House of Representatives

Explanatory Memorandum

Circulated by authority of the Minister for Climate Change and Energy, the Honourable Chris Bowen MP

GLOSSARY

OUTLINE

The Offshore Electricity Infrastructure Legislation Amendment Bill 2022 (the Bill) amends the Customs Act 1901 (the Customs Act) to ensure that, following the recent commencement of the Offshore Electricity Infrastructure Act 2021 (the OEI Act), goods and vessels that enter or exit areas off the coast of Australia in relation to offshore electricity infrastructure (OEI) are appropriately regulated. The Bill also amends the OEI Act, primarily to accommodate a recent change to the Administrative Arrangement Orders (AAOs), which might otherwise impact the powers and identity of the Offshore Infrastructure Registrar (the Registrar).

Customs Act

Schedule 1 to the Bill amends the Customs Act.

The OEI Act, which commenced on 2 June 2022, establishes a legal framework to enable the construction, installation, commissioning, operation, maintenance, and decommissioning of OEI in the Commonwealth offshore area. This offshore area comprises Australia's territorial sea and Australia's exclusive economic zone, and includes areas beyond the general application of the Customs Act.

To effectively manage border security risks that could arise from the installation of OEI in the Commonwealth offshore area, it is necessary to make amendments to the Customs Act. The Bill will allow the Australian Border Force (ABF) to treat OEI on the same basis as sea and resources installations for customs purposes, and for the Anti-Dumping Commission (ADC) to treat OEI on the same basis as for the purposes of anti-dumping and countervailing matters. This will ensure that the ABF and the ADC can continue to secure the border using existing controls that are currently administered in the offshore environment.

The Bill includes provisions:

•

Ensuring the Customs Act treats offshore electricity installations that are installed in the Commonwealth offshore area as part of Australia.

•

Requiring the approval of the Comptroller-General of Customs to:

o

attach overseas offshore electricity installations in the Commonwealth offshore area; and

o

use offshore electricity installations attached in the Commonwealth offshore area, where these installations are subject to customs control.

•

Extending forfeiture provisions for unlawfully attaching overseas offshore electricity installations.

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Clarifying the times at which offshore electricity installations (and any goods on the installations) are imported into and exported from Australia.

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Requiring ABF approval for ships or aircraft to arrive at offshore electricity installations.

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Prohibiting direct journeys between external places and offshore electricity installations and transfers between ships or aircraft in close proximity to offshore electricity installations.

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Empowering ABF officers:

o

to board and search offshore electricity installations and secure goods on those installations;

o

to question persons who are on offshore electricity installations in relation to dutiable, excisable or prohibited goods; and

o

in certain circumstances, to conduct frisk searches of persons reasonably suspected to be carrying prohibited goods.

•

Requiring the owner of an offshore electricity installation to facilitate boarding by persons authorised under the Customs Act (e.g. customs officers).

•

Prohibiting removal of customs seals and similar marks placed by customs officers on offshore electricity installations.

OEI Act

Schedule 2 to the Bill amends the OEI Act.

The OEI Act, which commenced on 2 June 2022, establishes a legal framework to enable the construction, installation, commissioning, operation, maintenance, and decommissioning of OEI in the Commonwealth offshore area. Under this framework, an eligible person who wishes to undertake OEI activities in the Commonwealth offshore area will need to apply for an appropriate licence in order to do so, and will also be subject to ongoing regulation while they conduct their activities. The framework established in the OEI Act will be further outlined in regulations made under the Act.

Broadly speaking, the day-to-day operation of the OEI framework will be overseen by three entities. The Registrar will be responsible for the licensing of OEI participants, while the Offshore Infrastructure Regulator (the Regulator) will be responsible for ensuring that OEI licence holders conduct their activities in accordance with the OEI framework. In addition, the relevant Commonwealth Department (the Department of Climate Change, Energy, the Environment and Water, or DCCEEW), led by the relevant Secretary (the Secretary of DCCEEW), will be responsible for ongoing policy oversight of the framework as well as supporting the Minister to declare specified areas in the Commonwealth offshore area for the purposes of the OEI Act.

Section 175 of the OEI Act establishes the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) as the Regulator. The Registrar, on the other hand, under section 153 of the OEI Act is an SES employee of the relevant Commonwealth Department appointed for that purpose by the relevant Secretary. Section 153 was drafted with the expectation that the relevant Secretary might be able to appoint the National Offshore Petroleum Titles Administrator (NOPTA) as the Registrar, and that if this occurred, this Registrar would be assisted by staff supporting the NOPTA who would be in the Department NOPTA was in and would be made available to the Registrar under section 158 of the OEI Act. However, following a recent change to the AAOs, the NOPTA is no longer an SES employee of DCCEEW, but is instead an SES employee of another Commonwealth Department; likewise, the staff supporting the NOPTA are also employees of that other Department. This means that the relevant Secretary cannot currently choose to appoint the NOPTA as the Registrar and the Registrar cannot be assisted by staff supporting the NOPTA in the Department the NOPTA is in.

The Bill corrects this misalignment by permitting the relevant Secretary to appoint an SES employee of any Commonwealth Department as the Registrar and for any Secretary to make certain employees from their Department available to assist the Registrar, and makes further amendments as necessary to facilitate this correction throughout the OEI Act.

The Bill also makes further minor amendments to the OEI Act, the need for which has only become apparent since the OEI Act commenced. These comprise:

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Providing greater clarity around the extent and reach of the OEI Act, by permitting certain infrastructure, structures or installations to be effectively excluded from the remit of the OEI Act by the making of regulations.

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Providing more specific powers to make regulations, to ensure that certain aspects of the OEI framework can be detailed in regulations as originally intended.

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Clarifying that certain fees paid under the regulations can be refunded as originally intended.

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Ensuring the Regulator can publish certain information for the purposes of facilitating transparency in the context of the proposed work programs for licence holders.

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Providing for the Minister rather than the Regulator to decide what forms and amounts of financial security licence holders must provide and when these obligations cease under regulations.

FINANCIAL IMPACT STATEMENT

The Bill is expected to have no financial impact.

CONSULTATION

The following stakeholders were consulted during the development of the Bill: the Anti-Dumping Commission; the Department of Home Affairs; the Department of Finance; the Department of Industry, Science and Resources; NOPSEMA; NOPTA; the Australian Government Solicitor; the Office of Parliamentary Counsel.

The Bill is consequential to the OEI Act, for which a public consultation process was conducted from 3 January 2020 to 28 February 2020. A further public consultation for the Bill was unnecessary.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Offshore Electricity Infrastructure Legislation Amendment Bill 2022

The Offshore Electricity Infrastructure Legislation Amendment Bill 2022 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

Schedule 1 to the Bill amends the Customs Act 1901 (the Customs Act) to treat offshore electricity infrastructure (OEI) on the same basis as sea and resource installations for customs purposes and anti-dumping purposes.

