Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures) Act 2013
81Appeals concerning OHS inspections etc.—associated rules and procedure
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81 Appeals concerning OHS inspections etc.—associated rules and procedure
105 Subclauses 81(1) and (2) of Schedule 3
Repeal the subclauses.
106 Subclauses 81(3) and (4) of Schedule 3
Repeal the subclauses, substitute:
Appeal does not affect the operation of a decision
(3) Subject to this clause, the making of an appeal under this Division against a decision does not affect the operation of the decision or prevent the taking of action to implement the decision, except to the extent that the reviewing authority makes an order to the contrary.
Suspension of improvement notices
(4) If the decision appealed against is a decision to which item 8 of the table in subclause 80A(1) applies, the operation of the decision is suspended pending determination of the appeal, except to the extent that the reviewing authority makes an order to the contrary.
Note: Item 8 of the table in subclause 80A(1) applies to a decision to issue an improvement notice, or to exercise a corresponding power under section 602E.
Omit “subclause (1) or (2)”, substitute “this Division”.
109 Subclause 81(8) of Schedule 3 (heading)
Repeal the heading, substitute:
Inspector’s duty to return plant etc. to the workplace
110 Subclause 81(8) of Schedule 3
Omit “OHS inspector”, substitute “inspector”.
111 Paragraph 88(1)(f) of Schedule 3
Omit “an inspection”, substitute “an OHS inspection or an inspection in relation to a listed OHS law for the purposes of Division 1 of Part 6.5 of this Act”.
NOPSEMA or NOPSEMA inspector may institute prosecutions
114 Clause 91 of Schedule 3
Before “This Schedule”, insert “(1)”.
115 At the end of clause 91 of Schedule 3
Add:
(2) However, subclause (1) does not apply in relation to the enforcement, for the purposes of Division 4 of Part 6.5 of this Act, of a listed OHS law that is a civil penalty provision.
Part 4—Consequential amendments
Division 1—General amendments
Offshore Petroleum and Greenhouse Gas Storage Act 2006
116 Section 7
Insert:
Section 81 - Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures) Act 2013 - Appeals concerning OHS inspections etc.—associated rules and procedure | Zoe
Federal Circuit Court means the Federal Circuit Court of Australia.
117 Section 7 (definition of Greater Sunrise visiting inspector)
Repeal the definition, substitute:
Greater Sunrise visiting inspector means a NOPSEMA inspector identified as a Greater Sunrise visiting inspector in his or her identity card (see subsection 602(4)).
118 Section 7
Insert:
identity card of a NOPSEMA inspector means an identity card issued to the inspector under the Regulatory Powers Act in its application under Division 1 of Part 6.5 of this Act.
119 Section 7
Insert:
listed NOPSEMA law: see section 601.
120 Section 7
Insert:
petroleum environmental law has the same meaning as in Schedule 2A.
121 Section 7
Insert:
titleholder’s representative: see section 602K.
122 Paragraph 699(1)(b)
Omit “petroleum project inspector in relation to an offshore area”, substitute “NOPSEMA inspector”.
123 Paragraph 699(1)(b)
Omit “the offshore area”, substitute “an offshore area”.
124 Subsection 707A(1)
Omit “petroleum project inspector as to the exercise of the petroleum project inspector’s”, substitute “NOPSEMA inspector as to the exercise of the inspector’s”.
Omit “under this Act”, substitute “for the purposes of this Act”.
131 Paragraph 780F(2)(c)
Omit “or”.
132 Paragraph 780F(2)(d)
Repeal the paragraph.
133 Subsection 780F(7)
Omit “under this Act”, substitute “for the purposes of this Act”.
134 Paragraph 780F(7)(c)
Omit “; or”, substitute “.”.
135 Paragraph 780F(7)(d)
Repeal the paragraph.
136 Subsection 780F(8)
Omit “Subsections 600(6), 606(5) and 681(5)”, substitute “The provisions covered by subsection (8A)”.
137 Subsection 780F(8)
Omit “under this Act”, substitute “for the purposes of this Act”.
138 Paragraph 780F(8)(c)
Omit “; or”, substitute “.”.
139 Paragraph 780F(8)(d)
Repeal the paragraph.
