Greenhouse Gas Geological Sequestration (Exemption) Regulations 2018

The Regulations centre on a small set of statutory concepts and cross-references. The principal concepts, and their legal mechanics in the text, are the following.

• Exemption as a regulatory device. Regulation 6 creates an exemption from the Greenhouse Gas Geological Sequestration Act 2008 for particular persons and activities. The exemption is expressed as relief "from all the provisions (except sections 14, 15 and 303)" of that Act. Thus the instrument does not amend the 2008 Act, it operates by statutory exemption under the authority conferred by s 303 of the 2008 Act (regulation 2).

• The object and scope of the exemption. Regulation 1 records the object is to exempt the Otway National Research Facility, related activities, and persons carrying out related activities from certain provisions of the 2008 Act. Regulation 6(1) operationalises that object by listing who or what is exempt and by linking the exemption to a geographic locus, the "Otway facility area", and to a defined set of activities, "greenhouse gas sequestration activities".

• The definitional package. Regulation 5 provides the working definitions that determine scope. "Greenhouse gas sequestration activities" is defined broadly to include exploration, modelling, extraction, processing, separation, capture, transport, injection, monitoring, verification or educational activities and specifically includes greenhouse gas substance injection and monitoring and formation exploration. The Otway facility area is defined as the land covered by two specific petroleum production licences plus a 5 kilometre radius from those outer boundaries. "Resources law" is defined by reference to three named statutes: the Environment Protection Act 1970, the Petroleum Act 1998 and the Water Act 1989. Those definitions are incorporated into the exemption test in regulation 6(2).

• Conditioning the exemption on approvals under other laws. Regulation 6(2) imposes a conjunctive condition for activities and persons to qualify for the exemption: the greenhouse gas sequestration activity must be authorised by an approval or other authority under a resources law. The text uses the term "approval or other authority", which is broad and ties the exemption to whatever formal authorisation regimes operate under the Environment Protection Act 1970, Petroleum Act 1998 or Water Act 1989.

• Preservation of certain statutory provisions. The exemption is qualified by excluding sections 14, 15 and 303 of the Greenhouse Gas Geological Sequestration Act 2008 from the exemption. The Regulations therefore do not displace any obligations or powers retained in those sections, whatever their content under the 2008 Act.

• Temporal limit. The Endnotes record a sunset under the Subordinate Legislation Act 1994, creating an expiry in March 2028 unless the Regulations are remade or otherwise extended.

• Revocation and replacement. Regulation 4 expressly revokes the 2009 exemption Regulations, so the 2018 instrument is intended to replace the earlier instrument in its totality.

These concepts together mean the instrument creates a legal pathway where activities at the Otway National Research Facility and certain operators within a defined radius may operate without compliance with most provisions of the 2008 Act, provided they hold approvals under the named resources laws. The definitions are the gatekeepers that determine which activities and which geographic footprint are captured.

The Regulations explicitly identify the parties and entities that are the subject of the exemption and therefore materially affected by the change in regulatory status. The primary named beneficiary is the Otway National Research Facility, expressly listed in regulation 6(1)(a). The exemption also extends to greenhouse gas sequestration activities "in respect of" the Facility (regulation 6(1)(b)) and to "any person carrying out" those activities in relation to the Facility, when carried out in the Otway facility area (regulation 6(1)(c)). The definition of Otway facility area in regulation 5 ties the spatial reach to the areas subject to two identified petroleum production licences, together with a 5 kilometre radius from their outer boundaries.

Operators, contractors, consultants, researchers and educational organisations engaged in the defined greenhouse gas sequestration activities for the Otway Facility will be affected if their on-ground operations fall within the Otway facility area. The definition of greenhouse gas sequestration activities in regulation 5 is wide, encompassing formation exploration, injection and monitoring, research, demonstration, modelling, extraction, processing, separation, capture, transport, monitoring, verification and education. That inclusive list means personnel and businesses engaged in upstream, midstream and field operations, as well as those providing monitoring and verification services or conducting educational activities tied to the Facility, can be within the exemption’s ambit.

Regulators and decision makers under the Environment Protection Act 1970, Petroleum Act 1998 and Water Act 1989 will be consequentially affected, because regulation 6(2) conditions the exemption on activities being authorised by an approval or other authority under a resources law. That shifts primary regulatory oversight and compliance obligations for these activities away from most of the Greenhouse Gas Geological Sequestration Act 2008 and into the approval regimes administered under the resources laws listed in regulation 5.

