Glossary

Key terms or phrases defined in legislation are italicised in this Digest.

Purpose of the Bill

The purpose of the Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Safety and Other Measures) Bill 2024 (the Bill) is to amend the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGS Act) to improve safety outcomes for Australia’s offshore resources sector workforce.

The Bill proposes to do this through:

• strengthening the role of Health and Safety Representatives (HSRs), through formal requirements for training, the ability to request review of safety management-related documents, and enabling HSRs to be members of Health and Safety Committees at a facility
• introducing revised protections for workers against discrimination
• introducing new titleholder duties, where the facility operator is a different corporate entity, to ensure the operator can carry out its duties under the OPGGS Act and Safety Regulations
• enabling NOPSEMA to monitor compliance with diving-related obligations on a vessel before and after it is a facility or associated offshore place
• introducing a vessel activity notification scheme.

The Explanatory Memorandum states that ‘[t]he majority of the proposed changes from the [Offshore Oil and Gas Safety Review] will be implemented through regulations under the OPGGS Act’.[1] The Safety Regulations are due to sunset on 1 April 2026, and the Explanatory Memorandum states ‘the remade Safety Regulations are themselves proposed to have a delayed commencement to enable industry and NOPSEMA time to updates [sic] systems and processes to align with the remade Safety Regulations’.[2]

The other measures in the Bill include:

• the insertion of proposed section 790E (at item 6 of Schedule 2) to allow for amendments to the OPGGS Act or regulations made under the OPGGS Act that are inconsistent with the Endorsed Program authorised by a strategic assessment under Part 10 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)
• enabling NOPSEMA to specify the timeframe for a person to comply with a remedial direction
• clarification of the meaning of the spatial extent of an eligible greenhouse gas storage formation.

Structure of the Bill

The Bill has 2 Schedules:

• Schedule 1—Safety measures has 3 parts:
  • Part 1—Main amendments amends the OPGGS Act, including Schedule 3, to:
    • introduce new definitions
    • introduce a new duty on titleholders in relation to unrelated operators
    • strengthen training requirements for health and safety representatives (HSRs)
    • allow HSRs to request a review of safety management-related documents and to be part of Health and Safety Committees
    • provide NOPSEMA with new inspection powers relating to dive vessels and dive operations, including the power to issue OHS notices
    • require notifications about dive-related accidents and dangerous occurrences
    • establish a vessel activity notification scheme and
    • strengthen the existing prohibition on discriminatory conduct.
  • Part 2—Consequential amendments makes consequential amendments to the Occupational Health and Safety (Maritime Industry) Act 1993 (OHS (Maritime Industry) Act) in relation to the definition of prescribed ship. The amendment ensures that the OHS (Maritime Industry) Act applies to dive vessels when they are no longer a facility or an offshore associated place covered by the OPGGS Act.
  • Part 3—Application and transitional provisions sets out application and transitional provisions, including in relation to requirements for health and safety representatives to complete initial and refresher training courses, and NOPSEMA inspectors’ inspection powers in relation to diving operations.
• Schedule 2—Other measures has 4 parts:
  • Part 1—Interaction with Commonwealth maritime legislation amends the Navigation Act 2012 to allow the Australian Maritime Safety Authority (AMSA) to, with the agreement of the CEO of NOPSEMA, make rules in relation to the application of Commonwealth maritime legislation to facilities regulated under the OPGGS Act.[3] It also makes corresponding consequential amendments to the OPGGS Act.
  • Part 2—Approval under Environment Protection and Biodiversity Conservation Act 1999 inserts proposed section 790E into the OPGGS Act to preserve the effect of the Offshore Petroleum and Greenhouse Gas Storage approvals made in accordance with the Endorsed Program under the EPBC Act, even where amendments to the OPGGS Act or prescribed regulations (such as the Environment Regulations) are inconsistent with aspects of the Endorsed Program.
  • Part 3—Remedial Directions repeals and amends certain provisions in Part 6.4—Restoration of the Environment of the OPGGS Act to enable NOPSEMA or the Commonwealth Minister to specify a date by which a person must comply with a remedial direction. This enables NOPSEMA or the Commonwealth Minister to specify a date, being a reasonable period, in the direction as opposed to the existing applicable date, being the expiry of the title or date on which the title could be terminated.
  • Part 4—Minor and technical amendments repeals and amends various provisions of the OPGGS Act to, among other things, specify the spatial extent of an eligible greenhouse gas storage formation. It also contains application provisions.

Commencement

The Bill provides for different Schedules or Parts of Schedules to commence at different times.

