed instrument, and return the original to the applicant.

Section 566G     Limit of effect of approval

70.         This section clarifies that any approval of a change in control of a titleholder does not give the transaction effecting the change in control any force, effect or validity that it would not otherwise have had if Chapter 5A had not been enacted. The onus is on the parties to a transaction proposing to effect a change in control of a titleholder to ensure the legality of the transaction or proposed transaction and its effect in law (for example, in contract law).

Section 566H     Notification of change in circumstances before or during approval period

71.         A person proposing to begin or cease to control a titleholder is required to notify the Titles Administrator of a material change in circumstances before the Titles Administrator has decided whether to approve or refuse the change in control or, if the change in control has been approved, before the change in control takes effect, otherwise the person may be liable to a civil penalty. Failure to comply is also a ground for cancellation of the title or titles held by the titleholder. Subsection (1) provides that a person will contravene this subsection if:

a.       an application for the approval of a change in control of a titleholder has been made under section 566C; and

b.      the person proposes to begin or cease to control the titleholder; and

c.       there is a change in circumstances in relation to the person that materially affects any of the matters that the Titles Administrator must have regard to under subsection 566D(4); and

d.      the change in circumstances occurs either:

                                              i.            before the Titles Administrator makes a decision under subsection 566D(2); or

                                            ii.            if the change in control is approved, during the approval period for the change in control; and

e.       the person does not notify the Titles Administrator of the change in circumstances as soon as practicable after it occurs.

72.         A material change in circumstances might include, for example, a change to the technical advice or financial resources that will be available to the titleholder if the change in control takes effect, which would have an adverse impact on the titleholder’s ability to comply with its obligations under the OPGGS Act. A change in one or more of the matters specified in section 695YB, might include, for example, if a body corporate that proposes to begin controlling the titleholder becomes insolvent under administration (as defined in the Acts Interpretation Act 1901) or an officer of the body corporate contravenes a directors’ duty in Division 1 of Part 2D.1 of the Corporations Act, or is found guilty of an offence or liable to a civil penalty for fraud or dishonesty.

73.         This notification requirement applies to material changes in circumstances that occur before the change in control takes effect, either before the Titles Administrator makes a decision under subsection 566D(2) or, if the change in control has been approved, during the approval period for the change in control (see paragraph (1)(d)).

74.         Two notes are included at the end of subsection (1). Note 1 refers the reader to subsection 566D(4), which are the matters that the Titles Administrator must have regard to in deciding to either approve or refuse to approve a change in control of a titleholder. Note 2 refers the reader to the relevant cancellation provisions in new paragraphs 274(e) and 446(da) because a contravention of subsection (1) is a ground to cancel the title or titles held by the titleholder.

75.         Subsection (2) provides that, if a person contravenes this notification requirement (that is, the person does not notify the Titles Administrator of a material change in circumstances as soon as practicable after it occurs), the person will be liable to a civil penalty. The maximum civil penalty for an individual will be a fine of 480 penalty units. The maximum civil penalty for a body corporate will be a fine of 2,400 penalty units because of the body corporate multiplier rule in paragraph 82(5)(a) of the Regulatory Powers Act.

76.         Along with the ground to cancel the title or titles held by the titleholder, the civil penalty provision is intended to deter a person proposing to begin or cease controlling a titleholder from failing to notify the Titles Administrator of a material change in circumstances. It is necessary for the Titles Administrator to be made aware of any matters that may affect the ability of the titleholder to remain suitable to hold the title so that the Titles Administrator may take appropriate action, particularly before it becomes too late to do so (that is, before the change in control takes effect). These actions might include, for example, obtaining further information or documents from the person or other persons (such as the titleholder), refusing to approve the change in control under paragraph 566D(2)(b) or, if the Titles Administrator has approved the change in control, revoking the approval under section 566J.

Section 566J      Revocation of approval

77.         This section enables the Titles Administrator to revoke an approval of a change in control of a titleholder during the nine-month approval period (see the definition of approval period in section 566A), provided that the grounds provided for in paragraphs (1)(a) and (b) are met.

78.         If there has been a change in the circumstances of a person who is approved to begin or cease controlling a titleholder and the Titles Administrator considers it appropriate to revoke the approval, the Titles Administrator may revoke the approval. Such a change in circumstance might include, for example, a change in circumstances that materially affects any of the matters that the Titles Administrator must have regard to under subsection 566D(4) (see paragraph 566H(1)(c)), which go to ensuring that the titleholder will remain suitable to hold the relevant title or titles if the change in control takes effect.

79.         It is necessary for the Titles Administrator to have the ability to revoke an approval of a change in control of a titleholder if it considers that it is appropriate to ensuring that the titleholder remains suitable to hold the relevant title or titles, including if there is a risk that the titleholder may suffer financial distress if the change in control takes effect.

80.         Subsection (2) provides that, if the Titles Administrator revokes an approval of a change in control of a titleholder under subsection (1), the Titles Administrator must give written notice of the revocation to the person or persons given notice of the approval.

81.         The person who was given notice of the approval under subsection 566E(1) will be given notice of the revocation. This means that, if only one of the parties to a transaction or proposed transaction effecting a change in control is given notice of the revocation, it will be up to that person to notify the other parties to the transaction or proposed transaction (that is, each person proposing to begin or cease controlling the titleholder) of the revocation.

82.         This amendment will provide the Titles Administrator with administrative discretion to revoke an approval of a change in control under subsection (1), but does not provide for merits review of the Titles Administrator’s decision. This is because decisions allowing or refusing access to participate in the offshore resources regime, including through the grant of titles and the imposition of title conditions, and through changes in control of the registered holders of titles, are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Section 566K     Notification of change in control

83.         A person who was given notice of an approval of a change in control of a titleholder is required to notify the Titles Administrator if the change in control takes effect within the approval period, otherwise the person may be liable to a civil penalty.

84.         Subsection (1) provides that a person will contravene this subsection if:

a.       the Titles Administrator approves a change in control of a titleholder under paragraph 566D(2)(a); and

b.      the change in control takes effect within the approval period (see the definition of approval period in section 566A); and

c.       the person given notice of the approval of the change in control of the titleholder under subsection 566E(1) does not notify the Titles Administrator that the change in control has taken effect within 10 days after the end of the approval period (that is, within 10 days after the change in control took effect).

85.         (For the rationale for this nine-month approval period, see the notes on section 566A in relation to the definition of approval period.)

86.         Subsection (2) provides that, if a person contravenes this notification requirement (that is, a person who was given a notice of approval under subsection 566E(1) does not notify the Titles Administrator that the change in control has taken effect), the person will be liable to a civil penalty. The maximum civil penalty for an individual will be a fine of 480 penalty units. The maximum civil penalty for a body corporate will be a fine of 2,400 penalty units because of the body corporate multiplier rule in paragraph 82(5)(a) of the Regulatory Powers Act.

87.         Subsection (2) is also a continuing civil penalty provision under section 93 of the Regulatory Powers Act (see the note at the end of subsection (3)). That Act provides that a person who contravenes a civil penalty provision that requires an act or thing to be done within a particular period commits a separate contravention of that provision in respect of each day during which the contravention occurs. Subsection (3) provides that the maximum civil penalty for each day that a contravention of subsection (2) continues is 10 per cent of the maximum civil penalty that can be imposed in respect of that contravention (that is, 10 per cent of the maximum fine of 480 penalty units for an individual and 2,400 penalty units for a body corporate).

88.         The continuing civil penalty provision is intended to provide sufficient deterrence to a person who was given a notice of approval under subsection 566E(1) from failing to notify the Titles Administrator that the change in control has taken effect.

89.         It is necessary for the Titles Administrator to be made aware of each change in control of a titleholder that has taken effect to enable it to take appropriate action, which may include, for example:

a.       entering the change in control information in the relevant Register on the memorial relating to the title or titles held by the titleholder, or a copy of that title or those titles;

b.      obtaining information, documents or evidence from the person or other persons (such as the titleholder) under section 566R;

c.       notifying NOPSEMA that the titleholder was subject to a change in control to trigger any requisite compliance monitoring or enforcement.

Section 566L     Change in control information to be entered in Register

90.         This section provides that, if the Titles Administrator is notified that a change in control of a titleholder has taken effect, the Titles Administrator must make a notation of the matters set out in subsection (2) in the relevant Register on the memorial relating to the title or titles held by the titleholder, or a copy of that title or those titles.

91.         The Titles Administrator may be notified that a change in control of a titleholder has taken effect, whether or not the change in control has been approved. For example, the parties to a transaction effecting a change in control are required to notify the Titles Administrator that the change in control has taken effect in compliance with either:

a.       section 566K—if the change in control has been approved and it takes effect, the parties are required to notify the Titles Administrator that the change in control has taken effect within 10 days of it taking effect; or

b.      section 566P—if the change in control has not been approved but it takes effect, or if it has been approved but takes effect after the end of the approval period, the parties are required to notify the Titles Administrator that the change in control has taken effect within 30 days of it taking effect.

92.         If a change in control has not been approved but it takes effect, or if it has been approved but takes effect after the end of the approval period, the titleholder is also required to notify the Titles Administrator that the change in control has taken effect within 30 days of the change in control taking effect, otherwise the titleholder may liable to a civil penalty (see section 566Q).

93.         If the Titles Administrator is notified that a change in control has taken effect, the matters that must be notated on the memorial or memorials in the relevant Register include the date of the application (if any) made under section 566C, the date of the decision (if any) made under subsection 566D(2) and the date the change in control took effect.

94.         The Titles Administrator may make any other such notation in the relevant Register that it considers appropriate. This may include, for example, that a change in control of a titleholder that has not been approved took effect.

Section 566M    Application fee

95.         This section provides for the requirement that an application for the approval of a change in control of a titleholder made under section 566C must be accompanied by the application fee (if any) prescribed in the regulations. The purpose of imposing an application fee is to enable the Titles Administrator, which is a fully cost-recovered entity, to recover the costs it will incur in relation to the assessment of the application. Prescribing the amount payable in the regulations enables this amount to change from time to time in line with the actual costs incurred by the Titles Administrator.

96.         Subsection (2) provides that the application fee (if any) must not be such as to amount to taxation to ensure that the imposition of the application fee is not unconstitutional.

97.         Subsection (3) provides that an application made under section 566C is taken to be accompanied by the application fee if the application fee is received by the Titles Administrator before the end of the 10-day period that began on the day after the application was made. This provides applicants with flexibility in paying an application fee and reflects the reality that payments may take several days for the proceeds to clear, whether by a cheque, a credit card payment, direct deposit via electronic funds transfer or some other means. Specifying a period within which an application fee is required to be paid ensures applications are made within a reasonable period.

Part 5A.3—Change in control must be approved

Section 566N     Change in control must be approved by Titles Administrator

98.         This section requires a change in control of a titleholder to be approved by the Titles Administrator before it takes effect, otherwise those who begin or cease to control the titleholder will be subject to an offence or a civil penalty provision under subsections (2) and (3) respectively. A failure to comply with this section is also a ground for the cancellation of the title or titles held by the titleholder.

99.         The purpose of these sanctions is to influence a change in behaviour in the industry to ensure that obtaining the Titles Administrator’s approval of the change in control is included as a condition to which a transaction proposing to effect a change in control of a titleholder is subject.

100.     Subsection (1) provides that a person contravenes this subsection if:

a.       there is a change in control of a titleholder; and

b.      the person begins or ceases to control the titleholder; and

c.       either:

                                               i.      the Titles Administrator has not approved the change in control; or

                                             ii.      the Titles Administrator has approved the change in control, but the change in control took effect after the end of the approval period for the change in control.

101.     A note is included at the end of subsection (1) that refers the reader to the relevant cancellation provisions in new paragraphs 274(e) and 446(da) because a contravention of subsection (1) is a ground to cancel the title or titles held by the titleholder.

102.     Subsection (2) provides that, if a person contravenes subsection (1), the person will commit a fault-based offence. The offence is subject to a maximum criminal penalty of five years imprisonment or a fine of 1,200 penalty units, or both, for an individual. The maximum criminal penalty for a body corporate will be a fine of 6,000 penalty units because of the body corporate multiplier rule for an offence that imposes a pecuniary penalty in subsection 4B(3) of the Crimes Act.

103.     The physical elements of the offence do not specify fault elements, which means that the default fault elements under section 5.6 of the Criminal Code apply.

104.     Subsection (3) provides that, if a person contravenes subsection (1), the person will be liable to a civil penalty. The maximum civil penalty for an individual will be a fine of 2,400 penalty units. The maximum civil penalty for a body corporate will be a fine of 12,000 penalty units because of the body corporate multiplier rule in paragraph 82(5)(a) of the Regulatory Powers Act.

105.     The rationale for the amount of these penalties includes:

a.       The maximum criminal penalty of five years imprisonment for an individual is the same penalty for an individual for carrying out unauthorised petroleum exploration or recovery in an offshore area under sections 97 or 160, or unauthorised exploration for a GHG storage formation or injection site or GHG injection or storage in an offshore area under sections 289 or 356.

b.      The maximum criminal penalty of a fine of 6,000 penalty units for a body corporate is the same penalty for a corporation for an unauthorised takeover under subsection 606(4A) of the Corporations Act.

c.       The maximum civil penalties of a fine of 2,400 penalty units for an individual and a fine of 12,000 penalty units for a body corporate are double the amount of the maximum criminal penalties. This is to ensure that the penalties act as a deterrent for non-compliance, particularly for companies, and recognises that being found liable to a civil penalty does not attract imprisonment or a criminal conviction.

106.     The penalties for the fault-based offence and the civil penalty provision reflect the consequences that beginning or ceasing to control a titleholder without approval may have on the suitability of the titleholder to remain in the offshore resources regime, and therefore the severity of these penalties (along with the grounds to cancel the title or titles held by the titleholder) aims to deter non-compliance with subsection (1). These consequences may include a potential adverse impact on the technical advice or financial resources available to the titleholder to carry out its activities in the title area or areas and comply with legislative requirements, including decommissioning. Conduct that contravenes these penalty provisions may cause the titleholder to experience significant financial distress and, as a consequence, result in the titleholder becoming insolvent and abandoning its title or titles. This in turn may cascade into other adverse impacts, particularly in increasing the risks that abandoning the management or control of an offshore facility poses to the safety of its crew and the surrounding marine environment.

107.     While the severity of these penalties reflect the seriousness of any potential non-compliance, these amounts are lower than the highest penalty provided for in the OPGGS Act, which is a fine of 3,500 penalty units for an individual, and 17,500 penalty units for a body corporate, for recklessly breaching an occupational health and safety duty (see clause 16B of Schedule 3 to the Act).

108.     Subsection (4) provides a defence for the civil penalty provision in subsection (3) if the person did not know, and could not reasonably be expected to have known, that the person begun to control or ceased to control the titleholder. This defence is intended to protect those who may be reasonably ignorant of the fact that, as a result of a transaction, they have begun or ceased to control a registered holder of a title for the purposes of the OPGGS Act, particularly because of the application of the tracing provision under section 566Z.

109.     The tracing provision enables a change in control of a titleholder to be traced to a change in control of the corporations, trusts or partnerships who control the titleholder. Depending on the structure of the corporate group, certain foreign persons and entities caught by the tracing provision may be reasonably ignorant of the fact that acquiring or disposing of the shares in a corporation, or the interests in a trust or partnership, ‘trickles down’ to a change in control of a titleholder.

110.     A note is included at the end of subsection (4) that refers the reader to section 96 of the Regulatory Powers Act, which provides that a person who wishes to rely on subsection (4) in proceedings for a civil penalty order bears an evidential burden in relation to that matter. The defendant will therefore bear an evidential burden in relation to the question whether they did not know, and could not reasonably be expected to have known, that they began or ceased to control a registered holder of a title for the purposes of the OPGGS Act.

111.     The burden of proof is reversed because the matter is likely to be exclusively within the knowledge of the defendant, and it would be significantly more costly or difficult for the Titles Administrator (as an authorised applicant for the purposes of enforcing this civil penalty) to disprove than the defendant to establish (see item 38 of Part 2 of Schedule 1 of the Bill).

Section 566P     Notification of change in control that takes effect without approval

112.     This section requires a person who has begun or ceased to control a titleholder without approval, or after the end of the approval period, to notify the Titles Administrator that the change in control took effect, otherwise the person will be subject to the continuing civil penalty provision under subsection (2). A contravention of this section is also grounds for the cancellation of the title or titles held by the titleholder.

113.     The purpose of these sanctions is to compel a person who has begun or ceased to control a titleholder without approval, or after the end of the approval period, to notify the Titles Administrator so that it can be made aware of the change in control and to enable it to take appropriate action. These actions may include, for example:

a.       obtaining information, documents or evidence from the person or other persons (such as the titleholder) under section 566R;

b.      notifying NOPSEMA that the titleholder was subject to a change in control to trigger any requisite compliance monitoring or enforcement.

114.     Subsection (1) provides that a person contravenes this subsection if:

a.       there is a change in control of a registered holder of a title; and

b.      the person begins or ceases to control the registered holder; and

c.       either:

                                               i.      the Titles Administrator has not approved the change in control; or

                                             ii.      the Titles Administrator has approved the change in control, but the change in control took effect after the end of the approval period for the change in control; and

d.      the person does not notify the Titles Administrator of the change in control within 30 days of the change in control taking effect.

115.     Even if the 30-day notification period provided for in paragraph (1)(d) has expired, the requirement to notify continues, and therefore is not discharged until the person notifies the Titles Administrator of the change in control (see subsection 93(1) of the Regulatory Powers Act).

116.     A note is included at the end of subsection (1) that refers the reader to the relevant cancellation provisions in new paragraphs 274(e) and 446(da) because a contravention of subsection (1) is a ground to cancel the title or titles held by the titleholder.

117.     Subsection (2) provides that, if a person contravenes subsection (1), the person will be liable to a civil penalty. The maximum civil penalty for an individual will be a fine of 480 penalty units. The maximum civil penalty for a body corporate will be a fine of 2,400 penalty units because of the body corporate multiplier rule in paragraph 82(5)(a) of the Regulatory Powers Act.

118.     The rationale for the amount of this penalty is that a fine of 2,400 penalty units for a body corporate is the same penalty for a failure of a financial services licensee that is a corporation to notify the Australian Securities and Investments Commission of a breach of the financial services law under subsection 912D(1B) of the Corporations Act.

119.     Subsection (2) is also a continuing civil penalty provision under section 93 of the Regulatory Powers Act (see the note at the end of subsection (3)). That Act provides that a person who contravenes a civil penalty provision that requires an act or thing to be done within a particular period commits a separate contravention of that provision in respect of each day during which the contravention occurs. Subsection (3) provides that the maximum civil penalty for each day that a contravention of subsection (2) continues is 10 per cent of the maximum civil penalty that can be imposed in respect of that contravention (that is, 10 per cent of the maximum fine of 480 units for an individual and 2,400 penalty units for a body corporate).

120.     The continuing civil penalty provision is intended to provide a sufficient deterrent for a person who has begun or ceased to control a titleholder without approval, or after the approval period has ended, from failing to notify the Titles Administrator that the change in control took effect.

121.     Subsection (4) provides a defence for the civil penalty provision in subsection (2) if the person did not know, and could not reasonably be expected to have known, that the person begun to control or ceased to control the titleholder. This defence is intended to protect those who may be reasonably ignorant of the fact that, as a result of a transaction, they have begun or ceased to control a registered holder of a title for the purposes of the OPGGS Act, particularly because of the application of the tracing provision under section 566Z.

122.     The tracing provision enables a change in control of a titleholder to be traced to a change in control of the corporations, trusts or partnerships who control the titleholder. Depending on the structure of the corporate group, certain foreign persons and entities caught by the tracing provision may be reasonably ignorant of the fact that acquiring or disposing of the shares in a corporations, or the interests in a trust or partnership, ‘trickles down’ to a change in control of a titleholder.

123.     A note is included at the end of subsection (4) that refers the reader to section 96 of the Regulatory Powers Act, which provides that a person who wishes to rely on subsection (4) in proceedings for a civil penalty order bears an evidential burden in relation to that matter. The defendant will therefore bear an evidential burden in relation to the question whether they did not know, and could not reasonably be expected to have known, that they began or ceased to control a registered holder of a title for the purposes of the OPGGS Act.

124.     The burden of proof is reversed because the matter is likely to be exclusively within the knowledge of the defendant, and it would be significantly more costly or difficult for the Titles Administrator (as an authorised applicant for the purposes of enforcing this civil penalty) to disprove than the defendant to establish (see item 38 of Part 2 of Schedule 1 to the Bill).

Section 566Q     Notification of change in control by registered holder

125.     This section requires a titleholder who was subject to a change in control that has not been approved, or that took effect after the end of the approval period, to notify the Titles Administrator that the change in control took effect within 30 days of the change in control taking effect, otherwise the titleholder will be subject to the civil penalty provision under subsection (2).

126.     The purpose of this sanction is to compel the titleholder that was subject to a change in control that has not been approved, or that took effect after the end of the approval period, to notify the Titles Administrator so that it can be made aware of the change in control, particularly if those who have begun or ceased to control the titleholder have failed to do so in contravention of section 566P, and thereby enable the Titles Administrator to take appropriate action. These actions may include, for example:

a.       obtaining information, documents or evidence from the person or other persons (such as the titleholder) under section 566R;

b.      notifying NOPSEMA that the titleholder was subject to a change in control to trigger any requisite compliance monitoring or enforcement.

127.     Subsection (1) provides that a registered holder of a title contravenes this subsection if:

a.       there is a change in control of the registered holder; and

b.      either:

                                               i.      the Titles Administrator has not approved the change in control; or

                                             ii.      the Titles Administrator has approved the change in control, but the change in control took effect after the end of the approval period for the change in control; and

c.       the registered holder knows or ought reasonably to know the change in control has taken effect; and

d.      the registered holder does not notify the Titles Administrator of the change in control within 30 days of the change in control taking effect.

128.     Paragraph (1)(c) is intended to protect a titleholder that may be reasonably ignorant of the fact that it was subject to a change in control that has not been approved, or that took effect after the approval period, particularly because of the application of the tracing provision under section 566Z. Contrary to the defences in subsections 566N(4) and 566P(4) though, this element of the civil penalty provision does not reverse the evidential burden of proof and place it on the defendant.

129.     The tracing provision enables a change in control of a titleholder to be traced to a change in control of the corporations, trusts or partnerships who control the titleholder. Depending on the structure of the corporate group, a change in control of an entity may be caught by the tracing provision because it ‘trickles down’ to a change in control of a titleholder, and the titleholder may be unaware of the fact that it was subject to the change in control.

130.     Subsection (2) provides that, if a person contravenes subsection (1), the person will be liable to a civil penalty. The maximum civil penalty for an individual will be a fine of 480 penalty units. The maximum civil penalty for a body corporate will be a fine of 2,400 penalty units because of the body corporate multiplier rule in paragraph 82(5)(a) of the Regulatory Powers Act.

131.     Subsection (3) provides that subsection 93(2) of the Regulatory Powers Act does not apply in relation to a contravention of subsection (2), which clarifies that subsection (2) is not a continuing civil penalty provision. Despite this, even if the 30-day notification period provided for in paragraph (1)(d) has expired, the requirement to notify continues (and therefore is not discharged) until the person notifies the Titles Administrator of the change in control (see subsection 93(1) of the Regulatory Powers Act).

Part 5A.4—Information-gathering powers

Section 566R     Titles Administrator may obtain information and documents

132.     This section empowers the Titles Administrator to require information, documents and evidence in relation to changes in control of titleholders, including possible changes in control. These powers are intended to ensure that the Titles Administrator has the ability to obtain any information or documents relevant for the proper administration of Chapter 5A, including (but not limited to):

a.       determining whether or not a change in control has taken effect, regardless of whether or not the change in control has been approved;

b.      obtaining further information or documents in relation to applications made under section 566C for the approval of a change in control of a titleholder; and

c.       determining whether or not there has been a change in the circumstances of a person approved to begin or cease controlling a titleholder.

133.     This section mirrors sections 699 and 725 of the OPGGS Act, which provide the Titles Administrator and NOPSEMA inspectors with general information-gathering powers in relation to the administration of petroleum and GHG titles respectively.

134.     Subsection (1) sets out the scope of these powers to enable the Titles Administrator to require information, documents or evidence. This section will apply if:

a.       any one of the following matters applies:

                                          i.      the Titles Administrator believes on reasonable grounds that there has been, or that there will be, a change in control of a titleholder;

                                        ii.      an application is made under section 566C for the approval of a change in control of a titleholder;

                                      iii.      the approval period for the change in control of a titleholder has not ended and the Titles Administrator believes on reasonable grounds that there has been, or will be, a change in the circumstances of a person approved to begin or cease to control the titleholder, which may include, for example, a material change in circumstances; and

b.      the Titles Administrator believes on reasonable grounds that a person has information or a document, or is capable of giving evidence, that is relevant to any one of the matters specified in subparagraphs (1)(a)(i), (ii) or (iii).

135.     Subsection (2) provides that the Titles Administrator may, by written notice given to the person, require the person:

a.       to give the Titles Administrator any such information, within the period and in the manner specified in the notice;

b.      to produce to the Titles Administrator any such documents, within the period and in the manner specified in the notice;

c.       if the person is an individual, to appear before the Titles Administrator to given any such evidence, either orally or in writing, and produce any such documents, at a time and place specified in the notice;

d.      if the person is a body corporate, to cause a competent officer of the body to appear before the Titles Administrator to give any such evidence, either orally or in writing, and produce any such documents, at a time and place specified in the notice.

136.     Subsections (3) and (4) provide that the period specified in the notice in relation to complying with the requirement to give any such information or evidence, or produce any such documents, must not be shorter than 14 days after the notice is given. This is intended to provide a person subject to this requirement a reasonable period within which to comply. Depending on the circumstances, a person or a corporation may need to examine a large quantity of records to identify the information or evidence required to be given or documents required to be produced under such a notice.

137.     Subsection (5) provides that, if a person is subject to a requirement under subsection (2) and the person fails to comply with the requirement, the person contravenes subsection (5).

138.     Subsection (6) provides that, if a person contravenes subsection (5), the person will commit a fault-based offence. The maximum criminal penalty for an individual will be a fine of 100 penalty units. The maximum criminal penalty for a body corporate will be a fine of 500 penalty units because of the body corporate multiplier rule for an offence that imposes a pecuniary penalty in subsection 4B(3) of the Crimes Act.

139.     The physical elements of the offence do not specify fault elements, which means that the default fault elements under section 5.6 of the Criminal Code apply.

140.     Subsection (6) is also a continuing offence under section 4K of the Crimes Act, but only to the extent that a notice given under subsection (2) required information to be given or documents to be produced under paragraphs (2)(a) or (b) (see the note at the end of subsection (8), including the reference to subsection (10)). That Act provides that a person who contravenes an offence provision that requires an act or thing to be done within a particular period or before a particular time commits a separate contravention of that provision in respect of each day during which the contravention occurs. Subsection (8) provides that the maximum criminal penalty for each day that a contravention of subsection (6) continues is 10 per cent of the maximum criminal penalty that can be imposed in respect of that contravention (that is, 10 per cent of the maximum fine of 100 units for an individual and 500 penalty units for a body corporate).

141.     The continuing offence is intended to provide a sufficient deterrent for a person from failing to comply with the requirement to give information or produce documents in relation to a change in control of a titleholder, including a possible change in control.

142.     Subsection (7) provides that, if a person contravenes subsection (5), the person will be liable to a civil penalty. The maximum civil penalty for an individual will be a fine of 150 penalty units. The maximum civil penalty for a body corporate will be a fine of 750 penalty units because of the body corporate multiplier rule in paragraph 82(5)(a) of the Regulatory Powers Act.

143.     Subsection (7) is also a continuing civil penalty provision under section 93 of the Regulatory Powers Act, but only to the extent that a notice given under subsection (2) required information to be given or documents to be produced under paragraphs (2)(a) or (b) (see the note at the end of subsection (9), including the reference to subsection (10)). That Act provides that a person who contravenes a civil penalty provision that requires an act or thing to be done within a particular period or before a particular time commits a separate contravention of that provision in respect of each day during which the contravention occurs. Subsection (9) provides that the maximum civil penalty for each day that a contravention of subsection (7) continues is 10 per cent of the maximum civil penalty that can be imposed in respect of that contravention (that is, 10 per cent of the maximum fine of 150 penalty units for an individual and 750 penalty units for a body corporate).

144.     The continuing civil penalty provision is intended to provide a sufficient deterrent for a person from failing to comply with the requirement to give information or produce documents in relation to a change in control of a titleholder, including a possible change in control.

145.     The amounts of these criminal and civil penalties mirror those provided in subsections 699(5) to (5D) and 725(5).

146.     Subsection (11) requires a notice given under subsection (2) to set out the effect of the relevant penalty provisions in Part 5A.4. These provisions include:

a.       the fault-based offence in subsection (6) for failing to comply with a requirement to give the information or evidence, or produce the documents, required by a notice given under subsection (2), including the fact that it is a continuing offence under subsection (8);

b.      the civil penalty provision in subsection (7) for failing to comply with a requirement to give the information or evidence, or produce the documents, required by a notice given under subsection (2), including the fact that it is a continuing civil penalty provision under subsection (9);

c.       the offence in section 566W for knowingly giving false or misleading information;

d.      the offence in section 566X for knowingly producing false or misleading documents; and

e.       the offence in section 566Y for knowingly giving false or misleading evidence.

147.     Requiring a notice given under subsection (2) to include all relevant details, including the consequences of non-compliance, will ensure that a person who has been given a notice is aware of their legal rights and obligations in relation to the notice.

Section 566S     Power to examine on oath or affirmation

148.     This section provides that, if a person is required to appear before the Titles Administrator under section 566R, including in relation to complying with a notice that requires the person to give evidence or produce documents under paragraphs 566R(2)(c) or (d), the Titles Administrator is able to administer an oath or affirmation to the person, and examine that person on oath or affirmation. This section mirrors sections 701 and 727 of the OPGGS Act.

149.     Examining a person on oath or affirmation may be appropriate, for example, in the course of determining whether or not a change in control has taken effect, regardless of whether or not the change in control has been approved, to ascertain whether someone has contravened a penalty provision in Part 5A.3 or 5A.4 of Chapter 5A.

Section 566T     Self-incrimination

150.     This section provides that the common law privilege against self-incrimination will be overridden where information or evidence is required to be given or a document is required to be produced under section 566R. This section mirrors sections 702 and 728 of the OPGGS Act.

151.     Subsections (1) and (3) provide that an individual is not excused from giving information or evidence, or producing a document, under section 566R on the ground that the information or evidence, or the production of the document, might tend to incriminate the individual in relation to an offence or a penalty (other than a penalty for an offence) at general law.

152.     However, subsection (2) provides a ‘use and derivative use’ immunity provision, which affords some protection for the individual by constraining the use of any self-incriminating evidence. Specifically:

a.       the information or evidence given, or the document produced;

b.      the giving of the information or evidence or production of the document; and

c.       any information, document or thing obtained as a direct or indirect consequence of the giving of the information or evidence, or the production of the document;

are not admissible in evidence against the individual in any criminal proceedings, except proceedings for an offence against subsection 566R(6) (failing to comply with a notice given under section 566R) or sections 566W, 566X or 566Y (providing false or misleading information, documents or evidence), or proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to Part 5A.4 of Chapter 5A (providing false or misleading information or documents).

153.     The effect of this section is that an individual must provide the information, evidence or documents, but neither the information, documents or evidence, nor any information, document or thing derived from those things, can be used as evidence against the person in criminal proceedings, including for an offence against a provision of the OPGGS Act, except if it relates to the provision of false or misleading information, documents or evidence.

154.     Overriding the privilege against self-incrimination is necessary and appropriate to ensure the proper administration of Chapter 5A, particularly in determining whether a change in control that has not been approved took effect. The use of the privilege against self-incrimination might prevent the collection of honest, correct and complete information in relation to changes in control of titleholders, including possible changes in control, and thereby seriously undermine the effectiveness of the offshore regime. Where matters relating to the effective oversight of changes in control are concerned, there will be occasions where it is more important to establish the facts than to be able use the facts in a prosecution of an offence.

155.     The exception for proceedings in relation to an offence against subsection 566R(6), sections 566W, 566X or 566Y, or the specified sections of the Criminal Code is intended to provide an effective deterrent to individuals who may provide false or misleading information, documents or evidence.

156.     The notes under subsections (1) and (3) clarify that bodies corporate are not entitled to claim the privilege against self-incrimination, however the directors and other officers of a corporation are able to claim the privilege in their own right where the disclosure of information would tend to incriminate the director or the officer personally.

Section 566U     Copies of documents

157.     This section provides that, if a person is required to produce documents under Part 5A.4, including in relation to complying with a notice that requires the person to produce a document under paragraph (2)(b) or subparagraph (2)(c)(ii) or (2)(d)(ii), the Titles Administrator is able to inspect the document, and make and retain copies of, or extracts from, such a document. This section mirrors sections 703 and 729 of the OPGGS Act, and supports the proper administration of Chapter 5A by enabling the Titles Administrator to make and retain copies of relevant documents for further consideration.

Section 566V     Titles Administrator may retain documents

158.     Subsection (1) provides that, if a person is required to produce a document under Part 5A.4, including in relation to complying with a notice that requires the person to produce a document under paragraph (2)(b) or subparagraph (2)(c)(ii) or (2)(d)(ii), the Titles Administrator is able to take possession of the document and retain it for as long as is reasonably necessary. This section mirrors sections 704 and 730 of the OPGGS Act, and supports the proper administration of Chapter 5A by enabling the Titles Administrator to possess and retain relevant documents for further consideration.