Other parties affected indirectly include landowners and lessees whose parcels sit within the Otway facility area, and any local authorities or third parties whose rights or contractual relationships interact with operations occurring within that geographically defined area. The Endnotes also specify two petroleum production licences, PPL 11 and PPL 13, as the base for the facility area; persons with interests or operations tied to those licences must consider the 5 kilometre radius inclusion when determining whether their activities fall within the exemption zone. Finally, the Victorian Parliament and administrative agencies are affected institutionally because the instrument revokes the 2009 Regulations (regulation 4) and will itself sunset in ten years unless remade, creating an administrative requirement for future consideration by policymakers.

The Regulations do not create a new positive suite of duties in the manner of prescriptive regulatory rules. Their primary legal effect is to create an exemption from the Greenhouse Gas Geological Sequestration Act 2008 for identified actors and activities, while preserving a limited set of sections of that Act. The duties that remain and the rights that arise therefore fall into a small number of categories.

• Right to exemption. Regulation 6(1) confers a right to be exempted from "all the provisions" of the Greenhouse Gas Geological Sequestration Act 2008, except for sections 14, 15 and 303. That means that, for those persons and activities that meet the regulation’s tests, the obligations, fees, procedural requirements, licensing or prohibitions that would otherwise flow from many provisions of the 2008 Act do not apply. The precise scope of the removed obligations is not recited in the Regulations; the text instead identifies the 2008 Act provisions retained by exclusion.

• Conditionality of the exemption. The right to exemption for the activities and persons listed at regulation 6(1)(b) and (c) is conditional: regulation 6(2) requires that the greenhouse gas sequestration activity be authorised by an approval or other authority under a resources law. The text thus places an affirmative duty on operators to secure, and maintain, relevant approvals or authorisations under one or more of the three listed resources laws. It is these approvals that function as the operative regulatory instrument controlling the activity while the exemption disapplies most of the 2008 Act.

• Continued application of ss 14, 15 and 303 of the 2008 Act. The Regulations expressly preserve the application of sections 14, 15 and 303 of the Greenhouse Gas Geological Sequestration Act 2008 by excluding them from the exemption. The Regulations therefore impose at least those residual duties, powers or constraints contained in those sections upon the named entities. The Regulations do not state the content of those sections, they only preserve them from the exemption.

• Duties under resources laws. Because the exemption only applies where activities are authorised under a resources law, persons who wish to rely on the exemption will have to identify and comply with the approval, licensing, monitoring and reporting conditions imposed under the Environment Protection Act 1970, the Petroleum Act 1998 or the Water Act 1989, as applicable. The Regulation makes the resources law approvals the primary compliance pathway for activities in the Otway facility area.

• Temporal duty to monitor the instrument’s lifecycle. The Endnotes specify that these Regulations will sunset ten years after the making date, 27 March 2028. A duty therefore falls on affected parties and regulators to track the instrument’s remaining lifespan, and to prepare for potential re-instatement of the 2008 Act’s full operation in the absence of a renewal or replacement instrument.

• Revocation of previous rights or expectations. By revoking the 2009 Regulations (regulation 4), the 2018 instrument extinguishes any rights or processes founded on the 2009 instrument and replaces them with this new regime. Entities that relied on the old instrument must map how the new definitions, limits and conditionalities differ.

Practically, the effect is a shift in where duties are owed and where enforcement interest will be focused. For exempted activities and persons that hold the required authorisations under resources laws, duties under the 2008 Act are removed except for the three preserved sections, while duties under the named resources laws remain and become the primary enforcement route.

The Regulations themselves do not create new offences or specify penalties. They operate primarily by creating exemptions from existing statutory obligations under the Greenhouse Gas Geological Sequestration Act 2008. Consequently the regime for penalties and enforcement relevant to an activity depends on two axes: (1) whether the activity is within the exemption; and (2) the content of the preserved sections and the applicable resources laws.

