Hansard debates

RESOURCES LEGISLATION AMENDMENT (BTEX PROHIBITION AND OTHER
MATTERS) BILL 2014 
Statement of compatibility
Mr NORTHE  (Minister  for Energy and  Resources) tabled following  statement  in
accordance with Charter of Human Rights and Responsibilities Act 2006:
  In  accordance  with  section   28  of  the  Charter   of  Human  Rights   and
  Responsibilities Act  2006,  (the  charter  act),  I  make this  statement  of
  compatibility  with  respect  to  the  Resources  Legislation  Amendment (BTEX
  Prohibition and Other Matters)  Bill 2014 (the resources legislation amendment
  bill 2014).

  In my opinion, the resources legislation amendment bill 2014, as introduced to
  the Legislative Assembly, is compatible  with  human  rights as set out in the
  charter act. I base my opinion on the reasons outlined in this statement.
  Overview
  The  resources  legislation amendment bill 2014 amends the  Geothermal  Energy
  Resources Act 2005, the Greenhouse Gas  Geological Sequestration Act 2008, the
  Mineral Resources (Sustainable Development)  Act  1990  and  the Petroleum Act
  1998 to prohibit the use  of  BTEX chemicals in hydraulic fracturing. The bill
  also makes amendments to a number of acts in order to  improve the  regulation
  of the earth resources sector.
  Human rights protected by the charter act that are relevant to the bill

  Right to privacy
  Section 13(a) of the charter act provides that all  persons have the right not
  to  have  their  privacy,   family,   home  or  correspondence  unlawfully  or
  arbitrarily interfered with. The right to privacy is relevant  to  a number of
  clauses within  the bill. However, for the reasons outlined  below, I consider
  that none of the clauses interfere with the right to privacy in an unlawful or
  arbitrary manner.

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  Entry to land and buildings without a warrant
  The  bill contains  a number of clauses which permit entry  to land  without a
  warrant for a range of purposes.
  Surveying land under the Mineral Resources (Sustainable Development) Act 1990
  Clause 30 of the  bill inserts  a series  of new requirements into the Mineral
  Resources (Sustainable Development) Act 1990 (MRSD act) regarding  the conduct
  of  a  boundary  survey prior to applying for a  licence.  Under  new  section
  26AR(1) of the MRSD act, an applicant for a licence must survey the boundaries
  of the land proposed to be covered by the licence.

  Under  new  section 26AR(2), a person may enter land  to  conduct  a  boundary
  survey  but only with the written consent of the owner or occupier, or with an
  authority  in writing from  the department head under  new section 26AS. Under
  new section 26AS, the department head  may grant  an authority for a person to
  enter  land  if  the department head is satisfied that  the  person  has  made
  reasonable attempts to obtain consent and has been unable to contact the owner
  or occupier or the owner or occupier has refused or failed to consent.
  In  most cases, the entry onto  land authorised by clause  30 of the bill will
  not interfere with a person's privacy as generally entry will only occur where
  consent has  been provided. However,  even in circumstances where  consent has
  not  been  provided  and  authority to enter has been granted  under  the  new
  section 26AS, clause  30 also inserts a number of safeguards into the MRSD act
  which govern entry to land for  the  purpose  of  boundary surveying to ensure
  that entry without consent will neither be arbitrary nor unlawful.

  These include: creating an offence for  a person entering land to fail to show
  a copy  of their authority to do so if requested by the owner or occupier (new
  section 26AT); a person entering land must provide security to the  department
  head against the risk of damage to the property due to the entry  (new section
  26AU); and a person entering land must be insured against any  risk that might
  arise if the  owner or occupier were to sustain a personal injury  as a result
  of the person's entry (new  section  26AV). For these reasons, I consider that
  clause 30 does not limit the right to privacy.
  Unlicensed worksites under the MRSD act

  Clause 54  of the bill amends section 94 of  the  MRSD act to provide that, as
  well as a power of entry to a 'worksite', as defined in the MRSD act, there is
  also a power  for an inspector to, at  any time during working  hours, enter a
  place in which the inspector reasonably believes  an  activity is being or has
  been conducted in contravention of certain provisions of the MRSD act.
  Clause 54 is relevant to the right to privacy insofar as section 94(1) permits
  entry to land without the owner or occupier's consent which may interfere with
  the  privacy  of individuals in  some cases. However,  importantly,  the entry
  power does  not permit entry  to  residential premises, where  persons  have a
  higher expectation of  privacy, except with the  occupier's consent or with  a
  search warrant (section 95I of the MRSD act).

  Additionally, an  inspector  entering an unlicensed worksite without a warrant
  is required to notify  the occupier of the entry and produce an identification
  card (section  95C).  Further, on  leaving  the premises, the  inspector  must
  provide  a detailed report to the occupier regarding the time and  purpose  of
  the entry, and the things done while at the premises (section 95D).
  In my view, the clause does not limit  the right to privacy as the entry power
  is appropriately circumscribed, and there are appropriate safeguards to ensure
  that the entry power is not exercised in an unlawful or arbitrary manner.
  Searching for stone under the MRSD act
  The bill modifies the regulation of searching for stone under the MRSD act.

