Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

As I indicated in my speech in the second reading debate, the Greens have a number of amendments to the Offshore Petroleum and Greenhouse Gas Storage Amendment (National Regulator) Bill 2011. While we are supportive in principle, as I outlined in my speech, we think improvements can be made to the bill—and improvements not only to the bill but also that offer better protection for the environment. Given the extra enviro­nmental responsibility that NOPSEMA is going to have, we believe it is important that there be environmental expertise on this new regulator. One of my amendments is about increasing the membership of NOPSEMA, and others go to who is the environmental decision maker in terms of making decisions under the EPBC Act. Some time ago I outlined some concerns about that. I will briefly go into those. Hopefully I will not hold up the chamber too long, but I do want some explanations from the government and some further detail about a couple of issues. I now move amendment (2) on sheet 7119:

(2) Schedule 2, page 83 (after line 21), after item 427, insert:

427A Paragraph 656(1)(b)

Omit "4 or 6", substitute "at least 5, and not more than 7,".

This amendment increases the membership of the NOPSEMA board to make sure there is somebody there with environmental exper­tise. As I said, I understand that you do not represent organisations on boards anymore, but the Greens believe that we do need this expertise in the environment on the NOPSEMA board. I commend the amendment to the chamber.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

The government will be supporting the amendment to increase the number of NOPSEMA board members to allow environmental expertise to be added to the board. The government understands the arguments from the Greens in this matter. We do think it is a reasonable approach so we are supportive of the amendment.

Question agreed to.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (3) on sheet 7119 together:

(1) Clause 2, page 3 (at the end of the table), add:

(3) Page 147 (after line 31), at the end of the bill, add:

Schedule 7—Other amendments

Offshore Petroleum and Greenhouse Gas Storage Act 2006

1 After subsection 478(2)

Insert:(2A)   The Titles Administrator must not approve the transfer of a title if the transferee, or any of the transferees, is the subject of a Commission of inquiry that is being conducted, or is to be conducted, by a person appointed under section 780A.

2 Application—transfer of title

The amendment made by item 1 of this Schedule applies in relation to Commissions of inquiry established on or after the commencement of that item, whether the application for a transfer of title was made before, on or after that commencement.

3 At the end of Part 9.1 of Chapter 9

Add:

747A Decisions under this Act must not be the subject of certain declarations

     A decision or class of decisions under this Act must not be:

(a) specified as an action or a class of actions; or

(b) accredited as a management arrangement or authorisation process;

for the purposes of a declaration under section 33 of the Environment Protection and Biodiversity Conservation Act 1999.

Note:   Section 33 of the Environment Protection and Biodiversity Conservation Act 1999 allows a declaration to be made that certain environmental actions do not require approval under the Act.

4 Application—decisions under the Act

The amendment made by item 3 of this Schedule applies in relation to declarations made on or after the commencement of that item, whether the decision was made before, on or after that commencement.

5 Before section 780A

Insert:

780AA Applications under this Act may be suspended while Commission of inquiry underway

(1)   The Minister may suspend consideration of an application made under this Act by an entity if the entity is the subject of a Commission of inquiry that is being conducted, or is to be conducted, by a person appointed under section 780A.

(2)   The suspension continues to have effect until the earlier of the following days:

  (a)   the Commission of inquiry is completed;

  (b)   the Minister revokes the suspension.

6 Application—suspension of applications

The amendment made by item 5 of this Schedule applies in relation to Commissions of inquiry established on or after the commencement of that item, whether the application was made before, on or after that commencement.

7 After Part 9.7 of Chapter 9

Insert:

Part 9.7A—Notification of vacated areas

777A Notification of vacated areas

     The Titles Administrator must notify the Minister administering the Environment Protection and Biodiversity Conservation Act 1999 of all vacated areas as soon as practicable after the areas come into existence.

