Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023

The regulations define several foundational concepts. "Environment" is defined broadly in section 5 to include ecosystems and their constituent parts (including people and communities), natural and physical resources, qualities and characteristics of locations, and heritage value of places, including social, economic and cultural features. "Activity" means a petroleum activity or a greenhouse gas activity and includes a proposed activity or any stage of an activity. "Environmental impact" means any change to the environment, whether adverse or beneficial, that wholly or partially results from the activity. "Control measure" means a system, item of equipment, person or procedure used as a basis for managing environmental impacts and risks. "Environmental performance outcome" is a measurable level of performance required to ensure impacts and risks are of an acceptable level. "Environmental performance standard" is a statement of performance required of a control measure. The regulations distinguish between "reportable incident" (an incident that has caused, or has the potential to cause, moderate to significant environmental damage) and "recordable incident" (a breach of an environmental performance outcome or standard that is not a reportable incident). "Offshore project" means one or more activities undertaken for the recovery of petroleum other than on an appraisal basis, including pipeline conveyance. "Seismic or exploratory drilling activity" covers seismic surveys and drilling for exploration or appraisal purposes for both petroleum and greenhouse gas. The regulations introduce the concept of "sensitive information" in relation to an environment plan, being personal information or information given by a relevant person in consultation that the giver requested not be published (section 5), and require this to be placed in a discrete "sensitive information part" of the plan (section 26(8)). "Relevant person" for consultation includes Commonwealth, State and Northern Territory agencies, the responsible Minister's department, and persons or organisations whose functions, interests or activities may be affected (section 25(1)). The "environment plan acceptance criteria" are set out in section 34 and include appropriateness for the nature and scale of the activity, demonstration that impacts are ALARP and of an acceptable level, appropriate performance outcomes and standards, appropriate implementation strategy, and no activity in a declared World Heritage property (other than monitoring or emergency response).

The regulations directly affect petroleum titleholders and greenhouse gas titleholders as defined in section 5. Petroleum titleholders include petroleum exploration permittees, retention lessees, production licensees, pipeline licensees, infrastructure licensees, and holders of access authorities, special prospecting authorities, and scientific investigation consents. Greenhouse gas titleholders include assessment permittees, holding lessees, injection licensees, and holders of search authorities, special authorities, and research consents. The regulations also affect applicants for certain authorities or licences who may submit an environment plan before the title is granted (section 26(2)). Proponents who submit offshore project proposals under Part 2 are subject to obligations, and if the proponent is not yet a titleholder, they are still bound by the proposal process. NOPSEMA is the primary regulator, responsible for assessing offshore project proposals, accepting or refusing environment plans, requesting revisions, and withdrawing acceptance. The regulations affect relevant persons who must be consulted in the preparation of environment plans, including Commonwealth, State and Northern Territory agencies, the responsible Minister's department (State or Northern Territory), and any person or organisation whose functions, interests or activities may be affected (section 25(1)(d) is broad). The public is affected through the public comment process for offshore project proposals (section 9) and for seismic or exploratory drilling environment plans (section 30). State and Northern Territory governments are affected through notification requirements for drilling and seismic surveys (section 55) and through the requirement that the titleholder's implementation strategy provide for appropriate consultation with State and Territory authorities (section 22(15)). Employees and contractors of titleholders are affected indirectly through the requirement for a clear chain of command and appropriate competencies and training (sections 22(3)-(4)). Persons subject to a remedial direction under the Act are treated as titleholders for the purposes of the instrument (section 59). The transitional provisions affect persons who had offshore project proposals or environment plans submitted or in force under the 2009 Regulations.

