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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE HOUSE OF REPRESENTATIVES
OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE LEGISLATION AMENDMENT
BILL 2009
FURTHER SUPPLEMENTARY EXPLANATORY MEMORANDUM
New Clauses to be moved on Behalf of the Government
(Circulated by authority of the Minister for Resources and Energy,
the Honourable Martin Ferguson AM, MP)
AMENDMENTS TO THE OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE LEGISLATION
AMENDMENT BILL 2009
Outline
The Government amendments to the Offshore Petroleum and Greenhouse Gas
Storage Legislation Amendment Bill 2009 (the Bill) add a new Part 13A to
the Bill and a new Part 9.10A to the Offshore Petroleum and Greenhouse Gas
Storage Act 2006 ('the Act'). These amendments provide for a standing
power enabling the responsible Minister to appoint a Commissioner to
undertake a Commission of inquiry into the operational, human and
regulatory matters specific or incidental to a significant offshore
petroleum or greenhouse gas storage incident, from time to time as
required. This power is limited to where a significant offshore petroleum
or greenhouse gas incident has occurred, and where it would be appropriate
to consider operational, human and/or regulatory issues related to that
incident.
The purpose of the amendments is to correct an administrative gap in the
provisions of the Act for the investigation of these matters. Currently,
the responsible Minister may initiate two types of investigation under the
Act, each limited in nature: an investigation by the National Offshore
Petroleum Safety Authority (NOPSA) which would be limited to occupational
health and safety matters pertaining to an incident; and an investigation
by the Minister as Designated Authority for the offshore area which would
be limited to considering the appropriateness of existing statutory powers
under the Act.
Recent incidents involving uncontrolled release of hydrocarbons
jeopardising human and environmental health, have demonstrated that the
existing investigatory powers are insufficient. An inquiry for the
purposes of determining operational, human and regulatory factors would
inform regulators and operators of causal factors contributing to
significant incidents relating to offshore oil and gas exploration,
development, production, greenhouse gas storage and/or decommissioning.
This power will enable the Government and industry to learn from incidents,
and be better prepared to prevent similar incidents occurring in the
future.
It is intended that the findings of any such Commission of inquiry will be
made public, subject to the disclosure and privacy provisions of other
legislation. This will enable lessons learned from the incident to be
considered and understood by the widest possible range of stakeholders both
in Australia and overseas.
The only statutory mechanism currently available to the responsible
Minister for a comprehensive investigation would be a Royal Commission
appointed by the Governor-General under the Royal Commissions Act 1902
(Cth). This mechanism is not always appropriate, timely or cost effective.
A specific investigatory mechanism, within the offshore oil and gas context
of the Act, is a more appropriate, timely and cost effective avenue to
investigate significant incidents such as uncontrolled hydrocarbon
releases. This amendment does not override the ability for a Royal
Commission to be called if warranted by the severity and impact of an
incident.
In summary, these amendments:
. enable the responsible Minister, where a significant offshore
petroleum or greenhouse gas incident has occurred or where a
particular occurrence may have led to a such an incident, to appoint a
Commissioner to undertake a Commission of inquiry with the necessary
powers of a Royal Commission, within the offshore oil and gas specific
context of the Act;
. define the permissions of the Commissioner and underpin the
Commissioner's powers by reference to powers and offences in the Royal
Commissions Act. These powers include, but are not limited to:
o the power to compel witnesses and evidence;
o the relevant enforcement and penalty provisions relating to
powers under the Act; and
o the provision of the same protection and immunity as a Justice
of the High Court to the Commissioner, those assisting the
Commissioner, witnesses and others.
. include provisions for the Secretary of the responsible Commonwealth
Department to assign portfolio officers to the Commissioner for the
duration of the inquiry, as appropriate;
. include provisions for the Secretary of the responsible Commonwealth
Department to confer upon a person the functions and powers of a
petroleum project inspector, a Greater Sunrise visiting inspector, a
greenhouse gas project inspector, and an OHS inspector, as defined in
the Offshore Petroleum and Greenhouse Gas Storage Act 2006;
. require the Commissioner to report, and make recommendations if
appropriate, to the responsible Commonwealth Minister on matters
relevant to the Commission of Inquiry, but do not bind the
Commonwealth to implement such recommendations;
. focus on determining the causal factors contributing to a significant
offshore incident, rather than on seeking evidentiary material for
prosecution;
. require the results of an inquiry commissioned under these powers to
be made public, consistent with the Royal Commissions Act 1902;
. include other minor amendments of a technical nature to the Archives
Act 1983, the Freedom of Information Act 1982, and the Privacy Act
1988.
Financial impact statement
These government amendments will not have any financial impact on the
Australian Government Budget.
notes on individual clauses
Part 13A - Inquiries into significant offshore incidents
Item 62A - 62C: Part 1.2, Division 1, Section 7
These items pertain to definitions and clarifications to the Act, relating
to the Commission of inquiry.
