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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE AMENDMENT
(TITLES ADMINISTRATION AND OTHER MEASURES) BILL 2021
OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE (REGULATORY
LEVIES) AMENDMENT BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Resources, Water and Northern Australia,
the Hon Keith Pitt MP)
TABLE OF CONTENTS
GLOSSARY ii
OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE AMENDMENT
(TITLES ADMINISTRATION AND OTHER MEASURES) BILL 2021 1
OUTLINE 1
FINANCIAL IMPACT STATEMENT 2
REGULATION IMPACT STATEMENT 2
CONSULTATION 2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS 4
NOTES ON CLAUSES 11
Schedule 1--Change in control of registered titleholders 13
Part 1--Main amendments 13
Part 2--Consequential amendments 45
Part 3--Application of amendments 62
Schedule 2--Trailing liability 63
Schedule 3--Applications and decision-making 89
Schedule 4--Information-gathering powers 255
Schedule 5--Digital readiness 258
Schedule 6--Other amendments 262
Schedule 7--Repeals 263
OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE (REGULATORY
LEVIES) AMENDMENT BILL 2021 264
OUTLINE 264
FINANCIAL IMPACT STATEMENT 265
CONSULTATION 265
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS 266
NOTES ON CLAUSES 267
Schedule 1--Amendments 268
REGULATORY IMPACT STATEMENT 273
i
GLOSSARY
Abbreviation Definition
Bill The Offshore Petroleum and Greenhouse
Gas Storage (Titles Administration and
Other Measures) Bill 2021
Corporations Act The Corporations Act 2001
Crimes Act The Crimes Act 1914
Criminal Code The Criminal Code Act 1995
Cross-boundary Authority The key decision-maker with respect to
cross-boundary GHG titles under the
OPGGS Act. Constituted by the responsible
Commonwealth Minister and the
responsible State Minister/responsible
Northern Territory Minister. There is only a
Cross-boundary Authority for a particular
offshore area if the responsible State
Minister or responsible Northern Territory
Minister has consented to being a member
of the Cross-boundary Authority for that
offshore area.
Dealing A transaction in relation to a title that has
one or more of the effects set out in the table
in section 486 (petroleum titles) or 537
(greenhouse gas titles) of the OPGGS Act
FATA The Foreign Acquisitions and Takeovers
Act 1975
GHG Greenhouse gas
Government The Australian Government
Joint Authority The key decision-maker with respect to
petroleum titles under the OPGGS Act.
Generally constituted by the responsible
Commonwealth Minister and the
responsible State Minister/responsible
Northern Territory Minister
NOPSEMA The National Offshore Petroleum Safety
and Environmental Management Authority
ii
OPGGS Act The Offshore Petroleum and Greenhouse
Gas Storage Act 2006
Regulatory Levies Bill The Offshore Petroleum and Greenhouse
Gas Storage (Regulatory Levies)
Amendment Bill 2021, cognate with the Bill
Regulatory Powers Act The Regulatory Powers (Standard
Provisions) Act 2014
Responsible Commonwealth Minister The Minister responsible for the
administration of the OPGGS Act
Responsible Northern Territory Minister The Northern Territory Minister responsible
for administration of laws of the Northern
Territory that correspond to the OPGGS Act
Responsible State Minister The State Minister responsible for
administration of laws of the State that
correspond to the OPGGS Act
Royalty Act The Offshore Petroleum (Royalty) Act 2006
Titles Administrator The National Offshore Petroleum Titles
Administrator
Walker Review The independent Review into the
Circumstances Leading to the
Administration and Liquidation of Northern
Oil and Gas Australia
iii
OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE
AMENDMENT (TITLES ADMINISTRATION AND OTHER
MEASURES) BILL 2021
OUTLINE
The Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and
Other Measures) Bill 2021 (the Bill) strengthens Australia's offshore oil and gas regulatory
regime to ensure that emerging decommissioning challenges facing the industry are able to be
managed effectively, and the costs of decommissioning an offshore project remain with the
entity or entities who are or were responsible for, or had the capacity to influence, the
carrying out of the project, and does not fall to Australian taxpayers.
To achieve this objective, the Bill amends the Offshore Petroleum and Greenhouse Gas
Storage Act 2006 (the OPGGS Act) to provide for increased government oversight and
scrutiny of entities throughout the life of an offshore project, from exploration through to
development and eventual decommissioning. This is to ensure that entities are suitable
(including being capable, competent and well-governed) to both carry out the petroleum or
greenhouse gas (GHG) activities and discharge the obligations under the OPGGS Act,
including decommissioning infrastructure and remediating the marine environment.
The Bill:
provides for oversight of changes in control of titleholders (such as through a
corporate merger or acquisition);
expands existing powers to 'call back' previous titleholders to decommission
infrastructure and remediate the marine environment in the title area where the current
or immediate former titleholder is unable to do so (known as 'trailing liability');
provides for specific decision-making criteria and expanded information-gathering
powers to assess the suitability of entities wishing to enter into or progress through the
regime; and
includes minor and technical amendments to improve the operation of the OPGGS
Act, including enabling electronic lodgement of applications.
The Bill implements aspects of the Australian Government's Enhanced Offshore Oil and Gas
Decommissioning Framework and relevant recommendations from the Independent Review
into the Circumstances Leading to the Administration and Liquidation of Northern Oil and
Gas Australia (referred to as the Walker Review).
The Bill provides for government oversight of transactions involving a change in the control
of a petroleum or GHG titleholder. The sale of an offshore project is meant to be captured as
a transfer of the title or titles related to the project, which is already provided for under the
OPGGS Act. But it is also common for the industry (both in Australian and overseas) for an
offshore project to be transferred via the sale of the shares in the company that is the
titleholder. Such transactions are not currently captured by the OPGGS Act because there is
no transfer of the interests of the title or titles.
1
The Bill provides for trailing liability by expanding the remedial directions provisions in the
OPGGS Act to require any former titleholder, or a 'related person' of a current or any former
titleholder, to carry out decommissioning if the current or immediate former titleholder is
unable to do so. Trailing liability is intended to be a measure of last resort where all other
regulatory options have been exhausted. It aims to ensure that the risks and liabilities of
petroleum activities remain the responsibility of those who held, or had the ability to
influence operations under, the title, and change industry behaviour by increasing the due
diligence undertaken by companies regarding who they sell their assets to.
The Bill increases regulatory oversight and scrutiny by providing for specific decision-
making criteria at decision points across the OPGGS Act to ensure entities are suitable on
entry into the regime, and remain suitable throughout the life of the project. It also expands
the types of information that may be requested by the relevant decision maker from the
applicant or applicants seeking to either enter into or progress through the regime. This
ensures that the Australian Government will be better equipped to screen applicants, which in
turn will reduce the risk that an entity who does not meet these suitability requirements will
acquire interests in an offshore project and associated title(s).
In determining whether an applicant is suitable, the relevant decision maker will consider a
range of factors including (but not limited to): technical and financial capacity, experience,
compliance history, corporate governance, and any previous bankruptcy or insolvency. As is
the case with the existing decision-making powers in the OPGGS Act, the relevant decision
maker has the discretion to, and may request, additional information on a case-by-case basis
to inform its decision regarding the application.
The Bill also provides for amendments to improve the administration of petroleum and GHG
titles, including providing for electronic lodgement of applications and other documentation
and reports, modernising administrative processes, repealing redundant and spent amendment
Acts, and making minor and technical amendments to improve the overall operation of the
OPGGS Act.
FINANCIAL IMPACT STATEMENT
The Bill is expected to have nil financial impact.
REGULATION IMPACT STATEMENT
A Regulation Impact Statement (RIS) has been prepared for the following amendments
contained in the Bill in accordance with the Australian Government Guide to Regulation:
changes in control of titleholders, trailing liability and decision-making criteria. The RIS
meets the Government's regulatory impact assessment requirements (OBPR ID Number:
25323) and is included at the end of this combined Explanatory Memorandum.
CONSULTATION
Significant consultation was undertaken throughout the policy planning and drafting process
of the Bill, including:public consultation with a range of stakeholders, including the industry,
environmental groups, fishing groups, academia, government and law firms, on the
Enhanced Offshore Oil and Gas Decommissioning Framework as part of the
2
department's Decommissioning Review, which included the release of a discussion
paper, invitation of submissions and targeted stakeholder workshops;
consultation with the industry, the National Offshore Petroleum Titles Administrator
(NOPTA) and the National Offshore Petroleum Safety and Environmental
Management Authority (NOPSEMA), as part of the Walker Review;
a workshop with the industry through its peak body, the Australian Petroleum
Production and Exploration Association (APPEA), on the Government's proposed
legislative measures; and
public consultation on an Exposure Draft of the Bill, which invited written
submissions from all stakeholders and included face-to-face meetings with key
stakeholders.
3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and
Other Measures) Bill 2021
This 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.
Overview of the Bill
This Bill strengthens Australia's offshore oil and gas regulatory regime to ensure that
emerging decommissioning challenges facing the industry are able to be managed effectively,
and the costs of decommissioning an offshore project remain with the entity or entities who
are or were responsible for, or had the capacity to influence, the carrying out of the project,
and does not fall to Australian taxpayers.
To achieve this objective the Bill amends the Offshore Petroleum and Greenhouse Gas
Storage Act 2006 (the OPGGS Act) to provide for increased government oversight and
scrutiny of entities throughout the life of an offshore project, from exploration through to
development and eventual decommissioning. This is to ensure that entities are suitable
(including being capable, competent and well-governed) to both carry out the petroleum or
greenhouse gas (GHG) activities and discharge the obligations under the OPGGS Act,
including decommissioning infrastructure and remediating the marine environment.
The Bill:
provides for oversight of changes in control of titleholders (such as through a
corporate merger or acquisition);
expands existing powers to 'call back' previous titleholders to decommission
infrastructure and remediate the marine environment in the title area where the current
or immediate former titleholder is unable to do so (known as 'trailing liability');
provides for specific decision-making criteria and expanded information-gathering
powers to assess the suitability of entities wishing to enter into or progress through the
regime; and
includes minor and technical amendments to improve the operation of the OPGGS
Act, including enabling electronic lodgement of applications.
The Bill implements aspects of the Australian Government's Enhanced Offshore Oil and Gas
Decommissioning Framework and relevant recommendations from the independent Review
into the Circumstances Leading to the Administration and Liquidation of Northern Oil and
Gas Australia (referred to as the Walker Review).
Human rights implications
This Bill engages, or has the potential to engage, the following rights:
Article 14 of the International Covenant on Civil and Political Rights (the ICCPR) -
criminal process rights, specifically the right to be presumed innocent until proven
guilty according to law and the right to minimum guarantees in criminal proceedings;
and
Article 17 of the ICCPR - right to privacy and reputation.
4
Right to be presumed innocent until proven guilty (Article 14(2) of the ICCPR)
Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have
the right to be presumed innocent until proven guilty according to law. Generally,
consistency with the presumption of innocence requires the prosecution to prove each
element of an offence beyond reasonable doubt. Offences that place an evidential burden on
the defendant will engage the presumption of innocence. This is because a defendant's failure
to discharge the burden may permit their conviction despite reasonable doubt as to their guilt.
Reverse burden provision
New sections 566N and 566P (inserted by item 1 of Schedule 1 to the Bill) create civil
penalty provisions that reverse the onus of proof on the defendant. Although these do not
technically engage article 14(2) of the ICCPR because they relate to civil penalty provisions
rather than offences, a discussion of the provisions is included for completeness given their
nature in deterring non-compliance and severity.
A person contravenes subsection 566N(1) if the person begins or ceases to control a
titleholder and either the National Offshore Petroleum Titles Administrator (the Titles
Administrator) has not approved the change in control, or the Titles Administrator has
approved the change in control but the change took effect after the end of the approval
period. Under subsection 566N(3), a person is liable to a civil penalty if the person
contravenes subsection (1). Subsection 566N(4) provides that subsection (3) does not apply if
the person did not know, and could not reasonably be expected to have known, that the
person had begun or ceased to control the titleholder.
A person contravenes subsection 566P(1) if the person begins or ceases to control a
titleholder that either was not approved, or was approved but took effect after the approval
period, and the person does not notify the Titles Administrator of the change in control within
30 days of the change in control taking effect. Under subsection 566P(2), a person is liable to
a civil penalty if the person contravenes subsection (1). Subsection 566P(4) provides that
subsection (2) does not apply if the person did not know, and could not reasonably be
expected to have known, that the person had begun or ceased to control the titleholder.
In both cases, due to the operation of section 96 of the Regulatory Powers (Standard
Provisions) Act 2014 (the Regulatory Powers Act) (which is triggered by the OPGGS Act for
the purposes of civil penalty provisions), a person who wishes to rely on the exception in
proceedings for a civil penalty order bears an evidential burden in relation to that matter.
When a defendant bears an evidential burden in relation to a matter, it means that the
defendant bears the burden of adducing or pointing to evidence suggesting a reasonable
possibility that the exception has been met.
The burden of proof is reversed because the matter is likely to be exclusively within the
knowledge of the defendant. This is particularly the case given the potentially complex and
sizeable corporate structures of entities that may control a registered holder of a title under
the OPGGS Act. It is therefore reasonable to require the defendant to adduce evidence in
relation to this exception. This is consistent with A Guide To Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers (September 2011 edition), which
states that where the facts of a defence are peculiarly within a defendant's knowledge, it may
be appropriate for the burden of proof to be placed on the defendant.
5
The right to minimum guarantees in criminal proceedings (Article 14(3) of the ICCPR)
Article 14(3) of the ICCPR establishes a number of guarantees that must be observed in
criminal proceedings. These include the right for a person to examine the witnesses against
the person (Article 14(3)(e)) and the right to not be compelled to testify against themselves or
to confess guilt (Article 14(3)(g)). These rights may be subject to permissible limitations
where those limitations are provided by law and are non-arbitrary. In order for limitations not
to be arbitrary, they must be aimed at a legitimate objective and be reasonable, necessary and
proportionate to that objective.
Evidentiary certificates
New subsections 566ZE(3) and (4) (inserted by item 1 of Schedule 1 to the Bill) engage the
presumption of innocence by enabling the Titles Administrator to issue a certificate stating
that an entry, matter or thing required by new Chapter 5A to be made or done, or not to be
made or done, has in fact been made or done, or has not been made or done (referred to as an
evidentiary certificate). The certificate is to be received in all courts and proceedings as
prima facie evidence of the statements in the certificate.
The objective of these provisions is to ensure that all relevant evidence is before the court.
The Titles Administrator will provide evidentiary certificates which settle formal or technical
matters of fact that would be difficult to prove by adducing admissible evidence.
Allowing the certificate as prima facie evidence of limited matters is reasonable. Evidentiary
certificates promote efficiency by removing delays arising from obtaining evidence with
more traditional methods, freeing up the court's time to consider the more serious issues
related to the offence.
New subsections 566ZE(5) to (8) provide procedural safeguards consistent with
Commonwealth criminal law principles about the use of evidentiary certificates in view of
the fact that their use may affect the fairness of proceedings, to ensure the defendant's rights
are not unduly limited. Evidentiary certificates establish prima facie evidence of the matters
contained in the certificate, as opposed to conclusive evidence. As such, the certificates create
a rebuttable presumption of the facts that the defendant may challenge during court
proceedings.
An evidentiary certificate issued under subsection 566(3) must not be admitted in evidence in
proceedings for an offence unless the person charged with the offence, or a barrister or
solicitor who has appeared for the person, has been given a copy of the certificate and notice
of the intention to produce the certificate as evidence in the proceedings at least 14 days
before the certificate is sought to be so admitted. If the certificate is admitted, the person
charged with the offence may require the person who signed the certificate to be called as a
witness for the prosecution and cross-examined. Further, any evidence given in support or
rebuttal of a matter stated in a certificate must be considered on its merits.
The rationale for inclusion of the provision, together with the safeguards for the defendant,
ensure this clause is necessary and proportionate to achieve the legitimate objective of
establishing facts in criminal proceedings.
6
Abrogation against the privilege against self-incrimination in relation to information-
gathering under new Part 5A.4
Article 14(3)(g) of the ICCPR provides for 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. The privilege against self-incrimination may be subject to permissible
limitations where those limitations are provided by law and are non-arbitrary. In order for
limitations not to be arbitrary, they must be aimed at a legitimate objective and be reasonable,
necessary and proportionate to that objective.
New subsection 566R(2) (inserted by item 1 of Schedule 1 to the Bill) empowers the Titles
Administrator to require a person to give information or evidence or produce a document if
the Titles Administrator believes on reasonable grounds that the person has information or a
document relevant to one of the following matters:
a) the Titles Administrator believes on reasonable grounds that there has been, or will
be, a change in control of a titleholder;
b) an application is made for approval of a change in control of a titleholder;
c) the approval period for a change in control of a titleholder has not ended and the
Titles Administrator believes on reasonable grounds that there has been, or will be, a
change in the circumstances of a person approved to begin or cease to control the
titleholder.
Under new section 566T, a person is not excused from giving information or evidence or
producing a document on the ground that the information or evidence or the production of the
document might tend to incriminate the person in relation to an offence. However, the
information or evidence given or document produced, the fact of giving or producing the
information, evidence or document, or any information, document or thing obtained as a
direct or indirect consequence of the giving or production, is not admissible in evidence
against the person in any criminal proceedings, other than a proceeding in relation to an
offence for the provision of false or misleading information, documents or evidence (see
subsection 566T(2)).
The objective of these provisions is to ensure the Titles Administrator can obtain information
or documents relevant to the proper administration of Chapter 5A. Where matters relating to
the effective oversight of changes in control are concerned, it may occasionally be more
important to establish the facts rather than to be able to use the facts in the prosecution of an
offence. Maintaining a privilege against self-incrimination may significantly hamper the
Titles Administrator's ability to administer provisions relating to the oversight of changes in
control of a titleholder, and thereby seriously undermine the effectiveness of the offshore
regime.
Section 566T abrogates the privilege against self-incrimination, but also provides an
immunity against the use or derivative use of the information, documents or evidence given
in criminal proceedings, other than a proceeding in relation to an offence for the provision of
false or misleading information, documents or evidence. This section therefore ensures the
Titles Administrator has sufficiently broad information-gathering powers to establish facts,
while protecting individuals from proceedings on the basis of providing the information
evidence or documents. This safeguard ensures that section 566T is reasonable and
7
proportionate to meeting this objective, and therefore the provision meet Australia's human
rights obligations to afford minimum guarantees in criminal proceedings.
Summary
The Bill is compatible with the criminal process rights contained in Article 14 of the ICCPR
because the measures in the Bill engage, but do not limit, those rights.
Right to privacy and reputation (Article 17 of the ICCPR)
Article 17 of the ICCPR provides for 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. It also provides that a person has the right
to the protection of the law against such interference or attacks.
The right to privacy and reputation may be limited, provided that the interference with the
right is authorised by law and not arbitrary. In order for limitations not to be arbitrary, they
must be aimed at a legitimate objective and be reasonable, necessary and proportionate to that
objective.
Provision of information
The Bill includes measures that may require persons to provide information or documents that
include personal information. The measures include:
Providing for the relevant decision-maker to take into account the suitability of an
applicant when making a decision in relation to the grant, renewal or transfer of a
petroleum or GHG title, or the approval of a change in control of a registered holder of
a petroleum or GHG title. For example, where a decision provides for the entry of a
person into the offshore regime (such as the grant of a petroleum exploration permit or
a transfer of a petroleum or GHG title), suitability matters may require the provision of
information about the directors and other officers of the applicant, such as their past
compliance with the OPGGS Act and certain provisions of the Corporations Act 2001
(the Corporations Act), any previous history of bankruptcy or insolvency, and
experience in offshore petroleum or GHG operations.
Requiring a person who is an applicant for the grant, renewal or transfer of a petroleum
or GHG title, or who is a current registered holder of a title, to notify the Titles
Administrator and the National Offshore Petroleum Safety and Environmental
Management Authority (NOPSEMA) in certain circumstances, such as if the person is
found guilty of an offence against, or ordered to pay a pecuniary penalty for a
contravention of, a law of the Commonwealth or of a State or Territory involving fraud
or dishonesty, becomes insolvent, or is disqualified from managing corporations under
Part 2D.6 of the Corporations Act.
Given the nature of the offshore oil and gas industry, almost every applicant and titleholder is
a corporation, and most of the information required to be provided will be corporate
information. However, applications may require the provision of 'personal information',
within the meaning of the Privacy Act 1988 (the Privacy Act), where they require information
about the directors or other officers of a body corporate.
The measures of the Bill are aimed at achieving the legitimate objective of increasing
regulatory oversight and scrutiny to ensure entities who enter the offshore regime are suitable
to carry out petroleum or GHG activities in Australia's offshore areas, and that they remain
8
suitable throughout the life of the project. This will in turn reduce the risk that an entity who
does not meet these suitability requirements will acquire interests in an offshore project and
the related title or titles.
There are potentially significant adverse consequences if an entity that does not meet
suitability requirements acquires interests in an offshore project, whether through the grant or
transfer of a title or beginning to control a registered holder of a title. For example, the person
may be unable to meet legislation requirements in relation to safety or the environment,
potentially resulting in major accident events or severe environmental damage. These
potential consequences require that the offshore regime be supported by robust regulatory
controls, particularly at key titles decision points. To this end, it is essential that decision-
makers can obtain sufficient information to be able to assess whether an applicant is suitable
to hold the title. The Titles Administrator and NOPSEMA also require notification of changes
of circumstances that relate to the ongoing suitability of persons to hold a title, and thereby
enable the Titles Administrator and NOPSEMA to take appropriate action, including, for
example, compliance monitoring or enforcement.
The interference with privacy is not arbitrary in these circumstances because the specific
decision-making criteria with respect to which a person will be required to provide
information in an application will be prescribed in the OPGGS Act. These matters will be
expressly prescribed with sufficient clarity to ensure that there will be an appropriate legal
basis for determining whether to approve or refuse an application for the grant, etc., of a
title. In addition, the OPGGS Act will clearly specify when a person is required to notify the
Titles Administrator and NOPSEMA about a change in circumstances that goes to the
suitability of a person to hold a petroleum or GHG title (see new subsection 695YC(2),
inserted by item 231 of Schedule 3). In all cases, the information required will be directly
relevant to the suitability and capability of an entity to participate in the offshore regime.
The Parliamentary Joint Committee on Human Rights has indicated in guidance that whether
a person has a reasonable expectation of privacy in the circumstances is relevant to the issue
of determining whether or not a clause is permissible. If an entity applies for the grant,
renewal or transfer of a title, or a change in control of a titleholder, it is reasonable to expect
that a certain amount and type of information about the compliance and management history
of directors, other officers or other employees in management or control of the entity will
need to be provided to support the application, and ensure that only those entities that are
suitable of carrying out activities and discharging obligations are permitted to enter and
remain in the regime.
The provision of information is necessary for appropriate oversight and decision-making that
mitigates the risk inherent in the industry. In addition, the provision of personal information
pursuant to these amendments is appropriately safeguarded from arbitrary use in the
following ways:
any personal information received is subject to the Privacy Act, which regulates the
collection, storage, use and disclosure of personal information;
personal information will be used solely for the purpose of assessing the suitability of
entities to enter or continue to participate in the offshore regime, and will not be
made publicly available;
9
information cannot be shared arbitrarily because the information-sharing provisions
of the OPGGS Act (which allow information to be shared between the responsible
Commonwealth Minister, the Secretary of the Department of Industry, Science,
Energy and Resources, NOPSEMA, the Titles Administrator, each member of a Joint
Authority and each member of a Cross-boundary Authority) are restricted to sharing
for the purpose of the exercise of powers or the performance of functions under the
OPGGS Act, or the administration of the OPGGS Act; and
if personal information is shared under the information-sharing provisions of the
OPGGS Act, it is required to be de-identified where possible, pursuant to section
695Y of the OPGGS Act.
Taking into account the rationale for requiring the information and the safeguards on
collection, use and disclosure of the information, the impact of the provisions on the right
against arbitrary interference with privacy is minimal, and accordingly is proportionate to the
objective of the amendments. To the extent that the measures limit the right of individuals
against arbitrary interference with their privacy under Article 17 of the ICCPR, this
limitation is necessary, proportionate and reasonable to achieve the legitimate objectives of
these measures.
Summary
The Bill is compatible with the right to privacy in Article 17 of the ICCPR because to the
extent that it may limit that right, that limitation is reasonable, necessary and proportionate
to the achievement of a legitimate objective.
Conclusion
The Bill is compatible with human rights because to the extent that it may limit human rights,
those limitations are reasonable, necessary and proportionate.
The Minister for Resources, Water and Northern Australia,
the Hon Keith Pitt MP
10
OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE AMENDMENT
(TITLES ADMINISTRATION AND OTHER MEASURES) BILL 2021
NOTES ON CLAUSES
Clause 1: Short title
1. This is a formal provision specifying the short title of the Act.
Clause 2: Commencement
2. The table in this clause sets out the commencement date for when the Bill's provisions
commence.
3. Sections 1 to 3 and anything in the Bill not elsewhere covered by the table will
commence on the day that the Bill receives Royal Assent.
4. Schedule 1 will commence immediately after the commencement of Schedule 3.
Schedule 1 amends provisions that will be inserted by Schedule 3, and therefore must
commence after that Schedule. The delay in commencement of Schedule 1 (given that
Schedule 3 has a delayed commencement) will also enable time for preparation and
implementation of the changes made by that Schedule by the Titles Administrator and
industry stakeholders.
5. Schedules 2 and 3 will commence on a day to be fixed by Proclamation. The delay in
commencement of the amendments made by Schedule 2 will enable time for
consequential amendments to be made to regulations under the OPGGS Act. The delay
in commencement of the amendments made by Schedule 3 will enable time for the
Titles Administrator to publish an approved form and manner for giving certain notices
and applications.
6. If Proclamation does not occur within six months of Royal Assent, then Schedules 2
and 3 will automatically commence on the day after the end of that period.
7. Schedules 4 and 7 commence on the day after the Bill receives Royal Assent.
8. Schedule 5 will commence on a day to be fixed by Proclamation. The delay in
commencement of the amendments will enable the Titles Administrator to prepare and
implement the approved form and manner of giving notice for registered holders of
petroleum and GHG titleholders.
9. If Proclamation does not occur within six months of Royal Assent, then Schedule 5 will
automatically commence on the day after the end of that period.
10. Schedule 6 will commence on a day to be fixed by Proclamation. The amendments will
commence by Proclamation to allow time for necessary consequential amendments to
regulations under the OPGGS Act to be made.
11. The amendments will need to commence at the same time as the Offshore Petroleum
and Greenhouse Gas Storage (Environment) Regulations 2009 (the Environment
Regulations) are remade, in order to prescribe the name of the remade Regulations for
the purposes of the regulations references provisions inserted by Schedule 6. Given
interdependencies with the remake of the Offshore Petroleum and Greenhouse Gas
Storage (Regulatory Levies) Regulations 2004, the remake of the Environment
Regulations will not be submitted to the Federal Executive Council until at least early
2022. Further, the remade Environment Regulations will have a 6 month delayed
11
commencement to enable time for industry and the regulator to adjust guidance and
processes (noting the Environment Regulations will change substantially in form,
although not in content). Providing for a delayed commencement of a maximum of
18 months will ensure that the amendments made by Schedule 6 will not automatically
commence before the remade Environment Regulations have commenced.
12. If Proclamation does not occur within 18 months of Royal Assent, then Schedule 6 will
commences on the day after the end of that period.
Clause 3: Schedules
13. This clause gives effect to the provisions in the Schedules to the Bill.
12
Schedule 1--Change in control of registered titleholders
Part 1--Main amendments
Offshore Petroleum and Greenhouse Gas Storage Act 2006
Item 1: After Chapter 5
14. This item inserts new Chapter 5A into the OPGGS Act, which regulates changes in
control of registered holders of certain petroleum and GHG titles (see the definition of a
title in section 566A). A registered holder of a title is also referred to as a 'titleholder'.
15. The transfer of the ownership or control of an offshore project is meant to be captured
by the OPGGS Act as a transfer of the title or titles related to the project under either
Part 4.3 in Chapter 4 (for petroleum titles) or Part 5.3 in Chapters 5 (for GHG titles).
Government oversight of transfers of titles is crucial to ensuring that those who wish to
acquire rights to explore for or exploit resources in offshore areas are suitable to do so.
This includes being technically and financially capable to both carry out petroleum or
GHG activities in the title area or areas and comply with legislative requirements,
including decommissioning.
16. However, it is also common industry practice in Australia and other countries for an
offshore project to be bought and sold through a transfer of the interests in the
registered holder of the title, which are typically the shares in the company who is the
titleholder. Such transactions (referred to as a 'change in control' of a titleholder) are
not captured by Parts 4.3 or 5.3 or otherwise subject to government oversight under the
OPGGS Act. This is because a change in control of a titleholder involves a transfer of
the interests in the titleholder (that is, the shares in the company that is the titleholder),
not the title held by the titleholder. This type of transaction is not uncommon in
Australia or international jurisdictions and may impact the titleholder's ability to
finance and meet its obligations under the OPGGS Act.
17. This measure implements Recommendation 3 of the Walker Review to provide for
increased government oversight of company level transactions. A change in control of a
titleholder through a sale of the shares in the titleholder was a key part of the
transaction that resulted in a relatively small company with no experience in offshore
petroleum operations acquiring the ownership of the Northern Endeavour in the
Laminaria and Corallina oil fields.
18. In providing for increased government oversight of changes in control of titleholders,
this measure aims to ensure that a titleholder will remain suitable (including technically
and financially capable) to hold the title as a result of a transaction in which an offshore
project is proposed to be bought and sold, but is not currently captured by a transfer of
the related title or titles.
Chapter 5A--Change in control of a registered holder of a title
Part 5A.1--Introduction
Section 566 Simplified outline of this Chapter
19. This section provides for a simplified outline of Chapter 5A. This outline does not form
part of the operative text of the OPGGS Act and is not intended to be comprehensive.
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Instead, it is intended that the reader will rely on the substantive provisions in Chapter
5A.
20. A change in control of a titleholder occurs if a person begins or ceases to control the
titleholder (see section 566B for the definitions of control and a change in control of a
registered holder of a title). A change in control of a titleholder may also be traced to a
change in control of the companies, trusts or partnerships which control the titleholder
(see section 566Z for the tracing provision).
21. If a change in control of a titleholder takes effect without approval by the Titles
Administrator, the person who begins or ceases to control the titleholder may commit
an offence or be liable to a civil penalty. A person may also commit an offence or be
liable to a civil penalty if the person enters into or carries out a scheme for the purpose
of avoiding the application of the penalty provisions in Part 5A.3 of Chapter 5A (see
section 566ZA for the anti-avoidance provision). Certain contraventions of provisions
in Chapter 5A are also grounds to cancel the title.
22. The Titles Administrator may obtain information, documents or evidence in relation to
a change in control of a titleholder, including a possible change in control.
Section 566A Definitions
23. This section defines the terms used in Chapter 5A. It also includes signpost definitions
of control and a change in control of a registered holder of a title, which are fully
defined in section 566B.
Approval period
24. The definition of approval period provides the period in which a decision to approve a
change in control of a registered holder under paragraph 566D(2)(a) is of effect.
25. The approval period will start on the day that the notice of approval for the change in
control is given under subsection 566E(1) and expire nine months after that day, unless
it ends earlier because either the change in control has taken effect or the Titles
Administrator has revoked the approval under subsection 566J(1). If the change in
control takes effect, the approval period will end immediately after it takes effect. If the
Titles Administrator revokes the approval, the approval period will end when the notice
of revocation is given under subsection 566J(2).
26. The rationale for an approval period of up to nine months is to provide the parties to a
transaction proposing to effect a change in control that has been approved with a
reasonable period within which to obtain any other regulatory approvals necessary to
give effect to the transaction. Nine months represents a reasonable cut-off point for the
approval to be of effect to ensure that information provided to the Titles Administrator
with the application for approval of the change in control remains current, while
providing the parties to such a transaction flexibility in obtaining any other regulatory
approvals.
27. It is common industry practice for a transaction proposing to effect a change in the
ownership or control of an offshore project (including by way of a sale of the shares in
the company that is the titleholder) to be executed before the parties apply for the
relevant regulatory approvals. However, the transaction will typically be subject to a
14
condition that one or more of the parties are required to obtain the relevant regulatory
approvals for the transaction to take effect (which may include, for example, receiving
a 'no objections notification' or obtaining an 'exemption certificate' for any transaction
involving a foreign acquisition or takeover under the FATA). This means that the
transaction is of no effect in contract law unless each relevant regulatory approval has
been obtained.
28. It will be a matter for the parties to such a transaction to obtain any other relevant
regulatory approvals before the expiry of the approval period. If the approval period
expires, the parties may make another application for the approval of the change in
control if they wish to proceed with the transaction, although they may be required to
provide further information or documents, and such an application will be required to
be accompanied by the application fee (if any) prescribed by the regulations (see
section 566M).
Register and title
29. For the purposes of Chapter 5A, the terms Register and title are defined differently
compared to other uses of these terms in other provisions of the OPGGS Act. Both
definitions apply to the following titles:
a. a petroleum exploration permit;
b. a petroleum retention lease;
c. a petroleum production licence;
d. an infrastructure licence;
e. a pipeline licence;
f. a GHG assessment permit;
g. a GHG holding lease;
h. a GHG injection licence.
30. The term Register is defined to mean the relevant Register kept under either section
469 or section 521 in relation to these titles. The term title is defined to mean any of
these titles. This means that a change in control of a registered holder of any of these
titles is subject to Chapter 5A.
Section 566B Meaning of control and change in control of registered holder
31. This section defines control and a change in control of a registered holder of a title,
which are central concepts in Chapter 5A. This is because, if a change in control of a
titleholder takes effect without approval by the Titles Administrator, those who began
or ceased to control the titleholder may contravene the penalty provisions in Part 5A.3
of Chapter 5A and, consequently, commit an offence or be liable to a civil penalty (see
section 566N). The title or titles held by the titleholder may also be cancelled.
Control
32. For the purposes of a change in control of a registered holder of a title under
subsection (4), a person controls a titleholder if the person either:
a. holds the power to exercise, or control the exercise of, 20 per cent or more of the
voting rights in the titleholder, or
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b. holds, or holds an interest in, 20 per cent or more of the issued securities in the
titleholder.
33. This definition, including the 20 per cent control threshold, is crucial for the
Government to be able to oversight transactions proposing to effect a change in control
of a titleholder to ensure that the titleholder's ability to comply with its obligations
under the OPGGS Act will not be adversely impacted.
34. The terms 'voting rights' and 'issued securities' are not defined, which means the
ordinary meaning of these terms apply. Despite this, these terms reflect, but do not
necessarily rely on, similar concepts in other Commonwealth laws, notably:
a. the definitions of 'voting power' in a body corporate in section 610 of the
Corporations Act and 'voting power' in an entity or unincorporated limited
partnership in section 22 of the FATA, which means a percentage of votes that
might be cast at a general meeting of the entity or partnership;
b. the definition of 'control' in relation to control of the voting power in an entity in
section 23 of the FATA, which applies whether the power is direct or indirect, and
whether it is as a result or by means of agreements or practices that have legal or
equitable force, or are based on legal or equitable rights; and
c. the definition of 'securities' in section 92 of the Corporations Act, which includes
shares in a body corporate.
35. The definition of control incorporates two key concepts: control and ownership. A
change in control of a titleholder applies not only to persons who propose to be in a
position to exercise control or influence over the titleholder, but also to those who
propose to hold a substantial interest in the titleholder but may not be able to exercise
such control or influence. For example, a person might propose to acquire 20 per cent
or more of the shares in a titleholder and thereby become a significant source of the
financial resources available to the titleholder. However, the person may be unable to
exercise control or influence over the titleholder because of the nature of those shares
(that is, if those shares do not confer voting rights on the holder and therefore do not
entitle them to exercise, or control the exercise of, a right to vote at a meeting of the
shareholders and other members of the titleholder).
36. The 20 per cent control threshold is consistent with similar acquisition thresholds in
other Commonwealth laws, including:
a. the '20 per cent rule' for takeovers under Chapter 6 of the Corporations Act, which
applies to the acquisition of a relevant interest in the voting power in a company
that increases a person's voting power in the company from 20 per cent or below to
more than 20 per cent (see sections 606, 608 and 609), and
b. the definition of a 'substantial interest' (which is an interest of at least 20 per cent)
in an Australian entity in relation to a 'change in control' of the entity under
section 54 of the FATA, which applies to an interest (including an interest in a
'security' or a share or shares in the corporation that is the Australian entity)
regardless of whether the interest confers voting power on the holder of the interest
(see section 4 for the definitions of 'interest', 'security' and 'share' and section 9
for an 'interest' in a security).
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37. The rationale for a 20 per cent control threshold for the purposes of the definition of
control in this section is that this percentage is regarded in Australia to be 'a suitably
arbitrary level falling short of the likelihood of actual control' or captures a level of
control of a company just before de facto or effective control occurs.1 While holding an
interest of more than 50 per cent of the shares in a company will likely confer on its
holder significant control or influence over the company, particularly if the shares
confer voting power, what will amount to effective control of any particular company
will depend on the distribution of its shares, which varies between each company. For
example, if there are three unrelated or unassociated shareholders that each hold one-
third of the issued shares of the same class in a company, each shareholder will hold
and be able to exercise the same level of control or influence over the company, which
is likely to be substantial (such as an equal say in the appointment and removal of
directors of the company, depending on its nature).
38. Subsection (3) confers a power to prescribe in the regulations a different percentage, or
different percentages, to the 20 per cent control threshold in paragraph (1)(a) or (b).
This power is commonly referred to as a 'Henry VIII clause' because it allows
delegated legislation to modify the operation of an Act.
39. Exercising this power would entail a minor or technical modification to ensure that the
control threshold remains up to date, particularly if the percentage of what is considered
to amount to effective control of a titleholder changes, or similar acquisition thresholds
in other Commonwealth laws change.
40. This power will likely be exercised rarely and sparingly. Any such modification will
also be subject to appropriate scrutiny through the regulation-making process, which
includes parliamentary tabling, scrutiny and potential disallowance. The industry will
also be notified of any such modification before it is commences to reduce any
potential increase in legislative complexity in having to understand and comply with a
modified control threshold that has been prescribed in the regulations.
41. This power will provide greater flexibility in addressing any potential over or under
regulation of transactions that practically amount to a change in control of a titleholder,
compared to pursuing a change to the 20 per cent control threshold through an
amendment to the OPGGS Act. Prescribing a different percentage or different
percentages in the regulations will ensure a modification to the control threshold may
be made in a timely, efficient and responsive manner, likely in a significantly shorter
timeframe compared with making the changes within the OPGGS Act.
Acts jointly with
42. A person may act alone or jointly with one or more other persons to control a
titleholder. A person acts jointly with another person if the person acts, or is
accustomed to acting, in agreement or accordance with the wishes of the other person.
This definition captures agreements or practices in which a person acts jointly or in
1
See paragraph [110] of the Companies and Securities Law Review Committee Report to the Ministerial
Council for Companies and Securities on the Takeover Threshold (November 1984), which is available here:
www.takeovers.gov.au/content/Resources/cslrc/cslrc_report_no_1.aspx.
17
concert with other persons to control a titleholder. Such agreements or practices might
include, for example, two or more related bodies corporate or joint venture partners
collectively acquiring or disposing of voting rights or issued securities in a titleholder
that triggers the definition of a change in control of the titleholder, even if each partner
or body individually holds or will hold a percentage of the voting rights or issued
securities that is less than 20 per cent.
Change in control
43. The definition of a change in control of a registered holder of a title defines how one or
more persons may begin or cease to control a titleholder. A change in control of a
titleholder occurs if one or more persons (described as an original controller) control
the titleholder at a particular time and, after that time, either:
a. one or more other persons begin to control the titleholder, which would involve
the acquisition of voting rights or issued securities in the titleholder so that the
person or persons (either alone or acting jointly) will begin to hold at least 20 per
cent of the voting rights or issued securities, or
b. the original controller ceases to control the titleholder, which would involve the
disposal of voting rights or issued securities in the titleholder so that the person or
persons will cease to hold at least 20 per cent of the voting rights or issued
securities.
44. A transaction proposing to effect a change in control of a titleholder may involve
persons either beginning or ceasing to control a titleholder, or both. For example:
a. Entity A holds 100 per cent of the shares in a titleholder, but transfers all of its
shares to Entity B. Entity A ceases to control the titleholder and Entity B begins to
control the titleholder.
b. Entity A holds 100 per cent of the shares in a titleholder and wishes to retain
control of the titleholder, but transfers 20 per cent of its shares to Entity B. Entity
A neither begins nor ceases to control the titleholder for the purposes of Chapter
5A (Entity A retains control), but Entity B begins to control the titleholder.
c. Entity A and Entity B each hold 50 per cent of the shares in a titleholder. Entity A
transfers all of its shares to Entity B. Entity A ceases to control the titleholder, but
Entity B neither begins nor ceases to control the titleholder for the purposes of
Chapter 5A (Entity B retains control).
45. If a person controls a titleholder (for example, the person holds 20 per cent or more of
the shares in the titleholder) and proposes to increase its shareholding, the person will
not be required to apply to the Titles Administrator for approval of that increase. This is
because the person already controls the titleholder and therefore there will be no change
in control. Similarly, a person who controls a titleholder may dispose of its shares in the
titleholder without approval, provided that the person does not cease to control the
titleholder by decreasing its shareholding to less than 20 per cent.
Part 5A.2--Application and approval of change in control of a registered holder
Section 566C Application for approval
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46. This section sets out how a person may apply to the Titles Administrator for the
approval of a change in control of a titleholder, including the requirements of
applications.
47. Only persons who propose to begin or cease to control a titleholder may make an
application to the Titles Administrator for approval of the change in control of the
titleholder. However, similar to an application for the approval of a transfer of a title or
a dealing in relation to a title, it is sufficient for just one of the parties to the transaction
proposing to effect the change in control to make the application, rather than each party
(that is, each person who proposes to begin or cease to control the titleholder). Provided
that the change in control has been approved, no one beginning or ceasing to control the
titleholder will contravene the requirements in Part 5A.3 of Chapter 5A.
48. Applications are to be made with respect to each titleholder that will be subject to the
change in control, rather than with respect to each title. This means that, even if a
titleholder holds more than one title, only one application is required to be made for the
approval of the change in control of the titleholder. However, similar to transactions
involving multiple transfers or dealings, if a transaction involves a change in control of
multiple titleholders, a separate application will be required to be made for the approval
of the change in control of each titleholder.
49. Two notes are included at the end of subsection (1). Note 1 refers the reader to section
566N, which provides that a person who begins or ceases to control a titleholder where
the change in control has not been approved by the Titles Administrator may commit an
offence or be liable to a civil penalty. Note 2 refers the reader to section 566M, which
provides that the application for the approval of a change in control of a titleholder is
required to be accompanied by the application fee.
50. An application for the approval of a change in control of a titleholder must be made in a
manner, and be in the form, approved by the Titles Administrator. The application must
also be accompanied by any information or documents required by the form.
51. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner. Subsection (4) provides that, in approving the manner in which
applications must be made, the Titles Administrator must publish on its website a copy
of the instrument of approval. This instrument will set out the approved manner or
manners for applications to enable applicants to comply with the requirement in
paragraph (2)(a).
52. Additionally, providing for an approved form, rather than prescribing the information
requirements in the legislation, will enable the Titles Administrator to appropriately
tailor the information requirements for each type of application. If it becomes evident
that additional kinds of information are required for an application, or that some kinds
of information should not be required, the Titles Administrator will be able to amend
the form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) has recently been provided to the Titles Administrator and
19
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
53. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision under subsection 566D(2) (that is, a
decision whether or not to approve a change in control of a titleholder). The
accompanying information or documents required by the form might include, for
example, an original instrument or proposed instrument effecting the change in control,
a copy of that instrument or proposed instrument, or information or documents with
respect to the matters described in subsection 566D(4), including the technical advice
and financial resources that will be available to the titleholder after the change in
control takes effect (see paragraph 566D(5)(a)).
54. Subsection (3) specifies a period within which information or documents required to
accompany an application made under section 566C will be taken to accompany the
application, which is before the end of the 10-day period that began on the day after the
application was made. This subsection will provide applicants with flexibility in
making applications, particularly if, for example, information or documents will be
given from various sources. Specifying a period within which information or
documents are required to be given ensures applications, including any information or
documents required to accompany applications, are made within a reasonable period.
Section 566D Titles Administrator must decide whether to approve change in control
55. This section sets out the criteria the Titles Administrator must and may have regard to
in deciding whether or not to approve a change in control of a titleholder.
56. If an application for the approval of a change in control of a titleholder has been made
under section 566C, the Titles Administrator must decide whether to approve or refuse
to approve the change in control, and notify the applicant of the decision. (See the note
at the end of subsection (2), which refers the reader to this requirement to notify of the
decision in section 566E.)
57. In deciding whether or not to approve a change in control, the Titles Administrator
must have regard to the matters specified in subsection (5). These matters go to
determining whether or not the titleholder is suitable to hold the title after the
transaction takes effect. These matters include:
a. whether the technical advice and financial resources available to the titleholder
after the change in control takes effect are sufficient for the titleholder to continue
to hold the title or titles, specifically in:
i. carrying out the operations and works that are authorised by the title or
titles held by the titleholder, which may include any conditions of the title,
and
ii. discharging the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the OPGGS Act, in relation to that title or those
titles, and
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b. if a person will begin to control the titleholder, the matters specified in section
695YB as they apply to the person, including any officers of the person if the
person is a body corporate.
58. The matters specified in section 695YB go to the compliance history and experience in
offshore petroleum or GHG operations of the person or persons who will begin
controlling the titleholder, and will enable the Titles Administrator to scrutinise the
suitability of those who wish to acquire ownership or control of an offshore project
through the acquisition of control of the titleholder.
59. The amendment made by this section aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, including
those proposing to acquire or dispose of ownership or control of an offshore project
through the acquisition or disposal of control of a titleholder, which in turn will reduce
the risk that a possible change in control that will have an adverse impact on the
suitability of a titleholder will be approved. The policy rationale includes creating
confidence in the offshore regime and protecting the taxpayer, but does not aim to
provide due diligence for investors.
60. The Titles Administrator must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to acquire ownership or
control of an offshore project through the acquisition of control of the titleholder. These
matters might include, for example, additional matters that go to the adequacy of the
corporate governance of a person who will begin to control the titleholder.
61. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
62. Subsection (3) also enables the Titles Administrator to consult with the relevant
decision-makers and NOPSEMA, and have regard to any matters raised in those
consultations in deciding whether to approve or refuse the change in control (see
subsection (3) and subparagraph (4)(b)(i)). This criterion will enable the Titles
Administrator to take into account matters that are relevant to the decision, but not
necessarily within its purview. These matters might include, for example, resource
management or resource security considerations, or the titleholder's compliance history
(rather than the compliance history of the person or persons who will begin controlling
the titleholder).
63. The relevant decision-makers for petroleum titles include:
a. the Joint Authority, which is responsible for the grant, renewal and cancellation of,
and the imposition and variation of any conditions of, petroleum titles; and
b. the responsible Commonwealth Minister, who is able to exercise regulatory powers
in relation to resource management and resource security.
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64. The relevant decision-makers for GHG titles include:
a. the responsible Commonwealth Minister, who is responsible for the grant, renewal
and cancellation of, and the imposition and variation of any conditions of, GHG
titles; and
b. the Cross-boundary Authority, who is responsible for the grant and renewal of,
and the imposition and variation of any conditions of, cross-boundary GHG titles.
65. The Titles Administrator may also take into account any other matters it considers
relevant. This criterion ensures that the broad decision-making discretion that currently
applies at similar decision points in the OPGGS Act (for example, the grant of a
petroleum exploration permit or GHG assessment permit, or the transfer of a petroleum
or GHG title) also applies at this decision point.
66. These amendments will provide the Titles Administrator with administrative discretion
to either approve or refuse to approve a change in control under subsection (2), but do
not provide for merits review of the Titles Administrator's decision. This is because
decisions allowing access to participate in the offshore resources regime, including
through the grant of titles and the imposition of title conditions, and through changes in
control of the registered holders of titles, are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Section 566E Notice of decision
67. This section provides that the Titles Administrator must give written notice of a
decision to either approve or refuse to approve a change in control of a titleholder under
subsection 566D(2) to the applicant.
68. The applicant is the person who will be given notice of the approval or refusal. This
means that, if only one of the parties to a transaction proposing to effect a change in
control made an application for approval under section 566C and therefore is given
notice of the approval or refusal, it will be up to that person to notify the other parties to
the transaction (that is, each person proposing to begin or cease controlling the
titleholder) of the approval or refusal.
Section 566F Retention and return of instrument
69. This section provides that, if an application for the approval of a change in control of a
titleholder was accompanied by the original instrument or proposed instrument
effecting the change in control, the Titles Administrator must, after making a decision
to either approve or refuse to approve the change in control under subsection 566D(2),
make and retain a copy of the instrument or proposed instrument, and return the
original to the applicant.
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Section 566G Limit of effect of approval
70. This section clarifies that any approval of a change in control of a titleholder does not
give the transaction effecting the change in control any force, effect or validity that it
would not otherwise have had if Chapter 5A had not been enacted. The onus is on the
parties to a transaction proposing to effect a change in control of a titleholder to ensure
the legality of the transaction or proposed transaction and its effect in law (for example,
in contract law).
Section 566H Notification of change in circumstances before or during approval
period
71. A person proposing to begin or cease to control a titleholder is required to notify the
Titles Administrator of a material change in circumstances before the Titles
Administrator has decided whether to approve or refuse the change in control or, if the
change in control has been approved, before the change in control takes effect,
otherwise the person may be liable to a civil penalty. Failure to comply is also a ground
for cancellation of the title or titles held by the titleholder. Subsection (1) provides that
a person will contravene this subsection if:
a. an application for the approval of a change in control of a titleholder has been
made under section 566C; and
b. the person proposes to begin or cease to control the titleholder; and
c. there is a change in circumstances in relation to the person that materially affects
any of the matters that the Titles Administrator must have regard to under
subsection 566D(4); and
d. the change in circumstances occurs either:
i. before the Titles Administrator makes a decision under subsection
566D(2); or
ii. if the change in control is approved, during the approval period for the
change in control; and
e. the person does not notify the Titles Administrator of the change in circumstances
as soon as practicable after it occurs.
72. A material change in circumstances might include, for example, a change to the
technical advice or financial resources that will be available to the titleholder if the
change in control takes effect, which would have an adverse impact on the titleholder's
ability to comply with its obligations under the OPGGS Act. A change in one or more
of the matters specified in section 695YB, might include, for example, if a body
corporate that proposes to begin controlling the titleholder becomes insolvent under
administration (as defined in the Acts Interpretation Act 1901) or an officer of the body
corporate contravenes a directors' duty in Division 1 of Part 2D.1 of the Corporations
Act, or is found guilty of an offence or liable to a civil penalty for fraud or dishonesty.
73. This notification requirement applies to material changes in circumstances that occur
before the change in control takes effect, either before the Titles Administrator makes a
decision under subsection 566D(2) or, if the change in control has been approved,
during the approval period for the change in control (see paragraph (1)(d)).
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74. Two notes are included at the end of subsection (1). Note 1 refers the reader to
subsection 566D(4), which are the matters that the Titles Administrator must have
regard to in deciding to either approve or refuse to approve a change in control of a
titleholder. Note 2 refers the reader to the relevant cancellation provisions in new
paragraphs 274(e) and 446(da) because a contravention of subsection (1) is a ground to
cancel the title or titles held by the titleholder.
75. Subsection (2) provides that, if a person contravenes this notification requirement (that
is, the person does not notify the Titles Administrator of a material change in
circumstances as soon as practicable after it occurs), the person will be liable to a civil
penalty. The maximum civil penalty for an individual will be a fine of 480 penalty
units. The maximum civil penalty for a body corporate will be a fine of 2,400 penalty
units because of the body corporate multiplier rule in paragraph 82(5)(a) of the
Regulatory Powers Act.
76. Along with the ground to cancel the title or titles held by the titleholder, the civil
penalty provision is intended to deter a person proposing to begin or cease controlling a
titleholder from failing to notify the Titles Administrator of a material change in
circumstances. It is necessary for the Titles Administrator to be made aware of any
matters that may affect the ability of the titleholder to remain suitable to hold the title
so that the Titles Administrator may take appropriate action, particularly before it
becomes too late to do so (that is, before the change in control takes effect). These
actions might include, for example, obtaining further information or documents from
the person or other persons (such as the titleholder), refusing to approve the change in
control under paragraph 566D(2)(b) or, if the Titles Administrator has approved the
change in control, revoking the approval under section 566J.
Section 566J Revocation of approval
77. This section enables the Titles Administrator to revoke an approval of a change in
control of a titleholder during the nine-month approval period (see the definition of
approval period in section 566A), provided that the grounds provided for in paragraphs
(1)(a) and (b) are met.
78. If there has been a change in the circumstances of a person who is approved to begin or
cease controlling a titleholder and the Titles Administrator considers it appropriate to
revoke the approval, the Titles Administrator may revoke the approval. Such a change
in circumstance might include, for example, a change in circumstances that materially
affects any of the matters that the Titles Administrator must have regard to under
subsection 566D(4) (see paragraph 566H(1)(c)), which go to ensuring that the
titleholder will remain suitable to hold the relevant title or titles if the change in control
takes effect.
79. It is necessary for the Titles Administrator to have the ability to revoke an approval of a
change in control of a titleholder if it considers that it is appropriate to ensuring that the
titleholder remains suitable to hold the relevant title or titles, including if there is a risk
that the titleholder may suffer financial distress if the change in control takes effect.
80. Subsection (2) provides that, if the Titles Administrator revokes an approval of a
change in control of a titleholder under subsection (1), the Titles Administrator must
24
give written notice of the revocation to the person or persons given notice of the
approval.
81. The person who was given notice of the approval under subsection 566E(1) will be
given notice of the revocation. This means that, if only one of the parties to a
transaction or proposed transaction effecting a change in control is given notice of the
revocation, it will be up to that person to notify the other parties to the transaction or
proposed transaction (that is, each person proposing to begin or cease controlling the
titleholder) of the revocation.
82. This amendment will provide the Titles Administrator with administrative discretion to
revoke an approval of a change in control under subsection (1), but does not provide for
merits review of the Titles Administrator's decision. This is because decisions allowing
or refusing access to participate in the offshore resources regime, including through the
grant of titles and the imposition of title conditions, and through changes in control of
the registered holders of titles, are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Section 566K Notification of change in control
83. A person who was given notice of an approval of a change in control of a titleholder is
required to notify the Titles Administrator if the change in control takes effect within
the approval period, otherwise the person may be liable to a civil penalty.
84. Subsection (1) provides that a person will contravene this subsection if:
a. the Titles Administrator approves a change in control of a titleholder under
paragraph 566D(2)(a); and
b. the change in control takes effect within the approval period (see the definition of
approval period in section 566A); and
c. the person given notice of the approval of the change in control of the titleholder
under subsection 566E(1) does not notify the Titles Administrator that the change
in control has taken effect within 10 days after the end of the approval period (that
is, within 10 days after the change in control took effect).
85. (For the rationale for this nine-month approval period, see the notes on section 566A in
relation to the definition of approval period.)
86. Subsection (2) provides that, if a person contravenes this notification requirement (that
is, a person who was given a notice of approval under subsection 566E(1) does not
notify the Titles Administrator that the change in control has taken effect), the person
will be liable to a civil penalty. The maximum civil penalty for an individual will be a
fine of 480 penalty units. The maximum civil penalty for a body corporate will be a fine
of 2,400 penalty units because of the body corporate multiplier rule in paragraph
82(5)(a) of the Regulatory Powers Act.
87. Subsection (2) is also a continuing civil penalty provision under section 93 of the
Regulatory Powers Act (see the note at the end of subsection (3)). That Act provides
25
that a person who contravenes a civil penalty provision that requires an act or thing to
be done within a particular period commits a separate contravention of that provision in
respect of each day during which the contravention occurs. Subsection (3) provides that
the maximum civil penalty for each day that a contravention of subsection (2) continues
is 10 per cent of the maximum civil penalty that can be imposed in respect of that
contravention (that is, 10 per cent of the maximum fine of 480 penalty units for an
individual and 2,400 penalty units for a body corporate).
88. The continuing civil penalty provision is intended to provide sufficient deterrence to a
person who was given a notice of approval under subsection 566E(1) from failing to
notify the Titles Administrator that the change in control has taken effect.
89. It is necessary for the Titles Administrator to be made aware of each change in control
of a titleholder that has taken effect to enable it to take appropriate action, which may
include, for example:
a. entering the change in control information in the relevant Register on the memorial
relating to the title or titles held by the titleholder, or a copy of that title or those
titles;
b. obtaining information, documents or evidence from the person or other persons
(such as the titleholder) under section 566R;
c. notifying NOPSEMA that the titleholder was subject to a change in control to
trigger any requisite compliance monitoring or enforcement.
Section 566L Change in control information to be entered in Register
90. This section provides that, if the Titles Administrator is notified that a change in control
of a titleholder has taken effect, the Titles Administrator must make a notation of the
matters set out in subsection (2) in the relevant Register on the memorial relating to the
title or titles held by the titleholder, or a copy of that title or those titles.
91. The Titles Administrator may be notified that a change in control of a titleholder has
taken effect, whether or not the change in control has been approved. For example, the
parties to a transaction effecting a change in control are required to notify the Titles
Administrator that the change in control has taken effect in compliance with either:
a. section 566K--if the change in control has been approved and it takes effect, the
parties are required to notify the Titles Administrator that the change in control has
taken effect within 10 days of it taking effect; or
b. section 566P--if the change in control has not been approved but it takes effect, or
if it has been approved but takes effect after the end of the approval period, the
parties are required to notify the Titles Administrator that the change in control has
taken effect within 30 days of it taking effect.
92. If a change in control has not been approved but it takes effect, or if it has been
approved but takes effect after the end of the approval period, the titleholder is also
required to notify the Titles Administrator that the change in control has taken effect
within 30 days of the change in control taking effect, otherwise the titleholder may
liable to a civil penalty (see section 566Q).
93. If the Titles Administrator is notified that a change in control has taken effect, the
matters that must be notated on the memorial or memorials in the relevant Register
26
include the date of the application (if any) made under section 566C, the date of the
decision (if any) made under subsection 566D(2) and the date the change in control
took effect.
94. The Titles Administrator may make any other such notation in the relevant Register that
it considers appropriate. This may include, for example, that a change in control of a
titleholder that has not been approved took effect.
Section 566M Application fee
95. This section provides for the requirement that an application for the approval of a
change in control of a titleholder made under section 566C must be accompanied by the
application fee (if any) prescribed in the regulations. The purpose of imposing an
application fee is to enable the Titles Administrator, which is a fully cost-recovered
entity, to recover the costs it will incur in relation to the assessment of the application.
Prescribing the amount payable in the regulations enables this amount to change from
time to time in line with the actual costs incurred by the Titles Administrator.
96. Subsection (2) provides that the application fee (if any) must not be such as to amount
to taxation to ensure that the imposition of the application fee is not unconstitutional.
97. Subsection (3) provides that an application made under section 566C is taken to be
accompanied by the application fee if the application fee is received by the Titles
Administrator before the end of the 10-day period that began on the day after the
application was made. This provides applicants with flexibility in paying an application
fee and reflects the reality that payments may take several days for the proceeds to
clear, whether by a cheque, a credit card payment, direct deposit via electronic funds
transfer or some other means. Specifying a period within which an application fee is
required to be paid ensures applications are made within a reasonable period.
Part 5A.3--Change in control must be approved
Section 566N Change in control must be approved by Titles Administrator
98. This section requires a change in control of a titleholder to be approved by the Titles
Administrator before it takes effect, otherwise those who begin or cease to control the
titleholder will be subject to an offence or a civil penalty provision under subsections
(2) and (3) respectively. A failure to comply with this section is also a ground for the
cancellation of the title or titles held by the titleholder.
99. The purpose of these sanctions is to influence a change in behaviour in the industry to
ensure that obtaining the Titles Administrator's approval of the change in control is
included as a condition to which a transaction proposing to effect a change in control of
a titleholder is subject.
100. Subsection (1) provides that a person contravenes this subsection if:
a. there is a change in control of a titleholder; and
b. the person begins or ceases to control the titleholder; and
c. either:
i. the Titles Administrator has not approved the change in control; or
27
ii. the Titles Administrator has approved the change in control, but the change
in control took effect after the end of the approval period for the change in
control.
101. A note is included at the end of subsection (1) that refers the reader to the relevant
cancellation provisions in new paragraphs 274(e) and 446(da) because a contravention
of subsection (1) is a ground to cancel the title or titles held by the titleholder.
102. Subsection (2) provides that, if a person contravenes subsection (1), the person will
commit a fault-based offence. The offence is subject to a maximum criminal penalty of
five years imprisonment or a fine of 1,200 penalty units, or both, for an individual. The
maximum criminal penalty for a body corporate will be a fine of 6,000 penalty units
because of the body corporate multiplier rule for an offence that imposes a pecuniary
penalty in subsection 4B(3) of the Crimes Act.
103. The physical elements of the offence do not specify fault elements, which means that
the default fault elements under section 5.6 of the Criminal Code apply.
104. Subsection (3) provides that, if a person contravenes subsection (1), the person will be
liable to a civil penalty. The maximum civil penalty for an individual will be a fine of
2,400 penalty units. The maximum civil penalty for a body corporate will be a fine of
12,000 penalty units because of the body corporate multiplier rule in paragraph 82(5)(a)
of the Regulatory Powers Act.
105. The rationale for the amount of these penalties includes:
a. The maximum criminal penalty of five years imprisonment for an individual is the
same penalty for an individual for carrying out unauthorised petroleum exploration
or recovery in an offshore area under sections 97 or 160, or unauthorised
exploration for a GHG storage formation or injection site or GHG injection or
storage in an offshore area under sections 289 or 356.
b. The maximum criminal penalty of a fine of 6,000 penalty units for a body
corporate is the same penalty for a corporation for an unauthorised takeover under
subsection 606(4A) of the Corporations Act.
c. The maximum civil penalties of a fine of 2,400 penalty units for an individual and
a fine of 12,000 penalty units for a body corporate are double the amount of the
maximum criminal penalties. This is to ensure that the penalties act as a deterrent
for non-compliance, particularly for companies, and recognises that being found
liable to a civil penalty does not attract imprisonment or a criminal conviction.
106. The penalties for the fault-based offence and the civil penalty provision reflect the
consequences that beginning or ceasing to control a titleholder without approval may
have on the suitability of the titleholder to remain in the offshore resources regime, and
therefore the severity of these penalties (along with the grounds to cancel the title or
titles held by the titleholder) aims to deter non-compliance with subsection (1). These
consequences may include a potential adverse impact on the technical advice or
financial resources available to the titleholder to carry out its activities in the title area
or areas and comply with legislative requirements, including decommissioning.
Conduct that contravenes these penalty provisions may cause the titleholder to
experience significant financial distress and, as a consequence, result in the titleholder
becoming insolvent and abandoning its title or titles. This in turn may cascade into
28
other adverse impacts, particularly in increasing the risks that abandoning the
management or control of an offshore facility poses to the safety of its crew and the
surrounding marine environment.
107. While the severity of these penalties reflect the seriousness of any potential non-
compliance, these amounts are lower than the highest penalty provided for in the
OPGGS Act, which is a fine of 3,500 penalty units for an individual, and 17,500
penalty units for a body corporate, for recklessly breaching an occupational health and
safety duty (see clause 16B of Schedule 3 to the Act).
108. Subsection (4) provides a defence for the civil penalty provision in subsection (3) if the
person did not know, and could not reasonably be expected to have known, that the
person begun to control or ceased to control the titleholder. This defence is intended to
protect those who may be reasonably ignorant of the fact that, as a result of a
transaction, they have begun or ceased to control a registered holder of a title for the
purposes of the OPGGS Act, particularly because of the application of the tracing
provision under section 566Z.
109. The tracing provision enables a change in control of a titleholder to be traced to a
change in control of the corporations, trusts or partnerships who control the titleholder.
Depending on the structure of the corporate group, certain foreign persons and entities
caught by the tracing provision may be reasonably ignorant of the fact that acquiring or
disposing of the shares in a corporation, or the interests in a trust or partnership,
'trickles down' to a change in control of a titleholder.
110. A note is included at the end of subsection (4) that refers the reader to section 96 of the
Regulatory Powers Act, which provides that a person who wishes to rely on subsection
(4) in proceedings for a civil penalty order bears an evidential burden in relation to that
matter. The defendant will therefore bear an evidential burden in relation to the
question whether they did not know, and could not reasonably be expected to have
known, that they began or ceased to control a registered holder of a title for the
purposes of the OPGGS Act.
111. The burden of proof is reversed because the matter is likely to be exclusively within the
knowledge of the defendant, and it would be significantly more costly or difficult for
the Titles Administrator (as an authorised applicant for the purposes of enforcing this
civil penalty) to disprove than the defendant to establish (see item 38 of Part 2 of
Schedule 1 of the Bill).
Section 566P Notification of change in control that takes effect without approval
112. This section requires a person who has begun or ceased to control a titleholder without
approval, or after the end of the approval period, to notify the Titles Administrator that
the change in control took effect, otherwise the person will be subject to the continuing
civil penalty provision under subsection (2). A contravention of this section is also
grounds for the cancellation of the title or titles held by the titleholder.
113. The purpose of these sanctions is to compel a person who has begun or ceased to
control a titleholder without approval, or after the end of the approval period, to notify
the Titles Administrator so that it can be made aware of the change in control and to
enable it to take appropriate action. These actions may include, for example:
29
a. obtaining information, documents or evidence from the person or other persons
(such as the titleholder) under section 566R;
b. notifying NOPSEMA that the titleholder was subject to a change in control to
trigger any requisite compliance monitoring or enforcement.
114. Subsection (1) provides that a person contravenes this subsection if:
a. there is a change in control of a registered holder of a title; and
b. the person begins or ceases to control the registered holder; and
c. either:
i. the Titles Administrator has not approved the change in control; or
ii. the Titles Administrator has approved the change in control, but the change
in control took effect after the end of the approval period for the change in
control; and
d. the person does not notify the Titles Administrator of the change in control within
30 days of the change in control taking effect.