In June 2022, the Offshore Electricity Infrastructure Act 2021 (the OEI Act) came into effect. The OEI Act establishes a regulatory framework for the construction, operation and decommissioning of OEI. OEI may be installed under this framework in Australia's territorial sea or in Australia's exclusive economic zone. This includes offshore areas beyond the general application of the Customs Act.

Currently, OEI operators are not required to seek permission from the Australian Border Force (ABF) to attach or install OEI to the Australian seabed. Further, as OEI is not a form of installation under customs legislation, it is not subject to rules applicable to offshore installations under customs control, and OEI operators are not required to lodge import and export declarations for goods that do not enter Australia before moving to or from OEI that is outside the standard jurisdiction of the Customs Act. As OEI operators are not subject to a prohibition under the Customs Act that restricts the movement of vessels from an overseas location directly to OEI, the ABF is also not able to assess risk of vessels and/or goods destined for OEI in Australia. Further, the Commissioner of the Anti-Dumping Commission (ADC) would not be able to examine goods imported to OEI, or that were aboard overseas OEI at the time it is installed in the Commonwealth offshore area, for the purposes of anti-dumping and countervailing matters.

The purpose of the Bill is to align regulatory mechanisms for OEI with other offshore installations and ensure effective border security controls are in place to manage the risks that could arise from the installation and operation of OEI in Commonwealth offshore areas, as defined in the OEI Act, by ensuring that the ABF can continue to secure the border with existing controls that ABF officers currently administer in the offshore environment. In particular, the amendments would ensure that:

•

ABF officers have the same powers to monitor and control OEI as currently apply to sea and resource installations under the Customs Act; and

•

from a customs perspective, regulatory neutrality is achieved between renewable and non-renewable energy sectors, regardless of whether those activities are conducted through OEI, or a sea or resource installation.

The amendments enable the ABF to monitor activities to, from, and on OEI, including by:

•

providing an offence under new section 5BA for installation of an overseas OEI in the Commonwealth offshore area, unless permission is in force;

•

deeming, except for certain purposes, OEI installed in the Commonwealth offshore area to be part of Australia, so that regulatory powers and functions under the Customs Act apply to it;

•

providing a strict liability offence under new section 33BA for the use of OEI subject to customs control, unless permission is in force;

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clarifying when OEI is considered to be installed in Australia, for the purposes of the Customs Act;

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providing for an offence under section 58A of the Customs Act for direct travel from an external place to OEI;

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providing for an offence under subsection 61(1) of the Customs Act if a person fails to permit an authorised person to board OEI;

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providing for search and questioning powers under sections 187 and 195 of the Customs Act, which would engage existing detention, frisk search and production powers under sections 219L, 219M and 219N of the Customs Act; and

•

clarifies when OEI is forfeited to the Crown.

The amendments also enable the Commissioner of the ADC to undertake the Commissioner's duties with respect to imports to OEI in the same way that imports to resource installations and sea installations are treated under the parts of the Customs Act concerned with anti-dumping and countervailing matters.

The Bill also amends the OEI Act, primarily to accommodate a recent change to the AAOs which might otherwise impact the powers and identity of the Offshore Infrastructure Registrar. The Bill also makes further minor amendments to the OEI Act, the need for which has only become apparent since the OEI Act was enacted. An overview of these minor consequential amendments is provided above.

Human rights implications

Schedule 1 to the Bill engages the following rights:

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the right to freedom of movement in Article 12 of the International Covenant on Civil and Political Rights (ICCPR),

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the right to liberty and freedom from arbitrary detention in Article 9(1) of the ICCPR,

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the right to privacy in Article 17 of the ICCPR, and

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the right to presumption of innocence in Article 14 of the ICCPR.

Right to freedom of movement

Article 12 of the ICCPR relevantly provides that:

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement ...

...

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order ("ordre public"), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

The Bill extends the existing offence in section 58A of the Customs Act to OEI, providing that it is an offence for persons to conduct a direct journey from an external place (as defined in the Customs Act) to OEI. External places are defined in the Customs Act to include Australian external territories. Section 58A provides that, for the purposes of that section, OEI is deemed not to be part of Australia. However, OEI is located in Australian territorial waters. To the extent that the offences create a prohibition on movement between Australian external territories and OEI, this may limit the freedom of movement within the Australian territory.

Any limitation is reasonable, necessary and proportionate. The extension of the measures to OEI is necessary to maintain national security in the offshore environment, by requiring persons to travel to Australia for evaluation by the ABF, under the Customs Act, of any risks posed by their vessels, before traveling to OEI. The measures are proportionate, as they ensure that OEI is are treated the same as sea and resources installations. They are also the least rights restrictive. The measures would only limit the freedom of movement in very narrow circumstances, and there are a number of existing defences available under subsection 58A(6) of the Customs Act for persons who travel directly to an installation where it was necessary to secure the safety of, or avert a threat to, human life; or it was necessary to secure or avert a threat to safety of a ship at sea, an aircraft in flight or of an installation; or if it was authorised in writing by the Comptroller-General of Customs and was carried out in accordance with the conditions of that authorisation. The Bill extends these defences to the offence of travelling directly to OEI.

To the extent that the measure limits the right to freedom of movement, the limitation is reasonable, necessary and proportionate in achieving the legitimate objective of protecting public order and national security in the offshore environment.

Right to liberty and freedom from arbitrary detention

Article 9(1) of the ICCPR provides that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

In addition to requiring a lawful basis for detention, the prohibition on arbitrary detention under Article 9(1) of the ICCPR requires that, in all circumstances, the detention of the particular individual must be justified as reasonable, necessary and proportionate to the end that is sought.

Section 187 of the Customs Act authorises an officer to board and search sea and resources installations. The Bill would extend these powers to OEI subject to customs control; or to which a ship or aircraft has come from an outside place; or at which an officer has reasonable grounds to believe there are goods subject to customs control; or would authorise officers to board OEI in respect of which permission under proposed section 5BA of the Customs Act has been granted. Section 195 of the Customs Act provides that an officer on board an installation of a kind referred to in section 187 may question persons as to whether they have on their person or in their baggage any dutiable, excisable or prohibited goods. The Bill would extend the powers in section 195 to persons on OEI.

As a result of extending section 187 of the Customs Act to OEI, detention officers who have boarded an installation under section 187 to conduct a search or to exercise any other power under that section and who suspect on reasonable grounds that a person on board the installation is carrying prohibited goods on their body, may detain the person pursuant to existing section 219L, to conduct a frisk search. A person detained under section 219L may be subject to a frisk search under existing section 219M and may be required to produce anything found under existing section 219N.

Powers to board, search, question, detain, frisk search and require production of anything found already exist in the Customs Act. The measures in this Bill would extend those powers to OEI. This is reasonable, necessary and proportionate to protect Australia's national security and ensure that OEI is treated the same as other offshore installations. The power to detain and conduct a frisk search is limited to particular circumstances and must be for a particular purpose. The detention officer must suspect on reasonable grounds that the person is carrying prohibited goods on their body. Section 219M contains a number of safeguards, including that the frisk search must be carried out as soon as practicable after the person is detained and it must be conducted by a person of the same sex as the detainee.

