Commonwealth Numbered Regulations - Explanatory Statements

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PETROLEUM (SUBMERGED LANDS) (DATA MANAGEMENT) REGULATIONS 2004 2004 NO. 111

EXPLANATORY STATEMENT

Statutory Rules 2004 No. 111

Issued by the Authority of the Minister for Industry, Tourism and Resources

Petroleum (Submerged Lands) Act 1967

Petroleum (Submerged Lands) (Data Management) Regulations 2004

Subsection 157(1) of the Petroleum (Submerged Lands) Act 1967 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that by the Act are required or permitted to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The adequate collection of data and samples and subsequent access to them is an important part of encouraging new and efficient offshore petroleum exploration. Previously, the system of public release and access to data and samples was set out in the Act. However, the passage of the Petroleum (Submerged Lands) Amendment Act 2003 in December 2003 signalled an intention to prescribe some of the administrative arrangements of data collection and release by regulations.

Item 1 of Schedule 3 to the Petroleum (Submerged Lands) Amendment Act 2003 will insert a new section 122A into the Act. The new section 122A states that the regulations may make provision for the collection and lodgement with the relevant authority of data and samples generated by offshore petroleum activities, including a requirement for a Data Management Plan (DMP).

Item 13 of Schedule 3 to the Petroleum (Submerged Lands) Amendment Act 2003 will substitute new sections 150B to 150F of the Act. These sections will set out the broad administrative arrangements for data and sample release and provide for certain details to be prescribed by regulations.

The purpose of the Regulations is to implement a data management scheme for the adequate collection and submission of data and samples by companies undertaking offshore petroleum activities and the release requirements for the data. The Regulations will:

•       introduce a regulatory framework focused on objectives and outputs rather than prescribing the fine detail of inputs and processes, i.e. an 'objective-based' system;

•       require the development of an agreed DMP, setting out how data management will comply with the statutory requirements. The DMP is submitted to the regulator (Designated Authority i.e. the relevant State/Northern Territory mines department) for approval; and

•       provide for transitional arrangements for data acquired by the holder but not submitted to the regulator before the commencement of the Regulations.

An objective-based system

The Regulations require the details of data submission and release requirements to be combined in a single document. The regulatory framework for data management will be largely unchanged from that previously included in the legislation. The introduction of an objective-based system will be an important innovation.

Objective-based regulations are based on explicit objectives instead of prescribed procedures. They are designed to allow participants in the industry greater flexibility in the way data is managed by nominating the most appropriate way to meet the specified data management objectives.

The introduction of an objective-based regime is consistent with Government policy already implemented in the Petroleum (Submerged Lands) (Management of Safety on Offshore Facilities) Regulations 1996, Petroleum (Submerged Lands) (Management of Environment) Regulations 1999, Petroleum (Submerged Lands) (Pipelines) Regulations 2001 and Petroleum (Submerged Lands) (Diving) Regulations 2002.

Data management

The Regulations allow for data management arrangements to change in response to improvements in technology and management systems, as long as key principles are adhered to. An essential part of this flexibility is the development of an agreed DMP, which specifies acceptable methods of acquiring, maintaining and submitting data. This will allow industry to implement improved practices, without the need for Government to continually update regulatory requirements.

The Regulations regulate petroleum data management and do not affect any other requirements with respect to the conduct and performance of companies undertaking offshore petroleum operations.

Transitional arrangements

The Regulations contain transitional arrangements for documentary information and petroleum mining samples acquired before the commencement of these Regulations. The Regulations do not apply to documentary information or petroleum mining samples submitted before the date of their commencement. For documentary information or petroleum mining samples that are not submitted before the commencement of the Regulations, the holder must have an accepted DMP not later than 2 years after their commencement.

The Regulations were prepared by a working group established under the Upstream Petroleum Sub-Committee of the Ministerial Council on Mineral and Petroleum Resources (MCMPR). The working group (Petroleum Data Consultative Group) included members nominated from the upstream petroleum industry by the Australian Petroleum Production and Exploration Association (APPEA) and the International Association of Geophysical Contractors (IAGC), representatives from the State and Northern Territory departments with responsibility for petroleum regulation, and the Department of Industry, Tourism and Resources.

As the regulatory framework is largely unchanged from that previously in the Act, and the objective-based approach has the potential to reduce compliance costs, the Office of Regulation Review has concurred that a Regulation Impact Statement was not required (reference 2003/5618).

