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12 March 1991 - Current

 
RESOURCES LEGISLATION AMENDMENT (BTEX PROHIBITION AND OTHER MATTERS) BILL 2014
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6 August 2014
ASSEMBLY Statement of Compatibility NORTHE

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