Western Australian Student Law Review
Australian Offshore Oil and Gas—Offshore Oil and Gas Regulatory Regime—Montara—Occupational Health and Safety—National Offshore Petroleum Safety and Environmental Management Authority—Environmental Plans
The regulation of Australia’s offshore oil and gas industry is an area of law which has expanded rapidly and significantly to accommodate industry growth. Whilst economic maximisation of Australia’s natural resources is an important consideration, it is imperative that the environmental and occupational health and safety (‘OHS’) aspects of the offshore oil and gas industry receive equal, if not more, regulation and attention at the Commonwealth level. Environmental disasters, such as the Montara oil spill, illustrate the devastating effects of improper industry practices. Thus, it is imperative that significant consideration is given to environmental and OHS concerns to ensure proper industry practices and to best facilitate the maximisation of natural resources. This article canvasses the current Australian regulatory regime of offshore petroleum activities and provides a critique of that regime.
Australia’s offshore oil and gas regulatory regime has experienced considerable expansion in recent years, due to improvements to deep-water drilling practices and in response to adverse industrial incidents, such as the 2009 Montara oil spill (‘Montara’). Montara, and the devastating environmental and OHS consequences it entailed, exposed substantial deficiencies in Australia’s regulatory framework, including a lack of proper enforcement mechanisms, absence of third party rights, and inadequate environmental and OHS provisions. The legal ramifications of such adverse industrial events are manifested in responsive legislative developments such as the Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (National Regulator) Bill 2011 (Cth) (‘NRA’), which amended the existing Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (‘OPGGSA’). This article analyses why a comprehensive regulatory regime of the Australian offshore petroleum industry is imperative to national interests, and examines the regulatory developments made at the Commonwealth level since the Montara incident. Specific focus is given to the environmental and OHS improvements brought about by the introduction of the National Offshore Petroleum Safety and Environmental Management Authority (‘NOPSEMA’), critiquing the regime as it currently exists and offering ideas for improvement.
The legal regulation of Australia’s offshore petroleum industry can be classified as either ‘principle’ or ‘rule’ based; both are legal frameworks, but each employs different enforcement procedures.
Rule-based regulation involves the establishment of a set of rules by the regulator, which first prohibit the exploitation of resources completely, before providing exceptions which allow operators to engage in exploitative practices under certain circumstances. This method can prove problematic. Firstly, it encourages a ‘check-box’ compliance mentality, where companies focus on technical compliance with regulations rather than meeting broader policy objectives. Secondly, such a regime cannot adapt to technical or procedural developments within the oil and gas industry; a set of rigid rules requires new rules to be created as circumstances change. In an industry which is still in the early stages of development, this is not only highly inefficient, but also inimical to Australia’s policy goals.
On the other hand, principle-based regulation relies on a set of broadly stated objectives set by the regulator by which operators ought to conduct their activities. This article considers principle-based regulation to be the preferable framework. It allows oil companies some discretion when meeting the objective requirements of the appropriate legislation, rather than merely achieving technical compliance. Flexibility allows the regulations to adapt and respond to new circumstances as they arise. Such principle-based regulation therefore has the potential to be proactive, as opposed to the more responsive nature of rule-based regulation.
The regulatory framework for the extraction of oil and gas resources should reflect the policy regimes of the State which has jurisdiction in a particular area. The Australian framework, at both state and Commonwealth level, should therefore attempt to be comprehensive but adaptable, and emphasise the need for sustainability while encouraging a competitive national presence globally. The Department of Resources, Energy and Tourism states that:
[the] Australian government is committed to creating a policy framework to expand Australia’s resource base, increase the international competitiveness of [the] resources sector and improve the regulatory regime, consistent with the principles of environmental responsibility and sustainable development.
Despite efforts to provide a national regime, there is very little guidance available for the purposes of drafting a regulatory regime aimed at combining pre-existing state and Commonwealth statutes. Further, the jurisdictional divide between states and the Commonwealth makes a national legislative regime seem almost unachievable.
