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This is a Bill, not an Act. For current law, see the Acts databases.
2022-2023
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Protecting the Spirit of Sea Country Bill
2023
No. , 2023
(Senator Cox)
A Bill for an Act to amend the
Offshore Petroleum
and Greenhouse Gas Storage Act 2006
and the
Offshore Petroleum and Greenhouse Gas Storage
(Environment) Regulations 2009
, and for related
purposes
No. , 2023
Protecting the Spirit of Sea Country Bill 2023
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Minimum requirements for consultation with traditional
owners and knowledge holders
3
Offshore Petroleum and Greenhouse Gas Storage Act 2006
3
Offshore Petroleum and Greenhouse Gas Storage (Resource Management
and Administration) Regulations 2011
3
Part 2--Meaning of relevant person
5
Offshore Petroleum and Greenhouse Gas Storage (Environment)
Regulations 2009
5
Part 3--Protection of cultural heritage
6
Offshore Petroleum and Greenhouse Gas Storage (Environment)
Regulations 2009
6
Part 4--Transitional arrangements
10
Offshore Petroleum and Greenhouse Gas Storage (Environment)
Regulations 2009
10
Part 5--Affirmative resolution
11
No. , 2023
Protecting the Spirit of Sea Country Bill 2023
1
A Bill for an Act to amend the
Offshore Petroleum
1
and Greenhouse Gas Storage Act 2006
and
the
2
Offshore Petroleum and Greenhouse Gas Storage
3
(Environment) Regulations 2009
, and for related
4
purposes
5
The Parliament of Australia enacts:
6
1 Short title
7
This Act is the
Protecting the Spirit of Sea Country Act 2023
.
8
2 Commencement
9
(1) Each provision of this Act specified in column 1 of the table
10
commences, or is taken to have commenced, in accordance with
11
2
Protecting the Spirit of Sea Country Bill 2023
No. , 2023
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
4
enacted. It will not be amended to deal with any later amendments of
5
this Act.
6
(2) Any information in column 3 of the table is not part of this Act.
7
Information may be inserted in this column, or information in it
8
may be edited, in any published version of this Act.
9
3 Schedules
10
Legislation that is specified in a Schedule to this Act is amended or
11
repealed as set out in the applicable items in the Schedule
12
concerned, and any other item in a Schedule to this Act has effect
13
according to its terms.
14
Note:
Subject to item 18 of Schedule 1, the provisions of the
Offshore
15
Petroleum and Greenhouse Gas Storage (Environment)
16
Regulations 2009
and
Offshore Petroleum and Greenhouse Gas
17
Storage (Resource Management and Administration)
18
Regulations 2011
amended or inserted by this Act, and any other
19
provisions of those regulations, may be amended or repealed by
20
regulations made under section 781 of the
Offshore Petroleum and
21
Greenhouse Gas Storage Act 2006
(see subsection 13(5) of the
22
Legislation Act 2003
).
23
Amendments
Schedule 1
Minimum requirements for consultation with traditional owners and knowledge holders
Part 1
No. , 2023
Protecting the Spirit of Sea Country Bill 2023
3
Schedule 1--Amendments
1
Part 1--Minimum requirements for consultation with
2
traditional owners and knowledge holders
3
Offshore Petroleum and Greenhouse Gas Storage Act 2006
4
1 Subsection 782(2)
5
Repeal the subsection, substitute:
6
(2) The regulations must prescribe what constitutes consultation with
7
relevant persons in preparing an environment plan.
8
(3) The regulations must provide for the free, prior and informed
9
consent of traditional owners consistent with the United Nations
10
Declaration on the Rights of Indigenous Peoples as a condition for
11
acceptance of an environment plan.
12
Note:
The text of United Nations General Assembly resolutions could in
13
2023 be accessed through the United Nations' website
14
(https://www.un.org).
15
(4) Before the Governor-General makes regulations for the purposes of
16
subsection (2) or (3), the Minister must consult with traditional
17
owners and knowledge holders within First Nations communities.
18
(5) In this section,
environment plan
means an environment plan
19
under prescribed regulations, or a prescribed provision of
20
regulations, made under this Act.
21
(6) Subsections (1), (2) and (3) do not limit section 781.