Table 1 Commencement of provisions

Background

Regulatory framework for offshore petroleum

The regulation of offshore petroleum and greenhouse gas storage in Australian waters is divided between the Commonwealth government and state and territory governments. According to the Offshore Constitutional Settlement (OCS), as agreed between the Commonwealth and states in 1979, the states have responsibility for activities in the zone of ‘coastal waters’ (as far as three nautical miles seaward of the territorial sea baseline). The Commonwealth has responsibility for offshore areas (those areas beyond coastal waters to the outer limits of the continental shelf).[4]

Offshore petroleum exploration and production, and the storage of greenhouse gas in the seabed in offshore areas, are regulated under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGS Act). The object of the Act is to:

…provide an effective regulatory framework for:

petroleum exploration and recovery; and

the injection and storage of greenhouse gas substances;

in offshore areas.[5]

The OPGGS Act regulates all aspects of offshore petroleum and greenhouse gas storage activities, from exploration to production and decommissioning in offshore areas. In brief, and focusing on offshore petroleum activities, the regulatory framework comprises:

• the establishment of Joint Authorities, comprising relevant Commonwealth and state or NT resources ministers, who make decisions about the release of acreage and granting of titles[6]
• the establishment of 2 statutory offices, with specific responsibilities:
  • the National Offshore Petroleum Titles Administrator (NOPTA), who issues titles for offshore petroleum activities, on the advice of the Joint Authority, or in some circumstances the Commonwealth Minister for Resources, and maintains a register of titles
  • the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), who regulates offshore work health and safety, well integrity, and environmental management
• the release of acreage for offshore petroleum activities
• the issuing of titles for offshore oil and gas activities (e.g. exploration, production, pipelines)
• procedures for the acceptance of offshore project proposals, environment plans, oil pollution emergency plans, well operations management plans, and safety cases
• requirements for the provision of financial assurance by titleholders for extraordinary events, such as oil spills[7]
• compliance and enforcement provisions, including an inspection and monitoring regime and the ability of the NOPSEMA or the Commonwealth Minister to issue remedial directions.

Key aspects of the regulatory framework are provided for in the:

• Offshore Petroleum and Greenhouse Gas Storage (Resource Management and Administration) Regulations 2011
• Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 (Environment Regulations)[8]
• Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2009 (Safety Regulations).

Regulation of occupational health and safety in the offshore petroleum sector

As outlined in the Offshore Safety Review: Discussion Paper (Discussion paper), occupational health and safety (OHS) in the offshore oil and gas sector has historically been regulated by separate industry-specific laws.[9] This position was maintained following harmonisation of Australia’s work health and safety laws in the 2000s.

The OPGGS Act and Safety Regulations have been maintained as specific health and safety legislation for the offshore petroleum industry, providing a more tailored form of regulation to address its high hazard work environment, characterised by accident events that are low frequency, yet potentially high consequence.[10]

The OHS regime is provided by Part 6.8 and Schedule 3 Occupational Health and Safety of the OPGGS Act and the Safety Regulations. Part 6.8 gives effect to Schedule 3, specifies listed OHS laws, and provides that regulations relating to OHS may be made.[11] It also provides that certain Commonwealth maritime legislation (see below) relating to health and safety does not apply in relation to facilities located in offshore areas.[12] It also provides that this Commonwealth maritime legislation does not apply in relation to facilities located in designated coastal waters, where relevant state or territory OHS legislation substantially corresponds to the listed OHS laws.[13] Victoria has conferred its offshore OHS powers and functions to NOPSEMA.[14]

NOPSEMA’s legislated OHS functions are to:

• promote the OHS of persons engaged in offshore petroleum and greenhouse gas storage operations
• develop and implement effective monitoring and enforcement strategies to secure compliance with the OPGGS Act and regulations
• investigate accidents, occurrences and circumstances that affect OHS
• advise on matters relating to offshore health and safety
• make reports on investigations to the responsible Commonwealth minister and each responsible state or territory minister
• provide information, assessments, analysis, reports, advice and recommendations to the responsible Commonwealth minister, on request
• cooperate with other Commonwealth, state and NT agencies or authorities with functions relating to regulated operations.[15]

Other Commonwealth maritime legislation

As summarised by the Discussion paper:

The Australian offshore oil and gas safety regime operates alongside the maritime industry safety regime and the various onshore OHS regimes, to protect workers engaged in the entire range of activities they may undertake for offshore oil and gas companies. The legislative framework of the offshore oil and gas industry and maritime industry sit closely together, and there are multiple points at which persons and vessels may transition to and from each jurisdiction.[16]

Commonwealth maritime legislation[17] includes:

• Navigation Act 2012: this Act provides for the implementation of Australia’s obligations under a range of international treaties relating to the maritime industry and the prevention of pollution of the marine environment. It regulates maritime safety, seafarers and the prevention of pollution of the marine environment.[18] The Act allows the Australian Maritime Safety Authority (AMSA) to make Marine Orders which provide detailed technical requirements relating to those areas.[19]
• Occupational Health and Safety (Maritime Industry) Act 1993 (OHS (Maritime Industry) Act): this Act provides specific health and safety regulation for people employed in the maritime industry, and related persons, on prescribed ship and prescribed units (including offshore industry mobile units) that are engaged in trade or commerce within a Territory, interstate, or overseas.[20]