159.     If the Titles Administrator takes possession of a document produced under Part 5A.4 and a person is otherwise entitled to possession of the document, subsection (2) provides that the person is entitled to be supplied, as soon as reasonably practicable, with a copy certified by the Titles Administrator to be a true copy. Until the certified copy is supplied under subsection (2), subsection (4) provides that the Titles Administrator must provide the person who is otherwise entitled to possession of the document, or persons authorised by that person, reasonable access to the document for the purposes of inspecting and making copies of, or taking extracts from, the document.

160.     Subsection (3) provides that the certified copy must be received in all courts and tribunals as evidence as if it were the original.

Section 566W    False or misleading information

161.     This section makes it an offence to knowingly provide false or misleading information in relation to complying with a notice that requires the person to give information under subsection 566R(2). This section is intended to deter the provision of false or misleading information in relation to changes in control of titleholders, including possible changes in control.

162.     Specifically, a person commits an offence if:

a.       the person gives information in compliance or purported compliance with subsection 566R(2); and

b.      the person does so knowing that the information:

                                               i.      is false or misleading in a material particular; or

                                             ii.      omits any matter or thing without which the information is misleading in a material particular.

163.     The note included in this section clarifies that the same conduct may be an offence against both this section and section 137.1 of the Criminal Code.

164.     If a person is found guilty of the offence, the maximum criminal penalty will be a fine of 100 penalty units for an individual or a fine of 500 penalty units for a body corporate because of the body corporate multiplier rule for an offence that imposes a pecuniary penalty in subsection 4B(3) of the Crimes Act.

165.     This penalty amount mirrors those provided in sections 705 and 731.

Section 566X     False or misleading documents

166.     This section makes it an offence to knowingly produce a false or misleading document in relation to complying with a notice that requires the person to produce a document under subsection 566R(2). This section is intended to deter the production of false or misleading documents in relation to changes in control of titleholders, including possible changes in control.

167.     Specifically, a person commits an offence if:

a.       the person produces a document in compliance or purported compliance with subsection 566R(2); and

b.      the person does so knowing that the document is false or misleading in a material particular.

168.     The note included in this section clarifies that the same conduct may be an offence against both this section and section 137.2 of the Criminal Code.

169.     If a person is found guilty of the offence, the maximum criminal penalty will be a fine of 100 penalty units for an individual or a fine of 500 penalty units for a body corporate because of the body corporate multiplier rule for an offence that imposes a pecuniary penalty in subsection 4B(3) of the Crimes Act.

170.     This penalty amount mirrors those provided in sections 706 and 732.

Section 566Y     False or misleading evidence

171.     This section makes it an offence to knowingly give false or misleading evidence in relation to complying with a notice that requires the person to give evidence under subsection 566R(2). This section is intended to deter the giving of false or misleading evidence in relation to changes in control of titleholders, including possible changes in control.

172.     Specifically, a person commits an offence if:

a.       the person gives evidence in compliance or purported compliance with subsection 566R(2); and

b.      the person does so knowing that the evidence is false or misleading in a material particular.

173.     If a person is found guilty of the offence, the maximum criminal penalty will be 12 months imprisonment for an individual. This penalty may be converted into a fine of 60 penalty units for an individual because of subsection 4B(2) of the Crimes Act, or is converted into a fine of 500 penalty units for a body corporate because of the body corporate multiplier rule for an offence that imposes a pecuniary penalty in subsection 4B(3) of the Crimes Act.

174.     This penalty mirrors those provided in sections 707 and 733.

Part 5A.5—Tracing and anti-avoidance

Section 566Z     Tracing

175.     This section provides for a tracing provision, which enables a change in control of a titleholder to be traced to a change in control of the companies, trusts or partnerships which control the titleholder.

176.     The purpose of doing so is twofold. The tracing provision is intended to provide for government oversight of changes in control of titleholders that involve a change to the ‘real owners’ of titleholders, which may be companies or other types of entities that are not an immediate holder of the titleholder (such as an immediate holding company). It also aims to prevent perverse behaviours as a consequence of only providing for oversight of changes in relation to the immediate holders of the titleholder, including, for example, setting up a shell company or companies to avoid the increased government oversight provided for in Chapter 5A.

177.     If a person, whether alone or together with one or more other persons that the person acts jointly with (as defined in subsection 566B(2)):

a.       holds 20 per cent or more of the relevant rights or interests in a higher party (as described in paragraphs (1)(a), (b) and (c)); and

b.      the higher party holds 20 per cent or more of the relevant rights or interests in a lower party (as described in paragraphs (1)(d), (e) and (f));

subsection (4) deems that the person holds the same level of rights or interests in the lower party as the higher party holds. Therefore, if the lower party is a titleholder, the person is deemed to ‘control’ the titleholder for the purposes of subsection 566B(1). Subsection 566B(1) defines control for the purposes of a change in control of a titleholder.

178.     This in turn means that, if a higher party ‘controls’ a lower party by holding 20 per cent or more of the relevant rights or interests in the lower party (as described in paragraphs (1)(d), (e) and (f)), and a person proposes to begin or cease to control the higher party by beginning or ceasing to:

a.       hold the power to exercise, or control the exercise of, 20 per cent or more of the voting rights in a corporation or a partnership (in which case the corporation or a general partner of the partnership is the higher party);

b.      hold, or hold an interest in, 20 per cent or more of the issued securities in a corporation (in which case the corporation is the higher party);

c.       hold 20 per cent or more of the interests in a trust or a partnership (in which case a trustee of the trust or a general partner of the partnership is the higher party);

the person is deemed to be proposing to begin or cease to control a titleholder for the purposes of Chapter 5A.

179.     The person, in proposing to begin or cease controlling the titleholder by virtue of the tracing provision, will therefore be eligible to make an application for the approval of the change in control of the titleholder under section 566C and be subject to the relevant penalty provisions in Part 5A.3. If the change in control takes effect without approval, the person may commit an offence or be liable to a civil penalty. The title or titles held by the titleholder may also be cancelled.

180.     The tracing provision may be applied multiple times so that a change in control of a titleholder may be traced to a change in control of a higher party, regardless of how ‘high up’ in the corporate group the higher party is (see the wording in subsection (1) after subparagraph (1)(c)(ii)).

181.     The terms ‘voting rights’ and ‘issued securities’ are not defined, which means the ordinary meaning of these terms apply. Despite this, these terms reflect, but do not necessarily rely on, similar concepts in other Commonwealth laws, notably:

a.       the definitions of ‘voting power’ in a body corporate in section 610 of the Corporations Act and ‘voting power’ in an entity or unincorporated limited partnership in section 22 of the FATA, which means a percentage of votes that might be cast at a general meeting of the entity or partnership;

b.      the definition of ‘control’ in relation to control of the voting power in an entity in section 23 of the FATA, which applies whether the power is direct or indirect, and whether it is as a result or by means of agreements or practices that have legal or equitable force, or are based on legal or equitable rights; and

c.       the definition of ‘securities’ in section 92 of the Corporations Act, which includes shares in a body corporate.

182.     Subsection (2) clarifies what is meant by a person holding 20% or more of the interests in a trust (as described in subparagraphs (1)(c)(i) and (f)(i)), that is if the person holds 20 per cent or more of:

a.       the beneficial interest in the income or property of the trust;

b.      the interest in units in a unit trust.

This definition mirrors the definition of an ‘interest’ in a trust under section 11 of the FATA.

183.     Subsection (3) clarifies what is meant by a person holding 20% or more of the interests in a partnership (as described in subparagraphs (1)(c)(ii) and (f)(ii)), that is if the person is entitled to 20 per cent or more of any of the distributions of capital, assets or profits of the partnership, either on dissolution of the partnership or otherwise. This definition mirrors the definition of an ‘interest’ in an unincorporated limited partnership under section 11A of the FATA.

184.     Subsection (5) confers a power to prescribe in the regulations a different percentage, or different percentages, to the percentages specified in paragraphs (1)(a) to (f) and subsection (2) or (3), which essentially provide for a 20 per cent control threshold for the tracing provision. This power is commonly referred to as a ‘Henry VIII clause’ because it allows delegated legislation to modify the operation of an Act.

185.     Exercising this power would entail a minor or technical modification to ensure that the control threshold for the tracing provision (along with the control threshold specified in subsection 566B(1)) remains up to date, particularly if the percentage of what is considered to amount to effective control of a corporation, trust or partnership (including a titleholder that is a corporation) changes, or similar acquisition thresholds in other Commonwealth laws change.

186.     This power will likely be exercised rarely and sparingly. Any such modification will also be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any such modification before it commences to reduce any potential increase in legislative complexity in having to understand and comply with a modified control threshold for the tracing provision that has been prescribed in the regulations.

187.     This power will provide greater flexibility in addressing any potential over- or under-regulation of transactions that practically amount to a change in control of a titleholder, compared to pursuing a change to the 20 per cent control threshold through an amendment to the OPGGS Act. Prescribing a different percentage or different percentages in the regulations will ensure a modification to the control threshold may be made in a timely, efficient and responsive manner, likely in a significantly shorter timeframe compared with making the changes within the OPGGS Act.

188.     Subsection (6) defines the term general partner for the purposes of this section, which means a partner of a partnership whose liability in relation to the partnership is not limited. This definition mirrors the definition of a ‘general partner’ under section 4 of the FATA.

Section 566ZA  Anti-avoidance

189.     This section provides for an anti-avoidance provision, which provides that a person may commit an offence or be liable to a civil penalty if the person enters into or carries out a scheme to avoid the application of the penalty provisions in Part 5A.3 of Chapter 5A. Contravention of this section is also a ground for cancellation of the title or titles held by the titleholder.

190.     The purpose of these sanctions is to deter perverse behaviours in relation to avoiding the application of the penalty provisions in Part 5A.3 of Chapter 5A and thereby ensure (to the extent possible) that transactions proposing to effect a change in control of a titleholder are subject to government oversight.

191.     Subsection (1) provides that a person contravenes this subsection if:

a.       the person, either alone or with one or more other persons, enters into, begins to carry out or carries out a scheme; and

b.      the person does so for the sole or dominant purpose of avoiding the application of Part 5A.3 in relation to any person or persons (whether or not those persons are the same persons mentioned in paragraph (a)); and

c.       as a result of that scheme or part of that scheme, a person avoided the application of Part 5A.3.

192.     A note is included at the end of subsection (1) that refers the reader to the relevant cancellation provisions in new paragraphs 274(e) and 446(da) because a contravention of subsection (1) is a ground to cancel the title or titles held by the titleholder.

193.     Subsection (2) provides that, if a person contravenes subsection (1), the person will commit a fault-based offence. The offence is subject to a maximum criminal penalty of 1,200 penalty units for an individual. The maximum criminal penalty for a body corporate will be a fine of 6,000 penalty units because of the body corporate multiplier rule for an offence that imposes a pecuniary penalty in subsection 4B(3) of the Crimes Act.

194.     The physical elements of the offence do not specify fault elements, which means that the default fault elements under section 5.6 of the Criminal Code apply.

195.     Subsection (3) provides that, if a person contravenes subsection (1), the person will be liable to a civil penalty. The maximum civil penalty for an individual will be a fine of 2,400 penalty units. The maximum civil penalty for a body corporate will be a fine of 12,000 penalty units because of the body corporate multiplier rule in paragraph 82(5)(a) of the Regulatory Powers Act. The rationale for the amount of these penalties includes:

a.       The maximum criminal penalty of a fine of 6,000 penalty units for a body corporate is the same penalty for a corporation for an unauthorised takeover under subsection 606(4A) of the Corporations Act.

b.      The maximum civil penalties of a fine of 2,400 penalty units for an individual and a fine of 12,000 penalty units for a body corporate are double the amount of the maximum criminal penalties. This is to ensure that the penalties act as a deterrent for non-compliance, particularly for companies, and recognises that being found liable to a civil penalty does not attract imprisonment or a criminal conviction.

196.     The penalties for the fault-based offence and the civil penalty provision reflect the consequences that beginning or ceasing to control a titleholder (as a consequence of entering into or carrying out a scheme to avoid the application of the penalty provisions in Part 5A.3) may have on the suitability of the titleholder to operate in the offshore resources regime, and therefore the severity of these penalties (along with the grounds to cancel the title or titles held by the titleholder) aims to deter non-compliance with subsection (1). These consequences may include a potential adverse impact on the technical advice or financial resources available to the titleholder to carry out its activities in the title area or areas and comply with legislative requirements, including decommissioning. Conduct that contravenes these penalty provisions may cause the titleholder to experience significant financial distress and, as a consequence, result in the titleholder becoming insolvent and abandoning its title or titles. This in turn may cascade into other adverse impacts, particularly in increasing the risks that abandoning the management or control of an offshore facility poses to the safety of its crew and the surrounding marine environment.

197.     While the severity of these penalties reflects the seriousness of any potential non-compliance, these amounts are lower than the highest penalty provided for in the OPGGS Act, which is a fine of 3,500 penalty units for an individual, and 17,500 penalty units for a body corporate, for recklessly breaching an occupational health and safety duty (see clause 16B of Schedule 3 to the OPGGS Act).

198.     Subsection (4) defines the term scheme for the purposes of this section, which is intended to capture any way a person may intend to avoid the application of the penalty provisions in Part 5A.3 and may include:

a.       any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; and

b.      any scheme, plan, proposal, action, course of action or course or conduct, whether unilateral or otherwise.

Part 5A.6—Other provisions

Section 566ZB  Titles Administrator etc. not concerned with the effect of instrument lodged under this Chapter

199.     This section clarifies that neither the Joint Authority nor the Titles Administrator, nor any person acting under the direction or authority of the Joint Authority or the Titles Administrator, is concerned with the effect in law (for example, in contract law) of an instrument lodged under Chapter 5A, which may include, for example, an instrument or proposed instrument effecting a change in control of a titleholder.

200.     This section is intended to relieve the Joint Authority and the Titles Administrator, and any person acting under the direction or authority of the Joint Authority or the Titles Administrator, of any responsibility for verifying that the instrument has the effect in law that it purports to have.

201.     It may be necessary for the Titles Administrator to enquire into the legal effect of such an instrument to determine its effect in relation to a change in control of a titleholder. However, the legal effect of any particular instrument is a matter for the relevant court, and not for the Joint Authority or the Titles Administrator, to determine.

202.     This section mirrors sections 511 and 560 in relation to the administration of transfers of and dealings in petroleum and GHG titles respectively.

Section 566ZC  Falsified documents

203.     This section makes it an offence to produce or tender in evidence a document that falsely purposes to be a copy of, or an extract from, an instrument given to the Titles Administrator under Chapter 5A. This section is intended to deter the production of, or use in evidence, of forged or counterfeit documents in relation to changes in control of titleholders, including possible changes in control.

204.     Specifically, a person commits an offence if:

a.       the person produces or tenders in evidence a document; and

b.      the document falsely purports to be a copy of extract from an instrument given to the Titles Administrator under Chapter 5A.

205.     The note included in this section clarifies that the same conduct may be an offence against both this section and section 137.2 of the Criminal Code.

206.     If a person is found guilty of the offence, the maximum criminal penalty will be a fine of 50 penalty units for an individual or a fine of 250 penalty units for a body corporate because of the body corporate multiplier rule for an offence that imposes a pecuniary penalty in subsection 4B(3) of the Crimes Act.

207.     This section, including the penalty amount, mirrors sections 514 and 563 in relation to the administration of transfers of and dealings in petroleum and GHG titles respectively.

Section 566ZD  Inspection of instruments

208.     This section provides for access to all instruments, or copies of instrument, that are subject to inspection under Chapter 5A. The Titles Administrator must ensure that all of these types of instruments are open for inspection at all convenient times by any person on payment of a fee calculated under the regulations.

209.     The applicable fee (if any) will only serve to enable the Titles Administrator, as a fully cost-recovered entity, to recover the costs that it will incur in relation to enabling public access to the relevant instrument.

210.     This section mirrors sections 515 and 564 in relation to the administration of transfers of and dealings in petroleum and GHG titles respectively.

Section 566ZE   Evidentiary provisions

211.     This section facilitates proof of certain types of matters in relation to changes in control of titleholders, including possible changes in control, by enabling certain parties to proceedings to provide the relevant court with specified documents as evidence in relation to those matters.

212.     Subsections (1) and (2) apply to certified copies of, or extracts from, any instrument lodged with the Titles Administrator under Chapter 5A.

213.     Subsection (1) provides that the Titles Administrator may, on payment of a fee calculated under the regulations, supply a copy of or extract from such an instrument, certified by the Titles Administrator to be a true copy or true extract. Practically, certified copies will typically be photocopies, and certified extracts may include segments of text kept in an electronic form that are able to be printed.

214.     The applicable fee (if any) will only serve to enable the Titles Administrator, as a fully cost-recovered entity, to recover the costs that it will incur in relation to supplying and certifying the relevant copy or extract.

215.     Subsection (2) provides that the certified copy or extract is admissible in evidence in all courts and proceedings without further proof or production of the original.

216.     Subsections (3) to (8) apply to evidentiary certificates prepared and issued under this section. The purpose of evidentiary certificates is to settle formal or technical matters of fact that would be difficult to prove by adducing admissible evidence. Evidentiary certificates promote efficiency by removing delays arising from obtaining evidence with more traditional methods, freeing up the court’s time to consider the more serious issues related to the offence. The use of an evidentiary certificate for a ‘formal’ matter may include, for example, that an application made under section 566C for the approval of a change in control of a titleholder has been made, including the date on which it was lodged with the Titles Administrator.

217.     Subsection (3) provides that the Titles Administrator may, on payment of a fee calculated under the regulations, issue a written certificate:

a.       stating that an entry, matter or thing required or permitted by or under Chapter 5A to be made or done either has been made or done, or has not been made or done;

b.      stating that an entry, matter or thing required by or under Chapter 5A not to be made or done either has not been made or done, or has been made or done.

218.     Such a certificate may only be issued by the Titles Administrator, or a person acting under the direction or authority of the Titles Administrator, who will be independent of the prosecution in any proceedings for an offence.

219.     The applicable fee (if any) will only serve to enable the Titles Administrator, as a fully cost-recovered entity, to recover the costs that it will incur in relation to preparing and issuing the relevant evidentiary certificate.

220.     Subsection (4) provides that the certificate is to be received in all courts and proceedings as prima facie evidence of the statements in the certificate, meaning that any such certificate will establish prima facie evidence of the matters contained in the certificate, as opposed to conclusive evidence. As such, the certificate creates a rebuttable presumption of the facts that the defendant may challenge during proceedings for an offence.

221.     Additionally, subsection (8) clarifies that any evidence given in support, or in rebuttal, of a matter stated in an evidentiary certificate must be considered on its merits, and the credibility and probative value of such evidence must be neither increased nor diminished by reason of this section.

222.     This section therefore provides an opportunity for evidence of contrary matters to be adduced in any proceedings for an offence, and allows the matters stated in the certificate to be tested through cross-examination and rebutted by the defendant (see subsections (6) and (7)).

223.     To provide defendants with a reasonably opportunity to adduce evidence of contrary matters in any proceedings for an offence, subsection (5) sets out the procedure to be followed before admitting an evidentiary certificate. This subsection provides that an evidentiary certificate must not be admitted in evidence in such proceedings unless:

a.       the person charged with the offence; or

b.      a barrister or solicitor who has appeared for the person in those proceedings;

has, at least 14 days before the certificate is sought to be admitted, been given a copy of the certificate together with notice of the intention to produce the certificate as evidence in the proceedings.

224.     If the defendant, or a barrister or solicitor who is appearing for the defendant, is not provided with a copy of the certificate as required by subsection (5), the matters contained in the evidentiary certificate may not be treated as prima facie evidence and the person signing the certificate may need to give direct evidence of the matters that would otherwise have been covered in the certificate.

225.     Subsection (6) provides that the person signing an evidentiary certificate may be called to give evidence as a witness for the prosecution and be cross-examined. This subsection provides that, if, under subsection (4), an evidentiary certificate is admitted in evidence in proceedings for an offence, the person charged with the offence may require the person who signed the certificate to be called as a witness for the prosecution and cross-examined as if the person who signed the certificate had given evidence of the matters stated in the certificate.

226.     Subsection (7) clarifies that subsection (6) does not entitle the person charged with the offence to require the person who signed the certificate to be called as a witness for the prosecution, unless the prosecutor has been given at least four days’ notice of the person’s intention to require the person who signed the certificate to be so called, or the court makes an order allowing the person charged with the offence to require the person who signed the certificate to be so called.

227.     The section mirrors the evidentiary provisions in relation to the administration of transfers of and dealings in petroleum and GHG titles in sections 516 and 565 respectively.

Part 2—Consequential amendments

Offshore Petroleum and Greenhouse Gas Storage Act 2006

Item 2: Section 7

228.     This item inserts the term acts jointly with into section 7 (the general definitions provision of the OPGGS Act) and provides that the term has the meaning given by new subsection 566B(2). The definition of acts jointly with for the purposes of a change in control of a register holder of a title captures circumstances in which a person may act jointly with one or more other persons to control the registered holder.

Item 3: Section 7 (at the end of paragraph (b) of the definition of Register)

229.     This item adds new paragraph (c) at the end of paragraph (b) of the definition of Register in section 7 (the general definitions provision of the OPGGS Act) and provides that, when used in new Chapter 5A, the term Register has the meaning given by new section 566A. This means that, for the purposes of new Chapter 5A, the term Register is defined differently compared to other uses of the term in other provisions of the OPGGS Act.

Item 4: Section 7 (after paragraph (ga) of the definition of title)

230.     This item inserts new paragraph (gb) after paragraph (ga) of the definition of title in section 7 (the general definitions provision of the OPGGS Act) and provides that, when used in new Chapter 5A, the term title has the meaning given by new section 566A. This means that, for the purposes of new Chapter 5A, the term title is defined differently compared to other uses of the term in other provisions of the OPGGS Act.

Item 5: Subparagraph 125(2)(a)(ii)

231.     This item inserts a reference to ‘Chapter 5A’ after the reference to ‘Chapter 4’ in subparagraph 125(2)(a)(ii), which relates to compliance with conditions, etc., as a ground to renew a petroleum exploration permit. This means that, if an applicant for the renewal of a petroleum exploration permit has complied with the provisions of new Chapter 5A (along with any conditions to which the permit is subject, the other provisions of the OPGGS Act specified in subparagraph 125(2)(a)(ii) and the regulations), the Joint Authority must give an offer document to the applicant telling the applicant that the Joint Authority is prepared to renew the permit.

Item 6: Subparagraphs 125(3)(a)(ii), 126(2)(a)(ii), 154(2)(a)(ii) and (3)(a)(ii), 155(2)(a)(ii); 185(2)(a)(ii); (3)(a)(ii) and (4)(a)(ii), 186(2)(a)(ii), 221(3)(c)(ii) and (4)(c)(ii), 222(3)(d)(ii) and (4)(d)(ii)

232.     This item inserts a reference to ‘Chapter 5A’ after the reference to ‘Chapter 4’ in certain provisions in Chapter 2. These amendments will require the Joint Authority to take into account the compliance of an applicant for the grant or renewal of certain petroleum titles with the provisions of new Chapter 5A (along with any conditions to which the title is subject, other specified provisions of the OPGGS Act and the regulations) in relation to whether the Joint Authority must or may grant or renew, or must refuse to grant or renew, the title.

233.     These provisions, titles and decisions include:

a.       subparagraph 125(3)(a)(ii), in which the Joint Authority may offer to renew a petroleum exploration permit if the applicant for the renewal of the permit has not complied with the provisions of new Chapter 5A, etc., provided that the Joint Authority is satisfied that there are sufficient grounds to warrant the renewal of the permit;

b.      subparagraph 126(2)(a)(ii), in which the Joint Authority must refuse to renew a petroleum exploration permit if the applicant for the renewal of the permit has not complied with the provisions of new Chapter 5A, etc., and the Joint Authority is not satisfied that there are sufficient grounds to warrant the renewal of the permit;

c.       subparagraph 154(2)(a)(ii), in which the Joint Authority must offer to renew a petroleum retention lease if the applicant for the renewal of the lease has complied with the provisions of new Chapter 5A, etc.;

d.      subparagraph 154(3)(a)(ii), in which the Joint Authority may offer to renew a petroleum retention lease if the applicant for the renewal of the lease has not complied with the provisions of new Chapter 5A, etc., provided that the Joint Authority is satisfied that there are sufficient grounds to warrant the renewal of the lease;

e.       subparagraph 155(2)(a)(ii), in which the Joint Authority must refuse to renew a petroleum retention lease if the applicant for the renewal of the lease has not complied with the provisions of new Chapter 5A, etc., and the Joint Authority is not satisfied that there are sufficient grounds to warrant the renewal of the lease;

f.       subparagraph 185(2)(a)(ii), in which the Joint Authority must offer to renew a fixed-term petroleum production licence subject to its first renewal if the applicant for the renewal of the licence has complied with the provisions of new Chapter 5A, etc.;

g.      subparagraph 185(3)(a)(ii), in which the Joint Authority must offer to renew a fixed-term petroleum production licence subject to its second renewal if the applicant for the renewal of the licence has complied with the provisions of new Chapter 5A, etc., and petroleum recovery operations have been carried on in the licence area within five years before the application for the renewal was made;

h.      subparagraph 185(4)(a)(ii), in which the Joint Authority may offer to renew a fixed-term petroleum production licence if the applicant for the renewal of the licence has not complied with the provisions of new Chapter 5A, etc., provided that the Joint Authority is satisfied that there are sufficient grounds to warrant the renewal of the licence;

i.        subparagraph 186(2)(a)(ii), in which the Joint Authority must refuse to renew a fixed-term petroleum production licence if the applicant for the renewal of the licence has not complied with the provisions of new Chapter 5A, etc., and the Joint Authority is not satisfied that there are sufficient grounds to warrant the renewal of the licence;

j.        subparagraph 221(3)(c)(ii), in which the Joint Authority must offer to grant a petroleum-related pipeline licence to an applicant who is a petroleum production licensee if the applicant has complied with the provisions of new Chapter 5A, etc.;

k.      subparagraph 221(4)(c)(ii), in which the Joint Authority may offer to grant a petroleum-related pipeline licence to an applicant who is a petroleum production licensee if the applicant has not complied with the provisions of new Chapter 5A, etc., provided that the Joint Authority is satisfied that there are sufficient grounds to warrant the grant of the pipeline licence;

l.        subparagraph 222(3)(d)(ii), in which the Joint Authority must offer to grant a GHG-related pipeline licence to an applicant who is a petroleum production licensee if the applicant has complied with the provisions of new Chapter 5A, etc.; and

m.    subparagraph 222(4)(d)(ii), in which the Joint Authority may offer to grant a GHG-related pipeline licence to an applicant who is a petroleum production licensee if the applicant has not complied with the provisions of new Chapter 5A, etc., provided that the Joint Authority is satisfied that there are sufficient grounds to warrant the grant of the pipeline licence.

Item 7: Subparagraphs 222(6)(d)(ii) and (7)(d)(ii)

234.     This item inserts a reference to ‘Chapter 5A’ after the reference to ‘Chapter 5’ in certain provisions in Chapter 2. These amendments will require the Joint Authority to take into account the compliance of an applicant for the grant of a GHG-related pipeline licence with the provisions of new Chapter 5A (along with any conditions to which the title is subject, other specified provisions of the OPGGS Act and the regulations) in relation to whether the Joint Authority must or may grant the pipeline licence.

235.     These provisions and decisions include:

a.       subparagraph 222(6)(d)(ii), in which the Joint Authority must offer to grant a GHG-related pipeline licence to an applicant who is a GHG injection licensee if the applicant has complied with the provisions of new Chapter 5A, etc.; and

b.      subparagraph 222(7)(d)(ii), in which the Joint Authority may offer to grant a GHG-related pipeline licence to an applicant who is a GHG injection licensee if the applicant has not complied with the provisions of new Chapter 5A, etc., provided that the Joint Authority is satisfied that there are sufficient grounds to warrant the grant of the pipeline licence.

Item 8: Subparagraphs 223(2)(c)(ii) and 224(2)(d)(ii)

236.     This item inserts a reference to ‘Chapter 5A’ after the reference to ‘Chapter 4’ in certain provisions in Chapter 2. These amendments will require the Joint Authority to take into account the compliance of an applicant for the grant of a petroleum-related pipeline licence with the provisions of new Chapter 5A (along with any conditions to which the title is subject, other specified provisions of the OPGGS Act and the regulations) in relation to whether the Joint Authority must refuse to grant the pipeline licence.

237.     These provisions and decisions include:

a.       subparagraph 223(2)(c)(ii), in which the Joint Authority must refuse to grant a petroleum-related pipeline licence to an applicant who is a petroleum production licensee if the applicant has not complied with the provisions of new Chapter 5A, etc., and the Joint Authority is not satisfied that there are sufficient grounds to warrant the grant of the pipeline licence; and

b.      subparagraph 224(2)(d)(ii), in which the Joint Authority must refuse to grant a GHG-related pipeline licence to an applicant who is a petroleum production licensee if the applicant has not complied with the provisions of new Chapter 5A, etc., and the Joint Authority is not satisfied that there are sufficient grounds to warrant the grant of the pipeline licence.

Item 9: Subparagraph 224(4)(d)(ii)

238.     This item inserts a reference to ‘Chapter 5A’ after the reference to ‘Chapter 5’ in subparagraph 224(4)(d)(ii), which relates to the refusal to grant a GHG-related pipeline license to an applicant who is a GHG injection licensee. This means that, if the applicant has not complied with the provisions of new Chapter 5A (along with any conditions to which the permit is subject, the other provisions of the OPGGS Act specified in paragraph 125(2)(a)(ii) and the regulations) and the Joint Authority is not satisfied that there are sufficient grounds to warrant the grant of the pipeline licence, the Joint Authority must refuse to grant the pipeline licence.

Item 10: After subparagraph 270(3)(b)(ii)

239.     This items inserts a reference to ‘Chapter 5A’ after subparagraph 270(3)(b)(ii) in new subparagraph (iia). Subsection 270(3) provides for the criteria that the Joint Authority must take into account in deciding whether to give consent, or refuse to consent, to the surrender a title listed in the table in subsection 269(1). This amendment will require the Joint Authority to take into account the compliance of an applicant for the consent to the surrender of a title with the provisions of new Chapter 5A (along with any conditions to which the title is subject, other specified provisions of the OPGGS Act and the regulations, as well as other criteria) in relation to whether the Joint Authority may give consent, or refuse to consent, to the surrender of the title.

Item 11: Subparagraph 270(5)(a)(ii)

240.     This items inserts a reference to ‘Chapter 5A’ after the reference to ‘Chapter 4’ in subparagraph 270(5)(b)(ii). Subsection 270(5) provides that, despite subsection 270(3), the Joint Authority may give consent under subsection 270(2) to the surrender of the title if the conditions of the title, etc., have not been complied, provided that the Joint Authority is satisfied that there are sufficient grounds to warrant the giving of consent to the surrender. This means that, if applicant has not complied with the provisions of new Chapter 5A (along with any conditions to which the title is subject, the other provisions of the OPGGS Act specified in paragraph 270(5)(b)(ii) and the regulations), the Joint Authority may consent to the surrender of the title if the Joint Authority is satisfied that there are sufficient grounds to do so.

Item 12: After subparagraph 274(c)(ii)

241.     This items inserts a reference to ‘Chapter 5A’ after subparagraph 274(c)(ii) in new paragraph (iia), which will provide that, if a registered holder of a title to which section 274 is subject has not complied with a provision of new Chapter 5A, that non-compliance is a ground for the cancellation of the title.

242.     The titles to which section 274 is subject include:

a.       a petroleum exploration permit;

b.      a petroleum retention lease;

c.       a petroleum production licence;

d.      an infrastructure licence;

e.       a pipeline licence. 

Item 13: After paragraph 274(d)

243.     This item inserts new paragraph (e) into section 274, which provides that non-compliance with certain specified penalty provisions of new Chapter 5A by persons other than the registered holder of certain petroleum titles is an additional ground for the cancellation of the title. Section 274 sets out the grounds for the Joint Authority to cancel any of the following titles:

a.       a petroleum exploration permit;

b.      a petroleum retention lease;

c.       a petroleum production licence;

d.      an infrastructure licence;

e.       a pipeline licence.

244.     The effect of this amendment is that non-compliance with certain specified penalty provisions of new Chapter 5A by persons other than the registered holder of any one of these titles is an additional ground for the cancellation of the title.

245.     The relevant penalty provisions of new Chapter 5A specified in new paragraph (e) include:

a.       new subsection 566H(1), which provides that a person who is proposing to begin or cease controlling a registered holder of a title will contravene that subsection if the person does not notify the Titles Administrator of a change in circumstances in relation to the person that materially affects any of the matters that the Titles Administrator must have regard to under subsection 566D(4), which in turn provides the criteria for deciding whether or not to approve the change in control of the registered holder;

b.      new subsection 566N(1), which provides that a person who has begun or ceased to control a registered holder of a title without approval will contravene that subsection;

c.       new subsection 566P(1), which provides that a person who begins or ceases to control a registered holder of a title without approval will contravene that subsection if the person does not notify the Titles Administrator of the change in control within 30 days of the change in control taking effect;

d.      new subsection 566ZA(1), which provides that a person will contravene that subsection if the person enters into, begins to carry out or carries out a scheme for the sole or dominant purpose of avoiding the application of the penalty provisions in Part 5A.3.