22
Offshore Petroleum and Greenhouse Gas Storage (Resource
23
Management and Administration)
24
Regulations 2011
25
2 Regulation 11B.01 (after table item 20)
26
Insert:
27
28
Schedule 1
Amendments
Part 1
Minimum requirements for consultation with traditional owners and knowledge
holders
4
Protecting the Spirit of Sea Country Bill 2023
No. , 2023
20AAA Definition of
environment plan
in
subsection 782(5)
Offshore Petroleum and Greenhouse Gas Storage
(Environment) Regulations 2009
Amendments
Schedule 1
Meaning of relevant person
Part 2
No. , 2023
Protecting the Spirit of Sea Country Bill 2023
5
Part 2--Meaning of relevant person
1
Offshore Petroleum and Greenhouse Gas Storage
2
(Environment) Regulations 2009
3
3 After subregulation 11A(1)
4
Insert:
5
(1A) To avoid doubt, a person or organisation whose functions, interests
6
or activities may be affected by the activities carried out under the
7
environment plan, or the revision of the environment plan, includes
8
traditional owners and knowledge holders within First Nations
9
communities.
10
Note:
This subregulation was inserted as a response to the decision of the
11
Full Court of the Federal Court of Australia in
Santos NA Barossa Pty
12
Ltd v Tipakalippa
[2022] FCAFC 193 and could in 2023 be viewed in
13
the Federal Court of Australia-Full Court database on the Austlii
14
website (https://www.austlii.edu.au/).
15
Schedule 1
Amendments
Part 3
Protection of cultural heritage
6
Protecting the Spirit of Sea Country Bill 2023
No. , 2023
Part 3--Protection of cultural heritage
1
Offshore Petroleum and Greenhouse Gas Storage
2
(Environment) Regulations 2009
3
4 Regulation 4 (after the definition of
in force
)
4
Insert:
5
intangible cultural heritage
means:
6
(a) the practices, representations, expressions, knowledge and
7
skills; and
8
(b) the instruments,
objects, artefacts and cultural spaces
9
associated with the matters in paragraph (a);
10
that communities, groups and individuals recognise as part of their
11
cultural heritage, including the following:
12
(c) oral traditions and expressions, including language;
13
(d) performing arts;
14
(e) social practices, rituals and festive events;
15
(f) knowledge and practices concerning nature and the universe;
16
(g) traditional craftsmanship.
17
5 Regulation 4 (after the definition of
titleholder
)
18
Insert:
19
underwater cultural heritage
: see regulation 4A
20
6 After regulation 4
21
Insert:
22
4A Meaning of
underwater cultural heritage
23
(1)
Underwater cultural heritage
means any trace of human existence
24
that:
25
(a) has a cultural, historical or archaeological character; and
26
(b) is located under water.
27
(2) For the purposes of subsection (1), a trace of human existence
28
includes:
29
Amendments
Schedule 1
Protection of cultural heritage
Part 3
No. , 2023
Protecting the Spirit of Sea Country Bill 2023
7
(a) First Nations archaeological sites and artefacts, together with
1
their natural context; and
2
(b) intangible cultural heritage associated with First Nations
3
archaeological sites and artefacts; and
4
(c) sites, structures, buildings, artefacts and human and animal
5
remains, together with their archaeological and natural
6
context; and
7
(d) vessels, aircraft and other vehicles or any part thereof,
8
together with their archaeological and natural context; and
9
(e) articles associated with vessels, aircraft or other vehicles,
10
together with their archaeological and natural context.
11
(3) For the purposes of paragraph (1)(b), a trace of human existence is
12
located under water:
13
(a) whether partially or totally under water; and
14
(b) whether under water periodically or continuously.
15
(4) However, the following are not
underwater cultural heritage
:
16
(a) pipelines or cables on the seabed;
17
(b) installations (other than pipelines or cables) that are:
18
(i) placed on the seabed; and
19
(ii) still in use.
20
7 After paragraph 5A(5)(c)
21
Insert:
22
(ca) describe any underwater cultural heritage that may be
23
affected by the project; and
24
8 Subregulation 5A(5) (note)
25
After "property", insert "or an area containing underwater cultural
26
heritage".
27
9 At the end of subregulation 5A
28
Add:
29
(9) The proposal must include:
30
(a) details of any cultural heritage that may be affected by the
31
project; and
32
Schedule 1
Amendments
Part 3
Protection of cultural heritage
8
Protecting the Spirit of Sea Country Bill 2023
No. , 2023
(b) an evaluation of the impacts and risks to the cultural heritage;
1
and
2
(c) alternative options to ensure preservation and avoid
3
destruction of the cultural heritage.