The OPGGS Act operates so that the Navigation Act does not apply in relation to vessels defined as facilities, persons at or near a facility, and activities taking place at facilities.[21] Similarly, the OHS (Maritime Industry) Act does not apply to ‘a ship or offshore-industry mobile unit to which’ the OPGGS Act applies.[22]

The Discussion paper notes that ‘when vessel facilities move between the offshore resources and maritime industry regimes, the requirements under the originating jurisdiction cease and the other respective jurisdiction begins to apply’.[23] Further, ‘[d]ue to the transition between jurisdictions, safety requirements vary under the OPGGS Act, OHS(MI) Act and Navigation Act, and therefore the applicable requirements for a particular vessel can change as it moves between each Act’s jurisdictions’.[24]

Key reviews relating to safety in the offshore oil and gas industry

The following reviews relating to safety in the offshore oil and gas industry have occurred.

Assessment and approval of environmental impacts of offshore oil and gas

Part 6 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides for the assessment and approval of ‘controlled actions’ that have, will have or are likely to have a significant impact on a matter of national environmental significance (MNES).

MNES include world heritage areas, national heritage places, listed threatened species and ecological communities, listed migratory species, Commonwealth marine areas, and the Great Barrier Reef Marine Park. The commencement of a controlled action (for example, resulting in the taking of a threatened species) without a relevant approval under the EPBC Act may constitute an offence.

Prior to 2014, offshore oil and gas activities that were likely to have a significant impact on MNES were referred for assessment and approval under the EPBC Act and assessed and approved in accordance with the environmental management authorisation process administered by NOPSEMA.

However, Part 10 of the EPBC Act provides for the Commonwealth Minister for the Environment to agree with a person responsible (e.g., a Commonwealth government agency) that the assessment of potential significant impacts of proposed actions on MNES can be undertaken in accordance with a specified policy, plan or program. Actions assessed in this manner do not require a separate assessment and approval under the EPBC Act (that is, the standard assessment and approvals process), provided that they are undertaken ‘in accordance with the endorsed policy, plan or program’.[35] The EPBC Act does not make provision for amendments to an endorsed policy, plan or program.

NOPSEMA’s environmental management authorisation process

A strategic assessment of NOPSEMA’s environmental management authorisation process for petroleum and greenhouse gas storage activities under the OPGGS Act was conducted in 2013‑2014. The purpose was to streamline offshore petroleum and greenhouse gas activity environmental approvals in Australia.[36]

The then Minister for the Environment endorsed the program on 7 February 2014. On 27 February 2014, the Minister granted an approval allowing ‘a class of actions’ under the Endorsed Program to proceed without the need for any further approval from the Minister. There are a number of exceptions to this ‘class of actions’ and these actions must be assessed and approved in accordance with the usual process under the EPBC Act. These include actions that have, will have, or are likely to have a significant impact on the environment on Commonwealth land or the world heritage values of the Great Barrier Reef World Heritage property, or are the injection and/or storage of greenhouse gas.[37] The approval has effect until 31 December 2040.

The streamlining of approvals was estimated to reduce costs to industry in the order of $120 million a year.[38]

NOPSEMA’s environmental management functions mirror those for health and safety, and extend to the structural integrity of facilities, wells and well-related equipment.[39] Schedule 2A of the OPGGS Act provides NOPSEMA with additional inspection powers. The Environment Regulations 2023 set out the requirements for, and assessment and acceptance processes for, offshore petroleum plans and environment plans (among other matters).

The Samuel Review and reform of the EPBC Act

The second independent review of the EPBC Act, led by Professor Graeme Samuel and widely referred to as the Samuel Review, found that the EPBC Act was not achieving its objectives, ‘does not enable the Commonwealth to effectively protect environmental matters’ and is not fit to address current or emerging environmental challenges.[40] The Samuel Review’s Final report made 38 integrated recommendations for improving the operation and effectiveness of the EPBC Act, as part of a staged pathway of reform.[41]

Relevant to the Bill, and NOPSEMA’s Endorsed Program, the Final report observed:

The strategic assessment endorsed the NOPSEMA’s arrangements in place at the time of the arrangement. In effect, this froze them in time, which has invariably stifled continuous improvement and further streamlining even when there are opportunities to do so that do not compromise environmental outcomes.[42]

The Final report recommended substantial amendments to the EPBC Act and the introduction of an accreditation model underpinned by National Environmental Standards, overseen by a new independent Environmental Assurance Commissioner.[43]

