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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
OFFSHORE PETROLEUM BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Industry, Tourism and Resources,
the Hon Ian Macfarlane, MP)
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OFFSHORE PETROLEUM BILL 2005
GENERAL OUTLINE
This Bill is a rewritten and renamed version of the Petroleum (Submerged Lands) Act
1967. This Bill proposes conspicuous changes to the structure and style of the
legislation but seeks to implement only a modest number of minor policy changes
from the framework set out in the Petroleum (Submerged Lands) Act.
The purpose of this Bill is to provide a more user-friendly enactment that will reduce
compliance costs for the upstream petroleum industry and for the governments that
are charged with administering it. However, the management regime for offshore
petroleum exploration, production, processing and conveyance that is proposed by
this Bill is unchanged in all its essential features from what is set out in the Petroleum
(Submerged Lands) Act.
To this end, this Bill provides for the grant of exploration permits, retention leases,
production licences, infrastructure licences, pipeline licences, special prospecting
authorities and access authorities. These titles are to have effect in offshore areas. An
offshore area starts 3 nautical miles from the baseline from which the breadth of the
territorial sea is measured and extends seaward to the outer limits of the continental
shelf.
Generally, the administration of this legislation in relation to an offshore area of a
State or the Northern Territory is to be divided between the Joint Authority for the
State or Territory (the Joint Authority is constituted by the responsible State/Territory
Minister and the responsible Commonwealth Minister) and the Designated Authority
of the State or Territory (the Designated Authority is the responsible State/Territory
Minister).
This Bill also includes occupational health and safety provisions and maintains the
operation of the National Offshore Petroleum Safety Authority for their
administration.
This Bill proposes a number of incidental minor policy changes. These are intended to
deal with anomalies and past drafting errors that have been detected in rewriting the
text of the Petroleum (Submerged Lands) Act or to bring provisions that, on account
of their age, are out of line with current Australian Government legislative drafting
principles into compliance with these principles. However, the fact that the rewriting
process has been an editorially focused exercise rather than a policy-focused one has
meant that a number of other policy issues have been reserved for later consideration.
In the notes on individual clauses, each note about an individual clause is followed by
an endnote titled "Equivalent provision in the PSL Act", indicating the section of the
Petroleum (Submerged Lands) Act that corresponds to the provision of the Bill that is
being discussed. If the clause in question contains one or more technical changes from
the text of the Petroleum (Submerged Lands) Act, that fact is noted and the nature of
the change(s) is summarised under the abovementioned endnote. If the clause contains
one or more policy changes from the provisions of the Petroleum (Submerged Lands)
Act, that fact is likewise noted and the nature of the change(s) is likewise summarised.
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Section 15AC of the Acts Interpretation Act 1901 provides that, where an Act has
expressed an idea in a particular form of words and a later Act appears to have
expressed the same idea in a different form of words for the purpose of using a clearer
style, the ideas shall not be taken to be different merely because different forms of
words were used. Thus, for example, the expression "in relation to" has, in some
places in the Bill, replaced the expression "in respect of" that occurs in the Act, but
there is no change in meaning.
This means that, unless a note in this explanatory memorandum indicates that a policy
change is intended in relation to a particular clause, any difference in language
between the clause and the provision of the Act that it replaces should not be seen as
reflecting an intention to change the policy set out in the original provision.
FINANCIAL IMPACT STATEMENT
There will be no effect on the Australian Government Budget from the purely
editorial aspects of rewriting of the Petroleum (Submerged Lands) Act. In the long
term, the net effect is expected to take the form of reduced compliance and
administrative costs for industry and governments.
One proposed incidental policy change could represent a gain to the Budget, namely
the proposal that amounts paid as cash bids for exploration permits covered by section
23 of the Petroleum (Submerged Lands) Act (now proposed to be called "special
exploration permits"), and for cash-bid production licences, be retained in full by the
Commonwealth instead of being remitted to the relevant State or the Northern
Territory. However, it would be inappropriate to attempt to quantify what the
financial gain from this change could be, among other reasons because cash bidding is
contrary to current government policy and has not been used in the awarding of any
title under the Act for over a decade.
NOTES ON INDIVIDUAL CLAUSES
Chapter 1--Introduction
Part 1.1--Legislative formalities and background
Clause 1 - Short title
This clause is a standard provision setting out the title by which the proposed Act is to
be cited if it becomes law.
Equivalent provision in the PSL Act: section 1
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Clause 2 - Commencement
This clause provides that the vast bulk of the provisions of the proposed Act are to
commence on a date fixed by Proclamation rather than on the date of Royal Assent.
Many Bills that are proposed to come into effect on a date fixed by proclamation
nevertheless set a date (such as 6 months after Royal Assent) when the enactment will
come into effect if a date is not proclaimed before then. This Bill does not do so. The
reason is that, before this proposed Act comes into effect, it is essential that the States
and the Northern Territory make pre-emptive amendments to their mirror State and
Territory Petroleum (Submerged Lands) Acts, or at any rate verify that they have
appropriate enabling legislation in place. This is to ensure that the change in title of
the Commonwealth Act from "Petroleum (Submerged Lands) Act 1967" to "Offshore
Petroleum Act 2005" does not create a legal vacuum when it comes to determining
the identity of the Designated Authority under this Bill (the issue involves the
definitions in clause 6 of "responsible State Minister" and "responsible Northern
Territory Minister" and the provisions of clause 50).
If the timing of the coming into effect of Commonwealth legislation is tied to another
jurisdiction enacting matching legislation and the Commonwealth has no control over
what is done in that other jurisdiction, there is a precedent for leaving the date of
effect of the Commonwealth legislation open. This precedent is relevant to the
commencement of the proposed Act.
Clause 39 of Schedule 6 is to come into effect on Royal Assent. The reason for this is
explained in the note on that item.
Equivalent provision in the PSL Act: section 2
Clause 3 - Simplified outline
This clause sets out a simplified outline of the whole Bill. This outline does not form
part of the operative text of the proposed Act.
Equivalent provision in the PSL Act: nil.
Clause 4 - Commonwealth-State agreement (the Offshore Constitutional Settlement)
This clause refers to the fact that, on 29 June 1979, the Commonwealth and the States
completed an agreement for the settlement of various contentious and complex
offshore constitutional issues, including issues related to offshore petroleum
resources.
At that time, the Petroleum (Submerged Lands) Act 1967 had already been in
existence for over a decade as the outcome to Commonwealth-State negotiations in
the 1960s in relation to the legislative basis for offshore petroleum exploration and
production. However, the 1967 agreement had avoided raising questions about the
respective constitutional powers of the Commonwealth and the States. This had been
followed by the enactment of the Seas and Submerged Lands Act 1973 and the
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upholding by the High Court in 1975 of that Act's assertion of sovereign rights on the
part of the Crown in the right of the Commonwealth, as against the States, over the
continental shelf and, in fact, landward as far as the low-water mark in waters outside
State limits.
This clause sets out the principles that the 29 June 1979 agreement established for
cooperative Commonwealth-State arrangements in offshore petroleum exploration
and production. It also sets out information about the Seas and Submerged Lands Act
and about some other Acts passed pursuant to the Offshore Constitutional Settlement.
Equivalent provision in the PSL Act: nil.
Clause 5 - Simplified maps
This clause sets out 3 map diagrams to enable the reader to understand the meaning of
certain terms used in the Bill, the most commonly occurring one being "offshore
area". Maps 2 and 3 zoom in on waters off South Australia because these waters are
the best suited to illustrate coastal waters, coastal waters within the baseline and
waters within the limits of the State. The maps are simplified and their scale
interpretation cannot serve as an accurate guide to the precise location of the
boundaries within which the proposed Act would be operative.
Equivalent provision in the PSL Act: nil.
Part 1.2--Interpretation
DIVISION 1--GENERAL
Clause 6 - Definitions
This clause sets out definitions applying to the whole Bill. This clause generally
replicates, with additions, amendments and deletions, the content of subsection 5(1) of
the Petroleum (Submerged Lands) Act.
This clause contains some definitions that are new in the sense that they are not
included under subsection 5(1) of the Act, for example "Annual Fees Act" and
"pipeline provisions". Some other definitions that occur in subsection 5(1) of the Act
have been renamed, for example "adjacent area" has become "offshore area" and
"inspector" has become "project inspector". Certain other definitions, for example
those for "Gas Pipelines Access Law" and "document", that appear in subsection 5(1)
of the Act, do not appear under this clause because the terms are defined elsewhere in
the Bill or in other legislation such as the Acts Interpretation Act 1901. The definition
of "explore", with application to the whole Act, is a change of policy which is
explained under clause 15.
The definition of "good processing and transport practice" is proposed to be extended
from the one appearing in subsection 5(1) of the Petroleum (Submerged Lands) Act
by specifying that it can relate to the conveyance and transport of petroleum as well as
to the processing and storage of petroleum and the preparation of petroleum for
transport.
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For "petroleum", a more lucid definition is proposed than the one appearing in
subsection 5(1) of the Petroleum (Submerged Lands) Act, so that it is quite clear that
when "sales" gas, ie processed gas, is to be conveyed via a pipeline, it is classed as
petroleum for all purposes under the proposed Act. The purpose of paragraph (f) of
the definition is to cover the situation where gas has been reinjected into a petroleum
pool and is later recovered. Without this paragraph, questions might arise as to
whether the mixture of hydrocarbons and gases then produced from the well is
"naturally occurring".
The definition of a "pipeline licence" includes, in effect, the Barracouta and Marlin
Fields Pipeline Licences about which discrete provisions figure in section 147 of the
Petroleum (Submerged Lands) Act. This is because these pipeline licences were, in
1988, renewed under Division 4 of Part III of the Petroleum (Submerged Lands) Act.
Accordingly, these pipeline licences fall within the normal definition of "pipeline
licence" given here. The Bill therefore contains no special provision about Barracouta
and Marlin Fields Pipeline Licences.
The definition of a "production licence" includes the Barracouta and Marlin Fields
Petroleum Production Licences about which discrete provisions figure in section 146
and Schedule 3 of the Petroleum (Submerged Lands) Act. This is because these
production licences were, in 1988, renewed under Division 3 of Part III of the
Petroleum (Submerged Lands) Act. Accordingly, these production licences fall within
the definition of "production licence" in this clause. The Bill therefore contains no
special provision about Barracouta and Marlin Fields Production Licences.
The reference in the definition of a "production licence" to section 148 of the
Petroleum (Submerged Lands) Act is a reference to the fact that, for the reason
explained below, the Barrow Island production licence has been granted under that
section rather than under any provision of Division 3 of Part III of that Act.
When the Petroleum (Submerged Lands) Act came into effect, this tenement was
under a Western Australian State retention lease. For later converting this lease into a
production licence, the normal pre-requisites under the Petroleum (Submerged Lands)
Act could not have been met, as the retention lease would not have been a lease under
the Commonwealth Act. Therefore, section 148 was created to enable a production
licence to be granted in respect of this area. However, there will be no need to enact
any equivalent of section 148 as the current Barrow Island production licence can be
renewed in accordance with the same provisions as any other licence.
Equivalent provisions in the PSL Act: subsections 5(1), 5AAA(5), 19(2) and 81(15)
Technical changes: no re-enactment of an equivalent of section 146 and 147 and
Schedule 3 of the Petroleum (Submerged Lands) Act; that "territorial sea" has the
same meaning as in the Seas and Submerged Lands Act 1973
Policy changes: application of "explore" definition to the whole proposed Act; that
"good processing and transport practice" can relate to the conveyance and transport of
petroleum as well as to the processing and storage of petroleum and the preparation of
petroleum for transport; clarification of the definition of "petroleum", ie that, for
pipeline conveyance, substances can have been added to it or removed from it; that
the "responsible State Minister" or the "responsible Northern Territory Minister",
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even acting in any role beyond the role of Designated Authority, could be an acting
Minister
Clause 7 - Offshore areas
This clause sets out definitions of "offshore areas" by referring to a number of other
defined areas, the main ones being "scheduled areas", "coastal waters" and "the
continental shelf".
The scheduled areas are the ones described by coordinates in Schedule 1 of the Bill
and illustrated on Map 1 in clause 5. The main purpose of the scheduled areas is to
define, for the purposes of the proposed Act (and, incidentally, various other items of
Commonwealth legislation), the offshore area boundaries between the individual
States and the Northern Territory. This geographic division of Australia's marine
jurisdiction is a necessary consequence of the agreement under the Offshore
Constitutional Settlement (subclause 4 refers) that the States and the Northern
Territory should share in the administration of the Commonwealth offshore petroleum
legislation. It is because no "interstate boundary" issues arise further away from the
Australian continent that there is no scheduled area around Norfolk Island, the
Territory of Heard Island and McDonald Islands, the Territory of Christmas Island or
the Territory of Cocos (Keeling) Islands.
The seaward limits of the scheduled areas mark the limits to which the legal effect of
the proposed Act could extend if Australia's continental shelf claim extended that far.
In fact, in some places, for example to the west and south of Western Australia,
Australia's claimed continental shelf falls short of the scheduled area outer boundary.
In the Seas and Submerged Lands Act 1973, the "continental shelf" is defined as in
paragraph 1 of Article 76 to the United Nations Convention on the Law of the Sea.
This reads:
"The continental shelf of a coastal State comprises the seabed and subsoil of the
submarine areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin, or to a
distance of 200 nautical miles from the baselines from which the breadth of the
territorial sea is measured where the outer edge of the continental margin does not
extend up to that distance."
On Maps 1 and 2 in clause 5, the seaward limit of the continental shelf is illustrated
by the outer edge of the grey or "brickwork" shading. However, the inner limit of the
continental shelf (as distinct from the inner limit of the offshore area) is not shown on
the maps as it is of only minor relevance to offshore petroleum management. This
limit is in fact the outer limit of the territorial sea of Australia, ie it follows a line 12
nautical miles from the territorial sea baseline.
The outer limit of coastal waters is the landward limit of an offshore area. This is the
line parallel to the territorial sea baseline which marks the first 3 nautical miles of
Australia's territorial sea. This 3 nautical mile wide zone is illustrated by the black
strip on Map 3 in clause 5. All islands that form part of a State or the Northern
Territory also generate a territorial sea, the first 3 nautical miles of which are
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illustrated by the blots of black shading on Map 3. Thus the segment of offshore area
that is shown on Map 3 consists only of the area shaded in grey.
The Coral Sea area, which forms part of the offshore area of Queensland, is an area of
Australia's continental shelf that surrounds the islands comprising the Coral Sea
Islands Territory, which is, for other purposes, under Commonwealth jurisdiction.
The Joint Petroleum Development Area (JPDA) is the area in which Australia and
Timor-Leste jointly manage exploration and development of petroleum resources
under the Timor Sea Treaty. The boundaries of the offshore areas of Western
Australia, the Northern Territory and the Territory of Ashmore and Cartier Islands
follow, for a part of their length, the agreed boundary of the JPDA. This accounts for
the mention of the JPDA in items 3, 4 and 5 of the table in subclause (1).
Replicating the provisions of the Petroleum (Submerged Lands) Act, subclause (3)
recognises the possibility that petroleum exploration might occur onshore on the
Ashmore or Cartier Islands. So that no separate legislation would be required to
manage such a project, this subclause extends the provisions of the proposed Act to
cover that prospect.
Subclause (4) recognises the fact that international seabed agreements have been
made between Australia and a number of other countries in the region to resolve
overlapping continental shelf claims. In these cases, the outer limit of the offshore
area in that particular area extends less far from Australian land territory than it would
if there were no interaction with the other country.
Subsections 5A(10) and (11) of the Petroleum (Submerged Lands) Act have not been
replicated in this Bill. These subsections provide that if, for purposes of some other
Commonwealth Act, it were considered desirable to ignore the existence of the Joint
Petroleum Development Area, this could be provided for in regulations under the
Petroleum (Submerged Lands) Act deeming the offshore areas in respect of Western
Australia, the Northern Territory and the Territory of Ashmore and Cartier Islands for
purposes of that other Act to be as they were before 1991. However, under current
legislative principles, it is considered more appropriate to provide for overriding
provisions of this kind to be placed in the other Act.
Equivalent provisions in the PSL Act: subsections 5A(1), (1A), (2), (3), (4), (5), (6),
(6A), (6B), (7), (8) and (9)
Technical change: change of label from "adjacent area" to "offshore area"
Policy changes: the fact that all seabed agreements with other countries are to be
recognised in determining offshore area boundaries; omission of provision for
regulations to ignore, where desired, the existence of the Joint Petroleum
Development Area
Clause 8 - Spaces above and below offshore areas
This clause provides that the conduct of activities beneath the seabed, on the seabed,
within the water column, on the surface of the water and in the air above will be
equally controlled by the proposed Act to the extent to which they are relevant to
exploration for and exploitation of offshore petroleum resources. This means, for
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example, that if a company is granted an exploration permit over a certain block, the
rights conferred by the permit allow the holder to conduct aeromagnetic surveying in
the air above that block in addition to seismic surveys using vessels, gravity surveys,
"sniffer" surveys (testing the water column for gas seepage through the seabed) and
drilling into the seabed. All these activities may be engaged in subject to operational
approval by the Designated Authority.
Equivalent provision in the PSL Act: section 6
Technical change: deletion of a reference to the regulations
Clause 9 - Term of titles
This clause clarifies that the term of a title is not necessarily a fixed period that is
always accurately predictable when the title is granted. While, for example, an
exploration permit is set down as having a duration of 6 years if it is the initial grant
of a permit and 5 years if it is a renewal, in either case the term could be extended or
shortened by the impact of various provisions of the proposed Act.
This clause also clarifies that the date on which a year of the term of a title is
completed is determined by when the title comes into force, which could be a date
later than the one on which the Joint Authority grants the title.
This clause further clarifies that the expiry date of a title, like the term, and for the
same reason, is not always accurately predictable when the title is granted.
Equivalent provisions in the PSL Act: subsections 5(2) and (3)
Clause 10 - Renewal of titles
This clause makes clear that the renewal of a title is a new title. However, there is
continuity from the expiring title in the sense that the identity of the party who can
obtain the renewal, which blocks and how many blocks it can cover and the date when
the renewal can come into force, are all determined by what is set down in the
expiring title.
Equivalent provisions in the PSL Act: subsections 5(4), (4A) and (5)
Technical change: relocation of the phrase "blocks specified in the licence" to a later
point in the sentence than in subsection 5(5)
Clause 11 - Variation of titles
This clause provides that, under the proposed Act, the rights and responsibilities of a
titleholder whose title is varied will immediately change to match the variation.
Equivalent provision in the PSL Act: subsection 5(8).
Technical change: insertion of reference to special prospecting authority
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Clause 12 - Vacated area
This clause defines "vacated area" under various scenarios through which a title under
the proposed Act can come to an end. This definition is relevant because certain
obligations fall on the holder or ex-holder of the title to carry out remedial actions in
the vacated area either before or after the title has come to an end.
In relation to a pipeline licence, the vacated area under item 7 or 8 is to be understood
as including whatever area on either side of the pipeline contains scatterings of
construction debris or discarded parts or equipment resulting from the construction or
maintenance of the pipeline.
Equivalent provision in the PSL Act: subsection 5(1)
Technical changes: use of the term "vacated area" in lieu of "relinquished area";
addition of the reference to a production licence being terminated; deletion of the
superfluous reference to the surrender of an infrastructure licence that appears in the
equivalent definition in subsection 5(1)
Clause 13 - Infrastructure facilities
This clause defines infrastructure facilities in a way that makes it clear that these are
not drilling or production platforms being used for that purpose by petroleum
explorers or producers. They could, however, be former drilling or production
platforms that have been retrofitted for a new use.
The reference to the remote control of facilities, structures or installations used to
recover petroleum in the licence area of a production licence could be a reference to a
"monopod" positioned outside the licence area which serves as the control centre for a
number of submerged production plants in the licence area. Such a facility might
accommodate personnel or might merely house computer and other hardware to
control pumping activity at the production facilities.
Where this clause refers to "a facility", "the facility" and "facilities", it refers to the
term in its common usage, not to the specialised meaning "facility" has in clause 68
and Schedule 3.
Equivalent provision in the PSL Act: section 5AAB
Clause 14 - Terminal station
This clause provides for the declaration terminal stations, which serve a purpose in
defining where a secondary line ends and a pipeline begins. The purposes of
secondary lines are explained in the definition in clause 6, but secondary lines are not
pipelines within the meaning of the proposed Act.
Equivalent provision in the PSL Act: section 63
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Clause 15 - Extended meaning of explore
This clause extends the common, dictionary meaning of the word "explore" in order
to regulate all seismic surveying, seabed sampling surveys and various airborne
remote sensing techniques such as gravity, magnetic and laser fluorimetry surveys
that are designed to assist in locating petroleum reserves. Such surveys can be carried
out by various titleholders under the Act or by parties who are not themselves
petroleum explorers. In the latter case, the surveys are performed by speculative
survey companies (normally working under a special prospecting authority) who aim
to sell the survey results to titleholders. Without this clause, there is doubt whether
such speculative activities could be regulated under the proposed Act.
The inclusion of this definition, with application to the entire Bill, means that any
provision in the Bill that prohibits exploration also prohibits surveys by commercial
interests which are not directly involved in exploration. Conversely, any title under
the Bill that confers a right to explore confers a right to carry out a survey, subject to
the title conditions and operational approval.
Equivalent provision in the PSL Act: subsection 19(2)
Policy changes: that the extended definition is precisely targeted at surveys instead of
saying, as does the Petroleum (Submerged Lands) Act, that exploration for petroleum
includes doing anything preparatory to, or knowingly connected with, exploration for
petroleum; that the definition applies to all occurrences of the term "explore" in the
proposed Act, not just to the offence of exploring without authorisation
Clause 16 - Graticulation of Earth's surface and constitution of blocks
This clause sets out the basic provisions about defining a "block" for the purposes of
the Act. In some unusual cases, set out in clause 245, what constitutes a block under
this definition can be further broken down into more than one block.
The normal 5 minute by 5 minute dimensions of a block mean that, for example, a
block in the offshore area of Victoria occupies a smaller area (something over 60
square kilometres) than does one in the Timor Sea (something over 80 square
kilometres), as the kilometre distance between meridians of longitude decreases as
one moves from the Equator towards the pole.
Paragraph (3)(b) refers to the situation where a boundary of an offshore area cuts
through a 5 minute by 5 minute graticular section. This could be a boundary between
that offshore area and the coastal waters, or a boundary between that offshore area
and the offshore area of another State or the Northern Territory. It could also be an
agreed seabed boundary between Australia and another country or the boundary
between Australia's continental shelf and the International Seabed Area. Since these
boundaries are not everywhere straight and include some twists and bends, the
transection of a graticular section by a boundary line could mean that more than one
portion of the graticular section falls on one side of the boundary line. Then this
paragraph provides that those portions within the one offshore area together constitute
one block.
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When it comes to provisions such as subclause 82(8), which defines the attributes of
blocks in respect of which an exploration permit may be sought, subclause (4)
clarifies how the Bill provides for dealing with a block consisting of two or more
portions of a graticular section.
When it comes to nominating a block for declaration as a location under clause 107,
subclause (5) clarifies how the Bill provides for dealing with a block which does not
cover a whole graticular section.
Equivalent provision in the PSL Act: section 17
Clause 17 - External Territories
This clause sets out the external territories of the Commonwealth to which the
proposed Act would apply. The proposed Act would apply also around two other
islands that are distant from the Australian continent but which are not external
territories, namely Lord Howe Island, which is part of the New South Wales offshore
area and Macquarie Island, which is part of the Tasmanian offshore area. In keeping
with the ambit of the Petroleum (Submerged Lands) Act, the proposed Act would
have no application offshore of the Australian Antarctic Territory.
Equivalent provision in the PSL Act: section 7
Clause 18 - Application of Act
This clause sets out a provision which is standard in Commonwealth legislation. It has
particular relevance to the proposed Act because many petroleum companies which
operate in Australia's marine jurisdiction are foreign companies.
Equivalent provision in the PSL Act: section 8
Clause 19 - Certain pipelines provisions to apply subject to international obligations
This clause provides that if, for example, a pipeline is constructed to convey gas to
Australia from another country, then any provisions of an agreement with that other
country that governs the administration of the project would override the provisions of
the proposed Act if there were some inconsistency between them. It would not be
appropriate, for instance, to require the foreign-based operator of the pipeline to
obtain a Joint Authority's consent under clause 193 before ceasing to operate the
pipeline. The intergovernmental agreement would have to address issues of this kind
differently to what the Act provides in the domestic context.
Equivalent provision in the PSL Act: section 8AA
DIVISION 2--DATUM PROVISIONS
SUBDIVISION A--DATUM FOR ASCERTAINING THE POSITION OF POINTS ETC.
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Clause 20 - Objects
This clause deals with the objects of this Subdivision. The term "datum" is defined in
clause 6, but, to fully grasp its meaning, one needs to understand that, if the latitude and
longitude of a point are given, that information does not in itself provide the means of
identifying the position of that point on the surface of the Earth with any accuracy. A
datum, the reference surface for the latitude and longitude, also needs to be specified. If
the coordinate and datum of a point are specified and one then keeps the same
coordinate and specifies a different datum, that will send anyone trying to find the point
to a different location. The issue is similar to quoting a volume with appropriate units,
for example 100 imperial gallons is different from 100 US gallons.
In onshore surveying, the traditional technique for accurately locating a specified
point on the ground has been to measure to existing trig points with known positions
on surrounding elevated land features. The coordinates of these trig points are not in
themselves the datum but they are derived from the datum and can be said to
represent it. The coordinate of each trig point was originally obtained by a process of
working outwards from a primary reference point. For some decades from the 1960s,
that primary reference point in Australia was the Johnston Geodetic Station in the
Northern Territory. The latitude and longitude of that Station had been determined
very accurately, and also its elevation above the spheroid representing the Earth (the
Earth not being a perfect sphere). All this information, together with measurements
indicating the size and shape of the spheroid, constitutes a datum, namely the
Australian Geodetic Datum (AGD) (see Annex A).
When it comes to surveying offshore, the coordinate of a point can be given with
reference to the AGD just as it can be onshore. Until 2001, for purposes of title
management, the Petroleum (Submerged Lands) Act specified the AGD as the datum
both for determining and describing the position of a point, line or area. However, in
2001, amendments were passed to the Act so that regulations could be made
prescribing a new datum for describing that position.
This was because of the general move in Australia to adopt the Geocentric Datum of
Australia (GDA), a new datum which was gazetted in 1995 and which provides
benefits in terms of direct compatibility with the Global Positioning System used in
satellite navigation. But simply accepting existing AGD coordinates as GDA
coordinates in the Act would have meant that holders of existing titles under the Act
would have found that the area in which they could operate had shifted by about 200
metres over the seabed. Following consultation with stakeholders, the Parliament
agreed that adoption of the GDA in the Act must not lead to that result.
Instead, the amendments to the Act made in 2001 allowed the GDA to be adopted in
petroleum title administration so that the gridlines that delineate the 5 minute by 5
minute blocks were relabelled with the new datum but without moving the title areas
from their existing position on the seabed. To do this, the coordinates of corner points
of title areas, which were expressed as whole multiples of 5 minutes, were
transformed to unwhole numbers of minutes under the GDA, for example 16�40'00"
South, 118�15'00" East under the AGD converted to 16�39'55.09" South,
118�15'4.63" East under the GDA.
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Overall, then, the objects of Subdivision A are to maintain the AGD as the
determinant for the position of the grid on which title areas under the proposed Act
depend and, secondly, to provide the means for a new datum (other than the GDA) to
be prescribed at some future time for describing that position if there are good reasons
for doing so.
Equivalent provision in the PSL Act: section 150L
Clause 21 - Definitions
This clause sets out a number of definitions for purposes of this Subdivision.
As it does not appear in currently published Acts or regulations, a copy of Gazette
Notice No. 84 of 6 October 1966, which established the Australian Geodetic Datum,
is given at Annex A. The additional reference to the "AGD66 geodetic data set" is a
reference to the fact that there was a 1984 adjustment of coordinates based on the
Australian Geodetic Datum, but, since the Petroleum (Submerged Lands) Act dates
from 1967, the 1984 data set does not apply to the Act. Coordinates under the Act and
the proposed Act are to be understood to be determined by reference to coordinates
based on the 1966 data set.
The definition of "title" does not include a scientific investigation consent because
this would be included under the definition of an "instrument under this Act".
Equivalent provision in the PSL Act: section 150W
Technical change: the reference to the "AGD66 geodetic data set"
Clause 22 - Australian Geodetic Datum
This clause is the basic provision maintaining the Australian Geodetic Datum (AGD)
as the determinant for the position on the surface of the Earth of a graticular section or
block, on which title areas under the proposed Act are based.
Subclause (1) also provides that the AGD will determine the position on the seabed of
the parallel of Latitude 25� South mentioned in subclause 7(2), any scheduled area
description in Schedule 1 and the area described in Schedule 2, which is used to
define the "area to be avoided" in clause 326. While the lines and points making up
these descriptions may be individually converted to GDA reference in future
legislative amendments, it has not been deemed necessary to complete this for
purposes of this Bill.
Subclause (2) provides that, in an instrument under the proposed Act, there is no
impediment to describing the point, line or area by reference to another datum. By
virtue of the Regulations currently in place, the other datum is the Geocentric Datum
of Australia.
Equivalent provision in the PSL Act: subsections 150M(1) and (2)
15
Clause 23 - Current datum, previous datum and changeover time
This clause provides that regulations may in future declare a new datum for
describing the position on the surface of the Earth of a point, line or area in a title or
other instrument under the Act. This new datum is here referred to as "the current
datum", as distinct from "the previous datum".
Subclause (2) defines the "previous datum" for purposes of making a declaration of
the kind referred to above. Because of the Regulations currently in place, if and when
such a declaration is next made, the "previous datum" will be the Geocentric Datum
of Australia.
Subclause (3) provides for the time of effect of a declaration of the kind referred to
above to be called the "changeover time".
Equivalent provision in the PSL Act: section 150N
Clause 24 - Use of current datum
This clause refers to all the different titles and other types of instruments that may be
granted or issued under the proposed Act in the context of what would need to be
done if a new datum were declared. This clause deals only with titles or other
instruments granted or issued after the changeover time and provides that then any
area, route (for pipelines), line or point that is referred to in any one of these titles or
other instruments is to be described by reference to the "current datum", ie, the new
datum. The title or other instrument may be annotated accordingly.
Equivalent provision in the PSL Act: section 150P
Clause 25 - Use of previous datum
This clause refers to all the different titles and other types of instruments that may be
granted or issued under the proposed Act in the context of what would need to be
done if a new datum were declared. This clause deals only with titles or other
instruments that are in force immediately before the changeover time. Any area, route
(for pipelines), line or point that is referred to in any of these titles or other
instruments is to be described by reference to the previous datum. Subclause (2)
makes the point that this is the situation as long as no regulations have been made
under clause 26. However, if regulations have been made only under some subclauses
of clause 26, the titles or other instruments that have not been dealt with under these
subclauses will still be described by reference to the previous datum.
If there were going to be a second changeover date, ie the declaration of another new
datum, it is the intention that the variation power under clause 26 would be used in
respect of any title or instrument still continuing in force from before the first
changeover time. Thus, when the second changeover date became imminent, all titles
and instruments would be referenced to the datum that had been declared starting
from the first changeover time.
Equivalent provision in the PSL Act: section 150Q
16
Clause 26 - Variation of titles and instruments
This clause refers to what could be done (as an option) if a new datum were declared.
This clause enables regulations to be made to authorise variations to be made by the
Designated Authority to titles and other instruments that have been granted or issued
under the Act before the changeover time. Under items 1 to 6 of the table, the purpose
of the variation would be for relabelling, using coordinates based on the current
datum, any area or route (for pipelines) that is referred to in the title to which the
regulations relate. If a regulation were made under item 7, the purpose of the variation
would be for relabelling, using coordinates based on the current datum, any point, line
or area in some other instrument under the Act. Item 8 provides a regulation-making
power so that the Designated Authority may insert an annotation in any title or other
instrument stating what datum applies to that title or other instrument.
Equivalent provision in the PSL Act: section 150R
Clause 27 - Variation of applications for titles
This clause refers to what could be done (as an option) if a new datum were declared.
This clause provides a regulation-making power so that the Designated Authority may
vary an application for a title if the area for which the title is sought is referenced to
the previous datum. The coordinates of the area in the application would then be
relabelled under the current datum and the title, if granted, would refer to that
relabelled area.
Equivalent provision in the PSL Act: section 150S
Clause 28 - No change to actual position of point, line or area
This clause is an overarching provision that makes it clear that no change in the
position on the surface of the Earth of any point, line, block, pipeline route or other
title area is authorised, either as a result of describing any of them under clause 24 or
as a result of relabelling any of them under clause 26.
Equivalent provision in the PSL Act: section 150T
Clause 29 - Transitional regulations
This clause provides a power to make regulations to cover matters of a transitional
nature arising from any future datum change. This is to cover contingencies not
identified or foreseen in drafting this Subdivision.
Equivalent provision in the PSL Act: section 150U
17
Clause 30 - International Seabed Agreements
This clause makes it clear that none of the above provisions about datums apply to the
position on the surface of the Earth of a point or line specified in an International
Seabed Agreement, as set out in clause 31. The datum that applies to the position of
any such point or line shall continue to be whatever datum is specified in the
International Seabed Agreement in question.
Equivalent provision in the PSL Act: section 150V
SUBDIVISION B--CERTAIN POINTS ETC. SPECIFIED IN AN INTERNATIONAL SEABED
AGREEMENT TO BE ASCERTAINED BY OTHER MEANS
Clause 31 - Certain points etc. specified in an International Seabed Agreement to be
ascertained by other means
This clause provides that if a boundary line is defined by coordinates in an
international seabed agreement which Australia has acceded to and is listed in this
clause, then the provisions about the applicable datum that appear in the agreement
override anything in Subdivision A. In other words, regulations made under the
clauses in Subdivision A would not impact on any of the agreements listed in this
clause.
Equivalent provision in the PSL Act: section 150X
DIVISION 3--APPORTIONMENT OF PETROLEUM RECOVERED FROM ADJOINING
TITLE AREAS
Clause 32 - Title
This clause provides that this Division applies only to exploration permits, retention
leases and production licences. This is because the proposed Act does not allow
commercial petroleum recovery under any other title. If small amounts of petroleum
are recovered under a scientific investigation consent, this will be for purposes to
which issues of apportionment are not relevant.
The provisions in this Division of the Bill exist to assist in determining property rights
as set out in clause 248, in demarcation between liability to pay royalty or petroleum
resource rent tax and to determine whether excise is payable under Excise Tariff Act.
Equivalent provision in the PSL Act: paragraph 6A(8)(a)
Clause 33 - Titleholder and title area
This clause provides local definitions, applying only to this Division, to enable the
following provisions to be set out with less repetition of words.
Equivalent provision in the PSL Act: paragraph 6A(8)(a)
18
Clause 34 - Petroleum recovered through inclined well
This clause is relevant because the title area from which petroleum is deemed to have
been recovered by the titleholder could be significant for taxation purposes. If, for
example, one title area were under the Petroleum Resource Rent Tax Act and the
other were under the current or proposed Royalty Act, the provision in this clause
would be decisive in determining whether the titleholder would be liable to pay tax or
royalty. Whichever applied, the financial implications would not be the same as if the
other Act applied.
Equivalent provision in the PSL Act: subsection 6A(2)
Clause 35 - Petroleum pool straddling 2 title areas etc.
This clause deals with the situation in which a company has two different titles such
that a petroleum pool straddles the two title areas. In this situation, it is normal to
assume that, if there is a well in just one of the title areas, petroleum will flow from
the side of the pool which is in the other title area into the title area where the well is
located. Thus one well will tap petroleum from two title areas. Likewise, if in this
situation there is a well in both title areas, all the petroleum recovered from each well
will not necessarily originate in the title area where the well is located.
This clause provides how the proportion of petroleum derived from each title area is
to be determined. The purpose of this determination is the same as the one outlined
under clause 34.
Equivalent provisions in the PSL Act: subsections 6A(3) and (4)
Policy change: conferral of jurisdiction on the Federal Court
Clause 36 - Petroleum pool straddling Commonwealth title area and State title area
etc.
This clause addresses the same issue as clause 35 in cases where only one of the two
title areas is under Commonwealth jurisdiction. In that situation, the determination
would fix the proportions of recovered petroleum taxable respectively under State or
Northern Territory legislation and Commonwealth legislation.
Equivalent provisions in the PSL Act: subsections 6A(5) and (6) and paragraphs
6A(8)(b) and (c)
Policy changes: empowerment of the responsible State or Northern Territory
Minister, ie possibly an acting Minister; conferral of jurisdiction on the Federal Court
Clause 37 - Unit development
This clause refers to a situation of the kind envisaged in clause 163. Where a unit
development agreement is in place, the most fundamental issue addressed in that
agreement would be the proportions of petroleum deemed to be recovered from each
19
title area. This clause provides that, when petroleum is recovered in a unitised
production operation, the proportions specified in an agreement (if approved and
registered as set out in clause 270) will have legal effect for all purposes including
taxation.
Equivalent provision in the PSL Act: subsection 6A(7)
Part 1.3--Joint Authorities and Designated Authorities
DIVISION 1--JOINT AUTHORITIES
Clause 38 - Joint Authorities
This clause provides for the establishment of a Joint Authority for each offshore area.
This is one of the ways in which, as envisaged in the Offshore Constitutional
Settlement (clause 4 refers), the States and the Northern Territory share in the
administration of the Commonwealth offshore petroleum legislation.
The Joint Authority members, ie the responsible Commonwealth, State and Northern
Territory Ministers, are the Ministers in each jurisdiction who exercise responsibility
for petroleum resources. Specifically, the responsible Commonwealth Minister is the
Minister administering the proposed Act, and the responsible State and Northern
Territory Ministers are the ones administering the State and Northern Territory
"mirror" Acts, which currently have the same title as, but a different year reference
than, the Commonwealth Petroleum (Submerged Lands) Act 1967.
In the case of the external territories, there is no joint administration. All powers are
vested in the responsible Commonwealth Minister. The proposal that the
Commonwealth Minister be nonetheless called the Joint Authority for external
territories is merely a legislative drafting device adopted with a view to avoiding a
proliferation of terms for entities with essentially identical functions.
Equivalent provision in the PSL Act: sections 8A and 8B and subsection 8G(1)
Technical changes: that the Commonwealth Minister is actually called the Joint
Authority for external territories, instead of merely being ascribed with the powers
and functions that are elsewhere ascribed to a Joint Authority
Clause 39 - Functions and powers of Joint Authorities
This clause provides that the powers and functions of the Joint Authority for each
offshore area are as set out in elsewhere in the Bill. They are in part powers and
functions of a strategic kind, but they also enter into administration to the extent of
deciding, for instance, whether any of the main types of titles under the proposed Act
should be offered to a particular applicant.
Equivalent provision in the PSL Act: section 8C
20
Clause 40 - Procedure of Joint Authority
This clause leaves open all possible ways for the Joint Authority of a State or the
Northern Territory to conduct its business, including telephone conferencing.
In accordance with current drafting practice, subclause (2) makes clear that a written
communication between the Joint Authority members is not a legislative instrument in
terms of the Legislative Instruments Act 2003.
Equivalent provision in the PSL Act: subsection 8D(1)
Clause 41 - Decision-making
This clause gives the responsible Commonwealth Minister overriding decision-
making authority in a case where the members of a Joint Authority disagree on the
decision to be taken about a particular matter. Where the responsible State or
Northern Territory Minister does not communicate his or her opinion to the
responsible Commonwealth Minister, subclause (3) provides the mechanism by which
the Commonwealth Minister's view will become the Joint Authority decision.
This power of the responsible Commonwealth Minister is counterbalanced by the fact
that a large number of decisions under the proposed Act do not fall within the
functions of the Joint Authority, but are made by the Designated Authority, who is the
responsible State or Northern Territory Minister. These powers are dealt with in
Division 2.
Equivalent provision in the PSL Act: subsection 8D(2)
Clause 42 - Opinion or state of mind of Joint Authority
This clause refers to the fact that a number of provisions in the Bill envisage the Joint
Authority taking certain actions if the Joint Authority is satisfied that certain criteria
are met. For such purposes, this clause sets out how the opinion or state of mind of the
Joint Authority is to be understood.
Equivalent provision in the PSL Act: subsection 8D(3)
Clause 43 - Records of decisions of Joint Authority
This clause is required because two parties are involved in the Joint Authority and it
would not otherwise be obvious which party would have responsibility for keeping
records of Joint Authority decisions in respect of a State or the Northern Territory
offshore area. This clause accordingly places this responsibility on the Designated
Authority, ie the State or Northern Territory Minister, or his or her delegate.
This is because the implementation of the decision is always a responsibility of the
Designated Authority and because the register of titles is kept by the Designated
Authority. The Commonwealth Minister's officials would keep departmental records
21
of deliberations leading to any particular decision in the same way as is done in
administering any other legislation, but such records might not have standing as prima
facie evidence in law about the decision that was taken.
In accordance with current drafting practice, subclause (3) makes clear that a record
of decision of the Joint Authority is not a legislative instrument in terms of the
Legislative Instruments Act 2003.
Decisions of the Joint Authority for an external territory are decisions of the
Commonwealth Minister and that Minister would cause records to be kept of his or
her decisions, or his or her delegates' decisions.
Equivalent provision in the PSL Act: subsection 8D(4)
Clause 44 - Signing of documents
This clause deals with executing Joint Authority documents (not necessarily only
records of decisions), and provides that the Designated Authority's signature on the
document is effective in giving it standing, particularly for court proceedings or
hearings before tribunals.
Equivalent provision in the PSL Act: subsection 8D(5)
Clause 45 - Communications with Joint Authority
This clause makes it obligatory for all communications between industry-members
and the Joint Authority to be made through the Designated Authority. This is for
reasons of administrative efficiency given that the responsible State or Northern
Territory Minister, who is the Designated Authority, is also a member of the Joint
Authority.
Equivalent provision in the PSL Act: subsection 8D(6)
Clause 46 - Judicial notice of signature of member of a Joint Authority
This clause requires a court to take judicial notice of signatures and facts relating to
membership or being a delegate of a Joint Authority. Judicial notice is a finding by a
court of the existence of a fact which has not been established by evidence. Once
judicial notice is taken of a matter, it is prima facie proved and evidence is not
required to prove it. However, evidence may be led to rebut the fact noticed or the
consequences of it.
A court to which this clause refers could be a Commonwealth, State or Territory
court. Subclause (3) extends the provisions of this clause to persons authorised to
receive evidence. This would include, for example, a tribunal or arbitrator who is
authorised to receive evidence.
Equivalent provisions in the PSL Act: subsections 8D(7) and (8)
22
Policy changes: that the signature, and the fact, of someone being a delegate of a Joint
Authority require a court to take judicial notice of that signature and fact
Clause 47 - Issue of documents, and service of notices, on behalf of Joint Authority
This clause provides that, despite the fact that actions such as the grant of a title are
set down in the Bill as actions of the Joint Authority, it is the Designated Authority
who is to execute the title instrument, or any other document, on behalf of the Joint
Authority.
Equivalent provision in the PSL Act: section 8F
Clause 48 - Delegation by a Joint Authority for a State or the Northern Territory
Replicating the equivalent provision in the Petroleum (Submerged Lands) Act, this
clause provides that a delegation of Joint Authority powers and functions for a State
or the Northern Territory is possible only if there is one delegate for the
Commonwealth member and one delegate for the State or Northern Territory member
and both members approve of both delegates. If there is no delegation, all business of
the Joint Authority must involve both Ministers as decision-makers. Even when there
is a delegation, if the delegates disagree, the matter must be referred to the Ministers
for a decision. Likewise, if there is a disagreement, the opinion or state of mind of the
delegates is not to be viewed as the opinion or state of mind of the Joint Authority.
In other respects, the provisions of the Acts Interpretation Act 1901 apply to
delegations of Joint Authority powers. Section 34AA of the Acts Interpretation Act
provides:
"Where an Act confers power to delegate a function or power, then, unless the
contrary intention appears, the power of delegation shall not be construed as being
limited to delegating the function or power to a specified person but shall be
construed as including a power to delegate the function or power to any person from
time to time holding, occupying, or performing the duties of, a specified office or
position, even if the office or position does not come into existence until after the
delegation is given."
Section 34AB of the Acts Interpretation Act provides:
"Where an Act confers power on a person or body (in this section called the
authority) to delegate a function or power:
(a) the delegation may be made either generally or as otherwise provided by the
instrument of delegation;
(b) the powers that may be delegated do not include that power to delegate;
(c) a function or power so delegated, when performed or exercised by the delegate,
shall, for the purposes of the Act, be deemed to have been performed or
exercised by the authority;
(d) a delegation by the authority does not prevent the performance or exercise of a
function or power by the authority; and
(e) if the authority is not a person, section 34A applies as if it were."
23
Section 34A of the Acts Interpretation Act provides:
"Where, under any Act, the exercise of a power or function by a person is dependent
upon the opinion, belief or state of mind of that person in relation to a matter and that
power or function has been delegated in pursuance of that or any other Act, that
power or function may be exercised by the delegate upon the opinion, belief or state
of mind of the delegate in relation to that matter."
Subclause (3), a new provision, addresses the situation that occurs from time to time
of the responsible Commonwealth, State or Northern Territory Minister being
replaced. It also addresses the less common situation of a Ministerial position in the
Joint Authority falling vacant. For efficient administration, subclause (3) ensures that,
in either case, any existing delegation continues to have effect. If the delegation is to
the holder of a specific office in a Department of the Commonwealth, a State or the
Northern Territory, the continuation of the delegation would not be affected by a
change in the name of the Department.
Subsection 33(3) of the Acts Interpretation Act provides:
"Where an Act confers a power to make, grant or issue any instrument (including
rules, regulations or by-laws) the power shall, unless the contrary intention appears,
be construed as including a power exercisable in the like manner and subject to the
like conditions (if any) to repeal, rescind, revoke, amend, or vary any such
instrument."
Subclause (4) accordingly clarifies that the continuation of effect of a delegation
under subclause (3) does not limit the Joint Authority's power to revoke a delegation,
for example when a new person has been appointed as the Commonwealth Minister.
Subclause (8) has been included in compliance with the Australian Government
policy that, if a delegation of this type is to be given to an APS (Australian Public
Service) officer, it must be given to an officer at the SES (Senior Executive Service)
level, defined in sections 34 and 35 of the Public Service Act 1999.
Since the rank profiles in State and Northern Territory Public Service structures may
vary from one jurisdiction to the next, no attempt has been made to include any
analogous requirement in relation to the delegation of powers and functions to a State
or Northern Territory public servant.
In accordance with current drafting practice, subclause (9) makes clear that the
referral of a matter to the Joint Authority is not a legislative instrument in terms of the
Legislative Instruments Act 2003.
Equivalent provision in the PSL Act: section 8H
Policy changes: the continuation in effect of a delegation despite a vacancy in one or
both of the Ministerial positions or a change in the identity of its holder; express
recognition of the revocability of a delegation; the requirement that delegations to
APS employees must be made to persons at the SES level
24
Clause 49 - Delegation by Joint Authority for an external Territory
This clause deals with a delegation of the Commonwealth Minister's powers as Joint
Authority for an external territory. An instrument making, varying or revoking a Joint
Authority delegation in respect of an external territory must be published in the
Gazette. This replicates the policy in the Petroleum (Submerged Lands) Act, which
names the Commonwealth Minister only as the Designated Authority in respect of
external territories and ascribes to that Designated Authority all the powers of the
Joint Authority. An instrument making, varying or revoking a Designated Authority
delegation, whether for an external territory or a State or the Northern Territory, is
required to be published in the Gazette.
This clause also provides that, if a delegation of this type is to be given to an
Australian Public Service (APS) officer, it must be given to an officer at the Senior
Executive Service (SES) level.
Equivalent provisions in the PSL Act: paragraph 8G(1)(a) and subsections 15(1), (4)
and (6)
Policy changes: the requirement that delegations to APS employees must be made to
persons at the SES level
DIVISION 2--DESIGNATED AUTHORITIES
Clause 50 - Designated Authorities
The Offshore Constitutional Settlement (clause 4 refers) provides for the States and
the Northern Territory to share in the administration of Commonwealth offshore
petroleum legislation. As another of the ways in which this is achieved, this clause
provides for the responsible State or Northern Territory Ministers to be appointed as
Designated Authorities for the offshore areas of their respective States and the
Northern Territory.
The Australian Parliament determines the powers to be vested in the Designated
Authority. While, in a legal sense, the Designated Authority is mostly able to exercise
those powers without overriding action by the Commonwealth Minister, at the
administrative level guidelines and protocols have been developed, and are being
further developed, to achieve maximum possible uniformity in the policies and
practices adopted by the Designated Authorities.
The main reason why the Designated Authority arrangements exist is for reasons of
efficiency. For example, government mining engineers of any particular State or the
Northern Territory are able to advise on the technical aspects of petroleum exploration
and production projects in the coastal waters of that State or Territory. It would be
wasteful of resources to have an arrangement in which the Commonwealth had to
engage a different group of mining engineers for the administration of petroleum
exploration and production projects in the offshore area of that State or Territory
adjacent to those coastal waters.
25
The Commonwealth Minister is the Designated Authority for external territories in
the same way as he or she is the Joint Authority for those territories.
Equivalent provision in the PSL Act: section 14
Clause 51 - Functions and powers of Designated Authorities
This clause provides that the powers and functions of the Designated Authority for
each offshore area are as set out in elsewhere in the Bill. They are routine powers and
functions of an administrative kind but they have substantial influence on what
titleholders and others may or may not do in the offshore area.
If the Designated Authority for a State or Northern Territory offshore area is inclined
to take a particular decision that is permitted by the Designated Authority's powers
and functions, it cannot generally be vetoed by the Joint Authority or the
Commonwealth Minister. Exceptions include powers or functions which are explicitly
designated as being subject to specific provisions of the proposed Act or regulations,
as in subclause 311(3). In such cases, the Commonwealth could, for example,
promulgate regulations implementing the Commonwealth Minister's position.
Another exception is the stipulation in subclause 305(5) that the Designated Authority
must not give a direction of a standing or permanent nature except with the approval
of the Joint Authority.
In practice, administrative guidelines and protocols that have been developed to
achieve maximum possible uniformity in the policies and practices adopted by the
Designated Authorities would have a high degree of influence over what any
particular Designated Authority chooses to do. Apart from this, it is open to the
Australian Parliament to pass legislative amendments from time to time to vary the
powers and functions of the Designated Authority if it so desires.
Equivalent provisions in the PSL Act: section 14
Clause 52 - Delegation by Designated Authority
This clause provides for the delegation of Designated Authority powers and functions,
which could be conferred on, or divided between, more than one person. The
provisions of the Acts Interpretation Act 1901 apply to delegations of Designated
Authority powers. Section 34AA of the Acts Interpretation Act provides:
"Where an Act confers power to delegate a function or power, then, unless the
contrary intention appears, the power of delegation shall not be construed as being
limited to delegating the function or power to a specified person but shall be
construed as including a power to delegate the function or power to any person from
time to time holding, occupying, or performing the duties of, a specified office or
position, even if the office or position does not come into existence until after the
delegation is given."
Section 34AB of the Acts Interpretation Act provides:
26
"Where an Act confers power on a person or body (in this section called the
authority) to delegate a function or power:
(a) the delegation may be made either generally or as otherwise provided by the
instrument of delegation;
(b) the powers that may be delegated do not include that power to delegate;
(c) a function or power so delegated, when performed or exercised by the delegate,
shall, for the purposes of the Act, be deemed to have been performed or
exercised by the authority;
(d) a delegation by the authority does not prevent the performance or exercise of a
function or power by the authority; and
(e) if the authority is not a person, section 34A applies as if it were."
Section 34A of the Acts Interpretation Act provides:
"Where, under any Act, the exercise of a power or function by a person is dependent
upon the opinion, belief or state of mind of that person in relation to a matter and that
power or function has been delegated in pursuance of that or any other Act, that
power or function may be exercised by the delegate upon the opinion, belief or state
of mind of the delegate in relation to that matter."
Subclause (2) addresses the situation that occurs from time to time of the responsible
State or Northern Territory Minister being replaced. It also addresses the less common
situation of that Ministerial position falling vacant. For efficient administration,
subclause (2) ensures that, in either case, any existing delegation continues to have
effect.
The reason why, under subclause (4), a copy of each instrument making, varying or
revoking a Designated Authority delegation must be published in the Gazette is that
the public has to deal with the Designated Authority's delegate(s) and should
therefore be notified of any change in the identity of the person(s) concerned. Since
the public does not deal directly with the Joint Authority, no comparable requirement
is proposed in relation to the delegation of Joint Authority powers and functions
(except those of a Joint Authority in respect of an external territory).
Subclause (5) has been included in compliance with the Australian Government
policy that, if a delegation of this type is to be given to an APS (Australian Public
Service) officer, it must be given to an officer at the SES (Senior Executive Service)
level, defined in sections 34 and 35 of the Public Service Act 1999. In practice, only
the Designated Authority for an external territory, ie the responsible Commonwealth
Minister, would be likely to delegate Designated Authority powers to an APS officer.
Since the rank profiles in State and Northern Territory Public Service structures may
vary from one jurisdiction to the next, no attempt has been made to include any
analogous requirement in relation to the delegation of powers and functions to a State
or Northern Territory public servant.
Equivalent provision in the PSL Act: subsections 15(1), (4) and (6)
Policy changes: the requirement that delegations to APS employees must be made to
persons at the SES level
27
Clause 53 - Judicial notice of signature of Designated Authority
This clause requires a court to take judicial notice of signatures and facts relating to
membership or being a delegate of a Designated Authority. Judicial notice is a finding
by a court of the existence of a fact which has not been established by evidence. Once
judicial notice is taken of a matter, it is prima facie proved and evidence is not
required to prove it. However, evidence may be led to rebut the fact noticed or the
consequences of it.
Subclause (2) extends the provisions of this clause to persons authorised to receive
evidence. This would include, for example, a tribunal or arbitrator who is authorised
to receive evidence.
Equivalent provision in the PSL Act: section 137
DIVISION 3--FINANCE
Clause 54 - Payments by the Commonwealth to Western Australia--Royalty Act
payments
This clause sets out the provisions for the sharing between the Commonwealth and
Western Australia of royalty payments received under the current or proposed
Royalty Act. The formula in subclause (1) provides for royalty to be shared in the
ratio 60:40 between Western Australia and the Commonwealth if the rate of royalty is
10%. If the rate is higher, the additional royalty will all be paid to Western Australia.
As an example, if $1,000,000 worth of production is subjected to royalty at 10%,
Western Australia will receive $60,000 in royalty and the Commonwealth will retain
$40,000. If $1,000,000 worth of production is subjected to royalty at 12�%, the
formula provides that Western Australia will receive $85,000 in royalty and the
Commonwealth will again retain $40,000.
The reference to clause 9 of the proposed Royalty Act is a reference to what may
occur if the Designated Authority is satisfied that the rate of recovery of petroleum
from a well has become so reduced that, having regard to the rate or rates of royalty
that would otherwise be applicable, further recovery of petroleum from that well
would be uneconomic. The Joint Authority may then, by written instrument,
determine that the royalty in relation to any or all of the petroleum recovered from
that well on or after a date specified in the determination is to be such a lower rate as
is specified in the determination.
In that situation, the lowering of the royalty rate does not change the formula from
what it was before the lowering. If the rate of royalty were reduced for an operation
from, say, 12�% to 5%, then $1,000,000 worth of production would lead to the
payment of $50,000 of royalty, of which $34,000 would be paid to Western Australia
and $16,000 would be retained by the Commonwealth.
Subclause (2) refers to the fact that, in practice, all royalty payments under the Act are
initially based on a provisional valuation of petroleum. Later, an agreed or determined
28
value is arrived at and an adjustment can be made to the next royalty payment to take
account of any difference. Given the possibility of an overpayment by a titleholder, a
new provision appears in the proposed Royalty Act allowing the payment of a refund
to a titleholder who has ceased paying royalty because the production operation has
come to an end.
In most cases, this means that if, say, a refund of $1,000 dollars has been paid to a
titleholder who has been paying royalty at the rate of 12�%, then, in that particular
month, the royalty payment remitted to Western Australia will be reduced by $680.
However, if the cause of the overpayment and refund were an error in the percentage
rate at which the royalty were calculated, then the reduction to Western Australia
could be the whole of the refund amount. This can be understood by noting the fact
that any component of royalty above 10% is remitted to Western Australia without
any deduction to the Commonwealth.
Equivalent provision in the PSL Act: paragraph 129(1)(b), subsection 129(2)
Policy change: deduction from payments to Western Australia of the State's
component of refund amounts
Clause 55 - Payments by the Commonwealth to the States and the Northern Territory
This clause covers most types of payments other than royalty. Paragraph (1)(a) refers
to application fees for titles under the proposed Act and to fees paid by titleholders
under the proposed Annual Fees Act and Registration Fees Act.
Paragraph (1)(b) refers to various fees not directly related to the grant of a title that
are payable under the proposed Act, for example those mentioned in clauses 296, 297
and 427 and Schedule 5 clause 6.
The mention of Chapter 5 in subparagraph (1)(b)(iii) corrects an oversight dating from
when the Petroleum (Submerged Lands) Act was amended in 2000. As a result, none
of the fees associated with releasing information under Part IIIA of the Act are
currently covered by the requirement to direct moneys back to the relevant Designated
Authority. The relevant clause is clause 427 and the provision here rectifies this
defect. Clause 427 is a broad provision enabling regulations to be made prescribing
the fees payable for access to information and samples. Therefore, paragraph (1)(b)
refers to regulations as well as Chapters of the proposed Act.
Paragraph (1)(c) refers to the fact that, if there are certain breaches of directions such
as remedial directions under Part 4.3, the Designated Authority may take action to do
what the recipient of the direction failed to do. In these cases, the costs or expenses
incurred by the Designated Authority are a debt due to the Commonwealth, either by
the recipient of the direction or by the owner of the property, and are recoverable in a
court of competent jurisdiction.
In all these cases, once the moneys in question have been paid into the
Commonwealth Consolidated Revenue Fund, they are to be directed back to the State
or Northern Territory by the end of the following month. This does not apply to the
GST component of any fee (if there is one) nor to any amount payable to the Safety
Authority.
29
Moneys paid as cash bids in respect of cash-bid exploration permits are not subject to
the provisions of this clause. This is because the consideration of Commonwealth -
State- Northern Territory revenue sharing arrangements from the award of cash-bid
exploration permits was expressly deferred when amendments were made to the
Petroleum (Submerged Lands) Act in 1985 establishing the power to grant cash-bid
exploration permits. At the time, it was envisaged that the cash-bid provisions would
be implemented only in the offshore area of the Territory of Ashmore and Cartier
Islands. In the event, some cash-bid permits were later issued in the offshore area of a
State as well, but the revenue arrangement has not been changed. This creates an
inconsistency with amounts paid as cash bids for special exploration permits and
cash-bid production licences, as, under the Petroleum (Submerged Lands) Act, these
amounts are to be directed back to the State or Northern Territory. This clause
proposes to eliminate that inconsistency by proposing that amounts paid as cash bids
for special exploration permits and cash-bid production licences should likewise be
exempt from the provisions of subclause (1) and accordingly be retained in full by the
Commonwealth.
Equivalent provision in the PSL Act: paragraph 129(1)(a) and subsections 129(1A)
and (2A)
Technical change: explicit mention of excluding moneys payable to the Safety
Authority on behalf of the Commonwealth
Policy changes: that amounts paid as cash bids for special exploration permits and
cash-bid production licences are to be retained by the Commonwealth in the same
way as amounts paid for cash-bid exploration permits; that annual fees and
registration fees applicable to infrastructure licences and dealings, transfers etc in
relation to them, are payable to the Designated Authority; that fees imposed by
regulation are payable to the Designated Authority; that fees associated with
information release are payable to the Designated Authority; that moneys gained
through court action to recover the costs or expenses incurred by a Designated
Authority are payable to the Designated Authority
Clause 56 - Appropriation
This clause provides a standing appropriation for the payment to the States and
Northern Territory of moneys covered by the preceding two clauses.
Equivalent provision in the PSL Act: subsection 129(3).
Part 1.4--Application of State and Territory laws in offshore areas
Clause 57 - Simplified outline
This clause sets out a simplified outline of Part 1.4. This outline does not form part of
the operative text of the proposed Act.
Equivalent provision in the PSL Act: nil.
30
Clause 58 - Meaning of laws
This clause gives a wide scope to what is meant by State and Territory laws under this
Part.
Equivalent provision in the PSL Act: subsection 9(1)
Clause 59 - Application of State and Territory laws in offshore areas
This clause provides that the laws of a State, Northern Territory or external Territory
that apply onshore from an offshore area will also operate in the offshore area in
respect of anything that relates to petroleum exploration, exploitation or conveyance
activities in the offshore area.
This application is subject to a number of qualifications which are set out in other
clauses of Part 1.4 of this Bill. The most important qualification is set out in clause
63, which excludes certain criminal laws that are applied by the Crimes at Sea Act
2000.
As a result of the exclusion of these laws, the remaining areas of State and Territory
law now applied by this clause include, for example, the civil law of negligence.
Thus, if a person causes damage to an offshore petroleum facility merely as a result of
negligence, clause 59 could enable the owner or operator of the facility to launch a
civil action under applied State or Territory law in respect of that damage.
Subclause (7) refers to laws that apply only in part of a State or Territory. Such laws
would most typically be regulations of a technical kind that are different for one
region than another, for example construction regulations for the fabrication of
industrial plant in cyclone-prone areas of a State or Territory as distinct from
regulations applying in other areas. Such regulations could have relevance offshore as
well as on land.
Equivalent provisions in the PSL Act: subsections 9(1), (3), (4) and (5) and 11(1), (3),
(4) and (5)
Clause 60 - Disapplication and modification of laws
This clause provides for situations in which the applied provisions referred to above
are premised on persons being onshore and lead to an inappropriate or anomalous
result if adherence to them is imposed on persons working offshore. Regulations can
then be made disapplying or modifying such State or Territory laws as far as the
offshore area is concerned. Since this might raise questions about what court has
jurisdiction to hear cases where infringement of one of these modified laws is alleged,
subclause (3) provides for the regulations to invest a court of a State with federal
jurisdiction and confer jurisdiction on a court of a Territory.
Equivalent provisions in the PSL Act: subsections 9(8), (9) and (10) and 11(8) and (9)
31
Clause 61 - Limit on application of laws
This clause provides that if a law of a State or the Northern Territory does not apply
to the coastal waters (defined in clause 6), and any waters within the limits, of the
State or Northern Territory, then clause 59 will not apply it to the offshore area of that
State or Territory.
Equivalent provisions in the PSL Act: paragraphs 9(6)(a) and 11(6)(a)
Clause 62 - Inconsistent law not applied
This clause provides that Commonwealth law prevails in the offshore area in all cases
where the State or Territory law would be inconsistent with it.
Equivalent provisions in the PSL Act: paragraphs 9(6)(b) and 11(6)(b)
Clause 63 - Criminal laws not applied
This clause ensures that there is no conflict between clause 59 and the Crimes at Sea
Act 2000. This clause provides that clause 59 does not apply substantive criminal laws
or laws of criminal investigation, procedure and evidence. These laws are described in
more detail in Schedule 1 to the Crimes at Sea Act.
The Crimes at Sea Act is the exclusive basis for applied State and Territory criminal
laws. Under this Act, the States and the Northern Territory enact uniform Crimes at
Sea Acts applying local criminal laws to the marine areas from the territorial sea
baseline to 12 nautical miles. This Act then applies the criminal law of each
jurisdiction (as Commonwealth law) to the respective offshore areas from 12 to 200
nautical miles, or to the outer limit of the continental shelf, whichever is further.
The existence of the Crimes at Sea Act means that State and Northern Territory
criminal laws nowadays extend into the offshore areas without having to rely on any
application of them under clause 59.
Equivalent provision in the PSL Act: subsections 9(2) and 11(2)
Clause 64 - Tax laws not applied
This clause excludes State and Territory taxation laws, for example State secondary
tax legislation that might apply onshore, from having any application in the offshore
area.
Equivalent provisions in the PSL Act: paragraphs 9(6)(c) and 11(6)(c)
Clause 65 - Appropriation law not applied
This clause refers to the fact that the Commonwealth has power, under section 122 of
the Constitution, to appropriate the public money of a Territory. By applying in the
offshore area a Territory law that appropriates public money of the Territory, the
32
Commonwealth could be taken to have itself appropriated public money of the
Territory. This clause ensures that clause 59 does not have this effect.
No equivalent provision is required in relation to State public moneys as the
Commonwealth has no constitutional power to appropriate the public money of any
State.
Equivalent provision in the PSL Act: paragraph 11(6)(d)
Clause 66 - Applied laws not to confer Commonwealth judicial power
This clause must be read in conjunction with clauses 71 and 72. This clause ensures
that State and Territory courts exercise Commonwealth judicial power pursuant to a
conferral of jurisdiction under clause 71 or 72. This clause also ensures that the
application of State or Territory law does not breach the separation of powers by
conferring Commonwealth judicial power on a non-judicial body or officer.
Equivalent provisions in the PSL Act: paragraphs 9(6)(d) and 11(6)(e)
Clause 67 - Applied laws not to contravene constitutional restrictions on conferral of
powers on courts
This clause is inserted to take account of the fact that, under the Constitution, the
Commonwealth is more constrained in the powers it can confer on a court than is a
State or a Territory.
Equivalent provision in the PSL Act: paragraph 9(6)(e)
Technical change: inclusion under this provision of the court of a Territory
Clause 68 - State or Northern Territory occupational health and safety laws do not
apply in relation to facilities
The purpose of this clause is to disapply State and Northern Territory occupational
health and safety laws that would otherwise apply to facilities, activities at facilities
and persons at or near facilities, in the Commonwealth marine jurisdiction. The kinds
of vessels or structures that are "facilities" are set out in clause 4 under Schedule 3.
This clause not only disapplies Northern Territory occupational health and safety laws
in Commonwealth waters forming the offshore area of the Northern Territory but also
the offshore area of the Territory of Ashmore and Cartier Islands. Otherwise, these
laws, as laws in force in the Northern Territory, would be applied in the Territory of
Ashmore and Cartier Islands offshore area by the Territory of Ashmore and Cartier
Islands Acceptance Act 1933.
The reason for disapplying State and Northern Territory occupational health and
safety laws in relation to facilities in the Commonwealth marine jurisdiction is to
apply this proposed Act's occupational health and safety regime (in Schedule 3)
instead. This is so even if there is no direct inconsistency between a State or Northern
Territory law and Schedule 3 or the regulations made for the purposes of Schedule 3.
33
These Commonwealth laws are intended to be all-encompassing for occupational
health and safety at a facility.
Schedule 3 applies only in relation to a "facility". The State and Northern Territory
laws are therefore disapplied by this clause only in relation to facilities, activities at
facilities and persons at or near facilities. State and Northern Territory occupational
health and safety laws will continue to apply in Commonwealth waters, by virtue of
the operation of clause 59, by its own force, by force of the Ashmore and Cartier
Islands Acceptance Act or by force of the Crimes at Sea Act, in relation to any other
vessels, structures and persons in Commonwealth waters for a purpose related to
activities to which Chapters 2 and 4 of the proposed Act apply.
This clause deals expressly with the different means by which State and Northern
Territory occupational health and safety laws might otherwise apply, or be applied, to
facilities and persons at or near facilities in the offshore area of a State or Territory.
Subclause (1) provides that regulations could be made providing that State or
Northern Territory occupational health and safety laws specified in the regulations are
not applied to facilities, or persons at or near facilities, located in State, Northern
Territory or Ashmore and Cartier Islands' offshore areas.
Subclause (3) provides that State or Northern Territory occupational health and safety
laws prescribed under subclause (1) do not apply of their own force in relation to
facilities, or persons at or near facilities, located in the offshore area of that State or
Territory. This provision is necessary because there is the possibility that State or
Northern Territory laws may have been written to apply extra-territorially, and might
apply in that way in the Commonwealth marine jurisdiction even if clause 59 is
disapplied in relation to them.
Subclause (4) provides that State or Northern Territory laws referred to in subclauses
2(1) and (2) of Schedule 1 of the Crimes at Sea Act 2000 do not apply to facilities, or
persons at or near facilities, located in State, Northern Territory, Ashmore or Cartier
Islands' offshore areas. Subclauses 2(1) and (2) of Schedule 1 of the Crimes at Sea
Act 2000 relate to "substantive criminal laws."
Subclause (4) is necessary because the cooperative scheme set out in Schedule 1 to
the Crimes at Sea Act 2000 provides that the "substantive criminal law" of a State or
the Northern Territory applies, in net effect, to each offshore area. Many provisions of
State and Northern Territory occupational health and safety laws create offences, and
would therefore be applied offshore by the Crimes at Sea legislation even if clause 59
is disapplied in relation to them.
Subclause (6) is intended to ensure disapplication of the offence provisions of the
State and Northern Territory "mirror" occupational health and safety laws that are
enacted in State and Northern Territory Petroleum (Submerged Lands) Acts in
relation to State and Territory coastal waters. This is despite subclauses 2(1) and (2)
of Schedule 1 to the Crimes at Sea Act 2000, which might otherwise have the effect of
applying these provisions to the offshore area.
Equivalent provision in the PSL Act: subsections 9(2A), (2B), (2C), (2D), (2E), (2F),
(2H), (2I), (11) and (12)
34
Policy change: that, in each instance in the clause where it is mentioned, the
disapplication in relation to a person near a facility is effective to the extent to which
the person is affected by the facility or activities that take place at the facility
Clause 69 - Gas pipelines access legislation
The expressions "Gas Pipelines Access Law" and "gas pipelines access legislation" in
this clause refer to the co-operative legislative arrangement concluded in 1997-98 by
the Commonwealth and all States and Territories.
The "Gas Pipelines Access Law" are the provisions in Schedules 1 and 2 (as amended
and in force for the time being) of the Gas Pipelines Access (South Australia) Act
1997 [SA]. This law is applied in the Commonwealth, States (other than Western
Australia which enacted substantially corresponding law) and Territories, and the
application law and resulting legislation (including Western Australia's legislation) is
"gas pipelines access legislation".
Sections 9 and 11 of the Petroleum (Submerged Lands) Act applied the Gas Pipelines
Access (Commonwealth) Act 1998 in the offshore areas of States and the Northern
Territory prior to their gas pipelines access legislation commencing. While all States
and the Northern Territory now have their own gas pipelines access legislation, this
clause would provide a fall-back if a State's or the Northern Territory's gas pipelines
access legislation ceased.
This clause needs to be read in conjunction with section 9 of the Gas Pipelines Access
(Commonwealth) Act 1998, as amended by the Offshore Petroleum (Repeals and
Consequential Amendments) Bill. That section, as amended, would provide:
"If this Act applies in the offshore area in respect of a State or of the Northern
Territory because of the operation of section 69 of the Offshore Petroleum Act 2005:
(a) the Gas Pipelines Access Law also applies in that offshore area as a law of the
Commonwealth; and
(b) as so applying may be referred to as the Gas Pipelines Access (Commonwealth)
Law."
This clause has effect subject to clause 192, which provides that the Third Party Gas
Access Code, which is Schedule 2 of the Gas Pipelines Access (South Australia) Act
(or its Western Australian equivalent), cannot apply if the pipeline licensee has been
directed to be a common carrier under that clause.
Equivalent provision in the PSL Act: subsections 9(1A) and (1B) and 11(1A) and (1B)
Clause 70 - No limits on ordinary operation of law
This clause is intended to ensure that nothing in the operation of other laws that is
unrelated to covering the types of issues that are relevant to petroleum exploration and
development is inadvertently struck down because of the provisions in this Part.
35
Equivalent provision in the PSL Act: subsection 9(7) and 11(7)
Clause 71 - Jurisdiction of State courts
This clause provides that all State courts have federal jurisdiction to hear cases in
respect of the applied provisions, which, by that application, have acquired status as
Commonwealth law.
Subclause (2) refers to the limitations that apply to a State court, for example
specifications about the kinds of cases that may be heard by a magistrate's court
compared with those heard by a district court. These limitations will apply despite
federal jurisdiction and the extended geographic coverage of a State law by virtue of
its application under clause 59.
The equivalent provision in the Petroleum (Submerged Lands) Act enables the
Commonwealth to intervene by making regulations prescribing exceptions to this
investiture of jurisdiction in relation to a given court or class or courts. No reason has
been identified as to why there should be such a power and no equivalent wording is
therefore included in this clause.
Equivalent provision in the PSL Act: section 10
Policy change: omission of Commonwealth power to make regulations prescribing
exceptions in relation to the investiture of jurisdiction in relation to a given court or
class or courts
Clause 72 - Jurisdiction of Territory courts
This clause sets out provisions similar to those in clause 71 in relation to Territory
courts but, replicating the Petroleum (Submerged Lands) Act, omits any
Commonwealth power to make regulations disapplying the conferral of jurisdiction
on any particular Territory court.
Equivalent provision in the PSL Act: section 12
Clause 73 - Validation of certain acts
This clause envisages a situation in which a regulatory act is performed, or a court
decision is made, under the apparent authority of a State or Territory law and it is
found that there is no authority under that law for taking that action, but the same
action could have been taken under the applied provisions, which have become
Commonwealth law. Then, to avoid beginning the process again, this clause deems
the action, as far as it has been taken, to have been taken under the Commonwealth
law. This enables the procedure to be completed without interruption.
Equivalent provision in the PSL Act: section 155
36
Clause 74 - Certain provisions not affected by this Part
This clause addresses the risk that might otherwise exist that, if a State or Territory
law is applied in a particular offshore area, it might conflict with some provision in
the proposed Act that forms part of the regulation of activities relating to petroleum,
procedures for registration, administration, information management, datum
provisions or other miscellaneous provisions. This clause provides that all these
segments of the proposed Act apply notwithstanding anything brought about by
Part 1.4.
Two inadvertent omissions made in recent amendments to the Petroleum (Submerged
Lands) Act are also corrected in this clause.
Equivalent provision in the PSL Act: section 13
Technical change: indirect reference to the National Offshore Petroleum Safety
Authority provisions, which form part of Chapter 4 and which have effect despite
anything in Part 1.4
Policy changes: the mention of the datum provisions (Division 2 of Part 1.2) and the
inclusion of the information provisions (Chapter 5), the equivalents of which were,
until 2000 or 2001, part of Parts III and IV of the Petroleum (Submerged Lands) Act
but were inadvertently omitted as part of this provision when replacement segments
were inserted into the Act at that time
Chapter 2 - Regulation of activities relating to petroleum
Part 2.1--Introduction
Clause 75 - Simplified outline
This clause gives a summary of Chapter 2 covering the regulation of activities relating
to petroleum. This summary does not form part of the operative text of the proposed
Act.
Equivalent provision in the PSL Act: nil.
Part 2.2--Exploration permits for petroleum
DIVISION 1--GENERAL PROVISIONS
Clause 76 - Simplified outline
This clause gives a summary of Part 2.2 covering exploration permits. This summary
does not form part of the operative text of the proposed Act.
Equivalent provision in PSL Act: nil.
Clause 77 - Prohibition of unauthorised exploration for petroleum in offshore area
This clause makes it mandatory for a person or company to have authority under this
Act before that person or company explores for petroleum in areas forming part of the
37
Commonwealth marine jurisdiction. If the regulations under the proposed Act impose
further requirements before exploration may proceed, those requirements must also be
met.
As set out in clause 15, exploration includes the carrying out of seismic and other
surveys, whether by the exploration permittee or by a company (operating under a
special prospecting authority) which aims to sell the survey results to petroleum
explorers. Exploration could also be authorised under the proposed Act by a retention
lease, production licence, access authority, or scientific investigation consent. This is
referred to in subclause (2) by the words "otherwise authorised or required by or
under this Act." The notion that exploration could be "required" refers primarily to
the fact that something connected with exploration might be required. For example, if
the Designated Authority issues a direction to a permittee under clause 407 to collect
a core, cutting or sample from the seabed, the permittee is then required to perform an
act that amounts to exploration. The permittee can also be said to be subject to a
requirement imposed by and under the proposed Act.
Section 4D of the Crimes Act 1914 provides that the penalty shown is the maximum
penalty. Imprisonment penalties may be converted to pecuniary penalties. This is
provided for in section 4B of the Crimes Act.
Subsection 4B(3) of the Crimes Act provides: "Where a body corporate is convicted
of an offence against a law of the Commonwealth, the court may, if the contrary
intention does not appear and the court thinks fit, impose a pecuniary penalty not
exceeding an amount equal to 5 times the amount of the maximum pecuniary penalty
that could be imposed by the court on a natural person convicted of the same
offence."
The fact that the defendant bears an evidential burden in relation to subclause (2)
means that the person or company has the burden of adducing or pointing to evidence
that suggests a reasonable possibility that the defendant is authorised to explore for
petroleum in the area concerned. The notion that the defendant bears an evidential
burden under section 19 of the Petroleum (Submerged Lands) Act has been deduced
by legal interpretation of the section, even though it does not explicitly say so.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in PSL Act: subsection 19(1)
Policy changes: that exploration could be required, and could be required by or under
the proposed Act
Clause 78 - Rights conferred by exploration permit
This clause gives the holder of an exploration permit rights to do everything required
in the permit area to explore for petroleum, including surveys, the drilling of wells
and the recovery of petroleum (if discovered) for appraisal purposes.
38
The rights are subject to conditions that are entered on the permit. The most usual
conditions impose a work program with specific milestones to be achieved by
specified dates over the term of the permit.
The mention in subclause (2) of these rights also being subject to "this Act and the
regulations" refers to a number of other processes that need to be gone through before
actual activity may occur. In the case of drilling, this would include the submission of
an environment management plan and the obtaining of approval to drill the particular
well. It also refers to other provisions such as the fact that the permit could be
suspended, cancelled, revoked, surrendered or simply expire. (The difference between
expiry, cancellation and revocation is that expiry implies the life of the permit ends
merely through the passage of a certain amount of time, cancellation is a considered
act of bringing the permit to an end before the expiry date because of some
infringement of the Act or regulations, and revocation is the occurrence of an event
that brings the permit to an end before the expiry date without there being any
infringement of the Act or regulations.)
Equivalent provision in PSL Act: section 28
Policy change: the express right to recover petroleum in the permit area on an
appraisal basis
Clause 79 - Conditions of exploration permits
The power to insert conditions in exploration permits exists to ensure that the
individual characteristics of each exploration project are able to be dealt with in a way
that satisfies the regulator and is accepted by the permittee. Thus the conditions
typically impose a specific work program to be carried out over the term of the
permit, especially for permits granted under the work program bidding system, where
the amount, timing and type of work proposed is the basis for awarding permits. This
is expressly provided for under subclause (5). The number of wells to be drilled and
the amount of seismic surveying and other work that may be written into these
conditions may differ from one permit to the next.
Permit conditions could also include temporal and spatial restrictions to address issues
such as avoiding conflict with navigation in a shipping lane or exclusion from a
marine park area (see clause 243). While the Joint Authority may grant a permit
subject to whatever conditions the Joint Authority thinks appropriate, the conditions
must conform to the general scope and purposes of the Act.
As it may not be possible to define precisely all permit obligations at the outset,
paragraph (5)(c) provides for flexibility through the use of directions concerning
permit conditions. This will enable the conditions to recognise changed circumstances
which may arise in the course of petroleum exploration operations.
A permit to which the Royalty Act applies is deemed to be subject to a condition that
the permittee must comply with the Royalty Act. This means that a permittee who is
bound by the Royalty Act and infringes that Act has breached the conditions of the
permit and could on those grounds be refused a renewal of the permit. This is in
addition to the possibility of cancellation of the permit during its term.
39
As the holder of a cash-bid permit has secured the permit through a tender process,
that permittee is not to be subjected to a work program condition. It is assumed that
the permittee will be commercially motivated to recoup returns from the investment
the permittee has made and that any regulatory obligation to do so would be
superfluous.
Equivalent provision in PSL Act: section 33
Technical change: substitution of "whatever conditions the Joint Authority thinks
appropriate" for "such conditions as the Joint Authority thinks fit"; mention that the
specific examples of conditions in subclause (5) do not limit the generality of the
condition setting power as set out in subclause (1)
Policy change: the references in paragraph (5)(a) to "12 months or longer" instead of
"one or more years"
Clause 80 - Duration of exploration permit
This clause sets out the basic provisions about the term of an exploration permit, but,
in subclause (2), provides that the term could be longer or shorter depending on
whether various scenarios dealt with in other parts of the Bill arise. These are
indicated by the notes at the end of the clause. The initial term of a permit is 6 years.
With a permit granted for the first time under the proposed Act, there would be the
possibility of two 5 year renewals, ie a total permit life of 16 years, provided there is
compliance with other provisions of the Act and regulations. The area covered by a
permit normally decreases at each renewal (clauses 100, 101 and 102 refer).
Equivalent provision in PSL Act: subsection 29(1)
Clause 81 - Extension of exploration permit if permittee applies for retention lease or
production licence
For a permittee to apply for a retention lease or a production licence over a block or
blocks, a location needs to have been declared in relation to the block(s). This is dealt
with in Part 2.2 Division 6. Under the provisions about renewal of a permit set out in
Part 2.2 Division 5, if a retention lease or production licence has been applied for and
the permit is about to expire, it has generally been possible to renew the permit,
including the location block(s) in the renewed permit area, and thereby avoid any
difficulties with that application process. However, there are scenarios under which a
permit cannot be further renewed. For example, a permit granted in respect of an area
gazetted for competitive bidding since 2003 can be renewed no more than twice. This
clause sets out the provisions that will apply if a permittee whose permit cannot be
renewed applies for a retention lease or a production licence and that title has not been
granted at the time when the permit would expire. The term of the permit is then
extended as set out in the table in subclause (1).
Subclause (2) provides that this extension is subject to Chapter 2. This means that the
permit could, for example, be surrendered or cancelled, meaning it could come to an
end earlier than the table indicates.