The Norwegian system, where licenses are allocated and approved by appropriate authorities based on an operator’s ability to maximise the profit value of resources, is recognised as ‘best practice’ by a number of institutions. This system, marked for its transparency, both encourages the proactive participation of oil companies within the regulatory framework and emphasises operator accountability for petroleum operations.
The design of a regulatory regime is a determinative factor in the quality of the regime. Australia’s system is entrenched in rule-based regulation, which may have been historically necessary to serve national interests. However, with the advance of the petroleum industry, as well as the pressures of the global economic market and environmental accountability, regulation must now lean itself towards principle-based regulation as a matter of necessity. While the rule-based approach may previously have served its purpose, the rigidity of that approach, and its emphasis on technical compliance rather than actual compliance, makes it inappropriate and conducive to inconsistency in regulation when dealing with practices liable to substantive change and evolution in the foreseeable future. Principle-based legislation, where the emphasis lies on broadly stated principles to set industry standards, provides greater flexibility and allows operators to respond to substantive changes in industry practices as they arise. The Australian framework should not only regulate oil and gas activities effectively and comprehensively, but also act proactively to address concerns which arise in the course of oil and gas operations. This can be best achieved by utilising a principle-based regulatory regime.
Australia’s regulation of offshore petroleum activities is unique and complex. The definitive feature of the regime is the divide between state and Commonwealth jurisdiction. The jurisdiction of the Commonwealth does not begin at the state baseline; rather, each state exerts their own jurisdiction over the seabed from the baseline seawards to a 3nmi limit. Each state applies their own domestic legislation within the landward territory of the 3nmi limit. The Petroleum and Geothermal Energy Resources Act 1967 (WA) (‘PGERA’) is an illustrative example. The Commonwealth’s jurisdiction therefore begins at the 3nmi limit and extends seaward.
The lack of a universal regime was initially remedied by the enactment of ‘mirror’ legislation by the states and the Commonwealth. The state-level statutes were all mirrored in the Petroleum (Submerged Lands) Act 1967 (Cth), the rationale being that despite being enforced by different government authorities, the application of each instrument would remain relatively consistent. However, with the enactment of OPGGSA, the ‘mirror’ regime is no longer effective. Notwithstanding the right of the Commonwealth to override state legislation, this complex framework easily facilitates jurisdictional conflict between state and Commonwealth laws. Academic comment has called for collaboration between the states and Commonwealth to devise a new regime with universal applicability. This article will solely consider the effectiveness of the OPGGSA regime.
The OPGGSA is far from comprehensive. The Montara incident exposed its significant shortcomings, particularly within the areas of compliance and enforcement. Prior to Montara, academic debate suggested the OPGGSA regime was long overdue for amendment; it was composed of too many legislative instruments with inconsistent jurisdictional boundaries, and enforced at both state and Commonwealth level by government authorities who lacked regulatory skills, resources, and consistency in their approach. In an attempt to at least partially remedy such shortcomings, the Commonwealth Parliament has enacted several pieces of supplementary legislation, notably the NRA and the Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Miscellaneous Measures) Act 2010 (Cth) (‘MMA’). After Montara, the MMA extended the powers of the National Offshore Petroleum Safety Authority (‘NOPSA’) to include regulation of wells, well-equipment, and well-facility integrity. The 2012 amendments then converted the NOPSA into the NOPSEMA, and extended its powers to include environmental management. At the time of the Montara incident, the Northern Territory government, the relevant regulator in relation to Montara, was highly criticised for its minimalist approach to regulation. The conception of the NOPSEMA attempted to remedy that approach by acting as a well-resourced and diligent regulatory authority.
The Commonwealth also enacted the Offshore Petroleum and Greenhouse Gas (Significant Incidents Directions) Act 2012 (Cth), the Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures) Act 2013 (Cth) (‘CMA 1’) and the Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures Act No 2) Act 2013 (Cth) (‘CMA 2’). The CMA 1, in particular, represents significant progress towards a more comprehensive regulatory regime in three ways. Firstly, it facilitates the triggering of standard monitoring/investigatory powers of government agencies. However, the wording of the Act is somewhat ambiguous: the phrase ‘to advise persons, either on its own initiative or on request’ on matters such as OHS, structural integrity compliance, and effective monitoring/enforcement, imbues a discretionary nature and the section is not one of strict liability. This may allow the regime to be easily circumvented by operators when it is imposed by government authorities that are less than proactive in their enforcement.
