Chapter 1Introduction
1.1The Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Safety and Other Measures) Bill 2024 (bill) was introduced into the House of Representatives and read a first time on 15 February 2024.
1.2On 29 February 2024, the Senate referred the provisions of the bill to the SenateEconomics Legislation Committee (committee) for inquiry and report by 22 March 2024.
Purpose of the bill
1.3The bill would amend the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGS Act) to implement the outcomes of the Offshore Oil and Gas Safety Review (Safety Review) and to provide for other measures.
Safety measures
1.4In her second reading speech, the Hon Madeleine King MP, Minister for Resources and Minister for Northern Australia, stated:
The reforms proposed in this bill will improve safety outcomes for Australia's offshore resources sector workforce. Several of the measures included in the bill will also drive greater alignment between Australia's offshore petroleum safety regime and the Work Health and Safety Act 2011 and its regulations.
1.5Further, Minister King said that the safety measures would:
strengthen the role of Health and Safety Representatives (HSRs) through better access to training;
allow HSRs to request reviews of safety management-related documents;
ensure HSRs have representation on health and safety committees;
enhance the protection of workers' health and well-being by clarifying that the definition of health includes physical and psychological health;
provide extra protections for workers against discrimination and coercion;
modernise diving legislation to improve health and safety compliance;
expand reporting requirements on safety issues relating to diving;
ensure that separate operators appointed by a titleholder are able to carry out required duties under the OPGGS Act and its subordinate regulations;
strengthen requirements to improve death and serious injury notifications and simplify monthly reporting requirements; and
introduce a vessel activity notification scheme to ensure that the regulator knows when vessels enter and leave the offshore regime.
Other measures
1.6The bill contains several other measures that would:
provide certainty to stakeholders by ensuring that an approval of conduct in accordance with a policy, plan, or program under section 146B of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) remains effective following any amendments to the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023;
clarify the validity of certificates issued under the Navigation Act 2012 (Navigation Act) while a vessel is a facility under the OPGGS Act to ensure that when the vessel disconnects it will meet the requirements of the Navigation Act;
enable the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) to specify the timeframe for a person to comply with a remedial direction;
clarify that the spatial extent of an eligible greenhouse gas storage formation is the expected migration pathway of the particular greenhouse gas substance;
ensure that the OPGGS Act specifies when the annual titles administration levy imposed on cross-boundary greenhouse gas assessment permits becomes due and payable; and
clarify that a pipeline subject remedial direction is considered to be a facility, even if the pipeline is no longer subject to a pipeline licence. This is to ensure that the safety provisions of the OPGGS Act and regulations apply to persons undertaking activities to comply with the remedial direction.
Consultation
1.7The Explanatory Memorandum states that several forms of consultation were undertaken, ‘including with industry, NOPSEMA as the regulator for safety of offshore petroleum and GHG storage operations, and the National Offshore Petroleum Titles Administrator’.
1.8Consultation was also undertaken with other federal government departments, and targeted consultation was carried out with ‘key stakeholders’.
1.9The Department of Industry and Science (DISR) released a discussion paper as part of the Safety Review in June 2019, followed by a draft policy framework in August2020. Throughout the Safety Review, DISR ‘consulted extensively with industry, unions, the offshore workforce and across the Australian and state and territory governments’.
1.10The Explanatory Memorandum also notes that several other recent reviews support the recommendations made in the Safety Review.
Provisions of the bill
1.11Schedule 1 to the bill is divided into the following three parts and is intended to implement the outcomes of the Safety Review:
Part 1 would amend the OPGGS Act to achieve a range of outcomes;
Part 2 would make consequential amendments to the Occupational Health and Safety (Maritime Industry) Act 1993 (OHS(MI) Act); and
Part 3 contains application and transitional provisions.
1.12Schedule 2 to the bill is divided into the following four parts and is intended to make changes unrelated to the outcomes of the Safety Review:
Part 1 would make amendments to the Navigation Act to empower the Australian Maritime Safety Authority (AMSA) to make rules ensuring the application of relevant maritime laws and to deal with any inconsistencies that arise between maritime laws and the OPGGS Act;
Part 2 would provide for the continued effect of an endorsed program applicable to offshore petroleum and greenhouse gas activities under the EPBC Actto remain effective following amendments to environmental regulations under the OPGGS Act;
Part 3 would make amendments to the OPGSS Act relating to remedial directions, including allowing NOPSEMA to specify a reasonable timeframe for compliance with remedial directions; and
Part 4 would make minor and technical amendments to the OPGGS Act.