115. Even if the 30-day notification period provided for in paragraph (1)(d) has expired, the
requirement to notify continues, and therefore is not discharged until the person notifies
the Titles Administrator of the change in control (see subsection 93(1) of the
Regulatory Powers Act).
116. A note is included at the end of subsection (1) that refers the reader to the relevant
cancellation provisions in new paragraphs 274(e) and 446(da) because a contravention
of subsection (1) is a ground to cancel the title or titles held by the titleholder.
117. Subsection (2) provides that, if a person contravenes subsection (1), the person will be
liable to a civil penalty. The maximum civil penalty for an individual will be a fine of
480 penalty units. The maximum civil penalty for a body corporate will be a fine of
2,400 penalty units because of the body corporate multiplier rule in paragraph 82(5)(a)
of the Regulatory Powers Act.
118. The rationale for the amount of this penalty is that a fine of 2,400 penalty units for a
body corporate is the same penalty for a failure of a financial services licensee that is a
corporation to notify the Australian Securities and Investments Commission of a breach
of the financial services law under subsection 912D(1B) of the Corporations Act.
119. Subsection (2) is also a continuing civil penalty provision under section 93 of the
Regulatory Powers Act (see the note at the end of subsection (3)). That Act provides
that a person who contravenes a civil penalty provision that requires an act or thing to
be done within a particular period commits a separate contravention of that provision in
respect of each day during which the contravention occurs. Subsection (3) provides that
the maximum civil penalty for each day that a contravention of subsection (2) continues
is 10 per cent of the maximum civil penalty that can be imposed in respect of that
contravention (that is, 10 per cent of the maximum fine of 480 units for an individual
and 2,400 penalty units for a body corporate).
120. The continuing civil penalty provision is intended to provide a sufficient deterrent for a
person who has begun or ceased to control a titleholder without approval, or after the
approval period has ended, from failing to notify the Titles Administrator that the
change in control took effect.
30
121. Subsection (4) provides a defence for the civil penalty provision in subsection (2) if the
person did not know, and could not reasonably be expected to have known, that the
person begun to control or ceased to control the titleholder. This defence is intended to
protect those who may be reasonably ignorant of the fact that, as a result of a
transaction, they have begun or ceased to control a registered holder of a title for the
purposes of the OPGGS Act, particularly because of the application of the tracing
provision under section 566Z.
122. The tracing provision enables a change in control of a titleholder to be traced to a
change in control of the corporations, trusts or partnerships who control the titleholder.
Depending on the structure of the corporate group, certain foreign persons and entities
caught by the tracing provision may be reasonably ignorant of the fact that acquiring or
disposing of the shares in a corporations, or the interests in a trust or partnership,
'trickles down' to a change in control of a titleholder.
123. A note is included at the end of subsection (4) that refers the reader to section 96 of the
Regulatory Powers Act, which provides that a person who wishes to rely on subsection
(4) in proceedings for a civil penalty order bears an evidential burden in relation to that
matter. The defendant will therefore bear an evidential burden in relation to the
question whether they did not know, and could not reasonably be expected to have
known, that they began or ceased to control a registered holder of a title for the
purposes of the OPGGS Act.
124. The burden of proof is reversed because the matter is likely to be exclusively within the
knowledge of the defendant, and it would be significantly more costly or difficult for
the Titles Administrator (as an authorised applicant for the purposes of enforcing this
civil penalty) to disprove than the defendant to establish (see item 38 of Part 2 of
Schedule 1 to the Bill).
Section 566Q Notification of change in control by registered holder
125. This section requires a titleholder who was subject to a change in control that has not
been approved, or that took effect after the end of the approval period, to notify the
Titles Administrator that the change in control took effect within 30 days of the change
in control taking effect, otherwise the titleholder will be subject to the civil penalty
provision under subsection (2).
126. The purpose of this sanction is to compel the titleholder that was subject to a change in
control that has not been approved, or that took effect after the end of the approval
period, to notify the Titles Administrator so that it can be made aware of the change in
control, particularly if those who have begun or ceased to control the titleholder have
failed to do so in contravention of section 566P, and thereby enable the Titles
Administrator to take appropriate action. These actions may include, for example:
a. obtaining information, documents or evidence from the person or other persons
(such as the titleholder) under section 566R;
b. notifying NOPSEMA that the titleholder was subject to a change in control to
trigger any requisite compliance monitoring or enforcement.
127. Subsection (1) provides that a registered holder of a title contravenes this subsection if:
a. there is a change in control of the registered holder; and
31
b. either:
i. the Titles Administrator has not approved the change in control; or
ii. the Titles Administrator has approved the change in control, but the change
in control took effect after the end of the approval period for the change in
control; and
c. the registered holder knows or ought reasonably to know the change in control has
taken effect; and
d. the registered holder does not notify the Titles Administrator of the change in
control within 30 days of the change in control taking effect.
128. Paragraph (1)(c) is intended to protect a titleholder that may be reasonably ignorant of
the fact that it was subject to a change in control that has not been approved, or that
took effect after the approval period, particularly because of the application of the
tracing provision under section 566Z. Contrary to the defences in subsections 566N(4)
and 566P(4) though, this element of the civil penalty provision does not reverse the
evidential burden of proof and place it on the defendant.
129. The tracing provision enables a change in control of a titleholder to be traced to a
change in control of the corporations, trusts or partnerships who control the titleholder.
Depending on the structure of the corporate group, a change in control of an entity may
be caught by the tracing provision because it 'trickles down' to a change in control of a
titleholder, and the titleholder may be unaware of the fact that it was subject to the
change in control.
130. Subsection (2) provides that, if a person contravenes subsection (1), the person will be
liable to a civil penalty. The maximum civil penalty for an individual will be a fine of
480 penalty units. The maximum civil penalty for a body corporate will be a fine of
2,400 penalty units because of the body corporate multiplier rule in paragraph 82(5)(a)
of the Regulatory Powers Act.
131. Subsection (3) provides that subsection 93(2) of the Regulatory Powers Act does not
apply in relation to a contravention of subsection (2), which clarifies that subsection (2)
is not a continuing civil penalty provision. Despite this, even if the 30-day notification
period provided for in paragraph (1)(d) has expired, the requirement to notify continues
(and therefore is not discharged) until the person notifies the Titles Administrator of the
change in control (see subsection 93(1) of the Regulatory Powers Act).
Part 5A.4--Information-gathering powers
Section 566R Titles Administrator may obtain information and documents
132. This section empowers the Titles Administrator to require information, documents and
evidence in relation to changes in control of titleholders, including possible changes in
control. These powers are intended to ensure that the Titles Administrator has the
ability to obtain any information or documents relevant for the proper administration of
Chapter 5A, including (but not limited to):
a. determining whether or not a change in control has taken effect, regardless of
whether or not the change in control has been approved;
32
b. obtaining further information or documents in relation to applications made under
section 566C for the approval of a change in control of a titleholder; and
c. determining whether or not there has been a change in the circumstances of a
person approved to begin or cease controlling a titleholder.
133. This section mirrors sections 699 and 725 of the OPGGS Act, which provide the Titles
Administrator and NOPSEMA inspectors with general information-gathering powers in
relation to the administration of petroleum and GHG titles respectively.
134. Subsection (1) sets out the scope of these powers to enable the Titles Administrator to
require information, documents or evidence. This section will apply if:
a. any one of the following matters applies:
i. the Titles Administrator believes on reasonable grounds that there has been,
or that there will be, a change in control of a titleholder;
ii. an application is made under section 566C for the approval of a change in
control of a titleholder;
iii. the approval period for the change in control of a titleholder has not ended
and the Titles Administrator believes on reasonable grounds that there has
been, or will be, a change in the circumstances of a person approved to begin
or cease to control the titleholder, which may include, for example, a material
change in circumstances; and
b. the Titles Administrator believes on reasonable grounds that a person has
information or a document, or is capable of giving evidence, that is relevant to any
one of the matters specified in subparagraphs (1)(a)(i), (ii) or (iii).
135. Subsection (2) provides that the Titles Administrator may, by written notice given to
the person, require the person:
a. to give the Titles Administrator any such information, within the period and in the
manner specified in the notice;
b. to produce to the Titles Administrator any such documents, within the period and
in the manner specified in the notice;
c. if the person is an individual, to appear before the Titles Administrator to given any
such evidence, either orally or in writing, and produce any such documents, at a
time and place specified in the notice;
d. if the person is a body corporate, to cause a competent officer of the body to appear
before the Titles Administrator to give any such evidence, either orally or in
writing, and produce any such documents, at a time and place specified in the
notice.
136. Subsections (3) and (4) provide that the period specified in the notice in relation to
complying with the requirement to give any such information or evidence, or produce
any such documents, must not be shorter than 14 days after the notice is given. This is
intended to provide a person subject to this requirement a reasonable period within
which to comply. Depending on the circumstances, a person or a corporation may need
to examine a large quantity of records to identify the information or evidence required
to be given or documents required to be produced under such a notice.
33
137. Subsection (5) provides that, if a person is subject to a requirement under subsection (2)
and the person fails to comply with the requirement, the person contravenes subsection
(5).
138. Subsection (6) provides that, if a person contravenes subsection (5), the person will
commit a fault-based offence. The maximum criminal penalty for an individual will be
a fine of 100 penalty units. The maximum criminal penalty for a body corporate will be
a fine of 500 penalty units because of the body corporate multiplier rule for an offence
that imposes a pecuniary penalty in subsection 4B(3) of the Crimes Act.
139. The physical elements of the offence do not specify fault elements, which means that
the default fault elements under section 5.6 of the Criminal Code apply.
140. Subsection (6) is also a continuing offence under section 4K of the Crimes Act, but
only to the extent that a notice given under subsection (2) required information to be
given or documents to be produced under paragraphs (2)(a) or (b) (see the note at the
end of subsection (8), including the reference to subsection (10)). That Act provides
that a person who contravenes an offence provision that requires an act or thing to be
done within a particular period or before a particular time commits a separate
contravention of that provision in respect of each day during which the contravention
occurs. Subsection (8) provides that the maximum criminal penalty for each day that a
contravention of subsection (6) continues is 10 per cent of the maximum criminal
penalty that can be imposed in respect of that contravention (that is, 10 per cent of the
maximum fine of 100 units for an individual and 500 penalty units for a body
corporate).
141. The continuing offence is intended to provide a sufficient deterrent for a person from
failing to comply with the requirement to give information or produce documents in
relation to a change in control of a titleholder, including a possible change in control.
142. Subsection (7) provides that, if a person contravenes subsection (5), the person will be
liable to a civil penalty. The maximum civil penalty for an individual will be a fine of
150 penalty units. The maximum civil penalty for a body corporate will be a fine of 750
penalty units because of the body corporate multiplier rule in paragraph 82(5)(a) of the
Regulatory Powers Act.
143. Subsection (7) is also a continuing civil penalty provision under section 93 of the
Regulatory Powers Act, but only to the extent that a notice given under subsection (2)
required information to be given or documents to be produced under paragraphs (2)(a)
or (b) (see the note at the end of subsection (9), including the reference to subsection
(10)). That Act provides that a person who contravenes a civil penalty provision that
requires an act or thing to be done within a particular period or before a particular time
commits a separate contravention of that provision in respect of each day during which
the contravention occurs. Subsection (9) provides that the maximum civil penalty for
each day that a contravention of subsection (7) continues is 10 per cent of the maximum
civil penalty that can be imposed in respect of that contravention (that is, 10 per cent of
the maximum fine of 150 penalty units for an individual and 750 penalty units for a
body corporate).
144. The continuing civil penalty provision is intended to provide a sufficient deterrent for a
person from failing to comply with the requirement to give information or produce
34
documents in relation to a change in control of a titleholder, including a possible
change in control.
145. The amounts of these criminal and civil penalties mirror those provided in subsections
699(5) to (5D) and 725(5).
146. Subsection (11) requires a notice given under subsection (2) to set out the effect of the
relevant penalty provisions in Part 5A.4. These provisions include:
a. the fault-based offence in subsection (6) for failing to comply with a requirement to
give the information or evidence, or produce the documents, required by a notice
given under subsection (2), including the fact that it is a continuing offence under
subsection (8);
b. the civil penalty provision in subsection (7) for failing to comply with a
requirement to give the information or evidence, or produce the documents,
required by a notice given under subsection (2), including the fact that it is a
continuing civil penalty provision under subsection (9);
c. the offence in section 566W for knowingly giving false or misleading information;
d. the offence in section 566X for knowingly producing false or misleading
documents; and
e. the offence in section 566Y for knowingly giving false or misleading evidence.
147. Requiring a notice given under subsection (2) to include all relevant details, including
the consequences of non-compliance, will ensure that a person who has been given a
notice is aware of their legal rights and obligations in relation to the notice.
Section 566S Power to examine on oath or affirmation
148. This section provides that, if a person is required to appear before the Titles
Administrator under section 566R, including in relation to complying with a notice that
requires the person to give evidence or produce documents under paragraphs
566R(2)(c) or (d), the Titles Administrator is able to administer an oath or affirmation
to the person, and examine that person on oath or affirmation. This section mirrors
sections 701 and 727 of the OPGGS Act.
149. Examining a person on oath or affirmation may be appropriate, for example, in the
course of determining whether or not a change in control has taken effect, regardless of
whether or not the change in control has been approved, to ascertain whether someone
has contravened a penalty provision in Part 5A.3 or 5A.4 of Chapter 5A.
Section 566T Self-incrimination
150. This section provides that the common law privilege against self-incrimination will be
overridden where information or evidence is required to be given or a document is
required to be produced under section 566R. This section mirrors sections 702 and 728
of the OPGGS Act.
151. Subsections (1) and (3) provide that an individual is not excused from giving
information or evidence, or producing a document, under section 566R on the ground
that the information or evidence, or the production of the document, might tend to
incriminate the individual in relation to an offence or a penalty (other than a penalty for
an offence) at general law.
35
152. However, subsection (2) provides a 'use and derivative use' immunity provision, which
affords some protection for the individual by constraining the use of any self-
incriminating evidence. Specifically:
a. the information or evidence given, or the document produced;
b. the giving of the information or evidence or production of the document; and
c. any information, document or thing obtained as a direct or indirect consequence of
the giving of the information or evidence, or the production of the document;
are not admissible in evidence against the individual in any criminal proceedings,
except proceedings for an offence against subsection 566R(6) (failing to comply with a
notice given under section 566R) or sections 566W, 566X or 566Y (providing false or
misleading information, documents or evidence), or proceedings for an offence against
section 137.1 or 137.2 of the Criminal Code that relates to Part 5A.4 of Chapter 5A
(providing false or misleading information or documents).
153. The effect of this section is that an individual must provide the information, evidence or
documents, but neither the information, documents or evidence, nor any information,
document or thing derived from those things, can be used as evidence against the
person in criminal proceedings, including for an offence against a provision of the
OPGGS Act, except if it relates to the provision of false or misleading information,
documents or evidence.
154. Overriding the privilege against self-incrimination is necessary and appropriate to
ensure the proper administration of Chapter 5A, particularly in determining whether a
change in control that has not been approved took effect. The use of the privilege
against self-incrimination might prevent the collection of honest, correct and complete
information in relation to changes in control of titleholders, including possible changes
in control, and thereby seriously undermine the effectiveness of the offshore regime.
Where matters relating to the effective oversight of changes in control are concerned,
there will be occasions where it is more important to establish the facts than to be able
use the facts in a prosecution of an offence.
155. The exception for proceedings in relation to an offence against subsection 566R(6),
sections 566W, 566X or 566Y, or the specified sections of the Criminal Code is
intended to provide an effective deterrent to individuals who may provide false or
misleading information, documents or evidence.
156. The notes under subsections (1) and (3) clarify that bodies corporate are not entitled to
claim the privilege against self-incrimination, however the directors and other officers
of a corporation are able to claim the privilege in their own right where the disclosure
of information would tend to incriminate the director or the officer personally.
Section 566U Copies of documents
157. This section provides that, if a person is required to produce documents under Part
5A.4, including in relation to complying with a notice that requires the person to
produce a document under paragraph (2)(b) or subparagraph (2)(c)(ii) or (2)(d)(ii), the
Titles Administrator is able to inspect the document, and make and retain copies of, or
extracts from, such a document. This section mirrors sections 703 and 729 of the
36
OPGGS Act, and supports the proper administration of Chapter 5A by enabling the
Titles Administrator to make and retain copies of relevant documents for further
consideration.
Section 566V Titles Administrator may retain documents
158. Subsection (1) provides that, if a person is required to produce a document under Part
5A.4, including in relation to complying with a notice that requires the person to
produce a document under paragraph (2)(b) or subparagraph (2)(c)(ii) or (2)(d)(ii), the
Titles Administrator is able to take possession of the document and retain it for as long
as is reasonably necessary. This section mirrors sections 704 and 730 of the OPGGS
Act, and supports the proper administration of Chapter 5A by enabling the Titles
Administrator to possess and retain relevant documents for further consideration.
159. If the Titles Administrator takes possession of a document produced under Part 5A.4
and a person is otherwise entitled to possession of the document, subsection (2)
provides that the person is entitled to be supplied, as soon as reasonably practicable,
with a copy certified by the Titles Administrator to be a true copy. Until the certified
copy is supplied under subsection (2), subsection (4) provides that the Titles
Administrator must provide the person who is otherwise entitled to possession of the
document, or persons authorised by that person, reasonable access to the document for
the purposes of inspecting and making copies of, or taking extracts from, the document.
160. Subsection (3) provides that the certified copy must be received in all courts and
tribunals as evidence as if it were the original.
Section 566W False or misleading information
161. This section makes it an offence to knowingly provide false or misleading information
in relation to complying with a notice that requires the person to give information under
subsection 566R(2). This section is intended to deter the provision of false or
misleading information in relation to changes in control of titleholders, including
possible changes in control.
162. Specifically, a person commits an offence if:
a. the person gives information in compliance or purported compliance with
subsection 566R(2); and
b. the person does so knowing that the information:
i. is false or misleading in a material particular; or
ii. omits any matter or thing without which the information is misleading in a
material particular.
163. The note included in this section clarifies that the same conduct may be an offence
against both this section and section 137.1 of the Criminal Code.
164. If a person is found guilty of the offence, the maximum criminal penalty will be a fine
of 100 penalty units for an individual or a fine of 500 penalty units for a body corporate
because of the body corporate multiplier rule for an offence that imposes a pecuniary
penalty in subsection 4B(3) of the Crimes Act.
165. This penalty amount mirrors those provided in sections 705 and 731.
Section 566X False or misleading documents
37
166. This section makes it an offence to knowingly produce a false or misleading document
in relation to complying with a notice that requires the person to produce a document
under subsection 566R(2). This section is intended to deter the production of false or
misleading documents in relation to changes in control of titleholders, including
possible changes in control.
167. Specifically, a person commits an offence if:
a. the person produces a document in compliance or purported compliance with
subsection 566R(2); and
b. the person does so knowing that the document is false or misleading in a material
particular.
168. The note included in this section clarifies that the same conduct may be an offence
against both this section and section 137.2 of the Criminal Code.
169. If a person is found guilty of the offence, the maximum criminal penalty will be a fine
of 100 penalty units for an individual or a fine of 500 penalty units for a body corporate
because of the body corporate multiplier rule for an offence that imposes a pecuniary
penalty in subsection 4B(3) of the Crimes Act.
170. This penalty amount mirrors those provided in sections 706 and 732.
Section 566Y False or misleading evidence
171. This section makes it an offence to knowingly give false or misleading evidence in
relation to complying with a notice that requires the person to give evidence under
subsection 566R(2). This section is intended to deter the giving of false or misleading
evidence in relation to changes in control of titleholders, including possible changes in
control.
172. Specifically, a person commits an offence if:
a. the person gives evidence in compliance or purported compliance with subsection
566R(2); and
b. the person does so knowing that the evidence is false or misleading in a material
particular.
173. If a person is found guilty of the offence, the maximum criminal penalty will be 12
months imprisonment for an individual. This penalty may be converted into a fine of 60
penalty units for an individual because of subsection 4B(2) of the Crimes Act, or is
converted into a fine of 500 penalty units for a body corporate because of the body
corporate multiplier rule for an offence that imposes a pecuniary penalty in subsection
4B(3) of the Crimes Act.
174. This penalty mirrors those provided in sections 707 and 733.
Part 5A.5--Tracing and anti-avoidance
Section 566Z Tracing
175. This section provides for a tracing provision, which enables a change in control of a
titleholder to be traced to a change in control of the companies, trusts or partnerships
which control the titleholder.
176. The purpose of doing so is twofold. The tracing provision is intended to provide for
government oversight of changes in control of titleholders that involve a change to the
38
'real owners' of titleholders, which may be companies or other types of entities that are
not an immediate holder of the titleholder (such as an immediate holding company). It
also aims to prevent perverse behaviours as a consequence of only providing for
oversight of changes in relation to the immediate holders of the titleholder, including,
for example, setting up a shell company or companies to avoid the increased
government oversight provided for in Chapter 5A.
177. If a person, whether alone or together with one or more other persons that the person
acts jointly with (as defined in subsection 566B(2)):
a. holds 20 per cent or more of the relevant rights or interests in a higher party (as
described in paragraphs (1)(a), (b) and (c)); and
b. the higher party holds 20 per cent or more of the relevant rights or interests in a
lower party (as described in paragraphs (1)(d), (e) and (f));
subsection (4) deems that the person holds the same level of rights or interests in the
lower party as the higher party holds. Therefore, if the lower party is a titleholder, the
person is deemed to 'control' the titleholder for the purposes of subsection 566B(1).
Subsection 566B(1) defines control for the purposes of a change in control of a
titleholder.
178. This in turn means that, if a higher party 'controls' a lower party by holding 20 per cent
or more of the relevant rights or interests in the lower party (as described in paragraphs
(1)(d), (e) and (f)), and a person proposes to begin or cease to control the higher party
by beginning or ceasing to:
a. hold the power to exercise, or control the exercise of, 20 per cent or more of the
voting rights in a corporation or a partnership (in which case the corporation or a
general partner of the partnership is the higher party);
b. hold, or hold an interest in, 20 per cent or more of the issued securities in a
corporation (in which case the corporation is the higher party);
c. hold 20 per cent or more of the interests in a trust or a partnership (in which case a
trustee of the trust or a general partner of the partnership is the higher party);
the person is deemed to be proposing to begin or cease to control a titleholder for the
purposes of Chapter 5A.
179. The person, in proposing to begin or cease controlling the titleholder by virtue of the
tracing provision, will therefore be eligible to make an application for the approval of
the change in control of the titleholder under section 566C and be subject to the
relevant penalty provisions in Part 5A.3. If the change in control takes effect without
approval, the person may commit an offence or be liable to a civil penalty. The title or
titles held by the titleholder may also be cancelled.
180. The tracing provision may be applied multiple times so that a change in control of a
titleholder may be traced to a change in control of a higher party, regardless of how
'high up' in the corporate group the higher party is (see the wording in subsection (1)
after subparagraph (1)(c)(ii)).
181. The terms 'voting rights' and 'issued securities' are not defined, which means the
ordinary meaning of these terms apply. Despite this, these terms reflect, but do not
necessarily rely on, similar concepts in other Commonwealth laws, notably:
39
a. the definitions of 'voting power' in a body corporate in section 610 of the
Corporations Act and 'voting power' in an entity or unincorporated limited
partnership in section 22 of the FATA, which means a percentage of votes that
might be cast at a general meeting of the entity or partnership;
b. the definition of 'control' in relation to control of the voting power in an entity in
section 23 of the FATA, which applies whether the power is direct or indirect, and
whether it is as a result or by means of agreements or practices that have legal or
equitable force, or are based on legal or equitable rights; and
c. the definition of 'securities' in section 92 of the Corporations Act, which includes
shares in a body corporate.
182. Subsection (2) clarifies what is meant by a person holding 20% or more of the interests
in a trust (as described in subparagraphs (1)(c)(i) and (f)(i)), that is if the person holds
20 per cent or more of:
a. the beneficial interest in the income or property of the trust;
b. the interest in units in a unit trust.
This definition mirrors the definition of an 'interest' in a trust under section 11 of the
FATA.
183. Subsection (3) clarifies what is meant by a person holding 20% or more of the interests
in a partnership (as described in subparagraphs (1)(c)(ii) and (f)(ii)), that is if the person
is entitled to 20 per cent or more of any of the distributions of capital, assets or profits
of the partnership, either on dissolution of the partnership or otherwise. This definition
mirrors the definition of an 'interest' in an unincorporated limited partnership under
section 11A of the FATA.
184. Subsection (5) confers a power to prescribe in the regulations a different percentage, or
different percentages, to the percentages specified in paragraphs (1)(a) to (f) and
subsection (2) or (3), which essentially provide for a 20 per cent control threshold for
the tracing provision. This power is commonly referred to as a 'Henry VIII clause'
because it allows delegated legislation to modify the operation of an Act.
185. Exercising this power would entail a minor or technical modification to ensure that the
control threshold for the tracing provision (along with the control threshold specified in
subsection 566B(1)) remains up to date, particularly if the percentage of what is
considered to amount to effective control of a corporation, trust or partnership
(including a titleholder that is a corporation) changes, or similar acquisition thresholds
in other Commonwealth laws change.
186. This power will likely be exercised rarely and sparingly. Any such modification will
also be subject to appropriate scrutiny through the regulation-making process, which
includes parliamentary tabling, scrutiny and potential disallowance. The industry will
also be notified of any such modification before it commences to reduce any potential
increase in legislative complexity in having to understand and comply with a modified
control threshold for the tracing provision that has been prescribed in the regulations.
187. This power will provide greater flexibility in addressing any potential over- or under-
regulation of transactions that practically amount to a change in control of a titleholder,
compared to pursuing a change to the 20 per cent control threshold through an
amendment to the OPGGS Act. Prescribing a different percentage or different
40
percentages in the regulations will ensure a modification to the control threshold may
be made in a timely, efficient and responsive manner, likely in a significantly shorter
timeframe compared with making the changes within the OPGGS Act.
188. Subsection (6) defines the term general partner for the purposes of this section, which
means a partner of a partnership whose liability in relation to the partnership is not
limited. This definition mirrors the definition of a 'general partner' under section 4 of
the FATA.
Section 566ZA Anti-avoidance
189. This section provides for an anti-avoidance provision, which provides that a person
may commit an offence or be liable to a civil penalty if the person enters into or carries
out a scheme to avoid the application of the penalty provisions in Part 5A.3 of Chapter
5A. Contravention of this section is also a ground for cancellation of the title or titles
held by the titleholder.
190. The purpose of these sanctions is to deter perverse behaviours in relation to avoiding
the application of the penalty provisions in Part 5A.3 of Chapter 5A and thereby ensure
(to the extent possible) that transactions proposing to effect a change in control of a
titleholder are subject to government oversight.
191. Subsection (1) provides that a person contravenes this subsection if:
a. the person, either alone or with one or more other persons, enters into, begins to
carry out or carries out a scheme; and
b. the person does so for the sole or dominant purpose of avoiding the application of
Part 5A.3 in relation to any person or persons (whether or not those persons are the
same persons mentioned in paragraph (a)); and
c. as a result of that scheme or part of that scheme, a person avoided the application
of Part 5A.3.
192. A note is included at the end of subsection (1) that refers the reader to the relevant
cancellation provisions in new paragraphs 274(e) and 446(da) because a contravention
of subsection (1) is a ground to cancel the title or titles held by the titleholder.
193. Subsection (2) provides that, if a person contravenes subsection (1), the person will
commit a fault-based offence. The offence is subject to a maximum criminal penalty of
1,200 penalty units for an individual. The maximum criminal penalty for a body
corporate will be a fine of 6,000 penalty units because of the body corporate multiplier
rule for an offence that imposes a pecuniary penalty in subsection 4B(3) of the Crimes
Act.
194. The physical elements of the offence do not specify fault elements, which means that
the default fault elements under section 5.6 of the Criminal Code apply.
195. Subsection (3) provides that, if a person contravenes subsection (1), the person will be
liable to a civil penalty. The maximum civil penalty for an individual will be a fine of
2,400 penalty units. The maximum civil penalty for a body corporate will be a fine of
12,000 penalty units because of the body corporate multiplier rule in paragraph 82(5)(a)
of the Regulatory Powers Act. The rationale for the amount of these penalties includes:
41
a. The maximum criminal penalty of a fine of 6,000 penalty units for a body
corporate is the same penalty for a corporation for an unauthorised takeover under
subsection 606(4A) of the Corporations Act.
b. The maximum civil penalties of a fine of 2,400 penalty units for an individual and
a fine of 12,000 penalty units for a body corporate are double the amount of the
maximum criminal penalties. This is to ensure that the penalties act as a deterrent
for non-compliance, particularly for companies, and recognises that being found
liable to a civil penalty does not attract imprisonment or a criminal conviction.
196. The penalties for the fault-based offence and the civil penalty provision reflect the
consequences that beginning or ceasing to control a titleholder (as a consequence of
entering into or carrying out a scheme to avoid the application of the penalty provisions
in Part 5A.3) may have on the suitability of the titleholder to operate in the offshore
resources regime, and therefore the severity of these penalties (along with the grounds
to cancel the title or titles held by the titleholder) aims to deter non-compliance with
subsection (1). These consequences may include a potential adverse impact on the
technical advice or financial resources available to the titleholder to carry out its
activities in the title area or areas and comply with legislative requirements, including
decommissioning. Conduct that contravenes these penalty provisions may cause the
titleholder to experience significant financial distress and, as a consequence, result in
the titleholder becoming insolvent and abandoning its title or titles. This in turn may
cascade into other adverse impacts, particularly in increasing the risks that abandoning
the management or control of an offshore facility poses to the safety of its crew and the
surrounding marine environment.
197. While the severity of these penalties reflects the seriousness of any potential non-
compliance, these amounts are lower than the highest penalty provided for in the
OPGGS Act, which is a fine of 3,500 penalty units for an individual, and 17,500
penalty units for a body corporate, for recklessly breaching an occupational health and
safety duty (see clause 16B of Schedule 3 to the OPGGS Act).
198. Subsection (4) defines the term scheme for the purposes of this section, which is
intended to capture any way a person may intend to avoid the application of the penalty
provisions in Part 5A.3 and may include:
a. any agreement, arrangement, understanding, promise or undertaking, whether
express or implied and whether or not enforceable, or intended to be enforceable,
by legal proceedings; and
b. any scheme, plan, proposal, action, course of action or course or conduct, whether
unilateral or otherwise.
Part 5A.6--Other provisions
Section 566ZB Titles Administrator etc. not concerned with the effect of instrument
lodged under this Chapter
199. This section clarifies that neither the Joint Authority nor the Titles Administrator, nor
any person acting under the direction or authority of the Joint Authority or the Titles
Administrator, is concerned with the effect in law (for example, in contract law) of an
42
instrument lodged under Chapter 5A, which may include, for example, an instrument or
proposed instrument effecting a change in control of a titleholder.
200. This section is intended to relieve the Joint Authority and the Titles Administrator, and
any person acting under the direction or authority of the Joint Authority or the Titles
Administrator, of any responsibility for verifying that the instrument has the effect in
law that it purports to have.
201. It may be necessary for the Titles Administrator to enquire into the legal effect of such
an instrument to determine its effect in relation to a change in control of a titleholder.
However, the legal effect of any particular instrument is a matter for the relevant court,
and not for the Joint Authority or the Titles Administrator, to determine.
202. This section mirrors sections 511 and 560 in relation to the administration of transfers
of and dealings in petroleum and GHG titles respectively.
Section 566ZC Falsified documents
203. This section makes it an offence to produce or tender in evidence a document that
falsely purposes to be a copy of, or an extract from, an instrument given to the Titles
Administrator under Chapter 5A. This section is intended to deter the production of, or
use in evidence, of forged or counterfeit documents in relation to changes in control of
titleholders, including possible changes in control.
204. Specifically, a person commits an offence if:
a. the person produces or tenders in evidence a document; and
b. the document falsely purports to be a copy of extract from an instrument given to
the Titles Administrator under Chapter 5A.
205. The note included in this section clarifies that the same conduct may be an offence
against both this section and section 137.2 of the Criminal Code.
206. If a person is found guilty of the offence, the maximum criminal penalty will be a fine
of 50 penalty units for an individual or a fine of 250 penalty units for a body corporate
because of the body corporate multiplier rule for an offence that imposes a pecuniary
penalty in subsection 4B(3) of the Crimes Act.
207. This section, including the penalty amount, mirrors sections 514 and 563 in relation to
the administration of transfers of and dealings in petroleum and GHG titles
respectively.
Section 566ZD Inspection of instruments
208. This section provides for access to all instruments, or copies of instrument, that are
subject to inspection under Chapter 5A. The Titles Administrator must ensure that all of
these types of instruments are open for inspection at all convenient times by any person
on payment of a fee calculated under the regulations.
209. The applicable fee (if any) will only serve to enable the Titles Administrator, as a fully
cost-recovered entity, to recover the costs that it will incur in relation to enabling public
access to the relevant instrument.
210. This section mirrors sections 515 and 564 in relation to the administration of transfers
of and dealings in petroleum and GHG titles respectively.
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Section 566ZE Evidentiary provisions
211. This section facilitates proof of certain types of matters in relation to changes in control
of titleholders, including possible changes in control, by enabling certain parties to
proceedings to provide the relevant court with specified documents as evidence in
relation to those matters.
212. Subsections (1) and (2) apply to certified copies of, or extracts from, any instrument
lodged with the Titles Administrator under Chapter 5A.
213. Subsection (1) provides that the Titles Administrator may, on payment of a fee
calculated under the regulations, supply a copy of or extract from such an instrument,
certified by the Titles Administrator to be a true copy or true extract. Practically,
certified copies will typically be photocopies, and certified extracts may include
segments of text kept in an electronic form that are able to be printed.
214. The applicable fee (if any) will only serve to enable the Titles Administrator, as a fully
cost-recovered entity, to recover the costs that it will incur in relation to supplying and
certifying the relevant copy or extract.
215. Subsection (2) provides that the certified copy or extract is admissible in evidence in all
courts and proceedings without further proof or production of the original.
216. Subsections (3) to (8) apply to evidentiary certificates prepared and issued under this
section. The purpose of evidentiary certificates is to settle formal or technical matters of
fact that would be difficult to prove by adducing admissible evidence. Evidentiary
certificates promote efficiency by removing delays arising from obtaining evidence
with more traditional methods, freeing up the court's time to consider the more serious
issues related to the offence. The use of an evidentiary certificate for a 'formal' matter
may include, for example, that an application made under section 566C for the approval
of a change in control of a titleholder has been made, including the date on which it was
lodged with the Titles Administrator.
217. Subsection (3) provides that the Titles Administrator may, on payment of a fee
calculated under the regulations, issue a written certificate:
a. stating that an entry, matter or thing required or permitted by or under Chapter 5A
to be made or done either has been made or done, or has not been made or done;
b. stating that an entry, matter or thing required by or under Chapter 5A not to be
made or done either has not been made or done, or has been made or done.
218. Such a certificate may only be issued by the Titles Administrator, or a person acting
under the direction or authority of the Titles Administrator, who will be independent of
the prosecution in any proceedings for an offence.
219. The applicable fee (if any) will only serve to enable the Titles Administrator, as a fully
cost-recovered entity, to recover the costs that it will incur in relation to preparing and
issuing the relevant evidentiary certificate.
220. Subsection (4) provides that the certificate is to be received in all courts and
proceedings as prima facie evidence of the statements in the certificate, meaning that
any such certificate will establish prima facie evidence of the matters contained in the
certificate, as opposed to conclusive evidence. As such, the certificate creates a
44
rebuttable presumption of the facts that the defendant may challenge during
proceedings for an offence.
221. Additionally, subsection (8) clarifies that any evidence given in support, or in rebuttal,
of a matter stated in an evidentiary certificate must be considered on its merits, and the
credibility and probative value of such evidence must be neither increased nor
diminished by reason of this section.
222. This section therefore provides an opportunity for evidence of contrary matters to be
adduced in any proceedings for an offence, and allows the matters stated in the
certificate to be tested through cross-examination and rebutted by the defendant (see
subsections (6) and (7)).
223. To provide defendants with a reasonably opportunity to adduce evidence of contrary
matters in any proceedings for an offence, subsection (5) sets out the procedure to be
followed before admitting an evidentiary certificate. This subsection provides that an
evidentiary certificate must not be admitted in evidence in such proceedings unless:
a. the person charged with the offence; or
b. a barrister or solicitor who has appeared for the person in those proceedings;
has, at least 14 days before the certificate is sought to be admitted, been given a copy of
the certificate together with notice of the intention to produce the certificate as evidence
in the proceedings.
224. If the defendant, or a barrister or solicitor who is appearing for the defendant, is not
provided with a copy of the certificate as required by subsection (5), the matters
contained in the evidentiary certificate may not be treated as prima facie evidence and
the person signing the certificate may need to give direct evidence of the matters that
would otherwise have been covered in the certificate.
225. Subsection (6) provides that the person signing an evidentiary certificate may be called
to give evidence as a witness for the prosecution and be cross-examined. This
subsection provides that, if, under subsection (4), an evidentiary certificate is admitted
in evidence in proceedings for an offence, the person charged with the offence may
require the person who signed the certificate to be called as a witness for the
prosecution and cross-examined as if the person who signed the certificate had given
evidence of the matters stated in the certificate.
226. Subsection (7) clarifies that subsection (6) does not entitle the person charged with the
offence to require the person who signed the certificate to be called as a witness for the
prosecution, unless the prosecutor has been given at least four days' notice of the
person's intention to require the person who signed the certificate to be so called, or the
court makes an order allowing the person charged with the offence to require the person
who signed the certificate to be so called.
227. The section mirrors the evidentiary provisions in relation to the administration of
transfers of and dealings in petroleum and GHG titles in sections 516 and 565
respectively.
Part 2--Consequential amendments
Offshore Petroleum and Greenhouse Gas Storage Act 2006
Item 2: Section 7
45
228. This item inserts the term acts jointly with into section 7 (the general definitions
provision of the OPGGS Act) and provides that the term has the meaning given by new
subsection 566B(2). The definition of acts jointly with for the purposes of a change in
control of a register holder of a title captures circumstances in which a person may act
jointly with one or more other persons to control the registered holder.
Item 3: Section 7 (at the end of paragraph (b) of the definition of Register)
229. This item adds new paragraph (c) at the end of paragraph (b) of the definition of
Register in section 7 (the general definitions provision of the OPGGS Act) and
provides that, when used in new Chapter 5A, the term Register has the meaning given
by new section 566A. This means that, for the purposes of new Chapter 5A, the term
Register is defined differently compared to other uses of the term in other provisions of
the OPGGS Act.
Item 4: Section 7 (after paragraph (ga) of the definition of title)
230. This item inserts new paragraph (gb) after paragraph (ga) of the definition of title in
section 7 (the general definitions provision of the OPGGS Act) and provides that, when
used in new Chapter 5A, the term title has the meaning given by new section 566A.
This means that, for the purposes of new Chapter 5A, the term title is defined
differently compared to other uses of the term in other provisions of the OPGGS Act.
Item 5: Subparagraph 125(2)(a)(ii)
231. This item inserts a reference to 'Chapter 5A' after the reference to 'Chapter 4' in
subparagraph 125(2)(a)(ii), which relates to compliance with conditions, etc., as a
ground to renew a petroleum exploration permit. This means that, if an applicant for the
renewal of a petroleum exploration permit has complied with the provisions of new
Chapter 5A (along with any conditions to which the permit is subject, the other
provisions of the OPGGS Act specified in subparagraph 125(2)(a)(ii) and the
regulations), the Joint Authority must give an offer document to the applicant telling
the applicant that the Joint Authority is prepared to renew the permit.
Item 6: Subparagraphs 125(3)(a)(ii), 126(2)(a)(ii), 154(2)(a)(ii) and (3)(a)(ii), 155(2)(a)(ii);
185(2)(a)(ii); (3)(a)(ii) and (4)(a)(ii), 186(2)(a)(ii), 221(3)(c)(ii) and (4)(c)(ii), 222(3)(d)(ii)
and (4)(d)(ii)
232. This item inserts a reference to 'Chapter 5A' after the reference to 'Chapter 4' in
certain provisions in Chapter 2. These amendments will require the Joint Authority to
take into account the compliance of an applicant for the grant or renewal of certain
petroleum titles with the provisions of new Chapter 5A (along with any conditions to
which the title is subject, other specified provisions of the OPGGS Act and the
regulations) in relation to whether the Joint Authority must or may grant or renew, or
must refuse to grant or renew, the title.
233. These provisions, titles and decisions include:
a. subparagraph 125(3)(a)(ii), in which the Joint Authority may offer to renew a
petroleum exploration permit if the applicant for the renewal of the permit has not
complied with the provisions of new Chapter 5A, etc., provided that the Joint
46
Authority is satisfied that there are sufficient grounds to warrant the renewal of the
permit;
b. subparagraph 126(2)(a)(ii), in which the Joint Authority must refuse to renew a
petroleum exploration permit if the applicant for the renewal of the permit has not
complied with the provisions of new Chapter 5A, etc., and the Joint Authority is
not satisfied that there are sufficient grounds to warrant the renewal of the permit;
c. subparagraph 154(2)(a)(ii), in which the Joint Authority must offer to renew a
petroleum retention lease if the applicant for the renewal of the lease has complied
with the provisions of new Chapter 5A, etc.;
d. subparagraph 154(3)(a)(ii), in which the Joint Authority may offer to renew a
petroleum retention lease if the applicant for the renewal of the lease has not
complied with the provisions of new Chapter 5A, etc., provided that the Joint
Authority is satisfied that there are sufficient grounds to warrant the renewal of the
lease;
e. subparagraph 155(2)(a)(ii), in which the Joint Authority must refuse to renew a
petroleum retention lease if the applicant for the renewal of the lease has not
complied with the provisions of new Chapter 5A, etc., and the Joint Authority is
not satisfied that there are sufficient grounds to warrant the renewal of the lease;
f. subparagraph 185(2)(a)(ii), in which the Joint Authority must offer to renew a
fixed-term petroleum production licence subject to its first renewal if the applicant
for the renewal of the licence has complied with the provisions of new Chapter 5A,
etc.;
g. subparagraph 185(3)(a)(ii), in which the Joint Authority must offer to renew a
fixed-term petroleum production licence subject to its second renewal if the
applicant for the renewal of the licence has complied with the provisions of new
Chapter 5A, etc., and petroleum recovery operations have been carried on in the
licence area within five years before the application for the renewal was made;
h. subparagraph 185(4)(a)(ii), in which the Joint Authority may offer to renew a
fixed-term petroleum production licence if the applicant for the renewal of the
licence has not complied with the provisions of new Chapter 5A, etc., provided that
the Joint Authority is satisfied that there are sufficient grounds to warrant the
renewal of the licence;
i. subparagraph 186(2)(a)(ii), in which the Joint Authority must refuse to renew a
fixed-term petroleum production licence if the applicant for the renewal of the
licence has not complied with the provisions of new Chapter 5A, etc., and the Joint
Authority is not satisfied that there are sufficient grounds to warrant the renewal of
the licence;
j. subparagraph 221(3)(c)(ii), in which the Joint Authority must offer to grant a
petroleum-related pipeline licence to an applicant who is a petroleum production
licensee if the applicant has complied with the provisions of new Chapter 5A, etc.;
k. subparagraph 221(4)(c)(ii), in which the Joint Authority may offer to grant a
petroleum-related pipeline licence to an applicant who is a petroleum production
licensee if the applicant has not complied with the provisions of new Chapter 5A,
47
etc., provided that the Joint Authority is satisfied that there are sufficient grounds
to warrant the grant of the pipeline licence;
l. subparagraph 222(3)(d)(ii), in which the Joint Authority must offer to grant a
GHG-related pipeline licence to an applicant who is a petroleum production
licensee if the applicant has complied with the provisions of new Chapter 5A, etc.;
and
m. subparagraph 222(4)(d)(ii), in which the Joint Authority may offer to grant a GHG-
related pipeline licence to an applicant who is a petroleum production licensee if
the applicant has not complied with the provisions of new Chapter 5A, etc.,
provided that the Joint Authority is satisfied that there are sufficient grounds to
warrant the grant of the pipeline licence.
Item 7: Subparagraphs 222(6)(d)(ii) and (7)(d)(ii)
234. This item inserts a reference to 'Chapter 5A' after the reference to 'Chapter 5' in
certain provisions in Chapter 2. These amendments will require the Joint Authority to
take into account the compliance of an applicant for the grant of a GHG-related
pipeline licence with the provisions of new Chapter 5A (along with any conditions to
which the title is subject, other specified provisions of the OPGGS Act and the
regulations) in relation to whether the Joint Authority must or may grant the pipeline
licence.
235. These provisions and decisions include:
a. subparagraph 222(6)(d)(ii), in which the Joint Authority must offer to grant a
GHG-related pipeline licence to an applicant who is a GHG injection licensee if the
applicant has complied with the provisions of new Chapter 5A, etc.; and
b. subparagraph 222(7)(d)(ii), in which the Joint Authority may offer to grant a GHG-
related pipeline licence to an applicant who is a GHG injection licensee if the
applicant has not complied with the provisions of new Chapter 5A, etc., provided
that the Joint Authority is satisfied that there are sufficient grounds to warrant the
grant of the pipeline licence.
Item 8: Subparagraphs 223(2)(c)(ii) and 224(2)(d)(ii)
236. This item inserts a reference to 'Chapter 5A' after the reference to 'Chapter 4' in
certain provisions in Chapter 2. These amendments will require the Joint Authority to
take into account the compliance of an applicant for the grant of a petroleum-related
pipeline licence with the provisions of new Chapter 5A (along with any conditions to
which the title is subject, other specified provisions of the OPGGS Act and the
regulations) in relation to whether the Joint Authority must refuse to grant the pipeline
licence.
237. These provisions and decisions include:
a. subparagraph 223(2)(c)(ii), in which the Joint Authority must refuse to grant a
petroleum-related pipeline licence to an applicant who is a petroleum production
licensee if the applicant has not complied with the provisions of new Chapter 5A,
etc., and the Joint Authority is not satisfied that there are sufficient grounds to
warrant the grant of the pipeline licence; and
48
b. subparagraph 224(2)(d)(ii), in which the Joint Authority must refuse to grant a
GHG-related pipeline licence to an applicant who is a petroleum production
licensee if the applicant has not complied with the provisions of new Chapter 5A,
etc., and the Joint Authority is not satisfied that there are sufficient grounds to
warrant the grant of the pipeline licence.
Item 9: Subparagraph 224(4)(d)(ii)
238. This item inserts a reference to 'Chapter 5A' after the reference to 'Chapter 5' in
subparagraph 224(4)(d)(ii), which relates to the refusal to grant a GHG-related pipeline
license to an applicant who is a GHG injection licensee. This means that, if the
applicant has not complied with the provisions of new Chapter 5A (along with any
conditions to which the permit is subject, the other provisions of the OPGGS Act
specified in paragraph 125(2)(a)(ii) and the regulations) and the Joint Authority is not
satisfied that there are sufficient grounds to warrant the grant of the pipeline licence, the
Joint Authority must refuse to grant the pipeline licence.
Item 10: After subparagraph 270(3)(b)(ii)
239. This items inserts a reference to 'Chapter 5A' after subparagraph 270(3)(b)(ii) in new
subparagraph (iia). Subsection 270(3) provides for the criteria that the Joint Authority
must take into account in deciding whether to give consent, or refuse to consent, to the
surrender a title listed in the table in subsection 269(1). This amendment will require
the Joint Authority to take into account the compliance of an applicant for the consent
to the surrender of a title with the provisions of new Chapter 5A (along with any
conditions to which the title is subject, other specified provisions of the OPGGS Act
and the regulations, as well as other criteria) in relation to whether the Joint Authority
may give consent, or refuse to consent, to the surrender of the title.
Item 11: Subparagraph 270(5)(a)(ii)
240. This items inserts a reference to 'Chapter 5A' after the reference to 'Chapter 4' in
subparagraph 270(5)(b)(ii). Subsection 270(5) provides that, despite subsection 270(3),
the Joint Authority may give consent under subsection 270(2) to the surrender of the
title if the conditions of the title, etc., have not been complied, provided that the Joint
Authority is satisfied that there are sufficient grounds to warrant the giving of consent
to the surrender. This means that, if applicant has not complied with the provisions of
new Chapter 5A (along with any conditions to which the title is subject, the other
provisions of the OPGGS Act specified in paragraph 270(5)(b)(ii) and the regulations),
the Joint Authority may consent to the surrender of the title if the Joint Authority is
satisfied that there are sufficient grounds to do so.
Item 12: After subparagraph 274(c)(ii)
241. This items inserts a reference to 'Chapter 5A' after subparagraph 274(c)(ii) in new
paragraph (iia), which will provide that, if a registered holder of a title to which section
274 is subject has not complied with a provision of new Chapter 5A, that non-
compliance is a ground for the cancellation of the title.
242. The titles to which section 274 is subject include:
49
a. a petroleum exploration permit;
b. a petroleum retention lease;
c. a petroleum production licence;
d. an infrastructure licence;
e. a pipeline licence.
Item 13: After paragraph 274(d)
243. This item inserts new paragraph (e) into section 274, which provides that non-
compliance with certain specified penalty provisions of new Chapter 5A by persons
other than the registered holder of certain petroleum titles is an additional ground for
the cancellation of the title. Section 274 sets out the grounds for the Joint Authority to
cancel any of the following titles:
a. a petroleum exploration permit;
b. a petroleum retention lease;
c. a petroleum production licence;
d. an infrastructure licence;
e. a pipeline licence.
244. The effect of this amendment is that non-compliance with certain specified penalty
provisions of new Chapter 5A by persons other than the registered holder of any one of
these titles is an additional ground for the cancellation of the title.
245. The relevant penalty provisions of new Chapter 5A specified in new paragraph (e)
include:
a. new subsection 566H(1), which provides that a person who is proposing to begin
or cease controlling a registered holder of a title will contravene that subsection if
the person does not notify the Titles Administrator of a change in circumstances in
relation to the person that materially affects any of the matters that the Titles
Administrator must have regard to under subsection 566D(4), which in turn
provides the criteria for deciding whether or not to approve the change in control of
the registered holder;
b. new subsection 566N(1), which provides that a person who has begun or ceased to
control a registered holder of a title without approval will contravene that
subsection;
c. new subsection 566P(1), which provides that a person who begins or ceases to
control a registered holder of a title without approval will contravene that
subsection if the person does not notify the Titles Administrator of the change in
control within 30 days of the change in control taking effect;
d. new subsection 566ZA(1), which provides that a person will contravene that
subsection if the person enters into, begins to carry out or carries out a scheme for
the sole or dominant purpose of avoiding the application of the penalty provisions
in Part 5A.3.
246. Cancelling the title or titles held by the registered holder reflects the consequences of
beginning or ceasing to control a titleholder without approval (or equivalent) may have
on the suitability of the titleholder, and therefore the severity of this sanction aims to
deter non-compliance with the relevant penalty provisions of new Chapter 5A. This is
50
especially so for a person who has begun to control a registered holder of a title without
approval. This is because cancelling the title or titles will stop the person from deriving
a financial benefit from acquiring the ownership or control of an offshore project
through an unauthorised change in control because the registered holder will be
prohibited from continuing to carry on its activities. The consequences of beginning or
ceasing to control a titleholder without approval may include a potential adverse impact
on the technical advice or financial resources available to the titleholder to carry out its
activities in the title area or areas and complying with legislative requirements,
including decommissioning. Conduct that contravenes these penalty provisions may
cause the titleholder to experience significant financial distress and, as a consequence,
result in the titleholder becoming insolvent and abandoning its title or titles. This in turn
may cascade into other adverse impacts, particularly in increasing the risks that
abandoning the management or control of an offshore facility poses to the safety of its
crew and the surrounding marine environment.
Item 14: After subparagraph 277(1)(a)(ii)
247. This item inserts a reference to 'Chapter 5A' after subparagraph 277(1)(a)(ii) in new
subparagraph (iia). This amendment clarifies that the cancellation of a title subject to
section 274 is not affected by other provisions of the OPGGS Act, specifically the
prosecution of an offence for non-compliance with the provisions of new Chapter 5A.
If a registered holder of a title has not complied with a provision of new Chapter 5A
(along with the other provisions of the OPGGS Act specified in paragraph 277(1)(a))
and has been convicted of an offence relating to that non-compliance, the Joint
Authority may exercise a power of cancellation under subsection 275(1) on the ground
of that non-compliance, even though the holder has been convicted of that offence.
248. Cancelling the title or titles held by the registered holder may be one of several actions
taken by the Commonwealth that is necessary and appropriate to respond to non-
compliance with any one of the relevant penalty provisions of new Chapter 5A by
persons other than the registered holder. Other actions may include, for example,
prosecuting a relevant offence against the register holder.
Item 15: After subsection 277(1)
249. This item inserts new subsection (1A) into section 277. This amendment clarifies that
the cancellation of a title subject to section 274 is not affected by other provisions of
the OPGGS Act, specifically the prosecution of an offence for non-compliance with the
provisions of new Chapter 5A. If a person has not complied with new subsections
566N(1) or 566ZA(1) in relation to a title subject to section 274 and the person has
been convicted of an offence relating to that non-compliance, the Joint Authority may
exercise a power of cancellation under subsection 275(1) on the ground of that non-
compliance, even though the person has been convicted of that offence.
250. Cancelling the title or titles held by the registered holder may be one of several actions
taken by the Commonwealth that is necessary and appropriate to respond to non-
compliance with any one of the relevant penalty provisions of new Chapter 5A by
persons other than the registered holder. Other actions may include, for example,
51
prosecuting a relevant offence against the person who has begun or ceased to control
the registered holder without approval, or behaved perversely to avoid the application
of the penalty provisions in Part 5A.3 of new Chapter 5A.
Item 16: After subparagraph 277(2)(a)(ii)
251. This item inserts a reference to 'Chapter 5A' after subparagraph 277(2)(a)(ii) in new
subparagraph (iia). This amendment clarifies that the cancellation of a title subject to
section 274 is not affected by other provisions of the OPGGS Act, specifically the
prosecution of an offence for non-compliance with the provisions of new Chapter 5A.
If a person who was the registered holder of a title has not complied with a provision of
new Chapter 5A (along with the other provisions of the OPGGS Act specified in
paragraph 277(2)(a)) and the Joint Authority has exercised a power of cancellation
under subsection 275(1) on the ground of that non-compliance, the person may be
convicted of an offence relating to the non-compliance, even though the Joint Authority
has cancelled the title.
252. Cancelling the title or titles held by the registered holder may be one of several actions
taken by the Commonwealth that is necessary and appropriate to respond to non-
compliance with any one of the relevant penalty provisions of new Chapter 5A by
persons other than the registered holder. Other actions may include, for example,
prosecuting a relevant offence against the register holder.
Item 17: After subsection 277(2)
253. This item inserts new subsection (2A) into section 277. This amendment clarifies that
the cancellation of a title subject to section 274 is not affected by other provisions of
the OPGGS Act, specifically the prosecution of an offence for non-compliance with the
provisions of new Chapter 5A. If a person has not complied with new subsection
566N(1) or 566ZA(1) in relation to a title subject to section 274 and the Joint Authority
has exercised a power of cancellation under subsection 275(1) on the ground of that
non-compliance, the person may be convicted of an offence relating to the non-
compliance, even though the Joint Authority has cancelled the title.
254. Cancelling the title or titles held by the registered holder may be one of several actions
taken by the Commonwealth that is necessary and appropriate to respond to non-
compliance with any one of the relevant penalty provisions of new Chapter 5A by
persons other than the registered holder. Other actions may include, for example,
prosecuting a relevant offence against the person who has begun or ceased to control
the registered holder without approval, or behaved perversely to avoid the application
of the penalty provisions in Part 5A.3 of new Chapter 5A.
Item 18: Subparagraphs 309(2)(a)(ii), (3)(a)(ii) and (4)(a)(ii), 310(2)(a)(ii) and (3)(a)(ii)
255. This item inserts a reference to 'Chapter 5A' after the reference to 'Chapter 5' in
certain provisions in Chapter 3. These amendments will require the responsible
Commonwealth Minister to take into account the compliance of an applicant for the
renewal of certain GHG titles with the provisions of new Chapter 5A (along with any
conditions to which the title is subject, other specified provisions of the OPGGS Act
52
and the regulations) in relation to whether the Minister must or may renew, or must
refuse to renew, the title.
256. These provisions, titles and decisions include:
a. subparagraph 309(2)(a)(ii), in which the Minister must offer to renew a GHG
assessment permit if the applicant for the renewal of the permit has complied with
the provisions of new Chapter 5A, etc.;
b. subparagraph 309(3)(a)(ii), in which the Minister may offer to renew a GHG
assessment permit if the applicant for the renewal of the permit has not complied
with the provisions of new Chapter 5A, etc., provided that the Minister is satisfied
that there are sufficient grounds to warrant the renewal of the permit;
c. subparagraph 309(4)(a)(ii), in which the Minister may offer to renew a GHG
assessment permit if:
i. the applicant for the renewal of the permit has complied with the provisions
of new Chapter 5A, etc.; and
ii. during the period when the GHG assessment permit was in force, no notice
under section 451 was given about a part of a geological formation wholly
situated in the permit area; and
iii. the Minister is satisfied that there are sufficient grounds to warrant the
renewal of the permit;
d. subparagraph 310(2)(a)(ii), in which the Minister must refuse to renew a GHG
assessment permit if the applicant for the renewal of the permit has not complied
with the provisions of new Chapter 5A, etc., and the Minister is not satisfied that
there are sufficient grounds to warrant the renewal of the permit;
e. subparagraph 310(3)(a)(ii), in which the Minister must refuse to renew a GHG
assessment permit if:
i. the applicant for the renewal of the permit has complied with the provisions
of new Chapter 5A, etc.; and
ii. during the period when the GHG assessment permit was in force, no notice
under section 451 was given about a part of a geological formation wholly
situated in the permit area; and
iii. the Minister is not satisfied that there are sufficient grounds to warrant the
renewal of the permit.
Item 19: Subparagraph 311B(2)(a)(ii)
257. This item inserts a reference to 'Chapter 5A' after the reference to 'Chapter 5' in
subparagraph 311B(2)(a)(ii), which relates to compliance with conditions, etc., as a
ground to renew a cross-boundary GHG assessment permit. This means that, if an
applicant for the renewal of a cross-boundary GHG assessment permit has complied
with the provisions of new Chapter 5A (along with any conditions to which the title is
subject, the other provisions of the OPGGS Act specified in subparagraph
311B(2)(a)(ii) and the regulations), the Cross-boundary Authority must give an offer
document to the applicant telling the applicant that the Joint Authority is prepared to
renew the permit.
53
Item 20: Subparagraphs 311B(3)(a)(ii), 311C(2)(a)(ii), 348(2)(a)(ii) and (3)(a)(ii),
349(2)(a)(ii), 350B(2)(a)(ii) and (3)(a)(ii) and 350C(2)(a)(ii)
258. This item inserts a reference to 'Chapter 5A' after the reference to 'Chapter 5' in
certain provisions in Chapter 3. These amendments will require the responsible
Commonwealth Minister or the Cross-boundary Authority to take into account the
compliance of an applicant for the renewal of certain GHG titles, including cross-
boundary GHG titles, with the provisions of new Chapter 5A (along with any
conditions to which the title is subject, other specified provisions of the OPGGS Act
and the regulations) in relation to whether Minister or the Cross-boundary Authority
must or may renew, or must refuse to renew, the title.
259. These provisions, titles and decisions include:
a. subparagraph 311B(2)(a)(ii), in which the Cross-boundary Authority may offer to
renew a cross-boundary GHG assessment permit if the applicant for the renewal of
the permit has not complied with the provisions of new Chapter 5A, etc., provided
that the Cross-boundary Authority is satisfied that there are sufficient grounds to
warrant the renewal of the permit;
b. subparagraph 311C(2)(a)(ii), in which the Cross-boundary Authority must refuse to
renew a cross-boundary GHG assessment permit if the applicant for the renewal of
the permit has not complied with the provisions of new Chapter 5A, etc., and the
Cross-boundary Authority is not satisfied that there are sufficient grounds to
warrant the renewal of the permit;
c. subparagraph 348(2)(a)(ii), in which the Minister must offer to renew a GHG
holding lease if the applicant for the renewal of the lease has complied with the
provisions of new Chapter 5A, etc.;
d. subparagraph 348(3)(a)(ii), in which the Minister may offer to renew a GHG
holding lease if the applicant for the renewal of the lease has not complied with the
provisions of new Chapter 5A, etc., provided that the Minister is satisfied that there
are sufficient grounds to warrant the renewal of the lease;
e. subparagraphs 349(2)(a)(ii), in which the Minister must refuse to renew a GHG
holding lease if the applicant for the renewal of the lease has not complied with the
provisions of new Chapter 5A, etc., and the Minister is not satisfied that there are
sufficient grounds to warrant the renewal of the permit;
f. subparagraph 350B(2)(a)(ii), in which the Cross-boundary Authority must offer to
renew a cross-boundary GHG holding lease if the applicant for the renewal of the
lease has complied with the provisions of new Chapter 5A, etc.;
g. subparagraph 350B(3)(a)(ii), in which the Cross-boundary Authority may offer to
renew a cross-boundary GHG holding lease if the applicant for the renewal of the
lease has not complied with the provisions of new Chapter 5A, etc., provided that
the Cross-boundary Authority is satisfied that there are sufficient grounds to
warrant the renewal of the lease; and
h. subparagraph 350C(2)(a)(ii), in which the Cross-boundary Authority must refuse to
renew a cross-boundary GHG holding lease if the applicant for the renewal of the
lease has not complied with the provisions of new Chapter 5A, etc., and the Cross-
54
boundary Authority is not satisfied that there are sufficient grounds to warrant the
renewal of the permit.
Item 21: Paragraph 388(7)(b)
260. This item inserts a reference to 'Chapter 5A' after the reference to 'Chapter 5' into the
definition of a relevant statutory requirement in paragraphs 388(7)(b).
261. Section 388 enables the responsible Commonwealth Minister to give a pre-certificate
notice to a person who has made an application for a site closing certificate under 386
telling the applicant that the Minister is prepared to issue the certificate. Subsection
388(6) provides that the Minister must not give the applicant a pre-certificate notice,
unless the Minister is satisfied that either:
a. the relevant statutory requirements have been complied with;
b. any of the relevant statutory requirements have not been complied with, but there
are sufficient grounds to warrant the issue of the site closing certificate.
262. This means that, if applicant has not complied with the provisions of new Chapter 5A
(along with any of the other relevant statutory requirements), the Minister must not give
the applicant a pre-certificate notice, unless the Minister is satisfied that there are
sufficient grounds to warrant the issue of the site closing certificate.
Item 22: After subparagraph 430(5)(c)(ii)
263. This item inserts a reference to 'Chapter 5A' in new subparagraph 442(5)(c)(iia) into
the definition of an applicant statutory obligations in subsection 430(5)).
264. Section 430 sets out the requirements of an offer document in relation to an application
for the grant or renewal of a GHG assessment permit or a GHG holding lease, or the
grant of a GHG injection licence. Subsection 450(4) enables such an offer document to
require the applicant for the grant or renewal of the relevant title to lodge a security in
respect of a compliance with the applicable statutory obligations by the registered
holder for the time being of the title. This means that the responsible Commonwealth
Minister may specify in such an offer document that a security is required to be lodged
in respect of compliance with obligation of the registered holder to comply with the
provisions of Chapter 5A (along with the other provisions of the OPGGS Act specified
in paragraph 430(5)(c) and the regulations).
Item 23: After subparagraph 442(3)(b)(ii)
265. This items inserts a reference to 'Chapter 5A' after subparagraph 442(3)(c)(ii) in new
subparagraph (iia). Subsection 442(3) provides for the criteria that the responsible
Commonwealth Minister must take into account in deciding whether to give consent, or
refuse to consent, to the surrender a title listed in the table in subsection 441(1). This
amendment will require the Minister to take into account the compliance of an
applicant for the consent to the surrender of a title with the provisions of new Chapter
5A (along with any conditions to which the title is subject, other specified provisions of
the OPGGS Act and the regulations, as well as other criteria) in relation to whether the
Minister may give consent, or refuse to consent, to the surrender of the title.
Item 24: Subparagraph 442(7)(a)(ii)
55
266. This items inserts a reference to 'Chapter 5A' after the reference to 'Chapter 5' in
subparagraph 442(7)(a)(ii). Subsection 442(7) provides that, despite subsection 442(3),
the responsible Commonwealth Minister may give consent under subsection 442(2) to
the surrender of the title if the conditions of the title, etc., have not been complied,
provided that the Minister is satisfied that there are sufficient grounds to warrant the
giving of consent to the surrender. This means that, if applicant has not complied with
the provisions of new Chapter 5A (along with any conditions to which the title is
subject, the other provisions of the OPGGS Act specified in paragraph 442(7)(a)(ii) and
the regulations), the Minister may consent to the surrender of the title if the Minister is
satisfied that there are sufficient grounds to do so.
Item 25: After subparagraph 446(c)(ii)
267. This items inserts a reference to 'Chapter 5A' after subparagraph 466(c)(ii) in new
paragraph (iia), which will provide that, if a registered holder of a title to which section
446 is subject has not complied with a provision of new Chapter 5A, that non-
compliance is a ground for the cancellation of the title.
268. The titles to which section 446 is subject include:
a. a GHG assessment permit;
b. a GHG holding lease;
c. a GHG injection licence.
Item 26: After paragraph 446(d)
269. This item inserts new paragraph (da) into section 446, which provides that non-
compliance with certain specified penalty provisions of new Chapter 5A by persons
other than the registered holder of certain GHG titles is an additional ground for the
cancellation of the title. Section 446 sets out the grounds for the responsible
Commonwealth Minister to cancel any of the following titles:
a. a GHG assessment permit;
b. a GHG holding lease;
c. a GHG injection licence.