The Final report also recommended that the accreditation model be effectively and efficiently ‘applied to arrangements with other Commonwealth agencies where they demonstrate consistency with National Environmental Standards and subject themselves to transparent independent oversight’.[44] Recommendation 16 states ‘the accreditation model should be applied to [NOPSEMA]… using appropriate legislative amendments’.[45]

The Albanese Government’s Nature positive plan: better for the environment, better for business sets out its response to the Samuel Review. The Nature Positive Plan includes improvements to accreditation arrangements underpinned by National Environmental Standards and the establishment of Environment Protection Australia (rather than an Environmental Assurance Commissioner). Relevant to the Bill, the plan states:

The government will work with parties to existing accredited agreement and arrangements to integrate the new standards and requirements.[46]

The Department has been consulting on reforms to the EPBC Act, including releasing a draft policy on accreditation and draft National Environmental Standards. However, information released to date has not addressed how the reforms will be applied to existing accredited arrangements, such as NOPSEMA’s Endorsed Program.

Recent court decisions

Two recent cases in the Federal Court and Full Court of the Federal Court have identified problems with NOPSEMA’s acceptance of environment plans for offshore petroleum activities.

The applicants in both cases sought judicial review of separate decisions of NOPSEMA to accept environment plans under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Environment Regulations 2009; now replaced by the Environment Regulations 2023). The relevant provisions of the regulations require that NOPSEMA may only accept an environment plan if it is reasonably satisfied that the environment plan demonstrates that the titleholder has carried out the consultations required by the regulations.[47] The titleholder is required to:

• consult with ‘a person or organisation whose functions, interests or activities may be affected by the activities to be carried out under the environment plan…’[48] and
• ‘give each relevant person sufficient information to allow the relevant person to make an informed assessment of the possible consequences of the activity on the functions, interests or activities of the relevant person’[49] and
• ‘allow a relevant person a reasonable period for the consultation’.[50]

The cases centred on the meaning of ‘relevant persons’ and ‘functions, interests or activities’.

In the first case, Santos NA Barossa Pty Ltd v Tipakalippa,[51] the Full Court of the Federal Court found the titleholder and NOPSEMA misunderstood the requirements of the regulations, including what was meant by ‘functions, interests or activities’ and who might be a ‘relevant person’.[52] This resulted in the relevant environment plan being set aside and the titleholder needing to resubmit the plan, having undertaken further consultation with all relevant persons.

Notably, Justices Kenny and Mortimer observed that the Environment Regulations 2009 established a substitute decision-making process for the purposes of the EPBC Act and that the regulations should ‘be construed consistently with the EPBC Act’.[53] They found that:

Santos and NOPSEMA proposed a construction of the phrase “functions, interests or activities” that fails to promote the principles of ecologically sustainable development as set out in section 3A of the EPBC Act. Their construction would also undermine the achievement of the other two objects of the Regulations.[54]

In this case, Santos had made no attempt to consult with the applicant or the Munupi clan.[55] Santos’ consultation with the Tiwi Land Council comprised sending one email with an attached generic information packet, a second follow-up email, and follow-up phone calls; the Tiwi Land Council was ‘entirely unresponsive’.[56]

Santos undertook further consultation with ‘Tiwi Island people and other relevant persons’ before resubmitting the environment plan.[57] It was accepted by NOPSEMA on 15 December 2023.[58]

In the second case, Cooper v National Offshore Petroleum Safety and Environmental Management Authority,[59] the Federal Court found that NOPSEMA did not have the statutory power to accept an environment plan subject to a condition that the titleholder (Woodside Energy Group Ltd) undertake further consultation with Aboriginal and Torres Strait Islander bodies prior to commencing the activity. This was because the information gleaned during consultation was integral to NOPSEMA’s evaluation of whether the environment plan identified the ‘environmental impacts and risks, as well as details of the measures that have been adopted because of the consultation and that the measures are “appropriate”’.[60] Justice Colvin found that NOPSEMA had in effect entrusted Woodside to undertake that evaluation and report what it had done to NOPSEMA.[61]

Woodside subsequently resubmitted the environment plan, having undertaken the additional consultation including that specified in the conditions attached to the environment plan set aside by the Federal Court, and the plan was accepted by NOPSEMA.[62]

Further reforms and consultation

Following the Full Court’s decision in Tipakalippa, the Commonwealth Minister for Resources directed NOPSEMA to ‘provide improved guidance to industry on consultation requirements’, noting the ‘Government’s clear expectation that industry make genuine and rigorous efforts to consult with First Nations peoples as part of the regulatory approvals process’.[63]

NOPSEMA subsequently released a guideline on Consultation in the course of preparing an environment plan for consultation. It released the finalised guideline on 12 May 2023.

On 12 January 2024, the Department of Industry, Science and Resources began consultations to clarify the consultation requirements for offshore oil and gas regulatory approvals. Submissions close on 24 March 2024.