The limited scope of the detention power is reasonable and proportionate to the risks that persons who are located on OEI may pose to border security, including the illegal trafficking of prohibited goods across the Australian border.

Further, the amendments are necessary to protect Australia's national security, by ensuring that ABF officers are empowered to identify and control the movement of prohibited goods carried on persons working on, or travelling through, an OEI facility. Without this amendment, there is a heightened risk of OEI providing illegal entry points for goods entering Australia.

The measures are not arbitrary, and to the extent that they limit a person's right to liberty, they are reasonable, necessary and proportionate in achieving the legitimate objective of protecting public order and national security in the offshore environment.

Right to privacy

Article 17 of the ICCPR relevantly states that:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy... or correspondence ....

2. Everyone has the right to the protection of the law against such interference or attacks.

Interferences with privacy may be permissible, provided that they are authorised by law and not arbitrary. In order for an interference with the right to privacy not to be arbitrary, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted 'reasonableness' in this context to mean that 'any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case'.

The extension of frisk search measures under sections 219L and 219M and the power to require the production of things under section 219N to persons on OEI would engage the right to privacy. However, the section contains a number of safeguards that ensure the measure is proportionate and the least rights restrictive means of achieving the legitimate objective. Existing section 219M(1) provides that a frisk search is not to be carried out unless it is carried out as soon as practicable and by an officer of Customs who is of the same sex as the detainee.

The measures are also reasonable and necessary. They ensure that officers who have a reasonable suspicion that a person is carrying a prohibited good can search for and require the production of a prohibited good, preventing the illegal trafficking of prohibited items into Australia. It is reasonable and necessary that, if in conducting a frisk search, an officer locates an item that may be, or may contain, prohibited goods, the officer requires the person to produce that item for inspection, to ascertain whether the item is a prohibited item or not.

While extending the frisk search and power to require production measures to OEI limits the right to privacy, the limitation is reasonable, necessary and proportionate in achieving the legitimate objective of protecting public order and national security in the offshore environment.

Right to presumption of innocence

Article 14(2) of the ICCPR states that:

Everyone charged with criminal offence shall have the right to be presumed innocent until proved guilty according to law.

The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. Consistency with the presumption of innocence requires that the prosecution prove each element of a criminal offence beyond reasonable doubt.

The application of absolute or strict liability to an element of an offence may engage and limit the right to be presumed innocent as it allows for the imposition of criminal liability without the need for the prosecution to prove fault.

The Bill extends several strict liability offences for conduct performed on, or in relation to, OEI that currently apply to sea and resource installations. Applying strict liability is appropriate in these circumstances, as persons engaged in offshore activities involving the OEI sector would be expected to be aware of, and comply with, the requirements of the Customs Act. It would not be appropriate for the prosecution to have to demonstrate that a person knew that they had failed to meet those requirements. However, the general defence of mistake of fact would be available to the defendant. Therefore, if a person mistakenly believed that he or she had not engaged in conduct on, or in relation to, OEI that is subject to a strict liability offence, the defence of mistake of fact would be available.

Under international human rights law, a reverse onus provision will not violate the presumption of innocence if the law is reasonable in the circumstances and maintains the rights of the accused. Such a provision may be justified if the nature of the offence makes it very difficult for the prosecution to prove each element, or if it is clearly more practical for the accused to prove a fact than for the prosecution to disprove it. Many offences connected to the Bill relate to conduct in the offshore environment. This creates a significant challenge for public authorities to identify and gather evidence necessary to prove each element of an offence. It is appropriate, therefore, for the onus to be on the accused to demonstrate their knowledge of a fact. For example, where a person is suspected to be carrying a dutiable or excisable good, it is more practical for the person to demonstrate that they have complied with the relevant import requirements and duties and can produce the relevant paperwork.

Making the offences strict liability penalties operates to deter behaviour that would obstruct the activities of ABF officers and prevent them from obtaining relevant information, including in relation to persons reasonably suspected of carrying prohibited goods. It is appropriate for the offences not to include a fault element to act as a strong deterrent against engaging in behaviour that hinders or obstructs the exercise of an officers powers. The ability to exercise their powers is necessary to safeguard against unlawful interference the regulation of the offshore environment and to ensure the integrity of the inspection regime.

To the extent that the measures engage the right to presumption of innocence, the measures are reasonable, necessary and proportionate in achieving a legitimate objective of protecting national security in the offshore environment and ensuring that risks can be effectively managed.

The amendments in Schedule 2 to the Bill are technical in nature and do not engage any of the applicable human rights or freedoms.

Conclusion

The Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Notes on Clauses

Clause 1 - Short title

1. Clause 1 provides that the Bill, once it is enacted, will be called the Offshore Electricity Infrastructure Legislation Amendment Act 2022.

Clause 2 - Commencement

2. Clause 2 provides that all provisions of the Bill, following enactment, will commence the day after the Act receives Royal Assent.

Clause 3 - Schedules

3. Clause 3 provides that the Schedules to the Bill amend or repeal legislation as specified in the Schedules, and any other items in the Schedules have effect according to their terms. This is a formal provision that clarifies how the operative items in the Bill are intended to have their effect.

Schedule 1 - Amendment of the Customs Act 1901

Item 1 - Subsection 4(1)

4. Item 1 would insert into subsection 4(1) a definition of Australian offshore electricity installation for the purposes of the Customs Act 1901 (the Customs Act). An Australian offshore electricity installation would be one covered by section 5C of the Customs Act. Broadly speaking, it would be an offshore electricity installation that would be installed in the Commonwealth offshore area.

5. Australian offshore electricity installations subject to customs control would be subject to the new prohibition to be included in section 33BA of the Customs Act by item 11.

6. Item 1 would also insert into subsection 4(1) a definition of Commonwealth offshore area for the purposes of the Customs Act. This would have the same meaning as in the Offshore Electricity Infrastructure Act 2021 (the OEI Act).

7. The OEI Act defines the Commonwealth offshore area to mean the territorial sea of Australia and the exclusive economic zone, as well as the seabed and subsoil beneath those areas. It does not include the coastal waters of a State or the Northern Territory.

8. In following the meaning given by the OEI Act, the Commonwealth offshore area in the Customs Act would include those areas relating to external Territories to which the Customs Act generally does not apply. This is the case notwithstanding section 5 of the Customs Act. This is important to ensure that infrastructure regulated by the OEI Act is also captured by arrangements in the Customs Act.

9. Provisions of the Customs Act would apply to offshore electricity installations that are installed, or are to be installed, in the Commonwealth offshore area.

Items 2 and 3 - Subsection 4(1)

10. Items 2 and 3 would amend the definition of country in subsection 4(1). These amendments would ensure the concept of a country, for the purpose of the Customs Act, specifically excludes offshore electricity installations, as is the case currently for resources installations and sea installations.

Item 4 - Subsection 4(1) (at the end of the definition of Installation)

11. Item 4 would add a further type of installation to the definition of Installation in subsection 4(1), being offshore electricity installations. This would be further to the two existing types of installations covered by that expression for the purposes of the Customs Act, being sea and resources installations.