246.     Cancelling the title or titles held by the registered holder reflects the consequences of beginning or ceasing to control a titleholder without approval (or equivalent) may have on the suitability of the titleholder, and therefore the severity of this sanction aims to deter non-compliance with the relevant penalty provisions of new Chapter 5A. This is especially so for a person who has begun to control a registered holder of a title without approval. This is because cancelling the title or titles will stop the person from deriving a financial benefit from acquiring the ownership or control of an offshore project through an unauthorised change in control because the registered holder will be prohibited from continuing to carry on its activities. The consequences of beginning or ceasing to control a titleholder without approval may include a potential adverse impact on the technical advice or financial resources available to the titleholder to carry out its activities in the title area or areas and complying with legislative requirements, including decommissioning. Conduct that contravenes these penalty provisions may cause the titleholder to experience significant financial distress and, as a consequence, result in the titleholder becoming insolvent and abandoning its title or titles. This in turn may cascade into other adverse impacts, particularly in increasing the risks that abandoning the management or control of an offshore facility poses to the safety of its crew and the surrounding marine environment.

Item 14: After subparagraph 277(1)(a)(ii)

247.     This item inserts a reference to ‘Chapter 5A’ after subparagraph 277(1)(a)(ii) in new subparagraph (iia). This amendment clarifies that the cancellation of a title subject to section 274 is not affected by other provisions of the OPGGS Act, specifically the prosecution of an offence for non-compliance with the provisions of new Chapter 5A. If a registered holder of a title has not complied with a provision of new Chapter 5A (along with the other provisions of the OPGGS Act specified in paragraph 277(1)(a)) and has been convicted of an offence relating to that non-compliance, the Joint Authority may exercise a power of cancellation under subsection 275(1) on the ground of that non-compliance, even though the holder has been convicted of that offence.

248.     Cancelling the title or titles held by the registered holder may be one of several actions taken by the Commonwealth that is necessary and appropriate to respond to non-compliance with any one of the relevant penalty provisions of new Chapter 5A by persons other than the registered holder. Other actions may include, for example, prosecuting a relevant offence against the register holder.

Item 15: After subsection 277(1)

249.     This item inserts new subsection (1A) into section 277. This amendment clarifies that the cancellation of a title subject to section 274 is not affected by other provisions of the OPGGS Act, specifically the prosecution of an offence for non-compliance with the provisions of new Chapter 5A. If a person has not complied with new subsections 566N(1) or 566ZA(1) in relation to a title subject to section 274 and the person has been convicted of an offence relating to that non-compliance, the Joint Authority may exercise a power of cancellation under subsection 275(1) on the ground of that non-compliance, even though the person has been convicted of that offence.

250.     Cancelling the title or titles held by the registered holder may be one of several actions taken by the Commonwealth that is necessary and appropriate to respond to non-compliance with any one of the relevant penalty provisions of new Chapter 5A by persons other than the registered holder. Other actions may include, for example, prosecuting a relevant offence against the person who has begun or ceased to control the registered holder without approval, or behaved perversely to avoid the application of the penalty provisions in Part 5A.3 of new Chapter 5A.

Item 16: After subparagraph 277(2)(a)(ii)

251.     This item inserts a reference to ‘Chapter 5A’ after subparagraph 277(2)(a)(ii) in new subparagraph (iia). This amendment clarifies that the cancellation of a title subject to section 274 is not affected by other provisions of the OPGGS Act, specifically the prosecution of an offence for non-compliance with the provisions of new Chapter 5A. If a person who was the registered holder of a title has not complied with a provision of new Chapter 5A (along with the other provisions of the OPGGS Act specified in paragraph 277(2)(a)) and the Joint Authority has exercised a power of cancellation under subsection 275(1) on the ground of that non-compliance, the person may be convicted of an offence relating to the non-compliance, even though the Joint Authority has cancelled the title.

252.     Cancelling the title or titles held by the registered holder may be one of several actions taken by the Commonwealth that is necessary and appropriate to respond to non-compliance with any one of the relevant penalty provisions of new Chapter 5A by persons other than the registered holder. Other actions may include, for example, prosecuting a relevant offence against the register holder.

Item 17: After subsection 277(2)

253.     This item inserts new subsection (2A) into section 277. This amendment clarifies that the cancellation of a title subject to section 274 is not affected by other provisions of the OPGGS Act, specifically the prosecution of an offence for non-compliance with the provisions of new Chapter 5A. If a person has not complied with new subsection 566N(1) or 566ZA(1) in relation to a title subject to section 274 and the Joint Authority has exercised a power of cancellation under subsection 275(1) on the ground of that non-compliance, the person may be convicted of an offence relating to the non-compliance, even though the Joint Authority has cancelled the title.

254.     Cancelling the title or titles held by the registered holder may be one of several actions taken by the Commonwealth that is necessary and appropriate to respond to non-compliance with any one of the relevant penalty provisions of new Chapter 5A by persons other than the registered holder. Other actions may include, for example, prosecuting a relevant offence against the person who has begun or ceased to control the registered holder without approval, or behaved perversely to avoid the application of the penalty provisions in Part 5A.3 of new Chapter 5A.

Item 18: Subparagraphs 309(2)(a)(ii), (3)(a)(ii) and (4)(a)(ii), 310(2)(a)(ii) and (3)(a)(ii)

255.     This item inserts a reference to ‘Chapter 5A’ after the reference to ‘Chapter 5’ in certain provisions in Chapter 3. These amendments will require the responsible Commonwealth Minister to take into account the compliance of an applicant for the renewal of certain GHG titles with the provisions of new Chapter 5A (along with any conditions to which the title is subject, other specified provisions of the OPGGS Act and the regulations) in relation to whether the Minister must or may renew, or must refuse to renew, the title.

256.     These provisions, titles and decisions include:

a.       subparagraph 309(2)(a)(ii), in which the Minister must offer to renew a GHG assessment permit if the applicant for the renewal of the permit has complied with the provisions of new Chapter 5A, etc.;

b.      subparagraph 309(3)(a)(ii), in which the Minister may offer to renew a GHG assessment permit if the applicant for the renewal of the permit has not complied with the provisions of new Chapter 5A, etc., provided that the Minister is satisfied that there are sufficient grounds to warrant the renewal of the permit;

c.       subparagraph 309(4)(a)(ii), in which the Minister may offer to renew a GHG assessment permit if:

                                               i.      the applicant for the renewal of the permit has complied with the provisions of new Chapter 5A, etc.; and

                                             ii.      during the period when the GHG assessment permit was in force, no notice under section 451 was given about a part of a geological formation wholly situated in the permit area; and

                                           iii.      the Minister is satisfied that there are sufficient grounds to warrant the renewal of the permit;

d.      subparagraph 310(2)(a)(ii), in which the Minister must refuse to renew a GHG assessment permit if the applicant for the renewal of the permit has not complied with the provisions of new Chapter 5A, etc., and the Minister is not satisfied that there are sufficient grounds to warrant the renewal of the permit;

e.       subparagraph 310(3)(a)(ii), in which the Minister must refuse to renew a GHG assessment permit if:

                                               i.      the applicant for the renewal of the permit has complied with the provisions of new Chapter 5A, etc.; and

                                             ii.      during the period when the GHG assessment permit was in force, no notice under section 451 was given about a part of a geological formation wholly situated in the permit area; and

                                           iii.      the Minister is not satisfied that there are sufficient grounds to warrant the renewal of the permit.

Item 19: Subparagraph 311B(2)(a)(ii)

257.     This item inserts a reference to ‘Chapter 5A’ after the reference to ‘Chapter 5’ in subparagraph 311B(2)(a)(ii), which relates to compliance with conditions, etc., as a ground to renew a cross-boundary GHG assessment permit. This means that, if an applicant for the renewal of a cross-boundary GHG assessment permit has complied with the provisions of new Chapter 5A (along with any conditions to which the title is subject, the other provisions of the OPGGS Act specified in subparagraph 311B(2)(a)(ii) and the regulations), the Cross-boundary Authority must give an offer document to the applicant telling the applicant that the Joint Authority is prepared to renew the permit.

Item 20: Subparagraphs 311B(3)(a)(ii), 311C(2)(a)(ii), 348(2)(a)(ii) and (3)(a)(ii), 349(2)(a)(ii), 350B(2)(a)(ii) and (3)(a)(ii) and 350C(2)(a)(ii)

258.     This item inserts a reference to ‘Chapter 5A’ after the reference to ‘Chapter 5’ in certain provisions in Chapter 3. These amendments will require the responsible Commonwealth Minister or the Cross-boundary Authority to take into account the compliance of an applicant for the renewal of certain GHG titles, including cross-boundary GHG titles, with the provisions of new Chapter 5A (along with any conditions to which the title is subject, other specified provisions of the OPGGS Act and the regulations) in relation to whether Minister or the Cross-boundary Authority must or may renew, or must refuse to renew, the title.

259.     These provisions, titles and decisions include:

a.       subparagraph 311B(2)(a)(ii), in which the Cross-boundary Authority may offer to renew a cross-boundary GHG assessment permit if the applicant for the renewal of the permit has not complied with the provisions of new Chapter 5A, etc., provided that the Cross-boundary Authority is satisfied that there are sufficient grounds to warrant the renewal of the permit;

b.      subparagraph 311C(2)(a)(ii), in which the Cross-boundary Authority must refuse to renew a cross-boundary GHG assessment permit if the applicant for the renewal of the permit has not complied with the provisions of new Chapter 5A, etc., and the Cross-boundary Authority is not satisfied that there are sufficient grounds to warrant the renewal of the permit;

c.       subparagraph 348(2)(a)(ii), in which the Minister must offer to renew a GHG holding lease if the applicant for the renewal of the lease has complied with the provisions of new Chapter 5A, etc.;

d.      subparagraph 348(3)(a)(ii), in which the Minister may offer to renew a GHG holding lease if the applicant for the renewal of the lease has not complied with the provisions of new Chapter 5A, etc., provided that the Minister is satisfied that there are sufficient grounds to warrant the renewal of the lease;

e.       subparagraphs 349(2)(a)(ii), in which the Minister must refuse to renew a GHG holding lease if the applicant for the renewal of the lease has not complied with the provisions of new Chapter 5A, etc., and the Minister is not satisfied that there are sufficient grounds to warrant the renewal of the permit;

f.       subparagraph 350B(2)(a)(ii), in which the Cross-boundary Authority must offer to renew a cross-boundary GHG holding lease if the applicant for the renewal of the lease has complied with the provisions of new Chapter 5A, etc.;

g.      subparagraph 350B(3)(a)(ii), in which the Cross-boundary Authority may offer to renew a cross-boundary GHG holding lease if the applicant for the renewal of the lease has not complied with the provisions of new Chapter 5A, etc., provided that the Cross-boundary Authority is satisfied that there are sufficient grounds to warrant the renewal of the lease; and

h.      subparagraph 350C(2)(a)(ii), in which the Cross-boundary Authority must refuse to renew a cross-boundary GHG holding lease if the applicant for the renewal of the lease has not complied with the provisions of new Chapter 5A, etc., and the Cross-boundary Authority is not satisfied that there are sufficient grounds to warrant the renewal of the permit.

Item 21: Paragraph 388(7)(b)

260.     This item inserts a reference to ‘Chapter 5A’ after the reference to ‘Chapter 5’ into the definition of a relevant statutory requirement in paragraphs 388(7)(b).

261.     Section 388 enables the responsible Commonwealth Minister to give a pre-certificate notice to a person who has made an application for a site closing certificate under 386 telling the applicant that the Minister is prepared to issue the certificate. Subsection 388(6) provides that the Minister must not give the applicant a pre-certificate notice, unless the Minister is satisfied that either:

a.       the relevant statutory requirements have been complied with;

b.      any of the relevant statutory requirements have not been complied with, but there are sufficient grounds to warrant the issue of the site closing certificate.

262.     This means that, if applicant has not complied with the provisions of new Chapter 5A (along with any of the other relevant statutory requirements), the Minister must not give the applicant a pre-certificate notice, unless the Minister is satisfied that there are sufficient grounds to warrant the issue of the site closing certificate.

Item 22: After subparagraph 430(5)(c)(ii)

263.     This item inserts a reference to ‘Chapter 5A’ in new subparagraph 442(5)(c)(iia) into the definition of an applicant statutory obligations in subsection 430(5)).

264.     Section 430 sets out the requirements of an offer document in relation to an application for the grant or renewal of a GHG assessment permit or a GHG holding lease, or the grant of a GHG injection licence. Subsection 450(4) enables such an offer document to require the applicant for the grant or renewal of the relevant title to lodge a security in respect of a compliance with the applicable statutory obligations by the registered holder for the time being of the title. This means that the responsible Commonwealth Minister may specify in such an offer document that a security is required to be lodged in respect of compliance with obligation of the registered holder to comply with the provisions of Chapter 5A (along with the other provisions of the OPGGS Act specified in paragraph 430(5)(c) and the regulations).

Item 23: After subparagraph 442(3)(b)(ii)

265.     This items inserts a reference to ‘Chapter 5A’ after subparagraph 442(3)(c)(ii) in new subparagraph (iia). Subsection 442(3) provides for the criteria that the responsible Commonwealth Minister must take into account in deciding whether to give consent, or refuse to consent, to the surrender a title listed in the table in subsection 441(1). This amendment will require the Minister to take into account the compliance of an applicant for the consent to the surrender of a title with the provisions of new Chapter 5A (along with any conditions to which the title is subject, other specified provisions of the OPGGS Act and the regulations, as well as other criteria) in relation to whether the Minister may give consent, or refuse to consent, to the surrender of the title.

Item 24: Subparagraph 442(7)(a)(ii)

266.     This items inserts a reference to ‘Chapter 5A’ after the reference to ‘Chapter 5’ in subparagraph 442(7)(a)(ii). Subsection 442(7) provides that, despite subsection 442(3), the responsible Commonwealth Minister may give consent under subsection 442(2) to the surrender of the title if the conditions of the title, etc., have not been complied, provided that the Minister is satisfied that there are sufficient grounds to warrant the giving of consent to the surrender. This means that, if applicant has not complied with the provisions of new Chapter 5A (along with any conditions to which the title is subject, the other provisions of the OPGGS Act specified in paragraph 442(7)(a)(ii) and the regulations), the Minister may consent to the surrender of the title if the Minister is satisfied that there are sufficient grounds to do so.

Item 25: After subparagraph 446(c)(ii)

267.     This items inserts a reference to ‘Chapter 5A’ after subparagraph 466(c)(ii) in new paragraph (iia), which will provide that, if a registered holder of a title to which section 446 is subject has not complied with a provision of new Chapter 5A, that non-compliance is a ground for the cancellation of the title.

268.     The titles to which section 446 is subject include:

a.       a GHG assessment permit;

b.      a GHG holding lease;

c.       a GHG injection licence.

Item 26: After paragraph 446(d)

269.     This item inserts new paragraph (da) into section 446, which provides that non-compliance with certain specified penalty provisions of new Chapter 5A by persons other than the registered holder of certain GHG titles is an additional ground for the cancellation of the title. Section 446 sets out the grounds for the responsible Commonwealth Minister to cancel any of the following titles:

a.       a GHG assessment permit;

b.      a GHG holding lease;

c.       a GHG injection licence.

270.     The relevant penalty provisions of new Chapter 5A specified in new paragraph (da) include:

a.       new subsection 566H(1), which provides that a person who is proposing to begin or cease controlling a registered holder of a title will contravene that subsection if the person does not notify the Titles Administrator of a change in circumstances in relation to the person that materially affects any of the matters that the Titles Administrator must have regard to under subsection 566D(4), which in turn provides the criteria for deciding whether or not to approve the change in control of the registered holder;

b.      new subsection 566N(1), which provides that a person who has begun or ceased to control a registered holder of a title without approval will contravene that subsection;

c.       new subsection 566P(1), which provides that a person who begins or ceases to control a registered holder of a title without approval will contravene that subsection if the person does not notify the Titles Administrator of the change in control within 30 days of the change in control taking effect;

d.      new subsection 566ZA(1), which provides that a person will contravene that subsection if the person enters into, begins to carry out or carries out a scheme for the sole or dominant purpose of avoiding the application of the penalty provisions in Part 5A.3.

271.     Cancelling the title or titles held by the registered holder reflects the consequences of beginning or ceasing to control a titleholder without approval (or equivalent) may have on the suitability of the titleholder, and therefore the severity of this sanction aims to deter non-compliance with the relevant penalty provisions of new Chapter 5A. This is especially so for a person who has begun to control a registered holder of a title without approval. This is because cancelling the title or titles will stop the person from deriving a financial benefit from acquiring the ownership or control of an offshore project through an unauthorised change in control because the registered holder will be prohibited from continuing to carry on its activities. The consequences of beginning or ceasing to control a titleholder without approval may include a potential adverse impact on the technical advice or financial resources available to the titleholder to carry out its activities in the title area or areas and complying with legislative requirements, including decommissioning. Conduct that contravenes these penalty provisions may cause the titleholder to experience significant financial distress and, as a consequence, result in the titleholder becoming insolvent and abandoning its title or titles. This in turn may cascade into other adverse impacts, particularly in increasing the risks that abandoning the management or control of an offshore facility poses to the safety of its crew and the surrounding marine environment.

Item 27: After subparagraph 449(1)(a)(ii)

272.     This item inserts a reference to ‘Chapter 5A’ after subparagraph 449(1)(a)(ii) in new subparagraph (iia). This amendment clarifies that the cancellation of a title subject to section 446 is not affected by other provisions of the OPGGS Act, specifically the prosecution of an offence for non-compliance with the provisions of new Chapter 5A. If a registered holder of a title has not complied with a provision of new Chapter 5A (along with the other provisions of the OPGGS Act specified in paragraph 449(1)(a)) and has been convicted of an offence relating to that non-compliance, the responsible Commonwealth Minister may exercise a power of cancellation under subsection 447(1) on the ground of that non-compliance, even though the holder has been convicted of that offence.

273.     Cancelling the title or titles held by the registered holder may be one of several actions taken by the Commonwealth that is necessary and appropriate to respond to non-compliance with any one of the relevant penalty provisions of new Chapter 5A by persons other than the registered holder. Other actions may include, for example, prosecuting a relevant offence against the register holder.

Item 28: After subsection 449(1)

274.     This item inserts new subsection (1A) into section 449. This amendment clarifies that the cancellation of a title subject to section 446 is not affected by other provisions of the OPGGS Act, specifically the prosecution of an offence for non-compliance with the provisions of new Chapter 5A. If a person has not complied with new subsections 566N(1) or 566ZA(1) in relation to a title subject to section 446 and the person has been convicted of an offence relating to that non-compliance, the responsible Commonwealth Minister may exercise a power of cancellation under subsection 447(1) on the ground of that non-compliance, even though the person has been convicted of that offence.

275.     Cancelling the title or titles held by the registered holder may be one of several actions taken by the Commonwealth that is necessary and appropriate to respond to non-compliance with any one of the relevant penalty provisions of new Chapter 5A by persons other than the registered holder. Other actions may include, for example, prosecuting a relevant offence against the person who has begun or ceased to control the registered holder without approval, or behaved perversely to avoid the application of the penalty provisions in Part 5A.3 of new Chapter 5A.

Item 29: After subparagraph 449(2)(a)(ii)

276.     This item inserts a reference to ‘Chapter 5A’ after subparagraph 449(2)(a)(ii) in new subparagraph (iia). This amendment clarifies that the cancellation of a title subject to section 446 is not affected by other provisions of the OPGGS Act, specifically the prosecution of an offence for non-compliance with the provisions of new Chapter 5A. If a person who was the registered holder of a title has not complied with a provision of new Chapter 5A (along with the other provisions of the OPGGS Act specified in paragraph 449(2)(a)) and the responsible Commonwealth Minister has exercised a power of cancellation under subsection 447(1) on the ground of that non-compliance, the person may be convicted of an offence relating to the non-compliance, even though the Minister has cancelled the title.

277.     Cancelling the title or titles held by the registered holder may be one of several actions taken by the Commonwealth that is necessary and appropriate to respond to non‑compliance with any one of the relevant penalty provisions of new Chapter 5A by persons other than the registered holder. Other actions may include, for example, prosecuting a relevant offence against the register holder.

Item 30: After subsection 449(2)

278.     This item inserts new subsection (2A) into section 449. This amendment clarifies that the cancellation of a title subject to section 446 is not affected by other provisions of the OPGGS Act, specifically the prosecution of an offence for non-compliance with the provisions of new Chapter 5A. If a person  has not complied with new subsections 566N(1) or 566ZA(1) in relation to a title subject to section 446 and the responsible Commonwealth Minister has exercised a power of cancellation under subsection 447(1) on the ground of that non-compliance, the person may be convicted of an offence relating to the non-compliance, even though the Minister has cancelled the title.

279.     Cancelling the title or titles held by the registered holder may be one of several actions taken by the Commonwealth that is necessary and appropriate to respond to non-compliance with any one of the relevant penalty provisions of new Chapter 5A by persons other than the registered holder. Other actions may include, for example, prosecuting a relevant offence against the person who has begun or ceased to control the registered holder without approval, or behaved perversely to avoid the application of the penalty provisions in Part 5A.3 of new Chapter 5A.

Item 31: After subparagraph 454(3)(c)(ii)

280.     This item inserts a reference to ‘Chapter 5A’ in new subparagraph 454(3)(c)(iia) into the definition of an applicant statutory obligations in subsection 454(3)). Section 454 empowers the responsible Commonwealth Minister to require the registered holder of a GHG assessment permit, a GHG holding lease or a GHG injection licence, within a 60‑day period, to lodge with the Minister an additional security in respect of compliance with the applicable statutory obligations by the registered holder for the time being of the permit, lease or licence. This means that the Minister may require an additional security to be lodged in respect of compliance with obligation of the registered holder to comply with the provisions of Chapter 5A (along with the other provisions of the OPGGS Act specified in paragraph 430(5)(c) and the regulations).

Item 32: Subsection 516(1)

281.     This item inserts a reference to ‘Chapter 5A’ after the reference to ‘this Chapter’ (that is, Chapter 4) in subsection 516(1). This means that the Register kept under section 469 is to be received in all courts and proceedings as prima facie evidence of all matters required or authorised by new Chapter 5A to be entered in the Register.

282.     These matters may include, for example, the information that is required to, or may, be entered in the Register under new section 566L, which includes the date of any application made under new section 566C, the date of any decision made under new subsection 566D(2) and the date a change in control of a registered holder of a title took effect.

283.     Because the Register is to be received in all courts and proceedings as prima facie evidence of all matters required or authorised by new Chapter 5A to be entered in the Register, this amendment provides an opportunity for evidence of contrary matters to be adduced in such proceedings, allowing the matters entered in the Register to be tested by the parties to the proceedings and rebutted by any defendants.

Item 33: Subsection 565(1)

284.     This item inserts a reference to ‘Chapter 5A’ after the reference to ‘this Chapter’ (that is, Chapter 5) in subsection 565(1). This means that the Register kept under section 521 is to be received in all courts and proceedings as prima facie evidence of all matters required or authorised by new Chapter 5A to be entered in the Register.

285.     These matters may include, for example, the information that is required to, or may, be entered in the Register under new section 566L, which includes the date of any application made under new section 566C, the date of any decision made under new subsection 566D(2) and the date a change in control of a registered holder of a title took effect.

286.     Because the Register is to be received in all courts and proceedings as prima facie evidence of all matters required or authorised by new Chapter 5A to be entered in the Register, this amendment provides an opportunity for evidence of contrary matters to be adduced in such proceedings, allowing the matters entered in the Register to be tested by the parties to the proceedings and rebutted by any defendants.

Item 34: Subsection 601(1) (after table item 2A)

287.     This item inserts new table item 2B into the table in subsection 601(1), which refers to the provisions of new Chapter 5A. The provisions listed in the table are the listed NOPSEMA laws, which means that the provisions of new Chapter 5A are subject to Part 6.5 of Chapter 6. This Part provides for NOPSEMA’s compliance and enforcement powers, and therefore this amendment makes it clear that NOPSEMA is empowered to monitor and enforce compliance in relation to the provisions of new Chapter 5A.

Item 35: After subparagraph 611(1)(a)(iv)

288.     This item inserts a reference to ‘Chapter 5A’ in new subparagraph 611(1)(a)(iva), which means that proceedings in relation to an offence against Chapter 5A may be brought at any time.

Item 36: Subsection 611B(2) (table item 3, column headed “is an authorised applicant in relation to the following civil penalty provisions in this Act (to the extent indicated) …”, after paragraph (g))

289.     This item inserts references to the civil penalty provisions of new Chapter 5A under table item 3, which means that Titles Administrator is the authorised applicant in relation to these civil penalty provision. Section 82 of the Regulatory Powers Act provides that an authorised applicant may apply to a relevant court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty. This means that the Titles Administrator is responsible for making orders to a relevant court to enforce a civil penalty provision of new Chapter 5A.

Item 37: After subsection 611B(2)

290.     This item inserts new subsection (2A) into section 611B, which provides that subsection 82(2) of the Regulatory Powers Act does not apply to an application to obtain a civil penalty order for an alleged contravention of the civil penalty provisions of new Chapter 5A. These civil penalty provisions include:

a.       new subsection 566H(2), which relates to a notification of a material change in circumstances in relation to a person proposing to begin or cease controlling a titleholder before or during the approval period;

b.      new subsection 566K(2), which relates to a notification that a change in control of a registered holder of a title that has been approved has taken effect with 10 days of it taking effect;

c.       new subsection 566N(2), which is the civil penalty for a change in control of a registered holder of a title that has not been approved that has taken effect;

d.       new subsection 566P(2), which relates to a notification that a change in control of a registered holder of a title that has not been approved has taken effect within 30 days of it taking effect;

e.       new subsection 566Q(2), which relates to a notification by a registered holder of a title that a change in control of the registered holder that has not been approved has taken effect within 30 days of it taking effect;

f.       new subsection 566R(7), which relates to a requirement to provide information, documents or evidence under subsection 566R(2) within 14 days after the notice is given; and

g.      new subsection 566ZA(3), which is the civil penalty provision for the anti‑avoidance provision.

291.     The effect of this amendment is that the six-year limitation on making an application under section 82 of Regulatory Powers Act to obtain a civil penalty order for an alleged contravention of any of the civil penalty provisions of new Chapter 5A does not apply, which departs from the policy set out in the Regulatory Powers Act.

292.     It is appropriate and proportionate to depart from the policy set out in section 82 of Regulatory Powers Act in relation to the civil penalty provisions of new Chapter 5A to deter non-compliance through the evasion of the increased government oversight provided for in new Chapter 5A, particularly in preventing entities from:

a.       not notifying of a material change in circumstances before or during the approval period in contravention of new section 566H;

b.      beginning or ceasing to control a titleholder without approval in contravention of new section 566N;

c.       doing so and not notifying the Titles Administrator that the unauthorised change in control has taken effect in contravention of new section 566P.

293.     A change in control of a titleholder may, by virtue of the tracing provision under new section 566Z, take effect multiple ‘levels’ above the titleholder and in relation to corporations, trusts or partnerships that are based outside Australia. Consequently, and given the length of time offshore projects operate for, it may be more advantageous for an entity that proposes to begin or cease to control, or that has begun or ceased to control, a titleholder to withhold notifying the Titles Administrator that the change in control has taken effect until after the expiration of the six-year limitation period under section 82 of the Regulatory Powers Act for the relevant contravening act or omission. The entity may even withhold notifying the Titles Administrator of this information indefinitely, meaning that the Titles Administrator may not discover until after the expiration of this six-year limitation period.

294.     Withholding information about an unauthorised change in control of a titleholder will prolong and obstruct appropriate action to respond to the non-compliance, which in turn may compound the consequences that the unauthorised change in control will have on the suitability of the titleholder. These consequences may include a potential adverse impact on the technical advice or financial resources available to the titleholder to carry out its activities in the title area or areas and complying with legislative requirements, including decommissioning. Conduct that contravenes these penalty provisions may cause the titleholder to experience significant financial distress and, as a consequence, result in the titleholder becoming insolvent and abandoning its title or titles. This in turn may cascade into other adverse impacts, particularly in increasing the risks that abandoning the management or control of an offshore facility poses to the safety of its crew and the surrounding marine environment.

295.     Departing from the policy in relation to section 82 of Regulatory Powers Act is therefore appropriate and proportionate to deter such perverse behaviours from prolonging and obstructing the Commonwealth’s efforts to prevent such consequences.

Item 38: After paragraph 636(ec)

296.     This item inserts new paragraphs (ed), (ee) and (ef) into section 636, which simply set out the new fees provided for in new Chapter 5A that are payable to the Titles Administrator on behalf of the Commonwealth.

297.     These fees include:

a.       a fee under subsection 566M(1), which is for an application made under section 566C for the approval of a change in control of a registered holder of a title;

b.      a fee under section 566ZD, which is for the Titles Administrator to facilitate an inspection of all instruments, or copies of instruments, subject to inspection under new Chapter 5A;

c.       a fee under subsection 566ZE(1), which is for the Titles Administrator to supply a certified copy or a certified extract from any instrument lodged with the Titles Administrator under new Chapter 5A under this subsection ; and

d.      a fee under subsection 566ZE(3), which is for the Titles Administrator issue an evidentiary certificate under this subsection.

Part 3—Application of amendments

Item 39: Application of amendments

298.     This item clarifies that the amendments to the OPGGS Act made by this Schedule apply to a change in control of a registered holder of a title that takes effect, or is proposed to take effect, after the commencement of this item, regardless of whether the registered holder of a title become a registered holder before, on or after that commencement. This means that the provisions of new Chapter 5A will apply to any change in control of a registered holder of a title that takes effect, or is proposed to take effect, on the commencement of Schedule 1 of the Bill, regardless of when the registered holder became a registered holder.

Schedule 2—Trailing liability

Offshore Petroleum and Greenhouse Gas Storage Act 2006

Item 1: Section 14

299.     This item repeals section14 and substitutes a new section 14 to define the vacated area for a title that has ceased to be in force, either in whole or in part. The concept of the ‘vacated area’ is relevant to remedial directions that may be given by NOPSEMA or the responsible Commonwealth Minister under section 587, 587A, 594A or 595 of the OPGGS Act after a title has ceased to be in force.

300.     The table set out in new subsection 14(1) is generally equivalent to the table in the previous subsection 14(1), with a couple of key exceptions.

301.     In the case of a title that has expired, the vacated area now covers the entirety of the area constituted by the blocks over which the title was in force. Previously, the vacated area excluded any blocks over which the title was renewed. The amendment ensures that any person who was at any time a registered holder of the title that expired, or a related person, can be given a direction to require decommissioning or remediation in relation to the entirety of the former title area.

302.     The new table also defines the vacated area for any title that has been surrendered, in whole or in part. This supports the amendment to enable a remedial direction to be given to any person who was a registered holder of a title that is surrendered, or a related person (see discussion at items 18, 22, 34 and 38 of this Schedule).

303.     The new table also defines the vacated area for a GHG injection licence that has been terminated, correcting an oversight from the previous table.

304.     This item also inserts new subsection 14(2) which clarifies that an area remains the vacated area for a title that has ceased to be in force, even if the title area of a current title wholly or partly overlaps the vacated area. It does not matter whether the current title is derived from the title that has ceased to be in force, or is an unrelated title. This ensures that a remedial direction can be given to any former holder of a title that has ceased to be in force, or a related person, in relation to the former title area, even if a current title is in force over all or part of the same area.

305.     There may be circumstances in which it is desirable to enable a remedial direction to be given to a person with respect to a former title area, rather than the holder of the current title in force in relation to that area. For example, a person may have drilled a well in an area that was covered by a title that subsequently ceased to be in force, so that the title area reverted to vacant acreage. At a later time, a new title may be granted over that area. Subsequently, the well that was drilled under the former title may begin to leak remnants of petroleum or drilling muds into the marine environment. In such a case, it may be desirable to give a direction to the person who held the former title, or a related person, to require action to be taken in relation to the leaking well.  

Item 2: Subparagraph 577(1)(a)(ii)

306.     This item makes a technical amendment to subparagraph 577(1)(a)(ii) to remove duplication. It is intended to provide clarification only and does not change the overall operation of the OPGGS Act.

307.     Under section 577, if a person breaches a direction given by the Joint Authority, the Titles Administrator or NOPSEMA under Chapter 6 of the OPGGS Act, NOPSEMA may do any or all of the things required by the direction to be done, and recover costs or expenses incurred. Section 577 is in Part 6.2 of the OPGGS Act (Directions relating to petroleum).

308.     A direction given by NOPSEMA under Chapter 6 includes a direction given under Part 6.3 (Directions relating to greenhouse gas), section 587 (remedial directions when a petroleum title has ceased to be in force) and Division 2 of Part 6.4 (remedial directions relating to GHG titles). However, there are other provisions in the OPGGS Act which also provide for NOPSEMA to do any or all of the things required to be done, and recover costs or expenses, if a person breaches a direction given under Part 6.3, section 587 or Division 2 of Part 6.4 (see sections 582A, 588, 589, 595A and 596A). Further, the location of those provisions in the OPGGS Act makes them easier to identify when seeking to determine the potential consequences of a breach of a direction, compared to section 577.

