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Petroleum (Submerged Lands) Amendment Bill 2004
Petroleum (Submerged Lands)
Amendment Bill 2004
Explanatory Notes
General Outline
Short Title
The short title of the Bill is the Petroleum (Submerged Lands) Amendment
Bill 2004.
Policy Objectives of the Legislation
The purpose of the Bill is to:
· provide that cross-references to State laws remain valid, when the
Offshore Petroleum Act (Cwlth) is enacted; and
· implement the legislative scheme to confer powers and functions on
National Offshore Petroleum Safety Authority (NOPSA) which was
established by the Petroleum (Submerged Lands) Amendment Act
2003 (Cwlth).
Reasons for the Bill
The Commonwealth is rewriting the Petroleum (Submerged Lands) Act
1967. The name of the Commonwealth Act will be changed to the
Offshore Petroleum Act. Legislative action is required by the State in
advance of commencement of the main provisions of the rewritten
Commonwealth Act to ensure that cross-references to State laws remain
valid.
The Petroleum (Submerged Lands) Amendment Act 2003 (Cwlth) received
Royal Assent in December 2003. The Act establishes the NOPSA to
regulate safety in Commonwealth waters and State and Northern Territory
coastal waters. NOPSA will deliver a uniform national safety regulatory
regime for Australia's offshore petroleum industry and will reduce the
regulatory burden faced by industry participants. Amendments are
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Petroleum (Submerged Lands) Amendment Bill 2004
required to the State Petroleum (Submerged Lands) Act 1982 to confer
powers and functions on NOPSA.
The amendments to the State legislation are required to be passed by
Parliament and have received Royal Assent by 31 December 2004 as
NOPSA commences operation on 1 January 2005.
Achieving the Objectives
The objectives will be achieved by:
· delivering a uniform national safety regulatory regime for Australia's
offshore petroleum industry that will reduce the regulatory burden
faced by industry participants.
Administrative costs
No additional administrative costs will result from these amendments.
Fundamental Legislation Principles
In August 2001, with the support of the industry and the work force, the
Commonwealth Department of Industry Science and Resources prepared a
report on offshore safety. The report found that the current system of
regulation was inadequate with unclear limitations, overlapping acts and
inconsistent application between Commonwealth and State jurisdictions.
The Commonwealth has responded to the report by initiating the creation
of a National Offshore Petroleum Safety Authority to regulate occupational
health and safety matters on offshore petroleum facilities in both
Commonwealth and State waters. The Commonwealth has already passed
legislation to enable the authority to undertake its regulatory activities in
Commonwealth waters and to provide the safety authority with the ability
to fully recover the cost of its operations through industry fees and levies.
All the States are party to the Offshore Constitutional Settlement with the
Commonwealth which supports consistent offshore regulation. This
obligation requires Queensland to enact legislation to mirror the legislative
changes made by the Commonwealth to enable the safety authority to carry
out its occupational health and safety role in State waters. It will mean that
State laws which currently regulate occupational health and safety (OHS)
matters on offshore facilities will be disapplied and a new Schedule 3
inserted into the Queensland Act which provides the OHS regime to apply
in State waters.
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Petroleum (Submerged Lands) Amendment Bill 2004
Schedule 3 of the draft Bill outlines the duties that are to be carried out by
various people with responsibilities on an offshore facility, including the
operator of a facility and employers of workers. It also extends to the
manufacturers and suppliers of plant and substances to be used on the
offshore facility to ensure that when properly used it is safe and without
risk to the health and safety of the workers.
Currently there are no similar sections and exemption from liability in the
Queensland Act. The new clauses have been included to reflect similar
requirements applying in the Commonwealth Petroleum (Submerged
Lands) Act 1967. Inclusion of these provisions is consistent with the
Offshore Constitutional Settlement between the Commonwealth and the
States to provide for consistent offshore regulation. It will also enable the
operators-employers of offshore facilities to choose to carry out their
functions in good faith without being subject to possible legal action.
The Bill contains a number of clauses that may be considered to breach
fundamental legislative principles.
Clause 12 of the Bill inserts a proposed new section 14A into the principal
Act, which will insert in the section a list of the Acts currently known to
require disapplication, provide that a regulation may prescribe any other
law of the State relating to occupational health and safety that is to be
disapplied in the future and provides that the regulation mentioned in
paragraph (b) expires 1 year after its commencement.
Clause 151R provides that the safety authority, the CEO, an OHS inspector
and a person acting under the direction or authority of NOPSA is excluded
from liability for the performance of an OHS function carried out in good
faith. This exemption from liability does not currently exist in the
Queensland Petroleum (Submerged Lands) Act 1982 but reflects a similar
exemption conferred by the Commonwealth Petroleum (Submerged Lands)
Act 1967. Inclusion of this provision is consistent with the Offshore
Constitutional Settlement between the Commonwealth and the States to
provide for consistent offshore regulation. It will also enable the safety
authority to carry out their functions without constraint from possible legal
action in both Commonwealth and State waters, particularly when
incidents occur on offshore facilities that require immediate action.
Clauses 34, 39 and 84 provide for immunity from civil proceedings and
Clause 76 provides immunity from civil and criminal proceedings for
certain persons. It is not considered appropriate that an individual be made
personally liable as a consequence of that individual carrying out his or her
responsibilities under the legislation. The clauses prevent civil liability
from being attached to the individual. The proposed immunity under these
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Petroleum (Submerged Lands) Amendment Bill 2004
clauses does not extend to a person who has been negligent, even though
the person may have acted in good faith.