This consultation sits within a broader review of the environmental management regime for offshore petroleum and greenhouse gas storage activities, announced as part of the 2023–24 Budget.[64]

Committee consideration

Senate Economics Legislation Committee

The Bill has been referred to the Senate Economics Legislation Committee for inquiry and report by 22 March 2024. More information is available on the inquiry homepage. At the time of writing this Bills Digest, the Committee had received 25 submissions.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Senate Standing Committee for the Scrutiny of Bills is yet to consider the Bill.

Position of major parties

Government parliamentarians

In her second reading speech, the Minister for Resources, Katherine King, said:

Nothing is more important than ensuring that every worker can come home safely at the end of a shift, or at the conclusion of a lengthy swing away from family and friends to the comfort of their homes.

It is therefore incumbent on Government to review and update our rules and regulations governing resources sector safety to ensure those rules and regulations remain fit-for-purpose.

The Bill I am introducing to the Parliament today achieves this objective.[65]

In relation to proposed section 790E, the Minister said:

…this bill introduces amendments to enable changes to be made to the environment regulations under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 while maintaining the validity of streamlined arrangements endorsed under section 146B of the Environment Protection and Biodiversity Conservation Act 1999. …

The amendments proposed in this bill will enable changes to be made to the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 while ensuring that those changes do not impact the application of streamlined approval arrangements already in place under section 146B of the Environment Protection and Biodiversity Conservation Act 1999.[66]

Non-government parliamentarians

Australian Greens

In a joint media release following the introduction of the Bill, Adam Bandt (Leader), Senator Dorinda Cox (Spokesperson for First Nations, Resources and Trade) and Senator Sarah Hanson‑Young (spokesperson for Environment) acknowledged the ‘important reforms to improve workers rights’, but expressed concerns about the impact of proposed section 790E, relating to the Endorsed Program under the EPBC Act.[67]

Adam Bandt said ‘Labor is trying to sneak through changes to fast track gas projects and make the climate crisis worse. … Seeking to tack this climate-wrecking loophole on to otherwise important reforms to improve workers rights is a cynical play that shows Labor is in the pockets of these gas corporations’.[68]

The Australian Greens indicated they would refer the Bill to a Senate inquiry.

Liberal-National Coalition

The Liberal-National Coalition have expressed concern about perceived delays in NOPSEMA’s approval processes, particularly delays in the acceptance of environment plans. Shadow Minister for Resources, Senator Susan McDonald, has criticised the Labor government for ‘poor regulatory clarity in offshore oil and gas’, ‘increased green-tape through new environmental agencies and the funding of anti-mining legal activists’.[69]

Position of major interest groups

The Explanatory Memorandum outlines consultation with major industry interest groups and various government departments, although it does not indicate whether other stakeholders or the Minister for the Environment were consulted.[70]

Industry

Australian Energy Producers (AEP, formerly the Australian Petroleum Production and Exploration Association (APPEA)) has been highly critical of perceived delays in NOPSEMA’s environment plan acceptance processes arising from recent court decisions.[71] AEP’s media release, published the day prior to the introduction of the Bill, welcomed the Bill:

Australia’s oil and gas industry today welcomed moves from Resources Minister Madeleine King to streamline the reform process after months of uncertainty for major energy supply, carbon capture and storage and decommissioning projects.[72]

Unions

The Australian Council of Trade Unions (ACTU) and Maritime Union of Australia (MUA) have both welcomed the introduction of the Bill. ACTU Assistant Secretary, Liam O’Brien, said:

Offshore oil and gas workers are exposed to some of the most serious health and safety risks in the country and yet have some of the least rights and protections. The high-risk nature of the industry is further exacerbated by the remoteness of the worksites and the insecure working arrangements that dominate the industry.

We welcome the Albanese Government’s ongoing commitment to improve work health and safety. Health and Safety representatives play an important role in keeping workplaces safe. Strengthening their role, along with enhancing the protections against discrimination is vital if safety is going to improve.

We also welcome the government’s ambition to harmonise offshore petroleum safety with our national laws. Workers in Commonwealth waters shouldn’t have less protection than those on land. Every worker has a right to safe and healthy work.[73]

The MUA’s National Assistant Secretary Adrian Evans indicated the Bill would begin the task of addressing decades-long problems but said ‘we are keen to see further reform and the restoration of maritime standards on floating petroleum facilities’.[74]

Other major interest groups

The Australian Centre for Corporate Responsibility (ACCR) has expressed a view that industry claims that ‘Australia’s offshore oil and gas regulation system is “broken” is a distraction from company failings and a threat to First Nations’ rights to consultation’.[75]

The Australia Institute (TAI) has expressed concern about proposed section 790E of the Bill:

Legislation that will allow the government to relax the approval and assessment process for offshore oil and carbon capture and storage (CCS) projects is premature and risks bypassing traditional owners, local groups and tourism and fishing businesses.[76]