40
Equivalent provision in PSL Act: subsection 29(2)
Technical change: that the extension is subject to Chapter 2 but despite clause 80
DIVISION 2--OBTAINING A WORK-BID EXPLORATION PERMIT
Clause 82 - Application for work-bid exploration permit--advertising of blocks
This clause sets out the procedure for advertising areas for competitive bidding under
work program criteria and the requirements that apply to making applications in
response to such an invitation. While subclause (2) refers to another procedure for
securing applicants for vacant areas, ie cash bidding, tendering under work program
bidding has been, for many years, the normal way in which companies have obtained
exploration permits.
Subclause (4) sets the maximum area of a permit at 400 blocks, each normally 5
minutes by 5 minutes in size. These tenements are large by international standards,
reflecting the size and relative lack of exploration maturity of Australia's continental
shelf. On the other hand, provided there is adherence to the rules under subclauses (5),
(6) and (8), it is not compulsory for an applicant to apply for all blocks offered in a
particular set of blocks. There is no statutory limitation on the number of permits any
particular operator may hold.
Equivalent provisions in PSL Act: section 20, paragraphs 21(1)(c) and (d), subsections
21(2) and (3)
Clause 83 - Grant of work-bid exploration permit - offer document
This clause provides that the decision of the Joint Authority about any work program
permit application is to be conveyed to the applicant in writing.
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Joint Authority (such as this one) may request
reasons for it.
Equivalent provision in PSL Act: subsection 22(1).
Policy change: that the Joint Authority must give an applicant written notice of a
refusal decision as much as of an approval decision
Clause 84 - Ranking of multiple applicants for work-bid exploration permit
This clause enables the Joint Authority, using published selection criteria, to rank bids
for exploration permits, exclude undeserving bids from the ranking and, if two or
more parties have tendered the best and equal work program bids, invite them to
submit supplementary bids as a further basis for the selection of a successful
applicant. The ranking also enables the field of applicants to be revisited if a permit
offer is not taken up. These provisions ensure that there is no need in these situations
for the Joint Authority to recommence the entire process by issuing a new public
invitation for permit applications.
41
In accordance with current drafting practice, subclause (9) makes clear that the
selection criteria are not a legislative instrument in terms of the Legislative
Instruments Act 2003.
Equivalent provision in PSL Act: section 21A.
Technical change: that the Joint Authority may rank the applicants in the order in
which, in the Joint Authority's opinion, they are most deserving of a permit
Clause 85 - Grant of work-bid exploration permit
This clause ensures that, once the Joint Authority has given an offer document to the
applicant, the Joint Authority cannot renege on granting the permit provided the
applicant requests the permit within 30 to 60 days after the document was given to the
applicant (the detailed rule about the timeframe is set out in clause 224). This would
even preclude the Joint Authority from attempting to renege on the offer by seeking to
reserve the blocks under clause 242. As in every other case where there is a duty to
grant a title, the Joint Authority is to grant the permit as soon as practicable.
Equivalent provision in PSL Act: subsection 22(4)
Clause 86 - Withdrawal of application
This clause provides for permit applicants to withdraw their applications before the
grant of the permit and deals with the implications of a withdrawal by a subset of the
parties to a joint application. In the latter case, the application remains in effect for the
remaining party or parties, but only if all parties to the application agree that those
parties may withdraw. Assuming this is so, the remaining party or parties do not
benefit from any offer of a permit that may already have been made, but the
application is reassessed in competition with any other applications, as the change in
the composition of the applicant group may be relevant to how the bid is assessed.
However, if one or more parties withdraw from a joint application without the
agreement of all the other parties, the application (assuming it leads to an offer of a
permit) will lapse because not all the parties who made the application will be
available to sign the written notice requesting the grant of the permit.
Equivalent provision in PSL Act: sections 22AA and 22AB
Clause 87 - Effect of withdrawal or lapse of application
This clause deals with the implications of permit applications being withdrawn before
the grant of the permit and of applications lapsing (ie an offer not being taken up
within the specified period). The application is removed from any assessment or offer
process and the Joint Authority is required to continue assessing any remaining
applications. However, if the Joint Authority originally excluded from the ranking an
application on the grounds that, in the Joint Authority's opinion, it was not deserving
of the grant of the exploration permit (subclause 84(5) refers), that application does
not need to be reassessed or again refused.
Equivalent provision in PSL Act: section 22AC
42
Policy change: exclusion from reconsideration of an application ruled not deserving
of a permit under subclause 84(5)
DIVISION 3--OBTAINING A CASH-BID EXPLORATION PERMIT
Clause 88 - Application for cash-bid exploration permit
This clause sets out the invitation and application procedure for cash-bid permits.
Provision for cash-bidding in awarding exploration permits in highly prospective
areas was inserted into the legislation in 1985 to promote the more efficient allocation
of these areas and improve the efficiency with which these permits are administered.
There are therefore some differences between provisions applying to cash-bid and
work-bid permits. Specifically, under subclause (3), a cash-bid permit may not be
renewable and advice about this needs to be included the notice inviting bids. Under
subclause (5), an application must cover all the advertised blocks.
Under subclause (6), details need to be provided about the technical qualifications of
the applicant and of the applicant's employees, the technical advice available to the
applicant, and the financial resources available to the applicant. This information will
be used by the Joint Authority to determine whether the applicant could viably carry
on an exploration operation. If there is doubt about this, the Joint Authority may reject
the bid under the following two clauses regardless of the cash amount tendered.
Equivalent provisions in PSL Act: subsections 22A(1), (2), (3) and (4) and paragraphs
22A(5)(a), (d), (e) and (f)
Policy change: deletion of requirement to use an approved form
Clause 89 - Grant of cash-bid exploration permit - only one application
This clause sets out the procedure if only one cash-bid permit application is received
in response to an invitation. Then it is up to the Joint Authority to determine, on the
basis of the criteria publicised under paragraph 88(3)(b), information provided in the
application and any other information the Designated Authority seeks and obtains
from the applicant, whether to grant the permit or not. The decision is to be conveyed
to the applicant in writing.
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Joint Authority (such as this one) may request
reasons for it.
Equivalent provision in PSL Act: subsection 22B(1).
Clause 90 - Grant of cash-bid exploration permit - two or more applications
This clause sets out the procedure if two or more cash-bid permit applications are
received in response to an invitation. Firstly, the Joint Authority has to determine, on
the basis of the criteria publicised under paragraph 88(3)(b), information provided in
the applications and any other information the Designated Authority seeks and obtains
from the applicants, whether any or all of the applications should be rejected. Only
after this is the level of the cash bids looked at, and only in the case of the unrejected
applications. If there is one highest bidder, that applicant is to be given an offer
43
document for the permit. If there are two or more equal highest bidders, the Joint
Authority must determine, on the basis of the criteria and information referred to
above, which of those applicants should be offered the permit. If an offer document is
given and the applicant fails to take up the offer, ie the application lapses, then the
remaining unrejected application(s) may be reassessed for the award of the permit.
Equivalent provisions in PSL Act: subsections 22B(2) and (7).
Policy change: that the Joint Authority must give an applicant written notice of a
refusal decision as much as of an approval decision
Clause 91 - Grant of cash-bid exploration permit
This clause ensures that once the Joint Authority has given an offer document to the
applicant, the Joint Authority cannot renege on granting the permit, provided the
applicant requests the permit, and pays the cash bid amount, within 30 days of the
offer document being given to the applicant. This would even preclude the Joint
Authority from attempting to renege on the offer by seeking to reserve the block(s)
under clause 242. As in every other case where there is a duty to grant a title, the Joint
Authority is to grant the permit as soon as practicable.
Equivalent provision in PSL Act: subsection 22B(5)
Clause 92 - Extension of cash-bid exploration permit
This clause addresses issues related to the fact that a cash-bid permit, being either a 6
year title or, at best, renewable only once, could, in the ordinary course of events,
expire before all the steps to gaining a retention lease or production licence over a
petroleum discovery had been completed.
This clause identifies various scenarios and process stages following on from the
discovery of petroleum in a cash-bid permit area where the permit may continue in
force past the expiry to a date that depends on the individual case, as set out in
subclauses (2) and (3). If none of the processes referred to in the clause commence
before the expiry date, the permit will come to an end on the expiry date.
Equivalent provision in PSL Act: section 22C
DIVISION 4--OBTAINING A SPECIAL EXPLORATION PERMIT OVER A
SURRENDERED BLOCK OR CERTAIN OTHER BLOCKS
Clause 93 - Application for a special exploration permit over a surrendered block or
certain other blocks
This clause provides for the granting of special exploration permits. These are broadly
intended to enable continuation of exploration in blocks in which petroleum is known
or presumed to occur but which have ceased to be covered by an exploration permit,
retention lease or production licence at a time when any petroleum resource in the
block has not been developed or fully exploited. This could happen in the case of a
surrender, cancellation, revocation or termination (as applicable - see the notes to
clauses 78 and 140 for an explanation of these terms) of a permit with a declared
location, a lease or a licence over the block in question.
44
Applying for a special exploration permit requires both a cash bid and a work bid. The
application must also cover all the blocks advertised in the Gazette notice inviting
applications. Unlike the situation applying with an ordinary cash-bid permit, 10% of
the cash bid is to accompany the application. This is refunded if the applicant is not
granted the permit. However, to discourage frivolous applications, there is no refund
if an applicant who is offered the special exploration permit fails to take up the offer.
In other respects, the application procedure is as for work-bid permits.
Equivalent provisions in PSL Act: subsection 23(1), paragraphs 23(4)(c) and (d) and
section 24
Policy change: that a special exploration permit may be sought for blocks that have
been covered by a terminated production licence; requirement for an application to
cover all the blocks for which bids have been invited
Clause 94 - Grant of special exploration permit--only one application
This clause sets out the procedure if only one special exploration permit application is
received in response to an invitation. Then it is up to the Joint Authority to determine,
on the basis of information provided in the application and any other information the
Designated Authority seeks and obtains from the applicant, whether to grant the
permit or not. The decision is to be conveyed to the applicant in writing.
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Joint Authority (such as this one) may request
reasons for it.
Equivalent provision in PSL Act: subsection 25(1)
Clause 95 - Grant of special exploration permit-- 2 or more applications
This clause sets out the procedure if two or more special exploration permit
applications are received in response to an invitation. Firstly, the Joint Authority has
to determine, on the basis of information provided in the applications and any other
information the Designated Authority seeks and obtains from the applicants, whether
any or all of the applications should be rejected. Only after this is the level of the cash
bids looked at, and only in the case of the unrejected applications. If there is one
highest bidder, that applicant is to be given an offer document for the permit. If there
are two or more equal highest bidders, the Joint Authority must determine, on the
basis of the information referred to above, which of those applicants should be offered
the permit. If an offer document is given and the applicant fails to take up the offer or
to pay the required amount, ie the application lapses, then the remaining unrejected
applications may be reassessed for the award of the permit.
Equivalent provision in PSL Act: subsection 25(2)
Policy change: that the Joint Authority must give an applicant written notice of a
refusal decision as much as of an approval decision
45
Clause 96 - Grant of special exploration permit
This clause ensures that once the Joint Authority has given an offer document to the
applicant, the Joint Authority cannot renege on granting the special exploration
permit, provided the applicant requests the permit within 90 to 180 days after the
document was given to the applicant (the detailed rule about the timeframe is set out
in clause 224), and pays the balance of the cash amount tendered within the same
period. This would even preclude the Joint Authority from attempting to renege on the
offer by seeking to reserve the block(s) under clause 242. As in every other case
where there is a duty to grant a title, the Joint Authority is to grant the special
exploration permit as soon as practicable.
Equivalent provision in PSL Act: section 27
DIVISION 5--RENEWAL OF EXPLORATION PERMITS
Clause 97 - Application for renewal of exploration permit
This clause delineates the rights of the holder of an exploration permit to apply for
renewal of the permit by pointing out the other provisions which impact on whether
and how many times a renewal may be sought. The basic provisions about the
application procedure set out here are complemented by Part 2.10.
This clause also provides for the continuation in force of the permit past the expiry
date (if necessary) until the application is resolved one way or another. If the Joint
Authority refuses to grant the renewal, the permit ceases to have effect at that time (if
it is past the expiry date). If the Joint Authority offers the renewal and the applicant
accepts it, the existing permit continues in force until the new one is granted. If the
Joint Authority offers the renewal and the applicant does not take it up, the permit
ceases to have effect when the application is deemed to have lapsed, ie 30 days after
the offer document was given to the applicant.
Equivalent provisions in PSL Act: subsections 30(1), (2) and (3) and 32(8)
Technical change: omission from subclause (4) of an equivalent to the phrase: "for
reasons that the Designated Authority thinks sufficient" that appears in subsection
30(3)
Policy change: conversion of "3 months" to "90 days"
Clause 98 - Non-renewable cash-bid exploration permits
This clause makes it clear that, if the notice inviting applications for a cash-bid permit
stated that the permit would not be renewable, then the holder is not permitted to even
apply for a renewal of the permit. Any such application would be invalid.
Equivalent provision in PSL Act: paragraph 30(1A)(a)
46
Clause 99 - Limit on renewal of cash-bid exploration permits
This clause makes it clear that a cash bid permit may be renewed at most once, and, if
such a renewal has already been granted, then the holder is not permitted to even
apply for another renewal. Any such application would be invalid.
Equivalent provision in PSL Act: paragraph 30(1A)(b)
Clause 100 - Limits on renewal of work-bid exploration permits and special
exploration permits
This clause refers to the fact that exploration permit renewals are generally granted
over a smaller area, for example a half, of the area of the expired permit, eventually
leading to a point where the permit can no longer be renewed, and that there may
additionally be a cap on the number of possible renewals.
This clause addresses the fact that there are 3 different policies that could be applied
to the renewal of a permit, depending on when the permit was first granted. This
multiple arrangement reflects a greater emphasis in the early days of existence of the
Petroleum (Submerged Lands) Act to giving permittees maximum time to explore
their areas, and a different emphasis in more recent times, namely to encouraging the
recycling of seabed areas to other parties.
The earliest policy, which ended as far as new permit applications was concerned on
7 March 2000, maximised both opportunities for permit renewal and block retention
under those renewals. This policy has been preserved intact for permittees whose
original permit was granted before 7 March 2000, but only for one renewal past that
date, and then only if the individual circumstances allow the permittee to benefit from
it. This is provided for in item 3 of the table in subclause (2). For this class of
permittees the number of blocks that could be included in the renewed permit area
will be determined by the "modified" halving rules set out in clause 102. These
permittees are generally able to obtain more than two renewals of their permit.
A more recent policy applies to permits granted for the first time between 7 March
2000 and 31 December 2002 inclusive. This is provided for in item 4 of the table in
subclause (2). For reasons of achieving an administratively tidy transition, any
permittee whose work-bid permit was granted on or after 1 January 2003 as a result of
an application made in response to an invitation published before 2003 is also covered
by this policy. These permits can likewise generally be renewed more than twice and
the number of blocks that could be included in the renewed permit area will be
determined by the "standard" halving rules set out in clause 101.
The most recent policy applying generally to work-bid and special exploration
permits granted for the first time on or after 1 January 2003 is that no more than two
renewals of a permit may be granted and the number of blocks that could be included
in the renewed permit area will be determined by the "standard" halving rules set out
in clause 101. This is provided for in items 1 and 2 of the table in subclause (2).
In the table in subclause (2), item 2 shows the same entries in columns 3, 4, and 5 as
item 1, but it is a separate item because the exception that applies to a work-bid
47
permit granted as the result of a pre-2003 invitation for bids does not apply to special
exploration permits. This is because no invitations for bids for special exploration
permits were gazetted in 2002.
Equivalent provisions in PSL Act: sections 31 and 31A
Clause 101 - Standard halving rules
When a permittee applies to renew a permit to which the standard halving rules apply,
the permittee is normally obliged to omit from the renewal application about half the
blocks held under the existing permit, but any location (ie discovery) blocks can be
held in addition to what the halving rules allow. As set out in subclauses (6) to (9), the
rule has an inbuilt adjustment when the number of blocks in a permit area falls to 6 or
less so as to give the permittee maximum opportunity to explore the remaining small
number of blocks.
As an example, assuming item 4 of the table in subclause 100(2) applies, if the holder
of an 80 block permit first granted between 7 March 2000 and 1 January 2003
chooses to apply for every available renewal and is on each occasion successful, the
permit will be renewed 6 times and the number of blocks held under the renewed
permits will follow the pattern: 40, 20, 10, 5, 4, 4. A renewed permit covering 2 or 3
blocks, as envisaged in subclause (8), could become a reality under this scenario if the
permittee chose to surrender one or two blocks during the fifth renewal term.
If item 1 or 2 of the table in subclause 100(2) applies, and the holder of an 80 block
permit chooses to apply for every renewal available and is on each occasion
successful, the permit will be renewed 2 times and the number of blocks held under
the renewed permits will be respectively 40 and 20.
Equivalent provision in PSL Act: section 31
Clause 102 - Modified halving rules
This clause is a vestige of the provisions that applied to permit renewals before
7 March 2000. While the halving rule had to be rigorously applied to renewals when
the number of blocks contemplated for renewal was above 16, the Joint Authority had
a discretion to intervene when the halving rule would have required a renewed permit
to cover a number of blocks less than 16. The modifying element is that the Joint
Authority could fix the number of blocks covered by the renewal at some number
above or below what the halving rule would allow, as long as that number was no
higher than 16. Incidentally, this meant that, unlike what the standard halving rules
now allow, a one block permit could be renewed any number of times if the Joint
Authority was inclined to grant such a renewal.
In practice, this meant that, in 2000, there were in existence a number of permits in
respect of 16 blocks because of a discretionary decision by the Joint Authority and
some of them had in fact been granted over 16 blocks for more than one renewal term.
When the Act was amended that year, it was understood that the forward exploration
plans of existing permittees had been formulated within the parameters of the
abovementioned renewal policy. It was therefore considered prudent and fair to
48
extend the application of that policy for those permittees for one more renewal on or
after 7 March 2000.
This policy is set out in subclause (3). Given that this provision can be availed of only
for the first renewal of one of these permits on or after the above date, not all pre-
March 2000 permit holders will gain any benefit from it. This is because not all those
permit areas are of such a size that application of the halving rule in relation to the
first renewal application on or after 7 March 2000 would require a renewed permit to
cover less than 16 blocks.
Equivalent provision in PSL Act: section 31 plus the saving provision set out in
item 32 of Schedule 1 to the Petroleum (Submerged Lands) Legislation Amendment
Act (No. 1) 2000
Clause 103 - Renewal of exploration permit - offer document
This clause ensures that, within the renewal rules set out in the preceding clauses, a
permittee cannot be denied an offer of renewal of the permit if the permittee has
complied with the permit conditions and with the proposed Act and regulations to the
extent that they place obligations on the permittee as a permittee. If the term of the
expiring permit straddles the commencement date of the proposed Act, clauses 4, 5
and 6 of Schedule 6 provide that compliance with the current Act and regulations is
also relevant.
If the permittee has not complied with the permit conditions and with the proposed
Act and regulations but the Joint Authority is satisfied that there are sufficient
grounds to justify the granting of the renewal of the permit, this clause provides that
the Joint Authority may offer the permittee a renewal. However, it is not obliged to do
so.
Equivalent provision in PSL Act: subsection 32(1)
Policy change: requirement that the Joint Authority be satisfied that there are
"sufficient grounds" rather than "special circumstances" to warrant renewal of a
permit in a situation of non-compliance
Clause 104 - Refusal to renew exploration permit
This clause refers to a situation where a permittee has not complied with the permit
conditions or with the proposed Act or regulations and the Joint Authority is not
satisfied that there are sufficient grounds to justify the granting of a renewal of the
permit. Then the Joint Authority is obliged to enter into a consultation procedure as
set out in clause 226, possibly involving other parties as well as the permittee, so that
information may be brought forward that may cause the Joint Authority to come to a
different view. If that procedure does not yield information that causes the Joint
Authority to come to a different view, this clause provides that the Joint Authority
must refuse to renew the permit and advise the applicant in writing of this decision.
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Joint Authority (such as this one) may request
reasons for it.
49
Equivalent provision in PSL Act: section 32(2)
Policy change: requirement that the Joint Authority be satisfied that there are
"sufficient grounds" rather than "special circumstances" to enable renewal of a permit
in a situation of non-compliance
Clause 105 - Renewal of exploration permit
This clause ensures that once the Joint Authority has given an offer document to the
applicant, the Joint Authority cannot renege on granting the permit renewal provided
the applicant requests the permit within 30 days after the document was given to the
applicant. As in every other case where there is a duty to grant a title, the Joint
Authority is to grant the renewal as soon as practicable.
Equivalent provision in PSL Act: subsection 32(6)
DIVISION 6--LOCATIONS
Clause 106 - Simplified outline
This clause gives a summary of Part 2.2 Division 6 covering locations. This summary
does not form part of the operative text of the proposed Act.
Equivalent provision in PSL Act: nil.
Clause 107 - Nomination of blocks as a location
A location provides the mechanism for transition from an exploration permit to a
retention lease or production licence following the discovery of petroleum. It is not a
title in itself; rather, it is a means of setting aside and identifying the block or blocks
necessary to cover the discovery from which the permittee may select the blocks to
form a lease or licence area. The declaration of a location also pinpoints the date from
which the application period for the lease or licence starts.
This clause enables the permittee to nominate a block or blocks for declaration as a
location and establishes the rules for doing so. For a location to be nominated,
petroleum must have been recovered, although not necessarily from within the
nominating permittee's area. It is sufficient if a petroleum pool has been identified
extending into the permit area in question and an operator outside the permit area has
drilled a well and recovered petroleum from the same pool.
Equivalent provisions in PSL Act: subsections 36(1), (2), (3), (4) and (5), section 38
Clause 108 - Requirement to nominate blocks as a location
This clause gives the Designated Authority a power to require a permittee to nominate
blocks as a location. If the permittee does not do so even when required, the
Designated Authority has power to nominate the blocks of his or her own volition.
This power is intended to counter the possibility of a permittee engineering an
50
inordinate delay in progressing a significant petroleum discovery to either a retention
lease application or a production licence application.
Equivalent provisions in PSL Act: subsections 36(6), (7), (8) and (9)
Policy changes: conversion of "3 months" and "6 months" to "90 days" and "180
days" respectively
Clause 109 - Declaration of location
This clause provides that the Designated Authority must consider the available
geoscientific evidence supporting a location nomination by a permittee, and, if the
Designated Authority considers there are reasonable grounds for accepting that
evidence, the Designated Authority is obliged to declare the nominated block(s) as a
location. If the Designated Authority is the one who has nominated the block(s), the
Designated Authority is likewise obliged to formalise the declaration.
If there has been a nomination by the permittee, the declaration will come into effect
on the date of its issue rather than on the date of its gazettal as provided under the
Petroleum (Submerged Lands) Act. Only a copy of the declaration will be published
in the Gazette. This change is intended to deal with a situation where a permittee has a
need to secure a prompt declaration of a location over a block (for example for
purposes of a renewal application). If the date of gazettal were significant, any
inadvertent delay in the process of arranging that gazettal could be disadvantageous.
However, if the Designated Authority has nominated the block(s), the declaration of
the location will come into effect on gazettal, as is the case under the Petroleum
(Submerged Lands) Act.
Equivalent provisions in PSL Act: subsections 37(1), (2) and (7)
Policy change: the requirement to publish a copy of the declaration in the Gazette
instead of retaining a Gazette notice as the operative document
Clause 110 - Revocation of declaration
This clause allows the Designated Authority to revoke a location under a number of
scenarios. If the holder of the permit over a location block requests it, the Designated
Authority may revoke the location. The Designated Authority could be expected to do
so if new geoscientific information gained through exploration suggests the limits of
the discovery are different from those originally identified, or the discovery is
assessed as being non-commercial.
Under the other scenarios envisaged for revocation under this clause, the requirements
are imposed to ensure administrative tidiness so that blocks which revert to vacant
status, and possibly then get awarded to another party, do not remain covered by any
location declared during the previous titleholder's tenure.
The scenario referred to in subclause (7) is slightly more complex in that the Joint
Authority may reject a retention lease application on two entirely contrasting
commercial viability grounds. The applicant could be ruled ineligible for the lease
because the discovery is currently viable. In other words, the permittee should apply
for a production licence instead of a retention lease. The other possibility is that the
applicant could be ruled ineligible for the lease because the discovery is currently
51
unviable and unlikely to become viable within 15 years. For purposes of what is done
with the location declaration, the latter hypothesis is assumed to be the reality.
Therefore, the location is to be revoked and, if this revocation does not fit the
permittee's plans, ie if the permittee wants to apply for a production licence, a fresh
location nomination must be made.
Subclause (8) refers to a situation where a production licence application has been
made over a number of blocks and the application is rejected in respect of one or
more, but not all, of the blocks. This would happen if the Joint Authority were not
satisfied that blocks in that subset contained petroleum. As a new provision, this
subclause requires the Designated Authority to then revoke the location in respect of
those blocks.
This requirement, and the similar requirement under subclause (6), are included not
only because a continuing location declaration in those cases would convey inaccurate
information to the public, but also to avoid possible inequity in the treatment of
permit renewal applications. This is because location blocks create a supplementary
entitlement to the number of blocks qualifying for renewal under the halving rule
when a permit renewal application is being considered. If a location over a block
persisted past a retention lease refusal decision or a production licence refusal
decision, this could give the permittee an unwarranted advantage in the number of
blocks over which the permit could be renewed.
The revocation of the location does not in any way affect the continuation in effect of
the permit or lease over the block(s) in question for the remainder of the term of the
permit or lease.
Under the Petroleum (Submerged Lands) Act, there has been no requirement to
gazette location revocation notices where the revocation has been sought by the
permittee. For uniformity, it is proposed that this situation should change, but only to
the extent that a copy of the revocation document needs to be published in the
Gazette.
The rationale for this is that, under the scenario addressed in subclause 160(1), which
provides for the revocation of a permit if no production licence application has been
made during the application period, the timing of a location revocation may be
crucial. It is therefore desirable to avoid the situation where a chance delay in
arranging gazettal might impact on the date of effect of a revocation decision. Under
subclauses (1) and (2), the revocation document is the operative instrument and the
date of its publication in the Gazette is intended to have no relevance for the date of
revocation.
This policy does not change the arrangement, set out in subclauses (3), (6), (7) and (8)
whereby revocation of a location in circumstances other than request by the permittee
is by a Gazette notice which is effective on the date of the Gazette.
Equivalent provision in PSL Act: subsections 37(3) and 46(3), (4), (5) and (6)
Technical changes: deletion of a superfluous reference to a production licence or
retention lease application not having lapsed that occurs in the equivalent to
subclauses (4) and (5)
52
Policy change: publication of a copy of the revocation document in the Gazette; that
upon a production licence application being rejected in respect of a block, the location
is to be revoked
Clause 111 - Variation of declaration
This clause enables the Designated Authority to vary a location by adding or deleting
a block or blocks to or from the location. The considerations impacting on a decision
to do so would be similar to those affecting a location declaration or revocation
decision. The action may be taken in response to a request from the permittee or on
the Designated Authority's own volition. A consultation procedure applies in the
latter case, which includes, for reasons of adhering to good administrative principles,
a number of new steps (subparagraphs (3)(b)(ii) and (iii) and subclause (4)) which are
not explicitly provided for in the Petroleum (Submerged Lands) Act. The gazettal
arrangement matches the one proposed for the declaration and revocation of a location
at the permittee's request.
Equivalent provisions in PSL Act: subsections 37(4), (5), (6) and (7)
Policy changes: publication of a copy of the variation document in the Gazette;
requirement for inviting submissions, specifying a time limit and the requirement that
the limit be at least 30 days after the notice is given
Part 2.3--Retention leases for petroleum
DIVISION 1--GENERAL PROVISIONS
Clause 112 - Simplified outline
This clause gives a summary of Part 2.3 covering retention leases. This summary does
not form part of the operative text of the proposed Act.
Equivalent provision in PSL Act: nil.
Clause 113 - Rights conferred by retention lease
This clause gives the holder of a retention lease rights to do everything required in the
lease area to explore for petroleum, including seismic surveys, gravity surveys,
magnetic surveys or seabed sampling, the drilling of wells and the recovery of
petroleum for appraisal purposes. The rights are subject to conditions that are entered
on the lease.
The mention in subclause (2) of these rights also being subject to "this Act and the
regulations" refers to a number of other processes that need to be gone through. For
example, before new drilling may occur, the lessee would need to obtain approval to
drill the particular well. It also refers to other provisions such as the fact that the lease
could be suspended, cancelled, surrendered or simply expire.
Equivalent provision in PSL Act: section 38C
Policy changes: the express right to recover petroleum in the lease area on an
appraisal basis
53
Clause 114 - Conditions of retention leases
The power to insert conditions in retention leases exists to ensure that the individual
characteristics of each exploration project are able to be dealt with in a way that
satisfies the regulator and is accepted by the lessee. Thus the conditions typically
impose a specific work program to be carried out over the term of the lease. This may
include the drilling of appraisal wells, new wells, seismic surveying or other work,
and the program may be different from one lease to the next.
Under subclause (5), a retention lease is subject as a matter of course to a condition
that the lessee re-evaluate the commercial viability of petroleum production in the
lease area when directed to do so by the Designated Authority, but no more than once
during the term of the lease. However, if such a direction were given, in many cases
the lessee would in practice need to carry out another re-evaluation of commercial
viability towards the end of the term of the lease, as this would be required
information if the lessee were to seek a renewal.
Lease conditions could also include temporal and spatial restrictions to address issues
such as avoiding conflict with navigation in a shipping lane or exclusion from a
marine park area (see clause 243). While the Joint Authority may grant a lease subject
to whatever conditions the Joint Authority thinks appropriate, the conditions must
conform to the general scope and purposes of the Act.
As it may not be possible to define precisely all lease obligations at the outset,
paragraph (9)(c) provides for flexibility through the use of directions concerning lease
conditions. This will enable the conditions to recognise changed circumstances which
may arise in the course of petroleum exploration operations.
A lease to which the Royalty Act applies is deemed to be subject to a condition that
the lessee must comply with the Royalty Act. This means that a lessee who is bound
by the Royalty Act and infringes that Act has breached the conditions of the lease and
could on those grounds be refused a renewal of the lease.
Equivalent provision in PSL Act: section 38H
Technical changes: that the Joint Authority may grant a retention lease "subject to
whatever conditions the Joint Authority thinks appropriate" rather than "such
conditions as the Joint Authority thinks fit"; mention that the specific examples of
conditions in subclause (9) do not limit the generality of the condition setting power
as set out in subclause (1)
Policy change: conversion of "3 months" to "90 days"
Clause 115 - Duration of retention lease
This clause sets out the basic provisions about the term of a retention lease, but, in
subclause (2), provides that the term could be longer or shorter depending on whether
various scenarios dealt with in other parts of the Bill arise. These are indicated by the
notes at the end of the clause.
Equivalent provision in PSL Act: section 38D
54
Clause 116 - Extension of retention lease if lessee applies for production licence
This clause sets out the provisions that will apply if a lessee applies for a production
licence and that title has not been granted at the time when the lease would expire.
The term of the lease is then extended as set out in the table in subclause (1).
Subclause (2) provides that this extension is subject to Chapter 2 but despite clause
115. This means that the lease could, for example, be surrendered or cancelled,
meaning it could come to an end earlier than the table indicates.
Equivalent provision in PSL Act: subsection 44(5)
Policy change: that this extension of a retention lease term applies as a clear policy
DIVISION 2--OBTAINING A RETENTION LEASE
SUBDIVISION A--APPLICATION FOR RETENTION LEASE BY THE HOLDER OF AN EXPLORATION
PERMIT
Clause 117 - Application for retention lease by the holder of an exploration permit
This clause sets out basic provisions applicable to holders of exploration permits
about applying for a retention lease. These are complemented by other provisions set
out in Part 2.10.
The timeframe for a retention lease application, which depends on the date when a
location was declared over the block(s) in question and whether and by how much the
Designated Authority is prepared to extend the application period past 2 years (to a
maximum 4 years), is intended to ensure that the initial evaluation of the commercial
viability of the discovery is carried out without undue delay.
Details about the possible commercial viability of the discovery are vitally important
to determining whether a retention lease should be granted. This is because a retention
lease is a holding right over a block or blocks in which a petroleum resource has been
discovered that is currently commercially unviable but is considered likely to become
viable within the next 15 years.
Equivalent provisions in PSL Act: subsection 38A(1), paragraph 38A(2)(c) and
subsection 38A(4)
Clause 118 - Grant of retention lease - offer document
This clause provides that one of the things about which the Joint Authority must
satisfy itself before offering a retention lease is that the block(s) specified in the
application contain(s) petroleum. While the Designated Authority would have
concluded at the time of declaring the location that the block(s) contain(s) petroleum,
requiring the Joint Authority to examine the evidence is useful in that it brings into
the process the expertise of Australian Government geoscientists. It is also appropriate
because the petroleum-bearing status of the block(s) may have changed since the date
of the location declaration. This could happen if, for example, the petroleum pool
extends into some other title area where petroleum has been recovered from the pool
55
by another party with the result that petroleum has flowed out of the block(s) in
question.
The second issue about which the Joint Authority must satisfy itself is that the
petroleum resource is currently commercially unviable but likely to become viable
within the next 15 years.
The Joint Authority may seek further information from the applicant about these
matters, and, if it is satisfied in relation to them, this clause requires the Joint
Authority to offer the applicant a retention lease and to do so in writing. This
obligation exists in view of the permittee's investment in making the discovery.
Equivalent provision in PSL Act: paragraphs 38B(1)(a) and (c)
Clause 119 - Refusal to grant retention lease
This clause sets out the grounds on which a retention lease application is to be refused
and provides that an application could be refused in part, ie in respect of only a subset
of the blocks to which the application relates.
The application is to be refused if the Joint Authority is not satisfied that the block(s)
contain(s) petroleum. On the other hand, if the Joint Authority believes that petroleum
is present and is currently commercially viable, it must likewise refuse the
application. If the Joint Authority believes that petroleum is present and is currently
commercially unviable, but is not satisfied that it is likely to become viable within the
next 15 years, the Joint Authority must then also refuse the application.
If two or more blocks are covered by the application, the Joint Authority can come to
a different conclusion about one, or some, of them than about the other, or others, of
them. The Joint Authority is then required to refuse the application only in respect of
the block(s) about which the above criteria imply the application must be refused.
In each case, the notice of refusal is to be conveyed to the applicant in writing.
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Joint Authority (such as this one) may request
reasons for it
Equivalent provision in PSL Act: paragraph 38B(2)(b) and subsection 38B(2A)
Clause 120 - Grant of retention lease
This clause ensures that once the Joint Authority has given an offer document to the
applicant, the Joint Authority cannot renege on granting the retention lease provided
the applicant requests the lease within 30 to 60 days after the document was given to
the applicant (the detailed rule about the timeframe is set out in clause 224). As in
every other case where there is a duty to grant a title, the Joint Authority is to grant
the lease as soon as practicable.
Equivalent provision in PSL Act: subsection 38B(5)
56
Clause 121 - Exploration permit ceases to be in force when retention lease comes into
force
For reasons of administrative tidiness, this clause brings the exploration permit to an
end over the blocks in respect of which a retention lease has been granted. Among
other things, this ensures that the lessee will not be charged two lots of annual fees.
Equivalent provision in PSL Act: subsection 38B(7)
Clause 122 - Exploration permit transferred--transferee to be treated as applicant
This clause covers the situation where an exploration permit is transferred (within the
meaning of Chapter 3) in the period between the lodgement of a retention lease
application and the grant or refusal of the retention lease. The new holder of the
permit will then be treated as the applicant for all purposes. For example, the
proposals for work and expenditure identified by the party who made the application
will be considered to be the proposals of the new permittee and the Designated
Authority may require further information from the new permittee.
If a retention lease is offered and the new permittee does not want to be bound by the
undertakings of the previous holder of the permit, the permittee has the option of not
taking up the offer by allowing the retention lease application to lapse. If the
permittee takes that option, then, in most cases, a new, modified retention lease
application may be lodged. The only situation where re-applying for a retention lease
might be problematic would be if the relevant application period of 2 to 4 years were
very near its end. If the end date were imminent, the feasibility of lodging a new
retention lease application could depend on whether the Designated Authority were
prepared to revoke the location over the block(s) in question, with a new location
declaration to follow. Otherwise, if no new retention lease application were received
by the end of the application period, the permit would be revoked in respect of the
blocks included in the application.
Equivalent provision in PSL Act: section 38BA
SUBDIVISION B--APPLICATION FOR RETENTION LEASE BY THE HOLDER OF A LIFE-OF-FIELD
PRODUCTION LICENCE
Clause 123 - Application for retention lease by the holder of a life-of-field production
licence
This clause refers to the fact that production licences granted for the first time on or
after 30 July 1998 provide a "life of field" term, but may be terminated if there have
been no operations for the recovery of petroleum for a period of 5 years. However, if
the only reason why operations in a licence area have never commenced, or have
ceased, is current lack of commercial viability, it could be unfair to terminate the
licence and deprive the licensee of all continuing rights in relation to the petroleum
discovery. Accordingly, this clause enables a licensee facing that situation to seek a
retention lease for the whole or a part of the licence area which, if granted, could be
57
upgraded to another production licence at some later time when the resource became,
or again became, commercially viable.
In a multiple block licence area, all blocks to which the one pool extends are deemed
to be producing even if there is a well in only one of the blocks. However, it may have
been determined since the discovery of the resource that one or more of the blocks in
the licence area contain a discrete pool. In that situation, a retention lease could be
sought over that subset of blocks. An advantage of obtaining such a retention lease
would be that the annual fees payable would be far lower than those payable in
respect of a production licence block. Such advantages aside, if petroleum is being
produced somewhere in a production licence area, the existence of non-producing
blocks within that licence area does not raise any questions about the licensee's right
to continue to retain the licence over all blocks in the licence area if the licensee so
chooses.
This clause stipulates that the application for a retention lease by a licensee must be
made within 5 years of the cessation of petroleum recovery operations. If no
operations under the licence have ever been carried out in the unused area, the
application must be made within 5 years of the day on which the licence was granted.
Equivalent provision in PSL Act: subsection 38BB(1), paragraph 38BB(2)(c) and
subsection 38BB(4)
Policy change: omission from paragraph (1)(b) of an equivalent of the erroneous
reference in paragraph 38BB(1)(b) of the PSL Act to an unused area possibly
covering a part of a block; omission of a mention of an approved form
Clause 124 - Grant of retention lease--offer document
This clause provides that, in considering a retention lease application from a
production licensee, the only issue about which the Joint Authority must satisfy itself
is that the petroleum resource is currently commercially unviable but likely to become
viable within the next 15 years.
To this end, the Joint Authority may seek further information from the applicant, and,
if it forms this view, this clause requires the Joint Authority to offer the applicant a
retention lease and to do so in writing.
Equivalent provisions in PSL Act: paragraphs 38BC(1)(a) and (c)
Clause 125 - Refusal to grant retention lease
This clause refers to a situation where the Joint Authority is not satisfied that the
petroleum resource in the unused area is currently commercially unviable but likely to
become viable within the next 15 years. Then the Joint Authority is obliged to enter
into a consultation procedure as set out in clause 226, possibly involving other parties
as well as the licensee. If that procedure does not yield information that causes the
Joint Authority to come to a different view, this clause provides that the Joint
Authority must refuse to grant the retention lease and advise the applicant in writing
of this decision.
58
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Joint Authority (such as this one) may request
reasons for it.
Equivalent provision in PSL Act: paragraph 38BC(2)(b)
Clause 126 - Grant of retention lease
This clause ensures that once the Joint Authority has given an offer document to the
applicant, the Joint Authority cannot renege on granting the retention lease provided
the applicant requests the lease within 30 to 60 days after the document was given to
the applicant (the detailed rule about the timeframe is set out in clause 224). As in
every other case where there is a duty to grant a title, the Joint Authority is to grant
the lease as soon as practicable.
Equivalent provision in PSL Act: subsection 38BC(5)
Clause 127 - Production licence ceases to be in force when retention lease comes into
force
For reasons of administrative tidiness, this clause brings the production licence to an
end in respect of the unused area. Among other things, this ensures that the lessee will
not be charged two lots of annual fees.
Equivalent provision in PSL Act: subsection 38BC(7)
Clause 128 - Production licence transferred--transferee to be treated as applicant
This clause covers the situation where a production licence is transferred (within the
meaning of Chapter 3) in the period between the lodgement of a retention lease
application and the grant or refusal of the retention lease. The new holder of the
licence will then be treated as the applicant for all purposes. For example, the
proposals for work and expenditure identified by the party who made the application
will be considered to be the proposals of the new licensee and the Designated
Authority may require further information from the new licensee. If a retention lease
is offered and the new licensee does not want to be bound by the undertakings of the
previous holder of the licence, the licensee has the option of not taking up the offer,
and, in most cases, of lodging a new, modified retention lease application. A new
application could be made if sufficient time remains before the end of the 5 years
referred to in clause 123.
Equivalent provision in PSL Act: section 38BD
DIVISION 3--RENEWAL OF RETENTION LEASES
Clause 129 - Application for renewal of retention lease
This clause outlines the rights of the holder of a retention lease to apply for renewal of
the lease. The basic provisions about the application procedure set out here are
complemented by Part 2.10.
59
This clause also provides for the continuation in force of the lease past the expiry date
(if necessary) until the application is resolved one way or another. If the Joint
Authority refuses to grant the renewal, the lease ceases to have effect at that time. If
the Joint Authority offers the renewal and the applicant accepts it, the existing lease
continues in force until the new one is granted. If the Joint Authority offers the
renewal and the applicant does not take it up, the lease ceases to have effect when the
application is deemed to have lapsed, ie 30 days after the offer document was given to
the applicant.
Subclause (6) provides that this extension of effect of the lease is subject to Chapter 2.
This means that the lease could, for example, be surrendered or cancelled, meaning it
could come to an end earlier than this clause indicates.
Equivalent provisions in PSL Act: subsection 38F(1), paragraphs 38F(2)(b) and (c)
and subsections 38F(3) and 38G(9)
Technical change: omission from subclause (3) of an equivalent to the phrase: "for
reasons that the Designated Authority thinks sufficient" that appears in subsection
38F(3)
Policy change: conversion of "6 months" to "180 days"
Clause 130 - Renewal of retention lease--offer document
This clause ensures that, if the commercial viability criteria set out in clause 118 are
met, a lessee cannot be denied an offer of renewal of the lease if the lessee has
complied with the lease conditions and with the proposed Act and regulations to the
extent that they place obligations on the lessee as a lessee. If the term of the expiring
lease straddles the commencement date of the proposed Act, Schedule 6 clauses 4, 5
and 6 provide that compliance with the current Act and regulations is also relevant.
If the lessee has not complied with the lease conditions and with the proposed Act and
regulations but the Joint Authority is satisfied that the commercial viability criteria are
met and there are sufficient grounds to justify the granting of the renewal of the lease,
this clause provides that the Joint Authority may offer the lessee a renewal. However,
it is not obliged to do so.
Equivalent provision in PSL Act: paragraphs 38G(1)(a), (c), (d) and (e)
Policy change: requirement that the Joint Authority be satisfied that there are
"sufficient grounds" rather than "special circumstances" to warrant renewal of a lease
in a situation of non-compliance
Clause 131 - Refusal to renew retention lease
This clause sets out the circumstances in which a retention lease renewal application
must be refused. If that appears to be the appropriate decision, the Joint Authority is
obliged to enter into a consultation procedure as set out in clause 226, possibly
involving other parties as well as the lessee. If that procedure does not yield
information that causes the Joint Authority to come to a different view, the Joint
Authority must refuse to renew the lease and advise the applicant in writing of this
decision.
60
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Joint Authority (such as this one) may request
reasons for it.
A special provision applies if the basis of the refusal is the current commercial
viability of the discovery. In that case, the existing retention lease usually continues in
force past the expiry date. If the lessee does not apply for a production licence, the
lease continues in force for 12 months from the date of the notice of refusal of the
lease renewal. If the lessee applies for a production licence and the application is
refused, the lease continues in force to the date of that refusal. If the lessee applies for
a production licence and the Joint Authority gives the lessee an offer document for the
licence but the lessee does not take up the offer, the lease continues in force for 90 to
180 days after the date of the offer document (the detailed rule about the timeframe is
set out in clause 224). If the lessee does take up the offer, the lease continues in force
until the production licence is granted.
Subclause (8) provides that this extension is subject to Chapter 2. This means that the
lease could, for example, be surrendered or cancelled, meaning it could come to an
end earlier than this clause indicates.
Equivalent provision in PSL Act: paragraphs 38G(2)(b) and (c) and subsections
38G(5) and (10)
Policy change: requirement that the Joint Authority be satisfied that there are
"sufficient grounds" rather than "special circumstances" to enable renewal of a lease
in a situation of non-compliance
Clause 132 - Renewal of retention lease
This clause ensures that once the Joint Authority has given an offer document to an
applicant, the Joint Authority cannot renege on granting the renewal of the retention
lease provided the applicant requests the lease within 30 days of the offer document
being given to the applicant. As in every other case where there is a duty to grant a
title, the Joint Authority is to grant the renewal as soon as practicable.
Equivalent provision in PSL Act: subsection 38G(7)
DIVISION 4--REVOCATION OF RETENTION LEASES
Clause 133 - Notice of proposal to revoke retention lease
This clause refers to the provisions of subclause 114(5) which provides that a
retention lease is subject to a condition that, if the Designated Authority gives the
lessee a written notice requesting the lessee to re-evaluate the commercial viability of
petroleum production in the lease area and inform the Designated Authority in writing
of the results of the re-evaluation, the lessee must comply as set out in that subclause.
If the re-evaluation demonstrates that the petroleum discovery is commercially viable,
the lessee may lodge a production licence application for the area. This clause sets out
the course of action open to the Joint Authority if the lessee does not do so.
61
The notice that the Joint Authority may give the lessee and other parties under
subclause (2) cannot include any information about the lease other than what is set out
in paragraph (2)(a). The Joint Authority could not divulge anything about the re-
evaluation of commercial viability or its results.
Equivalent provision in the PSL Act: subsection 38E(1)
Policy changes: conversion of "one month" to "30 days"; clarification that the Joint
Authority is to give a copy of the notice of the proposal to revoke the lease to persons
other than the lessee only if the Joint Authority thinks there are appropriate persons to
receive it, a point conveyed by the use of the words "if any"; change of term from
"cancel" to "revoke"
Clause 134 - Revocation of retention lease
Replicating the provisions of the Petroleum (Submerged Lands) Act, this clause gives
the Joint Authority the power to revoke a lease in the situation outlined in clause 133
but provides that the revocation cannot then come into effect immediately. This is so
as to give the lessee the opportunity to apply for a production licence over the
block(s) covered by the lease.
Equivalent provisions in the PSL Act: subsections 38E(2), (3) and (4)
Policy change: that, before revoking the lease, the Joint Authority is to consider not
only submissions made by the lessee but also by parties other than the lessee who
were given a copy of the notice under clause 133; change of term from "cancel" to
"revoke"
Part 2.4--Production licences for petroleum
DIVISION 1--GENERAL PROVISIONS
Clause 135 - Simplified outline
This clause gives a summary of Part 2.4 covering production licences. This summary
does not form part of the operative text of the proposed Act.
Equivalent provision in PSL Act: nil.
Clause 136 - Prohibition of unauthorised recovery of petroleum in offshore area
This clause makes it mandatory for a person or company to have authority under this
Act before that person or company can engage in petroleum recovery operations in
areas forming part of the Commonwealth marine jurisdiction. This means, for
example, that it would be an offence for persons without authority under the proposed
Act to drill a well into a known petroleum pool with the intention of producing
petroleum from it or to attempt to activate an abandoned production platform.
A production licence is required for a company to produce petroleum as a commercial
enterprise. Limited quantities of petroleum may, however, be recovered from the
seabed under an exploration permit, retention lease or scientific investigation consent.
This would be for trial or research purposes only. This is provided for under
62
paragraph (2)(b). The notion that petroleum recovery could be "required" is a
reference to the Joint Authority's powers under clause 161. If a notice under clause
161 were issued, the licensee would then be under a requirement imposed by and
under the proposed Act.
Section 4D of the Crimes Act 1914 provides that the penalty shown is the maximum
penalty. Imprisonment penalties may be converted to pecuniary penalties. This is
provided for in section 4B of the Crimes Act.
Subsection 4B(3) of the Crimes Act provides: "Where a body corporate is convicted
of an offence against a law of the Commonwealth, the court may, if the contrary
intention does not appear and the court thinks fit, impose a pecuniary penalty not
exceeding an amount equal to 5 times the amount of the maximum pecuniary penalty
that could be imposed by the court on a natural person convicted of the same
offence."
The fact that the defendant bears an evidential burden in relation to subclause (2)
means that the person or company has the burden of adducing or pointing to evidence
that suggests a reasonable possibility that the defendant is authorised to recover
petroleum in the area concerned. The notion that the defendant bears an evidential
burden under section 39 of the Petroleum (Submerged Lands) Act has been deduced
by legal interpretation of the section, even though it does not explicitly say so.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in PSL Act: section 39
Policy change: that petroleum recovery could be required, and could be required by
or under the proposed Act
Clause 137 - Rights conferred by production licence
This clause gives the holder of a production licence rights to do in the licence area
everything required to recover petroleum, including the drilling of new wells, if
required, and the construction and operation of production platforms, processing
plant, secondary lines and water lines. If the licensee holds another production licence
covering a block outside the licence area, an inclined well could also be drilled from
that outside block into the licence area and petroleum could be recovered through that
well. The petroleum would be deemed to be sourced from the first-mentioned licence
area even though the wellhead was situated elsewhere. The term "lawful access" in
paragraph (1)(b) refers to the fact that the inclined well could equally be drilled from
an area outside Commonwealth waters in relation to which the licensee held a State or
Northern Territory equivalent of a production licence.
In addition, a production licence confers on the holder the same rights to explore the
licence area as would be held if the title were an exploration permit or a retention
63
lease. This is because the licensee is expected to be keen to explore the whole licence
area thoroughly in the hope of finding other petroleum-bearing structures.
The rights are subject to conditions that are entered on the licence. In recent years, the
only condition entered on production licensees has been that the licensee continue to
explore the licence area.
The mention in subclause (2) of these rights also being subject to "this Act and the
regulations" refers to a number of other processes that need to be gone through before
recovery may occur, for example the submission of an environment management plan
and the obtaining of approval to drill a particular well. It also refers to other
provisions such as the fact that the licence could be cancelled or surrendered.
Equivalent provision in PSL Act: section 52
Clause 138 - Conditions of production licences
The power to insert conditions in production licences exists to ensure that the
individual characteristics of each production project are able to be dealt with in a way
that satisfies the regulator and is accepted by the licensee.
While the Joint Authority may grant a licence subject to whatever conditions the Joint
Authority thinks appropriate, the conditions must conform to the general scope and
purposes of the Act.
The power of the Joint Authority to set conditions includes the power to set a general
condition requiring exploration in the licence area. However, subclauses (7) to (8)
make clear that the conditions imposed by the Joint Authority on the holder of a
production licence are not to be prescriptive to the point of requiring the holder to
drill a well, to carry out a survey or to spend any specific dollar amount on
exploration activities.
The specific reference in subclause (9) to the investment of the licensee or a former
licensee as a factor the Joint Authority must take into account in imposing conditions
on a renewed production licence recognises that the production of petroleum involves
a substantial and long term financial commitment by licensees and that, accordingly,
continuity and predictability are important features of the regime as it relates to
production licences.
A licence to which the Royalty Act applies is deemed to be subject to a condition that
the licensee must comply with the Royalty Act. This means that a licensee who is
bound by the Royalty Act and infringes that Act has breached the conditions of the
licence and could on those grounds be refused a renewal of the licence, if applicable.
This option is in addition to the possibility that the licence could be cancelled under
clause 237 during the term of the licence.
Equivalent provision in PSL Act: section 56
Technical change: substitution of "whatever conditions the Joint Authority thinks
appropriate" for "such conditions as the Joint Authority thinks fit"; mention that the
64
specific examples of conditions in subclause (5) do not limit the generality of the
condition setting power as set out in subclause (1)
Policy change: explicit provision for a power to set a general condition requiring
exploration in the licence area and recovery of any discovered petroleum if
commercially viable, but not including a power to require the holder to drill a well, to
carry out a survey or to spend any specific dollar amount on exploration activities;
that, in determining conditions to apply on the renewal of an existing production
licence, the Joint Authority must have regard to matters such as investment in the
project to date
Clause 139 - Duration of production licence
This clause sets out the basic provisions about the duration of a production licence,
dependent on whether it is a fixed-term production licence or a life-of-field
production licence. Before 30 July 1998, all production licences were fixed-term
licences with 21 year terms and renewability provisions. Under amendments to the
Petroleum (Submerged Lands) Act that came into effect on that date, the duration of
production licences was linked to the life of the field, rather than being set down as a
specified number of years. This applied immediately to operators who were awarded a
production licence for the first time on or after 30 July 1998.
However, taking account of views expressed prior to that time by existing licence-
holders, it was decided to phase in the change in its application to licences granted
before 30 July 1998. This was considered prudent and fair given that existing
licensees had formulated their forward production plans within the parameters of the
earlier fixed-term renewal arrangements. This position is reflected in items 2, 3 and 4
of the table in subclause (1). In essence, those licences will have an initial term of 21
years and one renewal term of 21 years. The licence can be renewed once more after
that, and, at that point, its term will become linked to the life of the field.
In each case, subclause (2) provides that the term could be longer or shorter
depending on whether various scenarios dealt with in other parts of the Bill arise.
These are indicated by the notes at the end of the clause.
Equivalent provision in PSL Act: section 53
Policy changes: owing to a drafting defect in the 1998 amendment, the legal effect of
this clause differs from the legal effect of section 53 of the PSL Act when that section
is read literally
Clause 140 - Termination of life-of-field production licence if no recovery operations
for 5 years
This clause sets out the other component of the "life of field" licence duration policy
referred to above, namely the possible termination of the licence if there have been no
petroleum recovery operations in the licence area for a continuous period of at least 5
years. Even then, the Joint Authority is not required to terminate the licence, and the
Joint Authority must in any case discount any part of the period of inactivity during
which no operations were carried on because of circumstances beyond the licensee's
control.
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The circumstances could include events such as the failure by a manufacturer of vital
plant or equipment to deliver on time under contract. However, it is not intended that
commercial factors related to the price of petroleum should qualify under this
heading. As set out in clause 123, a licensee finding it impossible to produce at a
profit can apply to revert to a retention lease until commercial viability improves. The
depletion of recoverable petroleum is likewise not a factor that could influence the
timeframe after which the licence could be terminated.
This clause also sets out the consultation procedure, possibly involving other parties
as well as the licensee, that the Joint Authority must complete before terminating a
licence.
In this Bill, the word "termination" is used only in relation to production licences,
pipeline licences and infrastructure licences and is a considered act of bringing the
title to an end on grounds of economic inactivity. Termination does not connote any
infringement of the Act or regulations.
Equivalent provision in PSL Act: section 53A
Policy changes: conversion of "one month" to "30 days"; addition of a mention of
depletion of recoverable petroleum not qualifying as circumstances beyond the
licensee's control; consultation possibly with other parties; invitation for submissions;
specification of a time limit for submissions; requirement for Joint Authority to take
account of submissions
Clause 141 - Production licences to which the Royalty Act applies
The current and proposed Royalty Acts apply, or would apply, only to petroleum
produced under production licences derived from the North West Shelf exploration
permits known as WA-1-P and WA-28-P, as well as to any petroleum that may be
produced for appraisal purposes under those permits or retention leases derived from
them. This being the case, to avoid unnecessary confusion, it is felt that the somewhat
different arrangements that apply to seeking, obtaining and varying production
licences to which the Royalty Act applies do not need to figure in the main body of
the proposed Act. This clause accordingly provides for these provisions to appear in
Schedule 4. Subclause (2) means that the general framework of provisions in Chapter
2, for instance in relation to renewal, applies to these licences in the same way as it
applies to all other production licences.
Equivalent provision in PSL Act: nil.
DIVISION 2--OBTAINING A PRODUCTION LICENCE AS A RESULT OF AN
APPLICATION MADE BY AN EXPLORATION PERMITTEE OR A RETENTION
LESSEE
Clause 142 - Application for production licence by permittee
This clause sets out the basic provisions for a permittee to apply for a production
licence, assuming the Royalty Act does not apply. The procedure is complemented by
the provisions set out in Part 2.10.
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The permittee does not have to seek a production licence over all blocks in the permit
area over which a location has been declared. However, normally an application for a
production licence over a smaller area than the full location would be made only in
circumstances where it had been determined, since the discovery of petroleum, that
one or more of the blocks in the location contained a discrete pool instead of being
linked to the main pool in the location. In that situation, a retention lease could be
sought over that subset of blocks instead of them being included in the production
licence application, but a new location would first need to be declared over them.
The details the applicant must provide about proposals for work and expenditure in
respect of the application area are not intended to have any effect on whether the
applicant is offered a licence or not. Rather, these details need to be submitted so that
the Joint Authority can formulate appropriate licence conditions as required.
Equivalent provisions in PSL Act: subsections 39A(1), (2), (3) and (4) and paragraph
41(1)(c)
Policy change: that, for varying the number of blocks in an application under this
clause, the applicant no longer needs to withdraw it and make a fresh application
Clause 143 - Application period
This clause sets out the timeframe for making a production licence application. This is
intended to ensure that the initial evaluation of the commercial viability of a discovery
is carried out without undue delay, as is the submission of a production licence
application if a decision is taken not to lodge a retention lease application.
The starting and finishing dates of the application period depend on when the location
was declared over the block(s) in question, on whether and by how much the
Designated Authority is prepared to extend the application period past 2 years (to a
maximum 4 years), and on whether there is first an unsuccessful retention lease
application.
At the end of the application period, if a licence application (or a retention lease
application) has not been made, the permit is revoked to the extent to which it relates
to the location block(s) concerned. The permittee can, however, try to prevent this
from occurring by seeking a revocation of the location under subclause 110(1) before
the end of the application period. An application for revocation of a location would be
justifiable if a petroleum discovery were made and a location declared but subsequent
assessment revealed the discovery to be non-commercial.
If the Designated Authority agrees and revokes the location, the risk of the permit
being revoked is avoided because subclause 160(1) applies only if the permittee could
apply under clause 142 for a production licence in relation to a block. The permittee
could not apply for a production licence in respect of a block which is no longer the
subject of a location.
Equivalent provision in PSL Act: subsections 39A(5) and (6) and 40(4) and (5)
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Clause 144 - Application for production licence by lessee
This clause sets out the basic provisions for a lessee to apply for a production licence,
assuming the Royalty Act does not apply. The procedure is complemented by the
provisions set out in Part 2.10.
The details the applicant must provide about proposals for work and expenditure in
respect of the application area are not intended to have any effect on whether the
applicant is offered a licence or not. Rather, these details need to be submitted so that
the Joint Authority can formulate appropriate licence conditions as required.
Equivalent provision in PSL Act: section 40A
Clause 145 - Offer document
This clause sets out the criteria for determining whether an applicant is to be offered a
production licence. The same criteria apply whether the applicant is a permittee or a
lessee and whether the current or proposed Royalty Act applies to the area in question
or not.
If the applicant has given the Designated Authority any additional information that
may have been required under clause 222 and the Joint Authority is satisfied that the
block, or all the blocks, specified in the application contain(s) petroleum, the Joint
Authority is obliged to offer the applicant a production licence in respect of the
block(s) and to do so in writing. This obligation exists in view of the permittee's
investment in making the discovery.
While the Designated Authority would have concluded at the time of declaring the
location that the block(s) contain(s) petroleum, requiring the Joint Authority to
examine the evidence is useful in that it brings into the process the expertise of
Australian Government geoscientists. It is also appropriate because the petroleum-
bearing status of the block(s) may have changed since the date of the location
declaration. This could happen if the petroleum pool extends into some other title area
where petroleum has been recovered from the pool by another party with the result
that petroleum has flowed out of the block(s) in question.
Equivalent provision in PSL Act: subsections 43(1) and (1A)
Clause 146 - Refusal to grant production licence
This clause sets out the grounds on which a production licence application must be
refused and provides that an application could be refused in part, ie in respect of only
a subset of the blocks to which the application relates.
The application must be refused if the Joint Authority is not satisfied that the block(s)
contain(s) petroleum.
If two or more blocks are covered by the application, the Joint Authority can come to
a different conclusion about one, or some, of them than about the other, or others, of
them. The Joint Authority is then required to refuse the application only in respect of
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the block(s) about which the abovementioned criterion demands that the application
be refused.
The notice of refusal is to be conveyed to the applicant in writing with a statement of
reasons. Additionally, under section 13 of the Administrative Decisions (Judicial
Review) Act 1977, a person affected by a decision of the Joint Authority (such as this
one) may request reasons for it.
Under subclause 222(3), the Joint Authority could refuse a licence application if the
applicant does not provide further information as and when required by the
Designated Authority. However, this provision is not a binding obligation on the Joint
Authority to refuse the application.
Equivalent provision in PSL Act: subsection 43(3)
Policy change: express provision that the Joint Authority is obliged to refuse the
application if it is not satisfied that the block in question contains petroleum
Clause 147 - Grant of production licence
This clause ensures that once the Joint Authority has given an offer document to the
applicant, the Joint Authority cannot renege on granting the production licence
provided the applicant requests the licence within 90 to 180 days after the document
was given to the applicant (the detailed rule about the timeframe is set out in clause
224). As in every other case where there is a duty to grant a title, the Joint Authority is
to grant the licence as soon as practicable.
As indicated by the notes at the end of the clause, if the applicant does not make a
request within the set time, this has notable repercussions for the application and for
the applicant's existing permit or lease.
Equivalent provision in PSL Act: subsection 44(2)
Clause 148 - Exploration permit or retention lease ceases to be in force when
production licence comes into force
For reasons of administrative tidiness, this clause brings the exploration permit or
retention lease to an end over the block(s) in respect of which a production licence has
been granted. Among other things, this ensures that the licensee will not be charged
two lots of annual fees.
Equivalent provision in PSL Act: subsection 44(5)
Clause 149 - Exploration permit or retention lease transferred--transferee to be
treated as applicant
This clause covers the situation where an exploration permit or retention lease is
transferred (within the meaning of Chapter 3) in the period between the lodgement of
a production licence application and the grant or refusal of the licence. The new
holder of the permit or lease will then be treated as the applicant for all purposes. For
69
example, a new permittee may vary the application without paying another
application fee, as provided under subclauses 142(3) and (4). The Designated
Authority may require the new permittee or lessee to elaborate on information given
by the previous holder of the permit or lease. The consequences of not requesting an
offered licence within the timeframe indicated in clause 224 are also identical for the
new holder of the permit or lease to what would have applied to the previous holder if
the permit or lease had not been transferred.
If a permit or lease transfer transaction is being contemplated and does not get
completed and approved before the Joint Authority gives the permittee or lessee an
offer document for a production licence, the appropriate course of action would be to
wait until the licence has actually been granted and then to apply to the Designated
Authority for the approval of its transfer.
Subclause 6(2) of the proposed Royalty Act (embodying in part what appears in
section 42 of the Petroleum (Submerged Lands) Act) refers to applications for a
primary production licence and a secondary production licence, which are described
in more detail in the notes under Schedule 4 to this Bill. That subclause reads:
"If:
(a) a person has applied for a primary production licence; and
(b) before or after the grant of the primary production licence, the person applies for a
secondary production licence;
the Joint Authority must, by written instrument, determine the rate of royalty
payable in relation to petroleum recovered, whether under the primary production
licence or under the secondary production licence."
The mention in paragraph (2)(b) of subclause 6(2) means that, if, after a permittee or
lessee has applied for a primary production licence or a secondary production licence,
the permit or lease is transferred, then the transferee will be deemed to have applied
for the primary production licence or the secondary production licence and will face
the same repercussions in terms of royalty rate determination as the party that
previously held the permit or lease would have faced had the transfer not gone ahead.
Equivalent provision in PSL Act: section 44A
DIVISION 3--OBTAINING A CASH-BID PRODUCTION LICENCE OVER A
SURRENDERED BLOCK OR SIMILAR BLOCK
Clause 150 - Application for cash-bid production licence over surrendered blocks or
similar blocks
This clause provides for the granting of cash-bid production licences over single
blocks. These are broadly intended to enable the development of, or continuation of
petroleum recovery in, blocks in which petroleum is known or presumed to occur but
which have ceased to be covered by an exploration permit, retention lease or
production licence at a time when any petroleum resource in the block has not been
developed or fully exploited. This could happen in the case of a surrender,
cancellation, revocation or termination (as applicable: see the notes to clauses 78 and
140 about the meaning of these terms) of a permit with a declared location, a lease or
70
a licence over the block in question. However, the expiry of a title has not been
identified as a situation that could lead to the granting of a cash-bid production
licence. This is because the expiry of an exploration permit normally means that no
useful petroleum resource has been discovered, the expiry of a retention lease
normally means the discovered petroleum resource is not going to be commercially
viable for at least 15 years, if ever, and the expiry of a production licence normally
means the commercially recoverable petroleum in the block has been exhausted.
Applying for a cash-bid licence requires details to be given of the proposed work
program and a cash bid, 10% of which is to accompany the application. This is
refunded if the applicant is not granted the permit. However, to discourage frivolous
applications, there is no refund if an applicant who is offered the cash-bid licence fails
to take up the offer. In other respects, the application procedure is as for other
production licences, and a cash-bid production licence could be granted equally well
in the North West Shelf project area (to which the proposed Royalty Act would apply)
as it could be granted elsewhere in the Commonwealth marine jurisdiction.
Equivalent provisions in PSL Act: subsections 47(1) and (2), paragraphs 47(6)(c) and
(d) and 48(1)(b) and subsections 48(2) and (3)
Policy change: that the termination of a production licence over a block is another
scenario under which applications could be invited for the grant of a production
licence under this clause
Clause 151 - Grant of cash-bid production licence--only one application
This clause sets out the procedure if only one cash-bid production licence application
is received in response to an invitation. Then it is up to the Joint Authority to
determine, on the basis of information provided in the application and any other
information the Designated Authority seeks and obtains from the applicant, whether
to grant the licence or not. The decision is to be conveyed to the applicant in writing.
Equivalent provision in PSL Act: subsection 49(1)
Clause 152 - Grant of cash-bid production licence--2 or more applications
This clause sets out the procedure if two or more cash-bid production licence
applications are received in response to an invitation. Firstly, the Joint Authority has
to determine, on the basis of information provided in the applications and any other
information the Designated Authority seeks and obtains from the applicants, whether
any or all of the applications should be rejected. Only after this is the level of the cash
bids looked at, and only in the case of the unrejected applications. If there is one
highest bidder, that applicant is to be given an offer document for the licence. If there
are two or more equal highest bidders, the Joint Authority must determine, on the
basis of the information referred to above, which of those applicants should be offered
the licence. If an offer document is given and the applicant fails to take up the offer or
pay the required amount, ie the application lapses, then the remaining unrejected
applications may be reassessed for the award of the permit.
Equivalent provisions in PSL Act: subsections 49(2) and (8)
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Policy change: that the Joint Authority must give an applicant written notice of a
refusal decision as much as of an approval decision
Clause 153 - Grant of cash-bid production licence
This clause ensures that once the Joint Authority has given an offer document to the
applicant, the Joint Authority cannot renege on granting the cash-bid licence,
provided the applicant requests the licence within 90 to 180 days after the document
was given to the applicant (the detailed rule about the timeframe is set out in clause
224), and pays (if applicable) the balance of the cash amount tendered within the
same period. This would even preclude the Joint Authority from attempting to renege
on the offer by seeking to reserve the block under clause 242. As in every other case
where there is a duty to grant a title, the Joint Authority is to grant the licence as soon
as practicable.
As provided under subclause 223(5), the balance of the cash amount is not payable if
there is only one applicant, as set out in clause 151. This exemption appears in the
Petroleum (Submerged Lands) Act but the basis for it has not been detailed in
explanatory memoranda considered by Parliament in connection with past
amendments to the Act. However, the provision is proposed for retention, as the
possible exemption from paying 90% of the cash bid could improve the economics of
bidding for a block that petroleum companies might otherwise consider of marginal
interest and thereby increase the likelihood of a bid being submitted.
Equivalent provision in PSL Act: subsection 49(6), section 50
DIVISION 4--OBTAINING PRODUCTION LICENCES OVER INDIVIDUAL BLOCKS
Clause 154 - Applications for production licences over individual blocks
This clause is intended to facilitate transfers of, and dealings in, the potentially
wealth-creating assets that are inherent in the holding of a production licence,
specifically one covering 2 or more blocks. This clause enables the licensee to apply
to effectively split the initial production licence into 2 or more separate licences, each
covering at least one block, thereby enhancing opportunities for making advantageous
commercial arrangements.
The stipulation in paragraph (1)(b) that the blocks must not form a location or part of
a location is significant in relation to licences granted under the provisions of
Schedule 4. That Schedule is not designed to deal with 2 or more holders of a primary
production licence being associated with the one secondary entitlement. Therefore,
paragraph (1)(b) effectively bars a licensee to whom Schedule 4 applies from
applying to split the licence until both a primary production licence and a secondary
production licence are held or until the permit or lease over the whole secondary
entitlement is revoked. The revocation of the location would also need to be sought
before an application under this clause could be lodged.
Equivalent provision in PSL Act: subsection 51(1) and paragraphs 51(2)(c) and (d)
72
Clause 155 - Grant of production licences over individual blocks
This clause provides that the Joint Authority is obliged to grant 2 or more production
licences in exchange for an initial production licence as sought by an applicant under
clause 154.
If the initial licence had a fixed term, the new licences must expire on the same date
as the initial one. If the initial licence had an indefinite duration, the new licences
must likewise be of indefinite duration.
The provision in subclause (5) that the duration of the new licences is subject to this
Chapter but despite clause 139 means that a licence could, for example, be
surrendered or cancelled, meaning it could come to an end earlier than subclause (3)
or (4) indicates.
The provision in subclause (6) by which the conditions of the new licences may not
be absolutely identical to those affecting the initial licence recognises the possibility
that a condition of the initial licence may have addressed a feature of only one of the
blocks that it covered, for example a marine park, the boundary of which transected
only that block. Then that condition would be replicated only in the new licence
covering that particular block.
Equivalent provision in PSL Act: subsections 51(4), (5) and (6)
DIVISION 5--RENEWAL OF FIXED-TERM PRODUCTION LICENCES
Clause 156 - Application for renewal of fixed-term production licence
This clause outlines the rights of the holder of a fixed-term production licence to
apply for renewal of the licence. The basic provisions about the application procedure
set out here are complemented by Part 2.10.
This clause also provides for the continuation in force of the licence past the expiry
date (if necessary) until the application is resolved one way or another. If the Joint
Authority refuses to grant the renewal, the licence ceases to have effect at that time (if
it is after the expiry date). If the Joint Authority offers the renewal and the applicant
accepts it, the existing licence continues in force until the new one is granted. If the
Joint Authority offers the renewal and the applicant does not take it up, the licence
ceases to have effect when the application is deemed to have lapsed, ie 30 days after
the offer document was given to the applicant.
Subclause (7) provides that this extension is subject to Chapter 2. This means that the
licence could, for example, be surrendered or cancelled, meaning it could come to an
end earlier than this clause indicates.
Equivalent provisions in PSL Act: subsection 54(1), paragraphs 54(2)(b) and (c) and
subsections 54(3) and 55(11)
Technical change: omission from subclause (4) of an equivalent to the phrase: "for
reasons that he [the Designated Authority] thinks sufficient" that appears in
subsection 54(3)
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Policy change: conversion of "6 months" to "180 days"
Clause 157 - Renewal of fixed-term production licence--offer document
This clause sets out the circumstances in which a fixed-term licensee must be offered
a licence renewal. A necessary precondition is that the licensee has complied with the
licence conditions and with the proposed Act and regulations to the extent that they
place obligations on the licensee as a licensee. If the term of the expiring licence
straddles the commencement date of the proposed Act, Schedule 6 clauses 4, 5 and 6
provide that compliance with the current Act and regulations is also relevant. If the
licence is coming to the end of its first 21 year term, this is the only precondition to
obtaining a renewal offer. If the licence is coming to the end of its second 21 year
term, the other precondition that needs to be met is that either petroleum recovery
operations were being carried on in the licence area at the date of lodgement of the
renewal application, or had been carried on not more than 5 years prior to that date.
If the licensee has not complied with the licence conditions and with the proposed Act
and regulations but the Joint Authority is satisfied that there are sufficient grounds to
justify the granting of the renewal of the licence, this clause provides that the Joint
Authority may offer the licensee a renewal. However, it is not obliged to do so.
In the case of an application for the second renewal of a licence, the Joint Authority
has a discretion to offer a renewal despite non-compliance as set out above whether or
not petroleum recovery operations were being carried on in the licence area at the date
of lodgement of the renewal application, or had been carried on not more than 5 years
prior to that date.
Equivalent provision in PSL Act: subsections 55(1) and (2)
Policy change: requirement that the Joint Authority be satisfied that there are
"sufficient grounds" rather than "special circumstances" to warrant renewal of a
licence in a situation of non-compliance
Clause 158 - Refusal to renew fixed-term production licence
This clause refers to a situation where the licensee has not complied with the licence
conditions and with the proposed Act and regulations and the Joint Authority is not
satisfied that there are sufficient grounds to justify the granting of the renewal of the
licence. Then the Joint Authority is obliged to enter into a consultation procedure as
set out in clause 226, possibly involving other parties as well as the licensee. If that
procedure does not yield information that causes the Joint Authority to come to a
different view, this clause provides that the Joint Authority must refuse to renew the
licence and advise the applicant in writing of this decision.
If the licensee has complied with the licence conditions and with the Act and
regulations but there have been no petroleum recovery operations in the licence area
for 5 or more years before an application for the second renewal of a production
licence is made, the Joint Authority may on that basis refuse the renewal application
but is not obliged to refuse it. If the Joint Authority is inclined to refuse the
application on these grounds, then likewise the Joint Authority is obliged to enter into
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a consultation procedure as set out in clause 226, possibly involving other parties as
well as the licensee. Any information that comes to light through this procedure must
be taken into account by the Joint Authority in reaching a final decision, and, if that
decision is to refuse the renewal, the Joint Authority must advise the applicant in
writing accordingly.
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Joint Authority (such as this one) may request
reasons for it.
Equivalent provision in PSL Act: subsections 55(3), (4) and (5)
Technical change: making explicit that it is only if no petroleum recovery operations
have been carried on in the licence area within 5 years before the application for the
renewal was made that the Joint Authority may refuse to renew the licence a second
time
Policy changes: that the consultation procedure applies even when the only ground
for refusal is cessation of petroleum recovery operations for 5 years; requirement that
the Joint Authority be satisfied that there are "sufficient grounds" rather than "special
circumstances" to enable renewal of a licence in a situation of non-compliance
Clause 159 - Renewal of fixed-term production licence
This clause ensures that once the Joint Authority has given an offer document to an
applicant, the Joint Authority cannot renege on granting the renewal of the production
licence provided the applicant requests the licence within 30 days of the offer
document being given to the applicant. As in every other case where there is a duty to
grant a title, the Joint Authority is to grant the renewal as soon as practicable.
Equivalent provision in PSL Act: subsection 55(9)
DIVISION 6--WHAT HAPPENS IF A BLOCK IS NOT TAKEN UP
Clause 160 - Revocation of exploration permit or retention lease to the extent to
which it relates to a block not taken up
This clause sets out provisions by which an exploration permit or retention lease
could be revoked in respect of a particular block by force of the proposed Act, and
this could occur before or after the set expiry date of the permit or lease.
If petroleum is discovered in a permit block and a location is declared over that block,
the permittee will have 2 years, extendable up to 4 years if the Designated Authority
so agrees, to make a retention lease application or a production licence application.
Unless the Designated Authority agrees to revoke the location in the meantime, and
the permittee lodges neither a retention lease application nor a production licence
application before the end of the abovementioned period, the permit is then revoked,
but only in respect of that particular block.
The wording of subclause (1) refers only to the consequences of not applying for a
production licence. If the permittee, within the application period, applies instead for
a retention lease and gains it, subclause (1) has no negative effect on that lessee as
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there is then no longer a permit or permittee in respect of the block. If the permittee
applies for, but does not gain, a retention lease, subclause 143(3) may extend the
period during which the permittee may seek instead a production licence.
If, on further consideration, a permittee with one or more location blocks decides not
to seek a retention lease or a production licence over those blocks, the permittee could
avoid revocation of the permit in relation to those blocks if the Designated Authority
agreed to revoke the location. This is because, if there is no location, the permittee
could not apply under section 142 for a production licence in relation to the block, as
paragraph 160(1)(a) envisages. There could then no longer be any repercussions for
the permittee under subclause 160(1).
If the location is not revoked and the permittee fails to seek either a retention lease or
a production licence within the application period, whether that choice is based on
solid commercial grounds or not, the permittee is deemed to have forgone any further
rights to explore or develop that block and it may be considered appropriate to give
some other party the opportunity to do work in that block. This could be done under a
new work-bid exploration permit, cash-bid exploration permit or special exploration
permit.
The same end result will follow under this clause if the permittee unsuccessfully
applies for a retention lease within the abovementioned period but thereafter fails to
apply for a production licence. Then the timing of the revocation could be later, as
provided under subclause 143(3).
The same end result will also follow under this clause if a permittee or a lessee has
made a production licence application and is given an offer document for the licence
but fails to request the licence within 90 to 180 days after the document was given to
the applicant (the detailed rule about the timeframe is set out in clause 224). In the
case of a lease, the revocation occurs at that time. In the case of a permit, the
revocation could occur then or later, depending on when the abovementioned
application period ends.
Equivalent provisions in PSL Act: subsections 46(1) and (1A)
DIVISION 7--PETROLEUM FIELD DEVELOPMENT
SUBDIVISION A--DIRECTIONS ABOUT THE RECOVERY OF PETROLEUM
Clause 161 - Direction to recover petroleum
This clause replicates a power of the Joint Authority which exists under the Petroleum
(Submerged Lands) Act and which was considered important in the early days of
existence of the Act for reasons of enhancing Australia's fuel self-sufficiency.
Use of this power would nowadays be considered less appropriate in the ordinary
course of events but this provision could have relevance in a situation of national or
global fuel emergency.
Equivalent provisions in PSL Act: subsections 58(1) and (2)
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Policy change: that the steps identified by the Joint Authority under subclause (2) be
practicable as well as necessary for, or in relation to, the recovery of petroleum in the
licence area
Clause 162 - Directions about the rate of recovery of petroleum
This clause is an elaboration of the Joint Authority's abovementioned power to direct
a production licensee to recover petroleum.
The fact that the Joint Authority may direct a licensee not only to increase, but also to
reduce, the rate of recovery of petroleum, was considered important in the early days
of existence of the Petroleum (Submerged Lands) Act for reasons of countering
possible problems of overproduction in the petroleum industry.
In more recent times, this power has assumed a degree of relevance for a different
reason. The mention of effects on Commonwealth revenue in subclause (3) is a
reference to the possibility of a producer using selective extraction to manipulate
taxation outcomes. Where the same party holds more than one production licence and
different taxation regimes apply to petroleum deposits, for example petroleum
resource rent tax (PRRT) as opposed to royalty and crude oil excise, there could be
taxation advantages to a producer in delaying the PRRT-liable extraction to maximise
the uplift of deductions against future revenue, while extracting from a royalty-liable
pool, which does not have such generous uplifts of deductions. While there is not a
high probability that such a situation would exist, it does become more likely with
trends to shared infrastructure.
In the case of crude oil excise, the impact of higher excise rates at increasing
production tranches could be an incentive (in particular circumstances) to adjust
production rates within a fiscal period to moderate the excise liability.
The Joint Authority's power to make a direction about the rate at which petroleum is
to be recovered can also be used to address resource management issues, such as
pressure depletion.
As set out in subclause (5), the power of the Joint Authority to give directions under
this clause, whether based on Commonwealth revenue or any other considerations, is
circumscribed by the provision that no direction requiring action that is contrary to
good oilfield practice may be given.
Equivalent provision in PSL Act: subsections 58(3), (4) and (5)
Technical change: omission from subclause (1) of an equivalent to the phrase: "for
reasons that the Joint Authority thinks sufficient" that appears in subsection 58(3)
Policy changes: that the steps identified by the Joint Authority under subclause (2) be
practicable as well as necessary for, or in relation to, the increase or reduction of the
rate at which petroleum is being recovered
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SUBDIVISION B--UNIT DEVELOPMENT
Clause 163 - Unit development
This clause replicates, with only minor presentational changes, the provisions of
section 59 of the Petroleum (Submerged Lands) Act. While some sections of the
upstream petroleum industry have advocated changing these provisions, no policy
amendments are proposed at this time.
Unit development means, in brief, the coordination of operations for recovering
petroleum from a pool which is situated partly in one production licence area and
partly in another licensee's production licence area, or the State or Northern Territory
equivalent of a production licence area. The latter case, referred to in paragraphs
(1)(a)(ii) and (3)(b), assumes the first-mentioned licence area borders on State or
Northern Territory waters.
The overriding principle behind section 59 has been that, unless there is some
provision enabling the coordinated recovery of petroleum from such a pool, severe
injustices may be inflicted on a licensee having rights in respect of the pool by the
actions of another party having rights in respect of the same pool, and who unfairly,
or improperly, draws petroleum from the pool.
A unit development agreement provided for in subclause (2) is subject to clause 270.
This provides, among other things, that (as set out in item 3 under clause 269), a
dealing determining the manner in which persons may exercise the rights conferred by
an existing title to recover petroleum under cooperative arrangements is of no force
until the Designated Authority has approved the dealing and has made an entry in the
Register in relation to the dealing. Clauses 271 and 275, referred to in subclauses (3)
and (4), detail administrative procedures for seeking and obtaining the approval of a
dealing.
If parties do not voluntarily conclude a unit development agreement, or do not do so
even after being directed to do so by the Joint Authority, this clause enables the Joint
Authority to formulate a unit production scheme for the pool after considering any
suggestions or schemes put forward by the parties involved. Subclause (7) is intended
to deal, for example, with the situation where it is later found that the petroleum pool
extends further than previously thought.