Clauses 45-47 provide inspectors with power of entry. Under clause 45 an
inspector may, without consent or a warrant, enter a place of business to
which this Bill relates. A power of entry to a place of business when the
matter concerns occupational health and safety is consistent with other
modern safety legislation. The entry by consent option is overwhelmingly
used in practice as inspectors entering premises only do so when
specifically invited to enter by the owner/occupier. It is logical and
sensible that this option remain. The entry onto business premises during
working hours without invitation is an essential part of an inspector's work,
as an "unannounced" inspection can often detect a breach which would
otherwise be hidden.
Clause 63 makes it an offence for a prescribed person (prescribed person
means any of the following persons -- (a) the operator of a facility; (b) the
person in charge of operations at a workplace in relation to a facility; (c) a
member of the workforce at a facility; (d) a person representing a person
mentioned in paragraph (a) or (b)) to fail to provide a document or answer a
question to an OHS inspector unless the person has a reasonable excuse.
The provision specifies that non-compliance on the basis of a tendency to
incriminate the person is not a reasonable excuse. This provision may be
regarded as compromising the person's protection against self-
incrimination. An OHS inspector's power to require a person to produce a
document or make a document available for inspection is limited to
documents connected with the conduct of an inspection. Given the limited
extent of this provision and the importance of such documents in achieving
the objectives of the legislation, it is reasonable to require a person to
comply with the requirement even if to do so might tend to incriminate the
person. The same justification is relied upon with regard to the
requirement for a person to answer a question of an OHS inspector.
Clause 80 provides for an offence of victimisation in relation to an
employer who takes detrimental action against an employee because of
particular actions of the employee relating to occupational health and
safety. Subsection (3) reverses the onus of proof by providing that, if all
other elements of the offence have been proved, the defendant has the onus
of establishing that the action was not taken because of the employee's
occupational health and safety action. It is considered that the reversal is
justified on the grounds that the information the defendant is required to
prove is peculiarly within the defendant's knowledge.
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Petroleum (Submerged Lands) Amendment Bill 2004
Clause 83 provides that an act or omission by a person's representative,
relating to an offence against the Bill, is taken to have been done by the
person, if the representative was acting within the scope of the
representative's authority. In these circumstances, the person will have
been taken to have committed the relevant offence unless the person can
prove that the person could not, by the exercise of reasonable diligence,
have prevented the act or omission. This is reasonable as a person should
be required to oversee the conduct of his or her representatives and, in
doing so, make reasonable efforts to ensure that his or her employees or
agents comply with the requirements of the legislation.
Consultation
The Commonwealth has consulted extensively with the States and Territory
in the rewriting of the Commonwealth Act and in relation to the proposed
amendments. The Commonwealth has consulted the Australian Petroleum
Production and Exploration Association (APPEA) and the relevant Unions.
The Department of Natural Resources, Mines and Energy (NRM&E) has
consulted with all State Government Agencies with regard to the proposed
amendments and the possible impact on other State legislation.
The States, Territory, APPEA and Unions all support the establishment of
NOPSA. All Government Departments support the proposed amendments.
Notes on Provisions
1 Short title
Clause 1 sets out the short title of the Act as the Petroleum (Submerged
Lands) Amendment Act 2004.
3 Act Amended
Clause 3 amends the Petroleum (Submerged Lands) Act 1982.
2 Commencement
Clause 2 provides that the Act will commence on 1 January 2005.
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Petroleum (Submerged Lands) Amendment Bill 2004
4 Amendment of s 4 (Definitions)
Clause 4 makes consequential amendments to definitions in the Principal
Act.
5 Amendment of s 5 (Effect of territorial sea baseline changes
on pipeline licence)
Clause 5 amends the references in s.5(1)(c)(ii) from "adjacent area" to
"Commonwealth adjacent area". It also omits the footnote in the
subsection. Clause 4 also changes the footnote, deleting specific references
to s.5AAA(3).
6 Amendment of pt 1, div 2, hdg (Administration of the
Commonwealth adjacent area)
Clause 6 inserts "for Queensland" in the heading of pt 1, div 2.
7 Replacement of s 9 (Commonwealth adjacent area)
Clause 7 amends the definition of the Act, as the rewritten Commonwealth
Act will be called the Offshore Petroleum Act.
8 Amendment of s 10 (Minister as member of Joint Authority)
Clause 8 provides that the Minister may exercise any power and perform
any function authorised or required by a Commonwealth Act.
9 Amendment of s 11 (Minister as Designated Authority)
Clause 9 authorises the Minister to perform the functions and exercise the
powers that a Commonwealth Act invests in the designated authority in
respect of the Commonwealth adjacent area for Queensland.
10 Amendment of s 12 (Delegations under Commonwealth Act)
Clause 10 authorises the Minister to delegate a power conferred by a
Commonwealth Act about the adjacent area for Queensland upon the
designated authority to a public servant.
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Petroleum (Submerged Lands) Amendment Bill 2004
11 Amendment of s 13 (Public servants performing functions
under Commonwealth Act)
Clause 11 authorises a public servant to perform functions under a
Commonwealth Act in respect of the adjacent area for Queensland.