309.     This item therefore excludes Part 6.3, section 587 and Division 2 of Part 6.4 from the operation of subparagraph 577(1)(a)(ii) in order to provide clarity as to which provision applies and remove duplication. There are no directions given by the Joint Authority or the Titles Administrator under Part 6.3, section 587 or Division 2 of Part 6.4.

Item 3: At the end of subsection 577(1)

310.     This item adds a note at the end of subsection 577(1) as a consequence of the amendment made by item 2 of this Schedule (see discussion of that item above). The note directs the reader to the provisions of the OPGGS Act that set out consequences that may apply for a breach of a direction given under Part 6.3, section 587 or Division 2 of Part 6.4.

Item 4: Paragraph 577A(1)(a)

311.     This item makes a technical amendment to paragraph 577A(1)(a) to clarify the operation of the OPGGS Act.

312.     Under section 577A, if a person breaches a direction given by the responsible Commonwealth Minister under Part 6.2 of the OPGGS Act (Directions relating to petroleum), the Minister may do any or all of the things required by the direction to be done, and recover costs or expenses incurred.

313.     Section 577A does not apply to a breach of a direction given under section 586A because section 586A is not located in Part 6.2. Section 586A enables the Minister to give a remedial direction in relation to a petroleum title that is in force, and is located in Division 1 of Part 6.4.

314.     Section 583 does apply to breach of a direction given under section 586A to enable the Minister to do any or all of the things required by the direction to be done, and recover costs or expenses incurred. However, section 583 is in Part 6.3 of the OPGGS Act (Directions relating to greenhouse gas). It is unlikely that a person would look at this Part or section when seeking to determine the potential consequences of a breach of a direction that relates to a petroleum title.

315.     To clarify the operation of the OPGGS Act, this item amends paragraph 577A(1)(a) to include a direction given under section 586A. To remove duplication, a consequential amendment is made to section 583 to exclude Division 1 of Part 6.4 from the operation of that provision (see item 8 of this Schedule).

Item 5: Subparagraph 578(2)(a)(ii)

316.     This item makes a technical amendment to subparagraph 578(2)(a)(ii) to remove duplication. It is intended to provide clarification only and does not change the overall operation of the OPGGS Act.

317.     Under section 578, it is a defence in a prosecution for an offence, or in proceedings for a civil penalty order, for a breach of a direction given by NOPSEMA (or the Joint Authority or the Titles Administrator) under Chapter 6 if the defendant proves that the defendant took all reasonable steps to comply with the direction. Section 578 is in Part 6.2 of the OPGGS Act (Directions relating to petroleum).

318.     A direction given by NOPSEMA under Chapter 6 includes a direction given under Part 6.3 (Directions relating to greenhouse gas) and Division 2 of Part 6.4 (remedial directions relating to GHG). However, there is another provision of the OPGGS Act which also provides for a defence of taking all reasonable steps to comply with a direction given under Part 6.3 and Division 2 of Part 6.4 (see section 584, which is in Part 6.3 of the OPGGS Act (directions relating to GHG)). Further, the location of this provision in the OPGGS Act makes it easier to identify with respect to a defence for a breach of a direction given under Part 6.3 or Division 2 of Part 6.4, compared to section 578.

319.     This item therefore excludes Part 6.3 and Division 2 of Part 6.4 from the operation of subparagraph 578(2)(a)(ii) in order to provide clarity as to which provision applies and remove duplication. There are no directions given by the Joint Authority or the Titles Administrator under Part 6.3 or Division 2 of Part 6.4.

Item 6: Subparagraph 582A(1)(a)(i)

320.     This item makes a technical amendment to subparagraph 582A(1)(a)(i) to remove duplication. It is intended to provide clarification only and does not change the overall operation of the OPGGS Act.

321.     Under section 582A, if a person breaches a direction given by NOPSEMA under Chapter 6 of the OPGGS Act, other than Part 6.2, NOPSEMA may do any or all of the things required by the direction to be done, and recover costs or expenses incurred. Section 582A is in Part 6.3 (Directions relating to greenhouse gas).

322.     A direction given by NOPSEMA under Chapter 6 includes a direction given under Division 1 of Part 6.4 (remedial directions relating to petroleum) and section 594A (remedial directions when a GHG title has ceased to be in force). However, there are other provisions in the OPGGS Act which also provide for NOPSEMA to do any or all of the things required by the direction to be done, and recover costs or expenses, if a person breaches a direction given under Division 1 of Part 6.4 or section 594A (see sections 577, 588, 589, 595A and 596A). Further, the location of those provisions in the OPGGS Act makes them easier to identify when seeking to determine the potential consequences of a breach of a direction, compared to section 582A.

323.     This item therefore excludes Division 1 of Part 6.4 and section 594A from the operation of subparagraph 582A(1)(a)(i) in order to provide clarity as to which provision applies and remove duplication.

Item 7: At the end of subsection 582A(1)

324.     This item adds a note at the end of subsection 582A(1) as a consequence of the amendment made by item 6 of this Schedule (see discussion of that item above). The note directs the reader to the provisions of the OPGGS Act that set out consequences that may apply for a breach of a direction given under Part 6.2, Division 1 of Part 6.4 or section 594A.

Item 8: Subparagraph 583(1)(a)(ii)

325.     This item makes a technical amendment to subparagraph 583(1)(a)(ii) to remove duplication. It is intended to provide clarification only and does not change the overall operation of the OPGGS Act.

326.     Under section 583 if a person breaches a direction given by the responsible Commonwealth Minister under Chapter 6 of the OPGGS Act (other than Part 6.2), the Minister may do any or all of the things required by the direction to be done, and recover costs or expenses incurred. Section 583 is in Part 6.3 of the OPGGS Act (Directions relating to GHG).

327.     A direction given by the Minister under Chapter 6 includes a direction given under Division 1 of Part 6.4 (remedial directions relating to petroleum), section 593 (site closing directions to GHG injection licensees) and section 595 (remedial directions when a GHG title has ceased to be in force). However, there are other provisions in the OPGGS Act which also provide for the Minister to do any or all of the things required to be done, and recover costs or expenses, if a person breaches a direction given under Division 1 of Part 6.4, section 593 or section 595 (see sections 577A, 590A, 596 and 597). Further, the location of those provisions in the OPGGS Act makes them easier to identify when seeking to determine the potential consequences of a breach of a direction, compared to section 583.

328.     This item therefore excludes Division 1 of Part 6.4, section 593 and section 595 from the operation of subparagraph 583(1)(a)(ii) in order to provide clarity as to which provision applies and remove duplication.

Item 9: At the end of subsection 583(1)

329.     This item adds a note at the end of subsection 583(1) as a consequence of the amendment made by item 8 of this Schedule (see discussion of that item above). The note directs the reader to the provisions of the OPGGS Act that set out consequences that may apply for breach of a direction given under Part 6.2, Division 1 of Part 6.4, or section 593 or 595.

Item 10: Section 585

330.     This item amends the simplified outline of Division 1 of Part 6.4 of the OPGGS Act to reflect the amendments made by this Schedule to enable remedial directions to be given to certain persons other than a current or former petroleum titleholder. See items 13, 16, 18 and 22.

Item 11: Section 586 (heading)

331.     This item amends the heading of section 586 to reflect the amendments made by this Schedule to enable remedial directions under that section to be given to a former holder, or a related person of a current or former holder, of a petroleum title that is in force, as well as to the current holder of the title. See items 12 and 13.

Item 12: Subsection 586(2)

332.     This item amends subsection 586(2) to reflect that remedial directions under section 586 will be able to given to a broader range of persons than the current holder of the title. See discussion at item 13.

Item 13: Before subsection 586(3)

333.     This item inserts new subsections 586(2A) to (2D).

334.     New subsection 586(2A) sets out the persons who can be given a remedial direction by NOPSEMA under section 586 with respect to a title that is in force. Previously, only the current holder of the title could be given a direction under section 586. The persons to whom a remedial direction could be given under new subsection 586(2A) include the current holder of the title, any former holder of the title, a related body corporate of a current or former holder of the title, and a person to whom a determination under subsection (2B) applies (a ‘related person’).

335.     The OPGGS Act imposes decommissioning obligations on current titleholders. For example, section 572 requires titleholders to maintain property in good condition and repair, and to remove all property that is neither being used nor to be used in connection with operations under the title. A central policy tenet of the decommissioning obligations under the OPGGS Act is the expectation that restoration of the environment and decommissioning is the responsibility of the current titleholder, and that all decommissioning activities, such as removal of infrastructure, plugging or closing off of wells, and remediating the seabed and subsoil in the title area, should be undertaken by the current titleholder. This also ensures that all decommissioning activities are carried out in accordance with the OPGGS Act and the regulations, including ensuring risks to the environment, safety and well integrity are effectively managed.

336.     The power to give a remedial direction to a person other than the current titleholder is intended to be an option of last resort where the current titleholder is unable to meet its decommissioning obligations and all other regulatory options have been exhausted. It aims to ensure that the risks and liabilities of petroleum activities remain the responsibility of those who either held, or had the ability to influence operations under, the title, and change industry behaviour by increasing the due diligence undertaken by companies regarding who they sell their assets to.

337.     The power to give a remedial direction under section 586 to a person other than the current titleholder operates within the broader context of the OPGGS Act, which includes that a current titleholder is required to maintain financial assurance sufficient to give the titleholder the capacity to meet costs, expenses and liabilities arising in connection with or as a result of offshore petroleum activities. Further, this Bill amends the OPGGS Act to provide for government oversight of transactions involving a change in control of a titleholder (Schedule 1 to the Bill), and to better equip the Government to screen title applicants, reducing the risk that an entity which does not meet suitability requirements will be granted a title (Schedule 3 to the Bill).

338.     The OPGGS Act does not specify the order in which a remedial direction will be issued to former titleholders or related persons. It is intended that this is generally likely to be in reverse chronological order (that is, back from the current or immediate former titleholder). The Titles Register maintained by the Titles Administrator will be used to determine the chronological order. However, this is not specified in the Act as the appropriate person to whom a direction is to be issued will need to be assessed on a case-by-case basis and reflect the nature of the activities required. For example, if a former titleholder that is further back in the order drilled a well that subsequently begins to leak remnants of petroleum or drilling muds into the marine environment, it may be preferable to call back that former titleholder, rather than a titleholder that has held the title more recently, as that former titleholder would have particular knowledge and documentation relating to the well.

339.     It is the Government’s expectation that if a direction is given to the titleholder which is a joint venture (and the parties are individually named), it is the responsibility of the parties to determine how they will individually and collectively comply with the direction, and how reimbursement will be sought as part of their own commercial arrangements. The direction will set the expectation of compliance, not the manner in which the parties discharge their respective responsibilities. Similar to other duties and obligations imposed throughout the OPGGS Act, the titleholder group is responsible for working together to meet legislative requirements.

340.     Paragraphs (2A)(b) and (d) enable a direction to be given to a related body corporate of a current or former titleholder respectively. Under section 7 of the OPGGS Act, ‘related body corporate’ has the same meaning as in the Corporations Act, which includes a parent company or a subsidiary (see section 50 of that Act).

341.     The ability to give a remedial direction to a related body corporate recognises the ways in which companies are able to structure transactions to divest assets and titles to limit accountability for decommissioning obligations. It is common in the offshore oil and gas industry for one or more companies to establish a subsidiary to hold and operate a title, with the shares in the subsidiary held by the company or companies. For example, under this structure, the titleholder could be the subsidiary of a subsidiary. The titleholder, as a subsidiary, may then be closed down when the title has come to an end. There is therefore a risk that an entity that was a titleholder will no longer exist at a time when NOPSEMA proposes to give a remedial direction to that former titleholder and may need to issue a remedial direction to a related body corporate of that former titleholder.

342.     A remedial direction may also be given to a related body corporate of a current or former titleholder if the current or former titleholder is unable to decommission for any other reason, for example, because it has gone into liquidation. Enabling a remedial direction to be given to a related body corporate will ensure that there is a person to whom a direction may be issued that has had the capacity to influence that titleholder’s operations.

343.     In accordance with the policy intention that a person to whom a direction is issued has had the capacity to influence the former titleholder’s operations, a direction will only be able to given to a person who was a related body corporate of a former titleholder at the time the title was in force.

344.     New subsection (2B) enables the responsible Commonwealth Minister to make a written determination that that subsection applies to a person. The effect of a determination is that NOPSEMA could give a remedial direction to that person in accordance with paragraph 586(2A)(e).

345.     The Minister may only make a determination that subsection (2B) applies to a person if the Minister is satisfied on reasonable grounds that it is appropriate to do so, having regard to the following:

a.       whether the person is capable of significantly benefiting financially, or has significantly benefited financially, from operations authorised by the title;

b.      whether the person is, or has been, in a position to influence compliance with obligations under the OPGGS Act;

c.       whether the person acts or acted jointly with a current or former titleholder in relation to operations authorised by the title.  

346.     The matters listed above are in accordance with the policy intent of ensuring that persons who have or had the capacity to influence compliance and/or enjoyed a significant financial benefit from operations are responsible for decommissioning, in the event that the current titleholder is unable to meet its decommissioning obligations. A person may meet any one or more of the matters listed above in order for the Minister to make a determination. Whether, and in relation to whom, a determination is made will depend on the individual circumstances of each case.

347.     What is considered to be a ‘significant’ financial benefit is considered in the context of offshore petroleum operations, such as the large profits that may be made, as well as the costs expended to undertake operations. For example, subsection (2B) does not capture, and is not intended to capture, persons such as employees, contractors or suppliers who are paid market value for work undertaken, or goods or services provided. As another example, it does not capture banks entering into a lending agreement with a company on arm’s length commercial terms. It may, however, capture entities such as major shareholders if those entities have received a sizeable financial benefit from their shareholding, having regard to the net profit from operations.

348.     Although it is NOPSEMA that may give a direction under section 586, it is the Minister who has the power to make a determination under subsection (2B). This power may be delegated to the CEO of NOPSEMA under section 778 of the OPGGS Act. In performing functions or exercising powers under a delegation, the CEO must comply with any directions given by the Minister.

349.     New subsection (2C) provides that a determination under subsection (2B) is not a legislative instrument. This is merely declaratory of the law rather than prescribing a substantive exemption from the requirements of the Legislation Act 2003.

350.     To ensure transparency, new subsection (2D) ensures that if a direction is given to a person other than the current titleholder, NOPSEMA must give a copy of the direction to the current titleholder as soon as practicable.

351.     Under new section 598B, if a remedial direction would require a person to enter premises, and the person is not the occupier of the premises, the direction applies only to the extent that the occupier consents to entry (see item 43).

352.     Under new section 598A, certain provisions of the OPGGS Act apply in relation to a person who is subject to a remedial direction. These include the requirement to maintain financial assurance for costs, expenses and liabilities arising in connection with carrying out activities in compliance with the direction, and compliance monitoring and enforcement powers that may be exercised by NOPSEMA. See discussion at item 43.

353.     Where a remedial direction is issued to a person under section 586 and the person does not comply, NOPSEMA may undertake the activity and recover the costs from the person through the courts. Failure to comply with a direction may also result in criminal prosecution or application of a civil penalty. Continuing criminal or civil penalties may apply for an ongoing failure to comply.

Item 14: Section 586A (heading)

354.     This item amends the heading of section 586A to reflect the amendments made by this Schedule to enable remedial directions under that section to be given to a former holder, or a related person of a current or former holder, of a petroleum title that is in force, as well as to the current holder of the title. See items 15 and 16.

Item 15: Subsection 586A(2)

355.     This item amends subsection 586A(2) to reflect that remedial directions under section 586A will be able to given to a broader range of persons than the current holder of the title. See discussion at item 16.

Item 16: Before subsection 586A(3)

356.     This item inserts new subsections 586A(2A) to (2D).

357.     New subsection 586A(2A) sets out the persons who can be given a remedial direction by the responsible Commonwealth Minister under section 586A with respect to a title that is in force. Previously, only the current holder of the title could be given a direction under section 586A.

358.     The purpose and operation of new subsection 586A(2A) is the same as for new subsection 586(2A). See discussion at item 13.

359.     New subsection (2B) enables the Minister to make a written determination that that subsection applies to a person. The effect of a determination is that the Minister could give a remedial direction to that person in accordance with paragraph 586A(2A)(e).

360.     The purpose and operation of new subsection 586A(2B) is the same as for new subsection 586(2B). See discussion at item 13.

361.     New subsection (2C) provides that a determination under subsection (2B) is not a legislative instrument. This is merely declaratory of the law rather than prescribing a substantive exemption from the requirements of the Legislation Act 2003.

362.     To ensure transparency, new subsection (2D) ensures that if a direction is given to a person other than the current titleholder, the Minister must give a copy of the direction to the current titleholder as soon as practicable.

363.     Under new section 598B, if a remedial direction would require a person to enter premises, and the person is not the occupier of the premises, the direction applies only to the extent that the occupier consents to entry (see item 43).

364.     Under new section 598A, certain provisions of the OPGGS Act apply in relation to a person who is subject to a remedial direction. These include the requirement to maintain financial assurance for costs, expenses and liabilities arising in connection with carrying out activities in compliance with the direction, and compliance monitoring and enforcement powers that may be exercised by NOPSEMA. See discussion at item 43.

365.     Where a remedial direction is issued to a person under section 586A and the person does not comply, the Minister may undertake the activity and recover the costs from the person through the courts. Failure to comply with a direction may also result in criminal prosecution or application of a civil penalty. Continuing criminal or civil penalties may apply for an ongoing failure to comply.

Item 17: Section 587 (heading)

366.     This item amends the heading of section 587 to reflect the amendments made by this Schedule to enable remedial directions under that section to be given a broader range of persons than the former holder of the title. See item 18.

Item 18: Subsections 587(1) and (2)

367.     This item repeals subsections 587(1) and (2) and substitutes new subsections 587(1) to (2D).

368.     The repeal and substitution of a new subsection 587(1) in effect extends the circumstances in which a remedial direction under section 587 may be given by NOPSEMA.

369.     Previously, a remedial direction could only be given if a permit, lease, licence or authority was (as applicable) wholly or partly revoked, wholly or partly cancelled, wholly or partly terminated, or had expired. In the case of a petroleum special prospecting authority or a petroleum access authority, a direction could also be given if the authority had been surrendered.

370.     The amendment made by this item ensures that a direction may be given if a permit, lease, licence or authority ceases to be in force, in whole or in part, for any reason. In effect, this ensures that a direction may also be given if a permit, lease or licence has been wholly or partly surrendered.

371.     Under section 270 of the OPGGS Act, the Joint Authority may only consent to the surrender of a petroleum title if certain criteria are met. These criteria include matters relating to decommissioning, which are equivalent to the matters in relation to which a remedial direction may be given. Whether a titleholder has complied with their decommissioning obligations is therefore expressly considered by the Joint Authority prior to consenting to surrender.

372.     However, there may be cases in which infrastructure that was thought to have been satisfactorily decommissioned may have a residual problem, such as a leakage of remnants of petroleum or drilling muds into the marine environment from a well that was thought to have been adequately plugged and abandoned at the time of consent to surrender. The amendment made by this item ensures that NOPSEMA can give a remedial direction to a person who was the holder of the title under which the well was drilled, or a related person, to remedy the problem. This will minimise the risk of the costs of decommissioning falling to the Commonwealth, and ultimately taxpayers, in the event of residual issues arising following the surrender of a title, and ensure that costs are instead borne by those who either held, or had the capacity to influence operations under, the title.

373.     As noted above, NOPSEMA can already give a remedial direction to the former holder of a petroleum special prospecting authority or a petroleum access authority that has been surrendered. This is due to the short-term nature of those titles, which means that decommissioning activities may not always be able to be undertaken while the authority is in force. Unlike other title types, there is no provision for a regulatory body to give consent to the surrender of an authority. Instead, the holder of an authority may simply surrender the authority by written notice given to the Titles Administrator.

374.     The repeal and substitution of a new subsection 587(2) ensures that a direction under section 587 can be given by NOPSEMA to a broader range of persons after a petroleum title has ceased to be in force.    

375.     The OPGGS Act imposes decommissioning obligations on current titleholders. For example, section 572 requires titleholders to maintain property in good condition and repair, and to remove all property that is neither being used nor to be used in connection with operations under the title. A central policy tenet of the decommissioning obligations under the OPGGS Act is the expectation that decommissioning is the responsibility of the current titleholder and that all decommissioning activities, such as removal of infrastructure, plugging or closing off of wells, and remediating the seabed and subsoil in the title area, should be undertaken by the current titleholder prior to the title ceasing to be in force (for any reason). This also ensures that all decommissioning activities are carried out in accordance with the OPGGS Act and regulations, including ensuring risks to the environment, safety and well integrity are effectively managed.

376.     Section 587 provides a limited exception to this general principle by empowering NOPSEMA to impose certain decommissioning obligations via the use of remedial directions issued to the person who was or is, as the case may be, the holder of a title that has ceased to be in force (in whole or in part). A direction under section 587 could be used in a variety of circumstances. For example, a title may expire due to the operation of the OPGGS Act prior to the titleholder undertaking or completing decommissioning activities, with no legal mechanism for the Joint Authority to extend the duration of the title. Circumstances may have arisen that prevent the current titleholder from satisfactorily decommissioning all of its assets (for example, if the current titleholder goes into liquidation). Alternatively, infrastructure that was thought to have been satisfactorily decommissioned may have developed a residual problem (for example, a well that was thought to have been plugged and abandoned several years earlier has begun to leak remnants of petroleum or drilling muds into the marine environment).

377.     Under the previous section 587, NOPSEMA was limited to giving remedial directions to the person who was the immediate former holder of the title (or the current titleholder if the title ceased to be in force in part). A direction could not be given to any person who was a holder of the title prior to the immediate former holder. Particularly in the case of longer-term titles, such as petroleum production licences, there may be one or more transfers of the title during the life of the title.

378.     The power to give a remedial direction to a person other than the current or immediate former titleholder is intended to be an option of last resort wherethe current titleholder is unable to meetits decommissioning obligations and all other regulatory options have been exhausted. It aims to ensure that the risks and liabilities of petroleum activities remain the responsibility of those who either held, or had the ability to influence operations under, the title, and change industry behaviour by increasing the due diligence undertaken by companies regarding who they sell their assets to.

379.     The power to give a remedial direction under section 587 to a person other than the current or immediate former titleholder operates within the broader context of the OPGGS Act, which includes that a current titleholder is required to maintain financial assurance sufficient to give the titleholder the capacity to meet costs, expenses and liabilities arising in connection with or as a result of offshore petroleum activities. Further, this Bill amends the OPGGS Act to provide for government oversight of transactions involving a change in control of a titleholder (Schedule 1 to the Bill), and to better equip the Government to screen title applicants, reducing the risk that an entity which does not meet suitability requirements will be granted a title (Schedule 3 to the Bill).

380.     New subsection 587(2) sets out the things that a person may be required by a direction to do. This has not changed from the things that a person could be directed to do under previous subsection 587(2).

381.     New subsection 587(2A) sets out the persons who can be given a remedial direction by NOPSEMA under section 587 with respect to a title that has ceased to be in force, in whole or in part. The persons to whom a remedial direction could be given under new subsection 587(2A) include the current titleholder (if the title ceased to be in force in part), any former registered holder of the title (whether the title ceased to be in force in whole or in part), or a related person of a current or former titleholder.

382.     The OPGGS Act does not specify the order in which a remedial direction will be issued to former titleholders or related persons. It is intended that this is generally likely to be in reverse chronological order (that is, back from the current or immediate former titleholder). The Titles Register maintained by the Titles Administrator will be used to determine the chronological order. However this is not specified in the Act as the appropriate person to whom a direction is to be issued will need to be assessed on a case-by-case basis and reflect the nature of the activities required. For example, if a former titleholder that is further back in the order drilled a well that subsequently begins to leak remnants of petroleum or drilling muds into the marine environment, it may be preferable to call back that former titleholder, rather than a titleholder that has held the title more recently, as that former titleholder would have particular knowledge and documentation relating to the well.

383.     It is the Government’s expectation that if a direction is given to the titleholder which is a joint venture (and the parties are individually named), it is the responsibility of the parties to determine how they will individually and collectively comply with the direction, and how reimbursement will be sought as part of their own commercial arrangements. The direction will set the expectation of compliance, not the manner in which the parties discharge their respective responsibilities. Similar to other duties and obligations imposed throughout the OPGGS Act, the titleholder group is responsible for working together to meet legislative requirements.

384.     Subparagraphs (2A)(a)(ii) and (b)(ii) enable a direction to be given to a related body corporate of a current or former titleholder respectively. Under section 7 of the OPGGS Act, ‘related body corporate’ has the same meaning as in the Corporations Act, which includes a parent company or a subsidiary (see section 50 of that Act).

385.     The ability to give a remedial direction to a related body corporate recognises the ways in which companies are able to structure transactions to divest assets and titles to limit accountability for decommissioning obligations. It is common in the offshore oil and gas industry for one or more companies to establish a subsidiary to hold and operate a title, with the shares in the subsidiary held by the company or companies. For example, under this structure, the titleholder could be the subsidiary of a subsidiary. The titleholder, as a subsidiary, may then be closed down when the title has come to an end. There is therefore a risk that an entity that was a titleholder will no longer exist at a time when NOPSEMA proposes to give a remedial direction to that former titleholder and may need to issue a remedial direction to a related body corporate of that former titleholder.

386.     A remedial direction may also be given to a related body corporate of a current or former titleholder if the current or former titleholder is unable to decommission for any other reason, for example, because it has gone into liquidation, but the parent company is still operating as a going concern. Enabling a remedial direction to be given to a related body corporate will ensure that there is a person to whom a direction may be issued that has had the capacity to influence that titleholder’s operations.

387.     In accordance with the policy intention that a person to whom a direction is issued has had the capacity to influence the former titleholder’s operations, a direction will only be able to given to a person who was a related body corporate of a former titleholder at the time the title was in force.

388.     New subsection (2B) enables the responsible Commonwealth Minister to make a written determination that that subsection applies to a person. The effect of a determination is that NOPSEMA could give a remedial direction to that person in accordance with subparagraph 587(2A)(b)(iii).

389.     The Minister may only make a determination that subsection (2B) applies to a person if the Minister is satisfied on reasonable grounds that it is appropriate to do so, having regard to the following:

a.       whether the person is capable of significantly benefiting financially, or has significantly benefited financially, from operations authorised by the title;

b.      whether the person is, or has been, in a position to influence compliance with obligations under the OPGGS Act;

c.       whether the person acts or acted jointly with a current or former titleholder in relation to operations authorised by the title. 

390.     The matters listed above are in accordance with the policy intent of ensuring that persons who have or had the capacity to influence compliance and/or enjoyed a significant financial benefit from operations are responsible for decommissioning, in the event that the current titleholder is unable to meet its decommissioning obligations. A person may meet any one or more of the matters listed above in order for the Minister to make a determination. Whether, and in relation to whom, a determination is made will depend on the individual circumstances of each case.

391.     What is considered to be a ‘significant’ financial benefit is considered in the context of offshore petroleum operations, such as the large profits that may be made, as well as the costs expended to undertake operations. For example, it does not capture, and is not intended to capture, persons such as employees, contractors or suppliers who are paid market value for work undertaken, or goods or services provided. As another example, it does not capture banks entering into a lending agreement with a company on arm’s length commercial terms. It may, however, capture entities such as major shareholders if those entities have received a sizeable financial benefit from their shareholding, having regard to the net profit from operations.

392.     Although it is NOPSEMA that may give a direction under section 587, it is the Minister who has the power to make a determination under subsection (2B). This power may be delegated to the CEO of NOPSEMA under section 778 of the OPGGS Act. In performing functions or exercising powers under a delegation, the CEO must comply with any directions given by the Minister.

393.     New subsection (2C) provides that a determination under subsection (2B) is not a legislative instrument. This is merely declaratory of the law rather than prescribing a substantive exemption from the requirements of the Legislation Act 2003.

394.     To ensure transparency, new subsection (2D) ensures that if a direction is given to a person (other than the current titleholder), and the direction requires the person to take an action in or in relation to the title area of another title, NOPSEMA must give a copy of the direction to the holder of that other title as soon as practicable.

395.     Under new section 598B, if a remedial direction would require a person to enter premises, and the person is not the occupier of the premises, the direction applies only to the extent that the occupier consents to entry – see item 43.

396.     Under new section 598A, certain provisions of the OPGGS Act apply in relation to a person who is subject to a remedial direction. These include the requirement to maintain financial assurance for costs, expenses and liabilities arising in connection with carrying out activities in compliance with the direction, and compliance monitoring and enforcement powers that may be exercised by NOPSEMA. See discussion at item 43.

397.     Where a remedial direction is issued to a person under section 587 and the person does not comply, NOPSEMA may undertake the activity and recover the costs from the person through the courts. Failure to comply with a direction may also result in criminal prosecution or application of a civil penalty. Continuing criminal or civil penalties may apply for an ongoing failure to comply.

Item 19: Subsection 587(4)

398.     This item amends subsection 587(4) as a consequence of the repeal and substitution of a new subsection 587(2) (see item 18 of this Schedule). The previous reference in subsection 587(4) to paragraph 587(2)(b) is updated to refer to the new equivalent provision in paragraph 587(2)(c).

Item 20: Subsection 587(5)

399.     This item amends subsection 587(5) as a consequence of the repeal and substitution of a new subsection 587(2) (see item 18 of this Schedule). The previous reference in subsection 587(5) to paragraph 587(2)(c) is updated to refer to the new equivalent provision in paragraph 587(2)(d).

Item 21: Section 587A (heading)

400.     This item amends the heading of section 587A to reflect the amendments made by this Schedule to enable remedial directions under that section to be given a broader range of persons than the former holder of the title. See item 22.

Item 22: Subsections 587A(1) and (2)

401.     This item repeals subsections 587A(1) and (2) and substitutes new subsections 587A(1) to (2D).

402.     The repeal and substitution of a new subsection 587A(1) in effect extends the circumstances in which a remedial direction under section 587A may be given by the responsible Commonwealth Minister. The purpose and operation of this amendment is the same as for the repeal and substitution of a new subsection 587(1). See discussion at item 18.

403.     The repeal and substitution of a new subsection 587A(2) ensures that a direction under section 587A can be given by the Minister to a broader range of persons after a petroleum title has ceased to be in force. The purpose and operation of this amendment is the same as for the repeal and substitution of subsection 587(2). See discussion at item 18.

404.     New subsection 587A(2A) sets out the persons who can be given a remedial direction by the Minister under section 587A. The purpose and operation of this amendment is the same as for new subsection 587(2A) (see discussion at item 18).

405.     New subsection 587A(2B) enables the Minister to make a written determination that that subsection applies to a person. The effect of a determination is that the Minister could give a remedial direction to that person in accordance with subparagraph 587A(2A)(b)(iii).

406.     The purpose and operation of new subsection 587A(2B) is the same as for new subsection 587(2B). See discussion at item 18.

407.     New subsection 587A(2C) provides that a determination under subsection (2B) is not a legislative instrument. This is merely declaratory of the law rather than prescribing a substantive exemption from the requirements of the Legislation Act 2003.

408.     To ensure transparency, new subsection 587A(2D) ensures that if a direction is given to a person (other than the current titleholder), and the direction requires the person to take an action in or in relation to the title area of another title, the Minister must give a copy of the direction to the holder of that other title as soon as practicable.

409.     Under new section 598B, if a remedial direction would require a person to enter premises, and the person is not the occupier of the premises, the direction applies only to the extent that the occupier consents to entry (see item 43).

410.     Under new section 598A, certain provisions of the OPGGS Act apply in relation to a person who is subject to a remedial direction. These include the requirement to maintain financial assurance for costs, expenses and liabilities arising in connection with carrying out activities in compliance with the direction, and compliance monitoring and enforcement powers that may be exercised by NOPSEMA. See discussion at item 43.

411.     Where a remedial direction is issued to a person under section 587A and the person does not comply, the Minister may undertake the activity and recover the costs from the person through the courts. Failure to comply with a direction may also result in criminal prosecution or application of a civil penalty. Continuing criminal or civil penalties may apply for an ongoing failure to comply.

Item 23: Subsection 587B(6) (definition of remedial direction)

412.     This item amends the definition of remedial direction in subsection 587B(6) to reflect the amendments made to sections 586, 586A, 587 and 587A by this Schedule. In particular, the item amends the description of each section in the definition to reflect that directions under sections 586 and 586A can be given to a person other than the current titleholder, and that directions under sections 587 and 587A can be given to a person other than the former titleholder.

Item 24: Subsection 589(5)

413.     This item amends subsection 589(5) to ensure that that subsection extends to any person who can be given a direction under section 587 as amended by this Schedule, including related persons. Subsection 589(5) provides for NOPSEMA to recover costs or expenses incurred in relation to the doing of anything required by a direction under section 587 to be done. Under subsection 588(2), NOPSEMA may do any or all of the things required by a direction to be done if the direction has not been complied with. 

Item 25: At the end of section 590A

414.     This item inserts a new subsection 590A(3) to enable the responsible Commonwealth Minister to recover costs or expenses incurred in relation to the doing of anything required by a direction under section 587A to be done. Under subsection 590A(2), the Minister may do any or all of the things required by a direction to be done if the direction has not been complied with.