The mention in subclause (11) of "lands to which the laws of that State or Territory,
or of another State or Territory, relating to exploiting petroleum resources apply"
could include an onshore area but it is more likely to refer to one or more of a possible
3 different marine zones which are managed under State or Northern Territory
petroleum legislation. These are illustrated by the dotted, hatched and black areas in
proximity to the coast in the diagram on Map 3 in clause 5 of the Bill.
Equivalent provision in PSL Act: section 59
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Part 2.5--Infrastructure licences
DIVISION 1--GENERAL PROVISIONS
Clause 164 - Simplified outline
This clause gives a summary of Part 2.5 covering infrastructure licences. This
summary does not form part of the operative text of the proposed Act.
Equivalent provision in PSL Act: nil.
Clause 165 - Prohibition of unauthorised construction or operation of an infrastructure
facility in an offshore area
This clause makes it mandatory for a person or company to have authority under this
Act before that person or company can construct, alter or operate infrastructure
facilities in areas forming part of the Commonwealth marine jurisdiction.
"Infrastructure facilities" are defined in clause 13.
This means that it would be an offence for persons without authority under the
proposed Act, for example to build, modify or operate a petroleum processing plant in
an offshore area. However, if an exploration permit, retention lease or production
licence is in force in an area, any infrastructure facilities required for purposes of
operations authorised by that particular title may be constructed and operated without
the need for an infrastructure licence, but only within the title area. This is referred to
in paragraph (2)(b) by the words "otherwise authorised or required by or under this
Act."
The notion that construction of infrastructure facilities could be "required" refers, for
instance, to the possibility that some construction by way of alteration of a facility
could be required under the regulations for reasons of safety. The infrastructure
licensee would then be under a requirement imposed by and under the proposed Act.
Section 4D of the Crimes Act 1914 provides that the penalty shown is the maximum
penalty. Imprisonment penalties may be converted to pecuniary penalties. This is
provided for in section 4B of the Crimes Act.
Subsection 4B(3) of the Crimes Act provides: "Where a body corporate is convicted
of an offence against a law of the Commonwealth, the court may, if the contrary
intention does not appear and the court thinks fit, impose a pecuniary penalty not
exceeding an amount equal to 5 times the amount of the maximum pecuniary penalty
that could be imposed by the court on a natural person convicted of the same
offence."
The fact that the defendant bears an evidential burden in relation to subclause (2)
means that the person or company has the burden of adducing or pointing to evidence
that suggests a reasonable possibility that the defendant is authorised to construct or
operate infrastructure facilities in the area concerned. The notion that the defendant
bears an evidential burden under section 59A of the Petroleum (Submerged Lands)
79
Act has been deduced by legal interpretation of the section, even though it does not
explicitly say so.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in PSL Act: section 59A
Policy change: that the construction, reconstruction or alteration activities could be
required, and could be required by or under the proposed Act
Clause 166 - Rights conferred by an infrastructure licence
This clause gives the holder of an infrastructure licence rights to construct and operate
infrastructure facilities in the infrastructure licence area, which is defined as a place,
ie not covering a whole block or blocks as do exploration permits, retention leases and
production licences.
An infrastructure licence area could be in a vacant area or in an area in which some
other party holds a title under the proposed Act. Most typically, an infrastructure
facility would be a plant that is engaged in some way in handling or processing
recovered petroleum but which, for technical or economic reasons, is situated outside
a production licence area in which the petroleum is being recovered. These technical
or economic reasons could include the possibility that the facility is servicing more
than one production platform or that it is a recycled structure previously used for
some other purpose.
Infrastructure licences do not cover pipelines, pumping stations, tank stations or valve
stations, as these would all be constructed and operated under pipeline licences.
Conceivably, the rights conferred under an infrastructure licence could go beyond
what is permitted under production licences. Construction and operation of a
petroleum to methanol conversion plant is one possible example of such a right.
The rights are subject to conditions that are entered on the licence. The mention in
subclause (2) of these rights also being subject to "this Act and the regulations" refers
to a number of processes that need to be gone through before construction or
operation of an infrastructure facility may occur, for example the submission of a
safety case. It also refers to other provisions such as the fact that an infrastructure
licence could be cancelled or surrendered.
Equivalent provision in PSL Act: section 59F
Clause 167 - Conditions of infrastructure licences
The power to insert conditions in infrastructure licences exists to ensure that the
individual characteristics of each infrastructure facility are able to be dealt with in a
way that satisfies the regulator and is accepted by the licensee.
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While the Joint Authority may grant a licence subject to whatever conditions the Joint
Authority thinks appropriate, the conditions must conform to the general scope and
purposes of the Act.
Equivalent provision in PSL Act: 59J
Technical change: that the Joint Authority may grant an infrastructure licence
"subject to whatever conditions the Joint Authority thinks appropriate" rather than
"such conditions as the Joint Authority thinks fit"
Clause 168 - Duration of infrastructure licence
This clause provides for the indefinite duration of an infrastructure licence, subject to
surrender, cancellation or termination.
Equivalent provision in PSL Act: section 59G
Clause 169 - Termination of infrastructure licence if no operations for 5 years
This clause sets out provisions for the possible termination of an infrastructure licence
if there has been neither construction work nor use of facilities constructed under the
licence for a continuous period of at least 5 years. Even then, the Joint Authority is
not required to terminate the licence, and the Joint Authority must in any case
discount any part of the period of inactivity during which no construction or
operations were carried on because of circumstances beyond the licensee's control.
These circumstances could include events such as the failure by a manufacturer of
vital plant or equipment to deliver on time under contract. However, the depletion of
recoverable petroleum in a production licence area that the infrastructure facility is
linked to is not a factor that could influence the timeframe after which the licence
could be terminated.
This clause also sets out the consultation procedure, possibly involving other parties
as well as the licensee, that the Joint Authority must complete before terminating an
infrastructure licence.
In this Bill, the word "termination" is used only in relation to production licences,
pipeline licences and infrastructure licences and is a considered act of bringing the
title to an end on grounds of economic inactivity. Termination does not connote any
infringement of the Act or regulations.
Equivalent provision in PSL Act: section 59H
Policy changes: conversion of "one month" to "30 days"; addition of a mention of
depletion of recoverable petroleum not qualifying as circumstances beyond the
licensee's control; consultation possibly with other parties; invitation for submissions;
specification of a time limit for submissions; requirement for Joint Authority to take
account of submissions
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DIVISION 2--OBTAINING AN INFRASTRUCTURE LICENCE
Clause 170 - Application for infrastructure licence
This clause sets out the basic provisions for a person or company to apply for an
infrastructure licence. The procedure is complemented by the provisions set out in
Part 2.10.
Equivalent provisions in PSL Act: subsection 59B(1) and paragraph 59B(2)(b)
Clause 171 - Grant of infrastructure licence--offer document
This clause provides that the offer of an infrastructure licence is at the discretion of
the Joint Authority. If the applicant has given the Designated Authority any additional
information that may have been required under clause 222 and the Joint Authority is
inclined to offer the applicant the infrastructure licence sought, the next step depends
on whether the proposed site of the facility is in an area to which another party has
rights under the proposed Act. If so, the Joint Authority may need to consult with that
party as set out in clause 174. If no consultation is required, this clause provides that
the Joint Authority may offer the applicant an infrastructure licence without further
delay and must do so in writing. In the other case, the Joint Authority may give the
offer document to the applicant after the consultation has been completed.
Equivalent provision in PSL Act: subsection 59C(1)
Clause 172 - Refusal to grant infrastructure licence
This clause provides for notice of a refusal to grant an infrastructure licence to be
conveyed to the applicant in writing. This has not been expressly provided under the
Petroleum (Submerged Lands) Act.
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Joint Authority (such as this one) may request
reasons for it.
Equivalent provision in PSL Act: nil.
Technical change: addition of this clause as an express provision
Clause 173 - Grant of infrastructure licence
This clause ensures that once the Joint Authority has given an offer document to the
applicant, the Joint Authority cannot renege on granting the infrastructure licence,
provided the applicant requests the licence within 90 to 180 days after the document
was given to the applicant (the detailed rule about the timeframe is set out in clause
224). This would even preclude the Joint Authority from attempting to renege on the
offer by seeking to reserve, under clause 242, the block within which the
infrastructure licence area will be located. As in every other case where there is a duty
to grant a title, the Joint Authority is to grant the licence as soon as practicable.
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Equivalent provision in PSL Act: subsection 59E(3)
Clause 174 - Consultation--grant of infrastructure licence
This clause sets out the consultation procedure that may apply if the proposed site of
the infrastructure facility is in an area to which another party has rights under the
proposed Act.
No consultation by the Joint Authority is required if the other party has already given
written consent for the grant of the proposed infrastructure licence, or if the other
party is the holder of a special prospecting authority or an access authority that will
have expired before any construction or operations under the infrastructure licence
could occur. This is because a special prospecting authority always is, and an access
authority usually is, a short-term title.
Equivalent provision in PSL Act: section 59D
Policy change: conversion of "one month" to "30 days"
DIVISION 3--VARYING AN INFRASTRUCTURE LICENCE
Clause 175 - Application for variation of infrastructure licence
This clause sets out the procedure by which an infrastructure licensee may seek a
variation of the licence. The procedure is complemented by provisions set out in Part
2.10.
Equivalent provision in PSL Act: subsection 59K(1) and paragraphs 59K(2)(b) and (c)
Clause 176 - Variation of infrastructure licence
This clause provides that the variation of an infrastructure licence is at the discretion
of the Joint Authority. It may first require consultation with any other party that has
rights under the proposed Act in the area in which the infrastructure facility is
situated. The variation, or refusal of it, is to be notified in writing to the licensee.
However, a variation does not come into effect on the date of the notice to the
licensee but on the date of publication of a notice about it in the Gazette.
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Joint Authority (such as this one) may request
reasons for it.
Equivalent provision in PSL Act: subsections 59K(6) and 95(4)
Clause 177 - Consultation--variation of infrastructure licence
This clause sets out the consultation procedure that may apply if the site of the
infrastructure facility to which the variation application relates is in an area to which
another party has rights under the proposed Act.
83
No consultation by the Joint Authority is required if the other party has already given
written consent for the variation of the infrastructure licence, or if the other party is
the holder of a special prospecting authority or an access authority that will have
expired before any new construction or varied operations under the infrastructure
licence could occur. This is because a special prospecting authority always is, and an
access authority usually is, a short-term title.
Equivalent provisions in PSL Act: subsections 59K(4), (5) and (6)
Policy change: conversion of "one month" to "30 days"
Part 2.6--Pipeline licences
DIVISION 1--GENERAL PROVISIONS
Clause 178 - Simplified outline
This clause gives a summary of Part 2.6 covering pipeline licences. This summary
does not form part of the operative text of the proposed Act.
Equivalent provision in PSL Act: nil.
Clause 179 - Prohibition of unauthorised construction or operation of a pipeline in an
offshore area
This clause prohibits unauthorised work on constructing or altering a pipeline in an
offshore area and unauthorised operation of a pipeline that has already been
constructed. The distinction between starting and continuing the work or operation is
made for reasons of clarity, for example so that the clause is not misunderstood to
mean that only a pipeline constructed to completion could be evidence of a
contravention of this provision.
The authorising instruments that would be required include not only a pipeline licence
but also a certificate under subclause (4) and, commonly, a consent, as set out in
subclause (6). A regulation or a direction under the proposed Act or regulations could
also authorise action without the operator contravening this clause. Moreover, a
defence is available under subclause (7) for action taken in an emergency in which
there is a likelihood of loss or injury or for the purpose of maintaining a pipeline in
good order or repair. This defence recognises the potential dangers created by pipeline
operation to life, limb and the environment.
Section 4D of the Crimes Act 1914 provides that the penalty shown is the maximum
penalty. Imprisonment penalties may be converted to pecuniary penalties. This is
provided for in section 4B of the Crimes Act.
Subsection 4B(3) of the Crimes Act provides: "Where a body corporate is convicted
of an offence against a law of the Commonwealth, the court may, if the contrary
intention does not appear and the court thinks fit, impose a pecuniary penalty not
exceeding an amount equal to 5 times the amount of the maximum pecuniary penalty
that could be imposed by the court on a natural person convicted of the same
offence."
84
The fact that the defendant bears an evidential burden in relation to subclauses (2),
(4), (6), (7) and (8) means that the person or company has the burden of adducing or
pointing to evidence that suggests a reasonable possibility that the defendant is
authorised to perform the actions in question. The notion that the defendant bears an
evidential burden under section 60 of the Petroleum (Submerged Lands) Act has been
deduced by legal interpretation of the section, even though it does not explicitly say
so.
The offence provisions in this clause do not specify a fault element. Under section 5.6
of the Criminal Code, if an offence provision does not specify a fault element and if
the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provisions in the PSL Act: sections 60 and 61
Technical change: omission from subclause (9) of an equivalent to the phrase: "for
reasons that [the Designated Authority] thinks sufficient" that appears in subsection
60(6)
Clause 180 - Rights conferred by pipeline licence
This clause provides that the rights conferred by a pipeline licence cover all aspects of
the design, construction and operation of the pipeline and installations such as
pumping stations that form part of it. Certain details of these matters are to be
specified in the pipeline licence. The licence may also be subject to other conditions.
A pipeline licence does not specifically have a licence area other than the offshore
area in respect of which the licence has been granted. If a pipeline were planned to be
constructed so as to pass through more than one offshore area, a separate pipeline
licence granted by the Joint Authority of each of those offshore areas would be
required.
The fact that the rights are subject to this Act and the regulations refers, for example,
to the fact that a pipeline management plan would be required before any construction
of a pipeline could occur under the licence. It also refers to other provisions such as
the fact that the licence could be terminated, cancelled or surrendered.
Equivalent provision in the PSL Act: section 66
Clause 181 - Conditions of pipeline licences
The power to insert conditions in pipeline licences exists to ensure that the individual
characteristics of each pipeline are able to be dealt with in a way that satisfies the
regulator and is accepted by the licensee.
While the Joint Authority may grant a pipeline licence subject to whatever conditions
the Joint Authority thinks appropriate, the conditions must conform to the general
scope and purposes of the Act.
85
Subclause (3) alerts applicants for pipeline licences to the fact that a condition could
be imposed requiring the pipeline to be constructed within a specified time. This
could be important in relation to, say, minimising the disruption caused by pipeline
construction to shipping or other activities.
Equivalent provision in the PSL Act: section 70
Technical changes: that the Joint Authority may grant a pipeline licence "subject to
whatever conditions the Joint Authority thinks appropriate" rather than "such
conditions as the Joint Authority thinks fit"; mention that the specific example of a
condition in subclause (3) does not limit the generality of the condition setting power
as set out in subclause (1)
Clause 182 - Duration of pipeline licence
This clause provides for the indefinite duration of a pipeline licence, subject to
surrender, cancellation or termination.
Equivalent provision in the PSL Act: subsection 67(1)
Clause 183 - Termination of pipeline licence if no operations for 5 years
This clause sets out provisions for the possible termination of a pipeline licence if
there has been neither construction work nor use of the pipeline, or a given part of the
pipeline, for a continuous period of at least 5 years. If only a part of the pipeline has
been out of use for this period, then the termination of the licence can relate to only
that part of the pipeline. Even then, the Joint Authority is not required to terminate the
licence, and the Joint Authority must in any case discount any part of the period of
inactivity during which no construction or operations were carried on because of
circumstances beyond the licensee's control.
These circumstances could include events such as the failure by a manufacturer of
vital plant or equipment to deliver on time under contract, whether to the pipeline
construction project itself or to a production facility from which petroleum pumped
through the pipeline is drawn. However, the depletion of recoverable petroleum in a
production licence area that the pipeline is linked to is not a factor that could
influence the timeframe after which the licence could be terminated.
This clause also sets out the consultation procedure, possibly involving other parties
as well as the licensee, that the Joint Authority must complete before terminating a
pipeline licence.
In this Bill, the word "termination" is used only in relation to production licences,
pipeline licences and infrastructure licences and is a considered act of bringing the
title to an end on grounds of economic inactivity. Termination does not connote any
infringement of the Act or regulations.
Equivalent provision in PSL Act: section 67A
86
Policy changes: conversion of "one month" to "30 days"; addition of a mention of
depletion of recoverable petroleum not qualifying as circumstances beyond the
licensee's control; consultation possibly with other parties; invitation for submissions;
specification of a time limit for submissions; requirement for Joint Authority to take
account of submissions
Clause 184 - Alteration or removal of pipeline constructed in breach of this Act
This clause gives powers to the Designated Authority to deal with the situation where
the construction of a pipeline is started, continued or completed, or a pipeline is
altered or reconstructed, in breach of the proposed Act. This may have occurred with
or without there being a pipeline licence in force that was in any way linked to the
contravention. This is borne out by the fact that any directions by the Designated
Authority under this clause are to be addressed to the owner, or prospective owner, of
the pipeline, rather than to anyone identified as the pipeline licensee. The Designated
Authority's use of these powers is also separate from any decision that may be taken
to launch a criminal prosecution for an offence against clause 179. The only court
action contemplated under clause 184 is a civil action for the recovery of Designated
Authority costs.
Equivalent provision in the PSL Act: section 62
Policy change: that the period for compliance specified in the Designated Authority's
direction must be reasonable
DIVISION 2--OBTAINING A PIPELINE LICENCE
Clause 185 - Application for pipeline licence
This clause sets out the basic provisions for a person or company to apply for a
pipeline licence. The procedure is complemented by the provisions set out in Part
2.10. The applicant is not required to have had any previous involvement with the
production operation(s) which is/are the source of the petroleum that is planned to be
conveyed through the pipeline.
The reference in paragraph (3)(c) to the pumping stations, tank stations or valve
stations that the applicant wants to be declared terminal stations is for purposes of
defining where the pipeline would start. Declaration of a terminal station means the
pipe downstream of the terminal station would be a pipeline requiring a pipeline
licence. Upstream of the terminal station, the pipe would be called a secondary line,
which would be covered by the production licence provisions.
Equivalent provision in the PSL Act: paragraphs 64(1)(c) and (d)
Clause 186 - Rights of production licensees following application for pipeline
licences by other persons
A production licensee may apply for a pipeline licence in the same way as any other
party, but, when it comes obtaining a pipeline licence for conveying petroleum
recovered under that production licence, this clause sets out the preferential right of
87
the production licensee to be granted a pipeline licence for that purpose and how that
right may be exercised.
In every case, under clause 418, information about a pipeline licence application must
be published in the Gazette. Where a party other than the production licensee has
submitted an application for a pipeline licence under clause 185, this publication
initiates the period during which the production licensee may apply for a pipeline
licence in preference to the other party and request that the other application be
rejected. However, as set out in the next clause, even when the abovementioned
situation exists, the production licensee's right to a pipeline licence is a qualified one.
Equivalent provision in the PSL Act: subsection 64(2)
Policy change: conversion of "3 months" and "6 months" to "90 days" and "180
days" respectively
Clause 187 - Grant of pipeline licence--offer document
This clause sets out the provisions governing the offer of a pipeline licence to an
applicant under 4 different scenarios.
The only scenario under which the Joint Authority is obliged to offer a pipeline
licence to the applicant is the one set out in subclause (3). This is the case of a
production licence holder applying for a pipeline licence for conveying petroleum
recovered in that licensee's production operation and there has been compliance with
the production licence conditions and with the proposed Act and regulations to the
extent that they place obligations on the licensee as a licensee.
If the scenario set out in subclause (4) applies, ie there has not been compliance with
the production licence conditions or with the proposed Act and regulations to the
extent that they place obligations on the licensee as a licensee but there are sufficient
grounds to justify the granting of the pipeline licence, and if there is an application
from the another party as well, it will be up to the Joint Authority to decide which
applicant should be offered the licence, if either. The Joint Authority would make its
decision on the basis of information presented in the competing applications,
including details about available financial and technical resources and proposed or
concluded commercial agreements.
If there has not been compliance with the production licence conditions or with the
proposed Act and regulations to the extent that they place obligations on the licensee
as a licensee and there are no sufficient grounds to justify the granting of the pipeline
licence to the production licensee, then the production licensee is precluded from
obtaining the pipeline licence and the competing applicant, if there is one, would be
the party who could be offered a pipeline licence at that time.
Subclause (5) refers to a pipeline licence for the conveyance of petroleum recovered
from another country's continental shelf, from the Joint Petroleum Development Area
between Australia and East Timor, or, conceivably, from the International Seabed
Area. Such a case would obviously not involve petroleum recovered by a production
licensee operating under the proposed Act and clause 186 would have no application
to it.
88
Equivalent provision in the PSL Act: subsections 65(1), (2), (2A), paragraph 65(7)(a)
and subsection 65(8)
Policy change: requirement that the Joint Authority be satisfied that there are
"sufficient grounds" rather than "special circumstances" to warrant the granting of a
pipeline licence in a situation of non-compliance
Clause 188 - Refusal to grant pipeline licence
This clause sets out the grounds on which a production licence application must be
refused. If the Joint Authority deems those grounds to apply to a particular
application, it must enter into a consultation procedure as set out in clause 226,
possibly involving other parties as well as the production licensee. This is because the
findings of fact will determine the course of action that the Joint Authority is
permitted to take and it is therefore important to ensure that the finding is correct, and
consultation with the applicant and other parties provides the best opportunity for
doing so.
If that procedure does not yield information that causes the Joint Authority to come to
a different view, the Joint Authority must refuse to grant the production licensee the
pipeline licence and advise the applicant in writing of this decision.
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Joint Authority (such as this one) may request
reasons for it.
No consultation procedure applies if the applicant for a pipeline licence is not the
production licensee from whose production operation the pipeline is intended to
convey petroleum. In that case a refusal decision is not mandatory and, if it is made, it
merely has to be conveyed to the applicant in writing. The policy determining the
kinds of decisions that require consultation is explained under clause 226.
Equivalent provision in the PSL Act: subsection 65(3) and (5)
Policy change: requirement that the Joint Authority be satisfied that there are
"sufficient grounds" rather than "special circumstances" to enable the granting of a
pipeline licence in a situation of non-compliance
Clause 189 - Grant of pipeline licence
This clause ensures that once the Joint Authority has given an offer document to the
applicant, the Joint Authority cannot renege on granting the pipeline licence, provided
the applicant requests the licence within 90 to 180 days after the document was given
to the applicant (the detailed rule about the timeframe is set out in clause 224). This
would even preclude the Joint Authority from attempting to renege on the offer by
seeking to reserve, under clause 242, one or more of the blocks which the proposed
route of the pipeline transects. As in every other case where there is a duty to grant a
title, the Joint Authority is to grant the licence as soon as practicable.
Equivalent provision in the PSL Act: subsection 65(10)
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DIVISION 3--VARYING A PIPELINE LICENCE
Clause 190 - Variation of pipeline licence on application by licensee
This clause sets out the procedure for applying for a variation of a pipeline licence.
This is complemented by provisions set out in Part 2.10.
Subclause (3) is a reference to the Gazette notice referred to in clause 418, which
must be published in respect of any application for variation of a pipeline licence.
This is to enable other interested parties to make submissions about the proposal.
The variation, or refusal of it, is to be notified in writing to the licensee. However, a
variation does not come into effect on the date of the notice to the licensee but on the
date of publication of a notice about it in the Gazette under clause 418.
Equivalent provisions in the PSL Act: subsection 71(1), paragraphs 71(2)(c) and (d)
and subsections 71(5) and 95(4)
Technical change: that written notice of the approval or refusal of a variation
application is to be given to the applicant
Clause 191 - Variation of pipeline licence at the request of a Minister or a statutory
body
This clause envisages a situation where a Minister of the Commonwealth, a State or
the Northern Territory, or a statutory body of the Commonwealth, a State or a
Territory, approaches the Joint Authority, seeking changes in the design, construction,
route or position of a pipeline for some reason that is unrelated to petroleum
production and conveyance operations. This could be to facilitate some other activity
which is in the public interest, such as the construction of a wharf or other port
facility.
Issues of this type would be more likely to arise in the offshore area of an external
territory than in the offshore area of a State or the Northern Territory. This is because
the Offshore Constitutional Settlement creates a minimum 3 nautical mile buffer zone
of coastal waters between an offshore area and the coastline, or any island, of a State
or the Northern Territory, whereas, around an external Territory, the offshore area has
the low water mark as its landward limit. Nevertheless, this clause covers all
contingencies.
If a request relating to an external Territory were given at the Ministerial level, it
would be given by the Commonwealth Minister responsible for Territories.
Otherwise, it could be given by a statutory authority existing in the external Territory,
such as a harbour trust.
Accordingly, if the Joint Authority is of the opinion that it is in the public interest to
make the suggested changes in the design, construction, route or position of a
pipeline, it may vary the relevant pipeline licence accordingly and give a direction to
the licensee to make the changes in a specified time which must be reasonable.
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The penalty consequences of non-compliance with the direction are set out in
subclause (5). Section 4D of the Crimes Act 1914 provides that the penalty shown is
the maximum penalty. Imprisonment penalties may be converted to pecuniary
penalties. This is provided for in section 4B of the Crimes Act.
Subsection 4B(3) of the Crimes Act provides: "Where a body corporate is convicted
of an offence against a law of the Commonwealth, the court may, if the contrary
intention does not appear and the court thinks fit, impose a pecuniary penalty not
exceeding an amount equal to 5 times the amount of the maximum pecuniary penalty
that could be imposed by the court on a natural person convicted of the same
offence."
Conversely, if there is compliance, the provisions for the pipeline licensee to win cost
recovery through court action are set out in clauses (6), (7) and (8).
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provisions in the PSL Act: section 72 and subsection 95(4)
Policy changes: that the period specified in the direction for compliance must be
reasonable; that the Joint Authority must take note of a request from a Northern
Territory Minister as much as from a State Minister; that jurisdiction to hear an action
for cost recovery is conferred on the Federal Court as much as on a Supreme Court;
omission of an equivalent of the power to give directions to "the holder of an
instrument of consent under section 60" given that this power is redundant following
the removal, in 2000, from sections 60 and 72 the Act, of all mentions of secondary
lines, water lines, pumping stations, tank stations and valve stations
DIVISION 4--PIPELINE OPERATION
Clause 192 - Common carrier
This clause, dealing with establishing a pipeline licensee as a common carrier of
petroleum, is one that has equivalents in petroleum legislation in other parts of the
world.
In law, as it affects pipeline operators, a common carrier is one whose business is to
be ready to carry or convey for hire, at a reasonable price, goods for any consignor,
irrespective of who the consignor may be. The common carrier is bound to convey the
goods of any person who offers to pay the carrier's hire rate provided the means of
conveyance is not fully committed at the time.
The exceptions under subclause (3) to the Joint Authority's powers to direct a pipeline
licensee to be a common carrier of petroleum relate to the possibility that provisions
under other Commonwealth legislation may already bring about a similar result.
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Paragraph (3)(a) refers to one of the alternative regulatory arrangements that could
apply, but only if the product being conveyed through the pipeline is natural gas. For the
purposes of the proposed Act, natural gas and processed natural gas are regarded as
petroleum, and the most likely scenario under which this provision would operate would
be one involving an offshore processing plant. The owner or operator of a pipeline,
which is covered within the meaning of the Third Party [Gas] Access Code, is required
to have an Access Arrangement approved by the relevant regulator. The Access
Arrangement for a covered pipeline determines certain reference tariffs and other terms
and conditions under which access will be made available, subject to the requirements of
the Code. This Code, while set out in South Australian legislation, has status as
Commonwealth law under the Gas Pipelines Access (Commonwealth) Act 1998.
Paragraph (3)(b) refers to another possible situation, viz that of the pipeline being a
declared service under section 44H of the Trade Practices Act 1974. This means that
certain requirements attach to the service provided by the pipeline. For instance, the
provider or a user of the pipeline must not engage in conduct for the purpose of
preventing or hindering a third party's access to the pipeline (section 44ZZ of the
Trade Practices Act refers).
Paragraph (3)(c) refers to a third possible situation, viz that of the person who is, or
expects to be, the provider of a pipeline service giving a written undertaking to the
Australian Competition and Consumer Commission under section 44ZZA of the Trade
Practices Act in connection with the provision of access to the pipeline. Such an
undertaking could include an obligation on the provider not to hinder access to the
pipeline.
The arrangements referred to in paragraphs (3)(b) and (3)(c) are both set out in Part
IIIA of the Trade Practices Act. If the Joint Authority has given a direction to a pipeline
licensee to be a common carrier, paragraph (4) provides that none of the alternative
arrangements listed in paragraph (3) could then be made to simultaneously apply to the
pipeline.
Equivalent provision in the PSL Act: section 73
Clause 193 - Ceasing to operate pipeline without consent
This clause is to ensure that full use will be made of any pipeline which has been
licensed under this legislation. There is no impediment to a pipeline licensee ceasing
pipeline operation under an established operating schedule, for repairs or maintenance
or in an emergency.
However, if a proposed cessation is for another reason, most likely a commercial one,
this clause provides that the Joint Authority's consent must be sought before the step
is taken. This is primarily to ensure that the pipeline licensee makes adequate
provision for decommissioning the pipeline and takes safety issues properly into
account.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
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intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: section 74
Part 2.7--Special prospecting authorities
DIVISION 1--GENERAL PROVISIONS
Clause 194 - Simplified outline
This clause gives a summary of Part 2.7 covering special prospecting authorities. This
summary does not form part of the operative text of the proposed Act.
Equivalent provision in PSL Act: nil.
Clause 195 - Rights conferred by special prospecting authority
This clause gives the holder of a special prospecting authority rights to do everything
required in the authority area to explore for petroleum except drilling a well. A special
prospecting authority may be granted where the authority area is not subject to an
exploration permit, retention lease or production licence at the time when the special
prospecting authority is sought. Normally, a special prospecting authority is granted
for carrying out seismic surveys, aerogravity surveys, aeromagnetic surveys, airborne
laser fluorimetry surveys or seabed sampling. The rights are to be subject to
conditions that are entered on the authority. The making of a well is prohibited by
subclause (2).
The mention in subclause (3) of these rights also being subject to "this Act and the
regulations" refers to other provisions such as the fact that the special prospecting
authority could be cancelled, surrendered or simply expire.
Equivalent provision in the PSL Act: subsections 111(4) and (5)
Clause 196 - Conditions of special prospecting authorities
The power to insert conditions in special prospecting authorities exists to ensure that
the individual characteristics of each exploration project are able to be dealt with in a
way that satisfies the regulator and is accepted by the authority holder.
Conditions could include temporal and spatial restrictions to address issues such as
avoiding conflict with navigation in a shipping lane or exclusion from a marine park
area (see clause 243).
Equivalent provision in the PSL Act: paragraph 111(3)(a)
Technical change: that the Joint Authority may grant a special prospecting authority
"subject to whatever conditions the Joint Authority thinks appropriate" rather than
"such conditions as the Joint Authority thinks fit"
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Clause 197 - Duration of special prospecting authority
This clause sets out the basic provisions about the term of a special prospecting
authority but, in subclause (4), provides that the term could be shorter depending on
whether a surrender or cancellation takes place.
Equivalent provision in the PSL Act: subsection 111(6)
Policy change: conversion of "6 months" to "180 days"
Clause 198 - Special prospecting authority cannot be transferred
The provision in this clause precluding the transfer of a special prospecting authority
is based on the short (maximum 180 day) term of a special prospecting authority. The
administrative procedures involved in transferring a title under the proposed Act
would be disproportionate to the duration of a special prospecting authority. As there
is no enduring title to an area under a special prospecting authority, there is no loss in
requiring any new party to apply for an entirely new special prospecting authority.
Equivalent provision in the PSL Act: subsection 111(6A)
DIVISION 2--OBTAINING A SPECIAL PROSPECTING AUTHORITY
Clause 199 - Application for special prospecting authority
This clause provides that a special prospecting authority application may be lodged by
any person or company over blocks that are not under an exploration permit, retention
lease or production licence.
A special prospecting authority could be sought over blocks that are totally vacant,
over blocks in which a pipeline or infrastructure facility has been, or may be,
constructed under the relevant licence, over blocks covered by access authorities, over
blocks covered by one or more other special prospecting authorities or over blocks in
respect of which a scientific investigation consent has been given.
The main reasons for acquiring a special prospecting authority would be situations
where an explorer (permittee) wants to gather data outside the permit area to better
understand the regional geological or structural setting or where a seismic contractor
wants to undertake a speculative survey with the intention of making the data
available for sale to explorers. However, in the first case, permittees, being existing
titleholders, could achieve the same end by applying for an access authority. Doing so
would have a number of advantages such as the possibility of acquiring access even
when the block is under an exploration permit, retention lease or production licence
held by another party.
The basic application procedure set out in this clause is complemented by provisions
in Part 2.10.
Equivalent provision in the PSL Act: subsection 111(1) and paragraph 111(2)(c)
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Clause 200 - Grant or refusal of special prospecting authority
This clause provides that, in line with the division of responsibilities under the
Petroleum (Submerged Lands) Act, the Joint Authority is to have no role in decisions
to grant or to refuse special prospecting authorities, apart from possibility of the
block(s) being reserved under clause 242. The decision on granting a special
prospecting authority is in the hands of the Designated Authority and is to be
conveyed to the applicant in the form of the approved special prospecting authority
document or as a written notice of refusal.
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Designated Authority (such as this one) may
request reasons for it.
Equivalent provision in the PSL Act: subsection 111(3)
Clause 201 - Holders to be informed of the grant of another special prospecting
authority
This clause provides that a special prospecting authority in respect of any particular
block is not an exclusive right. In fact, as many special prospecting authorities as the
Designated Authority considers appropriate may be granted over the same block.
However, each holder of a special prospecting authority would need to be advised of
the exploration operations authorised by, and the conditions governing, every other
special prospecting authority covering or extending into that block.
Equivalent provision in the PSL Act: subsection 111(6B)
Part 2.8--Access authorities
DIVISION 1--GENERAL PROVISIONS
Clause 202 - Simplified outline
This clause gives a summary of Part 2.8 covering access authorities. This summary
does not form part of the operative text of the proposed Act.
Equivalent provision in PSL Act: nil.
Clause 203 - Rights conferred by access authority
This clause gives the holder of an access authority rights to carry out specified
operations in the authority area, as long as these do not involve the making of a well.
The rights are further defined elsewhere by the fact that the holder must be, in an
adjoining area, the holder of an exploration permit, retention lease, production
licence, special prospecting authority or a State or Northern Territory equivalent title.
The authorised operations must consist of exploration or operations related to the
recovery of petroleum in the access authority holder's other title area.
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Thus a permittee, lessee or special prospecting authority holder could seek an access
authority for obtaining geoscientific information about a block adjoining the permit,
lease or authority area to set geoscientific information about the permit, lease or
authority area into a broader picture for reasons of improved interpretation. In
practice, this could involve the permittee, lessee or authority holder carrying out
seismic surveys, aerogravity surveys, aeromagnetic surveys, airborne laser
fluorimetry surveys or seabed sampling in the adjoining block.
In the same way, a production licensee could seek an access authority for obtaining
geoscientific information about a block adjoining the licence area but the precise type
of information sought could be slightly different in that it would be of relevance to the
recovery of petroleum already known to be present rather than to exploration.
The rights are to be subject to conditions that are entered on the authority. The
mention in subclause (3) of these rights also being subject to "this Act and the
regulations" refers to other provisions such as the fact that the access authority could
be cancelled, surrendered or simply expire.
Equivalent provision in the PSL Act: subsections 112(5) and (6)
Clause 204 - Conditions of access authorities
The power to insert conditions in access authorities exists to ensure that the individual
characteristics of each authorised project are able to be dealt with in a way that
satisfies the regulator and is accepted by the authority holder.
Conditions could include temporal and spatial restrictions to address issues such as
avoiding conflict with navigation in a shipping lane or exclusion from a marine park
area (see clause 243).
Equivalent provision in the PSL Act: paragraph 112(3)(a)
Technical change: that the Joint Authority may grant an access authority "subject to
whatever conditions the Joint Authority thinks appropriate" rather than "such
conditions as the Joint Authority thinks fit"
Clause 205 - Duration of access authority
This clause sets out provisions for the duration of an access authority. While this
could be any period that is specified in the authority, the duration is normally short
and would not extend, or be extended, beyond the date when the applicant's other title
would be expected to come to an end through expiry, revocation or termination.
Subclause (3) provides that the term could be shorter depending on whether a
surrender or cancellation takes place.
Equivalent provision in the PSL Act: subsection 112(7)
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DIVISION 2--OBTAINING AN ACCESS AUTHORITY
Clause 206 - Application for access authority
This clause sets out the prerequisites for applying for an access authority, the purposes
for which the authority could be used and the basic information that must be set out in
the application. The basic application procedure set out in this clause is
complemented by provisions in Part 2.10.
The scenario of a State or Northern Territory petroleum title holder seeking an access
authority is premised on the State or Northern Territory title area interacting with the
boundary between that State or Territory's coastal waters and the offshore area in
question. In that case, the holder of the title would approach the Designated Authority
in respect of that offshore area. However, if the titleholder is a Commonwealth
permittee, lessee, licensee or holder of a special prospecting authority, the application
must be made to the Designated Authority of the offshore area to which the
titleholder's existing title relates. This is irrespective of whether the area to which
access is sought under the authority is within the same or another offshore area.
Equivalent provisions in the PSL Act: subsections 112(1), (1A), (1B) and (1C) and
paragraph 112(2)(c)
Clause 207 - Grant or refusal of access authority
This clause provides that, in line with the division of responsibilities under the
Petroleum (Submerged Lands) Act, the Joint Authority is to have no role in decisions
to grant or to refuse access authorities, apart from possibility of the block(s) being
reserved under clause 242. The decision on granting an access authority is in the
hands of the Designated Authority and is to be conveyed to the applicant in the form
of the approved access authority document or as a written notice of refusal.
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Designated Authority (such as this one) may
request reasons for it.
The reference in paragraph (1)(b) to the access authority potentially being necessary
for the proper performance of the applicant's duties refers to situations such as one in
which a permittee has a work-bid commitment to drill a well in an area that is close to
the boundary of the permit area and the permittee needs to fine-tune the available
geophysical information to determine the most prospective site for the well.
This clause also provides that, in the case of a Commonwealth titleholder, the grant of
the access authority is always made by the Designated Authority who has
administrative responsibility for the other title held by the applicant, even if access is
sought into an adjoining offshore area. In the latter case, the Designated Authority
must obtain approval from the Designated Authority of the other offshore area.
Equivalent provision in the PSL Act: paragraph 112(3)(a) and subsection 112(4A).
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Clause 208 - Consultation--grant of access authority in same offshore area
This clause provides that an access authority is not an exclusive right, and could be
granted in respect of an area over which any other title under the Act is in force. This
includes areas to which infrastructure licences or pipeline licences apply. Holders of
the latter titles are not, however, involved in the consultation procedures set out in this
clause.
In paragraph (1)(b), the reference to the application area being to any extent the
subject of an exploration permit, retention lease, production licence or special
prospecting authority is a reference to the possibility that, if, for example, the access
authority application relates to 2 blocks, only one of them may be the subject of one
of the abovementioned titles.
Paragraph (1)(c) indirectly acknowledges that the holder of an exploration permit,
retention lease, production licence or special prospecting authority in one block could
apply for an access authority over another block despite the fact that the titleholder
has a separate exploration permit, retention lease, production licence or special
prospecting authority over that other block. Given that the second title would allow
the titleholder to do whatever was intended under the access authority, this is at first
glance counterintuitive, but it is, in rare cases, plausible. Where the title over that
adjoining block is about to expire or be terminated and the titleholder nonetheless
wants to continue exploration operations in the block for some time after the expiry or
termination, there is the possibility that the Designated Authority may grant an access
authority for this purpose. However, it might be undesirable to have a break in
operations in the adjoining block for the time it takes the Designated Authority to
consider an access authority application from the titleholder. In other words, it could
be beneficial for this consideration and granting process to be able to run its course
when the other title over the block is still in force.
Under the above scenario, any need for a consultation procedure is circumvented for
obvious reasons, as it is in all cases where the holder of a title over the block (that is
in the same offshore area) to which access is sought has already consented in writing
to an access authority being granted.
Equivalent provision in the PSL Act: paragraphs 112(4)(a), (b)(i), (c) and (d)
Policy change: conversion of "one month" to "30 days"
Clause 209 - Consultation--approval of grant of access authority in adjoining
offshore area
This clause sets out a consultation procedure for the situation where the intended
access authority area encroaches into an adjoining offshore area. The procedure then
is similar to the one set out in clause 208 except that the consultation, including the
consideration of any submissions received, must be carried out by the Designated
Authority for the offshore area in which the block(s) to which access is sought is/are
situated.
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The points made in relation to paragraph (1)(c) under clause 208 apply equally to
paragraph (1)(c) under this clause.
However, in this case, the consultation process cannot be circumvented by the access
authority applicant obtaining written consent from the titleholder(s) in the other
offshore area. This replicates the equivalent provision in the Petroleum (Submerged
Lands) Act and is proposed for reasons of administrative tidiness given that two
Designated Authorities and two different title registers are involved.
Equivalent provision in the PSL Act: paragraphs 112(4B)(a), (c), (d)(i), (e) and (f)
Policy change conversion of "one month" to "30 days
DIVISION 3--VARIATION OF ACCESS AUTHORITIES
Clause 210 - Variation of access authority
This clause provides for the variation of an access authority. If the area, or proposed
new area, of the access authority that is to be varied is situated in a different offshore
area than the holder's other title, the process requires the approval of the Designated
Authority for that offshore area.
Equivalent provision in the PSL Act: paragraph 112(3)(b) and subsection 112(4A)
Clause 211 - Consultation--variation of access authority in same offshore area
This clause provides that the provisions that apply under clause 208 to consultation
where an access authority application is lodged are replicated with one additional
detail where the Designated Authority proposes to vary an existing access authority.
The additional requirement is that, in every case, under subparagraph (2)(b)(i), the
Designated Authority must give a copy of the notice setting out the proposed variation
to the holder of the access authority as well as to the other parties mentioned in the
clause. This is because the proposed variation does not necessarily originate from an
application by the access authority holder. The variation may be proposed of the
Designated Authority's own volition, because the access authority holder has
requested it or because some other party has requested it.
Equivalent provision in the PSL Act: paragraphs 112(4)(a), (b), (c) and (d)
Policy changes: in the case of a proposed variation of an access authority,
consultation to be required only if the other titleholder has not given written consent
to the variation; conversion of "one month" to "30 days"
Clause 212 - Consultation--approval of variation of access authority in adjoining
offshore area
This clause provides that the provisions that apply under clause 209 to consultation
where an access authority application is lodged in respect of an area in an adjoining
offshore area are replicated with one additional detail where the Designated Authority
proposes to vary an existing access authority of this type.
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The additional requirement is that, in every case, under subparagraph (2)(b)(i), the
Designated Authority of the adjoining offshore area must give a copy of the notice
setting out the proposed variation to the holder of the access authority as well as to the
other parties mentioned in the clause. This is because the proposed variation does not
necessarily originate from an application by the access authority holder. The variation
may be proposed of the Designated Authority's own volition, because the access
authority holder has requested it or because some other party has requested it.
Equivalent provision in the PSL Act: paragraphs 112(4B)(b), (c), (d), (e) and (f)
Policy changes: conversion of "one month" to "30 days"
DIVISION 4--REPORTING OBLIGATIONS OF HOLDERS OF ACCESS AUTHORITIES
Clause 213 - Reporting obligations of holders of access authorities
This clause recognises the generally exclusive right that holders of exploration
permits, retention leases and production licences enjoy to explore their title areas for
as long as the title is held. Accordingly, any other titleholder who is granted an access
authority to the area is placed under a reporting obligation to the principal titleholder
so that any useful information gleaned from exploration under the access authority is
passed on to the party who could convert that information into economic gain.
Section 4D of the Crimes Act 1914 provides that the penalty shown for failure to
report information as required is the maximum penalty. However, subsection 4B(3) of
the Crimes Act provides: "Where a body corporate is convicted of an offence against
a law of the Commonwealth, the court may, if the contrary intention does not appear
and the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to
5 times the amount of the maximum pecuniary penalty that could be imposed by the
court on a natural person convicted of the same offence."
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: subsection 112(11)
Policy changes: conversion of "28 days" to "30 days"
DIVISION 5--REVOCATION OF ACCESS AUTHORITIES
Clause 214 - Revocation of access authority
In view of the usually short duration of an access authority, and the limits this places
on any consultation procedure being able to run its course, this clause gives the
Designated Authority the power to revoke an access authority without consultation
procedures of the kind that apply, for example, to cancelling titles under clause 239.
However, if the authority has covered an area that is under an exploration permit,
retention lease or production licence, the holder of that title needs to be informed of
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the revocation, just as that holder must be advised, under clause 213, of the results of
the authority holder's investigations.
Equivalent provision in the PSL Act: paragraph 112(8)(b)
Policy change: that, because the bringing to an end of an access authority does not
necessarily imply any infringement of the Act, regulations or conditions, the action be
called a "revocation" rather than a "cancellation"
Part 2.9--Scientific investigation consents
Clause 215 - Simplified outline
This clause gives a summary of Part 2.9 covering scientific investigation consents.
This summary does not form part of the operative text of the proposed Act.
Equivalent provision in PSL Act: nil.
Clause 216 - Rights conferred by scientific investigation consent
This clause recognises Australia's obligations under the United Nations Convention
on the Law of the Sea (UNCLOS) to allow marine scientific research on its
continental shelf. Paragraph 3 to Article 246 of this Convention states:
"Coastal States shall, in normal circumstances, grant their consent for marine
scientific research projects by other States or competent international organizations in
their exclusive economic zone or on their continental shelf to be carried out in
accordance with this Convention exclusively for peaceful purposes and in order to
increase scientific knowledge of the marine environment for the benefit of all
mankind. To this end, coastal States shall establish rules and procedures ensuring that
such consent will not be delayed or denied unreasonably."
This obligation is elaborated on in paragraph 6 to the Article, which provides, in part,
that coastal States may not exercise their discretion to withhold consent in respect of
marine scientific research projects to be undertaken on the continental shelf beyond
200 nautical miles from the territorial sea baseline outside "specific areas which
coastal States may at any time publicly designate as areas in which exploitation or
detailed exploratory operations focused on those areas are occurring or will occur
within a reasonable period of time."
While the provisions governing the grant of a scientific investigation consent under
the Petroleum (Submerged Lands) Act were drafted at a time when an earlier
international convention was in force, the structure of the provisions is reflective of
there being international obligations in existence. While the administration of
scientific investigation consents will be reviewed at some stage, the provisions in the
Petroleum (Submerged Lands) Act do not create any conflict with the UNCLOS
requirements and they are therefore replicated in this Bill with little change.
Unless the conditions specify a restricted investigation area, a scientific investigation
consent does not have a title area other than the offshore area of the Designated
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Authority who grants it. If the plan were to carry out a research project requiring
access to more than one offshore area, then a separate scientific investigation consent
would need to be obtained from the Designated Authority of each offshore area.
The rights are to be subject to conditions that are entered on the consent and to
compliance with clause 243, which provides, essentially, that the holder must
minimise interference with the marine environment and the rights of other users of the
marine areas in which the scientific investigation is carried out.
Equivalent provision in the PSL Act: subsections 123(2) and (3)
Clause 217 - Conditions of scientific investigation consents
This clause gives the Designated Authority power to set conditions in scientific
investigation consents. These conditions could be more wide-ranging in their scope
than those applying to other title-holders under the proposed Act because these
conditions are in fact the main legal instrument for regulating the consent-holder's
activities.
Equivalent provision in the PSL Act: subsection 123(2)
Clause 218 - Grant of scientific investigation consent
This clause provides that the Designated Authority of any particular offshore area has
power to decide whether to grant a scientific investigation consent for that offshore
area. It also provides that the petroleum exploration operations for which consent is
sought must form part of a scientific investigation. This means that the Designated
Authority, before agreeing to grant a consent, would require a relevant amount of
information about the credentials of the proponents and the objectives and plan of the
scientific investigation.
Equivalent provision in the PSL Act: subsection 123(1)
Part 2.10--Standard procedures
Clause 219 - Application to be made in an approved manner
This clause provides that various applications that may be made under the proposed
Act must be made in an approved manner, which means that they must be made in a
manner approved in writing by the Designated Authority (clause 6 refers). Subsection
33(3A) of the Acts Interpretation Act 1901 provides:
"Where an Act confers a power to make, grant or issue any instrument (including
rules, regulations or by-laws) with respect to particular matters (however the matters
are described), the power shall be construed as including a power to make, grant or
issue such an instrument with respect to some only of those matters or with respect to
a particular class or particular classes of those matters and to make different provision
with respect to different matters or different classes of matters."
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Thus the Designated Authority might require, for example, some information in some
types of applications to be submitted in the form of a statutory declaration and not
require it for other types of applications.
The Petroleum (Submerged Lands) Act contains no provision for the Designated
Authority to stipulate the manner in which a scientific investigation consent
application is submitted. As this can be justified, in part, by reference to Australia's
international obligations under the United Nations Convention on the Law of the Sea
to allow scientific investigations in its marine jurisdiction, no change to this policy is
proposed in this Bill.
Equivalent provisions in PSL Act: paragraphs 21(1)(b), 22A(5)(c), 23(4)(b), 30(2)(b),
38A(2)(b), 38BB(2)(b), 38F(2)(b), 41(1)(b), 47(6)(b), 51(2)(b), 54(2)(b), 59B(2)(a),
59K(2)(a), 64(1)(b), 71(2)(b), 111(2)(b) and 112(2)(b)
Clause 220 - Application fee
This clause sets out the requirement for applicants for certain titles and renewals
under Chapter 2 to submit a prescribed fee with their application. This is merely to
recover administrative costs in processing the application. This is provided for in
subclause (4), which precludes fees from being set at a level that amounts to taxation.
Under the Petroleum (Submerged Lands) Act, neither access authorities nor scientific
investigation consents have been subject to an application fee. This can be justified on
the basis that an applicant for an access authority is in most cases already paying an
annual fee to cover administration of that applicant's existing title area and the access
authority would be auxiliary to the work done in that area. In the case of a scientific
investigation consent, the absence of an application fee may be justified on the
grounds that at least some scientific research projects have a non-profit status and that
Australia has an obligation under the United Nations Convention on the Law of the
Sea to allow scientific investigations in its marine jurisdiction. No change to these
exemptions is proposed in this Bill.
Subsection 33(3A) of the Acts Interpretation Act provides as follows:
"Where an Act confers a power to make, grant or issue any instrument (including
rules, regulations or by-laws) with respect to particular matters (however the matters
are described), the power shall be construed as including a power to make, grant or
issue such an instrument with respect to some only of those matters or with respect to
a particular class or particular classes of those matters and to make different provision
with respect to different matters or different classes of matters."
Accordingly, subclause (2) acknowledges, by the use of the words "if any", that fees
may not have been prescribed for an application relating to every one of the grants or
variations mentioned in subclause (1).
Subclause (5) clarifies that moneys offered, required and paid as cash bids under
various provision of the Bill are not classed as fees.
Equivalent provisions in the PSL Act: paragraphs 21(1)(f), 22A(5)(h), 24(1)(a),
30(2)(c), 38A(2)(e), 38BB(2)(e), 38F(2)(d), 41(1)(e), 48(1)(a), 51(2)(e), 54(2)(d),
59B(2)(d), 59K(2)(d), 64(1)(f), 71(2)(e) and 111(2)(d)
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Clause 221 - Application may set out additional matters
The provision in this clause for an applicant to set out additional information in the
application does not cover every type of application, for example the renewal of an
exploration permit, retention lease or production licence (where applicable). This is
because, in the case of these renewal applications, if the Joint Authority is inclined to
refuse the application, the Joint Authority is required to give the applicant the
opportunity to make additional submissions at that later stage (clause 226 refers).
In other cases, for example an application for a special prospecting authority or for the
variation of an infrastructure licence or a pipeline licence, there is no provision for an
applicant to set out additional information in the application because, under the
relevant clause, the ambit of what may go into the application is wide to the point that
it would be superfluous to refer to "additional matters". In one other case, ie an
application under clause 154 for production licences over individual blocks, once the
Joint Authority has been presented with certain facts as required under the clause, the
grant of the production licences must follow as a matter of course and any other
information submitted cannot influence the outcome one way or another.
Equivalent provision in PSL Act: paragraphs 21(1)(e), 22A(5)(g), 23(4)(e), 38A(2)(d),
38BB(2)(d), 41(1)(d), 47(6)(f), 59B(2)(c), 64(1)(e) and 112(2)(d)
Clause 222 - Designated Authority may require further information
The power in this clause for the Designated Authority to require additional
information from an applicant does not extend to every type of application, for
example to the renewal of an exploration permit or the first renewal of a fixed-term
production licence. This is because, in these cases, the Joint Authority is entitled to
consider only certain information, which is fully within the Joint Authority's
knowledge, ie whether the applicant has complied as required with the Act,
regulations and title conditions. A power to require any other information would be
inconsistent with this policy. If the Joint Authority's finding is a negative one, then
the Joint Authority is required to give the applicant an opportunity to make additional
submissions to establish sufficient grounds to justify a renewal.
In the case of an application under clause 154 for production licences over individual
blocks, there is no provision for the Designated Authority to seek further information,
and this is for the same reason as indicated under clause 221. In the case of an
application for a special prospecting authority, access authority or scientific
investigation consent, the Petroleum (Submerged Lands) Act has made no provision
for additional information to be required. This can be justified on the grounds of
administrative efficiency, given that these are generally titles of short duration. If an
application for one of these latter titles were rejected on the basis of the information
provided, or lack of it, the applicant could try again, setting out a different case. No
change from this policy is proposed in the Bill.
The Designated Authority's power to require an applicant to provide further
information could be used more than once in connection with any particular
application.
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Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Designated Authority (such as this one) may
request reasons for it.
The notice referred to in subclauses (7), (8) and (9) serves a purpose for taxation
assessment under the Petroleum Resource Rent Tax Assessment Act 1987.
Equivalent provisions in PSL Act: subsections 21(4), 22A(6), 23(5), and 38A(3),
paragraph 38B(1)(b), subsection 38BB(3), paragraph 38 BC(1)(b), subsection 38F(4),
paragraph 38G(1)(b), subsections 41(2), (3), (4) and (5), paragraph 43(3)(a),
subsections 47(7), 59B(3), 59C(1), 59K(3), 64(4) and 71(3)
Policy changes: the fact that the consequences of a breach of a requirement as set out
in subclause (3) apply to the grant of a permit, the grant of a production licence over
surrendered blocks, the variation of a production licence or of an infrastructure
licence and the grant or variation of a pipeline licence (whereas currently they do not);
that the refusal under subclause (3) is discretionary in all cases (whereas currently it is
binding in the case of a retention lease grant or renewal application and an
infrastructure grant application); conversion of "28 days" to "30 days"
Clause 223 - Offer documents
This clause sets out the details that must be included in offer documents under
Chapter 2. This is to ensure that the applicant receiving the document is made fully
aware of what the applicant must do to secure the grant or renewal of the title
concerned.
The fact that the conditions need to be summarised in the offer document is a means
to ensuring that the company concerned will not be operating under conditions that it
finds unacceptable. In the course of preparing the title conditions, in practice there
would be consultations between the Designated Authority and the applicant. In the
final analysis, if the applicant cannot accept the conditions, the applicant can allow
the application to lapse by not taking up the offer.
Under the Petroleum (Submerged Lands) Act, there is no provision for the use of
offer documents for special prospecting authorities, access authorities or scientific
investigation consents. This can be justified on the grounds of administrative
efficiency, given that these are generally titles of short duration. No change from this
policy is proposed in the Bill.
The note under clause 153 provides background about why an offer document under
clause 151 is not mentioned under subclause (5).
Equivalent provisions in the PSL Act: paragraph 22(1)(a), subsections 22(2), 22B(3),
25(5), 32(4), 38B(3), 38BC(3), 38G(4) and paragraphs 43(2)(a) and (c) and
subsections 49(5), 55(7), 59C(2) and 65(7)
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Clause 224 - Acceptance of offer--request by applicant
This clause sets out the time limits for taking up the offer of a title under the proposed
Act. The longer acceptance periods generally reflect the higher degree of capital
expenditure to which the applicant could be making a commitment if the offer were
taken up in relation to a production licence, infrastructure licence or pipeline licence.
The Petroleum (Submerged Lands) Act has provided a longer acceptance period for
special exploration permit offers than for other permits offers. This can be justified on
the grounds that an invitation for bids for a special exploration permit is likely to
occur as an unexpected event and the successful applicant may accordingly need more
time to find the funds to meet the cash-bid commitment. No change from this
provision is proposed in the Bill.
Equivalent provisions in the PSL Act: subsections 22(3) and (5), 22B(4) and (6), 26(1)
and (2), 32(5) and (7), 38B(4) and (6), 38G(6) and (8), 44(1) and (4), 49(6) and (7),
55(8) and (10), 59E(1), (2) and (4) and 65(9) and (11)
Policy changes: conversion of "one month" to "30 days", "3 months" to "90 days"
and "6 months" to "180 days"
Clause 225 - Acceptance of offer--payment
This clause provides that, in those cases where a non-fee payment is required, even if
the applicant has requested the grant of the title within the timeframe set out under
clause 224, the application will lapse if the payment is not also made within that same
timeframe.
Equivalent provision in the PSL Act: paragraphs 22B(6)(b), 26(2)(b) and 49(7)(b)
Clause 226 - Consultation--adverse decisions
This clause replicates and enhances provisions that appear in the Petroleum
(Submerged Lands) Act for consultation before the Joint Authority may take adverse
decisions in relation to certain types of applications. The scenarios all involve an
application either for renewal of a title or a new development in the life of an
established operation under a title. Thus all applications covered by this clause would
be preceded by some financial investment by the titleholder over a number of years.
In all these cases, a finding of the Joint Authority will determine the course of action
that the Joint Authority is permitted to take, for instance whether there are sufficient
grounds to justify the renewal of a title despite non-compliance with specified
requirements. It is therefore important to ensure that the finding is correct, and
consultation with the applicant and other parties provides the best opportunity for
doing so.
Equivalent provisions in the PSL Act: subsections 32(3), 38G(3), 55(4) and 65(4)
Policy changes: conversion of "one month" to "30 days"; the fact that the
consultation procedure applies to an intended refusal of a retention lease to a
production licensee; the fact that the consultation procedure applies to an intended
106
refusal of a production licence second renewal in a case where the only ground for
contemplating the refusal is failure to produce petroleum within the 5 years preceding
the date of the application
Part 2.11--Variation, suspension and exemption
DIVISION 1--VARIATION, SUSPENSION AND EXEMPTION DECISIONS RELATING
TO EXPLORATION PERMITS, RETENTION LEASES, PRODUCTION LICENCES,
INFRASTRUCTURE LICENCES AND PIPELINE LICENCES
Clause 227 - Variation, suspension and exemption--conditions of titles
This clause sets out the rules that apply when it comes to considering a variation to,
suspension of, or exemption from, the conditions of a title under the proposed Act.
The principle behind this clause is that, in the ordinary course of events, the
conditions under which a titleholder operates should not change during the term of the
title. Before the conditions may be revisited, either the titleholder needs to apply for a
variation, suspension or exemption or something else affecting the title needs to
happen. These scenarios are set out in the table under subclause (1). For example, if a
pipeline licensee were given a direction under clause 192 to be a common carrier, one
could expect the conditions to be varied if the existing conditions tied the pipeline to
supporting only one particular production operation.
The Petroleum (Submerged Lands) Act requires the variation of a production licence,
infrastructure licence or pipeline licence to be notified in the Gazette but not that of an
exploration permit or retention lease. This can be justified on the grounds of
administrative efficiency, given that permits and leases are more numerous and have a
shorter duration than do these licences. This distinction is accordingly retained in the
Bill.
Equivalent provisions in the PSL Act: subsections 103(1) and 95(4)
Clause 228 - Extension of term of exploration permit or retention lease--suspension
or exemption
This clause refers primarily to conditions imposing some work program on a
permittee or lessee. If the work program is suspended, or the permittee or lessee is
temporarily exempted from having to meet work program milestones, this would have
to be for a reason that the Joint Authority considers valid grounds. The same reason
could then justify the Joint Authority extending the term of the permit or lease under
this clause so that the permittee or lessee is not forced into non-compliance with the
title conditions because the set work program was not achieved by the end of the term
of the permit or lease.
Equivalent provision in the PSL Act: subsection 103(3)
Clause 229 - Suspension of rights--exploration permit or retention lease
This clause provides for a suspension of all rights under an exploration permit or
retention lease if it is necessary to do so in the national interest. This could be for
107
reasons such as an emerging defence issue or a newly discovered area of high
environmental sensitivity.
Under the Petroleum (Submerged Lands) Act, this power to suspend does not apply to
rights conferred under production licences, infrastructure licences or pipeline licences.
The distinction can be understood in terms of the higher capital investment and the
smaller total areas of the seabed that operations under these licences involve. No
change to this policy is therefore proposed in this Bill.
Equivalent provisions in the PSL Act: subsections 103A(1), (2) and (3)
Clause 230 - Extension of term of exploration permit or retention lease--suspension
of rights
This clause provides for the extension of the term of a permit or lease that has been
suspended under clause 229. This would normally be done so that the permittee or
lessee is not forced into non-compliance with the title conditions because the set work
program was not achieved by the end of the term of the permit or lease.
Equivalent provision in the PSL Act: subsection 103A(4)
DIVISION 2--VARIATION, SUSPENSION AND EXEMPTION DECISIONS RELATING
TO SPECIAL PROSPECTING AUTHORITIES AND ACCESS AUTHORITIES
Clause 231 - Variation, suspension and exemption--conditions of special prospecting
authorities and access authorities
This clause sets out the circumstances under which conditions attached to a special
prospecting authority or access authority may be varied or suspended or be the subject
of an exemption. This clause reflects the more limited rights conferred by special
prospecting authorities and access authorities when compared to other titles.
Item 1 of the table in subclause (1) envisages an access authority being in effect over
a block that is the subject of an exploration permit, retention lease or production
licence. Then the very fact of one of these other titles being held in relation to the
block means that the conditions of the access authority could be varied or suspended
or be the subject of an exemption at any time.
Item 2 envisages two or more access authorities being in effect over a block that is the
subject of an exploration permit, retention lease or production licence. Then the
variation of one of these access authorities opens the way for the Designated
Authority to vary the other, or others, as well. Item 2 points to a variation, suspension
or exemption decision being made because such an action has been carried out in
relation to another access authority in the same block. That decision may or may not
have anything to do with the fact that a permit, lease or licence is also in force over
the block.
Items 3 and 4 of the table in subclause (1) are identical provisions to those which
apply to other titles under clause 227.
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Equivalent provision in the PSL Act: subsection 103(1A)
Part 2.12--Surrender of titles
DIVISION 1--SURRENDER OF EXPLORATION PERMITS, PRODUCTION LICENCES,
RETENTION LEASES, INFRASTRUCTURE LICENCES AND PIPELINE LICENCES
Clause 232 - Application for consent to surrender title
This clause sets out the rules about making valid applications for consent to surrender
a title. The reasons why a consent for surrender is pertinent are discussed under the
next clause.
As set out in subclause (1), exploration permits, production licences and pipeline
licences may be surrendered in whole or in part, but retention leases and infrastructure
licences must be surrendered in their entirety. This is because a retention lease area
does not normally contain blocks determined to be totally unprospective (which a
permit area might have) or blocks that have been exploited to exhaustion (which a
production licence area might have). In the case of an infrastructure licence, the
characteristics of the title make an application for its variation more apposite than a
partial surrender.
Equivalent provision in the PSL Act: subsection 104(1)
Clause 233 - Consent to surrender title
This clause sets out the matters that a titleholder must have attended to before the
Designated Authority will consent to the surrender of a title, in whole or in part. If the
requirements have not been met and are not met, a decision to disallow a surrender
does not mean that the company concerned will continue to hold the title for any
lengthy period. The Joint Authority can proceed to cancel the title on those grounds,
and this is in addition to the possibility of criminal prosecution under clause 311.
However, a cancellation, which must be notified in the Gazette, carries a stigma that
could affect the company's reputation and future access prospects to exploration
areas, not only in Australia but possibly also overseas. A surrender, on the other hand,
maintains the company's good standing.
Some points of explanation about the provisions in paragraphs (3)(c), (d), (e) and (f)
and subclause (4) are set out under clause 311. In item 4 under subclause (7), the
meaning of the "surrender area" in relation to a pipeline licence is to be understood as
including whatever area on either side of the pipeline contains scatterings of
construction debris or discarded parts or equipment resulting from the construction or
maintenance of the pipeline.
An example of a situation to which subclause (6) would apply would be a work-bid
exploration permit which has a 6 year term and is subject to:
(a) a condition that requires the holder, during each year of the term of the permit,
to carry out the work specified in the permit for the year concerned; and
(b) a condition that requires the holder to carry out the work specified for the first
3 years of the term of the permit before the end of the third year.
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If the permittee applies for consent to surrender the permit during the second year of
the term of the permit and the permittee has completed the specified work for the first
and second years of the permit but has not completed the work specified for the third
year, the permittee has not complied with the condition mentioned in paragraph (b).
If the permittee applies for consent to surrender the permit during the fourth year of
the term of the permit and the permittee has not completed the work specified for the
fourth year, the permittee has not complied with the condition mentioned in
paragraph (a).
In either case, the permittee's ability to surrender the permit at the time sought would
be in doubt, as all the requirements of paragraph (3)(b) would not have been met. The
surrender could be consented to only if, under subclause (5), the Designated Authority
were satisfied that there were sufficient grounds to justify it.
Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, a
person affected by a decision of the Designated Authority (such as this one) may
request reasons for it.
Equivalent provisions in the PSL Act: subsections 104(2), (3), (3A) and (5)
Policy change: requirement that the Joint Authority be satisfied that there are
"sufficient grounds" rather than "special circumstances" to warrant giving consent to
surrender in a situation of non-compliance
Clause 234 - Surrender of title
This clause provides that, if the Designated Authority has given a titleholder written
notice under subclause 233(2) of the Designated Authority's consent to a surrender,
then the surrender needs to be effected by the titleholder giving a written notice to the
Designated Authority, followed by publication of a Gazette notice which will mark
the date of effect of the surrender.
Equivalent provision in the PSL Act: subsections 95(2), (2A) and (3) and 104(4)
DIVISION 2--SURRENDER OF SPECIAL PROSPECTING AUTHORITIES AND
ACCESS AUTHORITIES
Clause 235 - Surrender of special prospecting authority
In view of the fact that a special prospecting authority is a short-term title, this clause
allows the surrender of a special prospecting authority to be effected by a simple
written notice from the holder to the Designated Authority. Any issues related to
remedial action in the former authority area may be dealt with under clause 312.
Equivalent provision in the PSL Act: paragraph 111(7)(a)
110
Clause 236 - Surrender of access authority
In view of the fact that an access authority is generally a short-term title, this clause
allows the surrender of a special an access authority to be effected by a simple written
notice from the holder to the Designated Authority. Any issues related to remedial
action in the former authority area may be dealt with under clause 312.
Equivalent provision in the PSL Act: paragraph 112(8)(a)
Part 2.13--Cancellation of titles
DIVISION 1--CANCELLATION OF EXPLORATION PERMITS, PRODUCTION
LICENCES, RETENTION LEASES, INFRASTRUCTURE LICENCES AND PIPELINE
LICENCES
Clause 237 - Grounds for cancellation of title
This clause deals only with medium to long term titles (omitting special prospecting
authorities, access authorities and scientific investigation consents), and sets out the
actions or omissions of titleholders that can lead to cancellation of the title as one of
the possible sanctions available to the Joint Authority. Other sanctions could include
criminal prosecution, refusal to renew the title if and when it expires and, in some
cases, civil action for cost recovery.
Essentially, the grounds for cancellation are failure to comply with the title
conditions, directions and the proposed Act and regulations, plus the Annual Fees Act
and the Royalty Act, to the extent to which they place obligations on the titleholder as
a titleholder.
Equivalent provision in the PSL Act: subsection 105(1)
Policy change: conversion of "3 months" to "90 days"
Clause 238 - Cancellation of title
This clause provides for the Joint Authority to cancel any one of the titles to which
clause 237 applies, but only after a consultation procedure as set out in clause 239,
possibly involving other parties as well as the titleholder. That procedure may or may
not yield information that causes the Joint Authority to come to a different view about
the cancellation proposal.
The Petroleum (Submerged Lands) Act provides that a retention lease cannot be
cancelled in respect of only a part of the lease area, whereas an exploration permit or
a production licence may be partially cancelled in this way. This policy is set to be
reviewed in due course. For the purposes of this Bill, it can be justified on the grounds
that, with the proposed cancellation of a retention lease, it is implausible that the Joint
Authority would be in a situation of conflicting priorities. However, if the cancellation
of an exploration permit or production licence were being contemplated, competing
priorities might plausibly be involved. This might happen if the permittee in question
were thought to be on the verge of a significant discovery, or if the exclusion of the
producer from an area would result in some remnant of petroleum in a pool remaining
111
permanently unrecovered. The issue could then possibly be resolved by cancelling the
permit or licence in respect of only a part of the permit or licence area.
Subclause (2) and the consultation provisions in clause 239 are intended to ensure that
a cancellation may be performed only after careful deliberation and if any identified
mitigating circumstances have been deemed insufficient to prevent it.
Equivalent provision in the PSL Act: paragraphs 105(1)(e), (eaa), (ea) and (f) and
105(2)(d)(i) and subsections 95(2), (2A) and (3)
Clause 239 - Consultation
This clause sets out the consultation procedure that must be undertaken before a title
to which clause 237 applies may be cancelled. The third parties to whom the Joint
Authority may give a copy of the notice could include, for example, a contractor of
the titleholder who has been involved in operations under the title. Submissions from
such parties could, in some cases, cause the Joint Authority to come to a different
view of whether the title should be cancelled.
Equivalent provision in the PSL Act: paragraphs 105(2)(a), (b), (c) and (d)(ii)
Policy change: conversion of "one month" to "30 days"
Clause 240 - Cancellation of title not affected by other provisions
Replicating a provision of the Petroleum (Submerged Lands) Act, this clause provides
that the cancellation of a title and conviction for a related offence are not mutually
exclusive, nor are the cancellation of a title and the liability of a titleholder to pay
overdue moneys to the Commonwealth.
Whenever legislation provides more than one set of possible consequences for a
default or infringement by a person, a question may arise as to whether the person
may be subjected to both sets of consequences or whether the regulator or prosecuting
authority must choose between them. In each case, the answer will depend on a
consideration of the statutory provisions concerned and the nature of the
consequences. The inclusion of this clause eliminates any vestige of uncertainty about
the situation that applies to cancellation and the other matters mentioned above.
Equivalent provision in the PSL Act: section 106
DIVISION 2--CANCELLATION OF SPECIAL PROSPECTING AUTHORITIES
Clause 241 - Cancellation of special prospecting authority
In view of the short duration of a special prospecting authority, and the limits this
places on any consultation procedure being able to run its course, this clause gives the
Designated Authority the power to cancel a special prospecting authority without
consultation procedures of the kind that apply to the titles dealt with under Divisions 1
and 2.
112
Equivalent provision in the PSL Act: paragraph 111(7)(b)
Part 2.14--Other provisions
Clause 242 - Reservation of blocks
Replicating the provisions of the Petroleum (Submerged Lands) Act, the power under
this clause to reserve blocks is provided to cover a situation where the national
interest precludes the block(s) from being the subject of any petroleum title. This
could occur, for example, in the case of a defence need or because of an issue of
environmental sensitivity.
Use of the power is restricted to blocks that are not at the time the subject of an
exploration permit, retention lease or production licence, and in which there is no
infrastructure licence area and in which no pipeline has been constructed. In addition,
vacant blocks that are the subject of a current offer of a title could not be reserved
under this clause unless and until the offer lapsed.
Reserved blocks could be blocks over which a special prospecting authority or access
authority is in force at the time of the declaration. An access authority could be
revoked by the Designated Authority once the block had been reserved, but a special
prospecting authority would remain in force until its expiry date unless it were
surrendered before then or there were grounds for cancelling it, specifically non-
compliance with the conditions to which it was subject.
Precluding vacant blocks by a declaration under this clause from being the subject of
a permit, lease or licence is normally unnecessary because any permit or licence
bidding process over a vacant block cannot occur unless the Joint Authority initiates
it. Moreover, an exploration permit, retention lease, production licence, infrastructure
licence or a pipeline licence cannot be offered except by the Joint Authority.
However, a declaration under this clause does preclude the Designated Authority from
granting a special prospecting authority or access authority over the block. The Joint
Authority does not normally have such a power to override a proposal of the
Designated Authority. A declaration would not affect the Designated Authority's right
to grant a scientific investigation consent over the block.
If a pipeline licence were in force and no construction had yet occurred under it but
the approved route of the pipeline transected a block which was then reserved under
this clause, the declaration would not prevent the pipeline from being built in that
block. However, the declaration would prevent all other activities under the proposed
Act from being carried out in the block, apart from scientific investigations.
The Petroleum (Submerged Lands) Act provides no express provision for cancelling a
declaration made under the equivalent of this clause, and no such provision is
proposed in the Bill. This is because subsection 33(3) of the Acts Interpretation Act
provides:
"Where an Act confers a power to make, grant or issue any instrument (including
rules, regulations or by-laws) the power shall, unless the contrary intention appears,
113
be construed as including a power exercisable in the like manner and subject to the
like conditions (if any) to repeal, rescind, revoke, amend, or vary any such
instrument."
Equivalent provision in the PSL Act: section 18
Clause 243 - Interference with other rights
This clause places any titleholder under the proposed Act under an overriding
responsibility to take into account the needs of other users of the marine environment
and the protection of the environment itself. Additionally, there exist under the
Petroleum (Submerged Lands) Act regulations such as the Management of
Environment Regulations, which will be replicated under the proposed Act. Even if
some conduct of a titleholder were deemed to be technically not in contravention of
those regulations, that titleholder could still be guilty of contravening this clause of
the proposed Act.
Mention of the Native Title Act was inserted into the equivalent provision of the
Petroleum (Submerged Lands) Act in 1995 to include native title rights and interests
among the rights and interests which persons undertaking petroleum operations under
the Act must respect and not unduly interfere with. This does not mean that native
title necessarily extends into any offshore area. Whether it does or not, this provision
is still relevant because the location of some offshore petroleum facilities makes it
possible that supply vessels steaming from a port to the facility could pass through
coastal waters that have significance in terms of native title rights and interests.
Section 4D of the Crimes Act 1914 provides that the penalty shown is the maximum
penalty. However, subsection 4B(3) of the Crimes Act provides: "Where a body
corporate is convicted of an offence against a law of the Commonwealth, the court
may, if the contrary intention does not appear and the court thinks fit, impose a
pecuniary penalty not exceeding an amount equal to 5 times the amount of the
maximum pecuniary penalty that could be imposed by the court on a natural person
convicted of the same offence."
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: section 124
Clause 244 - No conditions about payment of money
This clause provides that conditions must not be used to impose cost recovery or
taxation on titleholders. Separate enactments exist for this purpose, ie the Offshore
Petroleum Annual Fees Bill and the Offshore Petroleum Registration Fees Bill, and
the level of fees imposed is set under regulations, bringing them under Parliamentary
scrutiny.
114
In the Petroleum (Submerged Lands) Act, payments under the Royalty Act have been
made an exception to this rule, ie it is a condition of a title to which the Royalty Act
applies that royalty payments be made as set out in that Act. This serves a purpose in
strengthening the enforcement regime in respect of royalty obligations, as failure to
pay royalty will accordingly constitute a breach of title conditions, ie grounds for
refusing to renew the title. There is also the possibility of court action to enforce the
payment of unpaid royalty under clause 344 or cancellation of the title under clause
237.
Equivalent provision in the PSL Act: section 139
Clause 245 - Certain portions of blocks to be blocks
This clause has relevance in at least two different situations that may arise under the
proposed Act. One of these was described in the 1967 explanatory notes to the
Petroleum (Submerged Lands) Act, under which the Commonwealth inherited a
number of permit areas that had been previously managed under State legislation. In
respect of section 149 of the Act, the explanatory notes made, among other things, the
following points:
"The majority of existing permits do not conform to any regular pattern and the
boundaries in many cases do not follow lines of latitude and longitude. For instance,
some permits are expressed as having a boundary so many miles from the general line
of the coastline.
The result of this is that in these cases existing permit boundaries cut across the
graticular system of this Bill. The effect of sub-clause (1) is that where a title
boundary cuts a block in two, then each part of the block constitutes a block for the
purposes of the Bill.
[This provision] deals with the case where parts of graticular blocks revert to the
Crown. In this case the Designated Authority is given discretion to amalgamate the
parts so as to form whole graticular blocks. The effect is that the Designated
Authority may, as it were, graft on a part of a block to an existing permit or licence."
That was the situation in 1967, and, to a point, it is so even now. A small number of
current titles cover areas the boundaries of which do not fully conform with the
5 minute x 5 minute grid, and, in each case, these are derived from early exploration
permits.
If another Commonwealth permit, lease or licence is granted covering the remainder of
the clause 16 block in question, subclause 245(3) allows a combining of the blocks in
the clause 16 block when one of the titles ceases to have effect. The small policy
change that is proposed in paragraph 245(3)(b) is that if the clause 16 block also
contains vacant area, referred to in paragraph (2)(b) as "the remaining portion or
portions of the section 16 block", then that area can also be included in the
amalgamation of blocks. This is something that section 149 of the Petroleum
(Submerged Lands) Act does not appear to allow.
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The second situation could arise if the scenario postulated under clause 246
eventuates, ie there is a change to, or reassessment of the location of, the baseline of
Australia's territorial sea. The net result could be that the baseline is determined to lie
further landward than previously understood, so that more of the seabed comes under
Commonwealth jurisdiction. If a Commonwealth permit, lease or licence area in a
particular block is in contact with the former offshore area - coastal waters boundary,
then a sliver of area still under a State/Northern Territory title could appear on the
Commonwealth side touching the Commonwealth title area in that graticular section.
If the State/Northern Territory title were prescribed as a "prescribed instrument", then
that sliver under the State/Northern Territory title would constitute a block and the
remainder of the graticular section, forming part of the Commonwealth title, would
constitute another block.
When the State/Territory title ceased to have effect, if the Commonwealth title were
still in force, subclause 245(3) provides that the sliver of area could be combined with
the block to which the Commonwealth title applies.
Equivalent provision in the PSL Act: section 149
Technical change: references to "this Act" rather than to "this Part" (recognising that
the Schedule 4 content under this Bill is not in a schedule under the Petroleum
(Submerged Lands) Act)
Policy change: that any vacant area (not merely area that has just been vacated) in a
graticular section may be amalgamated with a title area in that graticular section
Clause 246 - Changes to, or reassessment of the location of, the baseline of
Australia's territorial sea
This clause refers to the fact that cartographers have determined coordinates for the
line representing the 3 nautical mile outer limit of coastal waters off the States and
Northern Territory. This is the inner boundary of waters to which this Act applies.
The United Nations Convention on the Law of the Sea has set out provisions for
defining the position of the territorial sea baseline from which this 3 nautical mile line
is measured. In many places, the baseline is the low water mark along the coast. In
localities where the coastline is deeply indented and cut into, or if there is a fringe of
islands along the coast in its immediate vicinity, Article 7 of the Convention provides
that the method of "straight" baselines joining appropriate points may be employed in
drawing the baseline.
From this one can deduce that the territorial sea baseline can change its position. This
could occur because of geological processes, such as the movement of sand on a
beach, or because the position of the "straight" baseline is reinterpreted for some
reason, such as a new precedent set in an international law case or because new data
have been obtained enabling a more precise determination than the previous one.
In that situation, the calculated coordinates of the 3 nautical mile line will also shift,
leaving a sliver of area to be added either to what were previously the State or
Northern Territory coastal waters or what was previously the Commonwealth offshore
area. This clause sets out the way that strip of area will be dealt with if it happens to
be the subject of a State or Northern Territory petroleum title or a Commonwealth
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petroleum title. Among other things, this ensures that, if a pipeline constructed in an
offshore area under Commonwealth jurisdiction happens to run for some distance
parallel to the 3 nautical mile line in the vicinity of that line, there will be no
complications in relation to its status as a licensed pipeline if the position of the
baseline changes.
Equivalent provision in the PSL Act: section 5AAA
Clause 247 - Notification of discovery of petroleum
This clause requires the immediate reporting of petroleum discoveries in exploration
permit or retention lease areas. This will ensure that the Designated Authority has the
full range of options open to it, such as instructing the permittee or lessee to collect a
specific type of core, cutting or sample from the seabed when the drilling operations
are still on-going.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provisions in the PSL Act: sections 34 and 38J
Clause 248 - Property in petroleum
This clause gives a permittee, lessee or licensee title to any petroleum recovered under
the exploration permit, retention lease or production licence. This establishes, among
other things, the identity of the party that is liable for the payment of petroleum
related taxation, whether under the proposed Royalty Act or the Petroleum Resource
Rent Tax Act, and the point in time when the wealth-producing asset passes into that
party's possession.
However, while the quantity of petroleum recovered from a particular pool is an
objective fact, the proportion of that petroleum that is deemed to have been recovered
in a particular title area and become the property of that titleholder could be
determined by the provisions regarding the apportionment of petroleum recovered
from adjoining title areas set out in clauses 34 to 37.
This clause means that the permittee, lessee or licensee also owns any hydrogen
sulphide, nitrogen, helium or carbon dioxide that is recovered with the hydrocarbon
product (the definition of "petroleum" in clause 6 refers) and may market any of these
gases, if commercially viable. On the other hand, depending on other legislation,
ownership of these gases could place the permittee, lessee or licensee under
responsibilities, for example in relation to their safe and non-polluting disposal.
Equivalent provision in the PSL Act: section 127
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Clause 249 - Compensation for acquisition of property
This clause refers to paragraph 51(xxxi) of the Australian Constitution, which
provides:
"The Parliament shall, subject to this Constitution, have power to make laws for the
peace, order, and good government of the Commonwealth with respect to ... (t)he
acquisition of property on just terms from any State or person for any purpose in
respect of which the Parliament has the power to make laws".
