Offshore Petroleum Amendment (Greenhouse Gas Storage) Act 2008 (117 of 2008)
Schedule 1 Amendments relating to greenhouse gas storage etc.
Offshore Petroleum Act 2006
200 After Part 4.2
Insert:
Part 4.2A - Directions relating to greenhouse gas
Division 1 - Simplified outline
316-304 Simplified outline
The following is a simplified outline of this Part:
* The responsible Commonwealth Minister may give a direction to a greenhouse gas titleholder. A direction may extend to other persons.
* If there is a breach of a direction given by the responsible Commonwealth Minister under Chapter 2A, this Chapter or the regulations, the responsible Commonwealth Minister may do anything required by the direction to be done, and the responsible Commonwealth Minister's costs may be recovered from the person to whom the direction was given.
* In a prosecution for an offence relating to a breach of a direction given by the responsible Commonwealth Minister under Chapter 2A, this Chapter or the regulations, it is a defence if the defendant proves that the defendant took all reasonable steps to comply with the direction.
Division 2 - general power to give directions
316-305 General power to give directions
Definitions
(1) In this section:
greenhouse gas matter means:
(a) exploring for a potential greenhouse gas storage formation; or
(b) exploring for a potential greenhouse gas injection site; or
(c) the injection of a greenhouse gas substance into the seabed or subsoil of an offshore area; or
(d) the storage of a greenhouse gas substance in the seabed or subsoil of an offshore area.
title means:
(a) a greenhouse gas assessment permit; or
(b) a greenhouse gas holding lease; or
(c) a greenhouse gas injection licence; or
(d) a greenhouse gas search authority; or
(e) a greenhouse gas special authority.
Direction to registered holder
(2) The responsible Commonwealth Minister may, by written notice given to the registered holder of a title, give the registered holder a direction as to any matter in relation to which regulations may be made.
Note 1: Section 444 is the main provision setting out matters in relation to which regulations may be made.
Note 2: For enforcement, see section 316-307.
Extended application of direction
(3) A direction given under this section to a registered holder applies to the registered holder and may also be expressed to apply to:
(a) a specified class of persons, so long as the class consists of, or is included in, either or both of the following classes:
(i) employees or agents of, or persons acting on behalf of, the registered holder;
(ii) persons performing work or services, whether directly or indirectly, for the registered holder; or
(b) any person (other than the registered holder or a person to whom the direction applies in accordance with paragraph (a)) who is:
(i) in an offshore area for any reason touching, concerning, arising out of, or connected with, a greenhouse gas matter; or
(ii) in, on, above, below or in the vicinity of a vessel, aircraft, structure or installation, or equipment or other property, that is in the offshore area for a reason of that kind.
(4) If a direction so expressed is given, the direction is taken to apply to each person included in the specified class mentioned in paragraph (3)(a) or to each person who is in the offshore area as mentioned in paragraph (3)(b), as the case may be.
Note: For notification requirements, see section 316-306.
Additional matters
(5) A direction under this section has effect, and must be complied with, despite:
(a) any previous direction under this section; and
(b) anything in the regulations or the applied provisions.
Note: For applied provisions , see subsection 59(2).
(6) A direction under this section may make provision in relation to a matter by applying, adopting or incorporating (with or without modification) a code of practice or standard contained in an instrument:
(a) as in force or existing at the time when the direction takes effect; or
(b) as in force or existing from time to time;
so long as the code of practice or standard is relevant to that matter.
(7) To avoid doubt, subsection (6) applies to an instrument, whether issued or made in Australia or outside Australia.
(8) A direction under this section may prohibit the doing of an act or thing:
(a) unconditionally; or
(b) subject to conditions, including conditions requiring the consent or approval of a person specified in the direction.
Directions
(9) If paragraph (3)(b) applies to a direction under this section, the direction is a legislative instrument.
(10) If paragraph (3)(b) does not apply to a direction under this section, the direction is not a legislative instrument.