8 Application—notifications

The amendment made by item 7 of this Schedule applies in relation to vacated areas that come into existence on or after the commencement of that item.

These amendments add new provisions to enable the government to choose not to grant licences to companies where there are significant question marks over their ability to manage oilfields when they have caused significant accidents, for example like the Montara incident. This was an issue I raised during the course of the inquiry into PTTEP, where PTTEP were allowed to acquire leases and titles when they were being investigated for what was a very serious incident. This occurred with the granting authorities knowing full well, from the company's own submissions to the inquiry and from the transcript of the inquiry, that there were serious concerns about PTTEP's operations.

Specifically the amendments insert a new section, 478(2A), providing that the Titles Administrator must not approve the transfer of a title where the transferee is the subject of an inquiry being conducted under part 9.10A. They also insert a new section 780AA, specifically allowing the minister to suspend consideration of applications under the act while an entity is being similarly investigated. It is important to note that these provisions are triggered when an entity is under investigation under the commission of inquiry provisions of part 9.10A. This requires a 'significant incident', which we believe is an appropriately high threshold.

These provisions deal with the fact that companies, despite the fact that they may have caused a significant incident, can still be granted titles. I understand there were issues under PTTEP where in some instances the titles were requiring transfers—rather than being granted, the licences were being transferred. We have sought to deal with that through these amendments. This is to ensure that we treat appropriately companies who have caused serious incidents, or it looks like they have caused serious incidents to the point where for example there is a comm­ission of inquiry to look into it. We still have this farcical situation in this country where these companies can acquire further licences.

We believe these are sensible amend­ments. They protect our environment—and this is about protecting our environment. That is what this new regulator is supposed to be doing—managing the sector and ensur­ing environmental management. To us, this is common sense. We do not give someone we think has caused a serious incident further licences when we do not know their capacity to safely manage their operations. We believe this significantly improves the regulation of the industry and I commend the amendments to the chamber.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

The government will not be supporting amendments (1) and (3). We have a significant policy concern with the proposed amendments relating to entities subject to a commission of inquiry. We believe there are legal problems with the way the amendments will work in practice. It was a deliberate policy decision when providing for commissions of inquiry into significant offshore incidents that they focus on causes of adverse events and how to prevent similar events happening in the future, not to allocate blame to particular companies. This is for the courts and other legal processes to determine. Therefore, we believe your pro­posals to prohibit the Titles Administrator from approving transfers involving an entity subject to a commission of inquiry, and provide for formal decisions by the minister to suspend applications from entities subject to a commission of inquiry, would under­mine the no-blame nature of the inquiry. I also note that the minister can already effectively suspend applications through existing operational and administrative means, as was done during the Montara inquiry. Similarly the Titles Administrator could refrain from approving a transfer.

It should also be noted that entities are not the subject of the commissions of inquiry; incidents are the subject of the inquiries. So the proposed amendments fail to make clear what relationship between an incident and a particular company would justify making a decision against the company. The causes of the incidents can be complex and the minister would have to prejudge issues before the facts had been established by the inquiry. It is also unclear how references to an entity would work, given that applications are usually made by a group of companies.

With respect to the amendment relating to declarations under the Environment Protect­ion and Biodiversity Conservation Act 1999, the Productivity Commission review of regulatory burden on the upstream petroleum oil and gas sector and the indepen­dent review of the Environment Protection and Biodiversity Conservation Act 1999 both recommended streamlining environmental approval processes under the EPBC Act and the offshore petroleum legislation. Therefore the government cannot agree to an amend­ment that would preclude the possibility of streamlining environmental approvals pro­cesses. Having said that, the government accepts unequivocally that decisions on matt­ers that have been determined to be matters of national environmental significance that fall within the scope of the EPBC Act must be made by the minister responsible for the administration of that act. The government does however contemplate NOPSEMA pro­viding the EPBC Act minister advice on such matters where relevant to offshore petroleum operations regulated by NOPSEMA. The weight which that minister attaches to such advice will depend upon the rigor with which NOPSEMA prepares such advice and the respect NOPSEMA has earned with the EPBC Act minister's department as a result of previous advice tendered in relation to such matters.

