Submission on the Exposure Draft of OPGGS (Environment) Amendment
(2014 Measures No. 1) Regulations 2014

ConocoPhillips Australia Pty Ltd (ConocoPhillips) would like to take the opportunity to submit its response to the proposed amendments to the Offshore Greenhouse Gas Storage (Environment) Regulations 2009 (Regulations) as contained in the Exposure Draft of OPGGS (Environment) Amendment (2014 Measures No. 1) Regulations 2014.

ConocoPhillips has been involved in the submission made by APPEA and confirms its support for the position set out therein. However, ConocoPhillips wishes to provide additional comments on certain aspects of the proposed regulatory reforms that require attention to fully achieve the Government’s objectives.


Recommendation One: The Regulations should prescribe the relevant considerations for determining whether there are reasonable grounds for accepting an environment plan


The agency should accept an environment plan if there are reasonable grounds for believing that the plan meets the criteria in regulation 11 of the Regulations. In determining whether reasonable grounds for acceptance exist, the Regulations should prescribe that the agency takes into account the following relevant considerations:

(a)  The nature and scale of the petroleum activity and whether the level of assessment and detail provided in the environment plan is proportional to that activity.

(b)  The potential scale and nature of the relevant impacts, including the expected timeframe of impacts, and whether the level of assessment and detail provided in the environment plan is proportional to the significance of those impacts and level of risk.

(c)  Whether the operator has a satisfactory record of responsible environmental management and compliance with environmental laws.

Recommendation Two: The Regulations should require that the agency consult during its evaluation of environment plans

One of the keys to effective administration is proactive communication of requirements. Without adequate communication, the regulated community lacks a fair opportunity to develop plans that meet applicable regulatory requirements.

The agency’s practice and policy is not to communicate what it expects to see in plans to operators until after an environment plan has been formally rejected. It is acknowledged that the proposed amendments to the Regulations provides an express statement that the agency may ask for further information from the titleholder (proposed as a new regulation 9A) however we note that this proposed amendment merely restates the existing position as there is nothing in the Regulations or the Offshore Petroleum Greenhouse Gas Storage Act 2006 (the Act) that prohibits the agency from communicating with the applicants following their environmental plan submission.

(a)  Therefore the amendments to the Regulations should go further and require the agency to consult with the operator and advise the operator on relevant matters including but not limited to:

(b)  The agency’s expectations in respect to the form and content of an environment plan that will allow the agency to be reasonably satisfied that the environment plan meets the criteria in regulation 11 of the Regulations.

(c)  All material deficiencies or issues with an environment plan identified by the agency that may prevent the agency from being reasonably satisfied that the environment plan meets the criteria in regulation 11 of the Regulations.

(d)  Relevant policies, guidelines, procedures, precedents, facts, opinions or other information that the agency will take account of in evaluating the environment plan.

(e)  Any other matter that may prevent the agency from being reasonably satisfied that the environment plan meets the criteria in regulation 11 of the Regulations.

Recommendation Three: The Regulations should establish fair procedures, including an appeals process and consideration of the proportionality of decisions.

The agency, as an administrative decision-maker, is bound by law to observe the principles of procedural fairness and natural justice. These requirements are well established under common law. Relevantly, a person subject to a government decision is entitled to:

(a)  an adequate opportunity to be heard before a decision is reached;

(b)  full disclosure of all information that is adverse or prejudicial to the person, including all criteria and policy or other assessment guidelines that the decision maker will take into account in making the decision;

(c)  a reasonable opportunity for the person to consider and respond to adverse or prejudicial information; and

(d)  genuine consideration by the decision-maker of any information, submissions or other material provided by the person.

A policy and practice not to undertake a full review of an application means the agency cannot have given genuine consideration to all of the information provided by the applicant. Without full disclosure of all adverse or prejudicial information at each stage of the process, applicants are afforded neither a reasonable opportunity to be heard, nor a reasonable opportunity to consider and respond to all adverse or prejudicial information.

The Regulations should require the agency to ensure all decision making processes under the Regulations are afforded a fair hearing and include the following:

(a)  Adequate opportunities for the operator or instrument holder to be heard before the agency makes its decision. What is adequate will depend on the circumstances of the particular case.