12 Insertion of new s 14A
Clause 12 of the Bill inserts a proposed new section 14A into the principal
Act, which will insert in the section a list of the Acts currently known to
require disapplication, provide that a regulation may prescribe any other
law of the State relating to occupational health and safety that is to be
disapplied in the future and provides that the regulation mentioned in
paragraph (b) expires 1 year after its commencement.
13 Amendment of s 15 (Jurisdiction of State limits)
Clause 13 inserts the word `courts' in the heading.
14 Amendment of s 59 ("Unit development")
Clause 14 substitutes references to "adjacent area" with "Commonwealth
adjacent area".
15 Amendment of s 64 (Application for pipeline licence)
Clause 15 clarifies that the licence area relates to the area of a licence
granted under the Commonwealth Act not the State Act.
16 Amendment of s 65 (Grant or refusal of pipeline licence)
Clause 16 clarifies that the licence area relates to the area of a licence
granted under the Commonwealth Act not the State Act.
17 Insertion of new s 124A
Clause 17 inserts a new section 124A in the Principal Act regarding
interfering with offshore petroleum installation or operation.
18 Insertion of new pt 3A
Clause 18 inserts a new part 3A in the Principal Act conferring powers and
functions on the National Offshore Petroleum Safety Authority.
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Petroleum (Submerged Lands) Amendment Bill 2004
Part 3A National Offshore Petroleum Safety
Authority
Division 1 Preliminary
151A Definitions for pt 3A
Clause 151A defines terms used in part 3A that are relevant to the functions
of the Safety Authority.
151B Occupational health and safety
Clause 151B provides that schedule 3 has effect. Schedule 3 sets out
requirements regarding OHS on offshore petroleum facilities.
151C Listed OHS laws
Clause 151C lists the OHS laws as defined for the purposes of the Principal
Act.
151D Regulation-making power - occupational health and
safety
Clause 151D provides for the making of regulations for the purposes of
OHS of persons in offshore petroleum facilities.
Division 2 Functions and powers of the Safety
Authority
151E Safety Authority's functions
Clause 151E confers general functions on the Safety Authority that are
concerned with the OHS of persons engaged in offshore petroleum
operations. Offshore petroleum operations include offshore petroleum-
related diving activities and other offshore petroleum activities that take
place at an offshore petroleum facility, but do not include seismic survey
vessels and operations carried out on those vessels, except for diving
activities.
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Petroleum (Submerged Lands) Amendment Bill 2004
The functions include promoting OHS of persons, development and
implementation of effective monitoring and enforcement strategies,
investigations of accidents and occurrences affecting OHS, and reporting.
151F Safety Authority's ordinary powers
Clause 151F 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. These include power to acquire, hold and
dispose of real property, enter contracts, lease and occupy real property,
conduct research, hold and apply for patents and to do anything incidental
to its functions.
151G Judicial notice of seal
Clause 151G provides for the standard provisions with respect to the seal of
the Safety Authority.
Division 3 Safety Authority Board
Division 3 provides for the functions and powers of the National Offshore
Petroleum Safety Authority Board, and its decisions.
151H Functions of the Board
Clause 151H confers functions on the Board in respect of advising and
making recommendations to various persons and bodies. These include the
Chief Executive Officer ("CEO") of the Safety Authority, and the State and
Commonwealth Ministers with regards to policy or strategic matters
relating to OHS and performance of the Safety Authority.
151I Powers of the Board
Clause 151I confers powers on the Board by reference to its functions as
set out in section 151H. The Board has power to do all things necessary or
convenient for, or in connection with, the performance of its functions.
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Petroleum (Submerged Lands) Amendment Bill 2004
151J Validity of decisions
Clause 151J provides that the functions and powers set out in sections
151H and 151I respectively are not affected where there is a vacancy or
vacancies in the membership of the Board.
Division 4 Chief executive officer and staff of
the Safety Authority
151K CEO acts for Safety Authority
Clause 151K 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.
151L Working with the Board
Clause 151L establishes the working relationship between the CEO and the
Board.
151M Delegation by CEO
Clause 151M permits public service and public authority employees and
officers to accept delegations from the CEO under the Commonwealth Act.
Persons exercising powers under a delegation must do so in accordance
with any directions of the CEO.
151N Secondments to Safety Authority
Clause 151N permits public service and public authority employees and
officers to assist the Safety Authority in connection with the performance
of any of its functions or the exercise of any of its powers.
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Petroleum (Submerged Lands) Amendment Bill 2004
Division 5 Other Safety Authority provisions
151O Minister may require the Safety Authority to prepare
reports or give information
Clause 151O sets out the powers of the Minister to require the Safety
Authority to prepare reports or documents on specified matters relating to
the performance of the Safety Authority's function or exercise of its
powers. Copies of the report of documents are to be given to the Minister,
the Commonwealth Minister and each interstate Minister.
151P Directions to Safety Authority
Clause 151P provides that the Minister may request that the
Commonwealth Minister give a direction to the Safety Authority. The
Commonwealth Minister must make a decision regarding the request
within 30 days of receipt. If s/he refuses to grant the request then s/he must
provide the Minister with reasons. A direction given by the
Commonwealth Minister must be complied with by the Safety Authority.