Schedule 1—Safety measures
1.13Part 1 of Schedule 1 would make numerous amendments to the OPGGS Act. These amendments are intended to have the following effects:
introduce definitions, make amendments to existing definitions for various terms, and make minor drafting amendments;
clarify certain responsibilities of the CEO of NOPSEMA in relation to new health and safety obligations;
introduce reporting obligations and penalties related to accidents and dangerous occurrences;
make several duties and requirements, such as training and reporting requirements, enforceable by injunctions or enforceable undertakings under the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act), and clarify that the CEO of NOPSEMA is the authorised person for the relevant parts of the Regulatory Powers Act;
respond to a recommendation in the Walker Review to establish new duties for titleholders in relation to unrelated operators.In some situations under the current regulatory scheme, an operator of a facility may be a separate entity from the titleholder(s) of the relevant title. Currently, the titleholder(s) in such situations would have no direct duties to ensure the safety of the facility and the health of people at or near the facility, nor to ensure the operator is able to fulfil those duties. These amendments are intended to impose duties on the titleholder(s) to take reasonable steps to ensure the operator is capable of complying and actually complies with its obligations under the OPGGS Act;
establish training, reporting, disqualification, record-keeping, and other obligations relating to HSRs and health and safety committees;
establish a wide range of powers and responsibilities relating to Occupational Health and Safety (OHS) inspections and NOPSEMA inspectors, and establishes civil and criminal penalties for certain conduct, such as failing to comply with notices regarding health and safety.
1.14Part 2 of Schedule 1 would amend the OHS(MI) Act to ensure the act applies to dive vessels undergoing NOPSEMA inspections, regardless of whether the dive vessels meet the definition of ‘facility’ or ‘associated offshore place’ under the OPGGS Act. The broader OHS provisions in the OPGGS Act would otherwise not apply to a dive vessel that does meet these definitions.
1.15Part 3 of Schedule 1 would establish several application and transitional provisions. These provisions would relate to HSRs, reviews of safety management-related documents, certain OHS inspections, and the notification and reporting of accidents, dangerous occurrences, and vessel activities.
Schedule 2—Other measures
1.16Part 1 of Schedule 2 would empower the AMSA to make rules under the Navigation Actto ensure that aspects of Commonwealth maritime legislation would apply to facilities regulated by the OPGGS Act and which are required to meet International Maritime Organisation (IMO) requirements. Empowering AMSA to make this delegated legislation is intended to apply particular aspects of maritime legislation to relevant facilities as required, and to enable AMSA to navigate the complex and prescriptive legislative framework that applies IMO-related requirements. Rules made would be subject to scrutiny processes, including Parliamentary tabling, scrutiny and disallowance.
1.17Part 2 of Schedule 2 relates to approvals under the EPBC Act for conducting petroleum and greenhouse gas storage activities in Commonwealth waters. Since 27 February 2014, the Environment Minister has approved taking such activities in accordance with an endorsed program under the EPBC Act.This means that petroleum and greenhouse gas storage activities are taken to have ministerial approval under the EPBC Act when undertaken in accordance with the endorsed program. The endorsed program describes the processes for environmental management approvals under the OPGGS Act and the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009.
1.18However, under the EPBC Act, there is no provision allowing the endorsed program to be amended. Where the OPGGS Act or Environment Regulations are amended, the requirements under this legislation may no longer be consistent with the processes set out in the endorsed program. Part 2 of Schedule2 of this bill would insert a new section 790E to address this. Section 790E would enable a person whose conduct is in accordance with the OPGGS Act or regulations to maintain approval under section 146D of the EPBC Act, even if that conduct is inconsistent with aspects of the endorsed program. The application of section 146D of the EPBC Act effectively means that the Minister for the Environment is taken to have approved the person’s conduct, subject to the requirements under section 146D and the endorsed program.
1.19Under the new section 790E, the OPGGS Act or regulations will apply if there is any inconsistency between the endorsed program and the OPGGS Act or regulations. Section 790E would apply only to relevant actions covered by the approval granted by the Minister for the Environment on 27 February 2014.