The regulations impose several key duties on titleholders. The primary duty is to have an accepted environment plan in force before undertaking an activity (section 17(1)), with a strict liability offence of 80 penalty units for breach. A titleholder must undertake the activity in accordance with the accepted environment plan and any limitations or conditions imposed on acceptance; a contrary action attracts a strict liability offence of 80 penalty units, unless the titleholder has written consent from NOPSEMA (section 18). If a significant new environmental impact or risk arises, or an existing one significantly increases, the titleholder must not continue the activity unless the impact or risk is provided for in the environment plan, subject to a defence if a revised environment plan has been submitted and not yet refused (section 19). Titleholders must submit offshore project proposals before commencing an offshore project (section 6). In preparing an environment plan, the titleholder must consult each relevant person, give them sufficient information to make an informed assessment, allow a reasonable period, and inform them of the right to request non-publication of information (section 25). Titleholders must notify NOPSEMA of a reportable incident orally as soon as practicable and within 2 hours of first occurrence or becoming aware (section 47), provide a written report within 3 days (section 48), and comply with any additional requests for reports (section 49). Recordable incidents must be reported monthly within 15 days after the month's end (section 50). Environmental performance must be reported at intervals of no more than 12 months as set out in the plan (section 51). Titleholders must store environment plans for the period in force plus 5 years, and store incident reports and environmental records for 5 years (section 52), and make copies available to NOPSEMA, inspectors, and agents on request (section 53). Titleholders must notify NOPSEMA at least 10 days before an activity commences and within 10 days after it ends (section 54), and notify State or Northern Territory departments before commencing drilling or seismic surveys in their offshore areas (section 55). Titleholders must submit a revised environment plan before commencing any significant modification or new stage of an activity (section 39(1)), as soon as practicable after a significant new or increased impact or risk (section 39(2)), at least 14 days before the end of each 5-year period (section 41), and on request by NOPSEMA (section 40). The regulations also grant titleholders the right to withdraw an offshore project proposal before decision (section 14), withdraw an environment plan before decision (section 37), refer to information previously given to NOPSEMA (section 56), and make submissions in response to NOPSEMA requests for revision (section 40(3)). NOPSEMA has the right to request further information (sections 8, 12, 32), to invite public comment, and to withdraw acceptance of an environment plan after giving at least 30 days notice (section 44).

The regulations create several strict liability offences. Undertaking an activity without an environment plan in force carries a penalty of 80 penalty units (section 17). Undertaking an activity contrary to the accepted environment plan or any limitation or condition carries 80 penalty units (section 18). Continuing an activity after a significant new or increased environmental impact or risk not provided for in the plan carries 80 penalty units (section 19). Failure to notify a reportable incident orally within 2 hours carries 40 penalty units (section 47). Failure to give a written report of a reportable incident within 3 days carries 40 penalty units (section 48). Failure to comply with a NOPSEMA request for additional written reports after the initial report carries 40 penalty units (section 49). Failure to report recordable incidents (non-reportable breaches) within 15 days after the calendar month carries 40 penalty units (section 50). Failure to store the environment plan or incident/environmental records for the required periods carries 30 penalty units (section 52). Failure to make stored records available to NOPSEMA, inspectors or agents on request carries 30 penalty units (section 53). Failure to notify the relevant State or Northern Territory department before commencing drilling or seismic surveys carries 30 penalty units (section 55). In addition to criminal penalties, NOPSEMA has significant enforcement powers through the withdrawal of acceptance of an environment plan under section 43. Grounds for withdrawal include the titleholder's non-compliance with environmental provisions of the Act or directions under it, non-compliance with sections 18, 19, 39, 40, 41 or 51 of the regulations, refusing to accept a revised environment plan, failure to provide sufficient environmental performance information after two or more requests, or failure to maintain financial assurance (for petroleum activities). Before withdrawing acceptance, NOPSEMA must give at least 30 days notice and consider any action taken by the titleholder to remove the ground or prevent recurrence (section 44). Section 45 provides that withdrawal of acceptance does not preclude criminal conviction for the same non-compliance, and vice versa. Financial consequences also arise through fees payable for consideration of offshore project proposals (section 57) and financial assurance assessments (section 58), which are the total expenses incurred by NOPSEMA.

The regulations are made under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and operate under that Act's framework. Section 3 states the authority. The object in section 4 specifically references the principles of ecologically sustainable development set out in section 3A of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), embedding those principles into the regulatory regime. Several provisions directly interact with the EPBC Act. Under section 6, a person need not submit an offshore project proposal if the Environment Minister has decided under section 75 of the EPBC Act that the action is not a controlled action, or has made a component decision under section 77A, or has approved the action under Part 9 of the EPBC Act. Section 26(3) similarly provides that an environment plan for an activity that is part of an offshore project may only be submitted if there is an accepted offshore project proposal or the relevant EPBC Act decision. Notably, section 6(3) and section 26(5) provide that an approval under section 146B of the EPBC Act (bilateral agreements) is not taken to be an approval under Part 9 for these purposes, preventing circumvention. The definitions of environment plan acceptance criteria in section 34(f) prohibit acceptance of any environment plan that involves the activity being undertaken in a declared World Heritage property (except for environmental monitoring or emergency response). The regulations also reference the EPBC Act's definitions for Commonwealth land, Commonwealth marine area, declared Ramsar wetland, declared World Heritage property, listed migratory species, listed threatened ecological community, listed threatened species, National Heritage place, National Heritage value, and world heritage values (section 5). The consultation requirements in section 25 require engagement with Commonwealth, State and Northern Territory agencies, and the implementation strategy must provide for appropriate consultation with relevant authorities of the Commonwealth, a State or a Territory (section 22(15)(a)). The oil pollution emergency plan must be consistent with the national system for oil pollution preparedness and response (section 22(11)). The regulations interact with the Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Regulations 2022, as referenced in section 30(7) concerning withdrawal of a seismic or exploratory drilling plan if not resubmitted within 12 months. Financial assurance provisions (Part 3) tie into section 571 of the Act. The transitional provisions in Part 7 manage the interaction between these regulations and the repealed 2009 Regulations, carrying forward various actions and statuses.

The Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 are a new instrument that replaces the earlier Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (the old Regulations). The regulations were made on 6 July 2023 by the Governor-General on the advice of the Federal Executive Council, with the Minister for Resources as the responsible minister. They commenced on 10 January 2024, being the day after the end of a period of six months beginning on the day of registration. Part 7, Division 1 contains extensive application, saving and transitional provisions relating to the repeal of the 2009 Regulations. Key transitional provisions include: an offshore project proposal accepted under the old Regulations is taken to be accepted under the new regulations (section 61); proposals submitted but undecided before commencement are taken to be submitted to NOPSEMA under the new provisions (section 62); environment plans in force immediately before commencement continue in force and are taken to have been accepted under the new regulations, with any limitations or conditions continuing (section 63); requests for revision made but not complied with before commencement are taken as requests under the new regulations (section 64); revision submissions made under the old five-yearly review provision are taken as submissions under section 41 (section 65); environment plans submitted but undecided before commencement are taken as submitted under section 26, with publication steps carried over (section 66); grounds for withdrawal of acceptance include non-compliance with certain provisions of the old Regulations (section 67); and incident reporting and record storage obligations apply with respect to prior events under the old Regulations (sections 69, 71). The regulations themselves do not contain any subsequent amendment history as the provided text is the original making. The instrument does not appear to have been amended since commencement based on the source.

The source text of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 does not reference any decided cases or judicial proceedings. The regulations themselves are a legislative instrument and do not cite litigation. As a relatively new instrument made in 2023 and commencing in January 2024, there is limited opportunity for substantial case law to have developed directly under these regulations. However, the predecessor 2009 Regulations were the subject of various administrative and judicial reviews in the context of offshore petroleum environmental approvals, but no such cases are mentioned in the provided text. The transitional provisions in Part 7 indicate that the 2009 Regulations continue to have some effect for matters that arose before commencement, such as reportable incidents that occurred before the commencement day (section 69). Any litigation under the 2009 Regulations remains relevant for transitional matters. The regulations themselves create a framework for NOPSEMA decisions that may be subject to merits review or judicial review under the Act or the Administrative Appeals Tribunal Act, but the instrument does not specify review rights. The strict liability offences created by the regulations would be prosecuted in the relevant federal courts or magistrates courts, but no such proceedings are referenced in the source. Given that the source does not name any cases, this deep dive cannot discuss specific litigation history. Practitioners should be aware that case law on analogous provisions under the 2009 Regulations or under other parts of the offshore petroleum regulatory regime may inform interpretation, but the instrument itself is silent on that body of law.