270. The relevant penalty provisions of new Chapter 5A specified in new paragraph (da)
include:
a. new subsection 566H(1), which provides that a person who is proposing to begin
or cease controlling a registered holder of a title will contravene that subsection if
the person does not notify the Titles Administrator of a change in circumstances in
relation to the person that materially affects any of the matters that the Titles
Administrator must have regard to under subsection 566D(4), which in turn
provides the criteria for deciding whether or not to approve the change in control of
the registered holder;
b. new subsection 566N(1), which provides that a person who has begun or ceased to
control a registered holder of a title without approval will contravene that
subsection;
c. new subsection 566P(1), which provides that a person who begins or ceases to
control a registered holder of a title without approval will contravene that
56
subsection if the person does not notify the Titles Administrator of the change in
control within 30 days of the change in control taking effect;
d. new subsection 566ZA(1), which provides that a person will contravene that
subsection if the person enters into, begins to carry out or carries out a scheme for
the sole or dominant purpose of avoiding the application of the penalty provisions
in Part 5A.3.
271. Cancelling the title or titles held by the registered holder reflects the consequences of
beginning or ceasing to control a titleholder without approval (or equivalent) may have
on the suitability of the titleholder, and therefore the severity of this sanction aims to
deter non-compliance with the relevant penalty provisions of new Chapter 5A. This is
especially so for a person who has begun to control a registered holder of a title without
approval. This is because cancelling the title or titles will stop the person from deriving
a financial benefit from acquiring the ownership or control of an offshore project
through an unauthorised change in control because the registered holder will be
prohibited from continuing to carry on its activities. The consequences of beginning or
ceasing to control a titleholder without approval may include a potential adverse impact
on the technical advice or financial resources available to the titleholder to carry out its
activities in the title area or areas and complying with legislative requirements,
including decommissioning. Conduct that contravenes these penalty provisions may
cause the titleholder to experience significant financial distress and, as a consequence,
result in the titleholder becoming insolvent and abandoning its title or titles. This in turn
may cascade into other adverse impacts, particularly in increasing the risks that
abandoning the management or control of an offshore facility poses to the safety of its
crew and the surrounding marine environment.
Item 27: After subparagraph 449(1)(a)(ii)
272. This item inserts a reference to 'Chapter 5A' after subparagraph 449(1)(a)(ii) in new
subparagraph (iia). This amendment clarifies that the cancellation of a title subject to
section 446 is not affected by other provisions of the OPGGS Act, specifically the
prosecution of an offence for non-compliance with the provisions of new Chapter 5A.
If a registered holder of a title has not complied with a provision of new Chapter 5A
(along with the other provisions of the OPGGS Act specified in paragraph 449(1)(a))
and has been convicted of an offence relating to that non-compliance, the responsible
Commonwealth Minister may exercise a power of cancellation under subsection 447(1)
on the ground of that non-compliance, even though the holder has been convicted of
that offence.
273. Cancelling the title or titles held by the registered holder may be one of several actions
taken by the Commonwealth that is necessary and appropriate to respond to non-
compliance with any one of the relevant penalty provisions of new Chapter 5A by
persons other than the registered holder. Other actions may include, for example,
prosecuting a relevant offence against the register holder.
Item 28: After subsection 449(1)
57
274. This item inserts new subsection (1A) into section 449. This amendment clarifies that
the cancellation of a title subject to section 446 is not affected by other provisions of
the OPGGS Act, specifically the prosecution of an offence for non-compliance with the
provisions of new Chapter 5A. If a person has not complied with new subsections
566N(1) or 566ZA(1) in relation to a title subject to section 446 and the person has
been convicted of an offence relating to that non-compliance, the responsible
Commonwealth Minister may exercise a power of cancellation under subsection 447(1)
on the ground of that non-compliance, even though the person has been convicted of
that offence.
275. Cancelling the title or titles held by the registered holder may be one of several actions
taken by the Commonwealth that is necessary and appropriate to respond to non-
compliance with any one of the relevant penalty provisions of new Chapter 5A by
persons other than the registered holder. Other actions may include, for example,
prosecuting a relevant offence against the person who has begun or ceased to control
the registered holder without approval, or behaved perversely to avoid the application
of the penalty provisions in Part 5A.3 of new Chapter 5A.
Item 29: After subparagraph 449(2)(a)(ii)
276. This item inserts a reference to 'Chapter 5A' after subparagraph 449(2)(a)(ii) in new
subparagraph (iia). This amendment clarifies that the cancellation of a title subject to
section 446 is not affected by other provisions of the OPGGS Act, specifically the
prosecution of an offence for non-compliance with the provisions of new Chapter 5A.
If a person who was the registered holder of a title has not complied with a provision of
new Chapter 5A (along with the other provisions of the OPGGS Act specified in
paragraph 449(2)(a)) and the responsible Commonwealth Minister has exercised a
power of cancellation under subsection 447(1) on the ground of that non-compliance,
the person may be convicted of an offence relating to the non-compliance, even though
the Minister has cancelled the title.
277. Cancelling the title or titles held by the registered holder may be one of several actions
taken by the Commonwealth that is necessary and appropriate to respond to
non-compliance with any one of the relevant penalty provisions of new Chapter 5A by
persons other than the registered holder. Other actions may include, for example,
prosecuting a relevant offence against the register holder.
Item 30: After subsection 449(2)
278. This item inserts new subsection (2A) into section 449. This amendment clarifies that
the cancellation of a title subject to section 446 is not affected by other provisions of
the OPGGS Act, specifically the prosecution of an offence for non-compliance with the
provisions of new Chapter 5A. If a person has not complied with new subsections
566N(1) or 566ZA(1) in relation to a title subject to section 446 and the responsible
Commonwealth Minister has exercised a power of cancellation under subsection 447(1)
on the ground of that non-compliance, the person may be convicted of an offence
relating to the non-compliance, even though the Minister has cancelled the title.
58
279. Cancelling the title or titles held by the registered holder may be one of several actions
taken by the Commonwealth that is necessary and appropriate to respond to non-
compliance with any one of the relevant penalty provisions of new Chapter 5A by
persons other than the registered holder. Other actions may include, for example,
prosecuting a relevant offence against the person who has begun or ceased to control
the registered holder without approval, or behaved perversely to avoid the application
of the penalty provisions in Part 5A.3 of new Chapter 5A.
Item 31: After subparagraph 454(3)(c)(ii)
280. This item inserts a reference to 'Chapter 5A' in new subparagraph 454(3)(c)(iia) into
the definition of an applicant statutory obligations in subsection 454(3)). Section 454
empowers the responsible Commonwealth Minister to require the registered holder of a
GHG assessment permit, a GHG holding lease or a GHG injection licence, within a
60-day period, to lodge with the Minister an additional security in respect of
compliance with the applicable statutory obligations by the registered holder for the
time being of the permit, lease or licence. This means that the Minister may require an
additional security to be lodged in respect of compliance with obligation of the
registered holder to comply with the provisions of Chapter 5A (along with the other
provisions of the OPGGS Act specified in paragraph 430(5)(c) and the regulations).
Item 32: Subsection 516(1)
281. This item inserts a reference to 'Chapter 5A' after the reference to 'this Chapter' (that
is, Chapter 4) in subsection 516(1). This means that the Register kept under section 469
is to be received in all courts and proceedings as prima facie evidence of all matters
required or authorised by new Chapter 5A to be entered in the Register.
282. These matters may include, for example, the information that is required to, or may, be
entered in the Register under new section 566L, which includes the date of any
application made under new section 566C, the date of any decision made under new
subsection 566D(2) and the date a change in control of a registered holder of a title took
effect.
283. Because the Register is to be received in all courts and proceedings as prima facie
evidence of all matters required or authorised by new Chapter 5A to be entered in the
Register, this amendment provides an opportunity for evidence of contrary matters to
be adduced in such proceedings, allowing the matters entered in the Register to be
tested by the parties to the proceedings and rebutted by any defendants.
Item 33: Subsection 565(1)
284. This item inserts a reference to 'Chapter 5A' after the reference to 'this Chapter' (that
is, Chapter 5) in subsection 565(1). This means that the Register kept under section 521
is to be received in all courts and proceedings as prima facie evidence of all matters
required or authorised by new Chapter 5A to be entered in the Register.
285. These matters may include, for example, the information that is required to, or may, be
entered in the Register under new section 566L, which includes the date of any
application made under new section 566C, the date of any decision made under new
59
subsection 566D(2) and the date a change in control of a registered holder of a title took
effect.
286. Because the Register is to be received in all courts and proceedings as prima facie
evidence of all matters required or authorised by new Chapter 5A to be entered in the
Register, this amendment provides an opportunity for evidence of contrary matters to
be adduced in such proceedings, allowing the matters entered in the Register to be
tested by the parties to the proceedings and rebutted by any defendants.
Item 34: Subsection 601(1) (after table item 2A)
287. This item inserts new table item 2B into the table in subsection 601(1), which refers to
the provisions of new Chapter 5A. The provisions listed in the table are the listed
NOPSEMA laws, which means that the provisions of new Chapter 5A are subject to
Part 6.5 of Chapter 6. This Part provides for NOPSEMA's compliance and enforcement
powers, and therefore this amendment makes it clear that NOPSEMA is empowered to
monitor and enforce compliance in relation to the provisions of new Chapter 5A.
Item 35: After subparagraph 611(1)(a)(iv)
288. This item inserts a reference to 'Chapter 5A' in new subparagraph 611(1)(a)(iva),
which means that proceedings in relation to an offence against Chapter 5A may be
brought at any time.
Item 36: Subsection 611B(2) (table item 3, column headed "is an authorised applicant in
relation to the following civil penalty provisions in this Act (to the extent indicated) ... ", after
paragraph (g))
289. This item inserts references to the civil penalty provisions of new Chapter 5A under
table item 3, which means that Titles Administrator is the authorised applicant in
relation to these civil penalty provision. Section 82 of the Regulatory Powers Act
provides that an authorised applicant may apply to a relevant court for an order that a
person, who is alleged to have contravened a civil penalty provision, pay the
Commonwealth a pecuniary penalty. This means that the Titles Administrator is
responsible for making orders to a relevant court to enforce a civil penalty provision of
new Chapter 5A.
Item 37: After subsection 611B(2)
290. This item inserts new subsection (2A) into section 611B, which provides that
subsection 82(2) of the Regulatory Powers Act does not apply to an application to
obtain a civil penalty order for an alleged contravention of the civil penalty provisions
of new Chapter 5A. These civil penalty provisions include:
a. new subsection 566H(2), which relates to a notification of a material change in
circumstances in relation to a person proposing to begin or cease controlling a
titleholder before or during the approval period;
b. new subsection 566K(2), which relates to a notification that a change in control of
a registered holder of a title that has been approved has taken effect with 10 days of
it taking effect;
60
c. new subsection 566N(2), which is the civil penalty for a change in control of a
registered holder of a title that has not been approved that has taken effect;
d. new subsection 566P(2), which relates to a notification that a change in control of
a registered holder of a title that has not been approved has taken effect within
30 days of it taking effect;
e. new subsection 566Q(2), which relates to a notification by a registered holder of a
title that a change in control of the registered holder that has not been approved has
taken effect within 30 days of it taking effect;
f. new subsection 566R(7), which relates to a requirement to provide information,
documents or evidence under subsection 566R(2) within 14 days after the notice is
given; and
g. new subsection 566ZA(3), which is the civil penalty provision for the
anti-avoidance provision.
291. The effect of this amendment is that the six-year limitation on making an application
under section 82 of Regulatory Powers Act to obtain a civil penalty order for an alleged
contravention of any of the civil penalty provisions of new Chapter 5A does not apply,
which departs from the policy set out in the Regulatory Powers Act.
292. It is appropriate and proportionate to depart from the policy set out in section 82 of
Regulatory Powers Act in relation to the civil penalty provisions of new Chapter 5A to
deter non-compliance through the evasion of the increased government oversight
provided for in new Chapter 5A, particularly in preventing entities from:
a. not notifying of a material change in circumstances before or during the approval
period in contravention of new section 566H;
b. beginning or ceasing to control a titleholder without approval in contravention of
new section 566N;
c. doing so and not notifying the Titles Administrator that the unauthorised change in
control has taken effect in contravention of new section 566P.
293. A change in control of a titleholder may, by virtue of the tracing provision under new
section 566Z, take effect multiple 'levels' above the titleholder and in relation to
corporations, trusts or partnerships that are based outside Australia. Consequently, and
given the length of time offshore projects operate for, it may be more advantageous for
an entity that proposes to begin or cease to control, or that has begun or ceased to
control, a titleholder to withhold notifying the Titles Administrator that the change in
control has taken effect until after the expiration of the six-year limitation period under
section 82 of the Regulatory Powers Act for the relevant contravening act or omission.
The entity may even withhold notifying the Titles Administrator of this information
indefinitely, meaning that the Titles Administrator may not discover until after the
expiration of this six-year limitation period.
294. Withholding information about an unauthorised change in control of a titleholder will
prolong and obstruct appropriate action to respond to the non-compliance, which in turn
may compound the consequences that the unauthorised change in control will have on
the suitability of the titleholder. These consequences may include a potential adverse
impact on the technical advice or financial resources available to the titleholder to carry
out its activities in the title area or areas and complying with legislative requirements,
61
including decommissioning. Conduct that contravenes these penalty provisions may
cause the titleholder to experience significant financial distress and, as a consequence,
result in the titleholder becoming insolvent and abandoning its title or titles. This in turn
may cascade into other adverse impacts, particularly in increasing the risks that
abandoning the management or control of an offshore facility poses to the safety of its
crew and the surrounding marine environment.
295. Departing from the policy in relation to section 82 of Regulatory Powers Act is
therefore appropriate and proportionate to deter such perverse behaviours from
prolonging and obstructing the Commonwealth's efforts to prevent such consequences.
Item 38: After paragraph 636(ec)
296. This item inserts new paragraphs (ed), (ee) and (ef) into section 636, which simply set
out the new fees provided for in new Chapter 5A that are payable to the Titles
Administrator on behalf of the Commonwealth.
297. These fees include:
a. a fee under subsection 566M(1), which is for an application made under section
566C for the approval of a change in control of a registered holder of a title;
b. a fee under section 566ZD, which is for the Titles Administrator to facilitate an
inspection of all instruments, or copies of instruments, subject to inspection under
new Chapter 5A;
c. a fee under subsection 566ZE(1), which is for the Titles Administrator to supply a
certified copy or a certified extract from any instrument lodged with the Titles
Administrator under new Chapter 5A under this subsection ; and
d. a fee under subsection 566ZE(3), which is for the Titles Administrator issue an
evidentiary certificate under this subsection.
Part 3--Application of amendments
Item 39: Application of amendments
298. This item clarifies that the amendments to the OPGGS Act made by this Schedule
apply to a change in control of a registered holder of a title that takes effect, or is
proposed to take effect, after the commencement of this item, regardless of whether the
registered holder of a title become a registered holder before, on or after that
commencement. This means that the provisions of new Chapter 5A will apply to any
change in control of a registered holder of a title that takes effect, or is proposed to take
effect, on the commencement of Schedule 1 of the Bill, regardless of when the
registered holder became a registered holder.
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Schedule 2--Trailing liability
Offshore Petroleum and Greenhouse Gas Storage Act 2006
Item 1: Section 14
299. This item repeals section 14 and substitutes a new section 14 to define the vacated area
for a title that has ceased to be in force, either in whole or in part. The concept of the
'vacated area' is relevant to remedial directions that may be given by NOPSEMA or
the responsible Commonwealth Minister under section 587, 587A, 594A or 595 of the
OPGGS Act after a title has ceased to be in force.
300. The table set out in new subsection 14(1) is generally equivalent to the table in the
previous subsection 14(1), with a couple of key exceptions.
301. In the case of a title that has expired, the vacated area now covers the entirety of the
area constituted by the blocks over which the title was in force. Previously, the vacated
area excluded any blocks over which the title was renewed. The amendment ensures
that any person who was at any time a registered holder of the title that expired, or a
related person, can be given a direction to require decommissioning or remediation in
relation to the entirety of the former title area.
302. The new table also defines the vacated area for any title that has been surrendered, in
whole or in part. This supports the amendment to enable a remedial direction to be
given to any person who was a registered holder of a title that is surrendered, or a
related person (see discussion at items 18, 22, 34 and 38 of this Schedule).
303. The new table also defines the vacated area for a GHG injection licence that has been
terminated, correcting an oversight from the previous table.
304. This item also inserts new subsection 14(2) which clarifies that an area remains the
vacated area for a title that has ceased to be in force, even if the title area of a current
title wholly or partly overlaps the vacated area. It does not matter whether the current
title is derived from the title that has ceased to be in force, or is an unrelated title. This
ensures that a remedial direction can be given to any former holder of a title that has
ceased to be in force, or a related person, in relation to the former title area, even if a
current title is in force over all or part of the same area.
305. There may be circumstances in which it is desirable to enable a remedial direction to be
given to a person with respect to a former title area, rather than the holder of the current
title in force in relation to that area. For example, a person may have drilled a well in an
area that was covered by a title that subsequently ceased to be in force, so that the title
area reverted to vacant acreage. At a later time, a new title may be granted over that
area. Subsequently, the well that was drilled under the former title may begin to leak
remnants of petroleum or drilling muds into the marine environment. In such a case, it
may be desirable to give a direction to the person who held the former title, or a related
person, to require action to be taken in relation to the leaking well.
Item 2: Subparagraph 577(1)(a)(ii)
306. This item makes a technical amendment to subparagraph 577(1)(a)(ii) to remove
duplication. It is intended to provide clarification only and does not change the overall
operation of the OPGGS Act.
63
307. Under section 577, if a person breaches a direction given by the Joint Authority, the
Titles Administrator or NOPSEMA under Chapter 6 of the OPGGS Act, NOPSEMA
may do any or all of the things required by the direction to be done, and recover costs
or expenses incurred. Section 577 is in Part 6.2 of the OPGGS Act (Directions relating
to petroleum).
308. A direction given by NOPSEMA under Chapter 6 includes a direction given under
Part 6.3 (Directions relating to greenhouse gas), section 587 (remedial directions when
a petroleum title has ceased to be in force) and Division 2 of Part 6.4 (remedial
directions relating to GHG titles). However, there are other provisions in the OPGGS
Act which also provide for NOPSEMA to do any or all of the things required to be
done, and recover costs or expenses, if a person breaches a direction given under Part
6.3, section 587 or Division 2 of Part 6.4 (see sections 582A, 588, 589, 595A and
596A). Further, the location of those provisions in the OPGGS Act makes them easier
to identify when seeking to determine the potential consequences of a breach of a
direction, compared to section 577.
309. This item therefore excludes Part 6.3, section 587 and Division 2 of Part 6.4 from the
operation of subparagraph 577(1)(a)(ii) in order to provide clarity as to which provision
applies and remove duplication. There are no directions given by the Joint Authority or
the Titles Administrator under Part 6.3, section 587 or Division 2 of Part 6.4.
Item 3: At the end of subsection 577(1)
310. This item adds a note at the end of subsection 577(1) as a consequence of the
amendment made by item 2 of this Schedule (see discussion of that item above). The
note directs the reader to the provisions of the OPGGS Act that set out consequences
that may apply for a breach of a direction given under Part 6.3, section 587 or Division
2 of Part 6.4.
Item 4: Paragraph 577A(1)(a)
311. This item makes a technical amendment to paragraph 577A(1)(a) to clarify the
operation of the OPGGS Act.
312. Under section 577A, if a person breaches a direction given by the responsible
Commonwealth Minister under Part 6.2 of the OPGGS Act (Directions relating to
petroleum), the Minister may do any or all of the things required by the direction to be
done, and recover costs or expenses incurred.
313. Section 577A does not apply to a breach of a direction given under section 586A
because section 586A is not located in Part 6.2. Section 586A enables the Minister to
give a remedial direction in relation to a petroleum title that is in force, and is located in
Division 1 of Part 6.4.
314. Section 583 does apply to breach of a direction given under section 586A to enable the
Minister to do any or all of the things required by the direction to be done, and recover
costs or expenses incurred. However, section 583 is in Part 6.3 of the OPGGS Act
(Directions relating to greenhouse gas). It is unlikely that a person would look at this
Part or section when seeking to determine the potential consequences of a breach of a
direction that relates to a petroleum title.
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315. To clarify the operation of the OPGGS Act, this item amends paragraph 577A(1)(a) to
include a direction given under section 586A. To remove duplication, a consequential
amendment is made to section 583 to exclude Division 1 of Part 6.4 from the operation
of that provision (see item 8 of this Schedule).
Item 5: Subparagraph 578(2)(a)(ii)
316. This item makes a technical amendment to subparagraph 578(2)(a)(ii) to remove
duplication. It is intended to provide clarification only and does not change the overall
operation of the OPGGS Act.
317. Under section 578, it is a defence in a prosecution for an offence, or in proceedings for
a civil penalty order, for a breach of a direction given by NOPSEMA (or the Joint
Authority or the Titles Administrator) under Chapter 6 if the defendant proves that the
defendant took all reasonable steps to comply with the direction. Section 578 is in Part
6.2 of the OPGGS Act (Directions relating to petroleum).
318. A direction given by NOPSEMA under Chapter 6 includes a direction given under Part
6.3 (Directions relating to greenhouse gas) and Division 2 of Part 6.4 (remedial
directions relating to GHG). However, there is another provision of the OPGGS Act
which also provides for a defence of taking all reasonable steps to comply with a
direction given under Part 6.3 and Division 2 of Part 6.4 (see section 584, which is in
Part 6.3 of the OPGGS Act (directions relating to GHG)). Further, the location of this
provision in the OPGGS Act makes it easier to identify with respect to a defence for a
breach of a direction given under Part 6.3 or Division 2 of Part 6.4, compared to section
578.
319. This item therefore excludes Part 6.3 and Division 2 of Part 6.4 from the operation of
subparagraph 578(2)(a)(ii) in order to provide clarity as to which provision applies and
remove duplication. There are no directions given by the Joint Authority or the Titles
Administrator under Part 6.3 or Division 2 of Part 6.4.
Item 6: Subparagraph 582A(1)(a)(i)
320. This item makes a technical amendment to subparagraph 582A(1)(a)(i) to remove
duplication. It is intended to provide clarification only and does not change the overall
operation of the OPGGS Act.
321. Under section 582A, if a person breaches a direction given by NOPSEMA under
Chapter 6 of the OPGGS Act, other than Part 6.2, NOPSEMA may do any or all of the
things required by the direction to be done, and recover costs or expenses incurred.
Section 582A is in Part 6.3 (Directions relating to greenhouse gas).
322. A direction given by NOPSEMA under Chapter 6 includes a direction given under
Division 1 of Part 6.4 (remedial directions relating to petroleum) and section 594A
(remedial directions when a GHG title has ceased to be in force). However, there are
other provisions in the OPGGS Act which also provide for NOPSEMA to do any or all
of the things required by the direction to be done, and recover costs or expenses, if a
person breaches a direction given under Division 1 of Part 6.4 or section 594A (see
sections 577, 588, 589, 595A and 596A). Further, the location of those provisions in the
65
OPGGS Act makes them easier to identify when seeking to determine the potential
consequences of a breach of a direction, compared to section 582A.
323. This item therefore excludes Division 1 of Part 6.4 and section 594A from the operation
of subparagraph 582A(1)(a)(i) in order to provide clarity as to which provision applies
and remove duplication.
Item 7: At the end of subsection 582A(1)
324. This item adds a note at the end of subsection 582A(1) as a consequence of the
amendment made by item 6 of this Schedule (see discussion of that item above). The
note directs the reader to the provisions of the OPGGS Act that set out consequences
that may apply for a breach of a direction given under Part 6.2, Division 1 of Part 6.4 or
section 594A.
Item 8: Subparagraph 583(1)(a)(ii)
325. This item makes a technical amendment to subparagraph 583(1)(a)(ii) to remove
duplication. It is intended to provide clarification only and does not change the overall
operation of the OPGGS Act.
326. Under section 583 if a person breaches a direction given by the responsible
Commonwealth Minister under Chapter 6 of the OPGGS Act (other than Part 6.2), the
Minister may do any or all of the things required by the direction to be done, and
recover costs or expenses incurred. Section 583 is in Part 6.3 of the OPGGS Act
(Directions relating to GHG).
327. A direction given by the Minister under Chapter 6 includes a direction given under
Division 1 of Part 6.4 (remedial directions relating to petroleum), section 593 (site
closing directions to GHG injection licensees) and section 595 (remedial directions
when a GHG title has ceased to be in force). However, there are other provisions in the
OPGGS Act which also provide for the Minister to do any or all of the things required
to be done, and recover costs or expenses, if a person breaches a direction given under
Division 1 of Part 6.4, section 593 or section 595 (see sections 577A, 590A, 596 and
597). Further, the location of those provisions in the OPGGS Act makes them easier to
identify when seeking to determine the potential consequences of a breach of a
direction, compared to section 583.
328. This item therefore excludes Division 1 of Part 6.4, section 593 and section 595 from
the operation of subparagraph 583(1)(a)(ii) in order to provide clarity as to which
provision applies and remove duplication.
Item 9: At the end of subsection 583(1)
329. This item adds a note at the end of subsection 583(1) as a consequence of the
amendment made by item 8 of this Schedule (see discussion of that item above). The
note directs the reader to the provisions of the OPGGS Act that set out consequences
that may apply for breach of a direction given under Part 6.2, Division 1 of Part 6.4, or
section 593 or 595.
66
Item 10: Section 585
330. This item amends the simplified outline of Division 1 of Part 6.4 of the OPGGS Act to
reflect the amendments made by this Schedule to enable remedial directions to be given
to certain persons other than a current or former petroleum titleholder. See items 13, 16,
18 and 22.
Item 11: Section 586 (heading)
331. This item amends the heading of section 586 to reflect the amendments made by this
Schedule to enable remedial directions under that section to be given to a former
holder, or a related person of a current or former holder, of a petroleum title that is in
force, as well as to the current holder of the title. See items 12 and 13.
Item 12: Subsection 586(2)
332. This item amends subsection 586(2) to reflect that remedial directions under section
586 will be able to given to a broader range of persons than the current holder of the
title. See discussion at item 13.
Item 13: Before subsection 586(3)
333. This item inserts new subsections 586(2A) to (2D).
334. New subsection 586(2A) sets out the persons who can be given a remedial direction by
NOPSEMA under section 586 with respect to a title that is in force. Previously, only
the current holder of the title could be given a direction under section 586. The persons
to whom a remedial direction could be given under new subsection 586(2A) include the
current holder of the title, any former holder of the title, a related body corporate of a
current or former holder of the title, and a person to whom a determination under
subsection (2B) applies (a 'related person').
335. The OPGGS Act imposes decommissioning obligations on current titleholders. For
example, section 572 requires titleholders to maintain property in good condition and
repair, and to remove all property that is neither being used nor to be used in connection
with operations under the title. A central policy tenet of the decommissioning
obligations under the OPGGS Act is the expectation that restoration of the environment
and decommissioning is the responsibility of the current titleholder, and that all
decommissioning activities, such as removal of infrastructure, plugging or closing off
of wells, and remediating the seabed and subsoil in the title area, should be undertaken
by the current titleholder. This also ensures that all decommissioning activities are
carried out in accordance with the OPGGS Act and the regulations, including ensuring
risks to the environment, safety and well integrity are effectively managed.
336. The power to give a remedial direction to a person other than the current titleholder is
intended to be an option of last resort where the current titleholder is unable to meet its
decommissioning obligations and all other regulatory options have been exhausted. It
aims to ensure that the risks and liabilities of petroleum activities remain the
responsibility of those who either held, or had the ability to influence operations under,
the title, and change industry behaviour by increasing the due diligence undertaken by
companies regarding who they sell their assets to.
67
337. The power to give a remedial direction under section 586 to a person other than the
current titleholder operates within the broader context of the OPGGS Act, which
includes that a current titleholder is required to maintain financial assurance sufficient
to give the titleholder the capacity to meet costs, expenses and liabilities arising in
connection with or as a result of offshore petroleum activities. Further, this Bill amends
the OPGGS Act to provide for government oversight of transactions involving a change
in control of a titleholder (Schedule 1 to the Bill), and to better equip the Government
to screen title applicants, reducing the risk that an entity which does not meet suitability
requirements will be granted a title (Schedule 3 to the Bill).
338. The OPGGS Act does not specify the order in which a remedial direction will be issued
to former titleholders or related persons. It is intended that this is generally likely to be
in reverse chronological order (that is, back from the current or immediate former
titleholder). The Titles Register maintained by the Titles Administrator will be used to
determine the chronological order. However, this is not specified in the Act as the
appropriate person to whom a direction is to be issued will need to be assessed on a
case-by-case basis and reflect the nature of the activities required. For example, if a
former titleholder that is further back in the order drilled a well that subsequently
begins to leak remnants of petroleum or drilling muds into the marine environment, it
may be preferable to call back that former titleholder, rather than a titleholder that has
held the title more recently, as that former titleholder would have particular knowledge
and documentation relating to the well.
339. It is the Government's expectation that if a direction is given to the titleholder which is
a joint venture (and the parties are individually named), it is the responsibility of the
parties to determine how they will individually and collectively comply with the
direction, and how reimbursement will be sought as part of their own commercial
arrangements. The direction will set the expectation of compliance, not the manner in
which the parties discharge their respective responsibilities. Similar to other duties and
obligations imposed throughout the OPGGS Act, the titleholder group is responsible for
working together to meet legislative requirements.
340. Paragraphs (2A)(b) and (d) enable a direction to be given to a related body corporate of
a current or former titleholder respectively. Under section 7 of the OPGGS Act,
'related body corporate' has the same meaning as in the Corporations Act, which
includes a parent company or a subsidiary (see section 50 of that Act).
341. The ability to give a remedial direction to a related body corporate recognises the ways
in which companies are able to structure transactions to divest assets and titles to limit
accountability for decommissioning obligations. It is common in the offshore oil and
gas industry for one or more companies to establish a subsidiary to hold and operate a
title, with the shares in the subsidiary held by the company or companies. For example,
under this structure, the titleholder could be the subsidiary of a subsidiary. The
titleholder, as a subsidiary, may then be closed down when the title has come to an end.
There is therefore a risk that an entity that was a titleholder will no longer exist at a
time when NOPSEMA proposes to give a remedial direction to that former titleholder
and may need to issue a remedial direction to a related body corporate of that former
titleholder.
68
342. A remedial direction may also be given to a related body corporate of a current or
former titleholder if the current or former titleholder is unable to decommission for any
other reason, for example, because it has gone into liquidation. Enabling a remedial
direction to be given to a related body corporate will ensure that there is a person to
whom a direction may be issued that has had the capacity to influence that titleholder's
operations.
343. In accordance with the policy intention that a person to whom a direction is issued has
had the capacity to influence the former titleholder's operations, a direction will only be
able to given to a person who was a related body corporate of a former titleholder at the
time the title was in force.
344. New subsection (2B) enables the responsible Commonwealth Minister to make a
written determination that that subsection applies to a person. The effect of a
determination is that NOPSEMA could give a remedial direction to that person in
accordance with paragraph 586(2A)(e).
345. The Minister may only make a determination that subsection (2B) applies to a person if
the Minister is satisfied on reasonable grounds that it is appropriate to do so, having
regard to the following:
a. whether the person is capable of significantly benefiting financially, or has
significantly benefited financially, from operations authorised by the title;
b. whether the person is, or has been, in a position to influence compliance with
obligations under the OPGGS Act;
c. whether the person acts or acted jointly with a current or former titleholder in
relation to operations authorised by the title.
346. The matters listed above are in accordance with the policy intent of ensuring that
persons who have or had the capacity to influence compliance and/or enjoyed a
significant financial benefit from operations are responsible for decommissioning, in
the event that the current titleholder is unable to meet its decommissioning obligations.
A person may meet any one or more of the matters listed above in order for the
Minister to make a determination. Whether, and in relation to whom, a determination is
made will depend on the individual circumstances of each case.
347. What is considered to be a 'significant' financial benefit is considered in the context of
offshore petroleum operations, such as the large profits that may be made, as well as the
costs expended to undertake operations. For example, subsection (2B) does not capture,
and is not intended to capture, persons such as employees, contractors or suppliers who
are paid market value for work undertaken, or goods or services provided. As another
example, it does not capture banks entering into a lending agreement with a company
on arm's length commercial terms. It may, however, capture entities such as major
shareholders if those entities have received a sizeable financial benefit from their
shareholding, having regard to the net profit from operations.
348. Although it is NOPSEMA that may give a direction under section 586, it is the Minister
who has the power to make a determination under subsection (2B). This power may be
delegated to the CEO of NOPSEMA under section 778 of the OPGGS Act. In
performing functions or exercising powers under a delegation, the CEO must comply
with any directions given by the Minister.
69
349. New subsection (2C) provides that a determination under subsection (2B) is not a
legislative instrument. This is merely declaratory of the law rather than prescribing a
substantive exemption from the requirements of the Legislation Act 2003.
350. To ensure transparency, new subsection (2D) ensures that if a direction is given to a
person other than the current titleholder, NOPSEMA must give a copy of the direction
to the current titleholder as soon as practicable.
351. Under new section 598B, if a remedial direction would require a person to enter
premises, and the person is not the occupier of the premises, the direction applies only
to the extent that the occupier consents to entry (see item 43).
352. Under new section 598A, certain provisions of the OPGGS Act apply in relation to a
person who is subject to a remedial direction. These include the requirement to
maintain financial assurance for costs, expenses and liabilities arising in connection
with carrying out activities in compliance with the direction, and compliance
monitoring and enforcement powers that may be exercised by NOPSEMA. See
discussion at item 43.
353. Where a remedial direction is issued to a person under section 586 and the person does
not comply, NOPSEMA may undertake the activity and recover the costs from the
person through the courts. Failure to comply with a direction may also result in criminal
prosecution or application of a civil penalty. Continuing criminal or civil penalties may
apply for an ongoing failure to comply.
Item 14: Section 586A (heading)
354. This item amends the heading of section 586A to reflect the amendments made by this
Schedule to enable remedial directions under that section to be given to a former
holder, or a related person of a current or former holder, of a petroleum title that is in
force, as well as to the current holder of the title. See items 15 and 16.
Item 15: Subsection 586A(2)
355. This item amends subsection 586A(2) to reflect that remedial directions under section
586A will be able to given to a broader range of persons than the current holder of the
title. See discussion at item 16.
Item 16: Before subsection 586A(3)
356. This item inserts new subsections 586A(2A) to (2D).
357. New subsection 586A(2A) sets out the persons who can be given a remedial direction
by the responsible Commonwealth Minister under section 586A with respect to a title
that is in force. Previously, only the current holder of the title could be given a direction
under section 586A.
358. The purpose and operation of new subsection 586A(2A) is the same as for new
subsection 586(2A). See discussion at item 13.
359. New subsection (2B) enables the Minister to make a written determination that that
subsection applies to a person. The effect of a determination is that the Minister could
give a remedial direction to that person in accordance with paragraph 586A(2A)(e).
360. The purpose and operation of new subsection 586A(2B) is the same as for new
subsection 586(2B). See discussion at item 13.
70
361. New subsection (2C) provides that a determination under subsection (2B) is not a
legislative instrument. This is merely declaratory of the law rather than prescribing a
substantive exemption from the requirements of the Legislation Act 2003.
362. To ensure transparency, new subsection (2D) ensures that if a direction is given to a
person other than the current titleholder, the Minister must give a copy of the direction
to the current titleholder as soon as practicable.
363. Under new section 598B, if a remedial direction would require a person to enter
premises, and the person is not the occupier of the premises, the direction applies only
to the extent that the occupier consents to entry (see item 43).
364. Under new section 598A, certain provisions of the OPGGS Act apply in relation to a
person who is subject to a remedial direction. These include the requirement to
maintain financial assurance for costs, expenses and liabilities arising in connection
with carrying out activities in compliance with the direction, and compliance
monitoring and enforcement powers that may be exercised by NOPSEMA. See
discussion at item 43.
365. Where a remedial direction is issued to a person under section 586A and the person
does not comply, the Minister may undertake the activity and recover the costs from the
person through the courts. Failure to comply with a direction may also result in criminal
prosecution or application of a civil penalty. Continuing criminal or civil penalties may
apply for an ongoing failure to comply.
Item 17: Section 587 (heading)
366. This item amends the heading of section 587 to reflect the amendments made by this
Schedule to enable remedial directions under that section to be given a broader range of
persons than the former holder of the title. See item 18.
Item 18: Subsections 587(1) and (2)
367. This item repeals subsections 587(1) and (2) and substitutes new subsections 587(1) to
(2D).
368. The repeal and substitution of a new subsection 587(1) in effect extends the
circumstances in which a remedial direction under section 587 may be given by
NOPSEMA.
369. Previously, a remedial direction could only be given if a permit, lease, licence or
authority was (as applicable) wholly or partly revoked, wholly or partly cancelled,
wholly or partly terminated, or had expired. In the case of a petroleum special
prospecting authority or a petroleum access authority, a direction could also be given if
the authority had been surrendered.
370. The amendment made by this item ensures that a direction may be given if a permit,
lease, licence or authority ceases to be in force, in whole or in part, for any reason. In
effect, this ensures that a direction may also be given if a permit, lease or licence has
been wholly or partly surrendered.
371. Under section 270 of the OPGGS Act, the Joint Authority may only consent to the
surrender of a petroleum title if certain criteria are met. These criteria include matters
relating to decommissioning, which are equivalent to the matters in relation to which a
71
remedial direction may be given. Whether a titleholder has complied with their
decommissioning obligations is therefore expressly considered by the Joint Authority
prior to consenting to surrender.
372. However, there may be cases in which infrastructure that was thought to have been
satisfactorily decommissioned may have a residual problem, such as a leakage of
remnants of petroleum or drilling muds into the marine environment from a well that
was thought to have been adequately plugged and abandoned at the time of consent to
surrender. The amendment made by this item ensures that NOPSEMA can give a
remedial direction to a person who was the holder of the title under which the well was
drilled, or a related person, to remedy the problem. This will minimise the risk of the
costs of decommissioning falling to the Commonwealth, and ultimately taxpayers, in
the event of residual issues arising following the surrender of a title, and ensure that
costs are instead borne by those who either held, or had the capacity to influence
operations under, the title.
373. As noted above, NOPSEMA can already give a remedial direction to the former holder
of a petroleum special prospecting authority or a petroleum access authority that has
been surrendered. This is due to the short-term nature of those titles, which means that
decommissioning activities may not always be able to be undertaken while the
authority is in force. Unlike other title types, there is no provision for a regulatory body
to give consent to the surrender of an authority. Instead, the holder of an authority may
simply surrender the authority by written notice given to the Titles Administrator.
374. The repeal and substitution of a new subsection 587(2) ensures that a direction under
section 587 can be given by NOPSEMA to a broader range of persons after a petroleum
title has ceased to be in force.
375. The OPGGS Act imposes decommissioning obligations on current titleholders. For
example, section 572 requires titleholders to maintain property in good condition and
repair, and to remove all property that is neither being used nor to be used in connection
with operations under the title. A central policy tenet of the decommissioning
obligations under the OPGGS Act is the expectation that decommissioning is the
responsibility of the current titleholder and that all decommissioning activities, such as
removal of infrastructure, plugging or closing off of wells, and remediating the seabed
and subsoil in the title area, should be undertaken by the current titleholder prior to the
title ceasing to be in force (for any reason). This also ensures that all decommissioning
activities are carried out in accordance with the OPGGS Act and regulations, including
ensuring risks to the environment, safety and well integrity are effectively managed.
376. Section 587 provides a limited exception to this general principle by empowering
NOPSEMA to impose certain decommissioning obligations via the use of remedial
directions issued to the person who was or is, as the case may be, the holder of a title
that has ceased to be in force (in whole or in part). A direction under section 587 could
be used in a variety of circumstances. For example, a title may expire due to the
operation of the OPGGS Act prior to the titleholder undertaking or completing
decommissioning activities, with no legal mechanism for the Joint Authority to extend
the duration of the title. Circumstances may have arisen that prevent the current
titleholder from satisfactorily decommissioning all of its assets (for example, if the
72
current titleholder goes into liquidation). Alternatively, infrastructure that was thought
to have been satisfactorily decommissioned may have developed a residual problem
(for example, a well that was thought to have been plugged and abandoned several
years earlier has begun to leak remnants of petroleum or drilling muds into the marine
environment).
377. Under the previous section 587, NOPSEMA was limited to giving remedial directions
to the person who was the immediate former holder of the title (or the current
titleholder if the title ceased to be in force in part). A direction could not be given to
any person who was a holder of the title prior to the immediate former holder.
Particularly in the case of longer-term titles, such as petroleum production licences,
there may be one or more transfers of the title during the life of the title.
378. The power to give a remedial direction to a person other than the current or immediate
former titleholder is intended to be an option of last resort where the current titleholder
is unable to meet its decommissioning obligations and all other regulatory options have
been exhausted. It aims to ensure that the risks and liabilities of petroleum activities
remain the responsibility of those who either held, or had the ability to influence
operations under, the title, and change industry behaviour by increasing the due
diligence undertaken by companies regarding who they sell their assets to.
379. The power to give a remedial direction under section 587 to a person other than the
current or immediate former titleholder operates within the broader context of the
OPGGS Act, which includes that a current titleholder is required to maintain financial
assurance sufficient to give the titleholder the capacity to meet costs, expenses and
liabilities arising in connection with or as a result of offshore petroleum activities.
Further, this Bill amends the OPGGS Act to provide for government oversight of
transactions involving a change in control of a titleholder (Schedule 1 to the Bill), and
to better equip the Government to screen title applicants, reducing the risk that an entity
which does not meet suitability requirements will be granted a title (Schedule 3 to the
Bill).
380. New subsection 587(2) sets out the things that a person may be required by a direction
to do. This has not changed from the things that a person could be directed to do under
previous subsection 587(2).
381. New subsection 587(2A) sets out the persons who can be given a remedial direction by
NOPSEMA under section 587 with respect to a title that has ceased to be in force, in
whole or in part. The persons to whom a remedial direction could be given under new
subsection 587(2A) include the current titleholder (if the title ceased to be in force in
part), any former registered holder of the title (whether the title ceased to be in force in
whole or in part), or a related person of a current or former titleholder.
382. The OPGGS Act does not specify the order in which a remedial direction will be issued
to former titleholders or related persons. It is intended that this is generally likely to be
in reverse chronological order (that is, back from the current or immediate former
titleholder). The Titles Register maintained by the Titles Administrator will be used to
determine the chronological order. However this is not specified in the Act as the
appropriate person to whom a direction is to be issued will need to be assessed on a
case-by-case basis and reflect the nature of the activities required. For example, if a
73
former titleholder that is further back in the order drilled a well that subsequently
begins to leak remnants of petroleum or drilling muds into the marine environment, it
may be preferable to call back that former titleholder, rather than a titleholder that has
held the title more recently, as that former titleholder would have particular knowledge
and documentation relating to the well.
383. It is the Government's expectation that if a direction is given to the titleholder which is
a joint venture (and the parties are individually named), it is the responsibility of the
parties to determine how they will individually and collectively comply with the
direction, and how reimbursement will be sought as part of their own commercial
arrangements. The direction will set the expectation of compliance, not the manner in
which the parties discharge their respective responsibilities. Similar to other duties and
obligations imposed throughout the OPGGS Act, the titleholder group is responsible for
working together to meet legislative requirements.
384. Subparagraphs (2A)(a)(ii) and (b)(ii) enable a direction to be given to a related body
corporate of a current or former titleholder respectively. Under section 7 of the OPGGS
Act, 'related body corporate' has the same meaning as in the Corporations Act, which
includes a parent company or a subsidiary (see section 50 of that Act).
385. The ability to give a remedial direction to a related body corporate recognises the ways
in which companies are able to structure transactions to divest assets and titles to limit
accountability for decommissioning obligations. It is common in the offshore oil and
gas industry for one or more companies to establish a subsidiary to hold and operate a
title, with the shares in the subsidiary held by the company or companies. For example,
under this structure, the titleholder could be the subsidiary of a subsidiary. The
titleholder, as a subsidiary, may then be closed down when the title has come to an end.
There is therefore a risk that an entity that was a titleholder will no longer exist at a
time when NOPSEMA proposes to give a remedial direction to that former titleholder
and may need to issue a remedial direction to a related body corporate of that former
titleholder.
386. A remedial direction may also be given to a related body corporate of a current or
former titleholder if the current or former titleholder is unable to decommission for any
other reason, for example, because it has gone into liquidation, but the parent company
is still operating as a going concern. Enabling a remedial direction to be given to a
related body corporate will ensure that there is a person to whom a direction may be
issued that has had the capacity to influence that titleholder's operations.
387. In accordance with the policy intention that a person to whom a direction is issued has
had the capacity to influence the former titleholder's operations, a direction will only be
able to given to a person who was a related body corporate of a former titleholder at the
time the title was in force.
388. New subsection (2B) enables the responsible Commonwealth Minister to make a
written determination that that subsection applies to a person. The effect of a
determination is that NOPSEMA could give a remedial direction to that person in
accordance with subparagraph 587(2A)(b)(iii).
74
389. The Minister may only make a determination that subsection (2B) applies to a person if
the Minister is satisfied on reasonable grounds that it is appropriate to do so, having
regard to the following:
a. whether the person is capable of significantly benefiting financially, or has
significantly benefited financially, from operations authorised by the title;
b. whether the person is, or has been, in a position to influence compliance with
obligations under the OPGGS Act;
c. whether the person acts or acted jointly with a current or former titleholder in
relation to operations authorised by the title.
390. The matters listed above are in accordance with the policy intent of ensuring that
persons who have or had the capacity to influence compliance and/or enjoyed a
significant financial benefit from operations are responsible for decommissioning, in
the event that the current titleholder is unable to meet its decommissioning obligations.
A person may meet any one or more of the matters listed above in order for the
Minister to make a determination. Whether, and in relation to whom, a determination is
made will depend on the individual circumstances of each case.
391. What is considered to be a 'significant' financial benefit is considered in the context of
offshore petroleum operations, such as the large profits that may be made, as well as the
costs expended to undertake operations. For example, it does not capture, and is not
intended to capture, persons such as employees, contractors or suppliers who are paid
market value for work undertaken, or goods or services provided. As another example,
it does not capture banks entering into a lending agreement with a company on arm's
length commercial terms. It may, however, capture entities such as major shareholders
if those entities have received a sizeable financial benefit from their shareholding,
having regard to the net profit from operations.
392. Although it is NOPSEMA that may give a direction under section 587, it is the Minister
who has the power to make a determination under subsection (2B). This power may be
delegated to the CEO of NOPSEMA under section 778 of the OPGGS Act. In
performing functions or exercising powers under a delegation, the CEO must comply
with any directions given by the Minister.
393. New subsection (2C) provides that a determination under subsection (2B) is not a
legislative instrument. This is merely declaratory of the law rather than prescribing a
substantive exemption from the requirements of the Legislation Act 2003.
394. To ensure transparency, new subsection (2D) ensures that if a direction is given to a
person (other than the current titleholder), and the direction requires the person to take
an action in or in relation to the title area of another title, NOPSEMA must give a copy
of the direction to the holder of that other title as soon as practicable.
395. Under new section 598B, if a remedial direction would require a person to enter
premises, and the person is not the occupier of the premises, the direction applies only
to the extent that the occupier consents to entry - see item 43.
396. Under new section 598A, certain provisions of the OPGGS Act apply in relation to a
person who is subject to a remedial direction. These include the requirement to
maintain financial assurance for costs, expenses and liabilities arising in connection
with carrying out activities in compliance with the direction, and compliance
75
monitoring and enforcement powers that may be exercised by NOPSEMA. See
discussion at item 43.
397. Where a remedial direction is issued to a person under section 587 and the person does
not comply, NOPSEMA may undertake the activity and recover the costs from the
person through the courts. Failure to comply with a direction may also result in criminal
prosecution or application of a civil penalty. Continuing criminal or civil penalties may
apply for an ongoing failure to comply.
Item 19: Subsection 587(4)
398. This item amends subsection 587(4) as a consequence of the repeal and substitution of
a new subsection 587(2) (see item 18 of this Schedule). The previous reference in
subsection 587(4) to paragraph 587(2)(b) is updated to refer to the new equivalent
provision in paragraph 587(2)(c).
Item 20: Subsection 587(5)
399. This item amends subsection 587(5) as a consequence of the repeal and substitution of
a new subsection 587(2) (see item 18 of this Schedule). The previous reference in
subsection 587(5) to paragraph 587(2)(c) is updated to refer to the new equivalent
provision in paragraph 587(2)(d).
Item 21: Section 587A (heading)
400. This item amends the heading of section 587A to reflect the amendments made by this
Schedule to enable remedial directions under that section to be given a broader range of
persons than the former holder of the title. See item 22.
Item 22: Subsections 587A(1) and (2)
401. This item repeals subsections 587A(1) and (2) and substitutes new subsections 587A(1)
to (2D).
402. The repeal and substitution of a new subsection 587A(1) in effect extends the
circumstances in which a remedial direction under section 587A may be given by the
responsible Commonwealth Minister. The purpose and operation of this amendment is
the same as for the repeal and substitution of a new subsection 587(1). See discussion at
item 18.
403. The repeal and substitution of a new subsection 587A(2) ensures that a direction under
section 587A can be given by the Minister to a broader range of persons after a
petroleum title has ceased to be in force. The purpose and operation of this amendment
is the same as for the repeal and substitution of subsection 587(2). See discussion at
item 18.
404. New subsection 587A(2A) sets out the persons who can be given a remedial direction
by the Minister under section 587A. The purpose and operation of this amendment is
the same as for new subsection 587(2A) (see discussion at item 18).
405. New subsection 587A(2B) enables the Minister to make a written determination that
that subsection applies to a person. The effect of a determination is that the Minister
could give a remedial direction to that person in accordance with subparagraph
587A(2A)(b)(iii).
76
406. The purpose and operation of new subsection 587A(2B) is the same as for new
subsection 587(2B). See discussion at item 18.
407. New subsection 587A(2C) provides that a determination under subsection (2B) is not a
legislative instrument. This is merely declaratory of the law rather than prescribing a
substantive exemption from the requirements of the Legislation Act 2003.
408. To ensure transparency, new subsection 587A(2D) ensures that if a direction is given to
a person (other than the current titleholder), and the direction requires the person to take
an action in or in relation to the title area of another title, the Minister must give a copy
of the direction to the holder of that other title as soon as practicable.
409. Under new section 598B, if a remedial direction would require a person to enter
premises, and the person is not the occupier of the premises, the direction applies only
to the extent that the occupier consents to entry (see item 43).
410. Under new section 598A, certain provisions of the OPGGS Act apply in relation to a
person who is subject to a remedial direction. These include the requirement to
maintain financial assurance for costs, expenses and liabilities arising in connection
with carrying out activities in compliance with the direction, and compliance
monitoring and enforcement powers that may be exercised by NOPSEMA. See
discussion at item 43.
411. Where a remedial direction is issued to a person under section 587A and the person
does not comply, the Minister may undertake the activity and recover the costs from the
person through the courts. Failure to comply with a direction may also result in criminal
prosecution or application of a civil penalty. Continuing criminal or civil penalties may
apply for an ongoing failure to comply.
Item 23: Subsection 587B(6) (definition of remedial direction)
412. This item amends the definition of remedial direction in subsection 587B(6) to reflect
the amendments made to sections 586, 586A, 587 and 587A by this Schedule. In
particular, the item amends the description of each section in the definition to reflect
that directions under sections 586 and 586A can be given to a person other than the
current titleholder, and that directions under sections 587 and 587A can be given to a
person other than the former titleholder.
Item 24: Subsection 589(5)
413. This item amends subsection 589(5) to ensure that that subsection extends to any
person who can be given a direction under section 587 as amended by this Schedule,
including related persons. Subsection 589(5) provides for NOPSEMA to recover costs
or expenses incurred in relation to the doing of anything required by a direction under
section 587 to be done. Under subsection 588(2), NOPSEMA may do any or all of the
things required by a direction to be done if the direction has not been complied with.
Item 25: At the end of section 590A
414. This item inserts a new subsection 590A(3) to enable the responsible Commonwealth
Minister to recover costs or expenses incurred in relation to the doing of anything
required by a direction under section 587A to be done. Under subsection 590A(2), the
77
Minister may do any or all of the things required by a direction to be done if the
direction has not been complied with.
415. All of the other provisions in the OPGGS Act that enable NOPSEMA or the Minister to
do things required by a direction to be done if the direction is not complied with
provide for NOPSEMA or the Minister to recover costs or expenses incurred. The
absence of a similar provision in section 590A seems to have been an unintentional
omission. Providing for the Minister to recover costs or expenses from the person who
breached the direction will ensure the Government, and the taxpayer, is not required to
bear the costs of undertaking the required action to decommission infrastructure and/or
remediate the marine environment.
Item 26: Section 591
416. This item amends the simplified outline of Division 2 of Part 6.4 of the OPGGS Act to
reflect the amendments made by this Schedule to enable remedial directions to be given
to certain persons other than a current or former GHG titleholder. See items 29, 32, 34
and 38.
Item 27: Section 591B (heading)
417. This item amends the heading of section 591B to reflect the amendments made by this
Schedule to enable remedial directions under that section to be given to a former
holder, or a related person of a current or former holder, of a GHG title that is in force,
as well as to the current holder of the title. See items 28 and 29.
Item 28: Subsection 591B(2)
418. This item amends subsection 591B(2) to reflect that remedial directions under section
591B will be able to given to a broader range of persons than the current holder of the
title. See discussion at item 29.
Item 29: Before subsection 591B(3)
419. This item inserts new subsections 591B(2A) to (2D).
420. New subsection 591B(2A) sets out the persons who can be given a remedial direction
by NOPSEMA under section 591B with respect to a title that is in force. Previously
only the current holder of the title could be given a direction under section 591B.
421. The purpose and operation of new subsection 591B(2A) is the same as for new
subsection 586(2A). See discussion at item 13.
422. New subsection 591B(2B) enables the responsible Commonwealth Minister to make a
written determination that that subsection applies to a person. The effect of a
determination is that NOPSEMA could give a remedial direction to that person in
accordance with paragraph 591B(2A)(e).
423. The purpose and operation of new subsection 591B(2B) is the same as for new
subsection 586(2B). See discussion at item 13.
424. Although it is NOPSEMA that may give a direction under section 591B, it is the
Minister who has the power to make a determination under subsection (2B). This power
may be delegated to the CEO of NOPSEMA under section 778 of the OPGGS Act. In
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performing functions or exercising powers under a delegation, the CEO must comply
with any directions given by the Minister.
425. New subsection 591B(2C) provides that a determination under subsection (2B) is not a
legislative instrument. This is merely declaratory of the law rather than prescribing a
substantive exemption from the requirements of the Legislation Act 2003.
426. To ensure transparency, new subsection (2D) ensures that if a direction is given to a
person other than the current titleholder, NOPSEMA must give a copy of the direction
to the current titleholder as soon as practicable.
427. Under new section 598B, if a remedial direction would require a person to enter
premises, and the person is not the occupier of the premises, the direction applies only
to the extent that the occupier consents to entry (see item 43).
428. Under new section 598A, certain provisions of the OPGGS Act apply in relation to a
person who is subject to a remedial direction. These include work practices obligations
that apply when carrying out activities in order to comply with the direction, and
compliance monitoring and enforcement powers that may be exercised by NOPSEMA.
See discussion at item 43.
429. Where a remedial direction is issued to a person under section 591B and the person
does not comply, NOPSEMA may undertake the activity and recover the costs from the
person through the courts. Failure to comply with a direction may also result in criminal
prosecution.
Item 30: Section 592 (heading)
430. This item amends the heading of section 592 to reflect the amendments made by this
Schedule to enable remedial directions under that section to be given to a former
holder, or a related person of a current or former holder, of a GHG title that is in force,
as well as to the current holder of the title. See items 31 and 32.
Item 31: Subsection 592(2)
431. This item amends subsection 592(2) to reflect that remedial directions under section
592 will be able to given to a broader range of persons than the current holder of the
title. See discussion at item 32.
Item 32: Before subsection 592(3)
432. This item inserts new subsections 592(2A) to (2D).
433. New subsection 592(2A) sets out the persons who can be given a remedial direction by
the responsible Commonwealth Minister under section 592 with respect to a title that is
in force. Previously, only the current holder of the title could be given a direction under
section 592.
434. The purpose and operation of new subsection 592(2A) is the same as for new
subsection 586(2A). See discussion at item 13.
435. New subsection 592(2B) enables the Minister to make a written determination that that
subsection applies to a person. The effect of a determination is that the Minister could
give a remedial direction to that person in accordance with paragraph 592(2A)(e).
436. The purpose and operation of new subsection 592(2B) is the same as for new
subsection 586(2B). See discussion at item 13.
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437. New subsection 592(2C) provides that a determination under subsection (2B) is not a
legislative instrument. This is merely declaratory of the law rather than prescribing a
substantive exemption from the requirements of the Legislation Act 2003.
438. To ensure transparency, new subsection 592(2D) ensures that if a direction is given to a
person other than the current titleholder, the Minister must give a copy of the direction
to the current titleholder as soon as practicable.
439. Under new section 598B, if a remedial direction would require a person to enter
premises, and the person is not the occupier of the premises, the direction applies only
to the extent that the occupier consents to entry (see item 43).
440. Under new section 598A, certain provisions of the OPGGS Act apply in relation to a
person who is subject to a remedial direction. These include work practices obligations
that apply when carrying out activities in order to comply with the direction, and
compliance monitoring and enforcement powers that may be exercised by NOPSEMA.
See discussion at item 43.
441. Where a remedial direction is issued to a person under section 592 and the person does
not comply, the Minister may undertake the activity and recover the costs from the
person through the courts. Failure to comply with a direction may also result in criminal
prosecution.
Item 33: Section 594A (heading)
442. This item amends the heading of section 594A to reflect the amendments made by this
Schedule to enable remedial directions under that section to be given a broader range of
persons than the former holder of the title. See item 34.
Item 34: Subsections 594A(1) and (2)
443. This item repeals subsections 594A(1) and (2) and substitutes new subsections 594A(1)
to (2D).
444. The repeal and substitution of a new subsection 594A(1) in effect extends the
circumstances in which a remedial direction under section 594A may be given by
NOPSEMA.
445. Previously, a remedial direction could only be given if a permit, lease, licence or
authority was (as applicable) revoked, cancelled, terminated, or had expired. In the case
of a GHG search authority or a GHG special authority, a direction could also be given
if the authority had been surrendered.
446. The amendment ensures that a direction may be given if a permit, lease, licence or
authority ceases to be in force, in whole or in part, for any reason. In effect, this ensures
that a direction may also be given if a permit, lease or licence has been wholly or partly
surrendered.
447. Under section 442 of the OPGGS Act, the responsible Commonwealth Minister may
only consent to the surrender of a GHG title if certain criteria are met. These criteria
include matters relating to decommissioning, which are equivalent to the matters in
relation to which a remedial direction may be given. Whether a titleholder has complied
with their decommissioning obligations is therefore expressly considered by the
Minister prior to consenting to surrender.
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448. However, there may be cases in which infrastructure that was thought to have been
satisfactorily decommissioned may have a residual problem, such as a leakage of
remnants of petroleum or drilling muds into the marine environment from a well that
was thought to have been adequately plugged and abandoned at the time of consent to
surrender. The amendment made by this item ensures that NOPSEMA can give a
remedial direction to a person who was a holder of the title under which the well was
drilled, or a related person, to remedy the problem. This will minimise the risk of the
costs of decommissioning failing to the Commonwealth, and ultimately taxpayers, in
the event of residual issues arising following the surrender of a title, and ensure that
costs are instead borne by those who either held, or had the ability to influence
operations under, the title.
449. As noted above, NOPSEMA can already give a remedial direction to the former holder
of a GHG search authority or a GHG special authority that has been surrendered. This
is due to the short-term nature of these titles, which means that decommissioning
activities may not always be able to be undertaken while the authority is in force.
Unlike other title types, there is no provision for a regulatory body to give consent to
the surrender of an authority. Instead, the holder of an authority may simply surrender
the authority by written notice given to the responsible Commonwealth Minister.
450. The repeal and substitution of a new subsection 594A(2) ensures that a direction under
section 594A can be given by NOPSEMA to a broader range of persons after a GHG
title has ceased to be in force. The purpose and operation of this amendment is the same
as for the repeal and substitution of subsection 587(2). See discussion at item 18.
451. New subsection 594A(2A) sets out the persons who can be given a remedial direction
by NOPSEMA under section 594A. The purpose and operation of this amendment is
the same as for new subsection 587(2A) (see discussion at item 18).
452. New subsection 594A(2B) enables the responsible Commonwealth Minister to make a
written determination that that subsection applies to a person. The effect of a
determination is that NOPSEMA could give a remedial direction to that person in
accordance with subparagraph 594A(2A)(b)(iii).
453. The purpose and operation of new subsection 594A(2B) is the same as for new
subsection 587(2B). See discussion at item 18.
454. Although it is NOPSEMA that may give a direction under section 594A, it is the
Minister who has the power to make a determination under subsection (2B). This power
may be delegated to the CEO of NOPSEMA under section 778 of the OPGGS Act. In
performing functions or exercising powers under a delegation, the CEO must comply
with any directions given by the Minister.
455. New subsection 594A(2C) provides that a determination under subsection (2B) is not a
legislative instrument. This is merely declaratory of the law rather than prescribing a
substantive exemption from the requirements of the Legislation Act 2003.
456. To ensure transparency, new subsection 594A(2D) ensures that if a direction is given to
a person (other than the current titleholder), and the direction requires the person to take
an action in or in relation to the title area of another title, NOPSEMA must give a copy
of the direction to the holder of that other title as soon as practicable.
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457. Under new section 598B, if a remedial direction would require a person to enter
premises, and the person is not the occupier of the premises, the direction applies only
to the extent that the occupier consents to entry (see item 43).
458. Under new section 598A, certain provisions of the OPGGS Act apply in relation to a
person who is subject to a remedial direction. These include work practices obligations
that apply when carrying out activities in order to comply with the direction, and
compliance monitoring and enforcement powers that may be exercised by NOPSEMA.
See discussion at item 43.
459. Where a remedial direction is issued to a person under section 594A and the person
does not comply, NOPSEMA may undertake the activity and recover the costs from the
person through the courts. Failure to comply with a direction may also result in criminal
prosecution.
Item 35: Subsection 594A(4)
460. This item amends subsection 594A(4) as a consequence of the repeal and substitution
of a new subsection 594A(2) (see item 34 of this Schedule). The previous reference in
subsection 594A(4) to paragraph 594A(2)(c) is updated to refer to the new equivalent
provision in paragraph 594A(2)(d).
Item 36: Subsection 594A(5)
461. This item amends subsection 594A(5) as a consequence of the repeal and substitution
of a new subsection 594A(2) - see item 34 of this Schedule. The previous reference in
subsection 594A(5) to paragraph 594A(2)(b) is updated to refer to the new equivalent
provision in paragraph 594A(2)(c).
Item 37: Section 595 (heading)
462. This item amends the heading of section 595 to reflect the amendments made by this
Schedule to enable remedial directions under that section to be given a broader range of
persons than the former holder of the title. See item 38.
Item 38: Subsections 595(1) and (2)
463. This item repeals subsections 595(1) and (2) and substitutes new subsections 595(1) to
(2D).
464. The repeal and substitution of a new subsection 595(1) in effect extends the
circumstances in which a remedial direction under section 595 may be given by the
responsible Commonwealth Minister. The purpose and effect of this amendment is the
same as for the repeal and substitution of a new subsection 594A(1). See discussion at
item 34.
465. The repeal and substitution of a new subsection 595(2) ensures that a direction under
section 595 can be given by the Minister to a broader range of persons if a GHG title
has ceased to be in force. The purpose and operation of this amendment is the same as
for the repeal and substitution of subsection 587(2). See discussion at item 18.
466. New subsection 595(2A) sets out the persons who can be given a remedial direction by
the Minister under section 595. The purpose and operation of this amendment is the
same as for new subsection 587(2A) (see discussion at item 18).
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467. New subsection 595(2B) enables the Minister to make a written determination that that
subsection applies to a person. The effect of a determination is that the Minister could
give a remedial direction to that person in accordance with subparagraph
595(2A)(b)(iii).
468. The purpose and operation of new subsection 595(2B) is the same as for new
subsection 587(2B). See discussion at item 18.
469. New subsection 595(2C) provides that a determination under subsection (2B) is not a
legislative instrument. This is merely declaratory of the law rather than prescribing a
substantive exemption from the requirements of the Legislation Act 2003.
470. To ensure transparency, new subsection 595(2D) ensures that if a direction is given to a
person (other than the current titleholder), and the direction requires the person to take
an action in or in relation to the title area of another title, the Minister must give a copy
of the direction to the holder of that other title as soon as practicable.
471. Under new section 598B, if a remedial direction would require a person to enter
premises, and the person is not the occupier of the premises, the direction applies only
to the extent that the occupier consents to entry (see item 43).
472. Under new section 598A, certain provisions of the OPGGS Act apply in relation to a
person who is subject to a remedial direction. These include work practices obligations
that apply when carrying out activities in order to comply with the direction, and
compliance monitoring and enforcement powers that may be exercised by NOPSEMA.
See discussion at item 43.
473. Where a remedial direction is issued to a person under section 595 and the person does
not comply, the Minister may undertake the activity and recover the costs from the
person through the courts. Failure to comply with a direction may also result in criminal
prosecution.
Item 39: Subsection 595(4)
474. This item amends subsection 595(4) as a consequence of the repeal and substitution of
a new subsection 595(2) (see item 38 of this Schedule). The previous reference in
subsection 595(4) to paragraph 595(2)(c) is updated to refer to the new equivalent
provision in paragraph 595(2)(d).
Item 40: Subsection 595(5)
475. This item amends subsection 595(5) as a consequence of the repeal and substitution of
a new subsection 595(2) - see item 38 of this Schedule. The previous reference in
subsection 595(5) to paragraph 595(2)(b) is updated to refer to the new equivalent
provision in paragraph 595(2)(c).
Item 41: Subsection 596A(7)
476. This item repeals and substitutes a new subsection 596A(7) to ensure that that
subsection extends to any person who can be given a direction under section 594A as
amended by this Schedule, including related persons. Subsection 596A(7) provides for
NOPSEMA to recover costs or expenses incurred in relation to the doing of anything
required by a direction under section 594A to be done. Under subsection 595A(2),
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NOPSEMA may do any or all of the things required by a direction to be done if the
direction has not been complied with.
Item 42: Subsection 597(5)
477. This item amends subsection 597(5) to ensure that that subsection extends to any
person who can be given a direction under section 595 as amended by this Schedule,
including related persons. Subsection 597(5) provides for the responsible
Commonwealth Minister to recover costs or expenses incurred in relation to the doing
of anything required by a direction under section 595 to be done. Under subsection
596(2), the Minister may do any or all of the things required by a direction to be done if
the direction has not been complied with.
