Energy Pipelines Act 1981

The Act primarily affects licensees and permittees—typically energy companies, pipeline operators or their subsidiaries—who must hold a permit before surveying and a licence before constructing or operating a pipeline. The definition of “pipeline” in s 3 is deliberately broad: any pipe or system with a maximum allowable operating pressure >1050 kPa or hoop stress >20% of specified minimum yield stress, together with all associated structures, loading terminals, tanks, pumps and appurtenances. Exemptions exist for small on-farm pipelines, certain pre-1982 pipelines, well-head to separator lines, flaring lines, and pipelines declared by the Minister (s 4).

Landowners and occupiers (including pastoral lessees, perpetual leaseholders, native title holders and those with incomplete purchases under the Crown Lands Act 1992) are directly affected. They must be served with notices of applications (ss 6, 13, 21B), may lodge representations, and are entitled to compensation under s 67B for loss or damage not otherwise compensated at the time land or easements were acquired. The broad definition of “owner” in s 3 captures fee simple holders, mortgagees in possession, trustees and public authorities.

Native title holders, registered native title claimants and representative Aboriginal/Torres Strait Islander bodies receive specific procedural rights. Notices must be served on them (ss 6(1)(ba)–(baa), 13(4)(ba)–(baa)), the Minister must consider effects on registered native title rights and interests (ss 8(2)(b), 15(2)(e)), and compensation is payable for effects on native title (s 67B(1)–(2)). The Act applies to Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to the extent it is capable of applying (s 4(3)).

Local government councils must be notified and may make representations (ss 6, 13, 21B).

The Minister (and delegated officers) holds extensive discretionary powers: to grant, vary, renew, cancel or direct licensees; to issue directions on construction, operation, third-party access and continued use; to appoint inspectors; and to enforce directions at the licensee’s cost (ss 8, 15, 20, 26, 29, 40–43, 63). The Registrar (defined by reference to the Petroleum Act 1984) maintains the register (s 44).

Inspectors have entry, inspection, sampling and document-production powers (s 64) and may direct cessation of work that may damage a pipeline (s 64A). They enjoy statutory immunity for good-faith acts (s 63A).

Third parties seeking access to pipeline capacity may apply for Ministerial directions under s 42 (subject to the National Gas (NT) Law carve-out in s 42(1A)). Former licensees whose pipelines are still in the ground remain subject to removal and clean-up directions (s 28) and may be required to negotiate with new operators under s 43.

Executive officers of corporate licensees face personal criminal liability under s 58G if they knew or ought reasonably to have known of a contravention of a declared provision and failed to take reasonable steps to prevent it.

The Act therefore casts a wide net across the energy industry, landholders, Indigenous groups, regulators and the public.

Licensee duties are extensive. Under the licence itself the holder must comply with all conditions (s 17), including lodging security (up to $50,000 or prescribed amount), completing construction on time, reinstating land, controlling weeds and vermin, and minimising native title impacts. Operational duties in Part IV require continuous operation except for ordinary course, repair or emergency (s 37), marking the route with permanent markers (s 39(a)), maintaining the pipeline in good repair, preventing escapes (s 39(c)), and removing unused equipment (s 39(d)). Construction must meet prescribed standards (s 34); restoration of agricultural land is mandatory and at the licensee’s expense (s 35). Abandonment requires Ministerial approval and compliance with prescribed standards (s 37A).

The licensee must not test, introduce hydrocarbons or operate without Ministerial consent under s 38, which may require insurance covering the Minister and Territory (s 38(2A)). Detailed drawings and notice to affected persons are prerequisites to operational consent once construction is complete (s 38A). The licensee must comply with all Ministerial directions (s 40(3)), including third-party access directions that may fix tariffs (s 42(5)).

Rights of the licensee include the statutory authority conferred by the permit and licence (ss 11, 12), the ability to apply for variations (ss 10, 21A), renewal (s 16), surrender (s 24) and transfer (s 46). A pipeline is not a fixture (s 59) and the licensee need not own it (s 59A). Easements or leases over Crown land may be granted on recommended terms (s 22). Compensation may be sought from a requesting minister or body if the Minister directs a route change in the public interest (s 26(3)–(5)).

Landowner and native title rights centre on procedural participation (notice and representation rights), compensation (s 67B), and the ability to seek Tribunal determination of disputes. Owners may restore agricultural land themselves and recover reasonable expenses if the licensee fails to do so (s 35(2)). Native title compensation is not determinable by the Tribunal until there is an approved determination of native title (s 67B(5)).