415.     All of the other provisions in the OPGGS Act that enable NOPSEMA or the Minister to do things required by a direction to be done if the direction is not complied with provide for NOPSEMA or the Minister to recover costs or expenses incurred. The absence of a similar provision in section 590A seems to have been an unintentional omission. Providing for the Minister to recover costs or expenses from the person who breached the direction will ensure the Government, and the taxpayer, is not required to bear the costs of undertaking the required action to decommission infrastructure and/or remediate the marine environment.

Item 26: Section 591

416.     This item amends the simplified outline of Division 2 of Part 6.4 of the OPGGS Act to reflect the amendments made by this Schedule to enable remedial directions to be given to certain persons other than a current or former GHG titleholder. See items 29, 32, 34 and 38.

Item 27: Section 591B (heading)

417.     This item amends the heading of section 591B to reflect the amendments made by this Schedule to enable remedial directions under that section to be given to a former holder, or a related person of a current or former holder, of a GHG title that is in force, as well as to the current holder of the title. See items 28 and 29.

Item 28: Subsection 591B(2)

418.     This item amends subsection 591B(2) to reflect that remedial directions under section 591B will be able to given to a broader range of persons than the current holder of the title. See discussion at item 29.

Item 29: Before subsection 591B(3)

419.     This item inserts new subsections 591B(2A) to (2D).

420.     New subsection 591B(2A) sets out the persons who can be given a remedial direction by NOPSEMA under section 591B with respect to a title that is in force. Previously only the current holder of the title could be given a direction under section 591B.

421.     The purpose and operation of new subsection 591B(2A) is the same as for new subsection 586(2A). See discussion at item 13.

422.     New subsection 591B(2B) enables the responsible Commonwealth Minister to make a written determination that that subsection applies to a person. The effect of a determination is that NOPSEMA could give a remedial direction to that person in accordance with paragraph 591B(2A)(e).

423.     The purpose and operation of new subsection 591B(2B) is the same as for new subsection 586(2B). See discussion at item 13.

424.     Although it is NOPSEMA that may give a direction under section 591B, it is the Minister who has the power to make a determination under subsection (2B). This power may be delegated to the CEO of NOPSEMA under section 778 of the OPGGS Act. In performing functions or exercising powers under a delegation, the CEO must comply with any directions given by the Minister.

425.     New subsection 591B(2C) provides that a determination under subsection (2B) is not a legislative instrument. This is merely declaratory of the law rather than prescribing a substantive exemption from the requirements of the Legislation Act 2003.

426.     To ensure transparency, new subsection (2D) ensures that if a direction is given to a person other than the current titleholder, NOPSEMA must give a copy of the direction to the current titleholder as soon as practicable.

427.     Under new section 598B, if a remedial direction would require a person to enter premises, and the person is not the occupier of the premises, the direction applies only to the extent that the occupier consents to entry (see item 43).

428.     Under new section 598A, certain provisions of the OPGGS Act apply in relation to a person who is subject to a remedial direction. These include work practices obligations that apply when carrying out activities in order to comply with the direction, and compliance monitoring and enforcement powers that may be exercised by NOPSEMA. See discussion at item 43.

429.     Where a remedial direction is issued to a person under section 591B and the person does not comply, NOPSEMA may undertake the activity and recover the costs from the person through the courts. Failure to comply with a direction may also result in criminal prosecution.

Item 30: Section 592 (heading)

430.     This item amends the heading of section 592 to reflect the amendments made by this Schedule to enable remedial directions under that section to be given to a former holder, or a related person of a current or former holder, of a GHG title that is in force, as well as to the current holder of the title. See items 31 and 32.

Item 31: Subsection 592(2)

431.     This item amends subsection 592(2) to reflect that remedial directions under section 592 will be able to given to a broader range of persons than the current holder of the title. See discussion at item 32.

Item 32: Before subsection 592(3)

432.     This item inserts new subsections 592(2A) to (2D).

433.     New subsection 592(2A) sets out the persons who can be given a remedial direction by the responsible Commonwealth Minister under section 592 with respect to a title that is in force. Previously, only the current holder of the title could be given a direction under section 592.

434.     The purpose and operation of new subsection 592(2A) is the same as for new subsection 586(2A). See discussion at item 13.

435.     New subsection 592(2B) enables the Minister to make a written determination that that subsection applies to a person. The effect of a determination is that the Minister could give a remedial direction to that person in accordance with paragraph 592(2A)(e).

436.     The purpose and operation of new subsection 592(2B) is the same as for new subsection 586(2B). See discussion at item 13.

437.     New subsection 592(2C) provides that a determination under subsection (2B) is not a legislative instrument. This is merely declaratory of the law rather than prescribing a substantive exemption from the requirements of the Legislation Act 2003.

438.     To ensure transparency, new subsection 592(2D) ensures that if a direction is given to a person other than the current titleholder, the Minister must give a copy of the direction to the current titleholder as soon as practicable.

439.     Under new section 598B, if a remedial direction would require a person to enter premises, and the person is not the occupier of the premises, the direction applies only to the extent that the occupier consents to entry (see item 43).

440.     Under new section 598A, certain provisions of the OPGGS Act apply in relation to a person who is subject to a remedial direction. These include work practices obligations that apply when carrying out activities in order to comply with the direction, and compliance monitoring and enforcement powers that may be exercised by NOPSEMA. See discussion at item 43.

441.     Where a remedial direction is issued to a person under section 592 and the person does not comply, the Minister may undertake the activity and recover the costs from the person through the courts. Failure to comply with a direction may also result in criminal prosecution.

Item 33: Section 594A (heading)

442.     This item amends the heading of section 594A to reflect the amendments made by this Schedule to enable remedial directions under that section to be given a broader range of persons than the former holder of the title. See item 34.

Item 34: Subsections 594A(1) and (2)

443.     This item repeals subsections 594A(1) and (2) and substitutes new subsections 594A(1) to (2D).

444.     The repeal and substitution of a new subsection 594A(1) in effect extends the circumstances in which a remedial direction under section 594A may be given by NOPSEMA.

445.     Previously, a remedial direction could only be given if a permit, lease, licence or authority was (as applicable) revoked, cancelled, terminated, or had expired. In the case of a GHG search authority or a GHG special authority, a direction could also be given if the authority had been surrendered.

446.     The amendment ensures that a direction may be given if a permit, lease, licence or authority ceases to be in force, in whole or in part, for any reason. In effect, this ensures that a direction may also be given if a permit, lease or licence has been wholly or partly surrendered.

447.     Under section 442 of the OPGGS Act, the responsible Commonwealth Minister may only consent to the surrender of a GHG title if certain criteria are met. These criteria include matters relating to decommissioning, which are equivalent to the matters in relation to which a remedial direction may be given. Whether a titleholder has complied with their decommissioning obligations is therefore expressly considered by the Minister prior to consenting to surrender.

448.     However, there may be cases in which infrastructure that was thought to have been satisfactorily decommissioned may have a residual problem, such as a leakage of remnants of petroleum or drilling muds into the marine environment from a well that was thought to have been adequately plugged and abandoned at the time of consent to surrender. The amendment made by this item ensures that NOPSEMA can give a remedial direction to a person who was a holder of the title under which the well was drilled, or a related person, to remedy the problem. This will minimise the risk of the costs of decommissioning failing to the Commonwealth, and ultimately taxpayers, in the event of residual issues arising following the surrender of a title, and ensure that costs are instead borne by those who either held, or had the ability to influence operations under, the title.

449.     As noted above, NOPSEMA can already give a remedial direction to the former holder of a GHG search authority or a GHG special authority that has been surrendered. This is due to the short-term nature of these titles, which means that decommissioning activities may not always be able to be undertaken while the authority is in force. Unlike other title types, there is no provision for a regulatory body to give consent to the surrender of an authority. Instead, the holder of an authority may simply surrender the authority by written notice given to the responsible Commonwealth Minister.

450.     The repeal and substitution of a new subsection 594A(2) ensures that a direction under section 594A can be given by NOPSEMA to a broader range of persons after a GHG title has ceased to be in force. The purpose and operation of this amendment is the same as for the repeal and substitution of subsection 587(2). See discussion at item 18.

451.     New subsection 594A(2A) sets out the persons who can be given a remedial direction by NOPSEMA under section 594A. The purpose and operation of this amendment is the same as for new subsection 587(2A) (see discussion at item 18).

452.     New subsection 594A(2B) enables the responsible Commonwealth Minister to make a written determination that that subsection applies to a person. The effect of a determination is that NOPSEMA could give a remedial direction to that person in accordance with subparagraph 594A(2A)(b)(iii).

453.     The purpose and operation of new subsection 594A(2B) is the same as for new subsection 587(2B). See discussion at item 18.

454.     Although it is NOPSEMA that may give a direction under section 594A, it is the Minister who has the power to make a determination under subsection (2B). This power may be delegated to the CEO of NOPSEMA under section 778 of the OPGGS Act. In performing functions or exercising powers under a delegation, the CEO must comply with any directions given by the Minister.

455.     New subsection 594A(2C) provides that a determination under subsection (2B) is not a legislative instrument. This is merely declaratory of the law rather than prescribing a substantive exemption from the requirements of the Legislation Act 2003.

456.     To ensure transparency, new subsection 594A(2D) ensures that if a direction is given to a person (other than the current titleholder), and the direction requires the person to take an action in or in relation to the title area of another title, NOPSEMA must give a copy of the direction to the holder of that other title as soon as practicable.

457.      Under new section 598B, if a remedial direction would require a person to enter premises, and the person is not the occupier of the premises, the direction applies only to the extent that the occupier consents to entry (see item 43).

458.     Under new section 598A, certain provisions of the OPGGS Act apply in relation to a person who is subject to a remedial direction. These include work practices obligations that apply when carrying out activities in order to comply with the direction, and compliance monitoring and enforcement powers that may be exercised by NOPSEMA. See discussion at item 43.

459.     Where a remedial direction is issued to a person under section 594A and the person does not comply, NOPSEMA may undertake the activity and recover the costs from the person through the courts. Failure to comply with a direction may also result in criminal prosecution.

Item 35: Subsection 594A(4)

460.     This item amends subsection 594A(4) as a consequence of the repeal and substitution of a new subsection 594A(2) (see item 34 of this Schedule). The previous reference in subsection 594A(4) to paragraph 594A(2)(c) is updated to refer to the new equivalent provision in paragraph 594A(2)(d).

Item 36: Subsection 594A(5)

461.     This item amends subsection 594A(5) as a consequence of the repeal and substitution of a new subsection 594A(2) – see item 34 of this Schedule. The previous reference in subsection 594A(5) to paragraph 594A(2)(b) is updated to refer to the new equivalent provision in paragraph 594A(2)(c).

Item 37: Section 595 (heading)

462.     This item amends the heading of section 595 to reflect the amendments made by this Schedule to enable remedial directions under that section to be given a broader range of persons than the former holder of the title. See item 38.

Item 38: Subsections 595(1) and (2)

463.     This item repeals subsections 595(1) and (2) and substitutes new subsections 595(1) to (2D).

464.     The repeal and substitution of a new subsection 595(1) in effect extends the circumstances in which a remedial direction under section 595 may be given by the responsible Commonwealth Minister. The purpose and effect of this amendment is the same as for the repeal and substitution of a new subsection 594A(1). See discussion at item 34.

465.     The repeal and substitution of a new subsection 595(2) ensures that a direction under section 595 can be given by the Minister to a broader range of persons if a GHG title has ceased to be in force. The purpose and operation of this amendment is the same as for the repeal and substitution of subsection 587(2). See discussion at item 18.

466.     New subsection 595(2A) sets out the persons who can be given a remedial direction by the Minister under section 595. The purpose and operation of this amendment is the same as for new subsection 587(2A) (see discussion at item 18).

467.     New subsection 595(2B) enables the Minister to make a written determination that that subsection applies to a person. The effect of a determination is that the Minister could give a remedial direction to that person in accordance with subparagraph 595(2A)(b)(iii).

468.     The purpose and operation of new subsection 595(2B) is the same as for new subsection 587(2B). See discussion at item 18.

469.     New subsection 595(2C) provides that a determination under subsection (2B) is not a legislative instrument. This is merely declaratory of the law rather than prescribing a substantive exemption from the requirements of the Legislation Act 2003.

470.     To ensure transparency, new subsection 595(2D) ensures that if a direction is given to a person (other than the current titleholder), and the direction requires the person to take an action in or in relation to the title area of another title, the Minister must give a copy of the direction to the holder of that other title as soon as practicable.

471.     Under new section 598B, if a remedial direction would require a person to enter premises, and the person is not the occupier of the premises, the direction applies only to the extent that the occupier consents to entry (see item 43).

472.     Under new section 598A, certain provisions of the OPGGS Act apply in relation to a person who is subject to a remedial direction. These include work practices obligations that apply when carrying out activities in order to comply with the direction, and compliance monitoring and enforcement powers that may be exercised by NOPSEMA. See discussion at item 43.

473.     Where a remedial direction is issued to a person under section 595 and the person does not comply, the Minister may undertake the activity and recover the costs from the person through the courts. Failure to comply with a direction may also result in criminal prosecution.

Item 39: Subsection 595(4)

474.     This item amends subsection 595(4) as a consequence of the repeal and substitution of a new subsection 595(2) (see item 38 of this Schedule). The previous reference in subsection 595(4) to paragraph 595(2)(c) is updated to refer to the new equivalent provision in paragraph 595(2)(d).

Item 40: Subsection 595(5)

475.     This item amends subsection 595(5) as a consequence of the repeal and substitution of a new subsection 595(2) – see item 38 of this Schedule. The previous reference in subsection 595(5) to paragraph 595(2)(b) is updated to refer to the new equivalent provision in paragraph 595(2)(c).

Item 41: Subsection 596A(7)

476.     This item repeals and substitutes a new subsection 596A(7) to ensure that that subsection extends to any person who can be given a direction under section 594A as amended by this Schedule, including related persons. Subsection 596A(7) provides for NOPSEMA to recover costs or expenses incurred in relation to the doing of anything required by a direction under section 594A to be done. Under subsection 595A(2), NOPSEMA may do any or all of the things required by a direction to be done if the direction has not been complied with.

Item 42: Subsection 597(5)

477.     This item amends subsection 597(5) to ensure that that subsection extends to any person who can be given a direction under section 595 as amended by this Schedule, including related persons. Subsection 597(5) provides for the responsible Commonwealth Minister to recover costs or expenses incurred in relation to the doing of anything required by a direction under section 595 to be done. Under subsection 596(2), the Minister may do any or all of the things required by a direction to be done if the direction has not been complied with.

Item 43: At the end of Part 6.4 of Chapter 6

478.     This item inserts new sections 598A and 598B.

479.     New section 598A applies certain provisions of the OPGGS Act to persons who are subject to a remedial direction.

480.     Under the OPGGS Act, titleholders are subject to a number of requirements prior to undertaking, and while carrying out, offshore activities. These include the requirement to maintain financial assurance sufficient to give the titleholder the capacity to meet costs, expenses and liabilities arising in connection with, or as a result of, carrying out a petroleum activity, and the polluter pays obligation in the event of an offshore petroleum incident resulting in an escape of petroleum. Titleholders are also subject to compliance monitoring and enforcement by NOPSEMA.

481.     These obligations do not apply to a person who is subject to a remedial direction and is carrying out activities in order to comply with the direction, if that person is not the current holder of a title. However, such persons should be subject to equivalent obligations to current titleholders when carrying out those activities. For example, ensuring the person has sufficient financial assurance will help to ensure the person has capacity to pay for the costs, expenses and liabilities in relation to the activity, including in relation to any incident arising in undertaking the activity.    

482.     The provisions of the OPGGS Act that are applied to a person who is subject to a remedial direction include:

a.       work practices obligations in sections 569 and 570, including the requirement to carry out activities in a proper and workmanlike manner and in accordance with good oilfield practice

b.      the financial assurance obligation in section 571 (for a person who is subject to a remedial direction in relation to a current or former petroleum title)

c.       the polluter pays obligation in Part 6.1A (for a person who is subject to a remedial direction in relation to a current or former petroleum title)

d.      compliance monitoring and enforcement powers in Part 6.5 and Schedules 2A, 2B and 3.  

483.     Section 598A operates by deeming references to persons or things in specified provisions to be a reference to another person or thing (for example, by deeming references to a titleholder to be a reference to a person who is subject to a remedial direction), or by modifying specified provisions if a remedial direction is in force. For example, item 1 of the table in subsection 598A(5) modifies section 280 by applying that section as though subsection 280(1) also applies to a remedial direction in relation to a current or former petroleum title, and subsection 280(2) includes a reference to a person carrying on activities for the purposes of complying with the direction. This places an obligation on a person who is carrying on activities for the purposes of complying with a remedial direction to carry on those activities in a manner that does not interfere with other users of the marine environment to a greater extent than is necessary for the reasonable performance of the duties of the person.  

484.     Amendments to the regulations under the OPGGS Act are also proposed to apply certain provisions of the regulations to persons who are subject to a remedial direction, such as the requirement to have an accepted environment plan prior to undertaking activities, and the requirement to have an accepted well operations management plan prior to undertaking an activity in relation to a well.

485.     If a person is a current titleholder subject to a remedial direction under section 586, 586A, 591B or 592, the OPGGS Act and regulations continue to apply to that person as a titleholder, and the application of new section 598A is not required.

486.     New subsection 598A(6) enables the regulations to provide that the OPGGS Act has effect for the purposes of section 598A with any modifications that are prescribed. The subsection therefore empowers delegated legislation to modify the operation of the OPGGS Act (otherwise known as a ‘Henry VIII clause’). 

487.     The intention of subsection 598A(6) is to enable technical or minor modifications in order to keep the OPGGS Act up to date. The types of regulations that may be made under subsection 598A(6) include regulations that prescribe additional provisions of the OPGGS Act that apply (or do not apply) to persons who are subject to a remedial direction. Section 598A sets out comprehensively how provisions under the OPGGS Act apply to a person who is subject to a remedial direction. However, given the breadth of the scope of remedial directions that could be issued, it may become evident that there are one or more other provision of the OPGGS Act that should apply to persons who are subject to a remedial direction. Alternatively, new legislative obligations may come into force subsequent to the commencement of section 598A. It would only be in the event that it became clear that minor modifications are required that the regulation-making power would be exercised.  

488.     In addition, the power to issue a remedial direction is intended to only be used as a last resort if the current titleholder has not complied with its decommissioning obligations and all other regulatory options have been exhausted. Given that the power to give a direction is intended to be used rarely, the likelihood of modifications needing to be made to the operation of section 598A is also considered to arise very rarely, if at all.

489.     Any modification made pursuant to the regulation-making power in subsection 598A(6) will be subject to appropriate scrutiny through the regulation-making process, which include parliamentary tabling, scrutiny and disallowance procedures.

490.     New section 598B ensures that if a remedial direction would require a person to enter premises, and the person is not the occupier of those premises, the direction only applies to the extent that the occupier gives consent to entry to the premises.

Item 44: Section 780 (heading)

491.     This item amends the heading of section 780 as a consequence of the amendment made by item 45 of this Schedule. The previous heading referred to compensation for acquisition of property. The reference to compensation has been removed as new subsection 780A(2A) effectively ‘switches off’ the requirement to comply with certain provisions of the OPGGS Act to the extent that their operation would result in an acquisition of property otherwise than on just terms, rather than allowing them to operate and requiring the Commonwealth to pay compensation (see discussion at item 45).   

Item 45: After subsection 780(2)

492.     This item inserts a new subsection 780(2A), which provides that the remedial directions provisions have no effect to the extent (if any) to which their operation would result in an acquisition of property otherwise than on just terms.

493.     Under subsection 780(1), if the operation of the OPGGS Act would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person. However, the intent of the amended remedial directions provisions is to mitigate the risk of the Commonwealth (and ultimately the taxpayer) being required to pay for decommissioning of offshore infrastructure and remediation of the marine environment. The preferred policy outcome is that the remedial directions provisions should not have force where they would affect an acquisition of property without just terms, rather than allow them to operate and trigger the compensation requirement. New subsection 780(2A) ensures that a remedial direction has no effect if it would result in an acquisition of property otherwise than on just terms, so that the Commonwealth will not become obligated to pay compensation.

494.     It is unlikely in practice that a remedial direction would result in an acquisition of property otherwise than on just terms. However, new subsection 780(2A) is included as a safeguard for the Commonwealth. 

Item 46: Application and transitional provisions

495.     This item inserts application and transitional provisions for the purposes of this Schedule.

496.     Sub-items (2), (4), (5), (7) and (9) provide for the operation of certain provisions as amended to apply with respect to specified persons in specified circumstances that occurred on or after 1 January 2021. The offshore oil and gas industry were given advance notice of the amendments made by this Schedule through consultation on a revised decommissioning framework. Grandfathering of the amendments is sought in order to ensure that entities are not able to avoid the amended operation of the provisions, such as by transferring a title, after becoming aware of the changes and prior to commencement. This is particularly the case given that delayed commencement is required in order to enable consequential amendments to be made to regulations under the OPGGS Act.

497.     The amended provisions enable remedial directions to be given to an expanded range of persons in an expanded range of circumstances. However, the obligation to comply with a direction will only apply if a person is given a direction after commencement. Grandfathering the amended provisions does not automatically impose backdated obligations with respect to those persons. Remedial directions are only intended to be used as a last resort if the current titleholder has not complied with its decommissioning obligations and all other regulatory options have been exhausted. It is therefore likely to be rare that a person who can only be given a direction as a result of the grandfathering of the amended provisions would actually be given a direction.  

498.     If a direction is given to a person who can only be given a direction as a result of the grandfathering of the amended provisions, that person will be required to comply with the direction by carrying out and paying for activities to decommission infrastructure and/or remediate the marine environment. Given the costs involved in undertaking offshore petroleum or GHG operations, it is likely that these costs could be substantial. However, the intent of the remedial directions provisions is that directions be given to persons who either held, or had the ability to influence operations under, a title, in the event that the titleholder is unable to decommission. The significant financial benefits obtained from operations by persons related to a current or former titleholder would offset the costs of undertaking activities in compliance with the remedial direction. If a direction cannot be given to that person, there is a risk that the requirement to pay for decommissioning and remediation will fall to the Government (and ultimately to the taxpayer).

499.     The period between the date of grandfathered application and the timing of introduction of the Bill into Parliament is relatively short (approximately six months). On balance, it was considered inappropriate to provide for earlier application of the amendments.

500.     Sub-items (3) and (8) ensure that the amendments mentioned in those sub-items do not have retrospective application.

501.     Sub-item (2) ensures that the amendment of section 14 applies in relation to titles that ceased be in force, in whole or in part, on or after 1 January 2021. This is particularly relevant to the amendment to provide that a former title area continues to be ‘vacated area’ for the purposes of the remedial directions provisions even if the area of another title overlaps, in whole or in part, the area of the former title. As per the previous operation of the OPGGS Act, if a title ceased to be in force prior to that date, the area covered by that title will cease to be a ‘vacated area’ for the purposes of the remedial directions provision to the extent to which that area is covered by a subsequent title (whether that is a title that is derived from the title that ceased to be in force or otherwise).

502.     Sub-items (4) and (5) are application provisions for sections 586, 586A, 591B and 592 of the OPGGS Act as amended. Those sections as amended enable a remedial direction to be given to a former titleholder, or a related body corporate of a former titleholder, in relation to a title that is still in force. Sub-item (4) ensures that a direction may only be given to a former titleholder if the former titleholder ceased to hold the title, in whole or in part, on or after 1 January 2021. Similarly, sub-item (5) ensures that a direction may only be given to a person who is or was a related body corporate of a former titleholder if the person was a related body corporate of the former titleholder at the time the title was in force and the former titleholder ceased to hold the title, in whole or in part, on or after 1 January 2021.

503.     Sub-item (9) is an application provision for sections 587, 587A, 594A and 595 of the OPGGS Act as amended. The amendments to those sections expand the range of persons who may be given a remedial direction, and the circumstances in which a remedial direction may be given. A direction may only be given to the current titleholder, or to a related body corporate of the current titleholder, under the sections as amended if the title ceased to be in force in part on or after 1 January 2021. A direction may only be given to a former titleholder, or a related body corporate of a former titleholder, if the former titleholder ceased to hold the title, in whole or in part, on or after 1 January 2021. In addition, with respect to a related body corporate of a former titleholder, that related body corporate must have been a related body corporate of the former titleholder at the time the title was in force.    

504.     Sub-items (4), (5) and (9) operate as limitations on the application of the amended provisions. The sub-items make clear that remedial directions can only be given to the specified persons in the specified circumstances. In all other cases the directions can just be given, for example, a direction can be given to a current titleholder no matter when they became a titleholder.

505.     Sub-items (6) and (7) ensure that the responsible Commonwealth Minister may only make a determination under the provisions listed in sub-item (6) having regard to circumstances or events on or after 1 January 2021, for example, the time at which a related person significantly financially benefited from operations under a title. This ensures that a determination cannot be made in relation to a person having regard only to circumstances or events before that date, and therefore that a remedial direction cannot be given to that person with respect to those events or circumstances.

506.     Sub-item (10) only enables the responsible Commonwealth Minister to recover costs and expenses incurred by the Minister after commencement in doing anything required by a direction or an arrangement under section 587A to be done, if that direction or arrangement is breached. However, it does not matter whether the direction or arrangement was breached before or after commencement. There are currently no directions or arrangements under section 587A. Even if a direction or arrangement under section 587A is made prior to commencement, this amendment will only affect a person who has breached their obligations under the OPGGS Act. 


Schedule 3—Applications and decision-making

Offshore Petroleum and Greenhouse Gas Storage Act 2006

Item 1: Section 7 (at the end of the definition of approved)

507.     This item amends the definition of approved in section 7 to exclude the application of that definition to the use of the term in section 695YC. Section 695YC is inserted by item 231 of this Schedule to require registered holders of titles and other specified persons to notify the Titles Administrator and NOPSEMA if certain events occur. Under subsection 695YC(3), the notice must be given in the approved form and in an approved manner. As a notice under section 695YC is given to both the Titles Administrator and NOPSEMA, subsection 695YC(7) provides for ‘approved’ in this context to mean approved by both the Titles Administrator and the Chief Executive Officer of NOPSEMA.

Item 2: Section 7

508.     This item inserts a definition of civil penalty provision in section 7. The definition is inserted as there are a number of civil penalty provisions in the OPGGS Act, and the term was previously not defined.

Item 3: Subsection 104(3)

509.     This item repeals subsection 104(3) of the Act and substitutes new subsections 104(3) and (3A), which varies the requirements for applications for the grant of a work-bid petroleum exploration permit. The notes at the end of subsection (3A) are replicated from the notes at the end of the previous subsection 104(3).

510.     Previously, subsection 104(3) set out prescriptive application requirements, requiring applications made under section 104 to be accompanied by details of the applicant’s proposals for work and expenditure in relation to the block or blocks specified in the application, the technical qualifications of the applicant and the applicant’s employees, and the technical advice and financial resources available to the applicant.

511.     Under new subsection 104(3), an application for a work-bid petroleum exploration permit must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

512.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

513.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision under subsection 105(2) (that is, a decision whether or not to give the applicant an offer document for the grant of a petroleum exploration permit). This includes the matters that are prescribed in new subsection 105(4) (such as information in relation to the technical advice and the financial resources available to the applicant). It will also include the information that was previously specified in subsection 104(3), such as details of the applicant’s proposals for work and expenditure in relation to the permit area.

514.     New subsection (3A) specifies a period within which information or documents required to accompany an application made under section 104 will be taken to accompany the application, which is before the end of the period specified in the notice published in the Gazette inviting applications for the grant of a permit under subsection 104(1). New subsection (3A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 4: At the end of section 105

515.     This item adds new subsections (3) and (4) to section 105 of the OPGGS Act, which set out the criteria that the Joint Authority must and may have regard to in deciding whether or not to give to an applicant an offer document for the grant of a petroleum exploration permit under subsection 105(2).

516.     In deciding whether or not to give an offer document for a permit, the Joint Authority must have regard to the matters specified in subsection (4). These matters go to determining whether or not the applicant is suitable to hold the permit. These matters include:

a.       whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

                                               i.      carry out the operations and works that will be authorised by the permit; and

                                             ii.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the OPGGS Act, in relation to the permit; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

517.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold a petroleum exploration permit.

518.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

519.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

520.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct offshore petroleum exploration activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

521.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

522.     New paragraph 105(3)(b) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant a work-bid petroleum exploration permit.

523.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in subsection 105(2), but do not provide for merits review of the Joint Authority’s decision. This is because the decision involves the allocation of permits, which authorise the registered holder to carry out petroleum exploration in the specified block or blocks, between competing applicants. If there are multiple applicants, those found to be suitable are ranked based on who, in the Joint Authority’s opinion, is the most deserving of the grant of the permit. This involves an assessment of, amongst other matters, each suitable applicants’ proposed work program (that is, the applicant’s proposed operations and works to be carried out in the block or blocks). If such a decision was able to be reviewed on its merits, the party who has been allocated the permit in relation to the block or blocks would be affected by the overturning of the original decision.

524.     Additionally, decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 5: Subsection 110(6)

525.     This item repeals subsection 110(6) of the OPGGS Act and substitutes new subsections 110(6) and (7), which varies the requirements for applications for a cash-bid petroleum exploration permit. The notes at the end of subsection (7) are replicated from the notes at the end of the previous subsection 110(6).

526.     Previously, subsection (6) set out prescriptive application requirements, requiring applications made under section 110 to be accompanied by details of the technical qualifications of the applicant and the applicant’s employees, and the technical advice and financial resources available to the applicant.

527.     Under new subsection (6), an application for a cash-bid petroleum exploration permit must be in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

528.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

529.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision under subsection 111(1) (that is, a decision whether to invite the applicant to make a cash bid or reject the application), which includes the matters that were previously prescribed in subsection 110(6) (such as information or documents in relation to the technical qualifications, the technical advice and the financial resources available to the applicant).

530.     New subsection (7) specifies a period within which information or documents required to accompany an application made under section 110 will be taken to accompany the application, which is the before the end of the period specified in the notice published in the Gazette inviting applications for the grant of a petroleum exploration permit by way of cash bidding under subsection 110(1). New subsection (7) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 6: Subsection 111(1)

531.     This item omits the reference to the Joint Authority taking into account the matters specified in the notice under paragraph 110(3)(c) when making a decision under subsection 111(1). This requirement has been moved into new subsection 111(1A) (see the discussion in the next item).

Item 7: After subsection 111(1)

532.     This item adds new subsections (1A) and (1B) to section 111 of the OPGGS Act, which set out the criteria that the Joint Authority must and may have regard to in deciding whether or not to invite an applicant to make a cash bid for the grant of a petroleum exploration permit or reject the application under subsection 111(1).

533.     In deciding whether or not to invite an applicant to make a cash bid, the Joint Authority must have regard to the matters specified in the notice under paragraph 110(3)(c), and the matters specified in new subsection 111(1B). These matters go to determining whether or not the applicant is suitable to hold the permit. These matters include:

a.       whether the technical advice and financial resources available to the applicant are sufficient to:

                                               i.      carry out the operations and works that will be authorised by the permit; and

                                             ii.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the OPGGS Act, in relation to the permit; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

534.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold a petroleum exploration permit.

535.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

536.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

537.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct offshore petroleum exploration activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

538.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

539.     New paragraph 111(1A)(b) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to invite an applicant for a cash-bid petroleum exploration permit to make a cash bid for the grant of the permit.

540.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in subsection 111(1), but do not provide for merits review of the Joint Authority’s decision. This is because the decision involves invitations to make cash bids for the grant of permits, which authorise the registered holder to carry out petroleum exploration in the specified block or blocks, between competing applicants. If there are multiple applicants, the Joint Authority must reject an application or make an offer for the grant of the permit within the circumstances determined under sections 112, 112A and 112B. This involves an assessment of, amongst other matters, the reserve price, the highest bid and tie-breaking cash bids. If such a decision was able to be reviewed on its merits, the party who has been allocated the permit in relation to the block or blocks would be affected by the overturning of the original decision.

541.     Additionally, decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 8: After subsection 111(3)

542.     This item inserts new subsection (3A), specifying a period within which a deposit of 10 per cent of the cash bid, which is required to accompany an application made under section 111, will be taken to accompany the application. The bid must be received by the Titles Administrator before the end of the period stated in the invitation to make a cash bid given under subsection 111(1). New subsection (3A) provides applicants with flexibility in making payment to accompany their applications, particularly if, for example, there is a delay in electronic transfers or clearance of cheques. Specifying a period within which payment is required to be made ensures applications, and any accompanying payment, are made within a reasonable period.

Item 9: Subsection 115(4)

543.     This item repeals subsection 115(4) of the OPGGS Act and substitutes new subsections 115(4) and (4A), which varies the requirements for applications for a special petroleum exploration permit over a surrendered block or certain other blocks. The notes at the end of subsection (4A) are replicated from the notes at the end of the previous subsection 115(4).

544.     Previously, subsection (4) set out prescriptive application requirements, requiring applications made under section 115 to be accompanied by details of the applicant’s proposals for work and expenditure in relation to the block or blocks specified in the application, the technical qualifications of the applicant and the applicant’s employees, the technical advice and financial resources available to the applicant and the amount that the applicant would be prepared to pay for the grant of the permit.

545.     Under new subsection (4), an application for a special petroleum exploration permit must be made in the form approved by the Titles Administrator. The application is still required to specify the amount that the applicant would be prepared to pay for the grant of the permit, and must also be accompanied by any information or documents required by the form.