Item 43: At the end of Part 6.4 of Chapter 6
478. This item inserts new sections 598A and 598B.
479. New section 598A applies certain provisions of the OPGGS Act to persons who are
subject to a remedial direction.
480. Under the OPGGS Act, titleholders are subject to a number of requirements prior to
undertaking, and while carrying out, offshore activities. These include the requirement
to maintain financial assurance sufficient to give the titleholder the capacity to meet
costs, expenses and liabilities arising in connection with, or as a result of, carrying out a
petroleum activity, and the polluter pays obligation in the event of an offshore
petroleum incident resulting in an escape of petroleum. Titleholders are also subject to
compliance monitoring and enforcement by NOPSEMA.
481. These obligations do not apply to a person who is subject to a remedial direction and is
carrying out activities in order to comply with the direction, if that person is not the
current holder of a title. However, such persons should be subject to equivalent
obligations to current titleholders when carrying out those activities. For example,
ensuring the person has sufficient financial assurance will help to ensure the person has
capacity to pay for the costs, expenses and liabilities in relation to the activity,
including in relation to any incident arising in undertaking the activity.
482. The provisions of the OPGGS Act that are applied to a person who is subject to a
remedial direction include:
a. work practices obligations in sections 569 and 570, including the requirement to
carry out activities in a proper and workmanlike manner and in accordance with
good oilfield practice
b. the financial assurance obligation in section 571 (for a person who is subject to a
remedial direction in relation to a current or former petroleum title)
c. the polluter pays obligation in Part 6.1A (for a person who is subject to a remedial
direction in relation to a current or former petroleum title)
d. compliance monitoring and enforcement powers in Part 6.5 and Schedules 2A, 2B
and 3.
483. Section 598A operates by deeming references to persons or things in specified
provisions to be a reference to another person or thing (for example, by deeming
references to a titleholder to be a reference to a person who is subject to a remedial
84
direction), or by modifying specified provisions if a remedial direction is in force. For
example, item 1 of the table in subsection 598A(5) modifies section 280 by applying
that section as though subsection 280(1) also applies to a remedial direction in relation
to a current or former petroleum title, and subsection 280(2) includes a reference to a
person carrying on activities for the purposes of complying with the direction. This
places an obligation on a person who is carrying on activities for the purposes of
complying with a remedial direction to carry on those activities in a manner that does
not interfere with other users of the marine environment to a greater extent than is
necessary for the reasonable performance of the duties of the person.
484. Amendments to the regulations under the OPGGS Act are also proposed to apply
certain provisions of the regulations to persons who are subject to a remedial direction,
such as the requirement to have an accepted environment plan prior to undertaking
activities, and the requirement to have an accepted well operations management plan
prior to undertaking an activity in relation to a well.
485. If a person is a current titleholder subject to a remedial direction under section 586,
586A, 591B or 592, the OPGGS Act and regulations continue to apply to that person as
a titleholder, and the application of new section 598A is not required.
486. New subsection 598A(6) enables the regulations to provide that the OPGGS Act has
effect for the purposes of section 598A with any modifications that are prescribed. The
subsection therefore empowers delegated legislation to modify the operation of the
OPGGS Act (otherwise known as a 'Henry VIII clause').
487. The intention of subsection 598A(6) is to enable technical or minor modifications in
order to keep the OPGGS Act up to date. The types of regulations that may be made
under subsection 598A(6) include regulations that prescribe additional provisions of the
OPGGS Act that apply (or do not apply) to persons who are subject to a remedial
direction. Section 598A sets out comprehensively how provisions under the OPGGS
Act apply to a person who is subject to a remedial direction. However, given the
breadth of the scope of remedial directions that could be issued, it may become evident
that there are one or more other provision of the OPGGS Act that should apply to
persons who are subject to a remedial direction. Alternatively, new legislative
obligations may come into force subsequent to the commencement of section 598A. It
would only be in the event that it became clear that minor modifications are required
that the regulation-making power would be exercised.
488. In addition, the power to issue a remedial direction is intended to only be used as a last
resort if the current titleholder has not complied with its decommissioning obligations
and all other regulatory options have been exhausted. Given that the power to give a
direction is intended to be used rarely, the likelihood of modifications needing to be
made to the operation of section 598A is also considered to arise very rarely, if at all.
489. Any modification made pursuant to the regulation-making power in subsection 598A(6)
will be subject to appropriate scrutiny through the regulation-making process, which
include parliamentary tabling, scrutiny and disallowance procedures.
490. New section 598B ensures that if a remedial direction would require a person to enter
premises, and the person is not the occupier of those premises, the direction only
applies to the extent that the occupier gives consent to entry to the premises.
85
Item 44: Section 780 (heading)
491. This item amends the heading of section 780 as a consequence of the amendment made
by item 45 of this Schedule. The previous heading referred to compensation for
acquisition of property. The reference to compensation has been removed as new
subsection 780A(2A) effectively 'switches off' the requirement to comply with certain
provisions of the OPGGS Act to the extent that their operation would result in an
acquisition of property otherwise than on just terms, rather than allowing them to
operate and requiring the Commonwealth to pay compensation (see discussion at item
45).
Item 45: After subsection 780(2)
492. This item inserts a new subsection 780(2A), which provides that the remedial directions
provisions have no effect to the extent (if any) to which their operation would result in
an acquisition of property otherwise than on just terms.
493. Under subsection 780(1), if the operation of the OPGGS Act would result in an
acquisition of property from a person otherwise than on just terms, the Commonwealth
is liable to pay a reasonable amount of compensation to the person. However, the intent
of the amended remedial directions provisions is to mitigate the risk of the
Commonwealth (and ultimately the taxpayer) being required to pay for
decommissioning of offshore infrastructure and remediation of the marine environment.
The preferred policy outcome is that the remedial directions provisions should not have
force where they would affect an acquisition of property without just terms, rather than
allow them to operate and trigger the compensation requirement. New subsection
780(2A) ensures that a remedial direction has no effect if it would result in an
acquisition of property otherwise than on just terms, so that the Commonwealth will not
become obligated to pay compensation.
494. It is unlikely in practice that a remedial direction would result in an acquisition of
property otherwise than on just terms. However, new subsection 780(2A) is included as
a safeguard for the Commonwealth.
Item 46: Application and transitional provisions
495. This item inserts application and transitional provisions for the purposes of this
Schedule.
496. Sub-items (2), (4), (5), (7) and (9) provide for the operation of certain provisions as
amended to apply with respect to specified persons in specified circumstances that
occurred on or after 1 January 2021. The offshore oil and gas industry were given
advance notice of the amendments made by this Schedule through consultation on a
revised decommissioning framework. Grandfathering of the amendments is sought in
order to ensure that entities are not able to avoid the amended operation of the
provisions, such as by transferring a title, after becoming aware of the changes and
prior to commencement. This is particularly the case given that delayed commencement
is required in order to enable consequential amendments to be made to regulations
under the OPGGS Act.
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497. The amended provisions enable remedial directions to be given to an expanded range of
persons in an expanded range of circumstances. However, the obligation to comply
with a direction will only apply if a person is given a direction after commencement.
Grandfathering the amended provisions does not automatically impose backdated
obligations with respect to those persons. Remedial directions are only intended to be
used as a last resort if the current titleholder has not complied with its decommissioning
obligations and all other regulatory options have been exhausted. It is therefore likely to
be rare that a person who can only be given a direction as a result of the grandfathering
of the amended provisions would actually be given a direction.
498. If a direction is given to a person who can only be given a direction as a result of the
grandfathering of the amended provisions, that person will be required to comply with
the direction by carrying out and paying for activities to decommission infrastructure
and/or remediate the marine environment. Given the costs involved in undertaking
offshore petroleum or GHG operations, it is likely that these costs could be substantial.
However, the intent of the remedial directions provisions is that directions be given to
persons who either held, or had the ability to influence operations under, a title, in the
event that the titleholder is unable to decommission. The significant financial benefits
obtained from operations by persons related to a current or former titleholder would
offset the costs of undertaking activities in compliance with the remedial direction. If a
direction cannot be given to that person, there is a risk that the requirement to pay for
decommissioning and remediation will fall to the Government (and ultimately to the
taxpayer).
499. The period between the date of grandfathered application and the timing of introduction
of the Bill into Parliament is relatively short (approximately six months). On balance, it
was considered inappropriate to provide for earlier application of the amendments.
500. Sub-items (3) and (8) ensure that the amendments mentioned in those sub-items do not
have retrospective application.
501. Sub-item (2) ensures that the amendment of section 14 applies in relation to titles that
ceased be in force, in whole or in part, on or after 1 January 2021. This is particularly
relevant to the amendment to provide that a former title area continues to be 'vacated
area' for the purposes of the remedial directions provisions even if the area of another
title overlaps, in whole or in part, the area of the former title. As per the previous
operation of the OPGGS Act, if a title ceased to be in force prior to that date, the area
covered by that title will cease to be a 'vacated area' for the purposes of the remedial
directions provision to the extent to which that area is covered by a subsequent title
(whether that is a title that is derived from the title that ceased to be in force or
otherwise).
502. Sub-items (4) and (5) are application provisions for sections 586, 586A, 591B and 592
of the OPGGS Act as amended. Those sections as amended enable a remedial direction
to be given to a former titleholder, or a related body corporate of a former titleholder, in
relation to a title that is still in force. Sub-item (4) ensures that a direction may only be
given to a former titleholder if the former titleholder ceased to hold the title, in whole or
in part, on or after 1 January 2021. Similarly, sub-item (5) ensures that a direction may
only be given to a person who is or was a related body corporate of a former titleholder
87
if the person was a related body corporate of the former titleholder at the time the title
was in force and the former titleholder ceased to hold the title, in whole or in part, on or
after 1 January 2021.
503. Sub-item (9) is an application provision for sections 587, 587A, 594A and 595 of the
OPGGS Act as amended. The amendments to those sections expand the range of
persons who may be given a remedial direction, and the circumstances in which a
remedial direction may be given. A direction may only be given to the current
titleholder, or to a related body corporate of the current titleholder, under the sections as
amended if the title ceased to be in force in part on or after 1 January 2021. A direction
may only be given to a former titleholder, or a related body corporate of a former
titleholder, if the former titleholder ceased to hold the title, in whole or in part, on or
after 1 January 2021. In addition, with respect to a related body corporate of a former
titleholder, that related body corporate must have been a related body corporate of the
former titleholder at the time the title was in force.
504. Sub-items (4), (5) and (9) operate as limitations on the application of the amended
provisions. The sub-items make clear that remedial directions can only be given to the
specified persons in the specified circumstances. In all other cases the directions can
just be given, for example, a direction can be given to a current titleholder no matter
when they became a titleholder.
505. Sub-items (6) and (7) ensure that the responsible Commonwealth Minister may only
make a determination under the provisions listed in sub-item (6) having regard to
circumstances or events on or after 1 January 2021, for example, the time at which a
related person significantly financially benefited from operations under a title. This
ensures that a determination cannot be made in relation to a person having regard only
to circumstances or events before that date, and therefore that a remedial direction
cannot be given to that person with respect to those events or circumstances.
506. Sub-item (10) only enables the responsible Commonwealth Minister to recover costs
and expenses incurred by the Minister after commencement in doing anything required
by a direction or an arrangement under section 587A to be done, if that direction or
arrangement is breached. However, it does not matter whether the direction or
arrangement was breached before or after commencement. There are currently no
directions or arrangements under section 587A. Even if a direction or arrangement
under section 587A is made prior to commencement, this amendment will only affect a
person who has breached their obligations under the OPGGS Act.
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Schedule 3--Applications and decision-making
Offshore Petroleum and Greenhouse Gas Storage Act 2006
Item 1: Section 7 (at the end of the definition of approved)
507. This item amends the definition of approved in section 7 to exclude the application of
that definition to the use of the term in section 695YC. Section 695YC is inserted by
item 231 of this Schedule to require registered holders of titles and other specified
persons to notify the Titles Administrator and NOPSEMA if certain events occur.
Under subsection 695YC(3), the notice must be given in the approved form and in an
approved manner. As a notice under section 695YC is given to both the Titles
Administrator and NOPSEMA, subsection 695YC(7) provides for 'approved' in this
context to mean approved by both the Titles Administrator and the Chief Executive
Officer of NOPSEMA.
Item 2: Section 7
508. This item inserts a definition of civil penalty provision in section 7. The definition is
inserted as there are a number of civil penalty provisions in the OPGGS Act, and the
term was previously not defined.
Item 3: Subsection 104(3)
509. This item repeals subsection 104(3) of the Act and substitutes new subsections 104(3)
and (3A), which varies the requirements for applications for the grant of a work-bid
petroleum exploration permit. The notes at the end of subsection (3A) are replicated
from the notes at the end of the previous subsection 104(3).
510. Previously, subsection 104(3) set out prescriptive application requirements, requiring
applications made under section 104 to be accompanied by details of the applicant's
proposals for work and expenditure in relation to the block or blocks specified in the
application, the technical qualifications of the applicant and the applicant's employees,
and the technical advice and financial resources available to the applicant.
511. Under new subsection 104(3), an application for a work-bid petroleum exploration
permit must be made in the form approved by the Titles Administrator. The application
must also be accompanied by any information or documents required by the form.
512. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
89
513. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision under subsection 105(2) (that is, a
decision whether or not to give the applicant an offer document for the grant of a
petroleum exploration permit). This includes the matters that are prescribed in new
subsection 105(4) (such as information in relation to the technical advice and the
financial resources available to the applicant). It will also include the information that
was previously specified in subsection 104(3), such as details of the applicant's
proposals for work and expenditure in relation to the permit area.
514. New subsection (3A) specifies a period within which information or documents
required to accompany an application made under section 104 will be taken to
accompany the application, which is before the end of the period specified in the notice
published in the Gazette inviting applications for the grant of a permit under subsection
104(1). New subsection (3A) provides applicants with flexibility in making
applications, particularly if, for example, information or documents will be given from
various sources. Specifying a period within which information or documents are
required to be given ensures applications, including any information or documents
required to accompany applications, are made within a reasonable period.
Item 4: At the end of section 105
515. This item adds new subsections (3) and (4) to section 105 of the OPGGS Act, which set
out the criteria that the Joint Authority must and may have regard to in deciding
whether or not to give to an applicant an offer document for the grant of a petroleum
exploration permit under subsection 105(2).
516. In deciding whether or not to give an offer document for a permit, the Joint Authority
must have regard to the matters specified in subsection (4). These matters go to
determining whether or not the applicant is suitable to hold the permit. These matters
include:
a. whether the technical advice and financial resources available to the applicant after
the offer is accepted are sufficient to:
i. carry out the operations and works that will be authorised by the permit;
and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the OPGGS Act, in relation to the permit; and
b. the matters specified in section 695YB as they apply to the applicant, including any
officers of the applicant if the applicant is a body corporate.
517. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold a petroleum exploration
permit.
518. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
90
under the title being applied for, in addition to its work and obligations under any
existing titles.
519. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
520. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct offshore
petroleum exploration activities. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
521. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
522. New paragraph 105(3)(b) provides that the Joint Authority may also have regard to any
other matters the Joint Authority considers relevant. This ensures it is clear that the
Joint Authority can consider other relevant matters that may not be specified in the
provision or the regulations when deciding whether to offer to grant a work-bid
petroleum exploration permit.
523. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in subsection 105(2), but
do not provide for merits review of the Joint Authority's decision. This is because the
decision involves the allocation of permits, which authorise the registered holder to
carry out petroleum exploration in the specified block or blocks, between competing
applicants. If there are multiple applicants, those found to be suitable are ranked based
on who, in the Joint Authority's opinion, is the most deserving of the grant of the
permit. This involves an assessment of, amongst other matters, each suitable applicants'
proposed work program (that is, the applicant's proposed operations and works to be
carried out in the block or blocks). If such a decision was able to be reviewed on its
merits, the party who has been allocated the permit in relation to the block or blocks
would be affected by the overturning of the original decision.
524. Additionally, decisions concerning the grant of titles and the imposition of title
conditions are matters of high government policy, involving considerations of national
economic and environmental policy. It would therefore be inappropriate to provide for
merits review for this decision, as to allow for an appeal on the merits of the decision
would, in effect, amount to contesting the Government's resource management strategy
and policy of managing the nation's offshore resources in the public interest.
91
Item 5: Subsection 110(6)
525. This item repeals subsection 110(6) of the OPGGS Act and substitutes new subsections
110(6) and (7), which varies the requirements for applications for a cash-bid petroleum
exploration permit. The notes at the end of subsection (7) are replicated from the notes
at the end of the previous subsection 110(6).
526. Previously, subsection (6) set out prescriptive application requirements, requiring
applications made under section 110 to be accompanied by details of the technical
qualifications of the applicant and the applicant's employees, and the technical advice
and financial resources available to the applicant.
527. Under new subsection (6), an application for a cash-bid petroleum exploration permit
must be in the form approved by the Titles Administrator. The application must also be
accompanied by any information or documents required by the form.
528. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
529. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision under subsection 111(1) (that is, a
decision whether to invite the applicant to make a cash bid or reject the application),
which includes the matters that were previously prescribed in subsection 110(6) (such
as information or documents in relation to the technical qualifications, the technical
advice and the financial resources available to the applicant).
530. New subsection (7) specifies a period within which information or documents required
to accompany an application made under section 110 will be taken to accompany the
application, which is the before the end of the period specified in the notice published
in the Gazette inviting applications for the grant of a petroleum exploration permit by
way of cash bidding under subsection 110(1). New subsection (7) provides applicants
with flexibility in making applications, particularly if, for example, information or
documents will be given from various sources. Specifying a period within which
information or documents are required to be given ensures applications, including any
information or documents required to accompany applications, are made within a
reasonable period.
Item 6: Subsection 111(1)
531. This item omits the reference to the Joint Authority taking into account the matters
specified in the notice under paragraph 110(3)(c) when making a decision under
92
subsection 111(1). This requirement has been moved into new subsection 111(1A) (see
the discussion in the next item).
Item 7: After subsection 111(1)
532. This item adds new subsections (1A) and (1B) to section 111 of the OPGGS Act, which
set out the criteria that the Joint Authority must and may have regard to in deciding
whether or not to invite an applicant to make a cash bid for the grant of a petroleum
exploration permit or reject the application under subsection 111(1).
533. In deciding whether or not to invite an applicant to make a cash bid, the Joint Authority
must have regard to the matters specified in the notice under paragraph 110(3)(c), and
the matters specified in new subsection 111(1B). These matters go to determining
whether or not the applicant is suitable to hold the permit. These matters include:
a. whether the technical advice and financial resources available to the applicant are
sufficient to:
i. carry out the operations and works that will be authorised by the permit;
and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the OPGGS Act, in relation to the permit; and
b. the matters specified in section 695YB as they apply to the applicant, including any
officers of the applicant if the applicant is a body corporate.
534. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold a petroleum exploration
permit.
535. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
536. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
537. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct offshore
petroleum exploration activities. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
538. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
93
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
539. New paragraph 111(1A)(b) provides that the Joint Authority may also have regard to
any other matters the Joint Authority considers relevant. This ensures it is clear that the
Joint Authority can consider other relevant matters that may not be specified in the
provision or the regulations when deciding whether to invite an applicant for a cash-bid
petroleum exploration permit to make a cash bid for the grant of the permit.
540. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in subsection 111(1), but
do not provide for merits review of the Joint Authority's decision. This is because the
decision involves invitations to make cash bids for the grant of permits, which authorise
the registered holder to carry out petroleum exploration in the specified block or blocks,
between competing applicants. If there are multiple applicants, the Joint Authority must
reject an application or make an offer for the grant of the permit within the
circumstances determined under sections 112, 112A and 112B. This involves an
assessment of, amongst other matters, the reserve price, the highest bid and tie-breaking
cash bids. If such a decision was able to be reviewed on its merits, the party who has
been allocated the permit in relation to the block or blocks would be affected by the
overturning of the original decision.
541. Additionally, decisions concerning the grant of titles and the imposition of title
conditions are matters of high government policy, involving considerations of national
economic and environmental policy. It would therefore be inappropriate to provide for
merits review for this decision, as to allow for an appeal on the merits of the decision
would, in effect, amount to contesting the Government's resource management strategy
and policy of managing the nation's offshore resources in the public interest.
Item 8: After subsection 111(3)
542. This item inserts new subsection (3A), specifying a period within which a deposit of 10
per cent of the cash bid, which is required to accompany an application made under
section 111, will be taken to accompany the application. The bid must be received by
the Titles Administrator before the end of the period stated in the invitation to make a
cash bid given under subsection 111(1). New subsection (3A) provides applicants with
flexibility in making payment to accompany their applications, particularly if, for
example, there is a delay in electronic transfers or clearance of cheques. Specifying a
period within which payment is required to be made ensures applications, and any
accompanying payment, are made within a reasonable period.
Item 9: Subsection 115(4)
543. This item repeals subsection 115(4) of the OPGGS Act and substitutes new subsections
115(4) and (4A), which varies the requirements for applications for a special petroleum
exploration permit over a surrendered block or certain other blocks. The notes at the
94
end of subsection (4A) are replicated from the notes at the end of the previous
subsection 115(4).
544. Previously, subsection (4) set out prescriptive application requirements, requiring
applications made under section 115 to be accompanied by details of the applicant's
proposals for work and expenditure in relation to the block or blocks specified in the
application, the technical qualifications of the applicant and the applicant's employees,
the technical advice and financial resources available to the applicant and the amount
that the applicant would be prepared to pay for the grant of the permit.
545. Under new subsection (4), an application for a special petroleum exploration permit
must be made in the form approved by the Titles Administrator. The application is still
required to specify the amount that the applicant would be prepared to pay for the grant
of the permit, and must also be accompanied by any information or documents required
by the form.
546. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
547. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give the applicant
an offer document for the grant of a special petroleum exploration permit), which
includes the matters that were prescribed in the previous subsection 115(4) (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant).
548. New subsection (4A) specifies a period within which information or documents
required to accompany an application made under section 115 will be taken to
accompany the application, which is the before the end of the period specified in the
notice published in the Gazette inviting applications for the grant of a permit under
subsection 115(1). New subsection (4A) provides applicants with flexibility in making
applications, particularly if, for example, information or documents will be given from
various sources. Specifying a period within which information or documents are
required to be given ensures applications, including any information or documents
required to accompany applications, are made within a reasonable period.
Item 10: Before subsection 115(5)
549. This item inserts a subheading of 'Deposit' before subsection 115(5). The subheading is
a reading aid and is not a substantive provision.
95
Item 11: After subsection 115(5)
550. This item inserts new subsection (5A), specifying a period within which a deposit of 10
per cent of the amount that the applicant would be prepared to pay for the grant of the
permit, which is required to accompany an application made under section 115, will be
taken to accompany the application. The deposit must be received by the Titles
Administrator before the end of the period specified in the notice published in the
Gazette inviting applications for the grant of a special petroleum exploration permit
under subsection 115(1). New subsection (5A) provides applicants with flexibility in
making payment to accompany their applications, particularly if, for example, there is a
delay in electronic transfers or clearance of cheques. By specifying a period within
which payment is required to be made ensures applications, and any accompanying
payment, are made within a reasonable period.
Item 12: At the end of section 116
551. This item adds new subsections (3) and (4) to section 116 of the OPGGS Act, which set
out the criteria that the Joint Authority must and may have regard to in deciding
whether or not to give an applicant an offer document for the grant of a special
petroleum exploration permit, where there is only one application in response to a
notice under subsection 115(1).
552. In deciding whether or not to give an offer document, the Joint Authority must have
regard to the matters specified in subsection 116(4). These matters go to determining
whether or not the applicant is suitable to hold the permit. These matters include:
a. whether the technical advice and financial resources available to the applicant are
sufficient to:
i. carry out the operations and works that will be authorised by the permit;
and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the OPGGS Act, in relation to the permit; and
b. the matters specified in section 695YB as they apply to the applicant, including any
officers of the applicant if the applicant is a body corporate.
553. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold a petroleum exploration
permit.
554. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
555. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
96
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
556. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct offshore
petroleum exploration activities. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
557. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
558. New paragraph 116(3)(b) provides that the Joint Authority may also have regard to any
other matters the Joint Authority considers relevant. This ensures it is clear that the
Joint Authority can consider other relevant matters that may not be specified in the
provision or the regulations when deciding whether to offer to grant a special petroleum
exploration permit.
559. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in subsection 116(2), but
do not provide for merits review of the Joint Authority's decision. This is because
decisions concerning the grant of titles and the imposition of title conditions are matters
of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 13: After subsection 117(3)
560. This item adds new subsections (3A) and (3B) to section 117 of the OPGGS Act, which
set out the criteria that the Joint Authority must and may have regard to in deciding
whether or not to give an applicant an offer document for the grant of a special
petroleum exploration permit, where there are two or more applications in response to a
notice under subsection 115(1). The criteria are in addition to those set out in the table
in subsection 117(3).
561. In deciding whether or not to give an offer document for a permit to the person referred
to in column 3 of the table in subsection 117(3), the Joint Authority must have regard to
the matters specified in subsection 117(3B). These matters go to determining whether
or not the applicant is suitable to hold the permit. These matters include:
a. whether the technical advice and financial resources available to the applicant after
the offer is accepted are sufficient to:
i. carry out the operations and works that will be authorised by the permit;
and
97
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the Act, in relation to the permit; and
b. the matters specified in section 695YB as they apply to the applicant, including any
officers of the applicant if the applicant is a body corporate.
562. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold a petroleum exploration
permit.
563. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
564. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
565. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct offshore
petroleum exploration activities. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
566. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
567. New paragraph 117(3A)(b) provides that the Joint Authority may also have regard to
any other matters the Joint Authority considers relevant. This ensures it is clear that the
Joint Authority can consider other relevant matters that may not be specified in the
provision or the regulations when deciding whether to offer to grant a special petroleum
exploration permit.
568. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in section 117, but do not
provide for merits review of the Joint Authority's decision. This is because this
decision involves the allocation of permits, which authorise the registered holder to
carry out petroleum exploration in the specified block or blocks, between competing
applicants. If there are multiple applicants, those found to be suitable are ranked based
on who has specified the highest amount that the applicant is prepared to pay for the
98
permit. There is also a further assessment of, amongst other matters, each suitable
applicants' technical and financial resources (that is, the applicant's technical and
financial ability to carry out operations and works in the block or blocks authorised by
the permit). If such a decision was able to be reviewed on its merits, the party who has
been allocated the permit in relation to the block or blocks would be affected by the
overturning of the original decision.
569. Additionally, decisions concerning the grant of titles and the imposition of title
conditions are matters of high government policy, involving considerations of national
economic and environmental policy. It would therefore be inappropriate to provide for
merits review for this decision, as to allow for an appeal on the merits of the decision
would, in effect, amount to contesting the Government's resource management strategy
and policy of managing the nation's offshore resources in the public interest.
Item 14: After subsection 119(2)
570. This item adds new subsections (2A), (2B) and (2C) to section 119 of the OPGGS Act,
which prescribes the requirements for applications for the renewal of a petroleum
exploration permit.
571. Under subsection (2A), an application for the renewal of a petroleum exploration
permit must be made in the form approved by the Titles Administrator. The application
must also be accompanied by any information or documents required by the form.
572. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
573. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give the applicant
an offer document for the renewal of a petroleum exploration permit, which includes
the matters that are prescribed in new subsection 125(2) (such as information or
documents in relation to the technical advice and the financial resources available to the
applicant). See the discussion in the next item.
574. New subsection (2B) specifies a period within which information or documents
required to accompany an application made under section 119 will be taken to
accompany the application, which is the time before the expiry date of the permit. New
subsection (2B) provides applicants with flexibility in making applications, particularly
if, for example, information or documents will be given from various sources.
Specifying a period within which information or documents are required to be given
99
ensures applications, including any information or documents required to accompany
applications, are made within a reasonable period.
575. New subsection (2C) dis-applies, for the operation of new subsection (2B), the effect of
subsection 119(5). Subsection 119(5) continues a permit in force under certain
circumstances. The effect of new subsection (2C) is that the applicant must provide the
required information or documents before the time at which the permit would ordinarily
have expired, if not for the application of subsection 119(5).
Item 15: Subsection 125(2)
576. This item repeals subsection 125(2) (excluding the heading and the notes) and
substitutes new subsection 125(2), which sets out the criteria that must be met in order
for the Joint Authority to be required to offer to grant a renewal of a petroleum
exploration permit.
577. In order for the Joint Authority to be required to offer to grant a renewal of a permit, the
applicant must have complied with the permit conditions and specified provisions of
the OPGGS Act and regulation.
578. The Joint Authority must also be satisfied of the matters specified in paragraph (2)(b).
These matters go to determining whether or not the application will remain suitable to
hold the permit and include whether the technical advice and financial resources
available to the applicant are sufficient to:
a. carry out the operations and works that will be authorised by the permit; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the OPGGS Act, in relation to the permit.
579. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
580. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
581. The Joint Authority must also be satisfied of any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct offshore
petroleum exploration activities. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
582. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
100
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
583. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in subsection 125(2), but
do not provide for merits review of the Joint Authority's decision. This is because this
decision involves the renewal of a petroleum exploration permit and provides that the
Joint Authority must give an offer document if the criteria in subsection 125(2) are met.
Decisions concerning the grant of titles and the imposition of title conditions are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 16: At the end of section 125
584. This item adds new subsection (4) to the end of section 125, which provides that the
Joint Authority must have regard to the matters specified when deciding whether or not
there are sufficient grounds to warrant the granting of the renewal of a petroleum
exploration permit for the purposes of paragraph 125(3)(b). These matters include
whether the technical advice and financial resources available to the applicant are
sufficient to:
a. carry out the operations and works that will be authorised by the permit; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the OPGGS Act, in relation to the permit.
585. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
586. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
587. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct offshore
petroleum exploration activities. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
101
588. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
589. New subsection 125(4) does not limit paragraph 125(3)(b). This ensures that the Joint
Authority may also take into account any other matters that the Joint Authority
considers relevant when deciding whether there are sufficient grounds to warrant the
granting of the renewal of the permit.
590. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to renew the permit, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 17: At the end of section 126
591. This item adds new subsections (3) and (4) to section 126 of the OPGGS Act, which
provide for the refusal to renew a petroleum exploration permit on grounds other than
those already included in subsection 126(2). Under subsection (3), the Joint Authority
must refuse to renew a permit if the Joint Authority is not satisfied that the technical
advice and financial resources available to the applicant after the permit is renewed are
sufficient to:
a. carry out the operations and works that will be authorised by the permit; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the OPGGS Act, in relation to the permit.
592. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
593. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
102
594. Under subsection (4), the Joint Authority may refuse to renew a permit if the Joint
Authority is not satisfied as to the matters (if any) prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct offshore petroleum exploration
activities. These matters might include, for example, additional matters that go to the
adequacy of the corporate governance of the applicant.
595. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
596. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to renew the permit, however
consultation on the decision is required under section 262. The amendments do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 18: Subsection 141(2)
597. This item repeals subsection 141(2) of the OPGGS Act and substitutes new subsections
141(2) and (2A), which varies the requirements for applications for a petroleum
retention lease by the holder of a petroleum exploration permit. The notes at the end of
subsection (2A) are replicated from the notes at the end of the previous subsection
141(2).
598. Previously, subsection (2) set out prescriptive application requirements, requiring
applications made under section 141 to be accompanied by details of the applicant's
proposals for work and expenditure in relation to the area comprised in the block or
blocks specified in the application, and the current commercial viability and possible
future commercial viability of the recovery of petroleum from that area.
599. Under new subsection (2), an application for a petroleum retention lease must be made
in the form approved by the Titles Administrator. The application must be accompanied
by any information or documents required by the form.
600. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
103
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
601. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to offer to grant a
petroleum retention lease, which includes the matters that were previously prescribed in
subsection 141(2) (such as details of the proposals for work and expenditure, and the
current and future viability of recovery of petroleum).
602. New subsection (2A) specifies a period within which information or documents
required to accompany an application made under section 141 will be taken to
accompany the application, which is before the end of the application period specified
in subsections 141(3) and (4) of the Act. New subsection (2A) provides applicants with
flexibility in making applications, particularly if, for example, information or
documents will be given from various sources. Specifying a period within which
information or documents are required to be given ensures applications, including any
information or documents required to accompany applications, are made within a
reasonable period.
Item 19: After paragraph 142(b)
603. This item adds new paragraphs (c) and (d) to section 142 of the OPGGS Act, which set
out additional criteria that the Joint Authority must be satisfied of in order to be
required to give to an applicant an offer document for the grant of a petroleum retention
lease.
604. In addition to the criteria specified in paragraphs 142(a) and (b), the Joint Authority
must be satisfied of the matters specified in paragraph (c) and any matters prescribed by
the regulations (paragraph (d)). These matters go to determining whether or not the
applicant is suitable to hold the lease. The matters include whether the technical advice
and financial resources available to the applicant after the offer is accepted are
sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the OPGGS Act, in relation to the lease.
605. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
606. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
104
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
607. The Joint Authority must also be satisfied of any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct offshore
petroleum exploration and appraisal activities. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
608. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
609. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in section 142, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 20: At the end of section 143
610. This item adds new subsections (4) and (5) to the end of section 143 of the OPGGS
Act, which set out circumstances in which the Joint Authority must or may give a
written notice to the applicant refusing to grant a petroleum retention lease.
611. This is a consequential amendment as a result of the additional requirements that the
Joint Authority is to be satisfied of in order to be required to offer to grant a lease under
new paragraphs 142(c) and (d), inserted by item 19 (see the discussion in that item).
612. Under new subsection 143(4), the Joint Authority must refuse an application to grant
the petroleum retention lease if the Joint Authority is not satisfied of the matters in
paragraph 142(c) (which relate to the applicant's technical and financial capacity).
Under subsection 143(5), the Joint Authority may refuse an application if it is not
satisfied of the matters (if any) prescribed by the regulations.
Item 21: Subsection 147(2)
613. This item repeals subsection 147(2) of the OPGGS Act and substitutes new subsections
147(2) and (2A), which varies the requirements for applications for a petroleum
105
retention lease by the holder of a life-of-field petroleum production licence. The notes
at the end of subsection (2A) are replicated from the notes at the end of the previous
subsection 147(2).
614. Previously, subsection (2) set out prescriptive application requirements, requiring
applications made under section 147 to be accompanied by details of the applicant's
proposals for work and expenditure in relation to the proposed lease area, and the
current commercial viability and possible future commercial viability of the recovery of
petroleum from that area.
615. Under new subsection (2), an application for a petroleum retention lease must be made
in the form approved by the Titles Administrator. The application must be accompanied
by any information or documents required by the form.
616. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the proposals for work and expenditure) have
recently been provided to the Titles Administrator and there has been no material
change, that information or those documents do not need to be provided again for the
purposes of the application.
617. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give the applicant
an offer document for the grant of the lease), which includes the matters that were
previously prescribed in subsection 147(2) (such as the proposals for work and
expenditure, and the current and future viability of recovery of petroleum).
618. New subsection (2A) specifies a period within which information or documents
required to accompany an application made under section 147 will be taken to
accompany the application, which is before the end of the application period specified
in subsection 147(3) of the OPGGS Act. New subsection (2A) provides applicants with
flexibility in making applications, particularly if, for example, information or
documents will be given from various sources. Specifying a period within which
information or documents are required to be given ensures applications, including any
information or documents required to accompany applications, are made within a
reasonable period.
Item 22: After paragraph 148(b)
619. This item adds new paragraphs (c) and (d) to section 148 of the OPGGS Act, which set
out additional criteria that the Joint Authority must be satisfied of in order to be
required to give to an applicant an offer document for the grant of a petroleum retention
lease under section 148.
106
620. In addition to the criteria specified in paragraphs 148(a) and (b), the Joint Authority
must be satisfied of the matters specified in paragraph (c) and any matters prescribed by
the regulations (paragraph (d)). These matters go to determining whether or not the
applicant is suitable to hold the lease. These matters include whether the technical
advice and financial resources available to the applicant after the offer is accepted are
sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the OPGGS Act, in relation to the lease.
621. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
622. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
623. The Joint Authority must also be satisfied of any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish offshore petroleum
exploration and appraisal activities. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
624. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
625. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in section 148, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
107
Item 23: Section 149
626. This item repeals and substitutes section 149 of the OPGGS Act, which sets out the
circumstances when the Joint Authority must or may refuse an application for a grant of
a petroleum retention lease made under section 147.
627. This is a consequential amendment as a result of the additional requirements that the
Joint Authority is to be satisfied of in order to be required to offer to grant a lease under
new paragraphs 148(c) and (d), inserted by item 22 (see the discussion in that item).
628. As for the previous section 149, under new subsection 149(2) the Joint Authority must
refuse an application to grant a petroleum retention lease to the applicant if the Joint
Authority is not satisfied of the matters in paragraph 148(b). Under new subsection
149(3), the Joint Authority must refuse to grant a lease if the Joint Authority is not
satisfied of the matters in paragraph 148(c) (which relate to the applicant's technical
and financial capacity). Under new subsection 149(4), the Joint Authority may refuse
an application if it is not satisfied of the matters (if any) prescribed by the regulations
for the purposes of paragraph 148(d).
Item 24: Subsection 153(4)
629. This item repeals subsection 153(4) of the OPGGS Act and substitutes new subsections
153(4), (4A) and (4B), which prescribes the requirements for applications for a renewal
of a petroleum retention lease. The notes at the end of subsection (4B) are replicated
from the notes at the end of the previous subsection 153(4).
630. Under new subsection 153(4), an application for the renewal of a petroleum retention
lease must be made in the form approved by the Titles Administrator. The application
must also be accompanied by any information or documents required by the form.
631. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
632. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give the applicant
an offer document for the renewal of a petroleum retention lease, which includes the
matters that were previously prescribed in subsection 153(4) (such as details of the
applicant's proposals for work and expenditure in relation to the lease area, and of the
current commercial viability and possible future commercial viability of recovery of
petroleum from the lease area).
108
633. New subsection (4A) specifies a period within which information or documents
required to accompany an application made under section 153 will be taken to
accompany the application, which is the time before the expiry date of the lease. New
subsection (4A) provides applicants with flexibility in making applications, particularly
if, for example, information or documents will be given from various sources.
Specifying a period within which information or documents are required to be given
ensures applications, including any information or documents required to accompany
applications, are made within a reasonable period.
634. New subsection (4B) dis-applies, for the operation of new subsection (4A), the effect of
subsection 153(5). Subsection 153(5) continues a lease in force under certain
circumstances. The effect of new subsection (4B) is that the applicant must provide the
required information or documents before the time at which the lease would ordinarily
have expired, if not for the application of subsection 153(5).
Item 25: After paragraph 154(2)(b)
635. This item adds new paragraphs (c) and (d) to subsection 154(2) of the OPGGS Act,
which set out additional criteria that the Joint Authority must be satisfied of in deciding
whether or not to give to an applicant an offer document for the grant of a renewal of a
petroleum retention lease.
636. In addition to the criteria specified in paragraphs 154(2)(a) and (b), the Joint Authority
must be satisfied of the matters specified in paragraph (c) and any matters prescribed by
the regulations (paragraph (d)). These matters go to determining whether or not the
applicant is suitable to hold the lease. These matters include whether the technical
advice and financial resources available to the applicant after the offer is accepted are
sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
637. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
638. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
639. The Joint Authority must also be satisfied of any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish offshore petroleum
109
exploration and appraisal activities. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
640. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
641. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in subsection 154(2), but
do not provide for merits review of the Joint Authority's decision. The decision
concerns the grant of titles and the imposition of title conditions. Decisions concerning
the grant of titles and the imposition of title conditions are matters of high government
policy, involving considerations of national economic and environmental policy. It
would therefore be inappropriate to provide for merits review for this decision, as to
allow for an appeal on the merits of the decision would, in effect, amount to contesting
the Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 26: At the end of section 154
642. This item adds new subsection (4) to the end of section 154, which provides that the
Joint Authority must have regard to the matters specified when deciding whether or not
there are sufficient grounds to warrant the granting of the renewal of a petroleum
retention lease for the purposes of paragraph 154(3)(b). These matters include whether
the technical advice and financial resources available to the applicant are sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the OPGGS Act, in relation to the lease.
643. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
644. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
645. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to carry out offshore
110
petroleum exploration and appraisal activities. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
646. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
647. New subsection 154(4) does not limit the matters that the Joint Authority may have
regard to in deciding under paragraph 154(3)(b) whether there are sufficient grounds to
warrant the granting of the renewal of the lease.
648. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to renew the lease, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 27: After subsection 155(4)
649. This item adds new subsections (4A) and (4B) to section 155 of the OPGGS Act, which
provides for the refusal for the renewal of a petroleum retention lease on grounds other
than those already specified in section 155. Under subsection (4A), the Joint Authority
must refuse to renew the lease if the Joint Authority is not satisfied that the technical
advice and financial resources available to the applicant after the lease is renewed are
sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
650. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
651. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
111
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
652. Under subsection (4B), the Joint Authority may refuse to renew the lease if the Joint
Authority is not satisfied of the matters (if any) prescribed in the regulations. Enabling
the regulations to prescribe additional matters will provide the Government with the
flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct offshore petroleum exploration
and appraisal activities. These matters might include, for example, additional matters
that go to the adequacy of the corporate governance of the applicant.
653. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
654. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to renew the lease, however
consultation on the decision is required under section 262. The amendments do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 28: After subsection 168(5)
655. This item inserts new subsection 168(5A) into the OPGGS Act, which provides that the
Titles Administrator must publish on its website a copy of the instrument approving a
manner for giving notice of a variation of an application for the purposes of subsection
168(4). This instrument will set out the approved manner or manners for applications to
enable applicants to comply with the requirements in subsection 168(4).
656. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
657. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 29: Subsection 168(6)
658. This item repeals subsection 168(6) of the OPGGS Act and substitutes new subsections
168(6) and (6A), which varies the requirements for applications, or variations of
applications, for a petroleum production licence over a block or blocks.
112
659. Previously, subsection (6) set out prescriptive application requirements, requiring
applications made under section 168 to be accompanied by details of the applicant's
proposals for work and expenditure in relation to the area comprised in the block or
blocks covered by the application or the varied application.
660. Under new subsection (6), an application or variation of an application for a petroleum
production licence must be made in the form approved by the Titles Administrator. The
application or variation must be accompanied by any information or documents
required by the form.
661. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
662. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give the applicant
an offer document for the grant of a petroleum production licence, which includes the
matters that were previously prescribed in subsection 168(6) (such as the proposals for
work and expenditure in the block or blocks).
663. New subsection (6A) specifies a period within which information or documents
required to accompany an application made under section 168 will be taken to
accompany the application. For an application, the information or documents must be
provided before the end of the application period specified in section 169 of the
OPGGS Act. For a variation of an application, the information or documents must be
provided within 10 days after the variation is made. New subsection (6A) provides
applicants with flexibility in making applications, particularly if, for example,
information or documents will be given from various sources. Specifying a period
within which information or documents are required to be given ensures applications,
including any information or documents required to accompany applications, are made
within a reasonable period.
Item 30: Subsection 170(3)
664. This item repeals subsection 170(3) of the OPGGS Act and substitutes new subsections
170(3) and (3A), which varies the requirements for applications for the grant of a
petroleum production licence over a block or blocks.
665. Previously, subsection (3) set out prescriptive application requirements, requiring
applications made under section 170 to be accompanied by details of the applicant's
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proposals for work and expenditure in relation to the area comprised in the block or
blocks specified in the application.
666. Under new subsection (3), an application for a petroleum production licence must be
made in the form approved by the Titles Administrator. The application must also be
accompanied by any information or documents required by the form.
667. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
668. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether to give the applicant an offer
document for the grant of a petroleum production licence, which includes the matter
that was previously prescribed in subsection 170(3) (i.e. information or documents in
relation to the applicant's proposal for work and expenditure).
669. New subsection (3A) specifies a period within which information or documents
required to accompany an application made under section 170 will be taken to
accompany the application, which is before the end of the 10-day period that began on
the day after the application was made. New subsection (3A) provides applicants with
flexibility in making applications, particularly if, for example, information or
documents will be given from various sources. Specifying a period within which
information or documents are required to be given ensures applications, including any
information or documents required to accompany applications, are made within a
reasonable period.
Items 31 and 32: After paragraph 171(1)(b); After paragraph 171(1)(e)
670. These items add new paragraphs (ba) and (f) to subsection 171(1) of the OPGGS Act,
which set out additional criteria that the Joint Authority must be satisfied of in order to
be required to give to an applicant an offer document for the grant of a petroleum
production licence under section 171.
671. In addition to the criteria specified in paragraphs 171(1)(a), (b), (c), (d) and (e), the
Joint Authority must be satisfied of the matters specified in paragraph (ba). These
matters go to determining whether or not the applicant is suitable to hold the licence.
These matters include whether the technical advice and financial resources available to
the applicant after the offer is accepted are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
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b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the OPGGS Act, in relation to the licence.
672. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
673. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
674. Under paragraph (f), the Joint Authority must also be satisfied of any other matters
prescribed in the regulations. Enabling the regulations to prescribe additional matters
will provide the Government with the flexibility to provide for other matters that are
necessary and appropriate for determining the suitability of those who wish to conduct
activities to recover offshore petroleum. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
675. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
676. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in section 171, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 33: After subsection 173(4)
677. This item adds new subsection (4A) to section 173 of the OPGGS Act, which provides
additional grounds for a refusal to grant a petroleum production licence. The Joint
Authority must refuse to grant a licence if the Joint Authority is not satisfied of the
criteria in new paragraph 171(1)(ba) as to whether the technical advice and financial
resources available to the applicant after the licence is granted are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
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b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
678. Please see the discussion at items 31 and 32.
Item 34: After subsection 173(7)
679. This item adds new subsection (7A) to section 173 of the OPGGS Act, which provides
additional grounds for a refusal to grant a petroleum production licence. The Joint
Authority may refuse to grant a petroleum production licence to the applicant if it is not
satisfied of the matters (if any) prescribed by the regulations for the purposes of
paragraph 171(1)(f). Please see the discussion at items 31 and 32.
680. These amendments will provide the Joint Authority with administrative discretion in
relation to whether to refuse to grant a petroleum production licence, but do not provide
for merits review of the Joint Authority's decision. The decision concerns the grant of
titles and the imposition of title conditions. Decisions concerning the grant of titles and
the imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 35: Subsection 178(3)
681. This item repeals subsection 178(3) of the OPGGS Act (excluding the heading) and
substitutes new subsections 178(3) and (3A), which varies the requirements for
applications for a cash-bid petroleum production licence over a surrendered block or
similar blocks. The notes at the end of subsection (3A) are replicated from the notes at
the end of the previous subsection 178(3).
682. Previously, subsection (3) set out prescriptive application requirements, requiring
applications made under section 178 to be accompanied by details of the applicant's
proposals for work and expenditure in relation to the area comprised in the block
specified in the application, and the amount that the applicant would be prepared to pay
for the grant of the licence.
683. Under new subsection (3), an application for a cash-bid petroleum production licence
must be made in the form approved by the Titles Administrator. The application is still
required to specify the amount that the applicant would be prepared to pay for the grant
of the licence, and must also be accompanied by any information or documents
required by the form.
684. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
116
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
685. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give the applicant
an offer document for the grant of a petroleum production licence, which includes the
matters that were previously prescribed in subsection 178(3) (such as details of the
applicant's proposals for work and expenditure).
686. New subsection (3A) specifies a period within which information or documents
required to accompany an application made under section 178 will be taken to
accompany the application, which is the before the end of the period specified in the
notice published in the Gazette inviting applications for the grant of a petroleum
production licence under subsection 178(1). New subsection (3A) provides applicants
with flexibility in making applications, particularly if, for example, information or
documents will be given from various sources. Specifying a period within which
information or documents are required to be given ensures applications, including any
information or documents required to accompany applications, are made within a
reasonable period.
Item 36: After subsection 178(4)
687. This item inserts new subsection (4A) into section 178 of the OPGGS Act, specifying a
period within which the deposit of 10 per cent of the cash bid, which is required to
accompany an application made under section 178, will be taken to accompany the
application. The Titles Administrator must receive the deposit before the end of the
period specified in the notice published in the Gazette inviting applications for the grant
of a petroleum production licence by way of cash bidding under subsection 178(1).
New subsection (4A) provides applicants with flexibility in making payment to
accompany their applications, particularly if, for example, there is a delay in electronic
transfers or clearance of cheques. Specifying a period within which payment is required
to be made ensures applications, and any accompanying payment, are made within a
reasonable period.
Item 37: At the end of section 179
688. This item adds new subsections (3) and (4) to section 179 of the OPGGS Act, which set
out the criteria that the Joint Authority must and may have regard to in deciding
whether or not give an offer document to the applicant for the grant of a petroleum
production licence over a block or reject the application under subsection 179(2), where
there is only one application.
689. In deciding whether or not to give an offer document for a licence, the Joint Authority
must have regard to the matters specified in subsection 179(4). These matters go to
determining whether or not the applicant is suitable to hold the licence. These matters
include:
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a. whether the technical advice and financial resources available to the applicant after
the licence is granted are sufficient to:
i. carry out the operations and works that will be authorised by the licence;
and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the Act, in relation to the licence; and
b. the matters specified in section 695YB as they apply to the applicant, including any
officers of the applicant if the applicant is a body corporate.
690. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold a petroleum production
licence.
691. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
692. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
693. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct activities to
recover offshore petroleum. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
694. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
695. New paragraph 179(3)(b) provides that the Joint Authority may also have regard to any
other matters the Joint Authority considers relevant. This ensures it is clear that the
Joint Authority can consider other relevant matters that may not be specified in the
provision or the regulations when deciding whether to offer to grant a cash-bid
petroleum production licence.
696. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in section 179, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
118
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 38: After subsection 180(2)
697. This item inserts new subsections (2A) and (2B) to section 180 of the OPGGS Act,
which set out the criteria that the Joint Authority must and may have regard to in
deciding whether or not give an offer document to the applicant for the grant of a
petroleum production licence over a block or reject the application under section 180,
where there are two or more applications. The criteria are in addition to the criteria
specified in the table in subsection 180(3).
698. In deciding whether or not to give an offer document for a licence, the Joint Authority
must have regard to the matters specified in subsection 180(2B). These matters go to
determining whether or not the applicant is suitable to hold the licence. These matters
include:
a. whether the technical advice and financial resources available to the applicant after
the licence is granted are sufficient to:
i. carry out the operations and works that will be authorised by the licence;
and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the Act, in relation to the licence; and
b. the matters specified in section 695YB as they apply to the applicant, including
any officers of the applicant if the applicant is a body corporate.
699. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold a petroleum production
licence.
700. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
701. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
119
702. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct activities to
recover offshore petroleum. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
703. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
704. New paragraph 180(2A)(b) provides that the Joint Authority may also have regard to
any other matters the Joint Authority considers relevant. This ensures it is clear that the
Joint Authority can consider other relevant matters that may not be specified in the
provision or the regulations when deciding whether to reject an application for a cash-
bid petroleum production licence.
705. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in subsections 180(2) and
(3), but do not provide for merits review of the Joint Authority's decision. This is
because the decision involves the grant of licences, which authorise the registered
holder to recover petroleum in the specified block or blocks, between competing
applicants. If there are multiple applicants, the Joint Authority must reject an
application or make an offer within the circumstances determined under section 180.
This involves an assessment of, amongst other matters, the highest bid for the grant of a
petroleum production licence. If such a decision was able to be reviewed on its merits,
the party who has been allocated the licence in relation to the block or blocks would be
affected by the overturning of the original decision.
706. Additionally, decisions concerning the grant of titles and the imposition of title
conditions are matters of high government policy, involving considerations of national
economic and environmental policy. It would therefore be inappropriate to provide for
merits review for this decision, as to allow for an appeal on the merits of the decision
would, in effect, amount to contesting the Government's resource management strategy
and policy of managing the nation's offshore resources in the public interest.
Item 39: Subsection 184(5)
707. This item repeals subsection (5) of section 184 of the OPGGS Act and substitutes new
subsections (5), (5A) and (5B), which prescribe the requirements for applications for
the renewal of a fixed-term petroleum production licence. The notes at the end of
subsection (5B) are replicated from the notes at the end of the previous subsection
184(5).
708. Previously, subsection (5) set out prescriptive application requirements, requiring
applications made under section 184 to be accompanied by the details of the applicant's
proposals for work and expenditure in relation to the licence area.
120
709. Under new subsection (5), an application for the renewal of a fixed-term petroleum
production licence must be made in the form approved by the Titles Administrator. The
application must also be accompanied by any information or documents required by the
form.
710. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
711. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give the applicant
an offer document for the renewal of a fixed-term petroleum production licence, which
includes the matter that was previously prescribed in subsection 184(5) (i.e. details of
the licensee's proposals for work and expenditure).
712. New subsection (5A) specifies a period within which information or documents
required to accompany an application made under section 184 will be taken to
accompany the application, which is the time before the expiry date of the licence. New
subsection (5A) provides applicants with flexibility in making applications, particularly
if, for example, information or documents will be given from various sources.
Specifying a period within which information or documents are required to be given
ensures applications, including any information or documents required to accompany
applications, are made within a reasonable period.
713. New subsection (5B) dis-applies, for the operation of new subsection (5A), the effect of
existing subsection 184(6). Subsection 184(6) continues a licence in force under certain
circumstances. The effect of new subsection (5B) is that the applicant must provide the
required information or documents before the time at which the licence would
ordinarily have expired, if not for the application of subsection 184(6).
Item 40: After paragraphs 185(2)(b) and (3)(b)
714. This item adds new paragraphs (c) and (d) to subsections 185(2) and (3), to provide
additional criteria that the Joint Authority must be satisfied of in order to be required to
offer to grant a renewal of a fixed-term petroleum production licence. These matters
include whether the technical advice and financial resources available to the applicant
after the offer document is accepted are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
121
715. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
716. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
717. The Joint Authority must also be satisfied of any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct activities to
recover offshore petroleum. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
718. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
719. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to renew the licence, but do
not provide for merits review of the Joint Authority's decision. The decision concerns
the grant of titles and the imposition of title conditions. Decisions concerning the grant
of titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 41: At the end of section 185 (before the note)
720. This item adds new subsection (5) to the end of section 185, which provides that the
Joint Authority must have regard to the matters specified when deciding whether or not
there are sufficient grounds to warrant the granting of the renewal of the fixed-term
petroleum production licence. These matters include whether the technical advice and
financial resources available to the applicant after the licence is granted are sufficient
to:
a. carry out the operations and works that will be authorised by the licence; and
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b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
721. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
722. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
723. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct activities to
recover offshore petroleum. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
724. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
725. New subsection 185(5) does not limit paragraph 185(4)(b), which means that the Joint
Authority is entitled to take any other matters that the Joint Authority considers relevant
into account when deciding whether it is satisfied that there are sufficient grounds to
warrant the granting of the renewal of the petroleum production licence.
726. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to renew the licence, but do
not provide for merits review of the Joint Authority's decision. The decision concerns
the grant of titles and the imposition of title conditions. Decisions concerning the grant
of titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 42: At the end of section 186
727. This item adds new subsections (4) and (5) to section 186 of the Act, which provides
for the refusal of the renewal of a petroleum production licence on grounds other than
123
those provided under subsections 186(2) and (3). Under subsection (4), the Joint
Authority must refused to renew the licence if the Joint Authority is not satisfied that
the technical advice and financial resources available to the applicant after the licence is
renewed are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
728. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
729. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
730. Under subsection (5), the Joint Authority may refuse to renew the licence if the Joint
Authority is not satisfied of any other matters prescribed in the regulations. Enabling
the regulations to prescribe additional matters will provide the Government with the
flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct activities to recover offshore
petroleum. These matters might include, for example, additional matters that go to the
adequacy of the corporate governance of the applicant.
731. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
732. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to renew the licence, however
consultation on the decision is required under section 262. The amendments do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
124
Item 43: Subsection 198(2)
733. This item repeals subsection 198(2) of the OPGGS Act and substitutes new subsections
198(2) and (3), which varies the requirements for applications for the grant an
infrastructure licence. The notes at the end of subsection (3) are replicated from the
notes at the end of the previous subsection 198(2).
734. Previously, subsection (2) set out prescriptive application requirements, requiring
applications made under section 198 to be accompanied by details of the applicant's
proposals for the construction and operation of infrastructure facilities in an offshore
area described in the application.
735. Under new subsection (2), an application for an infrastructure licence must be made in
the form approved by the Titles Administrator. The application is still also required to
describe the place in the offshore area at which the proposed infrastructure facilities
will be constructed and operated, and must also be accompanied by any information or
documents required by the form.
736. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
737. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether to give the applicant an offer
document for the grant of an infrastructure licence (such as information or documents
relating to the technical or financial capacity of the applicant).
738. New subsection (3) specifies a period within which information or documents required
to accompany an application made under section 198 will be taken to accompany the
application, which is before the end of the 10-day period that began on the day after the
application was made. New subsection (3) provides applicants with flexibility in
making applications, particularly if, for example, information or documents will be
given from various sources. Specifying a period within which information or
documents are required to be given ensures applications, including any information or
documents required to accompany applications, are made within a reasonable period.
Item 44: Section 199
739. This item inserts '(1)' to make previous section 199 of the OPGGS Act into subsection
199(1), as a consequence of the addition of subsections made by the next item.
125
Item 45: At the end of section 199
740. This item adds new subsections (2) and (3) to section 199 of the OPGGS Act, which
set out the criteria that the Joint Authority must and may have regard to in deciding
whether or not to give to an applicant an offer document for the grant of an
infrastructure licence under subsection 199(1).
741. In deciding whether or not to give an offer document for a licence, the Joint Authority
must have regard to the matters specified in subsection (3). These matters go to
determining whether or not the applicant is suitable to hold the licence. These matters
include:
a. whether the technical advice and financial resources available to the applicant after
the offer is accepted are sufficient to:
i. carry out the operations and works that will be authorised by the licence;
and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the Act, in relation to the licence; and
b. the matters specified in section 695YB as they apply to the applicant, including any
officers of the applicant if the applicant is a body corporate.
742. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold an infrastructure licence.
743. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
744. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
745. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to construct and operate
petroleum or GHG related infrastructure facilities. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
746. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
126
understand and comply with these additional criteria, including through an update to the
approved application form.
747. New paragraph 199(2)(b) provides that the Joint Authority may also have regard to any
other matters the Joint Authority considers relevant. This ensures it is clear that the
Joint Authority can consider other relevant matters that may not be specified in the
provision or the regulations when deciding whether to offer to grant an infrastructure
licence.
748. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to grant the licence, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 46: Subsection 204(2)
749. This item repeals subsection 204(2) of the OPGGS Act and substitutes new subsections
204(2) and (3), which varies the requirements for applications for a variation of an
infrastructure licence. The notes at the end of subsection (3) are replicated from the
notes at the end of the previous subsection 204(2).
750. Previously, subsection (2) set out prescriptive application requirements, requiring
applications made under section 204 to be accompanied by details of the applicant's
proposed variation and the reasons for the variation.
751. Under new subsection (2), an application for a variation of an infrastructure licence
must be made in the form approved by the Titles Administrator. The application for
variation must be accompanied by any information or documents required by the form.
752. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
753. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to vary the licence,
127
which includes the matters that were previously prescribed in subsection 204(2) (such
as the details of, and the reasons for, the variation).
754. New subsection (3) specifies a period within which information or documents required
to accompany an application made under section 204 will be taken to accompany the
application, which is before the end of the 10-day period that began on the day after the
application was made. New subsection (3) provides applicants with flexibility in
making applications, particularly if, for example, information or documents will be
given from various sources. Specifying a period within which information or
documents are required to be given ensures applications, including any information or
documents required to accompany applications, are made within a reasonable period.
Item 47: After subsection 205(1)
755. This item inserts new subsections (1A) and (1B) to section 205 of the OPGGS Act,
which set out the criteria that the Joint Authority must and may have regard to in
deciding whether or not to vary an infrastructure licence under subsection 205(1).
756. In deciding whether or not to vary a licence, the Joint Authority must have regard to the
matters specified in subsection (1B). These matters go to determining whether or not
the applicant is suitable to hold the licence as varied. These matters include whether the
technical advice and financial resources available to the applicant are sufficient to:
a. carry out the operations and works that will be authorised by the licence as varied;
and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence as varied.
757. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the licence if the licence were varied in accordance with the application, in
addition to its work and obligations under any existing titles.
758. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a variation of a title. The policy rationale includes creating
confidence in the offshore regime and protecting the taxpayer, but does not aim to
provide due diligence for investors.
759. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to construct and operate
petroleum or GHG related infrastructure facilities. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
760. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
128
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
761. New paragraph 205(1A)(b) provides that the Joint Authority may also have regard to
any other matters the Joint Authority considers relevant. This ensures it is clear that the
Joint Authority can consider other relevant matters that may not be specified in the
provision or the regulations when deciding whether to vary an infrastructure licence.
762. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to vary the licence, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
variation of a title. Decisions concerning the variation of titles are matters of high
government policy, involving considerations of national economic and environmental
policy. It would therefore be inappropriate to provide for merits review for this
decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 48: Subsections 217(2) and (3)
763. This item repeals subsections 217(2) and (3) of the OPGGS Act and substitutes new
subsections 217(2) and (3), which varies the requirements for applications for the grant
of a pipeline licence. The notes at the end of subsection (3) are replicated from the
notes at the end of the previous subsection 217(3).
764. Previously, subsections (2) and (3) set out prescriptive application requirements,
requiring applications made under section 217 to be accompanied by, for example,
details of the proposal for the construction of the pipeline, work and expenditure,
technical advice and financial resources available to the applicant, and a plan of the
details of the pipeline drawn to an approved scale.
765. Under new subsection (2), an application for a pipeline licence must be made in the
form approved by the Titles Administrator. The application must be accompanied by
any information or documents required by the form.
766. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
129
767. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to grant the licence,
which includes the matters that were previously prescribed in subsections 217(2) and
(3) (such as the details of the proposed construction and the accompanying plan).
768. New subsection (3) specifies a period within which information or documents required
to accompany an application made under section 217 will be taken to accompany the
application, which is before the end of the 10-day period that began on the day after the
application was made. New subsection (3) provides applicants with flexibility in
making applications, particularly if, for example, information or documents will be
given from various sources. Specifying a period within which information or
documents are required to be given ensures applications, including any information or
documents required to accompany applications, are made within a reasonable period.
Item 49: After subsection 221(2)
769. This item inserts new subsections (2A) and (2B) to section 221 of the OPGGS Act,
which set out the criteria that the Joint Authority must and may have regard to in
deciding whether or not to give an offer document for the grant of a petroleum-related
pipeline licence to a person other than the petroleum production licensee under
subsection 221(2).
770. In deciding whether or not to give an offer document for a licence, the Joint Authority
must have regard to the matters specified in subsection (2B). These matters go to
determining whether or not the applicant is suitable to hold the licence. These matters
include:
a. whether the technical advice and financial resources available to the applicant after
the offer is accepted are sufficient to:
i. carry out the operations and works that will be authorised by the licence;
and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the Act, in relation to the licence; and
b. the matters specified in section 695YB as they apply to the applicant, including any
officers of the applicant if the applicant is a body corporate.
771. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold a pipeline licence.
772. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
773. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
130
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
774. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to construct and operate
petroleum-related pipelines in offshore areas. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
775. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
776. New paragraph 221(2A)(b) provides that the Joint Authority may also have regard to
any other matters the Joint Authority considers relevant. This ensures it is clear that the
Joint Authority can consider other relevant matters that may not be specified in the
provision or the regulations when deciding whether to offer to grant a pipeline licence
under subsection 221(2).
777. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to grant the licence, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 50: After paragraph 221(3)(c)
778. This item adds new paragraphs (d) and (e) to subsection 221(3) of the OPGGS Act,
which set out additional criteria that the Joint Authority must be satisfied of in order to
be required to give an offer document for the grant of a petroleum-related pipeline
licence to a person who is the petroleum production licensee under subsection 221(3).
779. In addition to the criteria specified in paragraphs 221(3)(a), (b) and (c), the Joint
Authority must be satisfied of the matters specified in paragraph (d) and any matters
prescribed by the regulations (paragraph (e)). These matters go to determining whether
or not the applicant is suitable to hold the licence. These matters include whether the
technical advice and financial resources available to the applicant after the offer is
accepted are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
131
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
780. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
781. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
782. The Joint Authority must also be satisfied of any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to construct and operate
petroleum-related pipelines in offshore areas. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
783. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
784. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in subsection 221(3), but
do not provide for merits review of the Joint Authority's decision. The decision
concerns the grant of titles and the imposition of title conditions. Decisions concerning
the grant of titles and the imposition of title conditions are matters of high government
policy, involving considerations of national economic and environmental policy. It
would therefore be inappropriate to provide for merits review for this decision, as to
allow for an appeal on the merits of the decision would, in effect, amount to contesting
the Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 51: After subsection 221(4)
785. This item inserts new subsection (4A) to section 221, which provides that the Joint
Authority must have regard to the matters specified when deciding whether or not there
are sufficient grounds to warrant the granting of a petroleum-related pipeline licence to
the petroleum production licensee for the purposes of subsection 221(4). These matters
132
include whether the technical advice and financial resources available to the applicant
after the licence is granted are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
786. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
787. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
788. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to construct and operate
petroleum-related pipelines in offshore areas. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
789. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
790. New subsection 221(4A) does not limit paragraph 221(4)(d), which ensures that that the
Joint Authority may take any other matters that the Joint Authority considers relevant
into account when deciding whether it is satisfied that there are sufficient grounds to
warrant the granting of the pipeline licence.
791. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to grant the licence, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
133
Item 52: After subsection 221(5)
792. This item inserts new subsections (5A) and (5B) to section 221 of the OPGGS Act,
which set out the criteria that the Joint Authority must and may have regard to in
deciding whether or not to give an offer document for the grant of a pipeline licence in
relation to construction of a petroleum pipeline for conveyance of petroleum recovered
from a place beyond the outer limits of any offshore area under subsection 221(5).