Inspector powers are broad: entry onto permit land or licence areas, testing, sampling, production of documents (s 64). An inspector may stop work within the 25 m corridor that may damage the pipeline (s 64A).

Ministerial rights and powers include the power to refuse applications only after procedural fairness (ss 14, 25), to vary conditions, to direct removal of property after cancellation or expiry (s 28), to enforce directions at the licensee’s cost (s 29), to require registration of information (s 45), and to facilitate continued operation after a licence ends (s 43). The Minister is protected from liability for good-faith acts in the registration regime (s 57).

Defences to environmental offences are set out in s 58D: authorisation under another Act, reasonable diligence, or compliance with prescribed environmental objectives or licence conditions fixing maximum levels.

Penalties are graduated and often distinguish between natural persons and bodies corporate. The most serious offences carry custodial sentences:

• Malicious or fraudulent abstraction, waste or use of hydrocarbons from a pipeline: 10 years imprisonment (s 65).
• Unlawful damage to or interference with a pipeline: 5 years (natural person) or 1000 penalty units (body corporate) (s 66(2)).
• Excavation or use of heavy vehicles within the 25 m corridor without consent: up to 5 years / 1000 penalty units for excavation; lesser penalties for vehicles (s 66(1)).
• Laying explosives within the 64 m corridor or dropping anchors within 200 m: up to 2 years / 200 penalty units (s 66(3)–(5)).

Environmental offences under s 58C are tiered by culpability and harm:

• Intentional act causing serious environmental harm within 1 km: environmental offence level 1 (highest).
• Lower culpability or material harm: levels 2–4.
• Alternative verdicts are available down to environmental nuisance (s 58E).

Construction or operation without a licence or consent carries 200 penalty units (natural person) or 1000 penalty units (body corporate) (s 12). Failure to comply with directions, continuous operation obligations, maintenance duties or inspector stop-work orders carries the same maximum (ss 37, 39, 40(3), 64A(2)). Continuing offences attract an additional 10% of the maximum per day (s 67).

Licence fees are prescribed by regulation and attract a daily late-payment penalty of 0.33% (ss 30–31). Security may be called upon and enforced as a judgment without further proof except in limited defences (s 18).

Enforcement tools include:

• Ministerial cancellation after show-cause (ss 25, 27).
• Directions to remove property and make good damage, with the Minister able to undertake the work and recover costs as a debt (ss 28–29).
• Inspector stop-work powers (s 64A).
• Prosecution of executive officers (s 58G) and deemed corporate liability (ss 58F, 58H).
• Register rectification by the Tribunal (s 56).

The Act expressly preserves the ability to prosecute for offences even after cancellation (s 27) and states that cancellation does not extinguish fee liabilities (s 27(4)).

The Act is deliberately integrated with a web of Commonwealth and Territory legislation.

Native title: Extensive amendments in the late 1990s and 2000s inserted references to the Native Title Act 1993 (Cth). Definitions of “native title”, “registered native title claimant”, “registered native title body corporate” and “representative Aboriginal/Torres Strait Islander body” are imported (s 3). Notice and comment rights are given (ss 6, 13, 21B). The Minister must consider effects on registered native title rights and interests (ss 8(2)(b), 15(2)(e)). Compensation is separately provided (s 67B). Section 22 is expressed to be “subject to the Native Title Act”.

Planning and land use: The Minister must consider consistency with the Planning Act 1999 and interim development control orders (s 15(2)(c)). Easements over Crown land are granted under the Crown Lands Act 1992 on Ministerial recommendation (s 22).

Environmental law: Part VA offences operate alongside the Waste Management and Pollution Control Act 1998. The Act carves itself out of the Dangerous Goods Act 1998 for licensed pipelines while in operation, but dangerous goods rules still apply to construction, maintenance and storage (s 4(1A)–(1B)). Section 58A excludes ozone-depleting substances prescribed under the WMPC Act.

Gas market regulation: Section 42(1A) excludes covered pipelines under the National Gas (Northern Territory) Act 2008 from the third-party access direction regime.

Land title: Detailed drawings and notice to affected persons are required before operational consent so that a memorandum can be lodged under s 35 of the Land Title Act 2000 to record the 25 m corridor restrictions (s 38A).

Personal property securities: A licence is declared not to be personal property for the purposes of s 8(1)(k) of the Personal Property Securities Act 2009 (Cth) (s 32A).

Tribunal jurisdiction: Parts VII and VIII are transitional. Jurisdiction formerly exercised by the Supreme Court or the Lands, Planning and Mining Tribunal now resides with the Civil and Administrative Tribunal for compensation disputes, register rectification and certain extensions of time (ss 56, 67B, 69–71).