Item 5 - Subsection 4(1)

12. Item 5 would insert into subsection 4(1) a definition of offshore electricity installation for the purposes for the Customs Act. This definition would cover both offshore renewable energy infrastructure and electricity transmission infrastructure regulated by the OEI Act. Provisions of the Customs Act covered by these amendments would apply to offshore electricity installations covered by this new definition.

13. This item would also insert into subsection 4(1) a definition of overseas offshore electricity installation for the purposes for the Customs Act. This would be an offshore electricity installation brought into the Commonwealth offshore area from a place outside the outer limits of the Commonwealth offshore area.

14. Many of the provisions of the Customs Act covered by these amendments would apply to overseas offshore electricity installations covered by this new definition, principally including new section 5BA that would be inserted by item 7.

15. Once an overseas offshore electricity installation is installed in the Commonwealth offshore area, it ceases to be an overseas installation and becomes an Australian offshore electricity installation (see the definition of that expression that would be inserted by item 1, and section 5C, as proposed to be amended by items 8 to 10).

Item 6 - After subsection 4(18)

16. Item 6 would insert interpretative provisions into section 4 of the Customs Act to set out when an offshore electricity installation is and is not installed in the Commonwealth offshore area. It would be installed when it rests on, is fixed to, or connected to the seabed; or when it is attached or tethered to any other offshore electricity installation.

17. For this purpose, an offshore electricity installation would not be installed merely because a vessel is only temporarily moored or anchored on the sea bed in the Commonwealth offshore area.

Item 7 - After section 5B

18. Item 7 would insert a new section 5BA into the Customs Act. Section 5BA would prohibit the installation of an overseas offshore electricity installation in the Commonwealth offshore area without first obtaining permission of the Comptroller-General of Customs.

19. Contravention of the prohibition would be an offence. The maximum penalty would be 500 penalty units. The installation would also be forfeited to the Crown (see section 228C that would be inserted by item 30).

20. The Comptroller-General of Customs would be able to grant a permission to a person to install an installation upon application, and may impose conditions on any permission granted. These conditions would enable border security risks to be addressed (including biosecurity risks prior to installation). Contravention of the conditions would be an offence. A penalty of up to 100 penalty units may apply if they are breached.

21. Before the installation is installed, the Comptroller-General of Customs may vary, revoke permission or conditions, or may impose new conditions.

22. Once an overseas offshore electricity installation is installed, it would:

a.

become part of Australia for the purposes of the Customs Act (see section 5C, as it would be amended by items 8 to 10); and

b.

become an Australian offshore electricity installation (see the definition of that expression that would be inserted by item 1); and

c.

cease to be an overseas offshore electricity installation (see the definition of that expression that would be inserted by item 5).

Item 8 - After paragraph 5C(1)(b)

23. Item 8 would add a new paragraph 5C(1)(c) of the Customs Act. It would add offshore electricity installations installed in the Commonwealth offshore area as a further type of installation to the types of installations that are deemed to be part of Australia for the purposes of the Customs Act. Section 5C would apply to an offshore electricity installation that is so installed, whether or not it was an overseas offshore electricity installation prior to installation.

24. The installation would cease to be part of Australia if it were detached and or taken away from the Commonwealth offshore area in accordance with the new subsection 5C(4) (see items 9 and 10 below).

25. While it is installed in the Commonwealth offshore area, an offshore electricity installation is an Australian offshore electricity installation (see the definition of that expression that would be inserted by item 1).

Items 9 and 10 - Section 5C

26. Item 10 would include a new subsection 5C(4) in the Customs Act. Similar to subsections 5C(2) and (3), it would establish ways for offshore electricity installations to cease to be part of Australia.

27. If the offshore electricity installation would be uninstalled or moved for the purpose of being taken to a place outside the outer limits of the Commonwealth offshore area, then that installation would cease to be part of Australia for the purposes of the Customs Act. When this occurs, an offshore electricity installation ceases to be an Australian offshore electricity installation (see the definition of that expression that would be inserted by item 1).

28. Item 9 would make a consequential amendment to subsection 5C(1) to insert a reference to new subsection 5C(4), to make it clear that subsection 5C(1) ceases to apply when an installation is uninstalled or moved as described above.

Item 11 - After section 33B

29. Item 11 would insert a new section 33BA into the Customs Act. Section 33BA would create a new penalty for using an Australian offshore electricity installation that is subject to customs control without first obtaining permission of the Comptroller-General of Customs.

30. Contravention of the prohibition would be an offence. The maximum penalty would be 500 penalty units.

31. The Comptroller-General of Customs would be able to grant a permission to a person to use an installation upon application for activities specified in the permission, and may impose conditions on any permission granted. These conditions would enable border security risks to be addressed. Contravention of the conditions would be an offence. A penalty of up to 100 penalty units may apply if they are breached.

32. Before the installation is installed, the Comptroller-General of Customs may vary, revoke permission or conditions, or may impose new conditions.

33. This provision only applies to Australian offshore electricity installations subject to customs control. When goods are subject to customs control is provided for by Part III of the Customs Act, particularly including section 30. Relevantly, this would cover offshore electricity installations for a period of time after they have been imported into Australia. There are also specific provisions dealing with when installations are taken to be imported (see section 49B, as would be amended by items 13 and 14) or exported (see section 126A).

34. Section 33BA would be an offence of strict liability. This is the same as the equivalent provisions of the Customs Act requiring permission for the use of resources installations or sea installations in the same circumstances. It is appropriate to ensure the integrity of the regime that strict liability applies to this offence. This is particularly the case because these provisions are a principal means of addressing the border security risks posed at offshore electricity installations, which may be installed far from the Australian coast and in remote locations without an ABF presence. These provisions only have operation for a limited class of persons, being operators of offshore electricity installations.

Item 12 - Subsection 49A(9)

35. Item 12 would repeal subsection 49A(9) and substitute in a new subsection that excludes overseas offshore electricity installation from being considered to be a ship for the purposes of this section. Section 49A deals with situations in which ships and aircraft are deemed to be imported for the purposes of the Customs Act. Section 49A would not apply to overseas offshore electricity installations (see the definition of that expression that would be inserted by item 5). Instead, section 49B would apply.

36. Section 49A already does not apply to overseas resources installations and overseas sea installations, which would remain excluded from being considered a ship in this section.

Items 13 and 14 - Section 49B

37. Items 13 and 14 would amend section 49B to cover overseas offshore electricity installations, similarly to how those provisions currently apply to overseas resources installations and overseas sea installations. Section 49B makes provision for situations in which these installations are taken to be imported into Australia for the purposes of the Customs Act.

38. Item 13 would amend subsection 49B(1) so that it deems an overseas offshore electricity installation that is installed in the Commonwealth offshore area to have been imported into Australia for the purpose of the Customs Act when it becomes so installed. However, subsection 49B(1) does not apply if it is first brought to a place in Australia, as this would instead be covered by subsection 49B(2).