If any of the provisions referred to in paragraph (1)(a) of this clause represents an
acquisition of property otherwise than on just terms, then this clause provides that just
terms compensation is to be payable to ensure the validity of the provision.
This clause provides a safety-net. It ensures that, in the event that any of the
provisions referred to in paragraph (1)(a) represent an acquisition of property
otherwise than on just terms, the validity of those provisions is not jeopardised.
Equivalent provision in the PSL Act: subsection 103A(5)
Policy changes: inclusion of just terms compensation if subclause 139(1) (duration of
production licence), 140(4), 169(4), 183(4) (termination of production, infrastructure
and pipeline licences if no activity for 5 years) or 229 (suspension of exploration
permittee's or retention lessee's rights) represents an acquisition of property otherwise
than on just terms; conferral of jurisdiction on the Federal Court
Chapter 3 - Registration and dealings
Part 3.1--Introduction
Clause 250 - Simplified outline
This clause gives a summary of Chapter 3 covering registration and dealings. This
summary does not form part of the operative text of the proposed Act.
Equivalent provision in the PSL Act: nil.
Clause 251 - Definition
This clause defines the use of the term `title' for this Chapter to mean an exploration
permit, retention lease, production licence, infrastructure licence, pipeline licence or
access authority.
Two other authorisations under the proposed Act are not included in the definition of
a `title', ie a special prospecting authority and a scientific investigation consent. This
is because a special prospecting authority cannot be transferred or be the subject of a
dealing and no registration provisions apply to scientific investigation consents in
view of their non-commercial character.
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Although, as set out in Part 3.2, special prospecting authorities do need to be
registered, the exclusion of special prospecting authorities from the ambit of the term
"title" serves an editorial purpose in that all discussion in this Chapter about transfers
and dealings is irrelevant to special prospecting authorities.
Equivalent provision in the PSL Act: section 75.
Clause 252 - Dealing--series of debentures
For reasons of administrative efficiency, this clause provides for all dealings forming
a part of the issue of a series of debentures in relation to a particular title to be treated
as one dealing for the purposes of this Chapter.
Equivalent provision in the PSL Act: subsection 81(7).
Part 3.2--Register of titles and special prospecting authorities
Clause 253 - Register to be kept
This clause requires that the Designated Authority in respect of an offshore area
maintain a Register of titles and special prospecting authorities.
The Register is, and will be, essentially a collection of memorials or entries about
specified events and facts. It can include copies of documents rather than memorials
or entries detailing information in them. On the other hand, not every document that
the Designated Authority is required to retain under this Chapter strictly forms part of
the Register.
Equivalent provision in the PSL Act: subsection 76(1)
Clause 254 - Entries in Register--general
This clause requires that the Designated Authority must enter certain details in the
Register as prescribed in the table, and in subclause (3), in respect of each title or
special prospecting authority. For example, the name of the holder of a title or special
prospecting authority must be specified in the Register. Additionally, under subclause
(5), the memorial or copy entered in the Register must show a memorandum of the
date of that entry in the Register.
This clause also rectifies a drafting anomaly in the equivalent provision of the
Petroleum (Submerged Lands) Act relating to information about retention leases and
special prospecting authorities that may be entered in the Register.
Equivalent provision in the PSL Act: subsections 76(2), (3), (4) and (6)
Policy change: that the Designated Authority be permitted to enter in the Register
such further matters as the Designated Authority thinks proper and expedient, in the
public interest, about the holder and conditions of retention leases and special
prospecting authorities
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Clause 255 - Entry in Register--cessation, revocation or expiry of title
This clause requires that information about certain events signifying the coming to an
end of a title must be entered in the Register. This clause applies only to events that
are not accompanied by the issue of a specific instrument bringing about that result.
If a title ceases to have effect because of a surrender, cancellation or termination, each
of those events, plus the revocation of a retention lease in the situation envisaged in
clause 134, is realised by means of a notice or instrument. The provisions about
entering those documents in the Register are set out in subclause 254(3).
Equivalent provision in the PSL Act: section 77
Part 3.3--Transfer of titles
Clause 256 - Approval and registration of transfers
This clause requires the registration of the transfer of a title before the transfer can
have any effect. This clause enables the Designated Authority to vet any proposed
transfer and, given the provisions of the proposed Registration Fees Act, indirectly
enables the imposition of a registration fee, which is a payment in the nature of a tax.
Equivalent provision in the PSL Act: subsection 78(1)
Clause 257 - Application for approval of transfer
This clause sets out the procedure for seeking approval of a transfer. It is sufficient if
one of the parties makes the application. The concurrence of the other party is
evidenced by the documents that must accompany the application, as set out in clause
258.
Equivalent provision in the PSL Act: subsection 78(2)
Clause 258 - Documents to accompany application
This clause describes the documents and copies of them that are, or may be, required
to accompany a transfer approval and registration application and the information that
those documents must contain.
The reference in paragraph (a) to using an instrument of transfer in the prescribed
form is a reference to the proforma currently set out in Schedule 1 to the Petroleum
(Submerged Lands) Regulations 1985, which attaches to Regulation 3 of those
Regulations. This proforma includes the wording that the transfer is in respect of "all
right, title and interest" in the title. This ensures that the whole title is transferred from
all the existing registered titleholders to all the intended titleholders. The requirement
will continue to apply under the proposed new Act.
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Paragraph (b) refers to the possibility that the transferee or one or more of the
transferees may not be a registered holder of the title being transferred, in which case
the information set out in the rest of the paragraph is required. This paragraph
therefore implies that a transferee could be a registered holder of the title. This would
be the case if a consortium of, say, three companies held a title and there were a
proposal to transfer the title to a consortium consisting of two of those companies. In
this scenario, the technical qualifications of the transferees and the technical advice
and financial resources available to them would already be known to the Designated
Authority and would not need to be the subject of a document setting out this
information.
Equivalent provision in the PSL Act: subsection 78(3)
Policy change: that, because the Joint Authority is no longer involved in the transfer
registration process (as it was before 2001), the number of copies required of all
documents submitted for transfer approval be changed from two to one
Clause 259 - Time limit for application
This clause provides that, unless the Designated Authority allows a longer period in
cases where he or she finds sufficient grounds for doing so, an application for
approval of a transfer must be lodged within 90 days after the last party to the transfer
executed the instrument of transfer. The time limit is of relevance so as to keep the
Register as current as possible and to protect the interests of investors and potential
investors.
Equivalent provision in the PSL Act: subsection 78(4)
Policy change: conversion of "3 months" to "90 days"; that the Designated Authority
must be satisfied that there are "sufficient grounds" rather than "special
circumstances" to warrant extending the period
Clause 260 - Date of application to be entered in Register
This clause provides that the Designated Authority must enter a notation in the
Register of the date of lodgement of the application for the approval of a transfer, and
other details as it considers appropriate. Among other things, this is to ensure there is
no uncertainty about whether there has been compliance with the requirements of
clause 259.
Equivalent provision in the PSL Act: subsection 78(5)
Clause 261 - Approval of transfer
This clause provides that the Designated Authority must either approve or refuse to
approve a transfer, and in either case, the Designated Authority must provide a written
notice to the applicant. This action is to be taken only after the Designated Authority
has considered the transfer application. This point does not need to be expressly made
in the operative text of the clause as it is legally incorrect under administrative law to
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apply a policy rigidly. Where the Designated Authority refuses to approve the
transfer, a notation of the refusal must be made in the Register.
Equivalent provision in the PSL Act: subsections 78(6), (7) and (11)
Clause 262 - Registration of transfer
This clause requires that, on approval of a transfer of title, the Designated Authority
must endorse the approval on the original and copy of the instrument of transfer.
This does not yet amount to registration of the transfer. That registration will occur
only on payment of the registration fee as per the proposed Offshore Petroleum
(Registration Fees) Act. That fee will not normally be forwarded with the application
as the applicant cannot be certain that transfer will be approved and, in any case, the
level of the fee payable will not always be obvious to the applicant at the time of
lodging the application. Accordingly, this clause treats it as the normal procedure for
the Designated Authority to advise the applicant of the amount of the registration fee
and, after its payment, to register the transfer.
Replicating the provisions of the Petroleum (Submerged Lands) (Registration Fees)
Act, the registration fee will be broadly along the lines of State or Northern Territory
stamp duty, but will exist specifically in lieu of stamp duty. This is dealt with in more
detail in the explanatory memorandum to the Offshore Petroleum (Registration Fees)
Bill.
The transfer is taken to be registered when an entry to that effect is made in the
Register and the transferee then becomes the registered holder of the title. The
endorsed copy of the instrument of transfer that is retained by the Designated
Authority is not strictly part of the Register but it is to be made available for
inspection by the public in the same way as is the Register.
Equivalent provisions in the PSL Act: subsections 78 (9), (10) and (12)
Clause 263 - Instrument of transfer does not create an interest in the title
This clause reinforces the same point as clause 256, ie that the registration of the
transfer of a title is necessary before the transfer can have any effect.
Equivalent provision in the PSL Act: subsection 78(13)
Clause 264 - Limit on effect of approval of transfers
This clause clarifies that any transfer that is approved by the Designated Authority is
not given any force, effect or validity that it would not have had if this Chapter had
not been enacted. The onus is on the applicant to ensure the legality of the transfer
and its effect in law, for example, in contract law.
Equivalent provision in the PSL Act: section 83
Part 3.4--Devolution of title
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Clause 265 - Application to have name entered on the Register as the holder of a title
This clause is based on similar clauses found in Real Property Acts. Under this clause,
a party upon whom the rights of the registered holder of a title have devolved by
operation of law may apply in writing to have its name entered in the Register in place
of the original registered holder.
Equivalent provision in the PSL Act: subsection 79(1)
Clause 266 - Entry of name in the Register
This clause sets out the procedure that the Designated Authority must follow when an
application has been made under clause 265. The fee that is payable for registering
rights to a title that have devolved on the applicant by operation of law is to be
prescribed in regulations under the proposed Act (rather than the proposed
Registration Fees Act) and will serve only to recover costs.
Equivalent provision in the PSL Act: subsection 79(2)
Part 3.5--Change in name of company
Clause 267 - Application to have new name entered on the Register
This clause provides that, where a company is the registered holder of a title and it has
changed its name, it may apply in writing to have its new name registered in the
Register in relation that title.
This means that, if the one company is the registered holder of two or more titles,
separate applications would need to be lodged (possibly on the same document) for
the name change to be registered in relation to all of them.
Equivalent provision in the PSL Act: subsection 79(3)
Clause 268 - Alteration in the Register
This clause sets out the procedure that the Designated Authority must follow when an
application has been made under clause 267. The fee that is payable for registering the
new name of a company in relation to a title is to be prescribed in regulations under
the proposed Act (rather than the proposed Registration Fees Act) and will serve only
to recover costs.
Equivalent provision in the PSL Act: subsection 79(3)
Part 3.6--Dealings relating to existing titles
Clause 269 - Dealings to which this Part applies
This clause defines the various types of commercial dealings and agreements to which
this Part applies.
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Equivalent provision in the PSL Act: subsection 81(1)
Clause 270 - Approval and registration of dealings
This clause requires the registration of a dealing before it can have any force. This
clause enables the Designated Authority to vet any proposed dealing and, given the
provisions of the proposed Registration Fees Act, indirectly enables the imposition of
a registration fee, which is a payment in the nature of a tax.
Equivalent provision in the PSL Act: subsection 81(2)
Clause 271 - Application for approval of dealing
This clause sets out the procedure for seeking approval of a dealing. It is sufficient if
one of the parties to the dealing makes the application. The concurrence of the other
party or parties is evidenced by the documents that must accompany the application,
as set out in clause 272.
If a dealing relates to two or more titles, separate applications are required if approval
of the dealing is sought in relation to each title.
Equivalent provision in the PSL Act: subsection 81(3)
Clause 272 - Documents to accompany application
This clause describes the documents that must or could accompany an application for
the approval and registration of a dealing.
The purpose of the supplementary instrument that may be lodged by the applicant is
to provide certain prescribed details about the dealing so that, if the dealing is
approved, a member of the public may access this instrument instead of seeing a copy
of the actual instrument evidencing the dealing. Usually, the applicant would draw up
a supplementary instrument if the instrument evidencing the dealing contained
information that the applicant wanted to keep confidential, ie information that would
not need to be revealed in the supplementary instrument.
Under the Petroleum (Submerged Lands) Act, the details that must appear in a
supplementary instrument are prescribed in Regulation 4 of the Petroleum
(Submerged Lands) Regulations 1985. These requirements include specification of the
effect, upon registration, of the dealing in the same terms as set out under clause 269,
and the provision of details about the interests in the title of all parties to the dealing
before and after registration, assuming the dealing is approved. The same
requirements are expected to be prescribed under the proposed new Act.
Subclause (5) refers to section 263 of the Corporations Act 2001. In summary, this
section provides that, where a company creates a charge, the company must, within 45
days, lodge with the Australian Securities and Investments Commission a notice in
the prescribed form setting out certain particulars, and, depending on the type of
charge, various originals or copies of instruments. For convenience, this subclause
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provides that a copy of the set of documents lodged under that Act can be lodged for
registration purposes under the proposed Act and will have the same standing as an
instrument evidencing the dealing would have in any other case. The copy of this set
of documents may likewise be accompanied by a supplementary instrument if the
company deems that not all the information provided to the Australian Securities and
Investments Commission should be made publicly accessible.
Equivalent provisions in the PSL Act: subsections 81(4), (4A) and (8).
Policy change: that, because the Joint Authority is no longer involved in the dealing
registration process (as it was before 2001), the number of copies required of
documents submitted for dealing approval be changed from two to one, or, in the case
of documents required to be lodged with the Australian Securities and Investments
Commission, from three to two
Clause 273 - Timing of application
This clause provides that, unless the Designated Authority allows a longer period in
cases where he or she finds sufficient grounds for doing so, an application for
approval of a dealing must be lodged within 90 days after the last party to the dealing
executed the instrument evidencing the dealing. The time limit is of relevance so as to
keep the Register as current as possible and to protect the interests of investors and
potential investors.
Equivalent provision in the PSL Act: subsection 81(5)
Policy change: conversion of "3 months" to "90 days"; that the Designated Authority
must be satisfied that there are "sufficient grounds" rather than "special
circumstances" to warrant extending the period
Clause 274 - Application date to be entered in Register
This clause provides that the Designated Authority must enter a notation in the
Register of the date of lodgement of the application for the approval of a dealing, and
other details as it considers appropriate. Among other things, this is to ensure there is
no uncertainty about whether there has been compliance with the requirements of
clause 273.
Equivalent provision in the PSL Act: subsection 81(9).
Clause 275 - Approval of dealing
This clause provides that the Designated Authority must either approve or refuse to
approve a dealing, and in either case, the Designated Authority must provide a written
notice to the applicant. Where the Designated Authority refuses to approve the
dealing, a notation of the refusal must be made in the Register. These provisions are
consistent with administrative law principles.
An application to approve a dealing would have to be refused if there were non-
compliance with clause 284. This refers to the fact that parties can negotiate a dealing
over a title that is not yet in existence. If and when the title does come into existence
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and approval is sought to register the dealing, whether it can be approved depends on
compliance with the requirements indicated in clause 284.
Equivalent provision in the PSL Act: subsections 81(6), (10), (11) and (14)
Policy change: that, having received an application for approval of a dealing, the
Designated Authority must (rather than may) approve or refuse to approve the dealing
Clause 276 - Entry of dealing in Register
This clause requires that, immediately upon approval of a dealing, the Designated
Authority must endorse the approval on the original and copy of the instrument
evidencing the dealing, or on two copies, if that was what was lodged.
This does not yet amount to registration of the dealing. That registration will occur
only on payment of the registration fee as per the proposed Registration Fees Act.
That fee will not normally be forwarded with the application as the applicant cannot
be certain that the dealing will be approved and, in any case, the applicant will not
always know the level of the fee at the time of lodging the application. Accordingly,
this clause treats it as the normal procedure for the Designated Authority to advise the
applicant of the amount of the registration fee and, after its payment, to register the
dealing.
The dealing is taken to be registered when an entry to that effect is made in the
Register. Replicating the provisions of the Petroleum (Submerged Lands)
(Registration Fees) Act, the registration fee will be broadly along the lines of State or
Northern Territory stamp duty, but will exist specifically in lieu of stamp duty. This is
dealt with in more detail in the explanatory memorandum to the Offshore Petroleum
(Registration Fees) Bill.
Equivalent provision in the PSL Act: subsection 81(12)
Policy change: that the Designated Authority must endorse a memorandum of
approval on the instruments lodged immediately upon approval of the dealing
Clause 277 - Retention, inspection and return of instruments
This clause prescribes the procedure that the Designated Authority must adopt after
he/she makes an entry in the Register of the approval of a dealing.
The significance of a supplementary instrument and, if used, why a copy of it, instead
of the copy of the instrument evidencing the dealing, must be made available for
public inspection, are explained in the note to clause 272.
The purpose of returning to the applicant, with an appropriate endorsement, the
instrument evidencing the dealing and, where provided, the supplementary
instrument, is to provide certification to the applicant that the dealing has been
approved and registered.
Equivalent provision in the PSL Act: subsection 81(13)
Clause 278 - Strict compliance with application provisions not required
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This clause ensures that, if the Designated Authority fails to comply with any of the
requirements of this Part, the approval and registration of a dealing is not rendered
ineffective.
Equivalent provision in the PSL Act: subsection 81(13A)
Clause 279 - Limit on effect of approval of dealing
This clause clarifies that any dealing that is approved by the Designated Authority is
not given any force, effect or validity that it would not have had if this Chapter had
not been enacted. The onus is on the applicant to ensure the legality of the dealing
and its effect in law, for example, in contract law.
Equivalent provision in the PSL Act: section 83
Part 3.7--Dealings in future interests
Clause 280 - Provisional application for approval of dealing
This clause refers to the possibility that if, for example, a party holding an exploration
permit has applied for a production licence which has not yet been granted, that party
may, in the meantime, conclude a dealing with another party about equity in the
licence in anticipation that the licence will be granted. For this clause to apply, the
dealing would have to be of a type that, in other circumstances, would be covered by
Part 3.6.
In such cases, but subject to timing conditions set out clause 282, this clause enables a
party to the dealing to make a provisional application for approval of the dealing in
the same way as clause 271 enables an application to be lodged for the approval of a
dealing in relation to a title that already exists.
The main benefit of lodging a provisional application for approval of a dealing is that,
if and when the title is granted, the applicant can expect an earlier decision from the
Designated Authority about the dealing than would otherwise have been possible.
Equivalent provision in the PSL Act: subsection 81A(1)
Clause 281 - Documents to accompany provisional application
This clause requires or permits the same documents and copies to accompany a
provisional application for approval of a dealing as would be required under clause
272 if the dealing were in relation to a title that already exists.
Equivalent section in the PSL Act: subsection 81A(2)
Policy change: that, because the Joint Authority is no longer involved in the dealing
registration process (as it was before 2001), only one additional copy (rather than two
copies) is required of the provisional application, the instrument evidencing the
dealing and any supplementary instrument, or, in the case of documents required to be
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lodged with the Australian Securities and Investments Commission, two copies
(rather than three)
Clause 282 - Timing of provisional application
This clause sets out the timeframe within which a provisional application for approval
of a dealing may be made. In no case except that of an access authority may a
provisional application be made unless and until an offer document has been given to
the applicant. In the case of an access authority, the provisional application may be
lodged any time after the application for the authority is submitted. This is because,
for reasons of administrative efficiency, the process for obtaining an access authority
does not include an offer document stage. In all cases, the provisional application for
approval of a dealing must be made before the day on which the title is granted.
This clause makes no stipulations about the date on which the dealing might have
been concluded between the parties. That commercial transaction could have occurred
before the title application was lodged, or after it was lodged but before an offer
document for the title is issued, or could occur after the offer document is issued.
Equivalent section in the PSL Act: subsections 81A(1) and (4)
Clause 283 - Provisional application to be treated as an application under section 271
when the title comes into existence
This clause provides that a provisional application for approval of a dealing, lodged in
accordance with the abovementioned requirements, will become, from the date of
grant of the title, an actual application for approval of the dealing under clause 271.
Equivalent provision in the PSL Act: subsection 81A(3)
Clause 284 - Limit on approval of dealing
This clause provides an alternative to lodging a provisional application for approval of
a dealing, assuming the dealing was concluded before the title came into effect
(otherwise, the approval procedure would be as set out in Part 3.6).
If no provisional application has been made, then, unless the Designated Authority
allows a longer period in special circumstances, an application for approval of the
dealing must be lodged within 90 days of the title coming into effect. This differs
from the arrangement noted under clause 273 in that the date when the instrument
evidencing the dealing was last executed by a party to the dealing is not relevant to
the timeframe within which the registration application must be lodged.
On the other hand, if a provisional application has been lodged, the parties to the
dealing need do nothing more when the title comes into effect than await advice of the
Designated Authority's decision. If the decision is affirmative, the parties will then
need to remit the required registration fee in order to bring the registration of the
dealing into effect.
Equivalent provision in the PSL Act: subsection 81(6).
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Policy change: conversion of "3 months" to "90 days"
Part 3.8--Correction and rectification of register
Clause 285 - Corrections of clerical errors or obvious defects
To protect the interests of investors and potential investors, changing any existing
record in the Register is an action that must not be taken lightly. This clause is the
only provision that allows the Designated Authority to make alterations to the
Register without first publishing the intention or as a result of the matter having been
heard by a court. This clause applies only in the event that there is a clerical error or
an obvious defect in the Register.
Equivalent provision in the PSL Act: subsection 87A(1).
Clause 286 - General power of correction of Register
This clause provides that the Designated Authority may make correcting entries that
ensure the accurate representation of interests and rights in relation to a title. In all
cases, even if there is a written application from a titleholder for this to occur, the
Designated Authority must publish in the Gazette a notice setting out the proposed
alteration and inviting submissions from members of the public.
If one or more persons make submissions within the specified period (at least 45
days), the Designated Authority must consider them. If the Designated Authority
decides to make an alteration to the Register, whether or not submissions have been
received and whether or not the alteration is identical to the one earlier proposed,
another Gazette notice must be published setting out the final form of the alteration.
These procedures are proposed to protect the interests of investors and potential
investors.
Equivalent provisions in the PSL Act: subsections 87A(2), (3) and (4)
Policy change: that gazettal of the final form of the alteration is required even when
no submissions have been received
Clause 287 - Rectification of Register
This clause refers to the kinds of grievances that a person may have in relation to the
Register and provides that the person may seek an order for rectification of the
Register by an application to the Federal Court or the Supreme Court of the State or
Territory to which the relevant offshore area relates.
Territory Supreme Courts would include the Northern Territory Supreme Court and
the Norfolk Island Supreme Court. Under section 12 of the Ashmore and Cartier
Islands Acceptance Act 1933, the Northern Territory Supreme Court would have
jurisdiction in relation to a Register entry pertaining to a title relating to the offshore
area of the Territory of Ashmore and Cartier Islands.
Equivalent provision in the PSL Act: section 88
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Policy change: conferral of jurisdiction on the Federal Court, in addition to the
Supreme Courts
Part 3.9--Information-gathering powers
Clause 288 - Designated Authority may obtain information from applicants
This clause refers to all types of applications that companies or individuals can make
under this Chapter in relation to the Register and allows the Designated Authority,
when assessing the application in question, to require the applicant to provide such
additional information as seems necessary or advisable.
Among other things, this provision, and the penalties prescribed under it, are intended
to maximise the ability of the Designated Authority to properly vet the credentials of
parties seeking to register an interest in a title and, where applicable, to correctly
calculate the payable registration fee.
Current Commonwealth legal policy stipulates that, where a law empowers a
regulator to give to a person an instrument requiring compliance with an instruction,
the regulator should specify in the instrument a minimum 14 day period for that
compliance and the penalty or penalties that apply to non-compliance. Subclauses (3)
and (6) have been inserted to reflect this policy.
Section 137.1 of the Criminal Code refers to information given to a Commonwealth
entity, given to a person who is exercising powers or performing functions under, or
in connection with, a law of the Commonwealth or given in compliance or purported
compliance with a law of the Commonwealth. In these situations, a person is guilty of
an offence punishable by 12 months imprisonment if the person gives the information
knowing that it is false or misleading or knowing that it omits any matter or thing
without which the information is misleading.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provisions in the PSL Act: subsections 84(1), (1B), (1C) and (2)
Technical change: that the Designated Authority may require the applicant to give
information to the Designated Authority "within the period and in the manner
specified" in the notice
Policy changes: that the Designated Authority may require information to be
produced within a period no shorter than 14 days after the date of the written notice;
that the Designated Authority must set out in the notice given to the person or
company the penalties that could follow from failure to provide information as
required, or from knowingly giving false or misleading information
Clause 289 - Designated Authority may obtain information from a party to an
approved dealing
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This clause enables the Designated Authority to seek such information as seems
necessary or advisable from a person who is party to a registered dealing. Among
other things, this provision is proposed so that the Register is kept up to date,
reflecting alterations in relevant interests or rights over time.
Current Commonwealth legal policy stipulates that, where a law empowers a
regulator to give to a person an instrument requiring compliance with an instruction,
the regulator should specify in the instrument a minimum 14 day period for that
compliance and the penalty or penalties that apply to non-compliance. Subclauses (3)
and (6) have been inserted to reflect this policy.
The significance of section 137.1 of the Criminal Code to matters such as this is set
out under clause 288.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provisions in the PSL Act: subsections 84(1A), (1C) and (2)
Technical change: that the Designated Authority may require the person to give
information to the Designated Authority "within the period and in the manner
specified" in the notice
Policy changes: that the Designated Authority may require information to be
produced within a period no shorter than 14 days after the date of the written notice;
that the Designated Authority must set out in the notice given to the person or
company the penalties that could follow from failure to provide information as
required, or from knowingly giving false or misleading information
Clause 290 - Production and inspection of documents
This clause, like clause 288, refers to all types of applications that companies or
individuals can make under this Chapter in relation to the Register. This clause
enables the Designated Authority, when assessing the application in question, to
require the applicant to produce to the Designated Authority any documents held by
the applicant that may be relevant to the application.
The reasons why the Designated Authority might use this power are essentially the
same as the reasons why the Designated Authority might use the power set out under
clause 288.
Current Commonwealth legal policy stipulates that, where a law empowers a
regulator to give to a person an instrument requiring compliance with an instruction,
the regulator should specify in the instrument a minimum 14 day period for that
compliance and the penalty or penalties that apply to non-compliance. Subclauses (3)
and (7) have been inserted to reflect this policy.
Section 137.2 of the Criminal Code refers to documents produced in compliance or
purported compliance with a law of the Commonwealth. In this situation, a person is
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guilty of an offence punishable by 12 months imprisonment if the person produces a
document knowing that the document is false or misleading in a material particular.
Under subclause (4), failure by a person to produce or make available a document as
required under subclause (2) is an offence of strict liability. This means the prosecution
does not have to prove intention. The offence created by the statutory obligation in this
subclause could be difficult to establish if the prosecution were required to prove
intention with respect to an omission to do the things required. Accordingly, an
obligation of this type is usually imposed by the legislature with the intention that strict
liability should apply. Further details about strict liability are set out in the note about
clause 307.
The offence provision in subclause (6) does not specify a fault element. Under
section 5.6 of the Criminal Code, if an offence provision does not specify a fault
element and if the physical element of the offence consists only of conduct, the fault
element is intention. In other words, for a person to be found guilty of contravening
this subclause, the prosecution would have to prove intention.
Equivalent provisions in the PSL Act: subsections 85(1), (1A), (2) and (4)
Technical change: that the Designated Authority may require the person to produce or
make documents available to the Designated Authority "within the period and in the
manner specified" in the notice
Policy changes: that the Designated Authority may require a document to be
produced within a period no shorter than 14 days after the date of the written notice;
that the Designated Authority must set out in the notice given to the person or
company the penalties that could follow from failure to provide a document as
required, or from providing a false or misleading document
Clause 291 - Designated Authority may retain documents
This clause, like clause 414, adds to the proposed Act some provisions related to
information-gathering involving documents. These provisions do not appear in the
Petroleum (Submerged Lands) Act but are normal in more recently drafted
Commonwealth Acts.
Equivalent provision in the PSL Act: nil.
Policy changes: that the Designated Authority may take possession of a produced
original document for as long as necessary but must provide the person or company to
whom it belongs a certified true copy which will have the same status as the original
in all courts and tribunals, and, until that copy is provided, must give the person or
company reasonable access to the original document
Part 3.10--Other provisions
Clause 292 - Designated Authority etc. not concerned with the effect of instrument
lodged under this Chapter
This clause complements clauses 264 and 279 by clarifying that any instrument
lodged with the Designated Authority for any purpose under this Chapter takes effect
according to its own terms.
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This provision is intended to relieve the Designated Authority of responsibility for
verifying that the instrument has the effect in law that it purports to have. Of course, it
may be necessary for the Designated Authority to make some inquiry into the legal
effect of an instrument in order to determine its effect in relation to the object and
purposes of the Act. Subject to this, the legal effect of an instrument is a matter for the
courts and not for the Designated Authority or Joint Authority to determine.
The Joint Authority could be indirectly involved with issues arising from documents
lodged for registration, for example if an application for a title renewal is lodged and
some question is raised about the identity of the applicant.
Equivalent provision in the PSL Act: section 83
Clause 293 - True consideration to be shown
This clause refers to the fact that the amount of the registration fee payable on a
transfer or dealing depends on the value of the consideration involved. This clause is
intended to ensure that an instrument of transfer or an instrument evidencing a dealing
will set out the true consideration for the transfer or dealing and any other factors that
may affect the level of the registration fee.
The substance of section 137.2 of the Criminal Code is set out under clause 290.
Equivalent provision in the PSL Act: subsection 82(1)
Policy change: that there be no equivalent of subsection 82(1A) of the Petroleum
(Submerged Lands) Act establishing strict liability as that provision is related to the
former paragraph 9.3(2)(b) of the Criminal Code, which has been repealed
Clause 294 - Making a false entry in a Register
This clause sets out the offence that applies to knowing involvement in making a false
entry in the Register. The offence applies equally to an official working with the
Register, a member of the public examining the Register who interferes with the
Register and an applicant under this Chapter who communicates false information to
the Designated Authority for entry in the Register.
Section 145.4 of the Criminal Code provides, in summary, a 7 year imprisonment
penalty if a person dishonestly damages, destroys, alters, conceals or falsifies a
document that is kept, retained or issued for the purposes of a law of the
Commonwealth and the person does so with the intention of obtaining a gain or
causing a loss.
The present day trend under Australian Government legislative principles is to insert,
in offence provisions of this type, a knowledge element. This is so, for example, in
section 137.1 of the Criminal Code. This provides, among other things, that, in certain
circumstances, a person is guilty of an offence against that section if the person gives
information to another person knowing that the information is false or misleading.
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Accordingly, this clause proposes to rewrite the offence provision that appears in
section 90 of the Petroleum (Submerged Lands) Act on the premise that the person
involved knows that the entry is false or knows that the information given is false or
misleading in a material particular.
Equivalent provision in the PSL Act: paragraph 90(a)
Policy change: that the offence applies to making, or involvement in making, of a
false entry in the Register with knowledge that the entry is false
Clause 295 - Falsified documents
This clause sets out the offence that applies to producing a document in evidence that
falsely purports to be an extract from, or copy of, an entry in the Register or some
other document given to the Designated Authority under the provisions of this
Chapter. In other words, this offence relates to the use in evidence of forged or
counterfeit documents.
The substance of section 137.2 of the Criminal Code is set out under clause 290.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: paragraph 90(b)
Clause 296 - Inspection of register and instruments
This clause provides public access to the Register and to copies held of instruments of
transfer, instruments evidencing a dealing and supplementary instruments. The
applicable fee is to be prescribed under this proposed Act rather than under the
proposed Registration Fees Act and will serve only to recover costs.
Equivalent provision in the PSL Act: section 86
Clause 297 - Evidentiary provisions
This clause confers status on the Register and certified copies or extracts from it as
prima facie evidence in all courts and proceedings. The proceedings referred to could
be, for example, Administrative Appeals Tribunal hearings about a taxation matter.
For practical purposes, copies would normally be photocopies. Extracts could be
manual transcripts from a hard copy volume which is inconvenient to photocopy or
they could be printouts of segments of text in a database kept in electronic form.
This clause also enables evidentiary certificates to be prepared, particularly for
confirming facts that may not be obvious from a single entry in the Register or a
single document held by the Designated Authority. Such certificates will likewise
have the status of prima facie evidence.
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The applicable fees are to be prescribed under this proposed Act rather than under the
proposed Registration Fees Act and will serve only to recover costs.
Subclauses (6) to (9) have no equivalent in the Petroleum (Submerged Lands) Act but
have been added as 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.
Equivalent provision in the PSL Act: section 87
Policy changes: that the Register is to have the status of prima facie evidence in non-
court proceedings as well as in courts; that, in the event of criminal proceedings, an
evidentiary certificate may be admitted as evidence in court or other proceedings only
if a copy of the certificate has been provided to the person charged, or a barrister or
solicitor acting on this person's behalf, at least 14 days in advance, with notice of the
intention to produce the certificate as evidence in the proceedings; that the person
charged may require the person providing the evidentiary certificate to be called as a
witness for the prosecution and cross-examined if the prosecutor has been given at
least 4 days notice or, where this notice has not been given, if the court, by order,
allows this to occur; that any evidence given in support or rebuttal of the matters
presented in the certificate must be considered on it merits and the credibility and
probative value of such evidence must not be affected by anything in this clause
Clause 298 - Assessment of fee
This clause allows the Designated Authority to determine the amount of fee payable
under the proposed Registration Fees Act in relation to an entry in the Register. Such
a determination must, of course, be in compliance with the provisions of that Act.
Other fees, for example the fee applicable to obtaining an evidentiary certificate, will
not in any way be determined by the Designated Authority as they will be specifically
set in the regulations under the proposed Offshore Petroleum Act.
Subclause (2) is intended to ensure that if a person who applies for approval of a
transfer or dealing is convicted of an offence under clause 293 in relation to
submitting an instrument containing a false or misleading statement, that conviction
will not nullify the entry in the Register nor the person's liability to pay the amount of
registration fee that the person temporarily avoided paying by submitting that
instrument.
Subclause (3) provides appeal rights to any person who has been served with a
registration fee determination, including a person of the abovementioned category
whose liability has been redetermined. The points made about Supreme Courts in the
note to clause 287 apply equally to this clause.
The statement about the rights and obligations of the Designated Authority set out in
subclause (5) has no equivalent in the Petroleum (Submerged Lands) Act but it is
considered prudent to expressly include it in this clause.
Equivalent provisions in the PSL Act: subsections 82(2) and (3) and section 91
Policy changes: that the Designated Authority's power to determine the registration
fee extends to all types of entries in the Register (not just the ones that are described
135
in the Petroleum (Submerged Lands) Act as a "memorandum"); that jurisdiction to
hear appeals relating to registration fee determinations be conferred on the Federal
Court as well as the Supreme Courts; that the Designated Authority must be informed
of any appeal action launched in respect of a registration fee determination and is to
have the right to appear at the court hearing and is obligated to appear if the court so
directs
Chapter 4--Administration
Part 4.1--Operations
Clause 299 - Simplified outline
This clause gives a summary of Part 4.1 covering operations. This summary does not
form part of the operative text of the proposed Act.
Equivalent provision in the PSL Act: nil.
Clause 300 - Commencement of works or operations
This clause refers to the possibility that certain titles may be granted subject to a
condition that specified works or operations are to be carried out under the title. This
clause provides for a commencement date for those works or operations.
The provision that the Designated Authority has discretion under subclause (2) to set a
commencement date later than 180 days after the grant of the title derives from the fact
that, in offshore operations, the unexpected will sometimes occur. A rig may be
damaged in transit or there may be delays in obtaining some particular equipment, the
damage or delay being beyond the titleholder's control. Then it would be reasonable for
the Designated Authority to vary the commencement date.
A work-bid exploration permit is not included among the titles to which this clause
applies. This is because the policy governing the assessment of work program bids
needs to be flexible enough to allow a commencement at some later point in time than
180 days from the grant of the permit, particularly if the commitments made for the rest
of the term of the permit make up for it. By contrast, a special exploration permit is
granted under clause 95 on the basis that there is a threshold work commitment but,
beyond that, the decision on awarding the title is taken on the basis of cash bids.
Accordingly, in the case of a special exploration permit, the Joint Authority exercises
less control over the permittee's work program than in the case of a work-bid
exploration permit, and it is appropriate for the commencement date provisions in this
clause to apply.
Since, under subclause 79(8), a cash-bid exploration permit must not be granted subject
to conditions requiring the permittee to carry out work in, or in relation to, the permit
area or to spend amounts on the carrying out of work in, or in relation to, the permit
area, the commencement date provisions in this clause do not apply to cash-bid
exploration permits.
136
Likewise, since, under clause 138, a production licence may not be granted subject to
conditions requiring the licensee to carry out a specific work program, or to spend
specific amounts on the carrying out of work in, or in relation to, the licence area, the
commencement date provisions in this clause do not apply to production licences.
The maximum 100 unit penalty imposed by section 96 of the Petroleum (Submerged
Lands) Act on failure by a titleholder to commence to carry out works or operations
within a certain timeframe is now considered inappropriate (the penalty applied by
virtue of the fact that section 4D of the Crimes Act 1914 provides that a penalty at the
foot of a section indicates that a breach of the section is an offence).. It is now felt
that sufficient administrative remedies, such as title cancellation, exist for failure to
comply with the requirement. This clause therefore carries no criminal penalty.
Schedule 3 of the Offshore Petroleum (Repeals and Consequential Amendments) Bill
sets out a provision deeming a penalty to have never existed under section 96. The
effect of this deeming is that a breach of section 96 will be taken to never have been
an offence.
Equivalent provision in the PSL Act: section 96
Technical changes: deletion of the provision that use of the Designated Authority's
discretion is to be for reasons that the Designated Authority "thinks sufficient"; deletion
of the provision that the Designated Authority's deferral of the commencement date is
to be by instrument in writing served on the titleholder.
Policy changes: that the commencement date provisions in this clause do not apply to
production licences; conversion of "6 months" to "180 days"; deletion of criminal
penalty
Clause 301 - Work practices
This clause imposes a series of general and specific requirements on titleholders. More
extensive requirements are imposed under item 1 of the subclause (1) table on
titleholders who are entitled to perform operations involving the drilling of one or more
wells. The requirements in item 1 are to ensure that good reservoir engineering
practices are followed at all times, enabling the conservation not only of petroleum
resources but also of water resources. The term "good oilfield practice" is defined in
clause 6.
Subclause (2) recognises that there could be circumstances where permission might be
given for doing something that overrides a specific requirement of the table, for
example flaring small amounts of petroleum, which would override sub-item 1(c) of the
table.
Subclauses (3), (4) and (5) are intended to provide that, in items 1, 2 and 3 under
subclause (1), paragraph (a) takes precedence in each case. For example, subclause (3)
ensures that the titleholder is not permitted to take steps to prevent damage to
petroleum-bearing strata in ways that go beyond doing things in a proper and
workmanlike manner and in accordance with good oilfield practice.
Under subclause (7), one point of significance of the defendant bearing the legal burden
of proof is that the proof must be discharged on the balance of probabilities.
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The purpose of subclause (8) is to ensure that the operator is not able to avoid any
specific duties imposed elsewhere. For example, if the Designated Authority gives an
operator a direction, the operator must not fail to comply with it on the grounds that the
operator's understanding of good oilfield practice might suggest some different action
should be taken. The mention of "any other law" refers to scenarios such as the
possibility that the relevant State or the Northern Territory has laws covering the
construction and operation of an industrial plant, for example setting out minimum
design specifications. This subclause means that, if work of that type is being
performed on a petroleum platform in the offshore area of that State or Territory, then
performing it in a proper and workmanlike manner includes compliance with those
laws.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provisions in PSL Act: sections 97 and 99
Clause 302 - Insurance
This clause is inserted to ensure that a titleholder takes out adequate insurance to cover
eventualities such as blowouts, pollution damage and clean-up costs. The requirement
is mandatory under the letter of the Act in the case of exploration permittees, retention
lessees and production, pipeline and infrastructure licensees but is at the discretion of
the Designated Authority in the case of holders of special prospecting authorities and
access authorities.
The difference is due to the fact that neither of the latter titles allows the drilling of a
well or the laying of pipelines, meaning the operations are, on average, less risky. A
scenario where the holder of a special prospecting authority or an access authority
could be given a direction relating to clean-up or remedying the effects of an escape of
petroleum could involve a seismic vessel used by the holder of a special prospecting
authority or access authority colliding with a petroleum production platform.
In the case of every title, the phrase "as directed by the Designated Authority from time
to time" means that the Designated Authority may issue directions about the
comprehensiveness and level of cover of the insurance that is to be held.
Equivalent provision in PSL Act: subsections 97A(1) and (2)
Policy change: that the Designated Authority's direction is to be in writing
Clause 303 - Maintenance and removal of property etc. by titleholder
This clause is one of the provisions by which Australia seeks to meet its obligations
under Articles 60, 192 and 210 of the United Nations Convention on the Law of the Sea
to maintain the safety of offshore installations and structures, to remove disused
installations and structures and to protect and preserve the marine environment.
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In subclause (1) item 5, "the part of the offshore area in which the pipeline is
constructed" is intended to cover construction debris or discarded equipment scattered
on either side of the pipeline.
Under subclause (6), if the titleholder did not authorise the bringing into the area of any
particular item of property, its removal will not involve the titleholder. Assuming the
other party is or was involved in a legal petroleum or processing operation under the
Act, clauses 312, 313 and 314 set out the procedures that the Designated Authority may
resort to in order to secure the removal of that property.
One of the situations to which subclause (7) refers would be a situation envisaged in
sub-paragraph 311(2)(a)(ii), where the Designated Authority is prepared to make
arrangements "that are satisfactory to the Designated Authority" in relation to a
particular item of property. For example, the property could be a production platform in
respect of which another party has expressed an interest with a view to converting it
into an infrastructure facility. In that case, subclause 311(2) empowers the Designated
Authority to allow the platform to be left in situ. There is also an International Maritime
Organisation guideline (October 1989) which allows an operator to leave or partially
remove certain items if the complete removal involves significant cost or safety
implications.
The fact that the offence set out in subclause (4) is one of strict liability means the
prosecution does not have to prove intention. The offence created by the statutory
obligation in this clause could be difficult to establish if the prosecution were required
to prove intention with respect to an omission to do the things required. Accordingly,
an obligation of this type is usually imposed by the legislature with the intention that
strict liability should apply. Further details about strict liability are set out in the note
about clause 307.
Equivalent provisions in PSL Act: sections 98 and 99
Technical change: that a titleholder must remove from the title area all structures
equipment and other items of property that are neither used nor to be used in connection
with not only the operations in which the titleholder is currently engaged but also the
operations in which the titleholder will be engaged
Part 4.2--Directions
DIVISION 1--SIMPLIFIED OUTLINE
Clause 304 - Simplified outline
This clause gives a summary of Part 4.2 covering directions. This summary does not
form part of the operative text of the proposed Act.
Equivalent provision in PSL Act: nil.
DIVISION 2--GENERAL POWER TO GIVE DIRECTIONS
Clause 305 - General power to give directions
139
This clause replicates, with no policy change, the provisions in section 101 of the Act
establishing the Designated Authority's power to issue directions with a status
equivalent to regulations in relation to all matters about which regulations may be
made. Such directions are served individually on each titleholder to whom the
Designated Authority wants them to apply.
In administrative practice, the variety of technical issues in relation to which directions
are given to petroleum operators has narrowed from the days when the original
Petroleum (Submerged Lands) Act was passed. For example, requirements related to
safety management and environment protection are now set out in objective-based
regulations under the Act. The process of transposing subordinate legislation from the
directions to regulations is expected to continue until all detailed technical requirements
with general, standing or permanent application are placed in objective-based
regulations. At that time, it will be appropriate to review the need to retain the power to
issue directions of a general, standing or permanent nature that could apply to all
titleholders engaged in a particular activity.
However, the case for the Designated Authority being able to issue ad hoc directions to
individual operators or classes of operators will remain strong. For instance, there is the
possibility that, on a particular offshore facility, an emergency situation may arise
which the regulations address inadequately or not at all. The option of promulgating a
new regulation to cover the situation could be ruled out by the length of time that would
be required to go through the Executive Council processes. It could also be ruled out by
the consideration that any new regulation might be an indiscriminate instrument
applying to all operators, which might not be the desired result.
Section 15AC of the Acts Interpretation Act 1901 provides that, where an Act has
expressed an idea in a particular form of words and a later Act appears to have
expressed the same idea in a different form of words for the purpose of using a clearer
style, the ideas shall not be taken to be different merely because different forms of
words were used. Thus the statement in clause (5) that "the validity of a direction is not
affected by a breach of this subsection" has the same meaning as the equivalent
statement in subsection 101(4) of the Act, ie: "the validity of a direction of the
Designated Authority shall not be called in question by reason of this subsection."
In accordance with current drafting practice, subclauses (10) and (11) set out the
status of directions under this clause in terms of the Legislative Instruments Act 2003.
Only a direction that is expressed to apply to the class of persons specified in
paragraph (3)(b) is a legislative instrument. This is because the direction can then be
regarded as determining the law or altering the content of the law (as it affects
members of the public having no contractual relationship with the titleholder), rather
than applying the law in a particular case.
Equivalent provisions in PSL Act: subsections 101(1), (2), (3), (4), (5) and (6)
Clause 306 - Notification of a direction that has an extended application
This clause places on a titleholder to whom a direction is given the responsibility for
ensuring that all relevant persons are aware of the direction. Nevertheless, subclause (3)
leaves the way open for the Designated Authority to specify how and where copies of
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the direction are to be displayed. The latter power would more likely be used if the
Designated Authority were of the opinion that persons at a number of separate locations
needed to be aware of the substance of the direction.
The requirement in subclause (3) is supplementary to that in subclause (2). In other
words, if the Designated Authority has given the registered holder a notice under
subclause (3) and the registered holder complies with that notice, the registered holder
must still display another copy of the direction at a prominent place, or another
prominent place, in the offshore area.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provisions in the PSL Act: subsections 101(2A), (2B) and (2C)
Technical change: that the word "display" is used through the clause instead of the
mixture of "display" and "exhibit" that appears in the equivalent provisions in the
Petroleum (Submerged Lands) Act
Clause 307 - Compliance with direction
This clause provides for a penalty for breaching a direction given under clause 305. The
infringement could be by omission or commission since, under clause 6, engaging in
conduct includes doing an act or omitting to perform an act.
Subsection 4B(3) of the Crimes Act provides: "Where a body corporate is convicted of
an offence against a law of the Commonwealth, the court may, if the contrary intention
does not appear and the court thinks fit, impose a pecuniary penalty not exceeding an
amount equal to 5 times the amount of the maximum pecuniary penalty that could be
imposed by the court on a natural person convicted of the same offence."
The offence created by the statutory obligation in this clause could be difficult to
establish if the prosecution were required to prove intention with respect to the failure
to comply with a direction. An obligation of this type is usually imposed by the
legislature with the intention that strict liability should apply.
Section 6.1 of the Criminal Code provides, in part:
"If a law that creates an offence provides that the offence is an offence of strict liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is available."
The section also provides that the existence of strict liability does not make any other
defence unavailable.
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A physical element of an offence may be:
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, occurs.
A fault element for a particular physical element may be intention, knowledge,
recklessness or negligence.
Section 9.2 of the Criminal Code provides:
"(1) A person is not criminally responsible for an offence that has a physical element
for which there is no fault element if:
(a) at or before the time of the conduct constituting the physical element, the person
considered whether or not facts existed, and is under a mistaken but reasonable
belief about those facts; and
(b) had those facts existed, the conduct would not have constituted an offence.
(2) A person may be regarded as having considered whether or not facts existed if:
(a) he or she had considered, on a previous occasion, whether those facts existed in
the circumstances surrounding that occasion; and
(b) he or she honestly and reasonably believed that the circumstances surrounding
the present occasion were the same, or substantially the same, as those
surrounding the previous occasion."
In view of the fact that it is possible that a person other than the registered holder of a
title may not be aware of a direction served on that holder, subclause (3) provides a
defence that may be used by that person if he or she is bound by the direction and
inadvertently infringes it.
Equivalent provisions in the PSL Act: subsections 101(7), (7A) and (8)
Policy change: conversion of $10 000 penalty to 100 penalty units
DIVISION 3--DESIGNATED AUTHORITY MAY TAKE ACTION IF THERE IS A
BREACH OF A DIRECTION
Clause 308 - Designated Authority may take action if there is a breach of a direction
This clause refers not only to directions given under clause 305 but also to directions
that may be given to a titleholder under a number of other provisions of the proposed
Act and the regulations. This clause provides the necessary machinery for ensuring that
things directed to be done are done even if the titleholder or another party who is bound
by the direction does not comply with it.
Paragraph (1)(a) mentions Part 5.1 despite the fact that directions given under Part 5.1
generally do not relate to actions that could be taken by the Designated Authority if a
party bound by the direction fails to comply. One exception is a direction that the
Designated Authority may give under paragraph 407(2)(b) to a person to collect and
retain cores, cuttings and samples in connection with operations under a title. If the
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titleholder does not comply with the direction, the law needs to provide that such a
collection is able to be arranged by the Designated Authority.
Subclause (2) refers to directions by the Joint Authority. These would include
directions by the Joint Authority to a production licensee under clause 161 or 162 to
recover petroleum or increase or reduce the petroleum recovery rate, directions under
subclause 163(5), (6) or (7) for the purpose of securing the more effective recovery of
petroleum from a petroleum pool and directions under subclause 191(1) about changes
in the design, construction, route or position of a pipeline.
In the same way that subclause 307(3) provides a defence that may be used by a person
other than the titleholder who is subject to a criminal prosecution because he or she was
bound by a direction under clause 305 and inadvertently infringed it, subclause 308(4)
provides a defence that may be used by such a person if he or she is subject to a civil
action for cost recovery after the Designated Authority has performed the action
required by the direction.
Subclause (5) provides another defence, one that is equally available to the titleholder
and any other person bound by the direction. This defence is similar to the one set out
in clause 309 except that, in this case, the defence is made available against a civil
action rather than a criminal prosecution.
Equivalent provision in the PSL Act: section 102
DIVISION 4--DEFENCE OF TAKING REASONABLE STEPS TO COMPLY WITH A
DIRECTION
Clause 309 - Defence of taking reasonable steps to comply with a direction
This clause inserts provision for a defence in a case of prosecution for failure to comply
with a direction that may be given to a titleholder by the Designated Authority or the
Joint Authority under a number of provisions of the proposed Act and the regulations.
For example, if the Designated Authority, under clause 305, directs a production
licensee to carry out, within a limited time, a procedure that involves the hiring of a
specialist contractor and the licensee is does not fulfil the requirements of the direction,
clause 309 could provide the licensee with a defence to a prosecution under clause 307
if the licensee were able to prove that, despite the licensee's best endeavours, no
contractor ready, willing and able to carry out the work could be found within the
specified time.
One point of significance of the defendant bearing the legal burden is that the proof
must be discharged on the balance of probabilities.
Equivalent provision in the PSL Act: subsection 102(3)
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Part 4.3--Restoration of the environment
Clause 310 - Simplified outline
This clause gives a summary of Part 4.3 covering restoration of the environment. This
summary does not form part of the operative text of the proposed Act.
Equivalent provision in the PSL Act: nil.
Clause 311 - Remedial directions to current holders of permits, leases and licences
This clause is another of the provisions by which Australia seeks to meet its obligations
under Articles 60, 192 and 210 of the United Nations Convention on the Law of the Sea
to remove disused installations and structures and to protect and preserve the marine
environment.
This clause sets out similar provisions to those in clause 233 but, whereas the latter
clause envisages a forthcoming surrender of a title, this clause is written to deal with
restoring the environment during the term of a title, or some time before the expiry or
termination of the title.
One of the situations to which subparagraph (2)(a)(ii) refers would be a situation in
which the property is, for example, a production platform in respect of which another
party has expressed an interest with a view to converting it into an infrastructure
facility. In that case, subparagraph (2)(a)(ii) empowers the Designated Authority to
allow the platform to be left in situ. However, such an arrangement would most likely
include a requirement for the titleholder to remove the platform if the proposal to
convert it into an infrastructure facility later came to nothing.
Paragraph (2)(c) is broader in its scope than paragraphs (2)(a), (b) or (d). It could refer
to actions such as the regular monitoring of plugged wells by the titleholder to ensure
there is no leakage of remnants of petroleum or drilling muds into the marine
environment.
Subclause (3) makes paragraph (2)(c) subject to Chapters 2 and 4 of the proposed Act
and the regulations. This means that providing for the conservation and protection of
natural resources in the operations area to the satisfaction of the Designated Authority
will not necessarily be relevant, or be relevant for all aspects of the issue, or be relevant
under this particular provision. If, as is currently the case, there are Management of
Environment Regulations under the Act, there may be no need for the Designated
Authority to come to a view about what is satisfactory to ensure the conservation and
protection of natural resources in the operations area. Alternatively, the Designated
Authority may need to form an opinion about these matters but it could occur under the
provisions of the Regulations rather than under this paragraph.
Paragraph (2)(c) is also subordinate to the general scope of subclause 243(2), which
precludes interference with the activities of other persons to a greater extent than
necessary for the reasonable exercise and performance of a titleholder's rights and
duties.
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In relation to items 4, 5 and 6 under subclause (5), the first date on which a production,
infrastructure or pipeline licence could be terminated depends on the holder's action or
inaction and on whether the situation is impacted by factors beyond the titleholder's
control (clauses 140, 169 and 183 refer). For this reason, the applicable date for
licences should be understood with reference to subclause (6). In other words, a written
notice under subclause (2) could literally direct the licensee to take the specified actions
"by the first date on which the licence could be terminated", and not indicate a day,
month and year. If, in a notice under subclause (2), a day, month and year were actually
specified on the basis of assumptions made by the Designated Authority and, because
of subsequent developments or facts coming to light, it later emerged that the date did
not accurately indicate the first date on which the licence could be terminated, then the
Designated Authority would need to vary or rescind the notice. This is provided for
under subsection 33(3) of the Acts Interpretation Act, which reads:
"Where an Act confers a power to make, grant or issue any instrument (including rules,
regulations or by-laws) the power shall, unless the contrary intention appears, be
construed as including a power exercisable in the like manner and subject to the like
conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument."
In item 6 under subclause (5), the meaning of the "title area" in relation to a pipeline
licence is to be understood as including whatever area on either side of the pipeline
contains scatterings of construction debris or discarded parts or equipment resulting
from the construction or maintenance of the pipeline.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provisions in the PSL Act: subsection 107(2) and paragraphs 107(3)(b)
and (c)
Clause 312 - Remedial directions to former holders of permits, leases, licences and
authorities etc
This clause empowers the Designated Authority to issue directions to the former holder
of a title (or, if a title has been revoked, cancelled or terminated only in part, the holder
of the remaining portion of the title) in similar terms to the directions provided for
under clause 311 for current titleholders.
This clause is proposed to deal with situations where a title may have come to an end at
relatively short notice, ie because of a revocation or cancellation, in which case it
would not be highly likely that remedial action would have been completed before the
title ceased to have effect. Secondly, this clause is proposed to deal with situations
where a direction under clause 311 was not given, or was given but did not cover all
issues of remedial action that were pertinent, or was given but was not fully complied
with by the titleholder during the term of the title. Thirdly, this clause is proposed to
deal with remedial action after a special prospecting authority or access authority has
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come to an end. As explained under clauses 235 and 236, the shortness of term of these
titles precludes remedial directions being given during their period of effect.
Whereas a direction under clause 311 would require action to be taken before the
expiry date of the title, or the first date on which it could be terminated, a direction
under this clause would require action to be taken within a period specified in the
direction. This period must be reasonable.
The grounds for the offence in subclause (5) being proposed to be one of strict liability
are basically the same as those discussed under clause 307, ie the offence created by the
statutory obligation in this clause could be difficult to establish if the prosecution were
required to prove intention with respect to the failure to comply with a direction.
Equivalent provision in the PSL Act: subsection 107(1), paragraph 107(3)(a) and
subsections 111(8) and (9) and 112(9) and (10)
Technical change: omission of a redundant reference to the revocation of a pipeline
licence
Policy changes: that the period for compliance specified in the notice must be
reasonable; the requirement that a compliance period be specified in a direction given
to the former holder of a special prospecting authority and access authority, as it is with
a direction given to the holder of any other title
Clause 313 - Designated Authority may take action if a direction has been breached
This clause sets out the steps that the Designated Authority may take if there has not
been compliance with a direction under clause 312 within the period specified in the
direction.
Subclause (2) deals with all breaches of a direction other than failure to remove
property from the vacated area. Thus, for example, if a well has been left unplugged
despite a direction given under clause 312, subclause (2) authorises the Designated
Authority to plug the well.
Subclause (3) addresses the question of property not removed from the vacated area
despite a direction given under clause 312. This clause enables the Designated
Authority to then direct the owner or owners of the property, who may not be the same
party as the former titleholder, to remove it and dispose of it to the Designated
Authority's satisfaction. If the owner or owners did remove the property, the ability of
the owner or owners to recover costs through civil action against the former titleholder
would depend on the nature of the contractual arrangements the owner or owners had
with the former titleholder.
Even if the Designated Authority knows that the former titleholder is the owner of the
property, the Designated Authority would still need to gazette the notice and complete
the other action set out in this clause, and the specified period would need to elapse,
before the Designated Authority could carry out the removal and disposal of the
property as set out in the following clause.
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Equivalent provisions in the PSL Act: section 108 and subsections 111(10) and 112(12)
Policy change: that the period for compliance specified in the notice must be reasonable
Clause 314 - Removal, disposal or sale of property by Designated Authority--breach of
direction
This clause sets out the Designated Authority's right to remove, dispose of or sell any
property that has not been removed within the specified time following the gazettal of a
notice under clause 313.
Paragraphs (2)(b), (c), (d) and (e) are relevant only if the owner of the property was
also the titleholder in whose title area the property was located or if the owner has at
some point held some other title under the Act as a result of which there is an
outstanding debt. Otherwise, regardless of the level of debt to the Commonwealth of
the former titleholder who received the notice under clause 312, the Designated
Authority may deduct from the proceeds of sale only the costs or expenses incurred by
the Designated Authority in removing and selling the property and must remit the rest
of the moneys to the owner. However, if these costs and expenses exceed the proceeds
of the sale, or if there is no sale at all, subclause (4) enables the Designated Authority to
recover the outstanding amount from the owner of the property through legal action in a
court of competent jurisdiction.
If the owner of the property was also the titleholder, and the titleholder owed money to
the Commonwealth under the provisions of paragraph (2)(b), (c), (d) or (e), then
subclause (3) would still entitle the owner to receive any remnant of moneys from the
proceeds of sale after all deductions under subclause (2) had been made.
Subclause (5) refers to costs or expenses incurred by the Designated Authority in
performing actions other than removing and disposing of property, such as the example
cited under clause 313 of the Designated Authority plugging a well that the titleholder
had left unplugged. This subclause provides that, if these costs or expenses are not
recovered at all, or are only partially recovered, from the proceeds of a sale of property,
the Designated Authority may recover the outstanding amount from the former
titleholder through legal action in a court of competent jurisdiction.
Equivalent provisions in the PSL Act: subsections 113(1), (2) and (3)
Policy changes: clarification that the proceeds of sale, net of any deductions, are to be
paid to the owner of the property; the drafting of subclause 314(5) so that it does not
refer to subclause 314(1), correcting an anomaly in the Petroleum (Submerged Lands)
Act where subsection 113(3) applies the words "under subsection (1)" to paragraph
113(3)(b)
Clause 315 - Removal, disposal or sale of property - limitation of action etc.
This clause refers to property that is removed, disposed of or sold by the Designated
Authority under the powers set out in clause 314 where the owner has failed to meet the
owner's obligations to remove the property. This clause is intended to enable the
removal of such property from the offshore area and to protect the Designated
Authority from legal action for removing the property and other things done in
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conjunction with it. This provision is one that commonly appears in legislation relating
to the functioning of a statutory authority.
For this reason, subclause (1) generally precludes the owner of the property from taking
legal action for damages against the Designated Authority because of the removal,
disposal or sale, for example on the basis of an allegation that a technical breach of
clause 314 was committed in the process of carrying out that action. This is conveyed
by the use the wording "purported removal, disposal or sale" in subclause (1). The
subclause also precludes the owner from taking legal action if, despite the removal
being lawful, there is damage caused by negligence to the property in the process of
removing it.
Subclause (1), which is a special provision, is intended to prevail to the exclusion of the
general provisions of clause 436, which deals with the liability of various office-holders
for acts and omissions. Subclause (2) gives effect to this intention, making explicit what
is already implied in the Petroleum (Submerged Lands) Act. This is linked to
clause 316 in that subclause (2) ensures the limitation of action is exclusively under
clause 315 and therefore attracts the provision for compensation for acquisition of
property set out in clause 316.
Clause 315 would not affect the rights of the owner of property that has been removed
to take action against the titleholder, assuming the two parties had a contractual
arrangement such that the titleholder was meant to remove the property. In such a case,
the action would occur in respect of a breach of contract, not in relation to the
Designated Authority's removal, disposal or sale of the property.
Subclause (3) preserves rights to administrative review of decisions. This means that if,
for example, the owner of the property had information that the Designated Authority
were preparing to remove and sell the property, the owner could seek review of that
decision under the Administrative Decisions (Judicial Review) Act 1977. Under
section 16 of that Act, the Federal Court or the Federal Magistrates Court could make
various orders about the case, for example an order to the Designated Authority to
reconsider the matter. Assuming the Designated Authority opted to remake the decision
in identical terms, such an order would delay, but ultimately not prevent, the removal
and sale of the property.
Equivalent provision in the PSL Act: subsection 113(4)
Policy changes: that the provision in subclause (1) is subject to the compensation for
acquisition of property provision in clause 316; the expansion of the provision in
subclause (1) to include a suit or proceeding as well as an action; that this clause
prevails to the exclusion of the general provisions of clause 436 dealing with liability
by various office holders for acts and omissions; that this clause does not affect the
rights of a person to seek review by a court or tribunal, for example under the
Administrative Decisions (Judicial Review) Act 1977.
Clause 316 - Removal, disposal or sale of property--compensation for acquisition of
property
This clause inserts a compensation provision to safeguard the provisions of clauses 314
and 315 from the risk of constitutional challenge. This will provide compensation to a
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person whose property has been disposed of otherwise than on just terms and ensure
that the sale of property provisions would not be struck down as contrary to paragraph
51(xxxi) of the Constitution. In provisions of this type, the current policy of the
Commonwealth is to restrict compensation proceedings to the Federal Court.
Equivalent provision in the PSL Act: nil.
Policy changes: the inclusion of this compensation constitutional safety net provision in
respect of property acquisition under clauses 314 and 315; conferral of jurisdiction on
the Federal Court
Part 4.4--Offences and enforcement
Clause 317 - Simplified outline
This clause gives a summary of Part 4.4 covering offences and enforcement. This
summary does not form part of the operative text of the proposed Act.
Equivalent provision in the PSL Act: nil.
Clause 318 - Appointment of project inspectors
This clause sets out provisions about the appointment and identity cards of project
inspectors (as distinct from OHS inspectors, who are provided for in Part 4.8). A
project inspector may perform functions such as examining or observing engineering or
well operations on offshore facilities, but the most usual duties of a project inspector
would relate to examining documentation held by the operators of those facilities.
Under present day legislative principles, it is normal to require persons holding
inspectorial powers under a Commonwealth Act to be officers or employees of the
Australian Public Service, a State or Territory Public Service or a statutory authority. It
is also normal for inspectors to be issued with photo-identity cards to confirm their
credentials. Subclauses (1) and (2) adopt these policies in the proposed Act.
The identity card would include on it details such as the name of the Act under which it
is issued and the name and photograph of the holder. It is normal practice to also
include on a card a mention of the relevant section of the Act and the name of the
issuing officer. The fact that an ex-inspector who has lost or destroyed his or her
identity card bears an evidential burden in relation to that matter means that he or she
has the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the card was lost or destroyed.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: section 125
Technical change: relabelling of "inspector" as "project inspector"
Policy changes: the requirement that inspectors must be officers or employees of the
Commonwealth, a State or a Territory or of a statutory authority; the replacement of the
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current system of certificates by identity cards; a defence to prosecution if the card is
lost or destroyed; the requirement that the identity card be carried at all times when
exercising the powers or functions of a project inspector
Clause 319 - Monitoring powers of project inspectors
This clause confers on project inspectors all the monitoring powers that are usually
conferred on mining inspectors. The powers include wide-ranging access, inspection
and testing rights offshore. For purposes of examining documents, a project inspector is
intended to have access rights offshore and onshore, but the rights are to be
circumscribed onshore by restrictions on access to residential premises. The powers of
project inspectors do not extend to the seizure of documents or other items or the
detention of persons, vessels or aircraft.
Separate powers exist under clauses 409 and 414 for project inspectors to do things
such as obtaining, and possibly retaining, documents from persons with knowledge
about petroleum operations, but these powers must be exercised with the use of a
written instrument and require a minimum 14 days notice for compliance.
The fact that the defendant bears an evidential burden in relation to obstructing or
hindering a project inspector performing monitoring duties means that he or she has the
burden of adducing or pointing to evidence that suggests a reasonable possibility that
the person has a reasonable excuse for that obstruction or hindrance. A reasonable
excuse could be, for example, an issue related to safety.
Part 2.3 of the Criminal Code is also relevant to conduct obstructing or hindering a
project inspector. Part 2.3 deals with circumstances involving lack of capacity,
intoxication, circumstances involving mistake or ignorance and circumstances
involving external factors.
Section 149.1 of the Criminal Code provides, in part, that a person is guilty of an
offence if:
(a) the person knows that another person is a public official; and
(b) the first-mentioned person obstructs, hinders, intimidates or resists the official in
the performance of the official's functions; and
(c) the official is a Commonwealth public official; and
(d) the functions are functions as a Commonwealth public official.
The offence provisions in this clause do not specify a fault element. Under section 5.6
of the Criminal Code, if an offence provision does not specify a fault element and if
the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: section 126
Policy changes: that a project inspector may enter a structure, vessel, aircraft, building
or place onshore in any external Territory as well as in the States and Northern
Territory; change of mentions of "ship" to "vessel"; that the powers of an inspector
that, under section 126 of the Petroleum (Submerged Lands) Act, rely on the
inspector's opinion that a structure, vessel, equipment etc has been, is being or is to be
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used in connection with specified operations, or that the structure, vessel etc contains
documents relevant to those operations, are now to be exercised by the project inspector
only if he or she has reasonable grounds to believe that one of those possibilities holds
true; that a project inspector may enter residential premises only with a warrant or the
occupier's consent; that a copy of the warrant must be made available to the occupier;
that information about the occupier's right to refuse consent must be given to the
occupier; that consent has to be voluntary
Clause 320 - Warrants to enter residential premises
This clause sets out the procedures and requirements that apply to a project inspector
seeking a warrant to enter residential premises and the conditions subject to which the
warrant may be granted. These provisions are similar to those that apply to authorising
official entry into residential premises in other Commonwealth legislation.
For purposes of this clause, under subsections 16C(2) and (3) of the Acts Interpretation
Act, a "Magistrate" means a Chief, Police, Stipendiary, Resident or Special Magistrate
of a State or Territory, or any other magistrate in respect of whose office an annual
salary is payable, but does not include a Federal Magistrate.
Equivalent provision in the PSL Act: no equivalent provision, but, in a different
context, see section 140F
Policy changes: all the procedures, requirements and conditions applicable to the
obtaining of a warrant by a project inspector that are set out in this clause
Clause 321 - Interfering with offshore petroleum installations or operations
This clause recognises the isolation of offshore petroleum facilities and the potentially
serious consequences of damage to, or interference with, facilities or operations. The
10 year imprisonment penalty that could be imposed under this clause is equal to the
severest penalty provided for under the Petroleum (Submerged Lands) Act. This clause
is complemented by clauses 329 and 331, which deal with the dangers posed by vessels
navigating too close to offshore petroleum facilities.
The various State and Northern Territory Criminal Code provisions, which also apply
in offshore areas, have not necessarily been drafted having regard to security issues on
board offshore petroleum facilities. A strong case can therefore be made that the
proposed Act should maintain a conspicuous deterrent, as set out in this clause, to
persons committing acts of terrorism, reckless navigation or otherwise dangerous
conduct which could place at risk the lives of scores of people on board offshore
petroleum facilities.
Under section 5.6 of the Criminal Code, for a prosecution under this clause to succeed,
there would have to be proof of intention to engage in the conduct, plus recklessness as
to the result of the conduct that results in the damage or interference. Thus if an
employee of an operator on a petroleum facility causes damage to the facility or
interference with the operations merely as a result of negligence, this clause would have
no application to that situation.
Equivalent provision in the PSL Act: section 124A
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Policy change: that this clause applies also to damage to, or interference with,
equipment on, or attached to, a vessel or a structure
Clause 322 - Forfeiture orders etc.
This clause refers to convictions of persons for unauthorised petroleum exploration or
recovery, unauthorised construction or operation of an infrastructure facility or pipeline
or being an accessory after the fact in any such a case (section 6 of the Crimes Act 1914
refers).
Section 11.6 of the Criminal Code provides, in summary, that a reference in a
Commonwealth law to an offence against a Commonwealth law includes a reference to
an attempt, incitement or conspiracy that relates to such an offence.
The power of a court to make the forfeiture and other orders provided for in this clause
is qualified by subclause (3) because, following the conveyance of petroleum through a
pipeline, the precise consignment of petroleum to which the offence relates may have
come into blending with other petroleum, making forfeiture impossible.
Equivalent provision in the PSL Act: section 133
Policy changes: that the forfeiture and other orders may be made, not only by the
Supreme Court, but by any court that convicts a defendant for one of the offences set
out in this clause
Clause 323 - Time for bringing proceedings for offences
This clause refers to all provisions in the proposed Act (other than Schedule 3) that
contain offence provisions and also to regulations that contain offence provisions.
Replicating the equivalent provision in the Petroleum (Submerged Lands) Act, this
clause provides that proceedings against any of these offences may be brought at any
time.
Section 6 of the Crimes Act 1914 makes it a crime to be an accessory after the fact in
relation to any offence against a Commonwealth law. Section 11.6 of the Criminal
Code provides, in summary, that a reference in a Commonwealth law to an offence
against a Commonwealth law includes a reference to an attempt, incitement or
conspiracy that relates to such an offence. Therefore, a prosecution may likewise be
launched at any time for any alleged attempt, incitement, conspiracy or act of being an
accessory after the fact in relation to an infringement of any of the provisions of the
proposed Act or regulations referred to above.
Without this clause, prosecutions in relation to some offences would need to be
commenced within one year of the commission of the offence. In summary, under
section 15B of the Crimes Act, this would be the case if the maximum imprisonment
penalty applicable to an individual for a first offence or the maximum pecuniary
penalty applicable to a body corporate for a first offence were respectively 6 months or
less or 150 penalty units or less.
Equivalent provision in the PSL Act: section 135
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Part 4.5--Safety zones and the area to be avoided
DIVISION 1--INTRODUCTION
Clause 324 - Simplified outline
This clause gives a summary of Part 4.5 covering safety zones and the area to be
avoided. This summary does not form part of the operative text of the proposed Act.
Equivalent provision in the PSL Act: nil.
Clause 325 - Simplified map of the area to which Schedule 2 applies
This clause provides a map of the area described in Schedule 2 to the proposed Act,
which contains the area to be avoided. The Schedule 2 area extends approximately
40 nautical miles seaward of the coast of Victoria. The map is simplified and its scale
interpretation should not be relied on as an accurate guide to the precise location or
extent of the Schedule 2 area.
Equivalent provision in the PSL Act: nil.
Clause 326 - Definitions
This clause sets out definitions of terms that have relevance only for Part 4.5 of the
proposed Act. Two of the definitions, those for "authorised person" and "safety zone",
refer to other clauses in the Part.
Equivalent provisions in the PSL Act: subsections 140A(1), (2), (5) and (6) and
140B(6)
Clause 327 - Emergency periods--modification of definition of relevant vessel
This clause gives the Commonwealth Minister special powers to deal with a situation of
terrorist threat, but only in the area to be avoided which lies off the coast of Victoria.
Even so, the Commonwealth Minister must consult the Victorian Designated Authority
before issuing a Gazette notice declaring a state of emergency under this clause.
Normally, as provided under the definition of "relevant vessel" and clause 331, there is
a threshold tonnage or tonnage length above which most Australian registered vessels
and potentially Australian registered vessels are barred from entering the area to be
avoided unless they are authorised by the Designated Authority. Under subclause (6),
the significance of a declaration of emergency is that the tonnage and length
considerations no longer apply, meaning that many more vessels are then barred from
entering the area to be avoided.
The proposed Act replicates the provision in the Petroleum (Submerged Lands) Act
that, whether or not an emergency period is declared, foreign flag vessels are generally
permitted to navigate through the area to be avoided provided they do not transgress
safety zones. This is provided for in the definition of "relevant vessel" and has the
benefit of minimising complications in view of the fact that Articles 24 and 58 of the
United Nations Convention on the Law of the Sea confer certain rights of innocent
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passage and free navigation on the operators of foreign flag vessels in Australia's
territorial sea and exclusive economic zone.
However, as provided under paragraph (c) of the definition of "relevant vessel", even a
foreign flag vessel would be precluded from entering the area to be avoided without an
authorisation if it were in the offshore area for the purpose of exploring the seabed or
subsoil of the offshore area for petroleum or minerals or for the purpose of exploiting
the petroleum or minerals which occur as natural resources of that seabed or subsoil.
The significance of subclause (7) is that the Commonwealth Minister is to publish any
declaration of emergency under this clause in the Commonwealth Gazette rather than in
the State Gazette.
Equivalent provisions in the PSL Act: subsections 140B(1), (2), (3), (4) and (5)
Policy change: that a declaration of emergency is to be published in the
Commonwealth Gazette
Clause 328 - Authorised persons
This clause defines "authorised persons", whose function is to enforce the provisions
governing safety zones and the area to be avoided. Authorised persons carry out
duties which project inspectors and OHS inspectors are not empowered to perform,
namely policing general navigation in the proximity of offshore petroleum facilities.
Subclause (2) applies only in a case where the Designated Authority chooses to add to
the personnel who already have the designation of authorised persons. Officers of the
Federal, State or Territory police, personnel of the Australian Defence Force and
Customs officers are to have that designation by virtue of this clause and their status
does not need to be confirmed by the publication of any Gazette notice to that effect.
In accordance with current drafting practice, subclause (3) makes clear that a
declaration appointing authorised persons is not a legislative instrument in terms of
the Legislative Instruments Act 2003.
Equivalent provisions in the PSL Act: subsections 140A(1) and (4)
Policy change: inclusion of Customs officers as authorised persons
DIVISION 2--SAFETY ZONES
Clause 329 - Safety zones
This clause sets out the safety zone provision, applicable in all offshore areas, which is
designed to ensure the protection of offshore petroleum facilities from impact by a
vessel or unauthorised boarding. Replicating, with updating amendments, the heavy
penalties that can be imposed under section 119 of the Petroleum (Submerged Lands)
Act, this provision recognises the isolation of offshore petroleum facilities and the
potentially serious consequences of damage to, or interference with, facilities or
operations.
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The various State and Northern Territory Criminal Code provisions, which also apply
in offshore areas, have not necessarily been drafted having regard to the safety of
offshore petroleum facilities. A strong case can therefore be made that the proposed
Act should maintain a conspicuous deterrent, as set out in this clause, to persons
committing acts of negligent or reckless navigation or otherwise dangerous conduct
which could place at risk the lives of scores of people on board offshore petroleum
facilities.
Criminal law policy has evolved since the 10 year maximum imprisonment penalty
was inserted into section 119 of the Petroleum (Submerged Lands) Act in 1980.
Accordingly, in subclauses (3) to (10), this clause includes amendments in the form of
a tiered penalty schedule for infringements of safety zones. If intention is the required
fault element for the vessel entering or being present in the safety zone, the maximum
penalty is to be 15 years imprisonment. If recklessness is the required fault element
for the vessel entering or being present in the safety zone, the maximum penalty is to
be 12.5 years imprisonment. If negligence is the required fault element for the vessel
entering or being present in the safety zone, the maximum penalty is to be 10 years
imprisonment. The lowest tier offence will be an offence of strict liability with a
maximum penalty of 5 years imprisonment. This represents a reduction of the
maximum penalty where strict liability applies. There are no fault elements for the
strict liability offence. Further details about strict liability are set out in the note about
clause 307.
While imprisonment penalties of any term are not consistent with criminal law policy in
its general application to strict liability offences, the use of imprisonment with strict
liability is justified in this instance because of the potentially serious consequences of a
breach of the provision. The strict liability is designed to maximise legal protection for
offshore petroleum facilities from impact by a vessel or unauthorised boarding. The
provision recognises the isolation, vulnerability and physical defencelessness of
offshore petroleum facilities, their possible attractiveness as terrorist targets and the
potentially serious consequences of damage to, or interference with, facilities or
operations.
The proposed Act should maintain a conspicuous deterrent, as set out in this clause, to
persons committing acts of negligent or reckless navigation or otherwise dangerous
conduct which could place at risk the lives of scores of people on board offshore
petroleum facilities and threaten the marine environment. When legislators are
considering alleged offences that may occur in an offshore area, they need to be
realistic about the viability of conducting a successful prosecution with proof of
intention, recklessness or negligence. Therefore, an imprisonment penalty with strict
liability is warranted under this provision.
As a modification from the Petroleum (Submerged Lands) Act, subclauses (3), (5), (7)
and (9), read in conjunction with the definition of "owner" in clause 326, make the
person who owns a vessel potentially guilty of an offence under this clause only if that
person is on board the vessel operating the vessel or, whether or not on board the
vessel, is partially or wholly in control of the vessel. This means, in effect, that, if a
vessel is leased, the person who owns the vessel does not bear responsibility for any
violation of a safety zone by the lessee.
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In any case, if subclause (3) (5), (7) or (9) is infringed and the master of the vessel is a
different party from the owner or the lessee, this subclause provides that the master will
also be subject to prosecution for an offence.
This clause does not provide for a safety zone to be declared around a pipeline. This is
because Article 60 of the United Nations Convention on the Law of the Sea which
deals, among other things, with a State's right to declare safety zones in its exclusive
economic zone, has been interpreted as not including in its ambit the declaration of
safety zones around pipelines.
This clause does not specify a pecuniary penalty because pecuniary penalty is
automatically linked to the term of imprisonment in accordance with the formula set out
in section 4B of the Crimes Act 1914. In the case of an imprisonment term of 15 years,
the period converts to 15 x 12 = 180 months. Then 180 x 5 = 900 gives the maximum
number of penalty units of pecuniary penalty that would apply in the case of an offence
by an individual. In the case of an offence by a body corporate, the maximum penalty
would be 900 x 5 = 4500 penalty units. In the case of an imprisonment term of 12.5
years, the period converts to 12.5 x 12 = 150 months, giving maximum pecuniary
penalties of 150 x 5 = 750 penalty units in the case of an individual and 750 x 5 = 3750
penalty units in the case of a body corporate. In the case of an imprisonment term of 10
years, the period converts to 10 x 12 = 120 months, giving maximum pecuniary
penalties of 120 x 5 = 600 penalty units in the case of an individual and 600 x 5 = 3000
penalty units in the case of a body corporate. In the case of an imprisonment term of
5 years, the period converts to 5 x 12 = 60 months, giving maximum pecuniary
penalties of 60 x 5 = 300 penalty units in the case of an individual and 300 x 5 = 1500
penalty units in the case of a body corporate.
In accordance with current drafting practice, subclause (11) makes clear that the
declaration of a safety zone is not a legislative instrument in terms of the Legislative
Instruments Act 2003.
Equivalent provision in the PSL Act: section 119
Technical changes: change from mentions of a vessel "remaining in" a safety zone to
"being present in" a safety zone
Policy changes: the tiered penalty schedule for infringement of the clause, with
penalties ranging from a maximum 15 years imprisonment with proved intention to a
maximum 5 years imprisonment with strict liability; that the person who owns a vessel
can be guilty of an offence of transgressing a safety zone only if the person, whether or
not on board the vessel, is partially or wholly in control of the vessel
DIVISION 3--UNAUTHORISED VESSEL NOT TO ENTER AREA TO BE AVOIDED
Clause 330 - Designated Authority may authorise entry into area to be avoided
This clause allows the Designated Authority to permit entry into the area to be avoided
by a vessel upon application by its owner, which is to be interpreted as set out in clause
326. In other words, the application must be lodged by the person who owns the vessel
or, if the vessel has been leased, by the lessee of the vessel.
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Equivalent provision in the PSL Act: section 140C
Technical change: that the Designated Authority's authorisation allows the owner to
both enter and "be present in" the area to be avoided
Clause 331 - Unauthorised vessel not to enter area to be avoided
This clause sets out the circumstances in which an offence is committed if a vessel
enters or is present in the area to be avoided. The circumstances are modified in part
by whether a state of emergency has been declared under clause 327. In any case, no
offence is committed if an authorisation issued by the Designated Authority under
clause 330 is in force in respect of the vessel.
Whether or not a state of emergency has been declared, an authorisation is required
for entry into the area by a vessel which is at sea for the purpose of exploring the
seabed or subsoil of the offshore area for petroleum or minerals or for the purpose of
exploiting the petroleum or minerals which occur as natural resources of that seabed
or subsoil. In this case the size, tonnage and nationality status of the vessel make no
difference. Only a Government vessel, defined in clause 326, is excepted from this
requirement. The exemption also applies to a Government vessel that is not engaged
in the abovementioned activities.
Whether or not a state of emergency has been declared, assuming one or more safety
zones have been declared in the area to be avoided (in this case referred to as
"prescribed safety zones"), any vessel exempted under subclause 329(1) from the
prohibition relating to the safety zone is likewise permitted to enter the area to be
avoided. This follows from use of the term "exempt vessel" (defined in clause 326) in
paragraph 331(1)(b). These vessels would generally be work boats or supply vessels
servicing a petroleum facility.