793. In deciding whether or not to give an offer document for a licence, the Joint Authority
must have regard to the matters specified in subsection (5B). These matters go to
determining whether or not the applicant is suitable to hold the licence. These matters
include:
a. whether the technical advice and financial resources available to the applicant after
the offer is accepted are sufficient to:
i. carry out the operations and works that will be authorised by the licence;
and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the Act, in relation to the licence; and
b. the matters specified in section 695YB as they apply to the applicant, including any
officers of the applicant if the applicant is a body corporate.
794. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold a pipeline licence.
795. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
796. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
797. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to construct and operate
petroleum-related pipelines in offshore areas. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
798. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
134
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
799. New paragraph 221(5A)(b) provides that the Joint Authority may also have regard to
any other matters the Joint Authority considers relevant. This ensures it is clear that the
Joint Authority can consider other relevant matters that may not be specified in the
provision or the regulations when deciding whether to offer to grant a pipeline licence
under subsection 221(5).
800. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to grant the licence, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 53: Subsection 221(6)
801. This item repeals and substitutes a new subsection 221(6) (excluding the heading and
the notes). The new subsection specifies that the route to be followed by the pipeline
must be specified in the offer document given to the applicant in relation to an
application for a pipeline licence made under section 221.
802. Previously, subsection 221(6) required the route to be followed by the pipeline to be the
route shown in the plan accompanying the application, or a route that the Joint
Authority considered to be more appropriate. However, section 217 no longer specifies
that an application must be accompanied by a plan showing the route to be followed by
the pipeline. Rather, the plan will be one of the documents that will be required to
accompany the approved application form - see discussion at item 48.
803. This item therefore removes the specific reference to the form accompanying the
application in subsection 221(6). In practice, the offer document will continue to
specify either the route shown in the plan, or a route that the Joint Authority considers
to be more appropriate.
Item 54: After subsection 222(2)
804. This item inserts new subsections (2A) and (2B) to section 222 of the OPGGS Act,
which set out the criteria that the Joint Authority must and may have regard to in
deciding whether or not to give an offer document for the grant of a GHG-related
pipeline licence to a person other than the relevant petroleum production licensee under
subsection 222(2).
805. In deciding whether or not to give an offer document for a licence, the Joint Authority
must have regard to the matters specified in subsection (2B). These matters go to
135
determining whether or not the applicant is suitable to hold the licence. These matters
include:
a. whether the technical advice and financial resources available to the applicant after
the offer is accepted are sufficient to:
i. carry out the operations and works that will be authorised by the licence;
and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the Act, in relation to the licence; and
b. the matters specified in section 695YB as they apply to the applicant, including any
officers of the applicant if the applicant is a body corporate.
806. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold a pipeline licence.
807. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
808. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
809. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to construct and operate
GHG-related pipelines in offshore areas. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
810. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
811. New paragraph 222(2A)(b) provides that the Joint Authority may also have regard to
any other matters the Joint Authority considers relevant. This ensures it is clear that the
Joint Authority can consider other relevant matters that may not be specified in the
provision or the regulations when deciding whether to offer to grant a pipeline licence
under subsection 222(2).
812. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to grant the licence, but do not
136
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 55: After paragraph 222(3)(d)
813. This item adds new paragraphs (e) and (f) to subsection 222(3) of the OPGGS Act,
which set out additional criteria that the Joint Authority must be satisfied of in order to
be required to give to an applicant who is the petroleum production licensee an offer
document for the grant of a GHG-related pipeline licence under subsection 221(3).
814. In addition to the criteria specified in paragraphs 222(3)(a), (b), (c) and (d), the Joint
Authority must be satisfied of the matters specified in paragraph (e) and any matters
prescribed by the regulations (paragraph (f)). These matters go to determining whether
or not the applicant is suitable to hold the licence. These matters include whether the
technical advice and financial resources available to the applicant after the offer is
accepted are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
815. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
816. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
817. The Joint Authority must also be satisfied of any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to construct and operate
GHG-related pipelines in offshore areas. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
818. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
137
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
819. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in subsection 222(3), but
do not provide for merits review of the Joint Authority's decision. The decision
concerns the grant of titles and the imposition of title conditions. Decisions concerning
the grant of titles and the imposition of title conditions are matters of high government
policy, involving considerations of national economic and environmental policy. It
would therefore be inappropriate to provide for merits review for this decision, as to
allow for an appeal on the merits of the decision would, in effect, amount to contesting
the Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 56: After subsection 222(4)
820. This item inserts new subsection (4A) to section 222, which provides that the Joint
Authority must have regard to the matters specified when deciding whether or not there
are sufficient grounds to warrant the granting of a GHG-related pipeline licence to the
relevant petroleum production licensee for the purposes of subsection 222(4). These
matters include whether the technical advice and financial resources available to the
applicant after the licence is granted are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
821. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
822. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
823. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to construct and operate
GHG-related pipelines in offshore areas. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
824. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
138
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
825. New subsection 222(4A) does not limit paragraph 222(4)(e), which ensures that the
Joint Authority may take into account any other matters that the Joint Authority
considers relevant when deciding whether it is satisfied that there are sufficient grounds
to warrant the granting of the pipeline licence.
826. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to grant the licence, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 57: After subsection 222(5)
827. This item inserts new subsections (5A) and (5B) to section 222 of the OPGGS Act,
which set out the criteria that the Joint Authority must and may have regard to in
deciding whether or not to give an offer document for the grant of a GHG-related
pipeline licence to a person other than the greenhouse gas injection licensee under
subsection 222(5).
828. In deciding whether or not to give an offer document for a licence, the Joint Authority
must have regard to the matters specified in subsection (5B). These matters go to
determining whether or not the applicant is suitable to hold the licence. These matters
include:
a. whether the technical advice and financial resources available to the applicant after
the offer is accepted are sufficient to:
i. carry out the operations and works that will be authorised by the licence;
and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the Act, in relation to the licence; and
b. the matters specified in section 695YB as they apply to the applicant, including any
officers of the applicant if the applicant is a body corporate.
829. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold a pipeline licence.
830. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
139
under the title being applied for, in addition to its work and obligations under any
existing titles.
831. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
832. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to construct and operate
GHG-related pipelines in offshore areas. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
833. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
834. New paragraph 222(5A)(b) provides that the Joint Authority may also have regard to
any other matters the Joint Authority considers relevant. This ensures it is clear that the
Joint Authority can consider other relevant matters that may not be specified in the
provision or the regulations when deciding whether to offer to grant a pipeline licence
under subsection 222(5).
835. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to grant the licence, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 58: After paragraph 222(6)(d)
836. This item adds new paragraphs (e) and (f) to subsection 222(6) of the OPGGS Act,
which set out additional criteria that the Joint Authority must be satisfied of in order to
be required to give to an applicant who is the greenhouse gas injection licensee an offer
document for the grant of a GHG-related pipeline licence under subsection 222(6).
837. In addition to the criteria specified in paragraphs 222(6)(a), (b), (c) and (d), the Joint
Authority must be satisfied of the matters specified in paragraph (e) and any other
matters prescribed by the regulations (paragraph (f)). These matters go to determining
140
whether or not the applicant is suitable to hold the licence. These matters include
whether the technical advice and financial resources available to the applicant after the
offer is accepted are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
838. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
839. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
840. The Joint Authority must also be satisfied of any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to construct and operate
GHG-related pipelines in offshore areas. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
841. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
842. These amendments will provide the Joint Authority with administrative discretion in
relation to the existing decision-making power provided for in subsection 222(6), but
do not provide for merits review of the Joint Authority's decision. The decision
concerns the grant of titles and the imposition of title conditions. Decisions concerning
the grant of titles and the imposition of title conditions are matters of high government
policy, involving considerations of national economic and environmental policy. It
would therefore be inappropriate to provide for merits review for this decision, as to
allow for an appeal on the merits of the decision would, in effect, amount to contesting
the Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 59: After subsection 222(7)
843. This item inserts new subsection (7A) to section 222 of the OPGGS Act, which
provides that the Joint Authority must have regard to the matters specified when
141
deciding whether or not there are sufficient grounds to warrant the granting of a GHG-
related pipeline licence to the greenhouse gas injection licensee. These matters include
whether the technical advice and financial resources available to the applicant after the
offer document is accepted are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
844. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
845. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
846. The Joint Authority must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to construct and operate
GHG-related pipelines in offshore areas. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
847. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
848. These amendments will provide the Joint Authority with administrative discretion in
relation to whether or not the Joint Authority is prepared to grant the licence, but do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
142
Item 60: Subsection 222(8)
849. This item repeals and substitutes subsection 222(8) (excluding the heading and the
notes). The new subsection specifies that the route to be followed by the pipeline must
be specified in the offer document given to the applicant in relation to an application for
a GHG-related pipeline licence made under section 222.
850. Previously, subsection 222(8) required the route to be followed by the pipeline to be the
route shown in the plan accompanying the application, or a route that the Joint
Authority considered to be more appropriate. However, section 217 no longer specifies
that an application must be accompanied by a plan showing the route to be followed by
the pipeline. Rather, the plan will be one of the documents that will be required to
accompany the approved application form - see discussion at item 48.
851. This item therefore removes the specific reference to the form accompanying the
application in subsection 222(8). In practice, the offer document will continue to
specify either the route shown in the plan, or a route that the Joint Authority considers
to be more appropriate
Item 61: After subsection 223(2)
852. This item adds new subsection (2A) to section 223 of the OPGGS Act, which provides
additional grounds for a refusal to grant a petroleum-related pipeline licence to an
applicant who is the petroleum production licensee. The Joint Authority may refuse to
grant the pipeline licence to the applicant if it is not satisfied of the matters (if any)
prescribed by the regulations.
853. Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to construct and operate petroleum-
related pipelines in offshore areas. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
854. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
855. These amendments will provide the Joint Authority with administrative discretion in
relation to whether to refuse to grant a pipeline licence, however consultation on the
decision is required under section 262. The amendments do not provide for merits
review of the Joint Authority's decision. The decision concerns the grant of titles and
the imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
143
Item 62: At the end of section 223
856. This item adds new subsections (4) and (5) to section 223 of the OPGGS Act.
857. Under new subsection (4), the Joint Authority must have regard to any matters
prescribed in the regulations when deciding whether to refuse to grant a petroleum-
related pipeline licence to a person who is not the petroleum production licensee under
subsection 223(3). This does not limit the matters that the Joint Authority may take into
account when deciding whether to refuse to grant the licence. Enabling the regulations
to prescribe additional matters will provide the Government with the flexibility to
provide for other matters that are necessary and appropriate for determining the
suitability of those who wish to construct and operate petroleum-related pipelines in
offshore areas. These matters might include, for example, additional matters that go to
the adequacy of the corporate governance of the applicant.
858. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
859. New subsection (5) provides for the refusal of the grant of a petroleum-related pipeline
licence to any applicant on grounds other than those specified in other subsections in
section 223. The Joint Authority must refuse to grant the licence if the Joint Authority
is not satisfied that the technical advice and financial resources available to the
applicant after the licence is granted are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
860. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
861. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter or remain in the offshore
regime, which in turn will reduce the risk that an entity who does not meet these
suitability requirements will be granted a title. The policy rationale includes creating
confidence in the offshore regime and protecting the taxpayer, but does not aim to
provide due diligence for investors.
862. These amendments will provide the Joint Authority with administrative discretion in
relation to whether to refuse to grant a petroleum-related pipeline licence, however
consultation on the decision is required under section 262. The amendments do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
144
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 63: After subsection 224(2)
863. This item adds new subsection (2A) to section 224 of the OPGGS Act, which provides
additional grounds for a refusal to grant a GHG-related pipeline licence to an applicant
who is a licensee of a petroleum production licence. The Joint Authority may refuse to
grant the pipeline licence to the applicant if it is not satisfied of the matters (if any)
prescribed by the regulations.
864. Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to construct and operate GHG-related
pipelines in offshore areas. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
865. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
866. These amendments will provide the Joint Authority with administrative discretion in
addition to whether to refuse to grant a GHG-related pipeline licence, however
consultation on the decision is required under section 262. The amendments do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 64: After subsection 224(4)
867. This item adds new subsection (4A) to section 224 of the OPGGS Act, which provides
additional grounds for a refusal to grant a GHG-related pipeline licence to an applicant
who is the licensee of a GHG injection licence. The Joint Authority may refuse to grant
the pipeline licence to the applicant if it is not satisfied of the matters (if any)
prescribed in the regulations.
868. Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
145
determining the suitability of those who wish to construct and operate GHG-related
pipelines in offshore areas. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
869. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
870. These amendments will provide the Joint Authority with administrative discretion in
relation to whether to refuse to grant a GHG-related pipeline licence, however
consultation on the decision is required under section 262. The amendments do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 65: At the end of section 224
871. This item adds new subsections (6) and (7) to section 224 of the OPGGS Act.
872. Under new subsection (6), the Joint Authority must have regard to any matters
prescribed in the regulations when deciding whether to refuse to grant a GHG-related
pipeline licence to a person who is not the greenhouse gas injection licensee under
subsection 224(5). This does not limit the matters that the Joint Authority may take into
account when deciding whether to refuse to grant the licence. Enabling the regulations
to prescribe additional matters will provide the Government with the flexibility to
provide for other matters that are necessary and appropriate for determining the
suitability of those who wish to construct and operate GHG-related pipelines in
offshore areas. These matters might include, for example, additional matters that go to
the adequacy of the corporate governance of the applicant.
873. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
874. New subsection (7) provides for the refusal of the grant of a GHG-related pipeline
licence to any applicant on grounds other than those specified in other subsections in
section 224. The Joint Authority must refuse to grant the licence if the Joint Authority
is not satisfied that the technical advice and financial resources available to the
applicant after the licence is granted are sufficient to:
146
a. carry out the operations and works that will be authorised by the licence; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
875. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
876. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter or remain in the offshore
regime, which in turn will reduce the risk that an entity who does not meet these
suitability requirements will be granted a title. The policy rationale includes creating
confidence in the offshore regime and protecting the taxpayer, but does not aim to
provide due diligence for investors.
877. These amendments will provide the Joint Authority with administrative discretion in
relation to whether to refuse to grant a GHG-related pipeline licence, however
consultation on the decision is required under section 262. The amendments do not
provide for merits review of the Joint Authority's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 66: Subsection 226(2)
878. This item repeals subsection 226(2) of the OPGGS Act and substitutes new subsections
226(2) and (2A), which varies the requirements for applications for a variation of a
pipeline licence by the licensee. The notes at the end of subsection (2A) are replicated
from the notes at the end of the previous subsection 226(2).
879. Previously, subsection (2) set out prescriptive application requirements, requiring
applications made under section 226 to be accompanied by details of the applicant's
proposed variation and the reasons for the variation.
880. Under new subsection (2), an application for a variation of a pipeline licence must be
made in the form approved by the Titles Administrator. The application must also be
accompanied by any information or documents required by the form.
881. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
147
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
882. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to vary the pipeline
license, which includes the matters that were previously prescribed in subsection 226(2)
(such as the details of, and the reasons for, the variation).
883. New subsection (2A) specifies a period within which information or documents
required to accompany an application made under section 226 will be taken to
accompany the application, which is before the end of the 10-day period that began on
the day after the application was made. New subsection (2A) provides applicants with
flexibility in making applications, particularly if, for example, information or
documents will be given from various sources. Specifying a period within which
information or documents are required to be given ensures applications, including any
information or documents required to accompany applications, are made within a
reasonable period.
Item 67: Subsection 226(4)
884. This item amends subsection 226(4) to remove reference to subsection (3) and
substitute reference to subsection (4A). See the discussion in the next item.
Item 68: After subsection 226(4)
885. This item inserts new subsections (4A) and (4B) to section 226 of the OPGGS Act,
which set out the criteria that the Joint Authority must and may have regard to in
deciding whether or not to vary a pipeline licence under subsection 226(4).
886. In deciding whether or not to vary a licence, the Joint Authority must have regard to
any submissions made to the Titles Administrator under subsection 226(3). The Joint
Authority may have regard to the matters specified in subsection 226(4B). These
matters go to determining whether or not the applicant is suitable to hold the licence as
varied. These matters include whether the technical advice and financial resources
available to the applicant are sufficient to:
a. carry out the operations and works that will be authorised by the licence as varied;
and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence as varied.
887. When considering the technical and financial resources available to the applicant it
would be legitimate for the Joint Authority to consider other title holdings held by the
applicant. The Joint Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the licence as varied, in addition to its work and obligations under any existing
titles.
148
888. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants, which in turn will reduce the risk that
an entity who does not meet these suitability requirements will be granted a variation of
a title. The policy rationale includes creating confidence in the offshore regime and
protecting the taxpayer, but does not aim to provide due diligence for investors.
889. The Joint Authority may also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to construct and operate
petroleum or GHG-related pipelines in offshore areas. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
890. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
891. The Joint Authority may, rather than must, take the matters in subsection 226(4B) into
account, as the criteria will not be relevant in all circumstances. For example, in many
cases an application to vary a pipeline licence relates to minor administrative matters
only, and it would be unnecessarily burdensome to require the Joint Authority to take
into account financial and technical matters in such a case. However, the Joint
Authority would take the matters into account when considering applications to make
more substantive variations to a pipeline licence.
892. New subparagraph 226(4A)(b)(ii) provides that the Joint Authority may also have
regard to any other matters the Joint Authority considers relevant. This ensures it is
clear that the Joint Authority can consider other relevant matters that may not be
specified in the provision or the regulations when deciding whether to vary a pipeline
licence.
893. These amendments will provide the Joint Authority with administrative discretion in
addition to the existing decision-making power provided for in subsection 226(4), but
do not provide for merits review of the Joint Authority's decision. The decision
concerns the variation of titles. Decisions concerning the variation of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
149
Item 69: At the end of section 255
894. This item adds new subsection (3) to section 255 of the OPGGS Act, which applies
standard procedures for petroleum titles applications and cash bids or tie-breaking cash
bids that are made under the OPGGS Act.
895. New subsection 255(3) provides that the Titles Administrator must publish on its
website a copy of the instrument approving a manner for making an application, cash-
bid or tie-breaking cash-bid. This instrument will set out the approved manner or
manners for applications to enable applicants to comply with the requirements in the
Act.
896. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
897. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 70: After subsection 256(4)
898. This item inserts new subsection 256(4A), specifying a period within which an
application fee, which is required to accompany an application referred to in subsection
256(1), will be taken to accompany the application. The application fee must be
received before the end of the 10-day period beginning on the day after the application
was made. New subsection (4A) provides applicants with flexibility in making payment
to accompany their applications, particularly if, for example, there is a delay in
electronic transfers or clearance of cheques. Specifying a period within which payment
is required to be made ensures applications, and any accompanying payment, are made
within a reasonable period.
Item 71: After subsection 264(2)
899. This item inserts new subsection (2AA) into section 264 of the OPGGS Act, which sets
out the criteria that the Joint Authority may have regard to in deciding whether or not to
vary, suspend or exempt a permittee, lessee or licensee from compliance with any of
the conditions to which the permit, lease or licence is subject under subsection 264(2).
900. In making a decision, the Joint Authority may have regard to the matters specified in
new subsection 264(2AA). These matters go to determining whether or not the
permittee, lessee or licensee is suitable to continue to carry out operations under the
permit, lease or licence if the condition is varied or suspended, or if the permittee,
lessee or licensee is exempted from compliance with the condition. These matters
include whether the technical advice and financial resources available to the permittee,
lessee or licensee are sufficient to:
a. carry out the operations and works that will be authorised by the permit, lease or
licence if the condition is varied or suspended, or the permittee, lessee or licensee
is exempted from compliance with the condition; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the permit, lease or licence if the condition
150
is varied or suspended, or the permittee, lessee or licensee is exempted from
compliance with the condition.
901. When considering the technical and financial resources available to the permittee,
lessee or licensee it would be legitimate for the Joint Authority to consider other title
holdings held by the permittee, lessee or licensee. The Joint Authority may decide that
the permittee, lessee or licensee does not have sufficient financial and technical
resources available to undertake work and discharge obligations if the title condition is
varied or suspended, in addition to its work and obligations under any existing titles.
902. Variation or suspension of, or exemption from compliance with, the conditions of a
permit, lease or licence may impact the technical and financial capacity of the
permittee, lessee or licensee to carry out its activities and discharge its obligations.
While this is most likely in the case of a variation of title conditions (e.g. if a
requirement to undertake a seismic survey is replaced with a requirement to drill a
well), there are also circumstances in which a suspension or exemption may affect
technical and financial capacity. This may be the case, for example, if a suspension of
title conditions is accompanied by an extension of the term of the title - there may be a
greater risk of a change of circumstances over the extended term, particularly if the
term is extended on more than one occasion.
903. The Joint Authority may also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for making a decision under subsection 264(2). These matters might
include, for example, additional matters that go to the ongoing adequacy of the
corporate governance of the permittee, lessee or licensee.
904. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria.
905. New paragraph 264(2AA)(c) provides that the Joint Authority may also have regard to
any other matters the Joint Authority considers relevant. This ensures it is clear that the
Joint Authority can consider other relevant matters that may not be specified in the
provision or the regulations when deciding whether to vary or suspend, or to exempt a
permittee, lessee or licensee from compliance with, a condition or the permit, lease or
licence.
906. The Joint Authority may, rather than must, take the matters in new subsection
264(2AA) into account, as the criteria will not be relevant in all circumstances. For
example, the criteria is more likely to be relevant to applications relating to the
conditions of an exploration title, rather a production title, and is less likely to be
relevant to an application for an exemption from compliance with a title condition.
907. These amendments will provide the Joint Authority with administrative discretion in
addition to the existing decision-making power provided for in subsection 264(2), but
do not provide for merits review of the Joint Authority's decision. The decision
concerns the imposition of title conditions. Decisions concerning the imposition of title
151
conditions are matters of high government policy, involving considerations of national
economic and environmental policy. It would therefore be inappropriate to provide for
merits review for this decision, as to allow for an appeal on the merits of the decision
would, in effect, amount to contesting the Government's resource management strategy
and policy of managing the nation's offshore resources in the public interest.
Item 72: Subsection 295(1) (table item 3, column headed "In this case ... ")
908. This item amends item 3 of the table in subsection 295(1) of the OPGGS Act to include
reference to new paragraph 362(1)(i), inserted by item 163 of this Schedule. See the
discussion at that item.
909. The amendment of item 3 of the table in subsection 295(1) ensures that that item
applies to continue a greenhouse gas assessment permit in force for a period of 90 days
if the responsible Commonwealth Minister refuses to grant a greenhouse gas injection
licence to the permittee on the ground covered by paragraph 362(1)(i).
Item 73: Subsection 295A(1) (table item 3, column headed "In this case ... ")
910. This item amends item 3 of the table in subsection 295A(1) of the OPGGS Act to
include reference to new paragraph 368B(1)(ja), inserted by item 170 of this Schedule.
See the discussion at that item.
911. The amendment of item 3 of the table in subsection 295A(1) ensures that that item
applies to continue a cross-boundary greenhouse gas assessment permit in force for a
period of 90 days if the Cross-boundary Authority refuses to grant a cross-boundary
greenhouse gas injection licence to the permittee on the ground covered by paragraph
368B(1)(ja).
Item 74: Subsection 296(3)
912. This item repeals subsection 296(3) of the OPGGS Act (excluding the heading) and
substitutes new subsections 296(3) and (3A), which varies the requirements for
applications for the grant of a work-bid GHG assessment permit. The notes at the end
of subsection (3A) are replicated from the notes at the end of the previous subsection
296(3).
913. Previously, subsection (3) set out prescriptive application requirements, requiring
applications made under section 296 to be accompanied by details of the applicant's
proposals for work and expenditure in relation to the block or blocks specified in the
application, the technical qualifications of the applicant and the applicant's employees,
and the technical advice and financial resources available to the applicant.
914. Under new subsection (3), an application for a work-bid GHG assessment permit must
be made in the form approved by the Titles Administrator. The application must also be
accompanied by any information or documents required by the form.
915. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
152
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
916. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give the applicant
an offer document for the grant of a GHG assessment permit, which includes the
matters that were previously prescribed in subsection 296(3) (such as information or
documents in relation to the technical advice and the financial resources available to the
applicant).
917. New subsection (3A) specifies a period within which information or documents
required to accompany an application made under section 296 will be taken to
accompany the application, which is before the end of the period specified in the notice
published in the Gazette inviting applications for the grant of a permit under subsection
296(1). New subsection (3A) provides applicants with flexibility in making
applications, particularly if, for example, information or documents will be given from
various sources. Specifying a period within which information or documents are
required to be given ensures applications, including any information or documents
required to accompany applications, are made within a reasonable period.
Item 75: After subsection 298(2)
918. This item adds new subsections (2A) and (2B) to section 298 of the OPGGS Act, which
set out the criteria that the responsible Commonwealth Minister must and may have
regard to in deciding whether or not to give to an applicant an offer document for the
grant of a work-bid GHG assessment permit under subsection 298(2).
919. In deciding whether or not to give an offer document for a permit, the Minister must
have regard to the matters specified in subsection (2B). These matters go to
determining whether or not the applicant is suitable to hold the permit. These matters
include:
a. whether the technical advice and financial resources available to the applicant after
the offer is accepted are sufficient to:
i. carry out the operations and works that will be authorised by the permit;
and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the Act, in relation to the permit; and
b. the matters specified in section 695YB as they apply to the applicant, including any
officers of the applicant if the applicant is a body corporate.
920. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold a GHG assessment permit.
921. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
153
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
922. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
923. The Minister must also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration
activities in offshore areas. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
924. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
925. New paragraph 298(2A)(b) provides that the Minister may also have regard to any
other matters the Minister considers relevant. This ensures it is clear that the Minister
can consider other relevant matters that may not be specified in the provision or the
regulations when deciding whether to offer to grant a work-bid GHG assessment
permit.
926. These amendments will provide the Minister with administrative discretion in relation
to the existing decision-making power provided for in subsection 298(2), but do not
provide for merits review of the Minister's decision. This is because the decision
involves the allocation of permits, which authorise the registered holder to carry out
GHG assessment activities in the specified block or blocks, between competing
applicants. If there are multiple applicants, those found to be suitable are ranked based
on who, in the Minister's opinion, is the most deserving of the grant of the permit. This
involves an assessment of, amongst other matters, each suitable applicants' proposed
work program (that is, the applicant's proposed operations and works to be carried out
in the block or blocks and any other criteria under section 299). If such a decision was
able to be reviewed on its merits, the party who has been allocated the permit in relation
to the block or blocks would be affected by the overturning of the original decision.
927. Additionally, decisions concerning the grant of titles and the imposition of title
conditions are matters of high government policy, involving considerations of national
economic and environmental policy. It would therefore be inappropriate to provide for
merits review for this decision, as to allow for an appeal on the merits of the decision
would, in effect, amount to contesting the Government's resource management strategy
and policy of managing the nation's offshore resources in the public interest.
154
Item 76: Subsection 302A(3)
928. This item repeals subsection (3) of section 302A of the OPGGS Act and substitutes
new subsections (3), (3A) and (3B), which prescribe the requirements for applications
for a consolidated work-bid GHG assessment permit. The notes at the end of subsection
(3B) are replicated from the notes at the end of the previous subsection 302A(3).
929. Previously, subsection (3) set out prescriptive application requirements, requiring
applications made under section 302A to be accompanied by the details of the
applicant's proposals for work and expenditure and information specified in the
regulations (if any).
930. Under new subsection (3), an application for a consolidated work-bid GHG assessment
permit must be made in the form approved by the Titles Administrator. The application
must also be accompanied by any information or documents required by the form.
931. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
932. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to grant the
consolidated work-bid GHG assessment permit, which includes the matters that were
previously prescribed in subsection 302A(3) (such as information or documents in
relation to the applicant's proposals for work and expenditure).
933. New subsection (3A) specifies a period within which information or documents
required to accompany an application made under subsection 302A(2) will be taken to
accompany the application, which is the time before the expiry date of at least one of
the existing permits. New subsection (3A) provides applicants with flexibility in
making applications, particularly if, for example, information or documents will be
given from various sources. Specifying a period within which information or
documents are required to be given ensures applications, including any information or
documents required to accompany applications, are made within a reasonable period.
934. New subsection (3B) dis-applies, for the operation of new subsection (3A), the effect of
subsection 302A(4). Subsection 302A(4) continues a permit or permits in force under
certain circumstances. The effect of new subsection (3B) is that the applicant must
provide the required information or documents before the time at which the permit or
permits would ordinarily have expired, if not for the application of subsection 302A(4).
155
Item 77: Section 302B
935. This item inserts '(1)' to make previous section 302B of the OPGGS Act subsection
302B(1), as a consequence of the addition of subsections made by the next item.
Item 78: At the end of section 302B
936. This item adds new subsections (2) and (3) to section 302B of the OPGGS Act, which
set out the criteria that the responsible Commonwealth Minister must and may have
regard to in deciding whether or not to give to an applicant an offer document for the
grant of a consolidated work-bid GHG assessment permit under subsection 302B(1).
937. In deciding whether or not to grant the permit, the Minister must have regard to the
matters specified in subsection (3). These matters go to determining whether or not the
applicant is suitable to hold the permit. These matters include whether the technical
advice and financial resources available to the applicant after the permit is granted are
sufficient to:
a. carry out the operations and works that will be authorised by the permit; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the permit.
938. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
939. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
940. The Minister must also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration
activities in the specified block or blocks. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
941. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
942. New paragraph 302B(2)(b) provides that the Minister may also have regard to any other
matters the Minister considers relevant. This ensures it is clear that the Minister can
consider other relevant matters that may not be specified in the provision or the
156
regulations when deciding whether to offer to grant a consolidated work-bid GHG
assessment permit.
943. These amendments will provide the Minister with administrative discretion in relation
to whether or not the Minister is prepared to grant the permit, but do not provide for
merits review of the Minister's decision. Decisions concerning the grant of permits are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 79: Paragraph 303(6)(a)
944. This item repeals existing paragraph (6)(a) of section 303 of the OPGGS Act and
substitutes new paragraphs (a) and (aa), which prescribe requirements for applications
for a cash-bid GHG assessment permit.
945. Previously, paragraph (a) set out prescriptive application requirements, requiring
applications made under section 303 to be accompanied by details of the technical
qualifications of the applicant and its employees, the technical advice available to the
applicant and the financial resources available to the applicant.
946. Under new paragraph (a), an application for a cash-bid GHG assessment permit must
be made in the form approved by the Titles Administrator. Under new paragraph (aa),
the application must also be accompanied by any information or documents required by
the form.
947. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
948. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give an offer to an
applicant for a cash-bid GHG assessment permit), which includes the matters that were
previously prescribed in paragraph 303(6)(a) (such as information or documents in
relation to the technical advice and financial resources available to the applicant).
Item 80: After subsection 303(6) (before the notes)
949. This item inserts subsection (7) to section 303 of the OPGGS Act. New subsection (7)
specifies a period within which information or documents required to accompany an
157
application made under section 303 will be taken to accompany the application, which
is before the end of the period specified in the notice published in the Gazette inviting
applications for the grant of a permit under subsection 303(1). New subsection (7)
provides applicants with flexibility in making applications, particularly if, for example,
information or documents will be given from various sources. Specifying a period
within which information or documents are required to be given ensures applications,
including any information or documents required to accompany applications, are made
within a reasonable period.
Item 81: At the end of section 305
950. This item adds new subsections (3) and (4) to section 305 of the OPGGS Act, which set
out the criteria that the responsible Commonwealth Minister must and may have regard
to in deciding whether or not to give to an applicant an offer document for the grant of
a cash-bid GHG assessment permit under subsection 305(2), where there is only one
application.
951. In deciding whether or not to grant the permit, the Minister must have regard to the
matters specified in the notice under paragraph 303(3)(b), and the matters specified in
subsection 305(4). These matters go to determining whether or not the applicant is
suitable to hold the permit. These matters include:
a. whether the technical advice and financial resources available to the applicant after
the permit is granted are sufficient to:
i. carry out the operations and works that will be authorised by the permit;
and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the Act, in relation to the permit; and
b. the matters specified in section 695YB as they apply to the applicant, including any
officers of the applicant if the applicant is a body corporate.
952. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold a GHG assessment permit.
953. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
954. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
955. The Minister must also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
158
determining the suitability of those who wish to conduct GHG-related exploration
activities in offshore areas. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
956. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
957. New paragraph 305(3)(b) provides that the Minister may also have regard to any other
matters the Minister considers relevant. This ensures it is clear that the Minister can
consider other relevant matters that may not be specified in the provision or the
regulations when deciding whether to offer to grant a cash-bid GHG assessment permit.
958. These amendments will provide the Minister with administrative discretion in relation
to whether or not the Minister is prepared to grant the permit, but do not provide for
merits review of the Minister's decision. Decisions concerning the grant of permits are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 82: After subsection 306(3)
959. This item inserts new subsections (3A) and (3B) to section 306 of the OPGGS Act,
which set out the criteria that the responsible Commonwealth Minister must and may
have regard to in deciding whether or not to give to an applicant an offer document for
the grant of a cash-bid GHG assessment permit under subsection 306(3), where there
are two or more applications. The criteria are in addition to the criteria specified in the
table in subsection 306(3).
960. In deciding whether or not to grant the permit to the person referred to in column 3 of
the table in subsection 306(3), the Minister must have regard to the matters specified in
the notice under paragraph 303(3)(b), and the matters specified in subsection 306(3B).
These matters go to determining whether or not the applicant is suitable to hold the
permit. These matters include:
a. whether the technical advice and financial resources available to the applicant after
the permit is granted are sufficient to:
i. carry out the operations and works that will be authorised by the permit;
and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the Act, in relation to the permit; and
b. the matters specified in section 695YB as they apply to the applicant, including any
officers of the applicant if the applicant is a body corporate.
159
961. The matters specified in section 695YB go to the applicant's compliance history and
experience in offshore petroleum or GHG operations, and will enable the Joint
Authority to scrutinise the suitability of the applicant to hold a GHG assessment permit.
962. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
963. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
964. The Minister must also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration
activities in offshore areas. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
965. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
966. New paragraph 306(3A)(b) provides that the Minister may also have regard to any
other matters the Minister considers relevant. This ensures it is clear that the Minister
can consider other relevant matters that may not be specified in the provision or the
regulations when deciding whether to offer to grant a cash-bid GHG assessment permit.
967. These amendments will provide the Minister with administrative discretion in relation
to the existing decision-making power provided for in section 306, but do not provide
for merits review of the Minister's decision. This is because the decision involves the
grant of permits, which authorise the registered holder to carry out GHG assessments in
a specified block or blocks, between competing applicants. If there are multiple
applicants, the Joint Authority must reject an application or make an offer within the
circumstances determined under section 306. This involves an assessment of, amongst
other matters, the highest bid for the grant of a GHG assessment permit. If such a
decision was able to be reviewed on its merits, the party who has been allocated the
permit in relation to the block or blocks would be affected by the overturning of the
original decision.
968. Additionally, decisions concerning the grant of titles and the imposition of title
conditions are matters of high government policy, involving considerations of national
economic and environmental policy. It would therefore be inappropriate to provide for
160
merits review for this decision, as to allow for an appeal on the merits of the decision
would, in effect, amount to contesting the Government's resource management strategy
and policy of managing the nation's offshore resources in the public interest.
Item 83: Subsection 307A(3)
969. This item repeals subsection (3) of section 307A of the OPGGS Act and substitutes
new subsections (3), (3A) and (3B), which prescribe the requirements for applications
for a cross-boundary GHG assessment permit. The notes at the end of subsection (3B)
are replicated from the notes at the end of the previous subsection 307A(3).
970. Previously, subsection (3) set out prescriptive application requirements, requiring
applications made under section 307A to be accompanied by the details of the
applicant's proposals for work and expenditure and information specified in the
regulations (if any).
971. Under new subsection (3), an application for a cross-boundary GHG assessment permit
must be made in the form approved by the Titles Administrator. The application must
also be accompanied by any information or documents required by the form.
972. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
973. Practically, the approved form will only require information, and any accompanying by
information or documents, relevant for a decision whether or not to grant the cross-
boundary GHG assessment permit, which includes the matters that were previously
prescribed in subsection 307A(3) (such as information or documents in relation to the
applicant's proposals for work and expenditure).
974. New subsection (3A) specifies a period within which information or documents
required to accompany an application made under subsection 307A(2) will be taken to
accompany the application, which is before the earlier of the expiry date of the existing
GHG assessment permit or the expiry of the existing State/Territory GHG assessment
title. New subsection (3A) provides applicants with flexibility in making applications,
particularly if, for example, information or documents will be given from various
sources. Specifying a period within which information or documents are required to be
given ensures applications, including any information or documents required to
accompany applications, are made within a reasonable period.
975. New subsection (3B) dis-applies, for the operation of new subsection (3A), the effect of
subsection 307A(4). Subsection 307A(4) continues a permit in force under certain
161
circumstances. The effect of new subsection (3B) is that the applicant must provide the
required information or documents before the time at which the permit would ordinarily
have expired, if not for the application of subsection 307A(4).
Item 84: At the end of section 307B
976. This item adds new subsections (3) and (4) to section 307B of the OPGGS Act, which
set out the criteria that the Cross-boundary Authority must and may have regard to in
deciding whether or not to give to an applicant an offer document for the grant of a
cross-boundary GHG assessment permit under subsection 307B(2).
977. In deciding whether or not to grant the permit, the Authority must have regard to the
matters in subsection 307B(4). These matters go to determining whether or not the
applicant is suitable to hold the permit. These matters include whether the technical
advice and financial resources available to the applicant after the permit is granted are
sufficient to:
a. carry out the operations and works that will be authorised by the permit; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the permit.
978. When considering the technical and financial resources available to the applicant it
would be legitimate for the Cross-boundary Authority to consider other title holdings
held by the applicant. The Authority may decide that the applicant does not have
sufficient financial and technical resources available to undertake work and discharge
obligations under the title being applied for, in addition to its work and obligations
under any existing titles.
979. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
980. The Authority must also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration
activities. These matters might include, for example, additional matters that go to the
adequacy of the corporate governance of the applicant.
981. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
982. New paragraph 307B(3)(b) provides that the Authority may also have regard to any
other matters the Authority considers relevant. This ensures it is clear that the Authority
can consider other relevant matters that may not be specified in the provision or the
162
regulations when deciding whether to offer to grant a cross-boundary GHG assessment
permit.
983. These amendments will provide the Authority with administrative discretion in relation
to whether or not the Authority is prepared to grant the permit, but do not provide for
merits review of the decision. Decisions concerning the grant of permits are matters of
high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 85: Subsection 308(5)
984. This item repeals subsection (5) of section 308 of the OPGGS Act and substitutes new
subsections (5), (5A) and (5B), which prescribe the requirements for applications for
the renewal of a GHG assessment permit. The notes at the end of subsection (5B) are
replicated from the notes at the end of the previous subsection 308(5).
985. Previously, subsection (5) set out prescriptive application requirements, requiring
applications made under section 308 to be accompanied by the details of the applicant's
proposals for work and expenditure and information specified in the regulations (if
any).
986. Under new subsection (5), an application for a renewal of a GHG assessment permit
must be made in the form approved by the Titles Administrator. The application must
also be accompanied by any information or documents required by the form.
987. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
988. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give to the
applicant an offer document for the renewal of a GHG assessment permit, which
includes the matters that were previously prescribed in subsection 308(5) (such as
information or documents in relation to the applicant's proposals for work and
expenditure).
989. New subsection (5A) specifies a period within which information or documents
required to accompany an application to renew a GHG assessment permit will be taken
to accompany the application, which is before the expiry date of the permit. New
163
subsection (5A) provides applicants with flexibility in making applications, particularly
if, for example, information or documents will be given from various sources.
Specifying a period within which information or documents are required to be given
ensures applications, including any information or documents required to accompany
applications, are made within a reasonable period.
990. New subsection (5B) dis-applies, for the operation of new subsection (5A), the effect of
subsection 308(6). Subsection 308(6) continues a permit in force under certain
circumstances. The effect of new subsection (5B) is that the applicant must provide the
required information or documents before the time at which the permit would ordinarily
have expired, if not for the application of subsection 308(6).
Item 86: After paragraph 309(2)(b)
991. This item inserts new paragraphs (c) and (d) in subsection 309(2) of the OPGGS Act,
which set out additional criteria that the responsible Commonwealth Minister must be
satisfied of in order for the Minister to be required to give to an applicant an offer
document for the renewal of a GHG assessment permit under subsection 309(2).
992. In addition to the criteria specified in paragraphs 309(2)(a) and (b), the Minister must
be satisfied of the matters specified in paragraph (c) and any matters prescribed by the
regulations (paragraph (d)). These matters go to determining whether or not the
applicant is suitable to hold the permit. These matters include whether the technical
advice and financial resources available to the applicant after the offer is accepted are
sufficient to:
a. carry out the operations and works that will be authorised by the permit; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the permit.
993. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
994. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
995. The Minister must also be satisfied of any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration
activities in offshore areas. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
996. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
164
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
997. These amendments will provide the Minister with administrative discretion in relation
to whether or not the Minister is prepared to renew the permit, but do not provide for
merits review of the Minister's decision. Decisions concerning the grant of permits are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 87: After subsection 309(3)
998. This item inserts new subsection (3A) in section 309 of the OPGGS Act, which
provides that the responsible Commonwealth Minister must have regard to the matters
specified when deciding whether or not there are sufficient grounds to warrant the
granting of the renewal of the GHG assessment permit for the purposes of subsection
309(3). These matters include whether the technical advice and financial resources
available to the applicant after the offer is accepted are sufficient to:
a. carry out the operations and works that will be authorised by the permit; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the permit.
999. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1000. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1001. The Minister must also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration
activities in offshore areas. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
1002. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
165
understand and comply with these additional criteria, including through an update to the
approved application form.
1003. New subsection 309(3A) does not limit paragraph 309(3)(c), which ensures that the
Minister can take any other matters that the Minister considers relevant into account
when deciding whether the Minister is satisfied that there are sufficient grounds to
warrant the granting of the renewal of the permit.
1004. These amendments will provide the Minister with administrative discretion in relation
to whether or not the Minister is prepared to renew the permit, but do not provide for
merits review of the Minister's decision. Decisions concerning the grant of permits are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 88: After subsection 309(4)
1005. This item inserts new subsection (4A) in section 309 of the OPGGS Act, which
provides that the responsible Commonwealth Minister must have regard to the matters
specified when deciding whether or not there are sufficient grounds to warrant the
granting of the renewal of the GHG assessment permit for the purposes of subsection
309(4). These matters include whether the technical advice and financial resources
available to the applicant after the offer is accepted are sufficient to:
a. carry out the operations and works that will be authorised by the permit; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the permit.
1006. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1007. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1008. The Minister must also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration
activities in offshore areas. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
1009. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
166
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1010. New subsection 309(4A) does not limit paragraph 309(4)(c), which ensures that the
Minister may take any other matters that the Minister considers relevant into account in
deciding whether the Minister is satisfied that there are sufficient grounds to warrant
the granting of the renewal of the permit.
1011. These amendments will provide the Minister with administrative discretion in relation
to whether or not the Minister is prepared to renew the permit, but do not provide for
merits review of the Minister's decision. Decisions concerning the grant of permits are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 89: After subsection 310(3)
1012. This item inserts new subsections (3A) and (3B) to section 310 of the OPGGS Act,
which provides additional grounds for a refusal to grant a renewal of a GHG
assessment permit. Under new subsection (3A), the responsible Commonwealth
Minister must refuse to renew the permit if the Minister is not satisfied that the
technical advice and financial resources available to the applicant after the permit is
granted are sufficient to:
a. carry out the operations and works that will be authorised by the permit; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the permit.
1013. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1014. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1015. Under new subsection (3B), the Minister may refuse to renew the permit if the Minister
is not satisfied of the matters prescribed in the regulations (if any). Enabling the
regulations to prescribe additional matters will provide the Government with the
flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration
167
activities in offshore areas. These matters might include, for example, additional
matters that go to the adequacy of the corporate governance of the applicant.
1016. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1017. These amendments will provide the Minister with administrative discretion in relation
to whether or not the Minister is prepared to renew the permit, however consultation on
the decision is required under section 434. The amendments but do not provide for
merits review of the Minister's decision. Decisions concerning the grant of permits are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 90: Subsection 311A(7)
1018. This item fixes an incorrect reference to the Cross-boundary Authority in subsection
311A(7). The subsection is amended to refer instead to the Titles Administrator, who is
responsible for accepting applications made under subsection 311A(1).
Item 91: Subsection 311A(8)
1019. This item repeals subsection (8) of section 311A of the OPGGS Act and substitutes
new subsections (8), (8A) and (8B), which prescribe the requirements for applications
for the renewal of a cross-boundary GHG assessment permit. The notes at the end of
subsection (8B) are replicated from the notes at the end of the previous subsection
311A(8).
1020. Previously, subsection (8) set out prescriptive application requirements, requiring
applications made under section 311A to be accompanied by the details of the
applicant's proposals for work and expenditure and information specified in the
regulations (if any).
1021. Under new subsection (6), an application for a renewal of a cross-boundary GHG
assessment permit must be made in the form approved by the Titles Administrator. The
application must also be accompanied by any information or documents required by the
form.
1022. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
168
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1023. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give to the
applicant an offer document for the renewal of a cross-boundary GHG assessment
permit, which includes the matters that were previously prescribed in subsection
311A(8) (such as information or documents in relation to the applicant's proposals for
work and expenditure).
1024. New subsection (8A) specifies a period within which information or documents
required to accompany an application to renew a cross-boundary GHG assessment
permit will be taken to accompany the application, which is before the expiry date of
the permit. New subsection (8A) provides applicants with flexibility in making
applications, particularly if, for example, information or documents will be given from
various sources. Specifying a period within which information or documents are
required to be given ensures applications, including any information or documents
required to accompany applications, are made within a reasonable period.
1025. New subsection (8B) dis-applies, for the operation of new subsection (8A), the effect of
subsection 311A(9). Subsection 311A(9) continues a permit in force under certain
circumstances. The effect of new subsection (8B) is that the applicant must provide the
required information or documents before the time at which the permit would ordinarily
have expired, if not for the application of subsection 311A(9).
Item 92: Subsection 311B(2)
1026. This item repeals and substitutes a new subsection 311B(2), which sets out the criteria
that must be satisfied for the Cross-boundary Authority to be required to renew a cross-
boundary GHG assessment permit.
1027. As for the previous section 311B, the permit conditions and relevant provisions of the
OPGGS Act and regulations must have been complied with. In addition, the Authority
must be satisfied as to whether the technical advice and financial resources available to
the applicant after the permit is granted are sufficient to:
a. carry out the operations and works that will be authorised by the permit; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the permit.
1028. When considering the technical and financial resources available to the applicant it
would be legitimate for the Authority to consider other title holdings held by the
applicant. The Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
1029. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
169
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1030. The Authority must also be satisfied of any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration
activities. These matters might include, for example, additional matters that go to the
adequacy of the corporate governance of the applicant.
1031. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1032. As for the previous subsection 311B(2), the Authority cannot renew the permit unless
the condition in paragraph 311B(2)(d) or (e) is met. The condition is that, where part of
the permit area is located in the coastal waters of a State or Territory, that State or
Territory must have consented to the giving of the offer document to the applicant.
1033. These amendments will provide the Authority with administrative discretion in relation
to whether or not the Authority is prepared to renew the permit, but do not provide for
merits review of the decision. Decisions concerning the grant of permits are matters of
high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 93: After subsection 311B(3)
1034. This item inserts new subsection (3A) in section 311B of the OPGGS Act, which
provides that the Cross-boundary Authority must have regard to the matters specified
when deciding whether or not there are sufficient grounds to warrant the granting of the
renewal of the cross-boundary GHG assessment permit for the purposes of subsection
311B(3). These matters include whether the technical advice and financial resources
available to the applicant after the offer is accepted are sufficient to:
a. carry out the operations and works that will be authorised by the permit; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the permit.
1035. When considering the technical and financial resources available to the applicant it
would be legitimate for the Authority to consider other title holdings held by the
applicant. The Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
170
under the title being applied for, in addition to its work and obligations under any
existing titles.
1036. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1037. The Authority must also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration
activities. These matters might include, for example, additional matters that go to the
adequacy of the corporate governance of the applicant.
1038. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1039. New subsection 311B(3A) does not limit paragraph 311B(3)(c), which ensures that the
Authority may take into account any other matters that the Authority considers relevant
when decided whether the Authority is satisfied that there are sufficient grounds to
warrant the granting of the renewal of the permit.
1040. These amendments will provide the Authority with administrative discretion in relation
to whether or not the Authority is prepared to renew the permit, but do not provide for
merits review of the decision. Decisions concerning the grant of permits are matters of
high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 94: After subsection 311C(2)
1041. This item inserts new subsections (2A) and (2B) to section 311C of the OPGGS Act,
which provide additional grounds for a refusal to grant a renewal of a cross-boundary
GHG assessment permit. Under subsection (2A), the Cross-boundary Authority must
refuse to renew the permit if the Authority is not satisfied that the technical advice and
financial resources available to the applicant after the permit is granted are sufficient to:
a. carry out the operations and works that will be authorised by the permit; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the permit.
1042. When considering the technical and financial resources available to the applicant it
would be legitimate for the Authority to consider other title holdings held by the
171
applicant. The Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
1043. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1044. Under subsection (2B), the Authority may refuse to renew the permit if the Authority is
not satisfied of the matters prescribed in the regulations (if any). Enabling the
regulations to prescribe additional matters will provide the Government with the
flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration
activities. These matters might include, for example, additional matters that go to the
adequacy of the corporate governance of the applicant.
1045. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1046. These amendments will provide the Authority with administrative discretion in relation
to whether or not the Authority is prepared to renew the permit, however consultation
on the decision is required under section 434A. The amendments but do not provide for
merits review of the decision. Decisions concerning the grant of permits are matters of
high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 95: Subsection 312(8)
1047. This item amends subsection 312(8) to provide for the Titles Administrator to approve
more than one manner in which an applicant may make a variation of an application
under section 312. See the discussion at the next item.
Item 96: After subsection 312(10)
1048. This item inserts new subsection 312(10A) into the OPGGS Act, which provides that
the Titles Administrator must publish on its website a copy of the instrument approving
a manner for giving notice of a variation of an application for the purposes of
subsection 312(8). This instrument will set out the approved manner or manners for
applications to enable applicants to comply with the requirements in subsection 312(8).
172
1049. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1050. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 97: Subsection 312A(8)
1051. This item amends subsection 312A(8) to provide for the Titles Administrator to
approve more than one manner in which an applicant may make a variation of an
application under section 312A. See the discussion at the next item.
Item 98: After subsection 312A(10)
1052. This item inserts new subsection 312A(10A) into the OPGGS Act, which provides that
the Titles Administrator must publish on its website a copy of the instrument approving
a manner for giving notice of a variation of an application for the purposes of
subsection 312A(8). This instrument will set out the approved manner or manners for
applications to enable applicants to comply with the requirements in subsection 312(8).
1053. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1054. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 99: Subsection 323(1) (table item 3, column headed "In this case ... ")
1055. This item amends item 3 of the table in subsection 323(1) of the OPGGS Act to include
reference to new paragraph 362(2)(i), inserted by item 165 of this Schedule. See the
discussion at that item.
1056. The amendment of table item 3 ensures that that item applies to keep a GHG holding
lease in force for 90 days if the responsible Commonwealth Minister refuses to grant a
GHG injection licence to the lessee on the ground covered by paragraph 362(2)(i).
Item 100: Subsection 323A(1) (table item 3, column headed "In this case ... ")
1057. This item amends item 3 of the table in subsection 323A(1) of the OPGGS Act to
include reference to new paragraph 368B(2)(ja), inserted by item 172 of this Schedule.
See the discussion at that item.
1058. The amendment of table item 3 ensures that that item applies to keep a cross-boundary
GHG holding lease in force for 90 days if the Cross-boundary Authority refuses to
grant a cross-boundary GHG injection licence to the lessee on the ground covered by
paragraph 368B(2)(ja).
Item 101: Subsection 324(7)
1059. This item repeals subsection (7) of section 324 of the OPGGS Act (excluding the
heading) and substitutes new subsections (7) and (7A), which prescribe the
requirements for applications for a GHG holding lease. The notes at the end of
173
subsection (7A) are replicated from the notes at the end of the previous subsection
324(7).
1060. Previously, subsection (7) set out prescriptive application requirements, requiring
applications made under section 324 to be accompanied by the details of the applicant's
proposals for work and expenditure and information specified in the regulations (if
any).
1061. Under new subsection (7), an application for a GHG holding lease must be made in the
form approved by the Titles Administrator. The application must also be accompanied
by any information or documents required by the form.
1062. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1063. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give to the
applicant an offer document for the grant of a GHG holding lease, which includes the
matters that were previously prescribed in subsection 324(7) (such as information or
documents in relation to the applicant's proposals for work and expenditure).
1064. New subsection (7A) specifies a period within which information or documents
required to accompany an application made under section 324 will be taken to
accompany the application, which is before the end of the application period. New
subsection (7A) provides applicants with flexibility in making applications, particularly
if, for example, information or documents will be given from various sources.
Specifying a period within which information or documents are required to be given
ensures applications, including any information or documents required to accompany
applications, are made within a reasonable period.
Item 102: Subsection 324(11)
1065. This item amends subsection 324(11) to provide for the Titles Administrator to approve
more than one manner in which an applicant may make a variation of an application for
a GHG holding lease. See the discussion at the next item.
Item 103: At the end of section 324
1066. This item adds new subsection (15) to the end of section 324 of the OPGGS Act, which
provides that the Titles Administrator must publish on its website a copy of the
instrument approving a manner for giving notice of a variation of an application for the
174
purposes of subsection 324(11). This instrument will set out the approved manner or
manners for applications to enable applicants to comply with the requirements in
subsection 324(11).
1067. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1068. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 104: After paragraph 325(1)(b)
1069. This item inserts new paragraphs (1)(c) and (d) in section 325 of the OPGGS Act,
which set out additional criteria that the responsible Commonwealth Minister must be
satisfied of in order to be required to give to an applicant an offer document for the
grant of a GHG holding lease under subsection 325(1), where there is a single identified
GHG storage formation.
1070. In addition to the criteria specified in paragraphs 325(1)(a) and (b), the Minister must
be satisfied of the matters specified in paragraph (c) and any matters prescribed by the
regulations (paragraph (d)). These matters go to determining whether or not the
applicant is suitable to hold the lease. These matters include whether the technical
advice and financial resources available to the applicant after the offer is accepted are
sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1071. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1072. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1073. The Minister must also be satisfied of any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration and
appraisal activities in offshore areas. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
1074. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
175
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1075. These amendments will provide the Minister with administrative discretion in relation
to the grant of a GHG holding lease under subsection 325(1), but do not provide for
merits review of the Minister's decision. Decisions concerning the grant of leases are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 105: After paragraph 325(2)(b)
1076. This item inserts new paragraphs (2)(c) and (d) in section 325 of the OPGGS Act,
which set out additional criteria that the responsible Commonwealth Minister must be
satisfied of in order to be required to give to an applicant an offer document for the
grant of a GHG holding lease under subsection 325(2), where there are multiple
identified GHG storage formations.
1077. In addition to the criteria specified in paragraphs 325(2)(a) and (b), the Minister must
be satisfied of the matters specified in paragraph (c) and any matters prescribed by the
regulations (paragraph (d)). These matters go to determining whether or not the
applicant is suitable to hold the lease. These matters include whether the technical
advice and financial resources available to the applicant after the offer is accepted are
sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1078. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1079. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1080. The Minister must also be satisfied of any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration and
appraisal activities in offshore areas. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
176
1081. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1082. These amendments will provide the Minister with administrative discretion in relation
to the grant of a GHG holding lease under subsection 325(2), but do not provide for
merits review of the Minister's decision. Decisions concerning the grant of leases are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 106: Paragraph 326(2)(a)
1083. This item amends paragraph 326(2)(a) to reference the criteria specified in paragraph
325(1)(c), inserted by item 104, as an additional ground for refusing to grant a GHG
holding lease to the applicant for an application made under subsection 324(2). If the
responsible Commonwealth Minister is not satisfied as to the matter referred to in
paragraph 325(1)(c), the Minister must refuse to grant the lease. See discussion at item
104.
Item 107: Paragraph 326(2)(b)
1084. This item amends paragraph 326(2)(b) to reference new criteria specified in paragraph
325(2)(c), inserted by item 105, as an additional ground for refusing to grant a GHG
holding lease to the applicant for an application made under subsection 324(3), (4) or
(5). If the responsible Commonwealth Minister is not satisfied as to the matter referred
to in paragraph 325(2)(c), the Minister must refuse to grant the lease. See discussion at
item 105.
Item 108: At the end of section 326
1085. This item adds new subsection (3) to the end of section 326 of the OPGGS Act, which
provides additional grounds for a refusal to grant a GHG holding lease. The responsible
Commonwealth Minister may refuse to grant the lease if the Minister is not satisfied of
a matter prescribed by the regulations (if any) for the purposes of paragraph 325(1)(d)
(in the case of an application made under subsection 324(2)) or paragraph 325(2)(d) (in
the case of an application made under subsection 324(3), (4) or (5)). Paragraph
325(1)(d) is inserted by item 104 and paragraph 325(2)(d) is inserted by item 105. See
discussion at those items.
1086. Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration and
appraisal activities in offshore areas. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
177
1087. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1088. These amendments will provide the Minister with administrative discretion in relation
to whether or not the Minister is prepared to grant the lease, but do not provide for
merits review of the Minister's decision. Decisions concerning the grant of titles and
the imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 109: Subsection 329A(7)
1089. This item repeals subsection (7) of section 329A of the OPGGS Act (excluding the
heading) and substitutes new subsections (7) and (7A), which prescribe the
requirements for applications for a cross-boundary GHG holding lease by the holder of
a cross-boundary GHG assessment permit. The notes at the end of subsection (7A) are
replicated from the notes at the end of the previous subsection 329A(7).
1090. Previously, subsection (7) set out prescriptive application requirements, requiring
applications made under section 329A to be accompanied by the details of the
applicant's proposals for work and expenditure and information specified in the
regulations (if any).
1091. Under new subsection (7), an application for a cross-boundary GHG holding lease must
be made in the form approved by the Titles Administrator. The application must also be
accompanied by any information or documents required by the form.
1092. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1093. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give to the
applicant an offer document for the grant of a cross-boundary GHG holding lease,
178
which includes the matters that were previously prescribed in subsection 329A(7) (such
as information or documents in relation to the applicant's proposals for work and
expenditure).
1094. New subsection (7A) specifies a period within which information or documents
required to accompany an application made under section 329A will be taken to
accompany the application, which is before the end of the application period. New
subsection (7A) provides applicants with flexibility in making applications, particularly
if, for example, information or documents will be given from various sources.
Specifying a period within which information or documents are required to be given
ensures applications, including any information or documents required to accompany
applications, are made within a reasonable period.
Item 110: Subsection 329A(11)
1095. This item amends subsection 329A(11) to provide for the Titles Administrator to
approve more than one manner in which an applicant may make a variation of an
application for a cross-boundary GHG holding lease. See the discussion at the next
item.
Item 111: At the end of section 329A
1096. This item adds new subsection (15) to the end of section 329A of the OPGGS Act,
which provides that the Titles Administrator must publish on its website a copy of the
instrument approving a manner for giving notice of a variation of an application for the
purposes of subsection 329A(11). This instrument will set out the approved manner or
manners for applications to enable applicants to comply with the requirements in
subsection 329A(11).
1097. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1098. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 112: After paragraph 329B(1)(b)
1099. This item inserts new paragraphs (1)(ba) and (bb) in section 329B of the OPGGS Act,
which set out additional criteria that the Cross-boundary Authority must be satisfied of
in order to be required to give to an applicant an offer document for the grant of a
cross-boundary GHG holding lease under subsection 329B(1), where there is a single
identified GHG storage formation.
1100. In addition to the criteria specified in paragraphs 329B(1)(a) and (b), the Authority
must be satisfied of the matters specified in paragraph (ba) and any matters prescribed
by the regulations (paragraph (bb)). These matters go to determining whether or not the
applicant is suitable to hold the lease. These matters include whether the technical
advice and financial resources available to the applicant after the offer is accepted are
sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
179
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1101. When considering the technical and financial resources available to the applicant it
would be legitimate for the Authority to consider other title holdings held by the
applicant. The Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
1102. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1103. The Authority must also be satisfied of any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration and
appraisal activities. These matters might include, for example, additional matters that
go to the adequacy of the corporate governance of the applicant.
1104. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1105. These amendments will provide the Authority with administrative discretion in relation
to the grant of a cross-boundary GHG holding lease under subsection 329B(1), but do
not provide for merits review of the decision. Decisions concerning the grant of leases
are matters of high government policy, involving considerations of national economic
and environmental policy. It would therefore be inappropriate to provide for merits
review for this decision, as to allow for an appeal on the merits of the decision would,
in effect, amount to contesting the Government's resource management strategy and
policy of managing the nation's offshore resources in the public interest.
Item 113: After paragraph 329B(2)(b)
1106. This item inserts new paragraphs (2)(ba) and (bb) in section 329B of the OPGGS Act,
which set out additional criteria that the Cross-boundary Authority must be satisfied of
in order to be required to give to an applicant an offer document for the grant of a
cross-boundary GHG holding lease under subsection 329B(2), where there are multiple
identified GHG storage formations.
1107. In addition to the criteria specified in paragraphs 329B(2)(a) and (b), the Authority
must be satisfied of the matters specified in paragraph (ba) and any matters prescribed
by the regulations (paragraph (bb)). These matters go to determining whether or not the
180
applicant is suitable to hold the lease. These matters include whether the technical
advice and financial resources available to the applicant after the offer is accepted are
sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1108. When considering the technical and financial resources available to the applicant it
would be legitimate for the Authority to consider other title holdings held by the
applicant. The Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
1109. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1110. The Authority must also be satisfied of any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration and
appraisal activities. These matters might include, for example, additional matters that
go to the adequacy of the corporate governance of the applicant.
1111. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1112. These amendments will provide the Authority with administrative discretion in relation
to the grant of a cross-boundary GHG holding lease, but do not provide for merits
review of the decision. Decisions concerning the grant of leases are matters of high
government policy, involving considerations of national economic and environmental
policy. It would therefore be inappropriate to provide for merits review for this
decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 114: Paragraph 329C(2)(a)
1113. This item amends paragraph 329C(2)(a) to reference the criteria specified in paragraph
329B(1)(ba), inserted by item 112, as an additional ground for refusing to grant a cross-
boundary GHG holding lease to the applicant for an application made under subsection
329A(2). If the Cross-boundary Authority is not satisfied as to the matter referred to in
181
paragraph 329B(1)(ba), the Authority must refuse to grant the lease. See discussion at
item 112.
Item 115: Paragraph 329C(2)(b)
1114. This item amends paragraph 329C(2)(b) to reference the criteria specified in paragraph
329B(2)(ba), inserted by item 113, as an additional ground for refusing to grant a cross-
boundary GHG holding lease to the applicant for an application made under subsection
329A(3), (4) or (5). If the Cross-boundary Authority is not satisfied as to the matter
referred to in paragraph 329B(2)(ba), the Authority must refuse to grant the lease. See
discussion at item 113.
Item 116: At the end of section 329C
1115. This item adds new subsection (3) to the end of section 329C of the OPGGS Act, which
provides additional grounds for a refusal to grant a cross-boundary GHG holding lease.
The Cross-boundary Authority may refuse to grant the lease if the is not satisfied of a
matter prescribed by the regulations (if any) for the purposes of paragraph 329B(1)(bb)
(in the case of an application made under subsection 329A(2) or paragraph 329B(2)(bb)
(in the case of an application made under subsection 329A(3), (4) or (5). Paragraph
329B(1)(bb) is inserted by item 112 and paragraph 329B(2)(bb) is inserted by item 113.
See discussion at those items.
1116. Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration and
appraisal activities. These matters might include, for example, additional matters that
go to the adequacy of the corporate governance of the applicant.
1117. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1118. These amendments will provide the Authority with administrative discretion in relation
to whether or not the Authority is prepared to grant the lease, but do not provide for
merits review of the decision. The decision concerns the grant of titles and the
imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 117: Subsection 330(2)
1119. This item repeals subsection (2) of section 330 of the OPGGS Act and substitutes new
subsections (2) and (2A), which prescribe the requirements for applications for a GHG
182
holding lease by the holder of a GHG injection licence. The notes at the end of
subsection (2A) are replicated from the notes at the end of the previous subsection
330(2).
1120. Previously, subsection (2) set out prescriptive application requirements, requiring
applications made under section 330 to be accompanied by the details of the applicant's
proposals for work and expenditure and information specified in the regulations (if
any).
1121. Under new subsection (2), an application for a GHG holding lease must be made in the
form approved by the Titles Administrator. The application must also be accompanied
by any information or documents required by the form.
1122. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1123. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give to the
applicant an offer document for the grant of a GHG holding lease, which includes the
matters that were previously prescribed in subsection 330(2) (such as information or
documents in relation to the applicant's proposals for work and expenditure).
1124. New subsection (2A) specifies a period within which information or documents
required to accompany an application made under section 330 will be taken to
accompany the application, which is before the end of the application period. New
subsection (2A) provides applicants with flexibility in making applications, particularly
if, for example, information or documents will be given from various sources.
Specifying a period within which information or documents are required to be given
ensures applications, including any information or documents required to accompany
applications, are made within a reasonable period.
Item 118: Subsection 330(5)
1125. This item amends subsection 330(5) to provide for the Titles Administrator to approve
more than one manner in which an applicant may make a variation of an application for
a GHG holding lease. See the discussion at the next item.
Item 119: At the end of section 330
1126. This item adds new subsection (9) to the end of section 330 of the OPGGS Act, which
provides that the Titles Administrator must publish on its website a copy of the
183
instrument approving a manner for giving notice of a variation of an application for the
purposes of subsection 330(5). This instrument will set out the approved manner or
manners for applications to enable applicants to comply with the requirements in
subsection 330(5).
1127. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1128. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 120: After paragraph 331(b)
1129. This item inserts new paragraphs (c) and (d) in section 331 of the OPGGS Act, which
set out additional criteria that the responsible Commonwealth Minister must be satisfied
of in order to be required to give to an applicant an offer document for the grant of a
GHG holding lease under section 331.