151Q Reviews of operations of Safety Authority
Clause 151Q provides that the 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 Authority on 1 January 2005. This
review relates to the Safety Authority's functions in coastal waters (called
the "adjacent area" in the Principal Act). The review can be conducted in
conjunction with similar reviews under corresponding laws.
Clause 151Q(6) provides that, without limiting the matters to be covered
by a review, the review must include an assessment of the effectiveness of
the Authority in improving the OHS of persons engaged in offshore
petroleum operations.
Clause 151Q(7) 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 Minister.
151R Liability for acts and omissions
Clause 151R applies to the Safety Authority, the CEO, an OHS inspector or
a person acting under direction of Safety Authority or CEO. It provides
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Petroleum (Submerged Lands) Amendment Bill 2004
that they are not personally liable for acts or omissions done in good faith
for the performance of a function under a listed OHS law.
19 Insertion of new sch 3
Clause 19 inserts a new schedule 3 into the Principal Act regarding OHS on
offshore petroleum facilities.
Schedule 3 Occupational health and safety
Part 1 Preliminary
1 Objects
Clause 1 sets out the objects of schedule 3.
The objects relate to the securing of the OHS of all members of the
workforce at a facility, whether they work at the facility under a contract of
employment with any person or under some other contractual arrangement
and regardless of whether they have any contract at all with a person who
owes a duty of care.
It also provides that the objects are not confined to members of the
workforce while they are working but are also intended to protect the
workforce during mealtimes, recreation and periods of rest offshore.
2 Definitions for sch 3
Clause 2 provides definitions for the purposes of schedule 3.
3 Facilities
Clause 3 defines the vessels and structures located in State waters that are
considered to be facilities for the purpose of schedule 3.
4 Operator must ensure presence of operator's representative
Clause 4 provides that an operator must ensure at all times the presence of
a representative of the operator, who has the day-to-day management and
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Petroleum (Submerged Lands) Amendment Bill 2004
control of the operations at the facility, and display their name prominently
at the facility.
5 Health and safety of persons using an accommodation
facility
Clause 5 provides 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.
6 Contractor
Clause 6 defines contractor for the purposes of schedule 3.
Part 2 Occupational health and safety
Division 1 Duties relating to occupational health and
safety
7 Duties of operator
Clause 7 establishes the duties of care that are owed by the operator of a
facility to the members of the workforce.
The primary duty of the operator 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.
8 Duties of persons in control of parts of facility or particular
work
Clause 8 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 may be 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. They do not include requirements to provide medical and first
aid facilities, or develop or monitor health and safety policy.
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Petroleum (Submerged Lands) Amendment Bill 2004
9 Duties of employers
Clause 9 establishes duties of employers to employees and to contractors.
The employer duties are to take all reasonable practicable steps to protect
the health and safety of employees.
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, and ensures that there are
no gaps in the coverage of the duties of care, so that, when enforcement
action is required, it can be taken against the most appropriate person in the
circumstances.
10 Duties of manufacturers in relation to plant and substances
Clause 10 provides for the duties of care of manufacturers (including
importers and overseas manufacturers with no place of business in
Australia) in relation to plant and substances reasonably expected to be
used by members of the workforce at a facility. This provision does not
affect other State laws relating to goods.
11 Duties of suppliers of facilities, plant and substances
Clause 11 provides for the duties of care of suppliers of plant and
substances, to all persons at all times they are at an offshore petroleum
facility. This provision also extends to an ostensible supplier in the
business of financing the acquisition or use of goods by others.
12 Duties of persons erecting facility or installing plant
Clause 12 provides for the duties of care of persons erecting or installing
plant, to all persons at all times they are at an offshore petroleum facility.
13 Duties of persons in relation to occupational health and
safety
Clause 13 provides the duties of care of any person at an offshore
petroleum facility in relation to OHS.
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Petroleum (Submerged Lands) Amendment Bill 2004
14 Reliance on information supplied or results of research
Clause 14 provides for persons in complying with their duties, may rely on
information provided by others, or on the results of testing and research
conducted by others.
Division 2 Regulations relating to occupational health
and safety
15 Regulations relating to occupational health and safety
Clause 15 provides that regulations may be made that relate to any matter
affecting or likely to affect OHS of any class of person at a facility and lists
those matters.
Part 3 Workplace arrangements
Division 1 Designated work groups
Subdivision 1 Establishment of designated work
groups
16 Establishment of designated work groups by request
Clause 16 provides that the operator of a facility has the responsibility to
organise a designated work group if a request is made by a member of the
workforce or workforce representative.
The operator on receiving such a request must within 14 days enter into
consultation with members of the workforce, workforce representatives, or
each employer (if any) of members of the workforce.
17 Establishment of designated work groups at initiative of
operator
Clause 17 provides that the operator of a facility may initiate the
establishment of a designated work group.
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Petroleum (Submerged Lands) Amendment Bill 2004
Subdivision 2 Variation of designated work groups
18 Variation of designated work groups by request
Clause 18 provides that the operator of a facility has the responsibility to
vary an established designated work group if a request for variation is
made.
19 Variation of designated work groups at initiative of operator
Clause 19 provides that the operator of a facility may initiate the variation
of an established designated work group.