If no state of emergency has been declared, and if one is talking about general
navigation, no authorisation is required in respect of a vessel the tonnage or length
characteristics of which do not exceed the thresholds specified in paragraphs (a) and
(b) of the definition of "relevant vessel" in clause 326, nor is an authorisation required
if the vessel, of whatever size or tonnage, is a foreign flag vessel, likewise defined in
clause 326.
If a state of emergency has been declared, general navigation will be more broadly
affected, as all non-foreign flag vessels, of whatever tonnage or length characteristics,
will require an authorisation under clause 330 to enter or be present in the area to be
avoided.
Criminal law policy has evolved since the 5 year maximum imprisonment penalty was
inserted into section 140D of the Petroleum (Submerged Lands) Act in 1984.
Accordingly, in subclauses (1) to (8), this clause includes amendments in the form of
a tiered penalty schedule for infringements of the area to be avoided. If intention is the
required fault element for the vessel entering or being present in the area to be
avoided, the maximum penalty is to be 7.5 years imprisonment. If recklessness is the
required fault element for the vessel entering or being present in the area to be
avoided, the maximum penalty is to be 6.25 years imprisonment. If negligence is the
required fault element for the vessel entering or being present in the area to be
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avoided, the maximum penalty is to be 5 years imprisonment. The lowest tier offence
will be an offence of strict liability with a maximum penalty of 2.5 years
imprisonment. This represents a reduction of the maximum penalty where strict
liability applies. There are no fault elements for the strict liability offence. Further
details about strict liability are set out in the note about clause 307.
While imprisonment penalties of any term are not consistent with criminal law policy in
its general application to strict liability offences, the use of imprisonment with strict
liability is justified in this instance because of the potentially serious consequences of a
breach of the provision. The strict liability is designed to maximise legal protection for
offshore petroleum facilities from impact by a vessel or unauthorised boarding. The
provision recognises the isolation, vulnerability and physical defencelessness of
offshore petroleum facilities, their possible attractiveness as terrorist targets and the
potentially serious consequences of damage to, or interference with, facilities or
operations.
The proposed Act should maintain a conspicuous deterrent, as set out in this clause, to
persons committing acts of negligent or reckless navigation or otherwise dangerous
conduct which could place at risk the lives of scores of people on board offshore
petroleum facilities and threaten the marine environment. When legislators are
considering alleged offences that may occur in an offshore area, they need to be
realistic about the viability of conducting a successful prosecution with proof of
intention, recklessness or negligence. Therefore, an imprisonment penalty with strict
liability is warranted under this provision.
In every case, whether or not a state of emergency has been declared, subclause (9)
provides a defence to prosecution for an offence under this clause. One point of
significance of the defendant bearing a legal burden of proof is that the proof must be
discharged on the balance of probabilities.
This clause does not specify a pecuniary penalty because pecuniary penalty is
automatically linked to the term of imprisonment in accordance with the formula set out
in section 4B of the Crimes Act 1914. In the case of an imprisonment term of 7.5 years,
the period converts to 7.5 x 12 = 90 months. Then 90 x 5 = 450 gives the maximum
number of penalty units of pecuniary penalty that would apply in the case of an offence
by an individual. In the case of an offence by a body corporate, the maximum penalty
would be 450 x 5 = 2250 penalty units. In the case of an imprisonment term of 6.25
years, the period converts to 6.25 x 12 = 75 months, giving maximum pecuniary
penalties of 75 x 5 = 375 penalty units in the case of an individual and 375 x 5 = 1875
penalty units in the case of a body corporate. In the case of an imprisonment term of 5
years, the period converts to 5 x 12 = 60 months, giving maximum pecuniary penalties
of 60 x 5 = 300 penalty units in the case of an individual and 300 x 5 = 1500 penalty
units in the case of a body corporate. In the case of an imprisonment term of 2.5 years,
the period converts to 2.5 x 12 = 30 months, giving maximum pecuniary penalties of 30
x 5 = 150 penalty units in the case of an individual and 150 x 5 = 750 penalty units in
the case of a body corporate.
Equivalent provision in the PSL Act: section 140D
Technical change: substitution of "is present in" for "remains in"
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Policy changes: the tiered penalty schedule for infringement of the clause, with
penalties ranging from a maximum 7.5 years imprisonment with proved intention to a
maximum 2.5 years imprisonment with strict liability; omission of reference to
$50,000 penalty
DIVISION 4--POWERS OF AUTHORISED PERSONS
Clause 332 - Requirement to move vessel etc.
This clause sets out the powers that an authorised person may exercise in all cases
without a warrant. The powers all relate to moving a vessel out of, or away from the
vicinity of, the area to be avoided or a safety zone. Unless the master of the vessel
voluntarily allows the authorised person to board the vessel, these powers would
normally be exercised using radio communication or a loudspeaker.
Accordingly, the acts of hindrance or obstruction referred to in subclause (3) would not
normally be acts of physical hindrance or obstruction of an authorised person on board
the vessel that is being ordered to leave the area to be avoided or the safety zone. An
offence against subclause (3) would more likely be constituted by actions such as
switching off a radio connection between the authorised person and the master of the
vessel.
While paragraph (1)(c)(iii) refers to the possibility of a vessel inflicting damage on a
pipeline, this does not mean a safety zone would be declared around a pipeline per se
(the note to clause 329 refers). Paragraph (1)(c)(iii) refers primarily to a segment of a
pipeline that may lie in the water column in proximity of a terminal station around
which a safety zone has been declared.
Section 149.1 of the Criminal Code provides, in part, that a person is guilty of an
offence if:
(a) the person knows that another person is a public official; and
(b) the first-mentioned person obstructs, hinders, intimidates or resists the official in
the performance of the official's functions; and
(c) the official is a Commonwealth public official; and
(d) the functions are functions as a Commonwealth public official.
The offence provisions in this clause do not specify a fault element. Under section 5.6
of the Criminal Code, if an offence provision does not specify a fault element and if
the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provisions in the PSL Act: paragraphs 140E(1)(c), (d) and (f) and (2)(c) and
(e)
Clause 333 - Other powers of authorised persons
This clause sets out the powers that an authorised person may normally exercise only
with a warrant or after obtaining the permission of the master of the vessel in question.
This reflects the fact that these powers are of a more intrusive nature than the ones set
out in clause 332 and relate to laying the grounds for a prosecution. Clause 335 sets out
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the circumstances under which an authorised person may exercise these powers without
a warrant or the master's consent.
The offence set out in subclause (3) refers to situations such as a person on board the
vessel declining to answer a question asked by the authorised person. The offence set
out in subclause (5) refers to situations such as a person failing to provide the physical
means by which the authorised person may board the vessel from a dinghy. The offence
set out in subclause (8) refers to situations such as the master declining to open a
combination safe for the authorised person. Subclause (9) refers to persons who do not
necessarily have any position of authority on board the vessel, for example junior crew-
members, but who nevertheless hinder or obstruct the authorised person in some way.
The grounds for the offence against subclause (5) being proposed to be one of strict
liability are basically the same as those discussed under clause 307, ie the offence
created by the statutory obligation in this clause could be difficult to establish if the
prosecution were required to prove intention with respect to the alleged offence. Further
details about strict liability are set out in the note about clause 307.
Section 137.1 of the Criminal Code refers to information given to a Commonwealth
entity, given to a person who is exercising powers or performing functions under, or
in connection with, a law of the Commonwealth or given in compliance or purported
compliance with a law of the Commonwealth. In these situations, a person is guilty of
an offence punishable by 12 months imprisonment if the person gives the information
knowing that it is false or misleading or knowing that it omits any matter or thing
without which the information is misleading.
Some of the offence provisions in this clause do not specify a fault element. Under
section 5.6 of the Criminal Code, if an offence provision does not specify a fault
element and if the physical element of the offence consists only of conduct, the fault
element is intention. In other words, for a person to be found guilty of contravening
subclause (3), (8) or (9), the prosecution would have to prove intention.
Equivalent provisions in the PSL Act: paragraphs 140E(1)(a), (b), (e) and (g) and
subsections 140E(2), (2A) and (3)
Clause 334 - Warrants
This clause sets out the procedures and requirements that apply to seeking and
obtaining a warrant to exercise any or all of the powers referred to in clause 333 and the
conditions subject to which the warrant may be granted. Since the authorised person
may be on assignment well away from land, this clause does not require the warrant to
be sought by the authorised person himself or herself.
For purposes of this clause, under subsections 16C(2) and (3) of the Acts Interpretation
Act, a "Magistrate" means a Chief, Police, Stipendiary, Resident or Special Magistrate
of a State or Territory, or any other magistrate in respect of whose office an annual
salary is payable, but does not include a Federal Magistrate.
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Equivalent provisions in the PSL Act: subsections 140F(1), (2) and (3)
Policy changes: that the information laid before the magistrate may equally well be on
affirmation as on oath; that a Justice of the Peace no longer has authority to issue a
warrant
Clause 335 - Exercise of powers in serious circumstances
This clause provides that, in serious circumstances of a kind that justify immediate
action, an authorised person may exercise without a warrant the powers set out in
clause 333. For example, if an authorised person on assignment in the area to be
avoided makes observations which suggest that a vessel is about to be used in an act of
terrorist sabotage against a petroleum facility and the master fails to respond to an
instruction from the authorised person to take the vessel outside the area to be avoided,
the authorised person could justifiably board the vessel and detain it without obtaining a
warrant.
Equivalent provision in the PSL Act: section 140G
Part 4.6--Collection of fees and royalties
DIVISION 1--FEES PAYABLE UNDER THE ANNUAL FEES ACT
Clause 336 - When fee due for payment
The background to this clause, and to all the other clauses in Part 4.6, is that section
55 of the Constitution states, in part: "Laws imposing taxation shall deal only with the
imposition of taxation, and any provision therein dealing with any other matter shall
be of no effect."
If an amount collected from industry is a tax, then the Act imposing that tax may deal
with the creation of the liability and discuss the tax base but provisions about
collection of the tax, including penalty and interest for late payment, must be placed
in another Act.
Based on the current interpretation of the Constitution, annual fees payable under the
Petroleum (Submerged Lands) (Fees) Act 1994 are not taxes. Nevertheless, it is
considered prudent, in the rewrite of this Fees Act, to exclude from the equivalent
Offshore Petroleum (Annual Fees) Bill all collection and penalty provisions and to
place them in this Bill. This will ensure that, in the event that a new interpretation of
section 55 of the Constitution were at some future time accepted by courts, annual
fees could continue to be collected.
Replicating provisions in the Petroleum (Submerged Lands) (Fees) Act, this clause
provides a due payment date for annual fees.
Equivalent provisions in the Petroleum (Submerged Lands) (Fees) Act: subsections
4(3) and (4)
Policy change: conversion of "one month" to "30 days"
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Clause 337 - Late payment penalty
This clause provides for late payment penalty of 0.333333% per day in respect of
annual fees that are in arrears after the 30 day period specified in clause 336. Thus if,
say, a $1,500 annual fee payment for an exploration permit is late by one day, the
total payable becomes $1,505. If the fee is late by 7 days, the total payable becomes
$1,535.
Equivalent provision in the Petroleum (Submerged Lands) (Fees) Act: section 5
Clause 338 - Recovery of annual fee debts
This clause provides that annual fee debts, including late payment penalty, are
recoverable by the Commonwealth through legal action. This is quite separate from
the fact that, after 90 days, failure to pay an amount owed under the Annual Fees Act
would also constitute grounds for cancelling the title under clause 237.
Equivalent provisions in the Petroleum (Submerged Lands) (Fees) Act: subsections
6(1) and (2)
Clause 339 - Amounts payable to the Designated Authority
This clause provides that a titleholder is to make annual fee and any penalty amount
payments to the Designated Authority in respect of the offshore area in which the title
area is located.
Equivalent provision in the Petroleum (Submerged Lands) (Fees) Act: subsection 6(3)
DIVISION 2--FEES PAYABLE UNDER THE REGISTRATION FEES ACT
Clause 340 - Fees payable to the Designated Authority
The points made in the note on clause 336 about section 55 of the Constitution are
even more applicable to the Petroleum (Submerged Lands) (Registration Fees) Act
1967, rewritten as the Offshore Petroleum (Registration Fees) Bill. Registration fees
under that Act are in fact a tax. The content of the Offshore Petroleum (Registration
Fees) Bill should therefore be limited to creation of the liability and discussion of the
tax base.
In rewriting the Petroleum (Submerged Lands) (Registration Fees) Act, only one
detail has been identified that should more appropriately go into this Bill rather than
into the Offshore Petroleum (Registration Fees) Bill. This is the provision set out in
this clause specifying that a titleholder is to make registration fee payments to the
Designated Authority in respect of the offshore area in which the title area is located.
Equivalent provision in the Petroleum (Submerged Lands) (Registration Fees) Act:
subsections 4(2) and (7)
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DIVISION 3--ROYALTIES PAYABLE UNDER THE ROYALTY ACT
Clause 341 - When royalty due for payment
The points made in the note on clause 336 about section 55 of the Constitution are
also applicable to the Petroleum (Submerged Lands) (Royalty) Act 1967, rewritten as
the Offshore Petroleum (Royalty) Bill.
Like annual fees, based on the current interpretation of the Constitution, royalty
payable under the Petroleum (Submerged Lands) (Royalty) Act is not a tax.
Nevertheless, it is considered prudent, in the rewrite of this Royalty Act, to exclude
from the equivalent Offshore Petroleum (Royalty) Bill all collection and penalty
provisions and to place them in this Bill.
Accordingly, this clause provides that royalty payable in respect of petroleum
recovered during a particular calendar month is payable at the end of the following
calendar month. This follows from the meaning of "royalty period" in the Offshore
Petroleum (Royalty) Bill.
Equivalent provision in the Petroleum (Submerged Lands) (Royalty) Act: subsection
11(2)
Clause 342 - When adjusted amount due for payment
This clause refers to the situation envisaged in clauses 15 and 16 of the Offshore
Petroleum (Royalty) Bill where the Designated Authority determines a provisional
value in respect of a given amount of petroleum followed by the payment of provisional
royalty on it and the amount of the finally determined royalty is greater than the amount
of the provisional royalty. This clause also refers to the situation envisaged in
paragraph 16(1)(b) of that Bill where an error has been made and the amount of the
correctly determined royalty is greater than the amount of erroneously calculated
royalty.
In either case, an adjustment is payable by the royalty payer and this clause sets out the
timeframe for that payment, specifically the end of the calendar month following the
month when the determination occurs or the error is notified to the royalty payer.
Equivalent provisions in the Petroleum (Submerged Lands) (Royalty) Act: subsection
11B(1) and paragraph 11B(2)(a)
Policy change: that payment of the adjustment amount is to occur by the end of the
following royalty period, ie calendar month, rather than within 28 days of the
determination or the corrected determination
Clause 343 - Late payment penalty
This clause provides for late payment penalty of 0.333333% per day in respect of
royalty payments that are in arrears after the end of the calendar month referred to in
clauses 341 and 342. Thus if, say, a $1m. royalty payment is late by one day, the total
payable becomes $1,003,333.33. If the fee is late by 7 days, the total payable becomes
$1,023,333.31.
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Subclause (4) envisages a situation where the Designated Authority chooses not to
determine a provisional value for petroleum recovered during a particular calendar
month and the titleholder and the Designated Authority are still negotiating about the
value of the recovered petroleum a few days before the end of the following calendar
month. If the value were agreed, say, a couple of days before the end of the month, it
would be unfair to expect the titleholder to complete payment action within that short
timeframe. Accordingly, this clause provides for a 7 day period of grace before
penalty accrual is triggered.
Subclause (6) makes explicit a point that is merely implied in the Petroleum
(Submerged Lands) (Royalty) Act, namely that, if an adjustment amount remains
unpaid after the end of the next calendar month after it is identified, penalty is levied
on that amount at the same rate as it would be levied on unpaid determined royalty
amounts and unpaid provisional royalty amounts.
Equivalent provision in the Petroleum (Submerged Lands) (Royalty) Act: section 11
Technical change: that royalty is specified to include adjustment amounts
Clause 344 - Recovery of royalty debts
This clause provides that royalty debts, including adjustment amounts and late
payment penalty, are recoverable by the Commonwealth through legal action. This is
quite separate from the fact that, after 90 days, failure to pay an amount owed under
the Royalty Act would also constitute grounds for cancelling the title under clause
237.
Equivalent provision in the Petroleum (Submerged Lands) (Royalty) Act: section 13
Clause 345 - Amounts payable to the Designated Authority
This clause provides that a titleholder is to make royalty, adjustment and any penalty
amount payments to the Designated Authority, which, in relation to the Royalty Act,
means the Designated Authority in respect of the Western Australian offshore area.
Equivalent provisions in the Petroleum (Submerged Lands) (Royalty) Act: subsections
5(1) and (1B) and section 13
Technical change: explicit mention of late penalty payments as amounts that are to be
included among payments to the Designated Authority
DIVISION 4 -FEES PAYABLE UNDER THIS ACT
Clause 346 - Fees payable under this Act
This clause refers to fees that are permitted to be prescribed under the proposed Act
for the grant, renewal or variation of titles, entry of a new name in the Register, access
to the Register or other instruments, the issue of certified copies of extracts from the
Register and of evidentiary certificates and access to cores, cuttings and samples
(under regulations) or to technical data (under regulations or Schedule 5).
164
This clause makes clear that the fees are to be paid by the member of the public to the
Designated Authority on behalf of the Commonwealth. The Designated Authority is
subsequently to pay the fees into Commonwealth Consolidated Revenue, from which
the moneys are later directed back to the Designated Authority.
Equivalent provisions in the PSL Act: no exact equivalent but implied in paragraphs
21(1)(f), 22A(5)(h), 24(1)(a), 30(2)(c), 38A(2)(e), 38BB(2)(e), 38F(2)(d), 41(1)(e),
48(1)(a), 51(2)(e), 54(2)(d), 59B(2)(d), 59K(2)(d), 64(1)(f), 71(2)(e), 111(2)(d),
118(1B)(b), 118(2)(b), 118(5)(c) and 118(5A)(b) [provisions under section 118 are
still in force only under a transitional provision]
Technical change: the explicit recognition that these fees are payable to the
Designated Authority on behalf of the Commonwealth
Part 4.7 - Occupational health and safety
Clause 347 - Occupational Health and Safety
This clause gives effect to Schedule 3. However, since Schedule 3 applies only in
relation to `facilities' and a facility as defined in Schedule 3 is located in
Commonwealth waters, the effect of clause 347 is to apply Schedule 3 only to
`facilities' that are engaged in relevant petroleum activities in Commonwealth waters.
Equivalent provision in the PSL Act: subsection 140H(1).
Clause 348 - Listed OHS Laws
This clause itemises the `listed OHS laws'. However, this clause does not operate to
apply these laws; it merely provides a convenient means by which to refer to this
group of laws within other provisions of the Bill. The `listed OHS laws' are the
substantive occupational health and safety laws for which the regulatory responsibility
lies with the National Offshore Petroleum Safety Authority. The `listed OHS laws'
are Commonwealth laws, but the States and Northern Territory have agreed to
`mirror' these laws, thus maintaining a consistent set of OHS laws for offshore
petroleum activities, all of which will be administered by the National Offshore
Petroleum Safety Authority.
Equivalent provision in the PSL Act: subsection 140H(2)
Technical change: that if the listed regulations made under the Petroleum
(Submerged Lands) Act are renamed, this provision is amended by omitting the old
name of the regulations and substituting the new name
Policy changes: addition of clause 321, which relates to unlawful interference with
offshore petroleum activities, to the extent that this may affect occupational health
and safety; addition of regulations made for the purposes of Schedule 3 to the listed
OHS laws
Clause 349 - Regulations relating to occupational health and safety
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Subclause (1) provides that regulations may be made in relation to the health and
safety of persons at regulated operations sites, where those persons are under the
control of a person who is carrying out a regulated operation. Subclause (2) provides
that these regulations may require persons who are carrying out regulated operations
to establish and maintain systems for managing health and safety of persons under
their control. Subclause (3) clarifies that subclause (2) does not exhaustively specify
what the regulations made under this clause may cover.
Equivalent provision in the PSL Act: subsection 140I
Clause 350 - Commonwealth maritime legislation does not apply in relation to
facilities located in offshore areas
This clause provides that the `Maritime legislation' does not apply in relation to a
facility in the adjacent area of a State or Territory, while it is a facility (subclause (1)).
In the clause, `Maritime legislation' means the Navigation Act 1912, the Occupational
Health and Safety (Maritime Industry) Act 1993 (the OHS(MI) Act), and subordinate
legislation under those Acts (subclause (3)).
In general terms, the Navigation Act regulates ships. For instance, Part II of the
Navigation Act relates to masters and seamen, while Part IV is about ships and
shipping. The Navigation Act includes some special provisions relating to vessels and
other things involved in petroleum exploration and exploitation (see, for example,
sections 8, 8A and Part VB). Subordinate legislation under the Navigation Act
includes regulations, and also Marine Orders made by the Australian Maritime Safety
Authority (see subsection 425(1AA)). Presently, some Marine Orders also deal with
vessels involved in petroleum exploration and exploitation (see, for example, Marine
Orders Part 47, `Mobile Offshore Drilling Units', and Marine Orders Part 60 `Floating
Offshore Facilities').
The OHS(MI) Act establishes an occupational health and safety regime for the
maritime industry which applies in addition to the Navigation Act (see OHS(MI) Act,
section 7. Broadly, the application of Part II of the Navigation Act to ships is the
starting point for the application of the OHS(MI) Act (see the OHS(MI) Act definition
of `prescribed ship' in sections 4 and 6). There are also special provisions in the
OHS(MI) Act applying to certain off-shore industry mobile units (see the definition of
`prescribed unit' in sections 4 and 6).
For the purposes of Schedule 3 of this Bill, a `facility' includes some vessels which
would ordinarily be covered by the Maritime legislation. For instance, a vessel used
for processing, storage and offloading of petroleum, a drill ship, and a pipe lay barge,
will all generally be a `facility' covered by the occupational health and safety regime
established by Schedule 3.
Clause 350 makes it clear that, despite the terms of the Maritime legislation, , the
Maritime legislation will generally not apply in relation to a facility in an adjacent
area. Instead, Schedule 3 of this Bill will regulate those facilities. Because new
subclause (1) provides that the Maritime legislation does not apply `in relation to' a
facility in the adjacent area, the Maritime legislation will not apply to, for example, a
vessel, or people on that vessel, while the vessel is a facility in an adjacent area.
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However, when a vessel ceases to be a facility, clause 350 will no longer apply, and
the Maritime legislation will immediately apply to the vessel, according to its terms.
This may occur, for instance, if a vessel being used for petroleum activities ceases
those operations, and resumes normal navigation.
Subclause (2) will provide an exception to the general disapplication of the Maritime
legislation. That provision will ensure that the Maritime legislation is not disapplied
by subclause (1) to the extent that it relates to the transfer of persons or goods
between a ship and a facility. In general, in such a situation, there will be an overlap
of applicable laws. That is, provisions of both Schedule 3 of this Bill and the
Maritime legislation may apply to the transfer of persons or goods between a ship and
a facility. In any particular case, all of the relevant provisions of this Bill and the
Maritime legislation will have to be considered. The transfer of persons or goods
involves the potentially hazardous interaction of a facility and a ship. It is important
that in such a situation, both the facility and the ship be subject to appropriate safety
regulation.
Equivalent provision in the PSL Act: subsection 11A
Policy changes: that Commonwealth maritime legislation does not apply to a person
at a facility in an offshore area or near the facility (to the extent to which the person is
affected by the facility or activities that take place at the facility), and that the
Commonwealth maritime legislation does not apply to activities that take place at the
facility
Clause 351 - Commonwealth maritime legislation does not apply in relation to
facilities located in designated coastal waters
This clause essentially provides for the disapplication of the Maritime legislation in
certain designated costal waters in the same way as it is disapplied in an adjacent area.
The provision applies to designated coastal waters of a State or the Northern Territory
if the State or Territory PSLA and regulations substantially correspond to the `listed
OHS laws' defined in clause 348 of this Bill in their application to the designated
coastal waters (subclause 351(1)). In such a situation, subclause 351(2) disapplies the
Maritime legislation in the designated coastal waters to the same extent as clause 350
disapplies the Maritime legislation in the offshore area. That is, generally, the
Maritime legislation will not apply in relation to a facility in the designated coastal
waters, while it is a facility, but it will apply in relation to the transfer of persons or
goods between a ship and a facility.
This clause will operate when the State or Territory PSLA and regulations applying in
the designated coastal waters substantially correspond to the `listed OHS laws'. This
is because, in those circumstances, disapplication of the Maritime legislation is
appropriate so that the interaction of occupational health and safety laws and the
Maritime legislation in the designated coastal waters is similar to that in the offshore
area.
For the purposes of this clause, the terms `designated coastal waters', `State PSLA'
and `Territory PSLA' have the meanings they have for the purposes of Part 4.8 of this
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Bill. The term `Commonwealth maritime legislation' has the meaning it has in
clause 350.
Equivalent provision in the PSL Act: subsection 11B
Part 4.8 - National Offshore Petroleum Safety Authority
DIVISION 1 - INTRODUCTION
Clause 352 - Simplified outline
This clause gives a summary of Part 4.8. This summary does not form part of the
operative text of the proposed Act.
Equivalent provision in the PSL Act: section 150XA
Clause 353 - Definitions
This clause defines terms used in Part 4.8 that are relevant to the establishment,
administration and functions of the Safety Authority.
The terms "Board", "Board member" and "CEO" all relate to the National Offshore
Petroleum Safety Authority.
"Commonwealth waters" means the waters of the sea that comprise the offshore areas
of each State and of each Territory that are established by this Bill and together make
up the jurisdictional area to which the proposed Act would apply.
The term "designated coastal waters" in relation to a State or the Northern Territory
has the meaning given by clause 354. These are the waters to which the State and
Northern Territory Petroleum (Submerged Lands) Acts apply - i.e. the waters within
3 nautical miles of the territorial sea baseline, together with some areas landward of
the territorial sea baseline related to pre-1982 exploration permits issued under the
Commonwealth Petroleum (Submerged Lands) Act, which formerly extended into
these waters.
The term "facility" has the meaning that it has Schedule 3 and in the State and
Northern Territory `mirror' provisions. A `facility' therefore means a `facility'
located in Commonwealth waters, or in the designated coastal waters of a
State/Territory that has enacted provisions that `mirror' Schedule 3. The term
`facility' is fundamental to the occupational health and safety regime in Schedule 3
that is established by this Bill, and also to the safety case regime established by the
Petroleum (Submerged Lands) (Management of Safety on Offshore Facilities)
Regulations 1996 (`MSOF Regulations'). Schedule 3 and the MSOF Regulations are
concerned primarily with ensuring the occupational health and safety of persons at or
near a `facility'. Clause 4 of Schedule 3 to the proposed Act sets out the categories of
vessel or structure that are taken to be `facilities'.
The term "Northern Territory Petroleum Minister" means the Minister of the Northern
Territory who is responsible for the Territory Petroleum (Submerged Lands) Act,
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which applies within 3 nautical miles of the territorial sea baseline around the
Northern Territory. The term could also refer to an acting Minister.
The term "offshore petroleum operations" describes the scope of the petroleum
operations in respect of which the Safety Authority will exercise safety regulatory
functions under the Commonwealth and State/Northern Territory laws. The
operations covered by the definition are all operations at a facility, and all diving
operations (whether at a facility or not), that relate to exploration for petroleum, or the
recovery, processing, storage, offloading or transportation by pipeline of petroleum,
and that take place in Commonwealth waters or designated coastal waters. "Offshore
petroleum operations" do not equate to all offshore petroleum-related activities
carried on under a title issued under the proposed Act. This is because, apart from
petroleum-related diving, the Safety Authority's functions are confined to operations
at a facility. The vessels and structures that are facilities have been selected on the
basis that they present a safety risk to a significant number of people.
The term "OHS inspector" means an inspector appointed by the Chief Executive
Officer under clause 390. Schedule 3 and the occupational health and safety
regulations confer monitoring and enforcement powers directly on OHS inspectors
that are exercisable in Commonwealth waters. The same powers will be conferred on
OHS inspectors by the `mirror' legislation of the States and the Northern Territory, to
be exercised in the designated coastal waters of the relevant State or Territory. The
appointment of an OHS inspector is made only under the Commonwealth Act, but the
powers will be conferred by or under the Commonwealth, State and Northern
Territory Acts.
The term "regulated operation" includes an activity to which the core regulator
provisions of a State or Northern Territory PSLA apply, corresponding to Chapter 2
of the Bill.
The term "Safety Authority waters" means Commonwealth waters together with the
designated coastal waters of each State and of the Northern Territory.
The Safety Levies Act is the Offshore Petroleum (Safety Levies) Act 2003. That Act
imposes levies, which, together with the fees to be collected under this Bill, will fund
the safety regulatory activities of the Safety Authority under the Commonwealth,
State and Northern Territory PSLAs.
The term "State Petroleum Minister" means the Minister of a State who is responsible
for the State Petroleum (Submerged Lands) Act, which applies within 3 nautical miles
of the territorial sea baseline around the State in question. The term could also refer to
an acting Minister.
The Acts are specifically named in the definition of "State PSLA", and the Northern
Territory Act is named in the definition of "Territory PSLA".
Equivalent provision in the PSL Act: section 150XB
Policy changes: minor amendments to paragraph (b) in definition of "facility", ie
mention that the facility would have been a facility if it had been located in
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Commonwealth waters; that the Northern Territory Petroleum Minister and State
Petroleum Minister could be an acting Minister.
Clause 354 - Designated coastal waters
The purpose of this section is to ensure that the area comprising the designated coastal
waters in relation to a State or the Northern Territory for the purposes of Part 4.8
corresponds exactly to the area to which the relevant State or Northern Territory
PSLA applies from time to time. While the area described in Schedule 1 to this Bill
in relation to the States and the Northern Territory commences at the coastline, the
State and Northern Territory PSLAs generally apply only to the first 3 nautical miles
of the territorial sea, which commences at the territorial sea baseline. In many
localities, this baseline follows the coastline, but in other localities, for example
between the "jaws" of some bays, it follows a course some distance out to sea.
Landward of the baseline, State or Northern Territory onshore petroleum legislation
generally applies to any seabed petroleum exploration or recovery activities.
However, the Northern Territory PSLA and most State PSLAs allow for the fact that
permits may have been issued under the Commonwealth Petroleum (Submerged
Lands) Act prior to the commencement of the State or Territory PSLA, in respect of
title areas situated in an area landward of the territorial sea baseline but seaward of the
coastline of the State or Territory. Upon commencement of the State or Territory
PSLA, those titles were continued in force under the State or Territory PSLA. To the
extent that those titles, or titles derived from those titles, are still in force, the title
areas are still covered by the State or Territory PSLA. Paragraph (1)(b) therefore
includes those title areas in the term "designated coastal waters" in relation to the
relevant State or Territory.
The effect of subclauses (2) and (3) is that, if such a title area has at any time ceased,
or in future ceases, to be covered by a title under the relevant State or Territory PSLA
(so that the continuity of the titles is broken), the area is taken to have ceased to be
part of the designated coastal waters of that State or Territory for the purposes of Part
4.8. This mirrors the effect of the State and Territory PSLAs, which deem such an
area no longer to be covered by the Act.
Equivalent provision in the PSL Act: section 150XC
DIVISION 2 - ESTABLISHMENT, FUNCTIONS AND POWERS OF THE SAFETY
AUTHORITY
Clause 355 - Establishment of the National Offshore Petroleum Safety Authority
This clause continues the existence of the National Offshore Petroleum Safety
Authority, which was established by amendments to the Petroleum (Submerged
Lands) Act that came into effect on 1 January 2005.
Equivalent provision in the PSL Act: section 150XD
Clause 356 - Safety Authority's functions
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This clause confers general functions on the Safety Authority. Schedule 3, and the
Commonwealth regulations listed in, or prescribed under, clause 348 confer more
specific regulatory functions on the Safety Authority and on its OHS inspectors, in
Commonwealth waters. The State and Northern Territory `mirror' provisions will
confer equivalent functions within State and Northern Territory coastal waters.
The functions of the Safety Authority are all concerned with the occupational health
and safety of persons engaged in "offshore petroleum operations", which are a large
subset of the activities that make up the offshore petroleum industry. The term as
defined in clause 353 comprises offshore petroleum-related diving activities and other
offshore petroleum activities that take place at a facility. The Safety Authority will
therefore not regulate the safety of every petroleum-related activity. For example,
seismic survey vessels are not facilities, and operations carried out on those vessels,
except for diving activities, will not be within the Safety Authority's regulatory
functions and powers. The activities that will be regulated by the Safety Authority
are, generally speaking, those activities that pose a health and safety risk to a
significant number of people because of the presence of hydrocarbons (oil and gas).
Clause 356, together with clause 360, sets out the basis of the cooperative legislative
scheme enacted by the Commonwealth, the States and the Northern Territory.
Clause 356 provides for the offshore functions of the Safety Authority, under the
Commonwealth, State and Northern Territory PSLAs.
Paragraph 356(a) provides that the Safety Authority has the functions conferred on it
by or under `this Act' in relation to offshore petroleum operations in Commonwealth
waters. As far as `this Act' is concerned, Part 4.8 and Schedule 3 confer the Safety
Authority's functions. The reference to functions conferred under this Act is a
reference to functions conferred by or under the other laws referred to in clause 348.
These other laws, together with Schedule 3, make up the "listed OHS laws", which
are to be `mirrored' by the States and Northern Territory. In the event that there were
other regulations under the Commonwealth PSLA that conferred Commonwealth
functions on the Safety Authority in relation to offshore petroleum operations in
Commonwealth waters, paragraph 356(a) would pick these up also.
Paragraph 356(b) provides that the Safety Authority has the functions conferred on it
by or under a State PSLA or the Northern Territory PSLA in relation to offshore
petroleum operations in the designated coastal waters of that State or Territory. This
paragraph enables the States and the Northern Territory to confer functions on the
Safety Authority. This provision is necessary because the Safety Authority is a
Commonwealth statutory authority. The intended effect of paragraphs (a) and (b) in
combination, is that the Safety Authority will be able to exercise its safety regulatory
functions, in a seamless manner, in all offshore waters. This will occur, however,
only to the extent that States and the Northern Territory enact the necessary
amendments to their PSLAs and enact the `mirror' substantive occupational health
and safety laws ("the listed OHS laws").
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In order to implement the cooperative legislative scheme, it is intended that the States
and the Northern Territory will `mirror' paragraphs 356(b), (c), (d), (e), (f), (g) and
(h) in their PSLAs.
Paragraph 150XE(d) confers functions in relation to Commonwealth waters,
specifically the function of developing and implementing effective monitoring and
enforcement strategies to secure compliance by persons with their occupational health
and safety obligations under this Act (i.e. the Commonwealth Petroleum (Submerged
Lands) Act) and the regulations.
Paragraphs 356(c), (e), (f), (g) and (h) confer a range of promotional and reporting
functions on the Safety Authority in relation both to Commonwealth and
State/Northern Territory waters.
Paragraph (e) confers a broad investigatory and reporting function that goes well
beyond the categories of accidents and events that an operator of a facility is required
to notify to the Safety Authority under Schedule 3. It enables the Safety Authority to
enquire into anything that has, or may have, consequences for the occupational health
and safety aspects of offshore petroleum operations.
This paragraph and paragraph (f) give the Safety Authority broad powers to gather
and disseminate information and advice on occupational health and safety issues to
persons engaged in relevant operations, whether on a general or individual basis. The
Safety Authority does not have any function or power to provide consultancy services
on a fee-paying basis.
The function conferred by paragraph 356(h) of cooperating with other
Commonwealth, State and Northern Territory agencies having functions relating to
offshore petroleum operations is seen as an important aspect of the Safety Authority's
role. The functions and powers conferred on the Safety Authority by or under this
Bill, and by or under the State/Northern Territory PSLAs, will overlap to a significant
extent with the functions conferred by these same Acts on other agencies.
Equivalent provision in the PSL Act: section 150XE
Policy change: deletion of a reference to Commonwealth waters in paragraph (e)(i)
given that the Safety Authority will have the function to investigate accidents etc both
in Commonwealth waters and in the designated coastal waters of the States and of the
Northern Territory
Clause 357 - Policy principles
This clause sets out the arrangements under which policy principles relevant to the
performance of the Safety Authority's functions are to be determined. The Ministerial
Council on Mineral and Petroleum Resources, ie the Council consisting of the
Commonwealth, State and Territory Ministers responsible for mineral and petroleum
resources, has agreed that decisions as to the broad policy framework within which
the Safety Authority is to operate should be made at governmental level, but that
operational policy and strategy should be decided at CEO/Board level. This section
implements that agreement.
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The clause also establishes the role of State and Northern Territory Ministers in the
giving of policy principles to the Authority. This is one of the key provisions of the
Bill that establishes the accountability of the Safety Authority to Commonwealth,
State and Northern Territory Ministers. This is important, as policy principles that
relate to operations in the waters of one jurisdiction have the ability to affect
operations in the waters of other jurisdictions. In particular, policy principles that
relate to operations in Commonwealth waters have the ability to affect operations in
State and Northern Territory coastal waters.
The provisions set out in subclauses (1) to (4) require at least consultation with, and,
in the case of designated coastal waters, agreement by, State and Northern Territory
Petroleum Ministers. In all cases, the policy principles are to be tabled in each House
of the Australian Parliament.
Subclause (5) requires the Safety Authority to comply with any policy principles
when performing its functions.
In accordance with current drafting practice, subclause (6) makes clear that a policy
principle is a legislative instrument in terms of the Legislative Instruments Act 2003
as it can be regarded as determining the law or altering the content of the law, rather
than applying the law in a particular case.
Equivalent provision in the PSL Act: section 150XF
Clause 358 -Safety Authority's ordinary powers
Subclause 358(1) provides that the Safety Authority has power to do all things
necessary or convenient to be done for or in connection with the performance of its
functions. Subclause (2) specifies some of the more important examples of what this
means, but does not attempt to exhaustively list everything the Authority is
empowered to do.
Under paragraph (2)(b), the Safety Authority will have the ordinary powers of an
incorporated statutory authority to enter into contracts. This would include, for
example, a power to enter into a contract with a State or Territory, or a State or
Territory body for the provision of services to the Safety Authority. However, a
person could not, under such a contract, exercise any statutory powers on behalf of the
Safety Authority unless the person were properly authorised under this legislation to
exercise such powers, eg by the holding of a delegation or by appointment as an OHS
inspector.
Subclauses (3) and (4) provide that any property held by the Safety Authority is taken
to be the property of the Commonwealth and that any money received by the Safety
Authority is taken to be received by the Authority on behalf of the Commonwealth.
These provisions reflect the status of the Authority as a body to which the Financial
Management and Accountability Act 1997 applies. The Safety Authority therefore
does not hold money or property on its own behalf.
Equivalent provision in the PSL Act: section 150XG
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Clause 359 - References to functions and powers of the Safety Authority
Subclause 359(1) makes clear that any reference in Part 4.8 (other than in clause 360)
to the functions or powers of the Safety Authority includes a reference to the
functions or powers conferred on the Safety Authority by or under a State or Territory
PSLA, as well as to the functions or powers conferred by or under the proposed
Commonwealth Act. This is one of the intended effects of paragraph 356(b), but
clause 359 is included for the avoidance of doubt. As a consequence, all of the
provisions of Part 4.8 relating to the corporate governance of the Safety Authority (for
example, policy principles, advice and recommendations by the Board to the CEO,
corporate plans, ministerial directions), and any other provisions that relate to the
functions and powers of the Safety Authority (except clause 360) apply to all of the
Safety Authority's offshore operations, whether in Commonwealth waters or in
State/Northern Territory coastal waters.
Subclause 359(2) makes clear that this is not the case in relation to powers exercised
by the Safety Authority or its OHS inspectors under State or Northern Territory
onshore legislation (see clause 360). Provisions of Part 4.8 (other than clause 360) do
not apply to the exercise of powers under onshore legislation, unless the provision
refers expressly to clause 360.
Equivalent provision in the PSL Act: section 150XH
Technical change: explicit mention that a reference in Part 4.8 (other than in clause
360) to the powers of the Safety Authority does not include a reference to the powers
conferred on the Safety Authority by or under a law of a State or the Northern
Territory as permitted by clause 360
Clause 360 - Safety Authority may be given additional powers in certain
circumstances
This clause enables the States or the Northern Territory to confer powers on the
Safety Authority or its staff, including OHS inspectors, under onshore State or
Territory legislation. The powers that may be conferred under this onshore legislation
must be powers in relation to the occupational health and safety of persons who do
work in connection with petroleum exploration, recovery, processing, storage or
offloading, or petroleum pipelines. The geographical areas in which these onshore
powers may be exercisable may be:
an area or areas of land or water within the territorial limits of the State or
Territory (including internal waters, ie submerged areas within the limits of the
State or Territory) or
an area or areas of sea between the territorial sea baseline and the coastline that
is/are not covered by the State or Territory PSLA.
Subclause (1) provides that where a State or the Northern Territory confers such
powers, the Safety Authority and its staff (including OHS inspectors) may exercise
those powers but are not obliged to do so.
The governance regime established by Part 4.8 for the carrying out by the Safety
Authority of its functions and the exercise of its powers does not apply to the exercise
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of powers by the Safety Authority and its inspectors under State or Territory onshore
legislation. For example, the power of the Commonwealth Minister to give directions
in clause 402 does not apply. The governance regime established by the State or
Territory onshore legislation would apply in full to the exercise of these powers.
Subclause (2) provides that onshore powers may be conferred only on the Safety
Authority or on its staff/inspectors in relation to a vessel or structure (that need not be
a "facility" within the meaning of Schedule 7) that is owned or controlled, or that is
being constructed, operated or decommissioned, by a corporation to which paragraph
51(xx) of the Constitution applies. This paragraph is about the Australian Parliament
having power to make laws for the peace, order, and good government of the
Commonwealth with respect to foreign corporations, and trading or financial
corporations formed within the limits of the Commonwealth.
Subclause (3) requires that there be an agreement between the Commonwealth and the
State or Territory concerned as to the fees payable by the State or Territory for the
exercise of powers by the Safety Authority or its staff/inspectors under onshore
legislation. It is intended that there will be service level agreements, between the
Commonwealth and the State or Territory concerned, providing for the Authority's
services to be made available.
Equivalent provision in the PSL Act: section 150XI
Clause 361 - Power to refer certain matters to NOGSAC
This clause provides that the Safety Authority may refer a matter to the body that is
known as the National Oil and Gas Safety Advisory Committee (an industry-
government committee), or, if that body is disbanded, any successor body with similar
membership and function. Such matters must be of a general nature, and not related
to a particular case.
Equivalent provision in the PSL Act: section 150XJ
Clause 362 -Safety Authority is a body corporate
Clause 362 provides that the Safety Authority is a body corporate, that it must have a
seal and that it may sue and be sued. The clause includes standard provisions with
respect to the seal.
Equivalent provision in the PSL Act: section 150XK
DIVISION 3 - NATIONAL OFFSHORE PETROLEUM SAFETY AUTHORITY BOARD
Division 3 of Part 4.8 provides for the establishment, functions and membership of
the National Offshore Petroleum Safety Authority Board, the Board's procedures and
the terms and conditions of Board members.
SUBDIVISION A - ESTABLISHMENT, FUNCTIONS AND MEMBERSHIP
Clause 363 - Establishment of the Board
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This clause continues the existence of the National Offshore Petroleum Safety
Authority Board which was established by amendments to the Petroleum (Submerged
Lands) Act that came into effect on 1 January 2005.
Equivalent provision in the PSL Act: section 150XL
Clause 364 - Functions of the Board
This section confers functions on the Board in respect of advising and making
recommendations to various persons and bodies and enables the Commonwealth
Minister to add further functions. However, this power of the Commonwealth
Minister is circumscribed in that the notice by which it is exercised is a legislative
instrument which is disallowable by Parliament.
Subclause (3) affirms the Commonwealth Minister's oversight role in relation to the
Authority's actions by virtue of the requirement that the Minister must be given a
copy of every item of advice or recommendation that the Authority gives to the
specified parties other than the Minister.
Equivalent provision in the PSL Act: section 150XM
Clause 365 - Powers of the Board
This clause confers powers on the Board by reference to its functions as set out in
clause 364. The Board has power to do all things necessary or convenient to be done
for, or in connection with, the performance of its functions.
Equivalent provision in the PSL Act: section 150XN
Clause 366 - Membership
This clause relates to the membership of the Board. Board members are appointed in
writing by the Commonwealth Minister on the recommendation of the Ministerial
Council on Mineral and Petroleum Resources (see the note to clause 357), which
gives the State and Northern Territory governments a say in who is appointed.
Subclause (1) provides that the Board will consist of the Chair and four or six other
members. Assuming there are no vacancies, this means that the Board will have an
uneven number of members, which carries an obvious benefit if there is a vote.
Nevertheless, subclause (2) provides that the performance of functions or exercise of
powers by the Board will not be affected by a vacancy on the Board. The
Commonwealth Minister, or the Board itself, may determine procedures for Board
meetings, including procedures for resolving a deadlock in the case of a vacancy or an
absence (clause 367 refers).
Equivalent provision in the PSL Act: section 150XO
SUBDIVISION B - BOARD PROCEDURES
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Clause 367 - Board procedures
Subclause 367(1) provides that the Commonwealth Minister may determine, in
writing, certain matters relating to the operation of the Board. A non-exhaustive list
of matters which the Minister may determine is set out in paragraphs (1)(a) to (f).
These matters include disclosure of interests.
It is not envisaged that the holding by a Board member of a financial or other interest
in an entity whose activities are regulated by the Safety Authority would necessarily
preclude a person from holding office as a Board member. A Board member may in
fact be appointed because of his or her knowledge of, or experience in, the petroleum
industry. A person with such knowledge or experience may well have interests that
could raise a conflict of interest. It is envisaged that the Minister's determination
would set conditions relating to disclosure of such interests and impose rules to be
followed in the case of an actual conflict arising.
Subclause (2) enables the Board to determine the manner of its procedural operation if
no relevant Ministerial determination is in force.
Subclause (3) provides that any Ministerial determination made pursuant to subclause
(1) or any determination will be a legislative instrument in terms of the Legislative
Instruments Act 2003 and will thereby be subject to the requirements of that Act, for
instance those contained in Parts 5 and 6 relating to tabling in Parliament,
disallowance and sunsetting. In accordance with current drafting practice, subclause
(4) makes clear that a determination by Board members themselves is not a legislative
instrument.
Equivalent provision in the PSL Act: section 150XP
SUBDIVISION C - TERMS AND CONDITIONS FOR BOARD MEMBERS
Clause 368 - Terms of appointment and related matters for Board members
This clause provides that Board members are to be appointed on a part-time basis for
the period, not exceeding three years, as specified in the instrument of appointment.
In accordance with section 33(4A) of the Acts Interpretation Act 1901, the power to
appoint members of the Board in subclause 366(3) includes the power to re-appoint.
Board members may therefore hold office for successive terms.
Equivalent provision in the PSL Act: section 150XQ
Clause 369 - Remuneration and allowances of Board members
This clause sets out the means by which the remuneration and allowances of Board
members are to be determined.
Subclause (1) provides that the remuneration of Board members is to be determined
by the Remuneration Tribunal. However, if no determination by the Tribunal is in
operation, a Board member's remuneration will be paid pursuant to a determination
by the Commonwealth Minister.
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Subclause (2) provides that, notwithstanding subclause (1), remuneration will not be
paid to Board members who are full-time employees of a State or the Northern
Territory or an instrumentality of a State or the Northern Territory. There is no need
to make equivalent provision in relation to full-time employees of the Commonwealth
or a Commonwealth instrumentality, as subsection 7(11) of the Remuneration
Tribunal Act 1973 already does so.
Subclause (3) provides that a Board member is to be paid the allowances prescribed in
the regulations.
Subclause (4) provides that the operation of this section is subject to the
Remuneration Tribunal Act 1973. Among other things, this means that, from time to
time, the Remuneration Tribunal will be required to inquire into, and determine, or
redetermine, the remuneration of Safety Authority Board members (subsection 7(3) of
that Act refers).
Equivalent provision in the PSL Act: section 150XR
Clause 370 - Leave of absence of Board members
This clause provides that the Commonwealth Minister may grant leave of absence to
the Chair and determine the terms and conditions of such leave. Subclause (2)
provides that responsibility for granting leave to other Board members, and
determining the terms and conditions of such leave, falls on the Chair rather than on
the Minister.
Equivalent provision in the PSL Act: section 150XS
Clause 371 - Resignation of Board members
This clause requires written notice to be provided by a Board member wishing to
resign his or her position and specifies that the notice must be given to the
Commonwealth Minister.
Equivalent provision in the PSL Act: section 150XT
Clause 372 - Termination of appointment of Board members
This clause sets out the circumstances under which the Commonwealth Minster may
terminate the appointment of a Board member, including the Chair. The grounds are:
misbehaviour or physical or mental incapacity;
various circumstances relating to bankruptcy and insolvency ;
absence from three consecutive Board meetings unless the member is on approved
leave of absence;
failure to disclose, without reasonable excuse, interests in accordance with
requirements determined under clause 367; or
unsatisfactory performance for a significant period, as judged by the
Commonwealth Minister.
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Subclause (3) requires the Commonwealth Minister to consult with all responsible
State and Northern Territory Ministers before terminating the appointment of a Board
member.
Equivalent provision in the PSL Act: section 150XU
Clause 373 - Other terms and conditions of Board members
This clause enables the Commonwealth Minister to determine, for Board members,
terms and conditions of service that are not covered in this Bill. These could
encompass, for example, terms and conditions related to any additional functions that
the Commonwealth Minister has conferred on the Board under paragraph 364(1)(c).
Equivalent provision in the PSL Act: section 150XV
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Clause 374 - Acting Board members
This clause sets out arrangements in respect of the appointment of acting Board
members. Section 33A of the Acts Interpretation Act 1901 contains further provisions
with respect to acting appointments. This section deals with issues such as:
the fact that the appointment may be expressed to have effect only in the
circumstances specified in the instrument of appointment;
the appointer's right to determine the terms and conditions of the appointment,
including remuneration and allowances and terminate the appointment at any
time; and
a limit of 12 months on the length of acting appointments in cases where the
appointee is to act in a vacant office.
Equivalent provision in the PSL Act: section 150XW
DIVISION 4 - CHIEF EXECUTIVE OFFICER AND STAFF OF THE SAFETY
AUTHORITY
Clause 375 - Appointment of the CEO
This clause sets out provisions for the appointment of the CEO of the Safety
Authority.
Subclause (1) establishes the office of the CEO. Subclause (2) provides for the CEO
to be appointed by written instrument issued by the Commonwealth Minister.
Subclause (3) requires that any person appointed to the office of CEO by the
Commonwealth Minister must first be recommended to the Commonwealth Minister
by the Ministerial Council on Mineral and Petroleum Resources (see the note to
clause 357). Subclause (4) provides that the CEO is to be appointed on a full-time
basis. Subclause (5) provides that the appointment of a CEO will be for a term, not
exceeding five years, as specified by the Commonwealth Minister in the instrument of
appointment. However, the CEO can be re-appointed, as section 33(4A) of the Acts
Interpretation Act 1901 makes it clear that any power to appoint includes a power to
re-appoint.
Equivalent provision in the PSL Act: section 150XX
Clause 376 - Duties of the CEO
This clause establishes the duties of the CEO of the Safety Authority.
Subclause (1) provides that the CEO is responsible for managing the Safety
Authority. This confers on the CEO the ordinary management responsibilities of a
CEO. It is proposed that the Safety Authority will be prescribed by regulation under
the Financial Management and Accountability Act 1997 (`FMA Act') as a `prescribed
Agency' for the purposes of the FMA Act and that the CEO will be identified as the
`Chief Executive' of the Safety Authority for the purposes of that Act. The outcome
will be that the CEO has responsibility under the FMA Act for the management of the
financial resources of the Authority.
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Subclause (2) provides that anything done by the CEO in the name of the Safety
Authority or on the Safety Authority's behalf is taken to have been done by the Safety
Authority. Since the Safety Authority is a body corporate without members, this is
the means by which the Safety Authority will perform its functions and exercise its
powers. The subclause confers power on the CEO to act in the name of the Safety
Authority or on its behalf. This power can be delegated by the CEO under clause 385.
Equivalent provision in the PSL Act: section 150XY
Clause 377 - Working with the Board
This clause establishes the working relationship between the CEO and the Board.
Subclause (1) requires the CEO to request the Board's advice on strategic matters
relating to the performance of the functions of the Safety Authority. Subclause (2)
requires the CEO to have regard to that advice, but does not require the CEO to
follow it. Subclause (3) requires the CEO to keep the Board informed about the
Safety Authority's operations and to give the Board such reports, documents and
information as the Chair requires. Subclause (4) confers a right on the CEO to be an
observer at Board meetings. Given the CEO's other responsibilities, this right may be
exercised without the CEO being physically present at the meeting, for example via a
teleconference link.
Equivalent provision in the PSL Act: section 150XZ
Clause 378 - Remuneration and allowances of the CEO
This clause sets out the means by which the remuneration and allowances of the CEO
are to be determined.
Subclause (1) provides that the remuneration of the CEO is to be determined by the
Remuneration Tribunal. However, if no determination by the Tribunal is in operation,
the CEO's remuneration will be paid pursuant to a determination by the
Commonwealth Minister. Subclause (2) provides that the CEO is to be paid those
allowances which are prescribed. Subclause (3) provides that the operation of this
section is subject to the Remuneration Tribunal Act 1973. Among other things, this
means that, from time to time, the Remuneration Tribunal will be required to inquire
into, and determine, or redetermine, the remuneration of the CEO (subsection 7(3) of
that Act refers).
Equivalent provision in the PSL Act: section 150Y
Clause 379 - Leave of absence of the CEO
This clause establishes provisions for leave of absence by the CEO.
Subclause (1) provides that the CEO will have recreation leave entitlements as
determined by the Remuneration Tribunal. Subclause (2) provides that the
Commonwealth Minister may grant the CEO a leave of absence other than recreation
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leave on the terms and conditions determined by the Commonwealth Minister. This
could include, for example, leave on medical grounds.
Equivalent provision in the PSL Act: section 150YA
Clause 380 - Resignation of the CEO
This clause provides for the CEO to resign by giving the Commonwealth Minister a
written resignation.
Equivalent provision in the PSL Act: section 150YB
Clause 381 - Notification of possible conflict of interest by CEO
This clause sets out the requirements for the CEO to notify the Commonwealth
Minister of any conflict or potential conflict of interest he or she may have. While it
is recognised that a Board member may be appointed who has financial or other
connections with entities that carry on activities that are regulated by the Safety
Authority, the CEO must not have any interest that poses a significant risk of a
conflict of interest.
Under the provisions of this clause, the CEO must notify the Commonwealth Minister
in writing immediately if he or she:
acquires; or
becomes aware that he or she has already acquired; or
becomes aware that he or she is likely to acquire
a pecuniary or other interest which could conflict with the proper performance of the
duties of the CEO.
Equivalent provision in the PSL Act: section 150YC
Clause 382 - Termination of CEO's appointment
This clause sets out the circumstances under which the Commonwealth Minster may
terminate the appointment of the CEO. These are:
misbehaviour or physical or mental incapacity;
a number of circumstances relating to bankruptcy and insolvency which are listed
in subparagraphs (2)(a)(i) to (iv);
absence from duty for 14 consecutive days or 28 days in any 12 month period
except on approved leave of absence;
engaging in paid employment outside the duties of the office without the approval
of the Commonwealth Minister;
failure to comply, without a reasonable excuse, with the notification requirement
in clause 381 in relation to conflicts of interest ;
unsatisfactory performance for a significant period, as judged by the
Commonwealth Minister.
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Subclauses (3) to (5) set out procedures for handling potential conflicts of interest in
respect of the CEO.
Subclause (3) provides that if the Commonwealth Minister becomes aware, by means
of the operation of clause 381 or otherwise, that the CEO has an interest which could
conflict with the proper performance of his or her duties, the Commonwealth Minister
must make a written determination as to whether the interest poses a significant risk
of a conflict of interest. The Commonwealth Minister is not required to make any
such determination in respect of any possible future interests of the CEO.
Subclause (4) provides that if the Commonwealth Minister determines that the CEO
holds an interest which poses a significant risk of conflict with the proper
performance of the CEO's duties, the Commonwealth Minister must require the CEO
to dispose of the interest within a specified period.
Subclause (5) provides that if the Commonwealth Minister requires the CEO to
dispose of an interest pursuant to subclause (4), and the CEO refuses or fails to
comply with the requirement, the Commonwealth Minister must terminate the
appointment of the CEO.
Equivalent provision in the PSL Act: section 150YD
Clause 383 - Other terms and conditions
This clause enables the Commonwealth Minister to determine terms and conditions
not covered by this Bill in relation to the CEO. These could encompass, for example,
terms and conditions that match, or take account of, additional terms and conditions
determined by the Minister for Board members under clause 373.
Equivalent provision in the PSL Act: section 150YE
Clause 384 - Acting appointments
This clause makes provision for the appointment a person to act as the CEO. Further
provisions in relation to acting appointments are contained in section 33A of the Acts
Interpretation Act 1901. This section deals with issues such as:
the fact that the appointment may be expressed to have effect only in the
circumstances specified in the instrument of appointment;
the appointer's right to determine the terms and conditions of the appointment,
including remuneration and allowances and terminate the appointment at any
time; and
a limit of 12 months on the length of acting appointments in cases where the
appointee is to act in a vacant office.
Equivalent provision in the PSL Act: section 150YF
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Clause 385 - Delegation by CEO
This clause establishes provisions for the delegation of the CEO's functions and
powers.
The range of persons to whom the CEO may delegate functions or powers (including
the power in subclause 376(2) to act in the name of the Safety Authority or on its
behalf) reflects the legislative history of the Commonwealth Petroleum (Submerged
Lands) Act. The Safety Authority took over the safety regulatory function in
Commonwealth waters from the State and Northern Territory Designated Authority
staff who had been administering occupational health and safety in those waters under
the Commonwealth PSLA for over 20 years. The power of delegation in clause 385
will enable the Safety Authority to call on the regulatory experience and expertise that
is available among State and Territory employees, when required.
Subclause (1) provides that the CEO may delegate any of his or her powers or
functions (except the power to appoint OHS inspectors pursuant to clause 390) to a
person listed in paragraphs (1)(a) to (c), i.e.:
a member of staff of the Safety Authority
an employee of the Commonwealth or of a Commonwealth authority; or
an employee of a State or the Northern Territory or of an authority of a State or
the Northern Territory.
Subclause (2) requires that persons exercising powers under a delegation made
pursuant to subclause (1) must do so in accordance with any directions of the CEO.
Delegations given under this clause will have effect in accordance with section 34AA
and section 34A of the Acts Interpretation Act 1901. Section 34AA reads as follows:
"Where an Act confers power to delegate a function or power, then, unless the
contrary intention appears, the power of delegation shall not be construed as being
limited to delegating the function or power to a specified person but shall be
construed as including a power to delegate the function or power to any person from
time to time holding, occupying, or performing the duties of, a specified office or
position, even if the office or position does not come into existence until after the
delegation is given."
Section 34A reads as follows:
"Where, under any Act, the exercise of a power or function by a person is dependent
upon the opinion, belief or state of mind of that person in relation to a matter and that
power or function has been delegated in pursuance of that or any other Act, that
power or function may be exercised by the delegate upon the opinion, belief or state
of mind of the delegate in relation to that matter."
Equivalent provision in the PSL Act: section 150YG
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Clause 386 - Staff of the Safety Authority
This clause provides that the staff of the Authority must be persons engaged under the
Public Service Act 1999. For the purposes of that Act, the CEO and those employees
constitute a Statutory Agency and the CEO is the Head of that Statutory Agency.
Among other things, this means that the CEO has, in respect of the Authority's staff,
the rights, duties and powers that are prescribed by the Public Service Regulations
(subsection 20(2) of the Public Service Act refers).
Equivalent provision in the PSL Act: section 150YH
Clause 387 - Consultants and persons seconded to the Safety Authority
This clause provides that the CEO of the Safety Authority may, on behalf of the
Commonwealth, engage consultants to perform services for the Safety Authority, in
connection with the performance of any of its functions or the exercise of any of its
powers. The Safety Authority will determine in writing the terms and conditions of
such engagements.
This clause also provides that the Safety Authority may be assisted by officers and
employees of other Commonwealth "Agencies" (ie Departments or other agencies
covered by the Public Service Act) or "authorities" (ie statutory bodies not covered by
the Public Service Act), or by officers and employees of State or Northern Territory,
or of an authority of a State or Northern Territory.
The purpose of allowing such engagement or secondment is that offshore petroleum
activities are diverse in nature, whilst effective regulation of each activity may require
highly specific and detailed knowledge of that activity. The staff of the Safety
Authority will be selected so as to provide both breadth and depth of knowledge, but
occasions may still arise when there is a need to supplement the knowledge of the
available staff members. These occasions might include periods of absence of Safety
Authority staff having a particular area of expertise, or they might include
investigations into incidents where highly specialised knowledge is needed.
In accordance with current drafting practice, subclause (4) makes clear that any
written instrument involved in the engagement of officers or employees under
subclause (3) is not a legislative instrument in terms of the Legislative Instruments Act
2003.
Equivalent provision in the PSL Act: section 150YI
DIVISION 5 - CORPORATE PLANS
This Division sets out the requirements for the preparation by the CEO of corporate
plans and the governance requirements in relation to the approval of those plans,
including the role of State and Northern Territory Ministers in that process. This is a
further provision that makes the Safety Authority accountable to Commonwealth,
State and Northern Territory Ministers.
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Clause 388 - Corporate plans
Subclause (1) requires that the CEO prepare a corporate plan at least once every three
years and provide it to the Commonwealth Minister. Subclause (2) requires that a
corporate plan cover a period of at least three years. Subclause (3) requires that the
CEO inform the Commonwealth Minister of any significant changes to a corporate
plan or any matters which may arise which would significantly affect the Safety
Authority's capacity to meet the objectives of a corporate plan.
Paragraphs (4)(a) to (f) set out those matters which are required to be included in the
corporate plan. Subclause (5) provides that the Commonwealth Minister may require
that other matters, or additional details about matters set out in paragraphs (4)(a) to
(f), be included in the corporate plan.
Equivalent provision in the PSL Act: section 150YJ
Clause 389 - Responsible Commonwealth Minister's response to corporate plan
Subclause (1) requires that on receipt of a corporate plan, the Commonwealth
Minister must circulate it to the responsible State and Northern Territory Ministers
and consult with them on the contents of the plan. However, except as provided in
subclauses (6) and (7), the Commonwealth Minister is not bound by the views of the
State or Northern Territory Ministers on whether to approve the plan. Subclause (2)
requires the Commonwealth Minister to provide a response to the CEO in respect of a
corporate plan as soon as practicable after consultation with the responsible State and
Northern Territory Ministers is complete.
In responding to a corporate plan, the Commonwealth Minister may provide a written
direction to vary the corporate plan pursuant to subclause (3). However, consistent
with the plan's status as a strategic document, such a direction may not be given in
respect of particular offshore petroleum operations. If a direction is given, a revised
version of the plan must be provided to the Commonwealth Minister within 30 days.
Subclauses (6) and (7) provide that, before approving, or directing the variation of, a
part of a corporate plan relating specifically to the operations of the Safety Authority
in the designated coastal waters of one or more States or the Northern Territory, the
Commonwealth Minister must obtain the approval of each of the affected State or
Territory Ministers.
Equivalent provision in the PSL Act: section 150YK
DIVISION 6 - OHS INSPECTORS
Clause 390 - Appointment of OHS inspectors
This clause sets out provisions for the appointment of OHS inspectors, whose powers,
functions and duties are dealt with in Part 4 of Schedule 3 to this Bill. The range of
persons who can be appointed as OHS inspectors reflects, again, the legislative
history of the Commonwealth Petroleum (Submerged Lands) Act and the context in
which the Safety Authority took over the regulation of occupational health and safety
186
in Commonwealth and State/Northern Territory coastal waters (the note to clause 385
refers).
OHS inspectors appointed under this clause will exercise functions and powers in
State and Northern Territory coastal waters under the State and Territory PSLAs, as
well as in Commonwealth waters. It is therefore appropriate that there be the capacity
to appoint State and Territory staff as OHS inspectors. Moreover, State and Territory
staff will continue to carry out the day-to-day administration of the proposed new Act
in Commonwealth waters, in relation to matters other than safety - for example in
relation to resource management and environment protection.
Persons who are not staff of the Safety Authority nor State or Territory employees
may be appointed temporarily as OHS inspectors for specific functions. This power
to appoint OHS inspectors is expected to be used only rarely, where specific expertise
is required for a particular task or tasks that is not otherwise available to the Safety
Authority.
Subclause (4) provides that, in addition to the powers, functions and duties conferred
or imposed by or under this Act, an OHS inspector has the powers, functions and
duties that are conferred or imposed by or under a State PSLA or the Northern
Territory PSLA. This subclause enables the States and Northern Territory to confer
powers and functions and to impose duties on an OHS inspector appointed under the
Commonwealth Act.
Equivalent provision in the PSL Act: section 150YL
Clause 391 - Identity cards
This clause imposes requirements in relation to identity cards issued to OHS
inspectors. Subclause (3) makes it an offence for a person who has been issued with
an identity card, and who ceases to be an OHS inspector, to fail to return the identity
card as soon as is practicable. Subclause (4) provides that the person is not guilty of
the offence if the card was lost or destroyed. The evidential burden in relation to loss
or destruction of the card is placed upon the defendant, because the circumstances of
loss or destruction will be peculiarly within the knowledge of the defendant.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: section 150YM
DIVISION 7 - NATIONAL OFFSHORE PETROLEUM SAFETY ACCOUNT
Clause 392 - National Offshore Petroleum Safety Account
This clause establishes the National Offshore Petroleum Safety Account. It is a
Special Account for the purposes of the Financial Management and Accountability
187
Act 1997. The significance of this is that, although fees and charges collected by the
Safety Authority are received by the Authority on behalf of the Commonwealth and
therefore form part of the Commonwealth Consolidated Revenue Fund referred to in
section 81 of the Constitution, these moneys are, accounted for separately by means
of the Special Account arrangement.
Equivalent provision in the PSL Act: section 150YN
Clause 393 - Credits to the Account
This clause provides that the amounts that must be credited to the Special Account
are:
any amounts appropriated by the Parliament for the purposes of the Account;
amounts equal to the amounts paid for services provided by the Safety Authority
levied under clause 395;
amounts equal to the amounts paid by way of the safety inspection levy imposed
by the Offshore Petroleum (Safety Levies) Act 2003 (and any associated late
payment penalty);
amounts equal to the amounts paid by way of the safety case levy imposed by the
Offshore Petroleum (Safety Levies) Act (and any associated late payment
penalty);
amounts equal to the amounts paid by way of the pipeline safety management plan
levy imposed by the Offshore Petroleum (Safety Levies) Act (and any associated
late payment penalty);
amounts equal to the amounts paid by a State or the Northern Territory in respect
of the exercise of powers by the Safety Authority under State/Territory onshore
petroleum legislation, under clause 360;
amounts equal to any other amounts paid to the Authority on behalf of the
Commonwealth by a State or the Northern Territory; and
amounts equal to any other amounts paid to the Authority on behalf of the
Commonwealth, by any other person.
Equivalent provision in the PSL Act: section 150YO
Clause 394 - Purposes of the Account
This clause sets out the purposes of the Special Account. These are, in effect, the
carrying out by the Safety Authority of its functions and the exercise of its powers
under the Commonwealth, State and Northern Territory PSLAs and the exercise of
any powers conferred on it by State/Northern Territory onshore petroleum legislation.
Subsection 21(1) of the Financial Management and Accountability Act 1997
appropriates money standing to the credit of the Account for expenditure for those
purposes, up to the balance of the account for the time being.
Equivalent provision in the PSL Act: section 150YP
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DIVISION 8 - OTHER FINANCIAL MATTERS
Clause 395 - Fees and expenses incurred by the Safety Authority
This clause provides for the imposition of fees for services, in relation to regulatory
services provided by the Safety Authority. The fees must be set on a cost-recovery
basis, and do not constitute taxation.
The services for which these fees may be levied are the registration of persons as
operators of facilities under subclause 5(1) of Schedule 3, and the issue, variation or
transfer of licences granted under paragraph 17(3)(g) of Schedule 3.
Equivalent provision in the PSL Act: section 150YQ
Technical change: that, instead of a reference to fees in relation to services provided
by the Safety Authority (as in the PSL Act), the clause mentions fees in respect of
matters in relation to which expenses are incurred by the Safety Authority under the
proposed Act or the regulations, and specifies examples of actions under regulations
that attract fees as per paragraphs (1)(a) and (b)
Clause 396 - Safety investigation levy
This clause provides for the collection of the safety investigation levy imposed by the
Offshore Petroleum (Safety Levies) Act 2003.
The amount of levy payable by an operator will be set in the regulations at a level that
recovers the cost to the Safety Authority of conducting the investigation.
The investigation levy will become payable only once a threshold level of
investigatory cost is exceeded. That threshold will be high. This reflects the purpose
of imposing the investigation levy separately from the annual safety case levy or the
annual pipeline safety management plan levy. This is to avoid an unacceptable level
of cross-subsidisation between those operators whose activities require a high level of
investigatory activity by the Safety Authority and those whose activities do not.
Equivalent provision in the PSL Act: section 150YR
Policy change: change in rate of late payment penalty from 0.33% to 0.333333% per
day
Clause 397 - Safety case levy
This clause provides for the collection of the safety case levy imposed by the Offshore
Petroleum (Safety Levies) Act 2003. The annual safety case levy will recover the
regulatory costs of maintaining the safety case system.
Generally, the safety case levy is imposed for the whole period that a safety case is in
force in relation to a facility. However, subclause (1) provides that the regulations
may make provision for the remittal of part of an amount of safety case levy if the
facility is of a kind declared by the regulations to be a facility that operates on an
intermittent basis and the facility in fact operates for only part of the year. This is
intended to deal with the problem that some mobile facilities, such as drilling rigs, are
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commonly only in operation for periods of the year, and may spend a substantial part
of the year out of work. Under clause 4 of Schedule 3, such a vessel will be a
`facility' for only those parts of the year when it is in operation, and during the down
time will not be regulated by the Safety Authority. This clause therefore provides for
the remittal of part of the annual fee in these circumstances.
Equivalent provision in the PSL Act: section 150YS
Policy change: change in rate of late payment penalty from 0.33% to 0.333333% per
day
Clause 398 - Pipeline safety management plan levy
This clause provides for the collection of the pipeline safety management plan levy
imposed by the Offshore Petroleum (Safety Levies) Act 2003. The annual pipeline
safety management plan levy will recover the regulatory costs of maintaining the
safety management plan system in respect of pipelines.
Equivalent provision in the PSL Act: section 150YT
Policy change: change in rate of late payment penalty from 0.33% to 0.333333% per
day
Clause 399 - Liability to taxation
This clause exempts the Safety Authority from Commonwealth, State and Territory
taxes. This exemption does not extend to certain Commonwealth taxes, such as GST
or FBT, for which an express exemption is necessary.
Equivalent provision in the PSL Act: section 150YU
DIVISION 9 - MISCELLANEOUS
Clause 400 - Annual reports
This clause sets out requirements in relation to annual reports as they apply to the
Safety Authority and the Board.
Subclause (1) requires that, as soon as practicable after 30 June each year, the CEO
must prepare a report in relation to the operations of the Safety Authority during the
previous financial year. The CEO must provide the report to the Commonwealth
Minister and a copy of the report to each responsible State and Northern Territory
Minister and the Ministerial Council on Mineral and Petroleum Resources (see clause
357).
Subclause (3) sets out a similar requirement for the Chair of the Board to report on the
operations of the Board. Section 34C of the Acts Interpretation Act 1901 sets out
further requirements in respect of annual reports, for example that the report must be
submitted to the Minister within 6 months of the end of the financial year unless the
Minister grants a time extension.
Subclause (4) requires the Commonwealth Minister to cause a copy of each report to
be tabled in each House of Parliament within 15 sitting days of receiving the report.
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Equivalent provision in the PSL Act: section 150YV
Clause 401 - Ministers may require the Safety Authority to prepare reports or give
information
This clause provides that the Commonwealth Minister or responsible State and
Territory Minister may require the Safety Authority, by written notice, to prepare a
report or a document setting out information in relation to one or more specified
matters arising from the performance of its functions or the exercise of its powers.
Copies of any such report or document are to be provided to the Commonwealth
Minister and the responsible State and Northern Territory Ministers. Any such report
or document is to be prepared in the time specified in the notice requesting it.
In accordance with current drafting practice, subclauses (4) and (5) make clear that
reports and documents prepared under this clause are not legislative instruments in
terms of the Legislative Instruments Act 2003.
Equivalent provision in the PSL Act: section 150YW
Clause 402 - Responsible Commonwealth Minister may give directions to the Safety
Authority
This clause sets out the powers of the Commonwealth Minister to give directions to
the Safety Authority and the role of State and Northern Territory Ministers in the
giving of such directions. This is another of the key provisions that establishes the
accountability of the Safety Authority to Commonwealth, State and Northern
Territory Ministers.
Subclause (1) enables the Commonwealth Minister to give directions in writing to the
Safety Authority in respect of the performance of its functions and the exercise of its
powers.
Subclause (11) provides that, before giving a direction of general application, the
Commonwealth Minister must consult State and Northern Territory Ministers about
the direction.
The Commonwealth Minister's role being strategic rather than one involving
technical issues of day-to-day administration, subclause (2) prevents the
Commonwealth Minister from giving directions in respect of a particular facility.
However, subclause (3) provides that nothing in subclause (2) prevents the
Commonwealth Minister from directing the Safety Authority to investigate a
particular accident or dangerous occurrence at a facility.
Subclause (4) gives responsible State and Northern Territory Ministers the ability to
request that the Commonwealth Minister give a direction that relates wholly or
principally to the Safety Authority's operations in the designated coastal waters of the
State or Territory concerned. Subclause (5) provides that the Commonwealth
Minister must use his or her best endeavours to make a decision in relation to a
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request within 30 days. Subclause (6) provides that, if the Commonwealth Minister
refuses to give the direction, he or she must give written reasons for the refusal.
Subclause (7) provides that, before giving a direction that relates wholly or principally
to the Safety Authority's operations in the designated coastal waters of one or more of
the States or the Northern Territory, the Commonwealth Minister must obtain the
agreement of each responsible State or Northern Territory Minister concerned.
Subclause (4) means that a request from the Minister or all Ministers who is or are
affected would be sufficient evidence of agreement if the Commonwealth Minister
gave the direction in identical terms to what that request proposed.
Subclauses (8) to (10) set out the means by, and circumstances of urgency in which,
the Commonwealth Minister may give a direction which relates wholly or principally
to the Safety Authority's operations in the designated coastal waters of one or more
States or the Northern Territory without the prior approval of each relevant State and
or Northern Territory Minister. A direction given in these circumstances expires after
30 days unless, in the meantime, the agreement of affected State or Territory
Ministers has been obtained. A direction that expires may be re-issued in the same or
similar terms.
Subclause (12) provides that the Safety Authority must comply with a direction given
under this clause.
Subclause (13) provides that the scope of the directions that may be given under this
clause is not limited by the terms of clauses 356 (the power to give policy principles)
or 401 (the power to require reports and information).
In accordance with current drafting practice, subclause (14) makes clear that a
direction under this clause is a legislative instrument in terms of the Legislative
Instruments Act 2003.
Equivalent provision in the PSL Act: section 150YX
Clause 403 - Prosecutions by the Director of Public Prosecutions under mirror
provisions
This clause enables the States and Northern Territory to confer prosecutorial functions
and powers on the Commonwealth Director of Public Prosecutions in relation to
offences under State or Northern Territory `mirror' occupational health and safety
laws that substantially correspond to the `listed OHS laws'. The Director of Public
Prosecutions will have those functions and powers only if the State or Northern
Territory PSLA confers them in relation to the designated coastal waters of that State
or Territory.
Equivalent provision in the PSL Act: section 150YY
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Clause 404 - Australian Industrial Relations Commission may exercise powers under
mirror provisions
This clause enables the States and Northern Territory to confer functions on the
Australian Industrial Relations Commission in their `mirror' occupational health and
safety laws that substantially correspond to the `listed OHS laws'. The functions that
may be conferred on the Commission are functions that `mirror' its functions under:
clause 81 of Schedule 3, which enables a person to appeal against a decision of an
inspector; and
clause 23 of Schedule 3, which provides for the Commission to resolve
disagreements in relation to designated work groups.
Equivalent provision in the PSL Act: section 150YZ
Clause 405 - Reviews of operations of Safety Authority
This clause provides for the Commonwealth Minister to conduct 3-yearly reviews of
the operations of the Safety Authority in Commonwealth waters and State/Territory
coastal waters. There is capacity under this clause for the Commonwealth Minister's
review to be carried out in conjunction with reviews by State or Northern Territory
Ministers. It is expected that each of the State and Northern Territory Acts will
include a similar requirement for review by the responsible State or Territory Minister
of the operations of the Safety Authority in the designated coastal waters of the
relevant State or Territory.
Subclauses (1) to (5) provide that the Commonwealth Minister is to cause to be
conducted reviews of the operations of the Safety Authority relating to each 3-year
period after the commencement of operations of the Safety Authority on 1 January
2005. The Commonwealth Minister's review is to relate to operations in Safety
Authority waters -- i.e. both Commonwealth waters and State/Territory designated
coastal waters.
Subclause (6) provides that a responsible State or Northern Territory Minister may
request that a review under this clause be conducted in conjunction with a review of
the operations of the Authority in the designated coastal waters of that State or
Territory that is being conducted at the same time.
Subclause (7) provides that, without limiting the matters to be covered by a review,
the review must include an assessment of the effectiveness of the Safety Authority in
improving the occupational health and safety of persons engaged in offshore
petroleum operations.
Subclause (8) requires the tabling of any report of a review in each House of
Parliament within 15 sitting days of the report being made available to the
Commonwealth Minister.
Equivalent provision in the PSL Act: section 150Z
Chapter 5--Information
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Part 5.1--Data management and gathering of information
DIVISION 1--INTRODUCTION
Clause 406 - Simplified outline
This clause sets out a simplified outline of Part 5.1 about data management and
information gathering. This outline does not form part of the operative text of the
proposed Act.
Equivalent provision in the PSL Act: nil.
DIVISION 2--DATA MANAGEMENT
Clause 407 - Direction to keep records
This clause replicates the provisions of section 122 of the Petroleum (Submerged
Lands) Act, which confers on the Designated Authority a power to give directions to
titleholders or persons working under them about documenting a petroleum operation,
including action to collect cores, cuttings and samples.
Following amendments made to the Petroleum (Submerged Lands) Act in 2003, Data
Management Regulations have been promulgated (the provisions of clause 408 refer).
However, these Regulations do not empower the Designated Authority to give ad hoc
directions of immediate effect to individual titleholders or classes of titleholders to
deal with a situation where an unforeseen need arises to require the collection of data
or samples that have previously not been collected.
The direction-giving power in this clause is therefore proposed for retention. The
difference made by the existence of the Data Management Regulations is that, if a
direction were issued and the new requirement were to be a long-term one, the
Designated Authority would, in most cases, take steps to amend the data management
plans of the individual titleholder(s), or the Regulations themselves, to reflect the
change. After this process had been completed, the direction would be revoked.
While infrastructure and pipeline licences are not directed towards petroleum
exploration, data collected under these licences may include seismic reflection site
survey data and geological sample data. Such data or samples may be of interest to
explorers in the region who may be planning to drill wells. For this reason, persons
operating under infrastructure and pipeline licences are covered by this clause and
may be directed to hand such data or samples over to the Designated Authority or
another party.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
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In accordance with current drafting practice, subclause (6) makes clear that a direction
given by the Designated Authority under this clause to a particular person is not a
legislative instrument in terms of the Legislative Instruments Act 2003. Likewise, if
the Commonwealth Minister, under subclause (4), gives a direction to the Designated
Authority about a particular case, such a direction does not meet the criteria for being
a legislative instrument. However, if a direction under subclause (4) is of general
application, it is a legislative instrument, as the direction can then be regarded as
determining the law or altering the content of the law, rather than applying the law in
a particular case.
Equivalent provision in the PSL Act: section 122
Clause 408 - Regulations about data management
This clause enables regulations to be made for data collection, including requirements
for a titleholder to submit a data management plan. This is consistent with the move to
using objective-based regulations to deal with other detailed issues related to offshore
petroleum management. Under the Petroleum (Submerged Lands) Act, Data
Management Regulations are in fact in place under the powers set out in section
122A, which this clause replicates. The points made under clause 407 about
infrastructure and pipeline licences are equally applicable in relation to what the
regulations may provide.
As explained under clause 422, much of the information and material collected
through the operation of these Regulations will eventually become publicly available
and potentially useful to petroleum exploration companies with a future interest in the
same area. If such a company began to operate in the area, it would be required to
contribute to the database in its turn.
Equivalent provision in the PSL Act: 122A
DIVISION 3--INFORMATION-GATHERING POWERS
Clause 409 - Designated Authority or project inspector may obtain information and
documents
Whereas the two preceding clauses deal with what the Designated Authority may
require a titleholder to do to document a petroleum operation, this clause empowers
the Designated Authority or a project inspector to require any person (not necessarily
a titleholder) to provide factual information which is relevant for the proper
administration of the legislation. This would include information not documented in
writing, in most cases because the company's procedures or the Data Management
Regulations did not require it to be so documented. The powers set out in this clause
could be used by the Designated Authority in investigating, for example, an oil spill
incident on a production platform.
This clause is based on section 115 of the Petroleum (Submerged Lands) Act but the
provisions of that section are not as comprehensive as the information requirement
provisions inserted in more recently drafted Commonwealth Acts. Accordingly, a
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number of enhancements have been included in this clause (see "Policy changes"
listed below).