• Enforcement under the Greenhouse Gas Geological Sequestration Act 2008. Regulation 6(1) exempts specified persons and activities from "all the provisions" of the 2008 Act except for sections 14, 15 and 303. That means any enforcement powers, offences, or penalties that are located in those exempted provisions of the 2008 Act will not apply to the named entities and activities to the extent they are exempted. However, enforcement mechanisms, penalties or powers located in the non-exempted sections 14, 15 and 303 of the 2008 Act continue to apply to the relevant persons and activities. The Regulations do not reproduce the content of those sections; they only preserve their applicability.

• Enforcement under resources laws. Regulation 6(2) conditions the exemption on activities being "authorised by an approval or other authority under a resources law", and regulation 5 defines resources law as the Environment Protection Act 1970, the Petroleum Act 1998 and the Water Act 1989. Therefore, enforcement, compliance monitoring, administrative penalties, licence conditions, criminal offences and civil enforcement tied to those statutes and to the approvals issued under them will remain in force and will be the principal mechanisms for regulating activities qualifying for the exemption. Any contravention of the approvals or of the resources laws will be dealt with under those regimes and their respective enforcement tools.

• No new prosecutorial powers created by the Regulations. The instrument does not create new prosecutorial or investigative powers, fines, or specific enforcement processes in its own text. It functions by redirecting regulatory coverage. Where the underlying approval is absent, invalid or breached, standard enforcement under the resources law and potentially under the non-exempt sections of the 2008 Act will apply.

• Administrative oversight and discretion. Because the exemption operates by reference to approvals under the named resources laws, the discretion of the agencies administering the Environment Protection Act 1970, the Petroleum Act 1998 and the Water Act 1989 is central. Decisions to grant or withhold approvals, to attach conditions, to monitor compliance and to enforce breaches will determine practical enforcement. The Regulations do not assign new oversight responsibilities to a particular agency; they instead depend on existing administrative structures in the three resources laws.

• Temporal enforcement considerations. Because the Regulations have a sunset date recorded in the Endnotes (ten years after making), enforcement landscapes can change with the expiry of the exemption. At sunset, unless the Regulations are remade, the previously exempt entities could once again be subject to the full suite of provisions of the 2008 Act and enforcement associated with those provisions. Affected parties must track that timetable.

In short, enforcement for exempted activities is principally vested in the approval and compliance regimes of the Environment Protection Act 1970, the Petroleum Act 1998 and the Water Act 1989, combined with any obligations preserved in ss 14, 15 and 303 of the Greenhouse Gas Geological Sequestration Act 2008. The Regulations do not themselves lay out penalties or enforcement procedures.

The Regulations are explicitly constructed to operate with and by reference to other statutes. Regulation 2 records the authorising provision as section 303 of the Greenhouse Gas Geological Sequestration Act 2008. Regulation 5 defines "resources law" as a closed list comprising the Environment Protection Act 1970, the Petroleum Act 1998 and the Water Act 1989. Regulation 6(2) then conditions the exemption on greenhouse gas sequestration activities being authorised by an approval or other authority under one of those resources laws. The Endnotes also reference the Subordinate Legislation Act 1994 for the sunset mechanism, and the Interpretation of Legislation Act 1984 is noted in the Endnotes with style and interpretive details applicable to the Statutory Rule as printed.

The principal interactions are therefore the following.

• Displacement and substitution of regulatory regimes. For qualifying activities performed in the Otway facility area, and where those activities are authorised under a resources law, the Regulations displace most of the Greenhouse Gas Geological Sequestration Act 2008’s regulatory coverage and substitute regulatory control by the resources law approval regime. Rather than being regulated under the 2008 Act’s licensing, operational or compliance obligations, operators will be regulated under the conditions of their approvals and the enforcement machinery of the Environment Protection Act 1970, Petroleum Act 1998 or Water Act 1989.

• Spatial and licence nexus to the Petroleum Act 1998. The Otway facility area is anchored to two specified petroleum production licences granted under the Petroleum Act 1998, namely PPL 11 and PPL 13, and includes a 5 kilometre radius from their outer boundaries (regulation 5 and Explanatory details table). This creates a concrete interdependence between petroleum licensing geography and the reach of the exemption, thereby importing aspects of petroleum tenure into the exemption’s geographic sweep.