In regard to notification of vacated areas, as part of its consideration of offshore marine parks policy, the government has been giving preliminary consideration to the possibility that the area defined by a petroleum title immediately adjacent to a marine protected area that is surrendered or terminated be reassessed for possible inclu­sion in that protected area. This assessment has made it clear that such a policy would not be free from substantial difficulties and complexity and should not be introduced without detailed consultation with stakehold­ers. While the government will not support this amendment at this time, it will continue to give consideration to the policy behind it. For those reasons, the government does not support the amendments.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I indicate on behalf of the opposition that, for reasons somewhat simi­lar to those outlined by Senator Sherry on behalf of the government, the Greens amend­ments do not enjoy the support of the opposition.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The minister has gone to some of the issues I was going to subsequently ask some questions about. I did not actually go into those and I apologise. Amendment (3) covers a multi­tude of changes, which I was going to handle sequentially. If the minister will bear with me, I do want to ask some questions about each of the changes.

Can we go back to the issue around transferability of titles and the comment the minister made about PTTEP. If I understood correctly, processes with PTTEP are being suspended. If I recollect correctly, PTTEP were granted the transfer of some licences and then were subsequently applying for other licences as well.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

My advice is that it was actually companies that were transferred, rather than an ownership change. Companies were transferred as distinct from—and it is an important distinction—the ownership being transferred.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

In other words, when PTTEP changed from one entity to another—is that what you are saying?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

Yes, the ownership of the company changed from that which had existed—I am not sure who the ownership was with at that time; I do not recollect—to another totally new owner, a different owner. That was the change that occurred. The registered company, the proprietor, was still the same. It was the overall ownership of the company that changed.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you for that clarification; I understand where you are coming from now. The minister can expect some further questions on notice, because that ownership had changed about nine months or so prior to the Montara incident and PTTEP, I understood, were subsequently involved in a number of other licence transfers. But I may put those questions on notice.

The point here is that, whether it is PTT or not, there is potential under the act at the moment for companies which have been involved in an incident to apply for licences. I understand the distinction that the minister was making between the incident and the company, but in this particular incident there were pretty clear reasons for concern about the operations of this and associated comp­anies—certainly from the evidence that was coming out in the commission of inquiry—enough, I would have thought, to make the government concerned about granting licences to those same parties until the matter was cleared up.

Hopefully this sort of incident will never happen again in this country, but you can never say never. Is the minister saying that he believes there is already enough power under the act, if the minister chooses to use it, to suspend somebody's application or not grant somebody an application because they have been involved in a previous incident or in an ongoing incident that is yet to be resolved?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

Where there is a change of ownership—that is the actual ownership of the entity, the company—yes, the minister does have the power. However, the minister cannot prejudge, as I said in my earlier remarks, the outcome of an inquiry or some other equivalent judicial process and make a decision to exercise that power prior to the outcome and conclusion of those processes.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I will try to finish this because I know we want to get it finished, but I want to be clear and on the record. Does that mean that you believe the act does not enable the minister to do that or are you saying that that is the way the present minister would choose to implement the act?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

A responsible and cau­ious minister would administer that power under the act in the way I have described.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I thank you for that clarification. I will ask just one more question on this area, then I promise I will move on. Under the current provisions of the act, if an incident were sufficiently significant—and I would maintain that Montara was—and if there were clear liability with a company or that company had clearly caused the accident, is there power for the minister to say, prior to a commission of inquiry, 'No, we will not grant that lease because of the seriousness and significance of the issues involved in this incident'? That power would not, of course, be as clear as we were trying to make it with this amendment, but is it there under the current act?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

Yes, the power is there under the act, but the minister would approach such a decision to exercise that power—very obviously, I think—with great caution.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I thank the minister for his answer. I will now move on to items 3 and 4 under amendment (3), which deal with the issues around the prohibition of decisions and actions under the Offshore Petroleum Act from being accredited under the Environment Protection and Biodiversity Conservation Act. As I said in the second reading debate, we are very concerned that we do not want to see the environment minister or the environment department being sidelined during the assess­ment of the environmental implications of offshore oil and gas operations.