Subdivision 3 General
20 Referral of disagreement to reviewing authority
Clause 20 provides that, if a disagreement arises between the parties in the
course of consultation under clause 16, 17, 18 or 19, either party may refer
the disagreement to the reviewing authority for resolution. The reviewing
authority is the Australian Industrial Relations Commission.
21 Manner of grouping members of the workforce
Clause 21 provides for the manner in which members of the workforce may
be grouped and the issues that the parties to the consultation must have
regard.
Division 2 Health and safety representatives
Subdivision 1 Selection of health and safety
representatives
22 Selection of health and safety representatives
Clause 22 provides for the selection of a Health and Safety Representatives
("HSRs"). HSRs are the persons selected to represent the members of each
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Petroleum (Submerged Lands) Amendment Bill 2004
designated work group during consultations with management on OHS
issues.
23 Election of health and safety representatives
Clause 23 relates to the election of HSRs if there is a vacancy for a HSR,
and no person has within a reasonable time been unanimously selected by
the group. The operator is required to invite nominations from all group
members. If the operator fails to invite such nominations in a reasonable
time, the Safety Authority may direct the operator to do so. No person can
be nominated if disqualified under clause 29.
If there is only one candidate, that person is taken to be elected. If more
than one candidate is nominated, the operator must conduct or arrange for
the conduct of an election. All members of the workforce in the designated
work group are entitled to vote. The operator must comply with any
directions of the Safety Authority when conducting the election.
24 List of health and safety representatives
Clause 24 requires the operator to prepare and keep up to date a list of all
HSRs, and to make that list available to the members of the workforce and
to Safety Authority inspectors (who are called "OHS inspectors" in the
Act).
25 Members of designated work group must be notified of
selection etc of health and safety representatives
Clause 25 requires the operator to notify members of the workforce of a
vacancy for a HSR within a reasonable time of that vacancy arising, and to
notify those members of the name of the person selected within a
reasonable time of the selection being made.
26 Term of office
Clause 26 provides that a HSR holds office for a term agreed to by the
parties or for 2 years if there is no agreement.
27 Training of health and safety representatives
Clause 27 provides that a HSR must undertake a Safety Authority
accreditation of HSR training courses. The operator and employer are
required to grant the HSR leave to attend an accredited course.
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Petroleum (Submerged Lands) Amendment Bill 2004
28 Resignation etc of health and safety representatives
Clause 28 provides the processes to be followed for the formal resignation
of HSRs. It also sets out the requirements for notifying relevant persons of
such resignations.
29 Disqualification of health and safety representatives
Clause 29 provides the process for disqualification of a HSR.
30 Deputy health and safety representatives
Clause 30 allows for the selection of a deputy HSR by the designated work
group who exercises the powers of the HSR if the HSR ceases to be the
HSR or is unable.
Subdivision 2 Powers of health and safety
representatives
31 Powers of health and safety representatives
Clause 31 sets out the powers of a HSR. These powers include: to inspect
the workplace, to request an inspection by an OHS inspector, to accompany
that inspector during such an inspection, to represent the group members in
consultations with management, to investigate complaints by group
members about OHS, to be present at any interview of a group member by
an inspector or management about OHS issues, to obtain access to relevant
information, and to issue provisional improvement notices under clause 35.
32 Assistance by consultant
Clause 32 provides that in exercising these powers, HSRs may be assisted
by consultants, if that is agreed by either the Safety Authority or
management.
33 Information
Clause 33 provides that neither the HSR or consultant is entitled to have
access to information that is subject to legal professional privilege, or that
is of a confidential medical nature unless they have the person's consent or
the person cannot be identified by that information.
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Petroleum (Submerged Lands) Amendment Bill 2004
34 Obligations and liabilities of health and safety
representatives
Clause 34 provides that HSRs are not obliged to exercise their powers and
protects them from liability. Clause 34 provides for immunity from civil
proceedings. It is not considered appropriate that an individual be made
personally liable as a consequence of that individual carrying out his or her
responsibilities under the legislation. The clause prevents civil liability
from being attached to the individual. The proposed immunity under this
clause does not extend to a person who has been negligent, even though the
person may have acted in good faith.
35 Provisional improvement notices
Clause 35 provides that HSRs have power to issue provisional
improvement notices ("PINs"), to the persons responsible for relevant work
activities that the HSR believes that there is a contravention of the OHS
laws. The PIN may also indicate an action if the HSR believes the
responsible person must take to rectify the apparent contravention. HSRs
may only issue PINs after having consulted with the responsible person
about the apparent contravention, and if there is a failure to reach
agreement within a reasonable time.
36 Effect of provisional improvement notice
Clause 36 provides that if a HSR issues a PIN to any person, that person
may request an inspection by an OHS inspector. Upon that request being
made the PIN is suspended, but the inspector may subsequently confirm,
vary or cancel the PIN, and make any other decision or exercise any other
powers considered necessary. The responsible person is required to ensure
that the notice (as confirmed or varied by the inspector) is complied with,
to the extent that the responsible person has control.
Subdivision 3 Duties of the operator and other employers
in relation to health and safety representatives
37 Duties of the operator and other employers in relation to
health and safety representatives
Clause 37 provides that the operator is required to consult with a HSR (if
requested) about any workplace changes that may affect the health and
safety of the workforce, and (if there is no health and safety committee)
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Petroleum (Submerged Lands) Amendment Bill 2004
about the implementation and review of measures to control health and
safety. They also require the operator to allow the HSR to make
inspections under clause 31.