140 After subsection 780F(8)
Insert:
(8A) For the purposes of subsection (8), the following provisions are covered by this subsection:
(a) subsection 36(6) or 77(6) of the Regulatory Powers Act, as it applies in relation to a NOPSEMA inspector (see Division 1 of Part 6.5 of this Act);
(b) subsection 606(5) (which applies in relation to a greenhouse gas project inspector).
Note: The listed provisions require the inspectors concerned to carry their identity cards with them at all times while exercising their powers.
141 Paragraph 780F(9)(c)
Omit “inspector;”, substitute “inspector.”.
142 Paragraph 780F(9)(d)
Repeal the paragraph.
Division 2—NOPSEMA inspectors
Offshore Petroleum and Greenhouse Gas Storage Act 2006
143 Multiple amendments
The provisions of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 listed in this Division are amended by:
(a) omitting “a petroleum project inspector” and substituting “a NOPSEMA inspector”; and
(b) omitting “the petroleum project inspector” and substituting “the inspector”; and
(c) omitting “petroleum project inspector” and substituting “NOPSEMA inspector”.
144 Section 696
145 Section 699 (heading)
146 Subsection 699(2)
147 Section 701
148 Section 703
149 Section 704 (heading)
150 Subsections 704(1), (2) and (4)
151 Paragraph 705(a)
152 Paragraph 706(b)
153 Paragraphs 780F(1)(a), (2)(a), (7)(a), (8)(a) and (9)(a)
Part 5—Transitional, application and savings provisions
154 Definitions
In this Part:
function includes duty.
Offshore Act means the Offshore Petroleum and Greenhouse Gas Storage Act 2006, and includes legislative instruments made under that Act.
155 Application—general
Subject to this Part, the Offshore Act, as amended by this Schedule, applies on and after the commencement of this Schedule in relation to the following:
(a) acts or omissions of persons, whether occurring before, on or after that commencement;
(b) any other matter, whether arising before, on or after that commencement, that is relevant to the exercise of powers or the performance of functions of a NOPSEMA inspector, on or after that commencement, for the purposes of that Act.
156 Transitional—inspectors
Petroleum project inspectors and OHS inspectors
(1) If, immediately before the commencement of this Schedule, a person held an appointment under the Offshore Act as a petroleum project inspector or an OHS inspector, the person is, on and after that commencement, taken to hold an appointment under that Act (as amended by this Schedule) as a NOPSEMA inspector.
(2) The person’s appointment as a NOPSEMA inspector (as provided by subitem (1)) is taken to be:
(a) for the balance of the term of the appointment, on the same terms and conditions as the person’s appointment as a petroleum project inspector or an OHS inspector; and
(b) if the person previously held an appointment as an OHS inspector—subject to any directions or notice given to or in relation to the person under clause 48 of Schedule 3 to the Offshore Act in his or her capacity as an OHS inspector.
(3) For the purposes of the Offshore Act as amended by this Schedule, a direction or notice mentioned in paragraph (2)(b) is taken to have been given as a direction or notice under section 602A of that Act. The direction or notice may be varied or revoked accordingly.
Greater Sunrise visiting inspectors
(4) If, immediately before the commencement of this Schedule, a person held an appointment under the Offshore Act as a petroleum project inspector in the capacity of a Greater Sunrise visiting inspector, the person is, on and from that commencement, taken to hold an appointment as a NOPSEMA inspector in the same capacity.
157 Transitional—identity cards
(1) This item applies to an identity card issued under the Offshore Act before the commencement of this Schedule, to a person appointed under that Act as a petroleum project inspector or an OHS inspector, if the identity card is in effect immediately before that commencement.
(2) The identity card continues in effect for 28 days after that commencement, as if it had been issued to the person as a NOPSEMA inspector for the purposes of section 602 of the Offshore Act as amended by this Schedule.
158 Savings—inspections still in progress
Petroleum inspections and OHS inspections may be continued
(1) An inspection in relation to particular conduct, or a particular event or circumstances, for the purposes of Division 1 of Part 6.5 of the Offshore Act, or Part 4 of Schedule 3 to the Offshore Act, that had started (but not ended) before the commencement of the amendments made by this Schedule may be continued on and after that commencement as if those amendments had not been made.
(2) For the purposes of the inspection, the Offshore Act continues to apply as in force immediately before that commencement in relation to the inspection until the inspection ends.