Details of the Regulations are set out in the Attachment.

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

The Regulations prescribe matters pursuant to provisions of the Petroleum (Submerged Lands) Act Amendment Act 2003 that have not yet commenced. The Acts Interpretation Act 1901 provides, in subsections 4(1) and 4(2A) that regulations may validly be made after an Act has received Royal Assent but before it has commenced, as long as such regulations commence on a date not earlier than the date on which the Act commences.

The Regulations commence on the commencement of Schedule 3 to the Petroleum (Submerged Lands) Amendment Act 2003. Subsection 2(1),of that Act provides that Schedule 3 commences on a day to be fixed by Proclamation or, if not by Proclamation, on the first day after a period of six months has elapsed, beginning on the day on which the Act receives Royal Assent (4 December 2003). As no Proclamation has been made, it is expected that the Regulations will commence on 4 June 2004.

Authority:       Subsection 157(1) of the Petroleum (Submerged Lands) Act 1967

ATTACHMENT

Details of the Petroleum (Submerged Lands) (Data Management) Regulations 2004

PART 1 - PRELIMINARY

Regulation 1 - Name of Regulations

This Regulation provides that the name of the Regulations is the Petroleum (Submerged Lands) (Data Management) Regulations 2004.

Regulation 2 - Commencement

This Regulation provides for the Regulations to commence on the commencement of Schedule 3 to the Petroleum (Submerged Lands) Amendment Act 2003. Subsection 2(1) of that Act provides that Schedule 3 commences on a day to be fixed by Proclamation or, if not by Proclamation, on the first day after a period of six months has elapsed, beginning on the day on which the Act receives Royal Assent (4 December 2003). As no Proclamation has been made, it is expected that the Regulations will commence on 4 June 2004.

Regulation 3 - Object of Regulations

This Regulation provides that the objects of these Regulations are:

•       to provide a framework for encouraging the adequate collection and timely dissemination of petroleum data, for the long term benefit of the Australian community,

•       to ensure the adequacy of data acquired; and

•       to allow for efficient management for data confidentiality and the disclosure of data on the completing the relevant confidentiality periods.

Regulation 4 - Definitions

This Regulation provides definitions of terms used in the Regulations that are not already defined in the Act:

•       "Act"

•       "accepted DMP";

•       "activity";

•       "applicable document";

•       "contested information";

•       "DMP".

•       "documentary information";

•       "excluded information";

•       "holder";

•       "nominated address";

•       "notice inviting objections to the disclosure of information";

•       "petroleum mining sample";

•       "protected confidential information";

•       "protected derivative information";

•       "seismic data grid";

•       "title"; and

•       "vacant area".

Regulation 5 - Protected confidential information

This Regulation specifies that documentary information is classified as protected confidential information where: the holder has submitted it to the regulator, classifying it as a trade secret or as information that if disclosed could damage the person's lawful commercial interests; and the regulator has not, within 30 days, disagreed with that classification nor given notice to the person inviting objections to its disclosure. This Regulation provides that "protected confidential information" is defined according to the regulator's opinion of whether it conforms with specified criteria.

A "regulator" is the relevant Designated Authority (State/Northern Territory mines department).

A "holder" is a person holding a title or authority under the Act to conduct specified activities.

Regulation 6 - Protected derivative information

This Regulation specifies that documentary information is classified as protected derivative information where: the holder has submitted it to the regulator, classifying it as a conclusion or opinion based on other documentary information; and the regulator has not disagreed, within 30 days, with that classification nor given notice to the person inviting objections to its disclosure. This Regulation defines "protected derivative information" according to the regulator's opinion.

Regulation 7 - Contested information

This Regulation covers the situations where disagreement arises about the classification of documentary information. It provides that documentary information provides to the regulator is contested information when the regulator notifies the holder in writing and within 30 days that he/she disagrees with the classification of the documentary information and invites objections to the disclosure of the documentary information.

Regulation 8 - Notice inviting objections to the disclosure of information

This Regulation provides for notification procedures for the regulator in inviting objections to the disclosure of information. The notice states the proposed future time to make the information publicly known and invites the person to make an objection to the disclosure within at least 45 days of the issue of the notice.

Regulation 9 - Application of Regulations

This Regulation provides that the Regulations apply to data that a holder is required to give to the regulator on or after the commencement of these Regulations. This Regulation also applies the provisions relating to safe storage by the holder of information or samples generated before the commencement of the Regulations.