546.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

547.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give the applicant an offer document for the grant of a special petroleum exploration permit), which includes the matters that were prescribed in the previous subsection 115(4) (such as information or documents in relation to the technical advice and the financial resources available to the applicant).

548.     New subsection (4A) specifies a period within which information or documents required to accompany an application made under section 115 will be taken to accompany the application, which is the before the end of the period specified in the notice published in the Gazette inviting applications for the grant of a permit under subsection 115(1). New subsection (4A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 10: Before subsection 115(5)

549.     This item inserts a subheading of ‘Deposit’ before subsection 115(5). The subheading is a reading aid and is not a substantive provision.

Item 11: After subsection 115(5)

550.     This item inserts new subsection (5A), specifying a period within which a deposit of 10 per cent of the amount that the applicant would be prepared to pay for the grant of the permit, which is required to accompany an application made under section 115, will be taken to accompany the application. The deposit must be received by the Titles Administrator before the end of the period specified in the notice published in the Gazette inviting applications for the grant of a special petroleum exploration permit under subsection 115(1). New subsection (5A) provides applicants with flexibility in making payment to accompany their applications, particularly if, for example, there is a delay in electronic transfers or clearance of cheques. By specifying a period within which payment is required to be made ensures applications, and any accompanying payment, are made within a reasonable period.

Item 12: At the end of section 116

551.     This item adds new subsections (3) and (4) to section 116 of the OPGGS Act, which set out the criteria that the Joint Authority must and may have regard to in deciding whether or not to give an applicant an offer document for the grant of a special petroleum exploration permit, where there is only one application in response to a notice under subsection 115(1).

552.     In deciding whether or not to give an offer document, the Joint Authority must have regard to the matters specified in subsection 116(4). These matters go to determining whether or not the applicant is suitable to hold the permit. These matters include:

a.       whether the technical advice and financial resources available to the applicant are sufficient to:

                                               i.      carry out the operations and works that will be authorised by the permit; and

                                             ii.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the OPGGS Act, in relation to the permit; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

553.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold a petroleum exploration permit.

554.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

555.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

556.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct offshore petroleum exploration activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

557.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

558.     New paragraph 116(3)(b) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant a special petroleum exploration permit.

559.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in subsection 116(2), but do not provide for merits review of the Joint Authority’s decision. This is because decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 13: After subsection 117(3)

560.     This item adds new subsections (3A) and (3B) to section 117 of the OPGGS Act, which set out the criteria that the Joint Authority must and may have regard to in deciding whether or not to give an applicant an offer document for the grant of a special petroleum exploration permit, where there are two or more applications in response to a notice under subsection 115(1). The criteria are in addition to those set out in the table in subsection 117(3).

561.     In deciding whether or not to give an offer document for a permit to the person referred to in column 3 of the table in subsection 117(3), the Joint Authority must have regard to the matters specified in subsection 117(3B). These matters go to determining whether or not the applicant is suitable to hold the permit. These matters include:

a.       whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

                                               i.      carry out the operations and works that will be authorised by the permit; and

                                             ii.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

562.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold a petroleum exploration permit.

563.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

564.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

565.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct offshore petroleum exploration activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

566.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

567.     New paragraph 117(3A)(b) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant a special petroleum exploration permit.

568.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in section 117, but do not provide for merits review of the Joint Authority’s decision. This is because this decision involves the allocation of permits, which authorise the registered holder to carry out petroleum exploration in the specified block or blocks, between competing applicants. If there are multiple applicants, those found to be suitable are ranked based on who has specified the highest amount that the applicant is prepared to pay for the permit. There is also a further assessment of, amongst other matters, each suitable applicants’ technical and financial resources (that is, the applicant’s technical and financial ability to carry out operations and works in the block or blocks authorised by the permit). If such a decision was able to be reviewed on its merits, the party who has been allocated the permit in relation to the block or blocks would be affected by the overturning of the original decision.

569.     Additionally, decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 14: After subsection 119(2)

570.     This item adds new subsections (2A), (2B) and (2C) to section 119 of the OPGGS Act, which prescribes the requirements for applications for the renewal of a petroleum exploration permit.

571.     Under subsection (2A), an application for the renewal of a petroleum exploration permit must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

572.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

573.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give the applicant an offer document for the renewal of a petroleum exploration permit, which includes the matters that are prescribed in new subsection 125(2) (such as information or documents in relation to the technical advice and the financial resources available to the applicant). See the discussion in the next item.

574.     New subsection (2B) specifies a period within which information or documents required to accompany an application made under section 119 will be taken to accompany the application, which is the time before the expiry date of the permit. New subsection (2B) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

575.     New subsection (2C) dis-applies, for the operation of new subsection (2B), the effect of subsection 119(5). Subsection 119(5) continues a permit in force under certain circumstances. The effect of new subsection (2C) is that the applicant must provide the required information or documents before the time at which the permit would ordinarily have expired, if not for the application of subsection 119(5).

Item 15: Subsection 125(2)

576.     This item repeals subsection 125(2) (excluding the heading and the notes) and substitutes new subsection 125(2), which sets out the criteria that must be met in order for the Joint Authority to be required to offer to grant a renewal of a petroleum exploration permit.

577.     In order for the Joint Authority to be required to offer to grant a renewal of a permit, the applicant must have complied with the permit conditions and specified provisions of the OPGGS Act and regulation.

578.     The Joint Authority must also be satisfied of the matters specified in paragraph (2)(b). These matters go to determining whether or not the application will remain suitable to hold the permit and include whether the technical advice and financial resources available to the applicant are sufficient to: 

a.       carry out the operations and works that will be authorised by the permit; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the OPGGS Act, in relation to the permit.

579.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

580.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

581.     The Joint Authority must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct offshore petroleum exploration activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

582.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

583.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in subsection 125(2), but do not provide for merits review of the Joint Authority’s decision. This is because this decision involves the renewal of a petroleum exploration permit and provides that the Joint Authority must give an offer document if the criteria in subsection 125(2) are met. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 16: At the end of section 125

584.     This item adds new subsection (4) to the end of section 125, which provides that the Joint Authority must have regard to the matters specified when deciding whether or not there are sufficient grounds to warrant the granting of the renewal of a petroleum exploration permit for the purposes of paragraph 125(3)(b). These matters include whether the technical advice and financial resources available to the applicant are sufficient to:

a.       carry out the operations and works that will be authorised by the permit; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the OPGGS Act, in relation to the permit.

585.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

586.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

587.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct offshore petroleum exploration activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

588.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

589.     New subsection 125(4) does not limit paragraph 125(3)(b). This ensures that the Joint Authority may also take into account any other matters that the Joint Authority considers relevant when deciding whether there are sufficient grounds to warrant the granting of the renewal of the permit.

590.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to renew the permit, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 17: At the end of section 126

591.     This item adds new subsections (3) and (4) to section 126 of the OPGGS Act, which provide for the refusal to renew a petroleum exploration permit on grounds other than those already included in subsection 126(2). Under subsection (3), the Joint Authority must refuse to renew a permit if the Joint Authority is not satisfied that the technical advice and financial resources available to the applicant after the permit is renewed are sufficient to:

a.       carry out the operations and works that will be authorised by the permit; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the OPGGS Act, in relation to the permit.

592.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

593.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

594.     Under subsection (4), the Joint Authority may refuse to renew a permit if the Joint Authority is not satisfied as to the matters (if any) prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct offshore petroleum exploration activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

595.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

596.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to renew the permit, however consultation on the decision is required under section 262. The amendments do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 18: Subsection 141(2)

597.     This item repeals subsection 141(2) of the OPGGS Act and substitutes new subsections 141(2) and (2A), which varies the requirements for applications for a petroleum retention lease by the holder of a petroleum exploration permit. The notes at the end of subsection (2A) are replicated from the notes at the end of the previous subsection 141(2).

598.     Previously, subsection (2) set out prescriptive application requirements, requiring applications made under section 141 to be accompanied by details of the applicant’s proposals for work and expenditure in relation to the area comprised in the block or blocks specified in the application, and the current commercial viability and possible future commercial viability of the recovery of petroleum from that area.

599.     Under new subsection (2), an application for a petroleum retention lease must be made in the form approved by the Titles Administrator. The application must be accompanied by any information or documents required by the form.

600.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

601.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to offer to grant a petroleum retention lease, which includes the matters that were previously prescribed in subsection 141(2) (such as details of the proposals for work and expenditure, and the current and future viability of recovery of petroleum).

602.     New subsection (2A) specifies a period within which information or documents required to accompany an application made under section 141 will be taken to accompany the application, which is before the end of the application period specified in subsections 141(3) and (4) of the Act. New subsection (2A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 19: After paragraph 142(b)

603.     This item adds new paragraphs (c) and (d) to section 142 of the OPGGS Act, which set out additional criteria that the Joint Authority must be satisfied of in order to be required to give to an applicant an offer document for the grant of a petroleum retention lease.

604.     In addition to the criteria specified in paragraphs 142(a) and (b), the Joint Authority must be satisfied of the matters specified in paragraph (c) and any matters prescribed by the regulations (paragraph (d)). These matters go to determining whether or not the applicant is suitable to hold the lease. The matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the lease; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the OPGGS Act, in relation to the lease.

605.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

606.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

607.     The Joint Authority must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct offshore petroleum exploration and appraisal activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

608.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

609.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in section 142, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 20: At the end of section 143

610.     This item adds new subsections (4) and (5) to the end of section 143 of the OPGGS Act, which set out circumstances in which the Joint Authority must or may give a written notice to the applicant refusing to grant a petroleum retention lease.

611.     This is a consequential amendment as a result of the additional requirements that the Joint Authority is to be satisfied of in order to be required to offer to grant a lease under new paragraphs 142(c) and (d), inserted by item 19 (see the discussion in that item).

612.     Under new subsection 143(4), the Joint Authority must refuse an application to grant the petroleum retention lease if the Joint Authority is not satisfied of the matters in paragraph 142(c) (which relate to the applicant’s technical and financial capacity). Under subsection 143(5), the Joint Authority may refuse an application if it is not satisfied of the matters (if any) prescribed by the regulations.

Item 21: Subsection 147(2)

613.     This item repeals subsection 147(2) of the OPGGS Act and substitutes new subsections 147(2) and (2A), which varies the requirements for applications for a petroleum retention lease by the holder of a life-of-field petroleum production licence. The notes at the end of subsection (2A) are replicated from the notes at the end of the previous subsection 147(2).

614.     Previously, subsection (2) set out prescriptive application requirements, requiring applications made under section 147 to be accompanied by details of the applicant’s proposals for work and expenditure in relation to the proposed lease area, and the current commercial viability and possible future commercial viability of the recovery of petroleum from that area.

615.     Under new subsection (2), an application for a petroleum retention lease must be made in the form approved by the Titles Administrator. The application must be accompanied by any information or documents required by the form.

616.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the proposals for work and expenditure) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

617.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give the applicant an offer document for the grant of the lease), which includes the matters that were previously prescribed in subsection 147(2) (such as the proposals for work and expenditure, and the current and future viability of recovery of petroleum).

618.     New subsection (2A) specifies a period within which information or documents required to accompany an application made under section 147 will be taken to accompany the application, which is before the end of the application period specified in subsection 147(3) of the OPGGS Act. New subsection (2A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 22: After paragraph 148(b)

619.     This item adds new paragraphs (c) and (d) to section 148 of the OPGGS Act, which set out additional criteria that the Joint Authority must be satisfied of in order to be required to give to an applicant an offer document for the grant of a petroleum retention lease under section 148.

620.     In addition to the criteria specified in paragraphs 148(a) and (b), the Joint Authority must be satisfied of the matters specified in paragraph (c) and any matters prescribed by the regulations (paragraph (d)). These matters go to determining whether or not the applicant is suitable to hold the lease. These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the lease; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the OPGGS Act, in relation to the lease.

621.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

622.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

623.     The Joint Authority must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish offshore petroleum exploration and appraisal activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

624.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

625.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in section 148, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 23: Section 149

626.     This item repeals and substitutes section 149 of the OPGGS Act, which sets out the circumstances when the Joint Authority must or may refuse an application for a grant of a petroleum retention lease made under section 147.

627.     This is a consequential amendment as a result of the additional requirements that the Joint Authority is to be satisfied of in order to be required to offer to grant a lease under new paragraphs 148(c) and (d), inserted by item 22 (see the discussion in that item).

628.     As for the previous section 149, under new subsection 149(2) the Joint Authority must refuse an application to grant a petroleum retention lease to the applicant if the Joint Authority is not satisfied of the matters in paragraph 148(b). Under new subsection 149(3), the Joint Authority must refuse to grant a lease if the Joint Authority is not satisfied of the matters in paragraph 148(c) (which relate to the applicant’s technical and financial capacity). Under new subsection 149(4), the Joint Authority may refuse an application if it is not satisfied of the matters (if any) prescribed by the regulations for the purposes of paragraph 148(d).

Item 24: Subsection 153(4)

629.     This item repeals subsection 153(4) of the OPGGS Act and substitutes new subsections 153(4), (4A) and (4B), which prescribes the requirements for applications for a renewal of a petroleum retention lease. The notes at the end of subsection (4B) are replicated from the notes at the end of the previous subsection 153(4).

630.     Under new subsection 153(4), an application for the renewal of a petroleum retention lease must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

631.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

632.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give the applicant an offer document for the renewal of a petroleum retention lease, which includes the matters that were previously prescribed in subsection 153(4) (such as details of the applicant’s proposals for work and expenditure in relation to the lease area, and of the current commercial viability and possible future commercial viability of recovery of petroleum from the lease area).

633.     New subsection (4A) specifies a period within which information or documents required to accompany an application made under section 153 will be taken to accompany the application, which is the time before the expiry date of the lease. New subsection (4A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

634.     New subsection (4B) dis-applies, for the operation of new subsection (4A), the effect of subsection 153(5). Subsection 153(5) continues a lease in force under certain circumstances. The effect of new subsection (4B) is that the applicant must provide the required information or documents before the time at which the lease would ordinarily have expired, if not for the application of subsection 153(5).

Item 25: After paragraph 154(2)(b)

635.     This item adds new paragraphs (c) and (d) to subsection 154(2) of the OPGGS Act, which set out additional criteria that the Joint Authority must be satisfied of in deciding whether or not to give to an applicant an offer document for the grant of a renewal of a petroleum retention lease.

636.     In addition to the criteria specified in paragraphs 154(2)(a) and (b), the Joint Authority must be satisfied of the matters specified in paragraph (c) and any matters prescribed by the regulations (paragraph (d)). These matters go to determining whether or not the applicant is suitable to hold the lease. These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the lease; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the lease.

637.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

638.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

639.     The Joint Authority must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish offshore petroleum exploration and appraisal activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

640.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

641.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in subsection 154(2), but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 26: At the end of section 154

642.     This item adds new subsection (4) to the end of section 154, which provides that the Joint Authority must have regard to the matters specified when deciding whether or not there are sufficient grounds to warrant the granting of the renewal of a petroleum retention lease for the purposes of paragraph 154(3)(b). These matters include whether the technical advice and financial resources available to the applicant are sufficient to:

a.       carry out the operations and works that will be authorised by the lease; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the OPGGS Act, in relation to the lease.

643.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

644.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

645.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to carry out offshore petroleum exploration and appraisal activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

646.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

647.     New subsection 154(4) does not limit the matters that the Joint Authority may have regard to in deciding under paragraph 154(3)(b) whether there are sufficient grounds to warrant the granting of the renewal of the lease.

648.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to renew the lease, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 27: After subsection 155(4)

649.     This item adds new subsections (4A) and (4B) to section 155 of the OPGGS Act, which provides for the refusal for the renewal of a petroleum retention lease on grounds other than those already specified in section 155. Under subsection (4A), the Joint Authority must refuse to renew the lease if the Joint Authority is not satisfied that the technical advice and financial resources available to the applicant after the lease is renewed are sufficient to:

a.       carry out the operations and works that will be authorised by the lease; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the lease.

650.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

651.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

652.     Under subsection (4B), the Joint Authority may refuse to renew the lease if the Joint Authority is not satisfied of the matters (if any) prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct offshore petroleum exploration and appraisal activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

653.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

654.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to renew the lease, however consultation on the decision is required under section 262. The amendments do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 28: After subsection 168(5)

655.     This item inserts new subsection 168(5A) into the OPGGS Act, which provides that the Titles Administrator must publish on its website a copy of the instrument approving a manner for giving notice of a variation of an application for the purposes of subsection 168(4). This instrument will set out the approved manner or manners for applications to enable applicants to comply with the requirements in subsection 168(4).

656.     Enabling the Titles Administrator to approve the manner in which applications must be made enables flexibility for applications to be made electronically, in hardcopy or in some other manner.

657.     An instrument of approval of a manner of doing something is not a legislative instrument for the purposes of the Legislation Act 2003.

Item 29: Subsection 168(6)

658.     This item repeals subsection 168(6) of the OPGGS Act and substitutes new subsections 168(6) and (6A), which varies the requirements for applications, or variations of applications, for a petroleum production licence over a block or blocks.

659.     Previously, subsection (6) set out prescriptive application requirements, requiring applications made under section 168 to be accompanied by details of the applicant’s proposals for work and expenditure in relation to the area comprised in the block or blocks covered by the application or the varied application.

660.     Under new subsection (6), an application or variation of an application for a petroleum production licence must be made in the form approved by the Titles Administrator. The application or variation must be accompanied by any information or documents required by the form.

661.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

662.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give the applicant an offer document for the grant of a petroleum production licence, which includes the matters that were previously prescribed in subsection 168(6) (such as the proposals for work and expenditure in the block or blocks).

663.     New subsection (6A) specifies a period within which information or documents required to accompany an application made under section 168 will be taken to accompany the application. For an application, the information or documents must be provided before the end of the application period specified in section 169 of the OPGGS Act. For a variation of an application, the information or documents must be provided within 10 days after the variation is made. New subsection (6A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 30: Subsection 170(3)

664.     This item repeals subsection 170(3) of the OPGGS Act and substitutes new subsections 170(3) and (3A), which varies the requirements for applications for the grant of a petroleum production licence over a block or blocks.

665.     Previously, subsection (3) set out prescriptive application requirements, requiring applications made under section 170 to be accompanied by details of the applicant’s proposals for work and expenditure in relation to the area comprised in the block or blocks specified in the application.

666.     Under new subsection (3), an application for a petroleum production licence must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

667.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

668.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether to give the applicant an offer document for the grant of a petroleum production licence, which includes the matter that was previously prescribed in subsection 170(3) (i.e. information or documents in relation to the applicant’s proposal for work and expenditure).

669.     New subsection (3A) specifies a period within which information or documents required to accompany an application made under section 170 will be taken to accompany the application, which is before the end of the 10-day period that began on the day after the application was made. New subsection (3A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Items 31 and 32: After paragraph 171(1)(b); After paragraph 171(1)(e)

670.     These items add new paragraphs (ba) and (f) to subsection 171(1) of the OPGGS Act, which set out additional criteria that the Joint Authority must be satisfied of in order to be required to give to an applicant an offer document for the grant of a petroleum production licence under section 171.

671.     In addition to the criteria specified in paragraphs 171(1)(a), (b), (c), (d) and (e), the Joint Authority must be satisfied of the matters specified in paragraph (ba). These matters go to determining whether or not the applicant is suitable to hold the licence. These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the licence; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the OPGGS Act, in relation to the licence.

672.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

673.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

674.     Under paragraph (f), the Joint Authority must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct activities to recover offshore petroleum. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

675.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

676.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in section 171, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 33: After subsection 173(4)

677.     This item adds new subsection (4A) to section 173 of the OPGGS Act, which provides additional grounds for a refusal to grant a petroleum production licence. The Joint Authority must refuse to grant a licence if the Joint Authority is not satisfied of the criteria in new paragraph 171(1)(ba) as to whether the technical advice and financial resources available to the applicant after the licence is granted are sufficient to:

a.       carry out the operations and works that will be authorised by the licence; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence.

678.     Please see the discussion at items 31 and 32.

Item 34: After subsection 173(7)

679.     This item adds new subsection (7A) to section 173 of the OPGGS Act, which provides additional grounds for a refusal to grant a petroleum production licence. The Joint Authority may refuse to grant a petroleum production licence to the applicant if it is not satisfied of the matters (if any) prescribed by the regulations for the purposes of paragraph 171(1)(f). Please see the discussion at items 31 and 32.

680.     These amendments will provide the Joint Authority with administrative discretion in relation to whether to refuse to grant a petroleum production licence, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 35: Subsection 178(3)

681.     This item repeals subsection 178(3) of the OPGGS Act (excluding the heading) and substitutes new subsections 178(3) and (3A), which varies the requirements for applications for a cash-bid petroleum production licence over a surrendered block or similar blocks. The notes at the end of subsection (3A) are replicated from the notes at the end of the previous subsection 178(3).

682.     Previously, subsection (3) set out prescriptive application requirements, requiring applications made under section 178 to be accompanied by details of the applicant’s proposals for work and expenditure in relation to the area comprised in the block specified in the application, and the amount that the applicant would be prepared to pay for the grant of the licence.

683.     Under new subsection (3), an application for a cash-bid petroleum production licence must be made in the form approved by the Titles Administrator. The application is still required to specify the amount that the applicant would be prepared to pay for the grant of the licence, and must also be accompanied by any information or documents required by the form.

684.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

685.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give the applicant an offer document for the grant of a petroleum production licence, which includes the matters that were previously prescribed in subsection 178(3) (such as details of the applicant’s proposals for work and expenditure).

686.     New subsection (3A) specifies a period within which information or documents required to accompany an application made under section 178 will be taken to accompany the application, which is the before the end of the period specified in the notice published in the Gazette inviting applications for the grant of a petroleum production licence under subsection 178(1). New subsection (3A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 36: After subsection 178(4)

687.     This item inserts new subsection (4A) into section 178 of the OPGGS Act, specifying a period within which the deposit of 10 per cent of the cash bid, which is required to accompany an application made under section 178, will be taken to accompany the application. The Titles Administrator must receive the deposit before the end of the period specified in the notice published in the Gazette inviting applications for the grant of a petroleum production licence by way of cash bidding under subsection 178(1). New subsection (4A) provides applicants with flexibility in making payment to accompany their applications, particularly if, for example, there is a delay in electronic transfers or clearance of cheques. Specifying a period within which payment is required to be made ensures applications, and any accompanying payment, are made within a reasonable period.

Item 37: At the end of section 179

688.     This item adds new subsections (3) and (4) to section 179 of the OPGGS Act, which set out the criteria that the Joint Authority must and may have regard to in deciding whether or not give an offer document to the applicant for the grant of a petroleum production licence over a block or reject the application under subsection 179(2), where there is only one application.

689.     In deciding whether or not to give an offer document for a licence, the Joint Authority must have regard to the matters specified in subsection 179(4). These matters go to determining whether or not the applicant is suitable to hold the licence. These matters include:

a.       whether the technical advice and financial resources available to the applicant after the licence is granted are sufficient to:

                                               i.      carry out the operations and works that will be authorised by the licence; and

                                             ii.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

690.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold a petroleum production licence.

691.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

692.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

693.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct activities to recover offshore petroleum. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

694.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

695.     New paragraph 179(3)(b) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant a cash-bid petroleum production licence.

696.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in section 179, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 38: After subsection 180(2)

697.     This item inserts new subsections (2A) and (2B) to section 180 of the OPGGS Act, which set out the criteria that the Joint Authority must and may have regard to in deciding whether or not give an offer document to the applicant for the grant of a petroleum production licence over a block or reject the application under section 180, where there are two or more applications. The criteria are in addition to the criteria specified in the table in subsection 180(3).

698.     In deciding whether or not to give an offer document for a licence, the Joint Authority must have regard to the matters specified in subsection 180(2B). These matters go to determining whether or not the applicant is suitable to hold the licence. These matters include:

a.       whether the technical advice and financial resources available to the applicant after the licence is granted are sufficient to:

                                               i.      carry out the operations and works that will be authorised by the licence; and

                                             ii.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

699.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold a petroleum production licence.

700.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

701.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

702.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct activities to recover offshore petroleum. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

703.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

704.     New paragraph 180(2A)(b) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to reject an application for a cash-bid petroleum production licence.

705.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in subsections 180(2) and (3), but do not provide for merits review of the Joint Authority’s decision. This is because the decision involves the grant of licences, which authorise the registered holder to recover petroleum in the specified block or blocks, between competing applicants. If there are multiple applicants, the Joint Authority must reject an application or make an offer within the circumstances determined under section 180. This involves an assessment of, amongst other matters, the highest bid for the grant of a petroleum production licence. If such a decision was able to be reviewed on its merits, the party who has been allocated the licence in relation to the block or blocks would be affected by the overturning of the original decision.

706.     Additionally, decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 39: Subsection 184(5)

707.     This item repeals subsection (5) of section 184 of the OPGGS Act and substitutes new subsections (5), (5A) and (5B), which prescribe the requirements for applications for the renewal of a fixed-term petroleum production licence. The notes at the end of subsection (5B) are replicated from the notes at the end of the previous subsection 184(5).

708.     Previously, subsection (5) set out prescriptive application requirements, requiring applications made under section 184 to be accompanied by the details of the applicant’s proposals for work and expenditure in relation to the licence area.

709.     Under new subsection (5), an application for the renewal of a fixed-term petroleum production licence must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

710.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

711.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give the applicant an offer document for the renewal of a fixed-term petroleum production licence, which includes the matter that was previously prescribed in subsection 184(5) (i.e. details of the licensee’s proposals for work and expenditure).

712.     New subsection (5A) specifies a period within which information or documents required to accompany an application made under section 184 will be taken to accompany the application, which is the time before the expiry date of the licence. New subsection (5A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

713.     New subsection (5B) dis-applies, for the operation of new subsection (5A), the effect of existing subsection 184(6). Subsection 184(6) continues a licence in force under certain circumstances. The effect of new subsection (5B) is that the applicant must provide the required information or documents before the time at which the licence would ordinarily have expired, if not for the application of subsection 184(6).

Item 40: After paragraphs 185(2)(b) and (3)(b)

714.     This item adds new paragraphs (c) and (d) to subsections 185(2) and (3), to provide additional criteria that the Joint Authority must be satisfied of in order to be required to offer to grant a renewal of a fixed-term petroleum production licence. These matters include whether the technical advice and financial resources available to the applicant after the offer document is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the licence; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence.

715.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

716.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

717.     The Joint Authority must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct activities to recover offshore petroleum. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

718.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

719.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to renew the licence, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 41: At the end of section 185 (before the note)

720.     This item adds new subsection (5) to the end of section 185, which provides that the Joint Authority must have regard to the matters specified when deciding whether or not there are sufficient grounds to warrant the granting of the renewal of the fixed-term petroleum production licence. These matters include whether the technical advice and financial resources available to the applicant after the licence is granted are sufficient to:

a.       carry out the operations and works that will be authorised by the licence; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence.

721.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

722.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

723.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct activities to recover offshore petroleum. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

724.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

725.     New subsection 185(5) does not limit paragraph 185(4)(b), which means that the Joint Authority is entitled to take any other matters that the Joint Authority considers relevant into account when deciding whether it is satisfied that there are sufficient grounds to warrant the granting of the renewal of the petroleum production licence.

726.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to renew the licence, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 42: At the end of section 186

727.     This item adds new subsections (4) and (5) to section 186 of the Act, which provides for the refusal of the renewal of a petroleum production licence on grounds other than those provided under subsections 186(2) and (3). Under subsection (4),  the Joint Authority must refused to renew the licence if the Joint Authority is not satisfied that the technical advice and financial resources available to the applicant after the licence is renewed are sufficient to:

a.       carry out the operations and works that will be authorised by the licence; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence.

728.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

729.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

730.     Under subsection (5), the Joint Authority may refuse to renew the licence if the Joint Authority is not satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct activities to recover offshore petroleum. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

731.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

732.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to renew the licence, however consultation on the decision is required under section 262. The amendments do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 43: Subsection 198(2)

733.     This item repeals subsection 198(2) of the OPGGS Act and substitutes new subsections 198(2) and (3), which varies the requirements for applications for the grant an infrastructure licence. The notes at the end of subsection (3) are replicated from the notes at the end of the previous subsection 198(2).

734.     Previously, subsection (2) set out prescriptive application requirements, requiring applications made under section 198 to be accompanied by details of the applicant’s proposals for the construction and operation of infrastructure facilities in an offshore area described in the application.

735.     Under new subsection (2), an application for an infrastructure licence must be made in the form approved by the Titles Administrator. The application is still also required to describe the place in the offshore area at which the proposed infrastructure facilities will be constructed and operated, and must also be accompanied by any information or documents required by the form.

736.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

737.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether to give the applicant an offer document for the grant of an infrastructure licence (such as information or documents relating to the technical or financial capacity of the applicant).

738.     New subsection (3) specifies a period within which information or documents required to accompany an application made under section 198 will be taken to accompany the application, which is before the end of the 10-day period that began on the day after the application was made. New subsection (3) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 44: Section 199

739.     This item inserts ‘(1)’ to make previous section 199 of the OPGGS Act into subsection 199(1), as a consequence of the addition of subsections made by the next item.

Item 45: At the end of section 199

740.          This item adds new subsections (2) and (3) to section 199 of the OPGGS Act, which set out the criteria that the Joint Authority must and may have regard to in deciding whether or not to give to an applicant an offer document for the grant of an infrastructure licence under subsection 199(1).

741.          In deciding whether or not to give an offer document for a licence, the Joint Authority must have regard to the matters specified in subsection (3). These matters go to determining whether or not the applicant is suitable to hold the licence. These matters include:

a.       whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

                                                i.     carry out the operations and works that will be authorised by the licence; and

                                              ii.     discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

742.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold an infrastructure licence.

743.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

744.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

745.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate petroleum or GHG related infrastructure facilities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

746.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

747.     New paragraph 199(2)(b) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant an infrastructure licence.

748.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to grant the licence, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 46: Subsection 204(2)

749.     This item repeals subsection 204(2) of the OPGGS Act and substitutes new subsections 204(2) and (3), which varies the requirements for applications for a variation of an infrastructure licence. The notes at the end of subsection (3) are replicated from the notes at the end of the previous subsection 204(2).

750.     Previously, subsection (2) set out prescriptive application requirements, requiring applications made under section 204 to be accompanied by details of the applicant’s proposed variation and the reasons for the variation.

751.     Under new subsection (2), an application for a variation of an infrastructure licence must be made in the form approved by the Titles Administrator. The application for variation must be accompanied by any information or documents required by the form.

752.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

753.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to vary the licence, which includes the matters that were previously prescribed in subsection 204(2) (such as the details of, and the reasons for, the variation).

754.     New subsection (3) specifies a period within which information or documents required to accompany an application made under section 204 will be taken to accompany the application, which is before the end of the 10-day period that began on the day after the application was made. New subsection (3) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 47: After subsection 205(1)

755.     This item inserts new subsections (1A) and (1B) to section 205 of the OPGGS Act, which set out the criteria that the Joint Authority must and may have regard to in deciding whether or not to vary an infrastructure licence under subsection 205(1).

756.     In deciding whether or not to vary a licence, the Joint Authority must have regard to the matters specified in subsection (1B). These matters go to determining whether or not the applicant is suitable to hold the licence as varied. These matters include whether the technical advice and financial resources available to the applicant are sufficient to:

a.       carry out the operations and works that will be authorised by the licence as varied; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence as varied.

757.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the licence if the licence were varied in accordance with the application, in addition to its work and obligations under any existing titles.

758.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a variation of a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

759.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate petroleum or GHG related infrastructure facilities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

760.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

761.     New paragraph 205(1A)(b) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to vary an infrastructure licence.

762.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to vary the licence, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the variation of a title. Decisions concerning the variation of titles are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 48: Subsections 217(2) and (3)

763.     This item repeals subsections 217(2) and (3) of the OPGGS Act and substitutes new subsections 217(2) and (3), which varies the requirements for applications for the grant of a pipeline licence. The notes at the end of subsection (3) are replicated from the notes at the end of the previous subsection 217(3).

764.     Previously, subsections (2) and (3) set out prescriptive application requirements, requiring applications made under section 217 to be accompanied by, for example, details of the proposal for the construction of the pipeline, work and expenditure, technical advice and financial resources available to the applicant, and a plan of the details of the pipeline drawn to an approved scale.

765.     Under new subsection (2), an application for a pipeline licence must be made in the form approved by the Titles Administrator. The application must be accompanied by any information or documents required by the form.

766.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

767.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to grant the licence, which includes the matters that were previously prescribed in subsections 217(2) and (3) (such as the details of the proposed construction and the accompanying plan).

768.     New subsection (3) specifies a period within which information or documents required to accompany an application made under section 217 will be taken to accompany the application, which is before the end of the 10-day period that began on the day after the application was made. New subsection (3) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 49: After subsection 221(2)

769.     This item inserts new subsections (2A) and (2B) to section 221 of the OPGGS Act, which set out the criteria that the Joint Authority must and may have regard to in deciding whether or not to give an offer document for the grant of a petroleum-related pipeline licence to a person other than the petroleum production licensee under subsection 221(2).

770.     In deciding whether or not to give an offer document for a licence, the Joint Authority must have regard to the matters specified in subsection (2B). These matters go to determining whether or not the applicant is suitable to hold the licence. These matters include:

a.       whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

                                               i.      carry out the operations and works that will be authorised by the licence; and

                                             ii.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

771.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold a pipeline licence.