In paragraphs (1)(d) and (e), the giving of evidence is wider in ambit than the
answering of questions provided for in paragraph 115(1)(b) of the Petroleum
(Submerged Lands) Act. Evidence could include a written statement. This may extend
the ambit of the protection from self-incrimination provided by clause 412.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: subsection 115(1)
Policy changes: that the Designated Authority or a project inspector may require a
person to make copies of documents and produce those copies to the Designated
Authority or the project inspector; that the Designated Authority or a project inspector
may require a person to appear before the Designated Authority or the project
inspector and give evidence either orally or in writing (as distinct from merely
answering questions); in the case of a body corporate, that the Designated Authority
or a project inspector may require the body to cause a competent officer of the body to
appear before the Designated Authority or the project inspector; that the Designated
Authority or a project inspector may require information, documents or copies to be
produced within a period no shorter than 14 days after the date of the written notice;
that the Designated Authority or a project inspector may require the person to appear
before the Designated Authority or the project inspector on a date no earlier than 14
days after the date of the written notice; that the Designated Authority or a project
inspector must set out in the notice given to the person or company the penalties that
could follow from failure to provide information, evidence or documents as required,
or from giving false or misleading information, evidence or documents
Clause 410 - Copying documents--reasonable compensation
This clause refers to costs involved in copying documents at the Designated
Authority's or project inspector's direction and giving those copies to the Designated
Authority or project inspector. Without this clause, these costs could be deemed an
acquisition of property otherwise than on just terms. Accordingly, this clause inserts a
safeguard provision to ensure that the requirement to produce copies would not be
struck down as contrary to paragraph 51(xxxi) of the Constitution.
Equivalent provision in the PSL Act: nil.
Policy change: that a person is entitled to reasonable compensation for the costs of
copying documents and providing the copies in compliance with a notice given by the
Designated Authority or a project inspector
Clause 411 - Power to examine on oath or affirmation
This clause replicates a power of the Designated Authority or a project inspector
provided for in the Petroleum (Submerged Lands) Act. Examination of a witness on
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oath or affirmation could be appropriate, for example, in the course of an
investigation into damage to a petroleum production facility to ascertain whether
charges could be laid against a person (other than the witness) under clause 321.
Equivalent provision in the PSL Act: section 116
Clause 412 - Self-incrimination
This clause sets out a provision that is commonly used to override the usual rule that a
person is not bound to incriminate himself or herself. This clause also discharges the
person providing information or a document from any threat of civil proceedings on
the basis of that information or document.
If a person questioned under the powers conferred by clause 409 gives information
which, in other circumstances, would amount to a confession of an infringement
against the Act or an admission of liability, no effective prosecution or legal action
can generally be launched against that person unless other sufficiently strong evidence
is found. This partial immunity from legal consequences has the obvious benefit that
it increases the likelihood of a successful investigation. Where incidents related to
petroleum operations are concerned, it may occasionally be more important to
establish the facts than to be able to use the facts in a prosecution or legal action.
However, as set out in subparagraphs (2)(e)(i) and (ii), information or a document
given under clause 409 could be admissible in criminal proceedings if it provides
evidence of less than full compliance with a requirement to give information or a
document under that clause. Without this provision, there would be an inconsistency
with subclause 409(5), clauses 416 and 417 and sections 137.1 and 137.2 of the
Criminal Code, all of which assume it is possible to prosecute a person for failure to
properly comply with a requirement to give information or a document under clause
409. In such cases, the offending information or document would have to be an
important item of evidence against the defendant.
Equivalent provisions in the PSL Act: subsections 115(2) and (3)
Clause 413 - Copies of documents
This clause, like clause 409, adds to the proposed Act some items of detail that do not
appear in the Petroleum (Submerged Lands) Act but are normal in more recently
drafted Commonwealth Acts. Subsection 115(1) of that Act provides that documents
are to be produced to the Designated Authority or a project inspector but is silent on
what the Designated Authority or a project inspector may then do with the document.
This clause clarifies the provision.
Equivalent provision in the PSL Act: nil.
Policy change: that the Designated Authority or a project inspector may make and
retain copies or extracts of documents produced
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Clause 414 - Designated Authority or project inspector may retain documents
This clause, like the previous one and clause 409, adds to the proposed Act some
provisions related to information-gathering involving documents. These provisions do
not appear in the Petroleum (Submerged Lands) Act but are normal in more recently
drafted Commonwealth Acts. Subsection 115(1) of the Act is unclear on whether the
Designated Authority or the project inspector may hold on to documents produced for
any length of time. This clause clarifies that issue.
Equivalent provision in the PSL Act: nil.
Policy change: that the Designated Authority or a project inspector may take
possession of a produced original document for as long as is reasonably necessary but
must provide the person or company to whom it belongs a certified true copy which
will have the same status as the original in all courts and tribunals, and, until that copy
is provided, must give the person or company reasonable access to the original
document
Clause 415 - False or misleading information
Replicating a provision in the Petroleum (Submerged Lands) Act, this clause makes it
an offence against the proposed Act for a person to knowingly give information that is
false or misleading in a material particular when under a requirement under subclause
409(2). While the same conduct may be an offence against section 137.1 of the
Criminal Code, this provision is included to maintain uniformity with the provisions
in State and Northern Territory "mirror" Acts.
Section 137.1 of the Criminal Code refers to information given to a Commonwealth
entity, given to a person who is exercising powers or performing functions under, or
in connection with, a law of the Commonwealth or given in compliance or purported
compliance with a law of the Commonwealth. In these situations, a person is guilty of
an offence punishable by 12 months imprisonment if the person gives the information
knowing that it is false or misleading or knowing that it omits any matter or thing
without which the information is misleading.
Equivalent provision in the PSL Act: paragraph 117(1)(c)
Clause 416 - False or misleading documents
Replicating a provision in the Petroleum (Submerged Lands) Act, this clause makes it
an offence against the proposed Act for a person to knowingly produce a document
that is false or misleading in a material particular when under a requirement under
subclause 409(2). While the same conduct may be an offence against section 137.2 of
the Criminal Code, this provision is included to maintain uniformity with the
provisions in State and Northern Territory "mirror" Acts.
Section 137.2 of the Criminal Code refers to documents produced in compliance or
purported compliance with a law of the Commonwealth. In this situation, a person is
guilty of an offence punishable by 12 months imprisonment if the person produces a
document knowing that the document is false or misleading in a material particular.
198
Equivalent provision in the PSL Act: paragraph 117(1)(d)
Clause 417 - False or misleading evidence
This clause complements one of the new provisions inserted in clause 409, ie that the
Designated Authority or a project inspector may require a person to appear before the
Designated Authority or the project inspector and give evidence either orally or in
writing. Consistent with penalties in the Criminal Code, this clause prescribes the
penalty applicable to a person who knowingly gives evidence that is false or
misleading in a material particular.
Equivalent provision in the PSL Act: nil.
Policy change: that a 12 month imprisonment penalty applies if a person gives
evidence knowing that it is false or misleading in a material particular
Part 5.2--Release of regulatory information
Clause 418 - Notifiable events--Gazette notice
To provide an appropriate level of transparency to the management of petroleum
resources in Australia's offshore marine jurisdiction, this clause sets out a requirement
for certain administrative actions under the proposed Act to be publicly notified in the
Gazette. As set out in clause 442, this would be the Gazette of the State or Northern
Territory in the offshore area of which the area in question is located, or, in the case
of an external territory offshore area, the Commonwealth Gazette.
Equivalent provision in the PSL Act: section 94
Clause 419 - Designated Authority to make documents available to responsible
Commonwealth Minister
This clause implements a provision which originates from the principles set out in the
1967 agreement between the Commonwealth and the States (the note to clause 4
refers). Since the Commonwealth Minister will be answerable to the Australian public
through the Australian Parliament for the policies embodied in, and the working of,
the proposed Act, the Commonwealth Minister must have access to copies of all
documents received or issued by any of the Designated Authorities in connection with
the Act.
This clause refers primarily to documents of an administrative rather than a technical
kind. Documents containing technical information are subject to a similar
arrangement which is dealt with under clause 424.
Equivalent provision in the PSL Act: section 118A
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Part 5.3--Release of technical information
DIVISION 1--INTRODUCTION
Clause 420 - Simplified outline
This clause sets out a simplified outline of Part 5.3 dealing with the release of
technical information. This outline does not form part of the operative text of the
proposed Act.
Equivalent provision in the PSL Act: nil.
Clause 421 - Definitions
This clause inserts definitions which apply to the whole of this Part. The reason why
an "applicable document" must be a document that was given to the Designated
Authority on or after 7 March 2000 is that this is the date of effect of certain
amendments made by the Petroleum (Submerged Lands) Legislation Amendment Act
(No. 1) 2000. Any document given to the Designated Authority before this date is to
be dealt with under the provisions set out in Schedule 5, which is based on section
118 of the Petroleum (Submerged Lands) Act, which currently continues to have
effect only in respect of those documents (clause 431 refers).
In June 2004, the Data Management Regulations were promulgated, containing
provisions not only about the submission of data and samples to the Designated
Authority but also about the conditions under which this material may possibly later
be released to the public. Documents submitted during the period of effect of these
Regulations are mentioned separately in subparagraph (c)(iv) of the definition of
"applicable document". If this Bill is passed, the Regulations will be remade under
subparagraph (c)(ii). Because of the existence of these Regulations, subparagraph
(c)(i) would refer primarily to information given to the Designated Authority under a
direction given under clause 407 rather than under the Regulations. Subparagraph
(c)(iii) refers to documents submitted between 7 March 2000 and 4 June 2004, when
the Data Management Regulations came into effect.
The definition of "petroleum mining sample" is proposed to be expanded to include
samples of fluids other than petroleum. These could be water samples or samples of
gases that are not regarded as petroleum. Such samples could, however, have a
geoscientific significance for petroleum exploration.
Unlike with what applies to documents, the 7 March 2000 date is not relevant in
relation to petroleum mining samples. This is because the new system that was
introduced with effect from 7 March 2000 for documentary information was not
appropriate to be introduced in respect of petroleum mining samples. The difference
derives essentially from the fact that documentary information is intellectual property
whereas a petroleum mining sample is a physical entity.
Equivalent provisions in the PSL Act: section 150
Policy change: that a petroleum mining sample could be a sample of fluid recovered
other than fluid petroleum
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DIVISION 2--PROTECTION OF CONFIDENTIALITY OF INFORMATION AND
SAMPLES
SUBDIVISION A--INFORMATION AND SAMPLES OBTAINED BY THE DESIGNATED AUTHORITY
Clause 422 - Protection of confidentiality of documentary information obtained by the
Designated Authority
This clause places a general prohibition on publishing or disclosing documentary
information except as specified. This clause specifies or acknowledges the scenarios
under which documentary information may be released or disclosed by the
Designated Authority.
As implied under paragraph (2)(b), the Designated Authority may release any
information to any Commonwealth Minister, for example the Minister administering
the proposed Act or the Minister administering Commonwealth environment
legislation. Equally, the Designated Authority may release information to any State
Minister (including a Minister of another State) or a Northern Territory Minister. This
is to ensure proper coordination of programs in the various government agencies that
are concerned with Australia's marine jurisdiction.
Under paragraph (2)(c), the Designated Authority may release information if it is, and
on the terms that it is, allowed by the regulations, viz the Data Management
Regulations. It is only by this mechanism that the Designated Authority may grant
public access to technical information.
Where the Regulations allow release of the data, they generally impose some period
of delay on their public availability. Seismic survey companies, which draw their
income from selling survey data to petroleum explorers, are particularly reliant on this
period of confidentiality. On the other hand, much of the information and material
collected through the operation of these Regulations will eventually become publicly
available and potentially useful to petroleum exploration companies with a future
interest in the area over which the submitter of the information held a title. If such a
company began to operate in the area under a new title, it would be required to
contribute to the database in its turn.
Under paragraph (2)(d), the Designated Authority may release any information for the
purposes of the administration of the proposed Act or the regulations. An information
release under this provision might be made, for example, to Australian Government
geoscientists, who will have a role in administering the proposed Act.
Equivalent provision in the PSL Act: section 150B
Clause 423 - Protection of confidentiality of petroleum mining samples obtained by
the Designated Authority
This clause sets out provisions analogous to clause 422 about the Designated
Authority making details about petroleum mining samples publicly known or
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permitting persons to inspect samples. The scenarios and grounds for access are
identical to the ones set out under clause 422.
Equivalent provision in the PSL Act: section 150C
Clause 424 - Designated Authority may make information or samples available to a
Minister, a State Minister or a Northern Territory Minister
This clause makes explicit what is implied by paragraphs 422(2)(b) and 423(2)(b), ie
that the Designated Authority may release any information or petroleum mining
sample to any Commonwealth Minister, State Minister or Northern Territory
Minister.
Secondly, this clause provides that the Commonwealth Minister may require the
Designated Authority to make available to him or her any item of documentary
information or petroleum mining sample. If such a request were made, it would
normally be for the purpose of analysis by Australian Government officials or
geoscientists involved in administering the Act or for convenience of storage in a
central location.
Equivalent provision in the PSL Act: section 150D
SUBDIVISION B--INFORMATION AND SAMPLES OBTAINED BY A MINISTER
Clause 425 - Protection of confidentiality of information obtained by a Minister
This clause refers to documentary information that the Designated Authority has
made available to the Commonwealth Minister administering the proposed Act. This
clause places on the Commonwealth Minister the same restrictions regarding the
public release of that information as apply under clause 422 to the Designated
Authority who passed on the information.
Equivalent provision in the PSL Act: section 150E
Clause 426 - Protection of confidentiality of petroleum mining samples obtained by a
Minister
This clause refers to petroleum mining samples that the Designated Authority has
made available to the Commonwealth Minister administering the proposed Act. This
clause places on the Commonwealth Minister the same restrictions regarding public
access to that sample, or information about it, as apply under clause 423 to the
Designated Authority who made the sample available to the Commonwealth Minister.
Equivalent provision in the PSL Act: section 150F
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SUBDIVISION C--MISCELLANEOUS
Clause 427 - Fees
This clause refers to a Designated Authority or the Commonwealth Minister making
information available to a member of the public or permitting a member of the public
to examine a petroleum mining sample in accordance with the regulations. This clause
enables the regulations to prescribe a fee to recover from that member of the public
expenses incurred by the Designated Authority or Commonwealth Minister in giving
this access. This would include expenses such as staff time spent in searching for the
document or sample, photocopying and mailing costs.
If the Designated Authority releases the information or sample, the fee is payable to
the Designated Authority, who is to remit it to the Commonwealth Consolidated
Revenue Fund (clause 346 refers). These moneys are then dealt with as set out in
clause 55. If the Commonwealth Minister releases the information or sample, the fee
is payable to the Commonwealth. In that case the recipient of the fees would be the
Department or one of the Portfolio agencies of the Commonwealth Minister
administering the proposed Act.
Equivalent provision in the PSL Act: section 150G
Clause 428 - Review by Minister
This clause enables the regulations to include provision for a Designated Authority's
decisions in relation to information release or access to a sample to be reviewed by
the Commonwealth Minister administering the proposed Act. This allows the
maintenance of a policy that has been in force under the Petroleum (Submerged
Lands) Act since 1985. The basic principle behind this policy is that if the public
release of information would disclose a trade secret or adversely affect a company's
lawful business or financial affairs, that information should not be released, or release
should at least be deferred. Decision on issues of this type can occasionally be
disputed, and it is therefore desirable for them to come within the ambit of
administrative review.
Equivalent provision in the PSL Act: section 150H
Clause 429 - Privacy Act
The Privacy Act 1988 deals with personal information about an individual. Relatively
little information of this type would be in the possession of a Designated Authority.
To the extent that it is, this clause makes it clear that, under the regulations, the
Privacy Act principles, or some stronger prohibition, would apply to its release. For
example, particulars about the technical qualifications of an applicant for a title could
not be disclosed to third parties in contravention of the Privacy Act.
Equivalent provision in the PSL Act: section 150J
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DIVISION 3--COPYRIGHT
Clause 430 - Publishing or making copies of applicable documents not an
infringement of copyright
This clause refers to the fact that copyright of material submitted under the Act and
releasable under Part 5.3, or regulations made under Part 5.3, resides with the original
copyright owner, who would normally be the author or company submitting the
information. This clause is intended to clarify that the Designated Authority or the
Commonwealth Minister is able to provide to the public copies of releasable
documents without in any way infringing copyright. This section is intended to put
beyond doubt the fact that the Designated Authority or the Commonwealth Minister
has a non-exclusive right to copy those data.
Equivalent provision in the PSL Act: section 150K
DIVISION 4--RELEASE OF TECHNICAL INFORMATION GIVEN TO THE
DESIGNATED AUTHORITY BEFORE 7 MARCH 2000
Clause 431 - Release of technical information given to the Designated Authority
before 7 March 2000
The date 7 March 2000 marks the coming into effect of certain amendments made by
the Petroleum (Submerged Lands) Legislation Amendment Act (No. 1) 2000. For the
reasons explained below, any document given to the Designated Authority before this
date is to be dealt with under the provisions set out in Schedule 5. This Schedule is a
rewritten version of section 118 of the Petroleum (Submerged Lands) Act, which
currently continues to have effect only in respect of documents of the abovementioned
category. Section 118 is revoked in respect of documents submitted on or after
7 March 2000 and is revoked in respect of all petroleum mining samples.
In summary, the data and release provisions set out in section 118 and replicated in
Schedule 5 are premised on the Designated Authority or the Commonwealth Minister
making a determination on whether information is a conclusion drawn from, or an
opinion based on, other information given to the Designated Authority or made
available to the Commonwealth Minister. If the determination is affirmative, then,
after 5 years of confidentiality, if there is a request for access to that information, the
Designated Authority or the Commonwealth Minister is to publish a Gazette notice
setting a 45 day time limit for persons to make objections to the release of the
information. Such an objection would have to be on the grounds that the release
would disclose a trade secret or adversely affect the lawful business, commercial or
financial affairs of the party who submitted it. If such an objection is made and the
Designated Authority or the Commonwealth Minister finds it to be valid, the
information cannot be released at any time unless the submitter later chooses to make
it public or consents to it being made public.
These arrangements differ from those that came into effect on 7 March 2000
principally in that the latter arrangements allow the submitter of information to
classify the information at the time of submission as "derivative information" or
"confidential information". If the Designated Authority does not object within 30
204
days, that classification will stand and determine whether and when that information
could be released to the public. The system that now appears in the Data Management
Regulations is virtually identical to this.
Since, during all the years from 1967 to 7 March 2000, submitters of information did
not classify information in this way, the arrangements introduced from 7 March 2000
could not be made to work in respect of the holdings of information submitted before
that date. Thus, under the Petroleum (Submerged Lands) Act, section 118 has been
retained in force for that information but has been rewritten as Schedule 5 for
purposes of this Bill. Some small policy changes have also been introduced into it for
consistency with the rest of the Bill or to rectify a past oversight. These are detailed in
the note about Schedule 5.
Equivalent provision in the PSL Act: Table A of Notes to the Act, which cites
item 142 of Schedule 1 to the Petroleum (Submerged Lands) Legislation Amendment
Act (No. 1) 2000.
Technical change: that Schedule 5 be included in the Bill setting out the provisions
relating to the release of technical information given to the Designated Authority
before 7 March 2000
Chapter 6--Miscellaneous
Part 6.1--Reconsideration and review of decisions
Clause 432 - Simplified outline
This clause sets out a simplified outline of Part 6.1 about reconsideration and review
of decisions. This outline does not form part of the operative text of the proposed Act.
Equivalent provision in the PSL Act: nil.
Clause 433 - Definitions
This clause sets out definitions of certain terms that are used in this Bill in the
provisions concerning the reconsideration and review of decisions. Replicating the
equivalent provisions in the Petroleum (Submerged Lands) Act, only two categories
of decisions are proposed to be subject to reconsideration or review. The first consists
of decisions of the Commonwealth Minister or his or her delegate that relate generally
to the offshore areas of external territories. The second consists of decisions by the
Designated Authority or Commonwealth Minister or his or her delegate relating to
access to technical information or petroleum mining samples, sourced in whatever
offshore area.
This means that the bulk of decisions affecting petroleum operations in Australia's
marine jurisdiction are not reviewable (other than by a court under the Administrative
Decisions (Judicial Review) Act 1977), as much of the activity occurs in the offshore
areas of the States and Northern Territory. Except for the issues related to information
and samples referred to above, there is no provision for review of the decisions of the
Designated Authority (or Joint Authority) of a State or the Northern Territory. This
limitation was enshrined in the Petroleum (Submerged Lands) Act in 1985. It was
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considered inappropriate to subject State or Northern Territory Ministers to
Commonwealth Administrative Appeals Tribunal (AAT) legislation in relation to
areas in which they exercise powers in their own right as Designated Authorities.
For a decision under the proposed Act to be appealable to the AAT, it must have been
made by the responsible Commonwealth Minister as a reviewable Ministerial
decision. Reviewable Ministerial decisions concerning information or samples could
take a number of forms. Under sub-paragraph (b)(i), the decision could be a review by
the Commonwealth Minister of a State or Northern Territory Minister's (or that
Minister's delegate's) Designated Authority decision about access to information or
samples held by that Designated Authority. Depending on the regulations, this could
include a decision by the Designated Authority on whether to charge a fee for such
access.
Under sub-paragraph (b)(ii), the reviewable Ministerial decision could be a decision
by the Commonwealth Minister about access to information or samples that are in
Commonwealth possession, possibly including a decision by the Commonwealth
Minister on whether to charge a fee for such access. Under sub-paragraph (b)(iii), the
decision could be a decision of the Commonwealth Minister about whether to extend
past 30 days the period during which a person affected by a reviewable delegated
decision can seek review by the Commonwealth Minister. More notably, the
reviewable Ministerial decision could be the actual review decision of the
Commonwealth Minister about such a reviewable delegated decision, as referred to in
subclause 434(4).
Under sub-paragraph (b)(iv), the decision would be a decision under Schedule 5 (the
explanation under clause 431 refers) and it could be a decision of any one of the types
indicated above, but applicable only to documentary information submitted before 7
March 2000 and not to any petroleum mining samples. It could also be a decision
about whether information is a conclusion drawn from, or an opinion based on, other
information given or made available to the Designated Authority or Commonwealth
Minister. It could equally be a decision about whether to allow an objection to
information release on the grounds that the release would disclose a trade secret or
adversely affect the lawful business, commercial or financial affairs of the party who
submitted it. The reviewable Ministerial decision could be the Commonwealth
Minister's own decision or the Commonwealth Minister's review decision of a
Designated Authority's decision about a similar matter.
Equivalent provision in the PSL Act: subsection 152(1)
Technical change: that the status, as reviewable Ministerial decisions, of the relevant
decisions under section 118 of the Petroleum (Submerged Lands) Act is now to be
defined by reference to the relevant items of Schedule 5
Clause 434 - Reconsideration of reviewable delegated decision
This clause sets out the rights of reconsideration available to, and procedures to be
followed by, any person who is affected by a decision of the Commonwealth
Minister's delegate in relation to the management of the offshore area of an external
territory such as the Territory of Ashmore and Cartier Islands. This could be a
decision on any matter under the proposed Act or regulations, for example a decision
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not to renew an exploration permit. As explained under clause 433, no reconsideration
would be possible if the exploration permit had been issued in respect of the offshore
area of a State or the Northern Territory.
Equivalent provision in the PSL Act: subsections 152(2), (3), (4), (5), (6), (8) and (10)
Policy changes: conversion of "28 days" to "30 days"; reliance on section 27A of the
Administrative Appeals Tribunal Act 1975 to ensure notification of review rights to
the person affected by the decision
Clause 435 - Review of reviewable Ministerial decision
This clause makes reviewable Ministerial decisions, ie decisions by the
Commonwealth Minister of the type discussed under clause 433, subject to
Administrative Appeals Tribunal review. This places on the Commonwealth Minister
the obligation imposed by section 27A of the Administrative Appeals Tribunal Act
1975. This section provides, in summary, that the Commonwealth Minister must take
such steps as are reasonable in the circumstances to give to the person whose interests
are affected by the decision notice of that person's right to have the decision reviewed
by the Administrative Appeals Tribunal.
Equivalent provisions in the PSL Act: subsection 152(7) and (9)
Policy change: reliance on section 27A of the Administrative Appeals Tribunal Act
1975 to ensure notification of review rights to the person affected by the decision
Part 6.2--Liability for acts and omissions
Clause 436 - Liability for acts and omissions
Replicating section140AA of the Petroleum (Submerged Lands) Act, this clause is
primarily intended to ensure that persons or companies requesting approval of plans
or proposals under the Act or regulations are liable for any deficiencies in those plans
or approvals provided the official concerned gives the approval in good faith. Under
the Petroleum (Submerged Lands) Act, such plans would include Safety Cases,
Environment Management Plans, Pipeline Management Plans, Well Operations
Management Plans and Data Management Plans under the Petroleum (Submerged
Lands) (Management of Safety on Offshore Facilities) Regulations 1996, the
Petroleum (Submerged Lands) (Management of Environment) Regulations 1999, the
Petroleum (Submerged Lands) (Pipeline) Regulations 2001, the Petroleum
(Submerged Lands)(Management of Well Operations) Regulations 2004 and the
Petroleum (Submerged Lands) (Data Management) Regulations 2004.
The existence of these plans illustrates the progressive move by the Commonwealth to
objective-based regulation in offshore petroleum management. This enables
petroleum companies to utilise best practice management and implement innovative
technologies as continual improvement, as opposed to what would happen under
prescriptive regulation, where companies would be held back until the government
had changed regulations to reflect changing practices. Accordingly, the cost for
companies in complying with regulations is lower. There is also progressively less on-
site inspection of physical structures and operations and more emphasis on auditing.
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Inasmuch as the role of the Designated Authority has moved away from that of a
prescriptive regulator, it would be incongruous for an official who gave an approval,
or merely some technical advice, to be held personally liable for legal action in
respect of some accident or misadventure affecting a petroleum company, assuming
the official acted in good faith. Such liability of officials would also tend to weaken
the incentive for the company to accept responsibility to ensure best practice in its
management systems. Further, if general personal liability did apply, the kind of risks
petroleum companies need to deal with would raise a question about the need for
officials to carry personal liability insurance.
The purpose of subclause (2) is to ensure that paragraphs (1)(h) and (i) are not
misunderstood. Otherwise, a titleholder operating in compliance with an approved
plan might, on that basis, claim be a person acting under the direction or authority of
the Joint Authority or the Designated Authority or a person acting under the direction
or authority of the Safety Authority or the Chief Executive Officer of the Safety
Authority. If these paragraphs were open to such an interpretation, this clause would
confer on the titleholder an unintended level of immunity from liability.
This clause proposes no immunity from liability in cases of an official acting in bad
faith, nor, as indicated in subclause (4), is there any impediment to a court hearing
about an alleged error or irregularity in the Register and a subsequent court order to
the Designated Authority to rectify the Register if this is the court's finding.
This clause also preserves rights to administrative review. This means that if, for
example, the Designated Authority failed to make a decision about a particular matter,
the provisions of this clause would not impact on the rights of the affected party to seek
review of that failure under the Administrative Decisions (Judicial Review) Act 1977.
Under section 16 of that Act, the Federal Court or the Federal Magistrates Court could
make an order about such a case, for example an order to the Designated Authority to
come to a decision. However, once such a decision had been formalised, the chances of
the affected party succeeding in any litigation against the Designated Authority about
its repercussions would be limited by the provisions of this clause.
Equivalent provision in the PSL Act: section 140AA
Part 6.3--Jurisdiction of courts
Clause 437 - Jurisdiction of State courts
This clause invests State courts with federal jurisdiction in relation to the offshore
petroleum law created by the proposed Act and regulations. Thus, if, for example, an
alleged incident of petroleum exploration in contravention of the proposed Act
occurred in the offshore area of a particular State, a prosecution would proceed in one
of the courts of that State.
Subclause (2) refers to the fact that clause 71 separately invests State courts with
federal jurisdiction in respect of the applied provisions, ie State law that is by this Bill
given an extended geographic coverage in the Commonwealth marine jurisdiction.
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Subclause (3) refers to the limitations that apply to a State court, for example
specifications about the kinds of cases that may be heard by a magistrate's court
compared with those heard by a district court. These limitations will apply despite
federal jurisdiction.
Equivalent provision in the PSL Act: section 151
Clause 438 - Jurisdiction of Territory courts
This clause makes similar provisions in respect of Territory courts as does clause 437
in respect of State courts. Territory courts would include Northern Territory courts
and a court like the Norfolk Island Supreme Court. As a point of editorial detail, this
clause has been made separate from clause 437 because Territory courts already draw
their power from the Australian Constitution and therefore need to be conferred only
with jurisdiction, not with federal jurisdiction.
Equivalent provision in the PSL Act: section 151
Part 6.4--Service of documents
Clause 439 - Service of documents
This clause sets out the various approved methods of serving documents that the
proposed Act requires or permits to be given to individuals or corporations or to the
Designated Authority. The provisions in this clause would have significance, for
example, if a document serving a purpose under the proposed Act went astray because
a wrong mailing address had been written on it. This clause sets out the rules by
which the consequences of such an action would be determined.
For instance, if the Designated Authority had been given the correct address of an
applicant for a title and the Designated Authority issued an offer document to that
applicant and the Designated Authority's office made a typographical error in
addressing the document, this clause implies the offer document would be deemed not
to have been given. The document would have to be dispatched again, this time to the
correct address, and any timeframe conditions on acceptance of the offer would date
from the second dispatch. However, if the applicant had made a typographical error in
advising the Designated Authority of the applicant's address and the Designated
Authority had correctly copied that address, the document would be deemed to have
been validly given and the applicant would be at some risk of missing the opportunity
to take up the offer.
Equivalent provision in the PSL Act: subsections 138(1), (2), (3) and (4)
Technical changes: replacement of "abode" with "residence", replacement of
"inmate" with "resident" and replacement of "service" with "employment"
Clause 440 - Service of documents on Joint Authority
This clause elaborates on clause 45 to make it clear that, if a member of the public
produces a document destined for the Joint Authority and gives it to the Designated
Authority or the Designated Authority's delegate, then, for all purposes of the
209
proposed Act, that member of the public is deemed to have given the document to the
Joint Authority.
Equivalent provision in the PSL Act: subsection 138A(2A)
Technical change: explicit mention of the fact that service of a document on the
Designated Authority's delegate is equivalent to service on the Joint Authority
Clause 441 - Service of documents on 2 or more registered holders of a title
This clause is intended to provide an efficient arrangement for the service of
documents to titleholders in cases where a title is held by more than one party.
However, the use of this arrangement will be entirely at the behest of the parties
holding the title.
The fact that subclause (3) mentions that the nomination of the party through whom
the service of documents is to occur must be executed "in an approved manner"
means that the Designated Authority has power to specify the manner of executing the
notice of nomination. In arriving at a position on this, the Designated Authority might
need to consider matters such as whether two directors of a company must sign the
notice, whether the signature of one director and the company secretary would suffice,
whether a person holding a power of attorney for the company could sign it and
whether the company seal must be fixed to the document, assuming a seal exists.
Equivalent provision in the PSL Act: section 138A
Policy change: that the joint written notice must be executed in an approved manner,
ie in a manner approved in writing by the Designated Authority
Part 6.5--Publication in Gazette
Clause 442 - Publication in Gazette
This clause enables most Gazette notices required to be published by the proposed
Act to appear in the relevant State or Territory Government Gazette.
Normally, Gazette notices under a Commonwealth Act would be published in the
Commonwealth Gazette. Under this clause, notices relating to the offshore area of the
Territory of Ashmore and Cartier Islands, would, in fact, appear in the
Commonwealth Gazette as the Commonwealth Gazette is the one that is used for
publishing instruments related to this Territory.
However, under the Petroleum (Submerged Lands) Act, where the Designated
Authority is a State or Northern Territory Minister, it has always been considered that
publication of notices in the relevant State or Northern Territory Gazette facilitates
administration. Accordingly, this clause deems notices published in a State or
Northern Territory Gazette to have the status of notices published in the
Commonwealth Gazette.
Equivalent provision in the PSL Act: section 136
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Part 6.6--Regulations
Clause 443 - Regulations
This clause sets out the general regulation-making power that appears as a standard
provision in many Commonwealth Acts.
Equivalent provision in the PSL Act: subsection 157(1)
Clause 444 - Regulations dealing with specific matters
This clause sets out a number of specific headings under which regulations are known
to be, or could be, necessary to manage operating practices in offshore petroleum
exploration, production, processing and conveyance. This clause does not limit the
generality of the power set out under clause 443 but this clause will, overall, reduce
the expenditure of Australian Government resources in legal interpretation. For
addressing a majority of issues that may arise, this clause ensures that the submission
of draft regulations to Executive Council will be a more straightforward process.
Equivalent provision in the PSL Act: subsection 157(2)
Clause 445 - Regulations may provide for matters by reference to codes of practice or
standards
This clause enables the regulations to apply, to offshore petroleum activities, codes of
practice or technical standards, particularly those related to safety or engineering,
without reproducing in the regulations the detailed technical requirements that
constitute the code or standard. The clause would allow the adoption of a foreign code
or standard, which could have advantages given the international nature of the
petroleum industry. On the other hand, if there were a relevant Australian code or
standard, it would most probably be selected.
This clause provides that, if so desired, any particular code or standard could be
adopted only in part. This clause also provides that, if so desired, the regulations
could be made so as to automatically adopt any subsequent changes to the code or
standard (Australian or foreign) that the authority responsible for devising it might
make over time.
Equivalent provision in the PSL Act: subsection 157(2A)
Clause 446 - Unconditional or conditional prohibition
This clause provides that regulations may be made enabling actions to be taken
subject to the consent or approval of a persons specified in the regulations. This will
enable specified operational and technical actions to be taken subject to the consent or
approval of government officials, allowing the advice of internationally recognised
certifying and classifying bodies to be accepted as the basis for consideration of
certain specific proposals such as the assessment of the seaworthiness of vessels and
the integrity of offshore structures.
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Equivalent provision in the PSL Act: subsection 157(2B)
Clause 447 - Exercise of Australia's rights under international law--continental shelf
This clause enables regulations to be made where there is an identified need to fill a
legislative gap in the exercise of Australia's rights under international law in relation
to petroleum exploration and production on the continental shelf, ie areas further
seaward than 12 nautical miles from the territorial sea baseline. Such rights could
possibly be ones mentioned in the United Nations Convention on the Law of the Sea,
but they would more likely be ones secured under a new treaty concluded with
another country. Use could be made of this regulation-making power if there were a
shift of a seabed boundary so that it was placed further from Australia than the current
position of the scheduled area outer boundary.
If this were the case and regulations were made under this clause, amendments might
later be made to the Act which would make the regulations superfluous and lead to
their repeal or replacement.
Equivalent provision in the PSL Act: subsection 157(3)
Clause 448 - Exercise of Australia's rights under international law--petroleum within
territorial limits
This clause enables regulations to be made where there is an identified need to fill a
legislative gap in the exercise of Australia's rights or obligations under international
law in relation to petroleum exploration and production in Australia's territorial sea,
ie within 12 nautical miles seaward of the territorial sea baseline. The coverage of the
regulations could possibly include the coastal waters of a State or the Northern
Territory, where the proposed Act would generally not otherwise apply. This is
consistent with the principle that if the Australian Government concludes a treaty with
a foreign country, it has power to bind the States and Northern Territory to the terms
of that treaty.
Regulations under this clause could be made if, for example, a treaty were concluded
affecting an area of Australia's marine jurisdiction where an island forming part of a
State lay within close proximity of an international boundary, as in Torres Strait.
Equivalent provision in the PSL Act: subsection 157(4)
Policy change: this re-enactment of subsection 157(4) of the Petroleum (Submerged
Lands) Act resolves an ambiguity and minor policy approval is required for the
approach taken
Clause 449 - Offences
This clause enables regulations to impose a fine of up to 100 penalty units for
offences, and 100 penalty units for each day that the offence continues. These
penalties are higher than the maximum penalties for contravening regulations under
some other Commonwealth Acts. However, this Bill, like the Petroleum (Submerged
Lands) Act, has at least one unusual characteristic. Specifically, it is designed to
create a framework that both minimises the risk of potentially catastrophic accidents
212
and maximises the uptake of benefits from evolving technology. The first
consideration points to the reason for penalties under the regulations being as high as
100 units. The second consideration points to the reason why a large number of
detailed provisions are to be in the regulations rather than in the Act itself.
Negative impacts on the petroleum industry could be expected if all offence
provisions meriting a 100 unit maximum penalty were to be in the Act, for changes to
the regulatory regime to dovetail with new technology could then well require
amendments to the Act. The lead-time to introducing an Amendment Bill, and the
timeframe involved in the Parliamentary consideration of a Bill, make this a slow
option which, if adopted, could exert an economically shackling effect on the
petroleum industry.
If the provisions of this clause become law, and new regulations containing offence
provisions are promulgated under the proposed Act, the Parliament will have the
ability to use its regulation disallowance power if it finds in the regulations a penalty
that it deems excessive.
Equivalent provision in the PSL Act: subsection 157(5)
Part 6.7--Transitional provisions
Clause 450 - Transitional provisions
To ensure that the existing rights and responsibilities of the Joint Authority,
Designated Authority, National Offshore Petroleum Safety Authority and titleholders
are not nullified when the Petroleum (Submerged Lands) Act is repealed and replaced
by the proposed Act, Schedule 6 has been drafted to set out a series of transitional
provisions. This clause brings that Schedule into effect.
Equivalent provision in the PSL Act: nil.
Policy change: the creation of Schedule 6
Schedule 1--Scheduled areas of the States and Territories
This Schedule is the equivalent of Schedule 2 to the Petroleum (Submerged Lands)
Act. In rewriting these area descriptions, changes have been made to the area
descriptions for New South Wales, Tasmania and Western Australia. There has also
been some general reformatting of the area descriptions as well as the correction of a
number of typographical errors. The latter revisions have not resulted in the
dislocation of any point on any boundary line described in the Schedule. A number of
stylistic inconsistencies have also been rectified, for example when it comes to the
use of words such as "north" or "northerly" and "west" or "westerly".
The term "scheduled area" is merely a refinement of the longer phrase that appears in
Schedule 2 of the Petroleum (Submerged Lands) Act, ie "area that includes the
adjacent area". The scheduled areas are illustrated on Map 1 in clause 5 and their
significance is discussed under clause 7.
213
The changes to the area descriptions for New South Wales and Tasmania relate to the
Treaty between the Government of Australia and the Government of New Zealand
establishing Certain Exclusive Economic Zone and Continental Shelf Boundaries,
which was signed on 25 July 2004. This Treaty delineated a length of maritime
boundary between the two countries in waters generally east or south of Lord Howe
and Norfolk Islands, and another length of maritime boundary in a generally arcing
line to the north, north-east, east and south-east of Macquarie Island.
The Schedule 2 areas in the Petroleum (Submerged Lands) Act in respect of New
South Wales and Tasmania include some areas of seabed that the abovementioned
Treaty has now placed under New Zealand jurisdiction. It is appropriate to bring the
equivalent area descriptions in this Bill into conformity with the new Australia-New
Zealand maritime boundary. This has been done by identifying the sub-areas of the
Schedule 2 areas that fall in waters that are now on the New Zealand side of the
boundary and declaring them to be excised from the scheduled area descriptions in
Schedule 1 of the Bill, as per subclauses 1(1) and (3) and 6(1) and (3).
The change to the area description for Western Australia relates to Australia's
continental shelf claim beyond 200 nautical miles from the baseline that has been
submitted to the Commission on the Limits of the Continental Shelf under Article 76
of the United Nations Convention on the Law of the Sea. This includes a claim over
an area of seabed off Western Australia near Joey Rise as far north as the point of
Latitude 12� 45' 55" South, Longitude 113� 31' 42" East. A fraction of this area falls
somewhat further north than the northern boundary of the area in respect of Western
Australia described in Schedule 2 to the Petroleum (Submerged Lands) Act.
Accordingly, in the equivalent area description in this Schedule, an adjustment is
proposed to the trajectory of the boundary line in the vicinity of the abovementioned
point so as to expand the scheduled area to encompass the whole seabed area claimed
by Australia. This change shows up as new points identified in paragraphs (d), (e) and
(f) of clause 5.
Clause 9 has been added to the Schedule because a number of other Commonwealth
Acts refer to the areas in Schedule 2 to the Petroleum (Submerged Lands) Act. The
fact that clauses 1 and 6 of Schedule 1 to this Bill, describing waters off New South
Wales and Tasmania, now include "pre-treaty areas" and "excised areas" could create
confusion. Therefore, clause 9 ensures that, to the extent to which any other
Commonwealth Act refers to the scheduled areas for New South Wales and
Tasmania, they are referring in each case to the area that results from the severing of
the excised area from the pre-treaty area.
As set out in subclause 22(1), the geographic coordinates in these area descriptions
refer to the Australian Geodetic Datum.
Equivalent provision in PSL Act: Schedule 2
Technical changes: changes that do not affect the areas described in the Schedule,
specifically: a correction where the Petroleum (Submerged Lands) Act had incorrectly
used the word "Latitude" instead of "Longitude"; insertions of the word "Longitude" in
two places where it had been omitted; addition of paragraph numbering to all the
clauses; change of the word "then" to "thence"; deletion of an extraneous mention of
the word "East"; correction of one direction from "northerly" to "south-easterly";
214
rectification of sundry letter case and punctuation irregularities; stylistic changes such
that where directions along a parallel of Latitude or a meridian of Longitude are
indicated, the words "east", "west", "north" and "south" are consistently used in
preference to "easterly", "westerly", "northerly" and "southerly"
Policy changes: excision of areas now under New Zealand jurisdiction from
scheduled areas for New South Wales and Tasmania; extension of the scheduled area
for Western Australia
Schedule 2--Area that includes the area to be avoided
This Schedule is the equivalent of Schedule 6 to the Petroleum (Submerged Lands)
Act. In rewriting this area description, there has been some reformatting and a
stylistic change and a point of clarification has been inserted at the beginning of the
area description. Specifically, the point of commencement is rewritten as the most
easterly intersection of the coastline of the State of Victoria at mean low water by the
parallel of Latitude 38� 15� South. The clarification is desirable in view of the fact
that this parallel intersects the coastline of Victoria at more than one place.
This area is illustrated by the map in clause 325. As provided in subclause 22(1), the
geographic coordinates in this area description refer to the Australian Geodetic
Datum.
The significance of this area description is in the definition of the "area to be
avoided", set out in clause 326 and the subject of a number of provisions in Part 4.5.
As set out in the aforementioned clause, the area to be avoided does not consist of the
whole of the area described in this Schedule.
Equivalent provision in PSL Act: Schedule 6
Technical changes: insertion of paragraph numbering; a stylistic change from
"easterly along the parallel" to "east along the parallel", matching the changes made
to Schedule 1; that the point of commencement is the most easterly intersection of the
coastline of the State of Victoria at mean low water by the parallel of Latitude 38� 15�
South.
Schedule 3 - Occupational Health and Safety
Part 1 - Introduction
Schedule 3 clause 1 - Objects
This clause establishes the objectives of Schedule 3, which are to secure the health,
safety and welfare of persons at or near offshore petroleum facilities, in a general
sense as well as specifically against risks arising out of activities conducted at those
facilities. To these ends, these objectives identify the importance of the availability of
expert advice on matters related to occupational health and safety at offshore
petroleum facilities, an appropriate occupational environment and a consultative
relationship between all relevant parties.
Schedule 3 relates only to petroleum operations that are conducted at facilities (as that
term is defined in the Schedule) and hence the objects are similarly limited.
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Equivalent provision in the PSL Act: Schedule 7, clause 1
Schedule 3 clause 2 - Simplified outline
This clause gives a summary of the main provisions of the Schedule. This summary
does not form part of the operative text of the proposed Act.
Equivalent provision in the PSL Act: nil.
Schedule 3 clause 3 - Definitions
This clause defines a number of terms for the purpose of the Schedule. The
definitions remain unchanged from the PSL Act, except as described below.
The definitions of "clause" and "paragraph" in the Petroleum (Submerged Lands) Act
have been omitted, as they are unnecessary. The definition of "operator" has also
been omitted from this clause, as a more exact definition is now provided in clause 5.
Definitions are added for the terms "data", "data held in a computer", "data storage
device", "enter" and "master". These terms are not used in the PSL Act, but are used
in this Bill in relation to the provisions for entry, search and seizure of evidence that
are in Division 3 of Part 4 of the Schedule.
The definitions for "data", "data held in a computer" and "data storage device" are
based on section 3C of the Crimes Act 1914. The phrase "offence against a listed
OHS law" is defined as including an offence against section 6 of the Crimes Act 1914
that relates to an offence against a listed OHS law. This section is about being an
accessory after the fact.
The definitions of "associated offshore place" and "work" are modified, by adding
"installation" to the list of relevant activities. These definitions currently encompass
construction, operation, maintenance and decommissioning of offshore petroleum
facilities and associated offshore places. The addition of "installation" makes clear
that the fixing in place of a mobile offshore unit is also a relevant activity.
The definition of "contravention" is modified, so that it is no longer limited to
contraventions that are offences against this Schedule and the regulations, but relates
to all of the "listed OHS laws".
The definition of "inspection" is modified, to clarify that it is not limited to physical
inspections of offshore petroleum facilities and other premises or things, but also
includes (for example) reviews of documents either at the Safety Authority's offices
or elsewhere.
Equivalent provision in the PSL Act: Schedule 7, clause 2
Policy changes: addition of "installation" to the definitions of associated offshore
place, and work; addition of definitions of "data", "data held in a computer", "data
storage device", "enter", "master" "offence against a listed OHS law", "operator" ;
extension of the list of contraventions to include all of the "listed OHS laws".
216
Technical change: Addition of the phrase "but need not include a physical inspection
of any facility, premise or other things" to the definition of inspection.
Schedule 3 clause 4 - Facilities
This clause provides clarification of the definition of "facility" that is in clause 3.
That definition states that "facility" means a facility as defined by clause 4, including
a facility that is being constructed or installed, and including any associated offshore
place in relation to the facility.
Schedule 3 clause 4 then further defines the vessels and structures located in
Commonwealth waters that are considered to be "facilities" for the purpose of this
Schedule.
Subclause (1) provides that, subject to subclauses (6) and (7), vessels or structures are
taken to be facilities if they are located at a site in Commonwealth waters and are
being used, or are being prepared for use, for the defined petroleum activities or
purposes.
The categories of activities or purposes that cause relevant vessels and structures to be
defined as facilities are not exhaustively itemised in subclause (1), as regulations
could be made prescribing other purposes. The listed purposes include the recovery,
processing, storage and offloading of petroleum, drilling or servicing a petroleum
well, the laying of pipes, and construction and decommissioning of structures. A
vessel or structure used for offshore accommodation also qualifies as a facility.
If diving work is facility-related, it will be included in the occupational health and
safety regime applied in relation to the facility, because the place where the diving
takes place will be an `associated offshore place'.
Subclause (2) clarifies that a vessel or structure is taken to be a facility under
subclause (1) whether it is floating or fixed, and whether or not it is capable of
independent navigation.
Subclause (3) indicates that the provisions in subclause 4(1) are subject to the
limitations set out in (6) and (7).
Subclause (4) clarifies that a facility includes any wells and associated plant and
equipment by which petroleum is recovered, any pipe or system of pipes through
which petroleum is conveyed from a well to the facility, and any secondary line
associated with the facility.
Subclause (5) clarifies that a vessel or structure is taken to be "located" offshore for
the purpose of laying pipes despite the fact that it moves as the pipe is laid.
Subclause (6) clarifies that the following are not facilities:
any amounts appropriated by the Parliament for the purposes of the Account;
off-take tankers;
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tugs or anchor handling vessels;
vessels used for supplying facilities or for travelling to or from a facility; and
any vessel or structure declared by regulations not to be a facility.
Such places will largely fall under maritime safety law, although when operating near
and in connection with offshore petroleum facilities they may be associated offshore
places.
Subclause (7) further clarifies that a vessel or structure is considered to be a facility
for these purposes not only when it is being used for petroleum activities, but from the
time it arrives at the site where it is to be so used, until it has ceased its operations and
is in a navigable or other state that enables it to relocate from the site.
Subclauses (8) and (9) provide that pipelines licensed under Division 4 of Part III are
`facilities'. Where a licensed pipeline conveys petroleum from a well without the
petroleum having passed through another facility, the pipeline "facility" includes that
well and associated plant, equipment and gathering lines.
Equivalent provision in the PSL Act: Schedule 7, clause 2A
Schedule 3 clause 5 - Operator of a facility or proposed facility
This clause provides a definition of "operator".
The clause establishes that, for the purposes of this Schedule, the operator of a facility
or proposed facility is the person who is registered by the Safety Authority as the
operator of that facility or proposed facility, under the processes established in the
regulations.
Subclause (2) provides that the regulations may authorise the Safety Authority to
cancel the registration of a person as the operator of a facility or proposed facility.
Circumstances under which cancellation of registration might be necessary include if
the facility changes ownership, or if the registered operator enters into a contract with
another person to conduct day-to-day activities at the facility.
Equivalent provision in the PSL Act: definition of "operator" in clause 2 of
Schedule 7.
Policy change: the addition of this clause
Schedule 3 clause 6 - Operator must ensure presence of operator's representative
This clause establishes a duty on the operator to ensure that, whenever a facility is
attended, there is a person present who is in management or control, and who provides
a point of contact between the operator and any Safety Authority inspector who may
visit that facility. The clause also ensures that the name of that person is prominently
displayed at the facility. This person is referred to as the "operator's representative at
a facility".
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The fact that the offence set out in subclause (3) is one of strict liability means the
prosecution does not have to prove a fault element.
Equivalent provision in the PSL Act: Schedule 7, clause 2B
Schedule 3 clause 7 - Health and safety of persons using an accommodation facility
This clause makes clear that the provisions of Schedule 3 apply to persons who are at
a facility solely for purposes of accommodation, even though all their work activities
may be at another facility. It is common practice during periods of construction and
major maintenance works to accommodate persons at a different facility to the one at
which they work.
Equivalent provision in the PSL Act: Schedule 7, clause 2C
Schedule 3 clause 8 - Contractor
This clause provides a definition of "contractor". The effect of the definition,
together with subclause 11(3), is that a person will owe the contractor duty of care in
subclause 11(3) to another person whom he or she engages under a contract for
services to do work at a facility, and to employees of that other person.
Equivalent provision in the PSL Act: Schedule 7, clause 2D
Part 2 - Occupational health and safety
DIVISION 1- DUTIES RELATING TO OCCUPATIONAL HEALTH AND SAFETY
Schedule 3 clause 9 - Duties of operator
This clause establishes the duties of care that are owed by the operator of a facility.
The primary duty of the operator, as set out in subclause (1), is to take all reasonably
practicable steps to ensure that the facility and all work and other activities at the
facility are safe and without risk to health.
It should be noted that this duty does not require the operator to eliminate all risk, as
this is not possible. The same applies to the duties of care that are imposed on other
persons by clauses 10 to 15. Rather, the duties are conditioned by the phrase "take all
reasonable practicable steps". This is a concept that is common to all modern OHS
regulatory regimes.
It should also be noted that the duties refer to "risk to health", as well as to "safe".
This is to clarify that the duties encompass hazards to long-term health (such as
exposure to noise or carcinogens) as well as hazards that can cause immediate harm
(such as fires or explosions).
Subclause (2) establishes more specific duties on the operator, namely to take all
reasonably practicable steps to:
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provide and maintain a safe and healthy physical environment at the facility;
provide adequate facilities for the welfare of the workforce;
ensure that plant, equipment, substances etc at the facility are safe and without
risk to health;
implement and maintain systems of work at the facility that are safe and without
risk to health;
implement and maintain emergency systems and procedures for the facility;
provide appropriate information, instruction and training;
monitor health and safety at the facility;
provide medical and first aid facilities; and
develop a suitable health and safety policy, in consultation with members of the
workforce, and with a workforce representative if requested by a member of the
workforce.
Subclause (3) clarifies that subclause (2) does not exhaustively itemise all the duties
of an operator. Subclause (4) establishes the nature of the associated offence, and sets
a penalty of 1,000 penalty units. At the time of introduction of this Bill, a penalty unit
was equivalent to $110.
Subclauses (5) and (6) clarify the nature of the agreement that is to be included in the
policy developed under (2)(i).
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: Schedule 7, clause 3
Policy changes: inclusion of "all reasonably practicable steps" in subclause (2), and
the changes in paragraph (2)(i) and subclause (6)
Schedule 3 clause 10 - Duties of persons in control or parts of facility or particular
work
This clause establishes duties of persons who may be in management or control of a
part of a facility, or of certain activities at a facility. Examples of such persons are
those supervising a drilling crew, maintenance crew or dive team.
The duties established for these persons are similar to those established for the
operator, but are limited to the areas or activities under the control of the person. The
general duty established by subclause (1) requires the person to take all reasonably
practicable steps to ensure the places or activities under their control are safe and
without risk to health, and the specific duties established by subclause (2) require the
person to take all reasonably practicable steps to:
provide and maintain a safe and healthy physical environment at the relevant
places;
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ensure that all plant, equipment, substances etc used in the work are safe and
without risk to health;
implement and maintain systems of work that are safe and without risk to health;
provide a means of access to and escape from the relevant places that is safe and
without risk to health; and
provide appropriate information, instruction and training.
Subclause (3) clarifies that subclause (2) does not exhaustively itemise all the duties
of a person to whom this clause applies.
Subclause (4) establishes the nature of the associated offence, and sets a penalty of
1,000 penalty units. At the time of introduction of this Bill, a penalty unit was
equivalent to $110.
The offence provision in subclause (4) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention to omit to do the act. In other words, for a person to be found guilty of
contravening this clause, the prosecution would have to prove intention.
The duties of these persons do not include requirements to provide medical and first
aid facilities, or develop a health and safety policy, as these are matters best addressed
for the facility as a whole, by the operator, and hence are included in clause 9. The
duties of these persons also do not require monitoring of occupational health and
safety, as this is best addressed by the operator (for the facility as a whole) and by
employers (for each individual person).
Equivalent provision in the PSL Act: Schedule 7, clause 4
Policy change: inclusion of "all reasonably practicable steps" in subclause (2)
Schedule 3 clause 11 - Duties of employers
This clause establishes duties of care for the employers of members of the offshore
workforce. The employer duties are similar to those of supervisors. Subclause (1)
establishes a general duty for the employer to take all reasonable practicable steps to
protect the health and safety of employees, and subclause (2) establishes that this must
include taking all reasonable practicable steps to:
provide and maintain a safe and healthy working environment;
ensure that all plant, equipment, substances etc used by the employees is safe and
without risk to health;
implement and maintain systems of work that are safe and without risk to health;
provide a means of access to and escape from the employees work locations that is
safe and without risk to health; and
provide appropriate information, instruction and training.
Subclause (3) establishes further specific duties to take all reasonably practicable
steps to monitor the health and safety of employees and to keep records of that
monitoring.
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Subclause (4) clarifies that subclauses (2) and (3) do not limit subclause (1).
Subclause (5) establishes the nature of the associated offence, and sets a penalty of
1,000 penalty units. At the time of introduction of this Bill, a penalty unit was
equivalent to $110.
The offence provision in subclause (5) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
There is overlap in the duties of care imposed on operators, on persons in control of
parts of the facility or particular work and on employers. There is further overlap
with the duties of care imposed on manufacturers, suppliers, etc, which are defined by
later clauses. This overlap is intentional. First, it ensures that there are no gaps in the
coverage of the duties of care, and second it ensure that, when enforcement action is
required, it can be taken against the person or persons best positioned to control the
risk in the relevant circumstances.
In many cases the operator or the person in control of some part of the facility may
also be an employer of members of the workforce. In such cases the operator or other
person may have duties under more than one of the above clauses. If compliance and
enforcement action were to prove necessary, it would be taken using the most
appropriate clause.
Equivalent provision in the PSL Act: Schedule 7, clause 5
Policy changes: inclusion of "all reasonably practicable steps" in subclause (2) and
change from "reasonable steps" to "reasonably practicable steps" in subclause (3)
Schedule 3 clause 12 - Duties of manufacturers in relation to plant and substances
This clause establishes duties of care on the manufacturers of plant and substances. In
the Schedule, plant is defined as including any machinery, equipment or tool, or any
component.
Subclause 12(1) establishes that a manufacturer of any plant, where the manufacturer
ought reasonably to expect that the plant will be used by a member of the workforce
at a facility, must take all reasonably practicable steps:
to ensure that the plant is designed and constructed so as to be safe and without
risk to health when properly used;
to ensure that necessary research, testing and examination is carried out so as to
discover, and so as to eliminate or minimise, the risk to health and safety arising
from use of the plant; and
to make available adequate written information about the design, construction and
safe use of the plant.
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Subclause 12(2) establishes that a manufacturer of any substance, where the
manufacturer ought reasonably to expect that the substance will be used by a member
of the workforce at a facility, must take all reasonably practicable steps to ensure
similar things to those required of a manufacturer of plant and also to make available
adequate written information about the substance, its safe use and the first aid and
medical procedures that should be followed if the substance causes injury.
Subclause (3) establishes the nature of the associated offence, and sets a penalty of
200 penalty units. At the time of introduction of this Bill, a penalty unit was
equivalent to $110.
The offence provision in subclause (3) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
The phrase "ought reasonably to expect will be used ... at a facility" is included to
ensure that the manufacturer is not assigned unreasonable legal responsibilities when
designing or manufacturing something that will be used in a circumstance (i.e. at an
offshore petroleum facility) for which it was not intentionally designed or
manufactured.
Subclause (4) establishes that, where plant or a substance is imported into Australia
by a person who is not the manufacturer, and the person who is the manufacturer does
not have a place of business in Australia, the person who imports the substance is
taken to be the manufacturer for the purpose of this clause. This clause enables
compliance and enforcement action to be taken in relation to design and manufacture
of plant and substances even when the designer and manufacturer have no presence in
Australia. Equivalent provisions exist in all Australian OHS laws. It should be noted
that plant or substances that are transported directly from overseas to a facility located
in Commonwealth, State or Territory waters, including anything brought in on a
mobile facility, are "imports" under Australian law.
Subclause (5) clarifies that this clause does not affect the operation of the Trade
Practices Act 1974, or of any other law of the Commonwealth, a State or a Territory
that imposes obligations on a manufacturer in relation to defective goods or
information to be supplied in relation to goods. That is, trading standards and
consumer protection law also applies. However, it is not appropriate to rely solely on
trading standards and consumer protection laws, as these are generally limited to
providing protection of the person who purchased, hired or leased the plant or
substance, and not the member of the workforce who ultimately uses the plant or
substance.
Equivalent provision in the PSL Act: Schedule 7, clause 6
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Schedule 3 clause 13 - Duties of suppliers of facilities, plant and substances
This clause establishes duties of care on the suppliers of facilities, plant and
substances.
Subclause 13(1) establishes that a supplier of any facility, plant or substance, that the
supplier ought reasonably to expect will be used by members of the workforce at a
facility, must take all reasonably practicable steps:
to ensure that the facility, plant or substance is, at the time of supply, in such a
condition that it is safe if properly used;
to ensure that necessary research, testing and examination is carried out so as to
discover, and so as to eliminate or minimise, the risk to health and safety arising
from use of the facility, plant or substance; and
to make available, to the relevant person, adequate written information about the
condition of the facility, plant or substance, the risks that may arise during its use,
the steps that need to be taken in order to eliminate such risk and (in the case of a
substance) the first aid or medical treatment needed in the event of an injury.
Subclause (2) establishes the nature of the associated offence and sets a penalty of 200
penalty units. At the time of introduction of this Bill, a penalty unit was equivalent to
$110.
The offence provision in subclause (2) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Subclause (3) clarifies that the duties under this clause apply to the actual supplier,
and not to the "ostensible supplier". The "ostensible supplier" is someone who has
acquired an interest in a facility (or plant or substances for use at a facility) through
operating a business of financing the acquisition or use of goods by other persons.
Such an "ostensible supplier", though he or she has acquired an interest in the facility,
plant or substance, never actually would have taken possession of the facility, plant or
substance, and therefore would never have been in a position to control the risks.
Subclause (4) clarifies that this clause does not affect the operation of the Trade
Practices Act 1974, or of any other law of the Commonwealth, a State or a Territory
that imposes obligations in relation to the sale or supply of goods or in relation to the
information to be supplied in relation to goods.
Equivalent provision in the PSL Act: Schedule 7, clause 7
Schedule 3 clause 14 - Duties of persons erecting facilities or installing plant
This clause establishes a duty of care for person erecting or installing facilities or
plant.
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Under subclause (1) these persons are required to take all reasonably practicable steps
to ensure that the facility or plant is not erected or installed in a way that is unsafe or
constitutes a risk to health.
Subclause (2) establishes the nature of the associated offence, and sets a penalty of
200 penalty units. At the time of introduction of this Bill, a penalty unit was
equivalent to $110.
The offence provision in subclause (2) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Subclause (3) clarifies that this clause does not affect the operation of the Trade
Practices Act 1974, or of any other law of the Commonwealth, a State or a territory
that imposes obligations in relation to the erection or installation of goods or the
supply of services.
Equivalent provision in the PSL Act: Schedule 7, clause 8
Schedule 3 clause 15 - Duties of persons in relation to occupational health and safety
This clause establishes duties of care for all persons at a facility.
Under subclause (1) these persons are required to take all reasonably practicable steps
to:
ensure that they do not take any action or make any omission that creates or
increases risk to the health and safety to themselves or any other person at or near
the facility;
to cooperate with the operator and with any other person in respect of any
obligations imposed on the operator or other person under a listed OHS law; and
where equipment is supplied to them that is necessary for the protection of health
and safety, to use that equipment in accordance with any instructions, and
consistent with its safe and proper use.
Subclause (2) establishes the nature of the associated offence, and sets a penalty of
200 penalty units. At the time of introduction of this Bill, a penalty unit was
equivalent to $110.
The offence provision in subclause (2) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Subclause (3) establishes that subclause (1) does not prevent the supplied equipment
being used in accordance with an agreement between the equipment supplier and any
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relevant health and safety representative, or in accordance with an agreement by a
health and safety committee.
Subclause (4) establishes that if there has been an agreement under subclause (3),
action cannot be taken against a person for failure to use equipment supplied to them
unless that equipment has been chosen under that agreement.
Subclause (5) establishes provisions equivalent to those of subclause (4) for the
manner of use of equipment.
Equivalent provision in the PSL Act: Schedule 7, clause 9
Policy change: extension of scope to include all "listed OHS laws".
Schedule 3 clause 16 - Reliance on information supplied or results of research
This clause establishes circumstances where a duty holder may be considered to have
taken "all reasonably practicable steps" through reliance on the results of the activities
of others.
Subclause (1) establishes that a person with duties under clause 9, 10 or 11 (an
operator, a person in control or an employer) is regarded as having taken reasonably
practicable steps in relation to the use of plant or substances if the person has ensured
so far as practicable that the use was in accordance with the health and safety
information supplied by the manufacturer or supplier of the plant or substance and if it
was reasonable to rely on that information. However, subclause (2) clarifies that
subclause (1) does not exhaustively describe what is meant by "reasonably practicable
steps" in clauses 9, 10 and 11.
Subclause (3) establishes that a person with duties under clause 12 or 13 (a
manufacturer or supplier) is regarded as having taken reasonably practicable steps in
relation to research, testing or examination if such research, testing or examination
has already been carried out by others and if it was reasonable to rely on the results of
that research, examination or testing. However, subclause (4) clarifies that subclause
(3) does not exhaustively describe what is meant by "reasonably practicable steps" in
clauses 12 and 13.
Subclause (5) establishes that a person who has duties under clause 14 (an installer or
erector) is regarded as having taken reasonably practicable steps in relation to the
installation or erection of a facility or plant if the person has ensured so far as
practicable that the installation or erection was in accordance with the health and
safety information supplied by the manufacturer or supplier of the facility or plant,
and if it was reasonable to rely on that information. However, subclause (6) clarifies
that subclause (5) does not exhaustively describe what is meant by "reasonably
practicable steps" in clause 14.
Equivalent provision in the PSL Act: Schedule 7, clause 10
Policy change: clarifying what "consistent with the health and safety of persons at the
facility" applies to
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DIVISION 2 - REGULATIONS RELATING TO OCCUPATIONAL HEALTH AND
SAFETY
Schedule 3 clause 17 - Regulations relating to occupational health and safety
This clause establishes regulation-making powers in relation to occupational health
and safety.
Subclause (1) establishes that regulations may be written that make provision for any
matter affecting or likely to affect the occupational health and safety of persons at a
facility. Subclause (2) clarifies that subclause (1) is subject to any limitations of this
Schedule.
Subclause (3) establishes that regulations may be made that make provision for any or
all of 18 separately itemised purposes. These include specifying prohibitions or
restrictions on what is done at a facility or what is stored there, specifying the form in
which information must be supplied by manufacturers or suppliers of facilities, plant
or substances. They also provide for regulating the maintenance and testing of plant at
a facility, the labelling and marking of substances used and the transport of specified
plant or substances for use at a facility. There are further provisions for the
regulations to require various things to be done or provided, all with a view to
enhancing the health and safety of persons on facilities.
However, subclause (4) clarifies that the list of purposes in subclause (2) is not
exhaustive.
Subclause (5) establishes that regulations may make different provisions for different
types of facilities, while subclause (6) clarifies that subclause (5) does not limit
subsection 33(3A) of the Acts Interpretation Act 1901. This states:
"Where an Act confers a power to make, grant or issue any instrument (including
rules, regulations or by-laws) with respect to particular matters (however the matters
are described), the power shall be construed as including a power to make, grant or
issue such an instrument with respect to some only of those matters or with respect to
a particular class or particular classes of those matters and to make different provision
with respect to different matters or different classes of matters."
Equivalent provision in the PSL Act: Schedule 7, clause 11
Policy change: insertion in (e) of a cross-reference to paragraph 12(2)(c)]
Part 3 - Workplace arrangements
DIVISION 1 - INTRODUCTION
Schedule 3 clause 18 - Simplified outline
This clause gives a summary of the main provisions of the Division. This summary
does not form part of the operative text of the proposed Act.
Equivalent provision in the PSL Act: nil.
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DIVISION 2 - DESIGNATED WORK GROUPS
SUBDIVISION A - ESTABLISHMENT OF DESIGNATED WORK GROUPS
Schedule 3 clause 19 - Establishment of designated work groups by request
This clause makes provisions for the establishment of designated work groups on
request. The establishment of designated work groups is a well-established practice
under OHS laws, as part of the overall consultative mechanisms.
Subclause (1) establishes that any member of the workforce, or a workforce
representative if requested by a member of the workforce, may request that the
operator enter into consultations to establish designated work groups for the members
of the workforce at the facility.
Subclause (2) establishes that the operator must enter into such consultations within
14 days of a request having been made, and sets out who must be consulted,
depending on who made the request.
Subclause (3) establishes that the operator must establish the designated work groups
within 14 days of completion of the consultation, by notifying the members of the
workforce.
Equivalent provision in the PSL Act: Schedule 7, clause 12
Schedule 3 clause 20 - Establishment of designated work groups at initiative of
operator
This clause makes provisions for designated work groups to be established at the
operator's initiative.
Subclause (1) establishes that the operator of a facility may at any time enter into
consultations with all members of the workforce, with each employer of the members
of the workforce, and (if requested by a member of the workforce) with a workforce
representative.
Subclause (2) establishes that the operator must establish the designated work groups
within 14 days of completion of the consultation, by notifying the members of the
workforce.
Equivalent provision in the PSL Act: Schedule 7, clause 12
SUBDIVISION B - VARIATION OF DESIGNATED WORK GROUPS
Schedule 3 clause 21 - Variation of designated work groups by request
This clause makes provisions for the variation of designated work groups on request.
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Subclause (1) establishes that any member of the workforce, or a workforce
representative if requested by a member of the workforce, may request that the
operator enter into consultations to vary the designated work groups.
Subclause (2) establishes that the operator must enter into such consultations within
14 days of a request having been made and sets out who must be consulted depending
on who made the request.
Subclause (3) establishes that, if such consultation takes place and as a result it has
been determined that the designated work groups should be varied, the operator must
vary the designated work groups in accordance with the outcome of the consultation
and that this must happen within 14 days of completion of the consultation and be
achieved by notifying the members of the workforce who are affected.
Equivalent provision in the PSL Act: Schedule 7, clause 12
Schedule 3 clause 22 - Variation of designated work groups at initiative of operator
This clause makes provisions for the variation of designated work groups at the
initiative of the operator.
Subclause (1) establishes that the operator of a facility may at any time enter into
consultations with the elected health and safety representatives of the relevant work
groups, all members of the workforce in the relevant work groups, with each
employer of members of the workforce who are in the relevant work groups and (if
requested by a relevant member of the workforce) with a workforce representative.
Subclause (2) establishes that, if such consultation takes place and as a result it has
been determined that the designated work groups should be varied, the operator must
vary the designated work groups in accordance with the outcome of the consultation
and that this must happen within 14 days of completion of the consultation and be
achieved by notifying the members of the workforce who are affected.
Equivalent provision in the PSL Act: Schedule 7, clause 12
SUBDIVISION C - GENERAL
Schedule 3 clause 23 - Referral of disagreement to reviewing authority
This clause makes provisions for the resolution of disagreements regarding the
establishment or variation of designated workgroups.
Subclause (1) establishes that, if there is a disagreement in the course of the relevant
consultations, any party may refer the matter to the reviewing authority. Subclause
(2) establishes that the parties to the disagreement must complete the consultation in
accordance with the resolution made by the reviewing authority. The reviewing
authority is the Australian Industrial Relations Commission.
Equivalent provision in the PSL Act: Schedule 7, clause 12
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Schedule 3 clause 24 - Manner of grouping members of the workforce
This clause makes further provisions relating to the manner in which members of the
workforce are to be assigned to the designated work groups.
Subclause (1) establishes that consultations about the establishment or variation of
designated work groups must be principally directed towards determining a manner of
grouping that best and most conveniently enables the interests of the health and safety
of members of the workforce to be represented and safeguarded and that best takes
account of the need for any elected health and safety representative to be accessible to
each group member.
Subclause (2) establishes the matters that the parties to the consultation must have
regard to, including the number of members of the workforce to whom the
consultation relates, the nature of the work each member performs and the other
matters listed.
Subclause (3) establishes that the designated work groups should so far as practicable
encompass all members of the workforce at a facility.
Subclause (4) clarifies that all the members of the workforce at a facility may be in
one designated work group, subject to the consultation.
Equivalent provision in the PSL Act: Schedule 7, clause 12
DIVISION 3 - HEALTH AND SAFETY REPRESENTATIVES
SUBDIVISION A - SELECTION OF HEALTH AND SAFETY REPRESENTATIVES
Schedule 3 clause 25 - Selection of health and safety representatives
This clause makes provision for the selection of health and safety representatives for
each designated work group. Health and safety representatives are selected or elected
by each designated work group and represent the members of their designated work
group in matters relating to workplace health and safety. Health and safety
representatives are a key part of the consultative processes for health and safety.
Subclause (1) establishes that one health and safety representative may be selected for
each designated work group, whilst subclause (2) establishes that only someone who
is a member of the workforce included in a specific designated work group may be
the health and safety representative for that work group.
Subclause (3) establishes that a person becomes the health and safety representative
for a designated work group if all the members of the workforce who are in the
designated work group unanimously agree or if the person is elected in accordance
with clause 26.
Equivalent provision in the PSL Act: Schedule 7, clause 13
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Schedule 3 clause 26 - Election of health and safety representatives
This clause makes provisions for the election of health and safety representatives.
Subclause (1) establishes that the operator of the facility must invite all members of a
designated work group to nominate for election as the group's health and
representative if there is a vacancy and if after a reasonable time no-one has been
selected by unanimous agreement under paragraph 25(3)(a). Details such as the
nomination period, and the form of nomination are to be set by direction of the Safety
Authority under subclause (8).
Subclauses (2) and (3) establish the Safety Authority's power to direct the operator to
call nominations and, if there is more than one candidate, the operator's obligation to
conduct or arrange an election at the operator's expense. Subclauses (4) (5) (6) and
(7) set out ground rules for the election, principally that, if requested by the majority
of the members of the workforce in the designated work group (or by 100 members if
this is a lesser number), the election must be held in accordance with the processes set
out in the regulations. No election is required if there is only one nomination. A
person cannot be a candidate for election if disqualified under clause 32, and there is a
general right to vote by all members of the workforce who are in the designated work
group.
Subclause (8) establishes that an operator who is conducting an election, or arranging
for the conduct of an election, must comply with any relevant directions issued by the
Safety Authority. It is expected that some directions will be issued that apply to all
elections, for example relating to the nomination period and the form of nomination,
whilst other directions may relate to a specific election, for example directing that a
particular organization or person be used as the returning officer.
Equivalent provision in the PSL Act: Schedule 7, clause 13A
Schedule 3 clause 27 - List of health and safety representatives
This clause requires the keeping of a list of health and safety representatives.
The operator of a facility is required to prepare a list of the health and safety
representatives of all designated work groups at the facility, to keep this list up to
date, and to ensure that the list is available for inspection by all members of the
workforce and by any OHS inspector.
Equivalent provision in the PSL Act: Schedule 7, clause 13B
Schedule 3 clause 28 - Members of designated work group must be notified of
selection etc of health and safety representatives
This clause requires the notification of vacancies for health and safety representatives,
and the selection of health and safety representatives.
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The operator of a facility is required to notify all members of a designated work group
of any vacancy in the position of health and safety representative for that group,
within a reasonable time of the vacancy occurring.
The operator is also required to notify all members of a designated work group of the
name of any person selected or elected as the health and safety representative for the
group.
Equivalent provision in the PSL Act: Schedule 7, clause 13C
Schedule 3 clause 29 - Term of office
This clause provides limits to the term of office of health and safety representatives.
Subclause (1) provides that the term of office for a health and safety representative is
the period that was agreed upon during the consultation that took place under clauses
19, 20, 21 or 22 or, if no such period was agreed upon, is 2 years.
Subclause (2) clarifies that any health and safety representative can be selected for
further terms of office, although subclause (3) further clarifies that both subclauses (1)
and (2) are subject to the other provisions of this Part (such as the disqualification
provisions in clause 32).
Equivalent provision in the PSL Act: Schedule 7, clause 14
Schedule 3 clause 30 - Training of health and safety representatives
This clause makes provision for the training of health and safety representatives.
Subclause (1) requires that each health and safety representative must undertake a
course of training relating to OHS that is accredited by the Safety Authority for the
purposes of this clause. Such a course would be a course specifically for health and
safety representatives, rather than a general OHS course.
Subclauses (2) and (3) require the operator of the facility, and the person's employer
if other than the operator, to allow the person time off work to attend the training
course, without loss of remuneration or other entitlements.
Equivalent provision in the PSL Act: Schedule 7, clause 15
Schedule 3 clause 31 - Resignation etc of health and safety representatives
This clause makes provision for the resignation of health and safety representatives.
Subclause (1) establishes that a person ceases to be the health and safety
representative for a designated work group if the person resigns the position, the
person ceases to be a member of that designated work group, the person's term of
office expires without the person having been reselected or the person is disqualified
under clause 32.
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Subclause (2) establishes that a person may resign as health and safety representative
by written notice to the operator and to each employer of persons in the work group.
Subclause (3) establishes that a person who resigns as health and safety representative
must also notify the members of the designated work group.
Subclause (4) establishes that, if the person ceases to be the health and safety
representative for a work group by virtue of no longer being a member of that work
group, he or she must give written notice of this to all group members, the operator
and the employers of all group members.
Equivalent provision in the PSL Act: Schedule 7, clause 20
Schedule 3 clause 32 - Disqualification of health and safety representatives
This clause makes provision for the disqualification of persons as health and safety
representatives.
Subclause (1) establishes that the operator of a facility, or an employer of any person
in the designated work group, or, at the request of a member of the work group, a
workforce representative may apply to the Safety Authority for a person to be
disqualified as a health and safety representative.
Subclause (2) establishes that valid grounds for making an application under
subclause (1) are that the health and safety representative either:
has taken action under or purportedly under the powers set out in subclause 34(1)
with the intention of causing harm to the operator or a work group employer, or
unreasonably, capriciously or not for the purpose for which the power was
conferred (i.e. not for reasons of health and safety); or
has intentionally used or disclosed information acquired from the operator or from
a work group employer, for a purpose not connected with the powers of health and
safety representatives.
Subclause (3) establishes that the Safety Authority may, if a request has been made,
disqualify a person as a health and safety representative for a period of up to 5 years,
but only if satisfied that the grounds are valid, and only after having regard to the
matters set out in paragraphs (a) to (d).
Equivalent provision in the PSL Act: Schedule 7, clause 21
Schedule 3 clause 33 - Deputy health and safety representatives
This clause makes provisions for the selection of deputy health and safety
representatives.
Subclause (1) establishes that there may be one deputy health and safety
representative for each designated work group for which a health and safety
representative has been selected.
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Subclause (2) establishes that deputy health and safety representatives are to be
selected in the same manner as health and safety representatives.
Subclause (3) establishes that the powers of health and safety representatives may be
exercised by deputy health and safety representatives if the selected health and safety
representative is unable to exercise those powers (for example, because of absence
from the facility), or if the selected health and safety representative ceases to be the
health and safety representative (for example, because of resignation or
disqualification).
Equivalent provision in the PSL Act: Schedule 7, clause 22
SUBDIVISION B - POWERS OF HEALTH AND SAFETY REPRESENTATIVES
Schedule 3 clause 34 - Powers of health and safety representatives
This clause establishes the powers of health and safety representatives, specifically
the actions that the health and safety representative may take for the purpose of
promoting or ensuring the health and safety at the workplace of the members of the
designated work group that he or she represents.
Paragraph (1)(a) sets out a health and safety representative's powers to inspect the
workplace, to make a request to an OHS inspector or to the Safety Authority that an
inspection be conducted by an OHS inspector, to be present when this occurs, to
represent group members in consultations with the operator and relevant employers,
and to examine any records of the health and safety committee.
Paragraph (1)(b) establishes that a health and safety representative may investigate
complaints made by any group member about the health and safety of any members of
the workforce. Such complaints do not have to originate from the health and safety
representative's designated work group - this helps ensure that persons who are not in
designated work groups, or persons whose health and safety representative is not
available, still have means of raising concerns regarding health and safety.
Paragraph (1)(c) establishes that a health and safety representative may be present at
any interview about health and safety between a group member and an OHS
inspector, the operator or operator's representative, or employer or employer's
representative, subject to the consent of the group member.
Paragraph (1)(d) establishes that a health and safety representative may obtain access
to any information that the operator or a work group employer has relating to the
health and safety of group members, and to risks to their health and safety.
Paragraph (1)(e) establishes that a health and safety representative may issue
provisional improvement notices in accordance with clause 38.
Subclause (2) clarifies that the power to obtain information relating to the health and
safety of any group member is subject to the limitations established by clause 36
regarding legal professional privilege and medical confidentiality.
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Equivalent provision in the PSL Act: Schedule 7, clause 16
Schedule 3 clause 35 - Assistance by consultant
This clause makes provision for health and safety representatives to be assisted by a
consultant.
Subclause (1) establishes that a health and safety representative is entitled to be
assisted by a consultant in the exercise of the powers of a health and safety
representative.
Subclause (2) clarifies that assistance by a consultant at the workplace, and the
provision to the consultant of information that the health and safety representative has
obtained under paragraph 34(1)(d) is only possible if the operator or the Safety
Authority has agreed to this in writing.
Subclause (3) establishes that neither the operator nor any work group employer
becomes liable for any remuneration or other expenses incurred in connection with
the consultant's activities.
Subclause (4) establishes that a consultant who is assisting a health and safety
representative is entitled to be present at any interview conducted under paragraph
34(1)(c), but only if the group member consents to this.
Equivalent provision in the PSL Act: Schedule 7, clause 16
Technical change: correction in paragraph (2)(b) of wording inaccurately cross-
referencing what appears in paragraph 34(1)(d) of this Schedule
Schedule 3 clause 36 - Information
This clause provides certain limits to the information that a health and safety
representative is entitled to obtain under subparagraph 34(1)(d)(ii).
Subclause (1) establishes that neither a health and safety representative nor a
consultant assisting a health and safety representative is entitled to have access to
information that a group member claims (and is entitled to claim), is covered by legal
professional privilege.
Subclause (2) applies equivalent limits with respect to information that is of a
confidential medical nature, except if there is a written authority, or if the information
does not identify the work group member to whom it relates.
Equivalent provision in the PSL Act: Schedule 7, clause 16
Schedule 3 clause 37 - Obligations and liabilities of health and safety representatives
This clause clarifies the obligations on health and safety representatives.
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Paragraph (a) establishes that a person is not obliged to exercise any power conferred
by this Schedule simply because the person is a health and safety representative.
Paragraph (b) establishes that a person is not liable in civil proceedings because of a
failure to exercise his or her powers as a health and safety representative, or because
of the way such powers were exercised.
Equivalent provision in the PSL Act: Schedule 7, clause 16
Schedule 3 clause 38 - Provisional improvement notices
This clause makes provisions regarding provisional improvement notices, which may
be issued by health and safety representatives in the event that they perceive there to
be a contravention of OHS law.
Subclause (1) requires a health and safety representative to consult with the person
supervising an activity if the health and safety representative believes on reasonable
grounds that a person conducting the activity is contravening a listed OHS law, or has
contravened a listed OHS law and is likely to contravene that provision again.
Subclause (2) establishes that the health and safety representative may issue a
provisional improvement notice to any or all of the persons responsible for the
contravention if, in the opinion of the health and safety representative, the
consultation under subclause (1) has not lead to an agreement within a reasonable
time.
Subclause (3) establishes that, if the person responsible for the contravention is the
operator, the notice may be given to the operator's representative at the facility.
Subclause (4) establishes that, if it is not possible to give the notice to the person
responsible for the contravention (other than the operator or the person supervising
the relevant activity) then the notice may be issued by giving it to the person who is or
may reasonably be assumed to be in charge of the activity at the time. In such cases,
the notice must also be given to the responsible person as soon as practicable
afterwards.