39. Item 14 would insert a new paragraph 49B(2)(c), applying to an overseas offshore electricity installation that has been brought to a place in Australia and is to be taken from that place in Australia to the Commonwealth offshore area to be installed. Where that new paragraph applies, subsection 49B(2) would deem that installation to have been imported into Australia for the purpose of the Customs Act when it is brought to that a place in Australia.

Item 15 - Subsection 58(6)

40. Item 15 would repeal subsection 58(6) of the Customs Act and substitute a new subsection that added Australian offshore electricity installations to the types of installations that are considered to be ships or aircraft for the purposes of this section.

41. Section 58 requires a master of a ship or a pilot of an aircraft to seek a Collector's permission to bring the ship or aircraft to a place that is not a port or airport respectively. Ports and airports are places appointed under section 15 of the Customs Act.

42. This amendment would ensure that in cases where section 58 of the Customs Act applies, a ship or aircraft cannot be brought to an Australian offshore electricity installations without the permission of a Collector. This enables border security risks to be managed. There are cases where section 58 does not apply, for example, where there is stress of weather that requires a ship to be brought to a place.

Item 16 - After subparagraphs 58A(2)(a)(ii), (3)(a)(ii), (4)(a)(ii) and (5)(a)(ii)

43. Item 16 would insert new subparagraphs 58A(2)(a)(iii), (3)(a)(iii), (4)(a)(iii) and (5)(a)(iii) into the Customs Act. The effect of these amendments would be to add offshore electricity installations installed in the Commonwealth offshore area to the types of installations to which direct journeys to and from a place outside Australia are prohibited. This ensures that lawful journeys to and from offshore electricity installations are with a place inside Australia, which enables border security risks to be managed.

Item 17 - Subsection 61(1)

44. Subsection 61(1) of the Customs Act creates an offence for failing to facilitate the boarding of certain ships and installations where the boarding is authorised under the Act. Item 17 would repeal subsection 61(1) and substitute a new subsection to extend the existing offence to owners of an offshore electricity installation.

45. Boarding of the installation may be authorised, for example, by section 187, as would be amended by items 21 to 28.

46. The maximum penalty of 60 penalty units would remain the same as the penalties currently included for an offence against this subsection.

Item 18 - After paragraph 126A(2)(b)

47. Item 18 would insert a new paragraph 126A(2)(c) into the Customs Act. This new subparagraph would add offshore electricity installations to the types of installations that are taken to have not been exported from Australia when taken from a place in Australia to the Commonwealth offshore area for the purpose of being installed. The goods on the installation would also not be taken to have been exported.

48. See also subsection 126A(1) and section 126B, which would deal with the export of offshore electricity installations and associated goods, as these would be one kind of installation (see the definition of that expression as would be amended by item 4).

Item 19 - Paragraph 175(3B)(d)

49. Item 19 would repeal paragraph 175(3B)(d) and substitute it with a paragraph that would add offshore electricity installations to the types of installations covered by subsection 175(3B).

50. This subsection prohibits the transfer of goods within 500 metres of an installation between:

a.

a coastal ship or coastal aircraft; and

b.

a ship or aircraft engaged in making an international or prescribed voyage or flight.

51. This prohibition does not apply if permission of a Collector is given for the transfer.

52. Application of this provision to offshore electricity installations is necessary to ensure border security risks may be managed.

Item 20 - Subsection 183UA(1) (subparagraph (a)(i) of the definition of forfeited goods)

53. Item 20 would make an amendment to the definition of forfeited goods, which is defined for the purposes of Division 1 of Part XII of the Customs Act, in subsection 183UA(1) of that Act.

54. This amendment would add the new section 228C as another provision of the Act under which goods may be forfeited. Specifically, this covers overseas offshore electricity installations installed in the Commonwealth offshore area without permission from the Comptroller-General of Customs.

55. This is a consequential amendment to the insertion of section 228C by item 30. Provisions of Division 1 of Part XII deal with seizure of goods believed to be forfeited goods, and how those goods once seized may be dealt with. These provisions would apply to offshore electricity installations forfeited to the Crown under section 228C.

Items 21 to 25 - Section 187

56. Items 21 to 25 would make amendments to section 187 to bring it into line with modern Commonwealth legislative drafting practice, by including a conjunction at the end of every paragraph in the section.

Item 26 - After paragraph 187(e)

57. Item 26 would insert a new paragraph 187(ea) into the Customs Act. This new paragraph would give the power to board and search an Australian offshore electricity installation where it is subject to customs control, where there is a ship or aircraft that has come to the installation from a place outside Australia, or where an officer of Customs has reasonable grounds to believe there are goods that are subject to customs control.

58. Item 26 would insert a new paragraph 187(eb) into the Customs Act. This new paragraph would give the power to board and search an overseas offshore electricity installation where permission under section 5BA has been granted. This power would be exercised prior to the installation being installed in the Commonwealth offshore area (at which time it would become an Australian offshore electricity installation).

59. The power for officers of Customs to board these installations would enable the exercise of administrative or enforcement powers in relation to provisions of the Customs Act. This would be complemented by the powers in paragraphs 187(f) and (g) and section 195, as amended by items 27, 28 and 29, as well as by other powers in Customs Act (for example, the powers of detention and frisk search in Subdivision A of Division 1B of Part XII).

60. The owner of the offshore electricity installation would be required to facilitate the boarding of the ship by subsection 61(1), following amendments by item 17.

Item 27 - Paragraph 187(f)

61. Item 27 would insert references to paragraphs 187(ea) and (eb) into paragraph 187(f) of the Customs Act. This would give an officer of Customs the power to search:

a.

an Australian offshore electricity installation where it is subject to customs control, where there is a ship or aircraft that has come to the installation from a place outside Australia, or where an officer has reasonable grounds to believe there are goods that are subject to customs control; and

b.

an overseas offshore electricity installation in respect of which permission under section 5BA has been granted.

62. The power for officers of Customs to search these installations is further to the administration and enforcement of provisions of the Customs Act, e.g. to locate prohibited goods suspected of being on the installation.

Item 28 - Paragraph 187(g)

63. Item 28 would insert references to paragraphs 187(ea) and (eb) into paragraph 187(g) of the Customs Act. This would give an officer of Customs the power to secure any goods on:

a.

an Australian offshore electricity installation where it is subject to customs control, where there is a ship or aircraft that has come to the installation from a place outside Australia, or where an officer has reasonable grounds to believe there are goods that are subject to customs control; or

b.

an overseas offshore electricity installation in respect of which permission under section 5BA has been granted.

64. The power for officers to secure goods on these installations is further to the administration and enforcement of provisions of the Customs Act, e.g. to secure goods on the installation suspected of being prohibited goods.

Item 29 - Paragraph 195(1)(a)

65. Item 29 would insert references to paragraphs 187(ea) and (eb) into paragraph 195(1)(a) of the Customs Act. This would give an officer the power to question persons regarding any dutiable, excisable or prohibited goods they have in their possession if they are on:

c.

an Australian offshore electricity installation where it is subject to customs control, where there is a ship or aircraft that has come to the installation from a place outside Australia, or where an officer has reasonable grounds to believe there are goods that are subject to customs control; or

d.

an overseas offshore electricity installation in respect of which permission under section 5BA has been granted.