• Residual operation of particular sections of the 2008 Act. The Regulations do not entirely remove the 2008 Act’s reach; they retain sections 14, 15 and 303 as applicable to the persons and activities listed. This produces a hybrid legal overlay: most of the 2008 Act is displaced, but the named sections continue to operate alongside the resources law approvals.

• Administrative interplay and overlapping jurisdiction. Because the exemption depends on approvals under multiple resources laws, affected activities may now be subject to concurrent regulatory requirements originating in different statutes. For example, an injection activity might need authorisation under the Petroleum Act 1998 for tenure matters, environmental approvals under the Environment Protection Act 1970 for emissions and monitoring, and water licences under the Water Act 1989 for any implications on water resources. The Regulations do not delineate which law takes primacy in cases of overlapping conditions; they simply require that an approval or authority under a resources law be in place.

• Temporal intersection with subordinate legislation rules. The Endnotes indicate the Regulations will sunset under the Subordinate Legislation Act 1994 in ten years. This temporal mechanism means the interaction with other laws can change on expiry: after sunset, the 2008 Act could regain full effect for the specified persons and activities unless the exemption is renewed or replaced.

• Interpretive and formatting interactions. The Endnotes note that the Interpretation of Legislation Act 1984 affects style and certain interpretive matters for the Statutory Rule, confirming that headings, examples, notes and punctuation are part of the instrument as printed, which affects legal interpretation and cross-referencing with the resources laws and the 2008 Act.

In effect, the Regulations shift regulatory attention from the Greenhouse Gas Geological Sequestration Act 2008 to the three named resources laws, while preserving a small set of 2008 Act provisions and tying the exemption to specific petroleum licence geography. Practical compliance therefore requires concurrent engagement with the approvals and conditions imposed under those other statutes.

The Regulations record a simple amendment history in their text and Endnotes. The key historical moves are:

• Revocation of the 2009 instrument. Regulation 4 expressly revokes the Greenhouse Gas Geological Sequestration (Exemption) Regulations 2009, S.R. No. 150/2009. The Explanatory details (Endnotes, paragraph 1) reference S.R. No. 150/2009 in connection with the revocation in regulation 4. Thus the 2018 Regulations replace the 2009 instrument in its entirety.

• Versioning and date of making. The front matter records the Version No. 001 and that these Regulations were made on 27 March 2018 by the Governor in Council under s 303 of the Greenhouse Gas Geological Sequestration Act 2008, and came into operation on 31 March 2018 (Endnotes paragraph 1; regulation 3).

• Table of Amendments. The Endnotes contain a "Table of Amendments" stating there are no amendments made to the 2018 Regulations by statutory rules, subordinate instruments or Acts as at the date of publication. The table therefore reports no later changes post-commencement.

• No amendments not in operation. The Endnotes also record that there are no amendments which were "Not in Operation" at the date of publication.

• Sunset provision under Subordinate Legislation Act 1994. Although not an amendment in the conventional sense, the Endnotes record a built-in temporal limit arising from the operation of the Subordinate Legislation Act 1994, specifying that the Regulations will sunset ten years after the day of making, on 27 March 2028. This creates an anticipated expiry that functions as part of the instrument’s lifecycle.

• Table of applied, adopted or incorporated matter. The Explanatory details include a table that identifies the specific petroleum production licences (PPL 11 and PPL 13) that are applied by regulation 5 in defining the Otway facility area. That applied matter is the whole of each listed licence, with their dates (14 May 2002; 7 February 2006). The table itself is an explanatory detail included in the Explanatory details, and the Endnotes note that such material was included in accordance with regulation 5 of the Subordinate Legislation Regulations 2014.

There is no recorded later amendment, no schedule of incremental changes, and no transitional modifications in the text. Practitioners must therefore treat the 2018 Regulations as the operative instrument replacing the 2009 instrument, carrying a ten year statutory sunset absent further legislative action.

The Regulations, as presented in the text and Endnotes, contain no references to litigation history. The Endnotes include a Table of Amendments and a statement that there are no amendments and none "Not in Operation" at the date of publication, but they do not record any court proceedings, judicial consideration, or appeals concerning the 2018 Regulations or their predecessor the 2009 Regulations.

Because the Regulations are subordinate legislation made under section 303 of the Greenhouse Gas Geological Sequestration Act 2008, any litigation concerning the operation, validity or application of the exemption would likely arise in the context of judicial review, statutory interpretation disputes, or enforcement actions,however the Regulations themselves do not record or cite any such cases. The instrument also does not cite or rely on any judicial determinations to justify its terms.