Corporations and directors’ liability: The 2015 amendments aligned executive officer liability with contemporary Commonwealth drafting (s 58G and Part VIII).

The regulations made under s 68 can prescribe standards that interact with Australian Standards for pipeline design, AS 2885 in particular.

The Act has been amended more than 25 times since 1982. Key recent changes visible in the 14 October 2015 compilation include:

• Energy Pipelines Amendment Act 2013 (No 39, 2013): strengthened native title notice provisions and varied some procedural timeframes.
• Northern Territory Civil and Administrative Tribunal (Conferral of Jurisdiction Amendments) (No. 2) Act 2014 (No 35, 2014): transferred residual Supreme Court and former Tribunal functions to the new Civil and Administrative Tribunal (Part VII). This was part of a Territory-wide reform to create a single merits-review body.
• Statute Law Amendment (Directors’ Liability) Act 2015 (No 26, 2015): replaced the previous strict-liability executive officer regime with the current “knew or ought reasonably to have known” and “reasonable steps” test in s 58G. The transitional provision (s 72) ensures the new test applies only to post-commencement conduct. This reform was driven by national consistency concerns following Council of Australian Governments reviews that criticised overly broad director liability.

Earlier significant expansions were the 2000 insertion of Part VA environmental offences (responding to growing community and regulatory concern about pipeline integrity and land contamination) and the 2003 amendments that allowed indefinite-term licences for new pipelines while preserving 21-year terms for existing ones (to reduce administrative burden on long-lived infrastructure).

The 1998 native title amendments were required to ensure compliance with the Native Title Act 1993 (Cth) future act regime after the Wik decision and the 1998 Commonwealth amendments.

Each wave of change has responded to practical experience (leaks, third-party interference, overlapping tenures) and evolving policy on environmental protection, Indigenous rights and regulatory efficiency.

The source text itself does not contain judicial decisions; however, the structure of the Act has been shaped by known controversies. The insertion of detailed native title procedures followed the High Court’s decisions in Wik Peoples v Queensland (1996) 187 CLR 1 and the subsequent Native Title Amendment Act 1998 (Cth). Failure to comply with notice requirements under ss 6 and 13 could expose a grant to judicial review for breach of statutory condition or breach of the future act regime.

The environmental offence provisions in Part VA have not yet generated reported NT Supreme Court authority in the provided text, but their tiered structure and alternative verdict mechanism mirror the Waste Management and Pollution Control Act 1998 and are likely to produce contested expert evidence on causation, “serious” versus “material” harm, and the $50,000 threshold.

Section 42 access disputes have been overshadowed by the National Gas (NT) Law for covered pipelines; the carve-out in s 42(1A) reflects a policy decision to channel such disputes into the national regime rather than Ministerial direction. No reported challenges to Ministerial directions under the pre-2008 version appear in the compilation.

The Tribunal’s compensation jurisdiction under s 67B has not produced appellate authority in the text, but the precondition in s 67B(5) that there must first be an approved determination of native title before the Tribunal can quantify compensation mirrors the Native Title Act scheme and is likely to generate interlocutory disputes about the status of native title claims.

Inspector stop-work powers under s 64A have the potential to generate urgent injunction applications where a pipeline operator believes the inspector has acted on an incorrect view of the 25 m corridor or the risk of damage. The broad immunity in s 63A (good faith) would be a central defence.

Controversies have also surrounded the breadth of the “pipeline” definition (pressure and hoop-stress test) and whether certain gathering lines fall inside or outside the licensing net. The Minister’s power under s 4(2) to declare classes of pipeline exempt has been used to avoid over-regulation of low-risk infrastructure.

Overall, the Act has been relatively litigation-light compared with its petroleum and mining siblings, largely because most disputes are resolved through negotiation, Ministerial conditions or Tribunal mediation. The “gotchas” below highlight areas where litigation risk remains high.

Most practitioners assume that once a licence is granted the route is fixed. In fact ss 21A–21D allow the licensee (or the Minister on public interest grounds under s 26) to vary the route or licence area even after construction, provided good pipeline practice is followed and land acquisition arrangements are in place. The 25 m corridor recorded on title under s 38A can therefore change, surprising landowners who thought the easement was immutable.

Another trap is the interaction between s 4(1)(b) (exemption for pre-11 August 1982 pipelines) and s 15A. The Minister can direct the owner or operator of an old pipeline to apply for a licence; if they fail to do so within six months the exemption ceases and operation becomes an offence (s 15A(6)). Many legacy pipelines still operating on pastoral land have never been formally licensed.