66. The power for officers to require persons on these installations to answer questions would be further to the administration and enforcement of provisions of the Customs Act, e.g. to discover information about whether any prohibited goods are located on the installation.

Item 30 - After section 228B

67. Item 30 would insert a new section 228C into the Customs Act. This new section would establish offshore electricity installations as one of the types of installations that are forfeited to the Crown if they are an overseas offshore electricity installation immediately prior to being installed and then installed without permission from the Comptroller-General of Customs.

68. Goods forfeited under section 228C would be forfeited goods following amendments to the definition of that expression in section 183UA made by item 20. Provisions of Division 1 of Part XII deal with seizure of goods believed to be forfeited goods (including installations covered by section 228C), and how those goods once seized may be dealt with.

Item 31 - Subsection 269T(1) (paragraph (a) of the definition of importer)

69. Item 31 would insert a reference to paragraph (f) into paragraph (a) of the definition of importer in section 269T of the Customs Act.

70. This amendment will make clear that paragraph (a) only applies where existing paragraph (b), (d) or new paragraph (f) do not apply.

Item 32 - Subsection 269T(1) (at the end of the definition of importer)

71. Item 32 would insert a new paragraph (f) into the definition of importer in section 269T of the Customs Act.

72. Paragraph (f) sets out two circumstances by which goods may be imported to Australia:

a.

where goods are taken from parts beyond the seas to an Australian offshore electricity installation; and

b.

where goods are on board an overseas offshore electricity installation at the time when it is installed in the Commonwealth offshore area.

73. In both circumstances, the amendment deems that the importer of those goods is the beneficial owner of the goods at the time when they are imported into Australia.

74. Paragraph (f) operates in a consistent manner to existing paragraphs (b) and (d), that deal with goods imported in relation to an Australian resources or sea installation (respectively).

75. Item 32 would also insert a new paragraph (g) into the definition of importer in section 269T of the Customs Act.

76. Paragraph (g) governs the importation of an overseas offshore electricity installation that becomes installed in Commonwealth offshore area. It deems that the importer of the installation is the beneficial owner of the installation at the time when it is imported into Australia.

77. Paragraph (g) operates in a consistent manner to existing paragraphs (c) and (e) that apply in relation to the importation of overseas resources installations and overseas sea installations (respectively).

Item 33 - Application provision

78. Item 33 is an application provision for the amendments to the Customs Act made by Schedule 1. This provision ensures that the Customs Act, as amended, would apply in relation to offshore electricity installations whether constructed, installed or decommissioned before or after the amendments commence. The amended provisions would only apply prospectively in relation to these installations.

Schedule 2 - Amendment of the Offshore Electricity Infrastructure Act 2021

Item 1 - Section 8

Following a recent change to the AAOs the Secretary of DCCEEW cannot choose to appoint the NOPTA as the Registrar under section 153 of the OEI Act. Likewise, the Registrar cannot be assisted by APS staff in the NOPTA Branch of the Department of Industry, Science and Resources (DISR) under section 158 of the OEI Act. This is because under the current text of the OEI Act, the person responsible for appointing the Registrar, the Secretary (being the Secretary of DCCEEW),^[1] must appoint an SES employee from the Department (being DCCEEW)^[2] as the Registrar. As the NOPTA is an SES employee in DISR^[3], the Secretary of DCCEEW cannot choose to appoint the NOPTA as the Registrar. Likewise, the Registrar may only be assisted by APS employees in the Department made available for this purpose by the Secretary, whereas the staff supporting the NOPTA are employees of DISR and would need to be made available by the Secretary of DISR.

79. Item 1 is one of several measures in the Bill to rectify this inflexibility in the original provisions of the OEI Act. It inserts a new definition of the "Registrar's Department" into the definitions clause at section 8 of the OEI Act. The "Registrar's Department" is defined as meaning the Department of State of the Commonwealth that the Registrar is an SES employee in. This covers the situation where the Registrar may be in a different Commonwealth Department from the "Department" for the purposes of the OEI Act, and defines that different Department for the purposes of items 13 and 15-20 below.

Item 2 - After paragraphs 10(3)(d) and 11(3)(d)

80. Item 2 of Schedule 2 provides greater clarity around the extent and reach of the OEI Act, by permitting certain infrastructure, structures or installations to be effectively excluded from the remit of the OEI Act by the making of regulations.

81. Section 15 of the OEI Act prohibits the construction, installation, operation, maintenance or decommissioning of offshore renewable energy infrastructure and offshore electricity transmission infrastructure in the Commonwealth offshore area without a licence. Sections 10 and 11 of the OEI Act provide definitions of the terms "offshore renewable energy infrastructure" and "offshore electricity transmission infrastructure" respectively. Subsection (3) of both sections provides a list of things that are not considered offshore renewable energy infrastructure or offshore electricity transmission infrastructure.

82. Item 2 adds an additional paragraph to both subsections, comprising "any infrastructure, structure or installation of a kind prescribed by the regulations". The effect of this is to enable regulations to specify that certain infrastructure, structures or installations do not comprise offshore renewable energy infrastructure or offshore electricity transmission infrastructure, thereby effectively excluding such things from the remit of the OEI Act.

83. As the OEI industry develops and matures, it may become apparent that certain infrastructure, structures or installations should be excluded from the OEI licensing regime. The regulation making power provided by item 2 is essential, and will provide flexibility to ensure that things or activities that do not need to be regulated can be appropriately exempted, thereby reducing regulatory burden. Given the industry is yet to be established, it cannot be known what technologies may be developed or what matters could arise that would require an exemption from being regulated under the framework. Building in flexibility will ensure the framework remains fit for purpose as the offshore industry develops. Any regulations ultimately made under item 2 would be developed in consultation with relevant stakeholders, including industry, local communities and competing users of the offshore area.

Item 3 - Subparagraph 72(1)(c)(ii)

84. Item 3 of Schedule 2 corrects a minor typographical error in the OEI Act. Currently, subparagraph 72(1)(c)(ii) incorrectly refers to the transfer of a "notice" rather than the transfer of a licence. Item 3 amends this error.

Item 4 - After paragraph 114(2)(d)

85. Item 4 of Schedule 2 provides specific powers to make regulations that would more fully detail the design notification process, as originally intended.

86. Sections 114 and 115 of the OEI Act provide a framework for the preparation of management plans by licence holders and the consideration and approval of such plans by the Regulator. Licence holders will not be able to conduct any activities under their licences until they have had a management plan approved by the Regulator.^[4]

87. As part of the process of developing management plans, it is intended that licence holders will need to submit design notifications to the Regulator under regulations^[5] made for the purposes of paragraph 114(2)(d) of the OEI Act. It is also intended that the Regulator should be able to consider and provide feedback on such design notifications.