772.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

773.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

774.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate petroleum-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

775.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

776.     New paragraph 221(2A)(b) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant a pipeline licence under subsection 221(2).

777.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to grant the licence, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 50: After paragraph 221(3)(c)

778.     This item adds new paragraphs (d) and (e) to subsection 221(3) of the OPGGS Act, which set out additional criteria that the Joint Authority must be satisfied of in order to be required to give an offer document for the grant of a petroleum-related pipeline licence to a person who is the petroleum production licensee under subsection 221(3).

779.     In addition to the criteria specified in paragraphs 221(3)(a), (b) and (c), the Joint Authority must be satisfied of the matters specified in paragraph (d) and any matters prescribed by the regulations (paragraph (e)). These matters go to determining whether or not the applicant is suitable to hold the licence. These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the licence; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence.

780.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

781.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

782.     The Joint Authority must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate petroleum-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

783.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

784.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in subsection 221(3), but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 51: After subsection 221(4)

785.     This item inserts new subsection (4A) to section 221, which provides that the Joint Authority must have regard to the matters specified when deciding whether or not there are sufficient grounds to warrant the granting of a petroleum-related pipeline licence to the petroleum production licensee for the purposes of subsection 221(4). These matters include whether the technical advice and financial resources available to the applicant after the licence is granted are sufficient to:

a.       carry out the operations and works that will be authorised by the licence; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence.

786.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

787.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

788.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate petroleum-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

789.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

790.     New subsection 221(4A) does not limit paragraph 221(4)(d), which ensures that that the Joint Authority may take any other matters that the Joint Authority considers relevant into account when deciding whether it is satisfied that there are sufficient grounds to warrant the granting of the pipeline licence.

791.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to grant the licence, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 52: After subsection 221(5)

792.     This item inserts new subsections (5A) and (5B) to section 221 of the OPGGS Act, which set out the criteria that the Joint Authority must and may have regard to in deciding whether or not to give an offer document for the grant of a pipeline licence in relation to construction of a petroleum pipeline for conveyance of petroleum recovered from a place beyond the outer limits of any offshore area under subsection 221(5).

793.     In deciding whether or not to give an offer document for a licence, the Joint Authority must have regard to the matters specified in subsection (5B). These matters go to determining whether or not the applicant is suitable to hold the licence. These matters include:

a.       whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

                                               i.      carry out the operations and works that will be authorised by the licence; and

                                             ii.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

794.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold a pipeline licence.

795.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

796.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

797.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate petroleum-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

798.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

799.     New paragraph 221(5A)(b) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant a pipeline licence under subsection 221(5).

800.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to grant the licence, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 53: Subsection 221(6)

801.     This item repeals and substitutes a new subsection 221(6) (excluding the heading and the notes). The new subsection specifies that the route to be followed by the pipeline must be specified in the offer document given to the applicant in relation to an application for a pipeline licence made under section 221.

802.     Previously, subsection 221(6) required the route to be followed by the pipeline to be the route shown in the plan accompanying the application, or a route that the Joint Authority considered to be more appropriate. However, section 217 no longer specifies that an application must be accompanied by a plan showing the route to be followed by the pipeline. Rather, the plan will be one of the documents that will be required to accompany the approved application form – see discussion at item 48.

803.     This item therefore removes the specific reference to the form accompanying the application in subsection 221(6). In practice, the offer document will continue to specify either the route shown in the plan, or a route that the Joint Authority considers to be more appropriate.

Item 54: After subsection 222(2)

804.     This item inserts new subsections (2A) and (2B) to section 222 of the OPGGS Act, which set out the criteria that the Joint Authority must and may have regard to in deciding whether or not to give an offer document for the grant of a GHG-related pipeline licence to a person other than the relevant petroleum production licensee under subsection 222(2).

805.     In deciding whether or not to give an offer document for a licence, the Joint Authority must have regard to the matters specified in subsection (2B). These matters go to determining whether or not the applicant is suitable to hold the licence. These matters include:

a.       whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

                                               i.      carry out the operations and works that will be authorised by the licence; and

                                             ii.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

806.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold a pipeline licence.

807.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

808.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

809.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate GHG-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

810.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

811.     New paragraph 222(2A)(b) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant a pipeline licence under subsection 222(2).

812.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to grant the licence, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 55: After paragraph 222(3)(d)

813.     This item adds new paragraphs (e) and (f) to subsection 222(3) of the OPGGS Act, which set out additional criteria that the Joint Authority must be satisfied of in order to be required to give to an applicant who is the petroleum production licensee an offer document for the grant of a GHG-related pipeline licence under subsection 221(3).

814.     In addition to the criteria specified in paragraphs 222(3)(a), (b), (c) and (d), the Joint Authority must be satisfied of the matters specified in paragraph (e) and any matters prescribed by the regulations (paragraph (f)). These matters go to determining whether or not the applicant is suitable to hold the licence. These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the licence; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence.

815.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

816.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

817.     The Joint Authority must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate GHG-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

818.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

819.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in subsection 222(3), but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 56: After subsection 222(4)

820.     This item inserts new subsection (4A) to section 222, which provides that the Joint Authority must have regard to the matters specified when deciding whether or not there are sufficient grounds to warrant the granting of a GHG-related pipeline licence to the relevant petroleum production licensee for the purposes of subsection 222(4). These matters include whether the technical advice and financial resources available to the applicant after the licence is granted are sufficient to:

a.       carry out the operations and works that will be authorised by the licence; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence.

821.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

822.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

823.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate GHG-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

824.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

825.     New subsection 222(4A) does not limit paragraph 222(4)(e), which ensures that the Joint Authority may take into account any other matters that the Joint Authority considers relevant when deciding whether it is satisfied that there are sufficient grounds to warrant the granting of the pipeline licence.

826.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to grant the licence, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 57: After subsection 222(5)

827.     This item inserts new subsections (5A) and (5B) to section 222 of the OPGGS Act, which set out the criteria that the Joint Authority must and may have regard to in deciding whether or not to give an offer document for the grant of a GHG-related pipeline licence to a person other than the greenhouse gas injection licensee under subsection 222(5).

828.     In deciding whether or not to give an offer document for a licence, the Joint Authority must have regard to the matters specified in subsection (5B). These matters go to determining whether or not the applicant is suitable to hold the licence. These matters include:

a.       whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

                                               i.      carry out the operations and works that will be authorised by the licence; and

                                             ii.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

829.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold a pipeline licence.

830.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

831.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

832.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate GHG-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

833.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

834.     New paragraph 222(5A)(b) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant a pipeline licence under subsection 222(5).

835.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to grant the licence, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 58: After paragraph 222(6)(d)

836.     This item adds new paragraphs (e) and (f) to subsection 222(6) of the OPGGS Act, which set out additional criteria that the Joint Authority must be satisfied of in order to be required to give to an applicant who is the greenhouse gas injection licensee an offer document for the grant of a GHG-related pipeline licence under subsection 222(6).

837.     In addition to the criteria specified in paragraphs 222(6)(a), (b), (c) and (d), the Joint Authority must be satisfied of the matters specified in paragraph (e) and any other matters prescribed by the regulations (paragraph (f)). These matters go to determining whether or not the applicant is suitable to hold the licence. These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the licence; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence.

838.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

839.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

840.     The Joint Authority must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate GHG-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

841.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

842.     These amendments will provide the Joint Authority with administrative discretion in relation to the existing decision-making power provided for in subsection 222(6), but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 59: After subsection 222(7)

843.     This item inserts new subsection (7A) to section 222 of the OPGGS Act, which provides that the Joint Authority must have regard to the matters specified when deciding whether or not there are sufficient grounds to warrant the granting of a GHG-related pipeline licence to the greenhouse gas injection licensee. These matters include whether the technical advice and financial resources available to the applicant after the offer document is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the licence; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence.

844.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

845.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

846.     The Joint Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate GHG-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

847.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

848.     These amendments will provide the Joint Authority with administrative discretion in relation to whether or not the Joint Authority is prepared to grant the licence, but do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 60: Subsection 222(8)

849.     This item repeals and substitutes subsection 222(8) (excluding the heading and the notes). The new subsection specifies that the route to be followed by the pipeline must be specified in the offer document given to the applicant in relation to an application for a GHG-related pipeline licence made under section 222.

850.     Previously, subsection 222(8) required the route to be followed by the pipeline to be the route shown in the plan accompanying the application, or a route that the Joint Authority considered to be more appropriate. However, section 217 no longer specifies that an application must be accompanied by a plan showing the route to be followed by the pipeline. Rather, the plan will be one of the documents that will be required to accompany the approved application form – see discussion at item 48.

851.     This item therefore removes the specific reference to the form accompanying the application in subsection 222(8). In practice, the offer document will continue to specify either the route shown in the plan, or a route that the Joint Authority considers to be more appropriate

Item 61: After subsection 223(2)

852.     This item adds new subsection (2A) to section 223 of the OPGGS Act, which provides additional grounds for a refusal to grant a petroleum-related pipeline licence to an applicant who is the petroleum production licensee. The Joint Authority may refuse to grant the pipeline licence to the applicant if it is not satisfied of the matters (if any) prescribed by the regulations.

853.     Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate petroleum-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

854.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

855.     These amendments will provide the Joint Authority with administrative discretion in relation to whether to refuse to grant a pipeline licence, however consultation on the decision is required under section 262. The amendments do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 62: At the end of section 223

856.     This item adds new subsections (4) and (5) to section 223 of the OPGGS Act.

857.     Under new subsection (4), the Joint Authority must have regard to any matters prescribed in the regulations when deciding whether to refuse to grant a petroleum-related pipeline licence to a person who is not the petroleum production licensee under subsection 223(3). This does not limit the matters that the Joint Authority may take into account when deciding whether to refuse to grant the licence. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate petroleum-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

858.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

859.     New subsection (5) provides for the refusal of the grant of a petroleum-related pipeline licence to any applicant on grounds other than those specified in other subsections in section 223. The Joint Authority must refuse to grant the licence if the Joint Authority is not satisfied that the technical advice and financial resources available to the applicant after the licence is granted are sufficient to:

a.       carry out the operations and works that will be authorised by the licence; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence.

860.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

861.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter or remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

862.     These amendments will provide the Joint Authority with administrative discretion in relation to whether to refuse to grant a petroleum-related pipeline licence, however consultation on the decision is required under section 262. The amendments do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 63: After subsection 224(2)

863.     This item adds new subsection (2A) to section 224 of the OPGGS Act, which provides additional grounds for a refusal to grant a GHG-related pipeline licence to an applicant who is a licensee of a petroleum production licence. The Joint Authority may refuse to grant the pipeline licence to the applicant if it is not satisfied of the matters (if any) prescribed by the regulations.

864.     Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate GHG-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

865.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

866.     These amendments will provide the Joint Authority with administrative discretion in addition to whether to refuse to grant a GHG-related pipeline licence, however consultation on the decision is required under section 262. The amendments do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 64: After subsection 224(4)

867.     This item adds new subsection (4A) to section 224 of the OPGGS Act, which provides additional grounds for a refusal to grant a GHG-related pipeline licence to an applicant who is the licensee of a GHG injection licence. The Joint Authority may refuse to grant the pipeline licence to the applicant if it is not satisfied of the matters (if any) prescribed in the regulations.

868.     Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate GHG-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

869.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

870.     These amendments will provide the Joint Authority with administrative discretion in relation to whether to refuse to grant a GHG-related pipeline licence, however consultation on the decision is required under section 262. The amendments do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 65: At the end of section 224

871.     This item adds new subsections (6) and (7) to section 224 of the OPGGS Act.

872.     Under new subsection (6), the Joint Authority must have regard to any matters prescribed in the regulations when deciding whether to refuse to grant a GHG-related pipeline licence to a person who is not the greenhouse gas injection licensee under subsection 224(5). This does not limit the matters that the Joint Authority may take into account when deciding whether to refuse to grant the licence. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate GHG-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

873.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

874.     New subsection (7) provides for the refusal of the grant of a GHG-related pipeline licence to any applicant on grounds other than those specified in other subsections in section 224. The Joint Authority must refuse to grant the licence if the Joint Authority is not satisfied that the technical advice and financial resources available to the applicant after the licence is granted are sufficient to:

a.       carry out the operations and works that will be authorised by the licence; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence.

875.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

876.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter or remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

877.     These amendments will provide the Joint Authority with administrative discretion in relation to whether to refuse to grant a GHG-related pipeline licence, however consultation on the decision is required under section 262. The amendments do not provide for merits review of the Joint Authority’s decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 66: Subsection 226(2)

878.     This item repeals subsection 226(2) of the OPGGS Act and substitutes new subsections 226(2) and (2A), which varies the requirements for applications for a variation of a pipeline licence by the licensee. The notes at the end of subsection (2A) are replicated from the notes at the end of the previous subsection 226(2).

879.     Previously, subsection (2) set out prescriptive application requirements, requiring applications made under section 226 to be accompanied by details of the applicant’s proposed variation and the reasons for the variation.

880.     Under new subsection (2), an application for a variation of a pipeline licence must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

881.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

882.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to vary the pipeline license, which includes the matters that were previously prescribed in subsection 226(2) (such as the details of, and the reasons for, the variation).

883.     New subsection (2A) specifies a period within which information or documents required to accompany an application made under section 226 will be taken to accompany the application, which is before the end of the 10-day period that began on the day after the application was made. New subsection (2A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 67: Subsection 226(4)

884.     This item amends subsection 226(4) to remove reference to subsection (3) and substitute reference to subsection (4A). See the discussion in the next item.

Item 68: After subsection 226(4)

885.     This item inserts new subsections (4A) and (4B) to section 226 of the OPGGS Act, which set out the criteria that the Joint Authority must and may have regard to in deciding whether or not to vary a pipeline licence under subsection 226(4).

886.     In deciding whether or not to vary a licence, the Joint Authority must have regard to any submissions made to the Titles Administrator under subsection 226(3). The Joint Authority may have regard to the matters specified in subsection 226(4B). These matters go to determining whether or not the applicant is suitable to hold the licence as varied. These matters include whether the technical advice and financial resources available to the applicant are sufficient to:

a.       carry out the operations and works that will be authorised by the licence as varied; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the licence as varied.

887.     When considering the technical and financial resources available to the applicant it would be legitimate for the Joint Authority to consider other title holdings held by the applicant. The Joint Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the licence as varied, in addition to its work and obligations under any existing titles.

888.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a variation of a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

889.     The Joint Authority may also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to construct and operate petroleum or GHG-related pipelines in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

890.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

891.     The Joint Authority may, rather than must, take the matters in subsection 226(4B) into account, as the criteria will not be relevant in all circumstances. For example, in many cases an application to vary a pipeline licence relates to minor administrative matters only, and it would be unnecessarily burdensome to require the Joint Authority to take into account financial and technical matters in such a case. However, the Joint Authority would take the matters into account when considering applications to make more substantive variations to a pipeline licence.

892.     New subparagraph 226(4A)(b)(ii) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to vary a pipeline licence.

893.     These amendments will provide the Joint Authority with administrative discretion in addition to the existing decision-making power provided for in subsection 226(4), but do not provide for merits review of the Joint Authority’s decision. The decision concerns the variation of titles. Decisions concerning the variation of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 69: At the end of section 255

894.     This item adds new subsection (3) to section 255 of the OPGGS Act, which applies standard procedures for petroleum titles applications and cash bids or tie-breaking cash bids that are made under the OPGGS Act.

895.     New subsection 255(3) provides that the Titles Administrator must publish on its website a copy of the instrument approving a manner for making an application, cash-bid or tie-breaking cash-bid. This instrument will set out the approved manner or manners for applications to enable applicants to comply with the requirements in the Act.

896.     Enabling the Titles Administrator to approve the manner in which applications must be made enables flexibility for applications to be made electronically, in hardcopy or in some other manner.

897.     An instrument of approval of a manner of doing something is not a legislative instrument for the purposes of the Legislation Act 2003.

Item 70: After subsection 256(4)

898.     This item inserts new subsection 256(4A), specifying a period within which an application fee, which is required to accompany an application referred to in subsection 256(1), will be taken to accompany the application. The application fee must be received before the end of the 10-day period beginning on the day after the application was made. New subsection (4A) provides applicants with flexibility in making payment to accompany their applications, particularly if, for example, there is a delay in electronic transfers or clearance of cheques. Specifying a period within which payment is required to be made ensures applications, and any accompanying payment, are made within a reasonable period.

Item 71: After subsection 264(2)

899.     This item inserts new subsection (2AA) into section 264 of the OPGGS Act, which sets out the criteria that the Joint Authority may have regard to in deciding whether or not to vary, suspend or exempt a permittee, lessee or licensee from compliance with any of the conditions to which the permit, lease or licence is subject under subsection 264(2).

900.     In making a decision, the Joint Authority may have regard to the matters specified in new subsection 264(2AA). These matters go to determining whether or not the permittee, lessee or licensee is suitable to continue to carry out operations under the permit, lease or licence if the condition is varied or suspended, or if the permittee, lessee or licensee is exempted from compliance with the condition. These matters include whether the technical advice and financial resources available to the permittee, lessee or licensee are sufficient to:

a.       carry out the operations and works that will be authorised by the permit, lease or licence if the condition is varied or suspended, or the permittee, lessee or licensee is exempted from compliance with the condition; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit, lease or licence if the condition is varied or suspended, or the permittee, lessee or licensee is exempted from compliance with the condition.

901.     When considering the technical and financial resources available to the permittee, lessee or licensee it would be legitimate for the Joint Authority to consider other title holdings held by the permittee, lessee or licensee. The Joint Authority may decide that the permittee, lessee or licensee does not have sufficient financial and technical resources available to undertake work and discharge obligations if the title condition is varied or suspended, in addition to its work and obligations under any existing titles.

902.     Variation or suspension of, or exemption from compliance with, the conditions of a permit, lease or licence may impact the technical and financial capacity of the permittee, lessee or licensee to carry out its activities and discharge its obligations. While this is most likely in the case of a variation of title conditions (e.g. if a requirement to undertake a seismic survey is replaced with a requirement to drill a well), there are also circumstances in which a suspension or exemption may affect technical and financial capacity. This may be the case, for example, if a suspension of title conditions is accompanied by an extension of the term of the title – there may be a greater risk of a change of circumstances over the extended term, particularly if the term is extended on more than one occasion.

903.     The Joint Authority may also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for making a decision under subsection 264(2). These matters might include, for example, additional matters that go to the ongoing adequacy of the corporate governance of the permittee, lessee or licensee.

904.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling and disallowance procedures. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria.

905.     New paragraph 264(2AA)(c) provides that the Joint Authority may also have regard to any other matters the Joint Authority considers relevant. This ensures it is clear that the Joint Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to vary or suspend, or to exempt a permittee, lessee or licensee from compliance with, a condition or the permit, lease or licence.

906.     The Joint Authority may, rather than must, take the matters in new subsection 264(2AA) into account, as the criteria will not be relevant in all circumstances. For example, the criteria is more likely to be relevant to applications relating to the conditions of an exploration title, rather a production title, and is less likely to be relevant to an application for an exemption from compliance with a title condition.

907.     These amendments will provide the Joint Authority with administrative discretion in addition to the existing decision-making power provided for in subsection 264(2), but do not provide for merits review of the Joint Authority’s decision. The decision concerns the imposition of title conditions. Decisions concerning the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 72: Subsection 295(1) (table item 3, column headed “In this case…”)

908.     This item amends item 3 of the table in subsection 295(1) of the OPGGS Act to include reference to new paragraph 362(1)(i), inserted by item 163 of this Schedule. See the discussion at that item.

909.     The amendment of item 3 of the table in subsection 295(1) ensures that that item applies to continue a greenhouse gas assessment permit in force for a period of 90 days if the responsible Commonwealth Minister refuses to grant a greenhouse gas injection licence to the permittee on the ground covered by paragraph 362(1)(i).

Item 73: Subsection 295A(1) (table item 3, column headed “In this case…”)

910.     This item amends item 3 of the table in subsection 295A(1) of the OPGGS Act to include reference to new paragraph 368B(1)(ja), inserted by item 170 of this Schedule. See the discussion at that item.

911.     The amendment of item 3 of the table in subsection 295A(1) ensures that that item applies to continue a cross-boundary greenhouse gas assessment permit in force for a period of 90 days if the Cross-boundary Authority refuses to grant a cross-boundary greenhouse gas injection licence to the permittee on the ground covered by paragraph 368B(1)(ja).

Item 74: Subsection 296(3)

912.     This item repeals subsection 296(3) of the OPGGS Act (excluding the heading) and substitutes new subsections 296(3) and (3A), which varies the requirements for applications for the grant of a work-bid GHG assessment permit. The notes at the end of subsection (3A) are replicated from the notes at the end of the previous subsection 296(3).

913.     Previously, subsection (3) set out prescriptive application requirements, requiring applications made under section 296 to be accompanied by details of the applicant’s proposals for work and expenditure in relation to the block or blocks specified in the application, the technical qualifications of the applicant and the applicant’s employees, and the technical advice and financial resources available to the applicant.

914.     Under new subsection (3), an application for a work-bid GHG assessment permit must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

915.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

916.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give the applicant an offer document for the grant of a GHG assessment permit, which includes the matters that were previously prescribed in subsection 296(3) (such as information or documents in relation to the technical advice and the financial resources available to the applicant).

917.     New subsection (3A) specifies a period within which information or documents required to accompany an application made under section 296 will be taken to accompany the application, which is before the end of the period specified in the notice published in the Gazette inviting applications for the grant of a permit under subsection 296(1). New subsection (3A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 75: After subsection 298(2)

918.     This item adds new subsections (2A) and (2B) to section 298 of the OPGGS Act, which set out the criteria that the responsible Commonwealth Minister must and may have regard to in deciding whether or not to give to an applicant an offer document for the grant of a work-bid GHG assessment permit under subsection 298(2).

919.     In deciding whether or not to give an offer document for a permit, the Minister must have regard to the matters specified in subsection (2B). These matters go to determining whether or not the applicant is suitable to hold the permit. These matters include:

a.       whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

                                               i.      carry out the operations and works that will be authorised by the permit; and

                                             ii.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

920.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold a GHG assessment permit.

921.     When considering the technical and financial resources available to the applicant it would be legitimate for the Minister to consider other title holdings held by the applicant. The Minister may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

922.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

923.     The Minister must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration activities in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

924.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

925.     New paragraph 298(2A)(b) provides that the Minister may also have regard to any other matters the Minister considers relevant. This ensures it is clear that the Minister can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant a work-bid GHG assessment permit.

926.     These amendments will provide the Minister with administrative discretion in relation to the existing decision-making power provided for in subsection 298(2), but do not provide for merits review of the Minister’s decision. This is because the decision involves the allocation of permits, which authorise the registered holder to carry out GHG assessment activities in the specified block or blocks, between competing applicants. If there are multiple applicants, those found to be suitable are ranked based on who, in the Minister’s opinion, is the most deserving of the grant of the permit. This involves an assessment of, amongst other matters, each suitable applicants’ proposed work program (that is, the applicant’s proposed operations and works to be carried out in the block or blocks and any other criteria under section 299). If such a decision was able to be reviewed on its merits, the party who has been allocated the permit in relation to the block or blocks would be affected by the overturning of the original decision.

927.     Additionally, decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 76: Subsection 302A(3)

928.     This item repeals subsection (3) of section 302A of the OPGGS Act and substitutes new subsections (3), (3A) and (3B), which prescribe the requirements for applications for a consolidated work-bid GHG assessment permit. The notes at the end of subsection (3B) are replicated from the notes at the end of the previous subsection 302A(3).

929.     Previously, subsection (3) set out prescriptive application requirements, requiring applications made under section 302A to be accompanied by the details of the applicant’s proposals for work and expenditure and information specified in the regulations (if any).

930.     Under new subsection (3), an application for a consolidated work-bid GHG assessment permit must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

931.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

932.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to grant the consolidated work-bid GHG assessment permit, which includes the matters that were previously prescribed in subsection 302A(3) (such as information or documents in relation to the applicant’s proposals for work and expenditure).

933.     New subsection (3A) specifies a period within which information or documents required to accompany an application made under subsection 302A(2) will be taken to accompany the application, which is the time before the expiry date of at least one of the existing permits. New subsection (3A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

934.     New subsection (3B) dis-applies, for the operation of new subsection (3A), the effect of subsection 302A(4). Subsection 302A(4) continues a permit or permits in force under certain circumstances. The effect of new subsection (3B) is that the applicant must provide the required information or documents before the time at which the permit or permits would ordinarily have expired, if not for the application of subsection 302A(4).

Item 77: Section 302B

935.     This item inserts ‘(1)’ to make previous section 302B of the OPGGS Act subsection 302B(1), as a consequence of the addition of subsections made by the next item.

Item 78: At the end of section 302B

936.     This item adds new subsections (2) and (3) to section 302B of the OPGGS Act, which set out the criteria that the responsible Commonwealth Minister must and may have regard to in deciding whether or not to give to an applicant an offer document for the grant of a consolidated work-bid GHG assessment permit under subsection 302B(1).

937.     In deciding whether or not to grant the permit, the Minister must have regard to the matters specified in subsection (3). These matters go to determining whether or not the applicant is suitable to hold the permit. These matters include whether the technical advice and financial resources available to the applicant after the permit is granted are sufficient to:

                      a.      carry out the operations and works that will be authorised by the permit; and

                     b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit.

938.     When considering the technical and financial resources available to the applicant it would be legitimate for the Minister to consider other title holdings held by the applicant. The Minister may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

939.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

940.     The Minister must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration activities in the specified block or blocks. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

941.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

942.     New paragraph 302B(2)(b) provides that the Minister may also have regard to any other matters the Minister considers relevant. This ensures it is clear that the Minister can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant a consolidated work-bid GHG assessment permit.

943.     These amendments will provide the Minister with administrative discretion in relation to whether or not the Minister is prepared to grant the permit, but do not provide for merits review of the Minister’s decision. Decisions concerning the grant of permits are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 79: Paragraph 303(6)(a)

944.     This item repeals existing paragraph (6)(a) of section 303 of the OPGGS Act and substitutes new paragraphs (a) and (aa), which prescribe requirements for applications for a cash-bid GHG assessment permit.

945.     Previously, paragraph (a) set out prescriptive application requirements, requiring applications made under section 303 to be accompanied by details of the technical qualifications of the applicant and its employees, the technical advice available to the applicant and the financial resources available to the applicant.

946.     Under new paragraph (a), an application for a cash-bid GHG assessment permit must be made in the form approved by the Titles Administrator. Under new paragraph (aa), the application must also be accompanied by any information or documents required by the form.

947.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

948.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give an offer to an applicant for a cash-bid GHG assessment permit), which includes the matters that were previously prescribed in paragraph 303(6)(a) (such as information or documents in relation to the technical advice and financial resources available to the applicant).

Item 80: After subsection 303(6) (before the notes)

949.     This item inserts subsection (7) to section 303 of the OPGGS Act. New subsection (7) specifies a period within which information or documents required to accompany an application made under section 303 will be taken to accompany the application, which is before the end of the period specified in the notice published in the Gazette inviting applications for the grant of a permit under subsection 303(1). New subsection (7) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 81: At the end of section 305

950.     This item adds new subsections (3) and (4) to section 305 of the OPGGS Act, which set out the criteria that the responsible Commonwealth Minister must and may have regard to in deciding whether or not to give to an applicant an offer document for the grant of a cash-bid GHG assessment permit under subsection 305(2), where there is only one application.

951.     In deciding whether or not to grant the permit, the Minister must have regard to the matters specified in the notice under paragraph 303(3)(b), and the matters specified in subsection 305(4). These matters go to determining whether or not the applicant is suitable to hold the permit. These matters include:

a.       whether the technical advice and financial resources available to the applicant after the permit is granted are sufficient to:

                                               i.      carry out the operations and works that will be authorised by the permit; and

                                             ii.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

952.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold a GHG assessment permit.

953.     When considering the technical and financial resources available to the applicant it would be legitimate for the Minister to consider other title holdings held by the applicant. The Minister may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

954.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

955.     The Minister must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration activities in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

956.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

957.     New paragraph 305(3)(b) provides that the Minister may also have regard to any other matters the Minister considers relevant. This ensures it is clear that the Minister can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant a cash-bid GHG assessment permit.

958.     These amendments will provide the Minister with administrative discretion in relation to whether or not the Minister is prepared to grant the permit, but do not provide for merits review of the Minister’s decision. Decisions concerning the grant of permits are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 82: After subsection 306(3)

959.     This item inserts new subsections (3A) and (3B) to section 306 of the OPGGS Act, which set out the criteria that the responsible Commonwealth Minister must and may have regard to in deciding whether or not to give to an applicant an offer document for the grant of a cash-bid GHG assessment permit under subsection 306(3), where there are two or more applications. The criteria are in addition to the criteria specified in the table in subsection 306(3).

960.     In deciding whether or not to grant the permit to the person referred to in column 3 of the table in subsection 306(3), the Minister must have regard to the matters specified in the notice under paragraph 303(3)(b), and the matters specified in subsection 306(3B). These matters go to determining whether or not the applicant is suitable to hold the permit. These matters include:

a.       whether the technical advice and financial resources available to the applicant after the permit is granted are sufficient to:

                                               i.      carry out the operations and works that will be authorised by the permit; and

                                             ii.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit; and

b.      the matters specified in section 695YB as they apply to the applicant, including any officers of the applicant if the applicant is a body corporate.

961.     The matters specified in section 695YB go to the applicant’s compliance history and experience in offshore petroleum or GHG operations, and will enable the Joint Authority to scrutinise the suitability of the applicant to hold a GHG assessment permit.

962.     When considering the technical and financial resources available to the applicant it would be legitimate for the Minister to consider other title holdings held by the applicant. The Minister may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

963.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to enter the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

964.     The Minister must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration activities in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

965.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

966.     New paragraph 306(3A)(b) provides that the Minister may also have regard to any other matters the Minister considers relevant. This ensures it is clear that the Minister can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant a cash-bid GHG assessment permit.

967.     These amendments will provide the Minister with administrative discretion in relation to the existing decision-making power provided for in section 306, but do not provide for merits review of the Minister’s decision. This is because the decision involves the grant of permits, which authorise the registered holder to carry out GHG assessments in a specified block or blocks, between competing applicants. If there are multiple applicants, the Joint Authority must reject an application or make an offer within the circumstances determined under section 306. This involves an assessment of, amongst other matters, the highest bid for the grant of a GHG assessment permit. If such a decision was able to be reviewed on its merits, the party who has been allocated the permit in relation to the block or blocks would be affected by the overturning of the original decision.

968.     Additionally, decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 83: Subsection 307A(3)

969.     This item repeals subsection (3) of section 307A of the OPGGS Act and substitutes new subsections (3), (3A) and (3B), which prescribe the requirements for applications for a cross-boundary GHG assessment permit. The notes at the end of subsection (3B) are replicated from the notes at the end of the previous subsection 307A(3).

970.     Previously, subsection (3) set out prescriptive application requirements, requiring applications made under section 307A to be accompanied by the details of the applicant’s proposals for work and expenditure and information specified in the regulations (if any).

971.     Under new subsection (3), an application for a cross-boundary GHG assessment permit must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

972.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

973.     Practically, the approved form will only require information, and any accompanying by information or documents, relevant for a decision whether or not to grant the cross-boundary GHG assessment permit, which includes the matters that were previously prescribed in subsection 307A(3) (such as information or documents in relation to the applicant’s proposals for work and expenditure).

974.     New subsection (3A) specifies a period within which information or documents required to accompany an application made under subsection 307A(2) will be taken to accompany the application, which is before the earlier of the expiry date of the existing GHG assessment permit or the expiry of the existing State/Territory GHG assessment title. New subsection (3A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

975.     New subsection (3B) dis-applies, for the operation of new subsection (3A), the effect of subsection 307A(4). Subsection 307A(4) continues a permit in force under certain circumstances. The effect of new subsection (3B) is that the applicant must provide the required information or documents before the time at which the permit would ordinarily have expired, if not for the application of subsection 307A(4).

Item 84: At the end of section 307B

976.     This item adds new subsections (3) and (4) to section 307B of the OPGGS Act, which set out the criteria that the Cross-boundary Authority must and may have regard to in deciding whether or not to give to an applicant an offer document for the grant of a cross-boundary GHG assessment permit under subsection 307B(2).

977.     In deciding whether or not to grant the permit, the Authority must have regard to the matters in subsection 307B(4). These matters go to determining whether or not the applicant is suitable to hold the permit. These matters include whether the technical advice and financial resources available to the applicant after the permit is granted are sufficient to:

                      a.      carry out the operations and works that will be authorised by the permit; and

                     b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit.

978.     When considering the technical and financial resources available to the applicant it would be legitimate for the Cross-boundary Authority to consider other title holdings held by the applicant. The Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

979.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

980.     The Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

981.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

982.     New paragraph 307B(3)(b) provides that the Authority may also have regard to any other matters the Authority considers relevant. This ensures it is clear that the Authority can consider other relevant matters that may not be specified in the provision or the regulations when deciding whether to offer to grant a cross-boundary GHG assessment permit.