Environment organisations have raised concerns about proposed section 790E. The Environmental Defenders Office (EDO), which represented the applicants in both court proceedings mentioned above, has stated:

The Bill therefore seeks to maintain the validity of the existing accreditation of NOPSEMA approvals to cover future changes to the Act or regulations. That is, it appears that rules or processes could be substantially changed and there would be no need to reconsider or reissue accreditation. …

[T]here is a real and imminent risk that standards for community consultation may be reduced as a result of the current consultation process. Establishing a weaker community consultation standard for offshore projects now, ahead of finalising [the national environmental standards] is problematic. This would be the tail wagging the dog, and undermine the critical Nature Positive reform process.[77]

Similarly, the Australian Conservation Foundation (ACF) has described the Bill as carving out special protections for the oil and gas industry.[78] The ACF’s national climate policy adviser, Annika Reynolds has said:

We are deeply disappointed and concerned that this bill has been introduced part way through two major consultation processes.

This bill is seriously concerning to us because it not only undermines the very role national environmental laws are supposed to be playing but it comes at a time when the government has said, and is engaged in, urgently fixing these laws. And it pre-empts all the major reform the government says it will introduce this term. [79]

Financial implications

The Explanatory Memorandum states ‘the Bill is expected to have nil financial impact’.[80]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[81]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Parliamentary Joint Committee on Human Rights is yet to consider the Bill.

Key issues and provisions

Strengthening the role of health and safety representatives

Division 3 of Part 3 of Schedule 3 to the OPGGS Act concerns health and safety representatives (HSRs). It covers the election and powers of HSRs and the duties of operators and other employers in relation to HSRs. Division 4 of Part 3 of Schedule 3 relates to health and safety committees.

The Offshore oil and gas safety review: policy framework (Policy framework) proposed 5 measures relating to workplace arrangements, 3 of which would be implemented through amendments to Schedule 3 of the Act.[82] These are described briefly under this heading.

Strengthen training requirements for HSRs

Existing clause 30 relating to training of HSRs is not consistent with provisions in the Work Health and Safety Act 2011 (WHS Act), such that other workers have ‘greater access to training than that which is available to workers in the offshore oil and gas industry’.[83] Item 38 (Part 1, Schedule 1) repeals and replaces this clause so that:

• HSRs for a designated work group must complete an initial training course as soon as practicable and then an annual refresher training course
• consistent with the existing provision, the operator of a facility must permit the HSR to attend training in paid time
• the operator of the facility or the HSR’s employer must pay for the training course(s)
• a NOPSEMA inspector may be appointed to decide disputes between an HSR and the operator or their employer about HSR training.[84]

The failure of an HSR to complete required training may be grounds for their disqualification as an HSR.[85]

Enabling HSRs to access and request reviews of safety management-related documents

Existing clause 34 sets out the powers of an HSR for a designated work group, including the ability to inspect the whole or part of a workplace if there has been an accident or a dangerous occurrence, to request that NOPSEMA conduct an inspection at the workplace, and to access any information under the control of the operator relating to risks to the health and safety of group members.

The Policy framework notes that safety cases are a key document produced by an operator of a facility that identifies and describes how hazards and risks at a facility will be controlled.[86]

Item 41 (Part 1, Schedule 1) inserts proposed paragraph 34(1)(da) to give HSRs the power to ‘request a review of safety management-related documents by the operator of the facility, in accordance with [new] clause 37A’.[87] Proposed clause 37A places limits on the circumstances in which that power may be exercised, and requires the operator of a facility to review the safety management-related documents and to inform the HSR of the outcome of the review, including whether revisions were required and have been made.[88]

Finally, the Bill amends clause 41 to provide for HSRs to be members of health and safety committees at a facility.[89]

Strengthened protections against discrimination

Existing clause 88 of Schedule 3 to the OPGSS Act prohibits an employer from dismissing an employee, performing an act that results in injury to an employee, performing an act that prejudicially alters an employee’s position, or threatening to do so, because the employee has raised, assisted in processes relating to, or stopped work due to, health and safety issues.

The Policy framework observed that this provision ‘did not provide the same degree of protection from discrimination or coercion as the WHS Act and could go further’.[90]

Item 130 (Part 1, Schedule 1) repeals and replaces clause 88 and inserts new clauses 88A, 88B, 88C and 88D to align with the prohibitions in the WHS Act.[91] Importantly proposed clause 88 remakes the existing offence to an offence of strict liability where an employer engages in conduct that is discriminatory conduct and the dominant reason for the conduct is a prohibited reason.[92] Proposed clause 88 retains the existing maximum penalty of 600 penalty units being equivalent to $187,800.[93]

An additional duty of titleholders

Schedule 3 of the OPGGS Act sets out the duties and obligations of titleholders (that is, the person that is registered by NOPTA as the holder of a title) and operators (that is, the person who is registered with NOPSEMA as the operator of a facility or a proposed facility).[94] The Explanatory Memorandum states that:

when the operator and titleholder are separate entities, the titleholder has no direct duty to ensure the safety of the facility and the health of persons at or near the facility. Further, the titleholder has no duty to ensure that the operator is able to fulfill its duties in relation to health and safety.[95]

In accordance with a recommendation of the Walker Review into the collapse of the Northern Oil and Gas group of companies, item 32 (Part 1, Schedule 1) inserts proposed clause 13C to impose a new duty on titleholders to take all reasonably practicable steps to ensure that the unrelated operator is able to comply with the OPGGS Act and Safety Regulations as they relate to health and safety.