1130. In addition to the criteria specified in paragraphs 331(a) and (b), the Minister must be
satisfied of the matters specified in paragraph (c) and any matters prescribed by the
regulations (paragraph (d)). These matters go to determining whether or not the
applicant is suitable to hold the lease. These matters include whether the technical
advice and financial resources available to the applicant after the offer is accepted are
sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1131. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1132. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1133. The Minister must also be satisfied of any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration and
appraisal activities in offshore areas. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
1134. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
184
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1135. These amendments will provide the Minister with administrative discretion in relation
to the grant of a GHG holding lease under section 331, but do not provide for merits
review of the Minister's decision. Decisions concerning the grant of leases are matters
of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 121: Section 332
1136. This item inserts '(1)' to make section 332 of the OPGGS Act become subsection
332(1), as a consequence of the addition of subsections made by the next item.
Item 122: At the end of section 332
1137. This item inserts new subsections (2) and (3) to section 332 of the OPGGS Act, which
provide additional grounds for a refusal to grant an application for a GHG holding lease
made under section 330. The responsible Commonwealth Minister must refuse to grant
the lease if the Minister is not satisfied of the criteria in new paragraph 331(c) as to
whether the technical advice and financial resources available to the applicant after the
lease is granted are sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1138. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1139. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1140. Under new subsection (3), the Minister may refuse to renew the lease if the Minister is
not satisfied of the matters prescribed in the regulations (if any) for the purposes of
paragraph 331(d) (which is inserted by item 120). Enabling the regulations to prescribe
additional matters will provide the Government with the flexibility to provide for other
matters that are necessary and appropriate for determining the suitability of those who
wish to conduct GHG-related exploration and appraisal activities in offshore areas.
185
These matters might include, for example, additional matters that go to the adequacy of
the corporate governance of the applicant.
1141. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1142. These amendments will provide the Minister with administrative discretion in relation
to whether or not the Minister is prepared to grant the lease, however consultation on
the decision is required under section 434. The amendments but do not provide for
merits review of the decision. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 123: Subsection 335A(2)
1143. This item repeals subsection (2) of section 335A of the OPGGS Act and substitutes
new subsections (2) and (2A), which prescribe the requirements for applications for a
cross-boundary GHG holding lease by the holder of a cross-boundary GHG injection
licence. The notes at the end of subsection (2A) are replicated from the notes at the end
of the previous subsection 335A(2).
1144. Previously, subsection (2) set out prescriptive application requirements, requiring
applications made under section 335A to be accompanied by the details of the
applicant's proposals for work and expenditure and information specified in the
regulations (if any).
1145. Under new subsection (2), an application for a cross-boundary GHG holding lease must
be made in the form approved by the Titles Administrator. The application must also be
accompanied by any information or documents required by the form.
1146. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
186
1147. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give to the
applicant an offer document for the grant of a cross-boundary GHG holding lease,
which includes the matters that were previously prescribed in subsection 335A(2) (such
as information or documents in relation to the applicant's proposals for work and
expenditure).
1148. New subsection (2A) specifies a period within which information or documents
required to accompany an application made under section 335A will be taken to
accompany the application, which is before the end of the application period. New
subsection (2A) provides applicants with flexibility in making applications, particularly
if, for example, information or documents will be given from various sources.
Specifying a period within which information or documents are required to be given
ensures applications, including any information or documents required to accompany
applications, are made within a reasonable period.
Item 124: Subsection 335A(5)
1149. This item amends subsection 335A(5) to provide for the Titles Administrator to
approve more than one manner in which an applicant may make a variation of an
application for a cross-boundary GHG holding lease. See the discussion at the next
item.
Item 125: At the end of section 335A
1150. This item adds new subsection (9) to the end of section 335A of the OPGGS Act, which
provides that the Titles Administrator must publish on its website a copy of the
instrument approving a manner for giving notice of a variation of an application for the
purposes of subsection 335A(5). This instrument will set out the approved manner or
manners for applications to enable applicants to comply with the requirements in
subsection 335A(5).
1151. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1152. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 126: After paragraph 335B(b)
1153. This item inserts new paragraphs (ba) and (bb) in section 335B of the OPGGS Act,
which set out additional criteria that the Cross-boundary Authority must be satisfied of
in deciding whether or not to give to an applicant an offer document for the grant of a
cross-boundary GHG holding lease under section 335B.
1154. In additional to the criteria specified in paragraphs 335B(a) and (b), the Authority must
be satisfied of the matters specified in paragraph (ba) and any matters prescribed by the
regulations (paragraph (bb)). These matters go to determining whether or not the
applicant is suitable to hold the lease. These matters include whether the technical
advice and financial resources available to the applicant after the offer is accepted are
sufficient to:
187
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1155. When considering the technical and financial resources available to the applicant it
would be legitimate for the Authority to consider other title holdings held by the
applicant. The Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
1156. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1157. The Authority must also be satisfied of any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration and
appraisal activities. These matters might include, for example, additional matters that
go to the adequacy of the corporate governance of the applicant.
1158. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1159. These amendments will provide the Authority with administrative discretion in relation
to the grant of a lease under section 335B, but do not provide for merits review of the
decision. The decision concerns the grant of titles and the imposition of title conditions.
Decisions concerning the grant of titles and the imposition of title conditions are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 127: Section 335C
1160. This item inserts '(1)' to make section 335C of the OPGGS Act become subsection
335C(1), as a consequence of the addition of subsections made by the next item.
Item 128: At the end of section 335C
1161. This item inserts new subsections (2) and (3) to section 335C of the OPGGS Act, which
provide additional grounds for a refusal to grant an application for a cross-boundary
188
GHG holding lease made under section 335A. The Cross-boundary Authority must
refuse to grant the lease if the Authority is not satisfied of the criteria in new paragraph
335B(ba) as to whether the technical advice and financial resources available to the
applicant after the lease is granted are sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1162. When considering the technical and financial resources available to the applicant it
would be legitimate for the Authority to consider other title holdings held by the
applicant. The Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to work and obligations under any existing
titles.
1163. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1164. Under subsection (3), the Authority may refuse to grant the lease if the Authority is not
satisfied of the matters prescribed in the regulations (if any) for the purposes of
paragraph 335B(bb) (which is inserted by item 126). Enabling the regulations to
prescribe additional matters will provide the Government with the flexibility to provide
for other matters that are necessary and appropriate for determining the suitability of
those who wish to conduct GHG-related exploration and appraisal activities. These
matters might include, for example, additional matters that go to the adequacy of the
corporate governance of the applicant.
1165. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1166. These amendments will provide the Authority with administrative discretion in relation
to whether or not the Authority is prepared to grant the lease, however consultation on
the decision is required under section 434A. The amendments but do not provide for
merits review of the decision. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
189
Item 129: Paragraph 336(1)(d)
1167. This item amends paragraph 336(1)(d) of the OPGGS Act to include reference to new
paragraph 362(1)(i), inserted by item 163 of this Schedule. See the discussion at that
item.
1168. The amendment ensures that if the responsible Commonwealth Minister refuses to
grant a GHG injection licence to the holder of a GHG assessment permit on the ground
covered by paragraph 362(1)(i), the permittee may apply for the grant of a special GHG
holding lease over the block or blocks covered by the unsuccessful application for the
licence.
Item 130: Paragraph 336(1)(e)
1169. This item amends paragraph 336(1)(e) of the OPGGS Act to include reference to new
paragraph 362(2)(i), inserted by item 165 of this Schedule. See the discussion at that
item.
1170. The amendment ensures that if the responsible Commonwealth Minister refuses to
grant a GHG injection licence to the holder of a GHG holding lease on the ground
covered by paragraph 362(2)(i), the lessee may apply for the grant of a special GHG
holding lease over the block or blocks covered by the unsuccessful application for the
licence.
Item 131: Subsection 336(2)
1171. This item repeals subsection (2) of section 336 of the OPGGS Act and substitutes new
subsections (2) and (2A), which prescribe the requirements for applications for a
special GHG holding lease by an unsuccessful applicant for a GHG injection licence.
The notes at the end of subsection (2A) are replicated from the notes at the end of the
previous subsection 336(2).
1172. Previously, subsection (2) set out prescriptive application requirements, requiring
applications made under section 336 to be accompanied by information specified in the
regulations (if any).
1173. Under new subsection (2), an application for a special GHG holding lease must be
made in the form approved by the Titles Administrator. The application must also be
accompanied by any information or documents required by the form.
1174. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
190
1175. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give to the
applicant an offer document for the grant of a special GHG holding lease (such as
information relating to the technical and financial capacity of the applicant).
1176. New subsection (2A) specifies a period within which information or documents
required to accompany an application made under section 336 will be taken to
accompany the application, which is before the end of the application period. New
subsection (2A) provides applicants with flexibility in making applications, particularly
if, for example, information or documents will be given from various sources.
Specifying a period within which information or documents are required to be given
ensures applications, including any information or documents required to accompany
applications, are made within a reasonable period.
Item 132: Subsection 336(5)
1177. This item amends subsection 336(5) to provide for the Titles Administrator to approve
more than one manner in which an applicant may make a variation of an application for
a special GHG holding lease. See the discussion at the next item.
Item 133: At the end of section 336
1178. This item adds new subsection (9) to the end of section 336 of the OPGGS Act, which
provides that the Titles Administrator must publish on its website a copy of the
instrument approving a manner for giving notice of a variation of an application for the
purposes of subsection 336(5). This instrument will set out the approved manner or
manners for applications to enable applicants to comply with the requirements in
subsection 336(5).
1179. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1180. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 134: Section 337
1181. This item repeals and substitutes section 337 of the OPGGS Act, which sets out the
criteria that the responsible Commonwealth Minister must be satisfied of in order to be
required to give to an applicant an offer document for the grant of special GHG holding
lease under section 337.
1182. The Minister must be satisfied of the matters specified in paragraph (b) and any matters
prescribed by the regulations (paragraph (c)). These matters go to determining whether
or not the applicant is suitable to hold the lease. These matters include whether the
technical advice and financial resources available to the applicant after the offer is
accepted are sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
191
1183. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1184. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1185. Under paragraph (c), the Minister must also be satisfied of any other matters prescribed
in the regulations. Enabling the regulations to prescribe additional matters will provide
the Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct GHG-related
exploration and appraisal activities in offshore areas. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
1186. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1187. These amendments will provide the Minister with administrative discretion in relation
to the grant of a lease under section 337, but do not provide for merits review of the
Minister's decision. The decision concerns the grant of titles and the imposition of title
conditions. Decisions concerning the grant of titles and the imposition of title
conditions are matters of high government policy, involving considerations of national
economic and environmental policy. It would therefore be inappropriate to provide for
merits review for this decision, as to allow for an appeal on the merits of the decision
would, in effect, amount to contesting the Government's resource management strategy
and policy of managing the nation's offshore resources in the public interest.
1188. The notes to the section are replicated from the notes included in previous section 337
of the OPGGS Act.
Item 135: After section 337
1189. This item inserts new section 337A into the OPGGS Act, which sets out the
circumstances in which the responsible Commonwealth Minister must or may refuse to
grant a special GHG holding lease where an application has been made under section
336.
1190. The Minister must refuse to grant a lease under subsection 337A(2) if the Minister is
not satisfied that the technical advice and financial resources available to the applicant
after the lease is granted are sufficient to:
192
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1191. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to the work and obligations required under any
existing titles.
1192. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1193. The Minister may refuse to grant a lease under subsection 337A(3) if the Minister is not
satisfied of the matters (if any) prescribed in the regulations for the purposes of
paragraph 337(c) (which is inserted by item 134). Enabling the regulations to prescribe
additional matters will provide the Government with the flexibility to provide for other
matters that are necessary and appropriate for determining the suitability of those who
wish to conduct GHG-related exploration and appraisal activities in offshore areas.
These matters might include, for example, additional matters that go to the adequacy of
the corporate governance of the applicant.
1194. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance processes. The industry will also be notified of any additional matters
to reduce any potential increase in legislative complexity in having to understand and
comply with these additional criteria, including through an update to the approved
application form.
1195. These amendments will provide the Minister with administrative discretion in relation
to whether or not the Minister is prepared to grant the lease, however the amendments
do not provide for merits review of the Minister's decision. The decision concerns the
grant of titles and the imposition of title conditions. Decisions concerning the grant of
titles and the imposition of title conditions are matters of high government policy,
involving considerations of national economic and environmental policy. It would
therefore be inappropriate to provide for merits review for this decision, as to allow for
an appeal on the merits of the decision would, in effect, amount to contesting the
Government's resource management strategy and policy of managing the nation's
offshore resources in the public interest.
Item 136: Paragraph 342A(1)(e)
1196. This item amends paragraph 342A(1)(e) of the OPGGS Act to include reference to new
paragraph 368B(1)(ja), inserted by item 170 of this Schedule. See the discussion at that
item.
193
1197. This amendment ensures that if the Cross-boundary Authority refuses to grant a cross-
boundary GHG injection licence to the holder of a cross-boundary GHG assessment
permit on the ground covered by paragraph 368B(1)(ja), the permittee may apply for
the grant of a special cross-boundary GHG holding lease over the block or blocks
covered by the unsuccessful application for the licence.
Item 137: Paragraph 342A(1)(f)
1198. This item amends paragraph 342A(1)(f) of the OPGGS Act to include reference to new
paragraph 368B(2)(ja), inserted by item 172 of this Schedule. See the discussion at that
item.
1199. This amendment ensures that if the Cross-boundary Authority refuses to grant a cross-
boundary GHG injection licence to the holder of a cross-boundary GHG holding lease
on the ground covered by paragraph 368B(2)(ja), the lessee may apply for the grant of a
special cross-boundary GHG holding lease over the block or blocks covered by the
unsuccessful application for the licence.
Item 138: Subsection 342A(2)
1200. This item repeals subsection (2) of section 342A of the OPGGS Act and substitutes
new subsections (2) and (2A), which prescribe the requirements for applications for a
special cross-boundary GHG holding lease by an unsuccessful applicant for a cross-
boundary GHG injection licence. The notes at the end of subsection (2A) are replicated
from the notes at the end of the previous subsection 342A(2).
1201. Previously, subsection (2) set out prescriptive application requirements, requiring
applications made under section 342A to be accompanied by information specified in
the regulations (if any).
1202. Under new subsection (2), an application for a special cross-boundary GHG holding
lease must be made in the form approved by the Titles Administrator. The application
must also be accompanied by any information or documents required by the form.
1203. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1204. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to give to the
applicant an offer document for the grant of a special cross-boundary GHG holding
194
lease (such as information in relation to the technical and financial capacity of the
applicant).
1205. New subsection (2A) specifies a period within which information or documents
required to accompany an application made under section 342A will be taken to
accompany the application, which is before the end of the application period. New
subsection (2A) provides applicants with flexibility in making applications, particularly
if, for example, information or documents will be given from various sources.
Specifying a period within which information or documents are required to be given
ensures applications, including any information or documents required to accompany
applications, are made within a reasonable period.
Item 139: Subsection 342A(5)
1206. This item amends subsection 342A(5) to provide for the Titles Administrator to
approve more than one manner in which an applicant may make a variation of an
application. See the discussion at the next item.
Item 140: At the end of section 342A
1207. This item adds new subsection (9) to the end of section 342A of the OPGGS Act, which
provides that the Titles Administrator must publish on its website a copy of the
instrument approving a manner for giving notice of a variation of an application for the
purposes of subsection 342A(5). This instrument will set out the approved manner or
manners for applications to enable applicants to comply with the requirements in
subsection 342A(5).
1208. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1209. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 141: Paragraph 342B(2)(a)
1210. This item amends paragraph 342B(2)(a) to replace the conjunction at the end of the
paragraph with 'and', as a consequence of the amendment made by the next item.
Item 142: At the end of subsection 342B(2) (before the notes)
1211. This item inserts new paragraphs (c) and (d) in subsection 342B(2) of the OPGGS Act,
which set out criteria that the Cross-boundary Authority must be satisfied of in order to
be required to give to an applicant an offer document for the grant of a special cross-
boundary GHG holding lease under section 342B.
1212. The Authority must be satisfied of the matters specified in paragraph (c) and any
matters prescribed by the regulations (paragraph (d)). These matters go to determining
whether or not the applicant is suitable to hold the lease. These matters include whether
the technical advice and financial resources available to the applicant after the offer is
accepted are sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
195
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1213. When considering the technical and financial resources available to the applicant it
would be legitimate for the Authority to consider other title holdings held by the
applicant. The Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
1214. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1215. Under paragraph (d), the Authority must also be satisfied of any other matters
prescribed in the regulations. Enabling the regulations to prescribe additional matters
will provide the Government with the flexibility to provide for other matters that are
necessary and appropriate for determining the suitability of those who wish to conduct
GHG-related exploration and appraisal activities. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
1216. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1217. These amendments will provide the Authority with administrative discretion in relation
to the grant of a lease under section 342B, but do not provide for merits review of the
decision. The decision concerns the grant of titles and the imposition of title conditions.
Decisions concerning the grant of titles and the imposition of title conditions are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 143: After section 342B
1218. This item inserts new section 342BA into the OPGGS Act, which sets out the
circumstances in which the Cross-boundary Authority must or may refuse to grant a
special cross-boundary GHG holding lease where an application has been made under
section 342A.
196
1219. The Authority must refuse to grant a lease under subsection 342BA(2) if the Authority
is not satisfied that the technical advice and financial resources available to the
applicant after the lease is granted are sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1220. When considering the technical and financial resources available to the applicant it
would be legitimate for the Authority to consider other title holdings held by the
applicant. The Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to the work and obligations required under
any existing titles.
1221. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1222. The Authority may refuse to grant a lease under subsection 342BA(3) if the Authority
is not satisfied of the matters (if any) prescribed in the regulations for the purposes of
paragraph 342B(2)(d) (which is inserted by item 142). Enabling the regulations to
prescribe additional matters will provide the Government with the flexibility to provide
for other matters that are necessary and appropriate for determining the suitability of
those who wish to conduct GHG-related exploration and appraisal activities. These
matters might include, for example, additional matters that go to the adequacy of the
corporate governance of the applicant.
1223. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance processes. The industry will also be notified of any additional matters
to reduce any potential increase in legislative complexity in having to understand and
comply with these additional criteria, including through an update to the approved
application form.
1224. These amendments will provide the Authority with administrative discretion in relation
to whether or not the Authority is prepared to grant the lease, however the amendments
do not provide for merits review of the decision. The decision concerns the grant of
titles and the imposition of title conditions. Decisions concerning the grant of titles and
the imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
197
Item 144: Subsection 343(2)
1225. This item repeals subsection 343(2) of the OPGGS Act (excluding the heading) and
substitutes new subsections 343(2) and (2A), which varies the requirements for
applications for the grant of a GHG holding lease by the holder of a petroleum retention
lease. The notes at the end of subsection (2A) are replicated from the notes at the end of
the previous subsection 343(2).
1226. Previously, subsection (2) set out prescriptive application requirements, requiring
applications made under section 343 to be accompanied by the information specified in
the regulations (if any).
1227. Under new subsection (2), an application for a GHG holding lease must be made in the
form approved by the Titles Administrator. The application must also be accompanied
by any information or documents required by the form.
1228. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1229. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether to give the applicant an offer
document or refuse the grant of a GHG holding lease, (such as information in relation
to the technical and financial capacity of the applicant).
1230. New subsection (2A) specifies a period within which information or documents
required to accompany an application made under section 343 will be taken to
accompany the application, which is before the end of the 10-day period that began on
the day after the application was made. New subsection (2A) provides applicants with
flexibility in making applications, particularly if, for example, information or
documents will be given from various sources. Specifying a period within which
information or documents are required to be given ensures applications, including any
information or documents required to accompany applications, are made within a
reasonable period.
Item 145: Subsection 343(4)
1231. This item amends subsection 343(4) to provide for the Titles Administrator to approve
more than one manner in which an applicant may make a variation of an application for
a GHG holding lease. See the discussion at the next item.
198
Item 146: At the end of section 343
1232. This item adds new subsection (8) to the end of section 343 of the OPGGS Act, which
provides that the Titles Administrator must publish on its website a copy of the
instrument approving a manner for giving notice of a variation of an application for the
purposes of subsection 343(4). This instrument will set out the approved manner or
manners for applications to enable applicants to comply with the requirements in
subsection 343(4).
1233. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1234. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 147: At the end of subsection 344(2) (before the notes)
1235. This item inserts new paragraphs (2)(a) and (b) in section 344 of the OPGGS Act,
which set out the criteria that the responsible Commonwealth Minister must be satisfied
of in order to be required to give to an applicant an offer document for the grant of a
GHG holding lease under section 344.
1236. The Minister must be satisfied of the matters specified in paragraph (a) and any matters
prescribed by the regulations (paragraph (b)). These matters go to determining whether
or not the applicant is suitable to hold the lease. These matters include whether the
technical advice and financial resources available to the applicant after the offer is
accepted are sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1237. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1238. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1239. Under paragraph (b), the Minister must also be satisfied of any other matters prescribed
in the regulations. Enabling the regulations to prescribe additional matters will provide
the Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct GHG-related
exploration and appraisal activities in offshore areas. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
199
1240. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1241. These amendments will provide the Minister with administrative discretion in relation
to the grant of a GHG holding lease, but do not provide for merits review of the
decision. The decision concerns the grant of titles and the imposition of title conditions.
Decisions concerning the grant of titles and the imposition of title conditions are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 148: After section 344
1242. This item inserts new section 344A into the OPGGS Act, which sets out the
circumstances in which the responsible Commonwealth Minister must or may refuse to
grant a GHG holding lease where an application has been made under section 343.
1243. The Minister must refuse to grant a lease under subsection 344A(1) if the Minister is
not satisfied that the technical advice and financial resources available to the applicant
after the lease is granted are sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1244. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to the work and obligations required under any
existing titles.
1245. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1246. The Minister may refuse to grant a lease under subsection 344A(2) if the Minister is not
satisfied of the matters (if any) prescribed in the regulations. Enabling the regulations to
prescribe additional matters will provide the Government with the flexibility to provide
for other matters that are necessary and appropriate for determining the suitability of
those who wish to conduct GHG-related exploration and appraisal activities in offshore
200
areas. These matters might include, for example, additional matters that go to the
adequacy of the corporate governance of the applicant.
1247. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance processes. The industry will also be notified of any additional matters
to reduce any potential increase in legislative complexity in having to understand and
comply with these additional criteria, including through an update to the approved
application form.
1248. These amendments will provide the Minister with administrative discretion in relation
to whether or not the Minister is prepared to grant the lease, however the amendments
do not provide for merits review of the decision. The decision concerns the grant of
titles and the imposition of title conditions. Decisions concerning the grant of titles and
the imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 149: Subsection 347(5)
1249. This item repeals subsection 347(5) of the OPGGS Act and substitutes new subsections
347(5), (5A) and (5B), which varies the requirements for applications for the renewal of
a GHG holding lease. The notes at the end of subsection (5B) are replicated from the
notes at the end of the previous subsection 347(5).
1250. Previously, subsection (5) set out prescriptive application requirements, requiring
applications made under section 347 to be accompanied by the details of the applicant's
proposals for work and expenditure and information specified in the regulations (if
any).
1251. Under new subsection (5), an application for a renewal of a GHG holding lease must be
made in the form approved by the Titles Administrator. The application must also be
accompanied by any information or documents required by the form.
1252. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
201
1253. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether to give the applicant an offer
document for the renewal of a GHG holding lease, which includes the matters that were
previously prescribed in subsection 347(5) (such as an applicant's proposals for work
and expenditure).
1254. New subsection (5A) specifies a period within which information or documents
required to accompany an application made under section 347 will be taken to
accompany the application, which is before the expiry date of the lease. New subsection
(5A) provides applicants with flexibility in making applications, particularly if, for
example, information or documents will be given from various sources. Specifying a
period within which information or documents are required to be given ensures
applications, including any information or documents required to accompany
applications, are made within a reasonable period.
1255. New subsection (5B) dis-applies, for the operation of new subsection (5A), the effect of
subsection 347(6). Subsection 347(6) continues a lease in force under certain
circumstances. The effect of new subsection (5B) is that the applicant must provide the
required information or documents before the time at which the lease would ordinarily
have expired, if not for the application of subsection 347(6).
Item 150: After paragraph 348(2)(b)
1256. This item adds new paragraphs (c) and (d) to subsection 348(2) of the OPGGS Act,
which set out additional criteria that the responsible Commonwealth Minister must be
satisfied of in order to be required to give an applicant an offer document for the
renewal of a GHG holding lease.
1257. In addition to the criteria specified in paragraphs 348(2)(a) and (b), the Minister must
be satisfied of the matters specified in paragraph (c) and any matters prescribed by the
regulations (paragraph (d)). These matters go to determining whether or not the
applicant is suitable to hold the lease. These matters include whether the technical
advice and financial resources available to the applicant after the offer is accepted are
sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1258. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1259. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
202
1260. The Minister must also be satisfied of any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration and
appraisal activities in the specified block or blocks. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
1261. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1262. These amendments will provide the Minister with administrative discretion in relation
to the renewal of a GHG holding lease under subsection 348(2), but do not provide for
merits review of the Minister's decision. The decision concerns the grant of titles and
the imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 151: At the end of section 348
1263. This item adds new subsection (4) to the end of section 348, which provides that the
responsible Commonwealth Minister must have regard to the matters specified in
deciding whether or not there are sufficient grounds to warrant the granting of the
renewal of a GHG holding lease for the purposes of paragraph 348(3)(b). These matters
include whether the technical advice and financial resources available to the applicant
are sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1264. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1265. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
203
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1266. The Minister must also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration and
appraisal activities in the specified block or blocks. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
1267. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1268. New subsection 348(4) does not limit the matters that the Minister may have regard to
in deciding under paragraph 348(3)(b) whether there are sufficient grounds to warrant
the granting of the renewal of the lease.
1269. These amendments will provide the Minister with administrative discretion in relation
to whether or not the Minister is prepared to renew the lease, but do not provide for
merits review of the Minister's decision. The decision concerns the grant of titles and
the imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 152: At the end of section 349
1270. This item adds new subsections (7) and (8) to section 349 of the OPGGS Act, which set
out additional circumstances in which the responsible Commonwealth Minister must or
may refuse to renew a GHG holding lease. The Minister must refuse to renew a lease if
the Minister is not satisfied that the technical advice and financial resources available to
the applicant after the lease is renewed are sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1271. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to the work and obligations required under any
existing titles.
204
1272. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1273. The Minister may refuse to renew a lease if the Minister is not satisfied of the matters
(if any) prescribed in the regulations. Enabling the regulations to prescribe additional
matters will provide the Government with the flexibility to provide for other matters
that are necessary and appropriate for determining the suitability of those who wish to
conduct GHG-related exploration and appraisal activities in the specified block or
blocks. These matters might include, for example, additional matters that go to the
adequacy of the corporate governance of the applicant.
1274. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance processes. The industry will also be notified of any additional matters
to reduce any potential increase in legislative complexity in having to understand and
comply with these additional criteria, including through an update to the approved
application form.
1275. These amendments will provide the Minister with administrative discretion in relation
to whether or not the Minister is prepared to renew the lease, however consultation on
the decision is required under section 434. The amendments do not provide for merits
review of the Minister's decision. The decision concerns the grant of titles and the
imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 153: Subsection 350A(6)
1276. This item repeals subsection 350A(6) of the OPGGS Act and substitutes new
subsections 350A(6), (6A) and (6B), which prescribe the requirements for applications
for a renewal of a cross-boundary GHG holding lease. The notes at the end of
subsection (6B) are replicated from the notes at the end of the previous subsection
350A(6).
1277. Under new subsection 350A(6), an application for the renewal of a cross-boundary
GHG holding lease must be made in the form approved by the Titles Administrator.
The application must also be accompanied by any information or documents required
by the form.
1278. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
205
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1279. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to renew the cross-
boundary GHG holding lease. This includes the matters that are prescribed in new
subsection 350B(4) (such as information or documents in relation to the technical
advice and the financial resources available to the applicant). It will also include the
information that was previously specified in subsection 350A(6), such as details of the
applicant's proposals for work and expenditure in relation to the lease area.
1280. New subsection (6A) specifies a period within which information or documents
required to accompany an application made under section 350A will be taken to
accompany the application, which is before the expiry date of the lease. New subsection
(6A) provides applicants with flexibility in making applications, particularly if, for
example, information or documents will be given from various sources. Specifying a
period within which information or documents are required to be given ensures
applications, including any information or documents required to accompany
applications, are made within a reasonable period.
1281. New subsection (6B) dis-applies, for the operation of new subsection (6A), the effect of
subsection 350A(7). Subsection 350A(7) continues a lease in force under certain
circumstances. The effect of new subsection (6B) is that the applicant must provide the
required information or documents before the time at which the lease would ordinarily
have expired, if not for the application of subsection 350A(7).
Item 154: After paragraph 350B(2)(b)
1282. This item adds new paragraphs (ba) and (bb) to subsection 350B(2) of the OPGGS Act,
which set out additional criteria that the Cross-boundary Authority must be satisfied of
in order to be required to give an applicant an offer document for the renewal of a
cross-boundary GHG holding lease.
1283. In deciding whether or not to give an offer document for renewal of a lease, the
Authority must be satisfied of the matters specified in paragraph (ba) and any matters
prescribed by the regulations (paragraph (bb)). These matters go to determining
whether or not the applicant is suitable to hold the lease. These matters include whether
the technical advice and financial resources available to the applicant after the offer is
accepted are sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
206
1284. When considering the technical and financial resources available to the applicant it
would be legitimate for the Authority to consider other title holdings held by the
applicant. The Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
1285. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1286. The Authority must also be satisfied of any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration and
appraisal activities in the specified block or blocks. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
1287. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1288. These amendments will provide the Authority with administrative discretion in relation
to the renewal of a lease under subsection 350B(2), but do not provide for merits
review of the Authority's decision. The decision concerns the grant of titles and the
imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 155: At the end of section 350B
1289. This item adds new subsection (4) to the end of section 350B, which provides that the
Cross-boundary Authority must have regard to the matters specified in deciding
whether or not there are sufficient grounds to warrant the granting of the renewal of a
cross-boundary GHG holding lease for the purposes of paragraph 350B(3)(b). These
matters include whether the technical advice and financial resources available to the
applicant are sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
207
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1290. When considering the technical and financial resources available to the applicant it
would be legitimate for the Authority to consider other title holdings held by the
applicant. The Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to its work and obligations under any
existing titles.
1291. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1292. The Authority must also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG-related exploration and
appraisal activities in the specified block or blocks. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
1293. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1294. New subsection 350B(4) does not limit the matters that the Authority may have regard
to in deciding under paragraph 350B(3)(b) whether there are sufficient grounds to
warrant the granting of the renewal of the lease.
1295. These amendments will provide the Authority with administrative discretion in relation
to whether or not the Authority is prepared to renew the lease, but do not provide for
merits review of the Authority's decision. The decision concerns the grant of titles and
the imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 156: At the end of section 350C
1296. This item adds new subsections (7) and (8) to section 350C of the OPGGS Act, which
set out additional circumstances in which the Cross-boundary Authority must or may
208
refuse to renew a cross-boundary GHG holding lease. The Authority must refuse to
renew a lease if the Authority is not satisfied that the technical advice and financial
resources available to the applicant after the lease is renewed are sufficient to:
a. carry out the operations and works that will be authorised by the lease; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the lease.
1297. When considering the technical and financial resources available to the applicant it
would be legitimate for the Authority to consider other title holdings held by the
applicant. The Authority may decide that the applicant does not have sufficient
financial and technical resources available to undertake work and discharge obligations
under the title being applied for, in addition to the work and obligations required under
any existing titles.
1298. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1299. The Authority may refuse to renew a lease if the Authority is not satisfied of the
matters (if any) prescribed in the regulations. Enabling the regulations to prescribe
additional matters will provide the Government with the flexibility to provide for other
matters that are necessary and appropriate for determining the suitability of those who
wish to conduct GHG-related exploration and appraisal activities in the specified block
or blocks. These matters might include, for example, additional matters that go to the
adequacy of the corporate governance of the applicant.
1300. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance processes. The industry will also be notified of any additional matters
to reduce any potential increase in legislative complexity in having to understand and
comply with these additional criteria, including through an update to the approved
application form.
1301. These amendments will provide the Authority with administrative discretion in relation
to whether or not the Authority is prepared to renew the lease, however consultation on
the decision is required under section 434A. The amendments do not provide for merits
review of the Authority's decision. The decision concerns the grant of titles and the
imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
209
Item 157: Paragraph 353(1)(c)
1302. This item amends paragraph 353(1)(c) to include a reference to new paragraph
362(2)(i) (inserted by item 165). New paragraph 362(2)(i) provides that one of the
criteria for the responsible Commonwealth Minister to grant a GHG injection licence to
the holder of a GHG holding lease is that the Minister is satisfied of the matters (if any)
prescribed by the regulations.
1303. The amendment of paragraph 353(1)(c) ensures that subsection 353(1) applies to enable
the Minister to request the holder of a special GHG holding lease to apply for a GHG
injection licence if the Minister is satisfied that the Minister would not refuse to grant
the licence on a ground that includes the matter specified in new paragraph 362(2)(i).
Item 158: Paragraph 353A(1)(c)
1304. This item amends paragraph 353A(1)(c) to include a reference to new paragraph
368B(2)(ja) (inserted by item 172). New paragraph 368B(2)(ja) provides that one of the
criteria for the Cross-boundary Authority to grant a cross-boundary GHG injection
licence to the holder of a cross-boundary GHG holding lease is that the responsible
Commonwealth Minister is satisfied of the matters (if any) prescribed by the
regulations.
1305. The amendment of paragraph 353A(1)(c) ensures that subsection 353A(1) applies to
enable the Authority to request the holder of a special cross-boundary GHG holding
lease to apply for a cross-boundary GHG injection licence if the Authority is satisfied
that the Authority would not refuse to grant the licence on a ground that includes the
matter specified in new paragraph 368B(2)(ja).
Item 159: Subsection 361(10)
1306. This item repeals subsection 361(10) of the OPGGS Act and substitutes new
subsections 361(10), (10A) and (10B), which prescribe the requirements for
applications for the grant of a GHG injection licence by the holder of a GHG
assessment permit or a GHG holding lease. The notes at the end of subsection (10B) are
replicated from the notes at the end of the previous subsection 361(10).
1307. Under new subsection 361(10), an application for a GHG injection licence must be
made in the form approved by the Titles Administrator. The application must also be
accompanied by any information or documents required by the form, and by a draft site
plan or site plans for the identified GHG storage formation(s) in the assessment permit
or holding lease area.
1308. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
210
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1309. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to grant the GHG
injection licence. This includes the matters that are prescribed in new subsection
362(1)(g) and (2)(g) (such as information or documents in relation to the technical
advice and the financial resources available to the applicant). It will also include the
information that was previously specified in subsection 361(10), such as details of the
applicant's proposals for work and expenditure under the licence.
1310. New subsections (10A) and (10B) specify a period within which the draft site plan or
plans, and any other information or documents required to accompany an application
made under section 361, will be taken to accompany the application, which is the time
before the end of the 10-day period that began on the day after the application was
made. New subsections (10A) and (10B) provide applicants with flexibility in making
applications, particularly if, for example, information or documents will be given from
various sources. Specifying a period within which information or documents are
required to be given ensures applications, including any information or documents
required to accompany applications, are made within a reasonable period.
Item 160: Subsection 361(12)
1311. This item amends subsection 361(12) to provide for the Titles Administrator to approve
more than one manner in which an applicant may make a variation of an application.
See the discussion at the next item.
Item 161: At the end of section 361
1312. This item inserts new subsection 361(16) into the OPGGS Act, which provides that the
Titles Administrator must publish on its website a copy of the instrument approving a
manner for giving notice of a variation of an application for the purposes of subsection
361(12). This instrument will set out the approved manner or manners for applications
to enable applicants to comply with the requirement in subsection 361(12).
1313. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1314. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 162: Paragraph 362(1)(g)
1315. This item repeals and substitutes a new paragraph 362(1)(g). The amendment clarifies
one of the matters that the responsible Commonwealth Minister must be satisfied of in
order to be required to offer to grant a GHG injection licence to the holder of a GHG
assessment permit.
1316. Under new paragraph 362(1)(g), the Minister must be satisfied that the technical advice
and financial resources available to the applicant are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
211
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
1317. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1318. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1319. This amendment will provide the Minister with administrative discretion in relation to
the grant of a licence under subsection 361(1), but does not provide for merits review of
the Minister's decision. The decision concerns the grant of titles and the imposition of
title conditions. Decisions concerning the grant of titles and the imposition of title
conditions are matters of high government policy, involving considerations of national
economic and environmental policy. It would therefore be inappropriate to provide for
merits review for this decision, as to allow for an appeal on the merits of the decision
would, in effect, amount to contesting the Government's resource management strategy
and policy of managing the nation's offshore resources in the public interest.
Item 163: After paragraph 362(1)(h)
1320. This item inserts new paragraph 362(1)(i) to provide that the responsible
Commonwealth Minister must also be satisfied of the matters (if any) prescribed in the
regulations in order to be required to grant a GHG injection licence to the holder of a
GHG assessment permit. Enabling the regulations to prescribe additional matters will
provide the Government with the flexibility to provide for other matters that are
necessary and appropriate for determining the suitability of those who wish to conduct
GHG injection and storage activities in the specified block or blocks. These matters
might include, for example, additional matters that go to the adequacy of the corporate
governance of the applicant.
1321. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1322. This amendment will provide the Minister with administrative discretion in relation to
whether or not the Minister is prepared to grant the licence, but does not provide for
merits review of the Minister's decision. The decision concerns the grant of titles and
the imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
212
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 164: Paragraph 362(2)(g)
1323. This item repeals and substitutes a new paragraph 362(2)(g). The amendment clarifies
one of the matters that the responsible Commonwealth Minister must be satisfied of in
order to be required to offer to grant a GHG injection licence to the holder of a GHG
holding lease.
1324. Under new paragraph 362(2)(g), the Minister must be satisfied that the technical advice
and financial resources available to the applicant are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
1325. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1326. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1327. This amendment will provide the Minister with administrative discretion in relation to
whether or not the Minister is prepared to grant the licence, but does not provide for
merits review of the Minister's decision. The decision concerns the grant of titles and
the imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 165: After paragraph 362(2)(h)
1328. This item inserts new paragraph 362(2)(i) to provide that the responsible
Commonwealth Minister must also be satisfied of the matters (if any) prescribed in the
regulations in order to be required to grant a GHG injection licence to the holder of a
GHG holding lease. Enabling the regulations to prescribe additional matters will
provide the Government with the flexibility to provide for other matters that are
213
necessary and appropriate for determining the suitability of those who wish to conduct
GHG injection and storage activities in the specified block or blocks. These matters
might include, for example, additional matters that go to the adequacy of the corporate
governance of the applicant.
1329. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1330. This amendment will provide the Minister with administrative discretion in relation to
the grant of a licence under subsection 362(2), but does not provide for merits review of
the Minister's decision. The decision concerns the grant of titles and the imposition of
title conditions. Decisions concerning the grant of titles and the imposition of title
conditions are matters of high government policy, involving considerations of national
economic and environmental policy. It would therefore be inappropriate to provide for
merits review for this decision, as to allow for an appeal on the merits of the decision
would, in effect, amount to contesting the Government's resource management strategy
and policy of managing the nation's offshore resources in the public interest.
Item 166: Subsection 368A(9)
1331. This item repeals subsection 368A(9) of the OPGGS Act and substitutes new
subsections 368A(9), (9A) and (9B), which prescribe the requirements for applications
for the grant of a cross-boundary GHG injection licence by the holder of a cross-
boundary GHG assessment permit or a cross-boundary GHG holding lease. The notes
at the end of subsection (9B) are replicated from the notes at the end of the previous
subsection 368A(9).
1332. Under new subsection 368A(9), an application for a cross-boundary GHG injection
licence must be made in the form approved by the Titles Administrator. The application
must also be accompanied by any information or documents required by the form, and
by a draft site plan or site plans for the identified GHG storage formation(s) in the
assessment permit or holding lease area.
1333. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
214
1334. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to grant the cross-
boundary GHG injection licence. This includes the matters that are prescribed in new
subsection 368B(1)(i) and (2)(i) (such as information or documents in relation to the
technical advice and the financial resources available to the applicant). It will also
include the information that was previously specified in subsection 368A(9), such as
details of the applicant's proposals for work and expenditure under the licence.
1335. New subsections (9A) and (9B) specify a period within which the draft site plan or
plans, and any other information or documents required to accompany an application
made under section 368A, will be taken to accompany the application, which is the
time before the expiry date of the assessment permit or holding lease. New subsections
(9A) and (9B) provide applicants with flexibility in making applications, particularly if,
for example, information or documents will be given from various sources. Specifying
a period within which information or documents are required to be given ensures
applications, including any information or documents required to accompany
applications, are made within a reasonable period.
Item 167: Subsection 368A(11)
1336. This item amends subsection 368A(11) to provide for the Titles Administrator to
approve more than one manner in which an applicant may make a variation of an
application. See the discussion at the next item.
Item 168: At the end of section 368A
1337. This item inserts new subsection 368A(15) into the OPGGS Act, which provides that
the Titles Administrator must publish on its website a copy of the instrument approving
a manner for giving notice of a variation of an application for the purposes of
subsection 368A(11). This instrument will set out the approved manner or manners for
applications to enable applicants to comply with the requirement in subsection
368A(11).
1338. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1339. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 169: Paragraph 368B(1)(i)
1340. This item repeals and substitutes a new paragraph 368B(1)(i). The amendment clarifies
one of the matters that the responsible Commonwealth Minister must be satisfied of in
order for the Cross-boundary Authority to be required to offer to grant a cross-boundary
GHG injection licence to the holder of a cross-boundary GHG assessment permit.
1341. Under new paragraph 368B(1)(i), the Minister must be satisfied that the technical
advice and financial resources available to the applicant are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
215
1342. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1343. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1344. This amendment will provide the Minister with administrative discretion in relation to
the grant of a licence by the Authority under subsection 368B(1), but does not provide
for merits review of the Minister's decision. The decision concerns the grant of titles.
Decisions concerning the grant of titles and the imposition of title conditions are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 170: After paragraph 368B(1)(j)
1345. This item inserts new paragraph 368B(1)(ja) to provide that the responsible
Commonwealth Minister must also be satisfied of the matters (if any) prescribed in the
regulations in order for the Cross-boundary Authority to be required to grant a cross-
boundary GHG injection licence to the holder of a cross-boundary GHG assessment
permit. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct GHG injection
and storage activities in the specified block or blocks. These matters might include, for
example, additional matters that go to the adequacy of the corporate governance of the
applicant.
1346. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1347. This amendment will provide the Minister with administrative discretion in relation to
the grant of a licence by the Authority under subsection 368B(1), but does not provide
for merits review of the Minister's decision. The decision concerns the grant of titles.
Decisions concerning the grant of titles and the imposition of title conditions are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
216
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 171: Paragraph 368B(2)(i)
1348. This item repeals and substitutes a new paragraph 368B(2)(i). The amendment clarifies
one of the matters that the responsible Commonwealth Minister must be satisfied of in
order for the Cross-boundary Authority to be required to offer to grant a cross-boundary
GHG injection licence to the holder of a cross-boundary GHG holding lease.
1349. Under new paragraph 368B(2)(i), the Minister must be satisfied that the technical
advice and financial resources available to the applicant are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
1350. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
1351. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1352. This amendment will provide the Minister with administrative discretion in relation to
the grant of a licence by the Authority under subsection 368B(2), but does not provide
for merits review of the Minister's decision. The decision concerns the grant of titles.
Decisions concerning the grant of titles and the imposition of title conditions are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 172: After paragraph 368B(2)(j)
1353. This item inserts new paragraph 368B(2)(ja) to provide that the responsible
Commonwealth Minister must also be satisfied of the matters (if any) prescribed in the
regulations in order for the Cross-boundary Authority to be required to grant a cross-
boundary GHG injection licence to the holder of a cross-boundary GHG holding lease.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG injection and storage
217
activities in the specified block or blocks. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
1354. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1355. This amendment will provide the Minister with administrative discretion in relation to
the grant of a licence by the Authority under subsection 368B(2), but does not provide
for merits review of the Minister's decision. The decision concerns the grant of titles.
Decisions concerning the grant of titles and the imposition of title conditions are
matters of high government policy, involving considerations of national economic and
environmental policy. It would therefore be inappropriate to provide for merits review
for this decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 173: Subsection 369(9)
1356. This item repeals subsection 369(9) of the OPGGS Act and substitutes new subsections
369(9), (9A) and (9B), which prescribe the requirements for applications for the grant
of a GHG injection licence by the holder of a petroleum production licence. The notes
at the end of subsection (9B) are replicated from the notes at the end of the previous
subsection 369(9).
1357. Under new subsection 369(9), an application for a GHG injection licence must be made
in the form approved by the Titles Administrator. The application must also be
accompanied by any information or documents required by the form, and by a draft site
plan or site plans for the identified GHG storage formation(s) in the licence area.
1358. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1359. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to grant the GHG
injection licence. This includes the matters that are prescribed in new paragraph 370(h)
(such as information or documents in relation to the technical advice and the financial
218
resources available to the applicant). It will also include the information that was
previously specified in subsection 369(9), such as details of the applicant's proposals
for work and expenditure under the licence.
1360. New subsections (9A) and (9B) specify a period within which the draft site plan or
plans, and any other information or documents required to accompany an application
made under section 369, will be taken to accompany the application, which is the time
before the end of the 10-day period that began on the day after the application was
made. New subsections (9A) and (9B) provide applicants with flexibility in making
applications, particularly if, for example, information or documents will be given from
various sources. Specifying a period within which information or documents are
required to be given ensures applications, including any information or documents
required to accompany applications, are made within a reasonable period.
Item 174: Subsection 369(11)
1361. This item amends subsection 369(11) to provide for the Titles Administrator to approve
more than one manner in which an applicant may make a variation of an application.
See the discussion at the next item.
Item 175: At the end of section 369
1362. This item inserts new subsection 369(15) into the OPGGS Act, which provides that the
Titles Administrator must publish on its website a copy of the instrument approving a
manner for giving notice of a variation of an application for the purposes of subsection
369(11). This instrument will set out the approved manner or manners for applications
to enable applicants to comply with the requirement in subsection 369(11).
1363. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1364. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 176: Paragraph 370(h)
1365. This item repeals and substitutes a new paragraph 370(h). The amendment clarifies one
of the matters that the responsible Commonwealth Minister must be satisfied of in order
to offer to grant a GHG injection licence to the holder of a petroleum production
licence.
1366. Under new paragraph 370(h), the Minister must be satisfied that the technical advice
and financial resources available to the applicant are sufficient to:
a. carry out the operations and works that will be authorised by the licence; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence.
1367. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title being applied for, in addition to its work and obligations under any existing titles.
219
1368. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to remain in the offshore regime, which
in turn will reduce the risk that an entity who does not meet these suitability
requirements will be granted a title. The policy rationale includes creating confidence in
the offshore regime and protecting the taxpayer, but does not aim to provide due
diligence for investors.
1369. This amendment will provide the Minister with administrative discretion in relation to
whether or not the Minister is prepared to grant the licence, but does not provide for
merits review of the Minister's decision. The decision concerns the grant of titles and
the imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 177: After paragraph 370(i)
1370. This item inserts new paragraph 370(j) to provide that the responsible Commonwealth
Minister must also be satisfied of the matters (if any) prescribed in the regulations in
order to grant a GHG injection licence to the holder of a petroleum production licence.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct GHG injection and storage
activities in the specified block or blocks. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
1371. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1372. This amendment will provide the Minister with administrative discretion in relation to
whether or not the Minister is prepared to grant the licence, but does not provide for
merits review of the Minister's decision. The decision concerns the grant of titles and
the imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
220
Item 178: Subsection 374(2)
1373. This item repeals subsection 374(2) of the OPGGS Act and substitutes new subsections
374(2) and (2A), which prescribe the requirements for applications for the variation of
a matter specified in a GHG injection licence.
1374. Under new subsection 374(2), an application for a variation must be made in the form
approved by the Titles Administrator. The application must also be accompanied by
any information or documents required by the form.
1375. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1376. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to vary the matter in
the GHG injection licence. This includes the matters that are prescribed in new
subsection 374(3B) (such as information or documents in relation to the technical
advice and the financial resources available to the applicant). It will also include the
information that was previously specified in subsection 374(2), such as the reasons for
the proposed variation.
1377. New subsection (2A) specifies a period within which information or documents
required to accompany an application made under section 374 will be taken to
accompany the application, which is the time before the end of the 10-day period that
began on the day after the application was made. New subsection (2A) provides
applicants with flexibility in making applications, particularly if, for example,
information or documents will be given from various sources. Specifying a period
within which information or documents are required to be given ensures applications,
including any information or documents required to accompany applications, are made
within a reasonable period.
Item 179: After subsection 374(3)
1378. This item adds new subsections (3A) and (3B) to section 374 of the OPGGS Act, which
set out the criteria that the responsible Commonwealth Minister must and may have
regard to in deciding whether or not to vary a matter specified in a GHG injection
licence under subsection 374(3).
1379. In deciding whether or not to vary the matter, the Minister must have regard to the
matters specified in subsection (3B). These matters go to determining whether or not
221
the applicant is suitable to hold the licence as varied. These matters include whether the
technical advice and financial resources available to the applicant are sufficient to:
a. carry out the operations and works that will be authorised by the licence as varied;
and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence as varied.
1380. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title as varied, in addition to its work and obligations under any existing titles.
1381. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants. The policy rationale includes creating
confidence in the offshore regime and protecting the taxpayer, but does not aim to
provide due diligence for investors.
1382. The Minister must also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of applicants. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
1383. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1384. New paragraph 374(3A)(b) provides that the Minister may also have regard to any
other matters the Minister considers relevant. This ensures it is clear that the Minister
can consider other relevant matters that may not be specified in the provision or the
regulations when deciding whether to vary a matter in a licence.
1385. This amendment will provide the Minister with administrative discretion in relation to
whether or not the Minister is prepared to vary a matter in a licence, but does not
provide for merits review of the Minister's decision. Decisions concerning the variation
of a licence are matters of high government policy, involving considerations of national
economic and environmental policy. It would therefore be inappropriate to provide for
merits review for this decision, as to allow for an appeal on the merits of the decision
would, in effect, amount to contesting the Government's resource management strategy
and policy of managing the nation's offshore resources in the public interest.
Item 180: Subsection 374A(2)
1386. This item repeals subsection 374A(2) of the OPGGS Act and substitutes new
subsections 374A(2) and (2A), which prescribe the requirements for applications for
the variation of a matter specified in a cross-boundary GHG injection licence.
222
1387. Under new subsection 374A(2), an application for a variation must be made in the form
approved by the Titles Administrator. The application must also be accompanied by
any information or documents required by the form.
1388. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1389. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to vary the matter in
the cross-boundary GHG injection licence. This includes the matters that are prescribed
in new subsection 374A(3B) (such as information or documents in relation to the
technical advice and the financial resources available to the applicant). It will also
include the information that was previously specified in subsection 374A(2), such as
the reasons for the proposed variation.
1390. New subsection (2A) specifies a period within which information or documents
required to accompany an application made under section 374A will be taken to
accompany the application, which is the time before the end of the 10-day period that
began on the day after the application was made. New subsection (2A) provides
applicants with flexibility in making applications, particularly if, for example,
information or documents will be given from various sources. Specifying a period
within which information or documents are required to be given ensures applications,
including any information or documents required to accompany applications, are made
within a reasonable period.
Item 181: After subsection 374A(3)
1391. This item adds new subsections (3A) and (3B) to section 374A of the OPGGS Act,
which set out the criteria that the responsible Commonwealth Minister must and may
have regard to in deciding whether or not to vary a matter specified in a cross-boundary
GHG injection licence under subsection 374A(3).
1392. In deciding whether or not to vary the matter, the Minister must have regard to the
matters specified in subsection (3B). These matters go to determining whether or not
the applicant is suitable to hold the licence as varied. These matters include whether the
technical advice and financial resources available to the applicant are sufficient to:
a. carry out the operations and works that will be authorised by the licence as varied;
and
223
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the licence as varied.
1393. When considering the technical and financial resources available to the applicant it
would be legitimate for the Minister to consider other title holdings held by the
applicant. The Minister may decide that the applicant does not have sufficient financial
and technical resources available to undertake work and discharge obligations under the
title as varied, in addition to its work and obligations under any existing titles.
1394. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants. The policy rationale includes creating
confidence in the offshore regime and protecting the taxpayer, but does not aim to
provide due diligence for investors.
1395. The Minister must also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of applicants. These matters might include, for example,
additional matters that go to the adequacy of the corporate governance of the applicant.
1396. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1397. New paragraph 374A(3A)(b) provides that the Minister may also have regard to any
other matters the Minister considers relevant. This ensures it is clear that the Minister
can consider other relevant matters that may not be specified in the provision or the
regulations when deciding whether to vary a matter in a licence.
1398. This amendment will provide the Minister with administrative discretion in relation to
whether or not the Minister is prepared to vary a matter in a licence, but does not
provide for merits review of the Minister's decision. Decisions concerning the variation
of a licence are matters of high government policy, involving considerations of national
economic and environmental policy. It would therefore be inappropriate to provide for
merits review for this decision, as to allow for an appeal on the merits of the decision
would, in effect, amount to contesting the Government's resource management strategy
and policy of managing the nation's offshore resources in the public interest.
Item 182: After subsection 386(2)
1399. This item adds new subsections (2A) to (2D) to section 386 of the OPGGS Act to
specify a period within which reports, suggestions and any other information required
by the regulations, that are required to accompany an application for a site closing
certificate made under that section, will be taken to accompany the application. If as a
result of the operation of section 386 an application for a site closing certificate must be
made within a particular period, the reports, suggestions and information will be taken
to accompany the application if they are submitted before the end of that period.
Otherwise, accompanying reports, suggestions and information will be taken to
224
accompany the application if they are submitted before the end of the 10-day period
that began on the day after the application was made. New subsections (2A) to (2D)
provides applicants with flexibility in making applications, particularly if, for example,
information or documents will be given from various sources. Specifying a period
within which reports, suggestions and any other information are required to be given
ensures applications are made within a reasonable period.
Item 183: Subsection 387(3)
1400. This item amends subsection 387(3) to provide for the Titles Administrator to approve
more than one manner in which an applicant may make a variation of an application for
a site closing certificate. See the discussion at the next item.
Item 184: At the end of section 387
1401. This item inserts new subsection 387(7) into the OPGGS Act, which provides that the
Titles Administrator must publish on its website a copy of the instrument approving a
manner for giving notice of a variation of an application for the purposes of subsection
387(3). This instrument will set out the approved manner or manners for applications to
enable applicants to comply with the requirement in subsection 387(3).
1402. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1403. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 185: At the end of section 426
1404. This item inserts new subsection 426(3) into the OPGGS Act, which provides that the
Titles Administrator must publish on its website a copy of the instrument approving a
manner for making an application. This instrument will set out the approved manner or
manners for applications to enable applicants to comply with the requirement in
subsection 426(2).
1405. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1406. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 186: After subsection 427(4)
1407. This item inserts new subsection 427(4A), specifying a period within which an
application fee that is required to accompany an application referred to in subsection
427(1) will be taken to accompany the application, which is the time before the end of
the 10-day period beginning on the day after the application was made. New subsection
(4A) provides applicants with flexibility in making payment to accompany their
applications, particularly if, for example, there is a delay in electronic transfers or
clearance of cheques. Specifying a period within which payment is required to be made
225
ensures applications, and any accompanying payment, are made within a reasonable
period.
Item 187: After subsection 436(2)
1408. This item inserts new subsection (2A) into section 436 of the OPGGS Act, which sets
out the criteria that the responsible Commonwealth Minister may have regard to in
deciding whether or not to vary, suspend or exempt a permittee, lessee or licensee from
compliance with any of the conditions to which the permit, lease or licence is subject
under subsection 436(2).
1409. In making a decision, the Minister may have regard to the matters specified in new
subsection 436(2A). These matters go to determining whether or not the permittee,
lessee or licensee is suitable to continue to carry out operations under the permit, lease
or licence if the condition is varied or suspended, or if the permittee, lessee or licensee
is exempted from compliance with the condition. These matters include whether the
technical advice and financial resources available to the permittee, lessee or licensee are
sufficient to:
a. carry out the operations and works that will be authorised by the permit, lease or
licence if the condition is varied or suspended, or the permittee, lessee or licensee
is exempted from compliance with the condition; and
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the permit, lease or licence if the condition
is varied or suspended, or the permittee, lessee or licensee is exempted from
compliance with the condition.
1410. When considering the technical and financial resources available to the permittee,
lessee or licensee it would be legitimate for the Minister to consider other title holdings
held by the permittee, lessee or licensee. The Minister may decide that the permittee,
lessee or licensee does not have sufficient financial and technical resources available to
undertake work and discharge obligations if the title condition is varied or suspended,
in addition to its work and obligations under any existing titles.
1411. Variation or suspension of, or exemption from compliance with, the conditions of a
permit, lease or licence may impact the technical and financial capacity of the
permittee, lessee or licensee to carry out its activities and discharge its obligations.
While this is most likely in the case of a variation of title conditions (e.g. if a
requirement to undertake a seismic survey is replaced with a requirement to drill a
well), there are also circumstances in which a suspension or exemption may affect
technical and financial capacity. This may be the case, for example, if a suspension of
title conditions is accompanied by an extension of the term of the title - there may be a
greater risk of a change of circumstances over the extended term, particularly if the
term is extended on more than one occasion.
1412. The Minister may also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
making a decision under subsection 436(2). These matters might include, for example,
226
additional matters that go to the ongoing adequacy of the corporate governance of the
permittee, lessee or licensee.
1413. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria.
1414. New paragraph 436(2A)(c) provides that the Minister may also have regard to any other
matters the Minister considers relevant. This ensures it is clear that the Minister can
consider other relevant matters that may not be specified in the provision or the
regulations when deciding whether to vary or suspend, or to exempt a permittee, lessee
or licensee from compliance with, a condition or the permit, lease or licence.
1415. The Minister may, rather than must, take the matters in new subsection 436(2A) into
account, as the criteria will not be relevant in all circumstances. For example, the
criteria is more likely to be relevant to applications relating to the conditions of an
exploration title, rather an injection title, and is less likely to be relevant to an
application for an exemption from compliance with a title condition.
1416. These amendments will provide the Minister with administrative discretion in addition
to the existing decision-making power provided for in subsection 436(2), but do not
provide for merits review of the Minister's decision. The decision concerns the
imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 188: After subsection 439A(3)
1417. This item inserts new subsection (3A) into section 439A of the OPGGS Act, which sets
out the criteria that the Cross-boundary Authority may have regard to in deciding
whether or not to vary, suspend or exempt a permittee, lessee or licensee from
compliance with any of the conditions to which the cross-boundary permit, lease or
licence is subject under subsection 439A(3).
1418. In making a decision, the Authority may have regard to the matters specified in new
subsection 439A(3A). These matters go to determining whether or not the permittee,
lessee or licensee is suitable to continue to carry out operations under the permit, lease
or licence if the condition is varied or suspended, or if the permittee, lessee or licensee
is exempted from compliance with the condition. These matters include whether the
technical advice and financial resources available to the permittee, lessee or licensee are
sufficient to:
a. carry out the operations and works that will be authorised by the permit, lease or
licence if the condition is varied or suspended, or the permittee, lessee or licensee
is exempted from compliance with the condition; and
227
b. discharge the obligations that are imposed under the OPGGS Act, or a legislative
instrument under the Act, in relation to the permit, lease or licence if the condition
is varied or suspended, or the permittee, lessee or licensee is exempted from
compliance with the condition.
1419. When considering the technical and financial resources available to the permittee,
lessee or licensee it would be legitimate for the Authority to consider other title
holdings held by the permittee, lessee or licensee. The Authority may decide that the
permittee, lessee or licensee does not have sufficient financial and technical resources
available to undertake work and discharge obligations if the title condition is varied or
suspended, in addition to its work and obligations under any existing titles.
1420. Variation or suspension of, or exemption from compliance with, the conditions of a
permit, lease or licence may impact the technical and financial capacity of the
permittee, lessee or licensee to carry out its activities and discharge its obligations.
While this is most likely in the case of a variation of title conditions (e.g. if a
requirement to undertake a seismic survey is replaced with a requirement to drill a
well), there are also circumstances in which a suspension or exemption may affect
technical and financial capacity. This may be the case, for example, if a suspension of
title conditions is accompanied by an extension of the term of the title - there may be a
greater risk of a change of circumstances over the extended term, particularly if the
term is extended on more than one occasion.
1421. The Authority may also have regard to any other matters prescribed in the regulations.
Enabling the regulations to prescribe additional matters will provide the Government
with the flexibility to provide for other matters that are necessary and appropriate for
making a decision under subsection 439A(3). These matters might include, for
example, additional matters that go to the ongoing adequacy of the corporate
governance of the permittee, lessee or licensee.
1422. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria.
1423. New paragraph 439A(3A)(c) provides that the Authority may also have regard to any
other matters the Authority considers relevant. This ensures it is clear that the Authority
can consider other relevant matters that may not be specified in the provision or the
regulations when deciding whether to vary or suspend, or to exempt a permittee, lessee
or licensee from compliance with, a condition or the permit, lease or licence.
1424. The Authority may, rather than must, take the matters in new subsection 439A(3A) into
account, as the criteria will not be relevant in all circumstances. For example, the
criteria is more likely to be relevant to applications relating to the conditions of an
exploration title, rather an injection title, and is less likely to be relevant to an
application for an exemption from compliance with a title condition.
1425. These amendments will provide the Authority with administrative discretion in addition
to the existing decision-making power provided for in subsection 439A(3), but do not
provide for merits review of the Authority's decision. The decision concerns the
228
imposition of title conditions. Decisions concerning the grant of titles and the
imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 189: Subsection 473(2)
1426. This item repeals subsection 473(2) and substitutes new subsections 473(2) and (3) into
the OPGGS Act. Previously, subsection 473(2) required that an application for a
transfer of a title must be in writing. New subsection 473(2) instead provides for an
application to be made in an approved manner.
1427. New subsection 473(3) provides that the Titles Administrator must publish on its
website a copy of the instrument approving a manner for making an application for a
transfer of a title. This instrument will set out the approved manner or manners for
applications to enable applicants to comply with the requirements in new subsection
473(2).
1428. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1429. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 190: Section 474
1430. This item repeals and substitutes a new section 474, which amends the requirements for
applications for approval of a transfer of a title.
1431. Under new subsection 474(1), an application for approval of a transfer of a title must be
made in the form approved by the Titles Administrator. The application must also be
accompanied by an instrument of transfer in the form approved in a notifiable
instrument and by any other information or documents required by the application
form.
1432. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
229
1433. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to approve the transfer
of the title. This includes the matters that are prescribed in new subsection 478(3B)
(such as information or documents in relation to the technical advice and the financial
resources available to the transferee).
1434. Previously, an instrument of transfer that is required to accompany an application was
required to be in the prescribed form. New paragraph 474(1)(b) instead provides for the
instrument to be in the form approved by the Titles Administrator by notifiable
instrument (see new subsection 474(4)). This is in line with whole-of-government
policy to reduce the number of provisions on the statute book that require the use of
forms that are prescribed by regulations.
1435. Previously, paragraph 474(d) also required an application to be accompanied by a copy
of the instrument of transfer. This requirement implied that the original, hard-copy
instrument of transfer was required to be provided in accordance with paragraph
474(1)(b). This is not the policy intent, particularly in order to facilitate electronic
submission of applications. Removing the requirement for a copy of an instrument of
transfer clearly negates any inference that an original, hard-copy of an instrument of
transfer must be provided, and also removes unnecessary burden in the application
process.
1436. New subsections (2) and (3) specify a period within which the instrument of transfer
and any other information or documents required to accompany an application made
under section 474 will be taken to accompany the application, which is the time before
the end of the period applicable under subsection 476(1) (i.e. the time limit for making
an application). New subsections (2) and (3) provide applicants with flexibility in
making applications, particularly if, for example, information or documents will be
given from various sources. Specifying a period within which information or
documents are required to be given ensures applications, including any information or
documents required to accompany applications, are made within a reasonable period.
Item 191: After subsection 478(2)
1437. This items inserts new subsections 478(3) to (3B). New subsection 478(3) enables the
Titles Administrator to consult with the Joint Authority, NOPSEMA and/or the
responsible Commonwealth Minister before deciding whether to approve a transfer of a
title under subsection 478(2). Under new paragraph 478(3A)(b), the Titles
Administrator may have regard to any matters raised in those consultations in deciding
whether to approve the transfer. This will enable the Titles Administrator to take into
account matters that are relevant to the decision, but not necessarily within its purview.
These matters might include, for example, strategic resource security considerations or
the transferee's compliance history.
1438. New subsection 478(3A) and (3B) set out the criteria that the Titles Administrator must
and may have regard to in deciding whether or not to approve a transfer of a title under
subsection 478(2).
230
1439. The Titles Administrator must have regard to the matters specified in subsection (3B).
These matters go to determining whether or not the transferee or transferees are suitable
to hold the title. These matters include:
a. whether the technical advice and financial resources available to the transferee or
transferees if the title is transferred are sufficient to:
i. carry out the operations and works that will be authorised by the title; and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the Act, in relation to the title; and
b. the matters specified in section 695YB as they apply to the transferee or
transferees, including any officers of the transferee(s) if the transferee(s) are a body
corporate.
1440. The matters specified in section 695YB go to the transferee's compliance history and
experience in offshore petroleum operations, and will enable the Titles Administrator to
scrutinise the suitability of the transferee or transferees to hold a title.
1441. When considering the technical and financial resources available to the transferee or
transferees it would be legitimate for the Titles Administrator to consider other title
holdings held by the transferee or transferees. The Titles Administrator may decide that
the transferee(s) do not have sufficient financial and technical resources available to
undertake work and discharge obligations under the title that is proposed to be
transferred, in addition to its work and obligations under any existing titles.
1442. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
1443. The Titles Administrator must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct petroleum
activities. These matters might include, for example, additional matters that go to the
adequacy of the corporate governance of the transferee or transferees.
1444. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1445. New paragraph 478(3A)(c) provides that the Titles Administrator may also have regard
to any other matters the Titles Administrator considers relevant. This ensures it is clear
that the Titles Administrator can consider other relevant matters that may not be
specified in the provision or the regulations when deciding whether to approve a
transfer of a title.