983.     These amendments will provide the Authority with administrative discretion in relation to whether or not the Authority is prepared to grant the permit, but do not provide for merits review of the decision. Decisions concerning the grant of permits are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 85: Subsection 308(5)

984.     This item repeals subsection (5) of section 308 of the OPGGS Act and substitutes new subsections (5), (5A) and (5B), which prescribe the requirements for applications for the renewal of a GHG assessment permit. The notes at the end of subsection (5B) are replicated from the notes at the end of the previous subsection 308(5).

985.     Previously, subsection (5) set out prescriptive application requirements, requiring applications made under section 308 to be accompanied by the details of the applicant’s proposals for work and expenditure and information specified in the regulations (if any).

986.     Under new subsection (5), an application for a renewal of a GHG assessment permit must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

987.     Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

988.     Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give to the applicant an offer document for the renewal of a GHG assessment permit, which includes the matters that were previously prescribed in subsection 308(5) (such as information or documents in relation to the applicant’s proposals for work and expenditure).

989.     New subsection (5A) specifies a period within which information or documents required to accompany an application to renew a GHG assessment permit will be taken to accompany the application, which is before the expiry date of the permit. New subsection (5A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

990.     New subsection (5B) dis-applies, for the operation of new subsection (5A), the effect of subsection 308(6). Subsection 308(6) continues a permit in force under certain circumstances. The effect of new subsection (5B) is that the applicant must provide the required information or documents before the time at which the permit would ordinarily have expired, if not for the application of subsection 308(6).

Item 86: After paragraph 309(2)(b)

991.     This item inserts new paragraphs (c) and (d) in subsection 309(2) of the OPGGS Act, which set out additional criteria that the responsible Commonwealth Minister must be satisfied of in order for the Minister to be required to give to an applicant an offer document for the renewal of a GHG assessment permit under subsection 309(2).

992.     In addition to the criteria specified in paragraphs 309(2)(a) and (b), the Minister must be satisfied of the matters specified in paragraph (c) and any matters prescribed by the regulations (paragraph (d)). These matters go to determining whether or not the applicant is suitable to hold the permit. These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the permit; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit.

993.     When considering the technical and financial resources available to the applicant it would be legitimate for the Minister to consider other title holdings held by the applicant. The Minister may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

994.     The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

995.     The Minister must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration activities in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

996.     Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

997.     These amendments will provide the Minister with administrative discretion in relation to whether or not the Minister is prepared to renew the permit, but do not provide for merits review of the Minister’s decision. Decisions concerning the grant of permits are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 87: After subsection 309(3)

998.     This item inserts new subsection (3A) in section 309 of the OPGGS Act, which provides that the responsible Commonwealth Minister must have regard to the matters specified when deciding whether or not there are sufficient grounds to warrant the granting of the renewal of the GHG assessment permit for the purposes of subsection 309(3). These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the permit; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit.

999.     When considering the technical and financial resources available to the applicant it would be legitimate for the Minister to consider other title holdings held by the applicant. The Minister may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

1000. The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

1001. The Minister must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration activities in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1002. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1003. New subsection 309(3A) does not limit paragraph 309(3)(c), which ensures that the Minister can take any other matters that the Minister considers relevant into account when deciding whether the Minister is satisfied that there are sufficient grounds to warrant the granting of the renewal of the permit.

1004. These amendments will provide the Minister with administrative discretion in relation to whether or not the Minister is prepared to renew the permit, but do not provide for merits review of the Minister’s decision. Decisions concerning the grant of permits are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 88: After subsection 309(4)

1005. This item inserts new subsection (4A) in section 309 of the OPGGS Act, which provides that the responsible Commonwealth Minister must have regard to the matters specified when deciding whether or not there are sufficient grounds to warrant the granting of the renewal of the GHG assessment permit for the purposes of subsection 309(4). These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the permit; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit.

1006. When considering the technical and financial resources available to the applicant it would be legitimate for the Minister to consider other title holdings held by the applicant. The Minister may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

1007. The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

1008. The Minister must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration activities in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1009. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1010. New subsection 309(4A) does not limit paragraph 309(4)(c), which ensures that the Minister may take any other matters that the Minister considers relevant into account in deciding whether the Minister is satisfied that there are sufficient grounds to warrant the granting of the renewal of the permit.

1011. These amendments will provide the Minister with administrative discretion in relation to whether or not the Minister is prepared to renew the permit, but do not provide for merits review of the Minister’s decision. Decisions concerning the grant of permits are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 89: After subsection 310(3)

1012. This item inserts new subsections (3A) and (3B) to section 310 of the OPGGS Act, which provides additional grounds for a refusal to grant a renewal of a GHG assessment permit. Under new subsection (3A), the responsible Commonwealth Minister must refuse to renew the permit if the Minister is not satisfied that the technical advice and financial resources available to the applicant after the permit is granted are sufficient to:

a.       carry out the operations and works that will be authorised by the permit; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit.

1013. When considering the technical and financial resources available to the applicant it would be legitimate for the Minister to consider other title holdings held by the applicant. The Minister may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

1014. The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

1015. Under new subsection (3B), the Minister may refuse to renew the permit if the Minister is not satisfied of the matters prescribed in the regulations (if any). Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration activities in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1016. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1017. These amendments will provide the Minister with administrative discretion in relation to whether or not the Minister is prepared to renew the permit, however consultation on the decision is required under section 434. The amendments but do not provide for merits review of the Minister’s decision. Decisions concerning the grant of permits are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 90: Subsection 311A(7)

1018.This item fixes an incorrect reference to the Cross-boundary Authority in subsection 311A(7). The subsection is amended to refer instead to the Titles Administrator, who is responsible for accepting applications made under subsection 311A(1).

Item 91: Subsection 311A(8)

1019. This item repeals subsection (8) of section 311A of the OPGGS Act and substitutes new subsections (8), (8A) and (8B), which prescribe the requirements for applications for the renewal of a cross-boundary GHG assessment permit. The notes at the end of subsection (8B) are replicated from the notes at the end of the previous subsection 311A(8).

1020. Previously, subsection (8) set out prescriptive application requirements, requiring applications made under section 311A to be accompanied by the details of the applicant’s proposals for work and expenditure and information specified in the regulations (if any).

1021. Under new subsection (6), an application for a renewal of a cross-boundary GHG assessment permit must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

1022. Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

1023. Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give to the applicant an offer document for the renewal of a cross-boundary GHG assessment permit, which includes the matters that were previously prescribed in subsection 311A(8) (such as information or documents in relation to the applicant’s proposals for work and expenditure).

1024. New subsection (8A) specifies a period within which information or documents required to accompany an application to renew a cross-boundary GHG assessment permit will be taken to accompany the application, which is before the expiry date of the permit. New subsection (8A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

1025. New subsection (8B) dis-applies, for the operation of new subsection (8A), the effect of subsection 311A(9). Subsection 311A(9) continues a permit in force under certain circumstances. The effect of new subsection (8B) is that the applicant must provide the required information or documents before the time at which the permit would ordinarily have expired, if not for the application of subsection 311A(9).

Item 92: Subsection 311B(2)

1026. This item repeals and substitutes a new subsection 311B(2), which sets out the criteria that must be satisfied for the Cross-boundary Authority to be required to renew a cross-boundary GHG assessment permit.

1027. As for the previous section 311B, the permit conditions and relevant provisions of the OPGGS Act and regulations must have been complied with. In addition, the Authority must be satisfied as to whether the technical advice and financial resources available to the applicant after the permit is granted are sufficient to:

a.       carry out the operations and works that will be authorised by the permit; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit.

1028. When considering the technical and financial resources available to the applicant it would be legitimate for the Authority to consider other title holdings held by the applicant. The Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

1029. The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

1030. The Authority must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1031. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1032. As for the previous subsection 311B(2), the Authority cannot renew the permit unless the condition in paragraph 311B(2)(d) or (e) is met. The condition is that, where part of the permit area is located in the coastal waters of a State or Territory, that State or Territory must have consented to the giving of the offer document to the applicant.

1033. These amendments will provide the Authority with administrative discretion in relation to whether or not the Authority is prepared to renew the permit, but do not provide for merits review of the decision. Decisions concerning the grant of permits are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 93: After subsection 311B(3)

1034. This item inserts new subsection (3A) in section 311B of the OPGGS Act, which provides that the Cross-boundary Authority must have regard to the matters specified when deciding whether or not there are sufficient grounds to warrant the granting of the renewal of the cross-boundary GHG assessment permit for the purposes of subsection 311B(3). These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the permit; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit.

1035. When considering the technical and financial resources available to the applicant it would be legitimate for the Authority to consider other title holdings held by the applicant. The Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

1036. The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

1037. The Authority must also have regard to any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1038. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1039. New subsection 311B(3A) does not limit paragraph 311B(3)(c), which ensures that the Authority may take into account any other matters that the Authority considers relevant when decided whether the Authority is satisfied that there are sufficient grounds to warrant the granting of the renewal of the permit.

1040. These amendments will provide the Authority with administrative discretion in relation to whether or not the Authority is prepared to renew the permit, but do not provide for merits review of the decision. Decisions concerning the grant of permits are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 94: After subsection 311C(2)

1041. This item inserts new subsections (2A) and (2B) to section 311C of the OPGGS Act, which provide additional grounds for a refusal to grant a renewal of a cross-boundary GHG assessment permit. Under subsection (2A), the Cross-boundary Authority must refuse to renew the permit if the Authority is not satisfied that the technical advice and financial resources available to the applicant after the permit is granted are sufficient to:

a.       carry out the operations and works that will be authorised by the permit; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the permit.

1042. When considering the technical and financial resources available to the applicant it would be legitimate for the Authority to consider other title holdings held by the applicant. The Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

1043. The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

1044. Under subsection (2B), the Authority may refuse to renew the permit if the Authority is not satisfied of the matters prescribed in the regulations (if any). Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1045. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1046. These amendments will provide the Authority with administrative discretion in relation to whether or not the Authority is prepared to renew the permit, however consultation on the decision is required under section 434A. The amendments but do not provide for merits review of the decision. Decisions concerning the grant of permits are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 95: Subsection 312(8)

1047.This item amends subsection 312(8) to provide for the Titles Administrator to approve more than one manner in which an applicant may make a variation of an application under section 312. See the discussion at the next item.

Item 96: After subsection 312(10)

1048. This item inserts new subsection 312(10A) into the OPGGS Act, which provides that the Titles Administrator must publish on its website a copy of the instrument approving a manner for giving notice of a variation of an application for the purposes of subsection 312(8). This instrument will set out the approved manner or manners for applications to enable applicants to comply with the requirements in subsection 312(8).

1049. Enabling the Titles Administrator to approve the manner in which applications must be made enables flexibility for applications to be made electronically, in hardcopy or in some other manner.

1050. An instrument of approval of a manner of doing something is not a legislative instrument for the purposes of the Legislation Act 2003.

Item 97: Subsection 312A(8)

1051.This item amends subsection 312A(8) to provide for the Titles Administrator to approve more than one manner in which an applicant may make a variation of an application under section 312A. See the discussion at the next item.

Item 98: After subsection 312A(10)

1052. This item inserts new subsection 312A(10A) into the OPGGS Act, which provides that the Titles Administrator must publish on its website a copy of the instrument approving a manner for giving notice of a variation of an application for the purposes of subsection 312A(8). This instrument will set out the approved manner or manners for applications to enable applicants to comply with the requirements in subsection 312(8).

1053. Enabling the Titles Administrator to approve the manner in which applications must be made enables flexibility for applications to be made electronically, in hardcopy or in some other manner.

1054. An instrument of approval of a manner of doing something is not a legislative instrument for the purposes of the Legislation Act 2003.

Item 99: Subsection 323(1) (table item 3, column headed “In this case…”)

1055. This item amends item 3 of the table in subsection 323(1) of the OPGGS Act to include reference to new paragraph 362(2)(i), inserted by item 165 of this Schedule. See the discussion at that item.

1056. The amendment of table item 3 ensures that that item applies to keep a GHG holding lease in force for 90 days if the responsible Commonwealth Minister refuses to grant a GHG injection licence to the lessee on the ground covered by paragraph 362(2)(i).

Item 100: Subsection 323A(1) (table item 3, column headed “In this case…”)

1057. This item amends item 3 of the table in subsection 323A(1) of the OPGGS Act to include reference to new paragraph 368B(2)(ja), inserted by item 172 of this Schedule. See the discussion at that item.

1058. The amendment of table item 3 ensures that that item applies to keep a cross-boundary GHG holding lease in force for 90 days if the Cross-boundary Authority refuses to grant a cross-boundary GHG injection licence to the lessee on the ground covered by paragraph 368B(2)(ja).

Item 101: Subsection 324(7)

1059. This item repeals subsection (7) of section 324 of the OPGGS Act (excluding the heading) and substitutes new subsections (7) and (7A), which prescribe the requirements for applications for a GHG holding lease. The notes at the end of subsection (7A) are replicated from the notes at the end of the previous subsection 324(7).

1060. Previously, subsection (7) set out prescriptive application requirements, requiring applications made under section 324 to be accompanied by the details of the applicant’s proposals for work and expenditure and information specified in the regulations (if any).

1061. Under new subsection (7), an application for a GHG holding lease must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

1062. Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

1063. Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give to the applicant an offer document for the grant of a GHG holding lease, which includes the matters that were previously prescribed in subsection 324(7) (such as information or documents in relation to the applicant’s proposals for work and expenditure).

1064. New subsection (7A) specifies a period within which information or documents required to accompany an application made under section 324 will be taken to accompany the application, which is before the end of the application period. New subsection (7A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 102: Subsection 324(11)

1065.This item amends subsection 324(11) to provide for the Titles Administrator to approve more than one manner in which an applicant may make a variation of an application for a GHG holding lease. See the discussion at the next item.

Item 103: At the end of section 324

1066. This item adds new subsection (15) to the end of section 324 of the OPGGS Act, which provides that the Titles Administrator must publish on its website a copy of the instrument approving a manner for giving notice of a variation of an application for the purposes of subsection 324(11). This instrument will set out the approved manner or manners for applications to enable applicants to comply with the requirements in subsection 324(11).

1067. Enabling the Titles Administrator to approve the manner in which applications must be made enables flexibility for applications to be made electronically, in hardcopy or in some other manner.

1068. An instrument of approval of a manner of doing something is not a legislative instrument for the purposes of the Legislation Act 2003.

Item 104: After paragraph 325(1)(b)

1069. This item inserts new paragraphs (1)(c) and (d) in section 325 of the OPGGS Act, which set out additional criteria that the responsible Commonwealth Minister must be satisfied of in order to be required to give to an applicant an offer document for the grant of a GHG holding lease under subsection 325(1), where there is a single identified GHG storage formation.

1070. In addition to the criteria specified in paragraphs 325(1)(a) and (b), the Minister must be satisfied of the matters specified in paragraph (c) and any matters prescribed by the regulations (paragraph (d)). These matters go to determining whether or not the applicant is suitable to hold the lease. These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the lease; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the lease.

1071. When considering the technical and financial resources available to the applicant it would be legitimate for the Minister to consider other title holdings held by the applicant. The Minister may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

1072. The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

1073. The Minister must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration and appraisal activities in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1074. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1075. These amendments will provide the Minister with administrative discretion in relation to the grant of a GHG holding lease under subsection 325(1), but do not provide for merits review of the Minister’s decision. Decisions concerning the grant of leases are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 105: After paragraph 325(2)(b)

1076. This item inserts new paragraphs (2)(c) and (d) in section 325 of the OPGGS Act, which set out additional criteria that the responsible Commonwealth Minister must be satisfied of in order to be required to give to an applicant an offer document for the grant of a GHG holding lease under subsection 325(2), where there are multiple identified GHG storage formations.

1077. In addition to the criteria specified in paragraphs 325(2)(a) and (b), the Minister must be satisfied of the matters specified in paragraph (c) and any matters prescribed by the regulations (paragraph (d)). These matters go to determining whether or not the applicant is suitable to hold the lease. These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the lease; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the lease.

1078. When considering the technical and financial resources available to the applicant it would be legitimate for the Minister to consider other title holdings held by the applicant. The Minister may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

1079. The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

1080. The Minister must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration and appraisal activities in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1081. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1082. These amendments will provide the Minister with administrative discretion in relation to the grant of a GHG holding lease under subsection 325(2), but do not provide for merits review of the Minister’s decision. Decisions concerning the grant of leases are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 106: Paragraph 326(2)(a)

1083.This item amends paragraph 326(2)(a) to reference the criteria specified in paragraph 325(1)(c), inserted by item 104, as an additional ground for refusing to grant a GHG holding lease to the applicant for an application made under subsection 324(2). If the responsible Commonwealth Minister is not satisfied as to the matter referred to in paragraph 325(1)(c), the Minister must refuse to grant the lease. See discussion at item 104.

Item 107: Paragraph 326(2)(b)

1084.This item amends paragraph 326(2)(b) to reference new criteria specified in paragraph 325(2)(c), inserted by item 105, as an additional ground for refusing to grant a GHG holding lease to the applicant for an application made under subsection 324(3), (4) or (5). If the responsible Commonwealth Minister is not satisfied as to the matter referred to in paragraph 325(2)(c), the Minister must refuse to grant the lease. See discussion at item 105.

Item 108: At the end of section 326

1085. This item adds new subsection (3) to the end of section 326 of the OPGGS Act, which provides additional grounds for a refusal to grant a GHG holding lease. The responsible Commonwealth Minister may refuse to grant the lease if the Minister is not satisfied of a matter prescribed by the regulations (if any) for the purposes of paragraph 325(1)(d) (in the case of an application made under subsection 324(2)) or paragraph 325(2)(d) (in the case of an application made under subsection 324(3), (4) or (5)). Paragraph 325(1)(d) is inserted by item 104 and paragraph 325(2)(d) is inserted by item 105. See discussion at those items.

1086. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration and appraisal activities in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1087. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1088. These amendments will provide the Minister with administrative discretion in relation to whether or not the Minister is prepared to grant the lease, but do not provide for merits review of the Minister’s decision. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 109: Subsection 329A(7)

1089. This item repeals subsection (7) of section 329A of the OPGGS Act (excluding the heading) and substitutes new subsections (7) and (7A), which prescribe the requirements for applications for a cross-boundary GHG holding lease by the holder of a cross-boundary GHG assessment permit. The notes at the end of subsection (7A) are replicated from the notes at the end of the previous subsection 329A(7).

1090. Previously, subsection (7) set out prescriptive application requirements, requiring applications made under section 329A to be accompanied by the details of the applicant’s proposals for work and expenditure and information specified in the regulations (if any).

1091. Under new subsection (7), an application for a cross-boundary GHG holding lease must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

1092. Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

1093. Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give to the applicant an offer document for the grant of a cross-boundary GHG holding lease, which includes the matters that were previously prescribed in subsection 329A(7) (such as information or documents in relation to the applicant’s proposals for work and expenditure).

1094. New subsection (7A) specifies a period within which information or documents required to accompany an application made under section 329A will be taken to accompany the application, which is before the end of the application period. New subsection (7A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 110: Subsection 329A(11)

1095.This item amends subsection 329A(11) to provide for the Titles Administrator to approve more than one manner in which an applicant may make a variation of an application for a cross-boundary GHG holding lease. See the discussion at the next item.

Item 111: At the end of section 329A

1096. This item adds new subsection (15) to the end of section 329A of the OPGGS Act, which provides that the Titles Administrator must publish on its website a copy of the instrument approving a manner for giving notice of a variation of an application for the purposes of subsection 329A(11). This instrument will set out the approved manner or manners for applications to enable applicants to comply with the requirements in subsection 329A(11).

1097. Enabling the Titles Administrator to approve the manner in which applications must be made enables flexibility for applications to be made electronically, in hardcopy or in some other manner.

1098. An instrument of approval of a manner of doing something is not a legislative instrument for the purposes of the Legislation Act 2003.

Item 112: After paragraph 329B(1)(b)

1099. This item inserts new paragraphs (1)(ba) and (bb) in section 329B of the OPGGS Act, which set out additional criteria that the Cross-boundary Authority must be satisfied of in order to be required to give to an applicant an offer document for the grant of a cross-boundary GHG holding lease under subsection 329B(1), where there is a single identified GHG storage formation.

1100. In addition to the criteria specified in paragraphs 329B(1)(a) and (b), the Authority must be satisfied of the matters specified in paragraph (ba) and any matters prescribed by the regulations (paragraph (bb)). These matters go to determining whether or not the applicant is suitable to hold the lease. These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the lease; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the lease.

1101. When considering the technical and financial resources available to the applicant it would be legitimate for the Authority to consider other title holdings held by the applicant. The Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

1102. The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

1103. The Authority must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration and appraisal activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1104. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1105. These amendments will provide the Authority with administrative discretion in relation to the grant of a cross-boundary GHG holding lease under subsection 329B(1), but do not provide for merits review of the decision. Decisions concerning the grant of leases are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 113: After paragraph 329B(2)(b)

1106. This item inserts new paragraphs (2)(ba) and (bb) in section 329B of the OPGGS Act, which set out additional criteria that the Cross-boundary Authority must be satisfied of in order to be required to give to an applicant an offer document for the grant of a cross-boundary GHG holding lease under subsection 329B(2), where there are multiple identified GHG storage formations.

1107. In addition to the criteria specified in paragraphs 329B(2)(a) and (b), the Authority must be satisfied of the matters specified in paragraph (ba) and any matters prescribed by the regulations (paragraph (bb)). These matters go to determining whether or not the applicant is suitable to hold the lease. These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the lease; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the lease.

1108. When considering the technical and financial resources available to the applicant it would be legitimate for the Authority to consider other title holdings held by the applicant. The Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

1109. The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

1110. The Authority must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration and appraisal activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1111. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1112. These amendments will provide the Authority with administrative discretion in relation to the grant of a cross-boundary GHG holding lease, but do not provide for merits review of the decision. Decisions concerning the grant of leases are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 114: Paragraph 329C(2)(a)

1113.This item amends paragraph 329C(2)(a) to reference the criteria specified in paragraph 329B(1)(ba), inserted by item 112, as an additional ground for refusing to grant a cross-boundary GHG holding lease to the applicant for an application made under subsection 329A(2). If the Cross-boundary Authority is not satisfied as to the matter referred to in paragraph 329B(1)(ba), the Authority must refuse to grant the lease. See discussion at item 112.

Item 115: Paragraph 329C(2)(b)

1114.This item amends paragraph 329C(2)(b) to reference the criteria specified in paragraph 329B(2)(ba), inserted by item 113, as an additional ground for refusing to grant a cross-boundary GHG holding lease to the applicant for an application made under subsection 329A(3), (4) or (5). If the Cross-boundary Authority is not satisfied as to the matter referred to in paragraph 329B(2)(ba), the Authority must refuse to grant the lease. See discussion at item 113.

Item 116: At the end of section 329C

1115. This item adds new subsection (3) to the end of section 329C of the OPGGS Act, which provides additional grounds for a refusal to grant a cross-boundary GHG holding lease. The Cross-boundary Authority may refuse to grant the lease if the is not satisfied of a matter prescribed by the regulations (if any) for the purposes of paragraph 329B(1)(bb) (in the case of an application made under subsection 329A(2) or paragraph 329B(2)(bb) (in the case of an application made under subsection 329A(3), (4) or (5). Paragraph 329B(1)(bb) is inserted by item 112 and paragraph 329B(2)(bb) is inserted by item 113. See discussion at those items.

1116. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration and appraisal activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1117. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1118. These amendments will provide the Authority with administrative discretion in relation to whether or not the Authority is prepared to grant the lease, but do not provide for merits review of the decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 117: Subsection 330(2)

1119. This item repeals subsection (2) of section 330 of the OPGGS Act and substitutes new subsections (2) and (2A), which prescribe the requirements for applications for a GHG holding lease by the holder of a GHG injection licence. The notes at the end of subsection (2A) are replicated from the notes at the end of the previous subsection 330(2).

1120. Previously, subsection (2) set out prescriptive application requirements, requiring applications made under section 330 to be accompanied by the details of the applicant’s proposals for work and expenditure and information specified in the regulations (if any).

1121. Under new subsection (2), an application for a GHG holding lease must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

1122. Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

1123. Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give to the applicant an offer document for the grant of a GHG holding lease, which includes the matters that were previously prescribed in subsection 330(2) (such as information or documents in relation to the applicant’s proposals for work and expenditure).

1124. New subsection (2A) specifies a period within which information or documents required to accompany an application made under section 330 will be taken to accompany the application, which is before the end of the application period. New subsection (2A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 118: Subsection 330(5)

1125.This item amends subsection 330(5) to provide for the Titles Administrator to approve more than one manner in which an applicant may make a variation of an application for a GHG holding lease. See the discussion at the next item.

Item 119: At the end of section 330

1126. This item adds new subsection (9) to the end of section 330 of the OPGGS Act, which provides that the Titles Administrator must publish on its website a copy of the instrument approving a manner for giving notice of a variation of an application for the purposes of subsection 330(5). This instrument will set out the approved manner or manners for applications to enable applicants to comply with the requirements in subsection 330(5).

1127. Enabling the Titles Administrator to approve the manner in which applications must be made enables flexibility for applications to be made electronically, in hardcopy or in some other manner.

1128. An instrument of approval of a manner of doing something is not a legislative instrument for the purposes of the Legislation Act 2003.

Item 120: After paragraph 331(b)

1129. This item inserts new paragraphs (c) and (d) in section 331 of the OPGGS Act, which set out additional criteria that the responsible Commonwealth Minister must be satisfied of in order to be required to give to an applicant an offer document for the grant of a GHG holding lease under section 331.

1130. In addition to the criteria specified in paragraphs 331(a) and (b), the Minister must be satisfied of the matters specified in paragraph (c) and any matters prescribed by the regulations (paragraph (d)). These matters go to determining whether or not the applicant is suitable to hold the lease. These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the lease; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the lease.

1131. When considering the technical and financial resources available to the applicant it would be legitimate for the Minister to consider other title holdings held by the applicant. The Minister may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

1132. The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

1133. The Minister must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration and appraisal activities in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1134. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1135. These amendments will provide the Minister with administrative discretion in relation to the grant of a GHG holding lease under section 331, but do not provide for merits review of the Minister’s decision. Decisions concerning the grant of leases are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 121: Section 332

1136.This item inserts ‘(1)’ to make section 332 of the OPGGS Act become subsection 332(1), as a consequence of the addition of subsections made by the next item.

Item 122: At the end of section 332

1137. This item inserts new subsections (2) and (3) to section 332 of the OPGGS Act, which provide additional grounds for a refusal to grant an application for a GHG holding lease made under section 330. The responsible Commonwealth Minister must refuse to grant the lease if the Minister is not satisfied of the criteria in new paragraph 331(c) as to whether the technical advice and financial resources available to the applicant after the lease is granted are sufficient to:

a.       carry out the operations and works that will be authorised by the lease; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the lease.

1138. When considering the technical and financial resources available to the applicant it would be legitimate for the Minister to consider other title holdings held by the applicant. The Minister may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

1139. The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

1140. Under new subsection (3), the Minister may refuse to renew the lease if the Minister is not satisfied of the matters prescribed in the regulations (if any) for the purposes of paragraph 331(d) (which is inserted by item 120). Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration and appraisal activities in offshore areas. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1141. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1142. These amendments will provide the Minister with administrative discretion in relation to whether or not the Minister is prepared to grant the lease, however consultation on the decision is required under section 434. The amendments but do not provide for merits review of the decision. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 123: Subsection 335A(2)

1143. This item repeals subsection (2) of section 335A of the OPGGS Act and substitutes new subsections (2) and (2A), which prescribe the requirements for applications for a cross-boundary GHG holding lease by the holder of a cross-boundary GHG injection licence. The notes at the end of subsection (2A) are replicated from the notes at the end of the previous subsection 335A(2).

1144. Previously, subsection (2) set out prescriptive application requirements, requiring applications made under section 335A to be accompanied by the details of the applicant’s proposals for work and expenditure and information specified in the regulations (if any).

1145. Under new subsection (2), an application for a cross-boundary GHG holding lease must be made in the form approved by the Titles Administrator. The application must also be accompanied by any information or documents required by the form.

1146. Providing for an approved form, rather than prescribing the information requirements in the legislation, will enable the Titles Administrator to appropriately tailor the information requirements for each type of application. If it becomes evident that additional kinds of information are required for an application, or that some kinds of information should not be required, the Titles Administrator will be able to amend the form without the need for a legislative amendment. Similarly, requiring the form to specify information or documents that are required to accompany the form will enable the Titles Administrator to specify that, if information or documents (such as information or documents in relation to the technical advice and the financial resources available to the applicant) have recently been provided to the Titles Administrator and there has been no material change, that information or those documents do not need to be provided again for the purposes of the application.

1147. Practically, the approved form will only require information, and any accompanying information or documents, relevant for a decision whether or not to give to the applicant an offer document for the grant of a cross-boundary GHG holding lease, which includes the matters that were previously prescribed in subsection 335A(2) (such as information or documents in relation to the applicant’s proposals for work and expenditure).

1148. New subsection (2A) specifies a period within which information or documents required to accompany an application made under section 335A will be taken to accompany the application, which is before the end of the application period. New subsection (2A) provides applicants with flexibility in making applications, particularly if, for example, information or documents will be given from various sources. Specifying a period within which information or documents are required to be given ensures applications, including any information or documents required to accompany applications, are made within a reasonable period.

Item 124: Subsection 335A(5)

1149.This item amends subsection 335A(5) to provide for the Titles Administrator to approve more than one manner in which an applicant may make a variation of an application for a cross-boundary GHG holding lease. See the discussion at the next item.

Item 125: At the end of section 335A

1150. This item adds new subsection (9) to the end of section 335A of the OPGGS Act, which provides that the Titles Administrator must publish on its website a copy of the instrument approving a manner for giving notice of a variation of an application for the purposes of subsection 335A(5). This instrument will set out the approved manner or manners for applications to enable applicants to comply with the requirements in subsection 335A(5).

1151. Enabling the Titles Administrator to approve the manner in which applications must be made enables flexibility for applications to be made electronically, in hardcopy or in some other manner.

1152. An instrument of approval of a manner of doing something is not a legislative instrument for the purposes of the Legislation Act 2003.

Item 126: After paragraph 335B(b)

1153. This item inserts new paragraphs (ba) and (bb) in section 335B of the OPGGS Act, which set out additional criteria that the Cross-boundary Authority must be satisfied of in deciding whether or not to give to an applicant an offer document for the grant of a cross-boundary GHG holding lease under section 335B.

1154. In additional to the criteria specified in paragraphs 335B(a) and (b), the Authority must be satisfied of the matters specified in paragraph (ba) and any matters prescribed by the regulations (paragraph (bb)). These matters go to determining whether or not the applicant is suitable to hold the lease. These matters include whether the technical advice and financial resources available to the applicant after the offer is accepted are sufficient to:

a.       carry out the operations and works that will be authorised by the lease; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the lease.

1155. When considering the technical and financial resources available to the applicant it would be legitimate for the Authority to consider other title holdings held by the applicant. The Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to its work and obligations under any existing titles.

1156. The amendment made by this item aims to ensure that the Government will be better equipped to screen the suitability of applicants to remain in the offshore regime, which in turn will reduce the risk that an entity who does not meet these suitability requirements will be granted a title. The policy rationale includes creating confidence in the offshore regime and protecting the taxpayer, but does not aim to provide due diligence for investors.

1157. The Authority must also be satisfied of any other matters prescribed in the regulations. Enabling the regulations to prescribe additional matters will provide the Government with the flexibility to provide for other matters that are necessary and appropriate for determining the suitability of those who wish to conduct GHG-related exploration and appraisal activities. These matters might include, for example, additional matters that go to the adequacy of the corporate governance of the applicant.

1158. Any additional matters prescribed in the regulations will be subject to appropriate scrutiny through the regulation-making process, which includes parliamentary tabling, scrutiny and potential disallowance. The industry will also be notified of any additional matters to reduce any potential increase in legislative complexity in having to understand and comply with these additional criteria, including through an update to the approved application form.

1159. These amendments will provide the Authority with administrative discretion in relation to the grant of a lease under section 335B, but do not provide for merits review of the decision. The decision concerns the grant of titles and the imposition of title conditions. Decisions concerning the grant of titles and the imposition of title conditions are matters of high government policy, involving considerations of national economic and environmental policy. It would therefore be inappropriate to provide for merits review for this decision, as to allow for an appeal on the merits of the decision would, in effect, amount to contesting the Government’s resource management strategy and policy of managing the nation’s offshore resources in the public interest.

Item 127: Section 335C

1160.This item inserts ‘(1)’ to make section 335C of the OPGGS Act become subsection 335C(1), as a consequence of the addition of subsections made by the next item.

Item 128: At the end of section 335C

1161. This item inserts new subsections (2) and (3) to section 335C of the OPGGS Act, which provide additional grounds for a refusal to grant an application for a cross-boundary GHG holding lease made under section 335A. The Cross-boundary Authority must refuse to grant the lease if the Authority is not satisfied of the criteria in new paragraph 335B(ba) as to whether the technical advice and financial resources available to the applicant after the lease is granted are sufficient to:

a.       carry out the operations and works that will be authorised by the lease; and

b.      discharge the obligations that are imposed under the OPGGS Act, or a legislative instrument under the Act, in relation to the lease.

1162. When considering the technical and financial resources available to the applicant it would be legitimate for the Authority to consider other title holdings held by the applicant. The Authority may decide that the applicant does not have sufficient financial and technical resources available to undertake work and discharge obligations under the title being applied for, in addition to work and obligations under any existing titles.