(3) Without limiting subitem (2), the Offshore Act as in force immediately before that commencement continues to apply, on and after that commencement, in relation to a warrant, notice, direction or other instrument issued, or anything else done (whether before, on or after the commencement of this Schedule) in the course of the inspection.
New inspections may be started
(4) This item does not prevent the following inspections being started on or after the commencement of this Schedule in relation to the same conduct, event or circumstances (or an aspect of that conduct or event, or those circumstances):
(a) an inspection involving the exercise of powers, and the performance of functions, for the purposes of Division 1 of Part 6.5 of the Offshore Act as amended by this Schedule;
(b) a petroleum environmental inspection under Schedule 2A to the Offshore Act as amended by this Schedule;
(c) an OHS inspection under Schedule 3 to the Offshore Act as amended by this Schedule.
Definitions
(5) For the purposes of this item:
(a) an inspection starts when the relevant inspector, or NOPSEMA, makes a decision to start the inspection; and
(b) an inspection ends when the relevant inspector, or NOPSEMA, makes a decision to end the inspection.
159 Transitional and savings—inquiries concerning significant offshore incidents
Persons taken to be inspectors
(1) If, immediately before the commencement of this Schedule, a direction by the Secretary was in force under section 780F of the Offshore Act in relation to a person, in accordance with which the person was taken under that section to be a petroleum project inspector, a Greater Sunrise visiting inspector or an OHS inspector under that Act, then on and after that commencement:
(a) the direction continues in force, subject to that Act as amended by this Schedule; and
(b) the person is taken under that section (as amended by this Schedule) to be a NOPSEMA inspector, or a NOPSEMA inspector in the capacity of a Greater Sunrise visiting inspector; and
(c) the person’s identity card issued under that section continues in effect for 28 days after that commencement in accordance with that section as amended by this Schedule; and
(d) that section applies in relation to the person accordingly.
Inspections may be continued
(2) An inspection in relation to particular conduct, or a particular event or circumstances, involving the exercise of powers or the performance of functions given to a person under section 780F of the Offshore Act that had started (but not ended) before the commencement of the amendments made by this Schedule may be continued on and after that commencement as if those amendments had not been made, subject to this item.
(3) For the purposes of the inspection, the Offshore Act continues to apply as in force immediately before that commencement in relation to the inspection until the inspection ends.
(4) Without limiting subitem (3), the Offshore Act as in force immediately before that commencement continues to apply, on and after the commencement, in relation to a warrant, notice, direction or other instrument issued, or anything else done (whether before, on or after the commencement of this Schedule) in the course of the inspection.
New inspections may be started
(5) This item does not prevent an inspection involving the exercise of powers or the performance of functions given to a person under section 780F of the Offshore Act as amended by this Schedule being started on or after the commencement of this Schedule in relation to the same conduct, event or circumstances (or an aspect of that conduct or event, or those circumstances).
Definitions
(6) For the purposes of this item:
(a) an inspection starts when the relevant inspector makes a decision to start the inspection; and
(b) an inspection ends when the relevant inspector makes a decision to end the inspection.
160 Transitional regulations
The Governor‑General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by this Schedule.
Schedule 2—Offences and civil penalties
Part 1—Offences and civil penalty provisions
Offshore Petroleum and Greenhouse Gas Storage Act 2006
1 Before subsection 228(1)
Insert:
Offence
2 Subsection 228(1)
After “offence”, insert “of strict liability”.
3 At the end of subsection 228(1)
Add:
Note: For strict liability, see section 6.1 of the Criminal Code.
4 After subsection 228(1)
Insert:
Civil penalty
(1A) A person who is a pipeline licensee in relation to a pipeline is liable to a civil penalty if the person ceases to operate the pipeline.
Civil penalty: 265 penalty units.
Exceptions
5 Subsection 228(2)
Omit “Subsection (1)”, substitute “Subsection (1) or (1A)”.
6 Subsection 228(2) (note)
Repeal the note, substitute:
Note: In proceedings for an offence against subsection (1), the defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code. The same applies in proceedings for a civil penalty under subsection (1A) of this section.
7 Subsection 228(3)
Omit “Subsection (1)”, substitute “Subsection (1) or (1A)”.