PART 2 - HOLDER'S GENERAL DUTIES

Regulation 10 - Undertaking activity without DMP or permission

This Regulation specifies that it is an offence for a holder to undertake an offshore petroleum activity without a Data Management Plan (DMP) or the regulator's permission. A DMP is essentially an agreement on data management as described in Part 4 of the Regulations. It also specifies a penalty of 50 penalty units for noncompliance. Subsection 4AA(1) of the Crimes Act 1914 provides that one penalty unit is $110. This Regulation also provides that an offence against this Regulation is an offence of strict liability.

Regulation 11 - Undertaking activity with DMP or permission

This Regulation specifies that it is an offence for a holder to undertake an offshore petroleum activity that does not comply with the relevant DMP or with a condition attached to the regulator's permission. It also specifies a penalty of 50 penalty units for non-compliance and that an offence against this Regulation is an offence of strict liability.

PART 3 - INFORMATION REQUIREMENTS

Regulation 12 - Information - general

This Regulation details the information that a holder is required to record to convey a general understanding of an exploration and production activity undertaken by the holder.

Regulation 13 - Information - wells

This Regulation details the information that a holder is required to record to provide a detailed understanding for each well drilled and any associated samples that are required to be kept.

Regulation 14 - Information - geophysical surveys

This Regulation details the information that a holder is required to record to provide a detailed understanding for each geophysical survey conducted.

Regulation 15 - Information - geological and geochemical surveys

This Regulation details the information that a holder is required to record to provide an understanding for each geological and geochemical survey conducted.

PART 4 - DATA MANAGEMENT PLANS

Division 1 Approval of DMP

Regulation 16 - Request for approval of DMP

This Regulation details the requirements of a holder for submitting a DMP to the regulator for approval. The holder must give the regulator a complete DMP in writing, unless the regulator has given the holder written permission to submit the DMP in parts.

Regulation 17 - Contents of DMP

This Regulation specifies the required contents of a DMP. The holder needs to demonstrate that the DMP meets the requirements detailed in the Regulations. Statements and information set out in Schedule 1 to the Regulation need to be included in the DMP.

Regulation 18 - Decision on DMP

This Regulation specifies the matters to be taken into account by the regulator in deciding whether to accept the DMP, reject the DMP or notify the holder that the regulator has been unable to make a decision on the DMP. The Regulation requires the regulator to make this decision as soon as is practicable and notify the holder in writing of his/her decision. The Regulation also specifies a process for further consideration where the regulator has been unable to decide whether to accept or reject the DMP.

Regulation 19 - Status of DMP submitted or accepted in parts

This Regulation allows a holder, where permission is given, to submit a DMP in parts to the regulator. This Regulation allows the regulator to accept a DMP in parts.

Division 2 Variation of DMP

Subdivision 1 Variation by holder

Regulation 20 - Request for variation of DMP

This Regulation details the requirements to vary a DMP. The holder must submit each DMP variation to the regulator and ask for each variation to be approved.

Regulation 21 - Decision on request for variation

This Regulation specifies the matters to be taken into account by the regulator in deciding whether to accept the variation, reject the variation or notify the holder that the regulator has been unable to make a decision on the variation. The Regulation requires the regulator to make this decision as soon as is practicable and notify the holder in writing of his/her decision. The Regulation also specifies a process for further consideration where the regulator has been unable to decide whether to accept or reject a variation to a DMP.

Subdivision 2 Variation at request of Designated Authority

Regulation 22 - Requirement of vary DMP

This Regulation details the requirements that a regulator needs to include in a notice to a holder requesting a variation to a DMP.

Regulation 23 - Objection to requirement of vary

This Regulation sets out the procedure for the holder to object to a requirement to vary a DMP. The holder must make an objection in writing stating the reasons not to vary a DMP in the terms required, or at all, to the regulator within 30 days of receiving the notice to vary the DMP.

Regulation 24 - Decision on objection

This Regulation specifies the procedure for the regulator to accept the objection, reject the objection or notify the holder that the regulator has been unable to make a decision on the objection. The Regulation requires the regulator to make this decision as soon as practicable and notify the holder in writing. The Regulation also specifies a process for further consideration where the regulator has been unable to make a decision.