While I acknowledge that the amendments to the regulatory regime proposed by the government do not themselves address the role of the environment minister or say that NOPSEMA will take that role over, we are deeply concerned to ensure that there is no potential for the resources minister, at any time, to accredit NOPSEMA for this process under the act. In other words, what we are trying to do is ensure that the role of the environment minister and environment dep­artment is always paramount in terms of environmental assessment and that the decision-making power is not delegated to NOPSEMA. The minister has said that the government are not going to support our amendments, so my question to the govern­ment is: can I have their guarantee that this government—I appreciate that you cannot bind future governments, which is our concern—will not seek to make NOPSEMA a delegated or accredited authority under the EPBC Act?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I do not think I can add a great deal more to what I said previously, but we do acknowledge that the environment minister, under the EPBC Act, can, on advice on such matters, exercise his or her authority.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Can I paraphrase to say 'No, you won't give us that assurance'?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I have given you the assurance within the context and the para­meters I have outlined to the Senate. That is the extent to which I can give what you would describe as an assurance.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Just for the record, you can guarantee we are going to be watching this like a hawk to ensure that this does not happen.

I will go to item 7, which requires the Titles Administrator to notify the environ­ment minister when the titles have been vacated. This would allow the environment minister to easily know of and consider marine areas for further protection when it is clear that the areas are not of interest to resource companies. Australia is embark­ing—and I touched on this in a speech I gave in this place yesterday—on what I hope is a rigorous exercise to put in place a system of marine protected areas around this country. Again in this place yesterday we heard of the values of the marine environment and we heard of the need for marine protection. We understand of course, and continue to express our concern about, resource exploitation overriding the need for marine protection, but where an area has been vacated by the resource sector we think it is fair enough that the minister be notified that the area has become available, which would facilitate their consideration of whether that area should be included in a marine protected area of some form.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

Again, I do not think I can add a great deal more to my previous comments. However, firstly I would empha­sise that this government—and, I have to acknowledge, the previous government under former Prime Minister Howard—believe conceptually that what you are suggesting should be considered and could be possible. However, there are some quite substantial difficulties and complexities around implementation. We as a government do not rule out this approach, but I am advised there is a good deal of work invol­ved to come to a robust design of such a regulatory and legislative, as I would assume it would require, framework. But, as I said, I emphasise that we believe conceptually it is a good suggestion. The former Howard government believed that as well. We will continue to consider the policy behind it and hopefully be able to implement it at some point in time.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I thank the minister. While I realise there is a spark of willingness to start addressing this issue, can I press the minister and the government on what the next step is and how they consi­der it is going to occur. Are you putting in place a process to consider further amend­ments to the act or are you putting in place a process that will in fact carry out the intent of this amendment without actually amend­ing it? What are you physically doing to pursue what I think would be a significant step in furthering our marine protected area system?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I am not sure I would describe it as 'physical' work we are doing. I have been advised that there is a 'vibe' going on in terms of considering this policy. I must say that is the first time I have had 'a vibe' used to describe a sort of process.

Are there public servants today or this week working on this? No, there are not. Is it a consideration by the current minister, Minister Burke? Yes, it is, but there is nothing actively before him on the matter. As I said, conceptually there is agreement that this is the right approach. Work has been done in the past, obviously—thought, con­sideration, some musings in writing, I assume, as part of that—but it has not been concluded and I cannot advise you as to any time frames for when that work would be completed.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I thank the minister for the answer and I hope 'the vibe' continues. When you say some work has been done, is it possible to let us know what that work is, or is it just that everyone now has 'the vibe'?