Division 3 Health and safety committees
38 Health and safety committees
Clause 38 establishes when a health and safety committee must be
established, such as if the workforce exceeds 50 in total, there are
designated work groups, and a request is made. The clause also states that
the composition and procedures of the committee are to be agreed by
appropriate consultation, that the committee must meet at least every 3
months, and that minutes of meetings must be retained for 3 years.
39 Functions of health and safety committees
Clause 39 defines the functions of health and safety committees which
include providing assistance to the operator of a facility to review, develop
and implement health and safety measures for the workforce. Clause 39
provides for immunity from civil proceedings. It is not considered
appropriate that an individual be made personally liable as a consequence
of that individual carrying out his or her responsibilities under the
legislation. The clause prevents civil liability from being attached to the
individual. The proposed immunity under this clause does not extend to a
person who has been negligent, even though the person may have acted in
good faith.
40 Duties of the operator and other employers in relation to
health and safety committees
Clause 40 makes provisions to ensure that the health and safety committee
functions effectively, for example by requiring that relevant information be
provided to the committee, and by requiring that persons are given time off
work activities to attend committee meetings.
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Petroleum (Submerged Lands) Amendment Bill 2004
Division 4 Emergency procedures
41 Action by health and safety representatives
Clause 41 deals with the emergency powers of a HSR.
It provides that if a HSR has reasonable cause to believe that there is an
imminent and serious danger to the health or safety of any person at or near
a facility unless a group member ceases to perform particular work, the
HSR must either inform a supervisor or, if no supervisor can be contacted
immediately, must direct that the work cease and inform a supervisor as
soon as practicable. The supervisor must then take such action as he or she
thinks appropriate to remove the danger.
It also provides that if the HSR has reasonable cause to believe that there
continues to be an imminent and serious danger to health or safety unless
the work ceases, despite any action taken by the supervisor, the HSR must
direct that the work cease and, as soon as practicable, inform the supervisor
that the direction has been given.
42 Directions to perform other work
Clause 42 provides that if an employee has ceased to perform work in
accordance with a direction of a HSR or OHS inspector under clause 41,
the employer may direct the employee to do suitable alternative work.
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Petroleum (Submerged Lands) Amendment Bill 2004
Part 4 Inspections
Division 1 Powers, functions and duties of OHS
inspectors
43 Powers, functions and duties of OHS inspectors
Clause 43 establishes that OHS inspectors have the powers, functions and
duties conferred or imposed by a listed OHS law. The Safety Authority
may issue direction and restrictions on the exercise of the OHS inspector's
powers.
Division 2 Inspections
44 Inspections
Clause 44 provides that an OHS inspector may conduct an inspection at
any time or as directed by the Safety Authority, to determine that a listed
OHS law is being complied with, a listed OHS law has been contravened or
concerning an accident or dangerous occurrence at a facility.
Division 3 Powers of OHS inspectors in relation to the
conduct of inspections
Subdivision 1 Power of entry
45 Power of entry - general
Clause 45 provides inspectors with power of entry. Under clause 45 an
inspector may, without consent or a warrant, enter a place of business to
which this Bill relates. A power of entry to a place of business when the
matter concerns OHS is consistent with other modern safety legislation.
The entry by consent option is overwhelmingly used in practice as
inspectors entering premises only do so when specifically invited to enter
by the owner/occupier. It is logical and sensible that this option remains.
The entry onto business premises during working hours without invitation
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is an essential part of an inspector's work, as an "unannounced" inspection
can often detect a breach which would otherwise be hidden.
46 Inspector's additional entry power for facility
Clause 46 provides that inspectors have the essential right of entry at any
time, so that they may properly monitor operating plants. This clause
specifically excludes any residential premises on the operating plant from
this right of entry.
47 Inspector's additional entry power for particular regulated
business premises
Clause 47 provides OHS inspectors with powers of entry and search at
"regulated business premises" that are not facilities. The search powers
under this clause relate only to documents that relate to a facility or facility
operations that are the subject of an inspection. The powers therefore
relate only to the responsibilities of the Safety Authority in relation to
health and safety of the workforce at a facility.
"Regulated business premises" are defined in clause 3 to mean premises
that are occupied by a person who is the operator of a facility and that are
used or proposed to be used, wholly or principally in connection with
offshore petroleum operations. The intent is to enable inspectors to enter
and search operators' premises used in relation to offshore operations.
These may be, for example, premises used for remote operation of
facilities, or offices used for management of operations, supply bases,
heliports, etc, where there are documents related to an inspection.
Subdivision 2 Procedure for entry
48 Entry with consent
Clause 48 provides for when an inspector or authorised officer seeks
consent to enter a place. The inspector or officer is required to tell the
occupier the purpose of the entry and give the occupier the right of refusal.
The inspector or officer may ask the occupier to sign a consent form, a
copy of which must be given to the occupier.
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49 Application for warrant
Clause 49 provides for entry by warrant and details the method by which a
warrant is obtained.
50 Issue of warrant
Clause 50 provides for the magistrate to issue the warrant and gives the
details of the contents of the warrant.
51 Application by electronic communication and duplicate
warrant
Clause 51 provides various methods by which an application for a warrant
may be made including telephone, facsimile or other electronic
communication and provides for various mechanisms of issue.