316-306 Notification of a direction that has an extended application
Notification
(1) If a direction under section 316-305 applies to:
(a) a registered holder; and
(b) a person referred to in paragraph 316-305(3)(a);
the registered holder must cause a copy of the notice by which the direction was given to be:
(c) given to that other person; or
(d) displayed at a prominent position at a place in the offshore area frequented by that other person.
(2) If a direction under section 316-305 applies to:
(a) a registered holder; and
(b) a person referred to in paragraph 316-305(3)(b);
the registered holder must cause a copy of the notice by which the direction was given to be displayed at a prominent position at a place in the offshore area.
(3) If a direction under section 316-305 applies to:
(a) a registered holder; and
(b) a person referred to in paragraph 316-305(3)(b);
the responsible Commonwealth Minister may, by written notice given to the registered holder, require the registered holder to cause to be displayed:
(c) at such places in the offshore area; and
(d) in such manner;
as are specified in the notice, copies of the notice by which the direction was given.
Offence
(4) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1), (2) or (3); and
(b) the person omits to do an act; and
(c) the omission breaches the requirement.
Penalty for contravention of this subsection: 50 penalty units.
316-307 Compliance with directions
Offence
(1) A person commits an offence if:
(a) the person is subject to a direction under section 316-305; and
(b) the person engages in conduct; and
(c) the person's conduct breaches the direction.
Penalty: 100 penalty units.
(2) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Defence
(3) If:
(a) a direction under section 316-305 applies to:
(i) a registered holder; and
(ii) another person; and
(b) the other person is prosecuted for an offence against subsection (1) in relation to a breach of the direction; and
(c) the other person adduces evidence that the other person did not know, and could not reasonably be expected to have known, of the existence of the direction;
the other person is not to be convicted of the offence unless the prosecution proves that the other person knew, or could reasonably be expected to have known, of the existence of the direction.
Division 3 - responsible Commonwealth Minister may take action if there is a breach of a direction
316-308 Responsible Commonwealth Minister may take action if there is a breach of a direction
Action by responsible Commonwealth Minister
(1) If:
(a) a person is subject to a direction given by the responsible Commonwealth Minister under:
(i) Chapter 2A; or
(ii) this Chapter; or
(iii) Part 5A.1; or
(iv) the regulations; and
(b) the person engages in conduct; and
(c) the person's conduct breaches the direction;
the responsible Commonwealth Minister may do any or all of the things required by the direction to be done.
Recovery of costs and expenses incurred by the responsible Commonwealth Minister
(2) Costs or expenses incurred by the responsible Commonwealth Minister under subsection (1) in relation to a direction are:
(a) a debt due to the Commonwealth by the person subject to the direction; and
(b) recoverable in a court of competent jurisdiction.
Exception - direction that has an extended application
(3) If:
(a) a direction under section 316-305 applies to:
(i) a registered holder; and
(ii) another person; and
(b) an action under subsection (2) relating to the direction is brought against the other person; and
(c) the other person adduces evidence that the other person did not know, and could not reasonably be expected to have known, of the existence of the direction;
the other person is not liable under subsection (2) unless the plaintiff proves that the other person knew, or could reasonably be expected to have known, of the existence of the direction.
Defence
(4) In an action under subsection (2), it is a defence if the defendant proves that the defendant took all reasonable steps to comply with the direction.
Division 4 - Defence of taking reasonable steps to comply with a direction
316-309 Defence of taking reasonable steps to comply with a direction
In a prosecution for an offence in relation to a breach of a direction given by the responsible Commonwealth Minister under:
(a) Chapter 2A; or
(b) this Chapter; or
(c) Part 5A.1; or
(d) the regulations;
it is a defence if the defendant proves that the defendant took all reasonable steps to comply with the direction.
Note: The defendant bears a legal burden in relation to the matter in this section - see section 13.4 of the Criminal Code.