Subclause (5) establishes that the notice must specify the contravention that the health
and safety representative believes is occurring or is likely to occur, and must specify a
period within which the responsible person must take action to prevent a further or
continuing contravention. The period specified must be not less than 7 days, and must
be reasonable. Subclause (6) establishes that the notice may specify the nature of the
action that is to be taken. Subclause (7) provides that the health and safety
representative may extend the period specified on the notice at any time before the
initial period expires.
Subclause (8) establishes that the health and safety representative must give copies of
the notice to the persons specified in paragraphs (a) to (d). These are persons who
may be affected by the notice.
Equivalent provision in the PSL Act: Schedule 7, clause 17
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Schedule 3 clause 39 - Effect of provisional improvement notice
This clause specifies the effect of a provisional improvement notice.
Subclause (1) establishes that, within 7 days of its issue, any person who has been
issued with a provisional improvement notice, or a copy of a provisional improvement
notice, may request the Safety Authority or an OHS inspector to make an inspection
in relation to the notice. Subclause (2) establishes that the operation of the
provisional improvement notice is suspended when a request is made under subclause
(1), pending a determination by an OHS inspector.
Subclause (3) provides that an OHS inspector must make an inspection into the matter
as soon as possible after a request is made under subclause (1). It further provides
that the OHS inspector must then either confirm, vary or cancel the notice, and then
notify accordingly the persons who had initially received the notice or a copy of it. It
also provides that the OHS inspector must make decisions and exercise powers under
Part 4 of this Schedule, as the OHS inspector considers necessary.
Subclause (4) clarifies that a provisional improvement notice that is varied by an OHS
inspector takes effect as if it were a notice issued on the day of the variation.
Subclause (8) establishes that, if an OHS inspector confirms or varies a provisional
improvement notice, then the confirmed or varied notice is taken to be an
improvement notice issued under clause 81.
Subclause (5) requires a person who is issued with a provisional improvement notice
to notify each affected group member, and to cause a copy to be displayed at or near
the affected workplace.
Subclause (6) establishes that a notice ceases to have effect if it is cancelled by an
OHS inspector, if it is cancelled by the health and safety representative who issues it,
or if the responsible person takes the necessary action.
Subclause (7) establishes that the responsible person must ensure that the notice is
complied with, to the extent that the responsible person has control over the matter,
and must take reasonable practicable steps to inform the health and safety
representative of the action taken.
Equivalent provision in the PSL Act: Schedule 7, clause 18
SUBDIVISION C - DUTIES OF THE OPERATOR AND OTHER EMPLOYERS IN RELATION TO
HEALTH AND SAFETY REPRESENTATIVES
Schedule 3 clause 40 - Duties of the operator and other employers in relation to
health and safety representatives
This clause establishes the duties of operators, employers and supervisors in relation
to health and safety representatives.
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Subclause (1) sets out an operator's obligations to consult with the health and safety
representative on the implementation of changes at the workplace of any group
member and to permit inspections of the workplace as well as the other rights or
privileges the operator must extend to the health and safety representative.
Mostly, these duties on operators reflect the powers of health and safety
representatives that are established through clause 34, and the requirement for health
and safety representatives to be trained under clause 30.
Subclause (2) establishes that paragraph (1)(d), regarding access to information, only
has effect subject to subclauses (3) and (4).
Subclause (4) establishes that an operator is not required to allow a health and safety
representative to have access to information that the operator claims, and is entitled to
claim, is covered by legal professional privilege. Subclause (3) applies equivalent
limits with respect to information that is of a confidential medical nature, except if
there is a written authority from the person to whom it relates, or if the information
does not identify that person. These limitations are equivalent to those established in
clause 36.
Subclause (5) establishes that the duties imposed on an operator under this clause
apply equally to a work group employer and to a supervisor, to the extent that the
relevant matters are within the control of the employer and supervisor.
Equivalent provision in the PSL Act: Schedule 7, clause 19
DIVISION 4- HEALTH AND SAFETY COMMITTEES
Schedule 3 clause 41 - Health and safety committees
This clause makes provisions in relation to the establishment, constitution etc of
health and safety committees.
Subclause (1) establishes that a health and safety committee must be established if
there are designated work groups at the facility, if the number of members of the
workforce normally present at the facility (but not necessarily at the same time) is 50
or more, and if a health and safety representative requests that a committee be
established.
Subclause (2) establishes that the health and safety committee must consist either of
the number of members specified in an agreement between the operator and the
workforce, or of equal numbers of representatives chosen by the operator and chosen
by the workforce.
Subclause (3) clarifies that an agreement under subclause (2) may specify the persons
who are to represent the operator and who are to represent the workforce, and may
specify the manner in which persons are to be chosen to be members.
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Subclause (4) clarifies that, if regulations are written that specify procedures for the
selection of members of health and safety committees, then the method of choosing
committee members must be consistent with the regulations.
Subclause (5) establishes that committee meetings must be held at least once every
3 months. Subclause (6) establishes that procedures for the conduct of committee
meetings must be as agreed upon by the committee, except to the extent provided for
by regulations. Subclause (7) establishes that minutes of committee meetings must be
kept for at least 3 years.
Subclause (8) clarifies that this clause does not prevent other committees relating to
health and safety from being established, providing that this occurs in consultation
with the workforce.
Equivalent provision in the PSL Act: Schedule 7, clause 23
Schedule 3 clause 42 - Functions of health and safety committees
This clause sets out the functions of health and safety committees.
Subclause (1) establishes functions for health and safety committees, ie assisting the
operator in the development, implementation, review and update of measures used to
protect the health and safety of the workforce, facilitating relevant cooperation
between the operator, other employers and the workforce, and assisting the operator to
disseminate to the workforce relevant information.
The subclause (paragraphs (d) and (e)) provides also for other functions to be
prescribed, and for other functions to be agreed upon between the operator and the
committee.
Subclause (2) establishes that a health and safety committee has power to do anything
necessary or convenient to be done for or in connection with the performance of its
functions.
Subclause (3) establishes that a person is not obliged to do any act simply because the
person is a member of a health and safety committee, and confers immunity on the
person from liability to civil action because of a failure to act as a member of a health
and safety committee, or because of the way in which he or she acted as a member of
a health and safety committee.
Equivalent provision in the PSL Act: Schedule 7, clause 24
Schedule 3 clause 43 - Duties of the operator and other employers in relation to
health and safety committees
This clause establishes duties on operators and other employers in relation to health
and safety committees.
239
Subclause (1) sets out the duties that are imposed on operators, ie that the operator
and any other employer of a member of the workforce must make available to the
committee any available information relating to the health and safety of the workforce
and must allow a member of a health and safety committee to take such time off work
as is necessary for the person to participate adequately in the performance of the
committee's functions. This is to be without loss of remuneration or other
entitlements.
Subclause (2) establishes that there are some restrictions on a health and safety
representative gaining access to information.
Subclause (4) establishes that an operator is not required to allow a health and safety
representative to have access to information that the operator claims, and is entitled to
claim, is covered by legal professional privilege. Subclause (3) applies equivalent
limits with respect to information that is of a confidential medical nature, except if
there is a written authority from the person to whom it relates, or if the information
does not identify that person.
Equivalent provision in the PSL Act: Schedule 7, clause 25
DIVISION 5 - EMERGENCY PROCEDURES
Schedule 3 clause 44 - Action by health and safety representatives
This clause sets out provisions related to the actions that health and safety
representatives may take in the event of a perceived imminent and serious danger.
Subclause (1) establishes that if a health and safety representative has reasonable
cause to believe that there is an imminent and serious danger to health and safety
unless there is a cessation of work, then he or she may inform the person supervising
the relevant work or, if the supervisor cannot be contacted immediately, may direct
the work to cease and then inform the supervisor as soon as practicable.
Subclause (2) establishes that a supervisor who is informed of an imminent and
serious danger must take action as he or she thinks appropriate to remove that danger,
including directing that work cease.
Subclause (3) establishes that, if the health and safety representative does not believe
that the action taken by the supervisor has removed the imminent and serious danger,
the health and safety representative must direct that the work cease and must then
inform the supervisor as soon as practicable.
Subclause (4) establishes that the health and safety representative may request the
Safety Authority or an OHS inspector to make an inspection of the work, if either the
health and safety representative has issued a direction under subclause (1) but is
unable to agree with the supervisor that there is a need for such a direction or the
representative has issued a direction under subclause (3).
Subclause (5) establishes that an inspection must be made into the matter by an OHS
inspector as soon as possible after a request is made under subclause (4), and that the
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OHS inspector must then take action and exercise powers as he or she considers
necessary under Part 4 of this Schedule.
Subclause (6) clarifies that this clause does not limit the powers of a health and safety
representative to request an inspection under clause 34.
Equivalent provision in the PSL Act: Schedule 7, clause 26
Schedule 3 clause 45 - Direction to perform other work
This clause makes provision for persons to be assigned other work after having been
subject to a direction to cease work under clause 44.
Subclause (1) refers to work resuming after the health and safety representative has
agreed that the cessation was not, or is no longer, necessary, or after an OHS inspector
has made a decision that a particular employee should perform the work.
Subclause (2) allows an employer to direct the employee to perform suitable
alternative work and requires the employee to perform that work. This provision is
intended to enable the employer to circumvent any reluctance that the employee may
have owing to a residual grievance.
Equivalent provision in the PSL Act: Schedule 7, clause 27
DIVISION 6 - EXEMPTIONS
Schedule 3 clause 46 - Exemptions
This clause provides for the granting of exemptions from this Part of this Schedule.
Subclause (1) establishes that the Safety Authority may, in accordance with the
regulations, make a written order exempting a specified person from any or all of the
provisions of this Part.
Subclause (2) establishes that such an order may be made only if the Safety Authority
is satisfied that compliance is impracticable.
Subclause (3) establishes that such an order is a legislative instrument for the
purposes of the Legislative Instruments Act 2003.
The provisions of this clause allow for the fact that compliance with all of the
consultative provisions of this Part may not be practicable in all circumstances, for
example if a facility comes under this Schedule only for a short period.
Equivalent provision in the PSL Act: Schedule 7, clause 27A
Part 4 - Inspections
This Part of the Schedule sets out the provisions related to inspections of facilities,
regulated business premises and other relevant premises by OHS inspectors.
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DIVISION 1 - INTRODUCTION
Schedule 3 clause 47 - Simplified outline
This clause gives a summary of the main provisions of this Part. This summary does
not form part of the operative text of the proposed Act.
Equivalent provision in the PSL Act: nil.
Schedule 3 clause 48 - Powers, functions and duties of OHS inspectors
This clause establishes the powers, functions and duties of OHS inspectors.
Subclause (1) establishes that a person who is appointed as an OHS inspector under
clause 390 has the powers, functions and duties that are conferred or imposed by any
of the listed OHS laws. These laws are set out in clause 348, and include this
Schedule as well as selected clauses of the proposed Act, and a number of the
regulations that will be made under the proposed Act.
Subclause (2) establishes that the Safety Authority may direct the manner and
conditions under which powers conferred on OHS inspectors are to be exercised.
Subclause (3) establishes that the Safety Authority may also impose restrictions on the
exercise of an OHS inspector's powers, although these restrictions cannot be
inconsistent with the directions issued under subclause (2).
In accordance with current drafting practice, subclauses (4), (5) and (6) set out the
status of written directions and notices under this clause in terms of the Legislative
Instruments Act 2003. Only a direction under subclause (2) that is of general
application is a legislative instrument, as the direction can then be regarded as
determining the law or altering the content of the law, rather than applying the law in
a particular case.
Equivalent provision in the PSL Act: Schedule 7, clause 29
Policy change: addition of references to "a listed OHS law"
DIVISION 2 - INSPECTIONS
Schedule 3 clause 49 - Inspections
This clause establishes the valid reasons for the conduct of inspections by OHS
inspectors.
Subclause (1) establishes that an OHS inspector may at any time, at his or her own
initiative, conduct an inspection:
to ascertain whether the listed OHS laws are being complied with;
in relation to a contravention of possible contravention of a listed OHS law; or
242
in relation to an accident or dangerous occurrence at or near a facility.
Subclause (2) establishes that the Safety Authority may direct an OHS inspector to
conduct an inspection for any of the same reasons, and that the OHS inspector, if so
directed, must conducted an inspection accordingly.
Equivalent provision in the PSL Act: Schedule 7, clause 30
Policy changes: extension of (1)(c) and (2)(c) to include accidents or dangerous
occurrences that are "near" facilities; addition of references to "a listed OHS law"
DIVISION 3 - POWERS OF OHS INSPECTORS IN RELATION TO THE CONDUCT OF
INSPECTIONS
SUBDIVISION A - GENERAL POWERS OF ENTRY AND SEARCH
This subdivision establishes the general powers of OHS inspectors that allow them to
enter and search facilities and other premises for the purpose of conducting an
inspection.
Schedule 3 clause 50 - Powers of entry and search - facilities
This clause establishes the powers of OHS inspectors in respect of search and entry at
offshore petroleum facilities.
Subclause (1) establishes that an OHS inspector may enter a facility, for the purposes
of an inspection, at any reasonable time during either the day or night, specifically in
order to search, inspect, examine, measure, test or take photographs or other images
of plant, substances or things at the facility or to make copies etc of any documents at
the facility that relate to the subject of the inspection.
It also establishes that the OHS inspector may inspect the seabed and subsoil in the
vicinity of the facility.
Subclause (2) provides that the OHS inspector, on entering a facility, must take
reasonable steps to inform the operator's representative and any relevant health and
safety representative of the inspection. The subclause also requires the OHS inspector
to produce his or her identity card, and, if requested, a copy of any relevant written
direction or restrictions under clause 48.
Subclause (3) provides that the OHS inspector must give any relevant health and
safety representative a reasonable opportunity to consult about the subject of the
inspection.
Equivalent provision in the PSL Act: Schedule 7, clause 31
Policy change: addition of the reference to video recordings
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Schedule 3 clause 51 - Powers of entry and search - regulated business premises
(other than facilities)
This clause establishes the powers of OHS inspectors in respect of search and entry at
regulated business premises that are not facilities. A regulated business premise is
defined in 3, and includes facilities and any premises occupied by the facility operator
and used or proposed to be used wholly or principally in connection with offshore
petroleum operations. Such premises might be, for example, an operator's offices, or
an operator's supply base for its offshore operations
Subclause (1) establishes that an OHS inspector may enter such premises if the OHS
inspector has reasonable grounds to believe that there are likely to be documents at
those premises that relate to the subject of an inspection, and that the OHS inspector
may then search for, inspect, take extracts from or make copies of, any of those
documents.
Subclause (2) provides that the OHS inspector, on entering such premises, must take
reasonable steps to inform the occupier of the premises. The subclause also requires
the OHS inspector to produce his or her identity card, and (if requested) a copy of any
relevant written direction or restrictions under clause 48.
Equivalent provision in the PSL Act: Schedule 7, clause 31A
Schedule 3 clause 52 - Powers of entry and search - premises (other than regulated
business premises)
This clause establishes the powers of OHS inspectors in respect of search and entry at
premises that are not regulated business premises. Such premises might be, for
example, the offices of a company that supplies design services or labour hire to the
operator.
Subclause (1) establishes that an OHS inspector may enter such premises if the OHS
inspector has reasonable grounds to believe that there are likely to be documents at
those premises that relate to the subject of an inspection, and that the OHS inspector
may then search for, inspect, take extracts from or make copies of, any of those
documents.
Subclause (2) provides that the powers set out in subclause (1) may be exercised only
with the consent of the occupier or, where the premises are not a residence, if a
warrant has been granted under clause 53.
Subclause (3) provides that the OHS inspector, on entering such premises, must take
reasonable steps to notify the occupier of the purpose of entry. The subclause also
requires the OHS inspector to produce his or her identity card, and (if requested) a
copy of any relevant written direction or restrictions under clause 48.
Subclause (4) provides that, if premises are entered under a warrant, then a copy of
the warrant must be made available to the occupier. Subclause (5) provides that,
before obtaining the occupier's consent to entry, the OHS inspector must inform the
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occupier that entry may be refused or withdrawn. Subclause (6) clarifies that consent
must be voluntary.
Equivalent provision in the PSL Act: Schedule 7, clause 31B
Schedule 3 clause 53 - Warrant to enter premises (other than regulated business
premises)
This clause sets out the procedures for the issue of a warrant to enter premises that are
not regulated business premises.
Subclause (1) provides that an OHS inspector may apply to a Magistrate for a warrant
that authorises the OHS inspector to exercise the powers of entry under subclause
52(1) in relation to premises that are not residences. The application must relate to
particular premises. The authorisation can include "such assistance as the OHS
inspector thinks necessary". Subclause (2) establishes that the application must be
supported by information on oath or affirmation setting out the grounds for the
application.
Subclause (3) provides that the Magistrate may issue a warrant, if satisfied that there
are reasonable grounds. Subclauses (4) and (6) set out the information that must be
stated on the warrant. Subclause (5) also establishes that a warrant cannot have effect
for more than 7 days.
Equivalent provision in the PSL Act: Schedule 7, clause 31C
Schedule 3 clause 54 - Obstructing or hindering OHS inspector
This clause establishes that it is an offence to obstruct or hinder an OHS inspector.
Subclause (1) establishes that a person is guilty of an offence if the person engages in
conduct that obstructs or hinders an OHS inspector in the exercise of the inspector's
powers under clauses 50, 51 or 52. The relevant maximum penalty is 50 units. At the
time of introducing this Bill, a penalty unit was equivalent to $110.
The offence provision in subclause (1) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Subclause (2) establishes that the offence does not apply if the person has a
reasonable excuse. The notes draw attention to other relevant matters under the
Criminal Code.
Equivalent provisions in the PSL Act: Schedule 7, subclauses 31(4) and (5), 31A(3)
and (4) and 31B(7) and (8)
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SUBDIVISION B - OFFENCE-RELATED SEARCHES AND SEIZURES
This subdivision establishes the powers of OHS inspectors related to searches and
seizures when there is an alleged offence, and evidential material is to be gathered.
These powers expand upon the corresponding search and seizure powers that an OHS
inspector has for the conduct of an inspection under Subdivision A.
Schedule 3 clause 55 - What is evidential material?
This clause establishes that "evidential material" is any thing in respect of which an
offence has been committed, or is suspected on reasonable grounds to have been
committed, against a listed OHS law, or anything identified, on the grounds of
reasonable suspicion, as affording evidence about the commission of such an offence,
or as being used (or intended to be used) for the purpose of committing such an
offence.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
Schedule 3 clause 56 - Offence-related searches and seizures - OHS inspector already
present at facility
This clause sets out provisions related to searches and seizures related to offences, for
cases where an OHS inspector is already present at the facility.
Subclause (1) establishes that the clause applies if an OHS inspector has entered a
facility under the provisions of clause 50 and believes on reasonable grounds that
there is evidential material at the facility.
Subclause (2) sets out how the OHS inspector may then search or examine the facility
for evidential material, and seize any thing or take samples of any thing believed on
reasonable grounds to be evidential material.
Subclause (3) establishes that most of the powers set out in subclause (2) may be
exercised with the consent of the operator or operator's representative, or in
accordance with a warrant issued under subclause 67(1). However, subclause (4)
establishes that the operator's or representative's consent is irrelevant when it comes
to exercising the power of seizure. To seize any thing believed on reasonable grounds
to be evidential material, the OHS inspector must have a warrant.
Subclause (5) establishes that, before conducting a search under subclause (2), an
OHS inspector must take reasonable steps to notify the operator's representative of
the purpose of the search and to produce his or her identity card and, where
applicable, other documents, for inspection by the operator's representative.
Subclause (6), establishes that if the search is being conducted under a warrant and
the operator's representative is present at the facility, the OHS inspector must make a
copy of the warrant available to the operator's representative. Subclauses (7) and (8)
provide that if there is no warrant, or a warrant is not used, consent must be voluntary
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and the OHS inspector must inform the person that consent may be refused or
withdrawn.
Subclause (9) establishes that the warrant may be taken to authorise the seizure of a
thing, even if not of a kind specified on the warrant and sets out the conditions under
which this is allowed.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause.
Schedule 3 clause 57 - Offence-related searches and seizures - OHS inspector not
already present at facility, premises or vessel
This clause sets out provisions related to searches and seizures related to offences, for
cases where an OHS inspector is not already present at the facility, premises or vessel.
Subclause (1) establishes that the clause applies if an OHS inspector believes on
reasonable grounds that there is evidential material at a facility, premises or vessel,
without necessarily yet being at the facility, premises or vessel.
The provisions in this clause are similar to those that apply under clause 56.
The additional details which do not figure in clause 56 include provisions about entry.
They also include the points in paragraphs (2)(f) and (g) about taking measurements,
conducting tests, taking photographs, making video recordings or making sketches of
the facility, premises or vessel or any thing at it, that is believed on reasonable
grounds to be evidential material. The latter actions are not expressly envisaged in
clause 56 for the reason that they would tend to require specialist equipment, which
an OHS inspector would be unlikely to have with him or her in the case described in
clause 56. However, the OHS inspector could organise himself or herself to take the
equipment in the case set out in clause 57.
Subclause (3) also elaborates on how consent is to be obtained, ie from the operator or
operator's representative at a facility, the occupier at the premises, or the master of a
vessel.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
Schedule 3 clause 58 - Data access powers
This clause sets out provisions related to electronic equipment and electronic data in
respect of searches and seizures.
Subclause (1) establishes that the clause sets out "data access powers" that an OHS
inspector may exercise under paragraphs 56(2)(f) and 57(2)(h).
Subclause (2) sets out provisions for an OHS inspector to operate electronic
equipment at a facility, premises or vessel in order to access data.
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Subclause (3) sets out provisions by which an OHS inspector may copy data that he or
she believes on reasonable grounds may be evidential material, and may remove the
copied data from the facility, premises or vessel.
Subclause (4) provides that, after data have been copied and taken away in accordance
with subclause (3), and is found not to be needed, or no longer needed, for an
inspection or prosecution, then the Safety Authority must arrange for the removal of
the data from any disk etc in its control and the destruction of any other copy of the
data.
Subclause (5) sets out an OHS inspector's power to secure electronic equipment prior
to obtaining expert assistance to access the material if he or she believes that the
material within that equipment may be destroyed, altered or otherwise interfered with.
The OHS inspector must, under subclause (6), give notice of his or her intention to
secure electronic equipment to the operator's representative, occupier or master.
Subclause (7) establishes that equipment may be secured until operated by an expert,
but for no longer than 24 hours, except as provided for by the following subclauses.
Subclauses (8) and (9) provide that the OHS inspector may apply for an extension of
the period for which the equipment may be secured, if he or she believes that expert
assistance will not be available within 24 hours, provided the operator's
representative, occupier or master is notified, indicating that the person is entitled to
be heard in relation to the application.
Subclause (10) establishes that provisions of this subdivision relating to the issue of
warrants apply (with modification as necessary) to the issuing of an extension.
This clause makes provisions equivalent to those in section 3L of the Crimes Act
1914.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
Schedule 3 clause 59 - Data seizure powers
Subclause (1) sets out powers under subclauses 56(2)(f) and 57(2)(i) to seize data that
an OHS inspector may exercise during an inspection.
Subclause (2) sets out an OHS inspector's powers to seize any equipment, disk, tape
or associated device that is found to provide access to evidential material or to put the
data into documentary form (ie, print them) . Subclause (3) clarifies that the
equipment etc may be seized only if it is not practicable to copy the data or put it into
documentary form, or if the equipment is in the possession of another person and that
possession may be an offence.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
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Schedule 3 clause 60 - Access to computer data
This clause establishes that it is an offence for a person to fail to act in accordance
with an order from a Magistrate to provide information or assistance to an OHS
inspector in relation to data access. This clause makes provisions equivalent to those
in section 3LA of the Crimes Act 1914.
Subclause (1) establishes that this clause applies if a warrant is in force under 67
authorising the use of data access powers under clause 58.
Subclause (2) provides that an OHS inspector may apply to a Magistrate for an order
requiring a specified person to provide reasonable and necessary information and
assistance so that the OHS inspector may access data through a computer at a facility,
premises or vessel, copy that data or covert it to documentary form.
Subclause (3) provides that the Magistrate may grant the order if satisfied that there
are reasonable grounds for suspecting that evidential material is held in or is
accessible from the computer, and the specified person meets any of the criteria listed
in subparagraphs (b)(i) to (b)(iii) and the specified person has relevant knowledge of
the computer, the computer network or the data protection measures that have been
applied.
Subclause (4) makes it an offence for a person who is subject to an order under this
clause to act in a way that breaches the order. The maximum penalty is 6 months
imprisonment.
The offence provision in subclause (4) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
Schedule 3 clause 61 - Compensation for damage to equipment
This clause sets out provisions for compensation for damage to equipment when
operated under clause 58.
Subclause (1) establishes that this clause applies when equipment is being operated as
mentioned in clause 58 and, through insufficient care, the equipment is damaged, data
recorded on the equipment is damaged, or programs associated with the use of the
equipment or the data are damaged or corrupted.
In such cases, subclause (2) requires the Commonwealth to pay the owner of the
equipment, or the user of the data or program, reasonable compensation, as agreed
between the Commonwealth and the owner, or user.
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Subclause (3) establishes that the owner or user may institute proceedings in the
Federal Court for reasonable compensation, if the owner or user and the
Commonwealth cannot agree on the amount to be paid.
Subclause (4) establishes that, when determining the amount of payable
compensation, account must be taken of whether relevant persons present at the
facility, premises or vessel provided appropriate warning or guidance on the operation
of the equipment.
Subclause (5) clarifies that compensation is payable out of money appropriated by
Parliament.
Subclause (6) clarifies that "damage" in subclause (1) includes damage by erasure of
data or by addition of data.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
Schedule 3 clause 62 - Copies of things seized to be provided
This clause sets out provisions for the making of copies of things seized.
Subclause (1) establishes that if an OHS inspector seizes a document, film, computer
file or other thing that can readily be copied, then a copy must be given to the relevant
person as soon as practicable after the seizure. Consistent with the previous clause,
the relevant person is the operator's representative at a facility, or the occupier of
premises, or someone who represents that occupier, or the master of a vessel.
Subclause (2) establishes that subclause (1) does not apply to things seized under
subclause 58(3) (where the thing is seized by way of making a copy) or under
paragraph 50(5)(b) (where the thing is seized by way of copying it to documentary
form). In these cases, the original data is left in place, and the making of a further
copy is unnecessary.
This clause makes provisions equivalent to those in section 3N of the Crimes Act
1914.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause.
Schedule 3 clause 63 - Operator's representative, occupier or master entitled to be
present
This clause establishes the right of an operator's representative, occupier or master to
be present during offence-related searches.
Subclause (1) establishes that, if a warrant related to a facility is being executed, the
operator's representative is entitled to observe the search. Subclause (2) creates an
equivalent entitlement for the occupier or the occupier's representative to observe a
250
search under warrant at premises. Subclause (3) creates an equivalent entitlement for
the master to observe a search under warrant at a vessel.
However, subclause (4) establishes that the entitlement to observe a search under
warrant ceases if the person observing the search impedes it.
Subclause (5) clarifies that the above does not prevent more than one area being
searched at the same time, notwithstanding the fact that it may not be possible for a
person to observe the search at all areas concurrently.
This clause makes provisions equivalent to those in section 3P of the Crimes Act
1914.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause.
Schedule 3 clause 64 - Receipts for things seized
This clause establishes that an OHS inspector must provide a receipt for anything
seized under this subdivision and that more than one thing may be covered by one
receipt.
This clause makes provisions equivalent to those in section 3Q of the Crimes Act
1914.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause.
Schedule 3 clause 65 - Retention of things seized
This clause sets out provisions for the retention by the Safety Authority of things
seized by an OHS inspector under this subdivision.
Subclause (1) establishes that the Safety Authority may retain any such thing for 60
days or until any relevant proceedings are completed.
Subclause (2) establishes that the Safety Authority may issue a written instrument
authorising the release of a thing that was seized, back to its owner or to the person
from whom it was seized, and that this release may be subject to any conditions that
the Safety Authority sees fit.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
Schedule 3 clause 66 - Magistrate may permit a thing seized to be retained for a
further period
This clause allows a Magistrate to permit retention for a further period of a thing that
has been seized.
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Subclause (1) establishes that an OHS inspector or the Safety Authority may apply to
a Magistrate for an order that a thing seized may be retained for a period of more than
60 days, or beyond a period set in an earlier Magistrate's order, if proceedings have
not yet been instituted for an offence in respect of which the thing may be evidential
material.
Subclause (2) establishes that the Magistrate may then order the OHS inspector or the
Safety Authority to retain the thing for up to 3 years if satisfied that it is necessary to
retain it for the purposes of an inspection or to enable evidence of an offence to be
secured for the purposes of a prosecution.
Subclause (3) establishes that the OHS inspector or the Safety Authority must, before
making an application under subclause (1), take reasonable steps to discover who has
an interest in the thing, and, if practicable, notify those parties of the proposed
application.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
Schedule 3 clause 67 - Magistrate may issue warrant
This clause sets out provisions for the issue of a warrant, relating to the exercise of
powers under clauses 56 and 57.
Subclause (1) applies if an OHS inspector has entered a facility under clause 50,
believes on reasonable grounds that there is evidential material at the facility, and
applies to a Magistrate for a search warrant. The subclause establishes that the
Magistrate may then issue a warrant authorising the OHS inspector to exercise his or
her powers under paragraphs 56(2)(a) to (f) to generally search for, examine, seize
and take samples of, evidential material.
Subclause (2) applies if an OHS inspector has not entered a facility under clause 50,
but has provided information on oath or affirmation before a Magistrate alleging that
the OHS inspector believes on reasonable grounds that there is evidential material at a
facility, premises or vessel. The subclause establishes that the Magistrate may then
issue a warrant authorising the OHS inspector to enter the facility, premises or vessel
and exercise his or her powers under paragraphs 57(2)(b) to (g) to generally search
for, examine, seize and take samples, photographs etc, of evidential material.
Subclause (3) establishes that an application under subclause (2) may be made by
telephone, fax or other electronic means, if the OHS inspector thinks this is necessary
because of urgency.
Subclause (4) applies if an OHS inspector has entered a facility under clause 50,
believes on reasonable grounds that there is evidential material at a vessel that relates
to a law under paragraph 348(1)(a) of the proposed Act, and applies to a Magistrate
for a search warrant in relation to the vessel. The subclause establishes that the
Magistrate may then issue a warrant authorising the OHS inspector to enter the vessel
and exercise his or her powers under paragraphs 57(2)(b) to (g) in respect of the
evidential material.
252
The paragraph referred to in subclause (4) establishes that clause 321 of the proposed
Act, "interfering with offshore petroleum installations or operations", is a "listed OHS
law", to the extent that it relates to a "facility" as defined in this Schedule. Thus
subclause (4) allows an OHS inspector to apply for a warrant to enter and search a
vessel where that vessel is believed to have been involved in interference with a
facility.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
Schedule 3 clause 68 - Reasonable grounds for issuing warrant etc
This clause establishes that a Magistrate must not issue a warrant under clause 67
unless any further information that the Magistrate requires has been given to the
Magistrate, either orally or by affidavit, and the Magistrate is satisfied that there are
reasonable grounds for issuing the warrant.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
Schedule 3 clause 69 - Contents of warrant
This clause sets out the necessary contents of a warrant.
Subclause (1) sets out the information that must appear in a warrant issued under
clause 67, and subclause (3) clarifies that the "purposes" mentioned in the warrant
must identify the facility, premises or vessel.
Subclause (2) establishes that a warrant must expire within 7 days of issue. .
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
Schedule 3 clause 70 - Provisions relating to issue of warrant by telephone etc
This clause sets out provisions relating to the issue of warrants by telephone.
Subclause (1) establishes that this clause applies in relation to applications by
telephone or other electronic means under subclauses 67(1), (2) or (4).
Subclauses (2) and (3) establish that, before making an application by electronic
means, the OHS inspector must prepare an information, on oath or affirmation
(although not necessarily sworn or affirmed at the time the application is made),
alleging that he or she believes on reasonable grounds that there is evidential material
at a facility, premises or vessel, and setting out those grounds.
253
Subclause (4) establishes that the Magistrate may complete and sign a warrant only if
satisfied that there are reasonable grounds, based on the information prepared by the
OHS inspector and any further information the Magistrate considers necessary.
Subclause (5) sets out the information the Magistrate must convey to the OHS
inspector, if the Magistrate signs the warrant. The subclause further establishes that
the OHS inspector must complete a form of warrant in the same terms as that
completed and signed by the Magistrate, and must write on that form of warrant the
magistrate's name and the day and time the warrant was signed.
Subclauses (6) and (7) set out the procedures to be carried out with the form of
warrant and the sworn or affirmed information to the Magistrate.
Subclause (8) establishes that a form of warrant duly and correctly completed by an
OHS inspector is proper authority for seizure or exercise of other power under the
warrant.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
Schedule 3 clause 71 - Proceedings involving warrant issues by telephone etc
This clause establishes that a warrant signed by a Magistrate under clause 70, or other
proof, must be produced in evidence if it is necessary to satisfy a court that seizure or
other exercise of power was properly authorised.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
Schedule 3 clause 72 - This Subdivision does not limit other powers
This clause clarifies the relationship between this Subdivision and other similar
provisions.
Subclause (1) establishes that this Subdivision does not limit the effect of Subdivision
A. Subclause (2) clarifies in particular that there may be concurrent exercise of
powers under subdivisions A and B. Subclause (3) establishes that this Subdivision
does not limit clause 75, which provides general powers to take possession of plant,
substances, etc.
Equivalent provision in the PSL Act: nil.
Policy change: addition of this clause
SUBDIVISION C - OTHER POWERS
Schedule 3 clause 73 - Power to require assistance
This clause establishes that it is an offence in certain circumstances to fail to provide
assistance to an OHS inspector in connection with the conduct of an inspection.
254
Subclause (1) establishes that the persons listed in paragraphs (a) to (d) must provide
an OHS inspector with "reasonable assistance and facilities" that are "reasonably
connected with the conduct of the inspection" or are "for the effective exercise of the
OHS inspector's powers".
Subclause (2) establishes that, so far as the operator is concerned, the "reasonable
assistance" that must be provided to the OHS inspector under subclause (1) includes
transport to and from the facility, and accommodation and means of subsistence
whilst at the facility.
Subclause (3) then establishes that it is an offence for a person who is subject to a
requirement under this clause, to breach the requirement. The associated maximum
penalty is 6 months imprisonment.
The offence provision in subclause (3) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Subclause (4) establishes that the offence does not apply if the person has a
reasonable excuse. The notes draw attention to other relevant matters under the
Criminal Code.
Equivalent provision in the PSL Act: Schedule 7, clause 32
Schedule 3 clause 74 - Power to require the answering of questions and the
production of documents or articles
This clause establishes that it is an offence in certain circumstances to fail to answer
questions posed by an OHS inspector in the course of an inspection. It also
establishes that it is an offence in certain circumstances to fail to produce documents
or articles requested by an OHS inspector.
Subclause (1) lists the classes of persons who may be required to answer questions by
an OHS inspector.
Subclause (2) establishes that, if the person is not present on regulated business
premises, for example, a facility, when the requirement under subclause (1) is
imposed on the person, then there is no obligation to respond unless the requirement
is in writing and sets out certain other information as specified in the subclause.
Subclauses (3) and (4) are similar provisions to the above, but which apply to
producing documents or other articles connected with the conduct of an inspection.
Subclause (5) then establishes that it is an offence if a person is subject to a
requirement under this clause, and the person breaches the requirement. The
associated maximum penalty is 6 months imprisonment.
255
Subclause (6) establishes that the offence does not apply if the person has a
reasonable excuse. The notes draw attention to other relevant matters under the
Criminal Code.
The offence provision in subclause (5) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this
subclause, the prosecution would have to prove intention.
Subclause (7) establishes that it is an offence to give information to another person, in
compliance or purported compliance with a requirement of this clause, knowing that
the information is materially false or misleading. The associated maximum penalty is
6 months imprisonment.
The present day trend under Australian Government legislative principles is to insert,
in offence provisions of this type, a knowledge element. This is so, for example, in
section 137.1 of the Criminal Code. This provides, among other things, that, in certain
circumstances, a person is guilty of an offence against that section if the person gives
information to another person knowing that the information is false or misleading.
Accordingly, subclause 74(7) proposes to rewrite the abovementioned offence
provisions on the premise that the person is involved knowing that the entry is false or
knowing that the information given is false or misleading in a material particular.
Subclause (8) establishes that a person is not excused from answering a question or
from producing a document or article under this clause on the grounds that this may
tend to incriminate the person or make him or her liable to a penalty. However,
subclause (9) clarifies that the answer, document or article (or the action of giving the
answer or producing the document or article, or anything obtained as a direct result of
the answer, document or article) is not admissible as evidence against the person in
any civil proceedings, or in any criminal proceedings other than proceedings under
this clause or under sections 137.1 or 137.2 of the Criminal Code. Those sections
relate to the provision of false or misleading information.
Subclause (9) means that, if a person questioned under the powers conferred by this
clause is required to give information which, in other circumstances, would amount to
a confession of an infringement against the Act or an admission of liability, no
effective prosecution or legal action can generally be launched against that person
unless other sufficiently strong evidence is found. This partial immunity from legal
consequences has the obvious benefit that it increases the likelihood of a successful
investigation. Where incidents related to the occupation health and safety of
petroleum operations are concerned, it may occasionally be more important to
establish the facts than to be able to use the facts in a prosecution or legal action.
Equivalent provision in the PSL Act: Schedule 7, clause 32
Policy change: that the offence in subclause (7) applies to giving information with
knowledge that the information is false or misleading in a material particular
256
Schedule 3 clause 75 - Power to take possession of plant, take samples of substances
etc
This clause establishes the power of OHS inspectors to take possession of plant, and
to take samples of substances, etc.
Subclause (1) establishes that an OHS inspector may take possession of plant, a
substance, or a thing (or a sample of a substance or thing), and remove it from the
facility, if this is reasonably necessary for the purposes of inspecting, examining etc
that plant, substance or thing.
Subclause (2) lists the persons whom the OHS inspector must notify in writing of any
exercise of this power.
Subclauses (3), (4) and (5) set out the arrangements that must apply, after possession
has been taken of the plant or substance or a sample has been taken. These
arrangements relate to displaying the notice, returning the item to the workplace and
notifying persons such as the operator of the facility of the results.
Equivalent provision in the PSL Act: Schedule 7, clause 33
Schedule 3 clause 76 - Power to direct that workplace etc not be disturbed
This clause establishes the powers of OHS inspectors to direct that workplaces, plant,
substances or things not be disturbed.
Subclause (1) establishes that an OHS inspector, to remove an immediate threat to
health and safety, or to allow an inspection, examination etc of the facility, plant,
substance or thing may, by written notice given to the operator's representative at a
facility, direct that a particular workplace, particular plant, particular substance or
particular thing must not be disturbed for a specified period. Subclause (7)
establishes that the notice must be accompanied by a statement setting out the reasons
for issuing the direction.
Subclause (2) establishes that the specified period must be the period that the OHS
inspector has reasonable grounds to believe is necessary in the circumstances,
although subclause (3) establishes that the written direction may be renewed by
another direction in the same terms.
Subclause (4) establishes that, when given such a notice, the operator's representative
must cause it to be displayed in a prominent place at the relevant workplace or where
the plant, substance or thing is located.
Subclause (5) establishes that the OHS inspector must as soon as practicable after
giving the written direction, take reasonable steps to notify the persons listed in
paragraphs (a) and (b) of the existence of the direction and the reasons for giving it.
Subclause (6) then establishes that it is an offence if a person is subject to a
requirement under this clause, and the breaches the requirement. The associated
257
maximum penalty is 250 penalty units. At the time of introduction of this Bill, a
penalty unit was equivalent to $110.
The offence provision in subclause (6) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: Schedule 7, clause 34
Schedule 3 clause 77 - Power to issue prohibition notices
This clause establishes the powers of OHS inspectors to prohibit a specified activity
or to prohibit a specified manner of performing a specified activity, if there appears to
be an immediate threat to health and safety.
In these circumstances, subclause (1) establishes that an OHS inspector may issue a
written prohibition notice to the operator of a facility.
Subclauses (2), (10) and (11) establish to whom the prohibition notice and copies of it
must be given and where the notice must be displayed.
Subclauses (3) and (4) establish the breadth of the prohibition that the notice may set
out, for example that the activity is not to be engaged in, or performed in a specified
manner. Subclause (9) clarifies that the prohibition notice may specify particular
action that may be taken in order to satisfy an OHS inspector that adequate action has
been taken to remove the threat.
Subclause (6) establishes that the OHS inspector must immediately inform the
operator if not satisfied that action taken by the operator is adequate to remove the
threat, whilst subclause (8) clarifies that the OHS inspector may exercise any of the
powers of an OHS inspector in making this decision.
Subclause (7) establishes that a prohibition notice ceases to have effect when an OHS
inspector notifies the operator that the operator has taken adequate action. This may
be a different OHS inspector from the one who initially issued the prohibition notice.
Subclause (5) establishes that it is an offence if a person is subject to a requirement
under this clause, and the person breaches the requirement. The associated maximum
penalty is 250 penalty units. At the time of introduction of this Bill, a penalty unit was
equivalent to $110.
The offence provision in subclause (5) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: Schedule 7, clause 35
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Schedule 3 clause 78 - Power to issue improvement notices
This clause establishes the powers of OHS inspectors to require improvements in
compliance with the listed OHS laws.
Subclause (1) establishes that an OHS inspector may issue a written improvement
notice to a person, if the OHS inspector believes on reasonable grounds that the
person is contravening a listed OHS law, or has contravened a listed OHS law and is
likely to contravene again.
Subclauses (2), (3), (10) and (11) establish to whom the improvement notice and
copies of it must be given and where the notice must be displayed.
Subclauses (4) and (5) establish that the notice must specify the contravention that the
OHS inspector believes is occurring or is likely to occur, the reasons for that belief
and a reasonable period within which the person responsible is to take action to
prevent any further or likely contravention. Subclause (7) sets out the conditions
under which the OHS inspector may extend the period.
Subclauses (6) and (8) provide that the improvement notice may specify particular
action that the responsible person is to take during the period specified in the notice,
and that the responsible person must ensure that the notice is complied with to the
extent that the person is in control over what is done.
Subclause (9) establishes that it is an offence if a person is subject to a requirement
under subclause (8), and the person breaches the requirement. The associated
maximum penalty is 100 penalty units. At the time of introduction of this Bill, a
penalty unit was equivalent to $110.
The offence provision in subclause (9) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: Schedule 7, clause 36
Policy change: extension of the provisions to relate to all listed OHS laws.
Schedule 3 clause 79 - Notices not to be tampered with or removed
This clause establishes that it is an offence to tamper with a notice that has been
displayed under the other relevant provisions of this Schedule.
Subclause (1) establishes that no person must tamper with any notice displayed
because possession has been taken of any plant, substance or thing, or because a
workplace must not be disturbed, or with any displayed prohibition notice or
improvement notice.
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Subclauses (2) and (3) establish when notices may be removed.
Subclause (4) establishes that it is an offence if a person is subject to a requirement
under subclauses (1), (2) or (3) and the person breaches the requirement. The
associated maximum penalty is 50 penalty units. At the time of introduction of this
Bill, a penalty unit was equivalent to $110.
Subclause (5) provides a defence of reasonable excuse, whilst subclause (6)
establishes that the offence is one of strict liability. This means the prosecution does
not have to prove intention. The offence created by the statutory obligation in this
clause could be difficult to establish if the prosecution were required to prove
intention with respect to an omission to do the things required. Accordingly, an
obligation of this type is usually imposed by the legislature with the intention that
strict liability should apply. Further details about strict liability are set out in the note
under clause 307.
Equivalent provision in the PSL Act: Schedule 7, clause 39
Technical change: inclusion of "substance" in subclause (2)
DIVISION 4 - REPORTS ON INSPECTIONS
Schedule 3 clause 80 - Reports on inspections
This clause makes provisions related to reports on inspections.
Subclause (1) establishes that an OHS inspector must prepare a written report related
to any inspection he or she has conducted, and give that report to the Safety
Authority.
Subclause (2) establishes such a report must include the information set out in
paragraphs (a) to (c), namely the OHS inspector's conclusions from the inspection
and reasons for those conclusions), any recommendations arising, and any such other
matters as are prescribed.
Subclause (3) establishes that the Safety Authority must, as soon as practicable after
receiving any such report, give a copy of it to the persons listed in paragraphs (a) to
(c), namely the operator of the facility, any employer whose employees' activities are
a subject of the report, and any owner of plant, substances etc that are a subject of the
report.
Subclause (4) establishes that the Safety Authority may make a binding request of any
of the persons to whom it has given the report under subclause (3) to provide details
of the actions proposed in respect of the conclusions and recommendations of the
report, and the actions proposed in respect of any notices that were issued during the
inspection.
Subclause (5) indicates the persons to whom the operator of a facility, on being given
a report under subclause (3), must provide a copy of the report.
Equivalent provision in the PSL Act: Schedule 7, clause 40
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DIVISION 5 - APPEALS
Schedule 3 clause 81 - Appeals against decisions of OHS inspectors
This clause makes provisions for appeals against decisions of OHS inspectors.
Subclauses (1) and (2) set out the OHS inspector decisions in respect of which an
appeal may be made to the Australian Industrial Relations Commission, and who has
standing to make it.
Subclause (3) establishes that the making of an appeal does not in itself affect the
operation of the decision, and does not affect the taking of any action to implement
the decision, except as provided for by this clause.
Generally, the OHS inspector's decision is only actually affected if the reviewing
authority, ie the Australian Industrial Relations Commission, makes an order that is
contrary to the decision. However, in addition, subclause (4) provides that an appeal
against an improvement notice suspends the corresponding decision of the OHS
inspector pending determination of the appeal, unless the reviewing authority makes
an order to the contrary. Similarly, subclause (5) provides that an appeal against a
decision to confirm or vary a provisional improvement notice suspends the decision of
the OHS inspector pending determination of the appeal, unless the reviewing
authority makes an order to the contrary.
Subclause (6) establishes that the reviewing authority may affirm or revoke the
decision that has been appealed against, and may substitute another decision if it
revokes an OHS inspector's decision. Subclause (7) provides that a varied, revoked
or substituted decision is taken to have effect, and always to have had effect.
Subclause (8) establishes the arrangement that must apply if a decision to take
possession of plant, substance or thing is not affirmed.
Equivalent provision in the PSL Act: Schedule 7, clause 38
Part 5 - General provisions
Schedule 3 clause 82 - Notifying and reporting accidents and dangerous occurrences
This clause relates to the notification and reporting of accidents and incidents.
Subclause (1) establishes that operators must notify the Safety Authority in the event
that there is an accident or dangerous occurrence at or near the facility. The subclause
in effect defines "accident" to mean an event that causes death or serious injury to any
person or that causes a member of the workforce to be incapacitated from performing
work for the period that is prescribed in the regulations.
Subclause (2) provides that regulations may prescribe, for the purposes of subclause
(1), the time by which notifications must be provided, the manner in which
notifications are to be provided, and the form of such notifications.
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Subclause (3) establishes that subclause (2) does not limit the nature of the regulations
that may be made for the purpose of subclause (1). For example, "dangerous
occurrence" is defined in the regulations.
Subclause (4), a new provision, sets out a maximum penalty of 250 penalty units for
omission to give notification as required under subclause (1) and subclause (5) and
provides that the offence is one of strict liability.
Subclauses (6), (7) and (8) set out similar provisions to the above about giving the
Safety Authority a report about accidents and dangerous occurrences. This is in
addition to the duty of notifying the Safety Authority about incidents as set out in
subclauses (1), (2) and (3).
Subclause (9), another new provision, sets out a maximum penalty of 100 penalty
units for omission to give a report as required under subclause (6). The lower penalty
in this subclause compared with that in subclause (4) reflects criminal law principles
and the fact that reporting is a subordinate step to notification. Subclause (10)
provides that the offence is one of strict liability. Further details about strict liability
are set out in the note about clause 307.
Equivalent provision in the PSL Act: Schedule 7, clause 41
Policy changes: the imposition of penalties of a maximum 250 and 100 penalty units
respectively, for failure to notify or give a report about accidents and dangerous
occurrences, with strict liability to apply in each case
Schedule 3 clause 83 - Records of accidents and dangerous occurrences to be kept
This clause makes provisions for making regulations about the keeping of records
related to accidents and dangerous occurrences that must be notified under clause 82.
The nature of the contents of the records, and the period for which they must be kept
may be prescribed in the regulations, but subclause (3) provides that this is not an
exhaustive itemisation of what the regulations may cover.
As a new provision, this clause sets out a maximum penalty of 30 penalty units for
omission to maintain records as required under subclause (1) and subclause (5)
provides that the offence is one of strict liability. Further details about strict liability
are set out in the note about clause 307.
Equivalent provision in the PSL Act: Schedule 7, clause 42
Policy change: the imposition of a penalty of a maximum 30 penalty units for failure
to maintain records about accidents and dangerous occurrences, with strict liability
Schedule 3 clause 84 - Codes of practice
This clause makes provisions related to "codes of practice" that may be prescribed in
regulations.
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Subclause (1) establishes that the regulations may prescribe codes of practice for the
purpose of providing practical guidance to operators and employers. Subclause (2)
establishes that no person is liable to any civil or criminal proceedings for failing to
comply with a code of practice.
Equivalent provision in the PSL Act: Schedule 7, clause 43
Schedule 3 clause 85 - Use of codes of practice in criminal proceedings
This clause establishes how codes of practice may be used in proceedings where there
is an alleged breach of a listed OHS law.
Subclause (1) establishes that this clause applies only if there are proceedings where it
is alleged that a person contravened a listed OHS law and there was a code of practice
in effect at the time of the alleged contravention.
Subclause (2) establishes that the code of practice is admissible as evidence in those
proceedings. A code of practice might be used to indicate "accepted good practice",
or something that is "reasonably practicable", for example.
Subclause (3) links prescribed codes of practice to matters that a prosecution must
prove in order to establish a contravention of a listed OHS law. If a provision of a
code of practice is relevant to the matter that must be proved, and the person being
prosecuted failed at any material time to comply with that provision of the code, then
the matter is treated as proved unless the court is satisfied that the person complied
with the law by other means. In effect, this means that compliance with a code of
practice is deemed to be compliance with the relevant provisions of the listed OHS
laws, but that it is a defence to demonstrate that compliance with the law has been
achieved by alternative means.
Equivalent provision in the PSL Act: Schedule 7, clause 44
Technical change: omission of "alleged" from "alleged contravention" that occurs in
the equivalent of subclause (3)
Policy change: extension of subclauses (1) and (3) to all listed OHS laws.
Schedule 3 clause 86 - Interference etc with equipment etc
This clause establishes that it is offence to interfere with equipment that is provided
for the purpose of health, safety or welfare.
Subclause (1) establishes that a person is guilty of an offence if the person interferes
with or renders ineffective any protective equipment or safety device that was
provided for the purpose of securing the health, safety or welfare of members of the
workforce at a facility, if the person knew or ought reasonably to have known that it
was protective equipment or a safety device. The maximum penalty is set at 6 months
imprisonment.
Subclause (2) establishes that there is no offence if the person has a reasonable
excuse.
263
The notes draw attention to relevant aspects of the Criminal Code.
Equivalent provision in the PSL Act: Schedule 7, clause 45
Schedule 3 clause 87 - Members of workforce not to be levied
This clause ensures that members of the workforce cannot be levied by the operator,
or by their employer, in relation to matters of health and safety. If an operator or an
employer levies a member of the workforce "in relation to anything done or provided
in accordance with a listed OHS law..." then the operator or employer commits an
offence. The maximum penalty is 250 penalty units. At the time of introduction of
this Bill, a penalty unit was equivalent to $110.
The offence provision in this clause does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
Equivalent provision in the PSL Act: Schedule 7, clause 46
Policy change: extension to all listed OHS laws
Schedule 3 clause 88 - Employer not to dismiss etc employees on certain grounds
This clause gives protection to members of the workforce in relation to action that
they may take in relation to health and safety.
Subclause (1), paragraphs (a) to (d) list the actions that an employer (including an
operator who is an employer) cannot take in the circumstances set out in paragraphs
(e) to (g).
The relevant circumstances are that an employee has complained or proposes to
complain about a matter concerning health safety and welfare at work, has assisted or
proposes to assist the conduct of an inspection, or has ceased or proposes to cease
work in accordance with a valid direction by a health and safety representative under
clause 44. In such circumstances, an employer may not dismiss an employee, do
anything to injure the employee in his or her employment, or do anything to
prejudicially alter the person's employment, or threaten to do any of these things.
Subclause (2) establishes that such action by an employer is an offence. The
maximum penalty is 250 penalty units. At the time of introduction of this Bill, a
penalty unit was equivalent to $110.
The offence provision in subclause (2) does not specify a fault element. Under section
5.6 of the Criminal Code, if an offence provision does not specify a fault element and
if the physical element of the offence consists only of conduct, the fault element is
intention. In other words, for a person to be found guilty of contravening this clause,
the prosecution would have to prove intention.
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Subclause (3) establishes that the onus of proof lies with the defendant, in respect of
the reasons of actions taken by the defendant. That is, if all other facts and
circumstances have been proven, the defendant is guilty of the offence unless the
defendant can prove that he or she dismissed etc the employee for reasons other than
those set out in paragraphs (e) to (g).
Equivalent provision in the PSL Act: Schedule 7, clause 48
Schedule 3 clause 89 - Institution of prosecutions
This clause makes provisions related to the institution of prosecutions.
Subclause (1) provides that proceedings for an offence against any listed OHS law
may be instituted by either the Safety Authority or by an OHS inspector.
Subclause (2) establishes that a health and safety representative may request the
Safety Authority to institute proceedings if a period of 6 months has elapsed since an
act occurred that the HSR considers constitutes an offence against a listed OHS law,
and for which proceedings have not yet been instituted. Subclause (3) establishes that
a workforce representative may request the Safety Authority to institute proceedings
in the same circumstances, if the workforce representative is requested to do so by a
member of the workforce. Subclause (4) establishes that such requests must be in
writing.
Subclause (5) establishes that, if a health and safety representative or workforce
representative has made a request under subclause (2) or (3), then the Safety
Authority must advise that person within 3 months whether the proceedings have been
or will be instituted. If proceedings are not to be instituted, then the Safety Authority
must state the reasons.
Equivalent provision in the PSL Act: Schedule 7, clause 49
Policy change: the extension to the listed OHS laws
Schedule 3 clause 90 - Conduct of directors, employees and agents
This clause establishes certain matters in relation to the alleged offences against listed
OHS laws, and to related prosecutions and sentencing.
Subclause (1) establishes that this clause has effect only for the purposes of
proceedings for an offence against a listed OHS law.
Subclause (2) provides that, in order to establish the "state of mind" of a body
corporate in relation to particular conduct - for example, whether the conduct was
wilful - it is sufficient to show that the state of mind was held by the director,
employee or agent who engaged in the conduct while that person was acting within
the authority given to him or her by the body corporate.
Subclause (3) provides that a body corporate is taken to have engaged in conduct,
where a director, employee or agent engaged in that conduct while that person was
acting within the authority given to him or her by the body corporate, unless the body
265
corporate can establish that it took reasonable precautions and exercised due diligence
to avoid that conduct by the director, employee or agent.
Subclause (4) makes equivalent provisions to subclause (2), but for an individual. It
provides that, in order to establish the "state of mind" of an individual in relation to
particular conduct it is sufficient to show that the state of mind was held by an
employee or agent who engaged in the conduct while that person was acting within
the authority given to them by the individual.
Subclause (5) makes equivalent provisions to subclause (3), but for an individual. It
provides that an individual is taken to have engaged in conduct, where an employee or
agent engaged in that conduct while that person was acting within the scope of
authority given to him or her by the individual, unless the individual can establish that
he or she took reasonable precautions and exercised due diligence to avoid that
conduct.
Subclause (6) limits the penalty that may apply where an individual is convicted of an
offence in circumstances where he or she would not have been convicted if subclauses
(4) and (5) had not been activated. A penalty of imprisonment cannot be applied in
such circumstances.
Subclause (7) clarifies that "state of mind" includes a person's knowledge, intention,
opinion, belief or purpose and the person's reasons for that intention, opinion, belief
or purpose.
Subclause (8) establishes that Part 2.5 of the Criminal Code does not apply to an
offence against a listed OHS law. That Part relates to corporate criminal
responsibility.
Equivalent provision in the PSL Act: Schedule 7, clause 50
Policy change: the extension to a listed OHS law
Schedule 3 clause 91 - Schedule not to give rise to other liabilities etc
This clause provides that this Schedule does not confer any right on a person to take
action in any civil proceedings in respect of any alleged contravention of a listed OHS
law. It also provides that it does not confer a defence (or otherwise affect any right)
in any civil proceedings.
Equivalent provision in the PSL Act: Schedule 7, clause 51
Policy change: extension of this provision to a listed OHS law
Schedule 3 clause 92 - Circumstances preventing compliance may be defence to
prosecution
This clause establishes that it is a defence to a prosecution for failing or refusing to do
something that is required by a listed OHS law, if the defendant proves that it was not
practicable to do those things because of a prevailing emergency.
266
Equivalent provision in the PSL Act: Schedule 7, clause 52
Policy changes: deletion of a reference to "this Act" and the extension to a listed OHS
law
Schedule 3 clause 93 - Regulations - general
This clause establishes that regulations may be made that prescribe:
procedures for the selection of persons as members of health and safety
committees;
procedures to be followed at meetings of health and safety committees;
the manner in which notices are to be served under this Schedule or the
regulations; and
forms for the purpose of this Schedule or the regulations.
However, subclause (2) clarifies that the above is not an exhaustive list of the matters
about which regulations may be made.
Subclause (3) establishes that regulations may be made that declare that this Schedule,
or a provision of this Schedule, does not apply to a particular person, or does not
apply to that person in particular circumstances. Such exemptions are not the same as
those provided for by clause 46. The exemptions allowed by this subclause relate
only to cases where the Minister is satisfied that this Schedule or a provision of this
Schedule will prevent the proper exercise of a power, function or duty that has been
imposed upon a person under a Commonwealth, State or Territory law.
Subclause (4) establishes that regulations made for subclause (3) may not remain in
force for more than 5 years, although further regulations may be made to the same
effect. Subclause (5) clarifies that reference to "this Schedule" in subclause (3)
include regulations made for the purposes of this Schedule.
Equivalent provision in the PSL Act: Schedule 7, clause 52
Policy change: that the pre-requisite to making regulations to grant an exemption will
be only the fact of the Minister being satisfied about the matters set out in subclause
(3), not a requirement that the Governor-General form any opinion about these
matters
Schedule 4--Production licences to which the Royalty Act applies
Part 1--Introduction
Schedule 4 clause 1 - Definitions
This clause includes a number of definitions which basically have relevance only for
this Schedule and the proposed Royalty Act and for which equivalents exist in
subsection 5(1) of the Petroleum (Submerged Lands) Act. As a transitional provision,
the definitions of "primary production licence" and "secondary production licence"
ascribe standing to the equivalent instruments under the Petroleum (Submerged
Lands) Act, which is assumed to be repealed.
267
Equivalent provisions in PSL Act: subsection 5(1).
Part 2--Applying for a production licence
Schedule 4 clause 2 - Application for production licence by holder of exploration
permit to which the Royalty Act applies
This clause sets out the potentially two-stage process by which a permittee in the
North West Shelf Royalty Act area may apply for production licences over all or
some of any location blocks in the permit area.
The provisions of this clause are based on what applied in the whole Commonwealth
marine jurisdiction in the early days of existence of the Petroleum (Submerged Lands)
Act. When the original Act was formulated, taking account of international
comparisons, a decision was taken against adopting a totally flat royalty rate structure.
At that time, certain provisions related to declaring locations, provisions since then
revoked, were germane to the two-stage arrangement for acquiring production
licences.
Nowadays, the two-stage arrangement for acquiring production licences in the
Royalty Act area can be supported on the basis of two principles. One is that a
production licensee producing from a small field can justifiably be subject to a
somewhat lower royalty rate than a licensee producing from a relatively larger field.
The other principle is that even a licensee who ends up producing from a larger field
can justifiably be subject to a lower royalty rate in the early stages of the production
project.
Accordingly, this clause sets out the procedure of first applying for a primary
production licence in respect of a certain subset of the location blocks and then
possibly applying for a secondary production licence in respect of some or all of the
remainder. The royalty payable on petroleum recovered under a primary production
licence is 10% of the wellhead value of the product. If a secondary production licence
is taken out, the rate is higher, currently set at 12�%, and applies to every block that
was in the location, including those covered by the primary production licence.
Other details about the application procedure are as set out in Division 2 of Part 2.4
and in Part 2.10 of the Bill.
Equivalent provision in PSL Act: subsections 40(1A), (1), (2) and (3)
Policy change: that only one primary production licence may be applied for out of a
location, meaning that, if, in the first instance, the licence does not cover the whole
primary entitlement, the licensee can gain production rights over the remainder of the
blocks in the primary entitlement only through one or more variations of the primary
production licence, not through applying for another primary production licence
Schedule 4 clause 3 - Application period
This clause sets out the timeframe for making a production licence application under
Schedule 4. The timeframe is identical to what applies under clause 143. This means
268
that, if, by the end of the specified period, the permittee has applied only for a primary
production licence, that is the only licence that the permittee will be able to obtain. To
gain a secondary production licence, both the primary and the secondary licence will
have to be sought by the end of the application period.
Equivalent provision in PSL Act: subsections 40(4) and (5)
Schedule 4 clause 4 - Application for production licence by holder of retention lease
to which the Royalty Act applies
This clause sets out the potentially two-stage process by which a lessee in the North
West Shelf Royalty Act area may apply for production licences over all or some of
any blocks making up the lease area.
The process is identical to that applying to the holder of a permit to which the Royalty
Act applies except that all blocks in the retention lease area qualify (whereas, with a
permit, only blocks covered by a location qualify) and there is no fixed application
period. However, the expiry date of the lease may impact on the timeframe within
which the lessee would need to apply for a primary production licence, and/or
variation of it, and for a secondary production licence. This is because the
commerciality test in subclause 130(2) means the lease will not necessarily be
renewed.
Equivalent provisions in PSL Act: section 40B and paragraph 41(1)(c)
Policy change: establishing as a clear provision that no more than one primary
production licence may be granted in respect of a lease in the royalty area and that the
primary production licence, if it initially covers less blocks than the primary
entitlement, may be varied the required number of times until the primary entitlement
is reached
Part 3--Obtaining a production licence
Schedule 4 clause 5 - Secondary production licence--offer document must specify
rate of royalty
This clause refers to the fact that, where a secondary production licence is involved,
subclause 6(2) of the proposed Royalty Act allows the determined royalty rate in
respect of both the primary and secondary production licences to be anything from
11% to 12�% (inclusive) of the wellhead value of petroleum produced. The exact rate
is to be determined by the Joint Authority.
Equivalent provision in PSL Act: paragraph 43(2)(b)
Schedule 4 clause 6 - Limit on grant of secondary production licence
This clause provides that if, for example, a company has been granted a primary
production licence over a number of blocks that is one less than that company's
primary entitlement, that company cannot, as the next step, apply to extend its licence
over 2 more blocks. To achieve an overall 2 block increase to its total production
tenement, the company would have to first apply for a variation to the primary
269
production licence, adding to it one block, and thereafter apply for a one block
secondary production licence.
Equivalent provision in PSL Act: subsection 44(3)
Part 4--Variation of licence area
Schedule 4 clause 7 - Variation of licence area of production licence
This clause sets out provisions for adding further blocks from a permit area or lease
area to the relevant permittee's or lessee's newly acquired licence area, as long as all
blocks come from the same location and do not bring the number of blocks covered
by the licence above the primary entitlement.
The variation application(s) in respect of a licence acquired by a permittee must be
submitted during the application period provided for under clause 3.
There is no set application period in the case of a lessee, but the imminent expiry of a
lease will, in many cases, force the lessee to apply for a variation and, possibly, a
secondary licence, or else abandon the remaining blocks. This is because, if there is
already a primary production licence and a retention lease renewal is sought, those
remaining blocks are likely to be judged commercially viable and therefore precluded
from remaining under a lease. They could be deemed currently commercially unviable
only if the lessee establishes that the petroleum resource in those blocks constitutes a
discrete pool, despite previous findings to the contrary.
Subclause (4) refers to the possibility that, under Chapter 2, the blocks could be
surrendered from the licence area or be the subject of a cancellation applying to those
blocks but not to all the blocks constituting the licence area. In these cases, these
blocks would not be, for the remainder of the term of the licence, blocks in respect of
which the licence would be in force.
Equivalent provision in PSL Act: section 45 and subsection 95(4)
Part 5--What happens if a block is not taken up
Schedule 4 clause 8 - Revocation of exploration permit or retention lease to the extent
to which it relates to a block not taken up
This clause sets out provisions by which an exploration permit or retention lease
could be revoked in respect of particular blocks by force of the proposed Act, and this
could occur before or after the set expiry date of the permit or lease. These provisions
are similar to what apply under clause 160, with a point of difference under subclause
(4) in relation to applications for a secondary production licence.
The moment a secondary production licence is applied for, if the application
encompasses only one or some, but not all, of the blocks forming the secondary
entitlement, the permit or lease is revoked in its application to all the other blocks
forming the secondary entitlement. The permittee or lessee is then deemed to have
forgone any further rights to explore or develop those blocks and it may be considered
appropriate to give some other party the opportunity to do work in those blocks.
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Equivalent provision in PSL Act: subsections 46(1), (1B) and (2)
Schedule 5--Release of technical information given to the Designated
Authority before 7 March 2000
This Schedule is a rewritten version of section 118 of the Petroleum (Submerged
Lands) Act to the extent to which it is still in force. The background is explained
under clause 431. Like the Petroleum (Submerged Lands) (Data Management)
Regulations 2004, the rules about disclosure in this Schedule are intended to protect,
as appropriate, intellectual property acquired by petroleum explorers and seismic
survey companies.
The provisions that are currently contained in the 21 subsections of section 118 have
been reformatted in this Schedule into 8 discrete clauses, with the additional Schedule
5 clauses 1 and 10 respectively giving an outline of the Schedule and clarifying the
status of section 118 in the transitional provisions of Schedule 6. This reformatting
has involved removing, from the last published version of section 118, all references
to cores, cuttings and samples, to which the section no longer applies.
Changes in wording that have been adopted elsewhere in the Bill have also been
adopted into this Schedule. For example, the term "determined" that appears in the
Petroleum (Submerged Lands) Act has been superseded by "revoked" in this Bill,
including this Schedule. Additionally, there is the correction of an oversight whereby
section 118 has left a Northern Territory Minister (ie a Minister other than the
Designated Authority for the Northern Territory) precluded from access to
information in an applicable document, whereas State Ministers do have that access.
The table under Schedule 5 subclause 7(2) sets out the rules governing the date on
which basic information held by a Designated Authority or the Commonwealth
Minister may be released. Items 1 and 2 of the table refer to information submitted by
the holder of a special prospecting authority or an access authority.
A policy change is proposed in item 3 of the table. If the holder of an exploration
permit, retention lease or production licence has submitted basic information to the
Designated Authority during the period of effect of the title and the title is then
surrendered, cancelled or revoked, paragraph 118(4)(c) has provided that the
information may be publicly released at any time from the date of surrender,
cancellation or revocation. However, an oversight occurred in 1998 when
amendments were made to the Petroleum (Submerged Lands) Act providing for
certain classes of production licences to be terminated after 5 years of non-production.
At that time, section 118 should have been amended to acknowledge the possibility
that a production licence could also come to an end by this means and specifying a
provision about the availability of information after that termination. Item 3 of the
table now does so, but only prospectively. There is no need to consider a retrospective
amendment as, between 1998 and the date of introduction of this Bill, there have been
no terminations of production licences.
A second policy change is proposed under Schedule 5 subclause 9(8). Currently,
subsection 118(5G) provides that a person who has made an objection to the
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Designated Authority and who is dissatisfied with the decision on the objection may,
by notice in writing given to the Commonwealth Minister not later than 28 days after
the service of the Designated Authority's notice, request the Commonwealth Minister
to review the decision. To match the changes elsewhere in the Bill, the period of 28
days is proposed to be converted to 30 days.
The transitional Schedule 5 clause 10 refers to the fact that, despite its repeal in 2000,
the partial effect of section 118 has been maintained by item 142 of Schedule 1 to the
Petroleum (Submerged Lands) Legislation Amendment Act (No. 1) 2000. This clause
brings that effect to an end (as this Schedule substitutes for it) but gives the provisions
of section 118 that have been so kept alive the same status in terms of the transitional
provisions in Schedule 6 as any other provision in the Petroleum (Submerged Lands)
Act.
Equivalent provisions in the PSL Act: subsections 118(1), (1A), (1B), (2), (4), (5),
(5A), (5B), (5C), (5D), (5E), (5F), (5G), (5H), (5J), (5K), (5L), (6), (6A), (8), and (9)
Policy changes: that a Minister of the Northern Territory (as well as a Minister of a
State) may be given information contained in an applicable document; that
immediately after the termination of a production licence, basic data submitted by the
ex-licensee is releasable to the public; conversion of "28 days" to "30 days"
Schedule 6--Transitional provisions
Part 1--Basic provisions
Schedule 6 clause 1 - Definitions
This clause sets out definitions of three terms that are used in this Schedule.
The term "corresponding provision" is a device used in this Schedule to avoid specifying
references to a large number of sections and subsections in the Petroleum (Submerged Lands)
Act and the equivalent clauses and subclauses of this Bill. Provisions in the Petroleum
(Submerged Lands) Act generally have a corresponding provision in this Bill. If a particular
provision does not, then either it has been determined that there is no need for a transitional
provision in relation to it or a specific one is included, in this Schedule or elsewhere in the Act.
For example, as explained in the explanatory note under clause 6, there is no corresponding
provision of the Barracouta and Marlin Fields production and pipeline licences. However, to
cover the special case of the Barrow Island production licence, a production licence is defined,
under clause 6, to include a licence granted under section 148 of the Petroleum (Submerged
Lands) Act.
As an example of corresponding provisions, a notice given under section 107 of the Petroleum
(Submerged Lands) Act sometime before the repeal of that Act to a titleholder directing the
removal of property from the title area would be an "eligible instrument" and, under clause 4, it
would be treated like, and have the full force of, a direction given under clause 311 once the
proposed Act had come into effect.
An "eligible instrument" does not include an application as an application is not something that
is "in force" for purposes of clause 4. Instead, the lodging of an application is covered by "an act
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or thing done" under clause 5. On the other hand, an offer of a title is clearly an eligible
instrument.
An "old title" is not to be understood as being an expired or defunct title. An "old title" is in fact
a title that is current at the time when the Petroleum (Submerged Lands) Act is repealed.
However, the title could have been granted under an earlier version of the Petroleum (Submerged
Lands) Act than the one existing immediately before the repeal. For example, both a pipeline
licence granted before 1990 and a pipeline licence granted after 2000 would have been granted
under section 65, yet section 65 had a different wording before 1990 than it had after 2000.
Section 10 of the Acts Interpretation Act is relevant to this issue, ie:
"Where an Act contains a reference to a short title that is or was provided by law for
the citation of another Act as originally enacted, or of another Act as amended, then,
except so far as the contrary intention appears:
(a) the reference shall be construed as a reference to that other Act as originally
enacted and as amended from time to time; and
(b) where that other Act has been repealed and re-enacted, with or without
modifications, the reference shall be construed as including a reference to the re-
enacted Act as originally enacted and as amended from time to time and, where, in
connexion with that reference, particular provisions of the repealed Act are
referred to, being provisions to which provisions of the re-enacted Act correspond,
the reference to those particular provisions shall be construed as including a
reference to those corresponding provisions."
Thus both pipeline licences referred to above, if they were current at the time of
repeal, would equally be "old titles".
Schedule 6 clause 2 - Re-enactment of the Petroleum (Submerged Lands) Act 1967
This clause is based on the fact that this Bill is intended to retain in full effect all petroleum titles
and most petroleum management arrangements existing in Australia's marine jurisdiction at the
date of repeal of the Petroleum (Submerged Lands) Act. This Bill does include a number of
proposed policy changes which are expressly indicated through the text of this memorandum.
Apart from any new rights or responsibilities that may flow from these amendments, there are to
be no changes merely as a result of replacing the Petroleum (Submerged Lands) Act with the
new Act.
One relevant provision is section 15AC of the Acts Interpretation Act, which states:
"Where:
(a) an Act has expressed an idea in a particular form of words; and
(b) a later Act appears to have expressed the same idea in a different form of words
for the purpose of using a clearer style;
the ideas shall not be taken to be different merely because different forms of words
were used."
This clause will also provide a useful means by which other legislation could refer to
this enactment. If other legislation refers to "the Petroleum (Submerged Lands) Act
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1967 or any Act that re-enacts it", that reference will need no change if and when the
proposed new Act comes into effect.
Schedule 6 clause 3 - Old titles continue in force
This clause means that if, for example, an exploration permit is current at the time of
repeal of the Petroleum (Submerged Lands) Act and is to expire twelve months after
that date, then, in the normal course of events, it will remain in effect under the
proposed new Act and expire twelve months later as if there had been no repeal of the
Petroleum (Submerged Lands) Act. However, an extension, or a cancellation before
the expiry date, are possible under the new Act as much as they are under the repealed
one.
Schedule 6 clause 4 - Transitional--eligible instruments
This provision deals with the status of instruments (whether legislative or non-
legislative) made before the new Act commences. This clause means that if, for
example, one month before the date of repeal of the Petroleum (Submerged Lands)
Act, the Joint Authority has given a production licence applicant an instrument telling
the applicant that it is prepared to grant the licence, and the applicant has yet to take
up the offer, then the applicant will have two months left after the repeal of the
Petroleum (Submerged Lands) Act to request the licence, or an extension of this
period, identically with what would have been the case if the Act had not been
repealed. If the 3 month period in question amounted to more than 90 days (because
of the inclusion of one or more 31 day months), that period would not be shortened by
virtue of the new Act coming into effect. Paragraph (e) is to be understood to refer to
6 month periods, which are always longer than 180 days, the equivalent period under
this Bill.
The Legislative Instruments Act 2003 provides that legislative instruments made after
1 January 2005 have to be registered in order to be effective, and any legislative
instruments made before 1 January 2005 that are still in force will need to be
registered by a specified date. It is proposed that, at the time the proposed Act comes
into effect, any legislative instruments that have been made to that date under the
Petroleum (Submerged Lands) Act will have been registered. Accordingly, paragraph
(2)(b) is relevant in the context of the Legislative Instruments Act only in that the
paragraph ensures that a legislative instrument that exists under the Petroleum
(Submerged Lands) Act and has been registered at the time when that Act is repealed
does not need to be re-registered merely because it has become, by virtue of the
transitional provisions, an instrument pursuant to the new Act.
In paragraph (2)(b), the question of possible requirements about the form of words
refers to the proposed Act rather than the Legislative Instruments Act. This means that
if, say, a provision of the Petroleum (Submerged Lands) Act enables an instrument to
be issued bringing about a result described in that Act in a certain way, that
instrument is valid under the new Act even if the equivalent provision in the new Act
describes the same result in different words.
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Schedule 6 clause 5 - Transitional--acts or things done before commencement
This clause means that if, for example, an industry-member has applied for an
exploration permit before the date of repeal of the Petroleum (Submerged Lands) Act
and the Joint Authority has not yet made a decision on whether to grant the permit,
the application will stand as a valid application for purposes of the new Act.
Schedule 6 clause 6 - Transitional--conditions of old titles
This clause means that if, for example, a condition of a title issued under the
Petroleum (Submerged Lands) Act specifies that certain actions are to be carried out
by the titleholder "subject to the requirements of the Act", then, after the repeal of the
Petroleum (Submerged Lands) Act, that condition will continue to apply as if "the
Act" were the new Act.
Schedule 6 clause 7 - Translation of references in documents
This clause sets out a series of provisions for dealing, after the repeal of the Petroleum
(Submerged Lands) Act, with the more unusual or complex issues that may arise in
interpreting the various kinds of documents that have been prepared to serve a
purpose under that Act. Use of this power could be required to ensure the documents
continue to have effect despite the transition to the new Act.
In provisions of this kind, it is standard drafting procedure to include sub-provisions
of the type set out in subclauses (3) and (4). The fact that the declaration is a
legislative instrument in terms of the Legislative Instruments Act 2003 and could be
disallowed by Parliament is intended to ensure accountability. This is important in
view of the fact that a provision that enables the legal effect of a document to be
amended by another document prepared at some later point in time could, in practice,
amount to a power to alter the law.
Subclause (4) ensures there is no risk of infringement of section 55 of the
Constitution. As registration fees are taxes, this provision ensures that the powers of
the Minister cannot be exercised, in respect of registration fees, so as to impose
taxation.
Schedule 6 clause 8 - Transitional regulations
This clause provides a power to make regulations to cover matters of a transitional nature arising
from the repeal of the Petroleum (Submerged Lands) Act and of the incorporated Royalty, Fees
and Registration Fees Acts. This is to cover contingencies not identified or foreseen in drafting
this Bill, the Royalty Bill, the Annual Fees Bill and the Registration Fees Bill.
Subclause (5) ensures there is no risk of infringement of section 55 of the
Constitution. As registration fees are taxes, this provision ensures that the powers of
the Governor-General cannot be exercised, in respect of registration fees, so as to
impose taxation.
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Part 2--Specific provisions
Schedule 6 clause 9 - Joint Authority
This clause means that if, for example, a week before the repeal of the Petroleum
(Submerged Lands) Act, a recorded decision of the Joint Authority is made to approve
the Designated Authority giving a direction of a standing or permanent nature to
titleholders, then that decision will be valid to authorise the Designated Authority to
give such a direction under the new Act if this is not done before the repeal of the
Petroleum (Submerged Lands) Act.
Schedule 6 clause 10 - Joint Authority for an external Territory
This clause means that if, for example, a month before the repeal of the Petroleum
(Submerged Lands) Act, the Designated Authority for an external Territory has given
a production licence applicant an instrument telling the applicant that it is prepared to
grant the licence, and, immediately after the repeal, the applicant has yet to take up
the offer, then the offer stands as if it had been made by the Joint Authority (see note
to clause 38) for that external Territory under the new Act.
Schedule 6 clause 11 - Designated Authority
This clause ensures that, after the date of repeal of the Petroleum (Submerged Lands)
Act, the Designated Authority is able to continue to function seamlessly as the
Designated Authority under the new Act. Thus, for example, if a person, as
Designated Authority, has been considering any matter of relevance under the
Petroleum (Submerged Lands) Act, the same person may continue that consideration
as Designated Authority under the new Act without repeating any step in the process.
Schedule 6 clause 12 - Chief Executive Officer of the National Offshore Petroleum
Safety Authority
This clause ensures that, after the date of repeal of the Petroleum (Submerged Lands)
Act, the Chief Executive Officer of the National Offshore Petroleum Safety Authority
is able to continue to function seamlessly as the Chief Executive Officer under the
new Act.
Schedule 6 clause 13 - Project inspectors
This clause ensures that, after the date of repeal of the Petroleum (Submerged Lands)
Act, an inspector appointed under section 125 of that Act is able to continue to
function seamlessly as a project inspector under the new Act.
Schedule 6 clause 14 - Offshore area
This clause provides a useful means by which other legislation could refer to the
offshore area under the new enactment. If the other legislation refers to the adjacent
area as the area that, under any re-enactment of the Petroleum (Submerged Lands)
Act, corresponds to the adjacent area within the meaning of the Petroleum
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(Submerged Lands), that reference will need no change if and when the proposed new
Act comes into effect.
Schedule 6 clause 15 - Registers
This clause ensures that, after the date of repeal of the Petroleum (Submerged Lands)
Act, the Register under the new Act may continue to be relied upon for all purposes,
including as prima facie evidence in court of matters about which a record was made
in the Register under the Petroleum (Submerged Lands) Act. Certified copies and
extracts and evidentiary certificates made under the Petroleum (Submerged Lands)
Act will likewise continue to be valid after the new Act comes into effect.
Schedule 6 clause 16 - Registration fees - transfer
This clause refers to the contingency that a registration fee payment is made for a
transfer but there is some delay before the Designated Authority makes the relevant
entry in the Register, during which the Petroleum (Submerged Lands) Act is repealed.
This clause allows the payment to be treated as if it had been made under the new Act,
enabling the Designated Authority to make the entry in the Register as normal.
Schedule 6 clause 17 - Registration fees - dealings
This clause refers to the contingency that a registration fee payment is made for a
dealing but there is some delay before the Designated Authority makes the relevant
entry in the Register, during which the Petroleum (Submerged Lands) Act is repealed.
This clause allows the payment to be treated as if it had been made under the new Act,
enabling the Designated Authority to make the entry in the Register as normal.
Schedule 6 clause 18 - Retention and inspection of documents
This clause refers to the fact that, if, for example, a transfer of a title or a dealing is
approved under the Petroleum (Submerged Lands) Act, then a copy of the instrument
of transfer or the instrument evidencing the dealing, endorsed with a memorandum of
approval, must be retained by the Designated Authority and made available for
inspection in accordance with specified provisions. This clause means that all such
instruments must continue to be retained and be made available for inspection under
the new Act.
Schedule 6 clause 19 - Assessment of registration fee
This clause refers to developments that may follow a determination by the Designated
Authority of the amount of fee payable under the proposed Registration Fees Act.
This clause provides, for example, that if a determination is made under the Petroleum
(Submerged Lands) (Registration Fees) Act and the Act is then repealed, the affected
person may appeal against the determination to a court, as set out in subclause 298(3),
as if the determination had been made under the new Registration Fees Act. Paragraph
(b) means that, if, under the current Act, a person involved in the transaction is
convicted of giving the Designated Authority false or misleading information that
affects the amount of registration fee payable, and the Act is then repealed, the
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Designated Authority may make a fresh determination of the fee payable even though
the Act under which the original determination was made is no longer in effect.