52 Defect in relation to warrant
Clause 52 provides that insubstantial defects in a warrant do not invalidate
the warrant.
53 Warrants - procedure before entry
Clause 53 provides that an inspector must, before entering a place under a
warrant, provide identification, give the occupier a copy of the warrant and
give the person the opportunity to allow entry without force.
54 Entry of facility
Clause 54 provides for an inspector to enter a facility under clause 46. On
entering the facility, the OHS inspector must take reasonable steps to notify
the operator's representative, or a HSR for a designated work group, the
purpose of entering the facility.
55 Entry of particular regulated business premises
Clause 55 provides OHS inspectors with powers of entry at "regulated
business premises" other than a facility under clause 47. On entering the
facility, the OHS inspector must take reasonable steps to notify the
operator's representative, or a HSR for a designated work group, the
purpose of entering the facility. If requested by the occupier, the OHS
inspector must produce the OHS inspector's identity card; a copy of the
Safety Authority's written direction, if any, to conduct the inspection; and a
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copy of the restrictions, if any, imposed on the powers of the OHS
inspector under clause 43(3).
Subdivision 3 Powers after entering a place
56 Application of sdiv 3
Clause 56 provides for this subdivision to apply only after entry has been
effected and, where consent has been requested, that consent has been
given.
57 General powers - facility
Clause 57 provides for powers after entry that are necessary to investigate
or inspect the situation for which entry was sought. They include the
ability to test, measure, copy, photograph anything or take a thing or a
sample away for testing. The powers also provide for the inspector or
authorised officer to bring onto the site other persons or equipment
necessary to exercise the power.
58 General powers - other places
Clause 58 provides OHS inspectors with the powers to search a place that
is not a facility and may inspect, take extracts from, or make copiers of, any
documents at the premises that relate to a facility that is, or to facility
operations that are, the subject of the inspection.
59 Obstructing or hindering OHS inspector
Clause 59 provides that it is an offence to obstruct or hinder an OHS
inspector.
Subdivision 4 Other powers
60 Definition of sdiv 4
Clause 60 defines a "prescribed person".
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61 Power to require assistance and information
Clause 61 provides that an OHS inspector has the power to require
reasonable assistance and information in the conduct of an inspection.
62 Power to require the answering of questions and the
production of documents or articles
Clause 62 provides that an OHS inspector has the power to require a person
being questioned in relation to the conduct of an inspection to answer
questions and produce documents or articles, if the inspector believe
reasonably necessary to do so in connection with the conduct of the
inspection.
63 Privilege against self-incrimination
Clause 63 provides for the privilege against self-incrimination in answering
questions or producing document etc during the conduct of an
investigation. Clause 63 makes it an offence for a prescribed person
(prescribed person means any of the following persons -- (a) the operator
of a facility; (b) the person in charge of operations at a workplace in
relation to a facility; (c) a member of the workforce at a facility; (d) a
person representing a person mentioned in paragraph (a) or (b)) to fail to
provide a document or answer a question to an OHS inspector unless the
person has a reasonable excuse. The provision specifies that non-
compliance on the basis of a tendency to incriminate the person is not a
reasonable excuse. This provision may be regarded as compromising the
person's protection against self-incrimination. An OHS inspector's power
to require a person to produce a document or make a document available
for inspection is limited to documents connected with the conduct of an
inspection. Given the limited extent of this provision and the importance of
such documents in achieving the objectives of the legislation, it is
reasonable to require a person to comply with the requirement even if to do
so might tend to incriminate the person. The same justification is relied
upon with regard to the requirement for a person to answer a question of an
OHS inspector.
64 Power to take possession of plant, take samples of
substances etc
Clause 64 gives OHS inspectors the power to take possession of plant, to
take samples of substances, etc, for example as part of an investigation into
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an accident. The affected persons are to be notified when powers under
clause 64(1) are exercised.
65 Power to direct that workplace etc not be disturbed
Clause 65 provides that OHS inspectors have the power to issue notices
that direct that workplaces not be disturbed, in order to remove immediate
threats to health and safety, or to allow inspections or other examinations to
take place. The direction must be displayed in a prominent place in work
place and must specify the time required to remove the threat or carry out
an inspection, etc. The direction may be renewed.
66 Power to issue prohibition notices
Clause 66 provides that OHS inspectors have the power to issue notices
that prohibit specified activities.
The operator's representative at the facility must give a copy of the notice
to the HSR of each designated work group that is affected by the notice,
and to display a copy of the notice in a prominent place.
The OHS inspector is also required to give a copy of the notice to any
person (who is not the operator) who owns plant, substances, etc, affected
by the notice.
67 Compliance with prohibition notice
Clause 67 provides that operators must ensure that the prohibition notice
issued is complied with. The OHS inspector is to inform the operator if the
action taken by the operator to remove the threat to health and safety is not
adequate. The notice ceases to have effect once the inspector has informed
the operator that the inspector is satisfied with the action taken to remove
the threat.
68 Power to issue improvement notices
Clause 68 provides an OHS inspector with the power to issue an
improvement notice if s/he believes on reasonable grounds that a listed
OHS law is being or has been contravened.
69 Compliance with improvement notice
Clause 69 provides that a person issued with an improvement notice must
comply with it.