1.20Part 3 of Schedule 2 would amend the OPGGS Act to make changes relating to remedial directions. The primary purpose of these amendments is empowering NOPSEMA to specify a timeframe for compliance with remedial directions. Technical issues around the definition of ‘applicable date’ cause difficulties for NOPSEMA in issuing remedial directions. Generally, an ‘applicable date’ is the expiry date of a title, or the first day on which a licence, such as a petroleum production licence, could be terminated. The amendments in Part 3 of Schedule 2 would therefore omit references to ‘applicable date’ under various sections of the OPGGS Act. It would also omit references to a ‘registered holder’ in order to reflect the wide range of persons to whom NOPSEMA may provide a remedial direction.
1.21Part 4 of Schedule 2 deals with minor and technical amendments to the OPGGS Act. Specifically, Part 4 would:
amend the definition of ‘spatial extent’, in relation to greenhouse gas storage formations, to reflect the migration and settling of a greenhouse gas substance, and to reflect the entire expected migration pathway of the substance;
clarify the status of certain pipelines subject to remedial directions as facilities, even if the pipeline is no longer subject to a pipeline licence; and
ensure that cross-boundary greenhouse gas assessment permits are subject to an annual titles administration levy under section 695M of the OPGGS Act after previous oversight meant that this amendment was not effected.
Commencement
1.22The provisions of the bill are scheduled to commence as outlined in Table 1.1.
Table 1.1Commencement information
| |
Sections 1 – 3 | The day the bill receives Royal Assent. |
Schedule 1 | A day to be fixed by Proclamation or the day after 12 months from the bill receiving Royal Assent. |
Schedule 2, Part 1 | A day to be fixed by Proclamation or the day after 6months from the bill receiving Royal Assent. |
Schedule 2, Parts 2 and 3 | The day after the bill receives Royal Assent. |
Schedule 2, items 36 and 37 | A day to be fixed by Proclamation or the day after 6months from the bill receiving Royal Assent. |
Schedule 2, items 38 and 41 | The day after the bill receives Royal Assent. |
Source: Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Safety and Other Measures) Bill 2024, p. 2.
Financial impact
1.23The Explanatory Memorandum states that the bill is ‘expected to have nil financial impact’.
Legislative scrutiny
1.24At the time of writing, the bill had not been commented on by the Senate Standing Committee for the Scrutiny of Bills or the Parliamentary Joint Committee on Human Rights.
Human rights implications
1.25The Statement of Compatibility with Human Rights states that the bill is ‘compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011’.
1.26As outlined further below, the bill engages, or has the potential to engage, the following human rights:
the right to work and rights in work;
criminal process rights, including the right to be presumed innocent until proven guilty according to law, the right to a fair and public hearing and the right to minimum guarantees in criminal proceedings; and
the right to privacy and reputation.
1.27The Explanatory Memorandum concludes that to the extent that bill limits human rights, those ‘limitations are reasonable, necessary and proportionate’ and are therefore permissible.
Right to work and rights in work
1.28The Explanatory Memorandum states that the bill promotes the ‘right to work and rights in work, specifically the right to just and favourable working conditions’ in Article 7 of the International Covenant on Economic, Social and Cultural Rights.
1.29In particular, the Explanatory Memorandum highlights that implementing the outcomes of the Safety Review will ‘strengthen the offshore petroleum and greenhouse gas storage Occupational Health and Safety’ regime and contribute to ‘safer work conditions for employees’.
Right to the presumption of innocence
1.30The Explanatory Memorandum states that the bill engages the right to the presumption of innocence outlined in Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR).
1.31The Explanatory Memorandum notes that the presumption of innocence is afforded to individuals and that investigations and prosecutions under the offshore regulatory regime are mostly conducted against corporations, not individuals.
Strict liability offences
1.32The Explanatory Memorandum advises that offences of strict liability will limit the right to the presumption of innocence as they decrease the number of elements required to prove a criminal offence.
1.33A number of the amendments outlined in Part 1 of Schedule 1 seek to add strict liability offences to the OPGGS Act.
1.34According to the Explanatory Memorandum, these strict liability offences have been included in the bill to enhance the effectiveness of provisions concerning work health and safety and increase compliance with those provisions across the industry. Therefore, they represent reasonable limitations on the presumption of innocence in accordance with the test outlined above.
1.35For example, item 117 would insert a new subclause 82(9A) ofSchedule3 of the OPGGS Act, which sets out a requirement for a diving supervisor to give NOPSEMA a written report of certain accidents relating to diving operations. Item 117 is accompanied by a new subclause 82(9D) of Schedule 3, which would render the failure to comply with this requirement an offence of strict liability.