Secondly, the CMA 1 has also expanded upon the OPGGSA’s compliance measures which, until 2013, had been mostly punitive. The regime now includes civil penalties such as the power to suspend, revoke, and cancel titles, alongside penalties such as fines and imprisonment. Finally, the CMA 1 amended the OPGGSA to allow state regulators to share information with the Commonwealth in certain circumstances. This was a marked improvement towards a more effective investigation procedure which had previously been hindered by the barring of the sharing of information compulsorily acquired under state legislation. All of these amendments have delivered on the public expectation that oil and gas operations will be properly regulated assuring society, governments and industry bodies that operations will be conducted in alignment with Australia’s policy objectives.
The NOPSEMA’s corporate plan provides that its purpose is ‘to independently and professionally regulate offshore safety, well integrity and environmental management’ by three methods: compliance, improvement, and governance. The NOPSEMA essentially exists as an extended version of the NOPSA, and facilitates its purpose through the administration of the OPGGSA in Commonwealth waters. The NOPSEMA operates as an independent government authority and ensures a safe and environmentally responsible offshore regulatory regime which simultaneously encourages the continual improvement of OHS and environmental management measures. Its powers under the OPGGSA are expressed broadly: the Commonwealth Parliament may issue instructions to the NOPSEMA with which it is bound to comply, but the instructions themselves are not governmental policy — they are merely indicative of the way Parliament intends the NOPSEMA to function. The NOPSEMA’s description as an ‘administrator’ therefore offers it a greater degree of autonomy when implementing ministerial instructions. The NOPSEMA also commits to offering advice through the publication of guidance notes and active engagement with industry bodies, as well as ensuring effective risk-management by employing appropriate monitoring and enforcement measures in its jurisdictional areas.
To ensure protection of Australia’s unique and fragile marine environment, a comprehensive regulatory regime is required. There have been numerous amendments to Australia’s environmental regulations in recent years; those of particular relevance will be discussed. To undertake oil and gas exploitation activities within Australian waters, operators must seek authority from the relevant state Joint Authority under the OPGGSA. As well as granting authority for oil and gas exploitation activities, the relevant Joint Authority is also empowered to place conditions upon title which are aimed at the prevention of environmental harm under the OPGGSA. Among other things, a potential operator must have an approved Environmental Plan (‘EP’) and Well Operations Management Plan (‘WOMP’) under the relevant regulations.
Under the OPGGSA, the NOPSEMA is the authority responsible for approving EPs and WOMPs, and may also undertake investigations to ensure compliance with title conditions. When submitting an EP to the NOPSEMA, a potential licensee must include information about the existing condition of the environment, and the proposed activities and management measures that will be undertaken to ensure that risks to the environment remain at an acceptable level. In this system, the risks need be reduced to ‘as low as reasonably practical’ (‘ALARP’) and the paramount responsibility for monitoring this lies with the potential operator. For this reason, the NOPSEMA seeks to avoid a prescriptive approach. This is a highly favourable framework, as it not only ensures operator accountability, but is also reminiscent of the effective principle-based regulation previously discussed. The operator must then undertake exploitation activities in accordance with the approved EPs and WOMPs. In the case where there is a significant change to either the operation procedure of the well or the environment, a new EP and WOMP addressing the new circumstances must be approved. Along with the power to approve and reject EPs, the NOPSEMA may also withdraw the acceptance of an EP for a multitude of reasons, collectively labelled ‘environmental non-compliance’.