From the text alone, therefore, there is no litigation history to report. Users requiring information about any subsequent judicial consideration or challenges must consult court databases, registries and other legal information sources beyond the Regulations’ text, as the statutory instrument does not itself supply that material.

The Regulations appear straightforward, but several features can produce practical traps for operators, advisers and regulators. Each of the following is grounded in the instrument’s text.

• Exemption is conditional, not absolute. Regulation 6(1) grants an exemption for the Otway National Research Facility and related activities, but regulation 6(2) qualifies that exemption for the activities in 6(1)(b) and (c) by requiring that the greenhouse gas sequestration activity be "authorised by an approval or other authority under a resources law". That condition is central: an activity in the Otway facility area that is not authorised under one of the listed resources laws does not qualify for the exemption. The exemption is therefore contingent on external approvals, not a self-executing removal of regulatory obligations.

• Narrow geographic definition with a 5 kilometre radius extension. The Otway facility area is defined in regulation 5 by reference to two petroleum production licences and a 5 kilometre radius from the outer boundaries of the licence areas. Practitioners must map the licence boundaries precisely, and include the 5 kilometre buffer when assessing whether an activity is within scope. Failure to account for the buffer can lead to incorrect reliance on the exemption.

• Broad list of activities but relevance depends on the connection to the Facility. Regulation 5’s definition of greenhouse gas sequestration activities is expansive and includes educational activities, modelling, transport and verification. However the exemptions in regulation 6 operate only "in respect of the Otway National Research Facility" and "in relation to the Otway National Research Facility". That relational language means activities must have the requisite nexus to the Facility to qualify. Determining whether an activity qualifies as "in relation to" or "in respect of" the Facility may require legal and factual analysis.

• Preservation of specific sections of the 2008 Act. The Regulations exclude from the exemption sections 14, 15 and 303 of the Greenhouse Gas Geological Sequestration Act 2008. Because the text does not specify those sections’ content, operators must check the 2008 Act to understand residual duties, powers or enforcement authorities that still apply to exempted subjects. Relying on the exemption without accounting for the preserved sections can be risky.

• Dependence on approvals under multiple statutes. The exemption requires authorisation under a "resources law", and regulation 5 lists three statutes. Operators may need overlapping approvals and have to satisfy differing compliance regimes, monitoring obligations and conditions spread across environmental, petroleum and water law frameworks. The Regulations do not harmonise or prioritise overlapping conditions; that is left to the approving agencies and to the content of the approvals.

• Revocation of the 2009 Regulations. Regulation 4 revokes the 2009 instrument. Entities that structured activity or compliance plans on the old instrument must assess how the 2018 Regulations differ. The 2018 instrument may have changed definitions, conditions or the spatial extent; those changes are not cross-walked in the Regulations so historical assumptions may no longer hold.

• Sunset creates a planning risk. The Endnotes state the Regulations will sunset on 27 March 2028. For longer-term projects, this creates regulatory uncertainty: unless the instrument is remade or replaced, activities that had been exempted may come back under the full suite of the 2008 Act at expiry. Projects initiated on the basis of the exemption should therefore include contingency planning for the post-sunset regulatory environment.

• The applied matter references. The Explanatory details table applies PPL 11 and PPL 13 as the geographic anchors for the Otway facility area, and notes "The whole" of each licence is applied. Practitioners should retrieve and review the full text and maps of those licences to determine precise boundaries, encumbrances and any licence conditions that may have bearing on the exemption’s practical operation.

• No penalties specified in the Regulations. Because the instrument creates an exemption rather than a new compliance regime with its own offences, there is no explicit statutory penalty regime contained in the Regulations themselves. That can mislead advisers unfamiliar with the approvals under the resources laws; enforcement consequences will arise under the resources laws and under any preserved sections of the 2008 Act.

Each of these features creates a potential trap: the exemption is not an unconditional removal of all regulatory obligations; it is a conditioned, geographically delimited reshaping of which statute’s rules apply. Accurate compliance therefore requires cross-referencing the 2008 Act, the three resources laws, the petroleum licence instruments, and any approvals issued under them.