(b)  Full disclosure of all information adverse or prejudicial to the operator or instrument holder’s interests.

(c)  A reasonable opportunity for the operator or instrument holder to consider and respond to adverse or prejudicial information.

(d)  Genuine consideration of any additional information, submissions or other material provided by the operator or instrument holder to the agency in response to adverse or prejudicial information.

(e)  That the officer(s) who is responsible for making the decision maintains an open mind during the decision making process and does not settle his or her views on the outcome until a fair hearing has been afforded.

(f)  That the officer(s) who is responsible for making the decision is free from any apprehension of bias.

(g)  All agency decisions are based on reliable and credible information.

(h)  That the agency provides adequate written reasons for any decision.

Procedural fairness also requires that the nature of a person’s affected interests, and the degree to which the decision may adversely affect those interests, be taken into account before a discretionary decision is made, and that the agency’s actions are proportional to the regulatory objectives they are trying to achieve. The Regulations should require environmental plan reviewers to consider the proportionality of their responses.

The current process offers no avenue for fair review of potentially arbitrary decisions. The Regulations should therefore outline a method of independent review. This review should include mechanisms for an oral hearing in the event that the agency is considering serving a notice of intention to withdraw an environmental plan or take other action with significant negative consequences to an applicant’s existing rights.


Recommendation Four: The Regulations should provide additional aspects that are required to be considered before exercising discretion to withdraw acceptance of an environment plan

The agency has a discretionary power under regulation 23 of the Regulations to withdraw its acceptance of an environment plan in force on the grounds as set out in that regulation.

In exercising its discretion under regulation 23, the agency should be required to take account of the following relevant considerations:

(a)  Whether the circumstances likely present a significant new environmental impact or risk that was not identified in the environment plan and it is necessary to withdraw acceptance of the environment plan to protect the environment from that impact or risk.

(b)  Whether the circumstances likely present a significant increase in an existing environmental impact or risk that was not identified in the environment plan and it is necessary to withdraw acceptance of the environment plan to protect the environment from that impact or risk.

(c)  The imminence and seriousness of the harm to the environment, including consideration of the location, severity, quantity, extent and duration of the impact or risk.

(d)  If withdrawal of acceptance of the environment plan will promote compliance and engender confidence in the regulatory system.

(e)  Whether any aggravating factors exist, for example malice, culpability, intent, recklessness or negligence by the operator or instrument holder.

(f)  The operator or instrument holder’s history in respect to responsible environmental management and compliance with environmental laws.

(g)  Any alternative compliance or enforcement responses that would be appropriate in the circumstances.

(h)  Any relevant information provided by the operator or instrument holder.

The agency’s exercise of its power to withdraw an environment plan would result in significant adverse consequences for the operator or instrument holder. Administrative action of this nature should only be taken in circumstances that clearly warrant the severity of such consequences and where it is just and fair to do so.

The consequences of a decision are important in assessing what is required to afford procedural fairness -- the more serious the consequences are, the standard of procedural fairness that is required should be higher. The consequences of withdrawal of acceptance of an environment plan are at the most serious end of the scale. Operators and instrument holders have a legitimate expectation that in such circumstances procedural fairness obligations will be discharged by the agency to the highest level. Accordingly, in addition to complying with the above, the agency should be required to:

(a)  Allow an oral hearing between the operator or instrument holder and the agency in order to transparently examine and test the grounds for the agency’s proposed decision to withdraw acceptance of the environment plan.

(b)  Ensure that the timeframe provided for the operator or instrument holder to make submissions is adequate to allow the operator or instrument holder a genuine opportunity to remove the ground for withdrawal of acceptance, or to prevent the recurrence of that ground.

(c)  Allow the operator or instrument holder further opportunities to be heard (and potentially a further oral hearing) where material new information or new issues arise during the decision making process.

(d)  Before exercising its power to withdraw acceptance of an environment plan, the agency should advise the relevant Minister under the Act, with reasonable notice, of its intention to do so. The agency’s advice to the Minister should include an initial assessment of the additional considerations proposed under regulation 23 as detailed above.

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