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70 Notices not to be tampered with or removed
Clause 70 provides that a displayed PIN, prohibition notice or
improvement notice must not be tampered with or removed without
reasonable excuse.
Division 4 Reports on inspections
71 Reports on inspections
Clause 71 requires an OHS inspector to prepare a written report for the
Safety Authority (including the inspector's conclusion, recommendation
and any other prescribed matters) as soon as practicable after conducting an
inspection. Clause 71(3) requires the Safety Authority to give a copy of the
report to the operator of the facility, to employees who carry out activities
to which the report relates, and to the owners of plant etc to which the
report relates. Clause 71(6) requires a copy of the report, and any related
Safety Authority comments, to be given to each health and safety
committee and (where there is no such committee) to the HSR of each
designated work group.
Division 5 Appeals
72 Appeals
Clause 72 provides for an appeal against a decision of an OHS inspector to
the reviewing authority, by an operator of a facility or any employer (other
than the operator) affected by the decision, a person to who a notice has
been issued under clause 35(3) or 68(1), a HSR, a workplace
representative, a member of the workforce or a person who owns any
workplace, plant, substance or thing to which a decision under clause 36,
67 or 68 relates.
73 Powers of reviewing authority on appeal
Clause 73 sets out the powers of the reviewing authority on an appeal.
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Petroleum (Submerged Lands) Amendment Bill 2004
Part 5 General
74 Notifying and reporting accidents and dangerous
occurrences
Clause 74 requires notification and reporting of accidents and dangerous
occurrences in relation to a facility as opposed to a workplace, and requires
the notification and report to be sent to the Safety Authority.
75 Records of accidents and dangerous occurrences to be kept
Clause 75 requires records of the accidents and dangerous occurrences
notified under clause 74 to be kept by the operator of the facility.
76 Codes of practice
Clause 76 provides for prescribed codes of practice to have the purpose of
providing practical guidance to operators and employers of members of the
workforce. Clause 76 provides immunity from civil and criminal
proceedings for certain persons. It is not considered appropriate that an
individual be made personally liable as a consequence of that individual
carrying out his or her responsibilities under the legislation. The clause
prevents civil liability from being attached to the individual. The proposed
immunity under this clause does not extend to a person who has been
negligent, even though the person may have acted in good faith.
77 Use of codes of practice in proceedings
Clause 77 provides that codes of practice can be used in proceedings for an
offence against a listed OHS law, if they were in effect at the time of the
alleged contravention.
78 Interference with equipment etc
Clause 78 makes it an offence to interfere with equipment or device
provided for the health and safety or welfare of the workforce at a facility.
79 Members of workforce not to be levied
Clause 79 makes it an offence for either the operator or an employer to levy
a member of the workforce in relation to health and safety matters.
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80 Victimisation
Clause 80 provides for an offence of victimisation in relation to an
employer who takes detrimental action against an employee because of
particular actions of the employee relating to occupational health and
safety. Subsection (3) reverses the onus of proof by providing that, if all
other elements of the offence have been proved, the defendant has the onus
of establishing that the action was not taken because of the employee's
occupational health and safety action. It is considered that the reversal is
justified on the grounds that the information the defendant is required to
prove is peculiarly within the defendant's knowledge.
81 Institution of prosecutions
Clause 81 provides that proceedings for an offence against a listed OHS
law may be instituted by the Safety Authority or an OHS inspector. A HSR
or a workplace representative may request the Safety Authority to institute
proceedings if a period of 6 months has elapsed since the relevant act or
omission occurred and the Safety Authority has not yet instituted
proceedings.
82 Role of Commonwealth DPP
Clause 82 allows the Commonwealth DPP to prosecute offences under the
listed OHS laws.
83 Conduct of directors, employees and agents
Clause 83 imputes the conduct of company officers and agents to the
company in relation to OHS matters. Clause 83 provides that an act or
omission by a person's representative, relating to an offence against the
Bill, is taken to have been done by the person, if the representative was
acting within the scope of the representative's authority. In these
circumstances, the person will have been taken to have committed the
relevant offence unless the person can prove that the person could not, by
the exercise of reasonable diligence, have prevented the act or omission.
This is reasonable as a person should be required to oversee the conduct of
his or her representatives and, in doing so, make reasonable efforts to
ensure that his or her employees or agents comply with the requirements of
the legislation.
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84 Act not to give rise to other liabilities etc
Clause 84 provides that schedule 3 provides for immunity from civil
proceedings. It is not considered appropriate that an individual be made
personally liable as a consequence of that individual carrying out his or her
responsibilities under the legislation. The clause prevents civil liability
from being attached to the individual. The proposed immunity under this
clause does not extend to a person who has been negligent, even though the
person may have acted in good faith.
85 Circumstances preventing compliance may be defence to
prosecution
Clause 85 provides that circumstances preventing compliance with a listed
OHS law may be defence to prosecution.
86 Approval of forms
Clause 86 provides that the CEO may approve forms for use under this Act.
87 Regulation making power - sch 3 generally
Clause 87 provides for regulation-making powers regarding OHS.
Schedule Minor amendments of the Petroleum
(Submerged Lands) Act 1982
Clauses 1 to 5 insert penalty units to provide for consistency with the
Penalties and Sentences Act 1992.
© State of Queensland 2004