231
1446. These amendments will provide the Titles Administrator with administrative discretion
in addition to the existing decision-making power provided for in subsection 478(2),
but do not provide for merits review of the Titles Administrator's decision. The
decision concerns the grant of a title by approval of a transfer of the title. Decisions
concerning the grant of titles are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 192: Subsection 479(2)
1447. This item repeals and substitutes a new subsection 479(2). Previously, if an application
for a transfer of a title was approved, subsection 479(2) required the Titles
Administrator to endorse a memorandum of approval on the instrument of transfer and
the copy of the instrument of transfer.
1448. Item 190 of this Schedule amends section 474 so that an application for approval of a
transfer of a title is no longer required to be accompanied by a copy of the instrument of
transfer - see discussion at that item. This item therefore substitutes a new subsection
479(2) which no longer includes reference to the copy of the instrument of transfer.
Item 193: Subsection 479(5)
1449. This item repeals and substitutes a new subsection 479(5). Previously, if a transfer of a
title was registered, paragraph 479(5)(a) required the copy of the instrument of transfer
endorsed with the memorandum of approval to be retained by the Titles Administrator
and made available for inspection. Item 192 of this Schedule amends subsection 479(2)
to remove reference to 'the copy of the instrument of transfer' - see discussion at that
item. New paragraph 479(5)(a) therefore instead requires a copy of the instrument of
transfer that is endorsed with a memorandum of approval under subsection 479(2) to be
retained by the Titles Administrator and made available for inspection.
1450. New paragraphs 479(5)(b) and (c) clarify what must be done with the instrument of
transfer endorsed with the memorandum of approval if the instrument of transfer that
accompanied the application for approval of a transfer was provided in hard copy or
electronically respectively.
Item 194: Subsection 488(4)
1451. This item repeals subsection 488(4) and substitutes new subsections 488(4) and (5) into
the OPGGS Act. Previously, subsection 488(4) required that an application for approval
of a dealing relating to a title must be in writing. New subsection 488(4) instead
provides for an application to be made in an approved manner.
1452. New subsection 488(5) provides that the Titles Administrator must publish on its
website a copy of the instrument approving a manner for making an application for
approval of a dealing. This instrument will set out the approved manner or manners for
applications to enable applicants to comply with the requirements in new subsection
488(4).
232
1453. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1454. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 195: Subsection 489(1)
1455. This item repeals subsection 489(1) and substitutes new subsections 489(1), (1A) and
(1B), which amend the requirements for applications for approval of a dealing in
relation to a title.
1456. Under new subsection 489(1), an application for approval of a dealing must be made in
the form approved by the Titles Administrator. The application must also be
accompanied by the instrument evidencing the dealing and by any other information or
documents required by the application form.
1457. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if relevant information or documents have
recently been provided to the Titles Administrator and there has been no material
change, that information or those documents do not need to be provided again for the
purposes of the application.
1458. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to approve the
dealing.
1459. New subsections 489(1A) and (1B) specify a period within which the instrument
evidencing the dealing and any other information or documents required to accompany
an application will be taken to accompany the application. In the case of the instrument
evidencing the dealing, the instrument will be taken to accompany the application if the
instrument has already been lodged with the Titles Administrator for the purposes of
another application. Otherwise, the instrument will be taken to accompany the
application if it is given to the Titles Administrator before the end of the period
applicable under subsection 491(1) or section 503, as the case may be (i.e. the time
limit for making an application). If other information or documents are required to
accompany and application, the information or documents will be taken to accompany
the application if they are given to the Titles Administrator before the end of the period
applicable under subsection 491(1) or section 503, as the case may be.
1460. New subsections (1A) and (1B) provide applicants with flexibility in making
applications, particularly if, for example, information or documents will be given from
various sources. Specifying a period within which information or documents are
233
required to be given ensures applications, including any information or documents
required to accompany applications, are made within a reasonable period.
Item 196: Subsection 489(2)
1461. This item amends subsection 489(2) to enable an application for approval of a dealing
to be accompanied by an instrument in a form approved in a notifiable instrument (a
supplementary instrument). Previously, a supplementary instrument was required to set
out such details as were prescribed by the regulations for the purposes of an application.
Subsection 489(2) as amended by this item instead provides for the instrument to be in
the form approved by the Titles Administrator by notifiable instrument (see new
subsection 489(5), which is inserted by item 199 of this Schedule). This is in line with
whole-of-government policy to reduce the number of provisions on the statute book
that require the use of forms that are prescribed by regulations.
Item 197: After subsection 489(2)
1462. This item inserts new subsection 489(2A), which specifies a period within which the
instrument referred to in subsection 489(2) (the supplementary instrument) will be
taken to accompany the application for approval of a dealing, which is the time before
the end of the period applicable under subsection 491(1) or section 503, as the case may
be (i.e. the time limit for making an application). New subsection (2A) provides
applicants with flexibility in making applications. Specifying a period within which
information or documents are required to be given ensures applications, including any
information or documents required to accompany applications, are made within a
reasonable period.
Item 198: Subsection 489(4A)
1463. This item repeals subsection 489(4A). Subsection 489(4A) required an application for
approval of a dealing to be accompanied by a copy of the instrument evidencing the
dealing and of any supplementary instrument. This requirement implied that the
original, hard-copy instruments were required to be provided in accordance with
subsections 489(1) and (2). This is not the policy intent, particularly in order to
facilitate electronic submission of applications. Removing the requirement for a copy of
the instruments clearly negates any inference that an original, hard-copy of the
instruments must be provided, and also removes unnecessary burden in the application
process.
Item 199: At the end of section 489
1464. This item inserts new subsection 489(5), which enables the Titles Administrator to
approve a form for the purposes of subsection 489(2) by notifiable instrument. See
discussion at item 196.
Item 200: After subsection 493(2)
1465. This item inserts new subsection 493(3), which sets out the criteria that the Titles
Administrator must and may have regard to in deciding whether or not to approve a
dealing that relates to a title under subsection 493(2).
234
1466. The Titles Administrator must have regard to any matters prescribed in the regulations.
Unlike other title-related decisions in the OPGGS Act, it is not proposed to specify in
the legislation that matters such as the technical and financial capacity of an applicant
must be taken into account when making a decision to approve a dealing. The
regulatory burden imposed in requiring consideration of such matters would outweigh
any risks associated with approving a dealing. In some cases applications for approval
of dealings are coupled with an application for approval of a transfer of the title, for
which matters including technical and financial capacity and fitness to hold the title will
be assessed.
1467. As an alternative, enabling the regulations to prescribe matters that must be taken into
account when deciding whether to approve a dealing will future-proof the provision if it
becomes evident that the risks are higher than anticipated, or that certain types of
dealings have a higher risk than others. Any additional matters prescribed in the
regulations will be subject to appropriate scrutiny through the regulation-making
process, which includes parliamentary tabling and disallowance procedures. The
industry will also be notified of any additional matters to reduce any potential increase
in legislative complexity in having to understand and comply with these additional
criteria, including through an update to the approved application form.
1468. New paragraph 493(3)(b) provides that the Titles Administrator may also have regard
to any other matters the Titles Administrator considers relevant. This ensures it is clear
that the Titles Administrator can consider other relevant matters that may not be
specified in the regulations when deciding whether to approve a dealing.
1469. These amendments will provide the Titles Administrator with administrative discretion
in addition to the existing decision-making power provided for in subsection 493(2),
but do not provide for merits review of the Titles Administrator's decision. The
decision concerns dealings in relation to titles. A dealing is generally a commercial
arrangement or agreement that relates to a title. However, a refusal to approve a dealing
does not impact on who holds the title and is able to exercise the rights conferred by the
title. Further, a refusal decision does not prevent the applicant revising the proposed
dealing to take account of the reasons for refusal of the decision, and submitting a
further application for approval.
Item 201: Subsection 494(2)
1470. This item repeals and substitutes a new subsection 494(2). Previously, if an application
for a dealing was approved, subsection 494(2) required the Titles Administrator to
endorse a memorandum of approval on the original instrument evidencing the dealing
and on the copy of that instrument, or on both copies of the instrument if the original
instrument was not lodged with the application for approval.
1471. Item 198 of this Schedule repeals subsection 489(4A) so that an application for
approval of a dealing is no longer required to be accompanied by a copy or copies of
the instrument evidencing the dealing - see discussion at that item. This item therefore
substitutes a new subsection 494(2) which no longer includes references to the original
instrument and copies of the instrument, and instead provides that the Titles
Administrator must endorse a memorandum of approval on the instrument evidencing
235
the dealing (which is provided to the Titles Administrator, either electronically or in
hard copy, under paragraph 489(1)(b)).
Item 202: Subsections 495(2) and (3)
1472. This item repeals and substitutes new subsection 495(2) and (3).
1473. Subsection 495(2) applies if an application for approval of a dealing in relation to a title
was accompanied by a supplementary instrument. New paragraph 495(2)(a) is not
changed from the previous paragraph 495(2)(a). New paragraphs 495(2)(b) and (c)
clarify what must be done with the supplementary instrument that accompanied the
application if that instrument was provided in hard copy or electronically respectively.
New paragraph 495(2)(d) is not changed from previous paragraph 495(2)(c). New
paragraphs 495(2)(e) and (f) clarify what must be done with the instrument evidencing
the dealing endorsed with the memorandum of approval if the instrument was provided
in hard copy or electronically respectively.
1474. Subsection 495(3) applies if an application for approval of a dealing was not
accompanied by a supplementary instrument. New paragraph 495(3)(a) is not changed
in effect from the previous paragraph 495(3)(a). New paragraphs 495(3)(b) and (c)
clarify what must be done with the instrument evidencing the dealing endorsed with the
memorandum of approval if the instrument was provided in hard copy or electronically
respectively.
Item 203: Subsection 498(4)
1475. This item repeals subsection 498(4) and substitutes new subsections 498(4) and (5) into
the OPGGS Act. Previously, subsection 498(4) required that a provisional application
for approval of a dealing relating to a title must be in writing. New subsection 498(4)
instead provides for an application to be made in an approved manner.
1476. New subsection 498(5) provides that the Titles Administrator must publish on its
website a copy of the instrument approving a manner for making a provisional
application for approval of a dealing. This instrument will set out the approved manner
or manners for applications to enable applicants to comply with the requirements in
new subsection 498(4).
1477. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1478. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 204: Subsection 499(1)
1479. This item repeals subsection 499(1) and substitutes new subsections 499(1), (1A) and
(1B), which amend the requirements for provisional applications for approval of a
dealing in relation to a title.
1480. Under new subsection 499(1), a provisional application for approval of a dealing must
be made in the form approved by the Titles Administrator. The application must also be
accompanied by the instrument evidencing the dealing and by any other information or
documents required by the application form.
236
1481. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if relevant information or documents have
recently been provided to the Titles Administrator and there has been no material
change, that information or those documents do not need to be provided again for the
purposes of the application.
1482. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to approve the
dealing.
1483. New subsections 499(1A) and (1B) specify a period within which the instrument
evidencing the dealing and any other information or documents required to accompany
an application will be taken to accompany the application. In the case of the instrument
evidencing the dealing, the instrument will be taken to accompany the application if the
instrument has already been lodged with the Titles Administrator for the purposes of
another application. Otherwise, the instrument will be taken to accompany the
application if it is given to the Titles Administrator before the end of the period
applicable under section 501 (i.e. the time limit for making an application). If other
information or documents are required to accompany an application, the information or
documents will be taken to accompany the application if they are given to the Titles
Administrator before the end of the period applicable under section 501.
1484. New subsections (1A) and (1B) provide applicants with flexibility in making
applications, particularly if, for example, information or documents will be given from
various sources. Specifying a period within which information or documents are
required to be given ensures applications, including any information or documents
required to accompany applications, are made within a reasonable period.
Item 205: Subsection 499(2)
1485. This item amends subsection 499(2) to enable a provisional application for approval of
a dealing to be accompanied by an instrument in a form approved in a notifiable
instrument (a supplementary instrument). Previously, a supplementary instrument was
required to set out such details as were prescribed by the regulations for the purposes of
an application. Subsection 499(2) as amended by this item instead provides for the
instrument to be in the form approved by the Titles Administrator by notifiable
instrument (see new subsection 499(5), which is inserted by item 208 of this Schedule).
This is in line with whole-of-government policy to reduce the number of provisions on
the statute book that require the use of forms that are prescribed by regulations.
237
Item 206: After subsection 499(2)
1486. This item inserts new subsection 499(2A), which specifies a period within which the
instrument referred to in subsection 499(2) (the supplementary instrument) will be
taken to accompany the provisional application for approval of a dealing, which is the
time before the end of the period applicable under section 501 (i.e. the time limit for
making an application). New subsection (2A) provides applicants with flexibility in
making applications. Specifying a period within which information or documents are
required to be given ensures applications, including any information or documents
required to accompany applications, are made within a reasonable period.
Item 207: Subsection 499(4A)
1487. This item repeals subsection 499(4A). Subsection 499(4A) required a provisional
application for approval of a dealing to be accompanied by a copy of the instrument
evidencing the dealing and of any supplementary instrument. This requirement implied
that the original, hard-copy instruments were required to be provided in accordance
with subsections 499(1) and (2). This is not the policy intent, particularly in order to
facilitate electronic submission of applications. Removing the requirement for a copy of
the instruments clearly negates any inference that an original, hard-copy of the
instruments must be provided, and also removes unnecessary burden in the application
process.
Item 208: At the end of section 499
1488. This item inserts new subsection 499(5), which enables the Titles Administrator to
approve a form for the purposes of subsection 499(2) by notifiable instrument. See
discussion at item 205.
Item 209: After subsection 516A(3)
1489. This item inserts new subsection 516A(3A), specifying a period within which an
application fee that is required to accompany an application referred to in subsection
516A(4) will be taken to accompany the application, which is the time before the end of
the 10-day period beginning on the day after the application was made. New subsection
(3A) provides applicants with flexibility in making payment to accompany their
applications, particularly if, for example, there is a delay in electronic transfers or
clearance of cheques. Specifying a period within which payment is required to be made
ensures applications, and any accompanying payment, are made within a reasonable
period.
Item 210: Subsection 525(2)
1490. This item repeals subsection 525(2) and substitutes new subsections 525(2) and (3) into
the OPGGS Act. Previously, subsection 525(2) required that an application for a
transfer of a title must be in writing. New subsection 525(2) instead provides for an
application to be made in an approved manner.
1491. New subsection 525(3) provides that the Titles Administrator must publish on its
website a copy of the instrument approving a manner for making an application for a
transfer of a title. This instrument will set out the approved manner or manners for
238
applications to enable applicants to comply with the requirements in new subsection
525(2).
1492. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1493. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 211: Section 526
1494. This item repeals and substitutes a new section 526, which amends the requirements for
applications for approval of a transfer of a title.
1495. Under new subsection 526(1), an application for approval of a transfer of a title must be
made in the form approved by the Titles Administrator. The application must also be
accompanied by an instrument of transfer in the form approved in a notifiable
instrument and by any other information or documents required by the application
form.
1496. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1497. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to approve the transfer
of the title. This includes the matters that are prescribed in new subsection 529(2C)
(such as information or documents in relation to the technical advice and the financial
resources available to the transferee).
1498. Previously, an instrument of transfer that is required to accompany an application was
required to be in the prescribed form. New paragraph 526(1)(b) instead provides for the
instrument to be in the form approved by the Titles Administrator by notifiable
instrument (see new subsection 526(4)). This is in line with whole-of-government
policy to reduce the number of provisions on the statute book that require the use of
forms that are prescribed by regulations.
1499. Previously, paragraph 526(c) also required an application to be accompanied by a copy
of the application and of the documents required to accompany the application. This
requirement implied that the original, hard-copy documents were required to be
provided in accordance with subsection 526(1). This is not the policy intent,
particularly in order to facilitate electronic submission of applications. Removing the
239
requirement for a copy of the application and accompanying documents clearly negates
any inference that an original, hard-copy must be provided, and also removes
unnecessary burden in the application process.
1500. New subsections (2) and (3) specify a period within which the instrument of transfer
and any other information or documents required to accompany an application made
under section 525 will be taken to accompany the application, which is the time before
the end of the period applicable under subsection 527(1) (i.e. the time limit for making
an application). New subsections (2) and (3) provide applicants with flexibility in
making applications, particularly if, for example, information or documents will be
given from various sources. Specifying a period within which information or
documents are required to be given ensures applications, including any information or
documents required to accompany applications, are made within a reasonable period.
Item 212: After subsection 529(2)
1501. This item inserts new subsections 529(2A) to (2C). New subsection 529(2A) enables
the Titles Administrator to consult with the Cross-boundary Authority, NOPSEMA
and/or the responsible Commonwealth Minister before deciding whether to approve a
transfer of a title under subsection 529(2). Under new paragraph 529(2B)(b), the Titles
Administrator may have regard to any matters raised in those consultations in deciding
whether to approve the transfer. This will enable the Titles Administrator to take into
account matters that are relevant to the decision, but not necessarily within its purview.
These matters might include, for example, strategic resource security considerations or
the transferee's compliance history.
1502. New subsections 529(2B) and (2C) set out the criteria that the Titles Administrator
must and may have regard to in deciding whether or not to approve a transfer of a title
under subsection 529(2).
1503. The Titles Administrator must have regard to the matters specified in subsection (2C).
These matters go to determining whether or not the transferee or transferees are suitable
to hold the title. These matters include:
a. whether the technical advice and financial resources available to the transferee or
transferees if the title is transferred are sufficient to:
i. carry out the operations and works that will be authorised by the title; and
ii. discharge the obligations that are imposed under the OPGGS Act, or a
legislative instrument under the Act, in relation to the title; and
b. the matters specified in section 695YB as they apply to the transferee or
transferees, including any officers of the transferee(s) if the transferee(s) are a body
corporate.
1504. The matters specified in section 695YB go to the transferee's compliance history and
experience in offshore GHG storage operations, and will enable the Titles
Administrator to scrutinise the suitability of the transferee or transferees to hold a title.
1505. When considering the technical and financial resources available to the transferee or
transferees it would be legitimate for the Titles Administrator to consider other title
holdings held by the transferee or transferees. The Titles Administrator may decide that
the transferee(s) do not have sufficient financial and technical resources available to
240
undertake work and discharge obligations under the title that is proposed to be
transferred, in addition to its work and obligations under any existing titles.
1506. The amendment made by this item aims to ensure that the Government will be better
equipped to screen the suitability of applicants to enter the offshore regime, which in
turn will reduce the risk that an entity who does not meet these suitability requirements
will be granted a title. The policy rationale includes creating confidence in the offshore
regime and protecting the taxpayer, but does not aim to provide due diligence for
investors.
1507. The Titles Administrator must also have regard to any other matters prescribed in the
regulations. Enabling the regulations to prescribe additional matters will provide the
Government with the flexibility to provide for other matters that are necessary and
appropriate for determining the suitability of those who wish to conduct GHG storage-
related storage activities. These matters might include, for example, additional matters
that go to the adequacy of the corporate governance of the transferee or transferees.
1508. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling
and disallowance procedures. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved application form.
1509. New paragraph 529(2B)(c) provides that the Titles Administrator may also have regard
to any other matters the Titles Administrator considers relevant. This ensures it is clear
that the Titles Administrator can consider other relevant matters that may not be
specified in the provision or the regulations when deciding whether to approve a
transfer of a title.
1510. These amendments will provide the Titles Administrator with administrative discretion
in addition to the existing decision-making power provided for in subsection 529(2),
but do not provide for merits review of the Titles Administrator's decision. The
decision concerns the grant of a title by approval of a transfer of the title. Decisions
concerning the grant of titles and the imposition of title conditions are matters of high
government policy, involving considerations of national economic and environmental
policy. It would therefore be inappropriate to provide for merits review for this
decision, as to allow for an appeal on the merits of the decision would, in effect,
amount to contesting the Government's resource management strategy and policy of
managing the nation's offshore resources in the public interest.
Item 213: Subsection 530(2)
1511. This item repeals and substitutes a new subsection 530(2). Previously, if an application
for a transfer of a title was approved, subsection 530(2) required the Titles
Administrator to endorse a memorandum of approval on the instrument of transfer and
the copy of the instrument of transfer.
1512. Item 211 of this Schedule amends section 526 so that an application for approval of a
transfer of a title is no longer required to be accompanied by a copy of the instrument of
241
transfer - see discussion at that item. This item therefore substitutes a new subsection
530(2) which no longer includes reference to the copy of the instrument of transfer.
Item 214: Subsection 530(5)
1513. This item repeals and substitutes a new subsection 530(5). Previously, if a transfer of a
title was registered, paragraph 530(5)(a) required the copy of the instrument of transfer
endorsed with the memorandum of approval to be retained by the Titles Administrator
and made available for inspection. Item 213 of this Schedule amends subsection 530(2)
to remove reference to 'the copy of the instrument of transfer' - see discussion at that
item. New paragraph 530(5)(a) therefore instead requires a copy of the instrument of
transfer that is endorsed with a memorandum of approval under subsection 530(2) to be
retained by the Titles Administrator and made available for inspection.
1514. New paragraphs 530(5)(b) and (c) clarify what must be done with the instrument of
transfer endorsed with the memorandum of approval if the instrument of transfer that
accompanied the application for approval of a transfer was provided in hard copy or
electronically respectively.
Item 215: Subsection 539(4)
1515. This item repeals subsection 539(4) and substitutes new subsections 539(4) and (5) into
the OPGGS Act. Previously, subsection 539(4) required that an application for approval
of a dealing relating to a title must be in writing. New subsection 539(4) instead
provides for an application to be made in an approved manner.
1516. New subsection 539(5) provides that the Titles Administrator must publish on its
website a copy of the instrument approving a manner for making an application for
approval of a dealing. This instrument will set out the approved manner or manners for
applications to enable applicants to comply with the requirements in new subsection
539(4).
1517. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1518. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 216: Subsection 540(1)
1519. This item repeals subsection 540(1) and substitutes new subsections 540(1), (1A) and
(1B), which amend the requirements for applications for approval of a dealing in
relation to a title.
1520. Under new subsection 540(1), an application for approval of a dealing must be made in
the form approved by the Titles Administrator. The application must also be
accompanied by the instrument evidencing the dealing and by any other information or
documents required by the application form.
1521. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
242
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if relevant information or documents have
recently been provided to the Titles Administrator and there has been no material
change, that information or those documents do not need to be provided again for the
purposes of the application.
1522. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to approve the
dealing.
1523. New subsections 540(1A) and (1B) specify a period within which the instrument
evidencing the dealing and any other information or documents required to accompany
an application will be taken to accompany the application. In the case of the instrument
evidencing the dealing, the instrument will be taken to accompany the application if the
instrument has already been lodged with the Titles Administrator for the purposes of
another application. Otherwise, the instrument will be taken to accompany the
application if it is given to the Titles Administrator before the end of the period
applicable under subsection 541(1) or section 552, as the case may be (i.e. the time
limit for making an application). If other information or documents are required to
accompany an application, the information or documents will be taken to accompany
the application if they are given to the Titles Administrator before the end of the period
applicable under subsection 541(1) or section 552, as the case may be.
1524. New subsections (1A) and (1B) provide applicants with flexibility in making
applications, particularly if, for example, information or documents will be given from
various sources. Specifying a period within which information or documents are
required to be given ensures applications, including any information or documents
required to accompany applications, are made within a reasonable period.
Item 217: Subsection 540(2)
1525. This item amends subsection 540(2) to enable an application for approval of a dealing
to be accompanied by an instrument in a form approved in a notifiable instrument (a
supplementary instrument). Previously, a supplementary instrument was required to set
out such details as were prescribed by the regulations for the purposes of an application.
Subsection 540(2) as amended by this item instead provides for the instrument to be in
the form approved by the Titles Administrator by notifiable instrument (see new
subsection 540(4), which is inserted by item 219 of this Schedule). This is in line with
whole-of-government policy to reduce the number of provisions on the statute book
that require the use of forms that are prescribed by regulations.
Item 218: After subsection 540(2)
1526. This item inserts new subsection 540(2A), which specifies a period within which the
instrument referred to in subsection 540(2) (the supplementary instrument) will be
taken to accompany the application for approval of a dealing, which is the time before
the end of the period applicable under subsection 541(1) or section 552, as the case may
243
be (i.e. the time limit for making an application). New subsection (2A) provides
applicants with flexibility in making applications. Specifying a period within which
information or documents are required to be given ensures applications, including any
information or documents required to accompany applications, are made within a
reasonable period.
Item 219: Subsection 540(4)
1527. This item repeals and substitutes a new subsection 540(4). Previously, subsection
540(4) required an application for approval of a dealing to be accompanied by a copy of
the application, the instrument evidencing the dealing and any supplementary
instrument. This requirement implied that the original, hard-copy instruments were
required to be provided in accordance with subsections 540(1) and (2). This is not the
policy intent, particularly in order to facilitate electronic submission of applications.
Removing the requirement for a copy of the instruments clearly negates any inference
that an original, hard-copy of the instruments must be provided, and also removes
unnecessary burden in the application process.
1528. New subsection 540(4) enables the Titles Administrator to approve a form for the
purposes of subsection 540(2) by notifiable instrument. See discussion at item 217.
Item 220: After subsection 543(2)
1529. This item inserts new subsection 543(2A), which sets out the criteria that the Titles
Administrator must and may have regard to in deciding whether or not to approve a
dealing that relates to a title under subsection 543(2).
1530. The Titles Administrator must have regard to any matters prescribed in the regulations.
Unlike other title-related decisions in the OPGGS Act, it is not proposed to specify in
the legislation that matters such as the technical and financial capacity of an applicant
must be taken into account when making a decision to approve a dealing. The
regulatory burden imposed in requiring consideration of such matters would outweigh
any risks associated with approving a dealing. In some cases applications for approval
of dealings are coupled with an application for approval of a transfer of the title, for
which matters including technical and financial capacity and fitness to hold the title will
be assessed.
1531. As an alternative, enabling the regulations to prescribe matters that must be taken into
account when deciding whether to approve a dealing will future-proof the provision if it
becomes evident that the risks are higher than anticipated, or that certain types of
dealings have a higher risk than others. Any additional matters prescribed in the
regulations will be subject to appropriate scrutiny through the regulation-making
process, which includes parliamentary tabling and disallowance procedures. The
industry will also be notified of any additional matters to reduce any potential increase
in legislative complexity in having to understand and comply with these additional
criteria, including through an update to the approved application form.
1532. New paragraph 543(2A)(b) provides that the Titles Administrator may also have regard
to any other matters the Titles Administrator considers relevant. This ensures it is clear
244
that the Titles Administrator can consider other relevant matters that may not be
specified in the regulations when deciding whether to approve a dealing.
1533. These amendments will provide the Titles Administrator with administrative discretion
in addition to the existing decision-making power provided for in subsection 543(2),
but do not provide for merits review of the Titles Administrator's decision. The
decision concerns dealings in relation to titles. Decisions concerning the grant of titles
and the imposition of title conditions are matters of high government policy, involving
considerations of national economic and environmental policy. It would therefore be
inappropriate to provide for merits review for this decision, as to allow for an appeal on
the merits of the decision would, in effect, amount to contesting the Government's
resource management strategy and policy of managing the nation's offshore resources
in the public interest.
Item 221: Subsection 544(2)
1534. This item repeals and substitutes a new subsection 544(2). Previously, if an application
for a dealing was approved, subsection 544(2) required the Titles Administrator to
endorse a memorandum of approval on the original instrument evidencing the dealing
and on the copy of that instrument, or on both copies of the instrument if the original
instrument was not lodged with the application for approval.
1535. Item 219 of this Schedule repeals subsection 540(4) so that an application for approval
of a dealing is no longer required to be accompanied by a copy or copies of the
instrument evidencing the dealing - see discussion at that item. This item therefore
substitutes a new subsection 544(2) which no longer includes references to the original
instrument and copies of the instrument, and instead provides that the Titles
Administrator must endorse a memorandum of approval on the instrument evidencing
the dealing (which is provided to the Titles Administrator, either electronically or in
hard copy, under paragraph 540(1)(b)).
Item 222: Subsections 545(2) and (3)
1536. This item repeals and substitutes new subsections 545(2) and (3).
1537. Subsection 545(2) applies if an application for approval of a dealing in relation to a title
was accompanied by a supplementary instrument. New paragraph 545(2)(a) is not
changed from the previous paragraph 545(2)(a). New paragraphs 545(2)(b) and (c)
clarify what must be done with the supplementary instrument that accompanied the
application if that instrument was provided in hard copy or electronically respectively.
New paragraph 545(2)(d) is not changed from previous paragraph 545(1)(c). New
paragraphs 545(2)(e) and (f) clarify what must be done with the instrument evidencing
the dealing endorsed with the memorandum of approval if the instrument was provided
in hard copy or electronically respectively.
1538. Subsection 545(3) applies if an application for approval of a dealing was not
accompanied by a supplementary instrument. New paragraph 545(3)(a) is not changed
in effect from the previous paragraph 545(3)(a). New paragraphs 545(3)(b) and (c)
clarify what must be done with the instrument evidencing the dealing endorsed with the
245
memorandum of approval if the instrument was provided in hard copy or electronically
respectively.
Item 223: Subsection 548(4)
1539. This item repeals subsection 548(4) and substitutes new subsections 548(4) and (5) into
the OPGGS Act. Previously, subsection 548(4) required that a provisional application
for approval of a dealing relating to a title must be in writing. New subsection 548(4)
instead provides for an application to be made in an approved manner.
1540. New subsection 548(5) provides that the Titles Administrator must publish on its
website a copy of the instrument approving a manner for making a provisional
application for approval of a dealing. This instrument will set out the approved manner
or manners for applications to enable applicants to comply with the requirements in
new subsection 548(4).
1541. Enabling the Titles Administrator to approve the manner in which applications must be
made enables flexibility for applications to be made electronically, in hardcopy or in
some other manner.
1542. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 224: Subsection 549(1)
1543. This item repeals subsection 549(1) and substitutes new subsections 549(1), (1A) and
(1B), which amend the requirements for provisional applications for approval of a
dealing in relation to a title.
1544. Under new subsection 549(1), a provisional application for approval of a dealing must
be made in the form approved by the Titles Administrator. The application must also be
accompanied by the instrument evidencing the dealing and by any other information or
documents required by the application form.
1545. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if relevant information or documents have
recently been provided to the Titles Administrator and there has been no material
change, that information or those documents do not need to be provided again for the
purposes of the application.
1546. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether or not to approve the
dealing.
1547. New subsections 549(1A) and (1B) specify a period within which the instrument
evidencing the dealing and any other information or documents required to accompany
an application will be taken to accompany the application. In the case of the instrument
246
evidencing the dealing, the instrument will be taken to accompany the application if the
instrument has already been lodged with the Titles Administrator for the purposes of
another application. Otherwise, the instrument will be taken to accompany the
application if it is given to the Titles Administrator before the end of the period
applicable under section 550 (i.e. the time limit for making an application). If other
information or documents are required to accompany an application, the information or
documents will be taken to accompany the application if they are given to the Titles
Administrator before the end of the period applicable under section 550.
1548. New subsections (1A) and (1B) provide applicants with flexibility in making
applications, particularly if, for example, information or documents will be given from
various sources. Specifying a period within which information or documents are
required to be given ensures applications, including any information or documents
required to accompany applications, are made within a reasonable period.
Item 225: Subsection 549(2)
1549. This item amends subsection 549(2) to enable a provisional application for approval of
a dealing to be accompanied by an instrument in a form approved in a notifiable
instrument (a supplementary instrument). Previously, a supplementary instrument was
required to set out such details as were prescribed by the regulations for the purposes of
an application. Subsection 549(2) as amended by this item instead provides for the
instrument to be in the form approved by the Titles Administrator by notifiable
instrument (see new subsection 549(4), which is inserted by item 227 of this Schedule).
This is in line with whole-of-government policy to reduce the number of provisions on
the statute book that require the use of forms that are prescribed by regulations.
Item 226: After subsection 549(2)
1550. This item inserts new subsection 549(2A), which specifies a period within which the
instrument referred to in subsection 549(2) (the supplementary instrument) will be
taken to accompany the provisional application for approval of a dealing. The
supplementary instrument will be taken to accompany the application if the instrument
has already been lodged with the Titles Administrator for the purposes of another
application. Otherwise, the instrument will be taken to accompany the application if it
is given to the Titles Administrator before the end of the period applicable under
section 550 (i.e. the time limit for making an application). New subsection (2A)
provides applicants with flexibility in making applications. Specifying a period within
which information or documents are required to be given ensures applications,
including any information or documents required to accompany applications, are made
within a reasonable period.
Item 227: Subsection 549(4)
1551. This item repeals and substitutes a new subsection 549(4). Previously, subsection
549(4) required a provisional application for approval of a dealing to be accompanied
by a copy of the application, the instrument evidencing the dealing and any
supplementary instrument. This requirement implied that the original, hard-copy
instruments were required to be provided in accordance with subsections 549(1) and
247
(2). This is not the policy intent, particularly in order to facilitate electronic submission
of applications. Removing the requirement for a copy of the instruments clearly negates
any inference that an original, hard-copy of the instruments must be provided, and also
removes unnecessary burden in the application process.
1552. New subsection 549(4) enables the Titles Administrator to approve a form for the
purposes of subsection 549(2) by notifiable instrument. See discussion at item 225.
Item 228: After subsection 565A(3)
1553. This item inserts new subsection 565A(3A), specifying a period within which an
application fee that is required to accompany an application referred to in subsection
565A(4) will be taken to accompany the application, which is the time before the end of
the 10-day period beginning on the day after the application was made. New subsection
(3A) provides applicants with flexibility in making payment to accompany their
applications, particularly if, for example, there is a delay in electronic transfers or
clearance of cheques. Specifying a period within which payment is required to be made
ensures applications, and any accompanying payment, are made within a reasonable
period.
Item 229: Subsection 611B(2) (table item 2, column headed "is an authorised applicant in
relation to the following civil penalty provisions in this Act (to the extent indicated) ... " after
paragraph (j))
1554. This item includes new subsection 695YC(4) (see item 231) in the list of civil penalty
provisions in the OPGGS Act that the Chief Executive Officer of NOPSEMA is an
authorised applicant.
Item 230: Subsection 611B(2) (table item 3, column headed "is an authorised applicant in
relation to the following civil penalty provisions in this Act (to the extent indicated) ... ",
before paragraph (h))
1555. This item includes new subsection 695YC(4) in the list of civil penalty provisions in
the OPGGS Act that the Titles Administrator is an authorised applicant.
Item 231: At the end of Chapter 6
1556. The item inserts a new Part 6.12, which introduces matters that the decision maker must
have regard to for the purposes of making certain decisions, and provides for a
requirement for applicants and registered holder of titles to notify if certain specified
events occur in relation to these matters.
1557. Section 695YA provides for a simplified outline of Part 6.12. This outline will not form
part of the operative text of the OPGGS Act and is not intended to be comprehensive.
Instead, it is intended that the reader will rely on the substantive provisions in new Part
6.12.
1558. The matters specified in section 695YB go to the applicant's fitness and proper
standing to carry out offshore petroleum or GHG operations.
1559. The persons who will be subject to such an assessment will include:
a. the applicant in relation to the grant, etc., of certain titles, and will include every
person who proposes to begin holding an interest in the title (such as each of the
joint venture partners);
248
b. if the applicant is a body corporate, the officer or officers of the applicant (within
the meaning of the Corporations Act);
c. if the applicant is a partnership, the partners; and
d. if the applicant is a trust, the trustee or trustees.
1560. In determining whether to approve, grant or reject an application (as the case may be),
the relevant decision maker is required to take into account certain matters that go to
the fitness and proper standing of the applicant, but taking into account these matters
does not amount to a separate determination about whether the applicant is fit and
proper. The inclusion of matters which go to an applicant's fitness and proper standing
is necessary to meet the objective of ensuring that applicants who are seeking to operate
in the offshore oil and gas industry are trustworthy, demonstrate the necessary financial
and operational management, and have the appropriate experience and history of
compliance to carry out offshore petroleum or GHG operations in compliance with
their obligations under the OPGGS Act and the regulations.
1561. The matters provided for in section 695YB capture a range of historical behaviour
relevant to a decision for the grant, etc., of a petroleum or GHG title, which has been
recommended by the Productivity Commission in its study into resources sector
regulation as leading regulatory practice to address the risk of repeated non-
compliance.2
1562. For clarity:
a. paragraphs 695YB(2)(a) and (b) captures a person's experience in petroleum
exploration or recovery, or the injection or storage of GHG substances, whether
offshore or onshore, or in Australia or another country;
b. a 'Chapter 5 body corporate' is defined under section 9 of the Corporations Act
and includes (but is not limited to) a body corporate that is being wound up or
under administration;
c. 'insolvent under administration' is defined under section 2B of the Acts
Interpretation Act 1901 as having the same as in the Corporations Act, which in
turn defines the team under section 9 and includes each circumstance in which a
person may be bankrupt in Australia; and
d. Division 1 of Part 2D.1 of the Corporations Act sets out the general duties of
directors and other officers of a corporation.
1563. The relevant decision-maker must also have regard to any other matters prescribed in
the regulations that go to the fitness and proper standing of the applicant, including the
applicant's history of compliance with other laws. These regulation-making powers are
provided for in subparagraphs (2)(c)(ii) and (j)(ii) and paragraph (2)(o). Enabling the
regulations to prescribe additional matters will provide the Government with the
flexibility to provide for other matters that are necessary and appropriate for
determining the suitability of those who wish to conduct petroleum and GHG related
activities. These matters might include, for example, additional matters that go to the
2
See the discussion under 'Who should be granted a licence to explore and extract resources' under section 4.2
of the Productivity Commission's Study Report into Resources Regulation (November 202), which is available
here: https://www.pc.gov.au/inquiries/completed/resources/report.
249
adequacy of the corporate governance of the applicant, or the applicant's history of
compliance with other Commonwealth laws or certain State or Territory laws (such as
environment or work health and safety laws).
1564. Any additional matters prescribed in the regulations will be subject to appropriate
scrutiny through the regulation-making process, which includes parliamentary tabling,
scrutiny and potential disallowance. The industry will also be notified of any additional
matters to reduce any potential increase in legislative complexity in having to
understand and comply with these additional criteria, including through an update to the
approved form.
1565. The amendments require that notification is required when certain events occur. Section
695YC requires that an applicant for a relevant title specified in paragraph (1)(a), the
registered holder of a relevant title or, if either is a body corporate, a person who is an
officer of the body corporate must provide written notice to the Titles Administrator
and NOPSEMA on the occurrence of certain specified events. These events are listed in
subsection 695YC(2) and include where the person is found guilty of an offence, or is
subject to a civil penalty, involving fraud or dishonesty or becomes insolvent, is
disqualified from managing corporations, is a Chapter 5 body corporate, is an officer of
a Chapter 5 body corporate, has contravened provisions of the Corporations Act, or if
other events prescribed in regulations have occurred.
1566. Subsection (6) clarifies that the requirement to notify offences does not affect the
operation of Part VIIC of the Crimes Act in relation to the disclosure of spent
convictions, and thereby preserves the operation of the Commonwealth Spent
Conviction Scheme.
1567. A failure to notify the occurrence of a notify event may result in the person being liable
to a civil penalty under subsection (4). Subsection (4) provides that, if a person
contravenes this notification requirement (that is, the person does not notify the Titles
Administrator and NOPSEMA of a notifiable event as soon as practicable after it
occurs), the person will be liable to a civil penalty. The maximum civil penalty for an
individual will be a fine of 240 penalty units. The maximum civil penalty for a body
corporate will be a fine of 1,200 penalty units because of the body corporate multiplier
rule in paragraph 82(5)(a) of the Regulatory Powers Act.
1568. The rationale for the amount of these penalties is to act as a deterrent for non-
compliance, particularly for companies, and recognises that being found liable to a civil
penalty does not attract imprisonment or a criminal conviction.
1569. The maximum civil penalty reflects the consequences of a person failing to notify of
events that may affect the suitability of the applicant or titleholder to hold or continue
to hold titles, and therefore the severity of these penalties aims to deter non-compliance
with subsection (2). These consequences may include a potential adverse impact on the
technical advice or financial resources available to the titleholder to carry out its
activities in the title area or areas and complying with legislative requirements,
including decommissioning. Conduct that contravenes these penalty provisions may
cause the titleholder to experience significant financial distress and, as a consequence,
result in the titleholder becoming insolvent and abandoning its title or titles. This in turn
may cascade into other adverse impacts, particularly in increasing the risks that
250
abandoning the management or control of an offshore facility poses to the safety of its
crew and the surrounding marine environment.
1570. It is necessary for the Titles Administrator and NOPSEMA to be made aware of any
matters that may affect the suitability as an applicant to hold a title, or of a titleholder to
remain suitable to hold the title, as a fit and proper person, so that the Titles
Administrator and NOPSEMA may take appropriate action, particularly before it
becomes too late to do so. These actions might include, for example, refusing an
application for a grant, renewal or approval of a transfer of any of the relevant titles in
subsection 695YC(1), or, for a titleholder, being subject to compliance with a direction,
and compliance monitoring and enforcement powers that may be exercised by
NOPSEMA as a registered holder of a relevant title.
1571. The notice is to be provided in the approved form, and in the approved manner, and
must be made as soon as practicable after the event occurs. The approved form and
approved manner must be approved in writing by the Titles Administrator and the Chief
Executive Officer of NOPSEMA and will be published on the Titles Administrator's
website.
Item 232: After subsection 775B(3)
1572. This item inserts new subsection 775B(3A) which requires the Titles Administrator to
publish on its website a copy of the instrument of approval for the manner of executing
the written notice for multiple holders of a petroleum title to nominate one of them as
being the person who is authorised to take eligible voluntary actions on behalf of the
registered holders.
Item 233: After subsection 775C(3)
1573. This item inserts new subsection 775C(3A) which requires the Titles Administrator to
publish on its website a copy of the instrument of approval for the manner of executing
the written notice for multiple holders of a GHG title to nominate one of them as being
the person who is authorised to take eligible voluntary actions on behalf of the
registered holders.
Item 234: After subsection 775CA(3)
1574. This item inserts new subsection 775CA(3A) which requires the Titles Administrator to
publish on its website a copy of the instrument of approval for the manner of executing
the written notice for multiple holders of a cross-boundary GHG title to nominate one
of them as being the person who is authorised to take eligible voluntary actions on
behalf of the registered holders.
Item 235: Subclause 2(7) of Schedule 4
1575. This item repeals subclause 2(7) of Schedule 4 to the OPGGS Act and substitutes new
subclauses 2(7) and (8), which prescribes the requirements for applications for a
petroleum production licence by the holder of a petroleum exploration permit to which
the Royalty Act applies. The notes at the end of subclause (8) are replicated from the
notes at the end of the previous subclause 2(7).
251
1576. Under new subclause 2(7), an application for a petroleum production licence must be
made in the form approved by the Titles Administrator. The application must also be
accompanied by any information or documents required by the form.
1577. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1578. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether to offer to grant the licence.
1579. New subclause 2(8) specifies a period within which information or documents required
to accompany an application made under clause 2 will be taken to accompany the
application, which is before the end of application period in clause 3. New subclause
2(8) provides applicants with flexibility in making applications, particularly if, for
example, information or documents will be given from various sources. Specifying a
period within which information or documents are required to be given ensures
applications, including any information or documents required to accompany
applications, are made within a reasonable period.
Item 236: Subclause 4(7) of Schedule 4
1580. This item repeals subclause 4(7) of Schedule 4 to the OPGGS Act and substitutes new
subclauses 4(7) and (8), which prescribes the requirements for applications for a
petroleum production licence by a holder of petroleum retention lease to which the
Royalty Act applies. The notes at the end of subclause (8) are replicated from the notes
at the end of the previous subclause 4(7).
1581. Under new subclause 4(7), an application for a petroleum production licence must be
made in the form approved by the Titles Administrator. The application must also be
accompanied by any information or documents required by the form.
1582. Providing for an approved form, rather than prescribing the information requirements in
the legislation, will enable the Titles Administrator to appropriately tailor the
information requirements for each type of application. If it becomes evident that
additional kinds of information are required for an application, or that some kinds of
information should not be required, the Titles Administrator will be able to amend the
form without the need for a legislative amendment. Similarly, requiring the form to
specify information or documents that are required to accompany the form will enable
the Titles Administrator to specify that, if information or documents (such as
information or documents in relation to the technical advice and the financial resources
252
available to the applicant) have recently been provided to the Titles Administrator and
there has been no material change, that information or those documents do not need to
be provided again for the purposes of the application.
1583. Practically, the approved form will only require information, and any accompanying
information or documents, relevant for a decision whether to offer to grant the licence.
1584. New subclause 4(8) specifies a period within which information or documents required
to accompany an application made under clause 4 will be taken to accompany the
application, which is the time before the end of the 10-day period that began on the day
after the application was made. New subclause (8) provides applicants with flexibility
in making applications, particularly if, for example, information or documents will be
given from various sources. Specifying a period within which information or
documents are required to be given ensures applications, including any information or
documents required to accompany applications, are made within a reasonable period.
Item 237: Application and transitional provisions
1585. This item provides application and transitional provisions for the amendments made by
this Schedule to the Bill.
1586. The application provisions ensure that the amendments have prospective operation. For
example, the provisions provide for the following types of amendments to apply only in
relation to applications made after the commencement of this Schedule:
a. Amendments to require applications to be in the approved form and accompanied
by any information or documents required by the form
b. Amendments setting out when information, documents, fees, plans, etc., are taken
to accompany an application
c. Amendments setting out new or additional decision-making criteria for titles-
related applications.
1587. Sub-item (6) ensures that the amendments of subsections 353(1) and 353A(1) apply
prospectively. The amendment of subsection 353(1) ensures that the responsible
Commonwealth Minister may give a notice requesting the holder of a special GHG
holding lease to apply for a GHG injection licence if the Minister is satisfied that the
Minister would not refuse to grant the licence on a ground that includes the matter
specified in paragraph 362(2)(i). The amendment of subsection 353A(1) ensures that
the Cross-boundary Authority may give a notice requesting the holder of a special
cross-boundary GHG holding lease to apply for a cross-boundary GHG injection
licence if the Authority is satisfied that the Authority would not refuse to grant the
licence on a ground that includes the matter specified in paragraph 368B(2)(ja). Sub-
item (6) ensures that the amendments apply only in relation to notices given after
commencement, but clarify that it does not matter when the lease to which the
provision relates was granted.
1588. The transitional provisions ensure that if a prescribed form was in force for an
instrument of transfer of a petroleum or GHG title immediately before commencement,
that form will continue to be taken after commencement to be the approved form for the
purposes of new paragraphs 474(1)(b) and 526(1)(b) respectively. Given the delayed
commencement of this Schedule, the Titles Administrator is likely to have approved a
253
form by notifiable instrument by the time the amendments commence. However, these
provisions provide a safeguard in case a notifiable instrument has not been made when
the amendments commence, to ensure that persons can continue to submit valid
applications for approval of a transfer of a title.
1589. The transitional provisions also ensure that if regulations were in force immediately
before commencement that prescribe details for a supplementary instrument to
accompany an application or provisional application for approval of a dealing in
relation to a petroleum or GHG title, those regulations will be taken after
commencement to be the approved form for the purposes of new subsections 489(2),
499(2), 540(2) and 549(2). Given the delayed commencement of this Schedule, the
Titles Administrator is likely to have approved a form by notifiable instrument by the
time the amendments commence. However, these provisions provide a safeguard in
case a notifiable instrument has not been made when the amendments commence, to
ensure that persons can continue to submit valid supplementary instruments with
applications for approval of a dealing.
254
Schedule 4--Information-gathering powers
Offshore Petroleum and Greenhouse Gas Storage Act 2004
Schedule 4 to the Bill amends the OPGGS Act to allow the Titles Administrator, the
responsible Commonwealth Minister and NOPSEMA inspectors to request or obtain further
information in connection with applications for grants, renewals and variations of conditions
of petroleum and GHG titles. The expanded information gathering powers allows the relevant
decision-maker to require applicants to provide further information to support the assessment
of an application at certain decision points, in particular, the applicant's technical ability and
financial capacity to undertake decommissioning.
In addition, the general information-gathering powers in relation to petroleum and GHG
operations are expanded to apply to obtaining information, documents and evidence in
relation to decommissioning operations, compliance, technical advice and financial resources.
The amendments complement and support the enhanced application and decision-making
criteria included in Schedule 3 to the Bill.
Item 1: Paragraph 258(1)(a)
1590. Section 258 allows the Titles Administrator to request further information in relation to
applications for petroleum permits, leases or licences. Currently, paragraph 258(1)(a)
only allows the Titles Administrator to require information from an applicant for a
grant of a petroleum exploration permit and excludes applications for renewal of a
permit. This item amends paragraph 258(1)(a) to include that the Titles Administrator
may require further information from the applicant for an application for a grant or the
renewal of a petroleum exploration permit.
1591. Enabling the Titles Administrator to require further information in relation to the
renewal of a petroleum exploration permit will go to determining whether or not the
applicant will remain suitable to hold the permit.
Item 2: Paragraph 258(1)(c)
1592. Currently, paragraph 258(1)(c) only allows the Titles Administrator to require
information from an applicant for a grant of a petroleum production licence and
excludes applications for renewal of a licence. This item amends paragraph 258(1)(c) to
include that the Titles Administrator may require further information from the applicant
for a grant or renewal of a petroleum production licence.
1593. Enabling the Titles Administrator to require further information in relation to the
renewal of a petroleum production licence will go to determining whether or not the
applicant will remain suitable to hold the licence.
Item 3: At the end of subsection 258(1)
1594. This item adds paragraph (g) to the end of subsection 258(1). New paragraph (g) allows
the Titles Administrator to require further information on the variation or suspension of,
or exemption from compliance with, the conditions of a title under section 264.
1595. Enabling the Titles Administrator to require further information in relation to a
variation, suspension or exemption from compliance with a title under section 264, will
go to determining whether or not the titleholder will remain suitable to hold the title
255
with any of the conditions, and on such conditions, to which the title is subject as so
varied, suspended, or exempted from compliance.
Item 4: At the end of subsection 429(1)
1596. This item adds paragraph (e) to the end of subsection 429(1), which expands the scope
to allow the responsible Commonwealth Minister to require further information in
connection with an application for the variation or suspension of, or exemption from
compliance with, the conditions of a GHG title under section 436.
1597. Enabling the Minister to require further information in relation to a variation,
suspension or exemption from compliance with a GHG title under section 436, will go
to determining whether or not the titleholder will remain suitable to hold the title with
any of the conditions, and on such conditions, to which the title is subject as so varied,
suspended, or exempted from compliance.
Item 5: At the end of subsection 429A(1)
1598. This item adds paragraph (d) to the end of subsection 429A(1), which expands the
scope to allow the Titles Administrator to require further information in connection
with an application for the variation or suspension of, or exemption from compliance
with, the conditions of a GHG title under section 436.
1599. Enabling the Titles Administrator to require further information in relation to a
variation, suspension or exemption from compliance with a GHG title under section
436, will go to determining whether or not the titleholder will remain suitable to hold
the title with any of the conditions, and on such conditions, to which the title is subject
as so varied, suspended, or exempted from compliance.
Item 6: Subparagraph 699(1)(a)(v)
1600. This item amends subparagraph 699(1)(a)(v) to remove the conjunction for the
insertion of the a subparagraph. See the discussion at the next item.
Item 7: At the end of paragraph 699(1)(a)
1601. This item adds new subparagraph (vi) to paragraph 699(1)(a), which expands the scope
to allow the Titles Administrator to obtain information, documents, or evidence from a
person on petroleum operations relating to decommissioning in an offshore area.
1602. The Titles Administrator may obtain such information, documents, or evidence if the
Titles Administrator has reasonable grounds to believe that a person has such a thing or
things.
Item 8: At the end of paragraph 699(1)(b)
1603. This item adds new subparagraph (vi) to paragraph 699(1)(b), which expands the scope
to allow NOPSEMA inspectors to obtain information, documents, or evidence from a
person on petroleum operations relating to decommissioning in an offshore area.
1604. A NOPSEMA inspector may obtain such information, documents or evidence if the
inspector has reasonable grounds to believe that a person has such a thing or things.
256
Item 9: After paragraph 699(1)(b)
1605. This item inserts new paragraph (c) into subsection 699(1) to allow the Titles
Administrator or NOPSEMA inspectors to obtain information, documents, or evidence
from a person relating to compliance with the OPGGS Act and if a person has sufficient
technical and financial resources to discharge their obligations under the Act, or under a
legislative instrument made under the Act.
1606. Paragraph 699(1)(c) applies to any or all of the petroleum operations in an offshore area
included in paragraphs 699(1)(a) and (b) (as amended by items 7 and 8).
1607. The Titles Administrator or a NOPSEMA inspector may obtain such information,
documents or evidence if the Titles Administrator or inspector has reasonable grounds
to believe that a person has such a thing or things.
Item 10: Subsection 725(1)
1608. This item repeals all the words after 'that relates to' in subsection 725(1) and
substitutes new paragraphs (c) and (d). The amendments allows the Titles
Administrator or a NOPSEMA inspector to obtain information, documents, or evidence
from a person on GHG operations relating to decommissioning in an offshore area (in
addition to the operations provided for in existing paragraphs (1)(c) to (g)).
1609. New paragraph 725(1)(d) allows the Titles Administrator or NOPSEMA inspectors to
obtain information, documents, or evidence from a person relating to compliance with
the OPGGS Act and if a person has sufficient technical and financial resources to
discharge their obligations under the Act, or under a legislative instrument made under
the Act.
1610. Paragraph 725(1)(d) applies to any or all of the GHG operations in an offshore area
included in paragraph 725(1)(c) (as amended by this item).
1611. The Titles Administrator or a NOPSEMA inspector may obtain such information,
documents or evidence if the Titles Administrator or inspector has reasonable grounds
to believe that a person has such a thing or things.
Item 11: Application provisions
1612. Sub-item 11(1) limits the application of the amendments in this Schedule to
applications made but underdetermined before the commencement of this Schedule,
and applications made on or after commencement of this Schedule.
1613. Sub-item 11(2) allows for notices made in connection with sections 699 and 725 of the
OPGGS Act to apply in relation to notices to obtain information, documents or
evidence, given on or after the commencement of this Schedule. The sub-item clarifies
that it does not matter whether the conduct or operations to which the notice relates
occurred before, on or after the commencement of this Schedule.
257
Schedule 5--Digital readiness
Offshore Petroleum and Greenhouse Gas Storage Act 2006
Item 1: Subsection 286A(1)
1614. This item repeals subsection 286A(1) which set out the notification requirements of
registered holders of petroleum titles at the commencement of section 286A. This
provision is being repealed as it is now spent.
Item 2: Paragraph 286A(2)(a)
1615. Subsection 286A(2) requires any person who becomes a registered holder of a
petroleum title to notify the Titles Administrator and NOPSEMA, and provide their
contact details, within 30 days of becoming a registered holder.
1616. This item repeals and substitutes a new paragraph 286A(2)(a) to remove the specific
reference to the requirement for the notice to be in writing. The requirement for the
notice to be in the approved form is also omitted in paragraph 286A(2)(a); however this
is now included in subsection 286A(6) - see item 5 of this Schedule. Subsection
286A(6) provides for the approved form and an approved manner of giving the notice.
1617. These changes will allow for flexibility and facilitate electronic submission of notices.
Electronic notification is a fast, easy and secure way for industry to submit information,
ensuring greater accuracy of data, a higher level of quality assurance and quicker
processing of transactions. These amendments will reduce administrative burden and
streamline the notification process.
Item 3: Paragraph 286A(5)(b)
1618. Subsection 286A(5) sets out the notification requirements if a registered holder of a
petroleum title changes one or more of their contact details. Paragraph 286A(5)(b)
previously included a specific reference to subsection 286A(1). This item repeals and
substitutes a new paragraph 286A(5)(b) to refer broadly to notices given under section
286A, as a consequence of the repeal of subsection 286A(1) by item 1 of this Schedule.
Item 4: Paragraph 286A(5)(d)
1619. Subsection 286A(5) requires any person that is a registered holder of a petroleum title
to notify the Titles Administrator and NOPSEMA if any of their contact details change.
Notice must be given within 30 days of the change of details.
1620. This item repeals and substitutes a new paragraph 286A(5)(d) to remove the specific
reference to the requirement for the notice to be in writing. The requirement for the
notice to be in the approved form is also omitted in paragraph 286A(5)(d); however this
is now included in subsection 286A(6) - see item 5 of this Schedule. Subsection
286A(6) provides for the approved form and an approved manner of giving the notice.
1621. These changes will allow for flexibility and facilitate electronic submission of notices.
Electronic notification is a fast, easy and secure way for industry to submit information,
ensuring greater accuracy of data, a higher level of quality assurance and quicker
processing of transactions. These amendments will reduce administrative burden and
streamline the notification process.
258
Item 5: Subsection 286A(6)
1622. This item repeals subsection 286A(6) and inserts new subsections 286A(6) and (6A).
1623. Previously, subsection 286A(6) provided for the publication of the approved form for
the purposes of notices given under section 286A. This is now provided for by new
subsection 286A(6A).
1624. New subsection 286A(6) requires a notice that is given under section 286A to be in the
approved form and in an approved manner. A notice given under section 286A was
already required to be in the approved form. Requiring a notice to be given in an
approved manner will allow for flexibility and facilitate electronic submission of
notices.
1625. The Titles Administrator and the CEO of NOPSEMA will approve the form and the
manner, in accordance with the definition of approved in subsection 286A(9).
1626. New subsection 286(6A) requires the Titles Administrator to publish on its website the
approved form and a copy of the instrument approving a manner for giving notices
under section 286A.
1627. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 6: Paragraph 286A(7)(a)
1628. This item amends paragraph 286A(7)(a) to remove the reference to subsection 286A(1)
as a consequence of the repeal of that subsection by item 1 of this Schedule.
Item 7: Subsection 452A(1)
1629. This item repeals subsection 452A(1) which set out the notification requirements of
registered holders of GHG titles at the commencement of section 452A. This provision
is being repealed as it is now spent.
Item 8: Paragraph 452A(2)(a)
1630. Subsection 452A(2) requires any person who becomes a registered holder of a GHG
title to notify the Titles Administrator and NOPSEMA, and provide their contact
details, within 30 days of becoming a registered holder.
1631. This item repeals and substitutes a new paragraph 452A(2)(a) to remove the specific
reference to the requirement for the notice to be in writing. The requirement for the
notice to be in the approved form is also omitted in paragraph 452A(2)(a); however this
is now included in subsection 452A(6) - see item 11 of this Schedule. Subsection
452A(6) provides for the approved form and an approved manner of giving the notice.
1632. These changes will allow for flexibility and facilitate electronic submission of notices.
Electronic notification is a fast, easy and secure way for industry to submit information,
ensuring greater accuracy of data, a higher level of quality assurance and quicker
processing of transactions. These amendments will reduce administrative burden and
streamline the notification process.
Item 9: Paragraph 452A(5)(b)
1633. Subsection 452A(5) sets out the notification requirements if a registered holder of a
GHG title changes one or more of their contact details. Paragraph 452A(5)(b)
259
previously included a specific reference to subsection 452A(1). This item repeals and
substitutes a new paragraph 452A(5)(b) to refer broadly to notices given under section
452A, as a consequence of the repeal of subsection 452A(1) by item 7 of this Schedule.
Item 10: Paragraph 452A(5)(d)
1634. Subsection 452A(5) requires any person that is a registered holder of a GHG title to
notify the Titles Administrator and NOPSEMA if any of their contact details change.
Notice must be given within 30 days of the change of details.
1635. This item repeals and substitutes a new paragraph 452A(5)(d) to remove the specific
reference to the requirement for the notice to be in writing. The requirement for the
notice to be in the approved form is also omitted in paragraph 452A(5)(d); however this
is now included in subsection 452A(6) - see item 11 of this Schedule. Subsection
452A(6) provides for the approved form and an approved manner of giving the notice.
1636. These changes will allow for flexibility and facilitate electronic submission of notices.
Electronic notification is a fast, easy and secure way for industry to submit information,
ensuring greater accuracy of data, a higher level of quality assurance and quicker
processing of transactions. These amendments will reduce administrative burden and
streamline the notification process.
Item 11: Subsection 452A(6)
1637. This item repeals subsection 452A(6) and inserts new subsections 452A(6) and (6A).
1638. Previously, subsection 452A(6) provided for the publication of the approved form for
the purposes of notices given under section 452A. This is now provided for by new
subsection 452A(6A).
1639. New subsection 452A(6) requires a notice that is given under section 452A to be in the
approved form and in an approved manner. A notice given under section 452A was
already required to be in the approved form. Requiring a notice to be given in an
approved manner will allow for flexibility and facilitate electronic submission of
notices.
1640. The Titles Administrator and the CEO of NOPSEMA will approve the form and the
manner, in accordance with the definition of approved in subsection 452A(12).
1641. New subsection 452A(6A) requires the Titles Administrator to publish on its website
the approved form and a copy of the instrument approving a manner for giving notices
under section 452A.
1642. An instrument of approval of a manner of doing something is not a legislative
instrument for the purposes of the Legislation Act 2003.
Item 12: Paragraph 452A(7)(a)
1643. This item amends paragraph 452A(7)(a) to remove the reference to subsection 452A(1)
as a consequence of the repeal of that subsection by item 7 of this Schedule.
Item 13: Application of amendments
1644. This item inserts application provisions for the purposes of the amendments made by
this Schedule. The application provisions ensure that the amendments operate
prospectively.
260
1645. Sub-item 13(1) provides that the amendment of subsection 286A(2) only applies to a
person who becomes a registered holder of a petroleum title after the commencement of
this item.
1646. Sub-item 13(2) provides that the amendments of subsection 286A(5) only apply in
relation to notices advising of a change of contact details that are required to be given
under that subsection after the commencement of this item. It does not matter when the
previous notice of contact details was given to the Titles Administrator and
NOPSEMA.
1647. Sub-item 13(3) provides that the amendment of subsection 452A(2) only applies to a
person who becomes a registered holder of a GHG title after the commencement of this
item.
1648. Sub-item 13(4) provides that the amendments of subsection 452A(5) only apply in
relation to notices advising of a change of contact details that are required to be given
under that subsection after the commencement of this item. It does not matter when the
previous notice of contact details was given to the Titles Administrator and
NOPSEMA.
261
Schedule 6--Other amendments
Offshore Petroleum and Greenhouse Gas Storage Act 2006
Items 1 to 3: Section 790C; Subsection 790D(1); Subsections 790D(2) and (3)
1649. These items amend the OPGGS Act to future-proof references to the name of
regulations made under that Act. The amendments omit the specific name of the
Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (the
Environment Regulations), and replace it with an ability to prescribe the name of the
regulations in regulations made under the OPGGS Act. This will ensure that, when the
Environment Regulations sunset and are remade with a different name, the references
to the Environment Regulations can be updated through regulatory amendments, rather
than requiring amendments to the OPGGS Act.
262
Schedule 7--Repeals
Item 1: Repeals of Acts
1650. This item repeals spent Acts which are still active on the statute book. All of the Acts
that are repealed are now obsolete and, where applicable, have no ongoing application,
saving or transitional provisions that require administration.
263
OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE
(REGULATORY LEVIES) AMENDMENT BILL 2021
OUTLINE
This Bill is a cognate Bill to the Offshore Petroleum and Greenhouse Gas Storage
Amendment (Titles Administration and Other Measures) Bill 2021 (the Titles Administration
Bill). This Bill implements amendments to the Offshore Petroleum and Greenhouse Gas
Storage (Regulatory Levies) Act 2003 (the Regulatory Levies Act) made as a consequence of
the amendments made to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the
OPGGS Act) by the Titles Administration Bill.
The Titles Administration Bill amends the OPGGS Act to expand the current powers of
NOPSEMA and the responsible Commonwealth Minister to give remedial directions,
including by enabling directions to be given to a broader range of persons in addition to a
current or immediate former titleholder. The amendments also apply certain obligations and
provisions under the OPGGS Act, which apply in relation to titleholders, to persons who are
subject to a remedial direction.
Amendments to regulations under the OPGGS Act are also proposed to apply certain
provisions of the regulations to persons who are subject to a remedial direction. These
include the requirement to have an accepted environment plan prior to undertaking activities
in an offshore area, the requirement to have an accepted well operations management plan
prior to undertaking an activity in relation to a well, and the requirement to comply with
those plans while undertaking activities.
Environment plans and well operations management plans are assessed by NOPSEMA, and
NOPSEMA undertakes ongoing monitoring and inspection activities in relation to
compliance by persons with their obligations under the OPGGS Act and regulations.
NOPSEMA is a fully cost-recovered regulatory authority, whose functions are funded by fees
and levies imposed on the offshore petroleum and GHG storage industries. In order to fund
NOPSEMA's assessment of regulatory documents and oversight of persons who are carrying
out activities in order to comply with a remedial direction, certain existing levies payable by
current titleholders will also need to be imposed with respect to those persons.
This Bill amends the Regulatory Levies Act to ensure that if a person who is subject to a
remedial direction submits an environment plan or a well operations management plan to
NOPSEMA, that person is required to pay environment plan levy or well activity levy
respectively. The Bill also makes provision with respect to payment of safety case levies for
safety cases that deal with activities carried out to comply with a remedial direction.
The amount of levy payable by a person who is subject to a remedial direction is the same as
the amount of levy payable by a titleholder. The same level of regulatory effort is required by
NOPSEMA to assess documents, whether they are submitted by a titleholder or a person who
is subject to a remedial direction.
If a person is a current titleholder subject to a remedial direction under section 586, 586A,
591B or 592, the Regulatory Levies Act continues to apply to that person as a titleholder.
264
FINANCIAL IMPACT STATEMENT
In line with the Titles Administration Bill, this Bill has no financial impact. The amendments
to the Regulatory Levies Act will ensure that NOPSEMA is fully cost-recovered for its
regulatory operations.
CONSULTATION
Significant consultation was undertaken throughout the policy planning and drafting process
for the measures in the Titles Administration Bill, including consultation with the offshore
petroleum industry and NOPSEMA. The measures in this Bill are consequential to the
amendments made by the Titles Administration Bill.
Public consultation was also undertaken on an Exposure Draft of this Bill and the Titles
Administration Bill, which invited written submissions from all stakeholders and included
face-to-face meetings with key stakeholders.
265
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment Bill 2021
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.