The NOPSEMA may also give directions where there has been a ‘significant offshore petroleum incident’. Along with these directions, a statutory duty to clean up exists, requiring the title holder to take action for managing, mitigating, and remediating the effects of any escaped petroleum, even when it escapes beyond the title area. To accompany this statutory duty, the NOPSEMA is empowered with an explicit right to costs recovery where an operator fails to respond to their directions. However, this provision only applies to the costs of clean-up, mitigation, and remediation; it does not cover pure economic loss. The exclusion of pure economic loss prevents the possibility of third parties seeking compensation for loss encountered because of oil pollution or damage from the NOPSEMA or oil companies. The right to costs recovery for governments indicates a more robust direction in the regulatory regime when it comes to environmental threat responses. Along with this right, the CMA 2 granted the NOPSEMA inspectors the power to issue environmental prohibition and environmental improvements notices where the inspector is satisfied that a potential or actual activity may pose an ‘immediate and significant threat’ to the environment. The fact that the NOPSEMA exists as a unique and independent government authority means environmental notices are not subject to administrative review.
OHS remains a principle concern for Australia’s oil and gas sector; it is an industry that can be characterised by a multitude of potential occupational threats to human life. The rationale for OHS regulation is therefore to protect and incentivise workers in the industry. Before the implementation of the NOPSEMA, all states conferred their OHS powers to the NOPSA, making it the single government authority responsible for regulating OHS on all offshore operations at both state and Commonwealth level. However, in 2012, the state-referred power lapsed and with the exception of Victoria, OHS regulation fell back under the jurisdiction of the state governments. OHS is now regulated by the Commonwealth, five states and two territory governments, under eight pieces of OHS legislation, and by several administrative regulatory bodies. At a Commonwealth level, in order to comply with the NOPSEMA, operators must submit a ‘safety case’: a document which identifies hazards, describes how they are to be managed, and describes the implementation of a safety management system to ensure control measures are effectively applied. As it would be impossible to remove risk completely, the NOPSEMA merely requires that the potential risk is reduced to ALARP, a term which is not defined and likely depends on the given circumstances in individual cases. As with EPs, the premise of placing this burden entirely with the operator seeks to ensure their accountability.
The amendments to the OPGGSA, particularly the creation of the NOPSEMA, have certainly provided Australia with a more comprehensive regulatory regime at a Commonwealth level. However, these improvements are not without fault and some critics have suggested that the expansion of the NOPSA into the NOPSEMA has only added further complexity to Australia’s regulatory regime.
Despite its advantages discussed above, a problem exists with principle-based regulation: the tension between the NOPSEMA’s approval/enforcement functions and its duty to engage with industry bodies. The NOPSEMA’s role is to provide advice to operators, who then independently create safety cases and the plans which are required for approval under the OPGGSA. It is therefore not for the NOPSEMA to provide a prescriptive list of what ought to be complied with by operators; that is something the operator must determine. In the absence of strict rules, fulfilling regulation objectives becomes highly discretionary with respect to both the regulator and the operator. In the interests of consistency, some guidance ought to be given.
Principle-based regulation has allowed the NOPSEMA to refuse active engagement with operators when drafting safety cases and plans to avoid legislative ‘capture’, allowing the operator to avoid accountability. The NOPSEMA’s initial approach was severely lacking in transparency. At the risk of losing potential operators, the NOPSEMA has increased its communication efforts, mainly in revising and elaborating on guidance documents and holding liaison meetings, so operators can better understand their obligations. Operators have also argued that with expansion comes more elaborate EPs, which may prove less useful in offering practical operations guidance. However, in light of Australia’s policy objectives, there is a need to enforce a strict environmental regime.
The test provided by the NOPSEMA in respect of EPs is ALARP and is based on the civil standard of proof. This is not unreasonably burdensome for oil companies or their operators. Indeed, the ALARP standard is far less rigid than the conditions imposed by OHS regulations, which require operators to comply with all the NOPSEMA’s requirements. In summary, the NOPSEMA ought to continue its active engagement with operators to facilitate regulatory efficiency in reflection of the necessary stringent environmental management conditions.
As a consequence of the fragmentation of laws between the states and the Commonwealth, the offshore regulatory regime remains inadequate when addressing liability for loss or damage suffered by third parties. Pure economic loss in respect of marine pollution is an issue which can have devastating effects on third parties, and is presently ignored in the Australian regime.