88. Item 4 clarifies that this can occur, by providing that the licensing scheme (made under regulations) may outline "procedures for the Regulator to assess and provide feedback" on a design submitted under regulations made for the purposes of paragraph 114(2)(d).

89. Any regulations ultimately made under item 4 would be developed in consultation with relevant stakeholders, including industry.

Item 5 - At the end of Division 2 of Part 1 of Chapter 4

90. Item 5 of Schedule 2 ensures that the Regulator can publish certain information for the purposes of facilitating transparency in the context of the management plans of licence holders.

91. As explained above at item 4 of Schedule 2, licence holders will not be able to conduct any activities under their licences until they have had a management plan approved by the Regulator. It is expected that there may be circumstances where, for the sake of transparency or to allow public consultation to occur on a proposed management plan, the Regulator may want to publish a summary of such a plan.

92. Item 5 clarifies that this can occur, by providing that the Regulator may publish, on its website, a summary of a plan submitted for approval or a summary of a management plan that has been approved. For clarity, item 5 does not permit the publication of a proposed plan or approved management plan in full, as this may create issues around confidentiality or commercial sensitivity. It is also expected that the Regulator would work with licence holders before publishing summaries under item 5, and would seek to avoid publishing any information that might unreasonably compromise the licence holder or create issues around confidentiality or commercial sensitivity.

Item 6 - At the end of Division 3 of Part 1 of Chapter 4

93. Item 6 of Schedule 2 provides more specific powers to make regulations that would detail an activity notification process, as originally intended.

94. Item 6 provides that the regulations may prescribe requirements for a licence holder to notify the Regulator before commencing, or after completing, an offshore infrastructure activity^[6] in the relevant licence area. For clarity, section 306 of the OEI Act would allow for any regulations made under item 6 to prescribe offences, with associated penalties, for the breach of any such notification requirements. It is appropriate for such provisions (including possible offences) to be prescribed by regulations, as the OEI industry is a new and emerging industry and it is not yet clear how a notification regime should apply. As set out in the Explanatory Memorandum for the Offshore Electricity Infrastructure Bill 2021, the OEI scheme governs a high hazard activity with potentially very serious health and safety or environmental consequences attaching to contraventions of obligations. The emerging nature of the industry means that there will be a need to adapt and tailor this regime over time, meaning that it is appropriate for offences to be prescribed by regulations. Regulations under item 6 may also include identifying the circumstances in which compulsory notifications will not be required.

95. Any regulations ultimately made under item 6 would be developed in consultation with relevant stakeholders, including industry.

Item 7 - Paragraphs 117(3)(a) and (3)(c) and (4)(d)

96. Item 7 of Schedule 2 provides for the Minister rather than the Regulator to decide what forms and amounts of financial security licence holders must provide and when these obligations cease.

97. Section 117 of the OEI Act provides that licence holders must provide financial security to the Commonwealth in certain circumstances. Section 117 also leaves further financial security matters to be prescribed by regulations. Specifically, paragraph 117(3)(a) provides that the regulations may permit the Regulator to determine what constitutes an acceptable form of financial security, while paragraph 117(3)(c) and paragraph 117(4)(d) provide that the regulations may permit the Regulator to determine when financial security is no longer required or when it may be reduced.

98. Given that financial security must be provided to and is held by the Commonwealth, and can only be recovered by the Commonwealth,^[7] it is more appropriate that the Commonwealth (rather than the Regulator, which as a corporate Commonwealth entity is not formally part of the Commonwealth) has the power to make decisions in relation to financial security. Item 7 makes this change, by altering the relevant decision-maker from the Regulator to the Minister in the context of paragraphs 117(3)(a) and (c) and (4)(d). The Minister still retains the discretion to delegate any of their powers under item 7 to the CEO of the Regulator under paragraph 303(1)(a) of the OEI Act.

Items 8 and 9 - Section 152 and paragraph 153(2)(a)

99. For the reasons explained above at item 1 of Schedule 2, item 9 of Schedule 2 permits the Secretary to appoint an SES employee of any Commonwealth Department as the Registrar.

100. Item 9 replaces "the Department" in paragraph 153(2)(a) of the OEI Act with "any Department of State of the Commonwealth". While the immediate intention of this provision is to give the Secretary the option of appointing the NOPTA (as assisted by staff supporting the NOPTA in the Department the NOPTA is in) as the Registrar, the Secretary may appoint any SES employee in any Commonwealth Department, and is not constrained to appointing the NOPTA. For clarity, despite the change made to the nature of the "Department" in paragraph 153(2)(a), it is still intended that appointments will be made by the Secretary of the Department (currently DCCEEW) under paragraph 153(2)(b). It is also expected that the Secretary will consult with their relevant counterpart before appointing an SES employee in another Department.

101. Item 8 replaces "the Department" in section 152 of the OEI Act with "a Department of State of the Commonwealth". Section 152 is an overview provision, and this change is necessary to reflect the fact that the Secretary may now appoint an SES employee of any Commonwealth Department as the Registrar under item 9.

Item 10 - Paragraphs 156(1)(a) and (b)

102. For the reasons explained above at item 1 of Schedule 2, item 9 of Schedule 2 permits the Secretary to appoint an SES employee of any Commonwealth Department as the Registrar. The Bill also makes further amendments as necessary to facilitate this amendment throughout the OEI Act. One such further amendment is made by item 10 of Schedule 2.

103. Item 10 replaces "the Department" in paragraphs 156(1)(a) and (b) of the OEI Act with "any Department of State of the Commonwealth". Section 156 currently provides for the Registrar to delegate its functions or powers to certain employees in the Department. If the Secretary uses their power as amended by item 9 to appoint a Registrar from another Department, this Registrar may prefer to delegate their functions or powers to employees in this other Department rather than the Secretary's Department. Item 10 makes this possible by widening the scope of employees that functions or powers can be delegated to.

Items 11 and 12 - Section 158

104. For the reasons explained above at item 1 of Schedule 2, item 9 of Schedule 2 permits the Secretary to appoint an SES employee of any Commonwealth Department as the Registrar. Items 11 and 12 further permit any Secretary to make certain employees from their Department available to assist the Registrar.

105. Items 11 and 12 amend section 158 of the OEI Act. Section 158 currently permits the Secretary to make APS employees in the Department available to assist the Registrar. If the Secretary uses their power as amended by item 9 to appoint a Registrar from another Department, this Registrar may prefer to be assisted by APS employees in this other Department rather than the Secretary's Department. Item 12 makes this possible by providing that other Secretaries can provide APS employees from their Departments to assist the Registrar. Item 11 modifies the heading to section 158 to reflect the changes made by item 12.

106. While the immediate intention of these provisions is to permit staff supporting the NOPTA in the Department the NOPTA is in to be made available to assist the Registrar, the Registrar may be assisted by APS employees in any Commonwealth Department, and is not constrained to being assisted by staff supporting the NOPTA. It is also expected that a Secretary will consult with the Secretary of the Department that the Registrar is in (if applicable) and with the Registrar themselves before making an APS employee in their Department available to assist the Registrar.