Overview of the Bill
The Bill is a cognate Bill to the Offshore Petroleum and Greenhouse Gas Storage
Amendment (Titles Administration and Other Measures) Bill 2021 (the Titles Administration
Bill). The Bill implements amendments to the Offshore Petroleum and Greenhouse Gas
Storage (Regulatory Levies) Act 2003 (the Regulatory Levies Act) made as a consequence of
the amendments made to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the
OPGGS Act) by the Titles Administration Bill.
The Titles Administration Bill amends the OPGGS Act to expand the current powers of the
National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA)
and the responsible Commonwealth Minister to give remedial directions, including by
enabling directions to be given to a broader range of persons in addition to a current or
immediate former titleholder. This Bill amends the Regulatory Levies Act to ensure that if a
person who is subject to a remedial direction under the OPGGS Act submits an environment
plan or a well operations management plan to NOPSEMA, that person is required to pay
environment plan levy or well activity levy respectively. The Bill also makes provision with
respect to payment of safety case levies for safety cases that deal with activities carried out to
comply with a remedial direction.
Human rights implications
The amendments in the Bill are mechanical in nature and do not engage any of the applicable
rights or freedoms.
Conclusion
The Bill is compatible with human rights as it does not raise any human rights issues.
The Minister for Resources, Water and Northern Australia,
the Hon Keith Pitt MP
266
OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE (REGULATORY
LEVIES) AMENDMENT BILL 2021
NOTES ON CLAUSES
Clause 1: Short title
1651. This is a formal provision specifying the short title of the Act.
Clause 2: Commencement
1652. The table in this clause sets out the commencement date for when the Bill's provisions
commence.
1653. Schedule 1 will commence at the later of the start of the day after the Bill receives
Royal Assent and immediately after the commencement of Schedule 2 to the Titles
Administration Bill.
1654. The amendments made by Schedule 1 are related to the amendments made by Schedule
2 to the Titles Administration Bill. Schedule 2 to the Titles Administration Bill
commences on a day to be fixed by Proclamation. If Proclamation does not occur
within six months of Royal Assent, then Schedule 2 to the Titles Administration Bill
will automatically commence on the day after the end of that period.
1655. Given the relationship between the amendments in this Bill and the amendments in
Schedule 2 to the Titles Administration Bill, if Schedule 2 to the Titles Administration
Bill does not commence, then Schedule 1 to this Bill also does not commence.
Clause 3: Schedules
1656. This clause gives effect to the provisions in the Schedules to the Bill.
267
Schedule 1--Amendments
Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Act 2003
Item 1: Section 3
1657. This item inserts definitions for relevant terms that are inserted into the Regulatory
Levies Act by the amendments made by this Bill.
Item 2: Subsection 7(1)
1658. This item repeals and substitutes a new subsection 7(1) as a consequence of the
amendment made by item 3 of this Schedule. New subsection 7(1) provides for safety
case levy to be imposed on a safety case in respect of a year. Previously, subsection
7(1) imposed safety case levy in respect of a year in certain circumstances, and in
respect of a part of a year in other circumstances.
1659. Item 3 substitutes a new subsection 7(3) to provide for who is responsible for paying
safety case levy if a remedial direction is in force in relation to a pipeline at any time
during a year. The wording of new subsection 7(1) more closely aligns with the new
subsection 7(3) than the previous subsection 7(1), by only specifying that safety case
levy is imposed in respect of a year.
1660. This item does not change the practical operation of section 7 of the Regulatory Levies
Act. The amendment made by item 5 ensures that the amount of safety case levy can
still be set differently if a safety case is only in force for part of a year - see discussion
at item 5.
Item 3: Subsection 7(3)
1661. This item repeals and substitutes a new subsection 7(3) to provide for who is
responsible for paying safety case levy if a remedial direction is in force in relation to a
pipeline at any time during a year.
1662. In the majority of cases, the safety case levy will be imposed in relation to a facility that
is not a pipeline. In all such cases, the operator of the facility continues to be
responsible to pay the safety case levy.
1663. Paragraph (b) applies if safety case levy is imposed in relation to a facility that is a
pipeline subject to a pipeline licence, and a remedial direction does not apply in relation
to the pipeline at any time during the year. As was previously the case, the licensee of
the pipeline licence is responsible for paying safety case levy.
1664. Paragraph (c) applies if safety case levy is imposed in relation to a facility that is a
pipeline subject to a pipeline licence, and a remedial direction does apply in relation to
the pipeline at any time during the year. If the pipeline licensee is subject to the
remedial direction, the pipeline licensee is responsible for paying the safety case levy.
The safety case will cover the ordinary operations under the pipeline licence, as well as
activities carried out in compliance with the remedial direction.
1665. If, however, a person other than the pipeline licensee is subject to the remedial
direction, a safety case will cover the ordinary operations under the pipeline licence
(which are the responsibility of the pipeline licensee) and activities for the purpose of
complying with the remedial direction (which are the responsibility of the person
268
subject to the direction). In such a case, both the pipeline licensee and the person
subject to the direction are required to pay the levy. It would be unreasonable to expect
the pipeline licensee to be the only entity to pay where there is a remedial direction to
which the licensee is not subject, but equally unreasonable to require the person subject
to the direction to pay with respect to any ongoing ordinary operations. It is likely to be
rare for this situation to arise in practice.
1666. Paragraph (d) applies if safety case levy is imposed in relation to a facility that is a
pipeline that is not subject to a pipeline licence, but in relation to which a remedial
direction is in force at any time during the year. In this case, the person who is subject
to the remedial direction will be responsible for paying the safety case levy.
Item 4: Subsection 7(5)
1667. This item repeals subsection 7(5). Subsection 7(5) previously provided for the amount
of safety case levy imposed by subsection 7(1) in respect of a part of a year to be
worked out in accordance with the regulations. However, subsection 7(1) is amended
by item 2 of this Schedule so that levy is only imposed in respect of a year, and is no
longer imposed in respect of a part of a year.
Item 5: At the end of subsection 7(6)
1668. This item amends subsection 7(6) as a consequence of the amendment made by item 2
of this Schedule. Item 2 amends subsection 7(1) to remove the reference to safety case
levy being imposed in respect of a part of a year. To ensure that the amendment of
subsection 7(1) does not change the practical operation of the safety case levy, the
amendment made by this item enables the regulations to set different levy amounts or
means of calculating levies to provide for differing circumstances, such as if a safety
case is in force for part of a year.
1669. The amendment made by this item will also enable different levy amounts or means of
calculating levies in other circumstances, including where a remedial direction applies
in relation to a facility, such as the ability (if desired) to set a different levy amount in
relation to a pipeline licensee who is also subject to a remedial direction.
Item 6: Subsection 8(1)
1670. This item repeals and substitutes a new subsection 8(1) as a consequence of the
amendment made by item 7 of this Schedule. New subsection 8(1) provides for safety
case levy to be imposed on a safety case in respect of a year. Previously, subsection
8(1) imposed safety case levy in respect of a year in certain circumstances, and in
respect of a part of a year in other circumstances.
1671. Item 7 substitutes a new subsection 8(3) to provide for who is responsible for paying
safety case levy if a remedial direction is in force in relation to a pipeline at any time
during a year. The wording of new subsection 8(1) more closely aligns with new
subsection 8(3) than the previous subsection 8(1), by only specifying that safety case
levy is imposed in respect of a year.
1672. This item does not change the practical operation of section 8 of the Regulatory Levies
Act. The amendment made by item 9 ensures that the amount of safety case levy can
269
still be set differently if a safety case is only in force for part of a year - see discussion
at item 9.
Item 7: Subsection 8(3)
1673. This item repeals and substitutes a new subsection 8(3) to provide for who is
responsible for paying safety case levy if a remedial direction under State or Territory
offshore petroleum legislation is in force in relation to a pipeline at any time during a
year. The operation of this amendment is the same as for the repeal and substitution of
new subsection 7(3) - see discussion at item 3.
Item 8: Subsection 8(5)
1674. This item repeals subsection 8(5). Subsection 8(5) previously provided for the amount
of safety case levy imposed by subsection 8(1) in respect of a part of a year to be
worked out in accordance with the regulations. However, subsection 8(1) is amended
by item 6 of this Schedule so that levy is only imposed in respect of a year, and is no
longer imposed in respect of part of a year.
Item 9: At the end of subsection 8(6)
1675. This item amends subsection 8(6) as a consequence of the amendment made by item 6
of this Schedule. Item 6 amends subsection 8(1) to remove the reference to safety case
levy being imposed in respect of a part of a year. To ensure that the amendment of
subsection 8(1) does not change the practical operation of the safety case levy, the
amendment made by this item enables the regulations to set different levy amounts or
means of calculating levies to provide for differing circumstances, such as if a safety
case is in force for part of a year.
1676. The amendment made by this item will also enable different levy amounts or means of
calculating levies in other circumstances, including where a remedial direction applies
in relation to a facility, such as the ability (if desired) to set a different levy amount in
relation to a pipeline licensee who is also subject to a remedial direction.
Item 10: Section 10C (at the end of the heading)
1677. This item amends the heading of section 10C to reflect that well activity levy may be
imposed in circumstances in which a Commonwealth title is no longer in force, as a
result of the amendment made by item 11 of this Schedule. A remedial direction may
be given to a person after a title has ceased to be in force.
Item 11: Paragraph 10C(1)(b)
1678. This item amends paragraph 10C(1)(b) to ensure that, if a person who is subject to a
remedial direction submits a well operations management plan, or a proposed revision
of a well operations management plan, to NOPSEMA, that person is responsible for
paying the well activity levy imposed on the submitted plan.
1679. If the person who is subject to the remedial direction is the current titleholder, they will
be responsible for paying the levy under subparagraph 10C(1)(b)(i).
270
Item 12: Section 10D (at the end of the heading)
1680. This item amends the heading of section 10D to reflect that well activity levy may be
imposed in circumstances in which a State/Territory title is no longer in force, as a
result of the amendment made by item 13 of this Schedule. A remedial direction may
be given to a person after a title has ceased to be in force.
Item 13: Paragraph 10D(1)(b)
1681. This item amends paragraph 10D(1)(b) to ensure that if a person who is subject to a
remedial direction submits a well operations management plan, a proposed revision of a
well operations management plan or an application for approval to commence an
activity relating to a well to NOPSEMA, that person is responsible for paying the well
activity levy imposed on the submission or application.
1682. If the person who is subject to the remedial direction is the current titleholder, they will
be responsible for paying the levy under subparagraph 10D(1)(b)(i).
Item 14: Section 10F (at the end of the heading)
1683. This item amends the heading of section 10F to reflect that environment plan levy may
be imposed in relation to activities other than those authorised by a Commonwealth
title, as a result of the amendments made by items 15 and 16 of this Schedule. An
environment plan may be submitted by a person who is subject to a remedial direction
and who is not the current titleholder.
Item 15: After paragraph 10F(1)(c)
1684. This item inserts new paragraphs 10F(1)(d) and (e) to impose environment plan levy if
an environment plan or proposed revision of an environment plan levy is submitted to
NOPSEMA, and the activities to which the plan relates are carried out for the purposes
of complying with a remedial direction.
1685. Previously, environment plan levy was only imposed on an environment plan or a
proposed revision of an environment plan if the activities to which the plan relates were
authorised by one or more titles, or the plan was submitted by an applicant for certain
titles. However, as a result of amendments to the OPGGS Act and regulations, persons
who are subject to a remedial direction will also be required to submit an environment
plan for assessment by NOPSEMA prior to undertaking activities to comply with the
direction.
1686. Imposing environment plan levy on submission of environment plans or proposed
revisions of environment plans that relate to activities carried out for the purpose of
complying with a remedial direction will ensure that NOPSEMA, as a fully cost-
recovered authority, can recover its costs of assessing the plan and ongoing
environmental compliance monitoring in relation to the activities carried out by the
person subject to the direction.
Item 16: At the end of subsection 10F(3)
1687. This item inserts new paragraph 10F(3)(f) to provide that if environment plan levy is
imposed on submission of an environment plan or proposed revision of an environment,
and the activities to which the plan relates are carried out for the purpose of complying
271
with a remedial direction, the levy is payable by the person who is subject to the
direction.
Item 17: Section 10G (at the end of the heading)
1688. This item amends the heading of section 10G to reflect that environment plan levy may
be imposed in relation to activities other than those authorised by a State/Territory title,
as a result of the amendments made by items 18 and 19 of this Schedule. An
environment plan may be submitted by a person who is subject to a remedial direction
and who is not the current titleholder.
Item 18: After paragraph 10G(1)(c)
1689. This item inserts new paragraphs 10G(1)(d) and (e) to impose environment plan levy if
an environment plan or proposed revision of an environment plan levy is submitted to
NOPSEMA, and the activities to which the plan relates are carried out for the purposes
of complying with a remedial direction.
1690. The purpose and operation of this amendment is the same as for new paragraphs
10F(1)(d) and (e) - see discussion at item 15.
Item 19: At the end of subsection 10G(3)
1691. This item inserts new paragraph 10G(3)(f) to provide that if environment plan levy is
imposed on submission of an environment plan or proposed revision of an environment,
and the activities to which the plan relates are carried out for the purpose of complying
with a remedial direction, the levy is payable by the person who is subject to the
direction.
Item 20: Application of amendments
1692. This item inserts application provisions for the purposes of the amendments made by
this Bill. The application provisions ensure that the operation of the relevant provisions
as amended is prospective only.
1693. Safety case levies are imposed in respect of a year. Sub-item (1) ensures that the
amendments of sections 7 and 8 of the Regulatory Levies Act made by this Bill only
apply in relation to safety case levies that are imposed in respect of a year that begins
on or after commencement of the amendments.
1694. Sub-item (2) ensures that the amendments of sections 10C and 10D (well activity levy)
made by this Bill only apply in relation to applications or submissions made to
NOPSEMA on or after commencement of the amendments. Sub-item (3) ensures that
the amendments of section 10F and 10G (environment plan levy) only apply in relation
to submissions made on or after commencement of the amendments.
272
Regulatory Impact Statement
Improvements to Title Administration
October 2020
273
Copyright
© Commonwealth of Australia 2020
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Content contained herein should be attributed as Regulatory Impact Statement: Improvements to
Title Administration, October 2020, Australian Government Department of Industry, Science, Energy
and Resources.
ISBN: 978-1-922125-77-4
Disclaimer
The Australian Government as represented by the Department of Industry, Science, Energy and
Resources has exercised due care and skill in the preparation and compilation of the information and
data in this publication. Notwithstanding, the Commonwealth of Australia, its officers, employees, or
agents disclaim any liability, including liability for negligence, loss howsoever caused, damage, injury,
expense or cost incurred by any person as a result of accessing, using or relying upon any of the
information or data in this publication to the maximum extent permitted by law. No representation
expressed or implied is made as to the currency, accuracy, reliability or completeness of the
information contained in this publication. The reader should rely on their own inquiries to
independently confirm the information and comment on which they intend to act. This publication
does not indicate commitment by the Australian Government to a particular course of action.
Regulatory Impact Statement industry.gov.au 1
Contents
Preamble ................................................................................................................................................. 3
1. The Problem .................................................................................................................................... 5
2. Need for government action........................................................................................................... 7
3. Potential policy options .................................................................................................................. 8
4. Net benefits................................................................................................................................... 10
5. Consultation .................................................................................................................................. 15
6. Preferred option ........................................................................................................................... 19
7. Implementation ............................................................................................................................ 21
Annex 1: Costing Assumptions.............................................................................................................. 23
Annex 2: Table of Key Implementation Risks........................................................................................ 24
Regulatory Impact Statement industry.gov.au 2
Preamble
The resources sector is instrumental to Australia's economic prosperity. The significant employment
and economic activity generated by the sector has helped sustain Australia's development and
growth over the last two decades. The Australian Government's vision is to have the world's most
advanced, innovative and successful resources sector, which delivers sustained prosperity and social
development for all Australians. It aims to deliver the most globally attractive and competitive
investment destination for resources projects to facilitate Australia's economic growth and
innovation, into the future.
Australia has a globally recognised oil and gas sector, which has made significant economic
contributions to the economy. Australia's oil and gas industry has delivered enormous benefits in the
form of export earnings, domestic economic activity, employment and investment. It has also
created and sustained a globally respected and innovative technology, services and manufacturing
sector. According to the Resources and Energy Quarterly September 2020, Australia remains one of
the world's largest exporters of Liquefied Natural Gas, accounting for approximately AUD$31 billion
in export revenue in 2020-2021.3
A key policy objective of the offshore regime is to ensure that Australia's resources are developed
sustainably, responsibly and in accordance with industry leading practice. This means that resource
management, the environment and the health and safety of those employed in the sector, are key
considerations for petroleum activities that are undertaken within the regime. It is also important
that the risks and liabilities of petroleum activities, remain the responsibility of those who have
derived the financial benefits from the project, rather than the Commonwealth and the Australian
taxpayer. The Commonwealth seeks to balance these considerations and the continuous
improvement of the regulatory framework, all while minimising the regulatory burden on business.
Australia's offshore regime is now maturing as some projects and basins begin to plateau and may
decline if new fields are not brought in to production. The late 1960s saw the offshore Gippsland
Basin start production and the 1970s saw oil discovered off the northern coast of Western Australia,
which is now also a highly productive gas province and has become the cornerstone of the
Australian oil and gas industry. The regime is currently geared towards attracting new investment
and discovery of Australian resources, with its regulatory framework reflecting these priorities.
However, as the industry matures, projects are coming to an end, requiring greater regulatory
emphasis on activities which occur in the mid to end of life phase of the project. The framework
must therefore adapt to the changing needs of industry to effectively manage petroleum activities
that are common in the mid to end of a project's life. Such activities include (but are not limited to)
transfers of titles, changes of ownership and decommissioning.
The recent liquidation of the Northern Oil and Gas Australia (NOGA) group of companies
demonstrated the importance of the offshore regulatory framework adapting to the needs of the
offshore industry. In an unprecedented event throughout the 50 years of Australia's offshore
regime, the NOGA group of companies went into liquidation on 7 February 2020, with an offshore
facility that until July 2019, had been in production.
3
Department of Industry, Science, Energy and Resources, Commonwealth of Australia
Resources and Energy Quarterly September 2020, p 67.
Regulatory Impact Statement industry.gov.au 3
Having purchased the asset and titles from Woodside Energy via a corporate transfer in 2016, NOGA
is an example of a company entering the regime towards the end of the project's life, when
production was declining. The NOGA liquidation highlighted the need for the framework to provide
greater regulatory oversight throughout the life of a project.
The department is seeking to amend the regulatory framework to strengthen the requirements for
entities entering and progressing through the regime to ensure they are suitable, including being
financially and technically capable to undertake petroleum activities in a safe manner and ensure
that the environment is rehabilitated in compliance with the Offshore Petroleum and Greenhouse
Gas Storage Act 2006 Act (the Act). The department also wants to ensure those entering the regime
do not have a history of material non-compliance, fraudulent or misleading behaviour and/or
financial mismanagement. While regulatory amendments cannot entirely prevent a situation where
a company suffers financial distress, providing increased regulatory oversight at key gateway points
can ensure those entering the regime to be both capable and appropriate to undertake their
obligations and meet liabilities, effectively managing the risk to the Commonwealth.
Regulatory Impact Statement industry.gov.au 4
1. The Problem
Problem Statement
The current offshore regulatory framework lacks sufficient mechanisms, particularly at certain
high risk gateways, to ensure that an entity is appropriate to become a titleholder in Australia's
offshore regime and undertake petroleum activities.
As Australia's offshore industry matures, there are an increasing number of projects and assets
reaching end of life in the next 30 years, with an anticipated decommissioning liability of AUD$60
billion.4 The regulatory framework and the posture of the regulator, will need adapt to meet the
changing needs of the Australian offshore industry, which is beginning to focus more on mid-to-end
of life petroleum activities, while also remaining attractive to encourage new investment in the
regime.
A change in ownership and control of a titleholder may result in an
unsuitable entity becoming a titleholder in the Australian offshore
regime.
Commercial transactions to sell or acquire oil and gas assets and titles can be structured in a variety
of manners. Currently, the Act requires the assessment and registration of two classes of
transactions by the National Offshore Petroleum Titles Administrator (NOPTA) - 'transfers' and
'dealings'.
In seeking approval for a transfer, the applicant must provide financial and technical information to
NOPTA, who is able to exercise information gathering powers to obtain further documentation from
the applicant. However, there is a lack of regulatory oversight of transactions involving a change in
the ownership or control of titleholders. This generally occurs via parent company acquisitions of the
shares in titleholders (who tend to be subsidiaries within corporate groups). This effectively changes
the company structure but is not captured by the legislation as a 'transfer' of a title or a 'dealing'
because no interests in the title itself are transferred, created or assigned. Such transactions are a
common way for the industry to sell ownership of offshore projects.
This results in a risk that entities that are not suitable or capable can enter the regime where a
producing asset is acquired 'indirectly' through a change in the ownership or control of the
titleholder (the entity that holds the interests in the title itself). This risk increases late in the life of
the title due to declining production, resulting in an uncertain revenue stream, and potentially
resulting in the costs of decommissioning being beyond the financial capacity of the titleholder.
4
Estimated by Wood Mackenzie and assumes all infrastructure will be removed with no life
extension activities.
Regulatory Impact Statement industry.gov.au 5
There is insufficient clarity and/or transparency of decision-making
criteria at key gateway points to determine whether an entity is
suitable to enter Australia's offshore regime.
Good decision-making builds in accountability that applies to the decision-maker by ensuring the
merits of each case are considered against criteria. Currently, there is a lack of clarity around the
regulator's decision-making criteria (allowing for broad discretion) at key gateway points, other than
the initial entry application into the regime. These decisions determine whether a titleholder is
appropriate to enter Australia's offshore regime.
As projects mature, there is the increased probability of existing titleholders looking to sell its title
and/or assets, as the viability of the project starts to diminish as a result of the declining resources
and increasing costs. While this may provide an investment opportunity for companies with lower
overheads to extract the remaining resource, the regulator's decision making process as to whether
a titleholder is appropriate and capable to undertake these activities and enter the regime, remains
unclear. This includes a lack of clarity around the requirements and decision-making criteria that the
regulator will consider in deciding whether an applicant is appropriate, financially and technically
capable and whether they have a history of compliance and good standing within the regime.
There are limited mechanisms to protect the Australian taxpayer
where the titleholder is unable to meet its liabilities or encourage
titleholders to undertake their due diligence when disposing of
assets/titles.
While the current regulatory framework provides for oversight, there may be unforeseen
circumstances (such as a crash in oil price, of extended period of subdued demand during the
current pandemic) where despite its best efforts, a titleholder's financial health may deteriorate to
such a point that it cannot continue to operate, thereby putting at risk its ability to meet its
decommissioning obligations. An inability to properly decommission and remediate a site raises
potential risks to the environment without government intervention.
In Australia, the form of 'trailing liability' in the regime is currently limited in its use to a certain set
of circumstances. The independent Review of the Circumstances that Led to the Administration of
the Northern Oil and Gas Australia (NOGA) Group of Companies by Mr Steve Walker (the Walker
Review), highlighted that this limited scope for trailing liability doesn't properly protect the interests
of the broader community and taxpayer, and is inconsistent with comparable jurisdictions who are
managing a mature industry.
As a result of this limited nature, it means that there is limited ability for the regulator to 'call back'
previous titleholders or other related persons in the event the former titleholder no longer exists,
who have obtained a financial benefit from the resources. Where a current titleholder suffers
financial distress and/or is unable to fulfil its decommissioning liabilities, and all other safeguards
have failed, the Government should have the ability to recall a previous titleholder(s) to be involved
in decommissioning and/or remediation activities. The Walker Review observed that this ability is
available in other jurisdictions and should be considered in the Australian context.
Recognising the ways in which companies are able to structure transactions to divest assets and
titles to limit accountability for decommissioning obligations, the department proposes to introduce
Regulatory Impact Statement industry.gov.au 6
the concept of a 'related person' for the purposes of trailing liability. A related person will include
the former titleholder and a parent company of the current or former titleholder.
The department considers a key policy objective of expanding the existing trailing liability provisions,
to be a change in industry behaviour in that outgoing titleholders would undertake greater due
diligence checks of who it is selling its assets to, knowing that if the incoming titleholder fails to
meets its obligations the outgoing titleholder would be recalled. This is important in reducing the
risk that existing titleholders may dispose of mature-late-life assets to entities who may not be
financially or technically capable of undertaking the petroleum activities and fulfilling their liabilities.
2. Need for government action
As the Australian offshore regime matures, government action is needed to improve the regulatory
framework and address the issues that have been brought to light by the recent NOGA liquidation.
Government action is required to undertake continuous improvement of the offshore regulatory
framework, which maintains community confidence in the regime and provides for better regulatory
outcomes for both the government and the industry.
The financial risks to the Commonwealth and the Australian taxpayer if no action is taken are
significant, as offshore resource projects are generally multi-billion dollar investments with assets
and liabilities of a similar magnitude and scale. Similarly, the environmental and safety risks if a
project is not adequately decommissioned are significant and could result in the pollution and/or
damage to the marine environment as well as injury/loss of life to employees or impacts on other
users of the marine environment. In addition, government action is needed to ensure that the
reputation of Australia's offshore regime is maintained, in line with other leading practice regimes
around the world.
The Australian government must take action to improve and increase safeguards against the
significant risks to the Commonwealth if offshore projects are unable to be decommissioned by
titleholders.
This includes adding clarity and regulatory oversight to decision making criteria, so that the regulator
can consider an applicant's appropriateness to take over title interests, assess their capacity to fulfil
their financial and technical obligations before they enter the regime and ensure such decisions and
requirements are clear and transparent to industry. This assists both the regulator and potential
titleholders in understanding the requirements that will be considered to enter the offshore regime.
Government action is required to ensure that where all other safeguards have failed, as an option of
last resort, it has the ability to mitigate the risks to itself (and subsequently the Australian taxpayer)
by requiring decommissioning liabilities to be met by former titleholders or related persons in the
event the former titleholder company no longer exists, who have obtained financial benefits from
the resources.
In Australia, this is currently limited in its use to a certain set of circumstances. The Walker Review
highlighted that this limited scope does not properly protect the interests of the broader community
and taxpayer, and is inconsistent with comparable jurisdictions who are managing a mature
industry. It should be noted that in the offshore resources industry, there will always be inherent
risks and there is no way in which to completely eliminate the risk of a titleholder experiencing
financial distress. However, the department is proposing measures that will provide some
safeguards and mechanisms to improve regulatory oversight and reduce the risks as much as
possible while maintaining the Australian regime as an attractive investment destination.
Regulatory Impact Statement industry.gov.au 7
3. Potential policy options
Three options have been considered to respond to the problem statement.
A non-regulatory option has not been explored as a possible option. This is because a non-regulatory
option does not meet the fundamental requirements for regulatory oversight from the Australian
Government for the offshore oil and gas regulatory framework. Removing or diminishing the
Australian Government's role in the regulation of offshore petroleum activities poses an
unacceptable risk to the industry, environment and the Australian public.
Option 1
In this option, the regime remains as is, the government takes no action and the regulatory
framework continues to operate in its current form.
This option means that no Commonwealth resources are required to amend the Act or to undertake
increased regulation of the regime. This also means that there is no increase in regulatory burden for
industry as there is no change in the regulatory obligations.
Without regulatory amendments, projects within the regime will continue to mature with many
reaching their end of life over the next 10 to 50 years. There will be no added regulatory oversight at
key gateway points and limited mechanisms for the regulator to call back any previous titleholders
to fulfil decommissioning obligations. It is possible that acquiring title interests through a change in
ownership or control of a titleholder company will become a preferred entry gateway for entrants
into the regime in later project life, as companies can access existing PRRT credits.
Without making regulatory amendments to the existing framework, there are increased risks of the
taxpayer being exposed to the costs associated with similar events occurring. Financially, these risks
are significant as the liabilities of projects coming to the end of life within the Australian regime are
over AUD$60 billion across the next 30 years.5 There will also remain risks to the environment and
safety of employees where the financial and technical capability of new titleholders are not
considered at key gateway points.
Taking no action may result in companies who do not have the financial capacity, being unable to
fulfil their environmental and work health and safety requirements under the Act, presenting a risk
to the safety of individuals and the environment. It also risks reputational damage to the Australian
offshore regime if it does not adapt to meet the evolving needs of the industry and various projects
coming to their end of life. As the current regime is lightly tested with regard to decommissioning
activities, there are identified opportunities to improve the current regulatory practice with regard
to petroleum activities that occur in mid-late life of a title such as sale, transfers and
decommissioning.
Under this option, the form of trailing liability would also remain limited with little ability for the
government to call back a former titleholder or related person in the event the last remaining
titleholder failed to meet its decommissioning obligations. This will retain the status quo and the
current behaviour of the industry to offload mature projects to avoid the liabilities attached to those
projects.
5
Estimated by Wood Mackenzie and assumes all infrastructure will be removed with no life
extension activities.
Regulatory Impact Statement industry.gov.au 8
Option 2
In this option, regulatory amendments are made to increase regulatory oversight of titleholders
entering and progressing through the regime, while not stifling investment in the Australian offshore
regime. It seeks to balance the tension between providing adequate regulatory oversight and
mechanisms to reduce the risks surrounding decommissioning liabilities for new titleholders, while
not tying up a company's cash flow towards the end of the project's lifespan, which may result in
some companies experiencing financial distress.
Through the proposed regulatory amendments, the regulator will be given clear decision-making
criteria to assess, on a case-by-case basis, a new entity applying to enter the regime and consider
their financial and technical capability to fulfil their obligations. Using a risk-based approach, the
regulator can consider the diverse range of titleholders, assets and projects, which each present
varying degrees of risk and liability. This option places the onus on the applicant to demonstrate to
Government that they have the capacity and capability to fulfil their obligations.
Increased oversight and clarity around decision-making at key gateway points such as sale, transfer
or change of ownership would also provide potential titleholders with transparency around the
process, expectations and obligations required to take part in the Australian offshore regime.
This approach seeks to ensure that the regulatory amendments are both reasonable and effective,
while creating mechanisms that allow a regulator to mitigate potential risks to the Commonwealth.
The proposed measures in this option would involve the following changes to the Act:
providing clear decision-making criteria for the regulator in assessing capacity and
appropriateness at specified high risk gateways, including transfers of titles, and changes in
ownership and control relating to titleholders;
- including criteria for participants in the regime (either direct or indirect) to assess
their appropriateness to carry out petroleum or GHG storage activities;
- providing that an application or a titleholder will need to demonstrate their financial
and technical capability and appropriateness at specified high risk gateways;
enabling regulatory oversight where there is a change of ownership and/or control i.e.
ensuring that transaction is subject to the same regulatory requirements as if it is a transfer
of title.
expanding the existing trailing provisions to apply in a greater range of circumstances
through the issuance of a remedial direction to a former titleholder and/or related person as
a last resort option available to government.
- In comparable jurisdictions and given the last resort nature of trailing liability, it has
been designed that trailing liability is 'activated' following a series of events and
non-compliance by the current titleholder.
Option 3
This option involves NOPTA taking a more intensive approach to regulation to reduce the risk that a
titleholder is unable to meet its liabilities.
Here, the same changes as Option 2 would be made to the regulatory framework however, the
regulator's oversight of low risk transactions and gateways would also be increased and trailing
liability would be a standalone obligation in the Act rather than being a power that is activated by a
Regulatory Impact Statement industry.gov.au 9
decision of government. The result of this option is that companies will need to account for its
liabilities on an ongoing basis, in some form, despite selling its assets to another party.
This means that rather than giving NOPTA the discretion in assessing these risks on a case-by-case
basis, a regulator would require much more information from applicants on each and every
transaction during the life of a title.
This option would require:
More detailed information requirements at key gateway points as well as more prescriptive
requirements that the regulator would need to consider in making its decision;
Added regulatory oversight of financial and technical capability across all dealings great and
small rather than just the key gateway points which present higher risk (for example, where
a joint operating agreement between titleholders is amended as opposed to when the title
undergoes a change of ownership or transfer at a key gateway);
A fit and proper associates test to assess any individual who may have either direct or
indirect influence and or control are scrutinised, where a new titleholder seeks to enter the
Australian offshore regime; and
Addition of a 'standing obligation' in the Act that a titleholder may at any time, be recalled
to undertake decommissioning and remedial activities.
This approach would be highly burdensome on operators and titleholders and would involve a
significantly higher cost to the Commonwealth to ensure compliance, while not necessarily
delivering a significant benefit in reducing the risks of decommissioning liabilities being met.
This option may also discourage further investment in Australia.
4. Net benefits
Costing assumptions for the potential policy options are at Annex 1.
Option 1
Option 1 (status quo): $1,895.66 (estimated cost for an organisation to prepare a report) based on 6
hours of time of a technical financial / administration employee at an hourly wage rate of $121.15
and 1 hour of time of 2 CEOs/Directors at a hourly wage rate of $583.33. $644,524.40 (estimated
cost across the sector) based on a multiplier of 68 (average number of applications NOPTA receives
per FY) and 5 (average JV partners per title).
Regulatory benefit
There are no additional benefits above the existing framework as there is no change.
Regulatory cost
There is no additional regulatory cost associated with this option, as there is no change to the
current regulatory framework, therefore no additional burden or impost on the regulator to
continue to regulate the framework as it currently stands. There is no change to the cost or burden
on industry/titleholders in this option as there is no change in regulation.
Net benefit
Regulatory Impact Statement industry.gov.au 10
There no net benefit in this option as there is no change to the existing regulatory framework.
Other considerations
Without making regulatory improvements to the existing framework, there are increased risks of
entities becoming titleholders who are unable to meet their decommissioning obligations, resulting
in the risk of a similar event occurring. Failure to decommission may result in safety and
environmental impacts unless the Australian Government steps in to decommission and remediate
the environment. These risks are significant as Australia's current decommissioning liability over the
next 30 years is estimated to be AUD$60 billion6 and can have far-reaching consequences for safety
and the environment.
While the NOGA liquidation was an unprecedented event, the potential consequences for the
Australian taxpayer are significant. This risk will increase as Australia's regime is maturing with many
projects nearing the end of life in the near future (next 30-50 years). The likelihood of an operator
being unable to fulfil its decommissioning liabilities will therefore increase. Combined with the scale
and cost of offshore petroleum projects, the liabilities are significant with limited ability of the
government to call back entities.
This option also risks deterioration of community confidence in, and reputational damage to, the
Australian industry participants, as well as the government regulator. In addition, titleholders may
experience a decline in social licence to operate if other projects are not appropriately
decommissioned within the regime. This option increases the risks of an environmental or safety
incident if a titleholder is unable to fulfil its liabilities and carry out petroleum activities in
accordance with the framework.
Option 2
Summary of regulatory impact calculations
Options Technical and Fit and proper Change of Total annual Total
financial person ownership estimated estimated
reporting declaration and and control regulatory regulatory
Sector ($m) appropriateness Sector ($m) costs ($m) costs over
criteria thirty years
Sector ($m) ($m)*
Option 1: 0.645 - - 0.645 19.350
Option 2: 0.825 3.151 0.003 3.979 119.370
Change in 0.180 3.151 0.003 3.334 100.020
regulatory
costs
*A thirty-year period for forecasted regulatory costs has been used due to the extended duration of offshore oil and gas projects.
Option 2 (additional technical and financial reports): $1,895.66 (estimated cost for an organisation
to prepare a report) based on 6 hours of time of a technical financial / administration employee at
an hourly wage rate of $121.15 and 1 hour of time of 2 CEOs/Directors at a hourly wage rate of
$583.33. $824,612.10 (estimated cost across the sector) based on a multiplier of 87 (estimated
number of applications NOPTA will receive per FY) and 5 (average JV partners per title).
6
Estimated by Wood Mackenzie and assumes all infrastructure will be removed with no life
extension activities.
Regulatory Impact Statement industry.gov.au 11
Option 2 (fit and proper person declaration and appropriateness criteria application): $7,242.96
(estimated cost for an organisation to prepare an application) based on 2 hours of time of a
technical financial / administration employee at an hourly wage rate of $121.15 and 1 hour of time
of 12 CEOs/Directors at a hourly wage rate of $583.33. $3,150,687.60 (estimated cost across the
sector) based on a multiplier of 87 (estimated number of applications NOPTA will receive per FY) and
5 (average JV partners per title).
Option 2 (change of ownership and control application): $1,288.16 (estimated cost for an
organisation to prepare an application) based on 1 hours of time of a technical financial /
administration employee at an hourly wage rate of $121.15 and 1 hour of time of 2 CEOs/Directors
at a hourly wage rate of $583.33. $2,576.32 across the sector with a multiplier of 2 (average number
of applications NOPTA receives per FY).
Regulatory benefit
There is regulatory benefit in making the amendments proposed in this option.
Making regulatory amendments to increase regulatory oversight means that there will be increased
safeguards in place at key gateway points. This in turn, helps mitigate the risk that liabilities will not
be met and are instead, transferred to appropriate entities who have the financial and technical
capability to meet those risks. To date, the Australian Government has expended over AUD$75
million to mitigate safety and environmental risks as a result of the liquidation of the NOGA group of
companies. Although Option 2 introduces anticipated regulatory impacts for industry, the regulatory
benefits would far outweigh these impacts if as few as two similar events occur in the future.
There is also regulatory benefit in providing clarity of decision-making requirements at key gateway
points to ensure the process is user-friendly, easy to implement and transparent to all parties. This
will ensure that the regulator is better able to manage the expectations of applicants and
titleholders and result in an overall better regulatory practice.
The benefit of an expansion of the existing trailing liability provisions is that it achieves the
governments outcomes of having the ability to recall previous titleholders ensuring the cost,
expenses and liabilities associated with decommissioning are not borne by the Australian community
but minimises the extent of how commercial entities must report on and carry the liability on their
books.
Regulatory cost
The regulatory cost of this option includes the resourcing and administrative costs involved with
amending the regulatory framework and its implementation. In addition, implementing the new
regulatory measures would require additional resourcing for the regulator.
This would involve some additional costs to provide additional oversight into matters that are
already considered by the regulator (i.e. assessing the financial and technical capability where a
titleholder applies to join the regime).
There would be additional regulatory costs to cover regulatory oversight in matters where the
regulator would not ordinarily do so (i.e. change in control of a company). This would include
resourcing for the purpose of seeking and considering more information from the titleholder or
assessing information according to new criteria established by the proposed measures. However
these additional responsibilities would only occur at key gateway points in the life of the title (i.e.
Regulatory Impact Statement industry.gov.au 12
where the title is sold or transferred) rather than as a regular occurrence (e.g. weekly, monthly or
even annually in many cases).
Net benefit
There is a net benefit for this option because the regulatory cost is less than the regulatory benefit.
Although the liquidation of the NOGA group of companies was an unprecedented event in the
history of Australia's offshore regime, the avoided costs to the Commonwealth and to the Australian
taxpayer would far exceed any anticipated regulatory impacts to industry; if the changes where to
prevent just two similar situations over the next thirty years.
Other considerations
This option meets the Australian Government's policy objective in continuously improving the
offshore resources regime and provides a regulatory framework for industry where liabilities are
disposed of responsibly and in line with other best practice regimes.
Costs in relation to trailing liability are only anticipated to result in minimal to nil impact to
Australia's overall investment attractiveness; as the associated liability obligations will only be
enlivened as a measure of last resort, when all other regulatory mechanisms have failed.
This option also supports industry's social licence to operate as amending the regulatory framework
to include better regulatory practices increase community confidence and provide assurances to the
Australian community that the regime has environment, safety and financial risks at the forefront of
its policy and regulation.
There is a significant risk to the taxpayer in not implementing this option as the financial risk if a
titleholder is not able to fulfil its decommissioning obligations is potentially significant, particularly
given the nature, scale and cost of offshore petroleum operations.
Expanding the existing trailing provisions to create a larger dormant power that needs to be
'activated' by a decision of government, we understand may not need to be carried on the books of
companies once an asset has been sold. In comparable jurisdictions who are managing maturing
industry and given the last resort nature of trailing liability, it has been designed that trailing liability
is 'activated' following a series of events and non-compliance by the current titleholder.
The department intends for a similar series of events or gateways, before trailing liability could be
'activated' by government, especially given this implementation option is to expand upon a form of
existing trailing liability in the legislation, which currently has attached criminal liabilities with up to
five years imprisonment should a breach occur.
The department is not aware of any instances in comparable jurisdictions where trailing liability has
been required and it appears the threat of governments having the power has been sufficient to
effect behavioural change in industry and increased diligence on who companies sell their assets to.
Regulatory Impact Statement industry.gov.au 13
Option 3
Summary of regulatory impact calculations
Options Technical and Fit and proper Change of Total annual Total
financial person ownership estimated estimated
reporting declaration and and control regulatory regulatory
Sector ($m) appropriateness Sector ($m) costs ($m) costs over
criteria thirty years
Sector ($m) ($m)*
Option one: 0.645 - - 0.644 19.350
Option three: 2.370 18.661 0.003 21.034 631.020
Change in 1.725 18.661 0.003 20.389 611.670
regulatory
costs
*A thirty-year period for forecasted regulatory costs has been used due to the extended duration of offshore oil and gas projects.
Option 3 (additional technical and financial reports): $1,895.66 (estimated cost for an organisation
to prepare a report) based on 6 hours of time of a technical financial / administration employee at
an hourly wage rate of $121.15 and 1 hour of time of 2 CEOs/Directors at a hourly wage rate of
$583.33. $2,369,575.00 (estimated cost across the sector) based on a multiplier of 250 (estimated
number of applications NOPTA will receive per FY) and 5 (average JV partners per title).
Option 3 (fit and proper associates test and appropriateness criteria application): $14,928.72
(estimated cost for an organisation to prepare an application) based on 2 hours of time of a
technical financial / administration employee at an hourly wage rate of $121.15 and 1 hour of time
of 12 CEOs/Directors at a hourly wage rate of $583.33 and an average of 2 associates per
CEOs/Directors (24) with an average hourly cost of $320.24. $18,660,900.00 (estimated cost across
the sector) based on a multiplier of 250 (estimated number of applications NOPTA will receive per
FY) and 5 (average JV partners per title).
Option 3 (change of ownership and control application): $1,288.16 (estimated cost for an
organisation to prepare an application) based on 1 hours of time of a technical financial /
administration employee at an hourly wage rate of $121.15 and 1 hour of time of 2 CEOs/Directors
at a hourly wage rate of $583.33. $2,576.32 across the sector with a multiplier of 2 (average number
of applications NOPTA receives per FY).
Regulatory benefit
There is a regulatory benefit in amending the current framework and changing the focus of the
regulator to implement a lower risk-tolerance approach to regulation of the offshore framework.
The risks of an inappropriate titleholder entering the regime without the financial and technical
capability to discharge their liabilities would be reduced. Option 3 provides the same regulatory
benefits as Option 2.
Regulatory cost
There is a regulatory cost in being risk-averse in regulating the offshore industry. It would require
significant resources from both the regulator to ensure compliance and also the titleholder, to
comply with the requirements.
Intensive regulation is highly burdensome on the titleholder and is unlikely to yield any more
regulatory benefit as taking the less burdensome risk-based approach. Furthermore, this regulatory
Regulatory Impact Statement industry.gov.au 14
approach is likely to deter investment from new potential titleholders in the Australian regime,
thereby resulting in an opportunity cost.
Implementing this option could also stifle a company's cash flow which may negatively affect their
financial health and result in the opposite outcome that it is trying to achieve i.e. forcing a company
into insolvency and unable to meet their decommissioning liabilities.
Net benefit
Option 3 provides equal regulatory benefit as Option 2, however has significant additional regulatory
impacts to industry, with little to no improvement to policy outcomes.
Other considerations
Option 3 includes the potential of stifling a company's cash flow, as companies must at all times
carry the decommissioning liability in some form, despite selling its assets to another party.
Unlike Option 2, Option 3 would require companies to be potentially perpetually liable for liability
costs of decommissioning, even after they no longer hold an interest in the title. Consultation with
key industry stakeholders identified that this ongoing liability may significantly deter consideration
to the selling and release of assets, which would negatively impact Australia's overall investment
attractiveness. This consideration may also result in significantly less capital being available for
companies to explore new investment opportunities across Australia and is likely to stimulate a
change in industry behaviour in terms of the appetite of developing new oil and gas projects to meet
Australia's future energy security needs.
While there is some regulatory benefit in reducing risks around decommissioning liabilities and
appropriateness and capabilities of titleholders entering the regime, even the most intensive
regulatory oversight cannot completely eliminate these risks. It is, instead, about trying to
continuously improve the regulatory practices and reduce risks to as low as practicable while not
stifling investment.
5. Consultation
Consultation with stakeholders on the proposed policies and measures has occurred in three key
stages: engagement on the broader decommissioning framework as part of the department's
Offshore Oil and Gas Decommissioning Review (the Decommissioning Review), the independent
Review of the Circumstances that Led to the Administration of the Northern Oil and Gas Australia
(NOGA) Group of Companies by Mr Steve Walker (the Walker Review) and a targeted workshop with
industry through its peak body association, Australian Petroleum Production and Exploration
Association (APPEA).
The Decommissioning Review
In October 2018 and prior to the liquidation of the NOGA group of companies, the department
released a public discussion paper titled Decommissioning Offshore Petroleum Infrastructure in
Commonwealth Waters, with submissions, workshops and consultation occurring throughout 2019.
The purpose of this consultation was to obtain feedback from relevant stakeholders to help ensure
that Australia's decommissioning framework was fit for purpose, remains best practice, and
positions Australia to respond to decommissioning challenges and opportunities now and into the
Regulatory Impact Statement industry.gov.au 15
future. The Decommissioning Review focused primarily on environmental and well integrity
outcomes, as well as regulatory oversight.
The Decommissioning Review proposed that a titleholder's capacity to fulfil its obligations under a
title, particularly its financial capacity for decommissioning, should be assessed at any time and/or as
part of a change in parent company ownership or control of a corporate titleholder. Liability
arrangements were also canvassed in the discussion paper.
Twenty three public submissions were received in response to the Discussion Paper. These came
from a variety of sectors, entities and individuals including the offshore petroleum industry,
environmental NGOs, fishing groups, academia, government and legal firms.
Feedback received as a result of this consultation identified that the current framework provided
opportunities for:
greater government oversight when a change in the ownership or control occurs, and
expansion and strengthening of the policy principles that underpin financial assurance.
Of note, the agreed view is that current titleholders should be held responsible for decommissioning
obligations, rather than the Australian taxpayer.
There was also specific feedback from oil and gas companies that only the current titleholder should
be held responsible for decommissioning, rather than previous titleholders who are 'called back' in
the event that the current titleholder is unable to fulfil their decommissioning obligations, otherwise
known as 'trailing liability'.
While consultation on the Decommissioning Review was underway, the NOGA group of companies
entered administration in October 2019 and went into liquidation on 7 February 2020. This further
reinforced the need to improve the regulatory framework, to meet the new challenges presented by
an industry which is ultimately moving towards decommissioning as it enters mid to late life in
various titles and projects.
The Walker Review
In March 2020, the Minister for Resources, Water and Northern Australia, the Hon Keith Pitt MP,
appointed Steve Walker to conduct the independent Review of the circumstances that led to the
administration of the Northern Oil and Gas Australia group of companies. Mr Walker consulted with
a wide range of stakeholders, which included key industry stakeholders and the regulators.
The purpose of this consultation was to obtain feedback as part of the review, which examined the
roles, responsibilities and behaviours of key stakeholders and advised on potential reforms of the
offshore oil and gas regulatory regime
The Walker Review made 9 recommendations to improve practices, policies and legislation. Notably,
it recommended that:
The Decommissioning Review should consider recommending trailing liability, whereby a
titleholder would be continually liable for the decommissioning and removal of its offshore
assets, even after selling its interests in a title on to a different titleholder.
The Decommissioning Review should explore legislative changes or clarifications to enable
the National Offshore Petroleum Titles Administrator (NOPTA), and the Joint Authorities to
require titleholders to provide financial surety for their decommissioning liabilities, should
NOPTA have concerns that the titleholder will not be in a position to meet such costs. Such
Regulatory Impact Statement industry.gov.au 16
sureties should be in a form that would be available to the Government in the case of the
titleholder going into liquidation.
Regulatory concerns over the adequacy of legislation to allow NOPTA to have oversight of
titleholder company level transactions, and to allow NOPTA to assess financial resource and
technical qualification considerations before a title is transferred to an existing titleholder,
should be resolved.
NOPTA's powers should be clarified so that it can obtain financial and technical capacity
information about the titleholder, and thus monitor titleholder financial performance and
technical capacity, throughout the tenure of the title, including decommissioning.
Consideration should be given to extending NOPTA's oversight to include the adequacy of
titleholder corporate governance arrangements. In the meantime, NOPTA should consider
updating the Offshore Petroleum Guideline: Transfer and Dealings Relating to Petroleum
Titles to include an expanded section on titleholders' technical capacity and governance
expectations.
Recommendations that go beyond the scope of the proposed amendments will be considered as
part of the revised policy frameworks for decommissioning and safety.
Targeted industry consultation
The department has undertaken ongoing targeted consultation with the oil and gas industry through
its peak body group, APPEA.
APPEA is the peak national body representing Australia's upstream oil and gas exploration and
production industry. It has approximately 60 full member companies who account for an estimated
98 per cent of the Australia's petroleum production. APPEA also represents about 140 associate
member companies that provide a wide range of goods and services to the upstream oil and gas
industry.
On 19 October 2020, the department held a workshop with APPEA to discuss the proposed
measures and obtain industry feedback.
During the consultation, APPEA's expressed the following views on behalf of its members:
Industry supports appropriate regulatory oversight at key gateways, including technical and
financial information, to mitigate the risk of another NOGA-like event, but raised concerns
about how some of these measures would be implemented. These concerns went to
ensuring these measures do not impose unnecessary regulatory burden on industry,
including by ensuring applicants are not required to provide information previously provided
to government, and clarifying the gateways in which this information would be required or
requested.
Trailing liability is not supported as a principle and should only be considered as an absolute
last resort and considered in conjunction with a robust financial assurance regime. Industry's
key concern is about the retrospectivity of a trailing liability measure and providing clarity
about the point in time when the industry would be subject to such a measure.
The department received a detailed response to the proposed measures, and discussed the
potential impacts that the proposed regulatory changes could have on industry. The objective of the
department's consultation with APPEA was to obtain the views of those stakeholders who would be
directly impacted by the regulatory changes as a result of the proposed measures.
Regulatory Impact Statement industry.gov.au 17
Ongoing Consultation with NOPTA and the National Offshore
Petroleum Safety and Environmental Management Authority
(NOPSEMA)
In addition to these three consultation processes, the department has also been regularly engaging
with NOPTA and NOPSEMA as the administrator and regulator (respectively) of Australia's offshore
oil and gas industry. NOPTA's purpose is to advise on, and administer, the Act in support of the
effective regulation and management of our offshore petroleum resources, consistent with good oil
field practice and optimum recovery.7 NOPSEMA is the independent regulator for health and safety,
structural (well) integrity and environmental management for all offshore oil and gas operations
and greenhouse gas storage activities in Commonwealth waters, and in coastal waters where
regulatory powers and functions have been conferred.8
The department has been undertaking these ongoing consultations to discuss issues such as
regulatory options, implementation of potential measures and to inform the regulatory costings of
the proposed changes. This consultation with NOPTA and NOPSEMA is instrumental to achieving a
holistic understanding of the requirements of the regime and to ensure that the proposed measures
are reasonable, achievable and measurable.
Areas of agreement and difference across the consultation process
Throughout the various consultations, the department received consistent feedback on a variety of
issues relating to the current offshore regulatory framework and opportunities for improvement.
Importantly, while the Decommissioning Review and the administration/liquidation of the NOGA
group of companies are separate issues, the Walker Review highlighted a number of challenges and
opportunities for Australia.
Stakeholders the board agreed that titleholders, rather than the Australian taxpayer, should be
responsible for their decommissioning obligations. Ensuring that current titleholders can be held
responsible for their obligations under their titles serves the interests and mitigates the financial,
safety and environmental risks to the industry, the Australian Government and the broader
Australian community.
Similarly, stakeholders identified that the current framework should include greater regulatory
oversight and clarity around the powers of the regulator, in order to seek out information relevant
to the financial performance and technical capability of titleholders where there is a change of
ownership and control of the titleholder.
A point of difference in views amongst those consulted included different positions on the proposed
trailing liability measure. While the Walker Review recommended that a trailing liability measure be
considered (whereby a titleholder would be continually liable for the decommissioning and removal
of its offshore assets, even after selling its interests in a title on to a different titleholder), APPEA has
advocated that its members do not support trailing liability as a principle, and should only be
considered as an absolute last resort and considered in conjunction with a robust financial assurance
regime.
7
https://www.nopta.gov.au/about.html
8
https://www.nopsema.gov.au/about/
Regulatory Impact Statement industry.gov.au 18
The department notes that while this measure presents a potentially significant impost to industry, it
remains an important 'backstop' where all other regulatory, legislative and operational levers have
failed. Forms of trailing liability are a feature of other similar, reputable and mature offshore
petroleum regimes, including Norway, the United Kingdom, the United States of America, and
Canada, where the offshore oil and gas industry is successfully working under these regulatory
requirements.
The Australian Government intends to exercise powers in respect to trailing liability where all other
available options have failed. In its efforts to reduce the financial, safety and environmental risks
within the offshore regulatory regime, the department considers that it would be remiss if it did not
provide a 'last resort' safety mechanism to protect all parties from unforeseen events, including the
industry itself, the government and the Australian taxpayer.
6. Preferred option
Feedback across the various consultation and review processes identified three consistent themes
from a range of stakeholders.
Firstly, there was consensus amongst those consulted that the current regime could and should be
improved to prevent, or significantly reduce, the risks of titleholders being unable to fulfil their
obligations within the regime. Stakeholders identified that the offshore regime should allow for the
responsible extraction of resources while also having proper regard to health, safety and
environment and to ensure that the correct balance is struck, to maintain business confidence and
encourage investment, in the Australian regime.
Secondly, there was consistent feedback that the decommissioning liabilities should be met by
current titleholders as those who have derived economic benefits from the resources, rather than
having these liabilities met by the Australian taxpayer. To that end, risks and responsibilities of
titleholders operating within the Australian regime should be clearly allocated in the regulatory
framework, ensuring that the regulatory expectations and requirements are clear to those intending
to enter the regime.
Thirdly, and following on from the view that the regulatory framework required greater clarity, was
the feedback that the current regime requires greater regulatory oversight and clarity around
NOPTA's role and responsibilities, as well as their decision-making criteria and processes at key
gateway points. Consultation showed that many stakeholders felt concerned about the unclear
legislative provisions in the current regime, which limit the regulator's ability to obtain sufficient
assurances and information at key gateways, that an applicant is suitable and capable to undertake
petroleum activities within the regime.
After undertaking targeted consultation with relevant stakeholders and reviewing their feedback,
the department recommends Option 2 in order to best address the problem statement. Option 2
delivers the greatest net benefit, as it ensures that the highest risk points (the entry points) within
the regime, are mitigated to the extent possible (including the ability to call back a greater range of
entities who not only installed offshore infrastructure property, but also derived an economic
benefit from Australia's resources), while not creating unnecessary regulatory burden on industry
and potentially discouraging investment. Greater clarity and regulatory oversight regarding decision
making criteria, being a key concern of stakeholders, will be addressed by this option. Option 2
address the concerns of both the department and the oil and gas industry to ensure that entities
entering or progressing through the regime are suitable, financially and technically capable to
Regulatory Impact Statement industry.gov.au 19
undertake petroleum activities in a safe and environmentally sustainable manner, and do not have a
history of material non-compliance, fraudulent or misleading behaviour and/or financial
mismanagement. Option 2 also provides the government with a last resort safety mechanism -
trailing liability, to call back a greater range of entities who derived an economic benefit from
Australia's resources, in order to mitigate the risks to the Australian taxpayer, where all other
safeguards have failed.
By comparison, under Option 1, there is no change to the regulatory framework which continues to
operate in its current form. While it will continue to provide a strong and effective framework that
industry is familiar with, it does not provide greater assurances at key gateway points to mitigate the
risk that companies entering the regime may be unable to meet their obligations. This in turn, may
result in a similar incident to that of the NOGA group of companies where significant liabilities fall to
industry and the Australian taxpayer. Unlike Option 2 (the recommended option), Option 1 does not
increase regulatory oversight, or provide greater assurance particularly at high risk gateways, that a
titleholder is suitable to enter the Australian offshore regime and undertake petroleum activities.
Option 3 provides a far more intensive approach to regulating industry, without a material net
benefit in achieving the intended policy outcome. Option 3 is likely to deter investment from new
titleholders in the Australian regime due to its onerous measures and does not address stakeholder
concerns raised during consultation regarding striking the right balance between risk management,
responsible resource extraction and encouraging investment in the Australian regime. Option 3
provides higher regulatory impacts with little to no improvement to policy outcomes of Option 2.
As Option 2 addresses the problem statement by avoiding the additional anticipated regulatory
impacts as Option 3, Option 2 is the preferred option.
In recommending Option 2, one key consideration in the decision-making process was the feedback
received during consultation on trailing liability. The department noted that trailing liability was not
supported by the oil and gas industry, and in order to ensure that this measure is effective but not
overly burdensome on titleholders, the department has chosen Option 2 which speaks to a risk-
based approach, as opposed to an intensive regulatory approach.
Rather than proposing a trailing liability measure, which is a 'standing obligation' in Option 3, the
department is recommending expansion to the existing powers to issue Directions under Option 2.
Under this measure it is in the event that a current titleholder cannot meet its decommissioning
obligations and other safeguards have failed, that previous titleholders and/or related persons
(including a parent company) may be called back to meet these obligations. Under a 'standing
obligation' measure (Option 3), companies would be required to maintain the financial capacity to
decommission all infrastructure previously held and managed, indefinitely, or until such
infrastructure is successfully decommissioned.
One area of uncertainty in considering all options were the costing assumptions that the department
relied upon. In order to accurately estimate both the cost of implementing the regulatory changes as
well as the potential costs of decommissioning various projects, the department obtained industry-
reflective decommissioning costs through consultation with the National Energy Resources Australia
(NERA).
The cost of the proposed regulatory changes in Option 2 are minimal in comparison to the risk of
potential decommissioning liabilities of offshore oil and gas assets and infrastructure, where
titleholders are unable to meet their obligations. The estimated cost increased associated with
Regulatory Impact Statement industry.gov.au 20
implementing the proposed changes in Option 2 is approximately AUD$3.33 million per year. By
comparison, the decommissioning cost for a range of offshore activities are estimated as follows:
plugging and abandonment of a single offshore exploration or appraisal well can range
between USD$9 million to USD$32 million (approximately AUD$12.7 million to AUD$45.4
million)9
decommissioning a medium sized project with a single semi-submersible or jack-up platform
with no shared infrastructure and fewer than 10 wells could range from US$255 million to
$US350 million
decommissioning a large, multiple platform project with shared infrastructure and more
than 25 wells could range from US$840 million to US$1.8 billion, or more
These estimated costs are highly variable, will vary between projects, and do not represent a
possible minimum or maximums. Rather they illustrate the range of costs that can reasonably be
expected10. This shows that the cost of implementing the proposed regulatory changes under
Option 2 are minor in comparison.
The department is committed to working with relevant stakeholders to improve the regulatory
framework and ensure beneficial outcomes to all stakeholders, including industry and the Australian
community. Continuous improvement of the offshore regulatory framework will maintain
community confidence in the regime and provide for better regulatory outcomes for both the
government and the industry.
The department does not consider that these measures will result in a significant burden on industry
and in fact, believes that Option 2 will benefit the offshore oil and gas industry, as improved
regulatory practices will increase community confidence and provide greater assurances to the
Australian community. In addition, all stakeholders will benefit from a reduction in the financial,
environmental and safety risks where a titleholder is unable to meet their decommissioning
obligations.
7. Implementation
The Australian offshore oil and regime is a well-established regulatory framework that has evolved
to be mature, reliable and dynamic. The Australian Government reviews and updates the
framework, to ensure that the regime remains fit for purpose to meet future challenges while also
encouraging investment. It is through this lens, that the proposed changes to the regulatory
framework are considered by the department to be 'business as usual', in its efforts to continuously
improve the offshore regime.
The timeframes in delivering and implementing Option 2 will be based on the proposed measures
being passed as a legislative bill, expected to be introduced into parliament in early 2021.
Australia has a relatively mature offshore oil and gas industry, which includes many large-scale
operators, with significant experience across a range of jurisdictions. The oil and gas industry is well-
9
Estimated costs of decommissioning were obtained from NERA and are industry-reflective.
Costs will depend on the size, scope and complexity of operations.
10
Estimated costs of decommissioning were obtained from NERA and are industry-
reflective. Costs will depend on the size, scope and complexity of operations.
Regulatory Impact Statement industry.gov.au 21
versed in implementing regulatory change and the department is confident that industry will be able
to adapt to the changes.
To ensure that key stakeholders such as the oil and gas industry are informed of the regulatory
changes, the department and the regulators are committed to engaging early, efficiently and
continuously. The department, NOPTA and NOPSEMA are also liaising with key stakeholder
organisations such as APPEA, to ensure that any new regulatory changes are communicated through
appropriate channels, to capture smaller operators who may not be aware of the changes. The
department, NOPTA and NOPSEMA will also publish new policy and regulatory guidelines on their
websites to ensure that appropriate guidance information is easily accessible to all interested
stakeholders.
Option 2 will be evaluated and monitored in a variety of ways. Most notably, the department and
the regulators will be able to determine its success if applications are, in fact, received in accordance
with new regulatory requirements such as change of control and ownership of titleholders.
Additionally, the regulators will get an insight into whether the regulatory changes have been
adequately communicated to the industry, based on the level of guidance that they may be required
to provide to companies submitting their applications. Similarly, the regulators may gauge how well
the oil and gas industry understand the proposed measures based on how much additional
information they may seek from applicants seeking to enter the regime.
A table of the key implementation risks of Option 2 is at Annex 2.
Ultimately, as a long-term evaluation of whether Option 2 was successful in addressing the problem
statement, the department will consider how many (if any) titleholders are unable to meet their
obligations over the next ten, twenty and thirty years. Noting that while it is impossible to
completely eliminate the risk of this occurring, consideration can be given to both the number and
nature of future situations in which a titleholder is unable to meet its obligations under its title. The
department intends to continuously review and improve the offshore regulatory framework, to
ensure that these risks are reduced to as low as reasonably practicable.
Regulatory Impact Statement industry.gov.au 22
Annex 1: Costing Assumptions
1. Average joint venture (JV) partners per title - 5 (based on NOPTA Titleholder Reports Jun 17
- Feb 20)
2. Number of stakeholders impacted by the measures - 185 (based on total number of
titleholders and a change rate of 8 new organisations per financial year (FY) from NOPTA
Titleholder Reports Jun 17 - Feb 20)
3. Wage rate band of offshore oil and gas companies technical financial / administration
employees: $120 - $150k (inclusive of overheads and on-costs) - averaged to $135k per
annum / $121.15 hourly (based on reported average industry wage rates)
4. Wage rate band of CEOs/Directors of offshore oil and gas companies: $500 - $800k
(inclusive of overheads and on-costs) - averaged to $650k per annum/$583.33 hourly (based
on reported average industry wage rates)
5. Average number of directors of offshore oil and gas companies - 12 (based on reported
average industry information)
6. Average time for a single organisation to undertake requirements (based on NOPTA advice):
a. A technical and financial report application - 6 hours for 1 technical financial /
administration employee to source and compile information, 1 hour for 2 directors
required to execute application.
b. A fit and proper person declaration and appropriateness criteria application - 2
hours for 1 technical financial / administration employee to liaise and compile
information, 1 hour for 1 director required to execute declaration.
c. A change of ownership and control application - 1 hour for 1 technical financial /
administration employee to source and compile information, 1 hour for 2 directors
required to execute application.
7. Average number of applications NOPTA currently receives requiring technical and financial
report applications - 68 per year (based on NOPTA advice)
8. Estimated number of applications NOPTA would receive requiring technical and financial
reports under Option 2 - 87 per year (based on NOPTA advice)
9. Estimated number of applications NOPTA would receive requiring technical and financial
reports under Option 3 - 250 per year (based on NOPTA advice)
10. Estimated number of applications NOPTA would receive fit and proper person declaration
and appropriateness criteria under Option 2 - 87 per year (based on NOPTA advice)
11. Estimated number of associates NOPTA would require fit and proper person declaration and
appropriateness criteria to be completed under Option 3 - 2 per CEOs/Directors of offshore
oil and gas companies with an average hourly cost of $320.24.
12. Estimated number of change of ownership and control applications NOPTA would receive
under Option 2 and 3 - 2 per year (based on NOPTA Change of Titleholder Company Name
Report average Nov 18 - Jul 20).
Regulatory Impact Statement industry.gov.au 23
Annex 2: Table of Key Implementation Risks
Risk Consequences Management and Mitigation Likelihood
There are Major - There are gaps in Ongoing and early engagement Low
implementation regulatory oversight that between the department,
overlaps and/or gaps may result in financial risks NOPTA and NOPSEMA to ensure
between the roles not being mitigated. all parties are clear on their role
and responsibilities and responsibilities in
of the department, Minor - Duplication of implementing the regulatory
NOPTA and duties results in additional changes.
NOPSEMA once regulatory burden on the
regulatory department, NOPTA or
amendments take NOPSEMA as well as
effect. industry.
Regulatory/policy Minor - Companies will be To mitigate this risk, the Low
guidance material unable to find appropriate department is committed to
and internal systems guidance material as to how working with the NOPTA and
and processes are the measures will be NOPSEMA in order to ensure
not amended or implemented and may not that all policy and regulatory
updated before comply with new guidance materials are updated
measures are requirements. prior to implementation, to
implemented. reflect changes in the regulatory
framework and explain the
policy and operation and effects
of such changes.
Changes to the Major - The regulatory The department will liaise Low
regulatory framework is not improved regularly with NOPTA and
framework are not and risk of unsuitable NOPSEMA to ensure that they
implemented by entrants entering into the have all the information and
NOPTA and/or offshore regime at key assistance that they require to
NOPSEMA. gateways is not mitigated administer these measures to
and the Australian taxpayer meet the policy objectives.
may be left to meet
significant financial
liabilities.
Regulatory Impact Statement industry.gov.au 24