Schedule 6 clause 20 - Payments by the Commonwealth to the States and the
Northern Territory
This clause refers to the fact that, under the Petroleum (Submerged Lands) Act, with
minimal exceptions, fees payable by industry-members are to be remitted to the
relevant State or Northern Territory after having been deposited in the
Commonwealth Consolidated Revenue Fund. In the case of Western Australia, the
same applies to a specified portion of the royalty paid under the Petroleum
(Submerged Lands) (Royalty) Act. This clause ensures that the repeal of the
Petroleum (Submerged Lands) Act, the Petroleum (Submerged Lands) (Fees) Act, the
Petroleum (Submerged Lands) (Registration Fees) Act or the Petroleum (Submerged
Lands) (Royalty) Act will not in any way interfere with, or create double-counting in,
the flow back to the States or Northern Territory of moneys collected immediately
before that repeal.
Schedule 6 clause 21 - Adjustment to period required or allowed for doing an act or
thing etc
This clause refers to the fact that this Bill proposes to convert specified timeframes
from months, as they appear in the Petroleum (Submerged Lands) Act, to days
according to the formula that one month equals 30 days. If, before the repeal of the
Petroleum (Submerged Lands) Act, a process begins which has a specified timeframe
attached to it and that period in months happens to be longer than the equivalent
period in 30 day periods (for example a 31 day month), then this clause ensures that
the timeframe will not be truncated by the coming into force of the new Act. Only
processes that begin after the coming into force of the new Act will be subject to the
30 day formula.
Subclause (4) is worded differently from subclauses (1), (2) and (3) because a period
of 6 months is always longer than 180 days.
Schedule 6 clause 22 - Old titles--continuation in force beyond date of expiry
This clause refers to situations such as that of an exploration permittee lodging a
renewal application and the scheduled permit expiry date ending before the Joint
Authority has taken its decision on the application or granted the renewal. In such a
situation, under the Petroleum (Submerged Lands) Act, the permit is continued in
force past that date. This clause ensures that the repeal of the Petroleum (Submerged
Lands) Act at such a time would in no way interfere with the extended effect of the
permit.
Schedule 6 clause 23 - Renewal of exploration permits
This clause refers to the fact that certain renewal rules apply to an exploration permit
that was or is granted as the result of a Gazette notice published on or after 1 January
2003 inviting work bids for specified offshore areas. This clause ensures the same
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rules will apply whether the exploration permit was granted under the Petroleum
(Submerged Lands) Act or will be granted under the new Act.
Secondly, this clause refers to the fact that, under the new Act, the criteria for
approving the renewal of an exploration permit include the applicant's record of
compliance with certain provisions of the proposed Act and the regulations. This
clause ensures that the record of compliance with the equivalent provisions in the
Petroleum (Submerged Lands) Act and regulations during that Act's period of effect
will likewise be taken into account if a permit comes up for renewal after the repeal of
the Petroleum (Submerged Lands) Act.
Schedule 6 clause 24 - Renewal of retention leases
This clause refers to the fact that, under the new Act, the criteria for approving the
renewal of a retention lease include the applicant's record of compliance with certain
provisions of the proposed Act and the regulations. This clause ensures that the record
of compliance with the equivalent provisions in the Petroleum (Submerged Lands)
Act and regulations during that Act's period of effect will likewise be taken into
account if a lease comes up for renewal after the repeal of the Petroleum (Submerged
Lands) Act.
Schedule 6 clause 25 - Grant of production licences over individual blocks
This clause is intended to make clear that production licences granted by splitting an
existing licence under section 51 of the Petroleum (Submerged Lands) Act before its
repeal will remain in force for the remainder of the term of the original licence, or
indefinitely, as the case may require.
Schedule 6 clause 26 - Renewal of fixed-term production licences
This clause refers to the fact that, under the new Act, the criteria for approving the
renewal of a fixed-term production licence include the applicant's record of
compliance with certain provisions of the proposed Act and the regulations. This
clause ensures that the record of compliance with the equivalent provisions in the
Petroleum (Submerged Lands) Act and regulations during that Act's period of effect
will likewise be taken into account if a licence comes up for renewal after the repeal
of the Petroleum (Submerged Lands) Act.
Schedule 6 clause 27 - Grant of pipeline licences
This clause refers to the fact that, under the new Act, the criteria for approving the
grant of a pipeline licence to a production licensee include the applicant's record of
compliance with certain provisions of the proposed Act and the regulations. This
clause ensures that the record of compliance with the equivalent provisions in the
Petroleum (Submerged Lands) Act and regulations during that Act's period of effect
will likewise be taken into account if a production licensee applies for a pipeline
licence after the repeal of the Petroleum (Submerged Lands) Act.
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Schedule 6 clause 28 - Requirement to provide further information in connection with
application for title
This clause refers to the fact that if certain applications, for example for the grant of
an exploration permit, are lodged under the proposed Act, the Designated Authority
may require from the applicant further information in connection with the application.
If the information is not provided, the application could be set aside.
This clause provides that, if, before the repeal of the Petroleum (Submerged Lands)
Act, the Designated Authority has required information from an applicant under an
equivalent provision of that Act, then failure to provide that information will have the
same potential consequences under the new Act as if the requirement had been
imposed under the new Act.
Schedule 6 clause 29 - Revocation of exploration permits, retention leases and
production licences
This clause refers to the fact that various consequences can follow from the
"determination" of a title under the Petroleum (Submerged Lands) Act, referred to as
"revocation" under the proposed Act. For example, in certain circumstances, a special
exploration permit could be granted to someone else over the block(s) in question.
This clause ensures that any consequences that may follow from the whole or partial
determination of a title under the Petroleum (Submerged Lands) Act may be realised
under that Act before its repeal or may be realised under the new Act as if the title had
been revoked under the new Act.
Schedule 6 clause 30 - Surrender of title
This clause refers to the fact that, under the new Act, the criteria for approving the
surrender of a title include the payment of required fees and royalty and the
titleholder's record of compliance with certain provisions of the proposed Act and the
regulations. This clause ensures that the titleholder's payments under the repealed
Fees and Royalty Acts and record of compliance with equivalent provisions in the
Petroleum (Submerged Lands) Act and regulations during that Act's period of effect
will likewise be taken into account if an application to surrender a title is lodged after
the repeal of the Petroleum (Submerged Lands) Act.
Schedule 6 clause 31 - Cancellation of old titles
This clause refers to the criteria under which a title could be cancelled, including
failure to pay required fees and royalty and lack of compliance by the titleholder with
certain provisions of the proposed Act and the regulations. This clause ensures that
any failure by the titleholder to make payments under the repealed Fees and Royalty
Acts or to comply with equivalent provisions in the Petroleum (Submerged Lands)
Act and regulations during that Act's period of effect can and will likewise be taken
into account if a cancellation is considered after the repeal of the Petroleum
(Submerged Lands) Act.
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Schedule 6 clause 32 - Commencement of works or operations
This clause refers to the fact that conditions about works or operations may be
inserted in certain titles. It also refers to the Designated Authority's power in those
cases to allow the permittee, lessee, infrastructure licensee or pipeline licensee to
commence works or operations later than 6 months after the date of effect of the
licence. If an instrument fixing a later date is in force and the Act is then repealed, this
clause brings the instrument to an end but deems an equivalent later date to have been
approved under the new Act.
Schedule 6 clause 33 - Deduction of debts from proceeds of sale of property
This clause refers to the fact that, under the proposed Act, subject to certain
conditions, the Designated Authority may remove and sell property that has been left
abandoned in an offshore area. In that case, the Designated Authority may deduct
from the proceeds any moneys owed by the owner under the new Act or new Royalty
or Annual Fees Act. This clause ensures that any moneys owed by the owner under
the repealed Petroleum (Submerged Lands) Act or Royalty Act or Annual Fees Act
can equally be deducted from the proceeds of a sale of property under the new Act.
Schedule 6 clause 34 - Authorised persons
This clause refers to the Designated Authority's power to appoint "authorised
persons" (in addition to persons who are already designated as such under the
Petroleum (Submerged Lands) Act) to exercise certain enforcement powers relevant
to protecting offshore petroleum facilities. If such an appointment is in force before
the Act is repealed, this clause preserves that appointment under the new Act.
Schedule 6 clause 35 - Release of regulatory information
This clause refers to the fact that the Commonwealth Minister may require the
Designated Authority to make available to him or her copies of any documents
received or issued by the Designated Authority in connection with the new Act. This
clause ensures that any documents received or issued by the Designated Authority in
connection with the Petroleum (Submerged Lands) Act can, after the repeal of that
Act, equally be required to be made available to the Commonwealth Minister under
the new Act.
Schedule 6 clause 36 - Release of technical information--deemed time of receipt of
certain information and samples
Before 4 June 2004, when the Petroleum (Submerged Lands) Amendment Act 2003
came into effect, certain deeming provisions about the dates of submission of data
were in force under the Petroleum (Submerged Lands) Act. These had significance for
determining when data could be released to the public.
The abovementioned Amendment Act changed the provisions so that much of the
detail about the release of technical information was thereafter to go into regulations,
viz the Petroleum (Submerged Lands) (Data Management) Regulations 2004. It was
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expected that these Regulations would set out different provisions about when data
were deemed to have been given to the Designated Authority.
However, the Amendment Act provided that the earlier date deeming provisions
would continue to apply to any data resulting from drilling a well or geophysical or
geochemical field work that was substantially completed before 4 June 2004. This
clause preserves this arrangement under the proposed Act.
Equivalent provisions in the PSL Act: subsections 150(3) and (4)
Policy change: conversion of "one month" to "30 days"
Schedule 6 clause 37 - Liability for acts and omissions
This clause refers to section 140AA of the Petroleum (Submerged Lands) Act, which
provides, in summary, that the Joint Authority, Designated Authority, National
Offshore Petroleum Safety Authority and certain specified office-holders are not
liable to an action, suit or proceeding for or in respect of an act or matter in good faith
done or omitted to be done in the exercise, or purported exercise, of any power or
authority conferred by that Act, the regulations or a direction under the Act.
This clause provides that, after the repeal of the Petroleum (Submerged Lands) Act,
those Authorities and persons will not be subject to any greater level of liability in
respect of their actions under that Act than they were before the repeal.
Schedule 6 clause 38 - Reconsideration and review of decisions
This clause refers to the Commonwealth Minister's power to review certain decisions
and to the possible review of the Commonwealth Minister's decision by the
Administrative Appeals Tribunal. This clause provides that, if a decision under the
Petroleum (Submerged Lands) Act is reviewable in these ways and the Act is repealed
before a review is sought or carried out, that decision will continue to be identically
reviewable under the proposed new Act.
Schedule 6 clause 39 - Meaning of petroleum in the Petroleum (Submerged Lands)
Act 1967
This clause refers to the fact that clause 6 has proposed for "petroleum" a more
precise definition than the one that has appeared in subsection 5(1) of the Petroleum
(Submerged Lands) Act, so that it is quite clear that when "sales" gas, ie processed
gas, is to be conveyed via a pipeline, it is classed as petroleum for purposes of the
pipeline provisions.
This clause ensures that, in the event of a future dispute about the past operation of
the Petroleum (Submerged Lands) Act, courts will not be permitted to infer anything
from the revised definition of "petroleum".
This clause is to come into effect on Royal Assent. This is to ensure that, if this Bill
receives Royal Assent and, before the new Act comes into effect, a court is required
to make a ruling in relation to the Petroleum (Submerged Lands) Act on an issue to
which the definition of "petroleum" is relevant, then the definition of "petroleum" in
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the new Act will not be referred to as extrinsic material within the meaning of section
15AB of the Acts Interpretation Act.
Schedule 6 clause 40 - OHS inspections
This clause complements clause 49 of Schedule 3, which confers powers on OHS
inspectors to conduct inspections for certain specified purposes. These are, in
summary, to ascertain whether the requirements of, or any requirements properly
made under, a listed OHS law are being complied with or to investigate a
contravention or a possible contravention of a listed OHS law or an accident or
dangerous occurrence that has happened at or near a facility. The clause also
empowers the Safety Authority to direct an OHS inspector to conduct an inspection
for any of these purposes.
Schedule 6 clause 40 envisages a situation where, immediately after the new Act
comes into force, there is some reason to suspect non-compliance with, or
contravention of, occupational health and safety requirements under the repealed Act
when it was still in force, or of relevant regulations made under it, or of other
regulations that were prescribed under the repealed section 140H. The clause also
envisages a situation where, during the time when the old legislation was still in force,
an accident or dangerous occurrence happened at or near a facility.
Schedule 6 clause 40 gives an OHS inspector continuing powers under the new
legislation to conduct inspections relevant to these possible contraventions or to
investigate such an accident or dangerous occurrence. Likewise, this clause empowers
the Safety Authority to direct an OHS inspector to conduct an inspection for any of
these purposes.
Schedule 6 clause 41 - OHS prosecutions
This clause complements clause 89 of Schedule 3, which deals with the institution of
prosecutions for an offence against a listed OHS law.
If there is evidence of a contravention of Schedule 7 of the Petroleum (Submerged
Lands) Act, or regulations under that Schedule, that occurred before the repeal of that
Act, clause 41 enables a prosecution for that alleged offence to be instituted by an
OHS inspector or the Safety Authority after that repeal under the new legislation. The
clause also enables a health and safety representative or a workforce representative to
request such a prosecution.
Schedule 6 clause 42 - Disqualification of health and safety representatives
This clause complements clause 32 of Schedule 3, which sets out who may apply to
the Safety Authority for the disqualification of a health and safety representative and
the grounds on which such an application may be made. One of these grounds is that
the health and safety representative, in performing the functions he or she is entitled
to perform under the Act, did so with the intention of causing harm to the operator or
work group employer or to an undertaking of the operator or work group employer or
did so unreasonably, capriciously or not for the purpose for which the power was
conferred on the health and safety representative.
283
The same grounds for disqualification exist under Schedule 7 of the Petroleum
(Submerged Lands) Act. If, before the repeal of that Act, a health and safety
representative conducted himself or herself in a way that gave grounds for
disqualification, clause 42 enables the health and safety representative to be
disqualified on that basis after the repeal under the new legislation.
ANNEX A
Copy of Notice published in Commonwealth Gazette No. 84 - 6th October
1966, page 4984.
DEPARTMENT OF NATIONAL DEVELOPMENT
NATIONAL MAPPING COUNCIL
At the twenty-fourth meeting of the National Mapping Council
held in Melbourne the Council, on the 21st April 1966,
adopted the following datum for Australian Geodetic Surveys:
Designation. - The Australian Geodetic Datum.
Reference Spheroid. - The Australian National Spheroid with
a major (equatorial) radius of 6,378,160 metres and a
flattening of 1/298.25.
Origin - The Johnston Geodetic Station situated in the Northern
Territory at East Longitude 133� 12' 30.0771" and South
Latitude 25� 56' 54.5515" and with a ground level elevation
of 571.2 metres above the Spheroid.
B. P. LAMBERT, Director of National Mapping,
Chairman of National Mapping Council.
284
ANNEX B
CONCORDANCE TABLE
PETROLEUM (SUBMERGED LANDS) ACT 1967 (PSLA) - OFFSHORE PETROLEUM BILL (OPB)
PSLA SECTION HEADING OPB
Part 1 Preliminary
1 Short title 1
2 Commencement 2
5 Interpretation Part 1.2
5(1) 1, 6,
12
5(2) 9
5(3) 9
5(4) 10(1)
5(4A) 10(2)
5(5) 10(3)
5(7) 7(2)
5(8) 11
5A(1) Adjacent Areas 7(1)
5A(1A) 7(1), (3) and (4)
5A(2) Deliberately omitted:
technical change
5A(3) 7(1), (5)
5A(4) 7(3)
5A(5) 7(1), (6)
5A(6) 7(1), (7)
5A(6A) 7(1), (8)
5A(6B) 7(1), (9)
5A(7) 7(2)
5A(8) 7(1), (2)
5A(9) 7(4)
5A(10) Deliberately omitted:
policy change
5A(11) Deliberately omitted:
policy change
5AAA Effect of changes to, or 246
reassessment of the location of, the
baseline of Australia's territorial
sea on permits, leases, licences,
infrastructure licences or pipeline
licences
5AAA(5) 6
5AAB Infrastructure facilities 13
5AA Definitions relating to OH&S Deliberately omitted:
editorial reasons
6 Spaces above & below adjacent 8
areas
285
PSLA SECTION HEADING OPB
6A(1) Petroleum pool extending into two Deliberately omitted:
licence areas covered by Schedule 6
6A(2) 34
6A(3) 35
6A(4) 35
6A(5) 36
6A(6) 36
6A(7) 37
6A(8)(a) 32, 33
6A(8)(b) 36(3)
6A(8)(c) 36(2)
7 Extension to certain Territories 17
8 Application of Act 18
8AA Act to apply subject to 19
international obligations
8AB Application of the Criminal Code 90(8)
Part IA The Joint Authorities Part 1.3
8A Establishment of Joint Authorities 38
8B Acting Ministers 38
8C Functions of Joint Authorities 39
8D(1) Procedure of Joint Authorities 40
8D(2) 41
8D(3) 42
8D(4) 43
8D(5) 44
8D(6) 45
8D(7) 46(1), (2)
8D(8) 46(3)
8F Notification by Designated 47
Authority of decisions by Joint
Authority
8G(1) Certain Territories 38
8G(1)(a) 49
8G(2) Deliberately omitted:
external territory has Joint
Authority
8H Delegation 48
Part II Application of Laws Part 1.4
9(1) Application of laws in areas 58, 59(1)
adjacent to States
9(1A) 69
9(1B) 69
9(2) 63
9(2A) 68
9(2B) 68
9(2C) 68
286
PSLA SECTION HEADING OPB
9(2D) 68
9(2E) 68
9(2F) 68
9(2G) 68
9(2H) 68
9(2I) 68
9(3) 59(7)
9(4) 59(4)
9(5) 59
9(6)(a) 61
9(6)(b) 62
9(6)(c) 64
9(6)(d) 66
9(6)(e) 67
9(7) 70
9(8) 60(1)
9(9) 60(2)
9(10) 60(3)
9(11) 68(6)
9(12) 68(7)
10 Jurisdiction of State Courts 71
11(1) Application of laws in areas 59(1)
adjacent to territories
11(1A) 69
11(1B) 69
11(2) 63
11(2A) 68(1)
11(2B) 68(2)
11(2C) 68(3)
11(2D) 68(4)
11(2E) 68(5)
11(2F) 68(2) and (5)
11(2G) 58
11(2H) 68(6)
11(2I) 68(6)
11(2J) 68(1)
11(2K) 68(4)
11(2L) 68(6)
11(3) 59(7)
11(4) 59(4)
11(5)(a)(b) & (c) 59(5)
11(6)(a) 61
11(6)(b) 62
11(6)(c) 64
11(6)(d) 65
11(6)(e) 66
287
PSLA SECTION HEADING OPB
11(7) 70
11(8) 60
11(9) 60(2)
11(10) 68(1)
11(11) 68(7); 6
11A Disapplication of the Navigation 350
Act 1912 and the Occupational
Health and Safety (Maritime
Industry) Act 1993 in adjacent
areas
11B Disapplication of the Navigation 351
Act 1912 and the Occupational
Health and Safety (Maritime
Industry) Act 1993 in designated
coastal waters in certain
circumstances
12 Jurisdiction of Territory courts 72
13 Parts III & IV not affected by this 74
part
Part III Mining for Petroleum
Division 1 Preliminary Division 2
14 Designated Authorities 50, 51
15(1) Delegation 49, 52
15(2) Deliberately omitted:
provided for under Acts
Interpretation Act
15(3) Deliberately omitted:
provided for under Acts
Interpretation Act
15(4) 49, 52
15(5) Deliberately omitted:
provided for under Acts
Interpretation Act
15(6) 49, 52
17 Graticulation of Earth's surface & 16
constitution of blocks
18 Reservation of blocks 242
Division 2 Exploration permits for petroleum Part 2.2
Division 1
19(1) Exploration for petroleum 77
19(2) 6
20 Advertisement of Blocks 82
21(1)(b) Application for permit 219
21(1)(c) 82(4)
21(1)(d) 82(3)
21(1)(e) 221(2)
21(1)(f) 220(2)
21(2) 82(5), (6) and (7)
21(3) 82(8), (9)
288
PSLA SECTION HEADING OPB
21(4) 222(2)
21A Where 2 or more applications are 84
made in respect of the same block
or blocks
22(1) Grant or refusal of permit in 83
relation to application
22(2) 223(2)
22(3) 224
22(4) 85, 224
22(5) 224(4)
22AA Withdrawal by a joint applicant 86
22AB Withdrawal of application 86
22AC Effect of withdrawal or lapse of 87
application
22A(1) Application for permits by way of 88(1)(a)
cash bidding
22A(2) 88(2)
22A(3) 88(3)
22A(4) 88(4)
22A(5)(a) 88(1)(b)
22A(5)(b) Deliberately omitted:
policy change
22A(5)(c) 219(2)
22A(5)(d) 88(5)
22A(5)(e) 88(6)(a)
22A(5)(f) 88(6)(b)
22A(5)(g) 221(2)
22A(5)(h) 220(2)
22A(6) 222(2)
22B(1) Grant or refusal of permit in 89
relation to application
22B(2) 90, 223
22B(3) 223
22B(4) 224
22B(5) 91, 224
22B(6) 224(4)
22B(6)(a) 224(4)
22B(6)(b) 225(1)
22B(7) 90
22C Permit under section 22B to 92
continue in force in certain cases
23(1) Application for permit in respect of 93
surrendered blocks etc.
23(4)(b) 219(2)
289
PSLA SECTION HEADING OPB
23(4)(c) 93(1)
23(4)(d) 93(2)
23(4)(e) 221(2)
23(5) 222(2)
24 Application fee etc. 93(5), (6) and (7)
24(1)(a) 220(2)
24(1)(b) 93(5)
25(1) Consideration of application 94, 223
25(2) 95, 223
25(5) 223
26(1) Request by applicant for grant of 224
permit in respect of advertised
blocks
26(2) 224, 225
26(2)(b) 225
26(3) 87
27 Grant of permit on request 96
28 Rights conferred by permit 78
29(1) Term of permit 80
29(2) 81
30(1) Application for renewal of permit 97
30(1A)(a) 98
30(1A)(b) 99
30(2) 97
30(2)(b) 219
30(2)(c) 220
30(3) 97
30A Renewal of permit in respect of This section omitted due to
blocks by graticular sections it being outdated text
wholly or partly in Area A of the
Zone of Cooperation
31 Application for renewal of permit 100, 101, 102
to be in respect of reduced area
31A Certain permits cannot be renewed 100
more than twice
32(1) Grant or refusal of renewal of 103, 223
permit
32(2) 104
32(3) 226
32(4) 223
32(5) 224
32(6) 105
32(7) 224
32(8) 97(5)
33 Conditions of permit 79
34 Discovery of petroleum to be 247
notified
36(1) Nomination of blocks as location 107
36(2) 107
290
PSLA SECTION HEADING OPB
36(3) 107(3)
36(4) 107(5)
36(5) 107
36(6) 108
36(7) 108
36(8) 108
36(9) 108(3)
37(1) Declaration of location 109
37(2) 109
37(3) 110
37(4) 111
37(5) 111
37(6) 111
37(7) 109(3), 111(5)
38 Immediately adjoining blocks 107(4)
Division 2A Retention leases for petroleum Part 2.3
38A(1) Application by permittee for lease 117(1)
38A(2) 117(2)
38A(2)(b) 219(2), 210-15
38A(2)(c) 117(2)
38A(2)(d) 221(2)
38A(2)(e) 220
38A(3) 222(2)
38A(4) 117(3)(4)
38B(1) Grant or refusal of lease in relation 223
to application
38B(1)(a) 118(a)
38B(1)(b) 222(2)
38B(1)(c) 118
38B(2)(a) 222
38B(2)(b) 119
38B(2A) 119
38B(3) 223(2)
38B(4) 224
38B(5) 120
38B(6) 224
38B(7) 121
38BA Application of sections 38A and 122
38B where permit is transferred
38BB(1) Application by licensee for lease 123(1)
38BB(2)(a) 219
38BB(2)(b) 219(2)
38BB(2)(c) 123(2)
38BB(2)(d) 221
38BB(2)(e) 220
38BB(3) 222(2)
38BB(4) 123(3)
291
PSLA SECTION HEADING OPB
38BC(1) Grant or refusal of lease in relation 124
to application by licensee
38BC(1)(a) 124(a)
38BC(1)(b) 222(2)
38BC(1)(c) 124
38BC(2)(a) 222
38BC(2)(b) 125
38BC(3) 223(2)
38BC(4) 224
38BC(5) 126
38BC(6) 224
38BC(7) 127
38BD Application of sections 38BB & 128
38BC where licences is transferred
38C Rights conferred by lease 113
38D Term of lease 115
38E(1) Notice of intention to cancel lease 133
38E(2) 134(1)
38E(3) 134(2)(3)
38E(4) 134(4)
38F(1) Application for renewal of lease 129(1)
38F(2)(b) 129(2)
38F(2)(c) 129(4)
38F(2)(d) 220
38F(3) 129(3)
38F(4) 222(2)
38G(1) Grant or refusal of renewal of lease 223
38G(1)(a) 130(1)
38G(1)(b) 222(2)
38G(1)(c) 130(2)
38G(1)(d) 130(2)
38G(1)(e) 130(3)
38G(2)(a) 222
38G(2)(b) 131(3), (4)
38G(2)(c) 131(2)
38G(3) 226
38G(4) 223(2)
38G(5) 131(5)
38G(6) 224
38G(7) 132
38G(8) 224(4)
38G(9) 129(5)
38G(10) 131
38H Conditions of lease 114
38J(1) Discovery of petroleum to be 247
notified
292
PSLA SECTION HEADING OPB
Division 3 Production licences for petroleum Part 2.4 Division 1
39 Recovery of petroleum in adjacent 136
area
39A(1) Application for licence by holder 142(1)
of permit to which Royalty Act
does not apply
39A(2) 142(2)
39A(3) 142(3)
39A(4) 142(4)
39A(5) 143(1), (2)
39A(6) 143(3)
40(1A) Application for licence by holder 2(1)
of permit to which Royalty Act
applies
40(1) 2(2)(3)
40(2) 2(4)(5)
40(3) 2(6), 6
40(4) 143(1)(2),
3(1)(2)
40(5) 143(3), 3(3)
40A Application for licence by holder 144
of lease to which Royalty Act does
not apply
40B Application for licence by holder Schedule 4 - 4
of lease to which Royalty Act
applies
41(1) Application for licence
41(1)(b) 219(2)
41(1)(c) 4(6)
41(1)(d) 221(2)
41(1)(e) 220
41(2) 222(2)
41(3) 222
41(4) 222
41(5) 222(9)
42(1) Determination of rate of royalty Royalty Bill clause 6(2) &
(3)
42(2) Royalty Bill clause 6(4)
43(1) Notification as to grant of licence 145(1)
43(1A) 145(2), 223
43(2) 223
43(2)(a) 223(2)(a)
43(2)(b) 5
43(2)(c) 223(2)(b)
43(3) 146
43(3)(a) 222
43(3)(b) 146
44(1) Grant of licence 224
44(2) 147
293
PSLA SECTION HEADING OPB
44(3) Schedule 4 - 6
44(4) 224(4)
44(5) 148
44A Application of sections 39A & 41 149
to 44 where permit etc transferred
45 Variation of licence area Schedule 4 - 7
46(1) Determination of permit or lease as 160, Schedule 4 - 8
to block not taken up
46(1A) 160(3)
46(1B) Schedule 4 - 8(3)
46(2) Schedule 4 - 8(4)
46(3) 110
46(4) 110
46(5) 110(6)
46(6) 110(7)
47(1) Application for licence in respect 150(1)
of surrendered blocks etc
47(2) 150(2)
47(6) 110(7)
47(6)(b) 219(2)
47(6)(c) 150
47(6)(d) 150
47(6)(f) 221
47(7) 222(2)
48(1)(a) Application fee etc. 220
48(1)(b) 150(4)
48(2) 150(5)
48(3) 150(6)
49(1) Request by applicant for grant of 151, 223
licence
49(2) 152, 223
49(5) 223
49(6) 224
49(7) 224
49(7)(a) 224
49(7)(b) 225
49(8) 152(5)
50 Grant of licence on request 153
51(1) Grant of licences in respect of 154
individual blocks
51(2)(b) 219(2)
51(2)(c) 154(3)(a)
51(2)(d) 154(3)(b)
51(2)(e) 220
51(4) 155(1)(2)
51(5) 155(3)(4)
51(6) 155(5)
52 Rights conferred by licence 137
294
PSLA SECTION HEADING OPB
53 Term of licence 139
53A Termination of licence if no 140
operations for 5 years
54(1) Application for renewal of licence 156(2)
54(2)(b) 156(3), 210-05(2)
54(2)(c) 156(5)
54(2)(d) 220
54(3) 156(4)
55(1) Grant or refusal of renewal of 157
licence
55(2) 157(4), 223
55(3) 158
55(4) 158, 226
55(5) 158
55(7) 223(2)
55(8) 224
55(9) 159
55(10) 224(4)
55(11) 156(6)
56 Conditions of licences 138
58(1) Directions as to recovery of 161(1)
petroleum
58(2) 161(2)
58(3) 162(1)
58(4) 162(2)
58(5) 162(3), (4) & (5)
59 Unit development 163
Division 3A Infrastructure licences Part 2.5
59A Construction etc of infrastructure 165
facilities
59B(1) Application for infrastructure 170(1)
licence
59B(2)(a) 219(2)
59B(2)(b) 170(2)
59B(2)(c) 221
59B(2)(d) 220
59B(3) 222(2)
59C(1) Notification as to grant of an 171, 222, 223
infrastructure licence
59C(2) 223(2)
59D Notices to be given by JA 174
59E(1) Grant of infrastructure licence 224(1)
59E(2) 224
59E(3) 173
59E(4) 224(4)
59F Rights conferred by infrastructure 166
licence
59G Term of infrastructure licence 168
59H Termination of infrastructure 169
licence if no operations for 5 years
295
PSLA SECTION HEADING OPB
59J Conditions of infrastructure licence 167
59K(1) Variation of infrastructure licence 175(1)
59K(2)(a) 219(2)
59K(2)(b) 175(2)(a)
59K(2)(c) 175(2)(b)
59K(2)(d) 220
59K(3) 222(2)
59K(4) 177
59K(5) 177
59K(6) 176, 177
Division 4 Pipeline licences Part 2.6
60 Construction etc of pipelines etc 179
61 Acts done in an emergency etc. 179(7)(8)
62 Removal of pipeline etc 184
constructed in contravention of Act
63 Terminal station 14
64(1)(b) Application for pipeline licence 219(2)
64(1)(c) 185(2)
64(1)(d) 185(3)
64(1)(e) 221(2)
64(1)(f) 220
64(2) 186(1)
64(3) 186(2)
64(4) 222(2)
65(1) Grant or refusal of pipeline licence 187(2), 223
65(2) 187(3)(4), 223
65(2A) 187(5), 223
65(3) 188(1)(2)
65(4) 226
65(5) 188(3)
65(7) 223(2), 187(6)
65(7)(a) 187(6)
65(8) 187(6)
65(9) 224
65(10) 189
65(11) 224(4)
66 Rights conferred by pipeline 180
licence
67(1) Term of pipeline licence 182(2)
67(2) 182(1)
67A Termination of pipeline licence if 183
no operations for 5 years
71(1) Variation by the JA of pipeline 190(1)
licence on application by pipeline
licensee
71(2)(b) 219(2)
71(2)(c) 190(2)(a)
71(2)(d) 190(2)(b)
296
PSLA SECTION HEADING OPB
71(2)(e) 220
71(3) 222(2)
71(4) 190(3)
71(5) 190(4)
72 Variation of pipeline licence by JA 191
73 Common carrier 192
74 Ceasing to operate pipeline 193
Division 5 Registration of instruments Chapter 3
75 Interpretation 251
76(1) Register of certain instruments to 253
be kept
76(2) 254
76(3) 254(3)
76(4) 254(4)
76(6) 254(5)
77(a) Memorials to be entered of permits 255
etc determined etc
78(1) Approval and registration of 256
transfers
78(2) 257
78(3)(a) 258
78(4) 259
78(5) 260
78(6) 261
78(7) 261(3)
78(9) 262
78(10) 262(4)
78(11) 261(4)
78(12) 262(5)
78(13) 263
79(1) Entries in Register on devolution 265
of title etc
79(2) 266
79(3) 267, 268
81(1) Approval of dealings relating to 269
existing titles
81(2) 270
81(3) 271
81(4) 272
81(4A) 272
81(5) 273
81(6) 275, 284
81(7) 252
81(8) 272
81(9) 274
81(10) 275(2)
81(11) 275(4)
81(12) 276(2)(3)
81(13) 277
297
PSLA SECTION HEADING OPB
81(13A) 278
81(14) 275(5)
81(15) 6
81A(1) Approval of dealings in future 280, 282
interests etc
81A(1)(a) 282
81A(2) 281
81A(3)(a) 283
81A(4)(a) 282
82(1) True consideration to be shown 293
82(1A) Deliberately omitted:
policy decision
82(2) 298
82(3) 298
83 DA not concerned with certain 264, 279,
matters 292
84(1) Power of DA to acquire 288
information as to dealings
84(1A) 289
84(1B) 288
84(1C) 288, 289
84(2) 288, 289
85(1) Production & inspection of 290
documents
85(1A) 290
85(2) 290
85(3) 290(5)
85(4) 290
86 Inspection of Register & 296
documents
87(1) Evidentiary provisions 297(1)
87(2) 297(2)(3)
87(3) 297(4)(5)
87A(1) Designated Authority may make 285
corrections to Register
87A(2) 286
87A(3) 286
87A(4) 286
88 Appeals 287
90(a) Offences 294
90(b) 295
91 Assessment of fee 298
92 Supreme Court 287(1); 298(3)
Division 6 General Part 5.2
94 Notice of grants of permits etc to 418
be published
94(a) 418
94(aa) 418
94(b) 418
298
PSLA SECTION HEADING OPB
94(c) 418
94(ca) 418
94(d) 418
94(e) 418
94(f) 418
94(g) 418
95(2) Date of the effect of surrender etc 234, 238
of permits etc
95(2A) 234, 213-10
95(3) 234, 213-10
95(4) 227
96(1AA) Commencement of works 300(1)
96 300
97 Work practices 301
97A(1) Conditions relating to insurance 302(1)
97A(2) 302(2)
97A(3), (4) and (5) Deliberately omitted:
98 Maintenance etc of property 303
99 Sections 97 & 98 to have effect 301, 303
subject to this Act etc
101(1) Directions 305(2)
101(2) 305(3)
101(2A) 306(1)(4)
101(2B) 306(2)(4)
101(2C) 306(3)(4)
101(3) 305(5)
101(4) 305(6)
101(5) 305(7)
101(6) 305
101(7) 307
101(7A) 307(2)
101(8) 307(3)
102(1), (1A), (2) & (2A) Compliance with directions 308
102(3) 309
103(1) Exemption 227
103(1A) 231
103(2) 227(3)
103(3) 228
103A(1) Suspension of rights conferred by 229(1)
permit or lease
103A(2) 229(2)
103A(3) 229(3)
103A(4) 230
103A(5) 249
104(1) Surrender of permits etc 232
104(2) 233
104(3) 233
299
104(3A) 233
PSLA SECTION HEADING OPB
104(4) 234
104(5) 233
105(1) Cancellation of permits etc. 237
105(1)(e) 238
105(1)(eaa) 238
105(1)(ea) 238
105(1)(f) 238
105(2)(a) 239(1)(a)
105(2)(b) 239(1)(b)
105(2)(c) 239
105(2)(d)(i) 238
105(2)(d)(ii) 239
106 Cancellation of permit etc. not 240
affected by other provisions
107(1) Removal of property etc. by 312
permittee etc
107(2) 311
107(3)(a) 312
107(3)(b) 311
107(3)(c) 311
108(1)(a) Removal of property etc. by 312(1)
Designated Authority
108(1)(b) 312(1)
108(1)(c) 312(1)
108(1)(d) 312(1)
108(1)(e) 312(1)
108(2) 313(2)
108(2)(a) 313(2)
108(2)(b) 313(3)
111(1) Special prospecting authorities 199(1)
111(2)(b) 219
111(2)(c) 199(2)
111(2)(d) 220
111(3) 200
111(3)(a) 196
111(4) 195(1)
111(5) 195(2)
111(6) 197
111(6A) 198
111(6B) 201
111(7)(a) 235
111(7)(b) 241
111(8) 312
111(9) 312
111(10) 313
112(1) Access Authorities 206
112(1A) 206
300
112(1B) 206
301
PSLA SECTION HEADING OPB
112(1C) 206
112(2)(b) 219(2)
112(2)(c) 206(2)
112(2)(d) 221(2)
112(3)(a) 204, 207
112(3)(b) 210
112(4)(a) 208, 211
112(4)(b) 211
112(4)(b)(i) 208
112(4)(c) 208, 211
112(4)(d) 208, 211
112(4AA) 208(1)(d)
112(4A) 207, 210
112(4B)(a) 209
112(4B)(b) 212
112(4B)(c) 209, 212
112(4B)(d) 212
112(4B)(d)(i) 209
112(4B)(e) 209, 212
112(4B)(f) 209, 212
112(5) 203(1)
112(6) 203(2)
112(7) 205
112(8)(a) 236
112(8)(b) 214
112(9) 312
112(10) 312
112(11) 213
112(12) 313
112(13) 6
113(1) Sale of Property 314(1)
113(2) 314(2)
113(3) 314
113(4) 315
115(1) Designated Authority etc. may 409
require information to be furnished
etc.
115(2) 412
115(3) 412
116 Power to examine on oath 411
117(1)(a) Failing to furnish information etc. 409(5)
117(1)(b) 409(5)
117(1)(c) 415
117(1)(d) 416
117(2) Deliberately omitted
117(3) Deliberately omitted
302
PSLA SECTION HEADING OPB
118A Designated Authority to make 419
correspondence etc. available to
Commonwealth Minister
118(1) 419, Schedule 5 - 5(1)
118(1A) 419, Schedule 5 - 5(2)
118(1B) 419, Schedule 5 - 5(6)
118(2) Schedule 5-7(1)
118(3) Deliberately omitted -
repealed
118(4) Schedule 5 - 7(2)
118(5) Schedule 5 - 8
118(5A) Schedule 5 - 9(1)
118(5B) Schedule 5 - 9(3)
118(5C) Schedule 5 - 9(4)
118(5D) Schedule 5 - 9(5)
118(5E) Schedule 5 - 9(6)
118(5F) Schedule 5 - 9(7)
118(5G) Schedule 5 - 9(8)
118(5H) Schedule 5 - 9(9)
118(5J) Schedule 5 - 9(10)
118(5K) Schedule 5 - 9(11)
118(5L) Schedule 5 - 9(12)
118(6) Schedule 5 - 4
118(6A) Schedule 5 - 2
118(7) Deliberately omitted:
(repealed)
118(8) Schedule 5 - 3
118(9) Schedule 5 - 9(2)
118(10) Deliberately omitted:
(redundant)
119(1) Safety zones 329(1)
119(2) 329(2)
119(3) 329(3)
119(4) 329(4)
120 Discovery and use of water Deliberately omitted:
policy change
122 Records etc. to be kept 407
122A Regulations about data 422, 408
management
123(1) Scientific Investigations 218
123(2) 216, 217
123(3) 216
124 Interference with other rights 243
124A Interfering with offshore petroleum 321
installation or operations
125 Inspectors 318
126 Powers of inspectors 319
127 Property in petroleum 248
303
PSLA SECTION HEADING OPB
129(1)(a) Certain payments to be made by 55
Commonwealth to States and
Northern Territory
129(1)(b) 54
129(1A) 55
129(2) 54
129(2A) 55
129(3) 56
133 Orders for forfeiture in respect of 322
certain offences
135 Time for bringing proceedings for 323
offences
136 Publication in Gazette 442
137 Judicial notice 53
138(1) Service 439
138(2) 439
138(2A) 440
138(3) 439
138(4) 439
138A Service of documents on 2 or more 441
permittees etc.
139 No conditions as to payment of 244
moneys
140 Saving of certain State and Deliberately omitted:
Territory instruments outdated
140AA Liability for acts or matters done or 436
omitted to be done under this Act
etc
Division 6A Area to be avoided and safety Part 4.5
zones
140A(1) Interpretation 326, 328
140A(2) 326
140A(3) Deliberately omitted:
technical change
140A(4) 328
140A(5) 326
140A(6) 326
140B(1) Emergency periods 327(1)
140B(2) 327(2)
140B(3) 327(3)
140B(4) 327(4) (5)
140B(5) 327(6)
140B(6) 326
140C Designated Authority may 330
authorise entry into area to be
avoided
140D(1) Unauthorised vessel not to enter 331(1)
area to be avoided
140D(1A) 331(2)
140D(2) 331(3)
140E(1)(a) Powers of authorised persons 333
304
PSLA SECTION HEADING OPB
140E(1)(b) 333
140E(1)(c) 332(1)(a)
140E(1)(d) 332(1)(b)
140E(1)(e) 333
140E(1)(f) 332(1)(c)
140E(1)(g) 333(1)(d)
140E(2) 333
140E(2)(c) 332
140E(2)(e) 332
140E(2A) 333
140E(3) 333
140F Search Warrants 320
140F(1) 334(1)
140F(2) 334(2)
140F(3) 334(3) (4)
140F(4) Deliberately omitted:
policy change
140G Exercise of powers in serious 335
circumstances
Division 6B Health and safety Part 4.7
140H(1) Application of occupational health 347
and safety laws
140H(2) 348
140H(3) Deliberately omitted:
policy change
140I Regulations relating to health and 349
safety
Division 7 Transitional provisions Deliberately omitted
146 Barracouta and Marlin Fields Deliberately omitted:
Petroleum Production Licences outdated
147 Barracouta and Marlin Fields Deliberately omitted:
Pipeline Licences to have effect as outdated
pipeline licences under this Act
148 Licence to replace the Barrow Deliberately omitted:
Island lease outdated
149 Certain portions of blocks to be 245
blocks
Part IIIA Release of information Part 5.3
Division 1 Preliminary Part 5.3 Division 1
150 Definitions 421
150(1) 421
150(2) Schedule 6 - 36
150(3) Schedule 6 - 36
150(4) Schedule 6 - 36
150A Application of Part 421
Division 2 Protection of confidentiality of Part 5.3 Division 2
information samples
Subdivision A Information and samples obtained Part 5.3 Subdivision 2A
by the designated authority
305
PSLA SECTION HEADING OPB
150B Protection of confidentiality of 422
documentary information obtained
by the Designated Authority
150C Protection of confidentiality of 423
petroleum mining samples
obtained by the Designated
Authority
150D Designated Authority may make 424
information or samples available to
a Minister, a State Minister or a
Northern Territory Minister
Subdivision B Information samples obtained by a Part 5.3 Subdivision 2B
Minister
150E Protection of confidentiality of 425
information obtained by a Minister
150F Protection of confidentiality of 426
petroleum mining samples
obtained by a Minister
Subdivision C Part 5.3 Subdivision 2B
150G Fees 427
150H Review by Minister 428
150J Privacy Act 429
Division 4 Miscellaneous
150K Publishing or making copies of 430
applicable documents not an
infringement of copyright
Part IIIB Datums Part 1.2 Division 2
150L Objects 20
150M(1) Australian Geodetic Datum 22(1)
150M(2) 22(2)
150M(3) Deliberately omitted: no
longer necessary
150N Current datum, previous datum and 23
changeover time
150P Use of current datum 24
150Q Use of previous datum 25
150R Variation of titles etc 26
150S Variation of applications for titles 27
150T No change to actual position of 28
point, line or area
150U Transitional regulations 29
150V Division has effect subject to 30
section 150X
150W Definitions 21
Division 2 Certain points etc specified in an Part 1.2 Subdivision 2B
International Sea-bed Agreement
to be ascertained by other means
150X Certain points etc. specified in an 31
International Sea-bed Agreement
to be ascertained by other means
Part IIIC National Offshore Petroleum Part 4.8
Safety Authority
Division 1 Introduction Division 1
306
PSLA SECTION HEADING OPB
150XA Simplified outline 352
150XB Definitions 353
150XC Designated coastal water 354
Division 2 Establishment, functions and Division 2
powers of the Safety Authority
150XD Establishment of the National 355
Offshore Petroleum Safety
Authority
150XE Safety Authority's functions 356
150XF Policy principles 357
150XG Safety Authority's ordinary powers 358
150XH References to functions and 359
powers of the Safety Authority
Subdivision A Establishment, Functions and Subdivision A
Membership
150XL Establishment of Board 363
150XM Functions of the Board 364
150XN Powers of the Board 365
150XO Membership 366
Subdivision B Board procedures Subdivision B
150XP Board procedures 367
Subdivision C Terms and Conditions for Board Subdivision C
Members
150XQ Term of appointment and related 368
matters for Board members
150XR Remuneration and allowances of 369
Board members
150XS Leave of absence of Board 370
members
150XT Resignation of Board members 371
150XU Termination of appointment of 372
Board members
150XV Other terms and conditions of 373
Board members
150XW Acting Board members 374
Division 4 Chief Executive Officer and Staff Division 4
of the Safety Authority
150XX Appointment of the CEO 375
150XY Duties of the CEO 376
150XZ Working with the Board 377
150Y Remuneration and allowances of 378
the CEO
150YA Leave of absence of the CEO 379
150YB Resignation of the CEO 380
150YC Notification of possible conflict of 381
interest by CEO
150YD Termination of CEO's 382
appointment
150YE Other terms and conditions 383
150YF Acting appointments 384
150YG Delegation by CEO 385
307
150YH Staff of the Safety Authority 386
PSLA SECTION HEADING OPB
150YI Consultants and persons seconded 387
to the Safety Authority
Division 5 Corporate plans
150YJ Corporate plans 388
150YK Commonwealth Minister's 389
response to corporate plan
Division 6 OHS Inspectors Division 6
150YL Appointment of OHS inspectors 390
150YM Identity card 391
Division 7 National Offshore Petroleum Division 7
Safety Account
150YN National Offshore Petroleum 392
Safety Account
150YO Credits to the Account 393
150YP Purposes of the Account 394
Division 8 Other Financial Matters Division 8
150YQ Fees for services provided by the 395
Safety Authority
150YR Safety investigation levy 396
150YS Safety case levy 397
150YT Pipeline safety management plan 398
levy
150YU Liability to taxation 399
Division 9 Miscellaneous Division 9
150YV Annual reports 400
150YW Ministers may require the Safety 401
Authority to prepare reports or
give information
150YX Commonwealth Minister may give 402
directions to the Safety Authority
150YY Prosecutions by the Director of 403
Public Prosecutions under mirror
provisions
150YZ Australian Industrial Relations 404
Commission may exercise powers
under mirror provisions
150Z Reviews of operations of Safety 405
Authority
Part IV Miscellaneous Chapter 6
151 Jurisdiction of courts 437, 438,
433
152(1) Reconsideration and review of 433
certain decisions
152(2) 434(1)
152(3) 434(2)
152(4) 434(3)
152(5) 434(4)
152(6) 434(5)
152(7) 435
152(8) 434(6)
152(9) 435
308
152(10) 434(7)
309
PSLA SECTION HEADING OPB
155 Validation of certain acts 73
157(1) Regulations 443
157(2) 444
157(2A) 445
157(2B) 446
157(3) 447
157(4) 448
157(5) 449
Schedule 2 Schedule 2 Schedule 1
Schedule 3 Barracouta and Marlin fields Deliberately omitted:
Petroleum Production Licences outdated
Schedule 6 Area that includes the area to be Schedule 2
avoided
Schedule 7 Occupational health and safety Schedule 3
Part 1 Preliminary
Schedule 7 - 1 Objects Schedule 3 - 1
Schedule 7 - 2 Definitions Schedule 3-3, Schedule 3-5
Schedule 7 - 2A Definitions and other provisions Schedule 3 - 4
relating to facilities
Schedule 7 - 2B Operator must ensure presence of Schedule 3 - 6
operator's representative
Schedule 7 - 2C Health and safety of persons using Schedule 3 - 7
an accommodation facility
Schedule 7 - 2D Contractor Schedule 3 - 8
Schedule 7 - 3 Duties of operator Schedule 3 - 9
Part 2 Occupational Health and Safety Part 2
Schedule 7 - 4 Duties of persons in control of Schedule 3 - 10
parts of facility or particular work
Schedule 7 - 5 Duties of employers in relation to Schedule 3 - 11
third parties
Schedule 7 - 6(1) Duties of manufacturers in relation Schedule 3 - 12
to plant and substances
Schedule 7 - 7 Duties of suppliers in relation to Schedule 3 - 13
plant and substances
Schedule 7 - 8 Duties of persons erecting or Schedule 3 - 14
installing plant in a workplace
Schedule 7 - 9 Duties of persons in relation to Schedule 3 - 15
occupational health and safety
Schedule 7 - 10 Reliance on information supplied Schedule 3 - 16
or results of research
Schedule 7 - 11 Regulations relating to Schedule 3 - 17
occupational health and safety
Part 3 Workplace arrangements Schedule 3 Part 3
Schedule 7 - 12 Designated work groups Schedule 3 - 19, Schedule
3 - 20,
Schedule 3 - 21, Schedule
3 - 22,
Schedule 3 - 23, Schedule
3 - 24
Schedule 7 - 13 Health and safety representatives Schedule 3 - 25
Schedule 7 - 13A Election of health and safety Schedule 3 - 26
310
representatives
PSLA SECTION HEADING OPB
Schedule 7 - 13B List of health and safety Schedule 3 - 27
representatives
Schedule 7 - 13C Members of designated work Schedule 3 - 28
group must be notified of selection
etc. of health and safety
representative
Schedule 7 - 14 Term of office Schedule 3 - 29
Schedule 7 - 15(1) Training of health and safety Schedule 3 - 30
representatives
Schedule 7 - 16 Powers of health and safety Schedule 3 - 34, Schedule
representatives 3 - 35,
Schedule 3 - 36, Schedule
3 - 37
Schedule 7 - 17 Provisional improvement notices Schedule 3 - 38
Schedule 7 - 18 Effect of provisional improvement Schedule 3 - 39
notice
Schedule 7 - 19 Duties of the operator and other Schedule 3 - 40
employers in relation to health and
safety representatives
Schedule 7 - 20 Resignation etc. of health and Schedule 3 - 31
safety representatives
Schedule 7 - 21 Disqualification of health and Schedule 3 - 32
safety representatives
Schedule 7 - 22 Deputy health and safety Schedule 3 - 33
representatives
Schedule 7 - 23 Health and safety committees Schedule 3 - 41
Schedule 7 - 24 Functions of health and safety Schedule 3 - 42
committees
Schedule 7 - 25 Duties of the operator and other Schedule 3 - 43
employers in relation to health and
safety committees
Schedule 7 - 26 Action by health and safety Schedule 3 - 44
representatives
Schedule 7 - 27 Directions to perform other work Schedule 3 - 45
Schedule 7 - 27A Exemptions Schedule 3 - 46
Schedule 7 - 29 OHS inspectors Schedule 3 - 48
Schedule 7 - 30 Inspections Schedule 3 - 49
Schedule 7 - 31 Power of entry and search- Schedule 3 - 50
facilities
Schedule 7 - 31A Powers of entry and search-- Schedule 3 - 51, Schedule
regulated business premises (other 3 - 54
than facilities)
Schedule 7 - 31B Powers of entry and search-- Schedule 3 - 52, Schedule
premises (other than regulated 3 - 54
business premises)
Schedule 7 - 31C Warrant to enter premises (other Schedule 3 - 53, Schedule
than regulated business premises) 3 - 54
Schedule 7 - 32 Power to require assistance and Schedule 3 - 73, Schedule
information 3 - 74
Schedule 7 - 33 Power to take possession of plant, Schedule 3 - 75
take samples of substances etc
Schedule 7 - 34 Power to direct that workplace etc Schedule 3 - 76
not be disturbed
311
Schedule 7 - 35 Power to issue prohibition notices Schedule 3 - 77
312
PSLA SECTION HEADING OPB
Schedule 7 - 36 Power to issue improvement Schedule 3 - 78
notices
Schedule 7 - 37 Appeals Schedule 3 - 81
Schedule 7 - 39 Notices not to be tampered with or Schedule 3 - 79
removed
Schedule 7 - 40 Reports on inspections Schedule 3 - 80
Schedule 7 - 41 Notifying and reporting accidents Schedule 3 - 82
and dangerous occurrences
Schedule 7 - 42 Records of accidents and Schedule 3 - 83
dangerous occurrences to be kept
Schedule 7 - 43 Codes of practice Schedule 3 - 84
Schedule 7 - 44 Use of codes of practice in Schedule 3 - 85
proceedings
Schedule 7 - 45 Interference etc with equipment etc Schedule 3 - 86
Schedule 7 - 46 Members of workforce not to be Schedule 3 - 87
levied
Schedule 7 - 48 Employer not to dismiss etc. Schedule 3 - 88
employees on certain grounds
Schedule 7 - 49 Institution of prosecutions Schedule 3 - 89
Schedule 7 - 50 Conduct of directors, servants and Schedule 3 - 90
agents
Schedule 7 - 51 Act not to give rise to other Schedule 3 - 91
liabilities etc
Schedule 7 - 52 Circumstances preventing Schedule 3 - 92
compliance with Schedule may be
defence to prosecution
Schedule 7 - 53 Regulations - general Schedule 3 - 93
Table A of Notes to PSLA, Schedule 1 -"32 Saving": refer to clause 102 in OPB
Table A of Notes to PSLA, Schedule 1 - "142 Saving": refer to clause 431 in OPB
313
ANNEX C
CONCORDANCE TABLE
OFFSHORE PETROLEUM BILL (OPB) - PETROLEUM (SUBMERGED LANDS) ACT 1967
(PSLA)
OPB CH/ PART/ DIV HEADING PSLA
Chapter 1 Introduction
Part 1.1 Legislative formalities and
background
1 1
2 2
3 nil.
4 nil.
5 nil.
Part 1.2 Interpretation 5
Division 1 General
6 5(1), 5AAA(5), 19(2) and
81(15)
7 5A(1), (1A), (2), (3), (4),
(5), (6), (6A), (6B), (7), (8)
and (9)
8 6
9 5(2) and (3)
10 5(4), (4A) and (5)
11 5(8)
12 5(1)
13 5AAB
14 63
15 19 (2)
16 17
17 7
18 8
19 8AA
Division 2 Datum provisions
Subdivision A Datum for ascertaining the position
of points etc
20 150L
21 150W
22 150M(1) and (2)
23 150N
24 150P
25 150Q
26 150R
27 150S
28 150T
29 150U
30 150V
Subdivision B Certain points etc specified in an
International Seabed Agreement to
be ascertained by other means
314
OPB CH/ PART/ DIV HEADING PSLA
31 150X
Division 3 Apportionment of petroleum
recovered from adjoining title
areas
32 6A(8)(a)
33 6A(8)(a)
34 6A(2)
35 6A(3) and (4)
36 6A(5) and (6); 6A(8)(b)
and (c)
37 6A(7)
Part 1.3 Joint Authorities and Designated
Authorities
Division 1 Joint Authorities
38 8A and 8B; 8G(1)
39 8(C)
40 8D(1)
41 8D(2)
42 8D(3)
43 8D(4)
44 8D(5)
45 8D(6)
46 8D(7) and (8)
47 8F
48 8H
49 8G(1)(a); 15(1), (4) and (6)
Division 2 Designated Authorities
50 14
51 14
52 15(1), (4) and (6)
53 137
Division 3 Finance
54 129(1)(b), 129(2)
55 129(1)(a); 129(1A) and
(2A)
56 129(3)
Part 1.4 Application of State and Territory
laws in offshore areas
57 nil.
58 9(2G)
59 9(1), (3), (4) and (5); 11(1),
(3), (4) and (5)
60 9(8), (9) and (10); 11(8)
and (9)
61 9(6)(a) and 11(6)(a)
62 9(6)(b) and 11(6)(b)
63 9(2) and 11(2)
64 9(6)(c) and 11(6)(c)
315
OPB CH/ PART/ DIV HEADING PSLA
65 11(6)(d)
66 9(6)(d) and 11(6)(e)
67 9(6)(e)
68 9(2A), 2(B), (2C), (2D),
(2E), (2F), (2H), (2I); (11)
and (12)
69 9(1A) and (1B); 11(1A)
and (1B)
70 9(7) and 11(7)
71 10
72 12
73 155
74 13
Chapter 2 Regulation of activities relating to
petroleum
Part 2.1 Introduction
75 nil.
Part 2.2 Exploration permits for petroleum
Division 1 General provisions
76 nil.
77 19(1)
78 28
79 33
80 29(1)
81 29(2)
Division 2 Obtaining a work-bid exploration
permit
82 20; 21(1)(c) and (d); 21(2)
and (3)
83 22(1)
84 21A
85 22(4)
86 22AA and 22AB
87 22AC
Division 3 Obtaining a cash-bid exploration
permit
88 22A(1), (2), (3) and (4);
22A(5)(a), (d), (e) and (f)
89 22B(1)
90 22B(2) and (7)
91 22B(5)
92 22C
Division 4 Obtaining a special exploration
permit over a surrendered block or
certain other blocks
93 23(1); 23(4)(c) and (d);
24(1)(b), (2) and (3)
94 25(1)
316
OPB CH/ PART/ DIV HEADING PSLA
95 25(2)
96 27
Division 5 Renewal of exploration permits
97 30(1), (2) and (3); 32(8)
98 30(1A)(a)
99 30(1A)(b)
100 31 and 31A
101 31
102 31 plus provision set out in
Notes Table A Schedule 1
"32 Saving"
103 32(1)
104 32(2)
105 32(6)
Division 6 Locations
106 nil.
107 36(1), (2), (3), (4) and (5);
38
108 36(6), (7), (8) and (9)
109 37(1), (2) and (7)
110 37(3) and 46(3), (4), (5)
and (6)
111 37(4), (5), (6) and (7)
Part 2.3 Retention leases for petroleum
Division 1 General provisions
112 nil.
113 38C
114 38H
115 38D
116 44(5)
Division 2 Obtaining a retention lease
Subdivision A Application for retention lease by
the holder of an exploration permit
117 38A(1); 38A(2)(c); 38A(4)
118 38B(1)(a) and (c)
119 38B(2)(b); 38B(2A)
120 38B(5)
121 38B(7)
122 38BA
Subdivision B Application for retention lease by
the holder of a life-of-field
production licence
123 38BB(1); 38BB(2)(c);
38BB(4)
124 38BC(1)(a) and (c)
125 38BC(2)(b)
126 38BC(5)
127 38BC(7)
317
OPB CH/ PART/ DIV HEADING PSLA
128 38BD
Division 3 Renewal of retention leases
129 38F(1); 38F(2)(b) and (c);
38F(3); 38G(9)
130 38G(1)(a), (c), (d) and (e)
131 38G(2)(b) and (c); 38G(5)
and (10)
132 38G(7)
Division 4 Revocation of retention leases
133 38E(1)
134 38E(2),(3) and (4)
Part 2.4 Production licences for petroleum
Division 1 General provision
135 nil.
136 39
137 52
138 56
139 53
140 53A
141 nil.
Division 2 Obtaining a production licence as a
result of an application made by a
permittee or retention lessee
142 39A(1), (2), (3) and (4);
41(1)(c)
143 39A(5) and (6); 40(4) and
(5)
144 40A
145 43(1) and (1A)
146 43(3)
147 44(2)
148 44(5)
149 44A
Division 3 Obtaining a cash-bid production
licence over a surrendered block or
similar block
150 47(1) and (2); 47(6)(c) and
(d); 48(1)(b); 48(2) and (3)
151 49(1)
152 49(2) and (8)
153 50
Division 4 Obtaining production licences over
individual blocks
154 51(1); 51(2)(c) and (d)
155 51(4), (5) and (6)
Division 5 Renewal of fixed-term production
licences
318
OPB CH/ PART/ DIV HEADING PSLA
156 54(1); 54(2)(b) and (c);
54(3); 55(11)
157 55(1) and (2)
158 55(3), (4) and (5)
159 55(9)
Division 6 What happens if a block is not
taken up
160 46(1) and (1A)
Division 7 Petroleum field development
Subdivision A Directions about the recovery of
petroleum
161 58(1) and (2)
162 58(3), (4) and (5)
Subdivision B Unit development
163 59
Part 2.5 Infrastructure licences
Division 1 General provisions
164 nil.
165 59A
166 59F
167 59J
168 59G
169 59H
Division 2 Obtaining an infrastructure licence
170 59B(1); 59B(2)(b)
171 59C(1)
172 nil.
173 59E(3)
174 59D
Division 3 Varying an infrastructure licence
175 59K(1); 59K(2)(b) and (c)
176 59K(6) and 95(4)
177 59K(4), (5) and (6)
Part 2.6 Pipeline licences
Division 1 General provisions
178 nil.
179 60; 61
180 66
181 70
182 67(1)
183 67A
184 62
Division 2 Obtaining a pipeline licence
185 64(1)(c) and (d)
186 64(2) and (3)
187 65(1), (2) and (2A);
65(7)(a); 65(8)
319
OPB CH/ PART/ DIV HEADING PSLA
188 65(3) and (5)
189 65(10)
Division 3 Varying a pipeline licence
190 71(1); 71(2)(c) and (d);
71(4) and(5); 95(4)
191 72; 95(4)
Division 4 Pipeline operation
192 73
193 74
Part 2.7 Special prospecting authorities
Division 1 General provisions
194 nil.
195 111(4) and (5)
196 111(3)(a)
197 111(6)
198 111(6A)
Division 2 Obtaining a special prospecting
authority
199 111(1); 111(2)(c)
200 111(3)
201 111(6B)
Part 2.8 Access authorities
Division 1 General provisions
202 nil.
203 112(5) and (6)
204 112(3)(a)
205 112(7)
Division 2 Obtaining an access authority
206 112(1), (1A), (1B) and
(1C); 112(2)(c)
207 112(3)(a); 112(4A)
208 112(4)(a), (b)(i), (c) and
(d)
209 112(4B)(a), (c), (d)(i), (e)
and (f)
Division 3 Variation of access authorities
210 112(3)(b); 112(4A)
211 112(4)(a), (b), (c) and (d)
212 112(4B)(b), (c), (d), (e) and
(f)
Division 4 Reporting obligations of holders of
access authorities
213 112(11)
Division 5 Revocation of access authorities
214 112(8)(b)
Part 2.9 Scientific investigation consents
215 nil.
216 123(2) and (3)
320
OPB CH/ PART/ DIV HEADING PSLA
217 123(2)
218 123(1)
Part 2.10 Standard procedures
219 21(1)(b); 22A(5)(c);
23(4)(b); 30(2)(b);
38A(2)(b); 38BB(2)(b);
41(1)(b); 47(6)(b);
51(2)(b); 59B(2)(a);
59K(2)(a); 64(1)(b);
71(2)(b) and 111(2)(b)
220 21(1)(f); 22A(5)(h);
24(1)(a); 30(2)(c);
38A(2)(e); 38BB(2)(e);
38F(2)(d); 41(1)(e);
48(1)(a); 51(2)(e);
54(2)(d); 59B(2)(d);
59K(2)(d); 64(1)(f);
71(2)(e); 111(2)(d)
221 21(1)(e); 22A(5)(g);
23(4)(e); 38A(2)(d);
38BB(2)(d); 41(1)(d);
47(6)(f); 59B(2)(c);
64(1)(e); 112(2)(d)
222 21(4); 22A(6); 23(5);
38A(3); 38B(1)(b);
38BB(3); 38BC(1)(b);
38F(4); 38G(1)(b); 41(2),
(3), (4) and (5); 43(3)(a);
47(7); 59B(3); 59C(1);
59K(3); 64(4); 71(3)
223 22(2) and (3); 25(5); 32(4);
38B(3); 38BC(3); 38G(4);
43(2)(a) and (c); 49(5);
55(7); 59C(2); 65(7)
224 22(3) and (5); 22B(4) and
(6); 26(1) and (2); 32(5)
and (7); 38B(4) and (6);
38G(6) and (8); 44(1) and
(4); 49(6) and (7); 55(8)
and (10); 59E(1) and (2)
and (4); 65(9) and (11)
225 22B(6)(b); 26(2)(b);
49(7)(b)
226 32(3); 38G(3); 55(4); 65(4)
Part 2.11 Variation, suspension and
exemption
321
OPB CH/ PART/ DIV HEADING PSLA
Division 1 Variation, suspension and
exemption decisions relating to
exploration permits, retention
leases, production licences,
infrastructure licences and pipeline
licences
227 95(4); 103(1)
228 103(3)
229 103A(1), (2) and (3)
230 103A(4)
Division 2 Variation, suspension and
exemption decisions relating to
special prospecting authorities and
access authorities
231 103(1A)
Part 2.12 Surrender of titles
Division 1 Surrender of exploration permits,
production licences, retention
leases, infrastructure licences and
pipeline licences
232 104(1)
233 104(2), (3), (3A) and (5)
234 95(2), (2A) and (3); 104(4)
Division 2 Surrender of special prospecting
authorities and access authorities
235 111(7)(a)
236 112(8)(a)
Part 2.13 Cancellation of titles
Division 1 General rules about cancellation of
exploration permits, production
licences, retention leases,
infrastructure licences and pipeline
licences
237 105(1)
238 95(2), (2A) and (3);
105(1)(e), (eaa), (ea) and
(f); 105(2)(d)(i)
239 105(2)(a), (b), (c) and
(d)(ii)
240 106
Division 2 Cancellation of special prospecting
authorities
241 111(7)(b)
Part 2.14 Other provisions
242 18
243 124
244 139
245 149
246 5AAA
247 34; 38J
248 127
322
OPB CH/ PART/ DIV HEADING PSLA
249 103A(5)
Chapter 3 Registration and dealings
Part 3.1 Introduction
250 nil.
251 75
252 81(7)
Part 3.2 Register of titles and special
prospecting authorities
253 76(1)
254 76(2), (3), (4) and (6)
255 77
Part 3.3 Transfer of titles
256 78(1)
257 78(2)
258 78(3)
259 78(4)
260 78(5)
261 78(6), (7) and (11)
262 78(9), (10) and (12)
263 78(13)
264 83
Part 3.4 Devolution of title
265 79(1)
266 79(2)
Part 3.5 Change in name of company
267 79(3)
268 79(3)
Part 3.6 Dealings relating to existing titles
269 81(1)
270 81(2)
271 81(3)
272 81(4), (4A) and (8)
273 81(5)
274 81(9)
275 81(6), (10), (11) and (14)
276 81(12)
277 81(13)
278 81(13A)
279 83
Part 3.7 Dealings in future interests
280 81A(1)
281 81A(2)
282 81A(1) and (4)
283 81A(3)
284 81(6)
323
OPB CH/ PART/ DIV HEADING PSLA
Part 3.8 Correction and rectification of
Register
285 87A(1)
286 87A(2), (3) and (4)
287 88
Part 3.9 Information-gathering powers
288 84(1), (1B), (1C) and (2)
289 84(1A), (1C) and (2)
290 85(1), (1A), (2) and (4)
291 nil.
Part 3.10 Other provisions
292 83
293 82(1)
294 90(a)
295 90(b)
296 86
297 87
298 82(2) and (3); 91
Chapter 4 Administration
Part 4.1 Operations
299 nil.
300 96
301 97; 99
302 97A(1) and (2)
303 98; 99
Part 4.2 Directions
Division 1 Simplified outline
304 nil.
Division 2 General power to give directions
305 101(1), (2), (3), (4), (5) and
(6)
306 101(2A), (2B) and (2C)
307 101(7), (7A) and (8)
Division 3 Designated Authority may take
action if there is a breach of a
direction
308 102
Division 4 Defence of taking reasonable steps
to comply with a direction
309 102(3)
Part 4.3 Restoration of the environment
310 nil.
311 107(2); 107(3)(b) and (c)
312 107(1); 107(3)(a); 111(8)
and (9); 112(9) and (10)
313 108; 111(10); 112(12)
314 113(1), (2) and (3)
315 113(4)
324
OPB CH/ PART/ DIV HEADING PSLA
316 nil.
Part 4.4 Offence and enforcement
317 nil.
318 125
319 126
320 no equivalent provision -
but 140F for different
context
321 124A
322 133
323 135
Part 4.5 Safety zones and the area to be
avoided
Division 1 Introduction
324 nil.
325 nil.
326 140A(1), (2), (5) and (6);
140B(6)
327 140B(1)(2), (3), (4) and (5)
328 140A(1) and (4)
Division 2 Safety zones
329 119
Division 3 Unauthorised vessel not to enter
area to be avoided
330 140C
331 140D
Division 4 Powers of authorised persons
332 140E(1)(c), (d), (f);
140E(2)(c), and (e)
333 140E(1)(a), (b), (e) and(g);
140E(2), (2A) and (3)
334 140F(1), (2) and (3)
335 140G
Part 4.6 Collection of fees and royalties
Division 1 Fees payable under the Annual
Fees Act
336 4(3) and (4)
337 5
338 6(1) and (2)
339 6(3)
Division 2 Fees payable under the
Registration Fees Act
340 4(2) and (7)
Division 3 Royalties payable under the
Royalty Act
341 11(1)
342 11b(1); 11b(2)(a)
343 11
344 13
325
OPB CH/ PART/ DIV HEADING PSLA
345 5(1) and (1B); 13
Division 4 Fees payable under this Act
346 no equivalent provision-
technical addition
Part 4.7 Occupational health and safety
347 140H(1)
348 140H(2)
349 140I
350 11A
351 11B
Part 4.8 National Offshore Petroleum
Safety Authority
Division 1 Introduction
352 150XA
353 150XB
354 150XC
Division 2 Establishment, functions and
powers of the Safety Authority
355 150XD
356 150XE
357 150XF
358 150XG
359 150XH
360 150XI
361 150XJ
362 150XK
Division 3 National Offshore Petroleum
Safety Authority Board
Subdivision A Establishment, functions and
membership
363 150XL
364 150XM
365 150XN
366 150XO
Subdivision B Board procedures
367 150XP
Subdivision C Terms and conditions for Board
members
368 150XQ
369 150XR
370 150XS
371 150XT
372 150XU
373 150XV
374 150XW
Division 4 Chief Executive Officer and staff
of the Safety Authority
375 150XX
326
376 150XY
OPB CH/ PART/ DIV HEADING PSLA
377 150XZ
378 150Y
379 150YA
380 150YB
381 150YC
382 150YD
383 150YE
384 150YF
385 150YG
386 150YH
387 150YI
Division 5 Corporate plans
388 150YJ
389 150YK
Division 6 OHS inspectors
390 150YL
391 150YM
Division 7 National Offshore Petroleum
Safety Account
392 150YN
393 150YO
394 150YP
Division 8 Other financial matters
395 150YQ
396 150YR
397 150YS
398 150YT
399 150YU
Division 9 Miscellaneous
400 150YV
401 150YW
402 150YX
403 150YY
404 150YZ
405 150Z
Chapter 5 Information
Part 5.1 Data management and gathering of
information
Division 1 Introduction
406 nil.
Division 2 Data management
407 122
408 122A
Division 3 Information-gathering powers
409 115(1)
410 nil.
411 116
327
PSLA SECTION HEADING OPB
412 115(2) and (3)
413 nil.
414 nil.
415 117(1)(c)
416 117(1)(d)
417 nil.
Part 5.2 Release of regulatory information
418 94
419 118A
Part 5.3 Release of technical information
Division 1 Introduction
420 nil.
421 150
Division 2 Protection of confidentiality of
information and samples
Subdivision A Information and samples obtained
by the Designated Authority
422 150B
423 150C
424 150D
Subdivision B Information and samples obtained
by a Minister
425 150E
426 150F
Subdivision C Miscellaneous
427 150G
428 150H
429 150J
Division 3 Copyright
430 150K
Division 4 Release of technical information
given to the Designated Authority
before 7 March 2000
431 Notes Table A Schedule 1
"142 Saving"
Chapter 6 Miscellaneous
Part 6.1 Reconsideration and review of
decisions
432 nil.
433 152(1)
434 152(2), (3), (4), (5), (6), (8)
and (10)
435 152(7) and (9)
Part 6.2 Liability for acts and omissions
436 140AA
Part 6.3 Jurisdiction of courts
437 151
438 151
328
Part 6.4 Service of documents
PSLA SECTION HEADING OPB
439 138(1), (2), (3) and (4)
440 138(2A)
441 138A
Part 6.5 Publication in Gazette
442 136
Part 6.6 Regulations
443 157(1)
444 157(2)
445 157(2A)
446 157(2B)
447 157(3)
448 157(4)
449 157(5)
Part 6.7 Transitional provisions
450 nil.
Schedule 1 Scheduled areas of the States and Schedule 2
Territories
Schedule 1 - 1 Schedule 2 first area
Schedule 1 - 2 Schedule 2 second area
Schedule 1 - 3 Schedule 2 third area
Schedule 1 - 4 Schedule 2 fourth area
Schedule 1 - 5 Schedule 2 fifth area
Schedule 1 - 6 Schedule 2 sixth area
Schedule 1 - 7 Schedule 2 seventh area
Schedule 1 - 8 Schedule 2 eighth area
Schedule 1 - 9 nil. - technical provision
Schedule 2 Area that includes the area to be Schedule 6
avoided
Schedule 2 - 1 Schedule 6
Schedule 3 Occupational health and safety
Part 1 Introduction
Schedule 3 - 1 Schedule 7 - 1
Schedule 3 - 2 nil.
Schedule 3 - 3 Schedule 7 - 2
Schedule 3 - 4 Schedule 7 - 2A
Schedule 3 - 5 Schedule 7 - 2
Schedule 3 - 6 Schedule 7 - 2B
Schedule 3 - 7 Schedule 7 - 2C
Schedule 3 - 8 Schedule 7 - 2D
Part 2 Occupational health and safety
Division 1 Duties relating to occupational
health and safety
Schedule 3 - 9 Schedule 7 - 3
Schedule 3 - 10 Schedule 7 - 4
Schedule 3 - 11 Schedule 7 - 5
Schedule 3 - 12 Schedule 7 - 6
Schedule 3 - 13 Schedule 7 - 7
329
Schedule 3 - 14 Schedule 7 - 8
330
PSLA SECTION HEADING OPB
Schedule 3 - 15 Schedule 7 - 9
Schedule 3 - 16 Schedule 7 - 10
Division 2 Regulations relating to
occupational health and safety
Schedule 3 - 17 Schedule 7 - 11
Part 3 Workplace arrangements
Division 1 Introduction
Schedule 3 - 18 nil.
Division 2 Designated work groups
Subdivision A Establishment of designated work
groups
Schedule 3 - 19 Schedule 7 - 12
Schedule 3 - 20 Schedule 7 - 12
Subdivision B Variation of designated work
groups
Schedule 3 - 21 Schedule 7 - 12
Schedule 3 - 22 Schedule 7 - 12
Subdivision C General
Schedule 3 - 23 Schedule 7 - 12(4)
Schedule 3 - 24 Schedule 7 - 12(7), (8)(a)
and (10)
Division 3 Health and safety representatives
Subdivision A Selection of health and safety
representatives
Schedule 3 - 25 Schedule 7 - 13
Schedule 3 - 26 Schedule 7 - 13A
Schedule 3 - 27 Schedule 7 - 13B
Schedule 3 - 28 Schedule 7 - 13C
Schedule 3 - 29 Schedule 7 - 14
Schedule 3 - 30 Schedule 7 - 15
Schedule 3 - 31 Schedule 7 - 20
Schedule 3 - 32 Schedule 7 - 21
Schedule 3 - 33 Schedule 7 - 22
Subdivision B Powers of health and safety
representatives
Schedule 3 - 34 Schedule 7 - 16
Schedule 3 - 35 Schedule 7 - 16
Schedule 3 - 36 Schedule 7 - 16
Schedule 3 - 37 Schedule 7 - 16
Schedule 3 - 38 Schedule 7 - 17
Schedule 3 - 39 Schedule 7 - 18
Subdivision C Duties of the operator and other
employers in relation to health and
safety representatives
Schedule 3 - 40 Schedule 7 - 19
Division 4 Health and safety committees
Schedule 3 - 41 Schedule 7 - 23
Schedule 3 - 42 Schedule 7 - 24
331
PSLA SECTION HEADING OPB
Schedule 3 - 43 Schedule 7 - 25
Division 5 Emergency procedures
Schedule 3 - 44 Schedule 7 - 26
Schedule 3 - 45 Schedule 7 - 27
Division 6 Exemptions
Schedule 3 - 46 Schedule 7 - 27A
Part 4 Inspections
Division 1 Introduction
Schedule 3 - 47 nil.
Schedule 3 - 48 Schedule 7 - 29
Division 2 Inspections
Schedule 3 - 49 Schedule 7 - 30
Division 3 Powers of OHS inspectors in
relation to the conduct of
inspections
Subdivision A General powers of entry and search
Schedule 3 - 50 Schedule 7 - 31
Schedule 3 - 51 Schedule 7 - 31A
Schedule 3 - 52 Schedule 7 - 31B
Schedule 3 - 53 Schedule 7 - 31C
Schedule 3 - 54 Schedule 7 - 31(4) and (5);
31A(3) and (4); 31B(7) and
(8)
Subdivision B Offence-related searches and
seizures
Schedule 3 - 55 nil. - new provision
Schedule 3 - 56 nil. - new provision
Schedule 3 - 57 nil. - new provision
Schedule 3 - 58 nil. - new provision
Schedule 3 - 59 nil. - new provision
Schedule 3 - 60 nil. - new provision
Schedule 3 - 61 nil. - new provision
Schedule 3 - 62 nil. - new provision
Schedule 3 - 63 nil. - new provision
Schedule 3 - 64 nil. - new provision
Schedule 3 - 65 nil. - new provision
Schedule 3 - 66 nil. - new provision
Schedule 3 - 67 nil. - new provision
Schedule 3 - 68 nil. - new provision
Schedule 3 - 69 nil. - new provision
Schedule 3 - 70 nil. - new provision
Schedule 3 - 71 nil. - new provision
Schedule 3 - 72 nil. - new provision
Subdivision C Other powers
Schedule 3 - 73 Schedule 7 - 32
Schedule 3 - 74 Schedule 7 - 32
Schedule 3 - 75 Schedule 7 - 33
Schedule 3 - 76 Schedule 7 - 34
332
PSLA SECTION HEADING OPB
Schedule 3 - 77 Schedule 7 - 35
Schedule 3 - 78 Schedule 7 - 36
Schedule 3 - 79 Schedule 7 - 39
Division 4 Reports on inspections
Schedule 3 - 80 Schedule 7 - 40
Division 5 Appeals
Schedule 3 - 81 Schedule 7 - 38
Part 5 General provisions
Schedule 3 - 82 Schedule 7 - 41
Schedule 3 - 83 Schedule 7 - 42
Schedule 3 - 84 Schedule 7 - 43
Schedule 3 - 85 Schedule 7 - 44
Schedule 3 - 86 Schedule 7 - 45
Schedule 3 - 87 Schedule 7 - 46
Schedule 3 - 88 Schedule 7 - 48
Schedule 3 - 89 Schedule 7 - 49
Schedule 3 - 90 Schedule 7 - 50
Schedule 3 - 91 Schedule 7 - 51
Schedule 3 - 92 Schedule 7 - 52
Schedule 3 - 93 Schedule 7 - 52
Schedule 4 Production licences to which the
Royalty Act applies
Part 1 Introduction
Schedule 4 - 1 5(1)
Part 2 Applying for a production licence
Schedule 4 - 2 40(1A), (1), (2) and (3)
Schedule 4 - 3 40(4) and (5)
Schedule 4 - 4 40B; 41(1)(c)
Part 3 Obtaining a production licence
Schedule 4 - 5 43(2)(b)
Schedule 4 - 6 40(3)
Part 4 Variation of licence area
Schedule 4 - 7 45; 95(4)
Part 5 What happens if a block is not
taken up
Schedule 4 - 8 46(1), (1B) and (2)
Schedule 5 Release of technical information
given to the Designated Authority
before 7 March 2000
Schedule 5 - 1 nil. - new provision
Schedule 5 - 2 118(6A)
Schedule 5 - 3 118(8)
Schedule 5 - 4 118(6)
Schedule 5 - 5 118(1), (1A)
Schedule 5 - 6 118(1B)
Schedule 5 - 7 118(2), (4)
Schedule 5 - 8 118(5)
Schedule 5 - 9 118(5A) to (5L); 118(a)
333
PSLA SECTION HEADING OPB
Schedule 5 - 10 No equivalent: editorial
advice
Schedule 6 Transitional provisions
Part 1 Basic provisions
Schedule 6 - 1 Not applicable
Schedule 6 - 2 Not applicable
Schedule 6 - 3 Not applicable
Schedule 6 - 4 Not applicable
Schedule 6 - 5 Not applicable
Schedule 6 - 6 Not applicable
Schedule 6 - 7 Not applicable
Schedule 6 - 8 Not applicable
Part 2 Specific provisions
Schedule 6 - 9 Not applicable
Schedule 6 - 10 Not applicable
Schedule 6 - 11 Not applicable
Schedule 6 - 12 Not applicable
Schedule 6 - 13 Not applicable
Schedule 6 - 14 Not applicable
Schedule 6 - 15 Not applicable
Schedule 6 - 16 Not applicable
Schedule 6 - 17 Not applicable
Schedule 6 - 18 Not applicable
Schedule 6 - 19 Not applicable
Schedule 6 - 20 Not applicable
Schedule 6 - 21 Not applicable
Schedule 6 - 22 Not applicable
Schedule 6 - 23 Not applicable
Schedule 6 - 24 Not applicable
Schedule 6 - 25 Not applicable
Schedule 6 - 26 Not applicable
Schedule 6 - 27 Not applicable
Schedule 6 - 28 Not applicable
Schedule 6 - 29 Not applicable
Schedule 6 - 30 Not applicable
Schedule 6 - 31 Not applicable
Schedule 6 - 32 Not applicable
Schedule 6 - 33 Not applicable
Schedule 6 - 34 Not applicable
Schedule 6 - 35 Not applicable
Schedule 6 - 36 150(3) and (4)
Schedule 6 - 37 Not applicable
Schedule 6 - 38 Not applicable
Schedule 6 - 39 Not applicable
Schedule 6 - 40 Not applicable
Schedule 6 - 41 Not applicable
Schedule 6 - 42 Not applicable
334