Compliance under these Regulations requires a practical, cross-statutory approach grounded in the instrument’s conditional and spatial limits. The steps below set out a compliance checklist drawn from the Regulations’ text, with the relevant provisions noted.

1. Establish whether the activity and the actor fall within the exemption. Consult regulation 6(1) and regulation 5. The exemption applies to (a) the Otway National Research Facility itself; (b) greenhouse gas sequestration activities in respect of the Facility; and (c) any person carrying out greenhouse gas sequestration activities in relation to the Facility when carried out in the Otway facility area (regulation 6(1)). Use the definition of "greenhouse gas sequestration activities" in regulation 5 to determine if the planned operations are within the listed categories (exploration, injection, monitoring, modelling, extraction, processing, separation, capture, transport, verification or educational activities, etc.).

2. Map geographic scope precisely. The Otway facility area is the area of land to which Petroleum Production Licence 11 and Petroleum Production Licence 13 apply, together with a 5 kilometre radius from the outer boundaries of those licence areas (regulation 5). Obtain certified maps and the full text of PPL 11 and PPL 13 (dates and references are recorded in the Explanatory details table) and calculate the 5 kilometre buffer to confirm whether the site, equipment, pipelines, or monitoring stations fall within the Otway facility area.

3. Secure authorisations under a resources law before relying on the exemption. Regulation 6(2) requires that the greenhouse gas sequestration activity be authorised by an approval or other authority under a resources law, and regulation 5 defines resources law as the Environment Protection Act 1970, the Petroleum Act 1998 and the Water Act 1989. Identify which approvals are required under these Acts for the activity, submit applications to the relevant administering bodies, obtain the approvals or authorities, and ensure the approvals remain valid. Do not assume the exemption applies without these approvals.

4. Review and comply with conditions attached to approvals. Approvals under the resources laws commonly carry conditions, monitoring regimes, reporting obligations and enforcement consequences. Ensure compliance systems, record-keeping, monitoring equipment and reporting processes match the approvals’ requirements. Where multiple approvals apply, develop an integrated compliance plan that captures all conditions and reporting cycles.

5. Check applicability of the preserved sections of the 2008 Act. The Regulations exclude sections 14, 15 and 303 of the Greenhouse Gas Geological Sequestration Act 2008 from the exemption. Determine the content of those sections in the 2008 Act and include any duties or constraints they impose in the compliance plan. The Regulations leave those provisions fully in force for the named entities.

6. Update contracts and insurance. Where contractors, consultants or educational partners are engaged, ensure contracts allocate compliance responsibilities for approvals under the resources laws, and specify obligations to maintain the approvals that sustain the exemption. Review liability and insurance arrangements in light of the regulatory shift from the 2008 Act to the resources laws.

7. Monitor the sunset date and plan contingencies. The Endnotes record that these Regulations will sunset on 27 March 2028 under the Subordinate Legislation Act 1994. For multi-year projects, plan for the potential reintroduction of the 2008 Act’s broader regulatory obligations at sunset. Include contingencies in project budgeting and timeline planning to accommodate regulatory change.

8. Document authority to rely on the exemption. Keep verified copies of the approvals under the resources laws, maps showing the activity location relative to PPL 11 and PPL 13 and the 5 kilometre radius, and an internal legal memo stating the basis for reliance on the exemption. Documentation will be essential if a regulator queries exemption status or in the event of an administrative or judicial review.

9. Liaise early with regulators. Because the exemption depends on approvals administered by agencies under the Environment Protection Act 1970, the Petroleum Act 1998 and the Water Act 1989, engage with the relevant regulators early in project planning to confirm which approvals are necessary, what conditions are likely, and how monitoring and reporting should be structured.

10. Reassess if project scope changes. If the geographic footprint, the nature of the activities, or the parties involved change during a project, reassess whether the activity remains within the definition of greenhouse gas sequestration activities, whether it remains "in respect of" or "in relation to" the Otway Facility, and whether the authorising approvals under the resources laws cover the changed scope.

Following these steps aligns day-to-day compliance with the Regulations’ requirements: clearly establish standing under the exemption, secure and comply with approvals under the resources laws, account for residual duties in the non-exempt sections of the 2008 Act, and plan for the instrument’s sunset and any consequent regulatory transition.