Reform addressing the rights of third parties in the OPGGSA would facilitate the imposition of liability on titleholders and operators for that which they are properly liable. Whilst this may be achieved through private industry contracts, providing statutory rights to third parties would provide certainty, consistency, and efficiency. This issue is also of particular relevance in the circumstances of oil-spill marine pollution into the jurisdictional zones of neighbouring nations. The OPGGSA is silent on the standing of alien nationals and their right to compensation for pure economic loss suffered as a consequence of marine pollution caused by an Australian offshore oil spill.
The issue of pure economic loss under the OPGSSA remains the subject of debate. It would be preferable to increase the comprehensiveness of the legislation, although it is arguable that the problem is adequately addressed by current methods: private industry contracts and the common law action for nuisance. The NOPSEMA could receive ministerial direction for the payment of compensation to third parties; yet, due to the wording of the statute, this seems highly unlikely, as payment to third parties is not included. In the absence of legislative or treaty obligations, it appears that the payment of compensation for pure economic loss will depend on the commercial and legal circumstances in which the loss is suffered. In an international context, payment for pure economic loss may depend upon a variety of unrelated political and social factors, but any such payment remains voluntary. Within Australian waters, there is no treaty law which requires companies operating within Australia to compensate.
To achieve a completely comprehensive regulatory regime, the Commonwealth, state, and territory governments ought to uniformly adopt a national act. Where there is a gap in the former state and Commonwealth ‘mirror’ legislation, a uniform framework would increase efficiency across the country as a whole. The Montara Commission of Inquiry recognised the need for a universal regulatory regime and recommended the formation of a single independent national regulator for all offshore petroleum activities in state and Commonwealth waters.
It is accepted that divided offshore jurisdictions contribute to generally poor regulation. The potential benefits of a national regime include economic and procedural efficiency, as well as consistency and a reduced regulatory burden. Yet, state and territory governments may resist Commonwealth intrusion, due to a loss of state powers, or the Commonwealth’s relative inexperience as a regulator. In lieu of a national regime, state legislation could be amended to mirror the OPGGSA. However, this also has its own complications; the states and territories may be hesitant to adopt the complexities of the 1000-page OPGGSA, rather than their own more streamlined acts.
An international treaty for the regulation of oil and gas seems a practical, yet unachievable, goal. Such a treaty would harmonise the industry on a global scale and allow for increased environmental protection, particularly with regard to liability for environmental damage. It would also increase the efficiency and economy of the oil and gas industry whilst providing a consistent global regime for operators, title holders and potential claimants. Yet, considering the wealth many petroleum resources generate for national economies, governments may not be willing to negotiate with such an important national resource. Additionally, the pre-existing arrangements with the United States and Europe mean that a treaty is unlikely. It may still be worthwhile for Australia to consider further bilateral or multilateral arrangements with its neighbouring jurisdictions.
The Australian regulatory regime of the oil and gas industry, as it currently exists, is complicated by the existence of different legislation across multiple jurisdictions, both within, and external to, Australia, as well as a multitude of different regulatory regimes. While there has been considerable effort directed to establishing a comprehensive national system, the continued intra-national government conflict has left Australia’s regulatory position lacking. The move towards principle-based regulation as opposed to the historically favoured rule-based regulation is a recent example of improvement, but there remains considerable room for progress, particularly in environmental management, OHS enforcement, and the rights of third parties. If the goal of one coherent national regime is not achievable, the state, territory, and Commonwealth governments ought to work together to create, at least, a more harmonised system. While the goal of a completely comprehensive and uniform system appears unlikely in the near future, legislators need to remember that the goal of regulation is the efficient and diligent regulation of an industry which is inherently hazardous to both the environment and human health.
[*] Elizabeth is a fourth year Bachelor of Laws student at Murdoch University.
 Alexandra Wawryk, ‘Recent Changes to the Commonwealth Offshore Petroleum Legislation: Strengthening Environmental Liability, Compliance and Enforcement Provisions’ (2013) 27 Australian and New Zealand Maritime Law Journal 49, 50.
 John Chandler and Terence Dainith, ‘Offshore Petroleum Regulation After Montara: The New Regulatory Style’ (2015) 34(1) Australian Resources and Energy Law Journal 34, 42.