Item 13 - At the end of section 171

107. For the reasons explained above at item 1 of Schedule 2, item 9 of Schedule 2 permits the Secretary to appoint an SES employee of any Commonwealth Department as the Registrar. The Bill also makes further amendments as necessary to facilitate this amendment throughout the OEI Act. One such further amendment is made by item 13 of Schedule 2.

108. Item 13 amends section 171 of the OEI Act. Section 171 establishes the Offshore Infrastructure Registrar Special Account (OIR account) as a special account for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act). A special account is an appropriation mechanism used to set aside money for specific Commonwealth purposes. Under the PGPA Act, a special account is managed by the relevant accountable authority for the account. Since no alternative arrangement is specified, the OIR account is maintained by the Department, for whom the accountable authority is currently the Secretary of DCCEEW.^[8] However, under sections 171-173 of the OEI Act the Registrar will in practice be responsible for operating the OIR account on a day-to-day basis (for example, to account for fees or levies paid to the Registrar), and it will be necessary for the Secretary to delegate their management functions as necessary and appropriate to permit the Registrar to take this role.

109. If the Secretary uses their power as amended by item 9 to appoint a Registrar from another Department, this Registrar may not be able to take the administrative role intended for it in relation to the OIR account, as the Registrar will be in a different Department to the Secretary. Item 13 corrects this misalignment by providing that the Secretary of the Department that the Registrar is in will be the accountable authority for the purposes of the PGPA Act in relation to the OIR account. This will then ensure that all necessary delegations can be made to grant the Registrar its administrative role in relation to the OIR account.

Item 14 - At the end of section 189

110. Item 14 of Schedule 2 clarifies that certain fees paid under the regulations can be refunded as originally intended.

111. The OEI framework has been designed to be fully cost recovered, meaning that fees will be charged for certain services rendered. Subsection 189(1) of the OEI Act provides for the charging of fees in certain circumstances, with the amount of such fees to be determined in accordance with regulations made under subsection 189(2). However, there may be situations where services have not or have only been partially rendered (for example, where a licence application is withdrawn by an applicant before it is considered by the Minister). In such situations, the relevant fee payer should be entitled to a full or partial refund for the fee paid.

112. Item 14 clarifies that this can occur, by providing that the regulations may permit the remittal or refund of all or part of a fee charged under section 189.

Items 15 and 16 - Section 215

113. For the reasons explained above at item 1 of Schedule 2, item 9 of Schedule 2 permits the Secretary to appoint an SES employee of any Commonwealth Department as the Registrar. The Bill also makes further amendments as necessary to facilitate this amendment throughout the OEI Act. One such further amendment is made by items 15 and 16 of Schedule 2.

114. Items 15 and 16 amend section 215 of the OEI Act. Section 215 provides that certain provisions of the OEI Act are subject to the infringement notice regime under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act), and further provides for when the Registrar will be the infringement officer in relation to these provisions. Subsections 215(3) and (5) then provide that the Secretary will be the relevant chief executive in situations where the Registrar is an infringement officer, and permit the Secretary to delegate their powers and functions as the relevant chief executive to certain employees in the Department.

115. If the Secretary uses their power as amended by item 9 to appoint a Registrar from another Department, it would be more appropriate for the Secretary from this other Department to be the relevant chief executive, and for this other Secretary to delegate their powers and functions as the relevant chief executive to certain employees in their own Department. Item 15 makes this possible by providing that the Secretary of the Department that the Registrar is in will be the relevant chief executive for the purposes of paragraph 215(3)(b) of the OEI Act. Item 16 makes a consequential amendment so that the Secretary of the Department that the Registrar is in can delegate their powers and functions as the relevant chief executive, and only to certain employees in their own Department.

Item 17 - Subsection 219(3)

116. For the reasons explained above at item 1 of Schedule 2, item 9 of Schedule 2 permits the Secretary to appoint an SES employee of any Commonwealth Department as the Registrar. The Bill also makes further amendments as necessary to facilitate this amendment throughout the OEI Act. One such further amendment is made by item 17 of Schedule 2.

117. Item 17 amends section 219 of the OEI Act. Subsection 219(3) currently requires certain enforceable undertakings given to the Registrar to be published on the Department's website. However, if the Secretary uses their power as amended by item 9 to appoint a Registrar from another Department, it would be more appropriate for such undertakings to be published on the website of this other Department. Item 17 makes this possible by replacing "Department's website" in subsection 219(3) with "website of the Registrar's Department".

Items 18 and 19 - Section 290 and after paragraph 293(1)(b)

118. For the reasons explained above at item 1 of Schedule 2, item 9 of Schedule 2 permits the Secretary to appoint an SES employee of any Commonwealth Department as the Registrar. The Bill also makes further amendments as necessary to facilitate this amendment throughout the OEI Act. One such further amendment is made by items 18 and 19 of Schedule 2.

119. Item 19 adds "the Secretary of the Registrar's Department" to the list of people mentioned in subsection 293(1). This list specifies a group of people who may share certain information or documents amongst themselves for the purposes of exercising powers under or otherwise administering the OEI Act. The list currently comprises the Minister, the Secretary, the Regulator and the Registrar.

120. If the Secretary uses their power as amended by item 9 to appoint a Registrar from another Department, there may be circumstances where the Secretary of this other Department needs to give or receive information or documents in the context of exercising powers under or otherwise administering the OEI Act.^[9] Item 19 makes this possible by adding the Secretary of the Department that the Registrar is in to the list of people who may share information or documents amongst themselves under section 293 of the OEI Act.

121. Item 18 adds "the Secretary of the Registrar's Department" after "the Secretary" in section 290 of the OEI Act. Section 290 is an overview provision, and this change is necessary to reflect the fact that the Secretary of the Department that the Registrar is in may now give or receive certain information or documents under item 19.

Item 20 - Paragraph 303(1)(c)

122. For the reasons explained above at item 1 of Schedule 2, item 9 of Schedule 2 permits the Secretary to appoint an SES employee of any Commonwealth Department as the Registrar. The Bill also makes further amendments as necessary to facilitate this amendment throughout the OEI Act. One such further amendment is made by item 20 of Schedule 2.

123. Item 20 amends section 303 of the OEI Act. Subsection 303(1) currently allows the Minister to delegate their functions or powers under the OEI Act to a list of specified people, comprising the CEO of the Regulator,^[10] the Secretary, or certain employees in the Department. It was intended that the last of these listed people (i.e. certain employees in the Department) would permit the Minister to delegate their functions or powers to the Registrar, as it was expected that the Registrar would be an SES employee in the Department.^[11]

124. If the Secretary uses their power as amended by item 9 to appoint a Registrar from another Department, on the current text of section 303 the Minister would be unable to delegate their functions or powers to this Registrar under paragraph 303(1)(c), as this Registrar will not be an employee in the Department. Item 20 corrects this misalignment by adding certain employees in the Department that the Registrar is in to the list of people who the Minister may delegate their functions or powers to under section 303.