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Offshore
Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures No. 2) Bill
2013
Introduced into the House of
Representatives on 20 March 2013
Portfolio: Resources and Energy
Overview
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The bill seeks
to amend the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the
Act) to strengthen the offshore petroleum regulatory regime, and to streamline
administration of the Act. The principal amendments will:
- impose a
statutory duty on petroleum titleholders, in the event of an escape of
petroleum arising from operations in the titleholder‘s title area, to stop,
control and clean-up the escape of petroleum, remediate damage to the
environment caused by the escape, and undertake environmental monitoring of the
impacts of the escape; and
- provide the
offshore petroleum regulator, the National Offshore Petroleum Safety and
Environmental Management Authority (NOPSEMA), and the courts with an increased
range of enforcement tools.
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The bill
provides for additional enforcement options in the form of infringement
notices, daily penalties for continuing offences or contraventions of
continuing civil penalty provisions, injunctions, and adverse publicity orders.
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The bill will
also enable a NOPSEMA inspector to give an environmental prohibition notice or
an environmental improvement notice to a titleholder requiring action to remove
significant threats to the environment and will enable NOPSEMA to publish on
its website improvement notices and prohibition notices issued by NOPSEMA inspectors.
Compatibility with human
rights
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The bill is
accompanied by a self-contained statement of compatibility which provides a
detailed analysis of how the bill engages with the rights to work and rights in
work, the right to privacy, the right to a fair and
public hearing and the right to minimum guarantees in criminal proceedings.[1]
Right to
just and favourable conditions of work
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The statement of
compatibility notes
that the right to just and favourable conditions of work includes a right to
safe and healthy working conditions and that:
The
introduction of measures such as injunctions and daily penalties for continuing
offences or contraventions of continuing civil penalty provisions encourages
persons to comply with their obligations under the Act, or return to a position
of compliance if the person is in breach, including obligations relating to
occupational health and safety.[2]
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The statement of
compatibility includes a detailed discussion of the provisions that will be
enforceable by injunction and the manner in which the enforcement of those
provisions would contribute to the achievement of safe working conditions for
employees at an offshore petroleum facility. The statement of compatibility
also argues that the introduction of daily penalties 'will encourage persons in
breach of their obligations under the Act in relation to health and safety to
quickly remedy the non-compliance'.[3]
Right to
privacy
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The bill
provides for NOPSEMA to publish prohibition notices and improvement notices
given by a NOPSEMA inspector. The statement of compatibility notes that this
may have an impact on the right to privacy and reputation. The statement of
compatibility states that the purpose of these amendments is 'to enable lessons
learned from inspections to be shared with other members of the offshore
petroleum industry, which will in turn assist those companies to comply with
regulatory requirements, and will also help to increase the transparency of
NOPSEMA‘s operations'.[4]
The end result is aimed at contributing to the prevention of threats to
workplace health and safety and the environment.[5]
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The statement of
compatibility notes that the bill requires that if any notice that is to be
published contains personal information, NOPSEMA must ensure that the
information is de-identified before the notice is published. The statement of
compatibility also notes that the disclosure of any information is subject to
the Privacy Act 1988.
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The
committee considers that the publication of prohibition notices and
infringement notices is aimed at achieving a legitimate objective and has
sufficient safeguards and limitations to be compatible with the right to
privacy under article 17 of the ICCPR.
Infringement
notices and the right to a fair hearing
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The bill
provides for infringement notices under the Act to be issued and enforced in
accordance with Part 5 of the proposed Regulatory Powers (Standard
Provisions) Act 2013 (the Regulatory Powers Act), still currently before
the Parliament. Under the Regulatory Powers Act, an infringement officer will
be able to issue an infringement notice for contraventions of strict liability
offences that are made enforceable under that Act by the provisions in this
bill.
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The bill
provides for the use of infringement notices in relation to minor offences with
strict liability only. The statement of compatibility states that ‘[i]n order
to determine the provisions in the Act that would be enforceable by an
infringement notice, each strict liability offence provision was therefore
examined to determine whether it would be appropriate to apply an infringement
notice in relation to a breach’.[6]
In addition, the statement noted that in determining whether to make an offence
subject to an infringement notice, consideration was given to whether an
enforcement officer could easily make an assessment of innocence or guilt based
on straightforward and objective criteria, for example where there were
clear-cut physical elements of the offence.
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The statement of
compatibility includes a table listing the offences in respect of which it is
proposed that infringement notices may be issued.[7]
The overwhelming majority of these offences relate to a failure to provide
information or a report, to keep records in the appropriate format.
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A person served
with an infringement notice has two options. The first is to pay the amount
specified in the notice. If the person pays the amount, then clause 111 of the
Regulatory Powers (Standard Provisions) Bill provides that a number of
consequences follow, including that any liability of the person for the alleged
contravention is discharged; the person may not be prosecuted nor may
proceedings be taken for a civil penalty in relation to the contravention; the
person is not regarded as having admitted guilt or liability for the alleged
contravention; and the person is not regarded as having been convicted of the
alleged offence.
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The second
option is to contest the notice before a court, which would observe all the
guarantees provided for by article 14 of the ICCPR in relation to the
determination of a criminal charge.
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In light
of the above and the other safeguards mentioned in the statement of
compatibility, the committee considers that the bill does not appear to give
rise concerns about the right to a fair hearing.
Right to
cross-examine witnesses against oneself
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Proposed new
section 611G of the Act will enable a relevant chief executive[8]
to issue a signed certificate stating that they did not allow further time for
a person to pay a penalty stated in an infringement notice, and that the
penalty has not been paid within 28 days after the notice was given, or by any
extended deadline they have allowed. The relevant chief executive may also
issue a signed certificate stating that a specified infringement notice was
withdrawn on a day specified in the certificate. For the purposes of all
proceedings, including criminal proceedings, a document purporting to be a
certificate must, unless the contrary is established, be taken to be such a
certificate and to have been properly given. In addition, a certificate is
taken to be prima facie evidence of the matters stated in the certificate.
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The statement of
compatibility raises the issue that article 14(3) entitles a person to
cross-examine witnesses but that this right may be subjected to reasonable
limitations. It argues that this provision, which provides only that the
certificate is prima facie rather than conclusive evidence, is a reasonable
limitation on the right.
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The
committee considers that the provision relating to certificates provided by the
relevant chief executive officers and constituting prima facie evidence in
criminal and civil proceedings does not give rise to issues of incompatibility
with article 14 of the ICCPR.
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