4
(10) The proposal must include:
5
(a) details of any intangible cultural heritage that may be
6
affected by the project; and
7
(b) an evaluation of the impacts and risks to the intangible
8
cultural heritage; and
9
(c) alternative options to ensure preservation and avoid
10
destruction of the intangible cultural heritage.
11
10 After paragraph 5C(2)(c)
12
Insert:
13
(ca) does not involve an activity or part of an activity being
14
undertaken in an area containing underwater cultural
15
heritage; and
16
11 At the end of subregulation 5D(6)
17
Add:
18
; and (f) does not involve an activity or part of an activity being
19
undertaken in an area containing underwater cultural
20
heritage.
21
12 After paragraph 10A(f)
22
Insert:
23
(fa) does not involve the activity or part of the activity, other than
24
arrangements for environmental monitoring or for responding
25
to an emergency, being undertaken in any part of an area
26
containing underwater cultural heritage; and
27
13 Subregulation 13(1) (note)
28
After "property", insert "or an area containing underwater cultural
29
heritage".
30
14 After paragraph 13(2)(a)
31
Insert:
32
Amendments
Schedule 1
Protection of cultural heritage
Part 3
No. , 2023
Protecting the Spirit of Sea Country Bill 2023
9
(aa) describe any underwater cultural heritage that may be
1
affected by the activity;
2
15 After subregulation 13(6)
3
Insert:
4
Evaluation of impacts and risks to cultural heritage and intangible
5
cultural heritage
6
(6A) The environment plan must include:
7
(a) details of any cultural heritage that may be affected by the
8
activity; and
9
(b) an evaluation of the impacts and risks to the cultural heritage;
10
and
11
(c) details of measures that will be used to avoid destruction and
12
ensure preservation of the cultural heritage
13
(6B) The environment plan must include:
14
(a) details of any intangible cultural heritage that may be
15
affected by the activity; and
16
(b) an evaluation of the impacts and risks to the intangible
17
cultural heritage; and
18
(c) details of measures that will be used to avoid destruction and
19
ensure preservation of the intangible cultural heritage.
20
(6C) To avoid doubt, the evaluation mentioned in paragraphs (6A)(b)
21
and (6B)(b) must evaluate all the impacts and risks arising directly
22
or indirectly from:
23
(a) all operations of the activity; and
24
(b) potential emergency conditions, whether resulting from
25
accident or any other reason.
26
16 Application of amendments
27
The amendments of the
Offshore Petroleum and Greenhouse Gas
28
Storage (Environment) Regulations 2009
made by this Part apply in
29
relation to:
30
(a) offshore project proposals submitted on or after the
31
commencement of this Part; and
32
(b) environment plans submitted or revised on or after the
33
commencement of this Part.
34
Schedule 1
Amendments
Part 4
Transitional arrangements
10
Protecting the Spirit of Sea Country Bill 2023
No. , 2023
Part 4--Transitional arrangements
1
Offshore Petroleum and Greenhouse Gas Storage
2
(Environment) Regulations 2009
3
17 In the appropriate position in Part 5
4
Insert:
5
Division 5.6--Transitional arrangements relating to the
6
Protecting the Spirit of Sea Country Act 2023
7
53 Definitions
8
In this Division:
9
amending Act
means the
Protecting the Spirit of Sea Country
10
Act 2023
.
11
54 Application
12
(1) The amendment made by Part 2 of Schedule 1 to the amending Act
13
applies in relation to an environment plan, or a proposed revision
14
of an environment plan, submitted on or after the commencement
15
of that Part.
16
(2) The amendments made by Part 3 of Schedule 1 to the amending
17
Act apply in relation to:
18
(a) an offshore project proposal submitted on or after the
19
commencement of that Part; and
20
(b) an environment plan, or a proposed revision of an
21
environment plan, submitted on or after the commencement
22
of that Part.
23
Amendments
Schedule 1
Affirmative resolution
Part 5
No. , 2023
Protecting the Spirit of Sea Country Bill 2023
11
Part 5--Affirmative resolution
1
18 Affirmative resolution
2
(1)
This item applies to a legislative instrument made under the
Offshore
3
Petroleum and Greenhouse Gas Storage Act 2006
that:
4
(a) is made on or after the commencement of this Schedule; and
5
(b) has the effect of amending or repealing, or otherwise altering
6
the effect or operation of, the amendments made by this
7
Schedule of the
Offshore Petroleum and Greenhouse Gas
8
Storage (Environment) Regulations 2009
.
9
(2)
The legislative instrument does not come into effect until it has been
10
approved by a resolution of each House of the Parliament.
11
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