  Clause 16 of the bill inserts a new section 8AA into the MRSD  act which makes
  it an offence for a person to search for stone on any private land without the
  consent of the owner or the authorisation of the minister under section 112 of
  the MRSD act, or on Crown land without the  consent of the minister under  new
  section  77A(1). Section 112, as amended by clause 58 of  the  bill,  provides
  that the  minister may  authorise a  person to  enter land  for the purpose of
  searching for stone on behalf of the department.
  Clause 58 is  relevant to  the right  to privacy  insofar as  section 112,  as
  amended, permits entry  to  land without the  owner or occupier's  consent  to
  search  for  stone,  which  may  interfere  with the  privacy  of individuals.
  However, in my  view,  clause 58 does not  limit the right to  privacy  as the
  power to enter land under  section 112 is appropriately circumscribed, and the
  bill contains  appropriate  safeguards to prevent  the entry power  from being
  exercised in an arbitrary manner.

  A person entering land must comply with a number of obligations under  section
  112,  including:  an obligation  to  cause as  little  harm, inconvenience and
  damage as possible; an obligation to remain on the land only for so long as is
  reasonably necessary; an obligation to leave the land, as  nearly as possible,
  in  the  condition  in  which it was immediately  before  the  entry;  and  an
  obligation to use best endeavours to co-operate with the owner and occupier.
  Surveying land under the Pipelines Act 2005
  Clause 90 of the  bill inserts new sections 68A  to 68K into the Pipelines Act
  2005. A licensee who  wishes to  alter a  pipeline authorised by a licence may
  enter land  in order to conduct a survey of the proposed  alteration. In  most
  cases, entry onto land authorised by clause 90 of  the bill will not interfere
  with  a person's privacy as the  bill provides that entry is to occur with the
  consent of the owner or occupier except where this is not possible.

  A licensee must  give written notice to owners and occupiers of the land (and,
  in the case of Crown  land,  the  Crown  land  minister),  of  the  licensee's
  intention  to  enter  land (new  section  68D).  The  licensee  must  take all
  reasonable steps to reach  agreement with each owner and occupier in  relation
  to the entry (new section 68E). If there  is a native title holder or occupier
  of Crown land,  a person may only enter if the native title holder or occupier
  has agreed  to  the  entry or the person obtains a further ministerial consent
  under section 68J (which requires more evidence in support).
  In circumstances where consent is not provided, the bill permits entry to land
  only in limited circumstances. This ensures that any interference with privacy
  will neither be arbitrary nor unlawful.

  If the licensee has been unable to obtain  consent, he or she may apply to the
  minister  for  authority  to  enter  the  land (new section 68G). An owner  or
  occupier of land to which an application  under  new  section  68G relates may
  advise the minister of their reasons for refusing to agree to the entry of the
  licensee onto the land for survey purposes (new section 68I). The minister may
  only consent  to the  entry if  he/she is  satisfied with the adequacy of  the
  measures to be taken to address any adverse  impact of the survey on safety or
  the environment, and that the owner and 

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 occupier were given the required statutory notice of the proposed entry to land
(new section 68J). An authorisation to enter land under new sections 68F and 68J
remains in force for one year after the day on which the consent is granted. For
the reasons outlined above, I consider  that  clause  90 does not interfere with
the right to privacy as any interference with privacy  will  be neither unlawful
nor arbitrary.
  Information sharing
  Clause  67 of the bill inserts a new part 6.10 into the Offshore Petroleum and
  Greenhouse Gas  Storage  Act 2010  (OPGGS  act)  which  provides  for  two-way
  information sharing with the commonwealth.

  The regime applies to information, including personal information, obtained by
  the minister, the commonwealth minister  or  the  National  Offshore Petroleum
  Safety  and  Environmental  Management  Authority  (NOPSEMA) in the course  of
  exercising a power or function under the OPGGS act  or  administering that act
  (offshore information). Under new section 718G, the minister, the commonwealth
  minister or NOPSEMA may provide offshore  information to one another,  and the
  recipient  may  use  such  information  in the course of exercising a power or
  performing a function under the OPGGS act or administering that act. Under new
  section 718H, the minister may also provide offshore information to a range of
  state  and  commonwealth  regulatory entities  for  use in the  course  of the
  exercise  of  the entity's powers or the performance of its functions under or
  for the  purposes  of  a  law.  The  information-sharing regime  will   enable
  appropriate regulatory  agencies to carry out their functions, particularly in
  the circumstances of a joint-investigation and prosecution.

  Clause 67  is relevant  to the  right to privacy to the  extent that  offshore
  information may include personal information. However, in my view,  the clause
  does not limit the right to privacy as the bill does not  permit the arbitrary
  or  unlawful use  or  disclosure  of personal  information.  New section  718I
  provides  that,   in  the  case  of  offshore  information  that  is  personal
  information, an entity sharing the information  must take reasonable  steps to
  ensure that it  is de-identified. Further, a recipient of offshore information
  may only use the  information  in  the  course  of  exercising  its  powers or
  functions. Finally, to  the extent that offshore information contains personal
  or  health information, its use and disclosure is regulated by the Privacy and
  Data Protection Act 2014 or the Health Records Act 2001.
  The Hon. Russell Northe, MP
 Minister for Energy and Resources