. Item 62A introduces the concept of a 'Commissioner' for the purposes
of a Commission of inquiry under the Act.
. Item 62B defines a 'Commission of inquiry' for the purposes of the
Act.
. Item 62C ensures that the term 'Royal Commission' is the same as used
in the Royal Commissions Act 1902.
Item 62D: New Part 9.10A
These items form a new Part 13A to the Bill, headed 'Inquiries into
significant offshore incidents'. All amendments in Part 16 of the Bill are
to the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
These amendments form a new Part 9.10A to the Offshore Petroleum and
Greenhouse Gas Storage Act 2006 to govern Commonwealth inquiries into
significant offshore incidents, in relation to petroleum activities and
greenhouse gas activities under the Act.
New sections
Section 780A - provides for the responsible Commonwealth Minister to
appoint a person as a Commissioner, to conduct a Commission of inquiry, as
well as the matters which the Commission may address. An appointment must
be notified in the Gazette.
This section also confines the inquiry to incidents regarded as
significant, and identifies the offshore operations that are within the
scope of this section. This section should be interpreted broadly, and may
include, for example, such specific matters as those listed in s782 of the
Act.
Section 780B enables the Commissioner to conduct hearings for the purposes
of the Commission of inquiry. Hearings may be conducted within or outside
Australia, using procedures decided by the Commissioner.
Section 780C states that the Commissioner is not bound by the rules of
evidence. This provision allows the Commissioner to seek and obtain a wide
variety of information as necessary and relevant to the inquiry, without
the strictures of judicial evidence rules. This will fulfil the purposes
of this Part to determine the operational, human and regulatory factors
contributing to a significant offshore incident, and apply this
understanding to the prevention of such incidents in future.
Section 780D provides for the Secretary of the responsible Commonwealth
Department to assign officers of the Department to assist the Commissioner
in the conduct of a Commission of inquiry. It also specifies that once
assigned, such officers will be solely under the direction of the
Commissioner. This removes the possibility of conflicting directions and
interests. By implication, the Department may contract other independent
persons with relevant skills and expertise as required to assist in the
inquiry and confer on them the powers of inspectors under section 780F.
Section S780E outlines the application of the Royal Commissions Act 1902
and provides the Commissioner with powers as outlined in the Royal
Commissions Act 1902 for the purposes of the Commission of inquiry. These
powers include, but are not limited to:
. the power to compel witnesses and evidence, even where legal
professional privilege, self-incrimination or other issues may be of
concern to the witness;
. the relevant enforcement and penalty provisions relating to powers
under the Royal Commissions Act 1902; and
. the provision of the same protection and immunity as a Justice of the
High Court to the Commissioner, those assisting the Commissioner,
witnesses and others.
These powers specifically exclude those powers outlined in parts 4 and 5 of
the Royal Commissions Act 1902 (relating to warrants and searches).
This section also outlines the application of s9, s10 and s16 of the Royal
Commissions Act 1902 (relating to regulations and legal proceedings) to
this section.
Section 780F allows the Secretary of the Department to confer inspection
powers under the Act upon persons assisting the Commissioner of inquiry.
The Secretary may determine that such persons have any or all of the
functions and powers of a petroleum project inspector, a Greater Sunrise
visiting inspector, a greenhouse gas project inspector, and an OHS
inspector. These powers are defined in the Offshore Petroleum and
Greenhouse Gas Storage Act 2006. These persons
. are subject only to the direction of the Commissioner, to preclude
conflicting directions and interests;
. are required to carry an identity card issued by the Secretary of the
Department, and return the card at the conclusion of their work for
the Commission of inquiry; and,
. have all of the powers and functions of all of the inspectors under
the Act, as well as those conferred by the Royal Commissions Act
1902.
Section 780G specifies that laws of the Commonwealth relating the
disclosure of information for Royal Commissions also apply to a Commission
of inquiry.
Division 2 - Other amendments
Items 62E - 62H: Amendments to the Archives Act 1983
These items introduce the concept of a Commission of inquiry under the
Offshore Petroleum and Greenhouse Gas Storage Act 2006 to the Archives Act
1983 to ensure appropriate and lawful record keeping and archival of
information relating to a Commission of inquiry.
Items 62J - 62L: Amendments to the Freedom of Information Act 1982
These items introduce the concept of a Commission of inquiry under the
Offshore Petroleum and Greenhouse Gas Storage Act 2006 to the Freedom of
Information Act 1982. This is to ensure that a Commission of inquiry is
exempt from the provisions of the Freedom of Information Act as per the
amendments to the Quarantine Act 1908 for the Inquiry into Equine Influenza
in 2007.
Items 62M - 62N: Amendments to the Privacy Act 1988
These items introduce the concept of a Commission of inquiry under the
Offshore Petroleum and Greenhouse Gas Storage Act 2006 to the Privacy Act
1988. This is to ensure that a Commission of inquiry is exempt from the
provisions of the Privacy Act as per the amendments to the Quarantine Act
1908 for the Inquiry into Equine Influenza in 2007.
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