1.36The Explanatory Memorandum notes that the strict liability offences in the bill are consistent with the Commonwealth Guide to Framing Commonwealth Offences.
Reverse burden of proof
1.37As outlined in the Explanatory Memorandum, offences that place a legal or evidential burden on the defendant will also limit the right to the presumption of innocence.
1.38A number of the amendments outlined in Part 1 of Schedule 1 seek to add reverse burden of proof provisions to the OPGGS Act. According to the Explanatory Memorandum, these limitations are consistent with the test outlined above and are therefore permissible.For example, item 56 of Schedule1 would amend subclauses 54(1) and (1A) of Schedule3 of the OPGGS Act to create an offence and a civil penalty provision for a person to obstruct or hinder a NOPSEMA inspector exercising their powers to conduct occupational work health and safety inspections of diving operations.
1.39The Explanatory Memorandum notes that the reverse burden of proof provisions in the bill are consistent with the Commonwealth Guide to Framing Commonwealth Offences.
Right to a fair and public hearing
1.40The Explanatory Memorandum states that the bill engages Article 14(1) of the ICCPR outlining the right of all persons to a fair and public hearing before a competent tribunal established by law.
1.41The amendments outlined in Part 1 of Schedule 1 seek to add provisions providing for the issuance of infringement notices which may constitute limitations on the right to a fair and public hearing. For example, item 9 of Part 1 of Schedule 1 would amend paragraph 611E(1)(j) of the OPGGS Act to make subclause 82(9D) subject to an infringement notice under Part 5 of the Regulatory Powers Act.
1.42The Explanatory Memorandum states that the ability to issue an infringement notice would allow NOPSEMA to respond quickly and appropriately to an alleged contravention as well as provide an additional avenue to enforce compliance with this provision.
1.43The Explanatory Memorandum notes that the infringement notice provisions in the bill are consistent with the Commonwealth Guide to Framing Commonwealth Offences.
Right to minimum guarantees in criminal proceedings
1.44The Explanatory Memorandum states that the bill engages the right of a person not to be compelled to testify against themselves or to confess guilt, otherwise known as the privilege against self-incrimination, as outlined by Article 14(3)(g) of the ICCPR.
1.45The amendments outlined in Part 1 of Schedule 1 seek to add provisions which may constitute limitations on this right. For example, the bill amends clause 74 of Schedule 3 to the OPGGS Act so that the provision applies during an OHS inspection on a dive vessel from which diving operations are being carried out. Under this subclause, a person is not excused from answering a question or producing a document or thing on the grounds of self-incrimination.
1.46The Explanatory Memorandum states that overriding the privilege against self-incrimination is necessary and appropriate in this case to ensure the proper administration of Schedule 3, particularly as it relates to a breach of OHS laws, and NOPSEMA’s ability to monitor compliance with similar provisions of the OPGGS Act.
1.47The Explanatory Memorandum notes that subclause 74(9) provides a ‘use’ and ‘derivative use’ immunity which affords some protection for the individual by placing constraints on the use of any self-incriminating evidence.
Right to privacy and reputation
1.48The Explanatory Memorandum states that the bill engages the right of every person to be protected against arbitrary or unlawful interference with their privacy, family, home, or correspondence, as well as unlawful attacks on their honour and reputation, as outlined in Article 17 of the ICCPR.
1.49The amendments outlined in Part 1 of Schedule 1 seek to add provisions which may constitute limitations on this right. For example, the bill includes amendments which extend the existing ability of NOPSEMA to conduct OHS inspections without a warrant to certain dive vessels being used in connection with diving operations.
1.50The Explanatory Memorandum states that these amendments will enhance NOPSEMA’s ability to monitor compliance with obligations under the OPGGS Act by expanding the scope of activities and vessels subject to its oversight. Further, the Explanatory Memorandum states that as the amendments are necessary to ensure the health and safety of workers in the industry, they constitute permissible limitations on the right to privacy and reputation.
Conclusion
1.51The Explanatory Memorandum concludes that the bill is compatible with human rights as any limitations it may impose on those rights which it engages are reasonable, necessary, and proportionate, and are therefore permissible.
Conduct of the inquiry
1.52The committee advertised the inquiry on its website and wrote to relevant stakeholders to invite them to make a written submission by 7 March 2024. The committee received 26 submissions, which are listed at Appendix 1.
Acknowledgements
1.53The committee thanks the individuals and organisations who assisted with the inquiry, particularly those who provided written submissions and gave evidence at the committee’s hearing.