Division 3 Operation of DMP

Regulation 25 - Commencement of DMP and revisions of DMP

This Regulation specifies that the commencement day of a DMP or a revised DMP is on the day the regulator accepts a DMP.

Regulation 26 - Termination of DMP

This Regulation specifies when a DMP ceases. A DMP ceases to have effect when it is withdrawn, replaced or after five years from a DMP acceptance, whichever day is earliest.

PART 5 - UNDERTAKING ACTIVITY WITHOUT ACCEPTED DMP

Regulation 27 - Application for approval to undertake activity without accepted DMP

This Regulation provides that a holder may apply for approval to undertake an activity without an accepted DMP. The application must include an explanation of why it is necessary and an undertaking to provide a DMP as soon as possible.

Regulation 28 - Decision on application

This Regulation specifies procedures for the regulator to accept an application under Regulation 27, to reject the application or to notify the holder that the regulator has been unable to make a decision on the application. The Regulation requires the regulator to make this decision as soon as practicable and notify the holder in writing. The regulator is also able to apply conditions to an accepted application.

PART 6 - ACCESS TO DOCUMENTARY INFORMATION AND PETROLEUM MINING SAMPLES

Division 1 Documentary information (other than contested information) and petroleum mining samples

Regulation 29 - Making documentary information (other than excluded information) publicly known after relevant day

This Regulation provides that the regulator or Minister may make documentary information publicly known at the expiry of a specific period. This Regulation provides a table listing the title types held by the holder, the type of documentary information and the relevant period after which that documentary information may be made publicly known. This Regulation does not apply to excluded information as defined in Regulation 4.

Regulation 30 - Making details of petroleum mining samples publicly known after relevant day

This Regulation provides that the regulator may make petroleum mining samples publicly known at the expiry of a specific period. This Regulation provides a table listing the title types held by the holder and the relevant period after which that petroleum mining samples may be made publicly known.

Regulation 31 - Making documentary information known - prior availability

This Regulation provides that documentary information may be made publicly known earlier than specifies in Regulation 29, where the holder has already released the information or agrees to its release.

Regulation 32 - Making details of petroleum mining samples known - prior availability

This Regulation provides that petroleum mining samples may be made publicly known earlier than specifies in Regulation 30, where the holder has already released the information or agrees to its release.

Regulation 33 - Making documentary information known - non-confidential derivative information

This Regulation specifies the relevant period after which non-confidential derivative information may be made publicly known by the regulator. This Regulation details the requirements that need to be met to ensure the information is non-confidential derivative information.

Division 2 Contested information

Regulation 34 - Making documentary information known - contested information

This Regulation provides that the regulator may make documentary information publicly known, where that documentary information is contested information (as defined in Regulation 7). The regulator needs to notify the person who provides the information of the intention to disclose the information. The person has 30 days to object to the disclosure of the documentary information.

Regulation 35 - Arrangements relating to objections

This Regulation provides specific procedures for dealing with objections to disclosure of contested documentary information (Regulation 34). This Regulation details that the regulator has 45 days after receiving the holder's written objection to make a decision and notify the holder of the decision in writing. This Regulation also allows for a Ministerial review of the regulator's decisions.

PART 7 MISCELLANEOUS

Regulation 36 - Safe storage of documentary information and petroleum mining samples

This Regulation provides that documentary information and petroleum mining samples in the holder's possession must be kept in secure storage and in a way that makes retrieval of the data practicable. A penalty of 10 penalty units applies to an offence against this Regulation. "Reasonable excuse" is a defence to a prosecution for an offence under this Regulation.

PART 8 TRANSITIONAL ARRANGEMENTS

Regulation 37 - Documentary information or petroleum mining samples given to the Designated Authority before the commencement of these Regulations

This Regulation provides that the holder that gave documentary information or petroleum mining samples to the regulator before the commencement of the Regulation does not required to prepare a DMP in relation to that documentary information or petroleum mining samples. However a holder that acquired, but not given, documentary information or petroleum mining samples to the regulator before the commencement of the Regulation has 2 years to establish an accepted DMP for that data.

SCHEDULE 1 REQUIREMENTS FOR DMP

Part 1 Information and statements

This Part lists the general information and statements required in a DMP.

Part 2 Reports

This Part lists the required content of various reports and the timetable for providing reports to the regulator.

Part 3 Standard timetable for giving other information

This Part lists a standard timetable for giving other information to the regulator. A different timetable may be agreed with the regulator as part of the DMP.


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