Doug Cameron (NSW, Australian Labor Party) Share this | Link to this | Hansard source

And the musings.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

And the musings.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I would have to take it on notice to give you some further advice as to what has actually occurred in this area. Obviously that has to go to the minister, Minister Burke in this case, so I would have to take it on notice.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you. If you could take it on notice that would be much appreciated. I have a final question, which goes to the release of acreage. Under this new process, is it envisaged that there will now be a wider consultation process carried out when acreage is released?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

One of the difficulties here—and I am sure Senator Siewert will appreciate it—is that people have different perspectives of consultation and what is consultation, and perhaps a positive conclu­sion, depending on a particular individual organisation's perspective, is then consult­ation but a negative one is not. We argue that the views of all organisations are taken into account in terms of such consultation. We do not see that the current process needs to be changed in that regard.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Is that a public consultation? I am talking about before those acreages are released. There is a process that is undertaken once the areas have been released. Is there a process of public consultation that occurs before the areas are released?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I am advised that the dep­artment will enter into consultations with those parties that are interested in particular acreage. I am not sure whether acreage is the correct term these days.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

It is acreage.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

Acreage, is it? It would do for you and me, but I am not sure what we would describe it as today in metrics. There is a public gazetting that takes place, so if an individual organisation wants to express a view at that point they would be able to do so. There would be consultations for organisations and individuals. Environ­ment departments obviously are interested as well as companies and other state depart­ments. Specifically I assume we are going to NGOs. I would have to take that part of it on notice. The officials are not aware whether there is any specific engagement or consult­ation with NGOs before gazettal.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I would appreciate it if you would take it on notice. If NGOs are consulted, it is certainly not my understanding that it is widespread. So I would be interested to know how that consultation occurs.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

The officials here do not have the detailed information. The environ­ment department would consult with X but we would need to find out who they consult with—perhaps state environment depart­ments as well or their equivalents. We will find out what the extent of that consultation is with NGOs and other interested organi­sations.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you. If you could take that on notice, that would be appreciated. My final question on that issue is: if that consultation process is found to be not adequate, would NOPSEMA be able to recommend that a new process be established for consultation before new acre­age is released?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

The consultation process is one for the department. NOPSEMA, because it is clearly a separate regulator, would not have an engagement involvement in the consultation by the department. It would be kept quite distinct and separate.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I take your point. They could provide advice, though, could they not, to the department about ensuring that there is a better process of engagement in the overall process of environmental and oil industry regulation?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I understand your pers­pective, but it is the intention to maintain a very, very clear boundary between what is seen as the regulator and promotion of the sector. That is certainly the intention of this government.

Question negatived.

Offshore Petroleum and Greenhouse Gas Storage Amendment (National Regulator) Bill 2011, as amended, agreed to. Offshore Petroleum and Greenhouse Gas Storage (Registration Fees) Amendment Bill 2011, Offshore Petroleum (Royalty) Amendment Bill 2011, Offshore Resources Legislation Amendment (Personal Property Securities) Bill 2011 and Offshore Petroleum and Greenhouse Gas Storage Regulatory Levies Legislation Amendment (2011 Measures No. 2) Bill 2011 agreed to.

Offshore Petroleum and Greenhouse Gas Storage Amendment (National Regulator) Bill 2011 reported with an amendment; Offshore Petroleum and Greenhouse Gas Storage (Registration Fees) Amendment Bill 2011, Offshore Petroleum (Royalty) Amend­ment Bill 2011, Offshore Resources Legislation Amendment (Personal Property Securities) Bill 2011 and Offshore Petroleum and Greenhouse Gas Storage Regulatory Levies Legislation Amendment (2011 Measures No. 2) Bill 2011 reported without amendment; report adopted.