Proposed clause 83C would provide for the operator of a facility to notify NOPSEMA if the operator reasonably believes that the titleholder has contravened, or is contravening, proposed clause 13C and that contravention has affected, is affecting, or is likely to affect the operator’s ability to comply with the OPGGS Act or Safety Regulations.[96]

Related amendments arising from the insertion of a new definition of titleholder’s safety-related obligations (incorporating proposed clause 13C) would bring the duty within the existing OHS inspection and OHS notices regime.[97] A related consequential amendment to the meaning of health and safety requirement would bring the new duty within existing sections 16B and 16C.[98] These sections establish criminal offences for reckless or negligent breaches of a health and safety requirement. The new duty could also be enforced by NOPSEMA through an injunction.[99]

Enhanced powers relating to dive vessels and dive operations

The application of the safety regime under the OPGGS Act centres on facilities and associated offshore places.[100] As explained by the Policy framework, ‘a facility, for the purposes of the exercise of NOPSEMA inspectors’ powers under Schedule 3, includes a dive vessel while diving activities related to the facility are taking place’.[101]

The Policy framework explains that under existing settings, NOPSEMA inspectors’ powers to enter and remain on dive vessels are limited to the time at which a dive vessel is considered to be an offshore associated place, being the period during which facility-related diving activities are taking place. However, diving operations are complex and include lengthy periods of time for saturation and decompression which may commence or come to an end before or after the dive vessel is considered to be an offshore associated place. Thus ‘NOPSEMA cannot effectively monitor compliance with OHS obligations associated with diving related activities before the vessel reaches the dive site, or following the vessel leaving the dive site, and risks to health and safety associated with these activities may not be properly identified or assessed’.[102]

New OHS inspection powers

Part 4 of the Schedule 3 of the OPGGS Act deals with OHS inspections. Provisions in this part provide NOPSEMA inspectors powers to conduct OHS inspections to monitor compliance with listed OHS laws or in relation to an accident or dangerous occurrence at or near a facility. Provisions also allow NOPSEMA inspectors to issue OHS do not disturb, prohibition and improvement notices.

The Bill inserts proposed clause 52 into Schedule 3 of the OPGGS Act to provide NOPSEMA inspectors with the power to board and search vessels being used in diving operations.[103] Proposed clause 53 would clarify the time at which a vessel becomes, or ceases to be, an associated offshore place.[104] Relevant amendments are made to:

• extend the offence of obstructing or hindering a NOPSEMA inspection to OHS inspection of diving operations[105]
• require relevant persons to provide assistance to a NOPSEMA inspector conducting an OHS inspection of diving operations[106]
• require relevant persons to answer questions and produced documents and things[107]
• allow a NOPSEMA inspector conducting an OHS inspection to take possession of things or take samples in connection with the inspection.[108]

The Bill also inserts numerous proposed clauses to allow NOPSEMA inspectors to issue a range of OHS notices (do not disturb, prohibition and improvement notices), set out the requirements for notification and display of these notices, and compliance with these notices.[109] These provisions are consistent with other existing clauses relating to OHS notices.[110]

The Bill includes a range of consequential amendments to incorporate the proposed clauses into existing provisions relating to tampering with and removing notices, publishing OHS prohibition notices and OHS improvement notices, reports on listed OHS law inspections, and appeals concerning OHS inspections.[111]

New reporting obligations and duties

Existing clause 82 requires operators to give notice, and to provide a report, to NOPSEMA if there is an accident or dangerous occurrence at or near a facility. The Bill proposes to amend clause 82 to introduce new requirements for a diving supervisor of diving operations to give notice, and to provide a report, to NOPSEMA if there is an accident or dangerous occurrence.[112]

Similarly, existing clause 83 requires operators to maintain records of notifications and reports given to NOPSEMA in accordance with clause 82. The Bill proposes to amend clause 83 to extend these obligations to diving supervisors of diving operations.[113]

These provisions would ensure that accidents or dangerous occurrences are reported to NOPSEMA when a dive vessel is not a facility or an associated offshore place.[114]

As noted above, vessels may move in and out of the OPGGS Act safety regime depending on whether a mobile facility or vessel satisfies the definitions of facility and associated offshore place. The Policy framework states:

Monitoring compliance of vessel facilities is particularly challenging as they often engage in relatively short scopes of work of which only a portion of the activities may cause them to meet the definition of a facility. Without a legislative basis NOPSEMA is relying on ad hoc liaison with the operators of vessel facilities, and encouraging operators to indicate in monthly reports when vessels are entering and exiting the offshore regulatory regime.[115]

Proposed clause 83B would impose a duty on the operator of the relevant facility to notify NOPSEMA of the time at which a vessel becomes, or ceases to be, a facility or an associated offshore place.[116] The Policy framework suggests that this would ‘reduce jurisdictional confusion’ and ‘provide regulatory assurance for Government’.[117]

Preserving NOPSEMA’s Endorsed Program or overriding the EPBC Act?

As explained in the Background section, the potential environmental impacts of offshore petroleum activities (including potential significant impacts on matters of national environmental significance) are assessed by NOPSEMA in accordance with its Endorsed Program, as approved by the Minister for the Environment under section 146B of the EPBC Act. The effect of the approval is that actions in the ‘class of actions’ are taken to have been approved by the Minister for the Environment for the purposes of Part 9 of the EPBC Act.[118]

The Bill proposes to insert proposed section 790E into the OPGSS Act ‘to preserve the effect of the Offshore Petroleum and Greenhouse Gas Storage approval’, being the Minister’s approval under section 146B of the EPBC Act.[119] Proposed subsection 790E(1) states:

(1) If:

 (a) a person engages in conduct in accordance with this Act or prescribed regulations made under this Act, as in force from time to time, in relation to a relevant action; and

 (b) for the purposes of the Offshore Petroleum and Greenhouse Gas Storage approval [that is, the Minister’s approval under section 146B], the relevant action would not (apart from this section) be taken in accordance with the Offshore Petroleum and Greenhouse Gas Storage endorsed program only because the person engaged in the conduct;

then, despite the conduct, section146D of the Environment Protection and Biodiversity Conservation Act 1999 applies in relation to the approval and the taking of the relevant action as if the relevant action had been taken in accordance with the endorsed program. [emphasis added]

The Explanatory Memorandum notes that the EPBC Act does not make provision for an Endorsed Program to be amended and states:

this item therefore enables amendments to be made to the OPGGS Act or prescribed regulations made under the OPGGS Act, that may be inconsistent with the aspects of the endorsed Program, while preserving the approval under section 146B of the EPBC Act and the effort of the approval under section 146D of the EPBC Act.[120] [emphasis added]

The Explanatory Memorandum details that the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 were recently made and these are intended to be prescribed regulations for the purposes of proposed paragraph 790E(1)(a). These regulations replaced the previous Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (which are referred to generally without reference to specific provision numbers in the Endorsed Program) with effect from 10 January 2024, although, the 2023 Regulations are substantially similar to the 2009 Regulations, with some renumbering of relevant provisions.

The Explanatory Memorandum states:

Until amendments are made to the prescribed regulations or the OPGGS Act, the current requirements of the endorsed Program apply to environmental assessments and relevant actions to be undertaken under the offshore regime in accordance with the OPGGS Act and the prescribed regulations. Following any amendment to the prescribed regulations or the OPGGS Act, to the extent of any inconsistency between those regulations or the Act and the endorsed Program, the requirements set out in the prescribed regulations, or the Act will apply. Section 790E will preserve the approval under section 146B, and the effect of the approval under section 146D, of the EPBC Act.[121] [emphasis added]

However, the drafting of proposed section 790E would appear to go beyond an attempt to allow for replacement of the 2009 Regulations with the 2023 Regulations. It also appears to go beyond ‘preserving the effect’ of the Environment Minister’s 2014 approval. Rather, the drafting of proposed section 790E appears to allow for the OPGGS Act and prescribed regulations to be amended in a manner that is inconsistent with the Endorsed Program and thus potentially the requirements of the EPBC Act.[122]

The government is currently progressing reforms to the EPBC Act as part of its Nature positive plan, including a revised approach to accreditations underpinned by National Environmental Standards. The suite of proposed National Environmental Standards includes a standard for Community Consultation and Engagement (a draft is available) and First Nations Engagement and Participation in Decision-Making (a draft is not yet available).[123] At the time of writing, the government’s proposed approach to ensuring existing accreditation arrangements are aligned with its reforms is unknown, and as such this provision would appear pre-emptive.

Some stakeholders have raised concerns firstly, that the proposed section would ‘potentially allow regressive changes to [OPGGS] legislation or regulations to automatically come under the existing accredited program’ without the agreement of or oversight by the Minister for the Environment, and secondly that the proposed section would allow weaker industry-specific consultation guidelines.[124] Here we note that Justices Kenny and Mortimer found that the existing consultation provisions in the Environment Regulations were not unworkable.[125]