 Ibid, 34–5; Explanatory Memorandum, Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (National Regulator) Bill 2011 (Cth).
 Australian Productivity Commission, Review of Regulatory Burden on the Upstream Petroleum (Oil and Gas) Sector: Productivity Commission Issues Paper (2008) (11 August 2008) <www.pc.gov.au/__data/assets/pdf_file/0018/82026/upstream-petroleum-issues.pdf> 3; Barry Barton, ‘The Theoretical Context of Regulation’ in Barton, L Barrera-Hernández, A Lucas, A Rønne (eds), Regulating Energy and Natural Resources (Oxford University Press, 2008) 12.
 Ibid; Julia Black, ‘Principles Based Regulation: Risks, Challenges and Opportunities’ (Speech delivered at the Banco Court, Sydney, 27 March 2007) 3; Sol Piccioto, ‘Introduction: Reconceptualising Regulation in the Era of Globalization’ (2002) 29 Journal of Law and Society 1, 4.
 Black, above n 6, 6–7; Tina Hunter, ‘Sustainable Socio-economic Extraction of Australian Offshore Petroleum Resources Through Legal Regulation: Is It Possible?’ (2011) 29(2) Journal of Energy & Natural Resources Law 209, 227.
 Allen K Kneese, ‘The Economics of Natural Resources’ (1988) 14 Population and Development Review 281, 283–5.
 Department of Primary Industries, Offshore Strategy: Promoting Petroleum Exploration Offshore Australia (1990), 1; Hunter, above n 7, 214.
 Department of Resources, Energy and Tourism, Resources (12 December 2010) Department of Resources, Energy and Tourism <www.ret.gov.au/RESOURCES/Pages/Resour ces.aspx>; Hunter, above n 7, 223.
 Norwegian Petroleum Directorate, Facts 2009: The Norwegian Petroleum Sector (2009) 19; Organisation for Economic Co-operation and Development, Economic Survey: Norway (2005) 11; Richard Gordon and Thomas Stenvoll, Statoil: A Study in Political Entrepreneurship (12 December 2009) James A Baker III Institute for Public Policy, Rice University <www.rice.edu/energy/publications/docs/NOCs/Papers/NOC_Statoil_Gordon-Stenvoll.pdf> 1; Hunter, above n 7, 216.
 Chandler and Dainith, above n 3, 36.
 Hunter, above n 7, 231.
 Barton, above n 5, 12; Black, above n 6, 3; Piccioto, above n 6, 4.
 Black, above n 6, 3, 6–7; Hunter, above n 7, 227.
 Hunter, above n 7, 227.
 Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 5(2)(b); Wawryk, above n 1, 51; Coastal Waters (State Title) Act 1980 (Cth); Donald R Rothwell and Marcus Haward, ‘Federal and International Perspectives on Australia’s Maritime Claims’ (1996) 20(1) Marine Policy 29, 42.
 Commonwealth of Australia Constitution Act 1900 (Cth) s 109; Rothwell and Haward, above n 20, 43.
 Nathan Evans and John Bailey, ‘Jurisdiction and Offshore Petroleum in Australia Creating Symmetry Between the Commonwealth and States by Sharing Benefits and Avoiding Costs’ (1997) 34(3) Oceans & Coastal Management 173, 173–4.
 Wawryk, above n 1, 49–50.
 Ibid 67; Patrick Brazil and Peter Wilkinson, ‘The Establishment of a National Offshore Petroleum Safety Authority’ (2005) 34 Australian Resources and Energy Law Journal 90, 93.
 Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 645; Chandler and Dainith, above n 3, 42.
 Chandler and Dainith, above n 3, 34–5.
 Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures) Act 2013 (Cth) sch 1, pt 1; Regulatory Powers (Standard Powers) Act 2014 (Cth) pt 2–3; Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 646.
 Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) ss 185(4), 186(2), 264–8, 274.
 Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures) Act 2013 (Cth) sch 2.
 Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 691.
 Apache Northwest Pty Ltd v Agostini (2009) 177 FCR 449.