Section 38A is frequently overlooked. Operational consent cannot be given until detailed as-constructed drawings are supplied and every person whose operations or interest “may be affected by the operation of section 66” has been given notice of the statutory restrictions. Failure to do this can delay commissioning by months while the s 35 Land Title Act 2000 memorandum is prepared and registered.

The environmental offence net in s 58C is wider than many realise. It applies to any “act or failure to act” during “the conduct of an operation authorised under this Act”. The one-kilometre radius is measured from the pipeline itself, not the licence area. A slow leak that migrates off-title can still trigger serious environmental harm offences. The alternative verdict ladder means a prosecutor can charge at level 1 and still obtain a conviction for level 4 environmental nuisance.

Executive officer liability under s 58G is not limited to directors; any person “concerned with, or takes part in, the management” can be captured. The statutory checklist in s 58G(2) (compliance assessments, implementation of recommendations, employee training) now forms the de-facto due-diligence standard. Companies that treat the old “reasonable steps” defence as a box-ticking exercise are exposed.

The register maintained under s 44 is not merely administrative. An unregistered transfer is of no effect (s 46(1)) and an unregistered instrument creating an interest has no force (s 49(2)). Practitioners who leave registration to the end of a corporate transaction risk the deal being ineffective at law.

Compensation under s 67B must be claimed within three years (extendable by the Tribunal) but native title compensation cannot be quantified until there is an approved determination. This can create a statute-of-limitations trap for claimants who assume the Tribunal can simply “sort it out later”.

Finally, the continuing offence provision (s 67) applies to failure to comply with directions that specify a time for doing an act. Each day after the direction expires is a fresh offence carrying up to 10% of the maximum penalty. A licensee who ignores a s 28 clean-up direction can rapidly accumulate crippling daily penalties.

Compliance begins at the earliest conceptual stage. A prospective operator should:

1. Conduct native title and land tenure due diligence before lodging a permit application. Map all registered native title claims, Aboriginal land, pastoral leases and incomplete purchases. Engage representative bodies early.

2. Prepare a comprehensive permit application under s 5 that includes title searches, draft land access agreements, maps at the prescribed scale, evidence of financial and technical capacity, and a draft environmental management plan. Serve all required notices within 90 days (or obtain Ministerial extension).

3. After permit grant, complete all survey, environmental baseline and engineering work before lodging the s 13 licence application. The application must contain full design, cathodic protection, capacity, substance, work program, equipment, qualifications and financial details. A 25 m corridor plan identifying every potentially affected interest is mandatory.

4. Engage early with the Minister and stakeholders. Publish the required Gazette and newspaper notices. Treat representations as an opportunity to refine the proposal rather than an obstacle.

5. Secure all land and easement interests before construction. For Crown land, obtain the Administrator’s grant under s 22. For freehold or leasehold, negotiate compensation and register dealings.

6. Implement a construction environmental management plan that meets or exceeds the prescribed standards (s 34) and any licence conditions. Document reinstatement of agricultural land contemporaneously (photographic records, landowner sign-off).

7. Obtain s 38 consent before testing or commissioning. Supply as-constructed drawings and evidence of s 38A notices. Arrange the insurance policy required by the Minister.

8. Maintain a robust compliance system including:

   • Permanent pipeline markers and as-built GIS records.
   • Regular integrity monitoring (in-line inspection, cathodic protection surveys).
   • Leak detection systems.
   • Incident response and reporting protocols.
   • Training records demonstrating reasonable steps for s 58G purposes.

9. Register every dealing. Transfers, mortgages, variations and security interests must be approved and entered on the register. Keep the Minister informed of changes in control or 5%+ shareholders if required under s 43(2)(b)(iii).

10. Plan for decommissioning from day one. Maintain financial provisioning for abandonment. When the time comes, apply for s 37A approval at least three months before the licence ceases. Comply with prescribed abandonment standards and obtain Ministerial sign-off that the relinquished area has been made good.

11. Maintain an up-to-date address for service (s 61) and respond promptly to any Ministerial or inspector notice. Treat every direction under s 40 as non-negotiable; the only defence to prosecution or cost recovery is that all reasonable steps were taken (s 41(3)).

A prudent operator will maintain a dedicated regulatory compliance file that mirrors the structure of the Act: permit, licence, conditions, notices served, representations received, Ministerial correspondence, environmental monitoring data, integrity reports, and financial security instruments. In the event of an incident or prosecution, this file will be the primary evidence of due diligence.

By treating the Act as an integrated safety, environmental and land-access code rather than a mere licensing formality, operators can avoid the cascading liabilities that have historically arisen when one procedural step (notice, security, registration, reinstatement) is overlooked.