Several provisions in the regulations contain traps for the unwary. The 2-hour oral notification requirement for reportable incidents (section 47(2)(a)) is extremely tight, running from the first occurrence or from when the titleholder becomes aware if not detected at the time; the clock starts immediately. The obligation applies even if the titleholder has not yet fully assessed the incident. The written report must follow within 3 days (section 48(2)(a)(i)) unless NOPSEMA specifies another period within those 3 days. Failure to comply with either is a strict liability offence of 40 penalty units. Another trap is the breadth of the definition of "reportable incident": any incident that has caused or has the potential to cause moderate to significant environmental damage. This is a low threshold that may capture events that do not ultimately cause harm, but the notification obligation is triggered regardless. The prohibition on undertaking an activity in a declared World Heritage property is absolute for environment plan acceptance (section 34(f) and section 13(4)(f) for offshore project proposals), with no exception other than for environmental monitoring or emergency response. Any activity or part of an activity in such a property makes the environment plan incapable of acceptance. The 5-year revision requirement (section 41) requires submission at least 14 days before the end of each consecutive 5-year period; the first period commences from the later of the initial acceptance, the last 5-year revision acceptance, or a date specified by NOPSEMA. Missing this deadline could leave the titleholder without an accepted environment plan in force, potentially triggering the section 17 offence. Section 42 clarifies that if a revised plan is not accepted the existing plan continues in force, but that does not relieve the obligation to submit the revision on time. The strict liability nature of all offences means that no fault element needs to be proved, and the only available defence is an evidential burden on the defendant for specific exceptions (e.g., written consent of NOPSEMA under section 18(2)). The financial assurance requirement for petroleum titleholders (section 16) is a precondition for acceptance of an environment plan, and failure to maintain compliance with subsection 571(2) of the Act in a form acceptable to NOPSEMA is a ground for withdrawal of acceptance (section 43(1)(e)). This is a continuing obligation, not just a one-off at submission. The regulations allow NOPSEMA to accept an environment plan in part or subject to limitations or conditions (section 33(7)(b)(ii)), and such limitations or conditions then carry the same force as the plan itself, with breach attracting the section 18 offence. The public comment process for seismic or exploratory drilling plans includes a mandatory obligation to respond in general terms to comments and indicate modifications; failure to resubmit within 12 months results in the plan being deemed withdrawn (section 30(7)). Note that this deemed withdrawal applies for the purposes of the Regulatory Levies Regulations as well, which may affect levy liability.

Titleholders seeking to comply with the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2023 should follow a systematic process. Before commencing any activity, the titleholder must first determine whether the activity is part of an offshore project (i.e., for recovery of petroleum other than on an appraisal basis). If so, an offshore project proposal must be submitted to NOPSEMA under section 6 and accepted under section 13 before an environment plan can be submitted for any activity in that project. If the activity is not part of an offshore project, the titleholder can proceed directly to preparing an environment plan. The environment plan must contain the comprehensive contents required by Division 2 (sections 20-24), including a description of the activity, the existing environment, all applicable requirements, a full evaluation of environmental impacts and risks (including from emergency conditions), control measures, environmental performance outcomes and standards with measurement criteria, an implementation strategy with an environmental management system, clear chain of command, monitoring and reporting arrangements, an oil pollution emergency plan consistent with the national system, testing arrangements for oil pollution response (with a schedule not exceeding 12 months between tests), consultation and compliance provisions, titleholder and liaison details, corporate environmental policy, a report on all consultations including summaries of responses and objections, and details of past reportable incidents. The titleholder must carry out consultation with each relevant person under section 25 before submitting the plan, providing sufficient information and a reasonable period for response. All sensitive information must be placed in a discrete sensitive information part of the plan (section 26(8)). The plan must be submitted to NOPSEMA in writing (section 26(6)). For seismic or exploratory drilling plans, the titleholder must anticipate a public comment period of 30 days (section 30(1)) and must resubmit the plan within 12 months after that period, responding to comments (section 30(3)). After submission, NOPSEMA will provisionally check completeness within 5 business days (section 27) and may request further information (section 32). The titleholder should be prepared to provide information promptly. The titleholder must also demonstrate financial assurance in a form acceptable to NOPSEMA if the activity is a petroleum activity (section 16). Upon acceptance, the titleholder must submit a summary of the accepted plan for public disclosure within 10 days (section 35(6)). During operations, the titleholder must comply strictly with the accepted plan and any limitations or conditions. The titleholder must monitor for reportable and recordable incidents and report within the statutory timeframes: oral notification of reportable incidents within 2 hours, written report within 3 days, and monthly reporting of recordable incidents within 15 days after the month. Environmental performance reports must be submitted at intervals not exceeding 12 months as stated in the plan (section 51). The titleholder must store the environment plan and all reports and records for 5 years after the plan ceases to be in force or after creation, as applicable, and must make them available on request. The titleholder must notify NOPSEMA of the start of an activity at least 10 days before commencement and of its end within 10 days after (section 54). Before any significant modification or new stage of an activity, the titleholder must submit a revised environment plan (section 39(1)). Similarly, if a significant new or increased environmental impact or risk arises, a revised plan must be submitted before or as soon as practicable after the occurrence (section 39(2)). At least 14 days before the end of each 5-year period, the titleholder must submit a five-yearly revision (section 41). If NOPSEMA requests a revision, the titleholder should consider making a timely submission or providing reasons why it is not needed within 21 days (section 40(3)-(4)).