 Chandler and Dainith, above n 3, 42–3.
 Wawryk, above n 1, 53.
 Christine Lamont, ‘Regulations of the Offshore Petroleum Industry’ (2012) 4(3) Australian Journal of Maritime and Ocean Affairs 90, 90.
 Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 646, 647; Chandler and Dainith, above n 3, 43.
 Ibid, 42–4.
 David Borthwick, Report of the Montara Commission of Inquiry (June 2010) 5; Commonwealth of Australia, Final Government Response to the Report of the Montara Commission of Inquiry (2011); Wawryk, above n 1, 50.
 Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 97; Wawryk, above n 1, 54.
 Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 162.
 Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) regs 6, 9; Offshore Petroleum and Greenhouse Gas Storage (Resource Management and Administration) Regulations 2011 (Cth) regs 5.04–5.05.
 Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 600(1).
 Lamont, above n 37, 90.
 Ibid 91.
 Offshore Petroleum and Greenhouse Gas Storage (Resource Management and Administration) Regulations 2011 (Cth) regs 5.22—5.55; Nathan Evans, ‘Offshore Petroleum in Australia – Cooperative Governance in a Sea of Federalism’ (2003) 26 Dalhousie Law Journal 175, 190.
 Evans, above n 48, 190.
 Offshore Petroleum and Greenhouse Gas Storage Amendment (Significant Incident Directions) Act 2012 (Cth); Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 576A.
 Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) ss 572C, 572C (2), 576B (5).
 Explanatory Memorandum, Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures No 2) Bill 2013 (Cth) 46.
 Wawryk, above n 1, 63.
 Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures No 2) Act 2013 (Cth) sch 2 pt 1-2, inserting ss 11A, 12A) into the OPGGSA.
 Explanatory Memorandum, Offshore Petroleum and Greenhouse Gas Storage Amendment (Compliance Measures No 2) Bill 2013 (Cth) 35; Wawryk, above n 1, 60.
 Elizabeth Bluff and Neil Gunningham, ‘Harmonising Work Health and Safety Regulatory Regimes’ (2012) 25 Australian Journal of Labour Law 85, 86.
 Brazil and Wilkinson, above n 24; Tina Hunter, ‘Australian Offshore Petroleum Regulation After the Varanus Island Explosion and the Montara Blowout – Drowning in a Sea of Federalism? (2011) 25 Australia & New Zealand Maritime Law Journal 69.
 Wawryk, above n 1, 63.
 R Johnstone, E Bluff and A Clayton, Work Health and Safety Law and Policy (Thomson Reuters, 3rd ed, 2012); Bluff and Gunningham, above n 57, 86.
 Brazil and Wilkinson, above n 24, 92.
 Chandler and Dainith, above n 3, 44–5.
 Ibid 50.
 Ibid 48.
 Ibid 49.
 Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) regs 10, 10A; Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336, 362.
 Chandler and Dainith, above n 3, 51.
 Wawryk, above n 1, 49.
 Ibid 67.
 Ibid 66.
 Gerry Bates, Environmental Law in Australia (LexisNexis/Butterworths, 8th ed, 2013); Wawryk, above n 1, 66.
 Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) ss 574, s 576B, 720; Wawryk, above n 1, 66.
 Wawryk, above n 1, 66–67.
 Productivity Commission, National Workers’ Compensation and Occupational Health and Safety Frameworks, Productivity Commission Inquiry Report No 27, Australian Government, Canberra, 2004, 99—100; F Haines, ‘Addressing the Risk, Reading the Landscape: The Role of Agency in Regulation’ (2011) 5 Regulation and Governance 118, 119, 121–2; Wawryk, above n 1, 64; Nathan Evans, ‘Offshore Petroleum in Australia – Cooperative Governance in a Sea of Federalism’ (2003) 26 Dalhousie Law Journal 175, 180.
 Lamont, above n 37, 90.
 Evans, above n 48, 176; Brazil and Wilkinson, above n 24, 94.
 Bluff and Gunningham, above n 57, 104–5.
 Wawryk, above n 1, 68.
 Ibid 66–8.