8 Subsection 228(3) (note)
Repeal the note, substitute:
Note: In proceedings for an offence against subsection (1), the defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code. The same applies in proceedings for a civil penalty under subsection (1A) of this subsection.
9 Subsection 228(4)
Repeal the subsection (including the note).
10 After subsection 249(1)
Insert:
Offence
11 At the end of section 249
Add:
Civil penalty
(4) A person is liable to a civil penalty if the person contravenes a requirement under subsection (1).
Civil penalty: 90 penalty units.
12 At the end of section 280
Add:
Civil penalty
(5) A person is liable to a civil penalty if the person contravenes a requirement under subsection (2).
Civil penalty: 265 penalty units.
13 At the end of section 284
Add:
Civil penalty
(7) A person is liable to a civil penalty if the person contravenes a requirement under subsection (2).
Civil penalty: 150 penalty units.
14 After subsection 286A(8)
Insert:
Civil penalty
(8A) A person is liable to a civil penalty if the person contravenes a requirement under subsection (2), (3), (4) or (5).
Civil penalty: 90 penalty units.
15 After subsection 507(5)
Insert:
Civil penalty
(5A) A person is liable to a civil penalty if the person contravenes a requirement in a notice under subsection (2).
Civil penalty: 90 penalty units.
16 Subsection 507(6) (heading)
Repeal the heading, substitute:
Notice to set out the effect of offence and civil penalty provisions
17 At the end of subsection 507(6) (before the note)
Add:
; (c) subsection (5A).
18 After subsection 508(5)
Insert:
Civil penalty
(5A) A person is liable to a civil penalty if the person contravenes a requirement in a notice under subsection (2).
Civil penalty: 90 penalty units.
19 Subsection 508(6) (heading)
Repeal the heading, substitute:
Notice to set out the effect of offence and civil penalty provisions
20 At the end of subsection 508(6) (before the note)
Add:
; (c) subsection (5A).
21 After subsection 509(6)
Insert:
Civil penalty
(6A) A person is liable to a civil penalty if the person contravenes a requirement in a notice under subsection (2).
Civil penalty: 90 penalty units.
22 Subsection 509(7) (heading)
Repeal the heading, substitute:
Notice to set out the effect of offence and civil penalty provisions
23 At the end of subsection 509(7) (before the note)
Add:
; (c) subsection (6A).
24 After subsection 569(6A)
Insert:
Civil penalty
(6B) A person is liable to a civil penalty if the person contravenes a requirement under subsection (1).
Civil penalty: 1,000 penalty units.
25 After paragraph 569(7)(a)
Insert:
(aa) proceedings for a civil penalty order for the purposes of subsection (6B) in relation to a breach of a paragraph of an item of the table in subsection (1); or
26 Section 569 (notes 1 and 2)
Repeal the notes, substitute:
Note: A petroleum titleholder is required to comply with any directions by NOPSEMA or the responsible Commonwealth Minister given under the following provisions:
(a) sections 574 and 576B (by NOPSEMA);
(b) section 574A (by the responsible Commonwealth Minister).
27 After subsection 572(5)
Insert:
Civil penalty
(5A) A person is liable to a civil penalty if the person contravenes a requirement under subsection (2) or (3) in relation to a title area covered by item 1, 2, 3, 4, 5, 6 or 7 of the table in subsection (1).
Civil penalty: 525 penalty units.
28 Section 572 (notes 1 and 2)
Repeal the notes, substitute:
Note: A petroleum titleholder is required to comply with any directions by NOPSEMA or the responsible Commonwealth Minister given under the following provisions:
(a) sections 574 and 576B (by NOPSEMA);
(b) section 574A (by the responsible Commonwealth Minister).
29 Section 573 (fifth paragraph)
After “offence”, insert “, or a proceeding for a civil penalty order,”.
30 Subsection 574(2) (note 2)
Repeal the note, substitute:
Note 2: Breach of a direction may attract a criminal or civil penalty: see section 576.
31 Subsection 574A(2) (note 2)
Repeal the note, substitute:
Note 2: Breach of a direction may attract a criminal or civil penalty: see section 576.
32 At the end of section 575
Add:
Civil penalty
(6) A person is liable to a civil penalty if the person contravenes a requirement under subsection (1), (2), (3), (3A), (3B) or (3C).